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Turner v. City of Reno

filed: September 21, 1992.

OTIS NEIL TURNER, JR. PLAINTIFF/APPELLEE/CROSS-APPELLANT
v.
CITY OF RENO DEFENDANT/APPELLANT/CROSS-APPELLEE



Appeal from the United States District Court for the District of Nevada. D.C. No. CV-89-00408-BRT. Bruce R. Thompson, Senior Judge, Presiding.

Before: Schroeder, Norris, and Brunetti, Circuit Judges

MEMORANDUM

OVERVIEW

Otis Neil Turner, Jr., former Fire Chief for the City of Reno, appeals the district court's grant of summary judgment in favor of the City of Reno against his claims that the City lacked cause to discharge him and violated 42 U.S.C. § 1983 and the terms of his contract in the process.*fn1

The City of Reno cross appeals the district court's grant of summary judgment in favor of Turner on his claim that the City Manager lacked authority to terminate him and the district court's award of back pay from the date of the City Manager's purported termination till the date of the City Council's effective termination.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

ANALYSIS

I. Standard of Review

We review grants of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989).

II. Complaints Regarding Hearing Process

Turner alleges three complaints regarding the hearing process utilized by the City of Reno.

A. 1988 Sexual Harassment Policy Procedures

Turner claims the City breached his employment contract by applying the 1988 sexual harassment policy procedures, rather than the 1982 sexual harassment policy procedures. Because the 1988 policy was promulgated by the City Manager, rather than the City Council, and because the 1988 policy procedures materially deviated from the 1982 policy procedures, Turner was "robbed . . . of the opportunity for the non-adversarial and impartial proceedings contemplated by Reno's 1982 procedure." Turner specifically complains of not being provided promptly with a copy of the sexual harassment complaint; not being allowed to prepare his own written statement; not being afforded an informal non-adversarial fact finding process; failure to use a three member panel for the fact finding; failure to allow him to challenge the choice of the fact finder; the participation of two City attorneys in the fact finding hearing; and the use of a peer review committee.

Regardless of the sexual harassment policy in place at the time in question, we find that Turner was not injured by the use of the 1988 policy. The application of either sexual harassment policy was only of borderline importance to the whole termination procedure. Only one of the six charges brought against Turner implicated the sexual harassment policy procedures, and that charge proved to be the least crucial to the termination determination.

Moreover, the application of the 1988 policy provided Turner with more procedural safeguards than the 1982 policy would have provided. For example, the 1988 policy gave Turner the right to have an attorney present at all times. Nowhere does Turner show how the use of the 1982 policy would have altered the outcome of the termination determination. He complains of not promptly receiving the complaint; the record shows, however, that he received the complaint three days after he was notified of the charges. The additional peer review committee and adversarial fact-finding hearing (in which he was represented by an attorney and was allowed to provide witnesses and cross-examine the City's witnesses) added to, not detracted from, his rights. The remaining complaints are equally frivolous. Turner does not justify his complaint with the presence of the City's attorneys at the fact-finding hearing. Nor does he ...


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