Bowen v. Watkins

• Decision Date: 08 March 1982
• Docket Number: No. 81-4029,81-4029
• Citation: 669 F.2d 979
• Parties: Edward BOWEN, et al., Plaintiffs-Appellants, v. Charlie WATKINS, Chief of Police of the City of Columbus, Mississippi, Etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 979

669 F.2d 979

Edward BOWEN, et al., Plaintiffs-Appellants, v. Charlie WATKINS, Chief of Police of the City of Columbus Mississippi, Etc., et al., Defendants-Appellees.

No. 81-4029.

United States Court of Appeals Fifth Circuit.

March 8, 1982.

Wilbur O. Colom, Columbus, Miss., for plaintiffs-appellants.

Dewitt Hicks, Lydia Quarles, Columbus, Miss., for defendants-appellees.

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

Before WISDOM, SAM D. JOHNSON, and WILLIAMS, Circuit Judges.

WISDOM, Circuit Judge:

This case requires us to determine whether the exercise of first amendment rights of expression by public employees has led to adverse consequences for those employees and to determine the scope of the protection granted public employees who engage in constitutionally protected activity. In addition, the case presents difficult issues concerning the liability of the various officials involved in deciding on the adverse consequences and of the municipality for any constitutional violations.

The plaintiffs/appellants, Donald Westbrook and Edward Bowen, were sergeants in the police force of Columbus, Mississippi, as was Billy Pickens, intervenor, ¹ when a position as lieutenant in the Uniform Division became available. The Columbus Civil Service Commission certified all three men as eligible for promotion. On the written tests Bowen scored 119, the highest score, Westbrook 97, and Pickens 95. Charlie Watkins, the Chief of Police, recommended to the City Council that Pickens be promoted, and the City Council accepted his recommendation. Bowen and Westbrook, aware of reports unfavorable to Pickens in the police files, were surprised that neither of them received the promotion. Upon meeting with Chief Watkins, Bowen learned that several incidents in Pickens's record had not been disclosed to the City Council. Bowen and Westbrook then requested a hearing before the City Council, and at the hearing, they presented charges that (1) Pickens had engaged in criminal breaking and entering, resulting in his discharge in June 1967, (2) Pickens, while intoxicated, wrongfully discharged his firearm in November 1970, (3) Pickens, while driving when intoxicated, ran over and then threatened to kill one Stanley Jones in 1978, and (4) Pickens was discharged for embezzlement in December 1967. As a result of the hearing, the City Council rescinded Pickens's promotion on April 30, 1979. Police Chief Watkins then decided to transfer Lt. Oswalt from the Detective Division to fill the vacancy rather than to promote anyone on the eligibility list. Bowen and Westbrook filed this action for declaratory, monetary, and injunctive relief against Watkins, the city, the Mayor, and several City Council members, alleging a violation of the plaintiffs' constitutional right of free speech under 42 U.S.C. § 1983. The night before the scheduled deposition of the City Council members, on August 14, 1979, the Council ratified the transfer of Lt. Oswalt. After a bench trial, the district court rendered judgment for the defendants. On this appeal, the plaintiffs raise three arguments. First, they urge that the trial judge used the wrong legal standard, requiring the plaintiffs to show that the denial of the promotion was in retaliation for their exercise of first amendment rights. Second, they contend that, even if the trial judge employed the proper standard, requiring the plaintiffs to show that their constitutionally protected activity was a substantial factor in the decision not to promote, his finding that the request for a hearing and the filing of the suit were not substantial factors was clearly erroneous. Finally, the plaintiffs argue that the denial of promotion, if it was in violation of their constitutional rights, gives rise to liability on the part of the individual City Council members and on the part of the municipality. We reverse in part and remand.

I. The Legal Standard

Under Pickering v. Board of Education, 1968, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811, public employees do not surrender first amendment rights by accepting government employment, although, in determining whether a particular communication is protected, the bona fide interest of the state, as employer, in the efficient provision of services must be balanced against the interest of the employee in the expression and the interest of the public in hearing the communication. See generally Note, Free Speech and Impermissible Motive in the Dismissal of Public Employees, 89 Yale L.J. 376, 380-82 (1979). In this case, the trial court held, and the defendants do not now dispute, that the plaintiffs' request for a hearing was constitutionally protected. ² The issue on this appeal is whether the denial of the promotion to Bowen and Westbrook was related to the request for a hearing or to the filing of the suit in such a way as to render the denial a violation of the officers' rights.

