684 F.2d 1365 (11th Cir. 1982), 81-7536, Clemons v. Dougherty County, Ga.

Docket Nº:81-7536.
Citation:684 F.2d 1365
Party Name:Ernest Leon CLEMONS, Plaintiff-Appellant, v. DOUGHERTY COUNTY, GEORGIA, et al., Defendants-Appellees.
Case Date:September 07, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1365

684 F.2d 1365 (11th Cir. 1982)

Ernest Leon CLEMONS, Plaintiff-Appellant,

v.

DOUGHERTY COUNTY, GEORGIA, et al., Defendants-Appellees.

No. 81-7536.

United States Court of Appeals, Eleventh Circuit

September 7, 1982

Page 1366

Sinnreich & Francisco, Elizabeth R. Francisco, Elizabeth Ballou Gibbs, Macon, Ga., for plaintiff-appellant.

C. Nathan Davis, Eugene C. Black, Sr., Albany, Ga., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before TUTTLE, TJOFLAT and CLARK, Circuit Judges.

TJOFLAT, Circuit Judge:

Ernest Leon Clemons, formerly a sergeant in the Police Department of Dougherty County, Georgia, brought this action under 42 U.S.C. § 1983 against Dougherty County, the Dougherty County Chief of Police, and five of the seven members of the County Board of Commissioners. He alleged that his discharge from the police department, which was ordered by the Chief and approved by a majority of the Board of Commissioners, 1 was impermissibly based on his exercise of his first amendment right to freedom of speech and deprived him of liberty 2 without due process in violation of the fourteenth amendment. After the parties had conducted substantial

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discovery, the defendants moved for summary judgment. The district court granted the motion and ordered the entry of judgment accordingly. We reverse.

I.

Although many of the facts are in dispute, this much is uncontested: Ernest Leon Clemons was hired as a patrolman by the Dougherty County Police Department in August 1969. In 1974, he was promoted to sergeant. In the same year, Sigmund "Swede" Hansen joined the department as Assistant Chief; he became Chief of Police in 1975. Chief Hansen subsequently had occasion to record in Clemons' personnel file a number of warnings, reprimands, and other notations of perceived deficiencies in Clemons' performance. At no time, however, was Clemons placed on probationary status or threatened with dismissal.

In February and March of 1979, the three-member Public Safety Committee (PSC) of the Dougherty County Board of Commissioners (the Board) conducted an investigation into morale problems in the police department. The investigation consisted of individual interviews with each of the approximately forty members of the department, excluding the Chief. The policemen were urged to express openly their concerns about the department, and were assured that none of their comments would ever be attributed to them individually.

When Clemons was interviewed, he was critical of Chief Hansen. He indicated that his troubles with Hansen had begun in February 1977, when the Chief cursed him for saying Hansen was incapable of running the department. He complained that Hansen had a case he had worked on nol prossed for political reasons. He asserted that Hansen frequently violated the department regulation against cursing. He complained that Hansen had removed him from the Traffic Division with inadequate justification. In addition, Clemons offered criticisms of the department which did not expressly refer to Chief Hansen. He stated, for example, that a standby investigator whom he had once called in on a case had arrived on the scene inebriated.

From the interviews, the chairman of the PSC extracted 106 complaints and criticisms of the department. Although individual officers were the subject of some complaints, Clemons was not cited as a problem. Based in significant part on the chairman's list, the PSC, on approximately March 14, 1979, issued a report critical of the police department. The report and the list were presented to Chief Hansen. The Chief publicly threatened to resign, but was dissuaded.

On March 27, 1979, Chief Hansen called Clemons into his office, informed him that he was discharged, and handed him a letter of termination. The letter ascribed Clemons' termination to his continual creation of dissension and disturbance; obstinate attitude and general lack of respect; mistreatment of junior officers; slander of fellow officers and superior officers and their families; unprofessional conduct; need for continual supervision; failure to volunteer extra effort; provocation of junior officers into violation of the department's rules and regulations; constant bickering and arguing with neighbors; and bad judgment as a seasoned officer. Clemons was the only Dougherty County policeman discharged during this period.

