Barnthouse v. City of Edmond

2003 OK 42, 73 P.3d 840, 74 O.B.A.J. 1297, 19 I.E.R. Cas. (BNA) 1622, 2003 Okla. LEXIS 45, 172 L.R.R.M. (BNA) 2768, 2003 WL 1908028

• Court: Supreme Court of Oklahoma
• Decided: April 22, 2003
• Docket: 97,350
• Status: Published

Opinions

OPINION

WATT, Viee Chief Justice.

1 The dispositive questions in this appeal are: (1) Did Appellants have a property interest in their employment and rank as Sergeants? (2) If so, did Appeliees deprive them of that interest and violate their due process rights by demoting them without a hearing? (8) Did the trial court erroneously hold City and Cochran were entitled to judgment as a matter of law? We answer all questions in the affirmative. We reverse the trial court's order granting summary judgment in favor of the City of Edmond and Chief of Police Cochran, and remand to the trial court.

I.

PROCEDURAL BACKGROUND

T2 Timothy Ray Barnthouse, Ancel Scott Fees and James Dallas Teel, II, (Appellants) are police officers for the Appellee, City of Edmond. Their employment is subject to a collective bargaining agreement (CBA), between the City and the Fraternal Order of Police, Lodge No. 186 (F.O.P.), which is governed by the Fire and Police Arbitration Act, 11 00.98.1991 § 51-101 et seq., (the FPAA). On July 30, 1998, Appellant Fees was promoted to Sergeant, and on October 31, 1998, Appellants Teel and Barnthouse were promoted to Sergeant. Effective April 26, 2000, they were notified in writing by City's Chief of Police, Appellee Dennis Cochran, that they were being "demoted" to their previous rank. They filed grievances in accordance with the CBA. The grievances were denied by Cochran and the F.O.P., and they filed this action in district court against City and Cochran, individually and as Chief of Police. Alleging they had a protected property interest in their continued employment as Sergeants and in not being demoted without cause, Appellants sued for the following claims:

a. Violations of their due process rights, under the 14th Amendment of the Constitution of the United States, and Art. 2, § 7 of the Oklahoma Constitution;

b. Relief under 42 U.S.C. § 1983 for depriving Appellants of their constitutional rights pursuant to City's policies and a deliberate choice to demote them;

c. - Negligence for breaching their duty to Appellants to administer properly the written examinations and assessment centers in accordance with their own policies and procedures;

d. Breach of contract;

e. Intentional infliction of emotional distress; and

f. Negligent infliction of emotional distress.

They each sought damages in excess of $10,000.00.

T8 Cross motions for summary judgment were filed. The trial court denied Appellants' motion for partial summary judgment and granted the motions filed by City and Cochran. This appeal was brought pursuant to Supreme Court Rule 1.36, Accelerated Procedure for Summary Judgments and Certain Dismissals, 12 0.8.2001, Ch. 15, App. 1.¹ Appellants contend they are appealing only the orders granting Appellees' motions for summary judgment. However, the parties refer to responses and evidentiary matters attached to Appellants' motion for partial summary judgment. Therefore, the issues raised therein are considered to the extent necessary.

II.

FACTUAL BACKGROUND

¶ 4 Appellants took part in the promotional process for the rank of Sergeant, which is comprised of a written examination and an oral "assessment center". At the time, their rank was Detective. This process, which ended on July 29, 1998, culminated in an "eligibility list" of candidates for promotions to Sergeant. The list ranks the candidates in order of their overall scores, and Appellants' names were among the top four positions.² Another officer, Dennis Dill, took part in the process, but was ranked at the bottom of the eligibility list and did not receive a promotion. He filed a grievance on August 7, 1998, complaining of the manner in which the assessment center was conducted. An arbitration hearing was held on December 17, 1999. On February 23, 2000, the arbitrator held in favor of Dill on his grievance. He ruled the assessment center was conducted improperly, that the resulting eligibility list was invalid, and that the "assessment center" portion of the promotional process must be repeated. It is undisputed that the Arbitrator's ruling did not mention Appellants by name, did not include a finding or recommendation that Appellants' promotions were invalid, and did not order that Appellants must be demoted. Nevertheless, after serving as Sergeants for more than one year, Appellants were notified in writing by Cochran that, effective April 26, 2000,³ they were being demoted as a result of the Dill arbitration award. They were also advised they must participate in the next assessment center, which they did. They did not receive promotions to Sergeant as a result of that promotional process, although two of the Appellants have since been promoted to Sergeant.

