776 F.2d 761 (8th Cir. 1985), 84-1261, Germann v. City of Kansas City

Docket Nº:84-1261.
Citation:776 F.2d 761
Party Name:John GERMANN, Appellant, v. CITY OF KANSAS CITY, Hon. Richard Berkley, Robert Kipp, John Waas, Thomas Lewinsohn, Edward Wilson, Appellees.
Case Date:November 06, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 761

776 F.2d 761 (8th Cir. 1985)

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

November 6, 1985

Submitted Jan. 16, 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.

Page 762

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.

Page 763

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...

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