BISHOP v. WOOD

MR. JUSTICE STEVENS delivered the opinion of the Court.

Acting on the recommendation of the Chief of Police, the City Manager of Marion, N. C., terminated petitioner's employment as a policeman without affording him a hearing to determine the sufficiency of the cause for his discharge. Petitioner brought suit contending that since a city ordinance classified him as a "permanent employee," he had a constitutional right to a pretermination hearing.1 During pretrial discovery petitioner was advised that his dismissal was based on a failure to follow certain orders, poor attendance at police training classes, causing low morale, and conduct unsuited to an officer. Petitioner and several other police officers filed affidavits essentially denying the truth of these charges. The District Court granted defendants' motion for summary judgment.2 The Court of Appeals affirmed,3 and we granted certiorari, 423 U.S. 890.

The questions for us to decide are (1) whether petitioner's employment status was a property interest protected by the Due Process Clause of the Fourteenth Amendment,4 and (2) assuming that the explanation for his discharge was false, whether that false explanation deprived him of an interest in liberty protected by that Clause.

I

Petitioner was employed by the city of Marion as a probationary policeman on June 9, 1969. After six months he became a permanent employee. He was dismissed on March 31, 1972. He claims that he had either an express or an implied right to continued employment.

A city ordinance provides that a permanent employee may be discharged if he fails to perform work up to the standard of his classification, or if he is negligent, inefficient, or unfit to perform his duties.5 Petitioner first contends that even though the ordinance does not expressly so provide, it should be read to prohibit discharge for any other reason, and therefore to confer tenure on all permanent employees. In addition, he contends that his period of service, together with his "permanent" classification, gave him a sufficient expectancy of continued employment to constitute a protected property interest.

A property interest in employment can, of course, be created by ordinance, or by an implied contract.6 In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law.7 The North Carolina Supreme Court has held that an enforceable expectation of continued public employment in that State can exist only if the employer, by statute or contract, has actually granted some form of guarantee. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971). Whether such a guarantee has been given can be determined only by an examination of the particular statute or ordinance in question.

On its face the ordinance on which petitioner relies may fairly be read as conferring such a guarantee. However, such a reading is not the only possible interpretation; the ordinance may also be construed as granting no right to continued employment but merely conditioning an employee's removal on compliance with certain specified procedures.8 We do not have any authoritative interpretation of this ordinance by a North Carolina state court. We do, however, have the opinion of the United States District Judge who, of course, sits in North Carolina and practiced law there for many years. Based on his understanding of state law, he concluded that petitioner "held his position at the will and pleasure of the city."9 This construction of North Carolina law was upheld by the Court of Appeals for the Fourth Circuit, albeit by an equally divided court. In comparable circumstances, this Court has accepted the interpretation of state law in which the District Court and the Court of Appeals have concurred even if an examination of the state-law issue without such guidance might have justified a different conclusion.10

In this case, as the District Court construed the ordinance, the City Manager's determination of the adequacy of the grounds for discharge is not subject to judicial review; the employee is merely given certain procedural rights which the District Court found not to have been violated in this case. The District Court's reading of the ordinance is tenable; it derives some support from a decision of the North Carolina Supreme Court, Still v. Lance, supra; and it was accepted by the Court of Appeals for the Fourth Circuit. These reasons are sufficient to foreclose our independent examination of the state-law issue.

Under that view of the law, petitioner's discharge did not deprive him of a property interest protected by the Fourteenth Amendment.

II

Petitioner's claim that he has been deprived of liberty has two components. He contends that the reasons given for his discharge are so serious as to constitute a stigma that may severely damage his reputation in the community; in addition, he claims that those reasons were false.

In our appraisal of petitioner's claim we must accept his version of the facts since the District Court granted summary judgment against him.11 His evidence established that he was a competent police officer; that he was respected by his peers; that he made more arrests than any other officer on the force; that although he had been criticized for engaging in high-speed pursuits, he had promptly heeded such criticism; and that he had a reasonable explanation for his imperfect attendance at police training sessions. We must therefore assume that his discharge was a mistake and based on incorrect information.

