Van Ooteghem v. Gray

• Decision Date: 22 October 1980
• Docket Number: No. 78-3711,78-3711
• Parties: Gary John VAN OOTEGHEM, Plaintiff-Appellee Cross-Appellant, v. Hartsell GRAY, Individually and in his capacity as Treasurer of Harris County, Texas, (Henry E. Kriegel, successor in office), Defendant-Appellant Cross- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 488

628 F.2d 488

Gary John VAN OOTEGHEM, Plaintiff-Appellee Cross-Appellant, v. Hartsell GRAY, Individually and in his capacity as Treasurer of Harris County, Texas, (Henry E. Kriegel successor in office) Defendant-Appellant Cross- Appellee.

No. 78-3711.

United States Court of Appeals Fifth Circuit.

Oct. 22, 1980.

Joe Resweber, Billy E. Lee, Houston, Tex., for defendant-appellant cross-appellee.

J. Patrick Wiseman, Hormachea & Sauer, Larry W. Sauer, Jr., Houston, Tex., for plaintiff-appellee cross-appellant.

Appeals from the United States District Court for the Southern District of Texas.

Before GOLDBERG, GARZA and REAVLEY, Circuit Judges.

GOLDBERG, Circuit Judge:

We are asked today to review the last scene of a real-life drama in which the lead actor, defendant Hartsell Gray, was featured in several roles. The district court concluded the performance by determining that Gray, while acting in his official role as Treasurer of Harris County, Texas, had discharged his co-star, plaintiff John Van Ooteghem, in contravention of the latter's First Amendment right to free speech. As the final curtain fell, the district court ordered the defendant to reinstate Van Ooteghem to his role as Assistant County Treasurer and awarded back pay which, in light of Gray's having acted in his official capacity in wrongfully dismissing Van Ooteghem, was to be paid from the Departmental Budget of the County Treasurer's Office. Appellant now challenges the finding of liability and the determination that the back pay award should be satisfied by Harris County. Finding that the district court was correct on both points, we perform the encore by affirming its decision. We do, however, remand the case on the issue of attorney's fees.

I. The Factual Background ¹

In January 1975, plaintiff John Van Ooteghem was hired by defendant Hartsell Gray, the Treasurer of Harris County, Texas, to serve first as Cashier Assistant County Treasurer, and later as Assistant County Treasurer. Van Ooteghem performed his job in a professional manner: he was recognized to be both hard-working and quite brilliant. Accordingly, Treasurer Gray treated the plaintiff with the respect due to a professional: Van Ooteghem was allowed to set his own hours and to take time off as needed.

On July 28, 1975, Van Ooteghem informed Gray that he was a homosexual and, shortly thereafter, related his plans to address the Commissioners Court on the subject of the civil rights of homosexuals. On July 31, 1975, Gray forwarded a letter to Van Ooteghem which purported to restrict the latter to his office between the hours of eight a. m. and twelve noon and from one p. m. until five p. m., Monday through Friday. These hours corresponded to the times during which citizens were allowed to address the Commissioners Court. Van Ooteghem was instructed to acknowledge his agreement with the new schedule by signing the letter; upon his refusal to do so, Van Ooteghem was dismissed.

In response, Van Ooteghem filed suit, pursuant to 42 U.S.C. § 1983, ² alleging that he was dismissed as Assistant County Treasurer in violation of his constitutional right to free speech.

II. The Constitutional Violation

While it is true that Van Ooteghem, a nontenured employee, could have been fired for no reason whatsoever, it is also true that no public employee can be dismissed from his job for a constitutionally infirm reason. See Mt. Healthy City School District v. Doyle, 429 U.S. 274, 283-4, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977); Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). No governmental benefit can be denied for a reason that infringes constitutionally protected interests, including freedom of speech. See e. g., Perry v. Sindermann, supra ; Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968).

In assessing whether Van Ooteghem's dismissal constituted a violation of his First Amendment right to free speech, the district court was faced with a tripart inquiry:

1. Was Van Ooteghem's speech to the Commissioners Court a "substantial" or "motivating" factor in his being dismissed;

2. Was this speech constitutionally protected; and

3. Would Van Ooteghem have been fired, in the absence of his decision to address the Commissioners Court?

See Mt. Healthy City School District v. Doyle, supra, 429 U.S. at 287, 97 S.Ct. at 576; Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979). The court below decided each of these three questions in favor of Van Ooteghem and we have been asked by appellant to review all three findings. But our review is no easy task as substantial confusion exists as to the proper scope of appellate review and the standards to be employed in addressing each of these three questions.

