Green v. City of Montgomery

• Decision Date: 17 April 1992
• Docket Number: Civ. A. No. 88-T-1160-N.
• Citation: Green v. City of Montgomery, 792 F.Supp. 1238 (M.D. Ala. 1992)
• Parties: David GREEN, et al., Plaintiffs, v. The CITY OF MONTGOMERY, ETC., et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

792 F. Supp. 1238

David GREEN, et al., Plaintiffs, v. The CITY OF MONTGOMERY, ETC., et al., Defendants.

Civ. A. No. 88-T-1160-N.

United States District Court, M.D. Alabama, N.D.

March 27, 1992.

Order, April 17, 1992.

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Vanzetta Penn McPherson, Montgomery, Ala., for plaintiffs and the plaintiff class.

Robert C. Black, Terry A. Sides, Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, Ala., for defendants.

MEMORANDUM OPINION

MYRON H. THOMPSON, Chief Judge.

Plaintiffs David Green and Jerry Hankins, two police officers with the Montgomery City Police Department, have brought this class-action lawsuit charging the defendants — Mayor Emory Folmar, Police Chief John Wilson, and the City of Montgomery, Alabama — with violation of rights given and protected under the first and fourteenth amendments to the United States Constitution as enforced through 42 U.S.C.A. § 1983 (West 1981). Green and Hankins claim that the defendants have subjected them and other officers to a variety of adverse employment actions, including disadvantageous transfers and assignments, unwarranted discipline, and denial of promotions, because of their speech, associational activities, and participation in litigation against defendants. They are pursuing claims on behalf of 15 persons — their own claims and the individual claims of 13 other class members — as well as a broad class-wide claim that Folmar and Wilson have engaged in a "pattern and practice" of retaliation against officers for exercising their first-amendment freedoms. They have invoked the jurisdiction of the court pursuant to 28 U.S.C.A. §§ 1331 (West Supp.1991) and 1343 (West Supp. 1991). The court has certified a plaintiff class of all past, present, and future Montgomery Police Department employees as of January 9, 1984.¹

Based on trial evidence that included over 40 witnesses and a mound of documentary evidence several feet in height, the court concludes that one police officer is entitled to full relief, that one officer is entitled to partial relief, that whether two officers are entitled to any relief cannot be determined from the present record, and that the remaining eleven officers are not entitled to any relief. The court further concludes that the plaintiff class is entitled to recover on only the narrow claim that defendants have retaliated against its members for taking part in lawsuits unfavorable to or critical of Folmar's or Wilson's policies and decisions in the area of police employment.²

I. BACKGROUND

It is somewhat of an understatement to say that the court does not write on a clean slate in considering Green and Hankins's first-amendment claims against Folmar and Wilson. Since the early 1980's, city and police department officials have been the frequent target of successful retaliation challenges brought by police officers, principally under the headings of three cases: Jordan v. Wilson, civil action no. 75-19-N; United States v. City of Montgomery, civil action no. 3739-N; and Eiland v. City of Montgomery, civil action no. 84-T-120-N. Because the acts of retaliation addressed in these cases were committed by, or at the instigation of, Folmar or Wilson and because most of the claims asserted by the plaintiffs are either directly or indirectly factually related to these cases, any fair consideration of the plaintiffs' claims must begin with these three cases.

A. Jordan v. Wilson and United States v. City of Montgomery

1. Pierce-Hanna

In 1986, in response to a complaint filed in Jordan v. Wilson, civil action no. 75-19-N, by Sandra Pierce-Hanna on behalf of herself and other female officers in the Montgomery Police Department, the court held that the department had systematically and intentionally discriminated against female officers in promotions, in violation of Title VII of the Civil Rights Act of 1964, as amended, and the equal protection clause of the fourteenth amendment as enforced through § 1983.³ Jordan v. Wilson, 649 F.Supp. 1038 (M.D.Ala.1986). The court found that "discriminating against women because they are women was and remains the `standard operating procedure' within the City of Montgomery Police Department." Id. at 1058. The court ordered the department to develop new promotion procedures. Id. at 1063.