T5 Appellants alleged in their motion for partial summary judgment their constitution, al rights were violated, in that their protected property interests in their employment and rank were taken without due process, contrary to § 1983.⁴ They also alleged Ap-pellees breached their contractual rights not to be demoted without cause. In Cochran's motion for summary judgment, he raised defenses of qualified immunity as to Appellants' § 1983 claim, immunity as an employee of a political subdivision under the Governmental Tort Claims Act and that he was not a party to the CBA as to Appellants' breach of contract claim. In City's motion for summary judgment, it contended the invalid selection process invalidated the promotions, making them void ab initio; that no property interest arose as a result of the selection process; that no property interest exists in a procedure; and that Appellants bear the burden of proof that a property interest exists. City also adopted Cochran's argument as to the qualified immunity defense under § 1988.

TIL

DISCUSSION

¶ 6 As a threshold issue, we consider the argument of City and Cochran that Appellants failed to follow the CBA in pursuing their grievance, thus failing to exhaust their remedies under the CBA. Following their demotions, Appellants filed their grievance on May 10, 2000. After Cochran denied the grievance, it was submitted to the F.O.P., which denied it on June 14, 2000. Appellants did not pursue the grievance proceeding when the F.O.P. denied their grievance. They contended, in their response to Cochran's motion for summary judgment, that they were prohibited from continuing the process because their grievance did not concern a disciplinary action. We agree.

T7 The grievance procedure is covered in Article 10 of the CBA. Section 10.8 provides that the "F.O.P. or any employee may file a grievance" and that "[glrievances shall be presented within fifteen (15) calendar days of said occurrence or after the F.O.P. becomes aware of said occurrence". Section 10.5 provides the manner in which grievances will be processed. In Step 1, the aggrieved employee shall present the grievance to his or her immediate supervisor, who makes a decision in writing within seven calendar days. It provides:

STEP 1. The aggrieved employee(s) shall present the grievance to the immediate supervisor. It shall be reduced to writing citing the provision or provisions of this Agreement alleged to have been violated, be signed by the aggrieved employee(s). The immediate supervisor shall make their (sic) decision in writing to the employee within seven (7) calendar days of the date of presentation of the grievance.

T8 If Step 1 does not settle the grievance, the aggrieved employee follows Step 2, which provides:

STEP 2. If the grievance is not settled in STEP 1, the aggrieved employee(s) shall present the grievance to the F.O.P. Grievance Committee within seven (7) calendar days of the date of the immediate supervisor's response. The F.O.P. Grievance Committee will make a determination as to the validity of the grievance within (15) calendar days. If the grievance is deemed valid then the grievance will proceed to the next step. Grievances filed concerning disciplinary actions may be processed by the employee regardless of the F.O.P. Grievance Committee's ruling. [Emphasis supplied.]

9 Step 3 provides:

STEP 8. The F.O.P. Grievance Committee or the aggrieved employee(s) shall present the grievance to the Chief of Police within seven (7) calendar days of the date of the Grievance - Committee's - determination. The Chief of Police shall refer the grievance to a fact-finding committee which shall be composed of four (4) members, two of which shall be selected by the Chief of Police or his designate through impartial, random choice from a list of available officers with supervisory rank, and two of which shall be selected by impartial, random choice by the aggrieved employee(s). The Chief of Police and the aggrieved employee(s) shall have seven (7) calendar days to select the fact-finding committee. The findings and recommendations of this committee must be reached and presented to the Chief of Police within fifteen (15) calendar days from the time of the selection of all parties,. ...