In Board of Regents v. Roth, 408 U.S. 564, we recognized that the nonretention of an untenured college teacher might make him somewhat less attractive to other employers, but nevertheless concluded that it would stretch the concept too far "to suggest that a person is deprived of `liberty' when he simply is not rehired in one job but remains as free as before to seek another." Id., at 575. This same conclusion applies to the discharge of a public employee whose position is terminable at the will of the employer when there is no public disclosure of the reasons for the discharge.

In this case the asserted reasons for the City Manager's decision were communicated orally to the petitioner in private and also were stated in writing in answer to interrogatories after this litigation commenced. Since the former communication was not made public, it cannot properly form the basis for a claim that petitioner's interest in his "good name, reputation, honor, or integrity"12 was thereby impaired. And since the latter communication was made in the course of a judicial proceeding which did not commence until after petitioner had suffered the injury for which he seeks redress, it surely cannot provide retroactive support for his claim. A contrary evaluation of either explanation would penalize forthright and truthful communication between employer and employee in the former instance, and between litigants in the latter.

Petitioner argues,however,that the reasons given for his discharge were false. Even so, the reasons stated to him in private had no different impact on his reputation than if they had been true. And the answers to his interrogatories, whether true or false, did not cause the discharge. The truth or falsity of the City Manager's statement determines whether or not his decision to discharge the petitioner was correct or prudent, but neither enhances nor diminishes petitioner's claim that his constitutionally protected interest in liberty has been impaired.13 A contrary evaluation of his contention would enable every discharged employee to assert a constitutional claim merely by alleging that his former supervisor made a mistake.

The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies.14 We must accept the harsh fact that numerous individual mistakes are inevitable in the day-to-day administration of our affairs. The United States Constitution cannot feasibly be construed to require federal judicial review for every such error. In the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee's constitutionally protected rights, we must presume that official action was regular and, if erroneous, can best be corrected in other ways. The Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions.

The judgment is affirmed.

So ordered.

MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs, dissenting.

Petitioner was discharged as a policeman on the grounds of insubordination, "causing low morale," and "conduct unsuited to an officer." Ante, at 343. It is difficult to imagine a greater "badge of infamy" that could be imposed on one following petitioner's calling; in a profession in which prospective employees are invariably investigated, petitioner's job prospects will be severely constricted by the governmental action in this case. Although our case law would appear to require that petitioner thus be accorded an opportunity "to clear his name" of this calumny, see e. g., Board of Regents v. Roth, 408 U.S. 564, 573, and n. 12 (1972); Arnett v. Kennedy, 416 U.S. 134, 157 (1974) (opinion of REHNQUIST, J.), the Court condones this governmental action and holds that petitioner was deprived of no liberty interest thereby.

Paul v. Davis, 424 U.S. 693 (1976), a decision overtly hostile to the basic constitutional safeguards of the Due Process Clauses of the Fifth and Fourteenth Amendments that I had hoped would be a "short-lived aberration," id., at 735 (BRENNAN, J., dissenting), held that the "interest in reputation asserted in [Paul] is neither `liberty' nor `property' guaranteed against state deprivation without due process of law." Id., at 712. Accordingly, it found inapplicable the rule that "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971), and cases cited therein. In so holding, the Court eviscerated the substance of a long line of prior cases, see, e. g., Anti-Fascist Comm. v. McGrath, 341 U.S. 123 (1951); Cafeteria Workers v. McElroy, 367 U.S. 886 (1961); Board of Regents v. Roth, supra, by confining their protection of "liberty" to situations in which the State inflicts damage to a government employee's "good name, reputation, honor,or integrity" in the process of terminating his employment. See Paul v. Davis, supra, at 708. Compare id., at 709, 710, with id., at 732-733 (BRENNAN, J., dissenting).1 Today the Court effectively destroys even that last vestige of protection for "liberty" by holding that a State may tell an employee that he is being fired for some nonderogatory reason, and then turn around and inform prospective employers that the employee was in fact discharged for a stigmatizing reason that will effectively preclude future employment.

