Forsyth v. City of Dallas, Tex.
| Decision Date | 16 August 1996 |
| Docket Number | No. 95-10360,95-10360 |
| Citation | 91 F.3d 769 |
| Parties | 11 IER Cases 1833 Jan FORSYTH, Richard Kirks, Plaintiffs-Appellees Cross-Appellants, v. CITY OF DALLAS, TX, et al., Defendants, City of Dallas, TX, Willard Rollins, Richard Hatler, Defendant-Appellant Cross-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Douglas R. Larson, Russell Howard Daniels, Law Office of Douglas R. Larson, Mesquite, TX, for Forsyth and Kirks.
Sam A. Lindsay, City Attorney, Fritz Joseph Aldrine, II, Associate City Attorney, Office of the City Attorney for the City of Dallas, Dallas, TX, Janice Smith Moss, Assistant Attorney General, City Attorney's Office, City of Dallas, Dallas, TX, for City of Dallas, TX, Rollins and Hatler.
Bill Boyd, McKinney, TX, for Vines.
Appeals from the United States District Court for the Northern District of Texas.
Before POLITZ, Chief Judge, and JONES and BARKSDALE, Circuit Judges.
Jan Forsyth and Richard Kirks were veteran undercover detectives in the Intelligence Unit of the Dallas Police Department ("DPD"). They alleged, both to superior officers in the DPD and later to the media, that several high-ranking DPD officers had participated in illegal wiretapping that interfered with a sensitive undercover investigation. After the Dallas Morning News ran two articles about their allegations, Forsyth and Kirks were transferred from the Intelligence Unit to night uniformed patrol. Forsyth and Kirks sued the City of Dallas ("the City"), and Officers Willard Rollins, Richard Hatler, and Mack Vines for retaliating against them in violation of 42 U.S.C. § 1983 and the Texas Whistleblower Act, TEX.CIV.STAT.ANN. art. 6252-16a (1992), because they had exercised their First Amendment rights to free speech. After a jury trial, the district court entered judgment against the City, Rollins, and Hatler, assessing a total of $175,000 in actual damages, $1 million in exemplary damages, and $153,470 in attorneys' fees and costs. The district court granted judgment as a matter of law to the defendants on Kirks's claim for lost wages. Both sides now appeal. We affirm the district court's judgment.
At the time of this suit, Forsyth and Kirks were conducting an undercover drug "sting" in conjunction with the Federal Bureau of Investigation and the Drug Enforcement Agency. Through a complex series of events related to the sting, a Dallas lawyer (Barr) and a politically influential Dallas businessman (Grogan) decided to level a complaint against Forsyth and Kirks with the DPD. The Internal Affairs ("IA") division of the DPD investigated the complaint and exonerated Forsyth and Kirks. A copy of the IA report was given to Forsyth.
From this report, Forsyth and Kirks formed a belief that several high-ranking officers within the DPD had engaged in illegal wiretapping. They complained about the alleged wiretaps to several superior officers in the DPD. Forsyth and Kirks contend their complaints were ignored.
Subsequently, Forsyth and Kirks turned the IA report over to their attorneys and instructed the attorneys to "go public" with their allegations that several high-ranking DPD officers had engaged in illegal wiretaps. On February 5, 1989, the Dallas Morning News ran a front page article about Forsyth's and Kirks's allegations. Two days later, Forsyth and Kirks were called to a meeting with their supervisors, Chief Rollins and Assistant Chief Hatler. Forsyth and Kirks testified that Rollins and Hatler told them to "stop the publicity" and threatened to transfer them from the Intelligence Unit if any further publicity ensued.
On February 13th, Forsyth and Kirks sued the City, Rollins, and several other officers over the illegal wiretaps ("the wiretapping suit"). 1
On February 14th, the Dallas Morning News ran an article about the wiretapping suit. The next day, Forsyth and Kirks were transferred from the Intelligence Unit to night uniformed patrol. Rollins and Hatler requested the transfer, and Vines approved it. Although Forsyth's and Kirks's pay was not reduced because of the transfers, they considered their new positions to be demotions. They had each begun their careers, thirteen and nineteen years previously, in night uniformed patrol.
