     Case: 14-30780      Document: 00512857794         Page: 1    Date Filed: 12/04/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                 FILED
                                    No. 14-30780                            December 4, 2014
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
CARRY AMOS,

                                                 Plaintiff-Appellant
v.

CITY OF MONROE,

                                                 Defendant-Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:13-CV-911


Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Carry Amos, a long-time employee in the Trash
Division of Defendant-Appellee City of Monroe (the “City”), brought suit in the
district court after the City failed to promote him from Operator II to Trash
Superintendent. Amos asserted claims for breach of contract and violation of
his constitutional right to substantive due process. Following cross motions
for summary judgment filed by the parties, the district court denied Amos’s
motion and granted the City’s motion in part by dismissing Amos’s action with


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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prejudice, but the court denied the part of the City’s summary judgment motion
that sought attorneys fees.     We affirm for essentially the same reasons
patiently and logically set forth in the court’s Ruling of May 21, 2014.

      As emphasized by the district court, this is not an employment
discrimination case. Rather, it is a straightforward breach of contract action
arising under the Collective Bargaining Agreement (“CBA”) between the City
and Local 2388 of the American Federation of State, County, and Municipal
Workers (the “Union”) of which Amos was a member at all relevant times.

      After the City noticed a job opening for the position of Trash
Superintendent, which specified, inter alia, that current employees of the City
would be given ten working days to fill the position before it would be opened
to the public, Amos and one other City employee, Tommy Landers, applied for
the position. At that time, Amos had been an employee of the City for twelve
years and Landers for two years. The City’s Sanitation Superintendent, Don
Hopkins, eventually selected Landers for the position.         Amos proceeded
through all steps of the CBA’s specified grievance procedure without success,
then brought this action.

      The parties filed competing motions for summary judgment on the same
day in February 2014. Amos asserted in his motion that, as a matter of law,
he was qualified for the position and had worked for the City continuously for
much longer than had Landers, so the City violated the CBA in promoting
Landers over Amos and was arbitrary and capricious in so doing. The City’s
motion pleaded that, as a matter of law, (1) it did not breach the CBA in failing
to promote Amos, (2) Amos had failed to state a substantive due process claim,
and (3) the City is entitled to attorneys fees under 42 U.S.C. §1988(b).
Following various filings by the parties in March and April of 2014, the court


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                                 No. 14-30780
ruled as earlier stated. Amos appeals the dismissal of his suit with prejudice
and the City appeals the denial of attorneys fees.

                                        I.

                          BREACH OF CONTRACT

      The record on appeal reflects Amos’s lengthy history of warnings and
reprimands for excessive absenteeism—79 days in 2006, 85 days in 2007 and
41 days in 2010—as well as disciplinary actions for failure to follow job
instructions and disputes regarding whether he was required to work
overtime. In the end, the City’s mayor suspended Amos for a week without
pay instead of firing him as recommended. It is within the framework of
Amos’s job history that he was not chosen for the position of Trash
Superintendent.

      The district court properly applied Louisiana contract law in deciding
the competing claims of the parties rather than deciding the case under the
Labor Management Relations Act (“LMRA”) as urged by Amos. The court
noted that the LMRA exempts states and their political subdivisions, such as
the City, from the reach of that Act.

      Turning to the CBA, the Court’s analysis focused on provisions that
entitle the City (1) to “hire, promote, classify” any employee “without
negotiations” and (2) to “fill the opening by promoting from among the qualified
applicants the employee with the longest continuous service.” None contests
that Amos’s continuous service was much longer than Landers’s, so the court’s
rejection of Amos’s claim for breach of the CBA turns on the term “qualified
applicants.” As carefully and correctly analyzed by the district court, the
implicit determination by the City’s Sanitation Superintendent that Amos was


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                                 No. 14-30780
not a “qualified” applicant for the position of Trash Superintendent survives
Amos’s arguments and carries the day.

      We agree with the court that the City was “not restricted to the
‘Minimum Qualifications’ and ‘Examples of Duties’ [described in the job
opening notice] when determining whether an applicant is qualified.” We also
agree that the list entitled “Examples of Duties” is not an exclusive list of all
duties, just as the list of “Minimum Qualifications” is not an exclusive list of
qualifications for the job. Hopkins was well within his authority to consider
“Amos’ initiative, leadership qualities, work history, disciplinary record,
absenteeism, a perceived failure to ‘step-up’ and statements concerning
working alone as well as those on the non-exclusive list.” And, Hopkins acted
well within his discretion in concluding that Amos was not qualified for the job
at issue, rendering the length of his service irrelevant. As the court stated:
“Thus, Article VII’s seniority provision was not applicable, and the City did not
breach the CBA.”

                                       II.

                       SUBSTANTIVE DUE PROCESS

      The failure of Amos’s breach of contract claim and his concomitant
failure to show that the City was arbitrary and capricious in that regard
eliminates any possibility of success on his substantive due process claim. The
court correctly rejected Amos’s constitutional claim.




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                                       III.

                              ATTORNEYS FEES

      The district court did not abuse its discretion in determining that Amos’s
action was not frivolous. It therefore did not err in denying the City’s claim for
attorneys fees under 42 U.S.C. §1988(b).

      Accordingly, the May 21, 2014 Judgment of the district court dismissing
Amos’s lawsuit with prejudice and denying attorneys fees to the City is, in all
respects,

AFFIRMED.




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