Bartlett v. Fisher

• Decision Date: 13 August 1992
• Docket Number: No. 91-2595,91-2595
• Citation: 972 F.2d 911
• Parties: Stephen L. BARTLETT, Appellee, v. Colonel C.E. FISHER; Captain S.T. Davis, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 911

972 F.2d 911

Stephen L. BARTLETT, Appellee, v. Colonel C.E. FISHER; Captain S.T. Davis, Appellants.

No. 91-2595.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 8, 1992.

Decided Aug. 13, 1992.

Timothy William Anderson, Jefferson City, Mo., argued (William L. Webster and Timothy W. Anderson, on the brief), for appellants.

Sherry A. Rozell, Springfield, Mo., argued (Rodney E. Loomer, Sherry A. Rozell and Joseph P. Winget, on the brief), for appellee.

Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

Trooper Stephen L. Bartlett of the Missouri State Highway Patrol commenced this § 1983 action against two superior officers, Col. C.E. Fisher and Capt. S.T. Davis, claiming that they violated his First Amendment and due process rights by suspending him for twenty-five days. The suspension was ostensibly for submitting false Activity Reports overstating the number of warnings issued to motorists, but Bartlett alleges that it was in fact retaliation for his letter to Missouri Governor John Ashcroft complaining that a new "minimum work standards" policy was in fact a ticket-writing quota system. Defendants appeal the district court's denial of their motion for summary judgment on the ground of qualified immunity. We reverse.

I.

In late 1987, Trooper Bartlett was assigned to Troop G, under the command of defendant Davis. From 1982 through 1986, Bartlett had received consistently high annual evaluation scores, though he was criticized for a shortage of "public contacts"--traffic tickets, warnings, and services provided to motorists. Capt. Davis was considering a new "minimum work standards" policy designed to monitor and thereby increase the public contacts by troopers in Troop G. Bartlett told his supervisors the proposed policy was a bad idea.

On February 2, 1988, Bartlett's new supervisors, Cpl. Daugherty and Sgt. Middleton, completed his 1987 annual evaluation. His score dropped sharply from the previous year; his reported weaknesses were: "Trooper Bartlett is low in total contacts and spends too much time off the road. He is also weak in following the chain of command." Bartlett blamed this low evaluation on his criticism of the proposed minimum work policy.

On March 8, Capt. Davis instituted the minimum work policy, effective April 1. Bartlett failed to meet his minimum standard of public contacts during April, June, and July 1988. On August 19, he met with Capt. Davis, "voiced his concerns" about the "quota system," and told Davis he planned to complain to the Governor. Three days later, Bartlett wrote Governor Ashcroft:

What I want to tell you about is a minimum work requirement system that requires each Trooper to make a required number of arrest[s] and warnings each month.... What is happening Troopers are writing more tickets because they are afraid not to.... One officer told me he is easy on the local people, but not the tourist[s].... [M]ost all the people in my area.... are very upset that the Highway Patrol would implement such a program and they want it stopped. Many of these same people will be writing their representatives.... Governor, I am not looking for any personal gain by writing this letter. I would say I have put myself in jeopardy by blowing the whistle on this program, but I will continue to do what I feel is right.

Bartlett personally delivered copies of the letter to three state senators. He admits that it was widely disseminated. Capt. Davis rescinded the "minimum standards" policy two days after his meeting with Bartlett. Davis testified that he made this decision before learning Bartlett had written the Governor; Bartlett takes credit for getting the minimum standards policy rescinded.

In February 1989, Bartlett received his 1988 annual evaluation. His score again dropped sharply; he complained, but it was raised only slightly after he met with supervisors Daugherty and Middleton, Capt. Davis, and Lt. J.J. Ewers. Bartlett then filed a grievance, alleging that he was being punished for criticizing the "quota" policy in a letter to the Governor. On April 11, a grievance hearing board upheld his 1988 evaluation as "fair and objective," finding no evidence of retaliation.

In late March, Daugherty and Middleton began investigating the accuracy of certain Activity Reports that Bartlett had submitted to the Patrol, specifically, whether Bartlett had in fact issued reported warnings to motorists in February and March 1989, six months after the alleged "quota" policy was rescinded. Bartlett was notified and responded to the allegations informally.

