Meyers v. City of Cincinnati

• Decision Date: 07 June 1991
• Docket Number: Nos. 90-3096,90-3154,s. 90-3096
• Citation: 934 F.2d 726
• Parties: 57 Empl. Prac. Dec. P 41,051 John MEYERS, Plaintiff-Appellee, Cross-Appellant, v. CITY OF CINCINNATI; Scott Johnson, Individually and as City Manager; David Rager, Individually and as Assistant Director of Safety, Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 726

934 F.2d 726

57 Empl. Prac. Dec. P 41,051

John MEYERS, Plaintiff-Appellee, Cross-Appellant, v. CITY OF CINCINNATI; Scott Johnson, Individually and as City

Manager; David Rager, Individually and as

Assistant Director of Safety,

Defendants-Appellants, Cross-Appellees.

Nos. 90-3096, 90-3154.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 7, 1991.

Decided June 7, 1991.

William S. Wyler, (argued) and Donald B. Hordes, Schwartz, Manes & Ruby, Cincinnati, Ohio, for plaintiff-appellee cross-appellant.

Richard H. Castellini, Kim Wilson Burke, and James F. McCarthy, III, argued, City Solicitor's Office, for the City of Cincinnati, Cincinnati, Ohio, for defendants-appellants cross-appellees.

Before MERRITT, Chief Judge, and RYAN and SUHRHEINRICH, Circuit Judges.

MERRITT, Chief Judge.

The fire chief of the City of Cincinnati instructed the plaintiff, the assistant fire chief in charge of personnel, to conduct an investigation of the distribution of "unauthorized literature" to potential recruits of the fire department. In connection with his investigation, plaintiff contacted two influential citizens who interpreted his questions and statements to be criticism of affirmative action. As a result, they brought pressure to bear on city officials who engaged in conduct which plaintiff claims coerced his retirement and constituted a "constructive discharge." The primary questions before us in this action under 42 U.S.C. Sec. 1983 are whether the city and two of its officials discharged plaintiff or otherwise denied him employment in violation of the Free Speech Clause of the First Amendment and whether plaintiff was denied pre- or post-termination hearings in violation of the Due Process Clause.

The district court held on summary judgment (a) that plaintiff's retirement was forced and was tantamount to a discharge; (b) that he was entitled to a post-termination hearing and that the refusal to give him such a hearing was a denial of due process; and (c) that defendants did not abridge plaintiff's right of free speech, 728 F.Supp. 477. We affirm in part and reverse in part.

I. FACTS

On December 7, 1987, Fire Chief Wells ordered plaintiff to investigate complaints that "literature" had been handed out to potential minority and female recruits during a sign-up for a new fire recruit class. The "literature" turned out to be a business card for PREP, Inc. To determine what PREP was and why it would be handing out cards at a recruitment sign-up, plaintiff called PREP and talked first with Daisy Foster and later with Lucy Green. They told him that PREP is funded by the Department of Labor and assists minorities in competing for jobs. The City takes the position that during these calls plaintiff told Green and Foster that he thought it was improper for PREP, Inc. to help people pass the civil service exams when they could not then do a good job. Plaintiff denies that he made these statements. Plaintiff reported his findings concerning PREP's functions and intention to the fire chief and concluded the investigation when instructed to do so.

Foster and Green took offense at plaintiff's phone calls and what they perceived as criticism of their efforts to help minorities pass the fire department exams. Green called defendant Rager and members of the City Council to complain about the calls. Rager is Assistant Director of Safety for the City of Cincinnati and has supervisory authority over the fire division. After the call from Green, Rager called Chief Wells and told him to investigate plaintiff's conduct of the investigation. Chief Wells talked with Foster, Green and plaintiff about plaintiff's calls to PREP.

When Wells arrived at PREP's office to talk with Lucy Green about plaintiff, he was surprised to find that Rager was present at Green's request. Foster and Green reported to Wells that plaintiff's statements and attitude were objectionable. Wells concluded in his report that the two overreacted and that plaintiff had generally behaved properly. Wells reported to Rager that "no one really did anything wrong, i.e., violated the law, violated City policy, violated Fire Division Rules or violated anyone's constitutional rights," and recommended against disciplinary action.

