Solomon v. Royal Oak Tp.

• Decision Date: 15 March 1988
• Docket Number: No. 86-1955,86-1955
• Citation: 842 F.2d 862
• Parties: Odis SOLOMON, Plaintiff-Appellee, v. ROYAL OAK TOWNSHIP, a Municipal Corporation, and Tommy Staton, Defendants- Appellants, and Marie Turner, et al., Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 862

842 F.2d 862

Odis SOLOMON, Plaintiff-Appellee, v. ROYAL OAK TOWNSHIP, a Municipal Corporation, and Tommy Staton, Defendants- Appellants and Marie Turner, et al., Defendants.

No. 86-1955.

United States Court of Appeals Sixth Circuit.

Argued Nov. 2, 1987.

Decided March 15, 1988.

Kenneth L. Lewis (argued), Detroit, Mich., for defendants-appellants.

Glen N. Lenhoff (argued), Flint, Mich., Mark J. Kriger, Detroit, Mich., for plaintiff-appellee.

Before MERRITT, KRUPANSKY and RYAN, Circuit Judges.

MERRITT, Circuit Judge.

In this civil rights appeal under 42 U.S.C. Sec. 1983 of the District Court's order, 656 F.Supp. 1254, to reinstate Odis Solomon, a former member of the Royal Oak Township Police Department, the central issue is whether appellants violated Solomon's First Amendment right to freedom of speech when they discharged him for informing a newspaper reporter about departmental corruption. In addition, Tommy Staton, a member of the Township Board of Trustees, appeals the District Court's $10,000 damages award for the pendent state law claim of defamation. We affirm the District Court's determination that appellants discharged Solomon in violation of his First Amendment rights. However, we reverse the damages award against Staton for defamation and remand for further findings respecting one aspect of the defamation claim.

I. Facts

The underlying facts grow out of a history of cronyism and alleged corruption in the public safety department of a small suburb of Detroit. Odis Solomon joined the Royal Oak Township Police Department in 1966 as a patrolman. He received several promotions during his employment and served as Public Safety Director (also known as Chief of Police) from 1974 through 1978. While Director, Solomon investigated acts of corruption by employees of the department and members of the Township Board of Trustees, resulting in a conviction of a Township official.

In 1981, Solomon was again named public Safety Director, and he continued to investigate allegations of corrupt behavior by Township employees. However, an auto accident in June 1984 forced him to stop work until November 1984. Sometime in late spring, Township Board member Tommy Staton and his wife told William Carmody, then Township Superintendent, that Solomon had raped Rhonda Scott, a police reserve officer and Staton's sister-in-law. Tommy Staton also told Carmody that Solomon sexually harassed three other department employees. Based on the Statons' comments, Carmody asked the Michigan State Police to investigate the charges.

According to a Michigan State Police Crime Report, an officer telephoned Rhonda Scott on June 27, 1984, and in response to his questions concerning the rape allegations Scott stated, "I don't know what you are talking about." The officer asked Scott if she wanted to file criminal charges against Solomon, and she said she did not. Apparently, no other attempt by anyone was made to verify the Statons' rape allegations against Solomon. Not until April 9, 1985, almost a year later, did Scott prepare a written statement for the Royal Oak Police Department claiming that Solomon had raped her. In her report, Scott said she thought she had to have sex with Solomon in order to be hired as a full-time police officer. According to Solomon's testimony, he and Scott twice had consensual sex in late 1983. (Trial transcript Vol. 3, pp. 19, 121.)

One evening Solomon was watching the six o'clock news on television when he saw a TV reporter interview Staton. The reporter asked Staton whether there was an investigation of charges that Solomon raped and sexually harassed employees in the department. A tape of the TV transcript was not introduced at trial and the District Court was presented only with testimony from Staton and Solomon about what Staton actually said to the reporter. The undisputed trial testimony from Staton and Solomon shows that Staton told the reporter that there was an investigation of Solomon for sex harassment and rape charges, and that the person he allegedly raped was Staton's sister-in-law. (Tr. trans. Vol. 2, pp. 147, 179; Vol. 3, pp. 36, 138.)