The Supreme Court dealt with the causal link between protected activity and adverse action by a state employer necessary to establish a violation of constitutional rights in Mt. Healthy City Board of Education v. Doyle, 1977, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471. See generally Note, Nonpartisan Speech in the Police Department: The Aftermath of Pickering, 7 Hastings Const.L.Q. 1001, 1015 (1980). There, the Court was concerned with protecting the rights guaranteed by Pickering but at the same time wished to avoid windfalls to public employees who engaged in constitutionally protected conduct; an employee who would have been fired regardless of whether he exercised constitutional rights should not be reinstated solely because of his exercise of his rights. See 429 U.S. at 284-86, 97 S.Ct. at 574-575; see also Smith v. Price, 5 Cir. 1980, 616 F.2d 1371, 1379 & n.9. Accordingly, the Court adopted a shifting burden of proof. Initially, the employee has the burden of showing both that his activity was constitutionally protected and that it was a "substantial" or "motivating" factor in the decision of the employer. Then, the burden shifts to the employer, who may avoid liability by showing by a preponderance of the evidence that the same decision would have been made absent the constitutionally protected conduct. See 429 U.S. at 287, 97 S.Ct. at 576; see generally Note, Free Speech and Impermissible Motive in the Dismissal of Public Employees, 89 Yale L.J. 376, 376-77 (1979).

The plaintiffs here urge that, after finding the activity to be constitutionally protected, the trial judge imposed an additional requirement-that the plaintiffs show that the decision was made in retaliation for their request for a hearing. If indeed the trial judge imposed such a requirement, that would, of course, require us to reverse, for Mt. Healthy requires only that the employee show that his constitutionally protected conduct was a substantial or motivating factor in the decision. See, e.g., D'Andrea v. Adams, 5 Cir. 1980, 626 F.2d 469, 472, cert. denied, 1981, 450 U.S. 919, 101 S.Ct. 1365, 67 L.Ed.2d 345; Goss v. San Jacinto Junior College, 5 Cir. 1979, 588 F.2d 96, 99, modified per curiam on other grounds, 1979, 595 F.2d 1119. But only a strained reading of the record would support the conclusion that the trial court required a showing of retaliatory motive. The lower court explicitly and correctly stated the Mt. Healthy test in its order: "(P) laintiffs have not shown by a preponderance of the evidence, that their engaging in this constitutionally protected activity was a 'substantial factor' or a 'motivating factor' in defendants' decision to fill the contested lieutenant's vacancy by transfer rather than by promotion of one of the plaintiffs." Then, the court added, "Plaintiffs have failed to persuade the court that defendants' actions were retaliatory.... Likewise, the court finds the defendants' failure to promote plaintiffs during the pendency of this action does not constitute retaliation for their bringing suit." Given the correct statement of the Mt. Healthy test, and the plaintiffs' allegations at trial and in their complaint that the decision was "retaliatory", it is unlikely that the discussion of retaliation was anything more than an elaboration of the preceding discussion. ³ Furthermore, the pretrial order sets out as a contested issue of fact "whether the request for a hearing by plaintiffs ... was a substantial factor in the decision not to promote either of them...." As a result, we believe that the trial judge applied the correct standard.

II. Application of the Legal Standard

The plaintiffs assert that the record simply does not support the trial court's finding that the protected activity was not a substantial factor in the decision to transfer Lt. Oswalt, noting that the Chief of Police, the Mayor, and some of the Councilmen testified that unrest in the department was a primary consideration behind the decision. Also, the plaintiffs urge that the filing of the suit must have been a substantial factor in Watkins's decision not to recommend any promotions during the pendency of the litigation. ⁴ The defendants present two counterarguments. First, they assert that the transfer was motivated by the availability of extra lieutenants in the Detective Division and by budgetary concerns that arose after Pickens's promotion and before the rescission of the promotion. Second, they reason that unrest is not a constitutionally protected activity, and it was the unrest rather than the request for a hearing or the filing of the suit that was a consideration in the decision.

The determination whether a given act was "a substantial" or "a motivating" factor is one of fact to be made by the trial court. See Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 568, 575-576, 50 L.Ed.2d 471; Van Ooteghem v. Gray, 5 Cir. 1980, 628 F.2d 488, 491-93, aff'd on other grounds on rehearing en banc, 1981, 654 F.2d 304, cert. denied,...