City of Hollywood v. Hogan

• Decision Date: 04 June 2008
• Docket Number: No. 4D07-392.,No. 4D07-495.,4D07-392.,4D07-495.
• Citation: 986 So.2d 634
• Parties: CITY OF HOLLYWOOD, Florida, Appellant, v. Francis X. HOGAN and Michael Springstun, Appellees.
• Court: Florida District Court of Appeals

986 So.2d 634

CITY OF HOLLYWOOD, Florida, Appellant, v. Francis X. HOGAN and Michael Springstun, Appellees.

No. 4D07-392.

No. 4D07-495.

District Court of Appeal of Florida, Fourth District.

June 4, 2008.

Rehearing Denied August 21, 2008.

Daniel L. Abbott and Robert M. Oldershaw, Hollywood, for appellant.

William R. Amlong and Jennifer Daley of Amlong & Amlong, P.A., Fort Lauderdale, and Colleen A. Brannelly of Loughren & Doyle, P.A., Fort Lauderdale, for appellee.

WARNER, J.

The City of Hollywood appeals final judgments awarding damages for age discrimination in favor of two police officers, and the officers appeal the trial court's entry of a judgment notwithstanding the verdict on their retaliation claims. As the cases were tried together, we consolidate the appeals of both final judgments for the purposes of this opinion. The City argues that the officers did not prove their case of age discrimination and, in the alternative, the court erred in denying the City's motion for remittitur or a new trial. On their cross-appeal, the officers contend that the court eliminated their claim for retaliation when there was competent substantial evidence to support it. We affirm `the finding of liability for age discrimination but reverse the denial of the motion for remittitur or new trial, as the compensatory damages were grossly excessive. We also reverse the final judgment in the City's favor on the retaliation claims, because the court erred in granting the motion for judgment notwithstanding the verdict on those claims.

I. Facts

This case involves two police sergeants, Michael Springstun and Frances Hogan, who were passed over for promotion to lieutenant in favor of younger officers. Springstun was first hired by the City of Hollywood Police Department in 1980, becoming a sergeant in 1993. During his long tenure, he received various commendations from his superiors for his work and for his leadership in the department. At one point he was temporarily assigned as a lieutenant for a period of months. Hogan commenced employment with the City in 1976 and was promoted to sergeant in 1984. For a while he worked on an organized crime task force and then a money-laundering task force. He returned to a patrol position. His personnel file contained good performance evaluations.

In order to qualify for promotion to lieutenant, applicants must take a test. The governing civil service ordinance establishes what is known as the "rule of three." When applicants for promotion pass the applicable examination, they are ranked in accordance with their test scores. The police chief may select any one of the top three candidates for a position, at his discretion, so long as he does not act in an illegal, discriminatory fashion. If there is a second opening, the chief may then select any of the top three candidates still on the list. Thus, if there are five positions available, for example, and seven people on the list, the chief could in each case skip over the officers ranked number one and two and thus promote officers three through seven, at his discretion. Each list lasts a year or two. The contract with the police union specifies that all persons who have qualified remain on the list until it expires. However, there is no provision which requires the chief to select only in the order of test qualification. Once the list expires, the officer must re-take the test to be eligible for promotion in the succeeding period.

Sergeant Springstun took the exam in 1996 and was ranked third. However, he did not get promoted before the list expired. He testified that "most of the time, unless somebody was under investigation, they would follow the list," meaning that typically the highest-ranked candidate was chosen for each position. The only time he ever saw them go out of order was if someone was under investigation. That was the policy until the arrival of Chief Scarberry who replaced the retiring chief.

Chief Scarberry took office in 1999. In his first weeks he interviewed eighty members of the department, both supervisory and non-supervisory. He met with Springstun and Hogan as part of this process. Scarberry asked each interviewee to discuss the department's relationship with the community and what might be wrong with the way the police department functioned. He also asked the interviewees to identify the five best leaders in the department. From his interviews, the chief determined that the department was lacking leadership, management, and professionalism. He observed that it had formerly operated in a "country club" atmosphere, which he intended to do away with.

