Jurgensen v. Fairfax County, Va.
| Decision Date | 02 November 1984 |
| Docket Number | Nos. 82-2153,s. 82-2153 |
| Citation | 745 F.2d 868 |
| Parties | Robert E. JURGENSEN, Appellee, v. FAIRFAX COUNTY, VIRGINIA; Carroll D. Buracker, Chief; Kelly Coffelt, Major, Appellants, and Fairfax County Police Department, Defendant. Robert E. JURGENSEN, Appellant, v. FAIRFAX COUNTY, VIRGINIA; Carroll D. Buracker, Chief; Kelly Coffelt, Major, Appellees, and Fairfax County Police Department, Defendant. Robert E. JURGENSEN, Appellee, v. FAIRFAX COUNTY, VIRGINIA; Carroll D. Buracker, Chief; Kelly Coffelt, Major, Appellants, and Fairfax County Police Department, Defendant. (L), 83-1500 and 83-1646. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Robert M. Ross, Asst. County Atty., Fairfax, Va. (David T. Stitt, County Atty., Fairfax, Va., Robert Lyndon Howell, Sr. Asst. County Atty., Alexandria, Va., on brief), for appellants/cross-appellees.
Victor M. Glasberg, Alexandria, Va., for appellee/cross-appellant.
Before RUSSELL and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
This is a Sec. 1983, 42 U.S.C. action, brought by an employee of the Fairfax County (Virginia) Police Department, seeking injunctive and declaratory relief as well as damages and restoration of position. The defendants are the County of Fairfax, its Police Department, and two of its ranking police officers. According to his complaint, the plaintiff Jurgensen had been demoted in rank by the defendants "in reprisal of ... [his] whistle-blowing" consisting of "provid[ing] the [Washington] Post with a copy of the [audit] Report" of the defendants on the internal operations of the Police Department's Emergency Operations Center (EOC). 1 The defendants by their answer set up various defenses, the main defenses being absence of any free speech violation and the rendering of the controversy moot by the plaintiff's acceptance of the demotion. The defendants moved for summary judgment but the district court denied such motion. The cause then proceeded to trial before a jury. The jury returned a verdict for the plaintiff and judgment followed. The defendants have appealed that judgment and we reverse.
The plaintiff Jurgensen had been employed in the EOC since 1974 and was an Assistant Squad Supervisor at the time the events giving rise to this suit occurred. He admittedly had been a good employee as his promotion to an Assistant Squad Supervisor attested. The EOC has three major functions, according to a departmental report: "telephone answering, radio dispatching and computer transactions" as well as responsibility "for monitoring bank alarms, handling tele-serve complaints, answering the crime solver telephone, and overseeing wrecker service." Since it represents "the location of all police and fire/rescue communications for the County [it] ... must be manned and operated 24 hours a day." It has some sixty-odd employees and is housed in the building where the general police activities are located. The employees are divided into squads working on what was known as the 4-10 schedule. The plaintiff was in charge of one such squad.
In 1980 the Department commissioned the preparation of an internal review of the operation of EOC. Two high-ranking officers of the Department were assigned to conduct the review and to report such recommendations as they thought appropriate to the proper officers of the Department. The review was completed and the recommendations were filed in early fall or late summer of 1980. The inspection report followed the pattern of a normal administrative operational review. It included nothing sensational. It found no illegal action; it identified no abuse of authority or power; it referred to no evidence of corruption or waste; it pointed to no discrimination among employees. In short, it was simply an internal administrative review report. It did make a number of recommendations, primarily of the "housekeeping" variety. It found, for instance, that there had been a substantial increase in the workload of the Center between the years 1979 and 1980 without any increase in staff. It recommended an increase in staff, something that was done before the report was purloined by Jurgensen for the benefit of the reporters, as we indicate later. This problem was somewhat accentuated, it found, because there had been a change to a four-day, 10 hour work shift in the Center. It said that "[a]lthough to an individual everyone [in the Center] interviewed liked the 4-10 shift schedule for the day-off benefits, everyone admitted the schedule made working more stressful ... [and] that as a result of the 4-10 schedule EOC was not able to provide as good a service as in the past." As a result of these two factors, i.e., the understaffing and the 4-10 schedule, "a working environment [was created] that at times is nearly intolerable from both a personal and an agency perspective." 2 The report's recommendation in this regard was:
"An immediate increase in experienced personnel or a return to a three or four squad schedule are the only ways EOC can return to a staffing level that is adequate."