The court also found that Mayor Folmar had "concocted a department-wide scheme to discredit and embarrass ... Pierce-Hanna for having initiated the charges." Jordan v. Wilson, 667 F.Supp. 772, 776 (M.D.Ala.1987). As later capsulized by the court, the evidence relied upon in reaching this finding was as follows:

"Receiving their cue from the mayor, Pierce-Hanna's supervisors suddenly began to give her extremely poor ratings, with the result that her ranking on the promotion register dropped precipitously and dramatically. The scheme was thus not subtle and hidden, but open, obvious and widespread so that everyone in the department could see that the penalty for `disloyalty' was very great. It was based on open intimidation and had a two-fold purpose: first to punish Pierce-Hanna and force her out of the department; and second, to force others in the department to join the mayor in his vendetta against Pierce-Hanna and in his opposition to her lawsuit.

"The scheme, however, also had an element of reward to it. On one occasion the mayor rewarded two female officers for supporting him against Pierce-Hanna, by promoting them while rejecting Pierce-Hanna."

Id. (citation omitted). Because "there was a strong probability of further retaliation" and because an injunction banning retaliation was not already outstanding, the court issued an order prohibiting Mayor Folmar and all police officials from retaliating against persons in the department and, in particular, from retaliating against Pierce-Hanna. Jordan v. Wilson, 649 F.Supp. at 1064.

At the time of this litigation, the promotion process in the Police Department was not based on objective standards of performance, but rather essentially reflected the personal choices of Folmar. The department ranked its law-enforcement personnel as follows from lowest to highest: police officer, corporal or investigator; sergeant; lieutenant; captain; major; deputy chief; and chief. The process for promotion was identical for all ranks from sergeant through major. Every year, the Montgomery City-County Personnel Board compiled a list of police officers who sought and were eligible for promotion. The only requirement for eligibility was one or two years of service in the next lower rank. The Personnel Board then sent this list to the Police Department, where it was distributed to each of six division commanders.⁴ The division commanders, who usually held the rank of major, gave each applicant a numerical rating between one (lowest) and ten (highest) and the police chief and the deputy chief together gave each applicant a similar rating. The chief or deputy chief then averaged the seven ratings so that each applicant had one rating between one and ten. Based on these ratings, the Personnel Board prepared a register of all applicants rated from highest to lowest for each rank. Where two applicants had the same rating, the one with greater seniority was placed higher. According to law, the mayor alone was authorized to promote employees in the Police Department. When there was a vacancy that the department wished to fill by promotion, the mayor asked the Personnel Board to provide a certification of applicants off the register for the rank being considered. The standard certification contained the names of the five highest rated officers on the register for the relevant rank. The mayor then selected for promotion any one of the five applicants from the certification he had requested.

Mayor Folmar, who had served as mayor since 1977, did "not view his authority to promote within the police department as titular, as routinely accepting the recommendations of the police chief." Jordan v. Wilson, 649 F.Supp. at 1048. Rather, he was "directly, personally, and intimately involved in the day-to-day operations of the department, so much so that his relationship with the department was more that of a `super-chief of police' rather than that of an external executive who merely sets policy." Id. He "therefore always had a profound effect on how officers were rated by the police chief, his deputy, and the commanders; and Folmar's promotion selections from the certifications ... usually reflected his own personal choices." Id.

In May 1987, the court approved and ordered implemented an interim plan for promotions in the Police Department. Because the department was subject to outstanding orders in a companion case prohibiting racial discrimination in hiring and promotions, United States v. City of Montgomery, civil action no. 3739-N, the relief also applied to this companion case.⁵ Under the plan, "if the mayor chooses to select a lower-ranked candidate over a higher-ranked candidate, even if all the candidates involved are women, he must state in writing his reasons for rejecting the higher-ranked candidate." Jordan v. Wilson, 667 F.Supp. at 777. The female police officers are then given a period of time to challenge the objection as either sexually discriminatory or retaliatory. If an objection is made, "the mayor may not select the lower-ranked candidate unless and until the court rules in the mayor's favor on the challenge." Id. These provisions were based on findings that Mayor Folmar and others had engaged in a longstanding scheme against Pierce-Hanna and other female officers "to discourage them from pursuing discrimination claims and to retaliate against those who do." Id. at 776.

At the trial on Pierce-Hanna's complaint in 1985, Chief Wilson, who was then only a major in the department, testified that, because Pierce-Hanna had brought a lawsuit against the department, he could not be...