Eckerman v. Tenn. Dep't of Safety

• Decision Date: 24 February 2011
• Docket Number: No. 09–6181.,09–6181.
• Citation: 636 F.3d 202
• Parties: Robert ECKERMAN, Plaintiff–Appellant,v.TENNESSEE DEPARTMENT OF SAFETY, an agency of the State of Tennessee; Gerald Nicely, Former Department of Safety Commissioner, in his individual and official capacities; Mike Walker, Colonel, Tennessee Highway Patrol, in his individual and official capacities; Danny Wilson, Lieutenant Colonel, Tennessee Highway Patrol, in his individual and official capacities; John Savage, Major, Tennessee Highway Patrol, in his individual and official capacities; Wayne Springer, Major, Tennessee Highway Patrol, in his individual and official capacities; Frankie Floyd, Criminal Investigator, Tennessee Highway Patrol, in his individual and official capacities; Dan Hollis, Criminal Investigator, Tennessee Highway Patrol, in his individual and official capacities; George Dittsworth, Captain, Tennessee Highway Patrol, in his individual and official capacities, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

636 F.3d 202

94 Empl. Prac. Dec. P 44,068

31 IER Cases 1110

Robert ECKERMAN, Plaintiff–Appellant,

v.TENNESSEE DEPARTMENT OF SAFETY, an agency of the State of Tennessee; Gerald Nicely, Former Department of Safety Commissioner, in his individual and official capacities; Mike Walker, Colonel, Tennessee Highway Patrol, in his individual and official capacities; Danny Wilson, Lieutenant Colonel, Tennessee Highway Patrol, in his individual and official capacities; John Savage, Major, Tennessee Highway Patrol, in his individual and official capacities; Wayne Springer, Major, Tennessee Highway Patrol, in his individual and official capacities; Frankie Floyd, Criminal Investigator, Tennessee Highway Patrol, in his individual and official capacities; Dan Hollis, Criminal Investigator, Tennessee Highway Patrol, in his individual and official capacities; George Dittsworth, Captain, Tennessee Highway Patrol, in his individual and official capacities, Defendants–Appellees.

No. 09–6181.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 13, 2010.Decided and Filed: Dec. 20, 2010.Rehearing and Rehearing En Banc Denied Feb. 24, 2011.*

ARGUED: Arthur F. Knight, III, Taylor, Fleishman & Knight, P.C., Knoxville, Tennessee, for Appellant. Frank J. Scanlon, Watkins & McNeilly, PLLC, Nashville, Tennessee, for Appellees. ON BRIEF: Arthur F. Knight, III, Taylor, Fleishman & Knight, P.C., Knoxville, Tennessee, for Appellant. Frank J. Scanlon, Samuel P. Helmbrecht, Watkins & McNeilly, PLLC, Nashville, Tennessee, for Appellees.Before: MERRITT and COOK, Circuit Judges.^**

OPINION

MERRITT, Circuit Judge.

This is a constitutional tort case brought by a Tennessee highway patrolman who claims he was demoted due to his affiliation with the Republican Party. The plaintiff, Robert Eckerman, employed by defendant Tennessee Department of Safety, was demoted from lieutenant to sergeant on December 6, 2006. In an administrative proceeding before the Tennessee Civil Service Commission, Judge Joyce Carter–Ball reversed the demotion with findings of fact and conclusions of law on March 11, 2008, holding that the plaintiff had not violated any rules and policies of the Department of Safety and that the demotion was not justified. Judge Carter–Ball's findings that the Department had no reasonable basis for the disciplinary action against plaintiff are final. On August 13, 2007, between the time plaintiff was demoted and the decision made by Judge Carter–Ball to reverse the demotion and reinstate plaintiff to the rank of sergeant, plaintiff filed this action in federal court alleging a constitutional tort action and conspiracy under 42 U.S.C. §§ 1983, 1985.¹ The lawsuit claimed that plaintiff was demoted from lieutenant to sergeant and suffered other minor employment actions and retaliation due to his political support for Republican candidates and because he had filed a separate federal lawsuit against the Department in 2006 alleging discrimination based on political affiliation.² On August 28, 2009, the district court granted summary judgment to the defendants and plaintiff appealed.

The district court agreed with plaintiff that he had a constitutionally-protected interest of political association with the Republican Party under the First Amendment and that he suffered an adverse employment action when he was demoted. But the district court on summary judgment ruled that “defendants have presented enough evidence for a reasonable jury to conclude that the demotion would have occurred in the absence of political affiliation” or retaliation. The district court held that the reasons articulated by the Department of Safety provided justification for the adverse employment action. But the reasons for the demotion were precisely the same reasons that Judge Carter–Ball in her final decision had found untrue and could not warrant the demotion, i.e., that plaintiff was “confrontational and uncooperative,” “refused to answer questions,” and improperly “failed to notify the supervisors” of information in connection with a departmental investigation. These facts found in the administrative proceeding by Judge Carter–Ball are res judicata in this proceeding. Both the findings of fact and conclusions of law are final. See Restatement (Second) of Judgments § 27.³

We, therefore, reverse in part the grant of summary judgment in this case and remand for a jury trial, as requested by plaintiff. The jury must be advised of the findings of Judge Carter–Ball in the administrative proceeding. Those findings are conclusive and may not be relitigated. The jury should then determine whether the Department's demotion of plaintiff was based on activity protected by the First Amendment. If so, the jury should proceed to determine the damages that he has suffered as a result of the constitutional tort.

