Dill v. City of Edmond, Okl., s. 97-6110

• Decision Date: 28 August 1998
• Docket Number: Nos. 97-6110,97-6122,s. 97-6110
• Citation: 155 F.3d 1193,1998 WL 546131
• Parties: 14 IER Cases 498, 98 CJ C.A.R. 4644 Dennis DILL, Plaintiff-Appellant and Cross-Appellee, v. CITY OF EDMOND, OKLAHOMA and Bill Vetter, in his individual capacity, Defendants-Appellees and Cross-Appellants, and Terry Gregg, in his official and individual capacities; David Preston, in his official and individual capacities; and Ben Daves, in his official and individual capacities, Defendants- Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1193

155 F.3d 1193

14 IER Cases 498, 98 CJ C.A.R. 4644

Dennis DILL, Plaintiff-Appellant and Cross-Appellee, v. CITY OF EDMOND, OKLAHOMA and Bill Vetter, in his individual capacity, Defendants-Appellees and Cross-Appellants and Terry Gregg, in his official and individual capacities David Preston, in his official and individual capacities; and Ben Daves, in his official and individual capacities Defendants- Appellees.

Nos. 97-6110, 97-6122.

United States Court of Appeals Tenth Circuit.

Aug. 28, 1998.

Joseph R. Weeks, Oklahoma City, OK, for Plaintiff-Appellant and Cross-Appellee Dennis Dill.

Richard J. Goralewicz (Robert J. Turner of Turner, Turner, Braun & Goralewicz; Robert S. Baker and Hugh A. Manning of Baker, Baker & Tait, Oklahoma City, OK; and Stephen T. Murdock, City Attorney for the City of Edmond, OK, with him on the brief), of Turner, Turner, Braun & Goralewicz, Oklahoma City, OK, for Defendants-Appellees and Cross-Appellants City of Edmond, OK, and Bill Vetter.

Richard Hornbeek of Hornbeek, Krahl & Vitali, Oklahoma City, OK, for Defendant-Appellee Terry Gregg.

Before BALDOCK, McKAY, and KELLY, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff Dennis Dill, a police officer employed by the City of Edmond, Oklahoma, brought suit against Defendants pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his First Amendment free speech and Fourteenth Amendment due process rights. Plaintiff also brought several pendent state law claims. The district court bifurcated this case for trial because Plaintiffs failed to make a timely jury demand for his claims against Defendants Terry Gregg, Bill Vetter and the City of Edmond. The claims against Defendants Ben Daves and David Preston were tried before a jury, while the claims against Gregg, Vetter and the city were tried before the court. Ultimately, the court determined that Plaintiff should prevail against Vetter and the City of Edmond on the procedural due process claim and against the City of Edmond on the breach of contract claim. The court awarded nominal damages of one dollar on each claim. Defendants prevailed on all of Plaintiff's remaining claims before the court and the jury.

On appeal, Plaintiff argues that the district court: (1) erred in dismissing his First Amendment free speech claim against Gregg, Vetter and the City of Edmond; (2) erred in granting Preston and Daves' motion for judgment as a matter of law; (3) erred in denying his motion for a jury trial; (4) erred in conducting separate trials; (5) erred in awarding nominal damages; (6) erred in two of its conclusions of law; and (7) abused its discretion by quashing the trial subpoena of Dr. Fred Jordan.

In their cross-appeal, Defendants City of Edmond and Vetter argue that the district court erred by (1) finding that Vetter was a "policymaker"; and (2) denying Vetter qualified immunity for the procedural due process claim. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for further proceedings.

I. Background

In July 1991, the bodies of Melody Wuertz and her infant daughter Jessica were discovered in their home. Plaintiff, a detective with the Edmond police department, was assigned to the case. Jimmy Ray Slaughter, Jessica's father, was quickly identified as a suspect and was subsequently convicted of the murders. Two days after the discovery of the bodies, Plaintiff asked his immediate supervisor, Lieutenant Terry Gregg, to allow him to leave for a previously scheduled vacation during the Fourth of July weekend. As a result, Plaintiff was absent for three or four days of the investigation. When he returned, he worked on the case for another five weeks before the case was referred to a multi-district task force. As a result of his investigation, Plaintiff had serious doubts that Slaughter was the murderer, and he became convinced that Jessica was killed sometime between 12 midnight and 2:00 a.m. on July 2. Plaintiff's theory was apparently in conflict with autopsy results which placed the time of death between 10 a.m. and noon on July 2. Establishing the time of death was very important in this case because two witnesses placed Slaughter near the Wuertz residence around noon on July 2, 1991. Plaintiff brought his theory to the attention of other officers and his supervisors and was told not to pursue it further because it might "muddy the water."

