Pugh v. City of Attica IN

• Decision Date: 26 July 2001
• Docket Number: No. 00-4169,DEFENDANTS-APPELLEES,PLAINTIFF-APPELLANT,00-4169
• Citation: 259 F.3d 619
• Parties: (7th Cir. 2001) CLYDE PUGH,, v. CITY OF ATTICA, INDIANA, ATTICA POLICE DEPARTMENT, ATTICA BOARD OF WORKS, ET AL.,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 619

259 F.3d 619 (7th Cir. 2001)

CLYDE PUGH, PLAINTIFF-APPELLANT, v. CITY OF ATTICA, INDIANA, ATTICA POLICE DEPARTMENT, ATTICA BOARD OF WORKS, ET AL., DEFENDANTS-APPELLEES.

No. 00-4169

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

ARGUED JUNE 4, 2001

Decided July 26, 2001

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 99 C 840--S. Hugh Dillin, Judge. [Copyrighted Material Omitted] Before Ripple, Evans and Williams, Circuit Judges.

Ripple, Circuit Judge

Clyde Pugh brought an ADA discrimination claim and a retaliatory discharge claim under 42 U.S.C. sec. 1983 against the City of Attica, Indiana, and the Attica Board of Works (collectively "the City").¹ The City filed a motion for summary judgment. The district court granted judgment to the City. The court held that Mr. Pugh failed to demonstrate that the City's proffered reason for his discharge was a pretext, as required to succeed on the ADA claim. The court also rejected Mr. Pugh's Section 1983 retaliatory discharge claim because he did not establish the requisite causal connection between his protected First Amendment activity and his termination. Mr. Pugh now appeals the district court's judgment on both claims. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I. BACKGROUND

A. Facts²

Mr. Pugh was employed as the animal control officer for the City of Attica from April 1987 until his discharge on May 5, 1998. As animal control officer, Mr. Pugh was responsible for transporting animals to the Lafayette Humane Society or the veterinarian, patrolling the city for stray animals, and responding to citizen complaints regarding animals. The mayor appoints the animal control officer, who works under the police chief, the mayor, and the city clerk's office.

In a letter dated June 24, 1994, Timothy Quinn, chief of the Attica Police Department, informed Mr. Pugh that Mayor Harold R. Long and he had received reports from citizens that Mr. Pugh smelled of alcohol while on duty. The letter further directed Mr. Pugh to refrain from the use of alcohol from 8 a.m. to 4 p.m. or when on call, in accordance with the City of Attica's personnel policy manual. On January 26, 1996, the police received a citizen complaint that Mr. Pugh had been drinking and operating a city truck while performing his duties as animal control officer. In response to the complaint and at the request of Chief Quinn, Assistant Police Chief Robert Scherer located Mr. Pugh at his residence and administered a breathalyzer test. The test registered .008 percent breath alcohol content ("BAC"), which indicated consumption but not intoxication. In response to another citizen complaint on July 18, 1997, Mayor Long ordered a breathalyzer test for Mr. Pugh. The officer who tested Mr. Pugh reported a BAC of .04 percent and noted that he detected an odor of alcohol on Mr. Pugh's breath.

In the six-month interim separating the two tests, the City of Attica instituted a drug and alcohol abuse policy; on March 19, 1997, Mr. Pugh signed a form that attested to his having read and understood the policy. Under the policy, employees were prohibited from consuming alcohol while on duty, and an employee could be tested for alcohol if the city had a "reasonable suspicion" of consumption. R.30, Ex.B. An employee whose test registered the presence of alcohol could continue employment on a conditional basis by consenting to participation in certified counseling, by remaining alcohol free, and by submitting to periodic and unscheduled breathalyzer tests.

Pursuant to the policy, Mayor Long sent Mr. Pugh a letter on July 30, 1997, requiring Mr. Pugh to undergo profession al alcohol counseling and to submit to a breathalyzer test each time he was on duty if he wanted to retain his position as animal control officer. Six days later, after Mr. Pugh had driven a city truck without submitting to a test, City Attorney Thomas P. O'Connor sent Mr. Pugh a letter of clarification restating the breathalyzer test requirement. Mr. Pugh subsequently began the testing. Mr. Pugh also received an alcohol assessment at Wabash Valley Hospital on September 25, 1997, after O'Connor sent him a letter, dated August 22, 1997, reminding him of his obligation to seek counseling. The counseling and breathalyzer tests lasted for approximately six weeks during August and September 1997. On March 5, 1998, after Mr. Pugh had completed the requisite counseling program, he was stopped by the police for a breathalyzer test. The city claims it stopped Mr. Pugh in response to a citizen complaint; however, there is no report of the complaint in the record. Nevertheless, none of the daily tests nor the March 5th test registered the presence of alcohol.

