Shafer v. City of Fort Wayne

• Decision Date: 23 January 1986
• Docket Number: Civ. No. F 85-19.
• Parties: Steven L. SHAFER, Plaintiff, v. CITY OF FORT WAYNE and Lawrence D. Consalvos, Defendants.
• Court: U.S. District Court — Northern District of Indiana

626 F. Supp. 1115

Steven L. SHAFER, Plaintiff, v. CITY OF FORT WAYNE and Lawrence D. Consalvos, Defendants.

Civ. No. F 85-19.

United States District Court, N.D. Indiana, Fort Wayne Division.

January 23, 1986.

COPYRIGHT MATERIAL OMITTED

John C. Theisen and Kim Alan Armstrong, Gallucci, Hopkins & Theisen, Fort Wayne, Ind., for plaintiff.

T. Dean Swihart and Bruce O. Boxberger, Grotrian & Boxberger, Fort Wayne, Ind., for defendants.

MEMORANDUM OPINION AND JUDGMENT

WILLIAM C. LEE, District Judge.

This matter is before the court for a decision on the merits following a bench trial. This case deals with alleged violations of the first amendment, 42 U.S.C. § 1983, as well as state constitutional, contract and municipal ordinance violations arising out of the consolidation of certain accounting functions in the Fort Wayne Department of Public Safety and the transfer of plaintiff from an accounts officer to a combat position in the Fort Wayne Fire Department. Having examined and considered the entire record, having determined the credibility of the witnesses after viewing their demeanor and considering their interests,¹ and being duly advised, the court hereby enters the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

Findings of Fact

The plaintiff, Steven L. Shafer, is an individual citizen and resident of Fort Wayne, Allen County, Indiana, who has been employed by the City of Fort Wayne Fire Department since on or about March 1970. The defendant, City of Fort Wayne ("City"), is a municipal corporation organized under the laws of the State of Indiana. The defendant, Lawrence D. Consalvos ("Consalvos"), is an individual citizen and a resident of Fort Wayne, Allen County, Indiana, and was at all times relevant to this cause either an applicant for or the incumbent Safety Director of the City of Fort Wayne, a position to which he was appointed on or about September 19, 1984. As Safety Director of the City of Fort Wayne, Consalvos was a division head, responsible for the operations of the Fort Wayne Fire Department, Fort Wayne Police Department, Humane Shelter, Communications Department, and Office of Civil Defense, and had authority with regard to those departments to re-organize the departments, transfer work, and eliminate positions.

Shafer served in the Operations Division of the Fort Wayne Fire Department for approximately ten years (from 1970 through 1980), was promoted to the rank of lieutenant and transferred to the Fire Prevention Bureau on or about July 1980. He served in the Fire Prevention Bureau for approximately ten months, and was promoted to the rank of platoon captain in 1981. He became accounts officer for the Fort Wayne Fire Department, which position he held until his transfer to the Operations Division. Shafer was notified of his transfer to the Operations Division by letter dated December 21, 1984, said transfer being effective January 7, 1985. After his transfer to the Operations Division, Shafer continued to hold the rank of platoon captain and his salary and all benefits of employment, with the exception of hours on duty, did not change following his transfer. As an accounts officer, prior to his transfer, Shafer worked a five-day/40-hour week. After his transfer to the Operations Division, Shafer was required to work a 56-hour week, on a one-day-on/two-day-off schedule. Because of an injury received immediately after his transfer to the Operations Division, Shafer never assumed the duties as a Platoon Captain in the Operations Division and has been assigned to "light duty" jobs since the time of his injury.

Prior to the appointment of Consalvos to the position of Safety Director, the various departments of the Division of Public Safety engaged in individual accounting and purchasing practices without regard for inter-departmental needs or overall city budgets. City administrators who had interviewed Consalvos prior to his employment questioned him regarding his experience and possible solution for departmental organization and financial control. During the interview process, defendant Consalvos expressed his view that departmental control and re-organization would include the consolidation of accounting and budget functions. Consalvos, upon notification of his appointment, stated that he would move to consolidate the budget and accounting duties and functions of the various departments of the Division of Public Safety. Defendant Consalvos was considering the consolidation of accounting jobs and budget functions prior to his arrival in Fort Wayne in September 1984. After his arrival in Fort Wayne, Consalvos began gathering information regarding the accounting duties in the various departments in the Division of Safety.

