IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 92-7233

 

WILLIAM H. BODDIE,

Plaintiff-Appellee

Cross-Appellant,

versus

CITY OF COLUMBUS, MISSISSIPPI and

ROBERT W. GALE, Individually and in

his Official Capacity as Fire Chief

of the City of Columbus, Mississippi,

Defendants-Appellants

Cross-Appellees.

 

Appeals from the United States District Court

for the Northern District of Mississippi

 

(April 14, 1993)

Before Reynaldo G. GARZA, HIGGINBOTHAM, and Emilio M. GARZA,

Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

The City of Columbus and its fire chief, appeal from a

judgment entered upon a jury verdict finding them liable for firing

Boddie, a fireman, in violation of his First Amendment right to

associate with union members. The judgment awarded $30,558 against

the City and fire chief, individually, and ordered reinstatement.

Defendants argue that (1) Boddie's failure to prove that his

association with union members was a matter of public concern is

fatal to his claim, (2) the fire chief was entitled to qualified

immunity because of the then uncertainty of whether a showing of
2

public concern was required, (3) there was insufficient evidence to

show that Boddie was fired for associating with union members, and

(4) Boddie should not have been reinstated, because he falsified

his employment application. Boddie also appeals, complaining about

the effective date of his reinstatement. We affirm except we

vacate the ordered date of reinstatement and remand with

instructions that reinstatement be effective from the date of the

jury verdict.

I.

The Columbus, Mississippi Fire Department hired Bill Boddie in

1987, with a twelve-month probationary period. Eight hours before

the end of his probation, Chief Gale fired Boddie. More

specifically, the City Council accepted Gale's recommendation and

fired Boddie.

In this suit, defendants learned that Boddie failed to

disclose in his job application his previous work for Kirby

Mitchell, who has been convicted on drug charges, and LBC

Management Company, which produced adult films.

At trial, Gale contended that his recommendation to the City

Council was based on Boddie's poor attitude. Boddie replied that

this was pretext, that he was fired because he associated with

firemen who were union members. The jury found that firing Boddie

violated his right to freedom of association under the First

Amendment and awarded Boddie $36,558.00, which the judge reduced to
 

1Boddie conceded that the verdict should be reduced to

$30,708, the amount of lost wages he claimed. Defendants claimed

that Boddie should pay for the turnout coat he lost while

employed by the City, and the jury agreed. The coat was valued

at $150. Therefore the court also reduced the award by this

amount to reach $30,558.

3

$30,558.00.1 Upon Boddie's motion, the judge ordered reinstatement

effective April 3, 1992, the date he ruled on post-trial motions.

The district court stayed Boddie's reinstatement and deferred a

ruling on attorneys' fees pending this appeal.

II.

The district court denied motions for directed verdict, JNOV,

and new trial, ruling that Boddie's proof of associational activity

need not include independent proof that it touched a matter of

public concern. We agree. In Connick v. Meyers, 461 U.S. 138

(1983), the Supreme Court protected from employer discipline only

the speech of employees touching on a matter of public concern. It

pulled back from full protection for all speech in the workplace,

sensitive to the reality that to do otherwise would elevate work-aday personnel disputes to issues of a constitutional order. At the

same time, the court explained that employees do not leave their

free speech rights at home.

Defendants argue that this accommodating principle of public

concern is a threshold hurdle to be cleared by all employees

asserting First Amendment violation in the workplace. Its force

aside, the answer to this question is not open for this panel. In

Coughlin v. Lee, 946 F.2d 1152, 1158 (5th Cir. 1991), we stated

that "[a] public employee's claim that he has been discharged for
4

his political affiliation in violation of his right to freely

associate is not subject to the threshold public concern

requirement." See also Kinsey v. Salado Independent School Dist.,

950 F.2d 988, 992-93 (5th Cir. 1992) (en banc); Hatcher v. Board of

Pub. Educ. and Orphanage, 809 F.2d 1546 (11th Cir. 1987); but see

Griffin v. Thomas, 929 F.2d 1210 (7th Cir. 1991); Boals v. Gray,

775 F.2d 686 (6th Cir. 1985). Coughlin answers the City's

contention regarding public concern.

