McClure v. Cywinski

• Decision Date: 12 August 1982
• Docket Number: No. 80-2648,80-2648
• Citation: 686 F.2d 541
• Parties: William McCLURE, Plaintiff-Appellant, v. Stanley CYWINSKI, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 541

686 F.2d 541

William McCLURE, Plaintiff-Appellant, v. Stanley CYWINSKI, Defendant-Appellee.

No. 80-2648.

United States Court of Appeals Seventh Circuit.

Argued March 29, 1982.

Decided Aug. 12, 1982.

Mary Lee Leahy, Springfield, Ill., for plaintiff-appellant.

Gerri Papushkewych, Wolfson & Papushkewych, Springfield, Ill., for defendant-appellee.

Before PELL, SPRECHER ^* and CUDAHY, Circuit Judges.

PELL, Circuit Judge.

William McClure, the plaintiff-appellant, appeals from the district court's grant of judgment notwithstanding the verdict (judgment n. o. v.) in favor of defendant-appellee, Stanley Cywinski. McClure had alleged that he was entitled to damages pursuant to section 1983, 42 U.S.C. § 1983 (1976), because he was discharged from his position with the Governor's Office of Manpower and Human Development (GOMAHD) as a result of his insistence on avoiding political involvement in his place of work.

The principal issue on appeal is whether there was no evidence to support the jury's verdict in favor of McClure. This determination turns on two issues: (1) whether there was any evidence that the plaintiff's apolitical attitude was a motivating factor in his discharge and, if there was, whether the district court properly concluded that McClure would have been terminated even in the absence of protected activity, or, alternatively, (2) whether there was any evidence that defendant Cywinski caused McClure's discharge.

McClure also contends that the district court erred in reversing the jury's award of punitive damages. The appellee asserts that, if the judgment n. o. v. cannot stand we should affirm the district judge's alternative disposition, the grant of a new trial. ¹

I. FACTS

The nature of this appeal requires us to recite at some length the facts presented at trial. Because an appeal from a judgment n. o. v. requires us to consider all facts in the light most favorable to the party opposing the motion, Konczak v. Tyrrell, 603 F.2d 13, 15 (7th Cir. 1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980), we shall rely on McClure's version of events where there was a conflict in testimony.

McClure, who had a background in chemistry and had previously worked for state agencies, became aware of an opening in an Occupational Safety and Health (OSHA) program run by GOMAHD in late September or early October, 1977. He discussed with Cywinski the program, which involved consultation with businesses to assist them in meeting OSHA regulations. Cywinski told McClure that the program had to meet certain requirements in order to obtain federal funds and, accordingly, they were looking for an experienced person to manage the industrial hygiene unit and to implement that portion of the program. Cywinski indicated that he was having difficulty finding such a person. Cywinski also stated that he wanted his section managers to have been employed with him before but that he did not require the field staff to be political. McClure made clear to Cywinski that he didn't want to have "anything to do with politics on the job or in relation to the job."

McClure accepted defendant's offer of employment and began work on November 1, 1977. Shortly thereafter, McClure suspected that work he had done regarding qualifications for hygienists had been used to bolster the qualifications of an applicant, Kathy Makos, who Cywinski wanted to hire in order to do a political favor. McClure confronted Cywinski who said that he hadn't intended for McClure to find out about the incident.

Later that November, Cywinski hired Don Ryan, who apparently had no OSHA experience, to work with the program downstate. On that date, and again on February 9, 1978, Ryan gave McClure a calling card which identified Ryan as "GOP Chairman." Although Ryan and McClure were both working in the downstate area, they saw each other only once or twice.

On December 22, 1977, McClure overheard a phone conversation between Cywinski and a person McClure assumed to be Stan Stewart, the agency's attorney. McClure heard Cywinski say, "Makos is okay. She's a senator's friend. McClure is just window dressing. We'll get rid of him later."

