IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CC-00767-COA CITY OF MERIDIAN, MISSISSIPPI APPELLANT

v. ADAM MEADORS APPELLEE DATE OF JUDGMENT: 05/05/2015 TRIAL JUDGE: HON. ROBERT W ALTER BAILEY COURT FROM W HICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: W I LLIAM W YATT SIMMONS MATTHEW RICHARD W ATSON ATTORNEY FOR APPELLEE: DAVID H. LINDER NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES TRIAL COURT DISPOSITION: REVERSED THE MERIDIAN CIVIL SERVICE COMMISSION’S ORDER AND ORDERED THE APPELLANT TO REINSTATE THE APPELLEE’S EMPLOYMENT DISPOSITION: REVERSED AND RENDERED - 12/06/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND ISHEE, JJ. BARNES, J., FOR THE COURT: ¶1. This appea l r e s u l t s f r o m t h e C i ty of Meridian’s t erm ination o f one of its police of f icers, Adam Meadors, f

or an inappropriate p hoto he posted on h is Facebook account while

on duty , which was f

o und to b e in violation o f the City ’s rules and regulations. The Meridian Civil Service Com m i ssion a f f irm ed M e a d o rs’s term ination o n appeal, but the L a uderdale County Circuit Court subsequently reversed the Com m ission’s f indings and ordered the City
to reinstate Meadors. Finding Meadors’s term ination was m ade in good f aith f or cause andsupported by the evidence, we reverse and render the circuit court’s judgm ent. FACTS AND PROCEDURAL HISTORY ¶2. On October 5, 2013, Meadors, a police of f icer f or the M e r i d i a n Police Departm ent (MPD) s ince 2006, posted to his p ublic Facebook page a photo depicting t wo c h im panzees laughing w ith the f

ollowing c aption: “Earlier today [ ,] the m ay or and the chief of p olice had

a m eeting.” He com m ented on the photo, s ay ing: “ Som ething w i ll probably be said, but I couldn’t r esist.” Af

ter a f ew m inutes, however, he rem oved t he photo. Meadors was on duty at the tim e he posted the photo, even though he was at hom e on a m eal break. ¶3. Meadors’s Facebook p ost was brought to the City ’s attention, and the MPD conducted

an internal-af

f airs investigation to determ in e w h e t h er the picture violated the City ’s or MPD’s r egulations. Meadors provided a statem e n t on October 9, 2013, acknowledging he

“ k new that posting the p icture m ight of f end som e people,” b ut he e x plained t h a t i t w a s “m eant to be a joke and not m eant to be t aken serious[ ly ] by any one.” W hen later questioned by the investigator whether he was “thinking of ” Meridian’s M ay or Percy B land and Chief of Police Jam es Lee, both Af rican Am erican, when he p osted the photo, M eadors answered: “Yeah, t hat ’ s t r u e , but I have f riends on Facebook at other agenc[ ies] that m ight assum e I

was t alking about other m ay o rs a nd chief s where they work.” He also adm itted that he knew his f riends in Meridian would assum e he was ref erring to May o r Bland and Chief Lee. ¶4. Meadors received a written notice of MPD’s intent to t erm i nate him on O ctober 14, 2013, signed by Chief Lee and Chief Adm inistr a t i v e O f f i c e r Curt Goldacker, and he was placed o n adm inistrative leave

. The notice c harged Meadors with violating num erous

2sections of the MPD Code of Conduct, along with Civil Service Code Rule 10.01(a)(B) and

(C) (detrim ental conduct). Although there was a line f o r May or Bland to sign t he notice of
term ination, his signature was n ot on the docum ent. Meadors r esponded o n October 15, 2013, claim ing that the posting on social m edia was d one “ on [ his] own t i m e” and “cons t i t u t e [ d] f

ree speech

. . . protected by the First Am endm ent to t he United States Constitution.” Meadors was of f i cially term inated on October 16, 2013; his term ination letter was signed by

Chief Lee. ¶5. Meadors f

i led a n appeal with the Com m ission, requesting f ull reinstatem ent and back
pay . At t he appeal hearing, Meadors argued there was nothing in the p hoto to indicate that he was ref

erring to May or Bland a nd Chief L e e, and his term ination violated h is right to f ree speech. Meadors additionally argued that May or Bland, the appointing a uthority , d i d not sign his term ination notice, which Mead o r s argued was a violation of M ississippi Code Annotat e d section 2 1 -31-23 (Rev. 2007). May or B land, however, testif ied that he had verbally designated Chief

