McMath v. City of Gary, Ind., s. 90-2352

Citation976 F.2d 1026
Decision Date03 November 1992
Docket NumberNos. 90-2352,91-2126,91-2127 and 91-2128,s. 90-2352
PartiesStephen C. McMATH, Plaintiff-Appellee, v. CITY OF GARY, INDIANA, Thomas V. Barnes, individually and in his capacity as Mayor of the City of Gary, Beulah Ware, individually and in her capacity as Director of Personnel for the City of Gary, et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Ivan E. Bodensteiner (argued), Valparaiso, Ind., for plaintiff-appellee.

Cora M. Vaughn (argued), Vaughn & Associates, Gilbert King, Jr., Corp. Counsel, Office of Corp. Counsel, Gary, Ind., for defendants-appellants.

Before BAUER, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

After his dismissal as Director of the General Services Administration for the City of Gary, Indiana, Stephen McMath sued the city and four of its officials under 42 U.S.C. § 1983, claiming that the firing violated his occupational liberty interest, and thereby contravened his substantive and procedural due process rights. He also brought a supplemental state count alleging wrongful discharge. The defendants filed a motion to dismiss McMath's amended complaint, and also raised the defense of qualified immunity. The magistrate judge dismissed McMath's substantive due process count, denied the defendants' motion as to the remaining counts, and rejected the defense of qualified immunity. The judge then certified the immunity defense as frivolous and refused to stay the trial pending appeal of the issue. The matter went to trial, and all but one of the defendants (who, obviously, is not a party to this appeal), were found liable on both the federal and state counts. The magistrate judge awarded attorney's fees and costs to McMath under 42 U.S.C. § 1988.

The defendants raise numerous issues on appeal. First, they pursue their motion to dismiss, claiming that the magistrate judge erred in refusing to grant them qualified immunity, and that McMath's complaint failed to adequately plead the violation of a liberty interest. Next, they contend that the evidence was insufficient to support findings of liability on either the § 1983 or state wrongful discharge counts. Finally, the defendants dispute the award of attorney's fees to the plaintiff.

I.

Stephen McMath was hired as Director of General Services ("GS") by former Gary Mayor Richard Hatcher in May 1986, and in December 1987 was reappointed by Hatcher's successor, defendant Thomas Barnes. In early 1988, McMath convened a meeting with Barnes to discuss rumors that a GS employee, Donald McDuffie, was engaging in loan sharking activities on GS property. The mayor summoned Gary Police Chief Cobie Howard, also a defendant, to the meeting, and directed McMath and Howard to address the matter. The two conferred, and a few days later Howard called McMath, telling him that he would set up police surveillance at GS in an attempt to catch McDuffie in the act. According to McMath, Howard expressed concern that whomever he selected to conduct the investigation might inform McDuffie.

In light of that concern, McMath claims, a couple weeks later he contacted Howard and agreed to talk with McDuffie himself. During McMath's conversation with McDuffie, McDuffie agreed to--and subsequently did--retire. McMath assumed that this confrontation and McDuffie's retirement had solved the problem, and therefore did not order McDuffie to stay off GS property, and naturally did not tell Howard that he told McDuffie to do so.

McMath testified that he heard nothing further about McDuffie's alleged loan sharking activities until an October 4, 1988, cabinet meeting, during which Beulah Ware, the city's personnel director and a defendant in this case, raised the issue. Howard, also in attendance, agreed to take care of the matter. Three days later, McMath received a telephone call from Howard, asking when paychecks were distributed to GS employees and indicating that he thought that would be an opportune time to send a few officers over to GS to investigate McDuffie's alleged activities. One of those officers testified that Howard ordered them to arrest McDuffie for trespassing, which they did. According to McMath, Howard was upset because the officers had arrested McDuffie before they saw him actually engaging in loan sharking activities.

After the arrest, an officer contacted McMath and demanded that he sign an affidavit alleging that he had ordered McDuffie's arrest, that McDuffie was loan sharking on GS property, and that McMath had warned McDuffie to stay off the GS property. According to McMath, he was led to believe that the affidavit was already prepared, and that he need only provide his signature. McMath responded that he could not sign the false affidavit, but agreed to see if anyone at GS would come forward with information regarding McDuffie's activities. Later that day, McMath received a telephone call from Howard asking him to sign the affidavit. According to McMath, he was again led to believe the affidavit was already prepared, and he told Howard he could not sign a false affidavit because he did not want to commit perjury.

The next day, McMath received a telephone call from another officer, again asking him to sign an affidavit and again leading him to believe it was already prepared. McMath reiterated that he would not sign it and explained his reasons. He received yet another telephone call on October 11 from a Detective Burns, informing him that his signature was needed on an affidavit. Later that day, Howard renewed his request, McMath again refused, and Howard said that he would send a report of the incident to Mayor Barnes, indicating McMath's refusal to cooperate in the investigation.

