886 F.2d 1194 (9th Cir. 1989), 87-3533, Gillette v. Delmore

Docket Nº87-3533.
Citation886 F.2d 1194
Party NameJames GILLETTE, Plaintiff-Appellant, v. Duane DELMORE; Jerry Garriott and the City of Eugene, a political subdivision of the State of Oregon, Defendant-Appellee.
Case DateOctober 05, 1989
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1194

886 F.2d 1194 (9th Cir. 1989)

James GILLETTE, Plaintiff-Appellant,

v.

Duane DELMORE; Jerry Garriott and the City of Eugene, a

political subdivision of the State of Oregon,

Defendant-Appellee.

No. 87-3533.

United States Court of Appeals, Ninth Circuit

October 5, 1989

Argued and Submitted March 8, 1989.

Page 1195

David C. Force, Eugene, Or., for plaintiff/appellant.

Steve C. Baldwin, Eugene, Or., for defendant/appellee.

Appeal from the United States District Court for the District of Oregon.

Before CANBY, THOMPSON and LEAVY, Circuit Judges.

CANBY, Circuit Judge:

James Gillette appeals the district court's summary judgment in favor of the City of Eugene, Oregon, on his claim under 42 U.S.C. Sec. 1983 for unlawful discharge from public employment in violation of his first amendment rights. We affirm in part, reverse in part, and remand.

FACTS AND PROCEEDINGS BELOW

On May 19, 1983, James Gillette, a fireman of the City of Eugene, Oregon, was

Page 1196

part of a unit dispatched to the home of James Dunsmoor in response to an emergency call. The caller had indicated that Dunsmoor had consumed valium, percodan, and alcohol and that, although Dunsmoor was conscious, he was very confused. Upon the unit's arrival, Dunsmoor ordered the firemen and police officers to leave. The City had a policy directing that persons suspected of suffering from a drug overdose be taken to the hospital for evaluation, even over that person's objection. Gillette asserts that, although Dunsmoor was conscious and capable of conversation, he was not told that he had to go to the hospital, or that he would be taken by force if necessary. Gillette asserts that police officers used excessive force on Dunsmoor, including choking him, handcuffing him to a stretcher, and banging his head on the metal stretcher.

During these events Gillette commented to the fire captain that "this is not being handled well." After Dunsmoor had been forcibly loaded into the ambulance, Gillette expressed his anger to the policeman who had choked Dunsmoor and banged his head on the stretcher, stating that "it would be just as well to let him die, as kill him ourselves." While at the hospital waiting for Dunsmoor to be examined, Gillette commented to both fire and police personnel that they had "stripped the man of his dignity."

Dunsmoor needed no medical treatment, and he was released after a doctor examined him. On the way back to the fire station, Gillette said to other firemen that he would help Dunsmoor in a suit against the City if Dunsmoor were forced to pay the expenses of being taken to the hospital, stating "when you take a man against his will, and then you're wrong, why should that guy have to pay his medical bills, when you didn't give the guy an honest chance in the first place?"

On May 31, 1983, Battalion Chief Delmore notified Gillette that he was charged with three incidents of misconduct that warranted his termination. Gillette was suspended from duty, with pay, and was notified of his right to respond to the charges. The three incidents specified follow: 1

On April 4, 1983, two crew members at Eugene Fire Station 5 witnessed an incident in which you used vulgar and abusive language while engaged in a telephone conversation with an employee of Lane County and then, following the conversation, displayed behavior unbecoming to a City employee.

On May 19, 1983, at approximately 2341 hours, while involved at an emergency medical incident at 2292 Jefferson Street, Eugene, Oregon, you were heard making remarks which were contradictory to the emergency treatment being provided to the patient and which also jeopardized management of the patient and safety of the personnel providing the care.

On April 22, 1983, while assigned as a medic unit driver available for emergency response, you were observed sleeping in clear view of the public in the second floor lobby of the Lane Community College Downtown Center, 1159 Williamette Street, Eugene, Oregon, during the time the EMT III assigned to the unit was attending a review class for an EMT IV test.

Gillette responded to the charges at a meeting held June 6, 1983. He was terminated, effective June 7, 1983. Gillette appealed his termination to the Fire Chief, as provided for by regulation. Fire Chief Hall confirmed Gillette's termination by letter on July 14, 1983. Gillette then filed a grievance, under the collective bargaining agreement between the City and the fire fighters, and it proceeded to...

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