Martin v. City of Del City

• Citation: 179 F.3d 882
• Decision Date: 03 June 1999
• Docket Number: No. 97-6336.,97-6336.
• Parties: John MARTIN, Plaintiff-Appellant, v. THE CITY OF DEL CITY and Stan J. Greil, city manager, officially and individually, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

179 F.3d 882

John MARTIN, Plaintiff-Appellant, v. THE CITY OF DEL CITY and Stan J. Greil, city manager, officially and individually, Defendants-Appellees.

No. 97-6336.

United States Court of Appeals, Tenth Circuit.

June 3, 1999.

Frank E. Walta, Walta & Walta, Enid, Oklahoma, for Plaintiff-Appellant.

David W. Lee, Lee & Gooch, P.C., Oklahoma City, Oklahoma, for Defendants-Appellees.

Before ANDERSON, HOLLOWAY and BALDOCK, Circuit Judges.

HOLLOWAY, Circuit Judge.

Appellant John Martin (Martin) brought suit for damages under 42 U.S.C. § 1983 in the United States District Court for the Western District of Oklahoma against defendants-appellees City of Del City (Del City) and Stan Greil (Greil), Del City's City Manager. Martin alleged the defendants, by terminating Martin's employment, retaliated against Martin for exercising his right under the First and Fourteenth Amendments to petition the Del City government to seek a redress of grievances. The district court granted summary judgment for the defendants in an unpublished Order of August 29, 1997. Martin timely appealed and we have jurisdiction pursuant to 28 U.S.C. § 1291.

I

A

Martin was employed by Del City from 1990 until his termination on June 6, 1996. On August 14, 1995, Greil ordered Martin transferred from his position as supervisor of fleet maintenance to a planning technician position because Greil had received reports that Martin had sexually harassed a female city employee and a female employee of one of the City's suppliers. I Supp.App. at 36. Greil ordered the transfer because he wanted to remove Martin from the work area where the sexual harassment had occurred. Id. at 37.

Following the transfer, Martin filed an appeal of the transfer order with the Del City Civil Service Commission (Commission), pursuant to section 38 of the Del City Charter. Id. at 86-87. Section 38 provides that a city employee may appeal to the Commission any decision that terminates, suspends without pay, demotes or removes the employee. Id. at 61. Section 38 also entitles the appealing employee to a public hearing. Id. at 61-62.

On October 10, 1995, Greil provided Martin a written statement of alleged reasons for his transfer, I App. at 53:(1) Martin had made sexually offensive remarks to a female employee which resulted in a complaint against the city to the E.E.O.C.; (2) Martin had made sexually offensive remarks, displayed sexually offensive behavior, and made unwanted sexual advances to a female supplier representative, as well as having made sexual remarks to female subordinates, including solicitations for sexual favors in exchange for pay checks and benefits; (3) Martin created and fostered unsatisfactory working relationships with other departments and divisions; (4) he improperly used city equipment; and (5) he engaged in insubordination by failing to serve on a policy review committee after being appointed to the committee. I App. at 57-59.

A hearing on Martin's appeal was scheduled for October 1995. However, a petition was filed in Oklahoma County district court, with an accompanying motion for a temporary restraining order, to enjoin the Commission from hearing Martin's appeal until a vacancy on the Commission could be filled. A state judge issued the T.R.O. I Supp.App. at 120-151.

On March 6, 1996, Martin and his attorney met with city officials, including Greil, to discuss a settlement of his employment dispute. The parties initially agreed to a settlement, effective March 6, 1996, that would pay Martin a lump sum to cover six pay periods, pay for any unused vacation and compensatory time, pay for unused accrued sick leave, and pay for the March premium for Martin's medical plan plus a sum equal to five times the monthly cost of the premium. Id. at 39. At the same time, defendants placed Martin on administrative leave with pay.

However, the settlement was not finalized. For the next two months, defendants submitted drafts of the separation agreement to Martin. One draft, dated April 11, 1996, reduced the number of pay periods from six to four.¹ Martin eventually rejected the settlement offer and returned to work on May 8, 1996. I Supp. App. at 41. On May 22, 1996, Greil gave Martin written notice of his contemplated termination and the setting of May 30, 1996, as the pre-termination hearing date. I Supp.App. at 152-54. The hearing was conducted on May 30 with Martin and his counsel in attendance. Martin failed to present any evidence in his defense other than to deny the sexual harassment allegations. I Supp.App. at 155. On June 6, 1996, Greil sent Martin a termination letter. I Supp.App. at 156. Martin was entitled to appeal his termination, but instead filed this suit.

