Boddie v. City of Columbus, Miss.

• Decision Date: 14 April 1993
• Docket Number: No. 92-7233,92-7233
• Citation: 989 F.2d 745
• Parties: 143 L.R.R.M. (BNA) 2172 William H. BODDIE, Plaintiff-Appellee Cross-Appellant, v. CITY OF COLUMBUS, MISSISSIPPI and Robert W. Gale, Individually and in his Official Capacity as Fire Chief of the City of Columbus, Mississippi, Defendants- Appellants Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 745

989 F.2d 745

143 L.R.R.M. (BNA) 2172

William H. BODDIE, Plaintiff-Appellee Cross-Appellant, v. CITY OF COLUMBUS, MISSISSIPPI and Robert W. Gale,

Individually and in his Official Capacity as Fire

Chief of the City of Columbus,

Mississippi,

Defendants-

Appellants

Cross-Appellees.

No. 92-7233.

United States Court of Appeals, Fifth Circuit.

April 14, 1993.

Dewitt T. Hicks, Jr., J. Gordon Flowers, P. Nelson Smith, Gholson, Hicks, Nichols & Ward, Columbus, MS, for defendants-appellants cross-appellees.

Jim Waide, Tupelo, MS, Gary Parvin, Coffeeville, MS, for plaintiff-appellee cross-appellant.

Appeals from the United States District Court for the Northern District of Mississippi.

Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The City of Columbus and its fire chief, appeal from a judgment entered upon a jury verdict finding them liable for firing Boddie, a fireman, in violation of his First Amendment right to associate with union members. The judgment awarded $30,558 against the City and fire chief, individually, and ordered reinstatement. Defendants argue that (1) Boddie's failure to prove that his association with union members was a matter of public concern is fatal to his claim, (2) the fire chief was entitled to qualified immunity because of the then uncertainty of whether a showing of public concern was required, (3) there was insufficient evidence to show that Boddie was fired for associating with union members, and (4) Boddie should not have been reinstated, because he falsified his employment application. Boddie also appeals, complaining about the effective date of his reinstatement. We affirm except we vacate the ordered date of reinstatement and remand with instructions that reinstatement be effective from the date of the jury verdict.

I.

The Columbus, Mississippi Fire Department hired Bill Boddie in 1987, with a twelve-month probationary period. Eight hours before the end of his probation, Chief Gale fired Boddie. More specifically, the City Council accepted Gale's recommendation and fired Boddie.

In this suit, defendants learned that Boddie failed to disclose in his job application his previous work for Kirby Mitchell, who has been convicted on drug charges, and LBC Management Company, which produced adult films.

At trial, Gale contended that his recommendation to the City Council was based on Boddie's poor attitude. Boddie replied that this was pretext, that he was fired because he associated with firemen who were union members. The jury found that firing Boddie violated his right to freedom of association under the First Amendment and awarded Boddie $36,558.00, which the judge reduced to $30,558.00. ¹ Upon Boddie's motion, the judge ordered reinstatement effective April 3, 1992, the date he ruled on post-trial motions. The district court stayed Boddie's reinstatement and deferred a ruling on attorneys' fees pending this appeal.

II.

The district court denied motions for directed verdict, JNOV, and new trial, ruling that Boddie's proof of associational activity need not include independent proof that it touched a matter of public concern. We agree. In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Supreme Court protected from employer discipline only the speech of employees touching on a matter of public concern. It pulled back from full protection for all speech in the workplace, sensitive to the reality that to do otherwise would elevate work-a-day personnel disputes to issues of a constitutional order. At the same time, the court explained that employees do not leave their free speech rights at home.

Defendants argue that this accommodating principle of public concern is a threshold hurdle to be cleared by all employees asserting a First Amendment violation in the workplace. Its force aside, the answer to this question is not open for this panel. In Coughlin v. Lee, 946 F.2d 1152, 1158 (5th Cir.1991), we stated that "[a] public employee's claim that he has been discharged for his political affiliation in violation of his right to freely associate is not subject to the threshold public concern requirement." See also Kinsey v. Salado Independent School Dist., 950 F.2d 988, 992-93 (5th Cir.1992) (en banc); Hatcher v. Board of Pub. Educ. and Orphanage, 809 F.2d 1546 (11th Cir.1987); but see Griffin v. Thomas, 929 F.2d 1210 (7th Cir.1991); Boals v. Gray, 775 F.2d 686 (6th Cir.1985). Coughlin answers the City's contention regarding public concern.