The report made a number of other suggestions: it found that the training of new personnel should be modified. "Formal EOC training for new employees begins only after several persons have been hired." Such practice means that, in some instances, a new employee's formal training could be delayed for several weeks. The report suggests that formal training be given when a new employee is employed. The report, also, took note of the needs of the Center in connection with equipment. It spoke favorably of the need for more telephone lines in the Center. It found that "down-time" for the computer operation was such that, though "not critical to the operational function of the Department," it was "critical administratively to those affected by the inconvenience it causes." It recommended that if it should develop that the "down-time" adversely affects the district stations' ability to retrieve cases, a program change could help resolve the problem. It found that in the case of "routine" (as distinguished from critical) calls, carelessness in response had occurred in a few instances as a result of inadequate coordination during shift changes. It felt the Center should have an auxiliary power system in order to cope with that rare situation when there might be a "power blackout." A number of equipment replacements was suggested. As is obvious from this review, the inspection report was unquestionably a typical report, with a minimum of critical comment and a complete absence, as we have said, of a charge of corruption, abuse of process or power, waste or mismanagement.
After filing of the report, the Department created a special group to review and implement the report. On October 17, 1980 Major Coffelt, the commander of the Department's Technical Services Bureau and the head of the group to which had been assigned, so far as practicable, the implementation of the recommendations of the review, prepared an initial "EOC Status Report" on behalf of the group for his superiors. In this update Major Coffelt commented by way of an introduction that the purpose of these updates was to provide the superiors in the Department with "periodic update[s] ... to keep [such officials] abreast of current events and future plans dealing with the upgrading of EOC." He then proceeded in this early report to list various steps already taken in response to the recommendations of the review. These were: Priorities in implementing the various recommendations of the review had been established; the Director of Communications had been instructed to explore the procedure for acquiring additional frequencies for the use of EOC; a requisition had been initiated for a new conveyor belt; a supplemental appropriation of $60,000 had been obtained "to replace the Mobile Center" in the EOC unit; a Training Task Force had been constituted for the purpose of providing improved training services in the unit; a request for five additional positions in the unit had been requested for the next fiscal year; plans were being developed for an emergency generator for use "in the event of a commercial power loss;" "shift configurations" were being studied "as a means of providing manpower consistent with workload requirements" in effecting a change from the 4-10 schedule; and a number of other minor matters were slated for improvement.
The record in the case from this point on includes the "periodic updat[ings]" of the implementation program of the report's recommendations by the assigned unit of the department under Major Coffelt. In keeping with this procedure, Major Coffelt on December 11, 1980, submitted on behalf of his group another "Status Report." In this report he referred to the establishment of "a shift configuration in E.O.C. which will provide the best level of service." This development represented one of the important recommendations in the review. He wrote, also, that the "Training Task Force" was "nearing completion of the curriculum for new employees" in the unit, that progress was being made with "the emergency generator in E.O.C.," that the specifications for the mobile command center bus had been prepared and the purchasing unit of the Department was proceeding with the bidding procedures, that "all call-out numbers, procedural manuals, and files [had] been updated" and that "[o]ther items listed in [his] original report" are proceeding with some delays resulting from the inability of other agencies to provide necessary services. On March 10, 1981, the installation of the new training program "based in part upon a staff inspection report and a special E.O.C. Training Task Force" was reported. In his next April 21, 1981, "Status Report," Major Coffelt referred to the successful installation of the new training program and reported (1) the acquisition of the "new command...
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