T10 The emphasized language in Step 2 purports to allow the employee to process a grievance determined invalid by the F.O.P. However, the preceding sentence, "If the grievance is deemed valid then the grievance will proceed to the next step", implies the grievance ends at this step if the F.O.P. finds it is invalid. Considering these sentences together, we interpret the provision to mean that the grievance will end at Step 2 if the F.O.P. finds the grievance is invalid unless it involves a disciplinary action; if it does, it continues only if the employee pursues it further. Any other interpretation would render the paragraph ambiguous. It is undisputed in this case that Appellants were not demoted for disciplinary reasons. Under the clear language noted above, they were given no further options under the CBA when the F.O.P. denied their grievance. Accordingly, Appellants did exhaust their administrative remedies under the CBA.

IV.

ALLEGED PROCEDURAL DUE PROCESS VIOLATIONS

¶ 11 A two-step inquiry is necessary to determine whether a plaintiff was denied procedural due process: (1) did the individual possess a protected interest to which due process protection was applicable? and (2) was the individual given an appropriate level of process? See Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir.1998). To allege a violation of procedural due process rights, a plaintiff must demonstrate the existence of a legitimate property or liberty interest in his employment. Hennigh, at 1253. There must be a "legitimate expectation of continued employment", Id. at 1253, citing Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 LEd2d 548 (1972). The existence of a legitimate property right in employment is determined by reference to state law. Hennigh, at 1253, citing Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Hennigh was a demoted police officer whose employment was governed by a CBA and the Oklahoma FPAA. The 10th Cireuit Court of Appeals stated, at page 1253:

This court has held that if state statutes or regulations place substantive restrictions on a government actor's ability to make personnel decisions, then the employee has a protected property interest. See Campbell v. Mercer, 926 F.2d 990, 993 (10th Cir.1991) ("For example, if a statute, regulation, or policy ... restricts the reasons for discharge to 'just cause shown,' then the employee has a right to continued employment until such grounds or causes are shown." (internal quotations omitted)).

¶ 12 The same analysis is used to determine if there is a protected property interest in a particular employment status, such as rank. If a statute or regulation places substantive restrictions on the discretion to demote an employee, such as providing that discipline may only be imposed for cause, then a property interest is created. Hennigh, at 1254, citing Williams v. Kentucky, 24 F.3d 1526 (6th Cir.1994).

¶ 13 Based on its prior holdings interpreting Oklahoma law and the decisions of this Court⁵ that matters concerning the FPAA are matters of statewide concern, the Hennigh Court held, at 1255:

[Pllaintiff had a legitimate property interest in his rank. This property interest was created by state law in the form of the CBA, contracted pursuant to state legislation. The CBA gave Plaintiff a legitimate expectation of continued employment as a lieutenant unless the City found "cause shown."

¶ 14 In the instant case, Article 7, section 7.1(f) of the CBA provides:

The Employer, except as otherwise specifically provided for in this Agreement, retains and reserves unto itself, without limitation, all the powers, rights, authority, duties, and responsibilities conferred upon it and vested in it by the laws of the constitutions of the United States and the State of Oklahoma, the Statutes of the State of Oklahoma, and the Charter of the City of Edmond. Further, all rights, which ordinarily vest in and are exercised by employers are reserved to and remain vested in the Employer, including but not limited to the generality of the foregoing and the following managerial rights:

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(£) To discipline, transfer, demote, and discharge employees for cause, subject to the grievance procedure rights set out herein in Article 10, if such action falls within the definition of grievance. [Emphasis supplied.]

15 Additional evidence of a property interest in Appellants' employment and rank is found in the City's General Policy Order, GPO 83-2 Revised, effective June 22, 1998, entitled "Selection Process for Promotion". It provides, under Section V, that candidates from the Assessment Center are placed on an eligibility list for one full year. "At the end of this time period the Promotional Eligibility List shall expire and shall no longer be used." -It also provides that the probationary period for a recently promoted officer ends after one year. At that time, the promotion becomes permanent. GPO 86-1 Revised, effective June 22, 1998, entitled "Department Disciplinary Actions", provides that demotions ⁶ and terminations⁷ may only be imposed for cause.

¶ 16 In this case, the eligibility list was completed on or about July 30, 1998, and had expired before the Arbitrator's ruling was issued on February 28, 2000. At that time, the list could not be held "invalid"; it no longer existed. Further, under the terms of the CBA itself, which incorporates Oklahoma's FPAA, an employer's discretion to demote employees is restricted to demotions for cause. Under Hennigh, the CBA and the General Policy Orders noted, we hold Appellants did possess a protected property interest in their employment and rank.

