Stalter v. City of Montgomery

• Citation: 796 F. Supp. 489
• Decision Date: 22 June 1992
• Docket Number: Civ. A. No. 90V-1088-N.
• Parties: Matthew STALTER, Individually, Plaintiff, v. CITY OF MONTGOMERY, Etc., et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

796 F. Supp. 489

Matthew STALTER, Individually, Plaintiff, v. CITY OF MONTGOMERY, Etc., et al., Defendants.

Civ. A. No. 90V-1088-N.

United States District Court, M.D. Alabama, N.D.

June 22, 1992.

Julian McPhillips, Kenneth Shinbaum McPhillips, Hawthorne & Shinbaum, and Gary E. Atchison, Montgomery, Ala., for plaintiff.

N. Gunter Guy, Jr., Brannan & Guy, Montgomery, Ala., for defendants.

OPINION

VARNER, Senior District Judge.

This cause is now before the Court on Defendants' Motion for Summary Judgment filed January 17, 1992,¹ and on the materials submitted in support of and in opposition thereto. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343 and 2201.

Plaintiff is a former fire fighter with the Fire Department of the City of Montgomery, Alabama. Plaintiff claims that he was assigned 25 consecutive "night watches" as discipline in retaliation for filing a grievance over a superior's order that Plaintiff shave or cover his chest hair and was given a 29-day suspension for appealing that punishment. The reason given for the punishment was Plaintiff's insubordination and other alleged rule infractions committed by Plaintiff. Plaintiff brings this action under 42 U.S.C. § 1983 alleging violations of his right to petition (Count Five) under the First Amendment. Plaintiff also seeks a declaratory judgment that the portion of the Montgomery Fire Department's grooming policy relating to chest hair is in violation of a 1976 Consent Decree and is, therefore, unenforceable (Count Four).²

Facts. The following facts are undenied. Following a roll-call inspection on April 6, 1990, Defendant Lieutenant M.E. Pitts informed Plaintiff that Plaintiff needed to either put on a t-shirt or shave the chest hair showing from under his uniform shirt. Plaintiff replied that the City of Montgomery did not issue t-shirts to fire fighters and that chest hair was not facial hair. Lt. Pitts notified Defendant District Chief A.L. Wright of the situation, and District Chief Wright came down to the station and counseled with Plaintiff in Lt. Pitts' presence. District Chief Wright told Plaintiff either to put on a t-shirt, shave his chest hair, or resign. Plaintiff shaved his chest hair. Immediately thereafter, District Chief Wright informed Plaintiff that the Department could not tolerate the type of attitude displayed by Plaintiff, and that any more problems would result in time off the payroll.

On April 15, 1990, Plaintiff delivered a memorandum addressed to Lt. Pitts which stated: "I would like to start grievance procedures concerning the order given to me by Chief A.L. Wright, to shave the hair on my chest." Ex. 3 to Plaintiff's Brief in Opposition filed April 16, 1992. Shortly thereafter, Plaintiff received a disciplinary memorandum from Lt. Pitts, also dated April 15, 1990, in which Plaintiff was given 25 consecutive night watches for various violations of the Montgomery Fire Department rules and regulations, including that "members shall be neat and clean in person, clothing and habits, and be cleanly shaved," shall "not neglect to perform any portion of their duties required by rule, regulation, order, common practice, or necessities of the situation involved," and shall "be respectful and obedient to their superior officer." Ex. 4 to Plaintiff's Brief in Opposition, supra. This disciplinary memo gave Plaintiff the option of either accepting or rejecting the assigned company punishment. Plaintiff checked off and signed the latter option which stated: "I am not willing to accept company punishment and hereby request a hearing concerning the above mentioned rule(s) violation(s)." Id..

Plaintiff subsequently received hearings before various superiors in the Montgomery Fire Department on the company punishment of 25 night watches given him for alleged rule violations, with similar hearings including a hearing before the Mayor of Montgomery on his grievance over the requirement that he shave or cover his chest hair. Plaintiff ultimately received a 29-day suspension without pay.