Lee with the authority

to proceed with Meadors’s term ination. Q. [ D]id y ou p r o p e r l y authorize Chief Lee to issue a f inal notice of term ination to Adam

Meadors on October 16th, 2013? A. Yes, I did designate Chief Lee. Q. W ere all the disciplinary actions t h a t were taken in regard t o Adam Meadors in regard t o these violations of October 2013 taken with y o ur f ull knowledge and consent as May or and appointing authority f o r the City of Meridian? A. Yes. ¶6. The Com m ission u p h e l d t h e C i t y ’ s f i r i n g o f M e a d o r s . R e g a rding his First

3Am endm ent claim , the Com m ission concluded that t here was no “public concern interest in

this speech or expression” and that Meadors’s Facebook post, “ at best,

. . . was an e xpression ridiculing the M ay or and Chief of Police’s hum anity and[ , ] at w orst[ ,] it w as an e xpression of racial p rejudice.” The Com m ission also d eterm ined that “[ t]he l aw does not require that designees be recognized in writing.” It did, however, adm onish t he City that, if the May or

was going to continue to delega t e the authority to sign such f orm s, he should “designate individuals with the authority he w ishes them to possess in writing and t hat the f orm s used elim inate the May or’s nam e unless he intends to start signing them .” ¶7. On July 2, 2014, Meadors f iled a n a p p e al with the circuit court. Concluding that “there was no indication i n the record that M ay or Bland was aware of or approved Meadors’s
term ination, other than the m ay or’s testim ony ” at the Com m ission hearing, the circuit court reversed the Com m ission’s order a nd directed the City to r einstate Meadors o n May 5, 2015. As this issue was dispositive of Meadors’s a ppeal, the c ircuit court did not a d dress Meadors’s First Am endm ent argum ent. ¶8. The C ity a

ppeals the circuit court’s judgm e n t, arguing the circuit court “f ailed t o apply the proper standard of r eview,” erroneo u sly re-adjudicated the Com m ission’s “f actual and credibility determ inations,” a nd f ailed to address c aselaw “f actually analogous” to the instant

case. Meador also brings a n alternative claim o n a p peal, reasserting h is F irst Am endm ent
argum ent and requesting a rem and on this issue if this Court f i n d s t h e c i r cuit court’s judgm ent warrants reversal. 1

1 T h e C ity

also f iled a m o tio n to stay th e ex ecu tio n o f j u d g m en t p en d in g an ap p eal, w h ich th e circu i t co u rt g ran t ed o n Ju n e 1 5 , 2 0 1 5

. 4¶9. Concluding that the circuit court erred i n its f indings, a nd t hat Meadors’s claim – that his right to f

r e e speech w as violated – is without m erit, we reverse a nd r ender the circuit court’s judgm ent. ANALYSIS
I. Whether the circuit cou r t f a i l e d to apply t he proper standard of review

. ¶10. The C ity argues that the circuit court f ailed to em

plo y t h e a ppropriate standard of review and, instead, “im

properly weighed a n d e v a l uated evidence and testim ony that was previously determ ined by the C o mmi ssion.” Section 21-31-23 governs the disciplinary
process f or persons em

ploy ed i n civil service a n d specif ically provides that an appeal hearing “shall b e conf

ined to the determ ination of whether the judgm ent or order of rem oval, discharge, dem otion, suspension[ ,] or com bination thereof m ade by the com m ission, was or

was not m ade in good f

a ith f or cause, and no appeal to [ the circuit] court shall be taken except upon such ground or g rounds.” Theref ore , w h e n r eviewing a decision by the Com m i ssion on appeal, the standard of review is “whether o r not the action o f the Civil Service Com m i ssion was in good f aith f or cause.” Necaise v. City o f W aveland , 170 So. 3d 616, 618 (¶9) (Miss. Ct. App. 2015) (quoting City of Vicksburg v. Lane , 11 So. 3d 162, 165 (¶10) (Miss. Ct. App. 2009)). “Inte r t w i n e d w i t h t his question is whether or not there was substantial evidence b ef

ore the C ivil Service Com m ission to support its order[ ,] and whether the decision is arbitrary , unreasonable, conf iscatory , and capricious.” Id

. ¶11. T h e C o mmi s s i o n deem e d May or B land’s testim o ny – t hat he verbally desi g n a t e d Chief Lee with appointing a u t h o rity – to be credible a n d suf f icient to uphold Meadors’s

