Boddie v. City of Columbus, Miss.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-7233
WILLIAM H. BODDIE,
Plaintiff-Appellee
Cross-Appellant,
versus
CITY OF COLUMBUS, MISSISSIPPI and
ROBERT W. GALE, Individually and in
his Official Capacity as Fire Chief
of the City of Columbus, Mississippi,
Defendants-Appellants
Cross-Appellees.
Appeals from the United States District Court
for the Northern District of Mississippi
(April 14, 1993)
Before Reynaldo G. GARZA, HIGGINBOTHAM, and Emilio M. GARZA,
Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
The City of Columbus and its fire chief, appeal from a
judgment entered upon a jury verdict finding them liable for firing
Boddie, a fireman, in violation of his First Amendment right to
associate with union members. The judgment awarded $30,558 against
the City and fire chief, individually, and ordered reinstatement.
Defendants argue that (1) Boddie's failure to prove that his
association with union members was a matter of public concern is
fatal to his claim, (2) the fire chief was entitled to qualified
immunity because of the then uncertainty of whether a showing of
public concern was required, (3) there was insufficient evidence to
show that Boddie was fired for associating with union members, and
(4) Boddie should not have been reinstated, because he falsified
his employment application. Boddie also appeals, complaining about
the effective date of his reinstatement. We affirm except we
vacate the ordered date of reinstatement and remand with
instructions that reinstatement be effective from the date of the
jury verdict.
I.
The Columbus, Mississippi Fire Department hired Bill Boddie in
1987, with a twelve-month probationary period. Eight hours before
the end of his probation, Chief Gale fired Boddie. More
specifically, the City Council accepted Gale's recommendation and
fired Boddie.
In this suit, defendants learned that Boddie failed to
disclose in his job application his previous work for Kirby
Mitchell, who has been convicted on drug charges, and LBC
Management Company, which produced adult films.
At trial, Gale contended that his recommendation to the City
Council was based on Boddie's poor attitude. Boddie replied that
this was pretext, that he was fired because he associated with
firemen who were union members. The jury found that firing Boddie
violated his right to freedom of association under the First
Amendment and awarded Boddie $36,558.00, which the judge reduced to
2
$30,558.00.1 Upon Boddie's motion, the judge ordered reinstatement
effective April 3, 1992, the date he ruled on post-trial motions.
The district court stayed Boddie's reinstatement and deferred a
ruling on attorneys' fees pending this appeal.
II.
The district court denied motions for directed verdict, JNOV,
and new trial, ruling that Boddie's proof of associational activity
need not include independent proof that it touched a matter of
public concern. We agree. In Connick v. Meyers, 461 U.S. 138(1983), the Supreme Court protected from employer discipline only
the speech of employees touching on a matter of public concern. It
pulled back from full protection for all speech in the workplace,
sensitive to the reality that to do otherwise would elevate work-a-
day personnel disputes to issues of a constitutional order. At the
same time, the court explained that employees do not leave their
free speech rights at home.
Defendants argue that this accommodating principle of public
concern is a threshold hurdle to be cleared by all employees
asserting First Amendment violation in the workplace. Its force
aside, the answer to this question is not open for this panel. In
Coughlin v. Lee, 946 F.2d 1152, 1158 (5th Cir. 1991), we stated
that "[a] public employee's claim that he has been discharged for
1
Boddie conceded that the verdict should be reduced to
$30,708, the amount of lost wages he claimed. Defendants claimed
that Boddie should pay for the turnout coat he lost while
employed by the City, and the jury agreed. The coat was valued
at $150. Therefore the court also reduced the award by this
amount to reach $30,558.
3
his political affiliation in violation of his right to freely
associate is not subject to the threshold public concern
requirement." See also Kinsey v. Salado Independent School Dist.,
950 F.2d 988, 992-93 (5th Cir. 1992) (en banc); Hatcher v. Board of
Pub. Educ. and Orphanage, 809 F.2d 1546 (11th Cir. 1987); but see
Griffin v. Thomas, 929 F.2d 1210 (7th Cir. 1991); Boals v. Gray,
775 F.2d 686 (6th Cir. 1985). Coughlin answers the City's
contention regarding public concern.