Shortly thereafter, on October 14, McMath was called to a meeting at Barnes' office--attended by Barnes, Ware, Howard, and Booker Blumenberg, director of public safety--and learned that Howard had indeed forwarded a written report to Barnes. McMath, however, was not given a copy of the report. At the meeting, Howard told Barnes that McMath refused to sign the affidavit. McMath presented his version of the events, including the fact that he had originally raised the McDuffie issue with Barnes in 1988; that Howard had agreed to take care of it but could not find an officer he could trust to set up surveillance; that he talked with McDuffie, who agreed to resign; and that he felt he was being asked to cover for poor police work and had been requested to sign a false affidavit. Barnes said he would investigate the matter further, and McMath left the meeting.

McMath then received a memorandum dated October 17, signed by Blumenberg and prepared at Barnes' direction, notifying him that he was suspended for two weeks without pay. On October 26, Ware informed McMath by written notice that he was terminated, effective October 28. Soon after his dismissal, by way of a letter dated November 2, 1988, McMath's attorney requested a "name clearing" hearing.

Around this time, several people in the community contacted McMath, telling him they heard he was fired for failure to cooperate at GS and for running a loan sharking ring there. According to McMath, although he initiated discussions of his discharge with some community members, he indicated the firing was a result of his failure to sign a false affidavit rather than for failure to cooperate with the police department's investigation of McDuffie.

The case was tried before a jury in October 1990. The jury awarded McMath $50,000 in compensatory damages--$17,500 on the § 1983 claim and $32,500 on the wrongful discharge claim. In responding to special interrogatories, the jury found that the defendants' actions stigmatized McMath based upon public statements made at the time of his discharge, that they neglected to provide the due process hearing to which he was entitled, and that they discharged him for refusing to sign a false affidavit. Because McMath prevailed on his federal claim, the magistrate judge awarded him attorney's fees and costs under 42 U.S.C. § 1988.

II.

The defendants' first claim on appeal is that the magistrate judge erred in refusing to dismiss the § 1983 count on qualified immunity grounds or on the ground that McMath did not adequately allege the violation of a protectible liberty interest. Although we do not necessarily agree with the magistrate judge's determination that the immunity claim was frivolous, we do believe that the factual allegations contained within the complaint are sufficient to defeat the immunity defense and survive the motion to dismiss.

In his amended complaint, McMath alleged, among other things, that the defendants' conduct violated his occupational liberty interest because (1) his discharge was accompanied by false and stigmatizing public charges, and (2) he was not given the opportunity for a "name clearing" hearing. The defendants raised a qualified immunity defense--except for the City of Gary, which could not, see Hedge v. County of Tippecanoe, 890 F.2d 4, 8 (7th Cir.1989)--and moved to dismiss the complaint. The magistrate judge denied the motion. The defendants then filed a notice of appeal, seeking interlocutory review of the judge's order. The magistrate judge certified the claim as frivolous, see Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir.1989), and declined to stay the trial pending the appeal. McMath v. City of Gary, No. H 89-0179, slip op. at 5 (N.D.Ind. June 6, 1990). Thereafter, we entered an order denying the defendants' motion for stay of the trial.

In Apostol, we admonished district courts to act with restraint in using their power to certify the frivolity of an appeal, 870 F.2d at 1339, and we reiterate that admonition here. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), authorized pre-trial appeals for defendants claiming qualified immunity; that right...

To continue reading

Request your trial
82 cases
  • Smith v. Milwaukee County
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • 14 Febrero 1997
    ... ... See Ratliff v. City of Milwaukee, 795 F.2d 612, 628 (7th Cir. 1986); Richardson v. City of ... See Jones v. City of Gary, Indiana, 57 F.3d 1435, 1441-44 (7th Cir.1995); Schultz v. Baumgart, ... denied, 510 U.S. 1072, 114 S.Ct. 881, 127 L.Ed.2d 76 (1994); McMath v. City of Gary, Indiana, 976 F.2d 1026, 1031-36 (7th Cir.1992); Ratliff ... ...
  • Kaufmann v. US
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • 22 Diciembre 1993
    ... ... Grecu, 612 F.Supp. 111, 115 (S.D.Ind. 1985). The FTCA claims alleged in counts VI and VII against the ... claims which would entitle ... them ... to relief.'" Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985) (quoting Conley v. Gibson, ... McMath v. City of Gary, Indiana, 976 F.2d 1026, 1031 (7th Cir.1992) ... ...
  • Laflamboy v. Landek
    • United States
    • U.S. District Court — Northern District of Illinois
    • 20 Noviembre 2008
    ... ... See Montano v. City of Chi., 535 F.3d 558, 569 (7th Cir.2008) (citing Smith v. Lamz, 321 ... Michigan City, Ind., 462 F.3d 720, 732 (7th Cir.2006), but rather alleges that the Village ... ...
  • Carlson v. City of Delafield
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • 11 Marzo 2011
    ... ... Tilley, 41 F.3d 296, 299 (7th Cir.1994); McMath v. City of Gary, 976 F.2d 1026, 103132 (7th Cir.1992); Johnson v. Martin, 943 F.2d 15, 16 (7th ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT