Brochu v. City of Riviera Beach

• Decision Date: 05 September 2002
• Docket Number: No. 01-15262.,01-15262.
• Citation: 304 F.3d 1144
• Parties: Edward BROCHU, Plaintiff-Appellee, v. CITY OF RIVIERA BEACH, Defendant-Appellant, William Hunter, Dennis Widlansky, et al., Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

304 F.3d 1144

Edward BROCHU, Plaintiff-Appellee, v. CITY OF RIVIERA BEACH, Defendant-Appellant William Hunter, Dennis Widlansky, et al., Defendants.

No. 01-15262.

United States Court of Appeals, Eleventh Circuit.

September 5, 2002.

COPYRIGHT MATERIAL OMITTED

Jacob Addington Rose, Rose Law Firm, West Palm Beach, FL, Sylvia H. Walbolt, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Saint Petersburg, FL, James R. Wiley, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, FL, for Defendant-Appellant.

Karen Coolman Amlong, William Robert Amlong, Amlong & Amlong, P.A., Fort Lauderdale, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and KRAVITCH,

Circuit Judges, and DOWD^*, District Judge.

DOWD, District Judge:

This case involves a claim by a former employee of the City of Riviera Beach police department that he was subjected to adverse employment actions in retaliation for conduct protected by Title VII and by the First Amendment. The case was tried to a jury. Defendant-appellant, City of Riviera Beach, appeals from the district court's partial judgment and final judgment in favor of plaintiff-appellee, Edward Brochu, and from orders denying motions for judgment as a matter of law and for a new trial.

We write at some length to provide guidance as to the appropriate procedures for district courts to follow in cases of this kind which involve the balancing an employee's right to function as a citizen in a free society against a public employer's right and need to maintain reasonable control over the effectiveness of the services it provides.

In light of our discussion below, we reverse the judgment of the district court and remand for entry of judgment in favor of the City.

I.

A.

In 1987, plaintiff-appellee, Edward Brochu ("Brochu"), was hired by the City of Riviera Beach ("the City") as a police officer. While he was employed full-time by the City police department, Brochu earned an undergraduate degree in human resource management and a graduate degree in business administration. After serving in several different capacities within the department, Brochu was eventually promoted to Lieutenant in the Detective Division on April 29, 1996.

About a month before his promotion in 1996, Brochu was approached by Lieutenant Blase Pfefferkorn about the possibility of assisting the FBI with an ongoing investigation into alleged corruption in the City police department. One target of the investigation was Major David Harris, Brochu's supervisor. Brochu began assisting with the investigation in March 1996 and, in June or July 1996, he informed Jerry Poreba, the Chief of Police, about his involvement.¹

Even though Brochu believed that Poreba had informed Harris about the investigation, Harris testified at trial that he learned it from Sergeant Richard Sessa.² In any event, Harris confronted Donatto with his knowledge of the investigation; at that time, she simply denied any involvement, but reported the confrontation to Poreba. Her relationship with Harris immediately began to deteriorate. Some time later, after Donatto had what she thought was a confidential meeting with Acting City Manager Dennis Widlansky wherein she complained about Harris, Harris called a mandatory staff meeting and angrily reported to everyone that he was not going to stand for people questioning his integrity.

While all of this was developing, two other relevant matters were occurring. First, a white officer named Steven Lobeck was suing the City police department for alleged reverse race discrimination in discipline and, second, the police union ("the PBA")³ was actively supporting candidates for the March 1997 City Council elections.

With respect to the Lobeck litigation, Brochu was subpoenaed for a deposition on December 5, 1996. He told Chief Poreba's in-house lawyer, Mr. Russell, about the subpoena. The City's outside counsel, Mr. Williams, was present at the deposition, where Brochu testified critically about the police department. As Brochu returned to Riviera Beach following the deposition, he was paged by Pfefferkorn, who informed him that "they" were angry about the testimony and that Brochu was to be transferred from the detective division to road patrol.⁴ On December 6, 1996, a memo was posted indicating the transfer, which would be effective on Sunday, December 8, 1996. Brochu ended up on the midnight shift of road patrol.