The amount of work assigned to McClure dwindled. In late January, 1978, he was told to avoid any further involvement with possible hygienists. In March, Cywinski told McClure not to do any consulting regarding a business in Taylorsville. On March 28, 1978, a secretary began keeping a log of McClure's comings and goings. McClure also testified that his office conditions were substandard: cramped quarters, no phone and no secretary. The defendant did not dispute these facts but introduced evidence that they were common to all or most of the program's employees during the period in question.

On March 30, 1978, McClure taped a phone conversation between himself and Cywinski in which the defendant told McClure to cancel a planned training trip to Alabama. McClure took this tape to the airport and played it for L. William Murray, the agency director. Murray testified that he told McClure it was inappropriate to play the tape at that time but McClure persisted. Murray also testified that he subsequently spoke to Cywinski and then Stan Stewart, the agency counsel, about the tape recording. Stewart told Murray that he thought the recording had been made in violation of state law. Murray therefore decided to discharge McClure.

Murray directed Stewart to prepare the discharge documents without telling him what to put in them. On April 12, 1978, McClure was suspended, pending discharge. The suspension notice did not specifically refer to the taping incident. On May 13, 1978, McClure received a statement of charges. Six charges were enumerated. In summary, these were:

(1) McClure failed to attend a required OSHA training session in Columbus, Ohio from March 27 through March 31, 1978, despite instructions to do so.

(2) McClure failed to report, as directed, to the agency office manager in Springfield.

(3) McClure improperly obtained access to private information contained in the personnel files of other agency employees.

(4) McClure failed to report to his office on numerous occasions between on or about January 12, 1978 and April 11, 1978.

(5) McClure made an unauthorized trip to St. Louis to interview persons for positions in Cywinski's division.

(6) McClure tape recorded the conversation with Cywinski on March 30, 1978.

Stewart testified that the five charges unrelated to the taping incident were included because his experience with civil service proceedings taught that it was best "to throw in everything." Stewart had framed the five additional charges after consulting with other persons, including Cywinski, at the agency.

After McClure was discharged, he appealed his termination to the Illinois Civil Service Commission on May 15, 1978. He withdrew his appeal, however, before presenting any evidence on his own behalf.

On May 5, 1979, McClure filed the instant complaint against Cywinski. Cywinski's motions for directed verdict, made both at the close of the plaintiff's case and at the close of all the evidence, were reserved. The jury returned a verdict in favor of McClure on June 19, 1980, awarding $50,000 compensatory and $75,000 punitive damages. The defendant subsequently moved for judgment n. o. v. or, in the alternative, a new trial. This motion was granted on October 21, 1980.

II. MERITS

A judgment n. o. v. should be denied " 'where the evidence, along with the inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions.' " Konczak v. Tyrrell, 603 F.2d 13, 15 (7th Cir. 1979) (quoting Clemons v. Mitsui O.S.K. Lines, Ltd., 596 F.2d 746, 748 (7th Cir. 1979)), cert. denied, 444 U.S. 1016, 101 S.Ct. 2044, 68 L.Ed.2d 347 (1980). Implicit in this standard is a recognition that a jury verdict must be allowed to stand if it is supported by circumstantial evidence. A judgment n. o. v. is proper, however, if the verdict is supported only by "sheer speculation and conjecture." Ruthig v. Saginaw Transfer Co., 337 F.2d 393, 395 (7th Cir. 1964).

Both parties, as well as the court below, have assumed that McClure's desire to remain apart from politics brings him within the rule of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), in which the Supreme Court held that a termination based solely on an employee's political affiliation would be a deprivation of his first amendment rights to freedom of association and freedom of belief. Although we have been referred to no authority directly holding that abstinence from politics constitutes protected activity, we will assume that it does for purposes of this appeal.

The district judge relied on Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), in deciding this case. We will therefore discuss application of the Mt. Healthy test to the case at bar before turning to the separate issue of causation.

A. Mt. Healthy Test

In Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), the Supreme Court established a three-step process for analyzing discharge cases involving both constitutionally protected and unprotected activity. The Court stated:

Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this conduct was a "substantial factor"-or to put it in other words, that it was a "motivating factor" in the Board's decision not to rehire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent's reemployment even in the...