5term ination. But in reversing the Com m ission’s d ecision, the circuit court d eterm ined that

“the evidence [ was] conf

licting as to whether the May or e ver g ave t he p roper designation to Chief Lee to t erm inate M eadors,” and it concluded there w as n o “ proper designation by the May o r to Chief Lee to ef

f ectuate the term i nation of [ Meadors].” ¶12. W e a g r ee with the City that the circuit court d id not em ploy the p roper standard of review. A s this Court observed in Renfro v. City of M oss Point , 156 So. 3d 9 13, 917 (¶19) (Miss. Ct. App. 2014): Courts are not em

powered to supervise the i ntellig e n c e , w i sdom , or f airness of the governing a

uthorities. [ City of Jackson v. Froshour , 530 So. 2d 1348, 1 3 5 5 (Miss. 1988)]. Sim ilarly , we are prohibited f rom m a king credibility determ inations of the evidence or t estim o ny that was presented to the Com m ission. City of Laurel v. Brewer, 919 So. 2d 2 17, 2 21 ( ¶15) (Miss. Ct. App

. 2 0 0 5). Substantial evidence has been def ined as such e vidence as a reasonable m ind m ight accept as adequate to support a conclusion. Id. Here, the circuit court m ade a “ credibility determ i nation” regarding t he evidence it f ound “conf licting,” likely ref

e rring t o the May or’s testim ony that h e d esignated authority to
term inate Meadors, countered with the evidence presented by Meadors that the May or m ade
a statem ent to a local news reporter that term inations have to go through the May or f or his signature. The Com m ission expressly noted that “ statem ents of public of f i cials or political f igur e s i n news conf

e rences are not law.” Further, the Com m ission heard the testim ony , reviewed the e vidence, and determ ined that there was cause f or Meadors’s term ination and

“ a good f a ith application of the disciplinary procedures.” W hile it a dvised the May or t h a t f uture designations of aut h o rity should be i n w riting, the Com m i ssion evidently f ound the May o r’s testim ony

that he gave verbal designation to Chief Lee credible.

6¶13. Accordingly , we f ind m erit to the City ’s claim the circuit c o urt did not em ploy the proper standard of

review in this instance.
II. W hether the circuit court m isinterpreted Eidt v. City of Natch e z , 382 So. 2d 1093 (Miss. 1980) in its findings. ¶14. Citing Eidt v. City of Natchez , 382 So. 2 d 1093 (Miss. 1980), the circuit court f o und the May or’s f

a ilure to s ign Meadors’s term ination notice to be dispositive in i ts decision to

reverse the Com m ission’s order. In Eid t , t h e M i s s issippi S uprem e Court held t hat section 21-31-23 “specif

ically allows f

or discharge ‘upon t he w ritten accusation of t he a ppointing power,’” which was the City of Natchez’s m ay or or board of alderm en. Id

. at 1095 (quoting Miss. Code Ann. § 21-31-23). Sin c e t h e c ity ’s f ire-departm ent chief w as the one who discharged the em

ploy e e i n E idt , “without any authority o r c o nf irm ation f

rom Natchez’s appointing power under the statute,” the suprem e court determ ined the em ploy ee should be reinstated. Id

. ¶15. The C ity a rgu e s t

h e c i r cuit court m isinterpreted E i dt , and f ailed to address the suprem e court’s subsequent holding in Beasley v. City of Gulfport , 7 2 4 So. 2d 8 83 (Miss. 1998), which d i s t i n g u i s hed Eidt

. In Beasley , the suprem e court considered the f iring o f the chief building of

f icial f or the City of Gulf

port. Id

. a t 8 8 4 ( ¶ 2 )

. Louis Beasley received a
term ination notice on July 25, 1995, but although the original, h and-delivered letter of
term ination was not s i g n e d by G ulf port’s m ay or, a copy of the letter l ater produced at the Com m i ssion hearing showed the m ay or subsequently signed t he docum ent on J uly 27, 1995. Id

. at 885 ( ¶11). Despite Beasley ’ s claim t his signed notice was never m ailed or received by him , the suprem e court upheld the term ination since the m ay or, the appointing authority , had

