Appendix — Melton v. Oklahoma City
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Supreme Court, U.S,
FILED
JUL 2 1991
THE CLERK
In The
Supreme Court of the United States
October Term, 1990
+
RAYMON J. MELTON,
Petitioner,
CITY OF OKLAHOMA CITY, et al.,
Respondents.
e
Petition For Writ Of Certiorari To The United States
Court Of Appeals For The Tenth Circuit
*
APPENDIX TO PETITION
°
*STEVEN M. ANGEL
Law Orrices OF STEVEN M. ANGEL
50 Penn Place, Suite 825
Oklahoma City, OK 73118
(405) 848-0286
Cart D. HuGHEs
HucuHes & NELSON
5801 N. Broadway Ext.
Suite 302
Oklahoma City, OK 73118
(405) 848-0111
Attorneys for Petitioners
*Counsel of Record
COCKLE LAW BRIEF PRINTING ©O,, (800) 225-6964
OR CALL COLLECT (402) 342-2831
TABLE OF CONTENTS TO APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
Page
Opinion on Rehearing En Banc ................ App. 1
Order for Rehearing En Banc.................. App. 50
Panel Decision of the United States Court of
Appeals for the Tenth Circuit................ App. 53
App. 1
PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
RAYMON J. MELTON,
Plaintiff-Appellee/
Cross-Appellant,
V.
CITY OF OKLAHOMA CITY, a
municipal corporation; LLOYD
A. GRAMLING, chief of Police
for the City of Oklahoma City;
GERALD L. EMMETT, Assistant
Chief of Police for the City of
Oklahoma City; MARVIN
MAXWELL, Major, Oklahoma
City Police Department;
WILLIAM R. CHAMBLESS,
Major, Oklahoma City Police
Department; CARL SMITH,
Lieutenant, Oklahoma City
Police Department; ROBERT
TAYLOR, Lieutenant, Oklahoma
City Police Department;
DAVID MCBRIDE, Lieutenant,
Oklahoma City Police
Department; and PAULA
HEARN, Assistant to the City
Manager,
Nos. 85-1738,
85-1739, 85-1740,
85-1741, 85-1742,
and 85-1811
Defendants-Appellants /
Cross-Appellees.
mee eee OO Oe el”
App. 2
OPINION ON REHEARING EN BANC
(Filed March 19, 1991)
Appeal from the United States District Court
For the Western District of Oklahoma
D.C. No. CIV-84-65-E
Steven M. Angel, Oklahoma City, Oklahoma, for Plaintiff-
Appellee/Cross-Appellant.
Richard C. Smith (James G. Hamill, Diane Lewis, Gerald
S. Rakes, and Jonathan D. Woods, with him on the briefs),
Oklahoma City, Oklahoma, for Defendants-Appellants/
Cross-Appellees.
Diane Pedicord, Oklahoma City, Oklahoma, on the brief
for Amicus Curiae Oklahoma Municipal League, Inc.
HOLLOWAY, Chief Judge,* and MCKAY, LOGAN,
SEYMOUR, MOORE, ANDERSON, TACHA, BALD-
OCK, BRORBY, and EBEL, Circuit Judges.
MOORE, Circuit Judge.
Plaintiff Raymon J. Melton brought this action under
42 U.S.C. §§ 1983 and 1985. Among the causes he asserted
was a Claim that he was deprived of a liberty interest by
*Honorable William J. Holloway, Jr., Chief Judge, heard oral
argument but did not participate in the decision of the case.
App. 3
the defendants without due process when he was dis-
charged from his job as a poiice officer in Oklahoma City,
Oklahoma. Following a plaintiff’s verdict, the defendants
appealed, and a portion of the judgment was reversed.
Melton v. City of Oklahoma City, 879 F.2d 706 (10th Cir.
1989). We granted rehearing en banc to resolve certain
issues relating to plaintiff’s liberty interest claim. Melton
v. City of Oklahoma City, 888 F.2d 724 (10th Cir. 1989).
Although we denominated four issues for argument, we
believe disposition of the first moots the remainder. We
now conclude the trial court committed plain error in the
submission of the liberty interest claim to the jury, and
we reverse. The remaining issues decided by the panel
stand as determined.
I.
Prior to his termination, Mr. Melton was a lieutenant
in the Oklahoma City Police Department. During his
tenure, he became a friend of William C. Page, a former
state court judge who was indicted by a federal grand
jury on felony charges. In preparation for the trial of Mr.
Page, the federal prosecutor interviewed Mr. Melton. For
reasons of his own, Mr. Melton surreptitiously recorded
his conversation with the prosecutor and later gave the
recording to counsel for Mr. Page.
The recording was used by Mr. Page’s attorney as the
basis for a motion to dismiss the indictment on the
ground that Mr. Melton had provided the prosecutor with
information to which the defense was entitled under
Brady v. State of Maryland, 373 U.S. 83, 87 (1963). The
App. 4
motion was denied, and Mr. Page was subsequently con-
victed.
Following the trial, Agent Ed Enwright, the agent in
charge of the Oklahoma City office of the Federal Bureau
of Investigation, advised defendant Lloyd A. Gramling,
Chief of Police, of a complaint against Mr. Melton. Mr.
Enwright accused Mr. Melton of improperly disclosing
the details of his conversation with the federal prosecutor
and of perjuring himself in an affidavit and during trial.
In response, Chief Gramling ordered a police depart-
ment investigation of the accusations. On August 1, 1983,
defendant Lt. Carl Smith, the head of the Internal Affairs
Bureau, commenced the investigation by interviewing
Mr. Enwright, who directed Lt. Smith to Agent Ron West.
Lt. Smith spoke to Agent West from whom Lt. Smith
obtained details of Mr. Melton’s tape recorded conversa-
tion. Mr. Enwright also told Lt. Smith he did not know
the details of the alleged perjury, but Lt. Smith could
obtain the facts from a third agent, Mr. Fitzpatrick.
After his interviews of Agents Enwright and West,
but before contacting Agent Fitzpatrick, Lt. Smith pre-
pared and delivered to Mr. Melton a document dated
August 17, 1983. According to Lt. Smith, the only purpose
of the document was to “inform Lt. Melton what he had
been accused of by the F.B.I. and that I was conducting,
on the instructions of the Chief's office, an investigation
of him on those allegations.” (R. Vol. XII, 676).' Referring
' There is some confusion whether this letter constituted
the “charge” which impelled the subsequent departmental
(Continued on following page)
App. 5
to those allegations, Lt. Smith wrote Mr. Melton was
“accused of violating the Police Code of Ethics? . . . [and]
making perjured statements both in a sworn affidavit
. and during testimony . . . during the trial.”
When he interviewed Agent Fitzpatrick, Lt. Smith
discovered there was no substance to Agent West’s claim
Mr. Melton had perjured himself. Agent West had told Lt.
Smith that Mr. Melton had testified during the Page trial
he had turned over to the FBI certain evidence in the
Page case that was not pursued by the FBI. Agent West
also told Lt. Smith following a search subsequent to Mr.
Melton’s testimony, no formal record of Mr. Melton’s
evidence was found by the FBI. Agent West said, there-
fore, unless Mr. Melton had given the information to
Agent Fitzpatrick, Mr. Melton’s testimony was untrue.
When Lt. Smith interviewed Agent Fitzpatrick, he stated
Mr. Melton made several attempts to provide him with
information, and if Mr. Melton said he furnished him
with the evidence “then he probably did.” (Ex. 61, Report
dated September 6, 1983, at 2).
Lt. Smith then filed his report of the investigation
(Ex. 61) with Chief Gramling on September 6, 1983. The
(Continued from previous page)
disciplinary proceedings. Lt. Smith’s testimony negates that
notion.
2 That portion of Section 1.01 of the Oklahoma City Police
Department’s Operations Manual applicable to the accusation
states: “Whatever | see or hear of a confidential nature or that
is confided to me in my official capacity will be kept ever
secret unless revelation is necessary to the performance of my
duty.”
App. 6
report made no recommendations, reached no conclu-
sions, but described the substance of the interviews of
various witnesses.
On September 8, 1983, Mr. Melton was notified that
five days later a hearing would be convened by a police
department disciplinary review board (the Board) to con-
sider the Internal Affairs investigation. On that same day,
two stories which are the genesis of the plaintiff's liberty
interest claim, appeared in Oklahoma City newspapers.
Prior to the appearance of the stories, a reporter from
The Daily Oklahoman called defendant Lt. David McBride,
the police department’s public information officer, seek-
ing confirmation of the pending investigation. (R. V. XII,
604-06). Lt. McBride testified the reporter:
read me a story that he had about information
that he had received by [sic] sources that he did
not reveal, that the police department was
investigating R. J. Melton.
Ard he articulated several things that he,
through his sources, had learned, that Melton was
— well, I think that answers your question. .
I didn’t take notes of his interview. Okay.
He was calling to tell me here’s what I’ve got.
What’s the police department’s position on this.
The information he had, that Melton Allegedly
perjured himself at a — during a trial, the trial of
Judge William Page.
He said that he had information that the
police department was investigating Melton for
tape recording an interview with the federal
prosecutor.
App. 7
And what I tried to do was minimize that as
much as possible, tell them that - confirm those
things that there was investigation in progress,
that to my knowledge there were no immediate
charges of a criminal nature being considered.
We corrected some information. Some of the
information that [the reporter] had was far more
damaging, in my mind, than the story that actu-
ally ran. It was incredible. I was quite alarmed
that some of the information he had was inaccu-
rate and was very damaging to... Mr. Melton
(R. V. XII, 603-06. This conversation and a “follow-up” (R.
