                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2284
                                    ___________

Lee Ann Bennett,                        *
                                        *
       Plaintiff - Appellant,           *
                                        *
       v.                               * Appeal from the United States
                                        * District Court for the
C. R. Watters, individually and in      * Eastern District of Arkansas.
his official capacity; City of          *
Benton, Arkansas,                       *
                                        *
       Defendants - Appellees.          *
                                   ___________

                              Submitted: February 12, 2001

                                   Filed: August 14, 2001
                                    ___________

Before LOKEN, HEANEY, and BYE, Circuit Judges.
                           ___________

LOKEN, Circuit Judge.

       In this action, Lee Ann Bennett challenges her May 1999 termination as the
records and fines clerk for the police department in Benton, Arkansas. The district
court1 granted summary judgment to the defendants, Chief of Police C.R. Watters and
the City. Bennett appeals, arguing that the court erred in dismissing her procedural due


      1
       The HONORABLE GARNETT THOMAS EISELE, United States District
Judge for the Eastern District of Arkansas.
process claim and her claim of age discrimination in violation of the Age Discrimination
in Employment Act, 29 U.S.C. § 623(a)(1). We affirm.

      On April 28, 1999, Bennett visited her physician, who advised that she take two
weeks off from work due to a bladder infection, depression, and work-related anxiety.
The doctor gave Bennett a note saying she should not work for two weeks “for medical
reasons.” Bennett sent the note to Chief Watters, consistent with Department policy.
Watters approved her sick leave until May 7.

        The following day, Bennett’s immediate supervisor, Cissy Brown, called and
told Bennett that an appointment had been scheduled for her with the Department’s
physician on April 30. After consulting her attorney, Bennett did not keep that
appointment. She then received a phone message from Watters and did not return the
call. Brown then called again and advised Bennett of another appointment with the
Department’s physician on May 4. She did not keep that appointment. On May 6,
Watters sent Bennett a letter stating that her employment was terminated effective May
7 because she had missed one-half of her scheduled work days in 1999 due to illness,
failed to attend two scheduled appointments with the Department’s physician, violated
a direct order to attend those appointments, and failed “to be reasonably accessible to
communicate” with her superiors. This lawsuit followed.

                             I. The Due Process Claim.

       Bennett argues that her abrupt termination without prior notice or an opportunity
to be heard violated her Fourteenth Amendment right to procedural due process. This
federal constitutional claim depends upon Bennett having a property interest in
continued employment under state law. See Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 538 (1985). A property interest arises from a “legitimate claim of
entitlement” to continuing employment. Board of Regents v. Roth, 408 U.S. 564, 577
(1972). A public employee has a property interest when there are “contractual or

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statutory limitations on the employer’s ability to terminate an employee,” such as a
contractual right to be terminated only for cause. Winegar v. Des Moines Indep. Cmty.
Sch. Dist., 20 F.3d 895, 899 (8th Cir. 1994).

       As a “civilian” employee of the Benton Police Department, Bennett was not part
of the civil service system applicable to uniformed police officers. See ARK. CODE
ANN. § 14-51-308. For its non-civil service employees, the City is an at-will employer.
Under Arkansas law, an at-will employee may be terminated at any time, with or
without cause, but the Supreme Court of Arkansas has recognized exceptions to the at-
will doctrine. Whether Bennett had a property interest protected by due process turns
on whether one of those exceptions applies. See Johnson v. City of W. Memphis, 113
F.3d 842, 843-44 (8th Cir. 1997).2 Bennett argues that two of those exceptions apply
to create the necessary property interest.

       A. The Employee Policy Manual Exception. Many employers distribute
employee handbooks or policy manuals that may contain provisions regarding
employee discipline and termination. In recent years, the Supreme Court of Arkansas
has considered when such a policy manual will be held to modify the employment at-
will relationship. “[W]here an employee relies upon a personnel manual that contains
an express provision against termination except for cause he may not be arbitrarily

      2
        Prior Eighth Circuit cases held that Arkansas public employees lacking fixed-
term contracts have no property interest in continued employment “even if there is a
provision in the employment contract that an employee will not be discharged except
for good cause.” Stow v. Cochran, 819 F.2d 864, 868 (8th Cir. 1987) (emphasis in
original), quoting Drake v. Scott, 812 F.2d 395, 400 (8th Cir. 1987). However, these
cases did not take into account the contemporaneous decision in Gladden v. Arkansas
Children’s Hospital, 728 S.W.2d 501, 505 (Ark. 1987), which clarified that there are
exceptions to the Arkansas employment at-will doctrine. After Gladden, we believe
that Johnson v. City of West Memphis properly framed this issue under Arkansas law --
a public employee has a property interest if he or she may only be terminated for cause.
See Robinson v. Langdon, 970 S.W.2d 292, 297 (Ark. 1998).

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discharged in violation of such a provision.” Gladden, 728 S.W.2d at 505(emphasis
in original), followed in Robinson, 970 S.W.2d at 297; Crain Indus., Inc. v. Cass, 810
S.W.2d 910, 913 (Ark. 1991); and Smith v. American Greetings Corp., 804 S.W.2d
683, 685-86 (1991). Bennett argues that section 42 of the Benton Police Department
Policy and Procedures Manual (the “Policy Manual”) is such a provision.