III.

Coughlin, decided four years after Boddie was fired, does not

answer Chief Gale's contention to this court. Chief Gale argues

that he has qualified immunity. Public officials are shielded from

liability for damages under § 1983 so long as their conduct has not

violated "clearly established statutory or constitutional rights of

which a reasonable person would have known." Anderson v.

Creighton, 483 U.S. 635, 639 (1987); Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). "'[T]he question is not whether the law was

settled, viewed abstractly, but whether, measured by an objective

standard, a reasonable [official] would know that his action was

illegal.'" Click v. Copeland, 970 F.2d 106, 109 (5th Cir. 1992)

(quoting Matherne v. Wilson, 851 F.2d 752, 756 (5th Cir. 1988)).

Gale contends that in light of the split among the circuits on

the question of whether public concern is an element of a freedom

of association claim and the fact that we did not decide Coughlin

until after Boddie's dismissal, he reasonably could not have been
5

expected to know that firing Boddie violated clearly established

law.

We turn to the law at the time Gale made his recommendation to

the City Council in December 1987. Our inquiry ends, if we find

from examining the decisions of the Supreme Court and our own

decisions that the law was clearly established in this circuit.

See Click, 970 F.2d at 110-11 (holding "[t]he law was established

clearly enough in this circuit" despite a conflict with two other

circuits) (emphasis added); see also Garcia by Garcia v. Miera, 817

F.2d 650, 658 (10th Cir. 1987) ("[t]o give preclusive effect to a

conflict among the circuits would effectively bind this circuit by

the decisions of others").

There is one preliminary issue. Boddie argues that Chief Gale

is not entitled to immunity, because Gale did not in fact believe

that he could legally fire Boddie based on his union association.

Rather, Gale has always maintained that he fired Boddie because of

his poor attitude. However, subjective good faith reliance on the

allegedly illegal reason for discharge is not required. See

Pfannstiel v. City of Marion, 918 F.2d 1178, 1182 (5th Cir. 1990).

We accept, as we must, the jury finding that Gale recommended that

Boddie be fired because he associated with union members.

We are persuaded that in 1987 it was clear that the First

Amendment protects an employee's right to associate with a union.

Smith v. Arkansas State Highway Employees, 441 U.S. 463, 464-65

(1979); Vicksburg Firefighters v. City of Vicksburg, 761 F.2d 1036,

1039 (5th Cir. 1985); Professional Assoc'n of College Educators v.
6

El Paso County Community College Dist., 730 F.2d 258, 262 (5th Cir.

1984) (PACE); Tanner v. Hazlehurst Mun. Separate School Dist., 427

So. 2d 977, 978 (Miss. 1983); see also Shelton v. Tucker, 364 U.S.

479 (1960). It was also well-settled that a public employee's

First Amendment rights yield at times to the government interest

"in promoting the efficiency of the public services it performs

through its employees." Pickering v. Board of Educ., 391 U.S. 563,

568 (1968); see also Rankin v. McPherson, 107 S. Ct 2891, 2896

(1987); Connick, 461 U.S. at 150. Recognizing these competing

interests, Connick held "that when a public employee speaks not as

a citizen upon matters of public concern, but instead as an

employee upon matters only of personal interest, absent the most

unusual circumstances, a federal court is not the appropriate forum

in which to review the wisdom of a personnel decision taken by a

public agency allegedly in reaction to the employee's behavior."

Id. at 147.

Our view on the role of public concern in an association case

was apparent before Coughlin. Connick and Pickering were speech

cases. Connick fired an assistant district attorney for

circulating a questionnaire concerning the office's transfer

policy. 461 U.S. at 140-41. In Pickering, a teacher was fired for

sending a letter to a newspaper critical of the school's handling

of proposals to raise revenue. 391 U.S. at 564. Under Pickering

and Connick, we balance the government's interest in an efficient

workplace against the employee's First Amendment interest
7

considering a number of factors, if the speech was a public concern

and not personal.