Many appellate decisions-especially in Title VII discrimination suits-have characterized the issue of an employer's motivation in dismissing an employee as one of ultimate fact, subject to plenary review. See, e. g., Jefferies v. Harris County Community Action Association, 615 F.2d 1025, 1031 n.5 (5th Cir. 1980); Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1382-3 (5th Cir. 1978); Causey v. Ford Motor Company, 516 F.2d 416, 420-1 (5th Cir. 1975). On the other hand, recent Supreme Court cases in the area have treated the question of the employer's motivation as one of "subsidiary" fact, subject only to "clearly erroneous" review. See, e. g., Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 1291 n.6, 63 L.Ed.2d 574 (1980); Givhan v. Western Line Consolidated School District, supra, 99 S.Ct. at 697. In the majority of cases, the appellate court never articulates the standard it is employing in reviewing this question. Predictably, in the case at bar, appellant urges that we independently review the district court's finding that Van Ooteghem was fired for exercising his right to free speech, while appellees maintain that this conclusion must stand as long as we cannot find it to be "clearly erroneous."

Both parties in this action admit that Van Ooteghem's insistence on addressing the Commissioners Court (which could only occur during the normal working day) precipitated the dismissal. However, the two sides characterize this one issue quite differently. Appellant argues that the event represented clear insubordination by an employee in unilaterally choosing to violate assigned working hours. Appellee responds that the institution of assigned hours and the subsequent dismissal for their breach were aimed solely at stymieing Van Ooteghem's free speech. The district court agreed with Van Ooteghem, finding that his speech to the Commissioners Court was a substantial factor in the decision to dismiss.

In making this finding, the district court was faced with a clear factual choice: was Van Ooteghem fired for his mere absence from work regardless of the purpose of this absence, or, alternatively, was the establishment of set working hours and the dismissal for their violation an attempt to prevent and punish his decision to speak to a political body on a controversial, political issue? Pursuant to Federal Rule of Civil Procedure 52, ³ the district court's finding on this factual issue cannot be set aside absent clear error. It is improper for an appellate court to subvert the clear mandate of Rule 52 by applying the phrase "ultimate fact" to important factual questions or to the last factual determination in a given case, in order to justify "plenary review" of an issue. Rather, use of the phrase "ultimate fact" should be limited to those determinations which, although appearing at first glance to involve only issues of fact, actually require the application of a lurking legal standard to the pre-determined facts of a case. In such cases, the appellate court's expertise in interpreting and applying the law justifies reliance on the term "ultimate fact" to distinguish the question from those which cannot be reversed, pursuant to Rule 52, unless "clearly erroneous."

We cannot say that the trial judge's finding that Van Ooteghem's speech to the Commissioners Court was a substantial or motivating factor in his dismissal was clearly erroneous. Immediately after Van Ooteghem's announcement of his plan to address the Commissioners Court, Gray imposed a time schedule restricting Van Ooteghem to his office between set hours. Although the time schedule did not appear to be overly burdensome on its face, the new regulation was completely inconsistent with the professionalism that had previously typified Van Ooteghem's relationship with Gray and the Treasurer's Office. Van Ooteghem's compliance with the schedule would have necessitated the abandonment of his plan to address the Commissioners Court. The stipulated facts provide no basis from which any justification for the new schedule can be reasonably inferred, other than the desire to thwart Van Ooteghem's lobbying on behalf of homosexuals.

Having concluded that Van Ooteghem's speech was a substantial factor in his dismissal, we turn to the second part of our inquiry-whether the speech was constitutionally protected. The applicable test originates from the Supreme Court's opinion in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968):

The problem in any case is to arrive at 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 services it performs through its employees.

Employing this test, the district court concluded that, on balance, Van Ooteghem's address was constitutionally protected.

We regard the ultimate determination of whether an individual's speech was "constitutionally protected" to be a question of law. However, in balancing the interests discussed in Pickering in order to assess the protected...