Vaughn Stephen Ayres, Jr. v. City of Beaumont; Michael B. Bertrand

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 2, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________________
No. 02-41318
_____________________________________
VAUGHN STEPHEN AYRES, JR.
Plaintiff - Appellee
v.
CITY OF BEAUMONT; MICHAEL B. BERTRAND
Defendants - Appellants
__________________________________________________
Appeal from the United States District Court
For the Eastern District of Texas
(1:00-CV-560)
__________________________________________________
Before DAVIS, JONES and BENAVIDES, Circuit Judges
PER CURIAM:*
There was no legally sufficient evidentiary basis for a
reasonable jury to have found in favor of Vaughn Stephen Ayres,
Jr. (“Ayres”)on any of his claims. Therefore, we reverse the
district court’s judgment in favor of Ayres and render judgment
in favor of the City of Beaumont (“City”) and Michael Bertrand
(“Bertrand”).

-- 1 of 3 --

-2-
Ayres failed to make out a 42 U.S.C. § 1983 claim against
Bertrand and the City for violating his constitutional right to a
name-clearing hearing following his suspension from the Beaumont
Fire Department. To make out a claim for denial of a name-
clearing hearing under § 1983, an employee must prove:
that he was discharged, that defamatory
charges were made against him in connection
with the discharge, that the charges were
false, that no meaningful public hearing was
conducted pre-discharge, that the charges
were made public, that he requested a hearing
in which to clear his name, and that request
was denied.
Rosenstein v. City of Dallas, 876 F.2d 392, 395-96 (5th Cir.
1989) (internal citations omitted. Ayres was not discharged from
his position with the Fire Department; therefore, there was no
legally sufficient evidentiary basis for a reasonable jury to
have found in favor of Ayres on this claim.
“A city performing a governmental function is immune from
suit on the torts of its officers, agent and employees” except as
waived by the Texas Tort Claims Act. Dallas v. Moreau, 718 S.W.2d
776 (Tex. App. - Corpus Christi 1986, writ ref’d). Ayres sued
Bertrand for defamation in his official capacity, so both
Bertrand and the City enjoy immunity. Brandon V. Hall, 469 U.S.
464 (1985) (A suit against an individual in his official capacity
is a suit against the city.).
Ayres had no cause of action for breach of the Collective
Bargaining Agreement. Ayres claimed breach of contract, but did

-- 2 of 3 --

-3-
not follow the union’s grievance procedures. An employee may be
allowed to sue an employer directly for breach of contract, but
only in cases where “the employee can prove that the union as
bargaining agent breached its duty of fair representation in its
handling of the employee’s grievance.” Vaca v. Sipes, 386 U.S.
171, 186 (1967). Ayres did not prove that the union breached its
duty of fair representation with regard to his contract claims,
so he is foreclosed from suing Bertrand and the City.
REVERSED and RENDERED.

-- 3 of 3 --