883 F.2d 842 (10th Cir. 1989), 87-1725, Wulf v. City of Wichita

Docket Nº:87-1725, 87-1735, 87-1750 and 87-2563.
Citation:883 F.2d 842
Party Name:Sheldon L. WULF, Plaintiff-Appellee, v. The CITY OF WICHITA, Gene Denton, and Richard Lamunyon, Defendants-Appellants.
Case Date:August 09, 1989
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 842

883 F.2d 842 (10th Cir. 1989)

Sheldon L. WULF, Plaintiff-Appellee,

v.

The CITY OF WICHITA, Gene Denton, and Richard Lamunyon,

Defendants-Appellants.

Nos. 87-1725, 87-1735, 87-1750 and 87-2563.

United States Court of Appeals, Tenth Circuit

August 9, 1989

        Rehearing Denied Oct. 31, 1989.

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        Robert L. Howard of Foulston, Siefkin, Powers & Eberhardt, (Timothy B. Mustaine of Foulston, Siefkin, Powers & Eberhardt, Gary Rebenstorf and Joe Allen Lang of the Office of the City Atty., with him on the briefs), Wichita, Kan., for defendants-appellants.

        Jack Focht of Focht, Hughey, Hund & Calvert, Wichita, Kan. (Karlin Church Lawing, San Francisco, Cal., with him on the brief), for plaintiff-appellee.

        William C. Summers of Intern. Ass'n of Chiefs of Police, Inc., Gaithersburg, Md., on the brief amicus curiae of the Intern. Ass'n. of Chiefs of Police, Inc.

        John C. Ruckelshaus of Ruckelshaus, Roland, Hasbrook & O'Connor, Indianapolis, Ind., on the brief amicus curiae of Fraternal Order of Police, Grand Lodge.

        Before ANDERSON, SETH and BRORBY, Circuit Judges.

        STEPHEN H. ANDERSON, Circuit Judge.

        Plaintiff Sheldon Wulf commenced this 42 U.S.C. Sec. 1983 action against his former employer, the City of Wichita (the "City"), and against the City Manager and the Chief of Police, alleging that his dismissal from the police force because of a letter he wrote violated his First, Fifth, and Fourteenth Amendment rights. After a trial to the court, Wulf was awarded damages of $702,642.95, allocated as follows: $250,000 for emotional distress, $242,465.95 for back pay, and $210,177.00 for front pay, in lieu of reinstatement. The district court additionally assessed $50,000 in punitive damages against the Chief of Police alone. Wulf's counsel was awarded $272,725.15 in attorneys' fees and $7,676.70 in costs. Defendants appeal, challenging the finding of liability, the amount of damages awarded, and the attorneys' fees. 1 We affirm in part, reverse in part and remand.

        BACKGROUND

        Wulf's employment as a police officer with the City began on March 1, 1966, and continued until his termination on April 21, 1981. During that time his personnel record reveals that he was a competent and satisfactory employee. In May 1978, he was promoted to Lieutenant and as such became a supervisory employee. At all times relevant to this appeal, defendant Richard LaMunyon was the Chief of Police and defendant Gene Denton was the City Manager of Wichita.

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        Wulf joined the Fraternal Order of Police ("FOP") in 1974, and thereafter served as President of the local and state FOP lodges. He was a member of the Executive Board of the state FOP lodge for eight years.

        The record in this case amply supports the district court's conclusion that, commencing at least in 1978, "[t]here were problems between the F.O.P. and Chief LaMunyon." Wulf v. City of Wichita, 644 F.Supp. 1211, 1214 (D.Kan.1986). In September 1978, there was a one week strike by 163 Wichita policemen which, while not officially sanctioned by the FOP, included some FOP members. Wulf did not participate in the strike. Following the strike, LaMunyon did not rehire 28 policemen who had participated in it.

        Relations between LaMunyon and the FOP were further strained by a stag party held in September 1979 at the FOP's private club. Activities at the stag party included the showing of a pornographic movie, nude dancing, and gambling. Various state liquor laws were violated. Wulf did not attend the party nor did he participate in its organization. Reports on the stag party appeared in the local news media. LaMunyon ordered an investigation into the party, fired the local FOP President and Secretary, demanded a public apology by the event's organizers, and asked the local FOP to turn in its private club license, which it ultimately did after an investigation by the Kansas Division of Alcoholic Beverages Control.

        Wulf, as well as six other supervisory officers, testified that, in the months following the stag party, they received suggestions from superior officers that they resign from the FOP. Those superior officers in turn denied making such suggestions, although a few did state that they had conversations with Wulf and others concerning a perceived conflict of interest between being a supervisor and belonging to the FOP, but that no one was directed to resign from the FOP. 2 Wulf said that he had conversations with other officers concerning similar suggestions from superiors and at one point spoke on television about them. Wulf recorded these conversations in a notebook. 3 LaMunyon conceded that if there was a rumor "from the brass, that it's not healthy for your career here in the Police Department if you belong to the FOP," it would have a "chilling effect" on FOP membership. R.Vol. V at 210-12. He denied having any interest in dissolving or weakening the FOP and testified that he had a good relationship with the FOP and that he viewed it as an important part of the police department. He also testified that membership in the FOP was never a consideration in promotion decisions. He conceded, however, that he was correctly quoted in a newspaper article appearing on November 22, 1981 as saying "To say the relationship between current FOP leadership and myself is strained is somewhat of an understatement. The fact of the matter is I don't speak to them." R.Vol. XXVI at 92. The district court specifically found that "LaMunyon's testimony on the witness stand that he had a good relationship with the local F.O.P. is not credible and at best reflects his own subjective opinion." Wulf, 644 F.Supp. at 1214.

        On October 5, 1979, Wulf's attorney wrote a letter to LaMunyon, alleging that "recent well-publicized problems have apparently led high-ranking officers in your Police Department to demand resignations

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from some members of the FOP," and charging that such conduct violated the First Amendment. Plaintiff's Ex. 8, Appellants' Addendum of Exhibits at 1. LaMunyon testified that, after receiving the letter, he "called the staff together, the Deputy Chiefs and the Majors, and asked if anyone was doing it. They said no. And I said if you are, knock it off. You can't do it." R.Vol. V at 89. LaMunyon responded to the letter with his own letter dated October 9, in which he denied ever personally suggesting that anyone resign or refrain from joining the FOP, and indicated that he had directed his staff to make no such suggestions.

        In August of 1980, Wulf was transferred laterally to the Records Department. LaMunyon testified that such transfers were sometimes used as a "form of discipline." R.Vol. V at 81-82. The record indicates that, along with Wulf's transfer, eight other promotions and transfers occurred. Plaintiff's Ex. 1(a), Appellee's Addendum of Exhibits at 108-09. LaMunyon testified that Wulf was transferred to the Records Department "because of the fact that he was good with details, he did get along with people, and he was a solid supervisor." R.Vol. V at 83. He testified that Wulf's membership in the FOP had nothing to do with his transfer. Wulf testified that he believed the transfer was punishment for his refusal to quit the FOP.

        Wulf's attorney wrote another letter to LaMunyon, challenging Wulf's transfer and charging that the transfer "is a direct result of Lt. Wulf's steadfast belief that he has First Amendment rights and his refusal to quit the FOP." Plaintiff's Ex. 10, Appellants' Addendum of Exhibits at 3. LaMunyon did not answer that letter, and took no further action regarding the allegations contained in it. Wulf did not pursue any available grievance procedures to challenge the transfer, nor did he request a transfer out of the Records Department. He did testify, however, that in August of 1980, he unsuccessfully sought permission to speak to LaMunyon about his (Wulf's) concerns regarding treatment of the FOP.

        Wulf's wife, Mary, wrote a letter in October 1980 to the Kansas Attorney General inquiring how "to instigate either a grand jury investigation or an Attorney General's inquisition into what is thought to be a violation of law by a local city official." Plaintiff's Ex. 11, Appellants' Addendum of Exhibits at 4. Thomas Haney, Deputy Attorney General, in response suggested that she discuss the possibility of summoning a grand jury with an attorney, and indicated that the Attorney General's office was unable to evaluate the possibility of conducting its own investigation into the allegedly improper activity without more specific details.

        On the advice of an attorney, Wulf began to prepare a letter to the Attorney General requesting an investigation of certain activities and incidents occurring in the Wichita Police Department. 4

        Meanwhile, people within the Wichita Police Department, including LaMunyon, learned of Wulf's letter. Although the testimony is conflicting as to details of time and place, LaMunyon apparently met with Captain Terry Crisp and Officer Peter Dubovich at least once or twice in February 1981 to discuss Wulf's letter, which Dubovich believed had already been sent to the Attorney General. Dubovich testified that when he told LaMunyon of the contents of the letter, LaMunyon responded "If that's the case, I'll have his ass." At trial, LaMunyon could not recall making that statement. He testified that he was "upset" when he learned of the letter. R.Vol. V at 109-10. Crisp also testified that he did not believe that such a statement was made. R.Vol. XV at 34; R.Vol. XXXI at 878. Dubovich testified that either Crisp or LaMunyon said...

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