B

Martin's complaint alleged this is a suit brought under the First and Fourteenth Amendments and the Civil Rights Act of 1871, 42 U.S.C. § 1983; that jurisdiction is conferred by 28 U.S.C. §§ 1331 and 1343; and that venue is proper pursuant to 28 U.S.C. § 1391(a), plaintiff's claims arising within this jurisdiction. Martin avers he is a citizen of the United States and the State of Oklahoma, being a resident of Oklahoma County; that Del City is a charter city organized under Oklahoma law; and that defendant Greil is the city manager of Del City and was at all times related to this case acting under color of law.

The complaint avers this action seeks damages and other relief for deprivation of Martin's rights, privileges and immunities granted by the First and Fourteenth Amendments. He alleges he has been employed by Del City since September 1990. On August 17, 1995, the city transferred Martin from the position of supervisor of fleet maintenance to a planning technician position, a lower grade, and a demotion was thus imposed. On August 14, 1995, Martin had filed an appeal under Section 38 of the city charter.

Martin stated that on March 6, 1996 he and the city negotiated his separation from employment. He was placed on administrative leave with pay during the time the city drafted the agreement. The agreement was to provide for payment to Martin of six pay periods, 57.24 hours of accrued vacation time through March 6, 1996, and 356.30 hours of accrued sick leave. Martin alleged the city did not timely prepare the separation document and he remained on administrative leave with pay. On about April 11, 1996, the city prepared a document claiming credit for payments to Martin while on administrative leave. This reduced the pay periods to four payments. Martin disputed the city's entitlement to credit for salary paid while he was on administrative leave. The city then notified Martin he had abused the grievance process and that if he did not execute the separation document as prepared, the city would terminate him. On June 6, 1996, Greil terminated Martin in accordance with the letter.

Martin averred that his exercise of rights under the city's grievance procedure, and his efforts to obtain the settlement agreement as negotiated, were guaranteed under the First Amendment; that defendants, acting under color of law, had punished Martin for exercising his constitutional rights and had deprived him of his rights, privileges and immunities secured by the Constitution, particularly his right of petition for the redress of grievances as guaranteed under the First Amendment. Martin prayed for compensatory damages, for punitive damages against Greil in his individual capacity only, for costs and attorney's fees. I App. at 1-4.

Defendants Greil and the city moved for summary judgment with an accompanying brief, attachments and exhibits. After review of these, the defendants' motion was granted for reasons given in a written order of August 29, 1997. I App. at 157-66. The judge found that none of Martin's allegations, even if true, amounted to a First Amendment violation; that such a claim involves the same analysis whether brought under the Free Speech Clause or the Petition Clause. He noted that Martin did "not seem to affirmatively dispute that his expression was in the nature of a private concern, but rather attempts to argue that the public concern test is inapplicable to his right of petition case." Id. at 162.

The judge disagreed and found that Martin's appeal through the grievance procedure was a matter of private concern, of interest only to him. Id. The judge also held that even if Martin could show that his expression was a motivating factor for the personnel action against him, the City had provided uncontroverted evidence of misconduct, particularly sexual harassment by Martin, showing by a preponderance of the evidence the City would have made the same decision to terminate Martin, regardless of the protected speech. Id. at 163.

For these reasons summary judgment was entered for defendants. This appeal followed.

II

We review the grant of a motion for summary judgment de novo. Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996); see also Wren v. Spurlock, 798 F.2d 1313, 1317 (10th Cir.1986)(whether certain activity is protected by the First Amendment is a question of law to be determined by the court). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. Pro. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Martin argues that the defendants violated his First Amendment right to petition the government for redress of grievances. In granting the defendants' motion for summary judgment the judge held that Martin's "petition" did not touch upon matters of public concern.

A.

Public employees do not surrender their First Amendment rights by virtue of their employment with the government. Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Keyishian v. Bd....