Gerrin v. Hickey, LR-C-75-66.

• Decision Date: 25 January 1979
• Docket Number: No. LR-C-75-66.,LR-C-75-66.
• Parties: Gary GERRIN v. M. J. HICKEY, Individually and as Mayor of the City of Russellville, Arkansas, Jack Presley, R. D. Burnett, Cecil Criner, Roy Faulkner, Pat Humphrey, and John R. (Bobby) Evans, Individually and as Aldermen of the City of Russellville, Arkansas.
• Court: U.S. District Court — Eastern District of Arkansas

464 F. Supp. 276

Gary GERRIN v. M. J. HICKEY, Individually and as Mayor of the City of Russellville, Arkansas, Jack Presley, R. D. Burnett, Cecil Criner, Roy Faulkner, Pat Humphrey, and John R. (Bobby) Evans, Individually and as Aldermen of the City of Russellville, Arkansas.

No. LR-C-75-66.

United States District Court, E. D. Arkansas, W. D.

January 25, 1979.

Silas H. Brewer, Jr., Little Rock, Ark., for plaintiff.

John Harris, Russellville, Ark., for defendants.

MEMORANDUM OPINION

ROY, District Judge.

Plaintiff Gary Gerrin brings this action pursuant to 42 U.S.C., Sec. 1983 alleging that the substantive basis and procedural methods of his discharge from employment as a fireman with the City of Russellville, Arkansas deprived him of rights secured by the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the Constitution, as well as the rights of freedom of speech and association, and the right to petition the government for the redress of grievances guaranteed by the First Amendment to the Constitution of the United States. This action was tried to the Court sitting without a jury, and the following memorandum opinion constitutes the findings of fact and conclusions of law made by the Court, pursuant to Rule 52 of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT

1. Defendants are the Mayor and individual aldermen of the City of Russellville, Arkansas, collectively comprising the City Council of that community.

2. Plaintiff began his employment with the Russellville City Fire Department on April 19, 1972 working initially as a part-time volunteer for six to eight months and paid a flat rate of $6.00 for each fire emergency attended.

In the latter part of 1972, plaintiff became a full-time, salaried employee of the City Fire Department. After a period of probationary service for six months, he became a "permanent" fire department employee, as that term is defined by regulations issued by the City Council and the City Fire Department. In addition to plaintiff's assigned work duties of driving a fire truck and operating the water pumping apparatus affixed thereon, during the last year of his employment plaintiff conducted authorized fire inspections at various business and public locations within the community and offered instruction in fire prevention and emergency evacuation procedures at these facilities. Upon attaining permanent employee status, plaintiff received a monthly salary increase and thereafter received a 10% salary increase afforded to all city employees.

4. In the late summer of 1974, a majority of full-time permanent employees of the City Fire Department elected to form a labor organization for the purpose of collective bargaining with city and fire department officials regarding wages, hours and working conditions. The group elected plaintiff president, and became officially chartered as a labor organization September 4, 1974. During the organizational period of this group, its members, including plaintiff, engaged in discussions with city and fire department officials regarding a salary increase for firemen. Shortly after the group became chartered, plaintiff was interviewed by a local television station concerning the objectives of the labor group. A film of this interview appeared shortly thereafter on television in the Russellville area.

5. The following events transpired sometime during September, 1974: An assistant to the Mayor, Ron Russell, informed plaintiff and his supervisor that the city could reduce firemen's compensation to the minimum level. Assistant Russell at a second meeting informed plaintiff and several other firemen that physical standards for departmental service could be made more stringent. At a third meeting, Assistant Russell informed several firemen that the city could lengthen their work week, as recommended by the Arkansas Municipal League. There was testimony that these statements were made in retaliation for the activities of the firemen as to the new labor organization. During this same period the Fire Chief informed plaintiff that a scheduled fire school could be cancelled because of the union activities.

6. During this same period, Pat Humphrey, a defendant alderman, and the liaison between the fire department and the city council, informed plaintiff at a social event that there had been a survey conducted of the councilmen regarding their attitudes about the firemen organizing a labor union. There was one member of the Council who opposed the efforts to organize at the time of plaintiff's termination. On cross-examination Alderman Humphrey stated that a fellow member of the Council remarked all members of the firemen's union should be dismissed because of union activities. Councilman Humphrey was the only member of the City Council who stated that complaints had been received about plaintiff and that he had discussed them with the Chief of the Fire Department. Councilman Humphrey did not know whether plaintiff was ever notified that complaints had been received.

