Wallace v. City of Montgomery

Decision Date30 July 1996
Docket NumberCivil Action No. 93-D-964-N.
Citation956 F.Supp. 965
PartiesK.W. WALLACE, Plaintiff, v. CITY OF MONTGOMERY, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

James S. Ward, W. Lewis Garrison, Jr., Birmingham, AL, David G. Flack, Brenda F. Watson, Montgomery, AL, for plaintiff.

Norman Gunter Guy, Jr., Montgomery, AL, for defendants.


DE MENT, District Judge.

Before the court is defendants City of Montgomery, R.W. Grier and J.L. Fulmer's motions for summary judgment filed January 18, 1994 and June 29, 1995. The plaintiff responded in opposition on August 28, 1995, to which the defendants replied on March 20, 1996. After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court finds that the defendants' motions are due to be denied in part and granted in part.


This is an action arising under the United States Constitution; therefore, jurisdiction is proper under 28 U.S.C. § 1331.1 Personal jurisdiction and venue are uncontested.


On a motion for summary judgment, the court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As the Supreme Court has explained the summary judgment standard:

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The trial court's function at this juncture is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant "portions of `the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,'" that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; see also Fed.R.Civ.P. 56(e).

In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a "genuine issue for trial." Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. An action is void of a material issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; see also Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.


The plaintiff, K.W. Wallace, brings this action pursuant to 42 U.S.C. §§ 1983 and 1985 seeking compensatory and punitive damages as a result of the alleged conduct by the defendants which allegedly violated the plaintiff's First Amendment rights. In this regard, the plaintiff alleges that the defendants violated his (1) First Amendment right to exercise free speech; (2) First Amendment right to associate peaceably with others; and (3) First Amendment right to petition the government for a redress of grievances. Specifically, the plaintiff complains that he was initially reassigned and then demoted from his position as district chief with the Montgomery Fire Department to the position of lieutenant, in retaliation for having exercised his First Amendment rights by appearing at a news conference conducted by the president of the Montgomery Fire Fighters Union.

The president of the union made allegations of misconduct against "higher ups" in the fire department and presented the allegations of misconduct to the district attorney of Montgomery County for investigation. The city attorney allegedly identified the "higher ups" as R.W. Grier, chief of the Montgomery Fire Department. The plaintiff further claims that this demotion and the position to which he was reassigned amounted to a constructive discharge and that the grounds asserted by the defendants for the demotion and reassignment were merely pre-textual. Moreover, the plaintiff says that the defendants engaged in a conspiracy to deprive him of his First Amendment rights. See Pl.'s Amend.Compl.

The City of Montgomery Fire Department's jurisdiction coincides with the City's police jurisdiction and is divided into three districts. Each district is under the control of a district chief for each twenty-four hour shift. Up until his demotion, the plaintiff was, at all relevant times, the senior district fire chief. The senior district chief is third in the chain of command after the fire chief and the deputy fire chief. Attach. I, Aff. of K.W. Wallace.

The dispute in this case had its origin in 1992. In 1992, Chief Grier was appointed to the Board of Directors of Comala, a federally insured credit union. The appointment was made for the unexpired term of the incumbent who had died. Comala is the credit union for the Montgomery City-County employees and performs banking services for its members. The members of the Board of Directors are Comala credit union members. The credit union members elect members of the Board of Directors.

In October 1992, the employees of the Montgomery Fire Department received raises in pay of approximately $800 per year. However, Chief Grier received an $8,000 raise. After complaints, Mayor Emory Folmar, Mayor of the City of Montgomery, Chief Grier, Deputy Chief Fulmer and the district fire chiefs, including the plaintiff, held a meeting in January 1993. Mayor Folmar and Chief Grier offered to go before the City-County Personnel Board and obtain small pay raises for the district fire chiefs, captains, lieutenants and fire fighters who had reached the top of their pay scales.

During the same period of time, the district chiefs were taking action to get parity pay raises for fire department personnel. These included a number of the district chiefs who opposed Chief Grier serving on the Board of Directors of Comala and Mayor Folmar maintaining control of Comala. At the annual Comala members' meeting in February 1993, this group nominated Carmine Roberto, the finance officer for the Montgomery Fire Department. Carmine Roberto was subsequently elected to the Board of Directors of the Comala Credit Union replacing Chief Grier. Thereafter, Mayor Folmar called a meeting of the district fire chiefs and the following occurred:

1) Mayor Folmar stated that Chief McFarland had let the word out as to the pay system proposed.2 Exh. B to Attach. I, Aff. of K.W. Wallace at 1 (hereafter "Tr. of Meeting").

2) Mayor Folmar stated that he was going down the hall (to the City-County Personnel Board) to undo the proposed pay raises for the district chiefs. Tr. of Meeting at 2.

3) Mayor Folmar singled out Chief McFarland as the person responsible for (a) the union leader showing up at the Personnel Board hearing as to the pay raises and (b) over 125 fire fighters showing up for the vote on the firemen's representative on the Comala Board. Tr. of Meeting at 2.

4) Mayor Folmar stated that he considered that a swipe at the Fire Chief (Chief Grier) was a swipe at the Mayor. Tr. of Meeting at 4.

5) Mayor Folmar stated that he considered voting against Chief Grier for the Comala Board was an act of disloyalty. Tr. of Meeting at 4-5.

6) Mayor Folmar stated that when you slap the king (Mayor Folmar), you better kill him. Tr. of Meeting at 6.

7) As required by Mayor Folmar, all district chiefs who believed as the plaintiff that District Chief Randy McFarland was being unfairly singled out and were offended by the way that the Mayor addressed Chief McFarland, were required to raise their hand. Tr. of Meeting at 6. The plaintiff raised his hand along with five other District Fire Chiefs. Five fire chiefs did not raise their hand. Aff. of K.W. Wallace.

8) Chief Wallace made a number of other statements pertaining to the disparity of the pay raises for the line fireman and the right to vote for whomever he wanted for the Board of Directors of Comala. Tr. of Meeting at 8-11.

In addition, Mayor Folmar used strong language during the meeting indicating a strong desire to fight anyone who considered voting against Chief Grier for the Comala Board....

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