Defendants now ask this Court to grant summary judgment on the grounds that the grievances for which Plaintiff claims to have been retaliated against did not relate to matters of public concern and, therefore, are not protected by the First Amendment. As for Plaintiff's request for a declaratory judgment, Defendants contend that the 1976 Consent Decree is irrelevant and inapplicable to the Montgomery Fire Department's current grooming policy regarding chest hair. This Court is of the opinion that Defendants' Motion for Summary Judgment is due to be granted.

Summary Judgment Standard. In considering a motion for summary judgment, this Court must refrain from deciding material factual issues but, rather, must decide whether such factual issues exist and, if not, whether the party moving for summary judgment is entitled to judgment as a matter of law. See Dominick v. Dixie National Life Ins. Co., 809 F.2d 1559 (11th Cir.1987). Furthermore, all inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmovant. See Tippens v. Celotex Corp., 805 F.2d 949 (11th Cir.1986). "Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); accord Kramer v. Unitas, 831 F.2d 994, 997 (11th Cir. 1987). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact" emphasis in original. Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict for that party ... If the evidence is merely colorable ... or is not significantly probative, summary judgment may be granted." Id.; accord Brown v. City of Clewiston, 848 F.2d 1534, 1537 (11th Cir.1988).

First Amendment Right to Petition. Plaintiff claims that Defendants retaliated against him for the exercise of his right to petition for redress of grievances. Plaintiff bases this claim on two separate instances of allegedly protected First Amendment activity: (1) Plaintiff's written grievance dated April 15, 1990, and (2) his written election not to accept and to request a hearing on the punishment of 25 night watches given in the April 15, 1990 disciplinary memo from Lt. Pitts. Order on Pretrial Hearing filed February 7, 1992, p. 6 ¶ 17, p. 9 ¶ 32.

While it is well established that a state may not discharge or discipline a public employee in retaliation for speech protected by the First Amendment, it is also clear that a public employee's right to freedom of speech is not absolute. See Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989). To prevail in a claim for unlawful retaliation under the First Amendment, the public employee must show that the speech in question was on "a matter of public concern," that the employee's First Amendment rights outweigh the employer's interest in the efficiency of its public services, and that the protected speech was a substantial motivating factor in the adverse employment decision. Id. citing Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), and Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983). Once the Plaintiff makes this showing, the public employer then has the burden of proving that it would have reached the same employment decision in the absence of the employee's protected speech. Bryson v. City of Waycross, 888 F.2d at 1566 citing Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 286, 97 S.Ct. 568, 575, 50 L.Ed.2d 471 (1977).

Whether the subject of Plaintiff's speech was a matter of public concern is a threshold question of law. Eiland v. City of Montgomery, 797 F.2d 953, 957 n. 5 (11th Cir.1986). The Court must look to the "content, form, and context of a given statement, as revealed by the whole record," in making this determination. Id. at 956-57 n. 4 (quoting Connick v. Myers, 461 U.S. at 147-48, 103 S.Ct. at 1690). The interests protected by the First Amendment in the public employment context are "the interests of the employee, as a citizen, in commenting upon matters of public concern." Connick v. Myers, 461 U.S. at 142, 103 S.Ct. at 1687 (quoting Pickering v. Board of Education, 391 U.S. at 568, 88 S.Ct. at 1734). Thus, absent a showing that the subject of Stalter's grievances related to matters of public concern, this Court need go no further with Plaintiff's First Amendment retaliation claim.

Plaintiff claims that the April 15, 1990, written grievance he sent to Lt. Pitts regarding the order he received to shave his chest hair or wear a t-shirt was on a matter of public concern and, therefore, was protected under the First Amendment. In support of his contention that the application of the Fire Department's chest hair policy to him was a matter of public concern, Plaintiff argues that this first grievance was, in essence, requesting an interpretation of a 1976 Consent Decree which had set forth certain grooming guidelines for the Montgomery Fire Department. Thus, Plaintiff maintains that questioning the requirement that fire fighters shave or cover their chest hair affected the entire department and, therefore, was a matter of concern to the whole community. Plaintiff further points out that the instant suit was originally filed on behalf of all members of the Montgomery Fire Fighters Association, seeking a declaratory judgment on the application of that Consent Decree.³

However, there is no evidence before the Court to...