Melvin E. Duckworth v. John H. Ford ( 1996 )

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No. 95-1381
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Melvin Eugene Duckworth, *
*
Appellee, *
*
v. *
* Appeal from the United States
John H. Ford, * District Court for the
* Western District of Missouri
Appellant. *
*
Richard C. Rice, *
*
Defendant. *
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Submitted: November 16, 1995
Filed: May 15, 1996
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Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge,
and FAGG, Circuit Judge.
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McMILLIAN, Circuit Judge.
John H. Ford appeals from a final judgment entered in the United
States District Court1 for the Western District of Missouri, upon a jury
verdict, in favor of Melvin Eugene Duckworth in this civil rights action.
For reversal, Ford argues there was insufficient evidence as a matter of
law to support the jury verdict and that the district court abused its
discretion in admitting into evidence certain information about the
judgment in
1
The Honorable William A. Knox, United States Magistrate Judge
for the Western District of Missouri. The parties consented to
trial of the case before a magistrate judge pursuant to 28 U.S.C.
§ 636(c).
another case involving Ford. For the reasons discussed below, we affirm
the judgment of the district court.
In 1988 Duckworth and Ford were majors in the Missouri state highway
patrol. The superintendent was about to retire, and Ford and C.E. Fisher
were rivals for the position. Duckworth supported Fisher. In early 1988
Ford requested an employee of the highway patrol’s communications division
to periodically “sweep” his office telephone. In May 1988 the employee
discovered a device of some kind on Ford’s office telephone. The employee
removed the device and reported the discovery to Ford. Ford asked the
employee not to tell anyone about the device; however, the employee later
told his supervisor about the device. Ford suspected the device could have
come from the highway patrol’s Division of Drug & Crime Control (DDCC),
which Duckworth commanded. Ford told several fellow highway patrol
officers about the discovery of the device and also reported the discovery
to the superintendent. In June 1988 the governor nominated Ford as
superintendent. Ford reported the discovery of the device to the state
director of public safety and the assistant director of public safety.
In early July 1988 Duckworth and Fisher heard that there were rumors
circulating within the highway patrol that they were “in trouble” and would
be demoted and transferred because they had “bugged” or wiretapped Ford’s
office telephone. Duckworth talked to the retiring superintendent about
the rumors and the retiring superintendent told Duckworth that the device
was not a “bug.” A highway patrol criminalist and the FBI later identified
the device as a “click suppressor,” a type of telephone equipment and not
a monitoring device.
At a mid-July 1988 staff meeting the retiring superintendent
described the wiretap rumors as Ford’s problem. Duckworth and Fisher
requested an FBI investigation, but Ford denied the request. Ford
officially became the acting superintendent on August 1, 1988.
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The wiretap rumors continued to circulate through the fall and winter of
1988. In 1989 the state senate refused to confirm Ford’s appointment until
litigation involving Ford and another member of the highway patrol had been
resolved. The jury in that case found against Ford, and the governor
withdrew Ford’s nomination.
Duckworth testified that the wiretap rumors adversely affected his
physical and mental health. He feared that his career had been ruined by
the rumors, and he was under considerable stress and very depressed.
Duckworth suffered a heart attack in November 1988 and had bypass surgery
in June 1989. He took long-term disability status and left the highway
patrol in May 1990.
Duckworth subsequently filed this civil rights action in federal
district court alleging that Ford had violated his first amendment rights
by spreading the wiretap rumors in retaliation for his supporting Fisher
for the superintendent position and that this retaliation caused his
constructive discharge. The district court denied defense motions for
summary judgment on the basis of qualified immunity, holding that
Duckworth’s opposition to Ford and his support of Fisher was protected
speech, even if he had a personal interest in Fisher’s success, the law
regarding first amendment retaliation claims was clearly established in
1988, and Ford was not entitled to judgment as a matter of law on the issue
of motive. We affirmed. Duckworth v. Ford, 995 F.2d 858 (8th Cir. 1993).
