Neubauer v. City of McAllen, Tex.
| Citation | 766 F.2d 1567 |
| Decision Date | 08 August 1985 |
| Docket Number | No. 83-2553,83-2553 |
| Parties | David NEUBAUER, Plaintiff-Appellee, v. CITY OF McALLEN, TEXAS, Calvin Gibson, C.D. Mussey, and Frank Jurek, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Henrichson-Smith, Preston Henrichson, George Almaraz, Richard C. Smith, Edinburg, Tex., Russell McMains, Corpus Christi, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before THORNBERRY, GARWOOD, and HILL, Circuit Judges.
Appellee David Neubauer, a former police patrol officer with the McAllen police
department, brought this suit under 42 U.S.C. Sec. 1983, alleging that the city manager, chief of police, and members of a Police Review Board for the City of McAllen violated his first amendment rights by dismissing him because of his involvement in constitutionally protected activities. Following a jury verdict, the district court rendered judgment against defendants-appellants, the City, city manager, police chief, and one of the Review Board members. Since the jury's verdict as to each appellant may have been based on a submitted theory of liability not sustained by the evidence, we reverse.
Plaintiff-appellee Neubauer contended that his March 29, 1979 discharge from the McAllen police department violated his first amendment rights because it was motivated by his February 1979 furnishing of a statement to the state grand jury concerning an incident of July 17, 1978 involving fellow police officer Sergeant Davis, thus breaching an alleged unwritten police "code of silence." Neubauer alleged that his discharge was additionally violative of his first amendment rights because it was also motivated by his association with those who supported the McAllen civil service referendum and by his participation in or support of a police officer's employee organization known as the Combined Law Enforcement Association of Texas ("CLEAT").
The McAllen civil service referendum election was held on August 12, 1978. The hotly contested and controversial campaign for civil service had been organized by McAllen fire department personnel, but CLEAT became active in support of the referendum in its later stages. The mayor and city commission opposed the measure. McAllen Police Lieutenant DeLeon was president of CLEAT. Neubauer joined CLEAT in either October 1978 or January 1979, well after the election. There is no evidence that Neubauer played any role in CLEAT, other than being a member; nor is there any evidence of whether Neubauer was even minimally involved in the civil service referendum campaign or what his position was regarding that matter.
The referenced incident of July 17, 1978 involved improper advances allegedly made by Sergeant Davis to an undocumented alien female prisoner who was being held in the jail portion of the McAllen police station. This incident, as well apparently as other matters, some possibly of a similar nature, concerning the City of McAllen and its police department, came under consideration by the state grand jury in Hidalgo County. Several police officers appeared before the grand jury, including DeLeon who appeared in December 1978 and January 1979. According to DeLeon, on the latter occasion the grand jury requested that he procure for it statements from those involved in the July 17 incident. DeLeon was not involved in and did not witness this incident. Neubauer was requested by DeLeon, or by Patrol Officer Escalon, who witnessed the July 17 incident, to furnish a written statement for this purpose. In early February 1979, Neubauer executed an affidavit concerning the July 17 incident and either gave it to Escalon or put it in DeLeon's office. Apparently the affidavit was forwarded to the grand jury. At some time after March 27, 1979, the exact date being undisclosed by the record, Neubauer personally testified before the grand jury.
After the grand jury investigation had begun, defendant-appellant Calvin Gibson, the city manager of McAllen, ordered defendant-appellant Police Chief Mussey to organize an internal department investigation into the allegations against Sergeant Davis. Mussey directed defendant-appellant Jurek, a police commander, and another officer, Williams, to conduct an initial investigation into the matter. The two men gathered statements from various witnesses and presented them to the police chief. Mussey then set up a Police Review The Board subsequently recommended to Chief Mussey, on March 27, 1979, that Neubauer be fired for presenting a false statement to a superior officer. Mussey examined the Board's findings and concurred in their recommendation. He submitted the Board's and his recommendations to the city manager, Gibson, for a final decision. Gibson agreed with the recommendations and fired appellee on March 29, 1979.
Board composed of three police commanders, Jurek, Eckhart, and Funke, to conduct a more thorough investigation. Neubauer presented to this Board a Xerox copy of the entire affidavit, except for the jurat, which he earlier furnished for the grand jury. He informed the Board that the statement was a copy of what he had furnished the grand jury. The Board subsequently discovered that Neubauer's statement was factually incorrect in at least one or more respects. The statement asserted that Alfredo Saldana, a police officer, had witnessed the July 17 incident; in fact, Saldana had been on vacation from July 7 to July 23, and could not have been present during the incident. 1 The Board called Neubauer in for an interview, during which the members called his attention to the records which indicated that his statement about Saldana and his own assignment on that occasion was wrong, and provided him an opportunity to correct the errors in the statement. Neubauer, however, refused to alter his statement. He persisted in this refusal on a subsequent occasion. He did
not acknowledge that he may have been mistaken
Neubauer thereafter submitted a grievance to the assistant city manager, Jose Escamilla, requesting that he review the city manager's decision. Escamilla met with Neubauer and Frank Jurek, of the Police Review Board, and examined the file of information that had accumulated during the recommendation and dismissal process. On April 10, 1979, Escamilla sent a letter to Neubauer informing him that he concurred in the decision to terminate his employment. Neubauer took his grievance to the City of McAllen Grievance Committee, composed of three city employees who had been elected to Committee positions by their fellow employees. None were employed in the police department. The Committee was the penultimate step in the City's grievance procedure; the City's Personnel Policies and Procedures manual provided that the Committee would make a decision on the employee's grievance and submit it to the city manager, who would then make a "final decision." The Committee held a hearing on May 2, 1979, during which it heard testimony from both Neubauer and the City and reviewed documents submitted by the Board. Neubauer was represented by counsel at this proceeding. At the conclusion of the hearing, the Committee deliberated briefly and concurred in the decision to fire Neubauer. The Committee unanimously found Neubauer's statement to be "untruthful" and "recommend[ed] termination from employment." The city manager adhered to his original decision.
On October 9, 1980, Neubauer brought this action under 42 U.S.C. Sec. 1983 against the City, Gibson, Mussey, and the individual members of the Police Review Board, alleging that they conspired to terminate his employment because he exercised his first amendment rights. 2 He contended that the defendants were motivated to fire him because of his association with DeLeon and others who supported the civil service referendum, his violation of the unwritten "code of silence" by furnishing an affidavit to the state grand jury concerning the Davis incident, and his participation in or support of CLEAT. The case was tried to a jury in November 1982. The jury returned a special verdict which found that one or more of Neubauer's referenced three protected activities set out in the court's charge had been a substantial motivating factor in each defendant's decision to recommend or order termination, that appellee would not have been fired but for his involvement in one or more of those protected activities, and that he suffered $539,242.25 in past and future lost earnings and in mental pain and anguish. The verdict did not indicate which one or more of the three "activities" of Neubauer had motivated the defendants, however. The jury also assessed punitive damages of $3,000 each against Gibson, Mussey, and Jurek. The district court rendered judgment for Neubauer in the amount of $615,620.13, consisting of $539,242.25 actual damages against the City, $3,000 punitive (but no actual) damages against Gibson, Mussey, and Jurek each, and $67,377.88 attorneys' fees and court costs assessed against all defendants.
The basic determination of liability as to all defendants rested on the jury's answer to the first interrogatory, reading as follows:
"Do you find from a preponderance of the evidence that any one or combination "The activities are:
f the following activities of David Neubauer, individually or together with one another, were a substantial motivating factor in the decision of the persons below named to discharge Mr. Neubauer from his position as a Police Officer with the McAllen Police Department?
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