This transfer resulted in no change in rank or salary; however, Brochu testified that it was less prestigious than a detective position and resulted in the loss of certain benefits.⁵ Not long after this transfer, Brochu was also removed from his roles as public information officer and chairman of the awards committee, which resulted in loss of overtime opportunities.

Chief Poreba testified that it was his practice to routinely reassign officers so as to avoid development of what he called "tunnel vision." According to Poreba, this occasional reassignment helped officers keep a fresh perspective. Transfer was neither a form of discipline nor necessarily an expression of displeasure with an officer's work, although it was often perceived as both by the transferee. Poreba further testified that reassignments were typically announced toward the end of the week and generally took effect on Sunday, the beginning of the pay period.

In this case, Poreba stated that he decided to transfer Brochu because he had attitude problems and difficulty getting along with both managers and co-workers.⁶ The official reassignment was made on December 6, 1996, a Friday. Poreba also testified that he was under the impression that Brochu himself chose the midnight shift and was able to do so because he had seniority. He further testified that Brochu was removed as public information officer because that position was always held by a detective, who was most likely to be available when public information needed to be disseminated. Finally, he stated that he did not remove Brochu alone from the awards committee; rather, in a memo dated January 10, 1997, he replaced the entire committee, thanking the former members for "a job well done."

The second set of circumstances developing during the relevant time period relates to the PBA's long-time involvement in municipal politics. Its involvement typically included supporting candidates for office. Although, in 1994, it had used its influence to oust then-Chief Brooks and replace him with Poreba, in late 1996, the PBA published a survey showing disenchantment with Poreba's leadership.⁷ Poreba went on local radio and complained that the PBA's survey was a publicity stunt aimed at meddling in police affairs and removing him as chief. He also stated that the PBA was not going to run his department. Poreba testified at trial that he knew as early as 1996 that the PBA was "after him."

In November 1996, Brochu's colleague, Lieutenant Michael Gilles, the local PBA representative, asked Brochu to help support three candidates in the March 11, 1997 city council elections. These particular candidates would apparently support the PBA's goal of removing Poreba and would also favor cleaning up alleged corruption in the police department. Gilles asked Brochu to work with him and Don Hendrickson, a civilian with aspirations to be appointed city manager,⁸ to draw up a "business plan" for the elections. The true nature of this plan has been a pivotal dispute in this litigation. The City has argued consistently that the business plan was really a plan to take over the police department.⁹

Presuming the slate of favored candidates won their elections to city council, and presuming they would then replace the existing city manager with Don Hendrickson, the plan then called for Chief Poreba's removal. He would be replaced by Gilles. The positions of assistant chief and major would be eliminated and replaced by captains, those positions being assumed by Brochu and other officers sympathetic to the cause.¹⁰

The plan also included a news release announcing all of the changes and announcing the beginning of an investigation into allegations of police corruption and mismanagement of the department. Under the plan, Brochu was to lead this investigation. The existing policies and procedures of the department would be replaced with ones drafted by Brochu. Poreba and the other officers targeted for removal would be required to immediately turn over their badges, weapons, keys, vehicles, phones, calendars, and files, and be thereafter placed on administrative leave and confined to their residences from 9:00 a.m. to 5:00 p.m. on weekdays, apparently without any findings of cause for their removal.

Although Gilles and Brochu intended to keep the plan secret until its implementation after the March 1997 election, one night at Brochu's house, very shortly before the election, they showed the plan to Don Hendrickson, the man interested in becoming city manager. Hendrickson testified that he was actually "shocked" by the plan, that he had absolutely no input into its development, and that he had never sought any advice from Brochu, Gilles, or Pfefferkorn about how to organize and run a police department.

Hendrickson also testified about events leading up to the revelation of Brochu's plan. He reported that, sometime in 1996, he was invited to a meeting at the home of Bud Beer¹¹ where he met with Beer and his wife, along with Brochu and Gilles. Brochu produced boxes of what appeared to be confidential police reports about various officers and events. Hendrickson said that the point of the meeting was to impress upon him that the police department was in trouble; however, he testified that he was not convinced because he knew many of the allegedly "corrupt" officers personally.

Hendrickson also testified that, about three or four weeks before the March 1997 city council election, he was invited to the home of...