Cromer v. Brown

Decision Date07 December 1994
Docket NumberNo. 94-1403,94-1403
Citation88 F.3d 1315
Parties71 Fair Empl.Prac.Cas. (BNA) 530 Patrick H. CROMER, Plaintiff-Appellant, v. Johnny Mack BROWN, individually and in his official capacity as Greenville County Sheriff; Greenville County Sheriff's Office, Defendants-Appellees. Equal Employment Opportunity Commission, Amicus Curiae. . Argued:
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Stephen John Henry, Taylor & Henry, Greenville, South Carolina, for Appellant. Anna Maria Conner, Haynsworth, Baldwin, Johnson & Greaves, P.A., Greenville, South Carolina, for Appellees. ON BRIEF: Thomas A. Bright, Haynsworth, Baldwin, Johnson & Greaves, P.A., Greenville, South Carolina, for Appellees. James R. Neely, Jr., Deputy General Counsel Before RUSSELL and MICHAEL, Circuit Judges, and MESSITTE, United States District Judge for the District of Maryland, sitting by designation.

Gwendolyn Young Reams, Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, Robert J. Gregory, Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae.

Affirmed in part, reversed in part, and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Judge RUSSELL and Judge MESSITTE joined.

OPINION

MICHAEL, Circuit Judge:

Patrick Cromer, an African American who sued his former employer (Johnny Mack Brown, the Sheriff of Greenville County, South Carolina) for racial discrimination and First Amendment violations, appeals from the grant of summary judgment to the sheriff on some claims and the dismissal of others. We affirm in part, reverse in part, and remand for further proceedings.

First, Cromer claims that because of his race Sheriff Brown demoted him from captain to lieutenant, and then fired him from his job as lieutenant, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court held that Cromer was not protected under Title VII because (as both captain and lieutenant) he fit within the statute's exclusion for the "personal staff" of an elected official. We affirm the district court on the captaincy exclusion, but we reverse on the lieutenancy. We hold that Cromer was not on Sheriff Brown's personal staff when he was a lieutenant, so the Title VII claim is remanded insofar as it charges that Cromer was fired from his job as lieutenant because of race.

Second, Cromer claims that he was demoted and discharged because of his race in violation of the Civil Rights Act of 1991, 42 U.S.C. § 1981. Sheriff Brown took these actions before the effective date of the amendments to § 1981, and the district court dismissed the § 1981 claims on the ground that the Civil Rights Act of 1991 is not applied retroactively. We summarily affirm the dismissal of these claims. See Rivers v. Roadway Express, Inc., 511 U.S. 298, ----, 114 S.Ct. 1510, 1513, 128 L.Ed.2d 274 (1994) (the Civil Rights Act of 1991 does not apply retroactively to cover conduct completed prior to the law's enactment).

Third, invoking 42 U.S.C. § 1983, Cromer claims that Sheriff Brown fired him from his job as lieutenant in violation of his First Amendment rights of free speech and association because Cromer joined a black officers' association and spoke up about perceived racial discrimination in the sheriff's office. On these claims, the district court granted summary judgment to Sheriff Brown in his individual capacity, holding that the sheriff was entitled to qualified immunity. We disagree and reverse on this point. Cromer had a clearly established right (of which a reasonable official would have known) to speak up about the widespread perception of racial discrimination in the sheriff's department and to join an association of black officers formed to bring complaints of discrimination to the sheriff's attention. To the extent the § 1983 claims were against Sheriff Brown in his official capacity, we affirm the district court's holding that the sheriff, as a state official, is immune from suit for money damages. We reverse the district court's determination that the doctrine of official immunity protects the sheriff from claims for injunctive relief.

I.
A.

The facts about Cromer's different roles as captain and lieutenant are not in dispute. We construe the other facts in the light most favorable to Cromer, the non-moving party below. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Sheriff Brown's predecessor in office hired Cromer to work as a deputy sheriff in 1974. In 1976 Brown was elected sheriff. Upon taking office in January 1977, Brown recommissioned Cromer as a deputy. Within the next two weeks Sheriff Brown promoted Cromer twice, first to sergeant and then to lieutenant. Cromer served as a lieutenant from 1977 until 1988.