I.

Plaintiff began his employment with the Tennessee Highway Patrol in 1984 and was promoted to lieutenant in 1995. Beginning after the inauguration of Governor Phil Bredesen in 2003, plaintiff alleges that he started to receive poor work assignments, was denied promotions and transfers, was assigned less desirable shifts and was ultimately demoted based on his Republican affiliation. He previously filed a lawsuit against the Department in 2006. There is no dispute that plaintiff's supervisors knew he consistently voted Republican; he displayed bumper stickers on his personal vehicle and yard signs on his property for the Republican candidate in various federal, state and local elections on numerous occasions. The fact of the filing of the previous lawsuit was well known in the Department.

On January 18, 2006, Eckerman allegedly met Velma Jones, defendant Gerald Nicely's assistant. When Eckerman described to her some of the retaliatory treatment he had received by people in the Department of Safety, he claims she told him his “problem” was that he was an “R” (Republican) in a “D” (Democratic) administration. During the same meeting, defendant Nicely asked Eckerman if Ms. Jones had explained to him about the “R's” and “D's.” Defendant alleges that Nicely went on to ask Eckerman about political job assignments and Eckerman's support of Republican gubernatorial candidates.

The precipitating event that led to Eckerman's demotion began on October 10, 2006, when Major John Savage, a defendant in this case, received information from a patrol officer that certain individuals in the Highway Patrol had made allegations that Lieutenant Colonel Danny Wilson, a defendant herein, had tampered with hiring procedures to favor minority candidates. Based on this information, Colonel Mike Walker, a defendant herein, authorized an Internal Affairs investigation into the allegations. Defendants George Dittsworth, Frankie Floyd (sometimes referred to as “Floied”) and Dan Hollis, all employees of Highway Patrol, took part in the investigation at the request of Major Savage. Colonel Walker advised then-Commissioner Nicely of the allegations against Wilson and the initiation of an investigation. Plaintiff was interviewed as part of the investigation and it was determined that he had spoken with various Highway Patrol officers over the phone about the hiring incident and the allegations against Danny Wilson.

A Summary Report of Internal Affairs investigation was completed by defendants Dittsworth, Floyd and Hollis and issued on November 16, 2006. The Report details the sequence of events that led to the investigation, as well as the findings of the investigation, which included findings about plaintiff's conduct during the incident. Although apparently reluctant to answer questions during the investigation, plaintiff revealed that he spoke with other officers about Danny Wilson and the alleged hiring irregularities. During the interview, plaintiff expressed his mistrust and dislike of Danny Wilson and said Wilson was “capable of anything” and had given unlawful orders in the past. He believes that Wilson “favors and leans towards blacks.” He stated his belief that there was a “cover up” in the hiring process and that Wilson was behind it.

The investigation revealed no wrongdoing on the part of Lieutenant Colonel Danny Wilson, but did result in adverse findings for several other officers who were subjects of the investigation, including plaintiff. The Summary Report found that Eckerman's actions violated several Highway Patrol General orders, including (1) the spreading of malicious rumors concerning Lieutenant Colonel Danny Wilson, (2) failing to inform his supervisors about the allegations he heard concerning Wilson, (3) conducting an “unauthorized investigation” into the allegations about Wilson and (4) “failing to answer questions during the investigation.” Summary of Procedural Violations, Nov. 16, 2006. Based on these findings, plaintiff and one other officer received demotions and three officers received suspensions of two or three days. Summary of Procedural Violations and Disciplinary Recommendations, Nov. 29, 2006.

Plaintiff chose to challenge his demotion within the Department through the four-step grievance process available to Department employees. The demotion was upheld and Eckerman appealed to the Tennessee Civil Service Commission. After a hearing, Judge Joyce Carter–Ball of the Tennessee Civil Service Commission reversed the Department's decision and reinstated Eckerman to his previous rank of lieutenant. In re Eckerman, No. 26.19–095351J (Tenn.Civ.Serv.Comm. Mar. 8, 2008). The Civil Service Commission order became final in April 2008 and the Department of Safety reinstated Eckerman to the rank of lieutenant. The Department claims to have paid Eckerman all back wages due to him, but Eckerman disputes this in his brief on appeal to this Court. Eckerman Br. at 20 n.9.

On June 11, 2007, before plaintiff had been reinstated to the rank of lieutenant by the Tennessee Civil Service Commission, he filed this action pursuant to 42 U.S.C. §§ 1983 and 1985, alleging that d...