Bryson v. City of Waycross

• Decision Date: 30 November 1989
• Docket Number: No. 88-8888,88-8888
• Citation: 888 F.2d 1562
• Parties: J.R. BRYSON, Plaintiff-Appellant, Cross-Appellee, v. CITY OF WAYCROSS, C.B. Heys, W. Lynn Taylor, Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1562

888 F.2d 1562

J.R. BRYSON, Plaintiff-Appellant, Cross-Appellee, v. CITY OF WAYCROSS, C.B. Heys, W. Lynn Taylor Defendants-Appellees, Cross-Appellants.

No. 88-8888.

United States Court of Appeals, Eleventh Circuit.

Nov. 30, 1989.

Fletcher Farrington, Savannah, Ga., for plaintiff-appellant, cross-appellee.

David C. Will, Dickey, Whelchel, Brown & Readdick, Brunswick, Ga., Neal L. Conner, Jr., Mary Jane Cardwell, Kopp, Peavy and Conner, P.C., Waycross, Ga., for defendants-appellees, cross-appellants.

Appeals from the United States District Court for the Southern District of Georgia.

Before HATCHETT and CLARK, Circuit Judges, and HILL, Senior Circuit Judge.

HATCHETT, Circuit Judge.

By applying the criteria set forth in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), we affirm the district court's ruling that a police officer's statements regarding the activities of the police chief were matters of public concern, but not speech protected by the first amendment to the Constitution; consequently, adverse personnel actions could lawfully be taken against the police officer.

I. FACTS

In November, 1987, Police Captain J.R. Bryson, an officer with twenty-three years service on the Waycross, Georgia police force, filed a Memorandum of Complaint ("the complaint") with the city manager, C.B. Heys, alleging that Police Chief W. Lynn Taylor had stolen whiskey from the police department evidence room in 1980. Heys investigated this complaint and other verbal complaints Bryson made about the Chief's improprieties and decided the complaints were unfounded. In February, 1988, Chief Taylor relieved Bryson of his command and reassigned him to perform duties that Bryson alleges were less significant. After reassignment, Bryson received the same salary, but no longer was allowed use of a police department automobile. During this time, Bryson openly investigated Chief Taylor by interrogating members of the police force and tape-recording conversations.

II. PROCEDURAL HISTORY

On February 11, 1988, Bryson filed this action under 42 U.S.C. Sec. 1983 claiming that his reassignment was in retaliation for the complaint, in violation of his first amendment rights to freedom of expression. The lawsuit named the City of Waycross, Georgia, City Manager C.B. Heys, and Chief of Police W. Lynn Taylor as defendants ("the city"). The city answered that it transferred Bryson for failing to adequately perform his duties and disrupting department operations. In May, 1988, Chief Taylor placed Bryson on administrative leave and filed eight administrative charges, seeking the termination of Bryson's employment. In June, 1988, the district court granted Bryson's motion to amend his complaint to allege that the May employment charges against him were brought in retaliation for the lawsuit. The district court denied Bryson's motion to add equal protection and other constitutional claims, holding that to do so would "unduly prejudice the defendants."

At the close of Bryson's case, the district court determined that the filing of the complaint and the lawsuit were matters of public concern. At that time, the city moved for a directed verdict based on the balancing test between free speech rights and governmental efficiency announced in Pickering v. Board of Education. The city argued that Bryson was reassigned for failure to adequately perform his duties and disruptive behavior, and that the employment charges brought against Bryson in May, 1988, also were based on misconduct. The district court denied the city's motion, delaying application of the Pickering balancing test until the close of all the evidence. The district court submitted a special verdict form to the jury. ¹

At the close of all the evidence, the district court ruled in favor of the city based on its independent application of the Pickering test.

III. CONTENTIONS OF THE PARTIES

Bryson contends that the district court erred by setting aside the jury's finding of causation and substituting its own findings of credibility in conducting the Pickering balancing test. Bryson also contends that the district court abused its discretion in denying his motion to amend the complaint with claims based on equal protection.