Plaintiff claims that in late May 1992, Detective Theresa Pfeiffer approached him and asked him to write a police report regarding the Wuertz case including facts he knew to be false. ¹ Plaintiff refused to comply and within a month was transferred from detective to patrol officer. Following Plaintiff's June 1992 transfer, he continued to receive the same base salary, but was no longer eligible for the $50.00 per month "special duty pay" detectives receive.

In December 1992, Plaintiff wrote a letter to then Chief of Police Bill Vetter stating that Plaintiff was aware of exculpatory evidence in the Slaughter case which he wanted to bring to the attention of the district attorney. Two months after Plaintiff wrote this letter, Daves, a captain in the patrol division, changed Plaintiff's days off from Saturday and Sunday to Friday and Saturday. In October 1993, Plaintiff was reassigned to the detective division. Since his reassignment he has not been assigned to any homicide investigations.

On January 20, 1995, Plaintiff filed his original complaint against the City of Edmond, Gregg, and Vetter. On November 2, 1995, the district court dismissed Plaintiff's First Amendment claim against the city, Gregg and Vetter. On June 20, 1996, Plaintiff filed an amended complaint adding due process, tortious interference with business relations, and conspiracy claims against officers Preston and Daves.

In December 1996, the district court conducted a bench trial of Plaintiff's claims against the City of Edmond, Vetter and Gregg for Fourteenth Amendment due process violations, breach of contract, civil conspiracy, and tortious interference with business relations. A few weeks later, the claims against Defendants Daves and Preston were tried to a jury. At the close of Plaintiff's case, the district court took the case from the jury and granted Defendants' motion for judgment as a matter of law. On March 4, 1997, the district court filed findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a), and entered judgment on the claims against Defendants Gregg, Vetter and the City of Edmond as follows. The district court entered judgment on the due process claim in favor of Plaintiff and against the City of Edmond and Vetter and awarded damages in the amount of $1.00. On the breach of contract claim, judgment was granted in favor of Plaintiff and against the City of Edmond, and damages of $1.00 were awarded. The district court entered judgment against Plaintiff and in favor of Defendants on the remaining claims.

II. First Amendment

Plaintiff alleges that Defendants Vetter, Gregg and the City of Edmond violated his First Amendment free speech rights by retaliating against him after he attempted to bring exculpatory facts regarding the Wuertz homicides to light. The district court dismissed the claim on the basis that Plaintiff's speech was not constitutionally protected and, in the alternative, that Defendants Gregg and Vetter were entitled to qualified immunity. ² Plaintiff argues that the district court erred in doing so. We review de novo the district court's dismissal for failure to state a claim upon which relief may be granted. Pelt v. State of Utah, 104 F.3d 1534, 1540 (10th Cir.1996). Under Fed.R.Civ.P. 12(b)(6), dismissal is inappropriate unless Plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Id. In conducting our review, we accept all factual allegations in the complaint as true. Roman v. Cessna Aircraft Co., 55 F.3d 542, 543 (10th Cir.1995).

A government employer cannot "condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Thus, a public employer cannot retaliate against an employee for exercising his constitutionally protected right of free speech. Id. at 146-47, 103 S.Ct. 1684. We analyze Plaintiff's free speech claim using the four-step analysis derived from Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Connick. See Gardetto v. Mason, 100 F.3d 803, 811 (10th Cir.1996). First, we must determine whether the employee's speech involves a matter of public concern. Connick, 461 U.S. at 146, 103 S.Ct. 1684. If so, we then balance the employee's interest in commenting upon matters of public concern "against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Speech is protected if the employee's interest outweighs the interest of the employer. Lytle v. City of Haysville, 138 F.3d 857, 863 (10th Cir.1998). If this balance tips in favor of the employee, the employee then must show that the speech was a "substantial factor or a motivating factor in the detrimental employment decision." Gardetto, 100 F.3d at 811. Finally, if Plaintiff makes such a showing, the employer may demonstrate that it would have taken the same action against the employee even in the absence of the protected speech. Id. The first two steps are legal questions which the court resolves to determine whether the speech is constitutionally protected. Id. The second two steps concern causation and involve questions of fact. Id.

In his complaint, Plaintiff alleges that because of his comments about the Wuertz investigation, Defendants transferred him to the patrol division and denied him weekends off. Plaintiff argues that these actions violated...