United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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.
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.
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.
Summary Judgment Standard
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).
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.
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.
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 ...