Bolton v. City of Dallas TX, et al

United States Court of Appeals
Fifth Circuit
F I L E D
December 7, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-11141
_______________
TERRELL BOLTON,
Plaintiff-Appellant,
VERSUS
THE CITY OF DALLAS, TEXAS,
AND
TEODORO BENAVIDES,
IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:04-CV-0501-K
______________________________
Before SMITH, BENAVIDES, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Terrell Bolton appeals a summaryjudgment
in favor of the defendants, the City of Dallas
and its city manager, Teodoro Benavides.
Bolton sued under 42 U.S.C. § 1983, alleging
that the city had terminated him from his po-
sition as Chief of Police in violation of the due
process clause of the Fourteenth Amendment.

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The district court concluded that Bolton
lacked a constitutionally-protected property
interest in further employment with the Dallas
Police Department (“DPD”). Because Chapter
XII, § 5 of the Dallas City Charter creates a
constitutionally-protected property interest,
we reverse and remand. We also conclude
that Benavides’s successful defense of
qualified immunity requires dismissal of Bol-
ton’s claims against Benavides in his individual
capacity.
I.
Bolton served as an executive-rank officer
of DPD for fifteen years and in August 1999
was promoted from assistant chief to chief. In
August 2003 city manager Ted Benavides ter-
minated his employment. Benavides ac-
knowledges that the dismissal was not for
cause. Bolton claims the city charter mandates
that he be restored to the rank and grade he
held before being appointed chief.
II.
We review a summary judgment de novo,
applying the same standard as did the district
court. Morris v. Powell, 449 F.3d 682, 684
(5th Cir. 2005), cert. denied, 2006 U.S. LEX-
IS 8734 (U.S. Nov. 13, 2006). All justifiable
inferences to be drawn from the underlying
facts must be viewed in the light most favor-
able to the nonmoving party. Minter v. Great
Am. Ins. Co., 423 F.3d 460, 465 (5th Cir.
2005). Summary judgment is appropriate
where the record demonstrates that there is no
issue of material fact and the moving party is
entitled to judgment as a matter of law. Mar-
tinez v. Bally’s La., Inc., 244 F.3d 474, 476
(5th Cir. 2001).
III.
To succeed on a due process claim in the
context of public employment, a plaintiff must
show that (1) he had a property interest/right
in his employment and (2) his termination was
arbitrary or capricious. Moulton v. City of
Beaumont, 991 F.2d 227, 230 (5th Cir. 1993)
(citing Honore v. Douglas, 833 F.2d 565, 568
(5th Cir. 1987)). Because the district court
granted summary judgment based on its find-
ing that Bolton lacked a property interest in his
employment, we address only the first prong.
Although public employees can be endowed
with constitutionally-protected property
interests in their employment,1 a property
interest is not incidental to public employment
and must be located in an independent source,
such as state law. Perry v. Sinderman, 408
U.S. 593, 601 (1972). “A property interest is
created where the public entity has acted to
confer, or alternatively, has created conditions
that infer [sic, imply?], the existence of a prop-
erty interest by abrogating the right to
terminate an employee without cause.” Muncy
v. City of Dallas, 335 F.3d 394, 398 (5th Cir.
2003). A public entity can confer a property
interest in public employment through a local
ordinance. Bishop v. Wood, 426 U.S. 341,
344 (1976).2
1 Gilbert v. Homar, 520 U.S. 924, 928-29
(1997) (stating that “employees who can be dis-
charged only for cause have a constitutionally pro-
tected property interest in their tenure and cannot
be fired without due process”); Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532 (1985).
2 Under Texas law, home rule cities “may de-
termine by charter whether employment in certain
city offices is at will or continuous absent just
cause for dismissal, and Texas courts will give ef-
fect to such charter provisions.” Henderson v. So-
telo, 761 F.2d 1093, 1096 (5th Cir. 1985) (citing
Ratliff v. City of Wichita Falls, 115 S.W.2d 1153
(Tex. Civ. App.SSAmarillo 1938, writ dism’d),
(continued...)

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Bolton claims that Chapter XII, § 5 of the
charter grants him a property interest in con-
tinued employment. It states,
If the chief of the police department . . .
was selected to that position from the ranks
of the police department and is removed
from the position on account of unfitness
for the discharge of the duties of the posi-
tion, and not for any cause justifying dis-
missal from the service, the chief . . . shall
be restored to the rank and grade held prior
to appointment to the position, or reduced
to a lower appointative rank.
DALLAS, TEX., CITY CHARTER ch. 12, § 5
(2006).
We examined this section in Muncy, 335
F.3d 394. In that case, two executive-rank
DPD officers challenged demotions to the
highest-rank appointments they had held be-
fore receiving their executive appointments.
They contended that a myriad of sources, in-
cluding § 5, granted them a protected property
interest in their executive-rank positions. In
examining § 5, we noted that “unfitness for
duty” is “a nebulous status which conceivably
could encompass political unsuitability or any
number of other reasons that fall short of the
property-interest conferring, termination-for-
cause standard.” Id. at 399. We found this
particularly true given that the statute internal-
ly defines “unfitness for duty” as “not for any
cause justifying dismissal.” Id. Interpreting
the provision as a whole, we noted that it
“contemplates that high level officials will be
removed from time to time, and in those in-
stances in which the removal is not for a cause
warranting dismissal, then the official will be
reassigned within the department.” Id.
Although the city points to language in
Muncy indicating that § 5 serves primarily as a
limit on the city’s ability to retain former ex-
ecutives, id. at 399-400, it is evident that Mun-
cy does not control the instant case. Unlike
the plaintiffs in Muncy, Bolton claims a prop-
erty interest not in his executive-rank position,
but rather in continued employment at the rank
and grade held before his appointment to the
executive position. His argument does not
rely on the “unfitness for duty” language, but
rather on the “for any cause justifying dis-
missal” language. He asserts that § 5, by its
reference to “any cause justifying dismissal
from the service,” creates a property interest in
continued employment.
The plain language of the charter supports
Bolton’s reading. “If the chief . . . is removed
. . . not for any cause justifying dismissal from
the service,” tracks language that elsewhere
has been found to create a property interest.3
The word “shall” implies that restoration to a
2(...continued)
and City of San Benito v. Cervantes, 595 S.W.2d
917 (Tex. Civ. App.SSEastland 1980, writ ref'd
n.r.e.)).
3 See Perry, 408 U.S. at 600-03 (holding that
guidelines stating that an employee “may expect to
continue in his academic position unless adequate
cause for dismissal is demonstrated in a fair
hearing” create a protected property interest); Ai-
ello v. United Air Lines, Inc., 818 F.2d 1196, 1199
(5th Cir. 1987) (finding a protected property inter-
est where an employee handbook “contained a pro-
vision that employees would be discharged only for
good cause”); United Transp. Union v. Brown,
694 S.W.2d 630 (Tex. App.SSTexarkana 1985,
writ ref’d n.r.e.) (finding a protected property
interest where “the manual of working conditions
provides that no employee will be demoted without
good cause”).