The Court purports to limit its holding to situations in which there is "no public disclosure of the reasons for the discharge," ante, at 348, but in this case the stigmatizing reasons have been disclosed, and there is no reason to believe that respondents will not convey these actual reasons to petitioner's prospective employers.2 The Court responds by asserting that since the stigma was imposed "after petitioner had suffered the injury for which he seeks redress, it surely cannot provide retroactive support for his claim." Ibid. But the "claim" does not arise until the State has officially branded petitioner in some way, and the purpose of the due process hearing is to accord him an opportunity to clear his name; merely because the derogatory information is filed in respondents' records and no "publication" occurs until shortly after his discharge from employment does not subvert the fact that a postdeprivation hearing to accord petitioner an opportunity to clear his name has been contemplated by our cases.3 Even under Paul v. Davis, respondents should be required to accord petitioner a due process hearing in which he can attempt to vindicate his name; this further expansion of those personal interests that the Court simply writes out of the "life, liberty, or property" Clauses of the Fifth and Fourteenth Amendments is simply another curtailment of precious constitutional safeguards that marks too many recent decisions of the Court.

I also fully concur in the dissenting opinions of MR. JUSTICE WHITE and MR. JUSTICE BLACKMUN, which forcefully demonstrate the Court's error in holding that petitioner was not deprived of "property" without due process of law. I would only add that the strained reading of the local ordinance, which the Court deems to be "tenable," ante, at 347, cannot be dispositive of the existence vel non of petitioner's "property" interest. There is certainly a federal dimension to the definition of "property" in the Federal Constitution; cases such as Board of Regents v. Roth, supra, held merely that "property" interests encompass those to which a person has "a legitimate claim of entitlement," 408 U. S., at 577, and can arise from "existing rules or understandings" that derive from "an independent source such as state law." Ibid. (emphasis supplied). But certainly, at least before a state law is definitively construed as not securing a "property" interest, the relevant inquiry is whether it was objectively reasonable for the employee to believe he could rely on continued employment. Cf. ibid. ("It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined."4) At a minimum, this would require in this case an analysis of the common practices utilized and the expectations generated by respondents, and the manner in which the local ordinance would reasonably be read by respondents' employees.5 These disputed issues of fact are not meet for resolution, as they were on summary judgment, and would thus at a minimum require a remand for further factual development in the District Court.

These observations do not, of course, suggest that a "federal court is . . . the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies." Ante, at 349. However, the federal courts are the appropriate forum for ensuring that the constitutional mandates of due process are followed by those agencies of government making personnel decisions that pervasively influence the lives of those affected thereby; the fundamental premise of the Due Process Clause is that those procedural safeguards will help the government avoid the "harsh fact" of "incorrect or ill-advised personnel decisions." Ante, at 350. Petitioner seeks no more than that, and I believe that his "property" interest in continued employment and his "liberty" interest in his good name and reputation dictate that he be accorded procedural safeguards before those interests are deprived by arbitrary or capricious government action.

MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN join, dissenting.

I dissent because the decision of the majority rests upon a proposition which was squarely addressed and in my view correctly rejected by six Members of this Court in Arnett v. Kennedy, 416 U.S. 134 (1974).

Petitioner Bishop was a permanent employee of the Police Department of the city of Marion, N. C. The city ordinance applicable to him provides:

The second sentence of this ordinance plainly conditions petitioner's dismissal on cause—i. e., failure to perform up to standard, negligence, inefficiency, or unfitness to perform the job. The District Court below did not otherwise construe this portion of the ordinance. In the only part of its opinion rejecting petitioner's claim that the ordinance gave him a property interest in his job, the District Court said, in an opinion predating this Court's decision in Arnett v. Kennedy, supra:

