McMurphy v. City of Flushing

• Decision Date: 29 September 1986
• Docket Number: No. 85-1472,85-1472
• Citation: 802 F.2d 191
• Parties: Glen McMURPHY, Plaintiff-Appellant, v. CITY OF FLUSHING, and Bernard Van Osdale, Vernon Royston, Individually and Jointly, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 191

802 F.2d 191

Glen McMURPHY, Plaintiff-Appellant, v. CITY OF FLUSHING, and Bernard Van Osdale, Vernon Royston Individually and Jointly, Defendants-Appellees.

No. 85-1472.

United States Court of Appeals Sixth Circuit.

Argued July 15, 1986.

Decided Sept. 29, 1986.

Charles H. Noble (argued), Suo, Noble & Wiseman, Southfield, Mich., for plaintiff-appellant.

Lance R. Mather, Smith, Haughey, Rice & Roegge, Grand Rapids, Mich., Alan S. Brostoff, Von Briesen & Redmond, S.C., Milwaukee, Wis., Steven B. Rynecki (argued), for defendants-appellees.

Before LIVELY, Chief Judge, and WELLFORD and BOGGS, Circuit Judges.

LIVELY, Chief Judge.

A former policeman of the City of Flushing, Michigan appeals dismissal of his civil rights action arising out of his discharge from employment. In his complaint the plaintiff sought damages and an injunction restoring him to this former position with back pay and benefits. The district court conducted a two-day hearing on plaintiff's motion for a preliminary injunction. The complaint claimed deprivation of due process by failing to hold a pretermination hearing, deprivation of the First Amendment right to freedom of speech by discharging plaintiff for statements made to his superiors and to persons outside the police establishment, and violation of Michigan's Whistleblower's Protection Act.

After denying the motion for an injunction the district court received briefs and heard oral arguments on the motions for summary judgment. The district court had the transcript of testimony at the injunction hearing, and the parties supplied portions of the transcript of an arbitration hearing held as the final stage of plaintiff's grievance of his discharge. Both McMurphy and the defendants relied on portions of the arbitration transcript as well as the transcript of the injunction hearing. At the injunction hearing the parties agreed that testimony taken on that occasion could be considered by the court in ruling on the summary judgment motions. The district court denied plaintiff's motion for summary judgment and granted the motion of the defendants.

I.

A.

McMurphy began working as a full-time patrolman in 1977 after serving on a part-time basis for several years. He was suspended for 10 days on February 23, 1983 for violating departmental regulations "relative to dishonesty, insubordination, personal conduct, performance of duty, and transmission of information." The specific charge was that, in the presence of other persons, McMurphy made false statements to a newspaper reporter in which he accused the city manager of Flushing and various members of the police department of misconduct and cover ups. The incident referred to in the charges occurred in a bar when McMurphy was off duty. McMurphy told a newspaper reporter that his paper did not print the real news, but only what the city officials wanted printed. McMurphy referred to a "fire up on Beech Street," and hinted at misconduct in high places. The newspaper reporter told the chief of police about the conversation and this led to the charges for which McMurphy was suspended.

Immediately after the meeting at which he was notified of the suspension McMurphy, in strong and vulgar language, told both the chief of police and his second in command, Lieutenant Peraino, that they were incompetent. He also told the chief of police, "the whole world is going to come down around you when a court of law get this, for your siding with that back-stabbing son-of-a-bitch City Manager." ¹ Apparently McMurphy and the city manager, Bernard Van Osdale, had been friendly at one time, but had fallen out. While leaving the city building on February 23 McMurphy encountered Van Osdale, castigated him, threatened him with a lawsuit and urged Van Osdale to take a swing at him so he could retaliate. Before the day was over McMurphy talked with the newspaper reporter again and threatened him with a lawsuit. Sometime later McMurphy attended a retirement party for the chief of police of a nearby town. When asked by a third chief why Chief Royston was not socializing with his men, McMurphy replied that they had no respect for his leadership. McMurphy also posted two vulgar cartoons on the police department bulletin board, which implied that nothing was ever accomplished in the department and that those who worked diligently got "screwed."

