Palmer v. City of Monticello, 91-4221

• Decision Date: 30 June 1994
• Docket Number: No. 91-4221,91-4221
• Citation: 31 F.3d 1499
• Parties: 40 Fed. R. Evid. Serv. 1327 Brett G. PALMER, Plaintiff-Appellee, v. CITY OF MONTICELLO and Kent Adair, individually and as Chief of Police, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1499

31 F.3d 1499

40 Fed. R. Evid. Serv. 1327

Brett G. PALMER, Plaintiff-Appellee, v. CITY OF MONTICELLO and Kent Adair, individually and as Chief

of Police, Defendants-Appellants.

No. 91-4221.

United States Court of Appeals,

Tenth Circuit.

June 30, 1994.

Peter Stirba of Stirba & Hathaway, Salt Lake City, UT, for defendants-appellants.

Erik Strindberg and Martha S. Stonebrook of Cohne, Rappaport & Segal, Salt Lake City, UT, for plaintiff-appellee.

Before EBEL and HOLLOWAY, Circuit Judges, and COOK, ^* District Judge.

HOLLOWAY, Circuit Judge.

The City of Monticello, Utah, and its Chief of Police, Kent Adair, appeal a judgment on a jury verdict for the plaintiff, Brett Palmer, a former Monticello police officer. Palmer brought this action under 42 U.S.C. Sec. 1983, claiming his due process rights were violated when he was terminated from employment as a Monticello police officer. A state law claim was also made but is not involved now. The jury awarded Palmer $1 in damages from Adair and $253,188 from the city, 731 F.Supp. 1503. Both defendants moved for judgment NOV, a new trial, or remittitur. The district court denied that motion and defendants appealed.

I

Stan Olsen, a Utah Highway Patrol Officer who occasionally rode with Palmer as a backup officer after his highway patrol duties were finished, made a statement to one of his superiors accusing Palmer of falsifying a speeding ticket on the night of March 28, 1987. The accusation was not made by Olsen until some 20 months after the alleged incident. The accusation was reported to Chief Adair in late November 1988. Brief of Appellants at 4. Adair made his own investigation of the charge. Adair brought the accusation to Palmer's attention, and Palmer denied having falsified the ticket. This occurred at a meeting also attended by the Mayor of Monticello and the city attorney. Palmer was told he could have an attorney present but he declined.

As part of Adair's investigation, Adair asked Palmer to take a polygraph examination. Palmer agreed on the condition that Olsen take one as well. The polygraphs were administered on January 19, 1989, and the results apparently indicated that Olsen was more likely being truthful than Palmer. Adair found out that there was a record that the ticket in question issued to a Stephen Benton was paid. Supp.App. at 134; II App. at 373. That same driver had earlier the same evening been ticketed for speeding by another officer, and that ticket was also paid. Id. at 135. Adair gave Palmer a letter of termination on January 20, 1989. That letter mentioned several alleged transgressions by Palmer (all quite old), but stated that the ticket in question was enough to justify his termination.

A city council meeting was held on January 24, 1989, which Palmer attended. There was testimony at trial that before the meeting started, Palmer was asked whether he wanted counsel and he replied that "he didn't need any." II App. 446, 447. The council heard testimony regarding the incident by Palmer and Adair. Olsen was not present and no means of confronting or questioning him was made available at the meeting. Adair stated at the council meeting that the allegation from Olsen was that the man was not speeding, he was going 53 or 54 mph in a 55 mph zone, and that Palmer ran up the speed, using his patrol car speed, and locked that in. II App. at 368. At the same meeting, Palmer gave his version of the incident. He said that for the fourth time, he maintained he was not guilty of making a fraudulent radar stop. Id. at 377. Palmer said that when the car went by "I [got] a 68." Id. at 381.

After the hearing of January 24, one council member discussed Palmer with several people, asking them whether the city had problems with Palmer. It is not clear whether he actually spoke about the accusations against Palmer specifically or whether the people he spoke with already knew about them. See Appellee's Supp.App. at 119-122. That councilman also conducted several "road tests" to check out the viability of Palmer's story about the ticket. See id. at 123-125.

During the evening of January 25, 1989, the city council had a meeting which was attended by between 25 and 30 members of the public, as well as one newspaper reporter. Id. at 127. There is evidence that the council discussed the charges against Palmer with observers at that meeting. See id. at 119-127. The council then went into executive session, came back into public session, and voted to uphold Palmer's termination. Palmer was informed by a letter delivered to Palmer on January 26, 1989. II App. at 419-20. According to the defendants, at that time the city manager offered Palmer another hearing at which he could have an attorney and witnesses present, but Palmer declined. The city manager later informed Palmer that he should retain his own attorney to determine what rights of appeal he had, if any.