Gale's assertion that the law was not clearly established

because the role of public concern was uncertain in a freedom of

association case is belied by our post-Connick freedom of

association decisions. In PACE, individual faculty members at El

Paso Community College and the Professional Association of College

Educators, PACE, alleged that the College tried to destroy PACE by

threatening and intimidating their members and officers and by

denying them privileges enjoyed by other faculty members. 730 F.2d

at 261. We remanded for the district court to consider PACE's

freedom of association claim stating:

The first amendment protects the right of all persons to

associate together in groups to further their lawful

interests. This right of association encompasses the right of

public employees to join unions and the right of their unions

to engage in advocacy and to petition government in their

behalf. Thus, the first amendment is violated by state action

whose purpose is either to intimidate public employees from

joining a union or from taking an active part in its affairs

or to retaliate against those who do. Such "protected First

Amendment rights flow to unions as well as to their members

and organizers."

Id. at 262 (quoting Allee v. Medrano, 416 U.S. 802, 819 n.13

(1974)) (footnotes omitted). Our opinion did not mention Connick

or suggest any requirement that PACE offer some additional proof

that it was involved in a public concern. 

McBee v. Jim Hogg County, 730 F.2d 1009 (5th Cir. 1984) (en

banc) was a political patronage case challenging the custom in Jim

Hogg County of filling the position of deputy in the sheriff's

office with political supporters of the newly elected sheriff. As
8

such, it implicated both speech and association. See also Kinsey,

950 F.2d at 992 (school board's dismissal of superintendent because

of his support for defeated board members involved both freedom of

speech and association). Only one of the plaintiffs, McBee,

brought a pure speech claim. She was denied employment as a result

of her complaint to the County Judge and to a County Commissioner

about the sheriff's actions. McBee, 703 F.2d 834, 836-37 (original

panel opinion). We took the case en banc to consider the effect of

Connick, decided after the original panel opinion, on political

patronage cases, settling on the Pickering balancing test as

explained by Connick. Although we explained the facts of Connick

and mentioned its holding with regard to the public concern test,

the focus of our opinion was on Connick's explanation of the

Pickering balance. 780 F.2d at 1013-14. We did not insist on a

threshold finding of public concern. We remanded for the district

court to consider the factors in the balancing test. Id. at 1017.

Vicksburg was another post-Connick freedom of association case

that did not require public concern. Plaintiffs challenged a

Vicksburg municipal resolution prohibiting captains of the

Vicksburg Fire Department from belonging to a union or labor

organization having in its membership rank-and-file firefighters of

that department. 761 F.2d at 1037. We upheld the resolution,

holding "that prohibiting firefighters properly characterized as

supervisors from belonging to labor organizations composed of the

rank and file serves legitimate and substantial government interest

in maintaining efficient and dependable firefighting services."
 

2But see Hatcher v. Board of Public Educ. and Orphanage, 809

F.2d 1546, 1558 (11th Cir. 1987) (holding that Connick's public

concern test does not apply to freedom of association, relying on

NAACP v. Alabama, 357 U.S. 449 (1958)).

9

Id. at 1040. Our decision rested solely on the balancing of

interests.

