Cox v. CIVIL SERVICE COM'N DOUGLAS COUNTY
| Decision Date | 14 July 2000 |
| Docket Number | No. S-99-591.,S-99-591. |
| Citation | 614 N.W.2d 273,259 Neb. 1013 |
| Parties | George COX, appellant, v. CIVIL SERVICE COMMISSION OF DOUGLAS COUNTY, Nebraska, appellee. |
| Court | Nebraska Supreme Court |
Michael P. Dowd, of Dowd & Dowd, Omaha, for appellant.
James S. Jansen, Douglas County Attorney, and Jennifer K. Johnson for appellee.
Amy A. Miller, Omaha, for amicus curiae American Civil Liberties Union Foundation of Nebraska.
The Douglas County Department of Correctional Services (Department) brought disciplinary charges against the appellant, George Cox, after he spoke to a reporter regarding allegations of racial discrimination within the Department. Cox had the permission of several of the Department's correctional center supervisors to speak to the reporter. Following a predisciplinary hearing, the Department terminated Cox's employment. Cox appealed his termination of employment to the Douglas County Civil Service Commission (Commission), which affirmed. The district court affirmed after hearing Cox's petition in error. Cox appealed, and we granted his petition to bypass the Nebraska Court of Appeals. We determine as a matter of law that the termination of employment violated Cox's First Amendment right to freedom of speech. Accordingly, we reverse.
After speaking with a television reporter, Cox was sent a letter notifying him of a predisciplinary hearing which stated:
The charge(s) against you are:
Cox's employment was terminated following the predisciplinary hearing. The letter notifying Cox of his termination stated that Cox admitted making the statements and was signed by the Douglas County sheriff, Timothy F. Dunning. Cox appealed his termination to the Commission.
At the hearing before the Commission, the Department presented evidence from Susan Fletcher, a staffing coordinator at the Department. Fletcher testified that on August 20, 1998, she entered a break room where Cox was on the telephone and overheard his side of the conversation. At the time, Fletcher was unaware of to whom Cox was speaking. Fletcher testified that Cox was aware of her presence, that he was speaking in a normal tone, and that she could hear him clearly. Fletcher testified that another employee was also present in the break room.
Fletcher testified that she heard Cox state that the sheriff was trying to take over the correctional center and did not have any black leadership; that there was a black warden, but he did not have any duties; and that he felt that some correctional center employees were racists. Fletcher later stated it was the general consensus at the correctional center that it was true there was a black warden with no duties. Fletcher also testified that she heard Cox say there was a female warden who summoned a black female officer to her office and then made the officer stand in the hallway and never acknowledged the officer's presence. Fletcher later testified that she had been told by another employee that such an incident had occurred. Fletcher testified that Cox stated that a union president carries a hood in his trunk, but then stated, "No, that's rumor," and that he finished the conversation by stating, "We have a captain that acts like Hitler" and "His name [is] Captain Lee." When asked if Cox appeared to be answering questions or offering information, Fletcher stated that he appeared to be "story-telling." Following the incident, Fletcher wrote a report of the incident on the request of Warden Bill McPhillips. On cross-examination, Fletcher admitted that she did not have knowledge of whether Cox was possibly repeating questions that were asked of him.
Ross Stebbins, the union president and a sergeant at the correctional center, testified regarding the rumor that he had a hood in his trunk. Stebbins stated that he interpreted this to mean a Ku Klux Klan hood and testified that if such a rumor were to get out around the correctional center, his life could be in danger. As a result, Stebbins filed a complaint of a hostile work environment based on that rumor. At one point, Stebbins testified that he felt he was defamed by the allegation because of the damage such a statement could do to his reputation.
Stebbins testified that in the past, Cox had spoken to him about racism at the correctional center and that Cox had stated that he was going to "blow the lid off the County" because he felt he was being treated unfairly and there was racism within the Department. Stebbins' testimony indicates that Cox may have felt he was being treated unfairly because he had previously been demoted. However, the record is not clear regarding the details of the demotion. Stebbins' testimony indicates that he was Cox's union representative at the time these statements were made and that although he found the content of Cox's comments to be inappropriate, it was not inappropriate for Cox to bring such complaints to him. Cox denies making any such statements to Stebbins.
Dunning, who was in charge of employment decisions at the correctional center, testified that he believed the remarks made by Cox brought disrepute to the correctional center. Dunning also testified that the comments could affect the safety and security of employees and inmates by causing undue violence within the correctional center. Dunning testified that following an investigation, the accuracy of the comments made by Cox was not substantiated. However, Dunning's testimony indicates that the accuracy of the comments was not disproved by his investigation either. Dunning admitted that Cox had been given permission by McPhillips to speak with Creighton and that there was not a rule in effect that prohibited officers from speaking with the media. He then stated that he believed that when Cox spoke with Creighton, he went beyond the scope of permission he was given to talk to her. However, Dunning was unable to state with any specificity based on personal knowledge what that scope might have been.
Dunning stated he had recommended that Cox's employment be terminated due to the severity of the remarks and the fact that a prior hostile work environment complaint had been filed against him. The record contains no further details regarding the prior complaint other than the fact that Cox later testified that the complaint was still pending. Dunning also stated that even if Cox had been repeating Creighton's questions and had expressed only his personal opinion, he still would have recommended that Cox's employment be terminated. The record indicates that regardless of the circumstances, Dunning would have terminated Cox's employment because he went outside the chain of authority when making allegations of racial discrimination.
Dunning signed the letter notifying Cox of his termination of employment. Dunning admitted that he sat on the predisciplinary hearing board and stated that he felt it was appropriate for him to serve in that capacity in Cox's case even though one of the topics of Cox's conversation with Creighton concerned statements that Dunning was trying to take over the correctional center and that Dunning had no black supervisors in his office.
At the hearing, Cox testified that prior to his termination, he held the position of sergeant and was the team leader of a 10- to 16-person team. According to Cox, on August 20, 1998, he received two to three messages that Creighton was trying to get in touch with him. Cox then informed McPhillips that Creighton had been trying to get in touch with him. Cox testified that he asked McPhillips if he had McPhillips' permission to talk to Creighton and that McPhillips answered, "Yes." Cox then testified that he reemphasized his request by stating: "Can I talk to her, answer any questions that she asks me about anything other than inmates ... because I know policy is you cannot discuss inmates." Cox testified that McPhillips replied "you're right." Following this conversation, Cox attended a meeting and then went with McPhillips to see Warden Ann O'Connor, the warden in charge of uniformed officers, about Cox's speaking with Creighton. The record indicates that Cox did this because he wanted to avoid any repercussions that could occur from "jumping the chain of command" by speaking to Creighton without permission. According to Cox, O'Connor did not voice any objections to his speaking with Creighton, and McPhillips did not indicate to Cox that he was limited in the scope of his conversation with Creighton. After speaking with O'Connor, Cox also informed a third warden that he was going to speak with Creighton. Cox testified...
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