¶ 17 As to the second step of the inquiry, we consider whether Appellants received an appropriate level of due process prior to the deprivation of the protected interest. In Hennigh, the Court determined that although the plaintiff did have a protected property interest in his employment and his rank, he nevertheless had received appropriate due process. The Hennigh plaintiff complained that his procedural due process rights were violated because the discipline imposed did not comply with the CBA's requirement for notarized complaints, The Court of Appeals stated:

However, the Constitution does not require that each individual receive the procedural guarantees provided for by the instrument which bestows a property interest ... The Due Process Clause of the United States Constitution entitles each citizen to notice and an opportunity to be heard prior to the deprivation of a fundamental right ... This court stated that [al failure to comply with state or local procedural requirements does not necessarily constitute a denial of due process; the alleged violation must result in a procedure which itself falls short of standards derived from the Due Process Clause." [Citations omitted.]

Hennigh, 155 F.3d at 1256.

1 18 In Hennigh, prior to his demotion, the plaintiff had been given an informal hearing before the Review Board. The City Manager also allowed plaintiff and his counsel an opportunity to respond to the allegations before imposing discipline. The federal Court of Appeals held this level of process met "the constitutional standard for a pre-termination hearing." Id. at 1256. Additionally, the Court stated the rule that a plaintiff "is not entitled to an extensive or formal pre-termi-nation Rearing if there are adequate post-termination procedures." Id., citing Benavidez v. Albuquerque, 101 F.3d 620, 627 (10th Cir.1996) [Emphasis supplied].⁸ The Court noted other cireuit courts generally hold that grievance procedures in a collective bargaining agreement can satisfy a plaintiff's entitlement to post-deprivation due process. The Court held that the CBA's grievance procedures provided Hennigh with an adequate post-deprivation remedy.

119 In Hennigh, the plaintiff was given the opportunity, however informal it was, to answer the complaints against him before his demotion. That opportunity was bolstered by Hennigh's post-demotion grievance proceeding, under the CBA procedures, which were deemed adequate by the Court. Appellants in the present case received neither "extensive" nor "formal" pre-demotion due process; they received no pre-demotion due process. In fact, their fate was decided by others following a hearing they could not attend. In this case, Appellants also received no benefit from adequate post-demotion proceedings because their grievance was denied. Clearly, Appellants herein were not afforded an appropriate level of due process to protect their property interests.

v.

COCHRAN'S LIABILITY

¶ 20 Cochran contends that as a public official, he is immune from liability for Appellants' § 1983 claim under the doctrine of "qualified immunity". In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 LEd.2d 396 (1982), the United States Supreme Court adopted an objective test to determine whether the doctrine of qualified immunity applies When government officials are performing discretionary functions, they will not be held liable for their conduct unless their actions violate "clearly established statutory or constitutional rights of which a reasonable person would have known." - Harlow v. Fitzgerald at 818, 102 S.Ct. at 2738. The court will examine the law as it was at the time of the defendant's actions to determine whether the law allegedly violated was clearly established. Id. The plaintiff has the burden of convincing the court that the law was clearly established. Pueblo Neighborhood Health Centers, Inc., v. Losavio, 847 F.2d 642 (10th Cir.1988), citing Lutz v. Weld County School Dist., 784 F.2d 340, 342-43 (10th Cir.1986). The plaintiff must do more than identify a clearly established right in the abstract and allege it was violated. The "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, ... but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987), citing Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) and Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Once the defense is raised, the court must allow the plaintiff the opportunity to show the defendant's conduct violated the law and that the law was clearly established when the alleged violation occurred. Pueblo Neighborhood Health Centers, Inc. at 647. The question is a legal one for the trial court to resolve, and the court's decision should identify the law upon which it relied and state the basis for its conclusion. Id.