We conclude that in December 1987, the law was clearly

established in this circuit that no independent proof of public

concern is required in a freedom of association claim arising from

union organization activity. Without a hint to the contrary in our

decisions, Boals v. Gray, 775 F.2d 686 (6th Cir. 1985), and Griffin

v. Thomas, 929 F.2d 1210, 1213 (7th Cir. 1991), decided after

Gale's decision, cannot support Gale's bid for qualified immunity.2

Although we think it apparent that public concern was not a

prerequisite to a public employee's freedom to associate with union

members, this does not end our inquiry. This is so whether we

describe our law as not requiring independent proof that union

activity of employees touches on a public concern or as recognizing

the higher likelihood that much more of the range of such activity

than the range of employee speech, is not solely personal and is

inevitably of public concern. Many cases will defy this simplistic

categorization with entangled speech and associational freedoms at

issue. This is a price of the pushing away of workplace disputes

but even this difficulty is eased by the countervailing reality

that speech in the context of union activity will seldom be

personal; most often it will be political speech. We escape this

difficulty here because we have no more than associational
 

3Gale also asserts error in the district court's failure to

give his requested jury instruction on qualified immunity. While

it may be necessary for a jury to make findings related to

qualified immunity in some cases, see White v. Walker, 950 F.2d

972, 976 (5th Cir. 1991), the issue in this case was purely

legal. See White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992)

("[w]hether the conduct of which the plaintiff complains violated

clearly established law is an essentially legal question) (citing

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

10

activity. Even so, the task that usually follows is not quite so

easy.

The fact specific balancing test of Pickering, complicates the

question of whether an act violated clear law. This is because the

question is not only the clarity of the standard but its clarity in

application. See Anderson v. Creighton, 483 U.S. 635 (1987); see

also Noyola v. Texas Dept. of Human Resources, 846 F.2d 1021, 1025

(5th Cir. 1988) ("[t]here will rarely be a basis for a priori

judgment that the termination or discipline of a public employee

violated 'clearly established' constitutional rights"). Here,

however, Gale sought to justify Boddie's firing on the basis of

poor attitude not disruption of the fire department. There was no

interest to balance when this reason was rejected factually. "This

assertion, while important for the question of causation, is fatal

to his claim of qualified immunity." Click, 970 F.2d at 112. We

conclude that Chief Gale should reasonably have known that firing

Boddie for his association with union firemen violated clearly

established law. The district court did not err in refusing

qualified immunity.3
11

IV.

A.

We next address the sufficiency of the evidence that Boddie's

association with union firemen was a substantial or motivating

factor in Gale's decision. See Mt. Healthy City School Dist. Bd.

of Educ. v. Doyle, 429 U.S. 274 (1977). We must consider all of

the evidence, drawing all reasonable inferences in favor of the

prevailing party. We cannot disturb the verdict if the record

contains any competent and substantial evidence tending fairly to

support the verdict. E.g. Gibralter Sav. v. LDBrinkman Corp., 860

F.2d 1275, 1297 (5th Cir. 1988).

At trial, defendants attempted to convince the jury that

Gale's recommendation was based on Boddie's poor attitude, relying

on a few specific instances: Boddie lost his turnout coat and did

not pay for the replacement coat (the jury determined that Boddie

must pay for the coat), on several occasions Gale noticed Boddie

out of uniform when he should have been in uniform, Boddie signed

a petition concerning work hours after having worked only three

months, and Boddie teased Chief Massey on a couple of occasions

about what Massey was carrying in a briefcase.

Boddie argued that Gale's claim of poor attitude was a

pretext. All firemen who worked on Boddie's shift, his immediate

superior, and the assistant chief testified that Boddie was a very

good firefighter and none were aware of an attitude problem. His

immediate supervisor testified that Boddie's attitude was

excellent. No other fireman had been fired without some
12

documentation of his poor performance, and no documentation existed

on Boddie. Also, no other firefighter had ever been fired for a

poor attitude.

According to the testimony, Boddie was a close friend of the

officers of the local firefighters' union. To support his position

that Gale fired him for union association, Boddie offered the

testimony of City Councilman Edwards, Assistant Chief Lavender,

admissions by Gale, and testimony from union officers. Edwards

testified that Gale told him Boddie "hung out with the wrong

crowd." Edwards assumed Gale was referring to the union. Lavender

testified that Gale told him Boddie had been "messing with the

union." Gale himself testified that it was his personal opinion

that any union causes "turmoil." In addition, Gale told Union

President Holloway that all the union was good for was "protecting

worthless workers." On a different occasion, Gale told Holloway

that it was not Holloway's job performance that was going to get

him in trouble but his union activity and his signing of a

petition. Similarly, Union Secretary Moore said Gale told him that

his "extracurricular activity" was going to get him in trouble.