Palmer filed this action on April 6, 1990. He claimed that the defendants had violated Sec. 1983 by publicizing false and stigmatizing information about the grounds for his termination, and by depriving him of fair and adequate pre- and post-termination notices and hearings. On October 19, 1990, while this Sec. 1983 action was still pending in the district court, the city gave Palmer's attorneys a "Notice of Due Process/Name Clearing Hearing." I App. 91-93. This was to be held before a state administrative law judge (paid by the city) to determine the propriety of Palmer's termination and the procedures followed. Palmer declined to attend, but the city went forward with the hearing in his absence on October 31 and November 1, 1990. The ALJ issued a 37-page written opinion, finding that the city had acted properly in all regards.

The jury, however, found for Palmer and awarded him damages. The jury responded to special interrogatories and found that Chief Adair had deprived Palmer of a liberty interest without adequate notice and hearings; that the city had deprived Palmer of either a liberty or property interest, or both, without adequate notice and hearings; and that Palmer had not proved that the city terminated Palmer's employment without cause in violation of an implied contract between him and the city. The defendants moved for judgment notwithstanding the verdict, for a new trial, or a remittitur. All such relief was denied and this appeal followed.

II

Palmer claimed, and the jury found, that the defendants had deprived him of a liberty interest without adequate notice and hearings. ¹ The defendants argue that Palmer failed to present sufficient evidence on two of the required elements of this claim, thus entitling them to a directed verdict or judgment notwithstanding the verdict, which they sought by the motion below that was denied. Specifically, "Defendants contend that Palmer failed to prove that the statements were false and that they were made public." Brief of Appellants at 10-11.

In reviewing the denial of a motion for judgment NOV, we must decide whether there is evidence in the record on which the jury could properly have found for Palmer. See Aguinaga v. United Food and Commercial Workers Int'l Union, 993 F.2d 1463, 1469 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 880, --- L.Ed.2d ---- (1994); Goodwin v. Enserch Corp., 949 F.2d 1098, 1100-01 (10th Cir.1991). In making that inquiry we must view the evidence and all inferences in the light most favorable to Palmer, the non-moving party, and we must be guided by the requirements of the underlying cause of action. See Goodwin, 949 F.2d at 1100-1101.

To support a claim for deprivation of a liberty interest, the plaintiff must show that a public employer took "action to terminate an employee based upon a public statement of unfounded charges of dishonesty or immorality that might seriously damage the employee's standing or associations in the community and foreclose the employee's freedom to take advantage of future employment opportunities...." Rusillo v. Scarborough, 935 F.2d 1167, 1171 (10th Cir.1991) (quoting Melton v. City of Oklahoma City, 928 F.2d 920, 927 (10th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 296, 116 L.Ed.2d 241 (1991), and cert. denied, --- U.S. ----, 112 S.Ct. 296, 116 L.Ed.2d 241 (1991), and cert. denied, --- U.S. ----, 112 S.Ct. 296, 116 L.Ed.2d 241 (1991), and cert. denied, --- U.S. ----, 112 S.Ct. 297, 116 L.Ed.2d 241 (1991)). The plaintiff need not prove actual loss of a job opportunity; it is sufficient to prove termination based on a publicized false charge of sufficient opprobrium that would make the plaintiff an unlikely candidate for employment. See Melton, 928 F.2d at 927 n. 11. We are satisfied that an accusation that a police officer falsified a speeding ticket qualifies as a stigmatizing charge which amply supports that element of a liberty interest violation. ²

We turn to the defendants' two specific challenges to the proof on the liberty interest claim. As noted, they say first that Palmer failed to prove the statements in the accusation were false. We are satisfied that there was ample evidence the jury could have relied on to find that the accusation was false. See II App. at 377, 380-81, 398-99, 406. The defendants do not analyze that evidence and instead base their attack on Palmer's claim of a false accusation on inferences they draw from the jury's response to Special Verdict Question No. 5, i.e. whether plaintiff proved that the city "terminated plaintiff's employment without cause in violation of an implied contract...." The jury answered "no" and defendants infer that the jury thus found that the statements in the accusation were not false. Brief of Appellants at 11.

We disagree. The jury could have logically found against Palmer on the implied contract claim without finding that the accusation was not false. ³ Thus the proof of falsity of the accusation is not undermined by these arguments of the defendants.

The defendants' second challenge to...