Bailey v. Kirk, 82-1417

• Citation: 777 F.2d 567
• Decision Date: 14 November 1985
• Docket Number: No. 82-1417,82-1417
• Parties: Garlin M. BAILEY, Plaintiff-Appellant, v. Inez KIRK, individually and in her official capacity as City Manager for the City of Sand Springs, Oklahoma; the Personnel Board for the City of Sand Springs, Oklahoma; W.B. Breisch, individually and in his official capacity as Chairman of the Personnel Board for the City of Sand Springs, Oklahoma; Jerry Tinsley, individually and in his official capacity as member of the Personnel Board for the City of Sand Springs, Oklahoma; Johnny Loughridge, individually and in his official capacity as member of the Personnel Board for the City of Sand Springs, Oklahoma; Lloyd Watkins, individually and in his official capacity as member of the Personnel Board for the City of Sand Springs, Oklahoma; Bill Pennifold, individually and in his official capacity as member of the Personnel Board for the City of Sand Springs, Oklahoma; Artie Palk, individually and in his official capacity as Mayor of the City of Sand Springs, Oklahoma; David Lundy, individually and in his official capacity as Vice Mayor of the City of Sand Springs, Oklahoma; Don Coble, individually and in his official capacity as Councilman for the City of Sand Springs, Oklahoma; Sam Childers, individually and in his official capacity as Councilman for the City of Sand Springs, Oklahoma; Tom Gilbert, individually and in his official capacity as Councilman for the City of Sand Springs, Oklahoma; Barry Hacker, individually and in his official capacity as Councilman for the City of Sand Springs, Oklahoma; Kim Tilley, individually and in his official capacity as Councilman for the City of Sand Springs, Oklahoma; and the City of Sand Springs, Oklahoma; Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 567

777 F.2d 567

Garlin M. BAILEY, Plaintiff-Appellant, v. Inez KIRK, individually and in her official capacity as City

Manager for the City of Sand Springs, Oklahoma; the

Personnel Board for the City of Sand Springs, Oklahoma;

W.B. Breisch, individually and in his official capacity as

Chairman of the Personnel Board for the City of Sand

Springs, Oklahoma; Jerry Tinsley, individually and in his

official capacity as member of the Personnel Board for the

City of Sand Springs, Oklahoma; Johnny Loughridge,

individually and in his official capacity as member of the

Personnel Board for the City of Sand Springs, Oklahoma;

Lloyd Watkins, individually and in his official capacity as

member of the Personnel Board for the City of Sand Springs,

Oklahoma; Bill Pennifold, individually and in his official

capacity as member of the Personnel Board for the City of

Sand Springs, Oklahoma; Artie Palk, individually and in his

official capacity as Mayor of the City of Sand Springs,

Oklahoma; David Lundy, individually and in his official

capacity as Vice Mayor of the City of Sand Springs,

Oklahoma; Don Coble, individually and in his official

capacity as Councilman for the City of Sand Springs,

Oklahoma; Sam Childers, individually and in his official

capacity as Councilman for the City of Sand Springs,

Oklahoma; Tom Gilbert, individually and in his official

capacity as Councilman for the City of Sand Springs,

Oklahoma; Barry Hacker, individually and in his official

capacity as Councilman for the City of Sand Springs,

Oklahoma; Kim Tilley, individually and in his official

capacity as Councilman for the City of Sand Springs,

Oklahoma; and the City of Sand Springs, Oklahoma;

Defendants-Appellees.

No. 82-1417.

United States Court of Appeals,

Tenth Circuit.

Nov. 14, 1985.

Frank M. Hagedorn of Hall, Estill, Hardwick, Gable, Collingsworth & Nelson, Tulsa, Okl., and P. Thomas Thornbrugh, Tulsa, Okl., were on the brief for plaintiff-appellant.

Floyd L. Walker and Laura Frossard of Pray, Walker, Jackman, Williamson & Marlar, Tulsa, Okl., were on the brief for defendants-appellees.

Before HOLLOWAY, Chief Judge, and McWILLIAMS and BARRETT, Circuit judges.

HOLLOWAY, Chief Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.

On November 14, 1980, plaintiff Garlin M. Bailey commenced this action against defendants under 42 U.S.C. Sec. 1983, seeking redress for alleged constitutional violations that occurred when he was suspended without pay and demoted from his position as Chief of Police of the City of Sand Springs, Oklahoma. An amended complaint was filed on July 23, 1981, adding a second cause of action averring that plaintiff was forced to resign from employment with the Sand Springs police department on June 7, 1981, due to harassing and discriminatory conduct of officers, agents and employees of Sand Springs. Plaintiff and defendants both made motions for summary judgment; defendants also moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the second cause of action for failure to state a claim on which relief can be granted.

The district court denied plaintiff's motion for summary judgment, granted defendants' motions for summary judgment, and dismissed the second cause of action. Plaintiff appeals.

