Smith v. Milwaukee County

• Decision Date: 14 February 1997
• Docket Number: No. 95-C-149.,95-C-149.
• Citation: 954 F.Supp. 1314
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Betty SMITH, Plaintiff, v. MILWAUKEE COUNTY, Milwaukee County Sheriff Lev Baldwin, Richard Artison, Jeffrey Zens, Peter Misko, Peter Lango and Jerianne Feiten, Defendants.

954 F.Supp. 1314

Betty SMITH, Plaintiff, v. MILWAUKEE COUNTY, Milwaukee County Sheriff Lev Baldwin, Richard Artison, Jeffrey Zens, Peter Misko, Peter Lango and Jerianne Feiten, Defendants.

No. 95-C-149.

United States District Court, E.D. Wisconsin.

February 14, 1997.

Betty Adelman and Jeffrey Hynes, Adelman, Adelman & Murray, Milwaukee, WI, for Plaintiff.

Timothy R. Schoewe, Milwaukee County Corporation Counsel, Milwaukee, WI, for Defendants.

DECISION AND ORDER

CURRAN, District Judge.

Betty Smith, a Milwaukee County (Wisconsin) deputy sheriff, is suing the County, its Sheriff, its former Sheriff, Richard Artison, and four other deputies¹ for violating her civil rights by firing her without a pre-termination hearing. Smith, who has been reinstated, seeks $112,319.80 in compensatory damages and $25,000 in punitive damages pursuant to 42 U.S.C. § 1983.

After being employed by the County in other capacities, Smith joined the Sheriff's Department in March of 1992, as a probationary employee. During her probationary period, Smith was assigned to a facility where she was being trained to work in a Milwaukee County jail, which was then under construction.

In October of 1992, a woman was arrested for prostitution and brought to the jail. While being held in pretrial detention, the woman committed suicide. Smith was not working at the jail during the incident. Nevertheless, a few days later, Smith, who was then working at the jail annex, was asked by her superior, Defendant Jerianne Feiten, to write a report about any discussions of the suicide she may have had with other employees. Smith refused to complete or rewrite the report. An internal investigation by the Sheriff's Department determined that Smith was insubordinate in refusing to complete the report.

In March of 1993, as Smith approached the end of her probationary period, the County's Recruit Review Committee met and recommended to the Sheriff that Smith should not be retained for permanent employment. On March 24, the Sheriff signed an order terminating Smith without cause effective March 25.

After a deputy sheriff works 2080 hours of "straight time," the deputy has completed her probationary period. Prior to March 24, 1993, Betty Smith had completed 2072 hours of straight time. On March 24, she was not scheduled to work, but, at the request of a superior, came to work where Smith herself filled out a time sheet classifying the eight hours worked on March 24 as overtime, even though she had not yet completed a regular forty hour work week—a prerequisite for accruing overtime under the deputy sheriffs' labor agreement.

After Smith was fired, she demanded a hearing before the County's Personnel Review Board which ultimately decided that the last eight hours Smith worked should be classified as straight time making her a permanent employee. Smith was reinstated and eventually given back pay and benefits.

In 1994, Smith filed this lawsuit in the Circuit Court of Milwaukee County. The Defendants removed it to federal court where a bench trial was held.

I. TRIAL RULINGS

Smith's complaint sets forth causes of action for denial of procedural due process, denial of substantive due process, and conspiracy. After a continuation of the scheduled trial date occasioned by the late disclosure of the Plaintiff's expert witness, all issues were tried to the court.

At the close of the Plaintiff's evidence, the Defendants moved for judgment as a matter of law. See Federal Rule of Civil Procedure 50. After hearing arguments, the court dismissed the conspiracy claim because the Plaintiff had not met her burden of proving that the Defendants acted in concert or had a meeting of their minds aimed at depriving Smith of her civil rights. See Ratliff v. City of Milwaukee, 795 F.2d 612, 628 (7th Cir. 1986); Richardson v. City of Indianapolis, 658 F.2d 494, 500 (7th Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1442, 71 L.Ed.2d 657 (1982).

The contours of the Plaintiff's substantive due process claim were never clearly delineated.² After eliciting testimony from a parade of witnesses concerning the jail suicide and Defendant Feiten's insistence that Smith write a report disclosing with whom she had discussed the incident, the Plaintiff argued that the Defendants had deprived her of substantive due process by violating her rights under the Free Speech Clause of the First Amendment. She claimed that they had imposed discipline upon her for exercising her right to speak freely and to remain silent. Smith tried to establish that the Defendants had forced her to change her report and even hinted that they had coerced her to write a false report about the aftermath of the jail suicide; but the evidence only supports a finding that she was asked to complete a question she had evaded. Smith also failed to establish that she was disciplined for her speech or silence.

