Manale v. City of New Orleans, Dept. of Police
| Decision Date | 15 April 1982 |
| Docket Number | No. 81-3043,81-3043 |
| Citation | 673 F.2d 122 |
| Parties | John G. MANALE, Plaintiff-Appellant Cross-Appellee, v. CITY OF NEW ORLEANS, DEPARTMENT OF POLICE, et al., Defendants-Appellees Cross-Appellants. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
R. Glenn Cater, New Orleans, La., for plaintiff-appellant cross-appellee.
Sidney H. Cates, IV, Asst. City Atty., New Orleans, La., for defendants-appellees cross-appellants.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before BROWN, POLITZ and WILLIAMS, Circuit Judges.
John G. Manale, a former New Orleans police officer, brought this diversity action against the City, the Department of Police, and two police officers, charging them with reckless defamation and seeking damages in excess of $1,000,000. Trial before the District Court resulted in a verdict of $10,000 for Manale. He appealed, seeking a revision upward of the damage award. The City cross-appealed the District Court's findings and verdict. We affirm.
John G. Manale began his law enforcement career as a Police Cadet, a sort of apprentice, on July 8, 1974. Once he completed the cadet service, he enrolled in and ultimately graduated from the Police Academy. He was, it appears, to borrow from Gilbert and Sullivan, the very model of a modern police officer. 1 Awarded a Civil Service commendation from the President, Manale became the New Orleans Police Department's media representative, appearing on television and giving interviews to improve community relations.
In February 1976, Manale was assigned to the New Orleans Police Department, Fifth Police District. Shortly afterwards, Sergeants Donald Brewer and Joseph Orticke assumed duties in the same district. The sergeants and Manale, it is safe to say, did not get along. Orticke on one occasion and Brewer repeatedly referred to Manale in derogatory terms suggesting that he was a homosexual. Manale and several friends in the Department complained of the harassment. Things did not improve. On November 19, 1977, Manale and Orticke began an argument in the sergeant's office, for reasons unknown. Manale threatened to disclose Orticke's "misconduct" while serving as a ranking officer of the Fifth District. An intradepartmental investigation followed, after which Manale was discharged for insubordination, untruthfulness and unfitness. His discharge, given his public familiarity, attracted substantial attention in the press.
Manale did not abandon his police career. He pursued his civil service remedies and, following a hearing, was reinstated with back pay in November 1978. Later that month, he resigned, citing working conditions and the desire to return to college as his reasons. Manale also alleges, but the record does not bear him out, that the Superintendent of Police promised that if he returned he would see nothing but custodial duty for the remainder of his tenure.
Manale returned to Ocean Springs, Mississippi, his hometown, and enrolled at Jefferson Davis Junior College. Late in 1979, having become a member of the Mormon faith, he moved to Utah and attended Brigham Young University in Provo. Either at that time or previously, he began to experience physical and psychological problems. Suffering from persistent insomnia, unable to concentrate, he saw a general practitioner in Provo who, after unsuccessful treatment with medication, referred him to a psychiatrist. The psychiatrist, Dr. Edward J. Faux, classified Manale as an obsessive-compulsive personality type. Although not undesirable, such a trait may, if the individual sustains a trauma which itself develops into an obsession, degenerate into a mental illness. Dr. Faux testified that the defendants' actions caused such a trauma and that Manale's prognosis for recovery was poor. Dr. Faux conceded that his diagnosis was summary. In order to do a complete, accurate evaluation of Manale's psychological and emotional problems, he needed information concerning family background and would have to perform a number of tests. Manale never underwent the tests and specifically requested the doctor not to contact his family about his treatment.
While in Utah, Manale applied for a job with a modeling agency. The agency requested verification of his employment from the Police Department, which replied that Manale had been fired for insubordination, untruthfulness and unfitness. On March 20, 1980, the Department's Personnel Director sent a letter to the agency correcting its earlier notice and explaining that Manale had, in fact, resigned. The Department's records revealed no other request for employment information. The Department not only corrected its records but offered to write a letter listing resignation as the reason for Manale's departure, but he never furnished it with the necessary list of names and addresses.