I

Plaintiff was hired to serve as Chief of Police for the City of Sand Springs, Oklahoma, in January 1974. The parties stipulated that under the city code and Personnel Policies and Procedures Manual of the City of Sand Springs, plaintiff was a "classified" employee who could not be suspended without pay, demoted, or removed from his position except for good and sufficient cause. IV R. 6. ¹

In the spring of 1980, problems arose over plaintiff's investigation into alleged misconduct of a police officer suspected of making unauthorized long distance calls from police department telephones. Plaintiff testified by deposition and in his demotion hearing before the Personnel Board that in April 1980 he was dismissed from employment, had a hearing before the Personnel Board, and was reinstated and cleared of charges concerning his investigation of the officer. Plaintiff also testified by deposition that in September 1980 the City Manager, defendant Kirk, ordered plaintiff to reinvestigate the matter and to obtain a copy of the police officer's home telephone bill. Plaintiff testified that he talked with the officer and asked for a copy of his phone bill; the officer responded by stating that he had not made unauthorized calls, that he did not want to give up his personal telephone bill, and that he would not submit the bill to plaintiff without a court order. Plaintiff further testified that as part of the investigation he also spoke with the Assistant Chief of Police, another police officer who had allegedly heard incriminatory statements from the officer under investigation, and the division supervisor of Southwestern Bell; plaintiff stated that he "thoroughly and completely" investigated the matter "as much as [he] possibly could." V R. 27, 34.

On September 29, 1980, defendant Kirk, in accordance with a provision in the city code and personnel manual, ² summarily suspended plaintiff without pay for a four day period, from September 30 through October 3, 1980. In the notice of suspension received by plaintiff, Kirk stated that the suspension was imposed "[b]ecause of your inability to resolve the personnel problem with [the officer accused of making unauthorized calls] satisfactorily to convince me that you could win the decision when it was heard by the Personnel Board." I R. 50. Believing that the suspension was "unfair", plaintiff responded by declining the suspension and requesting a hearing before defendant Kirk and the City Council. Plaintiff testified that Kirk indicated to him that he could go before the City Council to discuss his suspension; plaintiff also testified that he continued to work as Chief of Police during the suspension period. V R. 61, 76.

On October 2, 1980, the City Council met in executive session with plaintiff and Kirk. After listening to both parties, the City Council decided that, even though there was a fifty percent chance that Kirk was "wrong" in suspending plaintiff, the rules did not permit an appeal from a four day suspension; the council stated that plaintiff therefore should have taken the suspension "regardless of what the reason was" and that Kirk had no other alternative but to demote him for refusing to accept the discipline imposed. V R. 68-70, 73-74 (April 22, 1981 deposition).

On October 6, 1980, Kirk demoted plaintiff to the rank of Lieutenant for his failure to obey the September 29 order of suspension. Kirk stated in the demotion notice that plaintiff's insubordinate conduct was in violation of Sec. 4(B) of the Policies and Procedures of the Sand Springs Police Department and Sec. 510.01 of the Personnel Policies and Procedures Manual of the City of Sand Springs. ³ I R. 52. The notice also said that plaintiff had the right to appeal the decision within ten days to the Personnel Board and that he was being reduced in rank in compliance with Sec. 70(B) of the police department's Policies and Procedures. ⁴

Upon plaintiff's timely request, a hearing was held before the defendant Personnel Board on October 23-24, 1980. At the hearing the Board employed a new set of procedural rules which it had adopted on October 16, 1980, to govern the format of future meetings. Plaintiff testified by deposition that he was not aware of these changes in the Board's rules and that he received no document prior to the demotion hearing setting forth the new procedures to be followed. V R. 81.

At the hearing, one of the arguments plaintiff sought to raise was that his demotion was based on an "unlawful" or improper suspension; plaintiff asserted that he had already been cleared of the charges given as grounds for the September 1980 suspension by the Personnel Board in April 1980. IV R. 104. The Board, however, refused to consider the reasons behind the four day suspension. The Board explained that it was without authority to determine the propriety of the suspension since the city code and Personnel Policies and Procedures Manual of the City of Sand Springs did not provide for appeals of suspensions of less than ten days. IV R. 18, 38, 56-57.

The Board also concluded that plaintiff was notified of his suspension on September 29, 1980, and that, "[r]egardless of the reason for suspension," plaintiff "did disobey the order of suspension and conducted himself in an insubordinate manner to the detriment of the Police Department." IV R. 173-74. Although the Board found Sec. 70(B) of the Policies and Procedures of the Sand Springs Police Department inapplicable to this case involving the chain of command between the City Manager and Police Chief rather than relationships within the department, the Board sustained the demotion under Sec. 510.01 of the Personnel Policies and Procedures Manual.

On April 30, 1981, Bailey was again suspended. This suspension of five days was stated to be for writing checks without sufficient funds. Bailey was not allowed to appeal this suspension because the city policy provides that there will be no appeal from an action by a department head who suspends an employee for less than ten days.

Plaintiff commenced this Sec. 1983 action in November 1980 challenging the constitutionality of his first suspension and demotion in the district court, but continued his employment as Police Lieutenant with the City of Sand Springs. ⁵ However, plaintiff testified by deposition that the Chief of Police, the City Manager, and other employees of the City of Sand Springs subsequently forced him to resign from the police department on June...