Gillette v. Delmore

• Decision Date: 05 October 1989
• Docket Number: No. 87-3533,87-3533
• Citation: 886 F.2d 1194
• Parties: James GILLETTE, Plaintiff-Appellant, v. Duane DELMORE; Jerry Garriott and the City of Eugene, a political subdivision of the State of Oregon, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1194

886 F.2d 1194

106 A.L.R.Fed. 383

James GILLETTE, Plaintiff-Appellant, v. Duane DELMORE; Jerry Garriott and the City of Eugene, a political subdivision of the State of Oregon Defendant-Appellee.

No. 87-3533.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 8, 1989.

Decided Oct. 5, 1989.

David C. Force, Eugene, Or., for plaintiff/appellant.

Steve C. Baldwin, Eugene, Or., for defendant/appellee.

Appeal from the United States District Court for the District of Oregon.

Before CANBY, THOMPSON and LEAVY, Circuit Judges.

CANBY, Circuit Judge:

James Gillette appeals the district court's summary judgment in favor of the City of Eugene, Oregon, on his claim under 42 U.S.C. Sec. 1983 for unlawful discharge from public employment in violation of his first amendment rights. We affirm in part, reverse in part, and remand.

FACTS AND PROCEEDINGS BELOW

On May 19, 1983, James Gillette, a fireman of the City of Eugene, Oregon, was During these events Gillette commented to the fire captain that "this is not being handled well." After Dunsmoor had been forcibly loaded into the ambulance, Gillette expressed his anger to the policeman who had choked Dunsmoor and banged his head on the stretcher, stating that "it would be just as well to let him die, as kill him ourselves." While at the hospital waiting for Dunsmoor to be examined, Gillette commented to both fire and police personnel that they had "stripped the man of his dignity."

part of a unit dispatched to the home of James Dunsmoor in response to an emergency call. The caller had indicated that Dunsmoor had consumed valium, percodan, and alcohol and that, although Dunsmoor was conscious, he was very confused. Upon the unit's arrival, Dunsmoor ordered the firemen and police officers to leave. The City had a policy directing that persons suspected of suffering from a drug overdose be taken to the hospital for evaluation, even over that person's objection. Gillette asserts that, although Dunsmoor was conscious and capable of conversation, he was not told that he had to go to the hospital, or that he would be taken by force if necessary. Gillette asserts that police officers used excessive force on Dunsmoor, including choking him, handcuffing him to a stretcher, and banging his head on the metal stretcher.

Dunsmoor needed no medical treatment, and he was released after a doctor examined him. On the way back to the fire station, Gillette said to other firemen that he would help Dunsmoor in a suit against the City if Dunsmoor were forced to pay the expenses of being taken to the hospital, stating "when you take a man against his will, and then you're wrong, why should that guy have to pay his medical bills, when you didn't give the guy an honest chance in the first place?"

On May 31, 1983, Battalion Chief Delmore notified Gillette that he was charged with three incidents of misconduct that warranted his termination. Gillette was suspended from duty, with pay, and was notified of his right to respond to the charges. The three incidents specified follow: ¹

On April 4, 1983, two crew members at Eugene Fire Station 5 witnessed an incident in which you used vulgar and abusive language while engaged in a telephone conversation with an employee of Lane County and then, following the conversation, displayed behavior unbecoming to a City employee.

On May 19, 1983, at approximately 2341 hours, while involved at an emergency medical incident at 2292 Jefferson Street, Eugene, Oregon, you were heard making remarks which were contradictory to the emergency treatment being provided to the patient and which also jeopardized management of the patient and safety of the personnel providing the care.

On April 22, 1983, while assigned as a medic unit driver available for emergency response, you were observed sleeping in clear view of the public in the second floor lobby of the Lane Community College Downtown Center, 1159 Williamette Street, Eugene, Oregon, during the time the EMT III assigned to the unit was attending a review class for an EMT IV test.

Gillette responded to the charges at a meeting held June 6, 1983. He was terminated, effective June 7, 1983. Gillette appealed his termination to the Fire Chief, as provided for by regulation. Fire Chief Hall confirmed Gillette's termination by letter on July 14, 1983. Gillette then filed a grievance, under the collective bargaining agreement between the City and the fire fighters, and it proceeded to arbitration. Gillette was reinstated, without back pay or benefits, on January 11, 1984. After other alleged misconduct, Gillette's employment was again terminated in June, 1984.

