Busby v. City of Orlando, No. 89-3528

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before FAY and JOHNSON; PER CURIAM; ALLGOOD; JOHNSON
• Citation: 931 F.2d 764
• Decision Date: 17 May 1991
• Docket Number: No. 89-3528
• Parties: 55 Fair Empl.Prac.Cas. 1466, 56 Empl. Prac. Dec. P 40,860, 59 USLW 2772, 33 Fed. R. Evid. Serv. 760 Annie R. BUSBY, Plaintiff-Appellant, v. CITY OF ORLANDO, Frederick J. Walsh, individually and in his official capacity as Chief of the Orlando Police Department, Captain Ed Paden, individually and in his official capacity as Captain for the Orlando Police Department, Lt. Richard Noble, individually and in his official capacity as Lt. for the Orlando Police Department, Richard Mays, individually and in his official capacity as Major for Orlando Police Department, Defendants-Appellees.

Page 764

931 F.2d 764 55 Fair Empl.Prac.Cas. 1466,
56 Empl. Prac. Dec. P 40,860, 59 USLW 2772,
33 Fed. R. Evid. Serv. 760 Annie R. BUSBY, Plaintiff-Appellant,
v.
CITY OF ORLANDO, Frederick J. Walsh, individually and in his
official capacity as Chief of the Orlando Police Department,
Captain Ed Paden, individually and in his official capacity
as Captain for the Orlando Police Department, Lt. Richard
Noble, individually and in his official capacity as Lt. for
the Orlando Police Department, Richard Mays, individually
and in his official capacity as Major for Orlando Police
Department, Defendants-Appellees. No. 89-3528. United States Court of Appeals,
Eleventh Circuit. May 17, 1991.

Page 768

Homero Leon, Jr., Greater Orlando Area Legal Services, Inc., Orlando, Fla., for plaintiff-appellant.

Jeffrey G. Slater, Eubanks, Hilyard, Rumbley, Meier & Lengauer, Orlando, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY and JOHNSON, Circuit Judges, and ALLGOOD ^*, Senior District Judge.

PER CURIAM:

Annie R. Busby appeals the decision of the district court regarding various matters in her civil rights suit against the City of Orlando, et al., which resulted in an adverse jury verdict. She claims that the defendants-appellees, sued in their individual and official capacities under 42 U.S.C. Secs. 1981, 1983, 2000e et seq. (1988), were erroneously dismissed from suit. She also claims that the district court abused its discretion in excluding several exhibits and witnesses' testimony. We find that the district court correctly granted directed verdicts for appellees Chief Frederick Walsh, Major Richard Mays, Captain Ed Paden, and Lieutenant Richard Noble in their official capacities, and correctly granted a directed verdict in favor of Walsh in his individual capacity. However, because we find that Busby's claim against Chief Walsh was not groundless or without foundation, we VACATE the district court's award of attorney's fees to Walsh. Notwithstanding our holding that the district court properly granted directed verdicts for the officially named defendants, we find that the district court's erroneous charge to the jury regarding the directed verdicts amounted to prejudicial error to Busby in her suit against the City of Orlando, and accordingly, we REVERSE. We also find that the court correctly granted directed verdicts in favor of the individually named defendants on the section 1983 first amendment claim. We find, however, that the court erroneously granted directed verdicts in favor of Paden, Mays, and Noble in their individual capacities on the section 1983 equal protection claim. We therefore REVERSE these rulings. We also REVERSE the district court's decision on the following evidentiary issues: excluding racial discrimination statistics regarding the Orlando Police Department, and a corresponding graph summarizing and explaining those statistics; excluding the expert testimony of Charles English, a psychological counselor tendered to explain those exhibits and to testify as to psychological impact on Busby; excluding black co-worker Joyce Brinson's testimony; and excluding the introduction of an Internal Affairs Report corroborating Busby's accusations regarding Paden. We AFFIRM, however, the court's evidentiary rulings regarding

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the testimony of co-worker Joanne Jarboe and Lieutenant Lovett, because Busby failed to perfect the record on appeal by making an appropriate proffer of the evidence. We also AFFIRM the court's exclusion of a large, disorganized collection of documents, but recognize that such documents could be admitted upon retrial of the case if properly presented. Finally, we REMAND the case for proceedings consistent with this opinion. BACKGROUND

Plaintiff-appellant Annie Busby, a black woman, worked as an Airport Safety Officer ("ASO") for the Orlando Police Department ("OPD") from 1979 until her termination in 1986. According to the appellees, Busby was fired after she continually refused to obey a superior officer's order to sign an acknowledgement that she had read and received a document that outlined certain OPD policies and procedures. A number of events precipitated this ultimate showdown with her superiors that culminated in her termination.

