Buzek v. County of Saunders, 91-3564

• Decision Date: 17 August 1992
• Docket Number: No. 91-3564,91-3564
• Citation: 972 F.2d 992
• Parties: Warren E. BUZEK, Plaintiff-Appellee, v. The COUNTY OF SAUNDERS, State of Nebraska; Ron G. Poskochil, Individually and in His Official Capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 992

972 F.2d 992

Warren E. BUZEK, Plaintiff-Appellee, v. The COUNTY OF SAUNDERS, State of Nebraska; Ron G.

Poskochil, Individually and in His Official

Capacity, Defendants-Appellants.

No. 91-3564.

United States Court of Appeals,

Eighth Circuit.

Submitted June 11, 1992.

Decided Aug. 17, 1992.

Jerry W. Katskee, Omaha, Nebraska, argued, for defendants-appellants.

Thom K. Cope, Lincoln, Neb., argued (Patricia A. Knapp, on the brief), for plaintiff-appellee.

Before BOWMAN and LOKEN, Circuit Judges, and LARSON, Senior District Judge. ^*

LOKEN, Circuit Judge.

Defendants in this § 1983 action are the County of Saunders, Nebraska, and its Sheriff, Ronald G. Poskochil. They appeal the district court's ¹ judgment entered on a jury verdict finding that former Deputy Sheriff Warren E. Buzek's discharge violated his First and Fourteenth Amendment rights and breached his employment contract. Defendants argue that the district court erred in its First Amendment and qualified immunity determinations and in denying defendants judgment notwithstanding the verdict on the County liability and due process issues. We affirm.

I.

Poskochil hired Buzek in January 1985. Buzek had a stormy relationship with Poskochil's chief deputy and constantly criticized the practices and policies of the department. However, Buzek survived until December 1989, when Poskochil fired him because of the following incident.

In November 1989, Sandra Chromy asked Buzek to write a letter to a judge in neighboring Dodge County who was about to sentence Chromy's son Robert for a sexual assault conviction. Buzek had arrested Robert a number of times and had worked with the family to keep him out of trouble. Buzek told Chromy that if his supervisors consented he would write a letter on Robert's behalf.

Shortly thereafter, Buzek took a draft letter to Sergeant Tilford Tucker of the Sarpy County Sheriff's Department, Buzek's supervisor on a multi-county drug task force to which he was then assigned. Tucker warned Buzek of the "professional ethics" question if a police officer intervened on behalf of a criminal defendant, and suggested that Buzek clear the letter with the Dodge County prosecutor. Ignoring this advice, Buzek sent the letter without notifying the Dodge County prosecutor or Poskochil. ²

Some months earlier, after an unrelated disagreement, the Dodge County prosecutor, Dean Skokan, had told Poskochil and Tucker that Buzek should "stay out of Dodge County." Now, Skokan sent an angry letter to Poskochil complaining about Buzek's letter to the judge. (Skokan's letter was not offered at trial, and no witness testified to its contents.) On December 21, Sheriff Poskochil told the Saunders County Attorney that he wanted to fire Buzek and asked what steps he should follow. The County Attorney testified: "what I told [Poskochil] was that it's his call, it's his office, he runs it the way he sees fit."

The next day, Poskochil summoned Buzek and fired him. According to Buzek, Poskochil "advised me that the letter that I had written was an embarrassment to the county and to the Saunders County Sheriff's Department and he would have to dismiss me." Poskochil refused to postpone the termination until after Christmas. When Buzek said that he wanted to grieve his discharge, Poskochil replied, "Step one: denied. Go to step two."

The grievance procedures for all but a few Saunders County employees are contained in an employee handbook that Buzek received on his first day of work. "Step two" of those procedures is a written appeal to the County Board of Supervisors. Buzek promptly filed his appeal, but the Board of Supervisors did not respond and gave Buzek no opportunity to present his side of the story.

Buzek then commenced this action in federal court against the County and Poskochil. At the close of trial, the district court instructed the jury that Buzek's letter was protected speech that was a substantial or motivating factor in his discharge, in effect directing a verdict that Poskochil and the County were liable on Buzek's First Amendment claim. The jury found that both defendants had violated Buzek's procedural due process rights, and that the County had breached Buzek's employment contract as reflected in the County's employee handbook. The jury awarded $72,000 in compensatory damages and $50,000 for emotional distress and reputation damage against both defendants, and $5,000 in punitive damages against Poskochil only. The court awarded an additional $17,251 in attorney fees and costs. This appeal followed.