Gillette filed suit against Duane Delmore The City moved for summary judgment. The district court awarded summary judgment to the City on the ground that Gillette's speech at the Dunsmoor incident was not constitutionally protected. An alternative holding was that, even if his speech was protected, the other two incidents of misconduct were enough to sustain the termination. The district court also awarded partial summary judgment on several issues in the case, including whether Gillette was impermissibly terminated for his political activities, whether Gillette's remarks during a telephone conversation were protected by the first amendment, and whether he would be entitled to damages in the amount he withdrew from the public employees' retirement plan, plus government matching funds that he lost as a result of his withdrawal. Gillette now appeals these rulings.

battalion chief, ² Jerry Garriott, battalion chief, and the City of Eugene, alleging that his June 1983 termination was in violation of 42 U.S.C. Sec. 1983 because he was terminated for speech protected by the first amendment. He also alleged that Garriott had violated due process in terminating Gillette a second time, in May 1984. Gillette subsequently filed an amended complaint, and dropped the count against Garriott for the second termination. Garriott then moved to have himself dismissed as a defendant. The district court granted this motion, and subsequently awarded $533.50 in attorneys' fees against Gillette under Rule 11 of the Federal Rules of Civil Procedure.

DISCUSSION

We review a summary judgment de novo, applying the same standard the district court uses. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629-30 (9th Cir.1987). Similarly, we review de novo the district court's conclusions regarding whether Gillette's statements are constitutionally protected, because that issue is one of law. Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 1690 n. 7, 75 L.Ed.2d 708 (1983).

A. Unlawful Discharge from Employment--the Dunsmoor Incident

We must follow a three-step approach to review terminations that allegedly violate the free speech clause of the first amendment. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). We must determine: 1) whether Gillette's speech is entitled to constitutional protection, see Pickering v. Board of Education, 391 U.S. 563, 569-72, 88 S.Ct. 1731, 1735-37, 20 L.Ed.2d 811 (1968); 2) whether, if protected, the speech was a substantial or a motivating factor in the action taken against Gillette, see Mt. Healthy, 429 U.S. at 285-87, 97 S.Ct. at 575-76; and 3) whether the City demonstrated that the same action would have been taken in the absence of the protected activity, see Allen v. Scribner, 812 F.2d 426, 433-36 (9th Cir.1987), amended, 828 F.2d 1445 (9th Cir.1987).

To be protected by the first amendment, Gillette's speech as an employee must first be shown to involve a matter of public concern. See Connick, 461 U.S. at 146, 103 S.Ct. at 1689. If it does, then Gillette must show that his interest as a citizen in commenting upon matters of public concern outweighs any adversely affected interest of the City in promoting efficient delivery of public services. See id. at 142, 103 S.Ct. at 1687.

We cannot agree with the district court that Gillette's statements do not involve a matter of public concern. Speech that can fairly be considered as relating to any matter of political, social, or other concern to the community is constitutionally protected. Connick, 461 U.S. at 146, 103 S.Ct. at 1689. Gillette's speech concerned the manner in which police and fire fighters performed their duties on a particular occasion. Gillette testified in his deposition that the police and fire personnel did not tell Dunsmoor they were taking him to the hospital for medical treatment, and that certain police officers and fire fighters used excessive force. If we assume Gillette's deposition testimony is true, as we must for summary judgment purposes, Gillette's speech concerns a matter of public concern. His comments may well raise questions concerning whether persons should be taken to the hospital against their will, what notice they should receive, and what degree of force is appropriate. The fact that Gillette's speech was not directed to the public at large, to inform it of the perceived problems, is not critical to the inquiry of whether the speech involves a matter of public concern. Rankin v. McPherson, 483 U.S. 378, 386, n. 11, 107 S.Ct. 2891, 2898, n. 11, 97 L.Ed.2d 315 (1987).

The next step in our analysis is to balance the interest of Gillette, as a citizen, in commenting on matters of public concern against the interest of the City, as employer, in promoting the efficiency of the public services it performs through its employees. Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. This balancing focuses on the effective functioning of the public employer's enterprise. It is true, as the City contends, that the City may restrict an employee's speech that impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the successful...