Gulden v. McCorkle, 81-1518

• Decision Date: 21 July 1982
• Docket Number: No. 81-1518,81-1518
• Parties: 29 Empl. Prac. Dec. P 32,931 Charles A. GULDEN and Richard R. Sage, Plaintiffs-Appellants, v. Monroe McCORKLE, and George Dickerson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1070

680 F.2d 1070

29 Empl. Prac. Dec. P 32,931

Charles A. GULDEN and Richard R. Sage, Plaintiffs-Appellants, v. Monroe McCORKLE, and George Dickerson, Defendants-Appellees.

No. 81-1518.

United States Court of Appeals, Fifth Circuit.

July 21, 1982.

Kenneth H. Molberg, Dallas, Tex., for plaintiffs-appellants.

Joseph G. Werner, Asst. City Atty., Dallas, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, POLITZ and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

Plaintiffs-Appellants Charles Gulden and Richard Sage appeal from an adverse decision of the trial court in their suit against Defendants-Appellees Monroe McCorkle, Director of the Dallas Public Works Department (the "Department"), George Dickerson, Assistant Director, and the City of Dallas, Texas (hereinafter collectively the "Defendants"). Sage and Gulden were discharged ¹ as employees of the Department after they refused to submit to polygraph exams requested by their Department superiors. They sued for reinstatement to their jobs and for damages. Gulden and Sage asserted that because the Defendants had failed to tender them immunity in regard to use of their polygraph answers in subsequent criminal proceedings, the Defendants had implicitly required them to waive such immunity in contravention of the fifth amendment right against self-incrimination. They alleged that they were then justified in refusing to take the polygraph exams and could not be discharged for so doing. We find that the Defendants did not require Gulden and Sage to waive, surrender or forfeit any protected fifth amendment rights, that, at all times, the relevant fifth amendment protections were available to Gulden and Sage and that they were therefore not protected from discharges premised on their refusals to submit to the exams. We affirm the judgment of the district court.

I. Facts and Proceedings Below

Gulden and Sage were employees of the Property Management Division of the Department. On the afternoon of August 14, 1978, the Dallas Employees Credit Union, another office located in the same building as the Department, received a bomb-threat. The bomb-threat forced the evacuation of the building and disrupted a retirement party for a Department employee. The bomb threat followed a series of pranks which had been played on various Property Management Division employees.

On August 16, 1978, two days after the bomb threat, McCorkle presented a memorandum to each Department employee directing him or her to submit to a polygraph examination and to sign a "waiver" ² in connection with the exam. The stated purpose of the exam according to the memorandum which accompanied the waiver was to inquire about the employee's knowledge of the bomb threat.

On August 17, 1978, McCorkle learned that the private polygraph firm administering the exams required a second waiver. ³ Dickerson distributed these forms to the employees. Gulden and Sage refused to sign either of the waivers or to take the polygraph exams. Their written reasons for refusing to submit to the exams included their beliefs that the exams "smacked of selective discrimination" and that the Defendants had no right to require such exams. Gulden and Sage were subsequently placed on administrative leave.

On August 21, 1978, Gulden and Sage filed a complaint for temporary and permanent injunctive relief against threatened discharges, for monetary damages and for reinstatement (for jobs not yet lost). They claimed that:

Defendants attempt to force plaintiffs to submit to polygraph examination(s) against their will while signing a waiver falsely stating that said submission was done voluntarily is a clear violation of plaintiffs rights against self incrimination under the 5th Amendment to the U.S. Constitution and the Texas Constitution and violates their right to due process under the 14th Amendment.

The Defendants responded:

In the instant case, the City of Dallas has sought to compel the testimony of employees about acts of harassment and retaliation directed against their supervisors. No waiver of the self-incrimination privilege has been demanded. (Emphasis added.)

On August 24, 1978, McCorkle ordered Gulden and Sage to report to the Dallas Police Department for polygraph exams. They were required to sign one of two waivers. ⁴ Gulden and Sage again refused to sign either of the two forms or to report to take the exams.