On April 19, 1989, defendant Fisher was first appointed Superintendent of the Missouri Highway Patrol. His appointment was confirmed on April 26. In July, at Bartlett's request, Col. Fisher transferred Bartlett to Troop E under the command of Capt. D.R. Shelton.

On June 28, Lt. Ewers reported to Capt. Davis that nine of Bartlett's Activity Reports had been found to be invalid and another one doubtful. On October 25, after further investigation that included giving Bartlett an opportunity to respond in writing, Capt. Davis filed a formal charge accusing Bartlett of filing seven falsified reports and recommending a thirty-day suspension.

Bartlett appealed to a three-member Disciplinary Review Board consisting of two Troopers and a Lieutenant with no connection to this matter. The Board conducted a formal hearing at which Bartlett testified, presented a witness, and read affidavits. He was not permitted to present evidence that the recommended suspension was in retaliation for his writing the Governor. On December 19, the Board issued a thirteen-page written decision, finding that Bartlett had submitted six false Activity Reports and recommending that the proposed thirty-day suspension be upheld.

Col. Fisher as Superintendent had final authority to impose the recommended suspension. In a two-hour meeting with Col. Fisher, Bartlett responded to the charges and presented his retaliation theory. Fisher also met with Capt. Davis, who defended his recommended suspension, and with Capt. Shelton, Bartlett's new supervisor, who recommended that Bartlett be reprimanded but not suspended. Fisher concluded that the more severe discipline was warranted, but reduced the suspension to twenty-five days, effective January 1, 1990.

Rather than appeal Col. Fisher's final decision to state court, Bartlett completed his suspension, which cost him $2,500 in lost pay, and filed this § 1983 action. He alleges that Fisher and Davis denied him procedural due process by failing to follow Patrol procedures and by denying him a fair hearing, and that Fisher and Davis violated his First and Fourteenth Amendment rights by suspending him in retaliation for criticizing the "quota" policy in a letter to the Governor. Defendants moved for summary judgment on numerous grounds. The district court rejected defendants' arguments on the merits of the case after a lengthy discussion, and then summarily rejected their qualified immunity argument because "a reasonably objective public official would have known that termination of an employee for his speech concerning misconduct by public officials would violate a clearly established constitutional right." Dist.Ct. Order of July 27, 1991, at 24-25, quoting Brawner v. City of Richardson, 855 F.2d 187, 193 (5th Cir.1988).

Defendants on appeal seek to raise all the issues discussed by the district court in its denial of their motion for summary judgment. We have jurisdiction to consider the qualified immunity defense in this interlocutory appeal; we review this issue de novo. See Ford v. Dowd, 931 F.2d 1286, 1289 (8th Cir.1990). We also have jurisdiction "to decide closely related issues of law," Drake v. Scott, 812 F.2d 395, 399 (8th Cir.), adhered to on reh., 823 F.2d 239, cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987). However, given our resolution of the qualified immunity issue, and the strong policy disfavoring interlocutory appeals, we do not reach these other issues.

II.

The doctrine of qualified immunity reflects the fundamental judgment that the public interest is not served by imposing damage liability on public servants for the good faith performance of their discretionary duties. As Chief Justice Burger said for a unanimous Court in Scheuer v. Rhodes, 416 U.S. 232, 242, 94 S.Ct. 1683, 1689, 40 L.Ed.2d 90 (1974):

Implicit in the idea that officials have some immunity ... for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all.

Although qualified immunity was initially limited to actions taken in good faith, the Supreme Court has adopted an entirely objective standard to ensure that the defense will permit "the dismissal of insubstantial lawsuits without trial." Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982). Under this objective standard, public officials are entitled to qualified immunity when their "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. at 2738.

In addition to the objective standard, the Supreme Court has adopted procedures to ensure that qualified immunity provides effective protection against unnecessary litigation risk and expense. Qualified immunity is a question of law that "ordinarily should be decided by the court long before trial." Hunter v. Bryant, --- U.S. ----, ----, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991). When the defendant moves for summary judgment on this ground, the district court first looks at whether the actions alleged:

are actions that a reasonable officer could have believed lawful. If they are, then [defendant] is entitled to dismissal prior to discovery. If they are not, and if the actions [defendant] claims he...