Fikes v. City of Daphne

• Decision Date: 09 April 1996
• Docket Number: No. 94-7216,94-7216
• Citation: 79 F.3d 1079
• Parties: James Larry FIKES, Plaintiff-Appellant, v. CITY OF DAPHNE; Joseph Hall, Police Chief for City of Daphne; Susan Hostetter, City Personnel Manager a/k/a Susan Cowart; Charlie McNichol, Employee for the City of Daphne; Walter Gipson, Employee for the City of Daphne, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1079

79 F.3d 1079

James Larry FIKES, Plaintiff-Appellant, v. CITY OF DAPHNE; Joseph Hall, Police Chief for City of Daphne; Susan Hostetter, City Personnel Manager a/k/a Susan Cowart; Charlie McNichol, Employee for the City of Daphne Walter Gipson, Employee for the City of Daphne, et al Defendants-Appellees.

No. 94-7216.

United States Court of Appeals Eleventh Circuit.

April 9, 1996.

Wayne A. Ehlers, Semmes, AL, for appellant.

M. Kathryn Knight, Miller, Hamilton, Snider & Odom, L.L.C., Mobile, AL, for appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before TJOFLAT, Chief Judge, and DYER and GARTH ^*, Senior Circuit Judges.

TJOFLAT, Chief Judge:

This appeal presents the question of whether the district court erred in dismissing, for failure to state a claim, a police officer's complaint alleging that he was discharged from his employment for exercising his freedom of speech. We find that the complaint does state a claim. We therefore VACATE the court's judgment and REMAND the case for further proceedings.

I.

On October 19, 1989, appellant went to work for the City of Daphne, Alabama, as an officer in its police department. On July 15, 1992, following a pretermination hearing, the City discharged appellant for "good cause," consisting of

(a) Deliberately stealing, destroying, abusing or damaging City property, tools, or equipment, or the property of another employee, citizen or visitor;

(b) Disclosure of confidential city information to unauthorized persons;

(c) Wilfully disregarding City policies or procedures. ¹

On June 10, 1994, twenty-three months after his discharge, appellant brought this suit against the City, the city manager, the city personnel manager, the police chief, and three police officers. ² In a quintessential "shotgun" pleading, ³ appellant sought compensatory damages ⁴ against the defendants severally to redress deprivation of rights secured by:

(a) The First, Fifth, Ninth and Fourteenth Amendments to the United States Constitution providing for the rights of all persons ... to enjoy freedom of speech, movement, association and assembly, to petition their government for redress of their grievances, to be secure in their persons, to be free from unreasonable searches and seizures, to enjoy privacy, to be free from slavery and deprivations of life, liberty and property without due process of law, and the Civil Rights Act of 1871, 42 U.S.C. § 1983, and § 1985(2), providing for the protection of all persons in their civil rights and the redress of deprivation of rights under color of law; and

(b) the common law of the State of Alabama providing for damages to persons subjected to the intentional [infliction] of emotional distress or the intentional interference with employment contracts.

The "Statement of Facts" contained in the complaint is rather disorganized. It is difficult, without some speculation, to discern precisely what took place and how, if at all, the events interact with one another. In addition, one must read between the lines to determine which events deprived appellant of the various constitutional and statutory rights mentioned above. Given these impediments to an accurate construction of appellant's complaint, we relate the events described in, or arguably inferable from, appellant's Statement of Facts. We set out these events in the order in which they appear in the pleading.

(1) As noted above, appellant's employment in the police department began in October 1989 and, following a pretermination hearing, terminated in July 1992, purportedly for good cause.

(2) After his discharge, appellant sought employment at the municipal airport in Mobile,

Alabama, but was turned down because the City's personnel manager said that he was ineligible for reemployment with the City.

(3) In August 1990, while employed by the police department, appellant was injured while responding to a domestic dispute. He filed a worker's compensation claim. Following surgery, his physician said he could return to work if restricted to light duty. The chief of police, Joseph Hall, put appellant on full duty, telling him that if he could not do his job, someone would be found who could.

(4) After his worker's compensation claim was settled and he returned to work, appellant attempted to reopen his claim.

(5) Soon after returning to work, appellant suffered "additional symptoms, which required the services of a chiropractor." The chiropractor placed additional restrictions on his work activity; for example, appellant could not wear a "duty belt" while sitting. Appellant's supervisor told appellant that he could not work without wearing the belt.