At trial, Duckworth, Ford, several highway patrol officers, state
investigators, Duckworth’s wife, and his doctors testified about the events
at issue and their effect on Duckworth’s physical and mental health. In
addition, the district court admitted into evidence certain information
about the litigation and jury verdict in favor of the plaintiff and against
Ford in another case, Darnell v. Ford, 903 F.2d 556 (8th Cir. 1990). The
jury found in favor of Duckworth and against Ford and awarded Duckworth
damages in the
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amount of $1,176,000.00. Post-trial motions for judgment as a matter of
law or for new trial were denied. This appeal followed.
First, Ford argues there was insufficient evidence as a matter of law
to support the jury verdict that he circulated the wiretap rumors. He
argues that the jury verdict could only have been the result of speculation
and conjecture because there was no evidence that he accused Duckworth of
tapping his office telephone, or that he circulated the wiretap rumors or
urged any of his fellow highway patrol officers to circulate such rumors,
or that he had any motive to retaliate against Duckworth for supporting
Fisher.
Ford moved for judgment as a matter of law at the close of the
plaintiff’s case but failed to renew the motion at the close of all the
evidence. Ford’s failure to renew the motion for judgment as a matter of
law at the close of all the evidence operated as a waiver of the
sufficiency of the evidence issue. Fed. R. Civ. P. 50(b); see, e.g., Smith
v. Ferrel, 852 F.2d 1074, 1075-76 (8th Cir. 1988). However, the
sufficiency of the evidence was raised in the alternative motion for new
trial which was denied by the district court. See, e.g., Harris v. Zurich
Insurance Co., 527 F.2d 528, 529-30 & n.1 (8th Cir. 1975). We have
reviewed the record and hold the district court did not abuse its
discretion in denying the motion for new trial on the ground of
insufficient evidence. There was evidence that Ford knew that Duckworth
supported Fisher; Ford told several highway patrol officers that he had
found a device on his office telephone and suggested that the device could
have come from DDCC, the division commanded by Duckworth; Ford took no
action to counter the wiretap rumors once he learned that his office
telephone had not been tapped; and Duckworth was injured by the wiretap
rumors. The jury could have reasonably inferred from the evidence that
Ford acted with the intent to retaliate against Duckworth for supporting
Fisher.
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Ford next argues the district court abused its discretion in
admitting into evidence certain information about the judgment in another
case, Darnell v. Ford, as evidence of other wrongs or acts under Fed. R.
Evid. 404(b). He argues the two cases are not factually similar and that
this evidence improperly suggested that he was someone who had a propensity
to retaliate, which is exactly what Fed. R. Evid. 404(b) prohibits. Ford
also argues that the district court should have excluded this evidence
because its probative value was substantially outweighed by the danger of
unfair prejudice.
We hold the district court did not abuse its discretion in admitting
this evidence. Under Fed. R. Evid. 404(b), evidence of other wrongs or
acts is admissible if it is “(1) relevant to a material issue, (2)
established by a preponderance of the evidence, (3) more probative than
prejudicial, and (4) similar in kind and close in time to the events at
issue.” United States v. Hazelett, 32 F.3d 1313, 1319 (8th Cir. 1994),
citing King v. Ahrens, 16 F.3d 265, 268 (8th Cir. 1994). The two cases are
factually similar. In Darnell v. Ford the plaintiff was a captain in the
state highway patrol who claimed that Ford had violated his first amendment
right to free speech by recommending his demotion because he had opposed
Ford’s candidacy for superintendent. The jury found for the plaintiff.
The events at issue in Darnell v. Ford occurred at about the same time as
the events at issue in the present case. Evidence that Ford had retaliated
against someone else at about the same time and under similar circumstances
is evidence from which the jury could reasonably infer that Ford had a
similar motive or intent to retaliate against Duckworth. Cf. Estes v. Dick
Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir. 1988) (other incidents of
employment discrimination). We cannot say that its probative value was
substantially outweighed by its prejudicial impact. We note that the
district court cautioned the jury about the limited relevance of the
judgment in Darnell v. Ford before the opening statements and again before
the cross-examination of William
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Darnell, who testified as a witness in the present case and who was the
plaintiff in Darnell v. Ford.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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