The city contends that the jury's finding of causation did not bind the district court. The city argues that the district court's duty under Pickering is to decide the question of causation without help from the jury, and that the jury's findings were merely advisory. The city also contends that the district court did not abuse its discretion in denying Bryson's motion to add an equal protection claim to his complaint.

As cross-appellant, the city contends that the district court erred by denying its motion for a directed verdict as to the liability of the city and city manager. The city argues that Bryson did not sufficiently allege that the employment actions taken against him were officially ordered or a matter of city policy, or that the city manager had "final policy making authority" as required by Pembaur v. Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). The city also contends, on cross-appeal, that the district court erred in denying the city's motion in limine to exclude evidence of the alleged liquor theft.

IV. ISSUES

The parties argue four issues: (1) whether the district court properly applied the Pickering test; (2) whether the district court erred in denying Bryson's motion to amend his complaint to include an equal protection claim; (3) whether the district court erred in denying the city's motion for directed verdict on the issue of municipal liability; and (4) whether the district court abused its discretion in denying the city's motion in limine regarding the alleged liquor theft. Because of our holding on issues one and two, we do not decide issues three and four.

V. DISCUSSION

A. The Pickering Issue

Although the law is well-established that the state may not demote or discharge a public employee in retaliation for speech protected under the first amendment, a public employee's right to freedom of speech is not absolute. Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). In Pickering, the landmark case concerning a public employee's first amendment rights, the Supreme Court held that a public employee's interests are limited by the state's need to preserve efficient governmental functions.

[T]he state has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee] as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.

391 U.S. at 568, 88 S.Ct. at 1734-35.

In cases where the state denies discharging the employee because of speech, a four-stage analysis has evolved. See generally Kurtz v. Vickrey, 855 F.2d 723 (11th Cir.1988). At the first stage, the court determines the threshold issue raised in Pickering, whether the employee's speech may be "fairly characterized as constituting speech on a matter of public concern." Rankin, 483 U.S. at 384, 107 S.Ct. at 2896-97 (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983)). The court examines the content, form, and context of the employee's speech to determine whether it addresses a matter of public concern. Rankin, 483 U.S. at 384-85, 107 S.Ct. at 2897. Second, if the speech addresses a matter of public concern, the court then applies the second prong of Pickering, the balancing test, weighing the employee's first amendment interests against "the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Again, the context and circumstances of the employee's speech must be considered. Rankin, 483 U.S. at 388, 107 S.Ct. 2898. If the public employee prevails on the balancing test, the fact-finder determines whether the employee's speech played a "substantial part" in the government's decision to demote or discharge the employee. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Fourth, if the employee prevails by showing that the speech was a substantial motivating factor in the state's employment decision, the state must prove by a preponderance of the evidence that "it would have reached the same decision ... even in the absence of the protected conduct." Mt. Healthy, 429 U.S. at 286, 97 S.Ct. at 576. This fourth stage has been referred to as a "but for" test; the employer must show that "its legitimate reason, standing alone, would have induced it to make the same decision." Price Waterhouse v. Hopkins, --- U.S. ----, 109 S.Ct. 1775, 1791, 104 L.Ed.2d 268 (1989).

The district court satisfied the first stage of this analysis by finding that Bryson's speech addressed a matter of public concern. Bryson's initial complaint to the city manager alleged corruption within the city police department. As the district court noted, a core concern of the first amendment is the protection of the "whistle-blower" attempting to expose government corruption. The district court also found that the first amendment protected Bryson's filing of this lawsuit pursuant to the right to petition for redress of grievances.

The district court independently evaluated the Pickering balancing test and ruled in favor of the city. ² As part of the circumstances surrounding Bryson's speech, the court considered evidence of disruptive speech and behavior proffered by the city as legitimate reasons for Bryson's demotion. Bryson contends that the district court erred by adding these...