        In this regard, section 42 is not a model of clarity. Its ambiguity may be the
result of bad drafting, or it may reflect the complexity of writing a policy manual that
applies to both civil service and non-civil service employees. Section 42 is entitled
Disciplinary Procedure. It begins with a general statement of policy -- “if possible,”
the Department will “use progressive disciplinary action to bring about change” instead
of terminating a productive employee when behavior or performance problems occur.
Part I, entitled “Procedures,” then declares:

      A.     When discipline is deemed appropriate, this agency will use
             a progressive system, when practicable.
      B.     Furthermore, discipline shall be for cause and shall follow
             the basic concepts of due process.
                                 * * * * *
      D.     Supervisors must ensure that fair enforcement decisions are
             made in the use of disciplinary or termination action. Fair
             enforcement incorporates the concepts of equality and
             equity. . . . Whatever the administrative action, its amount
             and degree must be based on equity.

“Equity” is defined in Part II and repeats Parts I.A. and I.B., which refer to progressive
discipline, discipline for cause, and due process. The steps of progressive discipline
are set forth in Part III. Bennett argues that these provisions expressly restrict the City
to disciplining her only for cause, thereby modifying her at-will employment and
creating a property interest that is entitled to procedural due process protection under



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federal law. But this argument ignores Part IV of section 42, which is entitled
“Termination” and which provides in relevant part:

       All members are subject to termination for the following general
       conditions:
                                 * * * * *
       D.    Termination with fault: Examples include, but are not
             limited to, insubordination . . . .
       E.    Termination without fault: Examples include, but are not
             limited to
                                 * * * * *
             3. decision of the Chief of Police as permitted and retained
             by law.

        Like the district court, we conclude that Part IV.E. of section 42, and particularly
Part IV.E.3., defeats Bennett’s claim of a property interest under Arkansas law. To
modify her at-will employment, the Policy Manual must contain “an express provision
against termination except for cause.” Gladden, 728 S.W.2d at 505 (emphasis in
original). “[A]n implied provision against the right to discharge will not be sufficient
to invoke the exception.” St. Edward Mercy Med. Ctr. v. Ellison, 946 S.W.2d 726,
729 (Ark. App. 1997). Here, section 42 expressly provides that discipline “shall be for
cause,” but then expressly provides that termination may be without cause at the
discretion of the Chief of Police. A property interest, for federal due process purposes,
is the right to continued employment. Whether the employer may terminate without
cause is the critical inquiry. That the employee has a contractual right to some form of
disciplinary procedure is of no significance if employment itself is terminable at-will.
Stow, 819 F.2d at 866-68. Thus, section 42 of the Policy Manual does not provide
Bennett the property interest that is necessary to support her procedural due process
claim.




                                            -5-
       B. The Public Policy “Exception.” An at-will employee who is terminated in
violation of well-established Arkansas public policy has a cause of action for wrongful
termination. The action has been termed an “exception” to the employment-at-will
doctrine. See Smith, 804 S.W.2d at 684. Seeking to apply this exception to public
employees, Bennett argues that her right to procedural due process was violated
because her termination violated the Arkansas public policy that protects an employee’s
medical privacy by limiting when an employer may insist on a second medical opinion.
The district court concluded that Bennett’s discharge did not fall within the limited
public policy exception. We agree, and we further note a more fundamental flaw in her
contention. The right not to be discharged in violation of the State’s public policy is
not a property interest for procedural due process purposes. It is a substantive right,
the violation of which gives rise to a substantive claim under state law, just as the right
not to be discharged on account of race, sex, or age gives rise to a substantive claim
under federal law. See Drake v. Scott, 812 F.2d at 400-01. Here, Bennett’s complaint
asserted a wrongful discharge claim under state law, but that claim is not pursued on
appeal.

                         II. The Age Discrimination Claim.

       Bennett next argues that the district court erred in granting summary judgment
dismissing her age discrimination claim. Because Bennett presented no direct evidence
of age discrimination, we analyze her claim under the burden shifting test established
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). The City concedes that Bennett established a prima facie case of age
discrimination -- she is within the protected age group, she met applicable job
qualifications, and she was replaced by a twenty-five-year-old employee. Compare
Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2106 (2000). The City
produced evidence that its reasons for terminating Bennett were legitimate and
nondiscriminatory -- excessive sick leave, disobeying direct orders to see the
Department’s physician, and refusing to communicate with her employer while on sick

                                           -6-
leave. See, e.g., Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999).
To survive the City’s motion for summary judgment, Bennett must then produce
sufficient evidence that the reasons provided were a pretext for age discrimination --
proof that the City’s “proffered explanation is both incorrect and that discrimination is
the true explanation” for her termination. Hutson v. McDonnell Douglas Corp., 63
F.3d 771, 777 (8th Cir. 1995).

       Like the district court, we conclude that Bennett failed to present sufficient
evidence of pretext. Bennett admitted that she intentionally disobeyed her supervisor’s
orders to see the Department physician. She also admitted that she intentionally failed
to return Chief Watters’ phone call and did not otherwise communicate with the
Department about this sick leave issue. To prove pretext for age discrimination,
Bennett relies on Department hiring statistics showing that a large percentage of
employees hired after Watters became Chief were under forty-years old, and on the
alleged transition to younger workers in her division. However, as the district court
observed, it is not surprising to find older workers moving out of a work force and
younger workers moving in. See Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1166 (8th
Cir. 1985). Bennett further relies on her assertion that Chief Watters has not
challenged the use of sick leave by younger employees nor required them to see the
Department physician. However, she presented no proof that these younger employees
were “similarly situated in all relevant respects.” Harvey v. Anheuser-Busch, Inc., 38
F.3d 968, 972 (8th Cir. 1994). In short, Bennett presented no evidence creating a
reasonable inference that the legitimate non-discriminatory reasons given for her
termination were a pretext for intentional age discrimination.

      The judgment of the district court is affirmed.




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A true copy.

      Attest:

         CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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