Jannetta v. Cole, 73-1642

• Decision Date: 03 April 1974
• Docket Number: 73-1643.,No. 73-1642,73-1642
• Citation: 493 F.2d 1334
• Parties: Anthony L. JANNETTA, Appellant, v. E. W. COLE, Chief, Rock Hill Fire Department, et al., Appellees. Anthony L. JANNETTA, Appellee, v. E. W. COLE, Chief, Rock Hill Fire Department, et al., Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

493 F.2d 1334 (1974)

Anthony L. JANNETTA, Appellant, v. E. W. COLE, Chief, Rock Hill Fire Department, et al., Appellees.

Anthony L. JANNETTA, Appellee, v. E. W. COLE, Chief, Rock Hill Fire Department, et al., Appellants.

Nos. 73-1642, 73-1643.

United States Court of Appeals, Fourth Circuit.

Argued December 4, 1973.

Decided April 3, 1974.

C. Rauch Wise, Greenwood, S. C., for Anthony L. Jannetta.

Emil W. Wald, Rock Hill, S. C. (C. W. F. Spencer, Jr., Rock Hill, S. C., on brief) for E. W. Cole and others.

Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge and TURK, District Judge.

HAYNSWORTH, Chief Judge.

Jannetta brought this action pursuant to 42 U.S.C. § 1983 seeking reinstatement to his position as a fireman for the City of Rock Hill, South Carolina, Fire Department and back pay from the date of discharge to the date of reinstatement. He claims that he was wrongfully dismissed because of his participation in circulating a petition protesting a recent promotion in the fire department and presenting it to the city manager. The district court found Jannetta to have been wrongfully discharged, awarded back pay from the date of dismissal to the date of the order, but refused to order reinstatement because, "under the Ordinances of the City of Rock Hill, he could be dismissed without cause." Jannetta appealed complaining of the court's failure to order reinstatement and the defendants cross-appealed complaining of the court's finding that Jannetta was improperly discharged and entitled to back pay. The only other issue presented on this appeal is whether the award of back pay should have been reduced by the amount of Jannetta's outside earnings during his "unemployment."

Because we agree that Jannetta was wrongfully discharged, we sustain the back pay award. However, the award should have been reduced by any increase in Jannetta's outside earnings attributable to his lack of employment by the fire department. In addition, the district court should have ordered Jannetta's reinstatement to the position from which he was wrongfully discharged.

In early October, 1971, the Rock Hill Fire Department made several promotions based on a merit system. One of those promoted was a black man, John Chisholm, who was promoted over several whites with greater seniority. After the notice of the promotions was published, Jannetta, with the assistance of several other firemen, began circulating a letter or petition complaining about the promotion of the black fireman, questioning his qualifications and requesting an explanation. Following the accumulation of some twenty-four signatures, the petition was delivered to the office of the fire chief and, simultaneously, to the city manager. The senior officers of the department investigated the substance of the petition and concluded that the black fireman was well qualified for the position of leadership and that Jannetta was primarily responsible for the letter or petition which resulted in racial tension within the department. Jannetta was suspended from his position by the fire chief,¹ "upon the grounds of insubordination and disloyalty, in that he participated in circulating a letter of complaint in complete disregard of long established chain of command requirements applicable to all personnel." The chief recommended to the city manager that the suspension be made permanent² and following a hearing before the city manager on December 16, 1971, Jannetta's employment was terminated. None of the other firemen who signed the letter or petition were disciplined in any manner.³

The defendants admit that there is no question that Jannetta's participation in the circulation and presentation of the petition was determinative of his dismissal, although they point to certain other infirmities in his employment record (tardiness, etc.) as also contributing to his dismissal. The district court specifically found, however, that Jannetta was dismissed solely for his participation in the circulation of the petition and delivery of a copy directly to the city manager. This finding is clearly supported by the evidence. Indeed, it is established by Chief Cole's letter of suspension to Jannetta.

In Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811, the Supreme Court noted that the State does have an interest in regulating the speech of its employees that differs significantly with those it possesses in regulating the speech of the population in general. State attempts to regulate the speech of its employees necessitates a weighing of the interest of the public employee in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. The initial issue, therefore, is whether there was, in fact, an interference with the efficiency of the public services performed by the Rock Hill Fire Department by virtue of Jannetta's actions.⁴

The district court specifically found that, although there was some lowering of morale in the fire department, the petition was not the primary cause and that circulation of the petition occasioned no interference with the operation of the department. Thus the district court found that the defendants failed to show any significant interference with the efficient operation of the department. The record clearly supports such a finding.⁵

As to the charge that Jannetta by-passed the "chain of command" procedure by presenting his petition directly to the city manager, it is noted that nowhere was it suggested that such a by-pass would result in dismissal. Furthermore, the district court found that the city manager's announced "open door" policy amounted to an alternate procedure open to city employees to present grievances to city officials. The district court thus held that while the grievance procedure outlined in the employees' handbook (Chain of Command) on its face was properly narrow and adequate, its application in this case, where one, simultaneously with the submission of his petition in compliance with the handbook procedure, also submitted his petition to the city manager in compliance with a parallel but less formal "grievance procedure," was over-broad and infringed upon a constitutionally protected freedom. The district court concluded, and we agree, that Jannetta's dismissal resulted from his exercise of a constitutionally protected right and that the defendants failed to show sufficient justification for penalizing him because of his exercise of that right.

The Supreme Court has held that, though there may be no "right" to a valuable government benefit, the denial of it may not be predicated on one's exercise of first and fourteenth amendment rights. Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460. This general principle has been applied on numerous occasions to denials of public employment. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811; United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508; Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed. 2d 321; Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377; Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285; Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230; Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; Wieman v. Updegraff, 344 U.S....