Bickel v. Burkhart

• Decision Date: 17 December 1980
• Docket Number: No. 79-1287,79-1287
• Parties: Frank D. BICKEL and The Garland Professional Firefighters' Association, Plaintiffs-Appellees, v. Bob G. BURKHART, The Garland Firemen's and Policemen's Civil Service Commission and The City of Garland, Texas, Defendants-Appellants. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1251

632 F.2d 1251

Frank D. BICKEL and The Garland Professional Firefighters'

Association, Plaintiffs-Appellees, v. Bob G. BURKHART, The Garland Firemen's and Policemen's Civil

Service Commission and The City of Garland, Texas,

Defendants-Appellants.

No. 79-1287.

United States Court of Appeals, Fifth Circuit.

Unit A

Dec. 17, 1980.

Merril E. Nunn, Pete Eckert, Garland, Tex., for defendants-appellants.

Frederick M. Baron, Dallas, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before WISDOM, AINSWORTH and GEE, Circuit Judges.

GEE, Circuit Judge:

In Davis v. Williams, 617 F.2d 1100 (5th Cir. 1980), this court held, en banc, that a municipal fire department rule requiring firemen to refrain from engaging in "(c)onduct prejudicial to good order" was not facially unconstitutional. The instant case raises the issue, not presented in Davis, of the constitutionality of that and other fire department rules as applied in a specific situation as well as the facial constitutionality of the other rules.

I. Facts and Issues on Appeal.

In 1976, members of the Garland, Texas, fire department had become increasingly dissatisfied with the pay they were receiving. On January 19, 1977, a meeting was held at a local fire station in which Mr. Don Paschal, Community Service Administrator for the City of Garland, presented information comparing the Garland fire department pay scale to that of other cities to the three firemen in attendance, one of whom was Frank D. Bickel, the plaintiff in this action. The meeting had been arranged by the Chief of the Garland Fire Department, Bob G. Burkhart, a defendant in this action, who also attended.

At the conclusion of his presentation, Mr. Paschal opened the floor for questions and comments. In the course of the subsequent discussion Mr. Bickel voiced several complaints regarding the department and certain of its equipment. Some two months later Mr. Bickel took and passed a civil service examination administered to firemen with the rank of "firefighter" who wished to be promoted to "driver engineer." Two days later, he was called in to see Chief Burkhart, who asked for facts substantiating the complaints Bickel had made at the Paschal meeting. Mr. Bickel, who received no advance notice of the purpose of the meeting with Chief Burkhart and who testified he had forgotten all about the meeting with Paschal, had no facts to offer. The Chief then told plaintiff he would let him know his assignment in a couple of weeks.

On May 16, 1977, Bickel received written notice from Chief Burkhart that he had been passed over for promotion to driver engineer ¹ "for violation of Fire Department Rules, Regulation (sic) and Procedures." Chief Burkhart's memorandum to Mr. Bickel explained his decision as follows:

"On January 19, 1977, I conducted a meeting at Fire Station # 5 in the presence of Mr. Don Paschal, Community Services Administrator for the City of Garland. During this meeting you made the following statements:

1. Our equipment is no good, that you answered a fire alarm and tried three Scott Air-Paks before you found one that would work.

2. You stated that we had two new engines at Central Station doing nothing, while you had a 1962 model at your station making more fire calls than any station in our city.

3. You stated that you were ashamed to talk to members of other fire departments, because they laughed at us.

On March 26, 1977, I called you into my office and ask (sic) for facts to substantiate these allegations. You stated you had none.

We find that during the year of 1976 your station made less fire calls than any station in our city except Station # 5, which is a new station. You also admited (sic) that the two Scott Air-Paks that would not work were the two carried on your engine. When ask (sic) why they were not repaired, you stated it was not your job to repair equipment.

This type attitude and untrue statements are in violation of the following Rules, Regulations and Procedures....

Article 5.2 ... Paragraph 40. (Firemen shall) refrain from being a party to any malicious gossip, report or activity that would tend to disrupt department morale or bring discredit to the department or any member thereof, or making derogatory statements, are (sic) adversely criticizing Department policy, activities, or officers except by written report to the Chief of the Department, through channels.

Article 5.4 ... Offenses.

(4) Conduct unbecoming a member of the department.

(5) Conduct prejudicial to good order."