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lower rank and grade is mandatory.4
Even if we were to look beyond the plain
language, this interpretation makes sense. The
chief of police is a political position, and a
chief might be removed for any number of
reasons beyond his control. Through this
charter provision, Dallas is ensuring officers
with considerable length of service that ac-
cepting an unstable job will not force them to
forfeit their long tenure within the DPD. It re-
flects a balance between the cty’s interest in
attracting high quality applicants and its inter-
est in ensuring effective oversight of the of-
ficers who fill executive positions.
The city responds by claiming that the two
grounds for removal in the charterSS“unfitness
for duty” and “for cause justifying dismis-
sal”SS do not exhaust the field of possible rea-
sons for removal of an executive officer.
Although admitting that Bolton was not re-
moved for cause, the city alleges that he was
discharged because his continued presence
would be “disruptive” rather than because he
was unfit for duty, a reason for removal that
would not trigger § 5. We do not ascribe the
same talismanic significance to “unfitness for
duty.” The language that creates a property
interest is “not for any cause justifying dismis-
sal.” If a chief promoted from within the ranks
is not removed for cause, by the plain language
of the charter he must be restored to his
previous position.5
IV.
Benavides asserts in the alternative that any
claims against him in his personal capacity
should be dismissed because he is entitled to
qualified immunity. Although the district court
did not address the qualified immunity claim,
Benavides asserted the defense in his answer
and raised it in this appeal, so we may address
it.
Once a public official has raised the defense
of qualified immunity, the burden rests on the
plaintiff to rebut it.6 On a motion for summary
judgment, the disputed facts to which the
plaintiff points must be sufficient, if plaintiff’s
version is accepted, for a reasonable trier of
fact to determine (1) that the defendant
violated the plaintiff’s constitutional rights and
(2) that the violation was objectively
unreasonable. See Fraire v. City of Arlington,
957 F.2d 1268, 1273 (5th Cir. 1992). The
inquiry into reasonableness asks “whether
‘[t]he contours of the right [are] sufficiently
clear that a reasonable official would under-
stand that what he is doing violates the right.’”
Id. (citing Anderson v. Creighton, 483 U.S.
4 See, e.g., Valdez v. Cockrell, 274 F.3d 941,
950 (“The word ‘shall’ is mandatory in meaning.”).
5 The City raises alternative grounds for affirm-
ance: that § 5 does not apply to Bolton, because he
was not selected chief from “the ranks of the
department” and that the city is immune from suit
(continued...)
5(...continued)
under § 1983 because Bolton has not pointed to a
policy or custom that violates his rights. Because
the district court concluded that Bolton did not pos-
sess a protected property right, it did not address
the factual disputes raised by the city or whether
the city’s policy or custom played a role in the
violation of Bolton’s rights. We leave these argu-
ments for the district court on remand. See San-
ders v. English, 950 F.2d 1152, 1159 n.13 (5th
Cir. 1992).
6 See Pierce v. Smith, 117 F.3d 866, 871-72
(5th Cir. 1997) (“We do not require that an official
demonstrate that he did not violate clearly es-
tablished federal rights; our precedent places that
burden upon plaintiffs.”).

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635, 640 (1987)). If reasonable public officials
could differ as to whether the defendant’s
actions were lawful, the defendant is entitled
to immunity. Malley v. Briggs, 475 U.S. 335,
341 (1986).
Although we now conclude that § 5 of the
Dallas City Charter creates a vested property
right in employment at a former rank for exec-
utive-level officials, this decision is not appar-
ent from Muncy. There we were considering
a due process claim in the context of demo-
tion, but we stated that executive rank officials
are “employees at will, and the city was free to
discharge them without cause.” Muncy, 335
F.3d at 402. If we are to respect the principle
underlying qualified immunity to the effect that
officials must be able reasonably to “anticipate
when their conduct may give rise to damages,”
we cannot hold an official liable for taking ac-
tion that was arguably supported by decisions
of this court. See Davis v. Scherer, 468 U.S.
183, 195-96 (1984). Bolton’s claim against
Benavides in his personal capacity must be
dismissed based on qualified immunity,
because reasonable public officials could have
differed on whether discharging Bolton would
violate his constitutional rights.
In summary, because the charter creates for
Bolton a constitutionally protected property
interest in further employment, the judgment is
REVERSED. Bolton’s claims against
Benavides in his individual capacity are
DISMISSED based on qualified immunity.
The remaining claims are REMANDED for
further proceedings not inconsistent with this
opinion.

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