$21 When defendants move for summary judgment on grounds of qualified immunity, the plaintiff must "come forward with facts or allegations to show both that the defendant's alleged conduct violated the law and that the law was clearly established when the violation occurred." Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1026 (10th Cir.1994), citing Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, supra at 646. Unless such a showing is made, the defendant prevails. Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, at 646. If the plaintiff establishes both of these matters, a defendant bears the normal burden as the movant for summary judgment of "showing that no material issues of fact remain that would defeat his or her claim of qualified immunity." Id. An objective standard is applied to determine whether a defendant violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Pueblo Neighborhood, 847 F.2d at 645.

¶ 22 Cochran contends that even if Appellants had had some constitutionally protected property interest for which due process would attach, it was not so "clearly established such that reasonable officials would have understood that their conduct violated that right", citing Dill v. City of Edmond, 155 F.3d 1193 (10th Cir.1998). He contends that the clearly established law required him to accept and follow the Arbitrator's ruling, whether or not he agreed with it, citing the Court of Civil Appeals' June 16, 2000, unpublished opinion in F.O.P. and Neal v. City of Edmond, in case number 98,982. However, reliance on Neal for guidance in this case was misplaced. Neal involved the City's refusal to enforce an arbitration award⁹ arising out of a grievance filed by the officer involved, Neal. Here, however, we are concerned with whether Cochran's conduct of demoting Appellants was required to enforce the arbitration award arising from Dill's grievance. He also contends Appellants' promotions became a nullity as a matter of law and that the established law gave Appellants no more than a protected interest in continued employment, not in a particular job or rank.

23 In response to Cochran's motion, Appellants cited Hennigh v. City of Shawnee, supra, and Dill v. City of Edmond, supra.¹⁰ These cases established that a property interest in their continued employment was created through the CBA in conjunction with state law, Le., the FPAA, and that the same analysis is applicable to their rank, citing the CBA's requirement for "cause" to "discharge, demote or discipline" employees. Therefore, they contend, under the cases cited, which were in effect at the time, they were entitled to due process before being demoted.

¶ 24 In Cochran's motion on this issue, he contends that if Appellants had a property interest in their positions as sergeants, he did not deny them due process. Rather, he contends it was the F.O.P., the CBA's procedures and the Arbitrator which were responsible for denying them any such alleged right. However, the arbitrator's function is to enforee the CBA, not to protect the constitutional rights of the grievant. See McDonald v. City of West Branch, 466 U.S. 284, 290-291, 104 S.Ct. 1799, 1803, 80 L.Ed.2d 302, which held "because an arbitrator's authority derives solely from the contract, ... an arbitrator may not have the authority to enforce § 1988 ... Indeed, when the rights guaranteed by § 1983 conflict with provisions of the collective bargaining agreement, the arbitrator must enforce the agreement." [Citations omitted]. Moreover, Appellants were not grievants whose case was before the Arbitrator. Cochran also asserts Appellants can not have a constitutionally protected property interest in a position they are legally considered to have never held.

¶ 25 Appellants sustained their burden of naming the clearly established right, a property interest in their employment and rank, through the clearly established federal law at the time, i.e., the Tenth Cireuit Court of Appeals cases, Hennigh and Dill While they are not Oklahoma Supreme Court cases, both cases interpret Oklahoma law and were published opinions at the time of the demotions. Dill was certainly known to the City of Edmond and Chief of Police Cochran. It dealt with a CBA virtually identical to the one at issue herein. Moreover, the FPAA, with which the City and Cochran were familiar, requires them to follow the terms of the CBA. Cochran responds with the claim that he had no choice except to follow the Arbitrator's ruling. This position raises material factual issues: did Cochran have to demote Appellants in order to comply with the arbitration award, thereby depriving them of their property interest and due process rights, or was there an alternative method of compliance which also complied with the law and the CBA? Did Cochran disregard the clearly established law at the time? In other words, would reasonable minds differ, or are different inferences possible, as to how to implement the ruling? We determine different inferences are possible, and summary judgment was improperly granted on this issue.

126 If the materials subject to consideration on a motion for summary judgment either disclose controverted material facts, or, reasonable minds might reach different conclusions even if the material facts are undisputed, a motion for summary judgment should be denied. Perry v. Green, 1970 OK 70, 468 P.2d 483, 488-489.

