English v. Powell
| Decision Date | 31 January 1979 |
| Docket Number | Nos. 77-2500,77-2560 and 78-1059,s. 77-2500 |
| Citation | 592 F.2d 727 |
| Parties | Donald R. ENGLISH, William R. Williams, and the A. B. C. Employees Association of New Hanover County, Appellants, v. W. Douglas POWELL, Individually and as Administrator to the New Hanover County Alcoholic Beverage Control Board, Charles S. Carter, Individually and as assistant to the Administrator, the New Hanover County Alcoholic Beverage Control Board, John E. Mowbray, Pender P. Durham, Eugene W. Edwards, Individually and as members of the New Hanover County Alcoholic Beverage Control Board, Appellees. E. A. SHANDS & Vera Shands, Appellants, v. W. Douglas POWELL, Individually and as Administrator to the New Hanover County Alcoholic Beverage Control Board, the New Hanover Alcoholic Beverage Control Board, and its Individual members: John E. Mowbray, Pender P. Durham and W. Eugene Edwards, Appellees. William L. CLARK, Robert Kraus, Ledley B. Symmes, C. C. Williams, Telford Davis, Bedford Jackson and William T. Small, Appellants, and James J. Wall, ABC Employees Association, Donald R. English, William R. Williams, E. A. Shands and wife, Vera Shands, Counterclaim Defendants, v. W. Douglas POWELL, Individually and as Administrator of the New Hanover County Alcoholic Beverage Control Board, Charles S. Carter, Individually and as assistant to the Administrator of New Hanover County Alcoholic Beverage Control Board, the New Hanover County Alcoholic Beverage Control Board, John E. Mowbray, William Rehder, W. Eugene Edwards, Individually and as members of the New Hanover County Alcoholic Beverage Control Board and Pender Durham, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
James J. Wall, Wilmington, N. C. (Frank Cherry, Cherry & Wall, Wilmington, N. C., on brief), for appellants.
J. W. Alexander, Jr., Charlotte, N. C. (Richard F. Kane, Charlotte, N. C., Cicero P. Yow, Wilmington, N. C., Blakeney, Alexander & Machen, Charlotte, N. C., Yow & Yow, Wilmington, N. C., on brief), for appellees.
Before WINTER, RUSSELL and HALL, Circuit Judges.
In these consolidated appeals the plaintiff/appellants, (1) a personnel director and his wife, (2) two liquor store managers, and (3) seven liquor store employees allege that their constitutional rights were violated by the defendant/appellee, New Hanover County Alcoholic Beverage Control Board (hereinafter "Board.") 1 Each plaintiff with the exception of Vera Shands, See § I Infra, was an employee of the Board at the time of the incidents giving rise to the separate but related lawsuits. The district court granted summary judgment for the Board in each case, and we affirm.
In 1974 and early 1975, the Board was reorganized upon recommendation of the New Hanover County Composite Board. 2 Plaintiff Vera Shands was vice-chairman of the Composite Board Committee assigned to plan and implement the reorganization. As one result of the reorganization, a personnel management position was created and was filled by Vera Shands' husband, plaintiff E. A. Shands. Mr. Shands had previously been a liquor store manager.
Several months after the initial reorganization and appointment of Mr. Shands, defendant W. D. Powell, a Board member, was appointed as chief administrator of the ABC system, making him Shands' immediate supervisor. Shands was bitterly and openly opposed to Powell's appointment while the appointment was being considered. In particular, he complained to Board members that there was a "lack of communication" between Powell and himself and that Powell was interfering with Shands' authority in matters concerning personnel management.
On October 9, 1975, the day of Powell's appointment, Powell and Shands met at Powell's request to discuss the problems created by Shands' attitude. A "heated discussion" ensued at this meeting, and much of the conversation is a matter of disputed fact. However, Shands does not deny that he agreed to voice any further complaints not to Board members but rather to Powell directly, i. e., "in the chain of command," although he states that he made this concession merely to gain time to discuss the matter with his wife and to seek legal advice. At the close of the conversation Powell told Shands that the position of personnel director was being abolished, but that Shands would be kept on at the administrative level in an advisory capacity.
