Walker v. Schwalbe

• Decision Date: 15 May 1997
• Docket Number: No. 96-8338,96-8338
• Citation: 112 F.3d 1127
• Parties: 12 IER Cases 1507, 10 Fla. L. Weekly Fed. C 897 Michael WALKER, Plaintiff-Appellee, v. Robert SCHWALBE, individually, and in his official capacity; Darrell Dean, individually and in his former official capacity; Roy Parrish, individually and in his official capacity; David Evans, in his official capacity only, Defendants-Appellants
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1127

112 F.3d 1127

12 IER Cases 1507, 10 Fla. L. Weekly Fed. C 897

Michael WALKER, Plaintiff-Appellee, v. Robert SCHWALBE, individually, and in his official capacity Darrell Dean, individually and in his former official capacity; Roy Parrish, individually and in his official capacity; David Evans, in his official capacity only Defendants-Appellants.

No. 96-8338.

United States Court of Appeals Eleventh Circuit

May 15, 1997.

Carol Atha Cosgrove, Office of State Attorney General, Atlanta, GA, Ronald R. Womack, LaFayette, GA, for Schwalbe/Dean/Evans.

John W. Davis, Jr., Rossville, GA, Amy S. Gellins, Law Offices of Amy Gellins, Athens, GA, for Walker.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH, Circuit Judge, and RONEY and FARRIS ^*, Senior Circuit Judges.

FARRIS, Senior Circuit Judge:

Defendants interlocutorily appeal the district court's holding that they are not entitled to qualified immunity. We have jurisdiction pursuant to 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (denial of qualified immunity is immediately appealable under the collateral order doctrine). We affirm.

BACKGROUND

Vista Community Programs provides social services for Walker, Chattooga, Catoosa, and Dade counties in northern Georgia. Vista is funded by the Walker County Board of Health through a contract with the Georgia Department of Human Resources. Michael Walker was hired by Vista in 1982. In 1986 he was promoted to supervise all Vista services for the developmentally disabled. He was responsible for all budgetary issues pertaining to mental retardation programs. Throughout his career he received excellent performance reviews.

Darrell Dean was in charge of overseeing Vista as the Department of Human Resources District Health Director. In 1988 he hired Robert Wesley as Vista's Area Director During Wesley and Nickell's tenure, Vista budget information supplied to employees became less accurate. Walker complained to Wesley and Nickell that some budget practices violated Department regulations and prevented Walker from effectively managing the budgets for which he was responsible. After Walker and others voiced these concerns, Wesley and Nickell began to withhold budget information from Vista employees.

and Tom Nickell as Vista's business manager. Wesley was Walker's superior at Vista.

Walker also expressed concern to Wesley that (1) the garage Vista used to service its vehicles (chosen by Wesley without receiving bids) charged exorbitant prices and was not properly fixing the vehicles, (2) Wesley had directed all employees to have their Vista vehicles cleaned at a business run by Vista employees and their relatives, and (3) employee committees, which met during work hours, conducted fund-raising in the community to raise money allegedly for Vista but instead used the money for weekend social activities.

In July 1991 Georgia's governor directed all state agencies to submit budget reduction proposals. Walker learned that Wesley and Nickell had proposed closing Vista's Chattooga County Service Center. Walker urged them to reconsider because he believed the proposed closure was inconsistent with the Department of Human Resources' budget proposal request. The defendants claim that Walker also learned that there was a proposal to cut his position.

When Walker's efforts with Wesley and Nickell failed he sought assistance from state legislators. In August 1991 high-level Vista employees Ernest Taylor, Nora Swafford, and Walker met with several state representatives and senators. They discussed Walker's budgetary concerns and a three-page list of "possible improprieties" at Vista. When Walker had knowledge of a particular impropriety he shared that information. He was primarily concerned with budget expenditures, the car wash service, and the car repair service. Walker stated in his deposition that he never feared that Wesley's budget proposal would cost him his job because he believed he was protected by the state merit system policies. The defendants claim that Taylor had prepared the list of improprieties and was the person primarily concerned about the improprieties, that Walker did not know about the list and was only involved to protect his job, and that the legislators already knew of these problems.

