Victor v. McElveen

• Citation: 150 F.3d 451
• Decision Date: 06 August 1998
• Docket Number: No. 96-30991,96-30991
• Parties: 74 Empl. Prac. Dec. P 45,553, 14 IER Cases 692 Eugene VICTOR, Plaintiff-Appellant, v. Wayne McELVEEN, Individually and as Sheriff of the Parish of Calcasieu, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 451

150 F.3d 451

74 Empl. Prac. Dec. P 45,553, 14 IER Cases 692

Eugene VICTOR, Plaintiff-Appellant, v. Wayne McELVEEN, Individually and as Sheriff of the Parish of

Calcasieu, Defendant-Appellee.

No. 96-30991.

United States Court of Appeals, Fifth Circuit.

Aug. 6, 1998.

Kerry Eugene Fields, Gretna, LA, for Plaintiff-Appellant.

Fred A. Book, Jr., M. Steven Beverung, Bill W. Wooley, II, Book & Beverung, Lake Charles, LA, for Defendant-Appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before DeMOSS and DENNIS, Circuit Judges, and ROSENTHAL ^*, District Judge.

DENNIS, Circuit Judge:

In this case we review the district court's summary judgment dismissing an action by a former sheriff's deputy under 42 U.S.C. § 1983 for damages resulting from the sheriff's wrongful termination of his employment in violation of his First Amendment right to free speech. The deputy, Eugene Victor, an African-American, was discharged by the sheriff for statements Victor made at a workplace meeting to which the sheriff had summoned a group of black deputies to explain and discuss the implementation of a Community Oriented Police Servicing ("COPS") program for a community predominantly of black citizens. The sheriff planned to employ an all-black, 12-deputy workforce in the program; another purpose of the meeting was to solicit applicants for those positions. In response to the sheriff's request for input from the deputies about the program, while a newspaper reporter was present, Victor complained that only black deputies had been required to attend the meeting, stated that deputies of all races should have been involved, and asserted that an equal number of black and white deputies should be employed in the program to avoid a situation similar to that which prevailed in 1980; at that time, according to Victor, black deputies were permitted to patrol only in black neighborhoods. A local newspaper ran a story on the meeting highlighting some of Victor's remarks. Four days after the meeting the sheriff fired Victor for "making false statements regarding this department during an informational meeting with other deputies, and causing dissension within the department."

The district court held that: (1) Victor's speech did not address a matter of public concern; and (2) Victor's expressions--particularly his statement that there were enough black people at the meeting for a "Tarzan movie"--caused dissension, contained irrelevant statements, and interfered with effective operations; therefore, Victor's interest in making his statements was outweighed by the interest of the state in the effective functioning of the sheriff's office. We reverse and remand for further proceedings. Victor's protest against racial discrimination was both inherently, and in content, form and context, a matter of public concern. There are genuine disputes as to issues of material facts determinative of whether any of Victor's statements were knowingly or recklessly false and whether his speech as a whole so interfered with the efficient functioning of the sheriff's office that the state's interest therein outweighs Victor's First Amendment rights.

I

The district court's conclusion that summary judgment was appropriate is a question which we review de novo. See, e.g., Dawkins v. Sears Roebuck and Co., 109 F.3d 241, 242 (5th Cir.1997). Summary judgment is proper only when it appears that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). On summary judgment the inferences to be drawn from the underlying facts contained in the affidavits, depositions, and exhibits of record must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

II

Construing the record in the light most favorable to the nonmovant, Victor, we draw inferences from the underlying facts as follows. Eugene Victor served as a deputy marshal under then-city marshal Wayne McElveen from 1973 until 1980. In 1980 after McElveen was elected Sheriff of Calcasieu Parish, he employed Victor as a deputy. Victor was assigned to a succession of jobs over the years: graveyard shift patrol, traffic department, internal affairs, and the transportation division. Victor finally served as a courtroom bailiff for the two years before his dismissal on December 6, 1994.