Thus in concluding that petitioner had no "property interest" in his job entitling him to a hearing on discharge and that he held his position "at the will and pleasure of the city," ibid., the District Court relied on the fact that the ordinance described its own procedures for determining cause, which procedures did not include a hearing. The majority purports, ante, at 345, and n. 8, to read the District Court's opinion as construing the ordinance not to condition dismissal on cause, and, if this is what the majority means, its reading of the District Court's opinion is clearly erroneous for the reasons just stated.1 However, later in its opinion the majority appears to eschew this construction of the District Court's opinion and of the ordinance. In the concluding paragraph of its discussion of petitioner's property interest, the majority holds that since neither the ordinance nor state law provides for a hearing, or any kind of review of the City Manager's dismissal decision, petitioner had no enforceable property interest in his job. The majority concludes:

The majority thus implicitly concedes that the ordinance supplies the "grounds" for discharge and that the City Manager must determine them to be "adequate" before he may fire an employee. The majority's holding that petitioner had no property interest in his job in spite of the unequivocal language in the city ordinance that he may be dismissed only for certain kinds of cause rests, then, on the fact that state law provides no procedures for assuring that the City Manager dismiss him only for cause. The right to his job apparently given by the first two sentences of the ordinance is thus redefined, according to the majority, by the procedures provided for in the third sentence and as redefined is infringed only if the procedures are not followed.

This is precisely the reasoning which was embraced by only three and expressly rejected by six Members of this Court in Arnett v. Kennedy, supra. There a federal employee had "a statutory expectancy that he not be removed other than for `such cause as will promote the efficiency of [the] service.' " 416 U. S., at 151-152 (opinion of REHNQUIST, J., joined by BURGER, C. J., and STEWART, J.). The three Justices whose views were rejected by a majority of the Court went on to say:

The three Justices went on:

Accordingly they concluded that the Constitution imposed no independent procedural requirements.

This view was rejected by MR. JUSTICE POWELL in an opinion joined by MR. JUSTICE BLACKMUN.

I, too, disagreed with the view stated in MR. JUSTICE REHNQUIST'S opinion:

The view was also rejected by MR. JUSTICE MARSHALL in an opinion joined by MR. JUSTICE BRENNAN and Mr. Justice Douglas in which it was correctly observed:

The views now expressed by the majority are thus squarely contrary to the views expressed by a majority of the Justices in Arnett. As MR. JUSTICE POWELL suggested in Arnett, they are also "incompatible with the principles laid down in Roth and Sindermann."2 Id., at 166. I would not so soon depart from these cases nor from the views expressed by a majority in Arnett. The ordinance plainly grants petitioner a right to his job unless there is cause to fire him. Having granted him such a right it is the Federal Constitution,3 not state law, which determines the process to be applied in connection with any state decision to deprive him of it.

MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins, dissenting.

I join MR. JUSTICE WHITE'S dissent for I agree that the Court appears to be adopting a legal principle which specifically was rejected by a majority of the Justices of this Court in Arnett v. Kennedy, 416 U.S. 134 (1974).

I also feel, however, that Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971), the only North Carolina case cited by the Court and by the District Court, is by no means the authoritative holding on state law that the Court, ante, at 345, and n. 9, seems to think it is. In Still the Supreme Court of North Carolina considered a statute that contained no "for cause" standard for failure to renew a teacher's contract at the end of a school year. In holding that this provision did not create a continued expectation of employment, the North Carolina court noted that it "does not limit the right of the employer board to terminate the employment of a teacher at the end of a school year to a specified cause or circumstance." 279 N. C., at 260, 182 S. E. 2d, at 407. This provision, the court observed, stood in sharp contrast with another provision of the statute relating to termination of employment during the school year and prescribing that when "it shall have been determined that the services of an employee are not acceptable for the remainder of the current school year" (emphasis added), ibid., notice and hearing were required.

The Marion ordinance in the present case contains a "for cause" standard for dismissal and, it seems to me, is like that portion of the statute construed in Still pertaining to termination of employment during the year. As such, it plainly does not subject an employee to termination at the will and pleasure of the municipality, but, instead, creates a proper expectation of continued employment so long as he performs his work satisfactorily. At this point, the Federal Constitution steps in and requires that appropriate procedures be followed before the employee may be deprived of his property interest.