As a result of the meeting with state legislators, the Department of Human Resources began an investigation of impropriety at Vista. David Nave conducted the investigation, assisted by Robert Schwalbe. In October, Dean (the Department of Human Resources employee who oversaw Vista) informed Vista staff that Wesley and Nickell were being dismissed, that Dean would be assuming the responsibilities of Area Director, and that Schwalbe would be assuming Nickell's former position. Dean delegated responsibility to Schwalbe for most daily administrative activities at Vista.

In November 1991 Nave completed the investigative report. It concluded that Vista had been mismanaged, that there had been misconduct and violations of Georgia law, and that Vista administration had shown little regard for Department policy. The report included investigations of several alleged instances of nepotism and concluded that at least one was a clear violation. The investigation and report generated a great deal of media attention in northwest Georgia. Dean ultimately resigned his position at the Department of Human Resources due to the investigation and media attention.

Some Walker County Board of Health members were upset that the legislators, not the Board, had been contacted about the improprieties. The Board was also embarrassed about the negative publicity. It considered refusing to renew the county's status as lead funding county for Vista. Members of the Board were aware that Walker was among those who had complained to the legislators.

In 1990 and 1991 Walker's wife, Crystal Walker, served as a Vista teacher consultant. Her immediate supervisor was Amanda Boyd, Director of the Walker County Service Center. Walker was Boyd's superior in the Vista mental retardation program. Prior to Walker and Boyd concluded that Mrs. Walker could be hired, and agreed that Boyd would be wholly responsible for all supervision, terms, and conditions of her employment. Walker, Wesley, and Dean each signed Mrs. Walker's contract.

hiring Mrs. Walker, Walker and Boyd reviewed all available written policies regarding employment of relatives to ensure that it was permitted. Walker suggested that Boyd contact the personnel office regarding the issue. The Georgia Department of Human Resources Administrative Policy and Procedures Manual stated that employment of relatives, which includes spouses, is not precluded, but that relatives shall not be employed in situations in which a direct superior-subordinate relationship would exist.

Defendants have produced documents, which they allege were the applicable policies, that prohibit the employment of any relatives in an employee's entire chain of command.

After the release of the investigative report, Schwalbe met with Walker and stated that a member of the Walker County Board of Health had asked Schwalbe to review the Vista contracts with Mrs. Walker. The next day Schwalbe gave Walker a notice of proposed demotion and disciplinary salary reduction. The notice charged that Walker had violated Vista conflict of interest policies by hiring his wife. It also stated that Walker was "negligent and inefficient" for directing a subordinate to obtain approval from Walker's superior for the contract with his wife.

Walker pursued a written appeal to Dean on December 16, 1991. Dean upheld the proposed demotion and salary reduction, which amounted to almost $3,200 a year. Schwalbe and Dean each knew that Walker had been one of the employees who had spoken with the legislators. On December 19 Dean informed Walker he would be transferred to another Vista center forty miles from his home. Walker later applied for a promotion to his previous position but was denied without an interview. He subsequently abandoned his career at Vista. Defendants presented evidence that other Vista employees were disciplined for violating anti-nepotism policies.

After the meeting with the legislators, Taylor (the Vista employee who had prepared the list of improprieties) was removed from the management team at Vista and placed under the authority of one of his subordinates. After the investigation, Swafford (the third Vista employee who met with the legislators) was removed from the management team at Vista and transferred from the office where she had worked for twelve years. No justifications were given for these actions.

Walker filed suit under 42 U.S.C. § 1983 against Schwalbe and Dean for violating his right to First Amendment speech by demoting him in retaliation for his conversation with the legislators. Defendants moved for summary judgment. The district court held that Walker had established a genuine issue of material fact that he was demoted in retaliation for his speech and that the defendants were therefore not entitled to a ruling of qualified immunity prior to trial. The defendants appeal interlocutorily.

DISCUSSION

QUALIFIED IMMUNITY

A. Standard of Review

A district court's ruling that an official's conduct violated clearly established law so that the official is not entitled to a ruling of qualified immunity prior to trial is reviewed de novo. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985); Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir.), cert. denied sub nom Hill v. Clifton, --- U.S. ----, 117 S.Ct. 51, 136 L.Ed.2d 15 (1996).

B. Method of Review

A defendant may interlocutorily appeal a district court's holding that he is not entitled to qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985). Where this occurs there are effectively two...