In late April 1998, Mr. Pugh contacted an attorney, Brenda Clapper, to discuss his belief that his rights were being violated by Attica police officers.

According to Mr. Pugh, the police officers had been following him when he was off-duty after he completed the alcohol counseling. Mr. Pugh claimed that the officers parked in front of his home and stayed until he had entered the house, followed him from his home by car, and waited for him at other locations to continue following him. In her affidavit, Ms. Clapper indicated that Mr. Pugh complained about two drug tests, the required alcohol counseling, the alleged police surveillance, and mandatory breathalyzer tests administered without probable cause, both on and off duty. On April 28, 1998, Ms. Clapper contacted O'Connor to explore Mr. Pugh's claims.

About the same time that Ms. Clapper contacted O'Connor, Assistant Police Chief Robert Scherer conducted an internal investigation into allegations that Mr. Pugh had misappropriated public funds. Scherer's report states that on April 29, 1998, Mike Marquess and Joann Tucker, officers of the Animal Welfare League, came to the Attica Police Department to discuss an incident in which Mr. Pugh allegedly had mishandled funds. According to Marquess and Tucker, Mr. Pugh had collected a twenty-dollar donation from a dog's owners on April 19, 1998, in exchange for impounding the animal. Mr. Pugh had filled out a release form that was then signed by one of the dog's owners and contained a written notation under the owner's name that the donation had been made. The release form indicated that the owners had given the dog to the City of Attica. According to Scherer's report, Mr. Pugh explained that the form was posted at the pound where people who wish to adopt a dog might see the form. When the form was found posted at the pound by Marquess and Tucker, the portion of the paper containing the donation amount had been torn off, prompting Marquess and Tucker to contact the police.

On April 30, 1998, Scherer met with the dog's owners, who confirmed the payment to Mr. Pugh and the signature on the form. One owner stated that he donated the money when the "dog catcher told him that the city would require some sort of donation to take the dog." R.40, Ex.10. Scherer then spoke with the city clerk's office, which indicated that no monies had been deposited by Mr. Pugh nor was it a policy for Mr. Pugh to collect donations.

Scherer met with Mr. Pugh on May 3, 1998, at the police department. Unsure of the conversation's outcome, Scherer read Mr. Pugh his Miranda rights. At Scherer's request, Mr. Pugh explained the events of April 19, 1998. Mr. Pugh indicated that, in response to an inquiry from the owner, he had stated that the Animal Welfare League usually asked for a donation. Mr. Pugh further explained that he had removed the bottom of the form where the donation amount was listed because, when individuals visit the pound to adopt a dog, they often see the form posted and believe that the donation amount is the price of the animal. Finally, Mr. Pugh claimed that he had intended to turn the money over to either Marquess or Tucker and had forgotten to give the twenty dollars to Tucker a few days earlier when he had seen her at the bank. In his report, Scherer stated that Mr. Pugh was aggravated at the implication that he had mishandled the money but also agreed that the circumstances were not favorable to him. At Scherer's suggestion, Mr. Pugh then tendered the twenty dollars, for which Scherer provided Mr. Pugh a receipt.

Later, Tucker called Scherer to inform him that Mr. Pugh had visited her residence and had been visibly upset about the twenty dollars. When Scherer asked Tucker if Mr. Pugh had ever turned money in to her in the past, she replied that only once before had Mr. Pugh given her money. Over a year earlier, Mr. Pugh had collected a ten-dollar donation, and Tucker claimed that Mr. Pugh was slow in remitting it. Mr. Pugh asserted in his deposition that he collected money from animal owners approximately every two or three weeks; however, he only deposited the money with the animal league when he saw Marquess or Tucker, which could be up to three or four weeks later. Mr. Pugh also stated that neither Marquess nor Tucker ever gave him receipts for the donations. At the conclusion of his investigation, Scherer provided his report to Chief Quinn and Mayor Long.

On May 5, 1998, the Board of Works terminated Mr. Pugh after a motion was made by O'Connor, the city attorney, to discharge Mr. Pugh for misappropriation of funds. According to the city's personnel policy, the Board of Works con sists of three members, is controlled by the mayor, and has broad powers. At the time of the May 5th meeting, the Board of Works members were Mayor Long, O'Connor, and Deon (Butch) Swift.

B. Proceedings in the District Court

Mr. Pugh brought this action against the City under the Americans with Disabilities Act ("ADA"), 42 U.S.C. sec. 12101 et seq. In his complaint, Mr. Pugh alleged that the City regarded him as being an alcoholic and that the City discriminated against him by "materially...