During the twelve-year period from 1977 to 1988, Sheriff Brown denied Cromer a promotion to captain several times. According to Cromer, Sheriff Brown refused to promote him because of Cromer's long-term relationship with a white woman, Beth Johnson. Specifically, Cromer testified (in deposition) as follows:

Question: [When you asked Sheriff Brown about promotion to captain], [w]hat did he say?

Cromer: At that time, I was dating a white female and he told me that he would have a serious problem with me being a captain for him, since I was dating that white girl....

Question: All right. Tell me about that conversation. When did this take place? ...

Cromer: That conversation ha[s] taken place many times with myself and Sheriff Brown over the years.

* * * * * *

Question: I want to know [about each one of the conversations] to the best of your recollection.

Cromer: All I'm telling you, we had many conversations concerning Beth and he made it good and clear that he didn't appreciate interracial dating. He didn't like it and he wasn't tolerated [sic] for it and he just couldn't handle it and he made it good and plain to me. And many times, he threatened to terminate me....

The sheriff also let Cromer know that he should not bring Beth to the Annual Sheriff's Office Awards Banquet. This led Lieutenant Cromer to tell his immediate supervisor, Captain Sorrow, that "I would not be attending those awards if I couldn't bring Beth." In 1988 Major Barnett, the officer of highest rank under Sheriff Brown, suggested to the sheriff that he promote Cromer to captain. Major Barnett later told Cromer "that the Sheriff had reservations, but he [Barnett] was standing tall to try to get me promoted because he felt like I was qualified and it was about time." In June 1988 Cromer again talked with the sheriff about the possibility of a promotion. Again, Beth, Cromer's white companion, was a subject of discussion. However, on July 1, 1988, Sheriff Brown made Cromer the first black captain in the history of the Greenville County Sheriff's Office.

As one of four captains, Cromer stood high in the chain of command in the sheriff's office. He commanded one of four divisions, Uniform Patrol, and supervised 185 officers, including five lieutenants and twenty-six sergeants. Cromer was outranked only by Major Barnett and Sheriff Brown. Together, the four captains, the major and the sheriff made up the "command staff." The command staff met weekly to discuss operations, policy and procedure. Cromer felt he had a "strong, effective voice" in policy discussions when he was captain. The command staff was also responsible for community relations. Once, while Cromer was captain, the command staff met with the president of the Greenville County NAACP. Cromer told the president, "I [am] the Captain of Uniform Patrol and ... black, if there [are] racial problems [in the sheriff's office], they [are] brought directly to me and we [will] handle them."

Cromer's tenure as captain did not go smoothly. Cromer apparently believes that certain white lieutenants orchestrated a campaign to have him ousted as captain. Sheriff Brown says that certain lieutenants did begin to question Cromer's methods of supervision and that Major Barnett investigated the complaints by interviewing the complaining lieutenants and several sergeants. Barnett then reported to Brown, who demoted Cromer from captain to lieutenant on March 13, 1991. Sheriff Brown asserts that he demoted Cromer because he had "lost his ability and his effectiveness as a commander of the uniform patrol." According to the sheriff, Cromer lost his effectiveness because he supervised through fear and retaliation. Cromer claims his demotion was because of his race. He was treated differently, he says, than any white captain whose performance was ever questioned. White captains with performance problems had simply been reassigned to other duties without taking a demotion in rank. 1

As a lieutenant Cromer no longer participated in command staff meetings. He rarely saw Sheriff Brown. Cromer's only formal contact with the sheriff occurred at monthly meetings, which were attended by every officer in the department. As a lieutenant Cromer was neither involved in creating department policy nor consulted on any proposed changes to policy.

On May 1, 1991, six weeks after Cromer's demotion, most (about 30) of the sheriff department's 32 black deputies met after work at a private residence. There, under the leadership of Sergeant Paul Guy, they formed a group called the Black Law Enforcement Officers Association (the "Association"). Cromer attended the Association's first four meetings. Each meeting was held after work at a private residence. At the Association's meetings the black officers discussed their concerns about racial problems in the sheriff's department. After the fourth meeting, in mid-May, 1991, the Association submitted privately to Sheriff Brown an unsigned letter entitled "Race Relationship Within The Greenville County Sheriffs Office As Perceived By Black Deputies." 2

The seven-page letter began by saying that "Black officers within the [Greenville County...

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