III.
Coughlin, decided four years after Boddie was fired, does not
answer Chief Gale's contention to this court. Chief Gale argues
that he has qualified immunity. Public officials are shielded from
liability for damages under § 1983 so long as their conduct has not
violated "clearly established statutory or constitutional rights of
which a reasonable person would have known." Anderson v.
Creighton, 483 U.S. 635, 639 (1987); Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). "'[T]he question is not whether the law was
settled, viewed abstractly, but whether, measured by an objective
standard, a reasonable [official] would know that his action was
illegal.'" Click v. Copeland, 970 F.2d 106, 109 (5th Cir. 1992)
(quoting Matherne v. Wilson, 851 F.2d 752, 756 (5th Cir. 1988)).
Gale contends that in light of the split among the circuits on
the question of whether public concern is an element of a freedom
of association claim and the fact that we did not decide Coughlin
until after Boddie's dismissal, he reasonably could not have been
4
expected to know that firing Boddie violated clearly established
law.
We turn to the law at the time Gale made his recommendation to
the City Council in December 1987. Our inquiry ends, if we find
from examining the decisions of the Supreme Court and our own
decisions that the law was clearly established in this circuit.
See Click, 970 F.2d at 110-11 (holding "[t]he law was established
clearly enough in this circuit" despite a conflict with two other
circuits) (emphasis added); see also Garcia by Garcia v. Miera, 817
F.2d 650, 658 (10th Cir. 1987) ("[t]o give preclusive effect to a
conflict among the circuits would effectively bind this circuit by
the decisions of others").
There is one preliminary issue. Boddie argues that Chief Gale
is not entitled to immunity, because Gale did not in fact believe
that he could legally fire Boddie based on his union association.
Rather, Gale has always maintained that he fired Boddie because of
his poor attitude. However, subjective good faith reliance on the
allegedly illegal reason for discharge is not required. See
Pfannstiel v. City of Marion, 918 F.2d 1178, 1182 (5th Cir. 1990).
We accept, as we must, the jury finding that Gale recommended that
Boddie be fired because he associated with union members.
We are persuaded that in 1987 it was clear that the First
Amendment protects an employee's right to associate with a union.
Smith v. Arkansas State Highway Employees, 441 U.S. 463, 464-65
(1979); Vicksburg Firefighters v. City of Vicksburg, 761 F.2d 1036,
1039 (5th Cir. 1985); Professional Assoc'n of College Educators v.
5
El Paso County Community College Dist., 730 F.2d 258, 262 (5th Cir.
1984) (PACE); Tanner v. Hazlehurst Mun. Separate School Dist., 427
So. 2d 977, 978 (Miss. 1983); see also Shelton v. Tucker, 364 U.S.
479 (1960). It was also well-settled that a public employee's
First Amendment rights yield at times to the government interest
"in promoting the efficiency of the public services it performs
through its employees." Pickering v. Board of Educ., 391 U.S. 563,
568 (1968); see also Rankin v. McPherson, 107 S. Ct 2891, 2896
(1987); Connick, 461 U.S. at 150. Recognizing these competing
interests, Connick held "that when a public employee speaks not as
a citizen upon matters of public concern, but instead as an
employee upon matters only of personal interest, absent the most
unusual circumstances, a federal court is not the appropriate forum
in which to review the wisdom of a personnel decision taken by a
public agency allegedly in reaction to the employee's behavior."
Id. at 147.
Our view on the role of public concern in an association case
was apparent before Coughlin. Connick and Pickering were speech
cases. Connick fired an assistant district attorney for
circulating a questionnaire concerning the office's transfer
policy. 461 U.S. at 140-41. In Pickering, a teacher was fired for
sending a letter to a newspaper critical of the school's handling
of proposals to raise revenue. 391 U.S. at 564. Under Pickering
and Connick, we balance the government's interest in an efficient
workplace against the employee's First Amendment interest
6
considering a number of factors, if the speech was a public concern
and not personal.
