Unpublished Disposition, 931 F.2d 897 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 931 F.2d 897 (9th Cir. 1989)

Lanny LOYD and Claudia Loyd, Plaintiffs-Appellantsv.CITY OF BULLHEAD CITY, a municipal corporation, MartinKooken and Jane Doe Kooken, his wife, Jack Day and Jane DoeDay, his wife, Steve Buck and Jane Doe Buck, his wife, JamesKoshmider and Jane Doe Koshmider, his wife, Defendants-Appellees.

No. 89-16652.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 1991.Decided May 6, 1991.

Before HUG, ALARCON, and WIGGINS, Circuit Judges.


MEMORANDUM* 

Lanny Loyd and Claudia Loyd (hereinafter Loyd) appeal from the order granting summary judgment in favor of the defendants (hereinafter Bullhead City) and from the denial of Loyd's motion for reconsideration. Loyd seeks reversal on the grounds that his termination as chief of police (1) deprived him of a constitutionally protected property interest and (2) constituted a wrongful discharge in violation of Arizona public policy.

We review de novo an order granting summary judgment. Mead Reinsurance v. Granite State Insurance Co., 873 F.2d 1185 (9th Cir. 1988).

Summary judgment is appropriate if, viewing the evidence in the light most favorable to the opposing party, the trial court finds that 'there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.'

Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983) (quoting Fed. R. Civ. P. 56(c)). We review the denial of a motion for reconsideration for abuse of discretion. Hard v. Burlington N.R.R., 812 F.2d 482, 483 (9th Cir. 1987).

BACKGROUND FACTS

Lanny Loyd became a sergeant in the Bullhead City Police Department on August 12, 1985. On May 5, 1987, Richard Kaffenberger, the City Manager of Bullhead City, promoted Loyd to the position of chief of police. On approximately June 23, 1987, at the request of Bullhead City Attorney Steve Avilla, the police department began the first of several investigations of Bullhead City Council members for alleged corrupt political practices. On August 13, 1987, Bob Corbin, the Attorney General of Arizona, wrote a letter to Loyd asking for his assistance in a related investigation concerning alleged misconduct during a municipal election in Bullhead City. Corbin informed Loyd that his department's assistance was "necessary" due to the Attorney General's "current limited investigative resources."

On September 16, 1987, the Bullhead City Council suspended Kaffenberger and Avilla. The council appointed Bob Bula as interim city attorney. On October 5, 1987, the Bullhead City Council hired James Koshmider as interim city manager. Koshmider was granted a six-month leave of absence from his job as an employee of the City of Tucson. On November 10, 1987, Koshmider terminated Loyd's appointment as chief of police.

Loyd filed a complaint on October 11, 1988, alleging that Bullhead City (1) conspired to deprive him of his constitutional rights in violation of 42 U.S.C. § 1985 by firing him as Bullhead City Chief of Police, (2) deprived him of his right to procedural due process, in violation of 42 U.S.C. § 1983, in failing to provide him with a pre-termination hearing, (3) breached his employment contract, and (4) committed the tort of wrongful discharge under Arizona law. On September 20, 1989, the district court granted summary judgment in favor of Bullhead City on each claim. On September 29, 1989, Loyd filed a motion for reconsideration of the order granting summary judgment. The district court denied the motion for reconsideration. Loyd seeks reversal of that portion of the order granting summary judgment regarding his section 1983 cause of action and his pendent state claims.

II

DISCUSSION

Loyd alleges that he was deprived of a constitutionally protected property interest because he was discharged without a pre-termination hearing. He argues that he was entitled to a hearing because he has a property interest in his employment as chief of police. We must look to Arizona law to determine whether Loyd had a property interest in his employment. "Property interests are broad and are created and their dimensions defined by existing rules or understandings which stem from independent sources such as state law." Guy v. Mohave County, 701 F.2d 73, 75 (9th Cir. 1982) (citing Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). Loyd maintains that he has a constitutionally protected property interest based on alternative theories. We address each argument under a separate heading.

A public employee has no property interest in continued employment when he serves at the pleasure of his employer. Bishop v. Wood, 426 U.S. 341 (1976). Loyd contends that Section 3-3-1 of the Bullhead City Code prohibits the discharge of a chief of police without good cause. That section states:

There is hereby adopted a merit system for the employees of the city, the provisions of which shall apply to all employees of the city, except elected officials, officers of the city appointed by the council, persons engaged under contract to supply expert, professional or technical services, temporary employees, and volunteer personnel who receive no regular compensation from the city.