Forsyth and Kirks filed the instant suit alleging that the City and Rollins, Hatler, and Vines had retaliated against them for complaining to superior DPD officers about the alleged wiretapping, for publicizing their wiretapping allegations, and for filing the wiretapping suit, in violation of the First Amendment, § 1983, and the Whistleblower Act, supra. At trial, the jury found that (1) the officers' transfers constituted adverse employment actions; (2) Forsyth and Kirks were transferred because they had complained to superior officers about the alleged wiretaps and because they had publicized their allegations to the press; (3) Forsyth and Kirks were not transferred because they had filed the wiretapping suit; (4) Forsyth and Kirks had made the internal DPD wiretapping complaints in good faith; (5) the City had a de facto official policy of permitting the DPD to retaliate against whistleblowers; and (6) Vines was not liable for retaliating against Forsyth and Kirks.
As damages, the jury found that (1) Kirks had suffered $50,000 in past mental anguish, $25,000 in future mental anguish, $80,000 in past lost wages, and $675,000 in future lost wages; (2) Forsyth had suffered $75,000 in past mental anguish and $25,000 in future mental anguish; (3) $125,000 in exemplary damages each should be assessed against Rollins and Hatler under § 1983; and (4) $125,000 in exemplary damages was owed by the City under § 1983 and $750,000 under the Whistleblower Act.
The district court eliminated the jury's award for Kirks's lost wages and the § 1983 exemplary damages against the City. The court entered judgment that (a) Rollins, Hatler, and the City were jointly and severally liable under § 1983 for Forsyth's and Kirks's mental anguish, or alternatively, the City was liable under the Whistleblower Act for those damages; (b) Rollins and Hatler were each liable under § 1983 for $125,000 in exemplary damages; and (c) the City was liable under the Whistleblower Act for $750,000 in exemplary damages. The district court also awarded the officers attorneys' fees and costs.
The City, Rollins, and Hatler contend the district court erred in determining that the City and the officers had violated § 1983 by retaliating against Forsyth and Kirks because they had exercised their First Amendment rights to free speech. We will not address the troublesome question of the City's § 1983 liability because, as discussed later, the City is alternatively liable under the Whistleblower Act. Rollins's and Hatler's § 1983 contentions are unconvincing.
Rollins and Hatler first assert that Forsyth and Kirks did not engage in conduct protected by the First Amendment. Contrary to the defendants' arguments, Forsyth and Kirks offered unrebutted testimony that they instructed their lawyers to publicize the wiretapping allegations. Further, it does not appear that Forsyth and Kirks were primarily motivated by personal and not public concerns in publicizing their allegations. At the time they "spoke out," Forsyth and Kirks had been exonerated by the IA report. Although the plaintiffs' disputes with DPD may have influenced their decision to speak out, the Dallas Morning News articles about their allegations discussed matters of public concern. The public would want to know of charges that influential citizens were taking advantage of their relationships with the police, even to the extent of conducting their own wiretaps. Moreover, balancing the significance of the speech against the employer's efficiency concerns, as Connick 2 requires, does not turn out favorably for Rollins and Hatler. No defense witness testified that Forsyth's and Kirks's publication of the wiretapping allegations undermined the DPD's operations. To the contrary, those witnesses testified that the newspaper articles did not affect the Department's efficiency.
Second, Rollins and Hatler contend that the evidence was insufficient to prove that they transferred Forsyth and Kirks because of their complaints internally and then through the media about the alleged wiretapping. Forsyth and Kirks testified that, two days after the first Dallas Morning News article appeared, Rollins and Hatler warned them to "stop the publicity" and threatened to transfer them if further publicity ensued. The day after the second newspaper article appeared, Rollins and Hatler transferred the plaintiffs.
Third, Rollins and Hatler contend that the transfers did not deprive Forsyth and Kirks of any cognizable property right or privilege because their pay was not reduced. This court has already rejected that argument under strikingly similar facts. In Click v. Copeland, 970 F.2d 106 (5th Cir.1992), two sheriff's deputies were transferred from the county's law enforcement section to positions as jail guards because they had engaged in conduct protected by the First Amendment. The employees suffered no reduction in pay. However, they contended their transfers were demotions because the jail guard positions were much less desirable then their previous ones. This court agreed that their transfers constituted demotions in violation of § 1983. As this court explained:
Copeland maintains that his transfer of Click and Falcon to the jail was not a demotion because neither received a decrease in pay; in fact Falcon received a raise. Money alone, however, does not buy happiness. The Perry Court spoke of "benefits" generally, not just salary [citing Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697-98, 33 L.Ed.2d 570 (1972) ]. The evidence adduced at trial strongly supports the proposition that jobs in the jail are not as interesting or prestigious as jobs in the law enforcement section.... In...
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