Germann v. City of Kansas City, 84-1261

• Decision Date: 27 December 1985
• Docket Number: No. 84-1261,84-1261
• Citation: 776 F.2d 761
• Parties: 120 L.R.R.M. (BNA) 3178, 54 USLW 2292 John GERMANN, Appellant, v. CITY OF KANSAS CITY, Hon. Richard Berkley, Robert Kipp, John Waas, Thomas Lewinsohn, Edward Wilson, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 761

776 F.2d 761

120 L.R.R.M. (BNA) 3178, 54 USLW 2292

John GERMANN, Appellant, v. CITY OF KANSAS CITY, Hon. Richard Berkley, Robert Kipp, John Waas, Thomas Lewinsohn, Edward Wilson, Appellees.

No. 84-1261.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 16, 1985.

Decided Nov. 6, 1985.

Rehearing and Rehearing En Banc Denied Dec. 27, 1985.

Sandra C. Midkiff, Kansas City, Mo., for appellant.

Dan Jackson, Kansas City, Mo., for appellees.

Before HEANEY, ROSS and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

John Germann appeals from a final judgment entered in the District Court ¹ for the Western District of Missouri in favor of the City of Kansas City, Missouri, Edward Wilson and John Waas. Germann v. City of Kansas City, 579 F.Supp. 180 (W.D.Mo.1984). For reversal appellant argues that the district court erred in failing to find that appellees violated his federal constitutional and state statutory rights by denying him promotions to the rank of battalion chief in the City of Kansas City, Missouri, fire department between September 1977 and September 1979. Appellant alleged that appellees had denied him promotions because of protected first amendment activities. For the reasons discussed below, we affirm the judgment of the district court.

Appellant has been employed by the fire department since 1961. In July 1971 he was promoted to the rank of fire captain. In addition, from 1976 until 1981, appellant was president of the firefighters' union, International Association of Firefighters, AFL-CIO, Local No. 42.

The fire department is part of the municipal government of the City of Kansas City and is supervised by the director of fire and the fire chief. Appellee John Waas was fire chief at all times relevant to this action. Since Waas's retirement in 1980, Edward Wilson has been fire chief.

Below the rank of fire chief in order of command are deputy fire chiefs, battalion fire chiefs, fire captains, fire apparatus operators, and firefighters. Battalion chief is the lowest level management position. Promotion from fire captain to battalion chief is regulated by the city charter, administrative code, and personnel regulations. Candidates are ranked on a promotion eligibility list on the basis of written test results. Whenever a vacancy occurs, the deputy fire chiefs conduct personal interviews of the first five candidates on the list. The fire chief then appoints the battalion chief from the five candidates.

During the time period relevant to this action, the fire department experienced great turmoil and received much media attention. In October 1975 the union conducted a four-day strike. At this time all management level employees except for fire chief were members of the union; thus, during the strike Chief Waas was the only professionally trained firefighter on duty for the city.

Following the strike, in 1976 the union and the city entered into a "Memorandum of Understanding," which, among other things, prohibited management level employees from belonging to the union. In the memorandum the union and the city agreed to make good faith efforts to implement a plan of reorganization of the fire department. The plan included a work schedule change which caused a great deal of friction between the union and the city. In an attempt to resolve conflict in implementing the plan and the memorandum, appellant, as president of the union, and Waas, as fire chief, served as cochairpersons of the Labor/Management Committee. From July 1976 until May 1979, appellant frequently and vigorously opposed Waas, contending that the manner in which Waas was implementing the plan violated union members' rights.

On May 6, 1977, Waas wrote the following letter to appellant in his capacity as union president:

This is to register my objection to the officers of Local # 42 of the fire fighters' union making frequent visits to the Deputy Chief's office at Fire Station # 10 to obstruct and try to alter the operation of the Fire Department.

This practice is in direct violation of the Memorandum of Understanding, which sets forth a Labor/Management Committee to review procedures. I respectfully request that you refrain from any further such practice.

Copies of the letter were mailed to certain city and fire department officials.

On May 11, 1977, appellant responded to Waas by the following letter, which provided in part:

In answer to your letter of May 6, how dare anyone who has done as much as you to tear the Kansas City fire department to shreds accuse someone else of attempted obstruction or alteration. With your hand at the controls, the Kansas City Fire Department could not possibly be more completely obstructed by anyone else on the face of the earth.

