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Brown v. Nero

United States District Court, W.D. Texas, Austin Division

March 31, 2017

STEPHANIE BROWN, Plaintiff,
v.
WAYNE NERO and THE CITY OF GEORGETOWN, Defendants.

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before the Court are Plaintiff's Motion for Partial Summary Judgment, (Dkt. 36); Defendants' Response, (Dkts. 39 & 43); Plaintiff's Reply, (Dkt. 46); and Defendants' Sur-repy, (Dkt. 48). For the following reasons, the Court grants Plaintiff's motion in part and denies it in part.

         I. Background

         Plaintiff Stephanie Brown (“Brown”) filed this action on October 28, 2015, naming as defendants the City of Georgetown (“the City”) and Georgetown's police chief, Wayne Nero (“Chief Nero”). Brown was previously a police officer with the Georgetown Police Department (“the Department”). In 2012, she ended a romantic relationship with another police officer, Eric Poteet. Following the breakup, Poteet filed a complaint with the Georgetown Police Department, alleging that Brown had been taking his prescription pain medications and had ingested mescaline, a controlled substance. In January 2013, the Department investigated these allegations. Following the investigation, Chief Nero determined that Brown had taken Poteet's prescription drugs, ingested mescaline, and had been untruthful when questioned about her use of drugs. On June 11, 2013, Chief Nero indefinitely suspended Brown, effectively terminating her employment.

         Because it was considered a “disciplinary” action, Brown had the right to appeal her suspension to an independent hearing examiner under the Texas Fire Fighters' and Police Officers' Civil Services Act (“the Civil Services Act”). See Tex. Loc. Gov't Code §§ 143.053, 143.057. Brown invoked her right to appeal and a hearing was held, which Chief Nero attended. After the hearing but prior to the issuance of the hearing examiner's decision, Chief Nero initiated a meeting with the Williamson County Attorney and the Williamson County District Attorney and informed them of Brown's alleged misconduct. In response, the two prosecutors issued a joint “no-confidence” letter to Chief Nero on October 31, 2013, informing him that their offices would no longer accept cases in which Brown was involved as they believed her past untruthfulness undermined her ability to testify as a witness.

         On November 1, 2013, the hearing examiner issued his decision. He determined that Brown had used pain medications prescribed for Poteet. However, he also determined that Brown had her own prescription for the medication and did not use the medication for recreational purposes. The hearing examiner also determined that the City had failed to meet its burden of proof with respect to the charge that Brown had taken mescaline and the charge that she had been untruthful during the investigation. The hearing examiner reduced Brown's suspension to fifteen days and ordered her reinstated with back pay and benefits.

         On November 7, 2013, the City reinstated Brown. However, the next day, the City again terminated Brown. In a letter informing Brown of her termination, Chief Nero stated that, in light of the no-confidence letter sent by the county and district attorneys, Brown was unable to testify in court and therefore could not perform an essential job function. Chief Nero also informed Brown that because her termination was “non-disciplinary, ” she did not have a right to appeal under the Civil Services Act. Brown nonetheless attempted to appeal her termination to the City's Civil Service Commission. Her appeal was denied because her termination was not for disciplinary reasons but rather because she could not perform an essential job function.

         Brown then filed a lawsuit in state court, seeking a declaratory judgment stating that her termination was a disciplinary suspension triggering a right to appeal under the Civil Services Act. The state district court granted the defendants' plea to the jurisdiction, holding that it lacked jurisdiction because the Civil Services Act does not allow an officer to appeal a non-disciplinary termination. Brown appealed. The court of appeals reversed, holding that Brown's termination was a disciplinary suspension, and remanded the case so that Brown could pursue an administrative appeal. Brown v. Nero, 477 S.W.3d 448, 452 (Tex. App. 2015), review denied (Jan. 8, 2016). The parties then settled the state court action. As part of the settlement, Brown has been reinstated and provided full back pay.[1]

         In this federal action, Brown asserts causes of action, under 42 U.S.C. § 1983, for violations of her Fourteenth Amendment rights to procedural and substantive due process and a cause of action under state law for defamation. The Court previously dismissed her defamation claim. Brown now moves for summary judgment on her procedural and substantive due process claims.

         II. Summary Judgment Standard

         Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only “if the movant shows there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).

         The party moving for summary judgment bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party bears the burden of persuasion at trial, it must also “support its motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at trial.” Id. at 331.

         Once the movant carries its initial burden, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The non-movant must respond to the motion by presenting evidence indicating there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The Court views the summary judgment evidence in the light most favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). “After the non-movant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment will be granted.” Westphal, 230 F.3d at 174.

         III. Discussion

         Brown moves for partial summary judgment on the issue of whether the City is liable for violating her Fourteenth Amendment rights to procedural and substantive due process. The Court first addresses whether Brown's procedural due process rights were violated. The Court then addresses whether her substantive due process rights were violated. Finally, the Court inquires whether, assuming her due process rights were violated, Brown has demonstrated that the violation was caused by an official policy ...


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