The trial transcript is unclear on exactly when the reporter interviewed Staton. The District Court appeared to assume the interview took place after the September 5, 1984, publication of a newspaper article reporting that the state police investigation was over and the state attorney general would not prosecute Solomon on any charges. However, Staton expressly testified that the TV interview occurred prior to the publication of the article, and Solomon said it took place June 27 or 28, 1984. (Tr. trans. Vol. 2, p. 146; Vol. 3, p. 36.)

At a Board meeting on July 19, 1984, while Solomon was still on sick leave, the Board passed a resolution making John Gatewood Acting Public Safety Director, and Cecil Dawson Lieutenant and second-in-command of the Department. Solomon returned to work November 12, 1984. Two days later a special Board meeting was called and the members approved a Staton motion for Gatewood to permanently replace Solomon as Public Safety Director. Solomon was again demoted on January 17, 1985, when the Board reorganized the department's employee's structure and changed his rank from Lieutenant to Patrolman.

In early 1985, Solomon learned that Dawson was using police department equipment and supplies for his own security business, J & D Investigations. Solomon also learned that Lindsey Hamm, arrested for disorderly public conduct and carrying a concealed weapon, was not prosecuted for the second charge and that two weeks later Dawson hired him to work for J & D Investigations.

Solomon testified that several times he tried to discuss with Gatewood what he had learned about Dawson and Hamm. (Tr. trans. Vol. 3, pp. 44-45, 152-157.) When no response came from Gatewood, Solomon telephoned the Michigan State Police Department and described the Dawson/Hamm relationship. During the state police investigation, it was discovered that Dawson had failed to submit fingerprints of several J & D Investigations employees, including Hamm. The state police arranged a hearing on this matter, but Dawson turned in his security guard license, ending the investigation. (Tr. trans. Vol. 2, p. 49.)

While gathering information for a newspaper article, a reporter telephoned Solomon and asked him questions about the Dawson/Hamm affair. Solomon made three statements to the reporter which were quoted in a March 15, 1985, Royal Oak Tribune article. The article quoted Solomon as stating that Dawson failed to press proper charges against Hamm and hired him "for his own personal gain." Solomon was also quoted as saying, "It's an obstruction of justice" and "It was totally ridiculous."

On March 18, Gatewood warned Solomon that he would be fired for any further statements to the press. Although Solomon obeyed Gatewood's order, soon after their meeting, Radio Station WWJ broadcast Solomon's statements printed earlier in the newspaper. Gatewood recommended on March 25 that the Board fire Solomon for speaking to the press. Solomon was discharged on April 26, 1985, after he had filed this civil rights suit against the Township. Solomon received his regular salary until June 3, when a hearing took place. The four-person tribunal upheld Solomon's discharge on August 1, 1985.

Solomon's complaint claimed violations of his First Amendment right to freedom of speech, and his Fourteenth Amendment right to a fair hearing prior to his demotions and discharge under the due process clause, and his right to access to courts under the equal protection clause. Solomon also claimed that Tommy Staton defamed him by telling a TV reporter that Solomon was under investigation for sexual harassment and rape charges. After a bench trial, the District Court ordered appellants to reinstate Solomon to the position of lieutenant, with full back pay and restoration of benefits, and awarded $10,000 damages against Staton for defamation. Appellants appeal the District Court's conclusions on all claims. However, because of our decision on the First Amendment issue, we need not reach the Fourteenth Amendment claims.

II. First Amendment Liability

The District Court's findings of fact and conclusions of law follow the requisite analysis for First Amendment claims under Sec. 1983. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977) (plaintiff has the initial burden to show his conduct was constitutionally protected and was a substantial or motivating factor for the discharge; then the burden shifts to defendant to show by a preponderance of the evidence that it would have reached the same decision even if plaintiff had not engaged in protected conduct). The Court found that Solomon's statements to the reporter regarding the Dawson/Hamm affair were constitutionally protected under Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1982), and that Solomon was discharged solely because of these statements.

We agree with the District Court that Solomon's three statements quoted in a newspaper article and later radio broadcast were protected by the First Amendment. In Connick, the Supreme Court pinpointed the difficult issue presented in cases where a public employee is fired because of his speech:

[I]t has been settled that a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression. Our task, as we defined it in Pickering, is to seek "a balance between the interests of the [employee] as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees."

Id. at 142 (quoting Pickering, 391 U.S. at 568, 88 S.Ct. at 1734) ...