Simon v. ST. LOUIS CTY., MO., 77-1140-C(3).

• Decision Date: 27 June 1980
• Docket Number: No. 77-1140-C(3).,77-1140-C(3).
• Citation: 497 F. Supp. 141
• Parties: Gary E. SIMON, Plaintiff, v. ST. LOUIS COUNTY, MISSOURI, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

497 F. Supp. 141

Gary E. SIMON, Plaintiff, v. ST. LOUIS COUNTY, MISSOURI, et al., Defendants.

No. 77-1140-C(3).

United States District Court, E. D. Missouri, E. D.

June 27, 1980.

Francis L. Ruppert, Clayton, Mo., Kent Hull, South Bend, Ind., for plaintiff.

Thomas Wehrle, County Counselor, Andrew J. Minardi, Asst. County Counselor, Clayton, Mo., Glen R. Murphy, Gaithersburg, Md., for defendants.

MEMORANDUM

FILIPPINE, District Judge.

This matter is before the Court on the merits of plaintiff's complaint following a trial to the Court sitting without a jury. Plaintiff brought this action pursuant to 29 U.S.C. §§ 793 and 794, and 42 U.S.C. §§ 1983 and 1985. Plaintiff, who was left paraplegic after a gunshot wound in a shooting that occurred while he was a St. Louis County Police Officer, alleges that his discharge in 1972, after his injury, was effected without due process and that the failure of the St. Louis County Police Department to rehire him violates his rights under the Rehabilitation Act of 1973.

After very careful consideration of the pleadings, the testimony of the witnesses, the documents in evidence, the extensive stipulations of the parties, and otherwise being fully advised in the premises, the Court hereby makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52. Additionally, any finding of fact equally applicable as a conclusion of law is hereby adopted as such, and conversely, any conclusion of law applicable as a finding of fact is adopted as such.

FINDINGS OF FACT

1. Plaintiff Gary Simon is a citizen of the United States residing in the Eastern District of Missouri.

2. Defendant St. Louis County is a political subdivision of the State of Missouri. The St. Louis County Police Department

(the Department) is an agency of defendant St. Louis County. Colonel Gilbert Kleinknecht is the Superintendent of Police in St. Louis County (the Superintendent) and has supervisory and managerial control of the Department and all its personnel, both civilian and commissioned, pursuant to Article IV, § 4.275 of the St. Louis County Charter (1968). The St. Louis County Board of Police Commissioners (the Board) is in charge of the Department pursuant to §§ 4.270.1-7 of the St. Louis County Charter. Pursuant to § 4.270.7 of the County Charter, the Board is authorized to, inter alia: formulate policies governing the operation of the Department; to appoint a superintendent of the Department a person qualified and experienced in police administration and law enforcement; and to promulgate, upon the recommendation of the Superintendent, a manual of rules and regulations for the qualifications, conduct and discipline of personnel of the Department, and its operation.

3. From January, 1973 through the time of the trial defendant St. Louis County has received Federal Financial assistance. Much of this money has been in the form of Law Enforcement Assistance Administration and revenue sharing funds which were used to benefit the Police Department which has as a primary function the hiring of commissioned police officers. Approximately 90% of its budget goes to salaries.

4. Plaintiff, who was born on January 20, 1947, was appointed effective January 28, 1969, to the rank of Probationary Patrolman with the St. Louis County Police Department. Effective on his appointment, plaintiff was assigned to the Division of Field Operations and detached to the Division of Training and Personnel for the purpose of attending the St. Louis County Police Academy. As part of his routine training he was transferred to different areas of the Department. Effective May 12, 1969, he was reattached to the Division of Field Operations assigned to the Second District. Effective September 1, 1969 he was transferred to the Division of Services, Communications Bureau. He remained there until he was transferred to the Division of Field Operations, effective July 1, 1970. From that date until the time of his injury, plaintiff was assigned as a police officer to the Division of Field Operations.

