Perry v. Larson

• Decision Date: 23 June 1986
• Docket Number: No. 85-1298,85-1298
• Citation: 794 F.2d 279
• Parties: 123 L.R.R.M. (BNA) 2570, 1 Indiv.Empl.Rts.Cas. 820 Michael G. PERRY, Plaintiff-Appellee, v. Joseph M. LARSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 279

794 F.2d 279

123 L.R.R.M. (BNA) 2570, 1 Indiv.Empl.Rts.Cas. 820

Michael G. PERRY, Plaintiff-Appellee, v. Joseph M. LARSON, Defendant-Appellant.

No. 85-1298.

United States Court of Appeals Seventh Circuit.

Argued Dec. 6, 1985.

Decided June 23, 1986.

James A. Hanely, Milwaukee, Wis., for defendant-appellant.

William C. Griesbach, Liebmann, Conway, Olejniczak & Jerry, Green Bay, Wis., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, and WOOD and CUDAHY, Circuit Judges.

CUMMINGS, Chief Judge.

Michael Perry brought a 42 U.S.C. Sec. 1983 action against Sheriff Joseph Larson alleging that Larson suspended and later discharged Perry because he ran against him in the race for Sheriff of Marinette County, Wisconsin. A jury found for Perry and awarded him $76,466 compensatory and $5000 punitive damages. The defendant's motion for a new trial was denied. On appeal defendant raises several issues. First, he argues that there was insufficient evidence to find for the plaintiff on his claim, while there was ample evidence to support Larson's defense of good faith. Second, Larson argues that a combination of improper evidentiary rulings and the jury form deprived him of a fair trial. Third, the evidence was supposedly insufficient to support an award for punitive damages. Finally, he asserts that plaintiff's damages should be reduced by interim (a) unemployment compensation payments and (b) earnings. We affirm.

I

Mike Perry was a deputy in the Marinette County Sheriff's Department from 1974 until his discharge in 1982. Defendant Larson has been sheriff since 1978. In February of 1982 Perry declared his candidacy for sheriff. Prior to 1982 his personnel record contained commendations for good police work and none contra. In May 1982 Perry was suspended for 5 days for failure to return a proof of service card. He was given no hearing or other opportunity to explain that he had left the card to be picked up by another deputy while he was out of town--a routine practice within the department. On July 6, 1982, Perry received a letter warning him of the consequences of taking extended lunch breaks.

The events of July 29, 1982, form the basis of Perry's discharge. On that evening Tim Powers, Marshal of the town of Coleman, arranged a meeting with Perry at 11:15 p.m. At 11:22 p.m. the sheriff's dispatcher called Perry and two other deputies, Sergeant Richard Lepkowski and Deputy Earl Wagner to inform them of noises at "Jack's Standard," a gas station in Middle Inlet. Perry immediately acknowledged the dispatch. The dispute in this case related to how long Perry remained with Powers before responding to the dispatch.

Perry claims he continued the conversation with Powers for "a few minutes" and then headed toward Middle Inlet, 17 miles to the north. He did not consider the report to be serious for he knew that Jack often worked late at his station. When he reached Crivitz, a town a few miles to the south of Middle Inlet, he heard Wagner radio to say he had arrived and everything was secure. He then turned off to continue his patrol. All of this is normal procedure because Marinette County is a large rural area and the deputies are encouraged to exercise their judgment about how quickly they respond to non-emergency calls. At the request of Lepkowski and Larson, Perry filed a report to this effect. According to Larson's version, Perry totally failed to respond to the dispatcher's call. He claims that Powers and Perry did not part company until close to midnight. Thus he had ample reason to fire Perry: failure to respond to a dispatch and filing a false report.

On July 30, 1982, there was a meeting with Larson, Corporation Counsel James Murphy, Lepkowski, a union official and Perry regarding the incident. On August 20, 1982, Perry received a call from Everett Krull, a county supervisor sitting on the County Law Enforcement Committee. Krull told Perry that if he dropped out of the sheriff's race, both the 5-day failure to return a proof of service suspension (which Perry was contesting) and the Jack's Standard incident would be dropped. He also told Perry that the deal had been cleared with Murphy.

Shortly after the Jack's Standard incident Lepkowski spoke with Powers who later wrote a report stating that Perry remained with him for about 15 minutes before leaving to respond to the call. Lepkowski then contacted Powers again and told him to alter the report because it contained "opinion." Powers changed the report, withdrew some comments about the seriousness of the dispatch and also changed the time from "about 15 minutes" to exactly "11:58 p.m." (or 36 minutes).