Union Vice-President Latham testified that the union advised

firemen not to join the union during their probationary period for

fear of retaliation.

Defendants' attack on the verdict rests on many of the same

witnesses. Gale and the City emphasize that these witnesses

testified that they had never heard Gale say he was out to get

Boddie, that firemen should not join the union, or that the union
13

could not solicit members. Gale and the City called other

witnesses who also testified as to what they had never heard Gale

say. A reasonable jury could conclude that union association was

a substantial or motivating factor in Boddie's discharge.

B.

At oral argument, counsel for defendants argued that the City

of Columbus could not be held liable because there was no proof

that the members of the City Council held any anti-union bias.

This argument strips to a first time contention that the City

Council was the policymaker for the City of Columbus as to the

hiring and firing of firemen and Boddie was required to prove the

union animus of Council members to establish municipal liability.

See City of St. Louis v. Praprotnik, 485 U.S. 112 (1988); Worsham

v. City of Pasadena, 881 F.2d 1336 (5th Cir. 1989). Boddie's

theory of recovery against the City was, however, that Chief Gale

was a policymaker. Boddie's complaint alleged that Gale had the

authority to make official policy decisions for the City with

regard to the hiring and firing of firemen. The City never

contended otherwise and the case was tried on this theory. The

questions put to the jury were whether "Mr. Boddie's exercise of

his protected First Amendment right of association was a

substantial or motivating factors [sic] in the decision by the City

and Chief Gale to discharge him" and whether "the actions of the

City and Chief Gale were the proximate or legal cause of damages

sustained by Mr. Boddie." The City Council was not mentioned in

the instructions. We do not suggest that it would, in any event,
14

have succeeded, but it is too late for the City to raise this

contention. See e.g. Capps v. Humble Oil & Refining Co., 536 F.2d

80 (5th Cir. 1976) (appellant may not raise on appeal a theory

which was not presented to the trial court); Matter of Texas

Mortgage Servs. Corp., 761 F.2d 1068, 1073 (5th Cir. 1985) ("issues

not raised on appeal in the brief of the Appellant may be

considered waived, and they cannot be noticed or entertained by the

Court of Appeals"). 

V.

Defendants argue that Boddie should not have been reinstated,

because Boddie falsified his employment application by failing to

list all of his former employers. Defendants never raised Boddie's

application as a bar to reinstatement before the district court;

they were silent on this issue at the pretrial conference and in

their motion for summary judgment, and did not oppose Boddie's

post-trial motion for reinstatement. Boddie's failure to include

all of his former employers on his application was raised at trial

only as an issue of Boddie's credibility. We decline to address

this argument for the first time on appeal. See, e.g., McLean v.

International Harvester Co., 902 F.2d 372, 374 (5th Cir. 1990).

VI.

On cross-appeal, Boddie argues that the district court erred

in failing to make reinstatement effective from the date of the

jury verdict, and we agree. The jury returned its verdict on

September 5, 1991. The judgment awarded Boddie $30,558, the amount

of backpay he claimed less $150 for the coat. Therefore, the
15

judgment compensated Boddie for his loss of income up until trial.

However, reinstatement was not effective until April 3, 1992, the

date the judge ruled on post-trial motions. Thus, Boddie has not

been fully compensated for his loss; the period between trial and

the judge's ruling on post-trial motions was uncompensated. Cf.

Kingsville Independent School Dist. v. Cooper, 611 F.2d 1109, 1114

(5th Cir. 1980) ("the usual award of backpay covers the period from

wrongful termination to effective reinstatement"). Accordingly, we

affirm the judgment in all respects except the effective date of

reinstatement. We vacate that portion of the judgment and remand

with instructions to order reinstatement effective September 5,

1991.

AFFIRMED in part, VACATED and REMANDED in part.