A public employee has a right (subject to limitations) to speak about matters of public concern. See generally Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Under some circumstances, an employee also has a protected interest in not being compelled to speak. See, e.g., Wooley v. Maynard, 430 U.S. 705, 717, 97 S.Ct. 1428, 1436, 51 L.Ed.2d 752 (1977); H.M. Troster v. Pennsylvania State Department of Corrections, 65 F.3d 1086, 1093-97 (3d Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 708, 133 L.Ed.2d 663 (1996); Langford v. Lane, 921 F.2d 677, 680-81 (6th Cir.1991); Nicholson v. Gant, 816 F.2d 591, 599-600 (11th Cir.1987); Sykes v. McDowell, 786 F.2d 1098, 1104-05 (11th Cir.1986). Even assuming, without finding, that the content of Smith's statements and silence fit within the parameters of the type of expressive conduct protected by the First Amendment, the Defendants met their burden of proving that Smith's interests were outweighed by the Sheriff's interest in maintaining discipline among his deputies and avoiding disruption in the office. See Jefferson v. Ambroz, 90 F.3d 1291, 1296-99 (7th Cir.1996). Smith's exercise of what she believed to be her First Amendment rights impeded her ability to perform her employment mandated duty to complete the report. Under these circumstances, Smith's constitutional rights to speak freely and to remain silent were not abridged. See Caruso v. De Luca, 81 F.3d 666, 670-71 (7th Cir. 1996); Domiano v. Village of River Grove, 904 F.2d 1142, 1145 (7th Cir.1990) ("The First Amendment is not a license for insubordinate speech that impedes an employee's performance of his duties or that interferes with the proper functioning of the workplace"). For these reasons, Smith's substantive due process-First Amendment claim was dismissed at trial. See Federal Rule of Civil Procedure 50.

After the conclusion of testimony, the parties elected to submit written summations. The Plaintiff's summation was filed late and was followed by a series of unauthorized replies and surreplies. With the record now closed, the court must address a number of threshold issues before it can resolve the merits of the remaining procedural due process claim.

II. DEPUTIES' PERSONAL INVOLVEMENT

An individual must have been personally involved in the deprivation of a plaintiff's constitutional rights in order to be held liable for damages under 42 U.S.C. § 1983. See Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996). With the conspiracy and substantive due process claims dismissed, the court can find no evidence establishing that any of the deputies were personally involved in the deprivation of Betty Smith's procedural due process rights. Of the individuals named as Defendants, only Richard Artison personally terminated Smith's employment as a deputy without notice and an opportunity to be heard.

Although Smith charges that Defendant Misko altered her time sheet, the testimony at trial revealed that, after the termination, the County audited Smith's hours and the payroll clerk, Rosalyn Schmitt, noted on Smith's time sheet that Smith's last eight hours of work should be treated as straight time because she had not completed a forty hour week. Smith herself had listed the March 24 hours on her timesheet as overtime. Misko ordered Schmitt to restore the records to their original condition. There is no evidence that Misko ordered Smith's own recordings to be altered. Moreover, Misco's actions occurred after the termination and were not a cause of it. Consequently, because the evidence presented at trial showed that neither Misko nor any of the other three deputies were personally involved in the procedural due process violation, all claims against them in their official and individual capacities are dismissed. See Schultz v. Baumgart, 738 F.2d 231, 238-39 (7th Cir. 1984).

III. COUNTY LIABILITY

A local government entity such as Milwaukee County can only be held liable for money damages if the plaintiff has been injured by an unconstitutional policy or custom or by a decision of a policymaker. See Monell v. New York Department of Social Services, 436 U.S. 658, 690-92, 98 S.Ct. 2018, 2035-37, 56 L.Ed.2d 611 (1978); Baxter, by Baxter v. Vigo County School Corporation, 26 F.3d 728, 734-35 (7th Cir.1994). In this case, Smith did not establish that she was injured by any policy or custom of Milwaukee County. Although the evidence shows that Smith was terminated by then-Sheriff Artison, the County cannot be held liable for his decision, even if it violated Smith's due process rights. Under Wisconsin law, a sheriff is not a policymaker for a county; rather, the Sheriff is a state official. See Soderbeck v. Burnett County, Wisconsin, 821 F.2d 446, 449-52 (7th Cir.1987) (county not liable for sheriff's firing of secretary). Therefore, Milwaukee County cannot be held liable under a policymaker theory,³ nor can liability be imposed under a theory of respondeat superior. See McTigue v. City of Chicago 60 F.3d 381, 382 ...