Barkoo v. Melby
| Decision Date | 02 July 1990 |
| Docket Number | No. 88-3468,88-3468 |
| Parties | Amy BARKOO, Plaintiff-Appellee, v. Brian MELBY, individually and in his capacity as Communications Coordinator of the Village of Skokie, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Susan P. Malone, Chicago, Ill., for plaintiff-appellee.
Richard T. Ryan, Flynn, Murphy & Ryan, Chicago, Ill., for defendants-appellants.
Before CUMMINGS, COFFEY and MANION, Circuit Judges.
Amy Barkoo resigned her emergency dispatcher position with the Village of Skokie. She later sued the Village of Skokie and three village employees, ultimately claiming she was constructively discharged in retaliation for exercising her constitutional right to free speech, in violation of 42 U.S.C. Sec. 1983. A jury awarded her $70,000. Because this case is merely an employment dispute and does not involve the deprivation of any constitutional rights, we reverse and remand to the district court and order judgment to be entered for the defendants.
From 1981 until 1986 Barkoo was a swing-shift communications operator, commonly referred to as a dispatcher, for the Village of Skokie Fire Department. During those years, she worked one third of the time on the day shift, one third on the evening shift, and one third on the overnight shift (midnight to 8 a.m.). In late 1985 or early 1986 Skokie decided to combine its communications centers for the police and fire departments. Barkoo, who wanted to work the day shift, moved to the Police Department in May 1986 to fill a retirement-created opening on the day shift there. She also hoped to get a head start learning police communications procedures before the fire and police communications centers were combined in September 1986.
Defendant Capt. Albert Fournier, a 25-year police veteran, was in charge of the Police Department communications center from 1985 to 1987. Defendant Nina Reitz, a dispatcher for the Police Department since 1984, became shift supervisor for the combined police-fire dispatch center in October 1986. Defendant Brian Melby became the communications coordinator for Skokie in July 1986.
Barkoo's employment difficulties seem to have begun on Saturday morning, September 13, 1986. Barkoo was working as the police dispatcher. The communications center received a call from a Mrs. Lichtenstein reporting a stolen car. The switchboard operator gave Barkoo a card containing the relevant information. Contrary to the routine practice of Skokie dispatchers, Barkoo did not immediately stamp the card "received," and did not dispatch a police officer until approximately 25 minutes later when the switchboard operator received a second call--this time from an irate Mr. Lichtenstein. Not knowing that Barkoo had failed to dispatch a police officer, the switchboard operator got into an argument with Mr. Lichtenstein. The Police Department received a written complaint from Mrs. Lichtenstein the following week.
The Chief of Police ordered Fournier and Melby to investigate the complaint. They began that investigation by listening to tape recordings of the Saturday morning transmissions into the communications center. They discovered Barkoo's delay in punching the card "received" and dispatching a police officer, despite receiving no other calls in the intervening period. Capt. Fournier testified that the Skokie Police Department usually responded to citizen complaints, absent an unusual circumstance, within three minutes of receiving a report.
While reviewing the tapes, Fournier and Melby discovered they could also overhear conversations between employees in the communications center. They heard Barkoo tell the switchboard operator to put the angry Mr. Lichtenstein on hold, and that he would just have to wait. Barkoo was overheard saying that she sometimes told callers she was a police officer. In a meeting to discuss the incident, Barkoo claims Melby told her "we heard what you said and disciplinary action may follow." Barkoo was upset by her meeting with Melby, and afterward told co-workers about her meeting and about the taping of her office conversation with the switchboard operator. Around the same time Melby wrote a memorandum to the communications center staff explaining that he had just discovered conversations between employees could be overheard. The memorandum, which was posted on the wall of the communications center, indicated that the administration was trying to fix the problem. According to Melby's memo, the ability to overhear employee conversations was a technical glitch created by the communications center's transition to a combination fire and police emergency center.
Fournier and Melby recommended a one-day suspension without pay for Barkoo because of her failure to stamp the card "received" and dispatch an officer for approximately 25 minutes after receiving the call from Mrs. Lichtenstein. Fournier's written recommendation specifically noted that while off-line conversations were overheard, they did not enter into the department's decision on discipline. In addition to the discipline imposed on Barkoo, the switchboard operator received a written reprimand for her role in the incident, which was described as engaging in "rude and unprofessional" conduct toward Mr. Lichtenstein.
Barkoo appealed to the chiefs of the police and fire departments. They affirmed the suspensions, and Barkoo filed a grievance with the Village of Skokie. Barkoo testified at a grievance hearing that any errors she made in handling calls were attributable to poor training by the Village of Skokie, and asserted that it was apparent she "had to have more training." As a result of the hearing, on January 23, 1987 the Village grievance committee reduced Barkoo's suspension to a written reprimand.