Clemons requested and was granted a hearing before the Dougherty County Board of Commissioners. Most of what transpired at the hearing is disputed. The witnesses whose depositions were taken in this action disagree, for example, even as to how many hearings there were: Clemons' former counsel vividly recalls two hearings, and a third session at which the Board's decision was announced; of the five commissioners who were deposed, some recall one hearing and then another session at which the decision was announced, while others recollect that there was one hearing, at the end of which a decision was announced.

In however many sessions, Clemons, represented by counsel, did appear before the Board to challenge his discharge. Chief Hansen, relying principally on the information in Clemons' personnel file, defended his decision. Clemons' attorney questioned

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Hansen, and Clemons made some remarks to the Board. A neighbor of Clemons spoke on his behalf. The Board decided to uphold the Chief's decision to discharge Clemons.

At some point after March 27, 1979, Chief Hansen notified Police Officers Standards and Training Council (POST) of Clemons' discharge. POST subsequently revoked Clemons' certification, rendering him ineligible to be a policeman in the State of Georgia.

Clemons thereafter filed his complaint in the district court, alleging that he was discharged because of his criticisms of Chief Hansen during his interview by the Public Safety Committee. Since those criticisms were protected by the first amendment, he claimed, his discharge was unlawful. Second, alleging procedural defects in his appearance before the Board of Commissioners, Clemons claimed that his discharge, which was attended by stigmatizing damage to his reputation and decertification by POST, constituted a deprivation of liberty without due process.

II.

To prevail on his first amendment claim, Clemons must establish that his comments to the Public Safety Commission were constitutionally protected and were a substantial or motivating factor in his dismissal. Should he carry that burden, the defendants must show that they would have discharged him even in the absence of the protected conduct. Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Van Ooteghem v. Gray, 628 F.2d 488, 491 (5th Cir. 1980), cert. denied, --- U.S. ----, 102 S.Ct. 1255, 71 L.Ed.2d 447 (1982). The district court, applying the criteria of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), concluded that Clemons' remarks to the PSC were within the ambit of the first amendment. 3 The appellees do not urge on appeal that Clemons' statements were not constitutionally protected, and, viewing the facts in light of Pickering, we find no reason to disturb the district court's finding for purposes of summary judgment that they were. The court went on to find, though, that there was no evidence to permit the inference that Clemons' comments to the PSC were a substantial factor in his discharge and, alternatively, that the record made clear that Clemons would have been discharged even if he had not spoken. Therefore, the court granted the defendants' motion for summary judgment on the first amendment claim.

Summary judgment should be entered only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See Impossible Electronics Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1030 (5th Cir. 1982). In reviewing a decision granting or denying summary judgment, this court applies the same legal standards as those that control the district court in determining whether summary judgment is appropriate. Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981); United States Steel Corp. v. Darby, 516 F.2d 961, 963 (5th Cir. 1975).

The party seeking summary judgment bears the exacting burden of demonstrating that there is no genuine dispute as to any material fact in the case. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970);

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Marsh, 651 F.2d at 990-91. In assessing whether the movant has met this burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608; Marsh, 651 F.2d at 991. All reasonable doubts about the facts should be resolved in favor of the non-movant. Casey Enterprises v. Am. Hardware Mutual Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981). If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial. Marsh, 651 F.2d at 991; Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir. 1969). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. Lighting Fixture & Elec. Supply Co., 420 F.2d at 1213. If reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment. Impossible Electronics, 669 F.2d at 1031; Croley v. Matson Navigation Co., 434 F.2d 73, 75 (5th Cir. 1970).

Moreover, the party opposing a motion for summary judgment need not respond to it with any affidavits or other evidence unless and until the movant has properly...

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