Schneider v. City of Atlanta (Bureau of Corrections), 78-3540

• Decision Date: 24 October 1980
• Docket Number: No. 78-3540,78-3540
• Citation: 628 F.2d 915
• Parties: 24 Empl. Prac. Dec. P 31,345 Deborah J. SCHNEIDER, Plaintiff-Appellee Cross-Appellant, v. The CITY OF ATLANTA (Bureau of Corrections), Defendant-Appellee, and J. D. Hudson, Ind., etc., Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 915

628 F.2d 915

24 Empl. Prac. Dec. P 31,345

Deborah J. SCHNEIDER, Plaintiff-Appellee Cross-Appellant, v. The CITY OF ATLANTA (Bureau of Corrections), Defendant-Appellee, and J. D. Hudson, Ind., etc., Defendant-Appellant Cross-Appellee.

No. 78-3540.

United States Court of Appeals, Fifth Circuit.

Oct. 24, 1980.

Rehearing Denied Dec. 8, 1980.

Ferrin Y. Mathews, Bernard R. Thomas, Pamela J. Robinson, Atlanta, Ga., for Hudson, etc.

Joseph H. King, Jr., Atlanta, Ga., for plaintiff-appellee cross-appellant.

Bernard R. Thomas, Associate City Atty., Atlanta, Ga., for City of Atlanta.

Appeals from the United States District Court for the Northern District of Georgia.

Before KRAVITCH, FRANK M. JOHNSON, Jr. and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

Deborah Schneider filed suit against the City of Atlanta, the Bureau of Corrections of Atlanta, and the Director of the Bureau of Corrections, J. D. Hudson, alleging (1) that she suffered racial discrimination in violation of 42 U.S.C. §§ 1981 and 1983 and (2) that she was constructively discharged for exercising her First Amendment rights in violation of § 1983 and the Fourteenth Amendment. ¹ At trial, the jury found against her on the claim of racial discrimination, but returned a verdict in her favor on the claim that she was constructively discharged for exercising her First Amendment right of freedom of speech, finding that she suffered $6,000 actual damages. Judgment in the amount of $6,000 was initially entered in plaintiff's favor against the City of Atlanta and Director Hudson.

Because this case was tried before the Supreme Court's decision in Monnell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (holding that municipalities are "persons" under § 1983 and are, therefore, subject to suit under that statute), the district court granted the city's motion for judgment notwithstanding the verdict in view of our en banc decision in Davis v. Passman, 571 F.2d 793 (5th Cir. 1978), rev'd 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), in which we held that a direct cause of action for sex discrimination would not be implied under the due process clause of the Fifth Amendment. ² After Monnell was decided, the plaintiff moved the district court to reinstate its judgment against the City of Atlanta under a § 1983 theory, since the district court had previously determined that the jury's verdict against Director Hudson, which found a violation of First Amendment rights, could be predicated under either an implied cause of action directly under the Constitution or § 1983. The district court denied this motion, finding that plaintiff had presented no evidence at trial tending to show that the violation of her First Amendment rights occurred in furtherance of an official policy or custom of the City of Atlanta.

Director Hudson brings this appeal contending (1) that the evidence was insufficient to support the jury's verdict of constructive discharge because of plaintiff exercising her First Amendment rights and (2) that the district court improperly instructed the jury, over objection, as to the standard to be applied in determining the extent of control a public employer may exercise over the expressions of its employees. ³ Plaintiff cross-appeals contending (1) that the City of Atlanta should be liable under § 1983 because the conduct of Hudson constituted a policy of the city and (2) that the district court should have enhanced the award of attorney's fees, which was based on an hourly rate, because of the contingent nature of the recovery. Because we conclude that the district court committed plain error in submitting to the jury the question of whether plaintiff's First Amendment rights were infringed, we reverse and remand.

I.