Shortly after being denied his promotion, Bickel brought the present lawsuit under 42 U.S.C. § 1983, alleging the regulations quoted above were unconstitutional both facially and as applied to deny him the promotion to driver engineer. The Garland Professional Firefighters Association (Association), an unincorporated association, joined the suit seeking declaratory and injunctive relief with respect to the same regulations. Named as defendants in addition to Chief Burkhart were the City of Garland, Texas, and the Garland Firemen's and Policemen's Civil Service Commission. Prior to trial, the derogatory statements-adverse criticisms clause of Article 5.2(40) was deleted from the department's regulations, ² as was the provision of Article 5.4 prohibiting "conduct unbecoming a member of the department." ³

While the trial court did not grant injunctive relief, it ordered that Mr. Bickel be made "whole, monetarily and in all other ways as a result of defendants' refusal to promote him," on the grounds that all of the challenged regulations were unconstitutional both facially and as applied. In addition, the court awarded plaintiffs attorney fees without articulating reasons supporting its determination of the proper amount of an attorney fee award.

The issues presented by the defendants' appeal are:

(1) Whether the challenged regulations still in force (the prohibitions against malicious gossip and conduct prejudicial to good order) are facially unconstitutional; ⁴

(2) Whether the criticism voiced by Bickel in the Paschal meeting was a "substantial" or "motivating" factor in Chief Burkhart's decision not to promote him;

(3) Whether that criticism was constitutionally protected speech;

(4) Whether Chief Burkhart would have denied Bickel the promotion even if plaintiff had not voiced his criticisms in the Paschal meeting; and

(5) Whether a remand is necessary for an articulation of the reasons underlying the trial court's determination of the amount of attorney fees awarded plaintiffs.

The second, third, and fourth issues represent the tripart inquiry mandated by Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Van Ooteghem v. Gray, 628 F.2d 488 (5th Cir. 1980).

II. Facial Constitutionality.

The district court's determination that the rule prohibiting firemen from engaging in conduct prejudicial to good order is unconstitutional on its face is reversed for the reasons set forth in our en banc decision in Davis v. Williams, 617 F.2d 1100 (5th Cir. 1980), upholding that identical provision in a different fire department's regulations.

The district court's invalidation of the malicious gossip prohibition ⁵ is also reversed. By its terms this rule applies only to any gossip, report, or activity that is "malicious." Pursuant to the normal rule of statutory construction, we interpret "malicious" in such a manner as to uphold the constitutional validity of the rule. Accordingly, we find that this prohibition applies only to false statements made with knowledge of their falsity or made with reckless disregard of whether they are false or true. So construed, the rule does not violate the First Amendment. Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); D'Andrea v. Adams, 626 F.2d 469, 473-74 n.2 (5th Cir. 1980).

III. Mt. Healthy Analysis.

Mr. Bickel's right to back pay and retroactive seniority for the denial of his promotion ⁶ is conditioned upon his showing that he was not promoted because of the remarks he made at the Paschal meeting and that the remarks were constitutionally protected. In addition, if the defendants establish by a preponderance of the evidence that Bickel would have been denied promotion even in the absence of the protected conduct, plaintiff cannot recover. Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

The first inquiry is whether Bickel's conduct in voicing criticisms at the Paschal meeting was a substantial or motivating factor in Chief Burkhart's decision not to promote Bickel. ⁷ While defendants' argument that Bickel was not promoted because of his failure to maintain his equipment finds some support in the record, there is more than enough evidence to sustain the trial court's finding that Bickel's comments at the Paschal meeting were at least a substantial or motivating cause, if not the only cause, of the decision to deny him the promotion.

Chief Burkhart's memo, quoted and discussed above, explaining why Bickel was not promoted clearly provides a strong basis for the inference that a motivating factor in the Chief's decision was Bickel's voicing of criticisms at the Paschal meeting. In addition, had the primary reason for the Chief's decision been Bickel's failure to maintain his equipment, it is likely that the memo would have cited Article 5.4(A)1 of the department's regulations, which defines "neglect of duty" as an actionable offense. Further, the record reveals that while Chief Burkhart ordered an investigation to determine if the Scott Air-Paks were operable, he made no inquiry of Bickel's supervisor as to whether Bickel was properly maintaining his air-paks. In fact, the supervisor testified that Bickel was "probably better at (maintaining the air-paks) than most people were." Finally, Chief Burkhart admitted that he was upset by Bickel's criticisms made in the...