The district court, on August 28, 1978, denied the request for temporary relief stating:

Plaintiffs have not supplied the Court with enough information at this time concerning their charges of harassment to justify imposing a temporary restraining order. I also find that the constitution does not prohibit the City of Dallas from requiring the Plaintiffs' participation in a polygraph examination. While the city asserts that it will ask narrow and specific questions of the Plaintiffs at the polygraph examination, I cannot at this time prejudge whether or not the questions are permissible under Gardner or whether Plaintiffs may validly assert their privilege against self-incrimination at the polygraph examination.

On August 29, 1978, Gulden and Sage were discharged by the Defendants.

Gulden and Sage continued the prosecution of their lawsuit, requesting reinstatement and damages. They asserted that they were "discharged for exercising their protected right to refuse to answer questions and to take polygraph tests under circumstances amounting to a denial of their civil rights as guaranteed by the Fifth and Fourteenth Amendments...." They also asserted that the questions to be asked were not related to their "official duties" and that they could not be discharged for refusing to answer these impermissible questions.

A bench trial was held. The district court issued findings of fact and conclusions of law, entering judgment in favor of the Defendants. The court, in its findings of fact, stated that the questions to be asked on the exams were sufficiently "job related." Furthermore, according to the court:

There was no evidence that the Defendants demanded that Plaintiffs expressly waive their rights to invoke the Fifth Amendment's right to be free from self-incrimination and thereby relinquish the right to exclude from evidence in any subsequent criminal proceeding any statements which they might have made during the polygraph examination. There is no state statute, city ordinance or city personnel rule that purports to create any such waiver.

The acts of the Defendants did not condition Plaintiffs' continued employment upon the relinquishment of their right to exclude their own testimony from evidence in a criminal proceeding and did not in any way deprive the Plaintiffs of their Fifth Amendment privilege against self-incrimination.

Plaintiffs were discharged because of their refusal to answer questions specifically, directly and narrowly relating to the performance of their duties.

In its conclusions of law the court stated:

In the case at bar, the questions asked on the polygraph exam were purely job-related. Moreover, the waivers at issue can in no way be construed as requiring Plaintiffs to relinquish their constitutional right against self-incrimination. The waivers speak merely to the fact that the examinee has consented to take the exam. The Public Works Department waiver specifically recites that the examinee is being ordered to take the examination, and the waiver required by the firm conducting the polygraph specifically gives an examinee the right to discontinue the exam at any time.

The Fifth Amendment does not require that an employee be advised that evidence obtained as a result of his testimony will not be used against him. It requires only that an employee be advised if it will be used against him, and further that an employee may not be dismissed for refusing to waive his right against self-incrimination. Had the Plaintiffs in this action submitted to the polygraph, and had there been an attempt to use that testimony against them in a criminal proceeding, Plaintiffs' constitutional rights would have been adequately protected by (the) holding in Garrity, supra, that testimony compelled by the threat of dismissal may not be used against them in a subsequent criminal action.

Gulden and Sage appeal, claiming not that they were asked to sign waivers, on penalty of job loss, which called for a surrender of their fifth amendment rights, but that the Defendants failed to make an affirmative tender of immunity to them, thus assuring them that their compelled answers could not be used in subsequent criminal proceedings against them. Gulden and Sage assert that this affirmative tender is required by controlling Supreme Court decisions, that, in the absence of such tender, their right to be free from self-incrimination was in jeopardy, and that they were justified in refusing to take the exams and could not be discharged for so doing. ⁵ They also challenge the court's finding that the questions were specifically, directly and narrowly related to the performance of their official duties. We address each argument in turn.

II. Fifth Amendment Concerns

We begin our review with a brief summary of the relevant Supreme Court decisions which provide guidance for our decision today. When public employees are "compelled to testify by the threat that otherwise (they) (will) be removed from office, the testimony that (they give can) not be used against (them) in a subsequent prosecution." Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Furthermore, in a series of four decisions, the Court has held that a public employee cannot be compelled to answer questions concerning his or her official duties and also be compelled by threat of loss of job to waive the immunity guaranteed in Garrity. Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) ("Lefkowitz...