Bullhead City Code Sec. 3-3-1. Loyd contends that a chief of police is protected by the city merit system, because it is a position not specifically exempted under Section 3-3-1.

Bullhead City asserts that a chief of police serves at the pleasure of the city manager pursuant to Bullhead City Code Section 4-1-2. Section 4-1-2 states in pertinent part:

The Chief of Police shall be appointed by the City Manager and shall serve at the pleasure of the manager.

Bullhead City Code Section 4-1-2. We are persuaded that Section 4-1-2 governs the tenure of a chief of police. Under Arizona law, specific code provisions control over general statements in other ordinances. Arnold v. Department of Health Services, 160 Ariz. 593, 775 P.2d 521, 530-31 (1989). Accordingly, Chief Loyd served at the pleasure of the city manager on the date he was terminated.

2. Verbal modification of terms of employment

Loyd argues that Section 4-1-2 is inapplicable because the city manager and the city personnel director represented to him at the time of his employment that he would not be discharged without cause. In support of this proposition, Loyd relies on decisions of intermediate Arizona appellate courts involving assurances of job security made to persons whose employment status was not statutorily defined. A similar argument was presented in Guy v. Mohave County, 701 F.2d 73 (9th Cir. 1982). In that case a deputy sheriff argued that he had a property interest in continued employment because county personnel regulations prohibited termination absent "just cause." 701 F.2d at 77. We rejected his argument, holding that the appellant's employment status was controlled by A.R.S. Sec. 38-295(A), which provides that deputies "hold office at the pleasure of the appointing power." Id. Because Bullhead City Code Section 4-1-2 provides that a chief of police serves at the pleasure of the city manager, statements made to Loyd could not alter the conditions of his employment.

Loyd argues that Bullhead City is estopped from claiming that it did not have a "merit employment" contract with him because both the city manager and the city personnel director told him he could only be fired for cause. Equitable estoppel is not generally available against governmental entities. See Saulque v. United States, 663 F.2d 968, 976 (9th Cir. 1981) (estoppel cannot be invoked against the Government because of unauthorized acts of its agents). Equitable estoppel may be asserted where the evidence shows that government agents engaged in "affirmative misconduct going beyond mere negligence." Watkins v. U.S. Army, 875 F.2d 699, 707 (9th Cir. 1989) (en banc), cert. denied, 111 S. Ct. 384 (1990). In Watkins, we found affirmative misconduct where a soldier was permitted to reinlist in the army, notwithstanding regulations precluding service by homosexuals, after the recruiting officer was informed of Watkins' sexual preference. Id. at 701-04. Loyd made no showing that the city manager and the city personnel director were aware that their representations were in conflict with Section 4-1-2, or that they engaged in affirmative misconduct to induce Loyd to accept the promotion. Loyd has failed to demonstrate that a genuine issue of material fact exists regarding his contention that the doctrine of equitable estoppel applies in this matter.

Loyd argues that he cannot be terminated without a showing of good cause because he was not informed that he would lose protection of the Bullhead City merit system if he accepted the position of chief of police. Loyd relies on Beckwith v. Clark County, 827 F.2d 595 (9th Cir. 1987), for the proposition that due process is not satisfied where a public employee, upon being appointed to another position, loses job security without being advised of this change. Id. at 596-98. Loyd did not present this theory in his opening brief. We decline to consider its application to this matter. See Miller v. Fairchild Industries, Inc., 797 F.2d 727, 738 (9th Cir. 1986) (court generally will not consider matters not specifically and distinctly argued in appellant's opening brief).

Because we conclude that Loyd had only an at-will employment contract, his termination was neither a deprivation of a constitutionally protected interest nor a breach of a contract.

Loyd also contends that the district court erred in concluding that no genuine issue of material fact exists regarding his pendent state claim for wrongful discharge. Loyd contends that Bullhead City committed the tort of wrongful discharge by firing him in violation of Arizona public policy. He argues that under Arizona law an at-will employee cannot be discharged for engaging in conduct that furthers the public good. He asserts that the evidence he presented in opposition to the motion for summary judgment raises a genuine issue of material fact regarding whether he was discharged because he refused to terminate the investigation of alleged corrupt political practices of members of the Bullhead City Council.

In Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710 P.2d 1025 (1985), the Arizona Supreme Court held that an employer commits the tort of wrongful discharge if he or she fires an at-will employee for engaging in conduct protected by public policy. Id. at 1031-33. The court further clarified the parameters of wrongful discharge in Wagner v. Globe, 150 Ariz. 82, 722 P.2d 250, 255-58 (1986). In Wagner, the Arizona Supreme Court described four fact patterns implicating the public policy exception: (1) where an employee refuses to participate in illegal behavior; (2) where an employee is discharged for performing an important public obligation; (3) where an employee is discharged for exercising a legal right or privilege; and (4) where an employee is discharged for exposing wrongdoing on the part of his employer. Id. at 256-57.

The evidence presented by Bullhead City in support of its motion for a summary judgment shows that Loyd was discharged because of his unprofessional and disruptive behavior. In his deposition, Koshmider testified that when he was hired as interim city manager on October 5, 1987, Bullhead City was in turmoil. In a conversation between Koshmider and Loyd that occurred on October 29, 1989, Koshmider told Loyd he was concerned that government officials of Bullhead City hated each other. Koshmider told Loyd he was afraid that a fight might break out or that someone might get shot. A recording of this conversation was introduced in support of the motion for a summary judgment.

Koshmider further testified that he sought the advice of a former Tucson chief of police about investigating into activities of members of the Bullhead City Council. The former chief of police advised him that it was "bad police administration" for a chief of police to fail to turn over an investigation of city council members to an independent agency within twenty-four hours.

The affidavits, records, and deposition testimony offered by Bullhead City reveal that Koshmider and Loyd had several confrontations concerning Loyd's refusal to cooperate with the interim city attorney and Loyd's apparent failure to turn over the investigations to an independent, outside agency. Koshmider testified that he read in the newspaper that Loyd had stated, "I'm going to get that wimp," referring to the interim city attorney. In addition, Koshmider testified that he did not think that Loyd had referred the investigation to another agency, but that whether or not Loyd had done so did not affect his decision to discharge him. Koshmider testified that he fired Loyd because of his unprofessional attitude, his failure to cooperate with the city attorney, and "just a cumulative effect of things building."

Loyd presented the following evidence in opposition to Bullhead City's motion for summary judgment. Richard Malm alleged in his affidavit that the Bullhead City Police Department, at the request of the city attorney, began a series of investigations on June 23, 1987, concerning allegations of political misconduct by certain members of the city council. Loyd submitted the minutes of the Bullhead City Council meeting of September 16, 1987 which reflect that the city manager and the city attorney were suspended. Loyd presented affidavits and depositions showing that the Bullhead City Council selected Koshmider to serve as interim city manager. Loyd also introduced that portion of Koshmider's deposition in which the witness testified that he knew he was supervised directly by the city council.

Koshmider testified that he had been granted a six-month leave of absence from his city government job in Tucson. Bullhead City Councilman White alleged in his affidavit that Koshmider remarked he might want to stay on permanently. When Koshmider was asked during his deposition, "So you did have an open mind about whether you might stay on?" Koshmider answered, "Yes." Acting City Attorney Bob Bula testified during his deposition that it was common knowledge by late October 1987, that the police department was investigating city council members.

Loyd presented affidavits and deposition testimony that showed that Koshmider suggested that he turn the corruption investigation over to an independent agency. The transcript of the conversation recorded on October 29, 1987, reflects that Loyd told Koshmider that he tried to have as little to do with the investigations as he felt was legally permissible. He had only worked on the matter when the Attorney General requested it. He had tried to turn the matter over to the federal government. He was unable to get help from the county sheriff or the county attorney's office.

Lorraine Pendergast alleged in her affidavit that Bullhead City Councilman Jack Day, who was a target of the investigation, was seen in Koshmider's office prior to Loyd's termination. Loyd offered the notes taken by Terry Leberman at Jerry's Restaurant on the evening following Loyd's termination, which quoted Day as stating, "that damn city manager did what had to be done to that goddamn Chief, but none of us gave him the word to do it officially, it was only suggested he do something."

Loyd contends that the record contains sufficient evidence to raise a genuine issue of material fact regarding whether Koshmider discharged him because he refused to stop investigating alleged corrupt conduct of members of the city council. Loyd did not present any evidence in opposition to the motion for summary judgment that directly shows that he was discharged because he refused to stop the investigations. Instead, he has presented a series of historical facts, from which he argues that an inference can be drawn that he was discharged solely because he was investigating alleged corrupt activity of city council members. He asserts that these facts demonstrate a violation of public policy.

The federal standard for defeating a motion for summary judgment requires more than "the mere existence of some alleged factual dispute between the parties.... the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1985) (emphasis in original); see also Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986) (not enough to show some metaphysical doubt as to material facts). " [T]he determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case." Liberty Lobby, 477 U.S. at 255. "The mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252.

Loyd relies on a sequence of discrete events in his attempt to demonstrate that a genuine issue of material fact exists regarding whether he was terminated from his position as chief of police in violation of public policy. Loyd has failed to present any evidence to rebut Koshmider's deposition testimony that the dismissal was based on his assessment of Loyd's unprofessional conduct, as evidenced by Loyd's express refusal to cooperate with the city attorney, his reported threats against a public official, and his apparent refusal to turn over the corruption investigation to an independent agency.

Loyd does not dispute the fact that he engaged in defiant, disrespectful, and confrontational behavior. The uncontradicted evidence shows that Loyd responded to Koshmider's request that he cooperate with the interim city attorney by saying he had "no intention" of cooperating with "that spit for brains." Where the moving party presents uncontested facts in support of its motion for summary judgment, the nonmoving party "must come forward with more persuasive evidence to support [his] claim than would otherwise be necessary." Matsushita, 475 U.S. at 587. The uncontroverted evidence of Loyd's unprofessional behavior and insubordinate conduct supports Bullhead City's factual theory that he was not discharged because he was investigating city council members.

Loyd has failed to present sufficient admissible evidence to satisfy a jury by a preponderance of the evidence that he was discharged by Koshmider at the direction of city council members because he refused to terminate his investigation of civic corruption. In the face of direct evidence by Koshmider that Loyd was not fired because he refused to terminate his investigation of council members, Loyd has relied on evidence that he was fired after being told to transfer the corruption investigation to an outside agency by his superior who in turn worked under the supervision of Bullhead City Council. Loyd argues that this evidence proves that he was fired at the direction of members of the city council because he was investigating them. To reach this conclusion, the jury would be required to speculate that members of the Bullhead City Council directed the interim city manager to fire him. None of the evidence offered by Loyd supports this inference. Summary judgment is required where the evidence is "speculative or ambiguous." Matsushita, 475 U.S. at 595.

Loyd's argument presents a classic example of the logical fallacy known as post hoc, ergo propter hoc, i.e., that a cause-and-effect relationship can be shown from a mere temporal sequence. Proof that Loyd was discharged after initiating an investigation of certain members of Bullhead City Council does not logically support an inference that the job termination was caused by the corruption probe.

The fact that members of the Bullhead City Council knew that they were under investigation does not prove that they directed the city manager to fire Loyd. In fact, there is no evidence in the record that any council member was guilty of any criminal conduct.

The fact that Councilman Day was seen in the City Manager's office before Loyd was terminated does not tend to prove the cause of the discharge. The record is silent as to what, if anything, was said by Councilman Day or Koshmider on this occasion. Loyd asks that we speculate from the absence of proof that the conversation concerned termination of his employment.

Evidence of an extrajudicial declaration that Councilman Day stated that none of the council members asked the city manager to discharge Loyd, but that some unidentified person or persons suggested that something be done for unspecified reasons, does not controvert Koshmider's sworn testimony that Loyd was fired for unprofessional and insubordinate conduct. Finally, it should be noted there is no evidence that Loyd was discharged in order to terminate the corruption investigation. To the contrary, the uncontradicted evidence shows that Koshmider sought to have the investigation transferred to an independent, outside agency such as the Federal Bureau of Investigation or the Arizona Department of Public Safety.

Loyd has not demonstrated that there is a genuine issue of material fact in dispute or that his evidence would persuade a trier of fact by a preponderance of evidence that his employment was terminated in violation of public policy.

Loyd has failed to demonstrate that he presented any evidence following the order granting Bullhead City's motion for summary judgment that would support the granting of a motion for reconsideration. Accordingly, we conclude that the district court did not abuse its discretion in denying Loyd's motion for reconsideration. See Brown v. Wright, 588 F.2d 708, 710 (9th Cir. 1978).

Loyd asserts that the order granting summary judgment denied him his right to a trial by jury to resolve genuine issues of material fact. We have concluded that there are no genuine issues of material fact in this dispute. Therefore, denial of a trial by jury in this matter was not error.

AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3