Gale's assertion that the law was not clearly established
because the role of public concern was uncertain in a freedom of
association case is belied by our post-Connick freedom of
association decisions. In PACE, individual faculty members at El
Paso Community College and the Professional Association of College
Educators, PACE, alleged that the College tried to destroy PACE by
threatening and intimidating their members and officers and by
denying them privileges enjoyed by other faculty members. 730 F.2d
at 261. We remanded for the district court to consider PACE's
freedom of association claim stating:
The first amendment protects the right of all persons to
associate together in groups to further their lawful
interests. This right of association encompasses the right of
public employees to join unions and the right of their unions
to engage in advocacy and to petition government in their
behalf. Thus, the first amendment is violated by state action
whose purpose is either to intimidate public employees from
joining a union or from taking an active part in its affairs
or to retaliate against those who do. Such "protected First
Amendment rights flow to unions as well as to their members
and organizers."
Id. at 262 (quoting Allee v. Medrano, 416 U.S. 802, 819 n.13
(1974)) (footnotes omitted). Our opinion did not mention Connick
or suggest any requirement that PACE offer some additional proof
that it was involved in a public concern.
McBee v. Jim Hogg County, 730 F.2d 1009 (5th Cir. 1984) (en
banc) was a political patronage case challenging the custom in Jim
Hogg County of filling the position of deputy in the sheriff's
office with political supporters of the newly elected sheriff. As
7
such, it implicated both speech and association. See also Kinsey,
950 F.2d at 992 (school board's dismissal of superintendent because
of his support for defeated board members involved both freedom of
speech and association). Only one of the plaintiffs, McBee,
brought a pure speech claim. She was denied employment as a result
of her complaint to the County Judge and to a County Commissioner
about the sheriff's actions. McBee, 703 F.2d 834, 836-37 (original
panel opinion). We took the case en banc to consider the effect of
Connick, decided after the original panel opinion, on political
patronage cases, settling on the Pickering balancing test as
explained by Connick. Although we explained the facts of Connick
and mentioned its holding with regard to the public concern test,
the focus of our opinion was on Connick's explanation of the
Pickering balance. 780 F.2d at 1013-14. We did not insist on a
threshold finding of public concern. We remanded for the district
court to consider the factors in the balancing test. Id. at 1017.
Vicksburg was another post-Connick freedom of association case
that did not require public concern. Plaintiffs challenged a
Vicksburg municipal resolution prohibiting captains of the
Vicksburg Fire Department from belonging to a union or labor
organization having in its membership rank-and-file firefighters of
that department. 761 F.2d at 1037. We upheld the resolution,
holding "that prohibiting firefighters properly characterized as
supervisors from belonging to labor organizations composed of the
rank and file serves legitimate and substantial government interest
in maintaining efficient and dependable firefighting services."
8
Id. at 1040. Our decision rested solely on the balancing of
interests.
We conclude that in December 1987, the law was clearly
established in this circuit that no independent proof of public
concern is required in a freedom of association claim arising from
union organization activity. Without a hint to the contrary in our
decisions, Boals v. Gray, 775 F.2d 686 (6th Cir. 1985), and Griffin
v. Thomas, 929 F.2d 1210, 1213 (7th Cir. 1991), decided after
Gale's decision, cannot support Gale's bid for qualified immunity.2
Although we think it apparent that public concern was not a
prerequisite to a public employee's freedom to associate with union
members, this does not end our inquiry. This is so whether we
describe our law as not requiring independent proof that union
activity of employees touches on a public concern or as recognizing
the higher likelihood that much more of the range of such activity
than the range of employee speech, is not solely personal and is
inevitably of public concern. Many cases will defy this simplistic
categorization with entangled speech and associational freedoms at
issue. This is a price of the pushing away of workplace disputes
but even this difficulty is eased by the countervailing reality
that speech in the context of union activity will seldom be
personal; most often it will be political speech. We escape this
difficulty here because we have no more than associational
2
But see Hatcher v. Board of Public Educ. and Orphanage, 809
F.2d 1546, 1558 (11th Cir. 1987) (holding that Connick's public
concern test does not apply to freedom of association, relying on
NAACP v. Alabama, 357 U.S. 449 (1958)).