In 2000, Springstun and Hogan both took the lieutenant's exam. Springstun ranked third on the initial list, and Hogan ranked fifth, out of nine candidates. When the first promotion opportunity occurred, the chief appointed Sergeant Affanato, age 40, who was first on the list. At that time Springstun was 49, and Hogan was 48. As Affanato was higher on the list than Springstun and Hogan, neither man expressed an issue with his promotion. Four months later, the chief promoted Sergeant Haberland, age 35, who was second on the list.

The chief made four promotions from January to June 2002. First, he promoted Weatherford, 41, when the "rule of three" list consisted of Springstun, Weatherford, and Hogan in that order. In June 2002 Springstun (age 51) was number one, Hogan (age 50) was number two, and Richard Nardello (age 44) was number three. The chief chose Nardello.

After Springstun was passed over for promotion the first time, he met with Chief Scarberry to find out what he could do to improve his chances for promotion. The chief told him there was nothing he could do to improve his chance. The chief never told him that his leadership skills were a problem. Because Springstun had an excellent background with many commendations, he concluded that the only reason he was passed over was because of his age.

In another June 2002 selection, Mark May, age 48, moved into the third position on the list behind Springstun and Hogan, and May was selected. In August 2002, Jeff Marano, who was 46, moved into the third slot and was chosen. He was head of the police union. In the last opportunity for promotion before the list expired, Mark Smith, age 44, moved into the third slot and was chosen.

At trial, Springstun and Hogan particularly challenged Marano's promotion because of a number of work-related issues, including Marano being named a defendant in several lawsuits involving his police work. They did not challenge the qualifications of the other sergeants receiving promotions.

The decision to promote was made by the chief after a meeting with command staff who offered their input into the promotion decision. Major Jones and Major D'Heron were part of the command staff and at the meeting. Chief Scarberry testified that he made his choices based on who he thought would be the best leaders. When asked how he arrived at that decision, he testified:

There's so many intangible quantities that go along with leadership. I mean does the person exude confidence, do they have respect of—from the entire department.

Am I hearing, am I hearing from the department that that's the logical choice, or am I hearing different from that. Am I hearing, boy, I hope the Chief doesn't make that person just because he is number one on the list. And what am I getting from my command staff. And how have these people performed in just over a year now from the first choice that Sergeant Affanato was selected for lieutenant.

Scarberry did not think that either Springstun or Hogan was the type of leader that he was looking for to improve the department. None of the majors or captains recommended them for promotion. Chief Scarberry admitted that he did not have any opportunity to observe Springstun's or Hogan's work. He also admitted that he did not review their personnel files before making the decision to repeatedly pass them over for promotion. In his deposition, Chief Scarberry claimed that in making such decisions, "sometimes it just comes to me, you know."

Springstun and Hogan presented evidence that age was a substantial factor in the chief's decision-making process. Lieutenant Kordzikowski, one of Springstun's supervisors, told Springstun just before the first promotion that he thought that the police chief felt that "we were all dried up, old, and had nothing to give." Springstun testified that another time Lieutenant Kordzikowski advised "that age was the reason we were not getting promoted. He said that his only conversations with the Chief was [sic] basically when he's going to retire. It appeared he [Kordzikowski] felt that they were trying to push us out." Similarly, in a job evaluation approved by one of the command staff members before the last opportunity for promotion occurred, Springstun's supervising lieutenant in July 2002 wrote, "I encourage you to maintain this attitude as you move closer to the retirement phase of your career."

When Hogan was studying for the lieutenant's exam, Major D'Heron, a member of the command staff, asked Hogan why he was bothering since "you're too old for this now." D'Heron denied making this statement in his testimony. After Hogan was passed over for promotion to lieutenant, Major Jones told him that, during the meeting among the command staff about the promotion, it was said that Hogan was "part of the past, not part of the future."

Officer Larry Boles, age 54, was permitted to testify that when he had been transferred back from a special unit to regular patrol, the chief told him that he was too close to retirement to justify educating him for the special unit. This occurred three years after the 2000 lieutenant promotion list expired.

The City showed that Chief Scarberry had frequently passed over persons on the list in promoting people both for lieutenant and for other positions. Springstun and Hogan also admitted that the chief had...