V. XII, 607) ultimately led to the publication of two sto-
ries.
It is undisputed that both stories reported the Inter-
nal Affairs investigation of Mr. Melton and the hearing
that was set for that day. In addition to statements taken
from Lt. McBride, the Daily Oklahoman quoted “other
knowledgeable sources” who stated Mr. Melton “is being
investigated, among other things, for purportedly com-
mitting perjury during Page’s trial.” Nothing within the
Daily Oklahoman article attributes to Lt. McBride any dis-
closure of the FBI perjury accusation. Indeed, the bulk of
information contained in the story, including that accusa-
tion, was attributed to “sources,” “informed sources,” or
“other knowledgeable sources.” The article in the Okla-
homa City Times attributed statements to Michael Gassa-
way, “one of Page’s attorneys,” and Lt. McBride. That
article stated:
App. 8
McBride said the department's internal
affairs division also investigated allegations
Melton perjured himself when he testified in
Page’s behalf during Page’s trial.
The internal affairs findings will go before a
disciplinary review board at 9 a.m. Tuesday. The
board will decide whether Melton’s actions vio-
lated departmental policies or ethical cannons,
McBride said.
He said the board will recommend to Chief
Lloyd Gramling what action, if any, he should
take against Melton.
McBride said the internal affairs investiga-
tion did not establish whether Melton perjured
himself.
“It’s not the responsibility of internal affairs
to draw conclusions,” McBride said. “It’s their
responsibility to report the facts as they find
them to be from the investigation.
“The investigative report would only
reflect, ‘Here’s what the facts were: here’s what
Lt. Melton said.’ ”
McBride said he does not know what spe-
cific parts of Melton’s testimony are alleged to
be perjurious.?
3 When cross-examined about this quote and why he did
not tell the reporter that there was no longer an investigation
into the accusation of perjury, Lt. McBride stated: “Well, that’s
in response to a question posed to me about what part was
alleged to have been perjury and | did not know and still don’t
know.” (R. V. XII, 617).
App. 9
To report the internal affairs review’s find-
ings on the alleged perjury would be to try and
convict Melton in the press before the review
board has reached a conclusion, he said.4
Both stories contain accurate representations of Lt.
McBride’s responses to the questions of the reporters.
When the Board was convened, the chairperson,
defendant Chief Emmett, told the members that the
charge of perjury “was out, that we would not consider
that under any circumstances. There will be no discussion
of that whatsoever.” (R. V. VII, 10).5 At the outset of the
hearing, Mr. Melton was told by Chief Emmett the Board
would not consider the perjury accusation. (R. V. X, 145).
According to plaintiff, “This was the first that | really
knew that I was being boarded just for the police Code of
Ethics.” Id.
Following the hearing, the Board, with one member
dissenting, concluded Mr. Melton had violated the Code
of Ethics by recording and disclosing to Mr. Page’s coun-
sel the contents of Mr. Melton’s conversation with the
4 About this statement Lt. McBride testified: “That was a
quote taken out of an overall statement, that was not fair, that
should not be reported. And I tried to discourage them from
saying anything about that allegation.” (R. V. XII, 619).
5 A member of the Board, Major Maxwell, stated in
response to a question whether the Board had a prehearing
discussion of the accusation of perjury: “It seems that we
did, . . . that we discussed that allegation would not be consid-
ered, because there was, you know, it just apparently appeared
to be a misunderstanding rather than anything else.”
ea tie tee
App. 10
federal prosecutor. Two members of the Board conse-
quently recommended Mr. Melton be demoted, but the
remainder recommended discharge. Chief Gramling car-
ried out the recommendation of the majority.
In response to media inquiry, Lt. McBride subse-
quently confirmed in a published statement that Mr.
Melton had been discharged for violating the police Code
of Ethics. No media account carried information about
the resolution of the FBI's perjury accusation, but on
cross-examination, Lt. McBride was asked:
Q: And you never made it a matter of public
record that he was ~ that the charges were
unfounded, sustained, not sustained, he was
cleared, whatever the language of those policies
are. You never made that a matter of public
record, did you, sir?
I don’t recall everybody.
A: Yes, I did.
Q: You did?
A: Yes, sir.
Q: And who did you tell?
A: To several radio stations also. [sic]
Q: Who?
A: Who?
Q: Tell us.
A:
Q:
Just tell us one.
A: Just one? I’m sure that whoever covered
that story. And I know KEBC covered it. I don’t
know who all else covered that story, but there
were questions asked about the perjury allega-
tion. And my response was those charges were
a
App. 11
found not to be, not to have happened, that it
was a misunderstanding.
I recall specifically talking to severai mem-
bers of the press about that.
(R. V. Xil, 621). This testimony was not controverted.
The issue now before us stems from Mr. Melton’s
argument that the publication of the two stories quoting
Lt. McBride and others which revealed the accusations of
perjury made by the FBI resulted in the denial of a liberty
interest because Mr. Melton was not provided a hearing
to clear himself of that accusation.© The particular issue
® This is not precisely the issue raised by Mr. Melton in the
district court. The liberty interest claim advanced by the plain-
tiff in his complaint did not distinguish between the accusation
of the ethics code violation and the accusation of perjury.
Indeed, the second amended complaint merely averred:
In discharging Plaintiff, Defendant Lloyd Gram-
ling did not provide Plaintiff with a hearing which
would meet procedural due process requirements.
Furthermore, the basis for said discharge stigmatized
Plaintiff and harmed his reputation in the commu-
nity and amongst his fellow officers.
(R. Vol. 1, Tab 29, 9). Moreover, the plaintiff's ultimate theory
pleaded was that the defendants deprived him of rights
secured by the Constitution by: “discharging Plaintiff based
upon false and stigmatizing charges, thereby depriving Plain-
tiff of liberty without due process in violation of the Four-
teenth Amendment to the Constitution of the United
States;...” Id. at 10. While plaintiff now recognizes that the
essence of his claim has to be the denial of a name-clearing
(Continued on following page)
App. 12
we granted rehearing to address is whether the district
court committed plain error by instructing the jury that a
liberty interest may be violated by charges which “would
stigmatize the employee’s reputation or foreclose future
employment opportunities.” Order Granting Rehearing,
888 F.2d at 724. We now believe that question cannot be
answered without first determining whether the two arti-
cles upon which the claim is based are stigmatizing.”
To place our consideration of the issue in proper
perspective, however, we must review the nature of the
liberty interest now claimed by Mr. Melton. The seminal
issue we shall resolve in this review is whether a plaintiff
asserting such a claim must prove both stigmatization and
loss of prospective employment opportunity.
Relying on language from Miller v. City of Mission,
Kan., 705 F.2d 368 (10th Cir. 1983),8 the district court
(Continued from previous page)
hearing, that was not the claim he presented to the district
court. Since that distinction has not been pursued to this point
in the case, we shall overlook it.
’ The dissent characterizes this as a new issue neither
briefed nor argued. We, nonetheless, believe the question sub-
sumed within the essential to the issues noted for en banc
review.
8 In that case, we stated:
“7
The concept of liberty recognizes two particular
interests of a public employee: 1) the protection of
his good name, reputation, honor and integrity, and
2) his freedom to take advantage of other employ-
ment opportunities.’ ” (citations omitted). The man-
ner in which a public employee is terminated may
(Continued on following page)
App. 13
instructed the jury that for plaintiff to prevail on his
liberty interest claim he must prove that his termination
was accompanied by public dissemination of the
“charges” against him, and that “the reasons for his dis-
missal would stigmatize his good name, reputation, honor
and integrity, or foreclose further employment oppor-
tunities.”? (emphasis added). We now question this
instruction on two grounds. First, was it proper to allow
the jury to consider the issues of stigmatization and
deprivation of employment opportunities in the disjunc-
tive; and, second, did the trial court err by allowing the
jury to consider whether the statements relied upon by
plaintiff were stigmatizing without an independent
review of that issue by the court?!”
(Continued from previous page)
deprive him of either or both of these liberty inter-
ests. When the termination is accompanied by public
dissemination of the reasons for dismissal, and those
reasons would stigmatize the employee’s reputation
or foreclose future employment opportunities, due
process requires that the employee be provided a
hearing at which he may test the validity of the
proffered grounds for dismissal.
Miller, 705 F.2d at 373 (citations omitted) (emphasis added).
° Defendants now argue the court should not have given
any instruction on the liberty interest claim, but they failed to
object to the giving of the questioned instruction. Indeed,
defense counsel did little to aid the trial court in this case.
10 Because it is undisputed that the FBI’s accusation that
Mr. Melton perjured himself was not “the reason[ | for his
dismissal,” there is an additional question whether this
instruction conformed to the evidence. We shall not address
that question because it is neither raised in nor a part of the
questions for rehearing.
App. 14
The solution to our questions is contained in a line of
cases beginning with Board of Regents v. Roth, 408 U.S. 564
(1972). In that case, reviewing the constitutional guaran-
tees of liberty and property in the context of public
employment, the Supreme Court elaborated upon the
elements of “stigmatization” in charges ieading to dis-
missal, id. at 573, and foreclosure of the employee's “free-
dom to take advantage of other employment
opportunities.” Id. Holding the Regents (State) had not
taken action against Mr. Roth that would implicate his
liberty interest, the Court stated:
The State, in declining to rehire the respon-
dent, did not make any charge against him that
might seriously damage his standing and associa-
tions in his community. It did not base the non-
renewal of his contract on a charge, for example,
that he had been guilty of dishonesty, or immoral-
ity. Had it done so, this would be a different case.
For “[w]here a person’s good name, reputation,
honor, or integrity is at stake because of what the
government is doing to him, notice and an oppor-
tunity to be heard are essential. (citations omitted).