II.

A. The First Amendment Claim. Defendants first argue that the district court erred in instructing the jury that Buzek's letter was protected First Amendment speech and was a substantial or motivating factor in his dismissal. It is settled that "a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983). Connick prescribed a two-part balancing test for determining whether particular speech by a public employee merits First Amendment protection. Because this balancing presents a question of law for the court, Id. at 150 & n. 10, 103 S.Ct. at 1692 & n. 10, the district court was correct in deciding this issue and instructing the jury accordingly.

1. The initial question is whether Buzek was speaking on a matter of public concern. Buzek's letter concerned the sentencing of Robert Chromy. The proper sentencing of convicted criminals is clearly a matter of public concern. This public concern is not diminished because the speaker is a law enforcement officer. Compare Melton v. City of Oklahoma City, 879 F.2d 706, 713-14 (10th Cir.1989), overruled on other grounds, 928 F.2d 920 (10th Cir.1991) (en banc). Indeed, as Sergeant Tucker told Buzek, police officers regularly make recommendations as to appropriate sentences. Thus, we agree with the district court that Buzek's letter satisfies this part of the Connick test.

2. Speech on a matter of public concern is not protected speech unless "the interests of the [employee], as a citizen, in commenting upon matters of public concern [outweigh] the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968), quoted in Connick, 461 U.S. at 140, 103 S.Ct. at 1686. In this case, defendants introduced no evidence that Buzek's letter impaired the efficient functioning of the department or damaged its public reputation, other than Poskochil's cryptic remark that Buzek had embarrassed the department. Skokan's letter might have been relevant in this regard, but it was not put in evidence, perhaps because Poskochil had kept Buzek on for months after Skokan's angry instruction that Buzek was to stay out of Dodge County--thus, Buzek's discharge could hardly be justified because he wrote a letter that irritated Skokan.

We are mindful that law enforcement agencies, more than other public employers, have special organizational needs that permit greater restrictions on employee speech. See Crain v. Board of Police Comm'rs, 920 F.2d 1402, 1409 (8th Cir.1990); Hughes v. Whitmer, 714 F.2d 1407, 1419 (8th Cir.1983), cert. denied, 465 U.S. 1023, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984). However, because defendants failed to offer any proof that Buzek's letter had a detrimental impact on the department's legitimate interests, we agree with the district court's determination that Buzek's letter was protected speech as a matter of law. See Rankin v. McPherson, 483 U.S. 378, 388-92, 107 S.Ct. 2891, 2899-2901, 97 L.Ed.2d 315 (1987); Powell v. Basham, 921 F.2d 165, 168 (8th Cir.1990).

3. There remains the issue of causation. In Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977), the Court held that a public employee must prove that his protected speech was a "substantial or motivating factor" in the employer's decision to fire him; the employer may then avoid liability by proving that it would have fired the employee anyway. Defendants correctly argue that whether Buzek's letter was a "substantial or motivating" factor in their decision to fire him and whether he would have been fired anyway are typically questions of fact for the jury. Thus, the district court's decision to direct a verdict for Buzek on this issue would be improper if, construing all the evidence and inferences in defendants' favor, reasonable jurors could have concluded differently. See City Nat'l Bank v Unique Structures, Inc., 929 F.2d 1308, 1312 (8th Cir.1991).

On this issue, Sheriff Poskochil's trial testimony is critical. He testified on direct examination:

Q. Why did you terminate Mr. Buzek?

A. I dismissed Mr. Buzek from my employ, because I felt that he used poor judgment in the deliverance of the letter in a sentencing in Dodge County and also because of his prior record of poor judgment.

And on cross examination:

Q. Did you fire him because of his actions concerning the letter?

A. Yes, I did.

* * * * * *

Q. Mr. Poskochil, would Warren Buzek have been terminated in December of 1989 had he not written the letter to Judge Fuhrman?

A. No.

And on redirect examination:

Q. Is it your testimony that [the letter] was not the sole consideration in your determination?

A. In my mind, no, that was not the only reason.

Given this testimony, and the County Attorney's testimony that this was exclusively Poskochil's decision to make, we agree with the district court's decision to direct a verdict for Buzek on the Mt. Healthy causation issues.

B. The County's Liability. The County argues that there was insufficient evidence to hold it liable for Sheriff Poskochil's wrongful acts. The district court instructed the jury that they should find the County liable if...