VL.

CITY'S LIABILITY

127 In its motion for summary judgment, City alleged that no property interest arose from an invalidated examination. City has cited several cases from other jurisdictions¹¹ which hold that an invalidated procedure is void ab initio. Accordingly, it is argued, if the promotional process was void, there was no promotion, no property interest and no entitlement to protection under the law against demotions.

¶ 28 None of the cases cited by the City pertain to Oklahoma law. Only one of the cases, City of San Antonio v. Gonzales, 737 S.W.2d 78 (Tex.App.1987), involves a collective bargaining agreement between a city and a police officers' association. Although the facts involve police officers promoted from an eligibility list later declared invalid, the case does not address their demotions or the rights they had acquired under the CBA after their promotions. We find City's citations of authority are inapplicable.

129 City acknowledges this Court has not previously addressed the issue in the context of grievance procedures and the FPAA, although it cited Oklahoma authority for the rule that generally, a void act of any kind confers no right. City also argued that because of Appellants' knowledge of the pending Dill grievance, they had no "legitimate expectation" of their continued employment, as required by Hennigh. However, that argument is not persuasive. Appellants correctly note in their response on this issue to Cochran's motion for summary judgment that there is no provision in the CBA which allows an employee to file a grievance in anticipation of a demotion.¹² Until Appellants received the "demotion letters", they had no grievance because they had lost nothing. Appellants' knowledge of a grievance filed by another employee, without more, did not satisfy City's or Cochran's obligation to give Appellants due process before demoting them.

¶ 30 A municipality is a "person" for purposes of § 1988 liability. Monell v. Department of Soc. Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, a municipality's liability cannot be imposed on the basis of respondeat superior or vicarious liability. Monell, 436 U.S. at 691, 98 S.Ct. 2018. A& municipality has no immunity for immune $s of its officials, Owen v. City of Independence, 445 U.S. 622, 647-650, 100 S.Ct. 1398, 1413-15, 63 L.Ed.2d 673 (1980). The immunity: enjoyed by the employee is not material as to the liability of the government employer. - Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993). Although a municipality is not lable vicariously for the acts of its employees, it can be subject to direct liability if it caused a constitutional violation through a policy statement, ordinance, regulation or decision officially adopted and promulgated by the municipality's officers. City of St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S.Ct. 915, 923, 99 L.Ed.2d 107 (1988). A municipal policy can be established by the single act of a policymaker who has final policymaking authority to bind the municipality to his actions and who has final authority to make decisions from several available alternatives. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). The municipality can be Hable for the harm caused by an official with such authority because the municipal agent's status cloaks him with the municipality's authority. Pembaur, 475 U.S. at 481, 106 S.Ct. at 1299. It is a question of state law whether an official has final policy-making authority to bind the municipality. Praprotnik, 485 U.S. at 123-124, 108 S.Ct. at 924.

¶ 31 Appellants raised the policymaker issue in their petition. In City's response to Appellants' motion for partial summary judgment, it argued that the reduction in Appellants' rank, which followed as a result of Dill's grievance, occurred by operation of law, not because of the f@ity. Cochran argued it was the F.O.P., C procedures and the Arbitrator which denied Appellants their property interests, if any, and that the clearly established law required him to demote Appellants. Appellants argued Cochran and the City failed to follow the CBA and GPO requiring cause for demotions. Cochran argued that the GPO does not prevent a promotion from being voided.

¶ 32 Cochran initiated the General Policy Orders in his capacity as Chief of Police. An inference arises that both City and Cochran, in effect, argue the policy of the City required Appellants' reduction in rank. Fact questions arise as to: (1) whether as a policymaker, Cochran ordered the Appellants' demotions because the City's policy required it; and (2) whether the absence of a specific GPO provision preventing the promotion from being voided justifies the demotion of officers without a hearing under the City's policy. Because the trial court's orders granting summary judgment were general judgments,¹³ without findings of fact or conclusions of law, and because these inferences are possible under the evidence,¹⁴ we do not know exactly what the trial court considered. We cannot be sure the trial court did not decide fact questions reserved for a jury.