7“conf

ir me d ” t h e term ination. Id

. at 8 86 (¶¶13, 1 6). The Beasley court expressly distinguished Eidt , noting the f ire chief in t hat case had signed the discharge “ withou t a n y authority or conf

irm a tion from the mayor [ .]” I d . at (¶15) (em

phasis added). ¶16. W e f

ind the City ’ s c laim is supported by the caselaw and evidence. It is undisputed that May or Bland did not sign M eadors’s term ination docum ents; thus, unlike B easley , there is no written “conf

irm ation” of the term ination. However, May o r Bland testif ied during the C o m m i s s i on hearing that he “gave [ Chief Lee] verbal authority to t erm inate Adam M e a d o r s . ” Q. Okay

. The n o tices that are a lready i ntroduced into evidence are not signed by y ou. Did y ou disc u s s t h ose notices with Chief Lee p rior to them being delivered to Of

f icer Adam

Meadors? A. Yes, I did. Q. Specif

i cally , did y ou discuss this m a t ter with Chief Lee on or p rior to October 13, 2013? A. Yes, I did. Q.

. . . D id y ou properly authorize Chief L e e to issue the notice of intent to term i nate to Of

f icer Adam

Meadors on October 13, 2013?

. . . . A. Yes, I did.

. . . . Q. And a f

t er reviewing [ Meadors’s r esponse,] did y ou properly authorize Chief Lee to i ssue a f

i nal notice of term ination to A dam Meadors on October 16, 2013?

. . . .

8A. Yes, I did designate Chief Lee.[ 2 ] As i n Beasley , although Meadors w as given a notice t hat was not signed by the May or, there was evidence at the hearing, which the Com m ission credited, that Chief Lee had “both the authority f

rom and c onf

irm ation o f his actions by the appointing authority .” T heref ore, the circuit court’s judgm ent should be reversed and rendered.
III. Whether M eadors’s term i nation vio l a t e d h i s F i r s t A me n dm e nt rights. ¶17. As t h e F i r s t A m e n d me n t issue was not addressed by the circuit court, Meadors alternatively subm i ts that the c a s e s h o u ld b e rem anded to address his claim that his
term ination violated his First Am endm ent right to f ree speech. T he City responds that this issue is not ripe f

o r review since the circuit court did not rule on the issue. However, as the Com m i ssion addressed this issue in its order, we will consider the claim on the m erits. ¶18. “[ T]he First Am endm ent protects a public em p loy ee’s right, in certain circum stances,
to speak as a c itizen a ddressing m atters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). Theref ore, the f irst inquiry in addressing t h i s issue is “whether the

em ploy e e spoke as a citizen on a m atter o f p ublic concern. If the answer is no, the em ploy ee ha s n o F i r s t A m endm ent cause o f action based on his or her e m ploy e r’s reaction to the speech.” Id . at 418. ¶19. The C om m ission de t e r mi n e d : “ F a i l i ng to show any public concern interest in this speech or expression[ ,] the First Am endm e nt protection i s n o t a v a ilable to Meadors under

2 C o u n sel f

o r M ead o rs o b

j ected to th is q u e stio n in g o n t h e b asis th at th e au t h o rizatio n w a s n o t in w ritin g . T h e C o m m issio n o v erru led M ead o r s’s o b j e ctio n s . 9these f

acts.” We f

i n d n othing erroneous in t he Com m ission’s f indings, as there was no evidence that Meadors’s posting of the photo addressed a public c oncern. In f act, Meadors testif i ed that the reason he posted the photo was b e c a u s e h e “ thought it was f unny .” Furtherm o re, although he denied the photo w as racist, he adm i tted that h e knew it would “ruf f le s om e f

e athers.” As the C o mmi s sion observed, the photo, at the very least, “ridicul[ e d] the May or and Chief o f Police’s hum a nity and[ ,] at w orst[ ,] it was an e xpression of racial prejudice.” I n an analogous scenario, t h e U n i ted States Court of Appeals f or the Eighth Circuit rejected a p olice of f i c e r’s argum ent that his F irst A m endm ent r ight to f ree speech was violated when he r eceived a thirty -day suspension f or wearing “blackf

ace” to a Halloween party attended by other of f -duty of f icers. Tindle v
. Caudell , 56 F.3d 966, 968-73 (8th Cir. 1995).
W h ile [ K evin] Tindle argues gen e r a l l y t h at his appearance at the party in blackf a ce is “speech on a m atter of public concern,” he does not explain why or specif y an y p a r t i c ular m atter of public concern. W hether an em ploy ee’s speech addresses a m atter of p ublic concern is “ determ ined by the c o n t e n t, f orm , and context of a given statem ent, a s r evealed by the record a s a whole.” Tindle does not claim

he intended to com m ent on any issue of interest to the public. He instead intended s i mp l y t o e ntertain the o ther of f icers a nd their guests at the party by wearing an am using costum e. Am

using other g uests at a private party w ith no showing of any i n t e n d e d m essage is not speech o n a m atter of public concern. Id. at 970. Moreover, as the United States Co urt o f Appeals f or the Second Circuit has observed: [ T]he [ g]overnm e nt m ay , in som e circ u mstances, legitim ately r egard as “disruptive” expressive a ctivities that i nstantiate o r perpetuate a widespread public perception of police of f icers