In 1994, the Calcasieu Parish Sheriff's Department received a federal grant under the Community Oriented Police Servicing ("COPS") program, a program that provides federal funds to establish community-based policing in high crime areas. The department received the grant for North Lake Charles, an area inhabited predominantly by black citizens. Sheriff McElveen called an informational meeting to discuss implementation of the COPS program. The sheriff's department sent letters to a group of black deputies informing them that the meeting was "mandatory" and that their attendance was "required." The department also posted notice of the meeting in the squad room. The notice invited, but did not require, all department personnel to attend the meeting. Victor testified in his deposition that the general notice was not posted until after the meeting began.

The meeting was held on December 1, 1994. Of the 75 to 80 persons at the meeting only four or five were white, including the sheriff and one or two supervisory deputies. A newspaper reporter covered the event although she had not been invited by the sheriff's office. The sheriff, after briefly explaining his plans for the COPS program, asked for questions and comments from the deputies about the program. Deputy Victor was the first to be recognized. Before voicing his concerns, Victor asked for and received the sheriff's assurance that he could speak freely without "any fear of any retribution of any kind." Victor complained that the sheriff's department had required the presence of the group of black deputies but not the attendance of any white deputy. He began with a remark that there were "enough black people here to do a Tarzan movie," or words to that effect. He perceived the sheriff's plan as calling for the employment of only black deputies in the program. He protested that deputies of other ethnic groups should be included in the meeting and the program. According to one deputy present, Victor recommended that six white and six black deputies be assigned to the program. Victor asserted that in 1980 the sheriff's department had a policy, since abolished, of restricting black deputies' patrol duties to North Lake Charles, an area populated mainly by black people. His remarks may be fairly characterized as a warning that a COPS program with only black deputies on front line duty would be a step backward, detrimental to the community and the department. After Victor's remarks, the sheriff and other deputies stated that it was not true that the department in 1980 had restricted the patrols of black deputies to North Lake Charles. Further, the sheriff explained that, even if the twelve COPS deputies closely involved with the community were to be black, the regular deputy patrols within the area would continue to include white officers. The sheriff acknowledged in his deposition, that subsequent to the meeting he had employed eleven black and one white deputies for the COPS program. The sheriff testified, however, that this racial makeup was required for an effective COPS program, and was not a sign of bigotry as he thought Victor had stated or suggested at the meeting. Other black deputies disagreed with Victor and contended that providing twelve black deputies for community oriented police services would be beneficial to the deputies and the community. After Victor's remarks and the reactions thereto, which consumed about ten minutes, the meeting resumed with a more detailed explanation of the proposed COPS program by Richard F. Tanous, the sheriff's department systems administrator, and concluded without any untoward incident. The next day the newspaper published an article about the meeting, featuring some of Victor's statements. The sheriff fired Victor four days after the meeting for "making false statements regarding this department during an informational meeting with other deputies, and causing dissension within the department."

Victor brought the present action under 42 U.S.C. § 1983 against Sheriff Wayne McElveen, individually and as sheriff of Calcasieu Parish, alleging that the sheriff's termination of his employment violated his right to free speech secured by the First and Fourteenth Amendments. The suit also alleged that Sheriff McElveen's actions violated his rights under the Fifth and Fourteenth Amendments. The sheriff moved for summary judgment denying Victor's claims and sustaining his defense of qualified immunity. The district court granted summary judgment dismissing Victor's claims with prejudice. The court concluded that Victor's speech did not address a matter of public concern, as he spoke primarily in his role as a public employee and not in his role as a citizen. The district court further held that, assuming the speech involved a matter of public concern, the government's interest, as an employer, outweighed Victor's First Amendment interest in commenting on the matter. The district court also granted summary judgment for Sheriff McElveen on Victor's Fifth and Fourteenth Amendment claim. The district court did not rule on Sheriff McElveen's defense of qualified immunity.

Victor appeals from the district court's decision that his First Amendment rights were not violated. He does not challenge dismissal of the Fifth and Fourteenth Amendment claim.

III

It has long been established that the government may not constitutionally compel persons to relinquish their First Amendment rights as a condition of public employment. E.g., ...