(6) In August 1992, during a Department of Industrial Relations hearing on appellant's worker's compensation claim, the City's personnel manager testified falsely that appellant had not reported to work since the previous March.

(7) On May 26, 1990, Officer McNichol, a defendant here, ignored an order from his superior, Sergeant Gipson, to terminate a high-speed automobile chase. McNichol disregarded the order and continued the pursuit. The pursuit resulted in four fatalities. Appellant immediately reported the incident to Chief Hall and, in November 1991, to the Alabama Bureau of Investigation ("ABI").

(8) Sergeant Johnson, another defendant in the case, drove a vehicle "that had not been properly condemned" on personal business. Appellant reported the incident. The ABI determined that Johnson's use of the vehicle was improper.

(9) At some point prior to his discharge, appellant commenced an "investigation of certain improprieties within the Daphne Police Department." Chief Hall told him "to be quiet about the entire matter."

(10) Appellant disregarded the chief's admonition and continued his investigation. He reported his findings to "other appropriate authorities," including the ABI. When Chief Hall learned of these reports, he told the city manager that appellant had to be fired. Chief Hall then "devised and initiated a systematic strategy to eliminate [appellant] from the Daphne Police Department." The chief's strategy succeeded on July 15, 1992, when the City discharged appellant.

(11) On November 12, 1991, Sergeants Gipson and Johnson "attempted to interrogate [appellant] regarding his investigation of the improprieties that [appellant] had witnessed within the Daphne Police Department. [Appellant] responded by informing [them] that he would not elaborate unless his attorney was present along with [Chief] Hall. [Sergeants Gipson and Johnson] responded by citing [appellant] for insubordination."

(12) The City terminated appellant's employment without cause. ⁵ The grounds the City cited as good cause for the termination were pretextual. The City discharged appellant because he was reporting episodes of misconduct in the Police Department to the ABI and "other appropriate authorities."

Drawing on these facts, appellant sought in his complaint to hold the defendants liable on four counts. The first two counts contained state law claims: that the City lacked good cause for discharging appellant, and that the City breached its duty to treat appellant "in a manner so as not to cause him unnecessary mental and emotional distress," by intentionally engaging, through its agents and employees, "in a clearly outrageous course of conduct causing severe emotional distress and physical harm to [appellant]." The third and fourth counts alleged violations of various federal constitutional and statutory provisions. Counts three and four each alleged damages in excess of three million dollars.

Count three states that during appellant's employment in the police department, and in discharging him on July 15, 1992, the defendants

either acted in a concerted, malicious intentional pattern to deprive [appellant] of his constitutional rights, or knowing that such [deprivation] was taking place, knowingly omitted to act to protect [appellant] from continuing deprivations of his rights to enjoy freedom of speech, movement, association and assembly, to petition his government for redress of grievances, and to be free from deprivations of life, liberty and property without due process of law; all in violation of the Constitution and laws of the United States....

[Moreover, the defendants,] in acting to deprive [appellant] of his rights, went far beyond actions reasonably necessary for the discharge of their duties and within the scope of their employment, and instead misused their official powers and acted from a willful and malicious intent to deprive [appellant] of his civil rights and cause him grievous injuries thereby.

[Finally, the defendants] acted in an outrageous and [systematic] pattern of harassment, oppression, intimidation, bad faith, employment discrimination, cover-up and retaliation directed at [appellant]....

Count four of the complaint states that the defendants,

acting individually and in their official capacities as supervisory and administrative officers of the City ... conspired, planned, agreed and intended to harass, intimidate and cause economic injury to [appellant]. [Their] purpose in so acting was to prevent [appellant], through economic and psychological violence and intimidation, from seeking the equal protection of the laws, and from enjoying the equal privileges and immunities of citizens under the Constitution and laws of the United States and the State of Alabama, including but not limited to his rights to enjoy freedom of speech, movement, association and assembly, to petition his government for redress of grievances, and to be free from deprivations of life, liberty and property without due process of law; all in violation of the Constitution of the United States.

Pursuant to their conspiracy, [defendants] acted to deprive [appellant] of his civil rights, by repeated and insidious act[s] of harassment, retaliation, intimidation, bad faith and threat, all in violation...