1388 The trial court could have rendered judgment for Cochran because it found Appellants had no property interest in their employment, and therefore Cochran, individually, did not violate their due process rights. Or, the trial court could have found that although property interests existed in Appellants' employment, the law was not clearly established at the time of the demotions, and Cochran was entitled to the defense of qualified immunity. This could also result in judgment for Cochran. However, if Cochran violated Appellants' constitutional rights in his official capacity, despite having qualified immunity in his individual capacity, the City could be liable, although Cochran is immune. This cannot be determined from the face of the orders entered, and we must reverse and remand.

VIL.

OTHER CLAIMS

1 84 Finally, Appellants contended in their petition in error that the trial court abused its discretion in entering judgment for City on their contract and tort claims. They contend these claims were not included in their motion for summary judgment and there are remaining factual issues on these claims. However, their breach of contract claim was raised in their motion for partial summary judgment, and addressed in their reply to Cochran's response. Also, their negligence claim was addressed by City, in its response to Appellants' motion for partial summary judgment, recast by City as a claim for the "negligent deprivation of property".

185 However, we agree that both the claims for the intentional and negligent infliction of emotional distress were not raised in the motions for summary judgment, although they were raised in the petition. On remand, these issues must be resolved by the trier of fact.

¶ 36 Summary judgment is improper if under the evidentiary materials, reasonable men could reach different conclusions from the facts. Indiana Nat. Bank v. State Dept. Of Human Services, 1993 OK 101, 857 P.2d 53. Clearly, summary judgment was improperly granted.

VIIL

CONCLUSION

¶ 37 We hold Appellants exhausted their administrative remedies under the CBA. They have a protected property interest in their employment and rank through the CBA and the FPAA, but they were denied procedural due process prior to their demotions. Material issues of fact for a jury exist as to: (1) whether Cochran violated Appellants' clearly established constitutional rights for purposes of his individual qualified immunity defense to the § 1988 claim; and (@)whether the City incurred liability for the § 1988 claim because of Cochran's conduct in his official capacity. - Appellants' remaining claims of the intentional and negligent infliction of emotional distress should also be resolved by the trier of fact upon remand.

I 38 The judgment in favor of Cochran and the City of Edmond is reversed. This case is remanded to the trial court for further proceedings.

189 REVERSED AND REMANDED.

OPALA, V.C.J., and HODGES, LAVENDER, HARGRAVE, and KAUGER, JJ., concur. WINCHESTER, J., concurs in part, dissents in part. SUMMERS and BOUDREAU, JJ., dissent.

1 . In their petition in error, Appellants raised six issues on appeal:

1. Whether the filing of a formal grievance by a police officer against a municipality for not properly conducting a promotional process prevents other police officers promoted from that process from obtaining a property interest in the rank they were promoted to.

2. Whether the arbitration hearing resulting in Appellants' demotions provided any protection of the Appellants' property interest in their rank of sergeant.

3. Whether the arbitrator of an arbitration hearing, where Appellants were denied participation in such hearing, has the authority to direct the City to deprive Appellants of their property interest in the rank of sergeant without due process, and to violate their contractual rights, in order to provide a remedy for another officer's grievance.

4. Whether the City breached the Collective Bargaining Agreement between the City and the F.O.P. when it demoted Appellants without cause.

5. Whether Cochran is entitled to qualified immunity where his conduct violated Appellants' right to due process (a constitutional right), and that right was violated by Cochran when it was clearly established at the time of his conduct that Appellants had a protected property interest in their rank of sergeant and had a right to due process before and after deprivation of their rank of sergeant by Cochran and the City.

6. Whether the trial court abused its discretion entering judgment for the City on Appellants' claims of breach of contract, negligence, intentional infliction of emotional distress and negligent infliction of emotional distress where the City did not move for summary judgment on these claims, no evidence or legal authority were offered in support of such judgment, and where factual issues regarding these claims remain.

2 . Under the "Rule of three", the City can promote the officers from the first three names on the eligibility list. As promotions occur, the other names move up the list.

3 . At the rank of Sergeant, Appellant Fees served from July 30, 1998 to April 26, 2000, and Appellants Teel and Barnthouse served from October 31, 1998 to April 26, 2000.