In early 1985, Busby sent letters to all of the airlines at the Orlando International Airport (where she worked as an ASO) requesting the operations managers at each airline to encourage their employees to donate ten dollars each to a veterans' fund that Busby was trying to establish. ¹ Following this solicitation, one of the airlines filed a complaint with the OPD. The internal affairs division of the OPD investigated the matter and then referred it to the State Attorney's Office because of the potentially criminal nature of her conduct. The State Attorney's Office recommended that the OPD handle the matter internally, and did not file any criminal charges. The OPD ultimately did discipline Busby for soliciting. She received a written censure.

While the internal affairs division was still investigating Busby's solicitation matter, Busby wrote a number of letters and memos criticizing various officers in the OPD. She sent a letter to the Mayor of Orlando, as well as to other public commissions around the City of Orlando and the state of Florida. According to Busby, she wrote the letters only after first consulting with her superior officer, appellee Captain Ed Paden. She testified that she had complained to Paden about several problems she perceived to exist at OPD. Also, she claimed that she had confronted Paden himself and accused him of having extramarital sexual affairs with subordinates.

Busby was disciplined with a forty-hour suspension for conducting her letter writing campaign. Major Richard Mays instructed Busby to cease making accusations in violation of departmental policies that prohibited discussing pending investigations. Additionally, appellee Lieutenant Richard Noble also ordered Busby to cease making such remarks.

Despite this, Busby began to make new complaints to persons outside of the OPD. She complained that Paden had referred to her in conversation with others as a "black bitch," and that her duty assignment, which included driving a gasoline powered golf cart, was endangering her health. She claimed that the fumes emitted from the cart had injured her. Against Busby's doctor's recommendation, appellees Noble, Paden, and Mays ordered her to continue to ride the cart. She refused to comply and was shortly thereafter charged with insubordination. In addition, she was disciplined for a second time for making criticisms to the public without investigation.

Upon receiving this second discipline, Busby indicated to her superiors that no one had explained to her the OPD's policies regarding procedures employees must follow when making complaints. Mays decided to issue a letter to Busby outlining the department's written policy regarding complaint procedure. He instructed Noble to present the letter to Busby and to order her to sign the letter as "received, read, and understood."

On July 21, 1986, Noble ordered Busby to sign the complaint procedure policy letter,

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pursuant to Mays's order. The letter essentially stated that before an employee may complain publicly about the OPD, the employee must first give the department the opportunity to investigate the matter internally. ² Busby refused to sign the memo as "received, read, and understood," absent the advice of a Police Benevolent Association representative. Upon her refusal to sign, Noble requested that she leave his office while he consulted with Paden and Mays over the telephone. Paden, Mays, and Noble agreed that Busby's refusal to sign was insubordination, that she was not entitled to have a representative present, and that further refusal to sign was cause for termination. They decided that Noble would call her back into his office, with witnesses present, order her to sign in the presence of the witnesses, and relieve her from duty if she refused to sign. Busby again refused to sign the letter, and she was immediately relieved of duty. Mays subsequently terminated Busby. In deciding to terminate Busby's employment, Mays considered Busby's previous disciplinary history, in addition to the incident in Noble's office.

Busby filed suit in federal district court against the City of Orlando, Mays, Paden, Noble, and Orlando Police Department Chief of Police Frederick Walsh. She alleged that the appellees had violated her civil rights, and her right to free speech. The district court granted Walsh, Paden, Mays, and Noble a directed verdict for all claims against them in their individual capacities, and a directed verdict for all claims against them in their official capacities, reasoning that the official capacity claims were identical to the claim against the City of Orlando. At trial, the jury returned a verdict in favor of the City of Orlando.

Busby appeals on several grounds. She appeals the district court's granting of directed verdicts in favor of Walsh, Paden, Mays, and Noble. She also appeals the district court's decision to merge the official capacity suits into her suit against the City of Orlando directly, and claims further that the judge made a prejudicial charge to the jury when dismissing the officially-sued defendants. Finally, she appeals several evidentiary rulings by the district court. The evidentiary rulings that she appeals include, but are not limited to, the following: the exclusion of expert testimony from one of Busby's witnesses who was tendered to explain how certain racial discrimination statistics ³ were compiled, and to comment on the psychological impact on Busby from her experiences at the OPD; the exclusion of an internal affairs report concluding that Paden had been involved in extramarital affairs; and, the exclusion of testimony offered...