Rager, supported by the Director of Public Safety, Michael Bierman, ordered Wells to file charges against plaintiff. Rager and Bierman reviewed the charges and approved them. At their instruction, Wells called plaintiff into his office and gave him three choices: he could resign or take a demotion to District Fire Chief and not face charges, or if he did neither, charges would be filed against him. Plaintiff asked to see the charges but was told he could not see them until he had made a decision. He declined to resign or accept demotion and the charges were filed.

The charges stated that in his telephone conversations with Foster and Green plaintiff expressed concern that PREP was "preparing people to take the test who then can't do the job" and was perceived as being rude, not objective and racist.

A hearing on the charges was held. Rager presided as hearing officer, although the city's handbook on hearings states that the charging officer should not be the hearing officer. Plaintiff's lawyer was not allowed to question Chief Wells about the substance of the charges. No evidence was presented by the city except Wells' report of his interviews with Foster and Green. Rager recommended that plaintiff be fired. The personnel department objected that the penalty was too harsh and suggested three alternative forms of discipline. Rager then recommended the most severe of those, a demotion to district chief. Defendant Scott Johnson, the city manager, accepted the recommendation and implemented the penalty.

As a thirty-year veteran of the fire division, plaintiff had accumulated substantial retirement benefits as assistant chief which would be lost if his rank were reduced. He concluded that he could not afford the demotion, and informed Chief Wells that he would retire rather than accept demotion. He then petitioned the municipal civil service commission for review of Rager's conduct of the investigation and hearing. The commission declined to review the procedure on the grounds that plaintiff had voluntarily retired and was not entitled to a hearing.

Instead of seeking review in the state courts of Ohio under state statutes providing for such review, plaintiff filed suit in the United States District Court for the Southern District of Ohio against the City of Cincinnati, Rager and Johnson and sought a jury trial. Rager and Johnson are named individually and in their official capacities. Included in plaintiff's complaint were allegations of denial of both procedural due process and First Amendment rights to free speech, as incorporated in the Due Process Clause of the Fourteenth Amendment, and race discrimination in violation of the Equal Protection Clause. After discovery, plaintiff and defendants filed cross motions for summary judgment on all issues, and the district court granted summary judgment on all issues. The district court held that plaintiff's resignation was coerced by the defendants, and thus constituted a constructive discharge. On the procedural due process claim, the court held that the pre-termination hearing was constitutionally sufficient, but that plaintiff was improperly denied a post-termination hearing. The court ordered the plaintiff reinstated until such time as he is granted a post-termination hearing. The defendants appeal this order. On all other issues the district court held for the defendants. It found that plaintiff's speech did not involve a matter of public concern and thus was not protected. It held that defendants had not engaged in racial discrimination because their actions were not taken due to plaintiff's race. Plaintiff appeals these determinations.

II. FIRST AMENDMENT CLAIM

Plaintiff's appeal asks us to determine whether the city's action against him was motivated by his speech and whether that speech is protected speech. If both questions are answered affirmatively, plaintiff's First Amendment right to free speech has been denied. In making these determinations, we must review the whole record to assure that "the judgment does not constitute a forbidden intrusion on the field of free expression." Rankin v. McPherson, 483 U.S. 378, 386 n. 9, 107 S.Ct. 2891, 2898 n. 9, 97 L.Ed.2d 315 (1987). The ultimate question of whether speech is protected is a matter of law. Id.; see also Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 1690 n. 7, 75 L.Ed.2d 708 (1983).

The motivation behind the city's disciplinary action is a question of fact, Langford v. Lane, 921 F.2d 677, 680 (6th Cir.1991), but the record before us leaves no room for reasonable minds to differ. It was the objection of Foster and Green to the content of plaintiff's alleged statements on the telephone that moved Rager to act as he did. As in Ratliff v. Wellington Exempted Village Schools Bd. of Educ., 820 F.2d 792 (6th Cir.1987), the change in the attitudes and actions of the defendants before and after the speech in question is too compelling to ignore. Prior to the calls to PREP, no action had ever been taken against the plaintiff in his more than 30 years with the Fire Division. There was no existing dispute between the plaintiff and Chief Wells or Rager at the time of the calls. Compare Ratliff, and Rankin, (no dispute between employer and employee prior to speech) with Connick and Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (plaintiffs' speech concerns previously existing dispute between employer and employee). The city manager stated that although he did not know precisely what plaintiff said, plaintiff's statements were in direct contravention of city policy on affirmative action. He determined that plaintiff had taken "actions" perceived by the public as...