Rodriguez v. Escalon

1Pursuant to 5th Cir. R. 47.5, this 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that this opinion should not be published and is not precedent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.
1
United States Court of Appeals
Fifth Circuit
F I L E D
March 11, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 03-40572
_____________________
JESUS P. RODRIGUEZ,
Plaintiff - Appellant,
versus
HENRY ESCALON,
In His Individual and Official Capacity as
Sheriff of Hildalgo County,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
District Court Cause No. M-02-CV-119
_________________________________________________________________
Before DAVIS, BARKSDALE and PRADO, Circuit Judges.1
PRADO, Circuit Judge:
This appeal arises from a dispute between an employee and
his former employer about whether the employee had a protected
property interest in his job. After considering the parties’
arguments and the applicable law, this Court concludes that the
employee does not have a protected property interest and AFFIRMS
the judgment of the district court finding the same.
Factual Background

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2
The appellant, Jesus P. Rodriguez (Rodriguez), worked for
the Hidalgo County (Texas) Sheriff’s Department for twelve years
until he was terminated in the fall of 2001. Rodriguez sought
review of his termination by the Hildalgo County Civil Service
Commission (the Commission). In the spring of 2002, the
Commission ordered the Sheriff’s Department to reinstate
Rodriguez. But the Sheriff, Appellee Henry Escalon, refused to
rehire Rodriguez.
In response, Rodriguez sued Sheriff Escalon under section
1983 of title 42 for depriving him of property without due
process of law as prohibited by the Fourteenth Amendment to the
United States Constitution. Both parties moved for summary
judgment. In their motions, the parties addressed whether
Rodriguez possessed a protected property interest in his job with
the Sheriff’s Department. After considering the parties’
motions, the district court found that Rodriguez was an at-will
employee of the Sheriff’s Department, and thus, Rodriguez lacked
a property interest within the meaning of the Due Process Clause
of the Fourteenth Amendment. Accordingly, the district court
granted Sheriff Escalon’s motion for summary judgment, denied
Rodriguez’s motion, and dismissed the lawsuit. Rodriguez
challenges that determination in this appeal.

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2See Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 408 (5th
Cir. 2002).
3Rodriguez relies on Board of Regents v. Roth, 408 U.S. 564
(1972), and Perry v. Sindermann, 408 U.S. 593 (1972).
4614 F.2d 467 (5th Cir. 1980).
3
Standard of Review
This appeal presents a question of law; that is, whether
Rodriguez had a protected property interest in his job. This
Court reviews the district court's determination about this
question of law de novo.2
Whether a Property Interest Exists
On appeal, Rodriguez maintains the district court erred by
concluding that he lacked a property interest in his job with the
Sheriff’s Department. Rodriguez admits that no contract between
himself and the Sheriff’s Department existed, but argues that
property interests in government employment are commonly created
by administrative rule-making. Relying on several Supreme Court
opinions,3 Rodriguez argues that the Commission’s rules created a
property interest in his employment by prohibiting arbitrary
dismissal and allowing him to challenge his termination at a
hearing. He also argues that this Court in Glenn v. Newman4
found that similar policies and procedures indicated a mutual
understanding between the employer and the employee that the
employee had a property interest in continued employment. In
addition, Rodriguez relies on several Commission rules that he

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5See Bd. of Regents v. Roth, 408 U.S. 564 (1972).
6Bishop v. Wood, 426 U.S. 341, 344 (1976).
7Muncy v. City of Dallas, 335 F.3d 394, 398 (5th Cir. 2003).
8See Batterton v. Tex. Gen. Land Office, 783 F.2d 1220, 1223
(5th Cir. 1986); Byars v. City of Austin, 910 S.W.2d 520, 523
(Tex. App.—Austin 1995, writ denied).
9See Batterton, 783 F.2d at 1223; Byars, 910 S.W.2d at 523.
4
asserts indicate he was not an at-will employee.
Only government employees who can show that they have a
property interest in continued employment are entitled to the
procedural due process protections of the Fourteenth Amendment.5
“A property interest in employment can . . . be created by
ordinance, or by an implied contract. In either case, however,
the sufficiency of the claim of entitlement must be decided by
reference to state law.”6 In Texas, “there exists a presumption
that employment is at-will unless that relationship has been
expressly altered,” either by contract or by express rules
limiting the conditions under which an employee may be
terminated.7 Any agreement to modify the at-will relationship,
however, must be clear and specific.8 In the context of public
employment, any ambiguity is resolved in favor of the state.9
In the instant case, no clear and specific agreement exists
to modify the at-will relationship. Although the Commission has
promulgated rules regarding prohibited employee conduct, those
rules are specifically stated in terms of “examples” of

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10See Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d
501, 502 (Tex. 1998). The Supreme Court of Texas has been clear
on this point:
General comments that an employee will not be
discharged as long as his work is satisfactory do not
in themselves manifest such an intent. Neither do
statements that an employee will be discharged only for
"good reason" or "good cause" when there is no
agreement on what those terms encompass. Without such
agreement the employee cannot reasonably expect to
limit the employer's right to terminate him. An
employee who has no formal agreement with his employer
cannot construct one out of indefinite comments,
encouragements, or assurances.
Montgomery County Hosp. Dist., 965 S.W.2d at 502.
11See Glenn, 614 F.2d at 471-72.
12See Byars v. City of Austin, 910 S.W.2d 520, 524 (Tex.
App.-Austin 1995, writ denied).
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prohibited conduct. Including a non-exhaustive list of
prohibited conduct does not constitute an express and specific
modification of the at-will employment relationship.10 The
Court’s previous determination in Glenn v. Newman does not
control here because the regulations at issue in Glenn listed the
reasons an employee could be disciplined and specifically
provided that suspension and dismissal could occur only "for
cause."11 That is not the case with the Commission’s rules.
Likewise, the provision for an employee grievance system
such as the one included in the Commission’s rules does not
constitute an express and specific modification of the at-will
employment relationship.12 Even though the Commission’s rules

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13See Montgomery County Hosp. Dist., 965 S.W.2d at 502;
Welch v. Doss Aviation, Inc., 978 S.W.2d 215, 221 (Tex. App.-
Amarillo 1998, no pet.); Reynolds Mfg. Co. v. Mendoza, 644 S.W.2d
536, 539 (Tex. App.—Corpus Christi 1982, no writ).
14See Batterton, 783 F.2d at 1223; Byars, 910 S.W.2d at 523.
6
provide that the Commission will reverse the Sheriff’s action if
it finds the adverse employment action was arbitrary or
capricious, in Texas, even an oral or written statement that an
employee may be terminated for “good reason” or “good cause”
without further definition of these terms will not alter the at-
will employment relationship.13
Additionally, the “at-will” language regarding probationary
employees in the Commission’s rules does not constitute an
express and specific modification of the at-will relationship.
Notably, the rules contain no language that indicates an employee
can be terminated only for good reason or for good cause.
Without such language, no express and specific modification of
the at-will relationship exists. Even if any ambiguity existed
about whether the at-will relationship had been expressly
modified, this Court must resolve that ambiguity in favor of the
Sheriff.14
Because the at-will employment relationship between the
Sheriff and his employees was not modified, Rodriguez had no
protected property interest. Without a protected property
interest, the district court did not err by granting the

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7
Sheriff’s motion for summary judgment. Consequently, this Court
AFFIRMS the district court’s order dismissing Rodriguez’s
lawsuit.
AFFIRMED

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