That same evening Shands told his wife about the meeting with Powell. Mrs. Shands immediately became "irrational" and began making telephone calls to various Board members to complain about the treatment afforded her husband. Shands was unable to prevent his wife from making the calls, but he did take the telephone away from her several times to discuss both his situation and the propriety of Powell's appointment as chief administrator. The last call Mrs. Shands made was to Pender Durham, a Board member and good friend of the Shands'. Shands again took the phone away from his wife and spoke to Durham; at the close of the conversation Durham told him that, as a result of the calls made by Mrs. Shands to members of the Board, Powell would fire Shands the next morning. 3 Durham later called Powell to intercede for Shands, and Powell agreed to reconsider overnight.
The next morning Shands again met with Powell. Anticipating that he was about to be fired, he requested that he be reassigned to his former position of liquor store manager. Told that no such positions were available, he then requested assignment to the position of liquor store clerk. Powell responded that he would "think about it" and decide within three days whether Shands would be fired or reassigned; he added that, if Shands or his wife made any more complaints to members of the Board, Shands would immediately be fired. On October 13 Powell gave Shands a job as store clerk. Shands appealed to the Board for reinstatement to his former position and, after his request was denied, filed this lawsuit.
As a threshold issue we review the district court's dismissal of Vera Shands from this action on the ground that she has no standing. Mrs. Shands, a party plaintiff, alleged that her rights under the first amendment were infringed during the sequence of events which led to her husband's demotion. Although Mrs. Shands admits that she cannot rest her claim to relief solely on the legal rights of her husband, Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), she alleges that her injuries meet the test suggested by Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 222, 44 L.Ed.2d 600 (1975): subjective chill on her first amendment rights And present objective harm. 421 U.S. at 816-17, 95 S.Ct. 222, citing Laird v. Tatum,408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). The subjective chill results from Powell's statement to E. A. Shands that, if his wife made any further complaints to the Board, Shands would be fired. The objective harm results from Shands' demotion to store clerk and attendant decrease in salary; Mrs. Shands, who was a housewife while her husband was personnel manager, had to take a job to supplement the family income.
We agree with the district court that these injuries are too indirect and speculative to support Mrs. Shands' standing as plaintiff in a lawsuit filed to challenge the propriety of her husband's demotion. It is a novel theory that a wife possesses such a proprietary interest in her husband's position that a decrease in his salary gives her an actionable claim. Plaintiffs admit that this theory is without precedent, and we decline to write new law on the facts of this case. We therefore affirm the dismissal of Vera Shands from this lawsuit.
The linchpin of E. A. Shands' claim for relief is his contention that he was discharged from his job as personnel manager for exercising his first amendment right to speak out on an issue of public concern. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The district court granted summary judgment for defendant Board and the individual defendants, holding that Shands had voluntarily requested his demotion to clerk and had not been constructively discharged, See J. P. Stevens & Co., Inc. v. N. L. R. B., 461 F.2d 490 (4th Cir. 1972), and that, in any event, his speech was not constitutionally protected within the meaning of Pickering.
Shands, of course, requested his demotion to store clerk, and the Board relies on Smith v. Board of Regents, 426 F.2d 492 (5th Cir. 1970) to support its position that Shands' voluntary action precludes any subsequent assertion that his constitutional rights were infringed. We are not persuaded that Smith is dispositive. There a college professor was informed several times by the chairman of his department that the president "had doubts about" recommending him for reappointment; the professor submitted his resignation. Several weeks later he requested reinstatement, charging that his resignation had been prompted by his concern that he would be fired. The college refused to rehire him. In a subsequent lawsuit Smith alleged that his "dismissal" from public employment violated his constitutional rights. The district court found from all the evidence adduced at trial that he had not been dismissed and, since his resignation had been voluntary, it could not be termed a constructive discharge. On appeal, the Fifth Circuit affirmed the findings of the lower court.
Here, Shands alleges that Pender Durham told him on October 9 that he would be fired the following morning. This factual situation is sufficiently different from Smith that we cannot say with assurance, on motion for summary judgment, that Shands' request for demotion was voluntary. 4 In any event, the district court did not rest its decision on that ground alone. We therefore address the issue of whether Shands' demotion was impermissible under the rationale of ...
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