Defendant Consalvos in his capacity as Safety Director, reorganized the various departments under his authority by, among other things, consolidating the accounting functions performed in the Fire, Police, Communications and Humane Shelter departments into one job. The City personnel department considered the position to be administrative assistant to Consalvos. The City had a practice of allowing administrative positions such as this to be filled by "lateral transfers" from the same pay grade positions in other departments without the posting of the position under job bidding guidelines set forth in City personnel policies. Robert Ebert laterally transferred from his position with the Board of Works into this new administrative assistant position. The consolidation of these accounting functions was undertaken pursuant to Consalvos' desire as expressed during his interview for his Director of Public Safety position, and was not done in response to or as a result of any conduct or comments by Shafer.

As a result of the consolidation, some of the people previously performing accounting duties, including Steven Shafer, were re-assigned to other duties. At the time of Shafer's re-assignment and transfer, the Operations Division of the Fire Department was undermanned and in need of additional personnel. There was an understanding at that time between the Fire Department and the Union that 40-hour positions would not be filled until the undermanning of the Operations Division was alleviated. Shafer's transfer to the Operations Division was effected because of the manpower shortage in the Division and not as a result of any conduct or comments by Shafer.

Shortly after his arrival in Fort Wayne, Consalvos became involved in the contract negotiations between the City and Local No. 124 of the International Association of Firefighters. The original contract expired on November 16, 1984, and was verbally extended thirty days to December 16, 1984. At the time of Consalvos' arrival, the City was represented in the contract negotiations primarily by Anthony Hodges, Thomas Heckman, and Noble Schlatter. Anthony Hodges served as chief negotiator and spokesman for the negotiating team. The Union was represented by, among others, David Fyock (as spokesman) and Steve Shafer. Shafer had been a member of the Fort Wayne Professional Firefighters' Association Local No. 124 since on or about March 1970 and became a union steward for Local No. 124 on or about January 1984. Shafer's responsibility as a union steward was to the platoon captains, of which he was one. Sometime prior to November 2, 1984, the City and Union reached an agreement on a tentative contract, which the Union committee members were to present to the general union membership for ratification. At the time the tentative agreement was reached, it was understood by both bargaining committees that the Union committee members would support the tentative agreement and recommend the same to the general union membership. Shortly after the tentative agreement was reached, the Union committee members, including Shafer, advised City negotiators that they had reservations about the agreement and that they could not and would not recommend its passage to the general union membership. These concerns related primarily to the status of platoon captains under the agreement. The Union negotiators, including Shafer, actively lobbied against the approval of the tentative agreement and it was defeated unanimously by the general union membership. Following the defeat of the initial tentative agreement, Shafer and Consalvos met on several occasions to attempt to resolve the problems that had arisen with respect to the treatment of platoon captains under the proposed agreement. Sometime after the rejection of the initial tentative agreement, a second proposed contract was submitted to the union membership. At an open union meeting where Consalvos appeared to discuss the second proposed contract, Shafer asked certain questions of Consalvos regarding specifically the status of platoon captains under the second proposed agreement and how a platoon captain might be transferred. Consalvos responded to the question by pointing out to those assembled that Shafer's question dealt specifically with his own status under the proposed contract. The second proposed contract was also defeated. A contract was ultimately ratified between the City and Local No. 124 in February, 1985 which was expressly retroactive to January 1, 1985, and under which the Union accepted a two percent less pay increase than that offered in the original tentative contract.

Statements made by Shafer regarding the various contract proposals were made almost exclusively to City negotiators and other union members. These statements were generally made in personal conversations or small groups. These statements were not generally made to the news media or at public meetings and were not intended to inform the public or the media regarding the contract negotiations or the particular points of dispute between the negotiating committees. The content of Shafer's statements dealt almost exclusively with the specific terms of...