B.

On May 5, 1983 Royston called McMurphy to his office, read a list of charges, and suspended him with pay until May 10. Royston testified that McMurphy was given an opportunity to respond, but McMurphy denied that he had such an opportunity. The notice of suspension with pay directed McMurphy to present himself on May 10 for final disposition of the charges. At the May 10 meeting the chief of police gave to McMurphy and his attorney a document styled, "Specific Charges--Notice of Discharge." The notice stated that following the February suspension and in spite of a specific warning about the consequences of insubordination and dishonesty, McMurphy had continued to conduct himself improperly. Examples of misconduct were listed. These included a threatening to the newspaper reporter whom McMurphy had encountered in the bar that McMurphy would "get him" if he was responsible for the February suspension; making statements ridiculing the city manager and chief of police, and threatening to "get them"; approaching council members while in uniform and making abusive, ridiculing and derogatory statements about the city manager and chief of police; making groundless complaints about the city manager and other officials to state police and a public prosecutor; making critical statements about Chief Royston to another chief of police; posting the cartoons disparaging the police department; and writing anonymous inflammatory letters to the local press and councilmen.

McMurphy testified that he was given no hearing on the charges and that when his attorney asked questions about them he was told to contact the city's lawyer "in Wisconsin." The chief of police testified that McMurphy was given a chance to respond, but that his attorney merely asked for a copy of the charges and made no comments.

C.

Following his suspension McMurphy began "investigations" of Van Osdale for activities he considered illegal, although no one had directed him to make such investigations. In his investigations McMurphy contacted the public prosecutor and state police in an effort to have the city manager charged with embezzlement. He also contacted members of the city council, urging them to do something about the city manager. Neither the state police, the prosecutor nor the city council took any action when informed that the "embezzlement" consisted of the city manager's storing some personal property in a vacant city building.

In his testimony before the arbitrator and the district court McMurphy denied that he threatened the newspaper reporter with bodily harm and denied that he sent anonymous letters. He admitted threatening the reporter with a lawsuit for going to the chief of police and admitted threatening both the chief of police and the city manager with loss of their jobs. He admitted conducting the unauthorized "investigations," telling the city manager he would "get him" if it cost $20,000, calling the chief of police a "backstabbing son-of-a-bitch" and telling the out of town chief that Royston did not deserve respect. He also admitted posting the two derogatory cartoons.

Chief Royston testified that it was against regulations to conduct unauthorized investigations and to post cartoons of the type described on the bulletin board. ² Furthermore, McMurphy never prepared a formal report on the alleged misconduct, although regulations required that this procedure be followed. The Flushing Police Department is very small--the chief of police, one lieutenant, one sergeant and nine full-time and seven part-time patrolmen. All members of the department must work together in a close relationship. Royston testified that although there had been some earlier dissension in the department, McMurphy's conduct was extremely disruptive. McMurphy would not discuss his complaints with the chief or the lieutenant, but caused the men in the department to choose between him and their supervisors. The chief testified that McMurphy's conduct undercut his authority over the department.

II.

In separate rulings the district court found that the discharge did not deprive McMurphy of due process or of First Amendment free speech rights.

The district court found that McMurphy was provided prior notice and a statement of specific reasons for the discharge. The court further found that McMurphy was provided a sufficient hearing after the discharge, and that he was not entitled to a pretermination hearing. The district court relied on the Supreme Court's plurality opinion in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

In granting summary judgment on the First Amendment claim the district court found that McMurphy was discharged for things he said--accusations of incompetence and wrongdoing, threats against his superiors in the police department and the city manager and disparaging comments about Royston and Van Osdale to city council members, other police officers and the state police and prosecutor. The district court recognized that comments by public employees on matters of public concern are protected speech, but concluded that if such speech has a detrimental effect on the operation of a public agency, a balancing of interests is required. Referring to McMurphy's own testimony the court found that the plaintiff acted out of spite in remarks about Chief Royston and the city manager and that he was "venting [his] personal frustration" in threatening to "get" various officials. The court found that the one-man investigations of "public corruption" were unauthorized and contrary to regulations, and that there was nothing...