In such a case, due process would accord an
opportunity to refute the charge .
Similarly, there is no suggestion that the
State, in declining to re-employ the respondent,
imposed on him a stigma or other disability that
foreclosed his freedom to take advantage of
other employment opportunities. The State, for
example, did not invoke any regulations to bar
the respondent from all other public employ-
ment in state universities. Had it done so, this,
again, would be a different case. For “[t]o be
deprived not only of present government
employment but of future opportunity for it
certainly is no small injury... . ”
Id. at 573-74 (citations omitted).
App. 15
In succeeding cases, the Court brought Roth into
sharper focus. First, in Paul v. Davis, 424 U.S. 693, 710
(1976), the court stated Roth did not hold that defamation
of a public employee alone is enough to violate a pro-
tected liberty interest. Additionally, the Court explained,
to be actionable, the defamation must occur in the course
of the termination of employment. /d. Second, the stig-
matizing statement must be disclosed publicly. Bishop v.
Wood, 426 U.S. 341, 348 (1976). Third, the stigmatizing
statement must be false. Codd v. Velger, 429 U.S. 624
(1977). Indeed, “there must be some factual dispute
between an employer and a discharged employee which
has some significant bearing on the employee’s reputa-
tion.” Id. at 627.
Putting these cases together, we can construct the
parameters of a liberty interest case involving the dis-
charge of a public employee. When a public employer
takes action to terminate an employee based upon a
public statement of unfounded charges of dishonesty or
immorality that might seriously damage the employee's
standing or associations in the community and foreclose
the employee’s freedom to take advantage of future
employment opportunities, a claim for relief is created.
That construction of the claim leads us to the conclusion
the trial court erred in instructing the jury on the nature
of the liberty interest asserted in this case."!
1! The employee does not have to prove actual denial of a
job opportunity. It is sufficient that a plaintiff prove termina-
tion based upon a publicized false charge of sufficient
opprobrium that would make the plaintiff an unlikely candi-
date for employment by a future employer. See, e.g., Green v. St.
(Continued on following page)
App. 16
Because the court disjoined the aspects of stigmatiza-
tion and foreclosure of opportunity, the jury was permit-
ted to find for the plaintiff on grounds that he was
foreclosed from future employment opportunities with-
out also finding he had been stigmatized. As a result, the
plaintiff was permitted to recover a substantial verdict
without carrying the entire burden of proof placed upon
him. We believe the instruction constituted plain error
because the dichotomy created in the instruction between
stigmatization and future employment opportunity is
patently wrong. Moreover, when the improper instruction
is coupled with the absence of stigmatization, which we
shall discuss in part III, the consequences of the error are
simply unjust and prejudicial. The factors of the incorrect
instruction and the results produced, working together,
create plain error. Zimmerman v. First Fed. Sav. & Loan
Ass'n, 848 F.2d 1047, 1054 (10th Cir. 1988).
Iil.
A.
We now turn to the question whether the statements
made by Lt. McBride to the Oklahoma City Times were
stigmatizing. We undertake this determination in accor-
dance with the directives set out in Bose Corp. v. Con-
sumers Union of United States, Inc., 466 U.S. 485 (1984).
(Continued from previous page)
Louis Housing Auth., 911 F.2d 65, 69 (8th Cir. 1990) (Stigma
sufficient if it involves dishonesty, serious felony, manifest
racism, serious mental illness, or the like. Such “characteristics
imply an inherent or at least a persistent personal condition,
which both the general public and a potential future employer
are likely to want to avoid.”)
ia
App. 17
Bose involved a claim of commercial disparagement in
which the question of whether the defendant made a false
statement with actual malice was an issue on appeal. In
its review, the Court initially recognized the conflict of
two established principles. The first is that the finding of
malice is subject to the clearly erroneous test of Fed. R.
Civ. P. 52(a). The second, as the Court noted in New York
Times Co. v. Sullivan, 376 U.S. 254, 284-86 (1964), is that in
cases raising First Amendment issues, an appellate court
has an obligation to make an independent review of the
record to insure against “forbidden” intrusion on free
expression. Bose, 466 U.S. at 499, 508. While embracing
the notion that deference is to be accorded to a trial
court’s finding of fact, the Court nonetheless stated, when
findings are intertwined with legal principles, the appel-
late court’s duty to correct errors in law is not inhibited
by Rule 52(a). Indeed, the Court explained:
A finding of fact in some cases is inseparable
from the principles through which it was
deduced. At some point, the reasoning by which
a fact is “found” crosses the line between appli-
cation of those ordinary principles of logic and
common experience which are ordinarily
entrusted to the finder of fact into the realm of a
legal rule upon which the reviewing court must
exercise its own independent judgment. Where
the line is drawn varies according to the nature
of the substantive law at issue. Regarding cer-
tain largely factual questions in some areas of
the law, the stakes — in terms of impact on future
cases and future conduct - are too great to
entrust them finally to the judgment of the trier
of fact.
Id. at 501, n.17.
App. 18
We believe the question of stigmatization before us
must fall into this realm because it implicates many of the
Court’s concerns over the fact-finding process of the First
Amendment. As in New York Times v. Sullivan and Bose,
the finding of stigmatization intersects First Amendment
principles and defamation law. Whether Lt. McBride’s
report of the FBI accusations stigmatized Mr. Melton
evokes the same conflict between the common law of
defamation and First Amendment principles as the trial
court’s finding of actual malice and free speech in Bose
466 U.S. at 502-03. We therefore follow the mandate of
Bose and make an independent review of the record on
the dispositive constitutional issue. Milkovich v. Lorain
Journal Co., __ U.S. __, 110 S. Ct. 2695, 2705 (1990).
The basis for Mr. Melton’s claim is the assertion Lt.
McBride publicized reports that Mr. Melton perjured him-
self. Were the facts that simple, the case would have a
different focus, but the simplification, in this instance,
leads to a distortion which unjustly controls the outcome.
To permit the distortion to stand, therefore, is wrong.
There are many controlling factors overlooked in the
plaintiff’s claim. First, Lt. McBride was not alone respons-
ible for the publication. The evidence is undisputed that
the first reporter who contacted him already knew about
the FBI’s accusations. Unfortunately, the source of that
information was not disclosed, but we do know the origi-
nal disclosure of the accusation did not come from Lt.
McBride.' Second, the published stories themselves
12 The significance of this fact is underscored by Codd.
There, in describing the name-clearing hearing mandated by
(Continued on following page)
App. 19
attribute disclosure of the defamatory reports to persons
other than Lt. McBride. More importantly, the disclosure
of the perjury accusation contained in The Daily Oklaho-
man story came in quotes from the spectral informants,
not from Lt. McBride. Third, all the statements made by
Lt. McBride were true. Mr. Melton was accused by the FBI
of having committed perjury, and the Oklahoma City
Police Department was investigating that accusation.
Fairly read in context, there is nothing contained in either
publication which suggests Lt. McBride or any other
defendant either accepted the accusation as true or
embraced it as his own.
Fourth, the plaintiff was never charged with perjury
by the Chief of Police, and the punitive action taken
against Mr. Melton had nothing to do with the FBI's
accusation. Indeed, even before the punitive action
against him went beyond the initial investigative stage,
the defendants had decided the accusation was without
substance. In fact, the issue of the perjury accusation
would not have arisen at all during the disciplinary proc-
ess without the disclosures made by those “other
(Continued from previous page)
Roth, the Court stated: “Only if the employer creates and dissemi-
nates a false and defamatory impression about the employee in
connection with his termination is such a hearing required.”
429 U.S. at 628 (citations omitted) (emphasis added). It is
impossible, in this case, to say the employer created the false
and defamatory impression when the original disclosure came
from unidentified sources. If there is a “bottom line,” as sug-
gested by the dissent, it is Codd’s use of the conjunctive requir-
ing the employer to “create and disseminate[ ]” the false
impression. The dissent is willing to overlook that pregnant
conjunctive.
App. 20
sources” to the press. Moreover, Mr. Melton was never,
and could never have been, called upon to defend himself
against the FBI’s accusation because that accusation was
not an issue. Indeed, Mr. Melton admitted he knew at the
hearing he was only « ‘arged with violation of the Code
of Ethics.
Of the circumstances obscured in plaintiff's claim,
two are most critical. First, the statements attributed to
Lt. McBride and published in the Oklahoma City press
are deprived of any stigmatization by Codd because noth-
ing Lt. McBride reported was false. Moreover, even
though Lt. McBride reported the unfounded accusations
of the FBI, there is no evidence that he did so maliciously,
recklessly, or with any harmful intent. Neither is there
any evidence that he adopted those accusations as his
own or as those of the Oklahoma City Police Department.
Second, the defendants did not “charge” Mr. Melton with
having perjured himself.'*
13 The dissent contends it is significant that the police
department failed to follow its own operating manual and
make a formal determination of the FBI accusation. In the
context of this case, that technical default really has no signifi-
cance. It is undisputed that the department in fact made a
determination that the accusation was groundless, and that
determination was made before the hearing was held. It cannot
be contended under these circumstances that the false accusa-
tion had any bearing on the disciplinary process. More impor-
tantly, as we have already noted, Codd’s requirement of a
factual dispute between the employer and employee (see p. 14,
supra) cannot be satisfied when both parties are in agreement
that the false accusation is indeed false.
App. 21
B.