7. On Sunday evening, November 24, 1974, while plaintiff was off duty, he, his wife and a friend visited a local supermarket. Upon returning to plaintiff's car located in the parking lot adjacent to the store, plaintiff observed that the automobile had been struck and damaged by another vehicle. A bystander informed plaintiff that he had witnessed another vehicle strike plaintiff's parked car, and gave plaintiff a physical description of that other vehicle. Following directions furnished by the bystander, plaintiff proceeded in the direction taken by the other vehicle in an attempt to overtake it. While en route, plaintiff used a radio installed in his car to report the incident to the local sheriff's office. While off duty the day before, plaintiff had been informed by his supervisor that the Chief of the Fire Department had ordered the removal of the radio, and the radio was removed by the time he reported to his next regularly scheduled work shift.

A short distance outside the Russellville city limits, plaintiff came upon a vehicle which met the description he had been given and, by activation of red flashing lights, plaintiff managed to get the driver to pull to a stop at roadside. After radioing his location to the Pope County Sheriff's Office, plaintiff approached the other vehicle, asked to look at the operator's license of the driver, Cindy Kinslow, and asked her to await the arrival of law enforcement officers. After approximately 15 minutes, the Pope County Sheriff arrived at the scene, briefly questioned Miss Kinslow, inspected her vehicle, advised plaintiff that her car contained too many dents to determine whether it had struck plaintiff's car, and recommended that Miss Kinslow be allowed to go. Plaintiff agreed and Miss Kinslow was permitted to leave.

8. On Tuesday, November 26, 1974, Assistant to the Mayor Russell called plaintiff and told him to attend the City Council meeting which would be held that evening and informed him that the Kinslow incident would be discussed. At the meeting, the City Attorney read Miss Kinslow's written statement regarding the November 24 incident. Plaintiff was asked to respond and Elton Toney, a friend who was not an attorney but who had accompanied plaintiff to the meeting, made a statement in his behalf. Miss Kinslow attended the meeting but was not asked any questions nor to make a statement. There was no testimony that plaintiff used harsh language or was abrasive in any way during the episode involving Miss Kinslow.

The Council members thereafter retired into closed session, accompanied by the Mayor and the Fire Chief. Plaintiff was not invited to attend this session, and he did not ask to attend. After an hour's deliberation, the Council emerged into public session again and issued a statement dismissing plaintiff from his duties as a Russellville fireman effective immediately, listing the following reasons:

(1) Involvement in an instance where Mr. Gerrin used unauthorized equipment in stopping and detaining Miss Cindy Kinslow;

(2) Acting arrogantly toward other Fire Department members:

(3) Showing disrespect and insubordination toward his superiors;

(4) Making unauthorized fire inspections;

(5) Has demonstrated poor public relations as a member of the Russellville Fire Department.

9. Prior to plaintiff's discharge from employment, he received no complaints, warnings or other forms of disciplinary action from city or fire department officials regarding his job performance. His immediate supervisor testified he had never given plaintiff any warnings that his work was not satisfactory and that he was unaware of any complaints from private citizens regarding plaintiff's employment performance.

II.

CONCLUSIONS OF LAW

A.

This Court has jurisdiction of plaintiff's cause of action pursuant to 28 U.S.C. Secs. 1343(3) and (4) since he predicates his allegations on a violation of federally protected rights. Because the relief sought by plaintiff was essentially equitable in nature, trial was had to the Court sitting without a jury. Harkless v. Sweeney Independent School District, 427 F.2d 319 (5th Cir. 1970) cert. denied 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971).

Plaintiff's employment with the Russellville Fire Department must be examined to determine whether there exists a `property' interest therein which would trigger application of procedural constitutional safeguards. A public employee can predicate a claim of entitlement to such a property interest by virtue of an implied contract of employment, a statute, regulation or city ordinance, or through mutual custom or understanding. In any case, resort must be had to applicable state law to determine the sufficiency of that claim. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).

In this case the Court is presented with the claim of a dismissed municipal employee who is not protected by civil service regulations, see ...