4 . 42 U.S.C. § 1983 (Supp.1996). for deprivation of rights Civil action

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

5 . City of Bethany v. Public Employees Relations Bd., 1995 OK 99, 904 P.2d 604, 607 n. 4; City of Tulsa v. Public Employees Relations Bd., 1990 OK 114, 845 P.2d 872, 875.

6 . 10. Demotion to a designated Rank of Grade for Cause-Upon approval of the City Manager, the Chief of Police may demote an employee to a lower rank or grade. Such demotion will not be made if any permanent employee in a lower rank will be laid off as a result of the demotion.

7 . 11. Termination of Employment-Upon approval of the City Manager, the Chief of Police may terminate any permanent or temporary employee for cause.

8 . City employees subjected to drug testing were terminated after a pre-termination hearing. Because the pre-termination procedures were extensive, the post-termination procedure was less important to satisfy due process. The Tenth Circuit Court held:

[Slimilarly, we must evaluate the constitutionality of post-termination process in light of the pre-termination procedures it follows.

When the pre-termination process offers little or no opportunity for the employee to present his side of the case, the procedures in the post-termination hearing become much more important ... and where the pre-termination process has been minimal, the employee's fate may depend entirely upon the post-termination hearing ... In contrast, when the employee has had a meaningful opportunity to explain his position and challenge his dismissal in pre-termination proceedings, the importance of the procedures in the post-termination hearing is not as great.

Benavidez v. City of Albuquerque, 101 F.3d at 627.

9 . The arbitration panel overturned Neal's discharge and required his reinstatement.

10 . Although the Court of Appeals ultimately held that Dill's property interest in the change of his duty schedule was de minimis and did not trigger procedural due process protection, the Court did hold a property interest in his employment was established. See Dill v. City of Edmond, 155 F.3d 1193, 1207 (10th Cir.1998), which provides:

In this case, an express contract, the collective bargaining agreement between the City of Edmond and the fraternal order of police, gave rise to a protected property interest in Plaintiff's continued employment. The agreement provided that management could only discharge, demote or discipline employees "for cause." Thus, Plaintiff had a protected property interest in not being disciplined without cause. [Footnote omitted.]

11 . O'Grady v. Cook County Sheriff's Merit Board, 260 Ill.App.3d 529, 198 Ill.Dec. 28, 632 N.E.2d 87 (1994); Trosky v. Civil Service Commission, 539 Pa. 356, 652 A.2d 813 (1995); Ochocki v. Dakota County Sheriffs Department, 454 N.W.2d 476 (Minn.App.1990); City of San Antonio v. Gonzales, 737 S.W.2d 78 (Tex.App.1987); and Kauffman v. Puerto Rico Telephone Company, 841 F.2d 1169 (1st Cir.1988).

12 . Nevertheless, the affidavit of Appellant Fees, attached to Plaintiffs' Reply to Cochran's Response to Plaintiffs' Motion for Partial Summary Judgment, shows that Appellants attempted to participate. It provides:

When the grievance proceeding involving Dennis Dill was pending, I personally asked Acey Hopper, President of the Edmond FOP, if I and the other Sergeants who could potentially be affected by the arbitrator's decision (including the other two Plaintiffs herein) could either participate in or at minimum attend the arbitration hearing related to the Dill grievance. I was told that none of the Plaintiffs in this case could attend because we were not interested parties in the Dill grievance.

13 . The content of the orders comply with the requirements of 12 0.$.2001 § 696.3(A). They contain: (1) a caption, setting forth the court, the names and designation of the parties, the file number and title of the instrument; (2) a statement of the disposition of the motion ('"Defendant's Motion for Summary Judgment is hereby sustained"), including a statement of the relief awarded ("judgment is entered for the Defendant City of Edmond/Defendant Dennis Cochran"); and (3) the signature and title of the court. The orders were properly file-stamped, and a Certificate of Mailing, signed by the Court Clerk's Deputy, was filed. In all respects, the court's orders comprise a final judgment as to both defendants.

14 . Cochran testified in his deposition that Appellants were never promoted, and therefore, were never demoted, despite his use of those terms in his correspondence to them.