Nothing would suit me better than to have a Fire Chief who would read and understand his own rules, give his word on an issue and then not violate his own word by his every action as you have....

....

If you are really interested in seeing the Memorandum upheld, I suggest some study courses for yourself and the rest of the chief officers under the direction of someone who does not carry such a pitifully twisted outlook toward the employees of the department as you seem to have developed.

Appellant mailed copies of his letter to the officials who had received Waas's letter and to the attorneys for the city and the union.

During the period from September 1977 until September 1979, appellant was ranked first on the promotion eligibility list for battalion chief. It is undisputed that appellant was qualified for the position. Waas, however, did not appoint appellant to any of the seven vacancies that occurred during this period.

Appellant then filed an action in district court pursuant to 42 U.S.C. Sec. 1983, alleging that appellees violated his rights under the first and fourteenth amendments by denying him promotions in retaliation for protected union activities. In addition, appellant asserted as a pendent state claim a violation of Mo.Rev.Stat. Sec. 105.510 (1978), which prohibits discrimination against public employees because of certain permitted union activities.

At the bench trial Waas testified that he had not promoted appellant to battalion chief because he questioned appellant's loyalty and whether appellant would work under him to implement his policies. Waas believed that discipline, morale, and efficiency in the fire department depended upon respect being shown to rank. In addition, Waas stated that he relied on management employees to implement his policies on a day-to-day basis in the field.

In support of his belief that appellant would be unsuitable as a management employee, Waas cited appellant's May 11 letter. Waas found the letter personally insulting and an inappropriate response to his letter of May 6. In addition, Waas testified to a 1979 incident which confirmed his belief that appellant did not respect and would therefore not support him as fire chief. The district court credited Waas's testimony that in 1979 appellant came to Waas's office to inquire why he had not been promoted. After Waas did not respond, appellant became hostile and called Waas a "chicken shit." Waas also testified that he believed that appellant had not wanted a promotion to battalion chief. The district court credited Waas's testimony about a 1978 telephone conversation in which appellant indicated he did not want a promotion at that time because he would have to resign as union president. The district court noted that appellant's testimony concerning the conversation revealed hostility toward and suspicion of Waas.

The district court found that appellees had not discriminated against appellant because of union activities. The district court believed that after receipt of appellant's May 11 letter, Waas was justified in not promoting appellant to battalion chief. Applying the balancing test set forth in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the district court held that "governmental interests in promoting the efficiency and morale of a department with a crucial public safety mission outweigh [appellant's] interest in speaking in the manner, time, and place which he chose." Germann v. City of Kansas City, 579 F.Supp. at 187. Because the district court found that appellees had not discriminated against appellant on the basis of union activity, the district court dismissed his pendent state claim.

This court has recently stated that " 'the first amendment is violated by state action whose purpose is ... to intimidate public employees ... from taking an active part in [union] affairs or to retaliate against those who do.' " Roberts v. Van Buren Public Schools, 773 F.2d 949, 957 (8th Cir.1985) (Roberts ), citing Professional Ass'n of College Educators v. El Paso County Community College District, 730 F.2d 258, 262 (5th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 248, 83 L.Ed.2d 186 (1984). However, the court went on to state that "[a]s in the case of speech, ... an associational right [to join and participate in a union] must be balanced against, and may be overridden by, the government's interest as an employer in efficiency." Roberts, 773 F.2d at 957 (relying on Pickering v. Board of Education, 391 U.S. at 567, 88 S.Ct. at 1734).

In applying the Pickering balance, courts should consider the following factors:

(1) the need for harmony in the office or work place; (2) whether the government's responsibilities require a close working relationship to exist between the plaintiff and co-workers when the speech in question has caused or could cause the relationship to deteriorate; (3) the time, manner, and place of the speech; (4) the context in which the dispute arose; (5) the degree of public interest in the speech; and (6) whether the speech impeded the employee's ability to perform his or her duties.

Bowman v. Pulaski County Special School District, 723 F.2d 640, 644 (8th Cir.1983). It must be...