9
activity. Even so, the task that usually follows is not quite so
easy.
The fact specific balancing test of Pickering, complicates the
question of whether an act violated clear law. This is because the
question is not only the clarity of the standard but its clarity in
application. See Anderson v. Creighton, 483 U.S. 635 (1987); see
also Noyola v. Texas Dept. of Human Resources, 846 F.2d 1021, 1025
(5th Cir. 1988) ("[t]here will rarely be a basis for a priori
judgment that the termination or discipline of a public employee
violated 'clearly established' constitutional rights"). Here,
however, Gale sought to justify Boddie's firing on the basis of
poor attitude not disruption of the fire department. There was no
interest to balance when this reason was rejected factually. "This
assertion, while important for the question of causation, is fatal
to his claim of qualified immunity." Click, 970 F.2d at 112. We
conclude that Chief Gale should reasonably have known that firing
Boddie for his association with union firemen violated clearly
established law. The district court did not err in refusing
qualified immunity.3
3
Gale also asserts error in the district court's failure to
give his requested jury instruction on qualified immunity. While
it may be necessary for a jury to make findings related to
qualified immunity in some cases, see White v. Walker, 950 F.2d
972, 976 (5th Cir. 1991), the issue in this case was purely
legal. See White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992)
("[w]hether the conduct of which the plaintiff complains violated
clearly established law is an essentially legal question) (citing
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
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IV.
A.
We next address the sufficiency of the evidence that Boddie's
association with union firemen was a substantial or motivating
factor in Gale's decision. See Mt. Healthy City School Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274 (1977). We must consider all of
the evidence, drawing all reasonable inferences in favor of the
prevailing party. We cannot disturb the verdict if the record
contains any competent and substantial evidence tending fairly to
support the verdict. E.g. Gibralter Sav. v. LDBrinkman Corp., 860
F.2d 1275, 1297 (5th Cir. 1988).
At trial, defendants attempted to convince the jury that
Gale's recommendation was based on Boddie's poor attitude, relying
on a few specific instances: Boddie lost his turnout coat and did
not pay for the replacement coat (the jury determined that Boddie
must pay for the coat), on several occasions Gale noticed Boddie
out of uniform when he should have been in uniform, Boddie signed
a petition concerning work hours after having worked only three
months, and Boddie teased Chief Massey on a couple of occasions
about what Massey was carrying in a briefcase.
Boddie argued that Gale's claim of poor attitude was a
pretext. All firemen who worked on Boddie's shift, his immediate
superior, and the assistant chief testified that Boddie was a very
good firefighter and none were aware of an attitude problem. His
immediate supervisor testified that Boddie's attitude was
excellent. No other fireman had been fired without some
11
documentation of his poor performance, and no documentation existed
on Boddie. Also, no other firefighter had ever been fired for a
poor attitude.
According to the testimony, Boddie was a close friend of the
officers of the local firefighters' union. To support his position
that Gale fired him for union association, Boddie offered the
testimony of City Councilman Edwards, Assistant Chief Lavender,
admissions by Gale, and testimony from union officers. Edwards
testified that Gale told him Boddie "hung out with the wrong
crowd." Edwards assumed Gale was referring to the union. Lavender
testified that Gale told him Boddie had been "messing with the
union." Gale himself testified that it was his personal opinion
that any union causes "turmoil." In addition, Gale told Union
President Holloway that all the union was good for was "protecting
worthless workers." On a different occasion, Gale told Holloway
that it was not Holloway's job performance that was going to get
him in trouble but his union activity and his signing of a
petition. Similarly, Union Secretary Moore said Gale told him that
his "extracurricular activity" was going to get him in trouble.