III.

Coughlin, decided four years after Boddie was fired, does not answer Chief Gale's contention to this court. Chief Gale argues that he has qualified immunity. Public officials are shielded from liability for damages under § 1983 so long as their conduct has not violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). " '[T]he question is not whether the law was settled, viewed abstractly, but whether, measured by an objective standard, a reasonable [official] would know that his action was illegal.' " Click v. Copeland, 970 F.2d 106, 109 (5th Cir.1992) (quoting Matherne v. Wilson, 851 F.2d 752, 756 (5th Cir.1988)).

Gale contends that in light of the split among the circuits on the question of whether public concern is an element of a freedom of association claim and the fact that we did not decide Coughlin until after Boddie's dismissal, he reasonably could not have been expected to know that firing Boddie violated clearly established law.

We turn to the law at the time Gale made his recommendation to the City Council in December 1987. Our inquiry ends, if we find from examining the decisions of the Supreme Court and our own decisions that the law was clearly established in this circuit. See Click, 970 F.2d at 110-11 (holding "[t]he law was established clearly enough in this circuit " despite a conflict with two other circuits) (emphasis added); see also Garcia by Garcia v. Miera, 817 F.2d 650, 658 (10th Cir.1987) ("[t]o give preclusive effect to a conflict among the circuits would effectively bind this circuit by the decisions of others").

There is one preliminary issue. Boddie argues that Chief Gale is not entitled to immunity, because Gale did not in fact believe that he could legally fire Boddie based on his union association. Rather, Gale has always maintained that he fired Boddie because of his poor attitude. However, subjective good faith reliance on the allegedly illegal reason for discharge is not required. See Pfannstiel v. City of Marion, 918 F.2d 1178, 1182 (5th Cir.1990). We accept, as we must, the jury finding that Gale recommended that Boddie be fired because he associated with union members.

We are persuaded that in 1987 it was clear that the First Amendment protects an employee's right to associate with a union. Smith v. Arkansas State Highway Employees, 441 U.S. 463, 464-65, 99 S.Ct. 1826, 1828, 60 L.Ed.2d 360 (1979); Vicksburg Firefighters v. City of Vicksburg, 761 F.2d 1036, 1039 (5th Cir.1985); Professional Assoc'n of College Educators v. El Paso County Community College Dist., 730 F.2d 258, 262 (5th Cir.1984) (PACE ); Tanner v. Hazlehurst Mun. Separate School Dist., 427 So.2d 977, 978 (Miss.1983); see also Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). It was also well-settled that a public employee's First Amendment rights yield at times to the government's interest "in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); see also Rankin v. McPherson, 483 U.S. 378, 382-83, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987); Connick, 461 U.S. at 150, 103 S.Ct. at 1692. Recognizing these competing interests, Connick held "that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Id. at 147, 103 S.Ct. at 1690.

Our view on the role of public concern in an association case was apparent before Coughlin. Connick and Pickering were speech cases. Connick fired an assistant district attorney for circulating a questionnaire concerning the office's transfer policy. 461 U.S. at 140-41, 103 S.Ct. at 1686-87. In Pickering, a teacher was fired for sending a letter to a newspaper critical of the school's handling of proposals to raise revenue. 391 U.S. at 564, 88 S.Ct. at 1732. Under Pickering and Connick, we balance the government's interest in an efficient workplace against the employee's First Amendment interest considering a number of factors, if the speech was a public concern and not personal.

Gale's assertion that the law was not clearly established because the role of public concern was uncertain in a freedom of association case is belied by our post-Connick freedom of association decisions. In PACE, individual faculty members at El Paso Community College and the Professional Association of College Educators, PACE, alleged that the College tried to destroy PACE by threatening and intimidating their members and officers and by denying them privileges enjoyed by other faculty members. 730 F.2d at 261. We remanded for the district court to consider PACE's freedom of association claim stating:

The first amendment protects the right of all persons to associate together in groups to further their lawful interests. This right of association encompasses the right of public employees to join unions and the right of their unions to engage in advocacy and to...