. . . as racist

. . . . P o l i c e of f i cers . . . are quintessentially public servants. As such, part of t heir job is t o saf eguard the public’s o pinion o f

them , particularly

with regard to a com m

unity ’s view of

1 0the respect that p o lice of f icers

. . . accord the m em

bers of that com m

unity

. . .

. W here a [ g]overnm ent em ploy ee’s job quintessentia l l y i n volves p ublic contact, the [ g]overnm ent m ay take i nto account the public’s perception of t hat em ploy ee’s expressive acts in d eterm i n i n g w h ether those acts are disruptive to the [ g]overnm ent’s operations. Locurto v. Giuliani , 447 F.3d 159, 178-79 (2d Cir. 2006). ¶20. W h ile Meadors disclaim s racial i n t e nt, “[ t]o suggest that a hum an being’s phy sical
appearance is essentially a caricature of a jungle beast g oes f ar bey ond the m ere unf

lattering; it i s degrading a nd hum i liating in the extrem e. The us e o f t he t erm ‘m o nkey ’ and other sim ilar words h a v e b e e n part of actionable racial harassm ent claim s across the country .” G r e e n v
. Franklin Nat’l Bank of Minneapolis , 459 F.3d 903, 911 (8th C ir. 2006) (cit i n g Jeffries v
. Metro-Mark Inc. , 45 F.3d 2 5 8 , 260 (8th Cir. 1995) (plaintif f w as called a

“ mo n k e y ” ) ; W

ebb v. W orldwide Flight Serv. Inc., 4 07 F.3d 1 192, 1193 (11th Cir. 2005 ) (sa m e); Spriggs v. Diamond A uto Glass, 242 F.3d 179, 182 (4th Cir. 2001) (sam e; also “dum b m onkey ” ); Daniels v. Pipefitters’ Ass’n Local Union No. 597 , 945 F.2d 906, 910 (7th Cir. 1 991) (plaintif

f s were called “ porch m onkey s” and “baboons”). Further, in W illiams v. Phillips 6 6 C o
. , 7 2 F

. S u pp. 3 d 938, 953 (S.D. Ill. 2014), the district court f ound that the posting of

a “picture of

a m o nkey

with the nam es of

two Af r ican-Am e ricans written on it” was “without a doubt, m o tivated by racial anim

us.” ¶21. N o ma t t e r h i s intent, M eadors’s posting was inherently racially insensitive and / o r dem onstrated i nsubordination toward his superiors. The MPD’s Code of Conduct expressly provides that an em

ploy e e “shall not express a ny prejudice concerning

. . . race” a nd “shall

n o t p u b licly criticize or r idicule the Police Departm ent

. . . by speech, writing

. . . o r o t h e r

1 1expression, where such speech, writing

. . . or other expression is def am atory [

. ]” Moreover,
t h e C ivil Service Code Rule Section 10.04(a)(5) states an em ploy ee m a y be dism is s e d f o r “being of f ensive or antagonistic towards supervisors[ .]” ¶22. W e agree with the Com m ission’s f inding that M e a d o r s ’ s t e r mi n a t i o n o v e r h is Facebook post did n o t constitute a violation o f his right to f ree speech. Me a d o r s w a s n o t speaking on a m atter o f public concern, and his Facebook post could well have been viewed by the public as racist and by his superiors as “of

f ensive or antagonistic.” ¶23. THE JUDGMENT O F THE CIRCUIT COURT OF LAUDERDALE COUNTY IS REVERSED AND RENDERED. A L L C O S T S O F T H I S A P P EAL ARE ASSESSED TO THE APPELLEE. LEE, C.J., I RVING AND GRIFFIS, P.JJ., ISHEE, C ARLTON, FAIR, JAMES AND G REENLEE, JJ., CONCUR. WILSON, J ., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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