Johnson v. City of Fort Lauderdale, Fla.
| Decision Date | 05 November 1997 |
| Docket Number | No. 96-4538,96-4538 |
| Citation | 126 F.3d 1372 |
| Parties | 75 Fair Empl.Prac.Cas. (BNA) 519, 11 Fla. L. Weekly Fed. C 682 Herbert JOHNSON, Plaintiff-Appellee, v. CITY OF FORT LAUDERDALE, FLORIDA, a Florida Municipal Corporation, Defendant, James Sparr, Rick Earle, Dennis Sheehan, Keith Allen and Ron Pritchard, in their individual capacities, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Gordon D. Rogers, Kelly Cheary, Frank Howard Henry, Miami, FL, for Defendants-Appellants.
Scott Walter Rothstein, Michael Anthony Pancier, Kusnick & Rothstein, Fort Lauderdale, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before COX and BARKETT, Circuit Judges, and SMITH *, Senior Circuit Judge.
James Sparr, Ron Pritchard, Rick Earle, Dennis Sheehan, and Keith Allen ("defendants") appeal the district court's adverse ruling on their qualified immunity defenses in this civil rights action filed by Herbert Johnson ("Johnson"). For the reasons that follow, we affirm in part and reverse in part.
The following background is derived primarily from the record as reflected in the parties' statements of facts. This being so, we pause to emphasize attorneys' obligations under Federal Rule of Appellate Procedure 28 generally and in the specific context of a qualified immunity appeal. 1 Rule 28 requires appellants to submit a statement of relevant facts with corresponding record cites and requires appellees to do the same if dissatisfied with the appellants' version. See FED. R. APP. P. 28(a)(4) & 28(b)(3). These requirements are not to be taken lightly, especially since we are not obligated to cull the record ourselves in search of facts not included in the statements of fact. In the specific context of a qualified immunity appeal, this means that plaintiffs must, if dissatisfied with the defendants' statement of facts, carefully set out the facts which, if proven, would constitute violations of clearly established law on the part of each defendant. 2
Turning from this aside, we now state the facts. The defendants are current or former employees of the City of Fort Lauderdale Fire Department. Sparr served as Fire Chief from October 19, 1987, to January 31, 1993. Pritchard served as Acting Fire Chief from January 31, 1993, to March 14, 1994. In those capacities, Sparr and Pritchard had the authority to recommend to the City Manager that employees be promoted, disciplined, and discharged. Earle, Sheehan, and Allen served in other management capacities. They had the authority to evaluate the work performances of and make personnel recommendations regarding subordinate employees.
In 1983, the City hired Johnson, a black male, to work as a Firefighter under the management of the defendants. In 1987, the City promoted Johnson from Firefighter to Driver/Engineer, and, in 1989, the City further promoted Johnson to Fire Lieutenant. This second promotion was based on a recommendation from Sparr despite the fact that Johnson earlier in 1989 had received a three-day suspension without pay for refusing to obey a direct order from a supervisor on the proper route to follow to get to a fire scene and despite the fact that three white males had higher overall scores than Johnson on the competitive Civil Service examination.
Roughly three years after this second promotion, the City demoted Johnson to his previous position as Driver/Engineer following a "Firefighters Bill of Rights" hearing attended by Johnson, Allen, and Earle on an accusation that Johnson disobeyed a direct order to lay two lines of hose at a fire scene, used profane language, and threatened a subordinate officer, all in violation of the Fire Department's Administrative Rules and Regulations. The hearing was held pursuant to Florida law, which outlines procedural requirements for interrogating Firefighters. See Fla. Stat. ch. 112.82 (1995).
The hearing transcripts show that Johnson admitted to having been ordered to lay two lines of hose, but denied having disobeyed a direct order when he laid only one line of hose, contending instead that he properly exercised his discretion because he did not have enough hose on the truck to lay two lines. The transcripts also show that Johnson denied having threatened a subordinate officer. In a letter notifying Johnson of his demotion, Sparr acknowledged this denial, but noted that the threat had been witnessed by another Department employee.
