Daley v. Webb

885 F.2d 486, 1989 WL 109434
CourtCourt of Appeals for the Eighth Circuit
DecidedSeptember 25, 1989
DocketNo. 88-1596
StatusPublished
Cited by11 cases

This text of 885 F.2d 486 (Daley v. Webb) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daley v. Webb, 885 F.2d 486, 1989 WL 109434 (8th Cir. 1989).

Opinion

BOWMAN, Circuit Judge.

This is a wrongful discharge case against city officials under 42 U.S.C. § 1983. Plaintiff Franklin J. Daley, formerly a firefighter with the Little Rock Fire Department (LRFD), appeals from a District Court1 judgment entered pursuant to a jury verdict in favor of defendants Rubin Webb and Herbert Smith, respectively Chief and Captain of the LRFD. For reversal, Daley argues that termination of his employment with the LRFD was wrongful in that he was not given meaningful notice or a hearing and because the decision to terminate was made in retaliation for his exercise of rights protected by the First Amendment. We affirm.

I.

Daley was a fourteen-year employee of the LRFD. At trial he provided evidence of a number of incidents in support of his claim that he was harassed and eventually fired in retaliation for exercising rights protected by the First Amendment. The first such incident had to do with the sign-in logbook at the LRFD airport station, where Daley then was working. Captain Smith, Daley’s supervisor, had removed from the logbook a page showing that Captain Smith reported late for duty one day. This was a violation of LRFD rules. Firefighter Dennis Smith wrote a memorandum informing District Chief Troy Burgess of the infraction, and Daley claims he too informed Chief Burgess of the incident. [487]*487Captain Smith subsequently was reprimanded. Later, on December 21, 1983, Captain Smith told the firefighters at the station to remove ice from the concrete apron around the station. Daley claims he was assigned this duty in retaliation for the report he made to Chief Burgess. However, all the firefighters at the station were ordered to remove ice, and Captain Smith apparently had no knowledge that Daley had reported the rules violation. While performing this duty, Daley slipped and fell, injuring his back.

Subsequently, the relationship between Daley and Captain Smith deteriorated. In one incident Daley was directed to remove some personal property he had been storing at the station, including an air compressor. Approximately one week later, after being ordered to do so by Chief Burgess, Daley removed the compressor. He did so without the assistance of anyone else, even though a co-worker offered assistance, and reinjured his back.

In February 1984 Daley testified at a Civil Service Commission hearing, alleging that certain firefighters were obtaining advance copies of LRFD promotion tests. The allegations prompted an investigation by the Internal Affairs Division of the Little Rock Police Department but no substantial evidence of wrongdoing was found. After the investigation commenced Daley was transferred to another station. He suggests that this was in retaliation for his participation in the Civil Service hearings, but the appellees argue that he was transferred because of his strained relations with Captain Smith. Daley says in his brief that the appellees’ “many disciplinary acts” “compelled” him to file suit in May 1984; he voluntarily dismissed that suit in September 1986. Brief for Daley at ix.

The next three years of Daley’s employment appear to have been uneventful, except for significant amounts of sick leave and relatively minor disputes regarding his failure to provide “sick slips.” In the spring of 1987, however, Daley again became embroiled in conflict with his supervisors. The conflict stemmed from what Daley characterizes as an “oral reprimand” by District Chief Marcus White. One afternoon Daley had spent fifteen minutes conversing with his wife in a car parked outside the station. Chief White informed Daley it was against station policy for firefighters to sit outside the station in cars with their girlfriends or wives, and that if a private place for discussion was needed an office at the station would be made available. Daley informed Chief Webb of the “reprimand” and made a number of allegations about Chief White. The upshot of the incident was that in late April 1987 Chief Webb sent Daley a letter of reprimand for violating LRFD chain of command regulations and for publishing false and defamatory information regarding Chief White. The following May fourteen of Daley’s coworkers signed a letter to Chief Webb asking that Daley be transferred because his contentious attitude was having a negative effect on their morale and operating effectiveness. Appellees’ App. at 31.

On June 24, 1987 Daley received a reprimand from Chief Webb for failing to notify his immediate supervisor that he would be absent due to illness on June 18. Daley suggests that this reprimand was in retaliation for bringing the present suit, which he filed June 22, but memoranda from Captain Gene Tucker and Chief White addressing Daley’s absence and recommending reprimand are dated June 18. Subsequently, in a memorandum dated June 24, 1987 Captain Tucker informed Chief White that Daley had disobeyed orders, and in a memorandum dated July 9, 1987 Captain Van Alexander informed Chief White of insubordination by Daley.

On July 9, 1987 Daley was given notice of possible disciplinary action. On July 13 and 22 administrative hearings were held, and based on evidence of his inadequate job performance, insubordination, and conduct detrimental to the morale and operating effectiveness of the department, Daley was given a thirty-day suspension. See Appel-lees’ App. at 49; see also Appellees’ App. at 37, 44. While Daley was serving his suspension, Chief Webb received additional allegations of rules violations by Daley, including that he refused to inform his supervisors of his physical condition while [488]*488saying he would perform his duties only “up to a point,” that he responded late to an alarm, that he taunted his captain, and that he reported to an alert without proper equipment.

Consequently, on August 18, 1987 Chief Webb drafted another notice of possible disciplinary action. See Appellees’ App. at 57. The notice advised that the LRFD was considering further disciplinary action in light of the five additional charges outlined in the memorandum, and that Daley was entitled to a hearing, which was tentatively scheduled for August 24, 1987. Daley claims that attempts to serve him with this notice were “a sham” and that he was “out of town during that period of time and never received notice of termination.” Brief for Daley at 8. But the appellees presented evidence that Captain Lane Kinder hand-delivered a package of letters from Chief Webb to Daley on or about August 18. See IV Tr. at 98-99; III Tr. at 130.

When Daley did not appear for his hearing, Chief Webb wrote another memorandum, dated August 25, offering Daley another opportunity for a hearing and informing Daley that if he failed to avail himself of his right to a hearing the right would be considered waived. This time Captain Kinder was unsuccessful in his efforts to serve Daley, so a private investigator was hired to effect service. The investigator testified that it appeared Daley was attempting to avoid service, and that on one occasion Daley even sped away in his car to do so. IV Tr. at 106-08. Unable to serve Daley personally, the private investigator eventually gave the memorandum to Daley’s mother and sister.

Finally, on September 1, 1987, having received no response from Daley, Chief Webb terminated Daley’s employment, citing the charges outlined in the August 18 memorandum. Appellees’ App. at 64.

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885 F.2d 486, 1989 WL 109434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daley-v-webb-ca8-1989.