The opinion of the court was delivered by: James H. Jarvis United States District Judge
This is a civil action brought pursuant to 42 U.S.C. § 1983 wherein plaintiff claims that he was deprived of a property interest without due process of law when he was fired from his job as building inspector/codes administrator for the City of Winchester. Plaintiff also claims that the City fired him in retaliation for his exercise of his First Amendment rights. Currently pending is defendant's motion for summary judgment [Court File #20]. For the reasons that follow, the motion will be granted.
The following factual allegations are considered in the light most favorable to the plaintiff.
Plaintiff Thomas Cohenour was employed as the building inspector for the City of Winchester for approximately 12 years. Sometime in the year 2002, Winchester city officials learned of allegations that Cohenour had improperly used his position to acquire a piece of commercial property in 1999. In the fall of 2002, Sonny Elliott, an electrical contractor in Winchester, complained to the City that Cohenour had put the contractor's name and his state electrical license number on a permit intended for improvements to the City Hall Annex building. Previously, Mr. Elliott had specifically denied Mr. Cohenour the right to use his license for the improvements.
When the two matters mentioned above came to the attention of the City of Winchester officials, the matters were referred to the Tennessee Bureau of Investigation, which led to the filing of two criminal indictments against him. By letter dated March 3, 2003, Beth Rhoton, the City Administrator, placed Mr. Cohenour on immediate suspension without pay pending a hearing prior to terminating his employment with the City. Ms. Rhoton sent Mr. Cohenour a suspension letter which stated in part the following:
This letter is to formally advise you that effective immediately you are placed on suspension without pay. Recently, the City received information from a third (3rd) party source, which was followed up by an investigation, that has resulted in possible criminal charges against you as a result of your actions while an employee of the City of Winchester. These are in direct violation of Section 6D-4 of the Personnel Rules and Regulations for the City of Winchester.
Pursuant to Personnel Policies you have the right to demand a hearing before the entire council. This request for hearing must be made within fourteen (14) days of the date of this letter. You have the right to have an attorney present at that hearing, the right to introduce proof, and the right to have a written decision of the determination made by the City Council.
See Ex. 1 to Supplemental Affidavit of Beth Rhoton
Plaintiff, through his attorney, waived the pre-termination hearing. Further, plaintiff's attorney and the City's attorney agreed that any post-termination hearing would be held in abeyance until resolution of all criminal matters. The first case, No. 15085, apparently involved the misuse of the contractor's name on the permit, and the state court, sitting without a jury, found the plaintiff not guilty on January 21, 2004. The second case, No. 15086, apparently involved the acquisition of the commercial property in 1999 and was dismissed on July 6, 2004. This case was filed on March 15, 2004. Prior to being given a hearing before an administrative law judge (ALJ), Cohenour was furnished in this case with responses to written discovery which included the City of Winchester Police Department's investigative file, which Ms. Rhoton had reviewed. That file included information about both the alleged misuse of the contractor's license and the alleged improper use of his position to acquire the commercial property in 1999. A hearing was held before ALJ Charles Sullivan on October 27, 2004, with regard to whether there were sufficient grounds for terminating Mr. Cohenour. During the hearing, Cohenour was represented by an attorney, was allowed to present evidence, and, through his attorney, presented and cross-examined witnesses.
The administrative law judge did not deliver his opinion until May 22, 2006. At that time, the ALJ concluded that the City had properly followed its procedures found in its employee handbook, and that Mr. Cohenour's effectiveness and reputation as a codes inspector had been severely impaired by his dishonest acts and that such circumstances were sufficient for termination of his employment for the good of the City of Winchester. Accordingly, his dismissal was upheld. In his written findings of fact, the administrative law judge considered both the incident involving Sonny Elliott, the electrical contractor, in 2002, and the incident involving the acquisition of the commercial property in 1999.
Defendant has submitted the affidavit of ALJ Sullivan. In that affidavit the ALJ stated in part the following: . . .
5. During the hearing, Cohenour did not claim that City Administrator Beth Rhoton's (Rhoton's) decision to terminate him was in retaliation for his exercise of any First Amendment right. No evidence related to a First Amendment retaliation claim was presented to me. I was unaware of Cohenour's claim of retaliation, and my decision was not related to Cohenour's exercise of any First Amendment right. My reasons for upholding Rhoton's ...