Deborah Schneider was employed intermittently from September 1973 through December 1975 as a Correctional Officer I with the City of Atlanta's Bureau of Corrections. Her duties there consisted primarily of guarding prisoners housed in the detention facilities of the city. Concerned with what she considered to be improper treatment of the prisoners and unsatisfactory conditions of employment, including the arbitrary changing of days off without adequate notice and the noncompliance with established grievance procedures, the plaintiff in September of 1975 suggested to several other officers the possibility of a "sick out" to protest these conditions. Such a "sick out," however, never occurred. Approximately two weeks later plaintiff was promoted to a supervisory position of "acting sergeant." Almost immediately after her promotion was announced, however, Director Hudson became aware of Schneider's past criticisms of jail policies and, specifically, of her attempts to organize a "sick out," and, as a result, rescinded the promotion and transferred her to the city prison farm. The record reflects that such a transfer was considered a form of punishment. Thereafter she alleged that her life was made increasingly miserable. Her shift was changed repeatedly at the prison farm, and her day off requests were repeatedly denied. Also she was not allowed to take any of her accrued vacation days. The plaintiff testified that she resigned after it became clear she no longer had a future as a corrections officer. This, she contends, constituted a constructive discharge.

II.

The district court instructed the jury as follows:

"Now, with regard to the second claim in this case, ladies and gentlemen, charging a denial of freedom of speech, the plaintiff must prove by a preponderance of the evidence that the defendants knowingly and intentionally violated clearly established First Amendment rights of the plaintiff by retaliating against her in terms and conditions of employment because she exercised otherwise protected First Amendment rights.

"In order, ladies and gentlemen, for the plaintiff to establish that she was constructively discharged, she must prove by a preponderance of the evidence that the sole basis for her resignation was the acts of the defendants which were such as to create working conditions so intolerable that she was forced into involuntary resignation.

"(T)he real question, is therefore, not whether or not she was discharged, but whether or not she was discharged, if she was discharged, in reprisal or punishment for having violated or exercised her right to freedom of speech.

"I charge you, ladies and gentlemen, that as a general rule, a person has an absolute right to express his or her opinion on any subject, and to advocate any course of action he or she deems appropriate. This is part of the basic constitutional guarantee of freedom of speech. This right of speech extends even to the general advocacy of a course of action which might be against some law, except in the very unusual case where such advocacy is directing, directed toward inciting or producing imminent and immediate unlawful conduct, and is likely to incite or produce such action.

"I charge you, ladies and gentlemen, in this respect, that a governmental employer may exercise some control over the expressions, public expressions of its employees, when it is in the interest of the state in promoting efficient public service.

"I charge you, however, that where a governmental agency does exercise control over the expression of its employees, such exercise must be limited to the minimum necessary to carry out the public interest. And before a public employer can exercise such control over the expressions of employees, there must be a clear and present danger that such expression, if allowed, will endanger the public interest." (Emphasis added.)

Appellant contends that the district court used an incorrect standard in charging the jury as to the First Amendment claim. We agree. In determining whether a public employer may inhibit its employees' rights of free speech, a balancing test is to be applied. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); Porter v. Califano, 592 F.2d 770, 772 (5th Cir. 1979); Smith v. United States, 502 F.2d 512, 516-17 (5th Cir. 1974); Battle v. Mulholland, 439 F.2d 321, 324 (5th Cir. 1971).

In Pickering, the Court stated: "The problem in any case is to arrive at a balance between the interests of the (public employee), as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." 391 U.S. at 568, 88 S.Ct. at 1735. This is the test that should have been applied in this case. Moreover, the question of whether the plaintiff was constructively discharged for reasons that impermissibly abridged her First Amendment rights is ultimately a question of law for the trial court. Williams v. Board of Regents of University System of Georgia, 629 F.2d 993, 1003 (5th Cir. 1980) (holding that the "ultimate balancing of interests of citizen and state with regard to first amendment protection . . . remains in the sphere of the court."). Specifically, it is a question of law whether plaintiff's attempt to organize a "sick out" among her fellow employees is protected speech under the First Amendment. ⁴ See Pennekamp v. Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 1031, 90 L.Ed. 1295 (1946), wherein the Supreme Court stated:

"The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circumstances under which they were made to see whether or not they do carry a threat of clear and present danger to the impartiality and good order of the courts or whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth...