Barnes v. McDowell
| Decision Date | 07 June 1988 |
| Docket Number | Nos. 86-6261,87-5776,s. 86-6261 |
| Citation | 848 F.2d 725 |
| Parties | Robert BARNES (86-6261) and Joe Thompson (87-5776), Plaintiffs-Appellants, v. Charles McDOWELL, Ed Fossett, and Sam Serraglio, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Philip C. Kimball, Louisville, Ky., for plaintiffs-appellants.
David Armstrong, Atty. Gen., Nathan Goldman (argued), Sue G. Simon, Dept. for the Blind, Frankfort, Ky., for defendants-appellees.
Before MILBURN and BOGGS, Circuit Judges; and ALDRICH, District Judge. *
Robert Barnes and Joe Thompson appeal the district court's decisions granting summary judgment in favor of defendants in their actions under 42 U.S.C. Sec. 1983, 661 F.Supp. 498 (1987) and 647 F.Supp. 1307 (1986). Barnes and Thompson claim they were discharged in retaliation for having exercised their right to free speech. Upon review of the parties' briefs and the records, we conclude that the district court correctly awarded summary judgment in favor of defendants on Thompson's claim. However, the lower court erred in granting summary judgment in favor of defendants with respect to Barnes's claim.
Accordingly, we affirm the district court's decision in Thompson's appeal (No. 87-5776). We reverse the district court's decision in Barnes's appeal (No. 86-6261), and remand that case for further consideration of Barnes's section 1983 claim.
At the time he was discharged, Barnes was Director of the Business Enterprises Program of the Bureau for the Blind (the Bureau), a Kentucky agency within the state's Education and Humanities Cabinet. The Business Enterprises Program assists blind Kentucky residents with the operation of vending machine stands at offices and businesses throughout Kentucky. At the time he was discharged, Thompson was Training Officer and Supervisor of Repairs for the Bureau's Business Enterprises Program. His position made him responsible for purchasing supplies for the machines and for supervising repairs of the machines.
On March 18, 1982, defendant-appellee Charles McDowell, acting Director of the Bureau and the immediate superior of Barnes and Thompson, notified them in separate letters that they were suspended for thirty working days while the Bureau investigated a report that the men had sexually harassed Thompson's secretary, a blind female named Libby Williams. Defendant-appellee Ed Fossett, acting attorney for the Education and Humanities Cabinet, and defendant-appellee Sam Serraglio, acting Finance and Personnel Officer of the Bureau, conducted the investigation.
On April 30, 1982, McDowell notified Barnes and Thompson, again in separate letters, that they were discharged for having sexually harassed Libby Williams. Barnes also was accused of having harassed two other females associated with the Bureau. In addition to the sexual harassment charges, both men were accused of various deficiencies in their work performance, including allegations that the two had been inebriated while on the job and when socializing with vendor operators in the field. The letter stated that the men had ten working days to reply to McDowell about the charges.
On May 21, 1982, Barnes and Thompson appeared with counsel before McDowell. Fossett and Serraglio also were present. According to affidavits from Fossett and Serraglio, "Mr. McDowell confronted Mr. Barnes and Mr. Thompson with the charges against them and gave them an opportunity to refute, explain and otherwise address the charges." Apparently, Barnes's and Thompson's responses were inadequate, as McDowell adhered to his decision to discharge the men.
Barnes and Thompson then appealed their firings to the Kentucky Personnel Board. A hearing officer for the Personnel Board held an adjudicative hearing on the matter. Subsequently, the hearing officer issued his findings of fact, conclusions of law and recommended order. He found that Barnes had engaged in sexual harassment and upheld his dismissal on that ground. 1
With regard to Thompson, the officer found that "technically" Thompson was not guilty of sexual harassment. 2 The officer further found that Thompson's work as the vending machine repair supervisor was satisfactory but that his performance of his duties as a training officer was "way below standard and a disservice to the trainees as well as to the Bureau." The officer concluded, Accordingly, the officer recommended that Thompson be reinstated but to a position other than training officer.
After considering the hearing officer's report, the state Personnel Board sustained the officer's findings of fact and conclusions of law, thereby upholding Barnes's discharge. The Board reduced Thompson's sanction from a discharge to the thirty-day suspension he already had served and ordered him reinstated to his former position or to a position "of like status and pay."
Barnes sought judicial review of the Board's decision in state court. 3 The Board's decision was affirmed by a state trial court and on appeal on the ground that the decision to discharge Barnes for sexual harassment was supported by substantial evidence. The Kentucky Supreme Court denied review of the decision.
On March 17, 1983, while judicial review of Barnes's discharge still was pending in state court, Barnes and Thompson filed suit under 42 U.S.C. Sec. 1983 in federal district court in Kentucky claiming that McDowell, with "the advice, encouragement, and assistance of Defendants Ed Fossett and Sam [Serraglio]" used the sexual harassment and unsatisfactory work allegations as a pretext for their discharge. In their complaint, Barnes and Thompson alleged that the real reason they were fired was in retaliation for having expressed, on various occasions, their opinions that certain Bureau practices under McDowell's supervision evidenced corruption and cronyism at the Bureau. 4
On January 9, 1985, upon motion by the plaintiffs, the district court ordered that the federal litigation be held in abeyance until Barnes's appeals in the Kentucky courts were resolved.
After the Kentucky Supreme Court denied review of Barnes's discharge, Barnes and Thompson moved for a trial date in federal court. The defendants moved for summary judgment, arguing that the Board's decision against Barnes, and its affirmance in the state courts, constituted res judicata or collateral estoppel 5 of the federal action.
Barnes responded that the res judicata and collateral estoppel arguments were inapplicable to him because, among other reasons, neither the state board nor the state courts had made any finding regarding Barnes's contention that he was fired in retaliation for declaring that certain practices and individuals at the Bureau were corrupt. Barnes also contended that even if the Board's finding that he engaged in sexual harassment was given preclusive effect in federal court, a jury still could find that the motivating factor for his discharge was retaliation for his speech.
On September 17, 1986, the district court sustained the defendants' motion for summary judgment against Barnes's section 1983 claim in a non-final order. The court, however, did not dismiss Thompson's claim. Instead it ordered Thompson to file a memorandum addressing whether any issues resolved in the state administrative proceedings concerning his discharge had a preclusive effect upon his federal claim.
Thompson filed the requested memorandum. At the same time, Barnes moved the court to reconsider its September 17, 1986, order.
On November 6, 1986, the court denied Barnes's motion for reconsideration and made its dismissal of Barnes's claim a final and appealable order. The court stated that the state administrative and judicial proceedings already had determined "that [Barnes] was justly dismissed for good cause arising out of his sexually harassing a female employee." Consequently, the district court apparently concluded that Barnes was collaterally estopped from relitigating in a section 1983 action the issues of the motivation and justification for his discharge. On December 3, 1986, Barnes filed a notice of appeal of the district court's dismissal of his section 1983 action.
In the same order issued on November 6, 1986, the district court denied the defendants' motion for summary judgment against Thompson. Although the court determined that the parties were bound by the Board's findings concerning the allegations about Thompson's misconduct, the court noted that the Board's findings were in Thompson's favor. The Board had determined that Thompson was not guilty of sexual harassment. Therefore, the court concluded that it was possible for Thompson to prevail in his retaliatory discharge claim, 6 so long as he could establish that he was discharged because he had voiced an opinion about a matter of public concern. Accordingly, the district court allowed discovery to proceed with respect to Thompson's federal claim.
On February 4, 1987, the defendants moved for summary judgment against Thompson partly on the ground that the speech Thompson claimed motivated his discharge did not address a matter of public concern but rather, touched "only upon matters of a personal interest as an employee."
On June 2, 1987, the district court granted the defendants' motion for summary judgment after concluding that Thompson's speech had not addressed a matter of public concern. The court stated in its Memorandum Opinion and Order:
The expression plaintiff claims to have motivated his discharge was to the effect that the agency needed a 24-hour deadline for equipment repairs, that it did not divide its budget fairly, and that the agency should purchase only the...
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