5. In his capacity as a police officer assigned to the Division of Field Operations plaintiff's duties included, inter alia, the following: the patrol of various areas of St. Louis County in a patrol car; the prevention and discovery of the commission of crimes; the apprehension of criminal offenders; the enforcement of vehicle and traffic laws; and the making known the police presence in the community in such a manner that its presence contributed to the deterrence of law violations. His duties also included answering calls and radio complaints involving: fires; automobile accidents; misdemeanors and felonies; and a wide variety of domestic disturbances, including but not limited to assistance with mentally or physically ill persons, neglected, abused or delinquent children, and marital disturbances. Plaintiff, as well as other commissioned officers, was also responsible for conducting accident investigations and for conducting preliminary investigations at the scenes of crimes; for administering first aid to persons; for gathering evidence, locating and questioning witnesses, and making arrests as necessitated by circumstances; and testifying as a witness in court. In addition, he had responsibilities for establishing traffic control and police protection at fires, accidents, and other incidents which may attract crowds; and for performing various other police duties such as checking and reporting deficient street lights, signs and road surfaces used by the public.

6. Although there are certain bureaus or divisions of the Department which substantially involved more sedentary activity in the performance of their duties than described in the Division of Field Operations (See Findings of Fact Nos. 18 and 19), the majority of activities of that Division require an officer to be able to run, jump, hop, stoop, turn, pivot or perform similar movements quickly and without the aid of another person or supporting device.

7. On November 24, 1971 plaintiff was shot in the abdomen and suffered a severe wound to his spine which resulted in the loss of the use of his legs. He was hospitalized for extensive treatment, including operations, although none of the treatment was successful in restoring motor function to his legs. He was diagnosed as having a condition of paraplegia. After further treatment, including several surgeries and rehabilitative treatment at the Craig Hospital in Englewood, Colorado, plaintiff continued to be diagnosed as a paraplegic up until the date of trial. His condition of paraplegia is a permanent condition that will not deteriorate, although it may improve.

8. As a result of his paraplegic condition, plaintiff requires the use of leg braces and crutches to walk. He is unable to stand or support the weight of his body on either of his legs without the use of his crutches. He cannot run, jump, hop, stoop, turn, pivot or perform similar movements without the aid of a supporting device or the aid of another person. Plaintiff requires the use of braces and crutches to gain ingress and egress from an automobile or other motor vehicle. He cannot drive an automobile without the aid of specially fitted hand controls and automatic transmission.

9. At the time of his injury plaintiff had satisfactorily completed his training and was a fully commissioned police officer with the Department. From November 24, 1971 until July 5, 1972, plaintiff continued to receive his salary as a commissioned officer with the Department.

10. By a letter from Robert diGrazia, then Superintendent of Police for the County, dated July 10, 1972, plaintiff was terminated from the Department. In that letter, Superintendent diGrazia said in pertinent part "... in view of your inability to fulfill the duties of a St. Louis County police officer, I must regretfully advise you that I have no alternative but to terminate your employment effective July 5, 1972." Defendants' Exhibit B.

In addition, the letter indicated that another reason for plaintiff's termination was that the Department, based on an opinion from the St. Louis County Counselor, had determined that his injury was not in the line of duty. Specifically Superintendent diGrazia said:

This department has been advised that while your injury did occur during the period of employment, there was no causal connection between your injury and your employment, nor were you performing duties incidental thereto at the time of the injury. Defendants' Exhibit B.

Later, however, plaintiff successfully appealed his denial of disability retirement benefits, thus obtaining a reversal of the Department's position that his injury was not suffered in the line of duty. He was then awarded full disability. See § 204.220 St. Louis County Revised Ordinance (1964). Despite the fact that both parties presented much evidence by way of exhibits, documents and stipulations regarding the "line of duty" aspect of plaintiff's injuries and subsequent determinations by defendants, the Court does not attach much relevance to the issue. For purposes of the instant lawsuit the relevant facts involve the date of plaintiff's complained of termination and the nature and extent of his injuries and resulting condition of paraplegia as it relates to his subsequent application for employment with the Department as a fully commissioned police officer.

11. Plaintiff was not given a pre-termination hearing prior to his July 5, 1972 discharge as a commissioned officer with the Department.

12. Plaintiff filed the instant lawsuit in which he asserts, inter alia, that the July 5, 1972 termination was carried out in violation of 42 U.S.C. § 1983 and his rights not to be deprived of property without due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution, on October 26, 1977.

13. In March of 1976 plaintiff met informally with Superintendent Kleinknecht, who had since replaced...