*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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

June 2, 2003

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________________________

No. 02-41318

_____________________________________

VAUGHN STEPHEN AYRES, JR.

 Plaintiff - Appellee 

 

v.

CITY OF BEAUMONT; MICHAEL B. BERTRAND

 Defendants - Appellants

__________________________________________________

Appeal from the United States District Court 

For the Eastern District of Texas

(1:00-CV-560)

__________________________________________________

Before DAVIS, JONES and BENAVIDES, Circuit Judges 

PER CURIAM:*

There was no legally sufficient evidentiary basis for a

reasonable jury to have found in favor of Vaughn Stephen Ayres,

Jr. (“Ayres”)on any of his claims. Therefore, we reverse the

district court’s judgment in favor of Ayres and render judgment

in favor of the City of Beaumont (“City”) and Michael Bertrand

(“Bertrand”).
-2-

Ayres failed to make out a 42 U.S.C. § 1983 claim against

Bertrand and the City for violating his constitutional right to a

name-clearing hearing following his suspension from the Beaumont

Fire Department. To make out a claim for denial of a nameclearing hearing under § 1983, an employee must prove:

that he was discharged, that defamatory

charges were made against him in connection

with the discharge, that the charges were

false, that no meaningful public hearing was

conducted pre-discharge, that the charges

were made public, that he requested a hearing

in which to clear his name, and that request

was denied.

Rosenstein v. City of Dallas, 876 F.2d 392, 395-96 (5th Cir.

1989) (internal citations omitted. Ayres was not discharged from

his position with the Fire Department; therefore, there was no

legally sufficient evidentiary basis for a reasonable jury to

have found in favor of Ayres on this claim. 

“A city performing a governmental function is immune from

suit on the torts of its officers, agent and employees” except as

waived by the Texas Tort Claims Act. Dallas v. Moreau, 718 S.W.2d

776 (Tex. App. - Corpus Christi 1986, writ ref’d). Ayres sued

Bertrand for defamation in his official capacity, so both

Bertrand and the City enjoy immunity. Brandon V. Hall, 469 U.S.

464 (1985) (A suit against an individual in his official capacity

is a suit against the city.). 

Ayres had no cause of action for breach of the Collective

Bargaining Agreement. Ayres claimed breach of contract, but did
-3-

not follow the union’s grievance procedures. An employee may be

allowed to sue an employer directly for breach of contract, but

only in cases where “the employee can prove that the union as

bargaining agent breached its duty of fair representation in its

handling of the employee’s grievance.” Vaca v. Sipes, 386 U.S.

171, 186 (1967). Ayres did not prove that the union breached its

duty of fair representation with regard to his contract claims,

so he is foreclosed from suing Bertrand and the City. 

 

REVERSED and RENDERED.