On September 14, 1982, Larson defeated Perry in the sheriff's election. On September 27 Larson discharged Perry for failure to respond to the Jack's Standard dispatch and filing a false report, violations of the Union Agreement and Civil Service Ordinance No. 36.

II

A. The defendant asks this Court to overturn the jury's determination. His burden is heavy; a jury verdict will be set aside only if the "evidence [viewed] in the light most favorable to the plaintiff and [the] facts and inferences ... lead to but one conclusion--that there is a total failure of evidence to prove the plaintiff's case." Independence Tube Corp. v. Copperweld Corp., 691 F.2d 310 (7th Cir.1982), reversed on other grounds, 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628. In this case there is ample evidence for the jury to have concluded that Perry's political activities were a substantial factor in the decision to terminate him. See Mt. Healthy City School Dist. Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471.

For example, there was corroborated testimony that Larson had made a threatening remark about Perry's continued employment shortly after he announced his candidacy. Next was the 5-day suspension without a hearing and then a letter chastising Perry for taking an over-long lunch--one minute late! Finally, there was the offer made by Krull that if Perry dropped out of the sheriff's race, both the suspension and the Jack's Standard discharge would be dropped. Some of this evidence was denied or contradicted, but it was for the jury to decide whom to believe and they decided to believe Perry. See Seifert v. Solem, 387 F.2d 925, 928 (7th Cir.1967).

B. Larson next contends that there were non-political reasons justifying Perry's discharge. Once the plaintiff has demonstrated that political activities were a substantial factor in a termination decision, the burden shifts to the defendant to show that the plaintiff would have been discharged even in the absence of the protected activity. Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576. Larson notes that both the failure to respond and filing of the false report were sufficient bases for discharge, so that he has met his burden. But first the jury had to believe that Perry did fail to respond to the dispatch and then lied about it; that was the central dispute. Even if the jury disbelieved Perry on that point, there was evidence to show that the discipline given to Perry was unusually harsh when compared with equally egregious behavior of other deputies within the Sheriff's department. Particularly damning was the testimony of the threatening statement made by Larson shortly after Perry announced his decision to run for sheriff. To top it off, a deal was offered to Perry by those closely affiliated with the Sheriff to quit the campaign in exchange for the dropping of both the suspension and discharge incidents. The jury was certainly entitled to believe this testimony and find that the discharge would not have occurred but for the protected political activity.

C. Finally, Larson argues that he acted in good faith when discharging Perry because he consulted with counsel before acting and because others had initiated the complaints against Perry. Even if it could be logically concluded that Larson discharged Perry for political reasons and without non-political justification (see supra parts IIA and B) and yet acted in good faith, ¹ there was plenty of evidence for the jury to conclude otherwise. In addition to the testimony discussed supra in parts A and B, the jury heard testimony that it was unusual for the Sheriff to be personally involved in any disciplinary actions; those were usually handled by Captain Belonga. Yet Larson personally handled each of Perry's disciplinary actions. Additionally, the two individuals initiating discipline against Perry were (1) Larson's personal secretary, Deputy Blair, and (2) Sergeant Lepkowski, who had a motive to see Perry off the force (see infra part IIIA). All told, the jury had ample evidence from which to conclude that Larson knew he was violating Perry's constitutional rights when he discharged him.

III

The defendant further argues that two evidentiary rulings regarding the admissibility of arbitration proceedings and an improper jury form combined to deny him a fair trial.

A. The first evidentiary point of error the defendant raises is the motion in limine order excluding reference to an arbitration hearing pursuant to the collective bargaining agreement that upheld Perry's termination. The district court relied on McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302, in concluding that the hearing should not be admissible. That ruling was within the discretion of the trial court and may not be overturned absent abuse of discretion. Id. at 292 n. 13, 104 S.Ct. at 1804 n. 13; Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 n. 21, 94 S.Ct. 1011, 1025 n. 21, 39 L.Ed.2d 147. McDonald set out the factors to be examined before admitting such evidence: (1) whether the collective bargaining agreement incorporates the same standards as federal civil rights legislation; (2) the degree of procedural fairness accorded the employee; (3) whether an adequate record with respect to the issue of discriminatory treatment was developed;...