Codd does not establish a hardbound rule that truth is
a complete defense to every liberty interest claim of the
nature asserted by Mr. Melton. Yet, we believe, in
instances such as this case, where there is no evidence of
duplicity behind truthful reports, Codd exonerates the
person making the report.'4 To determine whether a
report is truthful, however, the court must view a pub-
lication in its entirety. We reach this conclusion from the
direction taken by the Supreme Court in cases involving
the conflict between the right of free speech and charges
of defamation. In Milkovich, 110 S. Ct. 2695, the Court's
own review of those cases led the Court to strongly imply
14 We have also held that falsity is an element of public
employee’s liberty interest claim. Rich v. Secretary of the Army,
735 F.2d 1220, 1227 (10th Cir. 1984) (quoting Asbill v. Housing
Auth. of Choctaw Nation, 726 F.2d 1499, 1501 (10th Cir. 1984));
see also Derstein v. State of Kan., 915 F.2d 1410, 1414 (10th Cir.
1990).
Looking for parallels in state common law, we find that the
literal truth of a report is a bar to a defamation action. Bahr v.
Ettinger, 745 P.2d 807, 808 (Or. App. 1987); Rosales v. City of
Eloy, 593 P.2d 688, 690 (Ariz. App. 1979). Some courts, how-
ever, have recognized that a literally true statement, when
considered in context, can lead to false impressions which
create liability for defamation. The distinction between those
reports which are actionable and those which are not is what
the reporter intends and what the average reader perceives
from the report. See Lyons v. Rhode Island Publishing Employees
Council 94, 516 A.2d 1339, 1343-45 (R.I. 1986). Thus, one who
reports a fact with the intent that it be understood as defaming
may be guilty of stigmatization that would support a liberty
interest claim. See Martin v. Wilson Pub. Co., 497 A.2d 322 (R.1.
1985). That, however, is not the evidence in this case.
| ; |
App. 22
that whether a publication is defaming is not to be deter-
mined from a single sentence, but rather from the content
of a complete statement. In Milkovich, the plaintiff
brought a state court action for defamation contending an
article authored by the defendant contained a false accu-
sation that plaintiff had committed an act of perjury.
Analyzing the publication, the Court stated:
The dispositive question in the present case then
becomes whether or not a reasonable factfinder
could conclude that the statements in the [pub-
lication] imply an assertion that petitioner Milk-
ovich perjured himself in a judicial proceeding.
We think this question must be answered in the
affirmative. As the Ohio Supreme Court itself
observed, “the clear impact in some nine sen- ”
tences and a caption is that [Milkovich] ‘lied at
the hearing after... . having given his solemn
oath to tell the truth.’ ” (citation omitted). This
is not the sort of loose, figurative or hyperbolic
language which would negate the impression
that the writer was seriously maintaining peti-
tioner committed the crime of perjury. Nor does
the general tenor of the article negate this
impression.
Id. at 2707. We believe this analysis requires us to view
the sentence in the Oklahoma City Times in which Lt.
McBride reported the FBI accusation in the context of the
entire article. When we do this, we perceive that Lt.
McBride neither accepted the FBI accusation as true, nor
did he, himself, accuse Mr. Melton of perjury. Nor can it
be presumed a reasonable reader would believe from the
content of the article that either Lt. McBride or the other
defendan.s had accused Mr. Melton of perjury. Further-
more, because the only disclosures contained in the arti-
cle in The Daily Oklahoman which refer to the perjury
accusations are attributed to “other knowledgeable
sources” and not Lt. McBride, a fair reading of that article
in no way implicates any of the defendants with the so-
called stigmatizing statements.'»
<.
Of equal importance is the fact that Mr. Melton was
not “charged” by the defendants with conduct which
implicated his morality, honesty, or integrity. Plaintiff
contends that the mere reporting of the FBI accusation
constituted an actionable “charge,” but we do not agree.
We believe a distinction must be drawn between the
mere reporting of a claim made by someone and the
adoption of that claim as a basis for punitive action
against a public employee. We also believe the Supreme
Court’s use of the word “charge” in those cases from
which the liberty interest claim has evolved is neither
inadvertent nor insignificant.
Indeed, the genesis of the liberty interest claim is
action taken by a public employer against a public
employee. In Owen v. City of Independence, Mo., 445 U.S
622, 634 n.13 (1980), the Court, commenting upon Roih,
stated:
'5 The dissent appears to be willing to assume the public
in Oklahoma City notwithstanding would have believed to the
contrary. This assumption seems based upon the testimony of
one police officer that the “law enforcement community”
believed Mr. Melton was discharged for perjury. There is noth-
ing in the evidence, however, to suggest any public perception
of that result.
App. 24
[Wle explained that the dismissal of a govern-
ment employee accompanied by a “charge
against him that might seriously damage his
standing and associations in his community”
would qualify as something “the government is
doing to him,” so as to trigger the due process
right to a hearing at which the employee could
refute the charges and publicly clear his name.
This explanation makes clear that a “charge” is simply
another way of referring to “something the government is
doing [to the public employee].” The reverse of this con-
struct is that if the government does nothing to the
employee, the employee has no grounds for a liberty
interest claim. For that reason, the Court concluded stig-
matization without a punitive action against a public
employee will not violate a protected liberty interest. Paul
v. Davis, 424 U.S. at 710. Thus, we conclude that to qualify
as a “charge” within the context of Roth, a stigmatizing
statement must be the basis of punitive action taken by a
public entity against one of its employees.
Because the defendants in this case took no action
against Mr. Melton that was even impliedly the product
of the false accusation of perjury, there was no “charge”
of perjury made by the defendants. Neither was there an
issue involved in the disciplinary process that would
have permitted Mr. Melton a vehicle to clear his name of
that accusation. Without such an issue, Codd implies the
liberty interest name-clearing hearing is not required.
There, the Court stated:
[I]f the hearing mandated by the Due Process
Clause is to serve any useful purpose, there
must be some factual dispute between an
employer and a discharged employee which has
App. 25
some significant bearing on the employee’s rep-
utation.
429 U.S. 627. In this case, there was no factual dispute
between Mr. Melton and the defendants over the question
of perjury. Indeed, the evidence is quite clear the defen-
dants concluded at an early stage of the proceeding that
It is a
simple fact that the FBI accusation was neither considered
the accusation arose from a “misunderstanding.’
relevant by the defendants in their decision to discipline
Mr. Melton, nor a reason for his dismissal.
As we noted in Miller, “[w]hen the termination [of a
public employee] is accompanied by public dissemination
of the reasons for dismissal, and those reasons would
stigmatize” the employee, the concept of liberty is impli-
cated. 705 F.2d at 373. Without either a factual dispute
over the accusations or an adoption of those accusations
as “the reasons for dismissal,” a name-clearing hearing
would have been without significance.
We must, therefore, conclude that the mere reporting
of the defamatory accusations of a third party will not
make governmental agencies or governmental officials
liable for the deprivation of a protected liberty interest
That conclusion dges not hold, however, if the govern-
mental entity overtly or impliediy adopts those defama-
tory accusations as the basis for punitive action against
an employee.
We made this conclusion plain in McGhee v. Draper,
564 F.2d 902 (10th Cir. 1977). In that case, a teacher was
not retained by the school board. Prior to the board’s
decision, however, the teacher had been made the subject
of public accusations of allegedly immoral conduct.
App. 26
Those accusations were aired at a public hearing of the
board and were the subject of comments by a board
member. Unfortunately, those accusations were
unfounded. Following the hearing, without explanation,
the board decided not to renew the teacher’s contract.
There being no evidence that the board eschewed the
unfounded accusations, it is clearly inferable that a sig-
nificant reason for its decision was the board’s adoption
of the accusation of the teacher was guilty of immoral
conduct.'© We therefore held the evidence supported a
16 The dissent minimizes our distinction of this case from
McGhee, brushing aside our analysis as “Tweedledee and
Tweedledum.” However, the factual distinctions cannot be so
easily ignored. Those distinctions are found in these factual
recitations from McGhee:
In November, 1973, [plaintiff] was called to a board
meeting where several persons made some accusa-
tions against her. One man called her a “sexpot” and
said she taught sex in the classroom; his wife made
similar comments and said she was unfit to teach
students; another couple said she was immoral, her
conduct was not fit and that she was unfit to teach
students; another man called her a liar.
McGhee, 564 F.2d at 906.
On April 3 Superintendent Draper asked plain-
tiff to come to a board meeting that night. When she
arrived students were being interviewed by the
board, . . . Plaintiff went in last. Mr. Draper asked
her if the book, “The Angel Inside Went Sour,” was
hers. [The book allegedly contained pornographic
material.] She said it was not, that she had not seen
it, and had not put it in the classroom. Mr. Draper
replied that they had affidavits stating that David
Hendren checked it out of her classroom.
(Continued on following page)
App. 27
claim for deprivation of a protected liberty interest. Ir
(Continued from previous page)
On April 5 the board met again without any
notice or request that plaintiff appear. The minutes
of that meeting state that a resolution was passed
unanimously that plaintiff’s contract be discontinued
as of June 30, 1974,
Thus, the letter and minutes from the board
made no specific charges or findings against plain
tiff. However, the minutes of the meeting on April 2
noted the appearance of a large group of protesting
patrons, students statements about the book the
discussions on April 3 by Superintendent Draper
with four students about the book matter,
at 907.
At the May 6 hearing, plaintiff’s attorney
inquired whether the book was the reason for plain
tiff’s discharge. Mr. Draper replied they would have
75 people the next night if the board “rescinded
itself” and that they had to work with public opin
ion. Plaintiff's counsel asked defendant Billups la
board member] if he knew anything about plaintiff's
moral character, and Billups replied he knew enough
to make him “sick.”