After the City filled the Fire Lieutenant vacancy created by Johnson's demotion with another black male, Johnson filed a charge with the Equal Employment Opportunity Commission (EEOC). The charge alleged that the City (1) subjected Johnson to stricter scrutiny and discipline because of his race; and (2) demoted and replaced him with a lesser qualified black employee so that no black employee could be promoted from Fire Lieutenant to Battalion Chief. Although Johnson claims that he was the only black male eligible for the Battalion Chief position at the time that he was a Fire Lieutenant, City Personnel Records show that Johnson was not eligible at that time since he did not possess a bachelor's degree--a prerequisite for the Battalion Chief position under the City Personnel Rules. City Personnel Records also show that Johnson was the first black employee in the Department to have been demoted by the City.
On August 7, 1992, before the EEOC issued its determination on the charge, Sparr attempted to send Johnson a time-sensitive certified letter regarding an appeal of his demotion. The letter was addressed to a Lauderdale Lakes address--the address maintained on file with the Fire Department as Johnson's current address. On August 20, 1992, the letter was returned undelivered with a Lauderhill address having been written on the envelope by a postal delivery person.
On August 20 and 21, 1992, a Battalion Chief attempted to contact Johnson about the letter by phone, but was unsuccessful. He then attempted to hand deliver the letter to the Lauderdale Lakes address. The occupant at that address stated that she had lived there since the July 4th weekend and that Johnson did not currently live there. The Battalion Chief then attempted to hand deliver the letter to the Lauderhill address. There, the Battalion Chief recognized Johnson's pick-up truck and was led to an apartment by a child who asked if the Battalion Chief, dressed in firefighter garb, was looking for the other firefighter. The Battalion Chief knocked on the apartment's door several times but no one answered.
On August 21, 1992, Johnson called the Department and told the Battalion Chief that he would be in later that day to pick up the letter. When Johnson arrived, the Battalion Chief asked him which of the addresses written on the undelivered certified letter was his current address. Johnson replied that the Lauderdale Lakes address was still his current address. However, on August 27, 1992, Johnson submitted a memorandum to the Fire Department notifying it of a change of address, from the Lauderdale Lakes address then on file to the Lauderhill address written on the undelivered certified letter.
According to the Department, the events related to the certified letter, Johnson's statements to the Battalion Chief, and Johnson's statements in his memorandum raised suspicions that Johnson had violated a Department Administrative Rule and Regulation requiring employees to submit a change of address or residency within 24 hours so that they can be reached on short notice in the event of an emergency. Therefore, on October 27, 1992, the Department held another "Firefighters Bill of Rights" hearing, this time "to obtain information from [Johnson] relating to a possible [change-of-address violation.]" (R.5-53 app. E at 2.) Johnson, Allen, Sheehan, and attorneys representing Johnson and the City attended the hearing.
According to hearing transcripts, Johnson stated that he began moving from the Lauderdale Lakes address to the Lauderhill address on August 21 or 22, and finished moving on August 31. He also stated that he "resided" at the Lauderdale Lakes address until August 31, although he possibly "lived someplace else" between August 21 and 27. (R.5-53 app. E at 7.) When asked to explain why the occupant at the Lauderdale Lakes address told the Battalion Chief on August 20 that she had lived there since the July 4th weekend and that Johnson did not live there, Johnson responded, (R.5-53 app. E at 26.)
Toward the end of the hearing, Johnson's attorney asked if the Department had ever previously investigated a possible change-of-address violation. Both Allen and Sheehan asserted that such investigations had taken place. The hearing then was adjourned to allow further investigation.
Allen proceeded to investigate on behalf of the Department. He contacted Roger Haberkorn, the real estate manager of the house corresponding to the Lauderdale Lakes address. Haberkorn told Allen that Johnson had been evicted in May, 1992, and owed George Sears, the absentee owner of the house, money in back rent. Allen obtained a copy of a default judgment against Johnson for the past rent due and a copy of the court order evicting Johnson from the house.
On November 13, 1992, while the investigation was going on, Johnson filed a second charge with the EEOC against the City. This charge alleged that the Department had subjected Johnson to increased racial harassment and discrimination for filing the first EEOC charge.
On November 20, 1992, before the EEOC issued a determination on this and the previous charge, the Department held a second hearing, this time to address both the allegation that Johnson had committed a...
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