Union Vice-President Latham testified that the union advised
firemen not to join the union during their probationary period for
fear of retaliation.
Defendants' attack on the verdict rests on many of the same
witnesses. Gale and the City emphasize that these witnesses
testified that they had never heard Gale say he was out to get
Boddie, that firemen should not join the union, or that the union
12
could not solicit members. Gale and the City called other
witnesses who also testified as to what they had never heard Gale
say. A reasonable jury could conclude that union association was
a substantial or motivating factor in Boddie's discharge.
B.
At oral argument, counsel for defendants argued that the City
of Columbus could not be held liable because there was no proof
that the members of the City Council held any anti-union bias.
This argument strips to a first time contention that the City
Council was the policymaker for the City of Columbus as to the
hiring and firing of firemen and Boddie was required to prove the
union animus of Council members to establish municipal liability.
See City of St. Louis v. Praprotnik, 485 U.S. 112 (1988); Worsham
v. City of Pasadena, 881 F.2d 1336 (5th Cir. 1989). Boddie's
theory of recovery against the City was, however, that Chief Gale
was a policymaker. Boddie's complaint alleged that Gale had the
authority to make official policy decisions for the City with
regard to the hiring and firing of firemen. The City never
contended otherwise and the case was tried on this theory. The
questions put to the jury were whether "Mr. Boddie's exercise of
his protected First Amendment right of association was a
substantial or motivating factors [sic] in the decision by the City
and Chief Gale to discharge him" and whether "the actions of the
City and Chief Gale were the proximate or legal cause of damages
sustained by Mr. Boddie." The City Council was not mentioned in
the instructions. We do not suggest that it would, in any event,
13
have succeeded, but it is too late for the City to raise this
contention. See e.g. Capps v. Humble Oil & Refining Co., 536 F.2d
80 (5th Cir. 1976) (appellant may not raise on appeal a theory
which was not presented to the trial court); Matter of Texas
Mortgage Servs. Corp., 761 F.2d 1068, 1073 (5th Cir. 1985) ("issues
not raised on appeal in the brief of the Appellant may be
considered waived, and they cannot be noticed or entertained by the
Court of Appeals").
V.
Defendants argue that Boddie should not have been reinstated,
because Boddie falsified his employment application by failing to
list all of his former employers. Defendants never raised Boddie's
application as a bar to reinstatement before the district court;
they were silent on this issue at the pretrial conference and in
their motion for summary judgment, and did not oppose Boddie's
post-trial motion for reinstatement. Boddie's failure to include
all of his former employers on his application was raised at trial
only as an issue of Boddie's credibility. We decline to address
this argument for the first time on appeal. See, e.g., McLean v.
International Harvester Co., 902 F.2d 372, 374 (5th Cir. 1990).
VI.
On cross-appeal, Boddie argues that the district court erred
in failing to make reinstatement effective from the date of the
jury verdict, and we agree. The jury returned its verdict on
September 5, 1991. The judgment awarded Boddie $30,558, the amount
of backpay he claimed less $150 for the coat. Therefore, the
14
judgment compensated Boddie for his loss of income up until trial.
However, reinstatement was not effective until April 3, 1992, the
date the judge ruled on post-trial motions. Thus, Boddie has not
been fully compensated for his loss; the period between trial and
the judge's ruling on post-trial motions was uncompensated. Cf.
Kingsville Independent School Dist. v. Cooper, 611 F.2d 1109, 1114
(5th Cir. 1980) ("the usual award of backpay covers the period from
wrongful termination to effective reinstatement"). Accordingly, we
affirm the judgment in all respects except the effective date of
reinstatement. We vacate that portion of the judgment and remand
with instructions to order reinstatement effective September 5,
1991.
AFFIRMED in part, VACATED and REMANDED in part.
15