There was a statement by Superintendent
Draper that he recommended that the Board reverse
itself “because of the book,” and that he was con
vinced that one book had been sold by plaintiff
which a teacher should not be selling. There were
(Continued on following page)
this case, however, the evidence is completely contrary to
App. 28
the inference that the unfounded accusations played any
part in Mr. Melton’s discipline. Additionally, in McGhee,
there is no dispute that the employer disseminated the
defamatory accusations. We said, “The Superintendent
said about 200 copies of the minutes [containing the
accusations] were duplicated and that ‘we put them out
to the public.’” McGhee, 564 F.2d at 910. Despite the
notions of the dissent, McGhee is so factually distinguish-
able from this case that it is inapposite.
In structuring the parameters of constitutional guar-
antees, we must be mindful that our zeal for the protec-
tion of individual rights does not lead us to absurd
conclusions. To hold here that the defendants were
required to provide Mr. Melton with a hearing to clear his
name from accusations neither made nor adopted by
these defendants, or as seemingly suggested by the dis-
sent, a name-clearing news conference, would be just
such an absurdity.
(Continued from previous page)
some responses by board members suggesting moral
improprieties, but there was no charge or finding
identified as the basis of the board’s actions.
Id. at 908 (footnotes omitted).
It is true that the board’s letters and resclutions
stated no charges or findings. Nevertheless, the
board’s minutes focused attention on the allegedly
pornographic materials . . . and affidavits held by the
board charged misconduct with male students and
drunkenness, all of which plaintiff denied.
Id. at 910.
App. 29
That portion of the judgment of the district court
entered in favor of plaintiff on his liberty interest claim is
VACATED. The case is REMANDED with instruction to
enter judgment for the defendants on that claim.
Nos. 85-1738, -1739, -1740, -1741, -1742, -1811, MELTON v.
CITY OF OKLAHOMA CITY, et al.
LOGAN, Circuit Judge, with whom MCKAY and
SEYMOUR, Circuit Judges, join, dissenting:
This court granted en banc review limited to four
issues which arise in liberty interest claims in an employ-
ment context, as follows:
“(1) Whether the district court committed plain
error in instructing the jury that a liberty inter-
est may be violated by charges which ‘would
stigmatize the employee’s reputation or fore-
close future employment opportunities’?
(2) Whether the district court committed plain
error in failing to instruct the jury that before a
liberty interest may be infringed, the charges
must be found to be false?
(3) Whether the plaintiff was entitled to a name-
clearing hearing complete with the right to con-
front and cross-examine witnesses before the
disciplinary review board, assuming dissemina-
tion of the perjury charges deprived plaintiff of
a liberty interest?
(4) Further assuming plaintiff is entitled to some
sort of a hearing, need it be pre-termination, or
would some post-termination hearing or name-
clearing opportunity be adequate?”
Melton v. City of Oklahoma City, 888 F.2d 724, 725 (10th Cir.
1989). We intended to clear up confusion arising out of
our prior decisions for the benefit of the district courts
App. 30
and future panels of this court. The majority opinion,
however, reverses the panel opinion and the judgment
below on the basis of an issue never discussed in either
the majority or the dissenting panel opinion, see Melton v.
City of Oklahoma City, 879 F.2d 706 (10th Cir. 1989), or
briefed or argued in the en banc rehearing.
The majority perceives an injustice to the defendants
and is determined to remedy that injustice, despite the
fact doing so prevents the en banc court from reaching
many of the problems it intended to resolve. Folklore has
it that one of the ancients on our court once declared,
“When this court starts out to do justice, all Hell can’t
stop it!” I wish I could agree that the majority does justice
in the case before us.
I
A
Insofar as the court determines that the “stigmatiza-
tion-or-foreclosure-of-future-employment” instruction
was erroneous, I agree. Although the majority uses “and”
in its statement of the proper rule, the opinion does not
hold that the terminated employee must prove both stig-
matization and foreclosure of future employment. I would
give the district courts more guidance on this issue, how-
ever, than does the majority.
Parsing the relevant statements in the United States
Supreme Court cases | am satisfied that “stigmatization”
sufficient to warrant recovery occurs when a charge
might “seriously” damage the discharged employee's
community standing and associations — e.g., dishonesty or
App. 31
immorality. Board of Regents v. Roth, 408 U.S. 564, 573
(1972). While Roth also mentions charges that put the
employee’s “good name, reputation, honor, or integrity”
at stake, id., clearly it is speaking in terms of high level
stigma that might affect future employment oppor-
tunities. See Paul v. Davis, 424 U.S. 693, 697 (1976); Bishop
v. Wood, 426 U.S. 341, 348 (1976); Codd v. Vegler, 429 US.
624, 630 (Brennan, J., dissenting) (1977), id. at 633, 637-38
(Stevens, J., dissenting); Owen v. City of Independence, 445
U.S. 622, 661-62 (Powell, J., dissenting) (1980) (the pivotal
question after Roth is whether the charges “so blackened
the employee’s name as to impair his liberty interest in
his professional reputation.”). Charges are not stigmatiz-
ing enough to rise to a constitutionally protected liberty
interest unless they involve allegations of dishonesty,
immorality, or unprofessional or illegal conduct of the
type that would be expected to seriously diminish
employment opportunities. Charges of poor job perform-
ance, negligence, tardiness, or even insubordination,
would not rise to the level of a violation of a protected
liberty interest.!
' Most of the Tenth Circuit decisions related to employ-
ment are consistent with this analysis: See Conaway v. Smitk,
853 F.2d 789, 794 (10th Cir. 1988) (charges of neglect of duties
and insubordination not stigmatizing); Sullivan v. Stork, 808
F.2d 737, 739 (10th Cir. 1987) (charges of being negligent or
derelict in performing duties not stigmatizing); Ewers v. Board
of County Comm'rs, 802 F.2d 1242, 1249 (10th Cir. 1986), cert
denied, 484 U.S. 1008 (1988), reh’d on other grounds, 874 F.2d 736
(10th Cir. 1989) (charges that the employee “padded the books”
and “dragged out” cooperative jobs stigmatizing); Bailey v.
Kirk, 777 F.2d 567, 580 (10th Cir. 1985) (accusation of misap-
propriation of police property sufficiently stigmatizing); Sipes
(Continued on following page)
App. 32
I believe a fair implication from the Supreme Court
decisions is that the discharged employee does not have
(Continued from previous page)
v. United States, 744 F.2d 1418, 1422 (10th Cir. 1984) (charges of
“being tardy, failing to schedule leave (noted as ‘lack of
reliance’), and for engaging in ‘horseplay’ ” not stigmatizing);
Walker v. United States, 744 F.2d 67, 69 (10th Cir. 1984) (per
curiam) (charges that employee lied on employment form stig-
matizing); Lentsch v. Marshall, 741 F.2d 301, 304 (10th Cir. 1984)
(charges of dishonesty stigmatizing); Martin v. Unified School
Dist. No. 434, 728 F.2d 453, 455-50 (10th Cir. 1984) (statement
that plaintiff’s contract was not renewed based “on occur-
rences this year and continuance of previous concerns” not
stigmatizing); Asbill v. Housing Authority of Choctaw Nation, 726
F.2d 1499, 1503 (10th Cir. 1984) (charge that employee chal-
lenged authority of new agency director not stigmatizing);
Stritzl v. United States Postal Service, 602 F.2d 249, 252 (10th Cir.
1979) (charges of slow work with poor work habits and low
productivity not stigmatizing); hut see Garcia v. Board of Educ. of
Sacorro Consol. School Dist., 777 F.2d 1403, 1419-20 (10th Cir.
1985), cert. denied, 478 U.S. 814 (1986) (claims that plaintiff
caused low staff morale and that he was difficult to work with
stigmatizing); Miller v. City of Mission, 705 F.2d 368, 373 (10th
Cir. 1983) (charges that police department “morale was very
low, the officers do not respect the Chief and Assistant Chief.
The department had deteriorated to an extend [sic] that the
men felt that they could not work effectively with the Chief
and Assistant Chief” stigmatizing).
Most other circuit decisions are also consistent with this
view of the law. The Ninth Circuit adheres to a “moral turpi-
tude” standard. Kraft v. Jacka, 872 F.2d 862, 870 (9th Cir. 1989)
(“The statements at issue must involve charges which rise to
the level of ‘moral turpitude;’ ‘charges that do not reach this
level of severity do not infringe constitutional liberty inter-
ests.’ ”) (quoting Bollow v. Federal Reserve Bank of San Francisco,
650 F.2d 1093, 1101 (9th Cir. 1981), cert. denied, 455 U.S. 948
(1982)). See also Finkelstein v. Bergma, 881 F.2d 702, 704 (9th Cir.
(Continued on following page)
App. 33
to prove that he tried and was unable to get a job. I would
overrule Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.
(Continued from previous page)
1989) (charges that plaintiff gained access to confidential per-
sonnel files in an unauthorized, underhanded, and perhaps
illegal manner held stigmatizing). The Fifth Circuit has at times
used the “badge of infamy” standard. See Evans v. City of
Dallas, 861 F.2d 846, 851 (5th Cir. 1988); see generally Rosenstein
v. City of Dallas, 876 F.2d 392, 395 n.2 (Sth Cir. 1989), opinion
reinstated in part, 901 F.2d 61 (5th Cir.) (en banc), cert. denied,
111 S. Ct. 153 (1990). See also Green v. St. Louis Housing Author-
ity, 911 F.2d 65, 70 (8th Cir. 1990) (charges of unsatisfactory job
performance insufficient); Hannon v. Turnage, 892 F.2d 653, 660
(7th Cir. 1990), cert. denied, 111 S. Ct. 69 (1990) (statements that
plaintiff was no longer employed in connection with licensing
problems at the VA hospital insufficient); Chabel v. Reagan, 841
F.2d 1216, 1223 (3d Cir. 1988) (charge that employee acted “on -
his belief that he was duty-bound to follow the directives of
the judges of his district rather than the contrary order of his
superior in Washington” not stigmatizing); Brandt v. Board of
Cooperative Educatioral Services, 820 F.2d 41, 44-45 (2d Cir. 1987)
(charges of sexual misconduct stigmatizing); Harrison v. Bowen,
815 F.2d 1505, 1518 (D.C. Cir. 1987) (false charge of unsatisfac-
tory job performance insufficient); Doe v. United States Dep't of
Justice, 753 F.2d 1092, 1110 (D.C. Cir. 1985) (charges of
unprofessional conduct and dishonesty stigmatizing); Hadley v.
County of Du Page, 715 F.2d 1238, 1245 (7th Cir. 1983), cert.
denied, 465 U.S. 1006 (1984) (charges of mismanagement not
stigmatizing); Blair v. Board of Regents, 496 F.2d 322, 324 (6th
Cir. 1974) (dismissal for failure to meet minimum standards
not stigmatizing). But see Doe v. Chaney, 885 F.2d 898, 909-10
(D.C. Cir. 1989) (charge that employee was a security risk not
stigmatizing); Huntley v. Community School Bd. of Brooklyn, 543
F.2d 979, 985 (2d Cir. 1976) (charges of poor and ineffective
leadership stigmatizing), cert. denied, 430 U.S. 929 (1977);
Greenhill v. Bailey, 519 F.2d 5, 8 (8th Cir. 1975) (charges plaintiff
was dismissed for lack of intellectual ability stigmatizing);
(Continued on following page)
App. 34
1988); Ewers v. Board of County Comm'rs, 802 F.2d 1242,
1249 (10th Cir. 1986), cert. denied, 484 U.S. 1008 (1988),
reh’d on other grounds, 874 F.2d 736 (10th Cir. 1989); Sipes v.
United States, 744 F.2d 1418, 1422 (10th Cir. 1984), and any
other of our cases to the extent they may be read to
impose a requirement that a plaintiff must recite an actual
frustrated job search to warrant relief. The Roth dicta
indicates that if an employer invoked a rule prohibiting a
discharged employee’s employment by any state institu-
tion or participated in a “blackbali” practice with other
employers, this would constitute an alternative ground
for relief.
B
In cases with undisputed facts, I agree with the
majority that the court must decide whether the state-
ments made were sufficiently stigmatizing to implicate a
liberty interest. Supreme Court decisions appear to treat
the question whether the statements were sufficiently
stigmatizing to violate a liberty interest as an issue of law
for the court to determine. This approach seems implicit
in the Roth Court’s statement that mere nonretention of a
nontenured professor does not amount to a deprivation
of liberty, although it no doubt would foreclose some
employment opportunities. 408 U.S. at 574 n.13. See also
(Continued from previous page)
Adars v. Walker, 492 F.2d 1003, 1008 (7th Cir. 1974) (charges of
incompetence, neglect of duty and malfeasance in office not
stigmatizing); Jeffries v. Turkey Run Consol. School Dist., 492 F.2d
1, 2-3 (7th Cir. 1974) (dismissal for highly unethical conduct
not stigmatizing).
[te ht ins
App. 35
Bishop, 426 U.S. at 347-48. In Codd the Court appeared
ready to decide for itself whether a report was stigmatiz-
ing, had it been alleged to have been false. 429 U.S. at
626. See also Owen, 445 U.S. at 633 n.13. In most of the
lower court decisions | have examined the courts have
determined for themselves whether allegedly false
charges rose to the level of a “liberty” interest; and when
reviewing a decision in which a jury found a liberty
interest was violated the appellate courts have given no
apparent deference to the jury’s determination on this
issue.
Thus, I agree that the district court erroneously held
that the allegedly false charges arose to the liberty inter-
est level if they stigmatized the employee's reputation
“or” foreclosed future employment opportunities. The
first half of the instruction is a correct statement of the
law, but the second half as written would permit recovery
for foreclosure of future employment opportunities with-
cut establishing stigmatization. Unless the employer is
somehow engaged in blackballing the employee, fore-
closure of employment opportunity without proof of stig-
matization is not actionable. Because the relevant facts in
the instant case were undisputed, and only the inferences
and legal conclusions to be drawn from those facts were
in issue, | agree with the majority that the court also erred
in submitting the stigmatization issue to the jury. Unlike
the majority, however, | would find the error was harm-
less because the jury found for Melton and the district
court, had it determined the issue as a matter of law,
should have concluded that defendants were sufficiently
responsible for dissemination of stigmatizing charges to
support Melton’s claim for damages.
App. 36
The majority’s bottom line is that defendants merely
responded to information dug up by the media, that they
did not make untrue statements - “Melton was accused
by the FBI of having committed perjury, and the Okla-
homa City Police Department was investigating,” slip op.
at 17; and the punitive action against Melton “had noth-
ing to do with the FBI’s accusation.” Id. I believe this is
too simplistic.
The majority states some facts differently and omits
others that I think are relevant and important to our
resolution of this issue. The letter Lt. Carl Smith gave
Melton concerning the investigation he was conducting
for the Oklahoma City Police Department stated, “You
are... accused of making perjured statements both in a
sworn affidavit on a motion to dismiss filed by defense
counsel, and during testimony you gave from the witness
stand during the trial.” Pl. exh. 48. The police department
operations manual number 9.01 states expressly that com-
plaints of misconduct by a police department employee,
“whether from a private citizen or from another
employee, will be fully investigated and the results
reported to both the complainant and the accused
employee.” Pl. exh. 53. When the investigation is com-
plete, that manual requires a finding of one of four desig-
nations: “unfounded,” “exonerated,” “not sustained,” or
“sustained.” Id. Melton was interviewed and a fuil inves-
tigation was made, with a formal written report by Lt.
Smith delivered to the internal affairs unit. The Disciplin-
ary Review Board considered the report; the perjury issue
was on its hearing agenda. The Board recommended
Melton’s termination but made no finding with respect to
the perjury charge. See Pl. exh. 61. Melton was never
ed
App. 37
given an opportunity before the board to address the
perjury charges.
Quoting “knowledgeable sources,” the Daily Oklaho-
man published an article on September 8 stating that
Melton was “being investigated, among other things, for
purportedly committing perjury during Page’s trial.” PI.
exh. 49. Although this article focused primarily on the
fact that Melton had given a tape recording of his conver-
sation with a prosecutor to defense counsel for judge
Page, it mentioned that “[p]rosecutors attempted to prove
that Melton regularly shared confidential investigative
information with Page, who then allegedly shared the
information with underworld figures.” Id. In its recital of
the Oklahoma City Times article of an interview with Lt.
David McBride, which discussed the police department's
internal investigation of Melton, the majority opinion
leaves out the following:
“McBride said it was unusual for the inter-
nal affairs division to investigate the perjury
allegation.
‘Normally, alleged criminal violations don’t
go through the internal affairs division,’ he said.
‘But since there already was an internal affairs
investigation about specific policy violations,
the federal prosecutors chose to go ahead and
let us do that.’ ”
Pl. exh. 50.
The following day the Times had an editorial com-
mending the police administration for investigating
Melton and another officer who testified on behalf of
Judge Page. It recited that the other officer had resigned
while under investigation for “allegedly fraternizing with
App. 38
known criminals.” Pl. exh. 52. It then stated, “Melton, a
20-year police veteran, is being investigated for possible
violations of police conduct guidelines stemming from an
active role in helping prepare Page's defense.” Id. After
Melton was fired, the Sunday Oklahoman carried an article
on officers who had been dismissed from the Oklahoma
City police force “who have been suspected of or found
guilty in some wrongdoing. ...” Pl. exh. 62, X R. 279-80.
The article mentioned only that Melton had been termi-
nated for violating the police department’s code of ethics.
There was direct testimony, however, that the law
enforcement community believed that Melton was dis-
charged for perjury as well as cooperation with Page’s
defense counsel. See X R. 227 (testimony of Larry Van
Shuyver).
There is no magic in the source of stigmatizing
charges if the employer either adopts them or furthers
their stigmatizing effect. No doubt quite often they origi-
nate with others such as the FBI, or even in rumors and
gossip. See, e.g., Eames v. City of Logan, 762 F.2d 83, 84
(10th Cir. 1985) (“rumors of criminal misconduct”);
McGhee v. Draper, 564 F.2d 902, 904 (10th Cir. 1977)
(McGhee I) (“rumors and gossip in the community”);
Lyons v. Barrett, 851 F.2d 406, 408 (D.C. Cir. 1988) (another
employee’s accusations of sexual misconduct and misuse
of government telephones). In each of the cases cited
immediately above the liberty interest became an issue
because of public knowledge of the allegations, and
because the employer investigated the charges and then
discharged the employee; in none of them did the
employer give as a reason for discharge that it found the
charges to be true. Rather, the employer gave either no
App. 39
reason or a different reason for the employee’s termina-
tion. Nevertheless, the confluence of stigmatizing rumors
or accusations in public circulation, combined with inves-
tigation and discharge created a public impression that
the discharge was related to the charges. Accordingly, the
employer was held to have a duty to give a name clearing
hearing. This circuit recognized in McGhee v. Draper, 639
F.2d 639 (10th Cir. 1981) (McGhee II), that the employer
need not explicitly state stigmatizing factors, but may
“implicitly ratify some other stigmatizing allegations.
