Collins v. Robinson
| Decision Date | 03 August 1983 |
| Docket Number | No. LR-C-82-358.,LR-C-82-358. |
| Citation | 568 F. Supp. 1464 |
| Parties | Charles COLLINS, Plaintiff, v. Tommy ROBINSON, Sheriff of Pulaski County, Arkansas, Individually and in his Official Capacity, and Pulaski County, Arkansas, Defendants, James Woody McNeely, Intervenor. |
| Court | U.S. District Court — Eastern District of Arkansas |
Richard L. Mays and Judith C. Lansky, Little Rock, Ark., for plaintiff and intervenor.
Stephen Curry, Little Rock, Ark., for defendants.
Claiming that he had been wrongfully discharged, Charles Collins, a black sergeant in the correction division of the Pulaski County Sheriff's office, sued Sheriff Tommy Robinson on May 17, 1982 for violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., along with 42 U.S.C. § 1983. His complaint was amended on November 8, 1982 to include allegations under 42 U.S.C. § 1981 and to specifically allege that the § 1983 violations involved his rights under the First and Fourteenth Amendments to the United States Constitution. He also joined Pulaski County as a defendant. Collins subsequently dismissed his § 1981 claim. On March 14, 1983 James Woody McNeely, a black deputy assigned to the patrol division of the sheriff's office, moved to intervene in this litigation to assert a claim for discrimination and failure to promote. His intervention, permitted April 7, 1983 was based on the same statutes, but McNeely subsequently restricted his claim to a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Robinson and the County answered by denying the allegations of the plaintiff and intervenor and demanded a jury trial as to the § 1983 allegations. By agreement, all the testimony concerning the Collins discharge was presented to the jury, with the Court reserving opinion as to whether Collins' proof had established a Title VII violation. The proof concerning the failure to promote McNeely was heard in the absence of the jury. The Collins case was submitted on six interrogatories. These interrogatories and the answers made thereto are as follows:
This claim involves a memorandum that Collins wrote to the Sheriff after a November 10, 1981 encounter with Major Mark Bowman, head of the patrol division and second in command of the department. Some background is appropriate. On the night of November 10, 1981 there was a meeting of the Quorum Court of Pulaski County attended by about one-third of the total work force of the sheriff's department. The Quorum Court as the County legislative body was considering the Sheriff's budget, and the employees of the sheriff's department were advocating a larger budget and higher salaries. At the forefront of this lobbying activity was the union to which almost all of the men below the rank of major belonged. Rumors were rife and excitement was high at this session attended not only by about seventy-five departmental employees but also by their families and members of the general public. One rumor that reached the ears of the Sheriff, but which turned out to be completely baseless, was that there would be a strike involving department personnel at the county jail and that as a result of such action the prisoners would be left unguarded and unattended. Robinson testified that he told Major Bowman, his second in command and head of the patrol division, to immediately go to the jail, investigate the situation and stop any such walkout. When Bowman arrived at the jail, he confronted Collins who was the sergeant in charge of the shift. Collins denied any knowledge of a walkout and stated that he did not intend to leave his post. He told Bowman that if the other employees walked off, he did not know what he could do to prevent it but again denied having any indication that such a walkout was in the offing. His response did not satisfy Bowman, who launched into a highly abusive and vulgar personal tirade, the content of which was reported to the Sheriff in a memorandum composed and typed by Collins after Bowman left. Collins did not personally respond to Bowman's abusive conduct, which occurred in the presence of other employees of the sheriff's office. Collins testified that he "took it" because he felt that the professional way to respond was to write an account in memo form to Major Bowman's only superior, Sheriff Robinson. The memorandum reads as follows:
On this date at approximately 2310 hours, I Sgt. Collins was giving the officers that work in the pods a break. When Sgt. Dicus, Cpl. Mewborn, Officer Clement, Officer Jackson, and two other officers came in to the breakroom from the Quorum Court meeting. I had three officers on lunch break, which were, Officer Kimble, Officer Eckman, Officer Goodman and Officer Madden coming down off the roof. Major Bowman came to door # 2 and began beating on the door. I (Sgt. Collins) went to the door and let him in. When he came in he began cursing out loud, and said I can't stand a bunch of yellow, coward, quiting motherfuckers. He said not a motherfucker is going to leave here tonight. He said if any son of bitch leaves he was going to arrest them. He kept yelling and cursing as he was going out the door, and as he was going out I told him that no one said anything about quitting or leaving, and if they did want to leave or quit I had no right to stop them. He yelled back and said if any motherfucker leaves he was going to put them in jail. I feel I was humiliated and harrassed sic in front of my employees and my employees nor myself appreciate being cursed and called names, when we were doing our jobs and had not said anything about leaving or quitting. Nor do we appreciate him calling in patrol units to guard the doors to make sure we didn't attempt to leave. I feel as the shift commander on duty of the jail that Major Bowman should have called me when he heard there was going to be a walkout and ask me about it instead of over reacting as he did. The officers on duty at this time are very upset about it and request that Major Bowman either be disciplined or at least made to apologize in person to the employees that were here doing their jobs. (PX 14)
Collins testified that he successfully maintained self-control and silence with great difficulty because of the epithets used by Bowman. This is certainly understandable in view of the content of Bowman's remarks. Bowman does not claim that Collins' report of his conduct or his remarks was inaccurate in any respect. However, he is not contrite and testified that he would behave in the same manner if presented again with the same situation. Nor does the Sheriff himself question the fairness or accuracy of the memorandum. He states that Collins was fired because he did not make his complaint through proper channels. Robinson's termination letter to Collins dated November 23, 1981 reads as follows:
Effective this date you are hereby terminated for not following our agreed upon procedures for filing your complaint in reference to Major Mark Bowman, i.e., you released the memorandum complaint to numberous sic persons in our department which caused dissension within the ranks. (PX 5)
Collins testified that he placed the memo under the doors of all of his superiors in the chain of command: Lt. White, Captain Day, and Major Zoeller. Since the incident occurred at 11:10 p.m., he wanted them to have access to it the following morning. Copies of the memo did receive rather wide circulation. A copy was posted in a conspicuous position at the detention facility and Collins undoubtedly showed copies to detention center employees present at the time of Bowman's outburst. Just who was responsible for the dissemination to other persons is not clear. There is little credible evidence that Collins was responsible for circulating the memo beyond his superiors and those present at the incident, and there is some evidence that he tried to stop such circulation and retrieve extra copies, particularly after being advised to do so by the union president, Mike Maynard.
The first question to be decided with respect to plaintiff's First Amendment claim is whether the memo is protected speech. "The inquiry into the protected status of speech is one of law, not fact." Connick v. Myers, ___ U.S. ___, at ___ n. 7, 103 S.Ct. 1684, at 1690 n. 7, 75 L.Ed.2d 708 (1983). In other words, the trial judge and not the jury must decide this issue. The guiding principles have been clearly enunciated by the Supreme Court. A public employee may not be constitutionally required to relinquish his First Amendment right to comment on matters of public...
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