Manale alleged that the Police Department and individual officers recklessly defamed him by informing members of the public that he was discharged for being insubordinate, untruthful and unfit when, in fact, following the successful civil service appeal, he left the Department of his own volition. He also charged the two sergeants, Brewer and Orticke, with defamation for publicly insinuating that he was a homosexual.
The District Court found that Manale had not proven that the individual defendants or the Department made defamatory statements of untruthfulness, insubordination or unfitness against him. Finding that Sergeant Orticke did not publicly label Manale a homosexual, it dismissed the complaint as to him. Manale has not appealed that order.
The Court did find that Sergeant Brewer engaged in a "continuous pattern of defamatory behavior". Witness after witness testified that in the presence of other police officers, Brewer addressed Manale by a variety of homosexual epithets. These comments subjected Manale to both the ridicule and the suspicion of his fellow officers, causing him "untold embarrassment and mental anguish". Brewer himself admitted that he had no knowledge of Manale's sexual preference or of the truth or falsity of his remarks. In addition, ranking officers of the Police Department, aware of Brewer's comments, had reprimanded him for impugning Manale's character. Nonetheless, the attacks continued.
The District Court found that Brewer's actions occurred within the scope and course of his employment and held the City vicariously liable for compensatory damages of $9,000 and punitive damages of $1,000, plus reasonable costs and attorneys' fees.
Our review of the factual findings of a District Court is governed by the "clearly erroneous" rule, F.R.Civ.P. 52(a). McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed.2d 20 (1954); Williamson v. Brown, 646 F.2d 196 (5th Cir. 1981). This eminently sensible cornerstone of federal judicial review places the primary responsibility for fact-finding upon the District Judge, who alone has first-hand opportunity to observe the witnesses and weigh their credibility. The District Judge distilled the important facts in her careful Findings of Fact and Conclusions of Law. Agreeing entirely with her disposition of this unhappy case, we affirm.
Manale's complaint sounds exclusively in tort under the Louisiana law of defamation. We begin with the quaint language of the Louisiana Civil Code: "every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." La.Civ.Code Ann. Art. 2315. Slander is a quasi offense actionable under this article. Wisemore v. First National Life Insurance Company, 190 La. 1011, 183 So. 247 (1938); Wilson v. Capital City Press, 315 So.2d 393, 397 (La.App.3d Cir. 1975), writ ref'd., 320 So.2d 203 (1975). If Brewer defamed Manale, with resulting damage, then he is liable.
For defamatory words to be actionable under Louisiana law, Manale bore the burden of proving four elements: (1) publication, i.e., communication to some person other than himself; (2) falsity; (3) malice, actual or implied; and (4) resulting injury. Makofsky v. Cunningham, 576 F.2d 1223 (5th Cir. 1978) (Rubin, J.), citing Carter v. Catfish Cabin, 316 So.2d 517 (La.App.2d Cir. 1975); Wilson, supra; Rougeau v. Firestone Tire & Rubber Co., 274 So.2d 454 (La.App.3d Cir. 1973).
The threshold inquiry is whether the words were defamatory, Catfish Cabin, supra at 521. That Brewer voiced defamatory remarks, the evidence at trial establishes beyond doubt. Former officer Mike Caranbat testified that Brewer called Manale "a little fruit" during daily roll call. Officer Mike Smith testified that Brewer called Manale "gay" and "fruit" on several occasions. Officer Mike Delmada testified that Brewer, stopping him in the hallway, said "you're riding with the fruit tonight", referring to Manale. Brewer himself admitted that he said "where ya at ya little fruit" during roll call, referring once again to Manale. The officers' testimony that Brewer made his comments before a group of police officers also establishes the second required element, publication.
Louisiana law distinguishes between statements only susceptible of a defamatory meaning and those that are defamatory "per se". It defines the latter type as those having a tendency to deprive a person of the benefit of public confidence or to injure him in his occupation or reputation. Barnhill v. Times Picayune Publishing Co., 171 La. 286, 131 So. 21 (1930); Madison v. Bolton, 234 La. 997, 102 So.2d 433, 438 (1958); Wilson, supra. See also Brown v. News-World Publishing Corp., 245 So.2d 430 (...
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