Dwight Gillis v. Perry Wooten and Harris County

• Court: Court of Appeals of Texas
• Decided: June 24, 2004
• Docket: 14-03-01134-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 24, 2004

Affirmed and Memorandum Opinion filed June 24, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01134-CV

DWIGHT GILLIS, Appellant

V.

PERRY WOOTEN AND HARRIS COUNTY, Appellees

On Appeal from the 80^th District Court

Harris County, Texas

Trial Court Cause No. 01-33499

M E M O R A N D U M   O P I N I O N

Dwight Gillis (AGillis@) appeals from the grant of summary judgment in favor of appellees, Harris County and Perry Wooten (AConstable@).  Gillis, a former Harris County deputy constable, sued Harris County and Perry Wooten, the Constable for Harris County Precinct 7, after he was terminated.^[1]  Harris County responded on behalf of the county and Perry Wooten, in his official capacity.  We affirm. 

Gillis asserts two points of error on appeal.  First, he asserts that the trial court erred in granting the Constable=s motion for summary judgment because Precinct 7=s Departmental Manual (Amanual@) created an employment contract affording him a constitutionally protected right to continued employment.   In his second point of error, Gillis complains that the court erred in granting a final summary judgment.  Should we find that Gillis was not an at-will employee, Gillis asserts that a fact question would exist as whether he was afforded Adue course of law@ when he was terminated.  He also complains that a summary judgment could not be granted on his reinstatement claim as the Constable failed to address the claim in his motion. 

Gillis received written notice on January 12, 2001 that a complaint had been filed against him.  Gillis was advised of the upcoming investigation by Chief Deputy Joseph Williams in the following letter:

You are hereby informed that a complaint has been filed against you by a constituent within Harris County.  The specifics of these allegations will not be detailed in this letter.  This investigation involves a(n) individual(s) at the following address:

Popeye=s Chicken

8519 West Belfort

Houston, Harris County, Texas

Until you are notified in writing of the closure and or final outcome of this investigation, you are not to correspond with the individuals at the above referenced address.  This includes any contact by phone, in writing, in person and any other means available.  Failure to comply with this directive can result in immediate disciplinary action. 

Thank you for your cooperation.  If you would like to discuss this matter further, please feel free to contact me at your convenience.

Gillis acknowledged receipt of this letter by signing and dating it.  

Following an investigation, Gillis was terminated.  The basis for his termination was explained in a letter from Chief Deputy Williams.  The letter provides:

Your conduct has placed you in violation of the Harris County Precinct #7 Constable=s Departmental office policy.  An internal investigation has revealed the following points.  On two separate occasions, you entered into the Popeye=s restaurant at 8519 West Belfort, Houston, Harris County, Texas and created a disturbance which was unbecoming a Peace Officer;

1.) The first reported event took place during the Thanksgiving Holidays where you demand [sic] a Afree turkey@ and were refused;

2.) On another occasion, you created a disturbance when you demanded Afree food@ and were refused, yet you decided to accept an offer for a discount after a confrontation with the counter personnel and management of the establishment; and

3.) It has been found that you have exhibited actions that have been construed as Asexually harassing@ at this same place of business both in person and by telephone.

An employee who in the performance of official duties displays reluctance to properly perform assigned duties, or who acts in a manner tending to bring discredit upon him/herself or the Department, or who fails to assume responsibility of to exercise diligence, proper demeanor, intelligence, and interest in the discharge of duties, may be deemed negligent or incompetent and shall be subject to disciplinary action, including suspension, demotion, or termination. 

Employees shall conduct themselves in a manner to ensure optimal cooperation with each other and with other Bureaus of the Department, as well as with employees of other County, City, State, Federal government agencies, and the public.

Employees shall strictly obey and properly execute any lawful order emanating from any ranking supervisor or competent authority.  The term Alawful order@ shall mean any order issued in connection with the performance of any duty prescribed by law, by policy or rule of the Department, or for the preservation of order, efficiency and proper discipline. 

This letter is to serve as your notification of termination of employment effective January 19, 2001 upon receipt of this letter. 

Gillis acknowledged receipt of this letter on January 19, 2001 by signing it.

Gillis filed suit alleging that his termination violated those rights guaranteed by Precinct 7=s Departmental Manual (Amanual@) and Article I, Section 19 of the Texas Constitution.  Additionally, Gillis alleged that he had entered into an unilateral contract with the Constable and that his termination was in breach of that contract.  Gillis alleges that the manual created both substantive rights and an unilateral contract.  In addition to reinstatement, Gillis sought back pay, removal of the termination from his employment file, damages for pain, suffering, and mental anguish, and pre and post judgment interest.  

Constable Wooten filed a motion for summary judgment as Gillis=s claims were barred as a matter of law by both sovereign immunity and the at-will employment doctrine.  Without a contract or other constitutional violation, the Constable also argued that Gillis was not entitled to reinstatement or other equitable relief.  Summary judgment was granted to Perry Wooten, in his individual capacity, and to Harris County.  The trial court=s order did not specify the particular ground for its decision.  