Thus, the dismissal will either cause or contribute to the
alleged defamation.” Id. at 643 (emphasis added). See also
Wulf v. City of Wichita, 883 F.2d 842, 869 n.35 (10th Cir.
1989).
The reasoning of other courts confirms that a liberty
interest violation may occur although an employer’s ten-
dered reasons for dismissing an employee do not include
an explicit accusation of any wrongdoing. It is enough
that the employer’s actions create an impression that is
stigmatizing. For example, in Fraternal Order of Police v.
Tucker, 868 F.2d 74 (3d Cir. 1989), the Third Circuit stated:
“When a police department announces to
the media that it has information sufficient to
occasion an investigat on of on-duty drug use,
that in this context the officer under investiga-
tion refused urinalysis, and that the Department
considered the overall situation such as to war-
rant dismissal, other law enforcement agencies
are unlikely to consider the officer for other
employment because, at least without more
information than that reported, they will con-
clude that the officer is more likely than not
guilty as charged. Accordingly, if the plaintiffs
had alleged and proved in this case that they
App. 40
had not used drugs behind the Cobb Creek Park
tennis courts or that they had substantial evi-
dence to tender at a hearing in support of such
an allegation, they, at least arguably, would have
made out a stigmatization case under the Due
Process Clause.”
Id. at 83. Similarly, in Rodriguez de Quinonez v. Perez, 596
F.2d 486 (1st Cir.), cert. denied, 444 U.S. 840 (1979), the
First Circuit stated:
“Clearly, furthermore, there was serious ‘stigma’
here. The very act of removal under this statute
necessarily brings into question the directors’
integrity. The statutory grounds for removal,
phrased in the conjunctive, require a determina-
tion by the Secretary that ‘there is evidence
... that such [statutorily enumerated] violation
or failure is one involving personal dishonesty.’
It is true that, strictly read, the statute does
not require an official determination or charge
of dishonesty, but only a finding that there is
sufficient ‘evidence’ of dishonesty to warrant
invoking the statute. This superfine distinction
would have little practical effect, however, in
reducing the clear imputation of dishonesty
flowing from removal under this statute. We
thus think that removal [under the statute]
affects a liberty interest requiring due process
safeguards.”
Id. at 489-90 (footnote omitted). Finally, in Cox v. Northern
Virginia Transp. Comm'n, 551 F.2d 555 (4th Cir. 1976), the
Fourth Circuit stated:
“The commission defends on the ground
that there is no proof that its officers expressly
told reporters that Mrs. Cox was dishonest or
immoral. It says that, instead, the reporters were
told that she was incompetent and failed to
establish good relations with the staff.
App. 41
These comments, however, did not dispel
the effect of the commissioners’ published state-
ments linking Mrs. Cox’s discharge to the inves-
tigation of financial irregularities. Nor did the
absence of formal charges of wrongdoing lessen
the injury to her reputation that was caused by
the interviews the commissioners granted the
press. The opportunity of a discharged public
employee to get a new job may be hampered as
badly by official leaks to the press insinuating
dishonesty as by a published official reprimand.
In either event, therefore, the employee is enti-
tled to a hearing.”
Id. at 558.
The majority says McGhee I, our own decision, is
distinguishable. But to me it seems as like the case before
us now as Tweedledee and Tweedledum. In McGhee |
allegations of improper behavior by a nontenured teacher
did not originate with the school board which fired her
But the school board investigated these rumors in some
of its meetings, without making any direct resolution,
and it made public the minutes of its meetings in which
the accusations were mentioned. This court held that the
district court erred in directing a verdict in favor of the
defendant school board in that situation. McGhee I, 564
F.2d at 910.
1 would hold in the instant case that the police
department took accusations originating with the FBI,
dignified them by having a formal investigation, and
contributed to the public awareness of charges, which, if
not resolved, would severely damage Melton’s reputa-
tion. | would hold that although perjury was an issue on
the agenda of the Disciplinary Review Board hearing,
because no evidence was permitted with respect to it and
App. 42
no resolution was made, in violation of the department's
own regulations, the police department did too little to
remedy the public’s impression that Melton was a per-
jurer. | would hold that the police department’s
announcement that the firing of Melton was on a differ-
ent basis, without any comment on the perjury issue, in
the general context of the publicity surrounding the
police department's actions was insufficient to meet the
duty to dispel the stigma the department had helped
create. The fact the jury awarded punitive damages, as
well as actual damages, supports my perception that the
public would believe defendants stigmatized Melton.
I]
Finally, in order to establish whether my separate
opinion should be a concurrence in the court’s judgment
or a dissent, I believe that | must treat the other issues on
which we granted en banc rehearing.
A
The second issue for rehearing was whether the dis-
trict court committed plain error in failing to instruct the
jury that it must find that the stigmatizing charges were
false before finding that Melton was deprived of liberty.
As the majority notes, the Supreme Court has settled this
issue in Codd v. Velger, 429 U.S. 624 (1977). In dealing with
a liberty interest claim involving the discharge of a
policeman, the Court stated, “When we consider the
nature of the interest sought to be protected, we believe
the absence of any such allegation [of falsity] or finding is
fatal to [the officer’s] claim under the Due Process Clause
App. 43
that he should have been given a hearing.” Id. at 627.
Thus, a plaintiff must allege the falsity of the stigmatizing
charge, which Melton did in the instant case. | R. tab
1/9/84 at 8 (Complaint). The Supreme Court probably
would hold that the burden of proof of showing the
falsity of the allegations is upon the plaintiff. See Restate-
ment (Second) of Torts § 580B comment j, § 581A comment
b (1976). See also Rosenstein v. City of Dallas, 876 F.2d 392,
395 n.2 (5th Cir. 1989), opinion reinstated in part, 901 F.2d
61 (5th Cir.) (en banc), cert. denied, 111 S. Ct. 153 (1990).
The district court failed to include the element of
falsity in Instruction 7, treating explicitly Melton’s liberty
interest claim; defendants, however, did not object; and
the truth of the underlying charge of perjury was never
an issue at the trial, as the majority notes. Thus, the
court’s error in this instruction does not require reversal.
B
The district court instructed the jury that due process
required that Melton be given a pre-termination hearing
before an impartial tribunal, notice of the charges against
him, a reasonable time before the hearing, an opportunity
to be heard at a meaningful time and in a meaningful
manner, and an opportunity to have an attorney present
and to confront and cross-examine his accusers. I R. tab
141 at 16. The issues of pre- versus post-termination
hearing and the type of hearing required are necessarily
intertwined, and should be treated together. Again I think
the Supreme Court has resolved these issues.
In Roth the Supreme Court stated flatly that, “When
protected [liberty or property] interests are implicated,
App. 44
the right to some kind of prior hearing is paramount.” 408
U.S. at 569-70 (emphasis added). In an explanatory foot-
note, the Court elaborated as follows:
“Before a person is deprived of a protected
interest, he must be afforded opportunity for
some kind.of hearing, ‘excent for extraordinary
situations where some valid governmental inter-
est is at stake that justifies postponing the hear-
ing until after the event.’ Boddie v. Connecticut,
401 U.S. 371, 379. ‘While “[mJany controversies
have raged about .. . the Due Process
Clause,” . . . it is fundamental that except in
emergency situations (and this is not one) due
process requires that when a State seeks to ter-
minate [a protected] interest .. ., it must afford
“notice and opportunity for hearing appropriate
to the nature of the case” before the termination
becomes effective.’ Bell v. Burson, 402 U.S. 535,
542. For the rare and extraordinary situations in
which we have held that deprivation of a pro-
tected interest need not be preceded by oppor-
tunity for some kind of hearing, see [citations
omitted].”
Roth, 408 U.S. at 570 (emphasis in original). Justice
Stevens, in his dissent in Codd, 429 U.S. at 633, quoted
Roth as standing for the proposition that “the Constitu-
tion mandates ‘a full prior hearing’ ” if a charge involves
deprivation of a liberty interest. See also id. at 633 n.3, 634.
Nevertheless, in Arnett v. Kennedy, 416 U.S. 134 (1974)
(plurality opinion), then Justice Rehnquist, speaking only
for himself, Chief Justice Burger and Justice Powell, dis-
tinguished the liberty interest in a discharge case from
“the elemental freedom from external restraint,” id. at
157, and stated:
App. 45
“that liberty is not offended by dismissal from
employment itself, but instead by dismissal
based upon an unsupported charge which could
wrongfully injure the reputation of an
employee. Since the purpose of the hearing in
such a case is to provide the person ‘an oppor-
tunity to clear his name,’ a hearing afforded by
administrative appeal procedures after the
actual dismissal is a sufficient compliance with
the requirements of the Due Process Clause.”
Id. (emphasis added).
The Supreme Court later revisited the issue of pre-
versus post-termination hearings in Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. 532 (1985), in which it overruled
Arnett in part. In Loudermill the Court addressed this
issue in the context of a deprivation of a property right to
employment, not liberty, see id. at 547 n.13, but I believe
its holding is applicable to liberty interest claims as well.
See Zinermon v. Burch, 110 S.Ct. 975 (1990) (requiring pre-
deprivation hearing in liberty interest case of allegedly
incompetent mental patient). The Court held in Louder-
mill:
“the Due Process Clause provides that certain
substantive rights — life, liberty, and property -
cannot be deprived except pursuant to constitu-
tionally adequate procedures. The categories of
substance and procedure are distinct. Were the
rule otherwise, the Clause would be reduced to
a mere tautology. ‘Property’ cannot be defined
by the procedures provided for its deprivation
any more than can life or liberty. The right to
due process ‘is conferred, not by legislative
grace, but by constitutional guarantee... . ‘”
App. 46
An essential principle of due process is that
a deprivation of life, liberty, or property ‘be
preceded by notice and opportunity for hearing
appropriate to the nature of the case.’ Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306,
313 (1950). We have described ‘the root require-
ment’ of the Due Process Clause as being ‘that
an individual be given an opportunity for a
hearing before he is deprived of any significant
property interest.’ Boddie v. Connecticut, 401 U.S.