Following her reprimand, Barkoo wrote an interoffice memorandum to various supervisors complaining about the Village of Skokie's consideration of a work plan calling for dispatchers and other employees to occasionally work two consecutive shifts, which Barkoo characterized as "forced overtime." Her memorandum was returned and she was told to follow the proper chain of command. When she resubmitted her memo, it again was returned, this time with a notation from Melby that this was a "non-grievable" item.
A few weeks after receiving her reprimand, Barkoo took a three-day LEADS training seminar as a refresher course. The final day of the seminar was devoted to an exam testing familiarity with LEADS--a computer data system dispatchers used to relay essential information to law enforcement personnel in the field. Barkoo became the first Skokie dispatcher ever to fail the LEADS exam.
On February 26, 1987, Barkoo was told she was being transferred indefinitely to the midnight shift for additional LEADS training. The midnight shift was normally quieter and more conducive to LEADS training. One week later she quit. On June 2, 1987, she filed suit in federal court against the Village of Skokie, Fournier, Melby and Reitz, alleging among other things that she was harrassed into resigning in retaliation for her exercise of constitutionally protected free speech rights. Her initial complaint stated that Skokie officials retaliated against her because they believed she spoke to the media about the communications center taping. There were two trials. After the close of evidence in the first trial, her complaint was amended to conform to the evidence. The free speech claim in the amended complaint (the claim under which she ultimately recovered) was not founded on any real or perceived discussions with the media. Rather she based her claims on her interoffice memorandum on forced overtime and her discussions with other employees about the communications center taping.
At the first trial, the jury failed to reach a verdict and the judge declared a mistrial. At the second, the judge granted a directed verdict for the Village of Skokie. However, the jury returned a verdict for Barkoo against the individual defendants, and awarded her $70,000. Defendants appeal, challenging the district court's decision to allow Barkoo to amend her complaint, certain evidentiary rulings, and whether her speech activities were constitutionally protected in the workplace context. 1
Issues from both trials are before us because a mistrial is not an appealable final judgment. Esneault v. Waterman Steamship Corp., 449 F.2d 1296 (5th Cir.1971); Hairlox Co. v. McDonald, 557 A.2d 163 (D.C.App.1989); see Wright & Miller, Federal Practice and Procedure: Civil Sec. 3915 at 592 (1971). Any errors committed in the first trial could not be appealed until the close of the second trial, when the Rule 58 judgment was entered. Because Barkoo failed to prove a violation of her First Amendment rights at either trial, 2 we hold that the district court should have granted defendants' motion for directed verdict at the close of plaintiff's evidence at the second trial. 3
At the close of plaintiff's evidence in the first trial, the district court allowed Barkoo to amend her pleadings to include a cause of action based on the theory that defendants' retaliation was prompted by her discussions with other Village of Skokie employees about the taping of communications center conversations. The defendants contend this was error because they did not receive "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957).
Under Rules 15(a) and (b) of the Federal Rules of Civil Procedure, the district court can allow amended pleadings at any point, even after judgment, "when justice so requires," and also to conform to the evidence. Before trial, while the district court judge was summarizing the...
To continue reading
Request your trial
-
Kyle v. Morton High School
... ... Probably the cases most similar to Kyle's are Barkoo v. Melby, 901 F.2d 613 (7th Cir.1990), and Fogarty v. Boles, 121 F.3d 886 (3d Cir.1997). In Barkoo, an employee was terminated after the publication ... ...
-
Framsted v. Municipal Ambulance Service, Inc.
... ... Illinois Dept. of Children and Family Services, 40 F.3d 1492, 1501 (7th Cir.1994) (quoting Barkoo v. Melby, 901 F.2d 613, 618 (7th Cir.1990)) ... It is beyond dispute that substance abuse by emergency medical technicians is ... ...
-
Cole v. St. Joseph County
... ... because without those factors, "every employment dispute involving a public agency could be considered a matter of public concern," see Barkoo" v. Melby, 901 F.2d 613, 618 (7th Cir.1990), a result the law seeks to avoid, see Connick v. Myers, 461 U.S. at 148-150, 103 S.Ct. 1684 ... \xC2" ... ...
-
Ortiz v. De San Juan
... ... 2000), cert. denied, 531 U.S. 927, 148 L. Ed. 2d 245, 121 S. Ct. 305 (2000); Jones v ... Collins , 132 F.3d 1048, 1054 (5th Cir. 1998); Barkoo v ... Melby , 901 F.2d 613 (7th Cir. 1990). Particularly, in Wasson v ... Sonoma County , the Ninth Circuit determined that a plaintiff "[h]aving ... ...