A traditional motion for summary judgment is properly granted only when the movant establishes that there are no genuine issues of material fact to be decided and that he is entitled to judgment as a matter of law.  See Tex. R. Civ. P. 166a(c);   Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex.App.C Austin 2000, no pet.).  In reviewing a motion for summary judgment, we accept as true all evidence favoring the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant=s favor.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).  A defendant seeking summary judgment must negate as a matter of law at least one element of each of the plaintiff's theories of recovery or plead and prove as a matter of law each element of an affirmative defense.  See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).  If the defendant establishes a right to summary judgment, the burden shifts to the plaintiff to present evidence raising a fact issue.  See id.  Because the trial court=s order did state the specific grounds for its ruling, we will affirm if any of the theories advanced in the Constable=s motion for summary judgment are meritorious.   See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

There is a presumption of at-will employment in Texas.  Smith v. SCI Mgmt. Corp., 29 S.W.3d 264, 267-68 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  Generally, deputy constables are considered at-will employees as they are hired for an unspecified period and are subject to the Avirtually unbridled authority@ held by the constable with regard to hiring and firing.  Renken v. Harris County, 808 S.W.2d 222, 225 (Tex. App.CHouston [14th Dist.] 1991, no writ).  With no expectation of future employment, the at-will employee holds no constitutionally protected property interest.  Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 504 (Tex. 1998); Renken, 808 S.W.2d at 226.

An employee may rebut this presumption by proving the existence of an employment contract in which the employer has Aunequivocally indicate[d] a definite intent to be bound not to terminate the employee except under clearly specified circumstances.@  Brown, 965 S.W.2d at 503; Smith, 29 S.W.3d at 267-68.  Gillis argues that an employment contract, altering the at-will employment relationship, was formed through language found in the manual.  In order to overcome the presumption of at-will employment, an employee manual must Aspecifically and expressly@ limit Athe employer=s right to terminate the employee.  McAlister v. Medina Elec. Coop., Inc., 830 S.W.2d 659, 665 (Tex. App.CSan Antonio 1992, no writ); see also Trostle v. Combs, 104 S.W.3d 206, 211 (Tex. App.CAustin 2003, no pet.).  Specifically, it is not enough that the manual contains a list of censurable conduct, the manual=s language must indicate that this list provides the exclusive grounds for termination.  McAlister, 830 S.W.2d at 664.

We find that the manual does not alter the at-will employment relationship.  The manual does not contain language to indicate that it is providing the exclusive means for termination.  First, employees are Asubject to reprimand, suspension, reduction in rank, or dismissal from the Department and from service . . . for violation of the rules and regulations and the code sections appearing in this manual, or for any of the other rules, regulations, or general or special orders of the Office of the Constable, Pct. 7.@(emphasis added).  Second, the manual contains an enumerated list of censurable conduct; however, the paragraph preceding the list does not indicate that this is an exclusive list.  It merely provides that the Afollowing reasons shall be deemed sufficient@ for disciplinary action.  Finally, it appears that the manual was not designed to embrace every possible employment scenario.  Specifically, it provides:

No arbitrary rules of conduct can be established which will embrace all cases arising in the general discharge of law enforcement duties or in the personal activities of the individual employees.  Therefore, any other act or omission contrary to good order and discipline shall also be the subject of disciplinary action. 

(emphasis added).  We do not believe this language provides a meaningful limitation on those instances where employees may be terminated. 

In addition to his claim that a contract was formed through the manual, Gillis alleges that his termination was in violation of those substantive rights afforded by the manual.  Specifically, he challenges the adequacy of the pre and post termination hearings.  Gillis directs us to sections in the manual describing a procedure for appealing disciplinary action.  However, a written policy describing formal grievance procedures does not necessarily result in the creation of independent substantive rights.  Renken, 808 S.W.2d at 225.  The reviewing court must discern Awhether the employer is granting a right to continued employment or is defining procedures that are to be complied with when discharging an employee.@  Id.  It must be apparent from the policy=s language that it is the exclusive means for terminating an employee.  Id.  Language in a manual granting a procedural right to a hearing does not automatically mean that an employee is no longer considered at-will.  Id.  Through our own review of the manual, we were unable to find language in the manual establishing an exclusive means for termination. 

Accordingly, we find the summary judgment evidence conclusively establishes that Gillis was an at-will employee.  Therefore, he has no property interest in his position as a deputy constable.  Without a property interest, Gillis=s claims related to his termination fail.  See Brown, 965 S.W.2d at 504 (explaining that an employee=s constitutional claims will fail in the absence of a contract altering the at-will employment relationship); Renken, 808 S.W.2d at 226 (providing that an at-will employee is not entitled to procedural or substantive due process when his state employment is terminated).  Gillis=s first issue is overruled.

Gillis alleged in his final complaint that the trial court was unable to enter a final summary judgment order in favor of the Constable.  Describing reinstatement as an Aelement@ of his cause of action, Gillis complains that summary judgment was improper because the Constable failed to address the right to reinstatement. Gillis incorrectly relies on City of Midland v. O=Bryant, 18 S.W.3d 209, 218 (Tex. 2000).  Unlike in O=Bryant, where Athe motion asserted only that damages could not be recovered for violations of the Texas Constitution,@ the Constable=s motion for summary judgment addressed the merits of Gillis=s wrongful termination claim and contained multiple legal theories as to why Gillis=s claims fail.  Because Gillis had no right to his job, the Constable argued that he was not entitled to relief.  In light of our finding that Gillis was an at-will employee, we agree that he is not entitled to a remedy.  Gillis=s second issue is overruled.  

Accordingly, we affirm the trial court=s order granting summary judgment. 

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed June 24, 2004.

Panel consists of Justices Anderson, Hudson, and Draughn.^*

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^[1]  Wooten has since been removed as Constable of Precinct 7 following an unrelated criminal conviction. 

^*  Former Justice Joe L. Draughn sitting by assignment.