371, 379 (4971) (emphasis in original); see Bell v.
Burson, 402 U.S. 535, 542 (1971). This principle
requires ‘some kind of a hearing’ prior to the
discharge of an employee who has a constitu-
tionally protected property interest in his
employment.”
Loudermill, 470 U.S. at 541-42 (footnote omitted).
After reviewing the considerations that justify a pre-
termination hearing the Court stated:
“The foregoing considerations indicate that
the pretermination ‘hearing,’ though necessary
need not be elaborate. We have pointed out that
‘[t]he formality and procedural requisites for the
hearing can vary, depending upon the impor-
tance of the interests involved and the nature of
the subsequent proceedings.’ Boddie v. Connecti-
cut, 401 U.S., at 378. See Cafeteria Workers v.
McElroy, 367 U.S. 886, 894-895 (1961). In general,
‘something less’ than a full evidentiary hearing
is sufficient prior to adverse administrative
action. ...
... Here, the pretermination hearing need
not definitively resolve the propriety of the dis-
charge. It should be an initial check against mis-
taken decisions —- essentially, a determination of
whether there are reasonable grounds to believe
that the charges against the employee are true
and support the proposed action.
App. 47
The essential requirements of due process,
and all that respondents seek or the Court of
Appeals required, are notice and an opportunity
to respond. The opportunity to present reasons,
either in person or in writing, why proposed
action should not be taken is a fundamental due
process requirement. The tenured public
employee is entitled to oral or written notice of
the charges against him, an explanation of the
employer’s evidence, and an opportunity to pre-
sent his side of the story. To require more than
this prior to termination would intrude to an
unwarranted extent on the government’s inter-
est in quickly removing an unsatisfactory
employee.”
Loudermill, 470 U.S. at 545-46 (citations omitted).
In approving a less than full pre-termination hearing
- one without a right to representation by an attorney or
to cross-examine adverse witnesses — the Court explicitly
relied upon a state statute which gave such rights post-
termination: “Our holding rests in part upon the provi-
sions in Ohio law for a full post-termination hearing.” Id.
at 546; see also id. at 547 n. 12.
Following the reasoning of Loudermill, | would hold
that a pre-termination hearing is required when charges
have been made public or are intended to be released to
the public at termination, and the charges are sufficiently
serious to rise to the level of a liberty interest. Provided
that a “full” post-termination hearing is available if
requested by the employee, with the right to representa-
tion by an attorney and to present evidence and to
confront and cross-examine witnesses who have made the
accusations, I would hold that the pre-termination
App. 48
hearing may be limited as described in Loudermill.? That
is, it may consist of notice, an explanation of the
employer’s evidence, and an opportunity to respond, in
person or in writing, to the charge against the employee
before final action is taken by the empioyer.
Our case law has required a pre-termination hearing
when liberty interests are implicated, see, e.g., Richardson
v. City of Albuquerque, 857 F.2d 727, 731 (10th Cir. 1988);
Walker v. United States, 744 F.2d 67, 70-71 (10th Cir. 1984).
To the extent those cases may be read to require more
than is stated above, they should be overruled.
Applying this analysis to the case at hand, | believe it
was error to give a jury instruction that a full scale
adversarial pre-termination hearing was constitutionally
required. But the error was harmless. Melton received
notice but was given no pre-termination opportunity to
confront the employer’s evidence on the perjury charge.
He was given no chance to address the accusation that he
had lied under oath in the affidavit and at trial. The
reason, apparently, was that the employer had decided
that the perjury allegation was untrue, and it did not
intend to rely upon it to terminate Melton. See XII R. 694.
But the charge had been made public, and Melton was
entitled to an equally public statement of his innocence, if
the charge was admittedly false. That he did not get.
Thus, Melton was denied the procedural process due
him.
2 A city council, school board, or, as here, a police disci-
plinary review board, would be a proper adjudicator providing
its membership is composed only of those who have the capac-
ity to make a neutral or unbiased decision.
App. 49
In conclusion, I would affirm the ceiclusion of the
panel opinion that no retrial is warranted on the liberty
interest claim.
App. 50
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
RAYMON J. MELTON,
Plaintiff-Appellee/
Cross-Appellant,
VS.
CITY OF OKLAHOMA CITY, a
municipal corporation, LLOYD A.
GRAMLING, Chief of Police for wee. Stee
/ , 85-1739
the City of Oklahoma City, 85-1740
GERALD L. EMMETT, Assistant 85-1741
Chief of Police for the City of 85-1742
Oklahoma City, MARVIN 85-1811
MAXWELL, Major, Oklahoma City
Police Department, WILLIAM R.
CHAMBLESS, Major, Oklahoma
City Police Department, CARL
SMITH, Lieutenant, Oklahoma City
Police Department, ROBERT
TAYLOR, Lieutenant, Oklahoma
City Police Department, DAVID
MCBRIDE, Lieutenant, Oklahoma
City Police Department, and
PAULA HEARN, Assistant to the
City Manager,
Defendants-A ppellants /
Cross-Appellees.
ee ee ee ee ee eo ee ee ee ee ee ee ee ee
ORDER FOR REHEARING EN BANC
(Nov. 3, 1989)
App. 51
Before HOLLOWAY, Chief Judge and McKAY, LOGAN,
SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK,
BRORBY and EBEL, Circuit Judges and SAFFELS, District
Judge”.
PER CURIAM.
Before the court are defendants’-appellants’ petitions
for rehearing with suggestion for rehearing en banc.
Upon a vote of the panel members, see 879 F.2d 706, the
petitions for rehearing are denied. A majority of the
court’s active judges, however, agree to rehear these cases
en banc limited to the following issues:
1. Whether the district court committed plain
error in instructing the jury that a liberty inter-
est may be violated by charges which “would
stigmatize the employee’s reputation or fore-
close future employment opportunities”?
2. Whether the district court committed plain
error in failing to instruct the jury that before a
liberty interest may be infringed, the charges
must be found to be false?
3. Whether the plaintiff was entitled to a name-
ciearing hearing complete with the right to con-
front and cross-examine witnesses before the
disciplinary review board, assuming dissemina-
tion of the perjury charges deprived plaintiff of
a liberty interest?
* Honorable Dale E. Saffels, United States District Judge for the
District of Kansas, sitting by designation.
App. 52
4. Further assuming plaintiff is entitled to
some sort of a hearing, need it be pre-termina-
tion, or would some post-termination hearing or
name-clearing opportunity be adequate?
The clerk of court is hereby directed to enter the appro-
priate briefing and oral argument schedule.
SO ORDERED.
App. 53
PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
eS
RAYMON J. MELTON,
Plaintiff-Appellee/
Cross-Appellant,
: VS.
CITY OF OKLAHOMA CITY; a
municipal corporation; LLOYD A.
RA, RE ee ee dim +4
GRAMLING; Chief of Po! e for eee ee
| | 85-1739
the City of Oklahoma City; 85-1740
GERALD L. EMMETT; Assistant 85-174]
Chief of Police for the City of 85-1742
Oklahoma City; MARVIN 85-181]
MAXWELL; Major; Oklahoma City
Police Department; WILLIAM R.
CHAMBLESS; Major; Oklahoma
City Police Department; CARL
SMITH; Lieutenant; Oklahoma City
Police Department; ROBERT
TAYLOR; Lieutenant; Oklahoma
City Police Department; DAVID
MCBRIDE; Lieutenant; Oklahoma
City Police Department; and
PAULA HEARN; Assistant to the
City Manager,
ee ee ee ee ee ee ee ee ee ee ee ee ee
Defendants-Appellants /
Cross-Appellees.
APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE WESTERN
DISTRICT-OF OKLAHOMA
(D.C. No. CIV-84-65-E)
App. 54
Robert D. Allen, Municipal Counselor, and Richard C.
Smith, Assistant Municipal Counselor (Lawrence E.
Naifeh, Diane D. Huckins, and Jonathan D. Woods, Assis-
tant Municipal Counselors, also on the briefs), Oklahoma
City, Oklahoma, for Defendants-Appellants/Cross-
Appellees.
Steven M. Angel (Carl D. Hughes and Michael Gassaway
with him on the briefs), of Hughes & Nelson, Oklahoma
City, Cklahoma, for Plaintiff-Appellee/Cross-Appellant.
Before MCKAY and BLADOCK, Circuit Judges, and SAF-
FELS, District Judge”.
MCKAY, Circuit Judge.
These six appeals arise from a jury verdict and var-
ious post-trial orders entered by the United States District
Ccurt for the Western District of Oklahoma. Plaintiff, a
police officer, was fired by the City of Oklahoma City.
Plaintiff sued the City of Oklahoma City under 42 U.S.C.
§§ 1983, 1985 and 1988, and 18 U.S.C. §§ 1961-68 (1982),
alleging that he was deprived of liberty and property
without due process of law and that he was discharged in
retaliation for the exercise of his First Amendment speech
rights.
* Honorable Dale E. Saffels, United States District Judge
for the District of Kansas, sitting by designation.
wae
App. 55
I. FACTS
Raymon jf. Melton, a lieutenant with nearly twenty-
one years of service in Oklahoma City’s police depart-
ment, was fired for alleged violations of the Police Code
of Ethics. Prior to Mr. Melton’s termination, the Federal
Bureau of Investigation (“FBI”) and the United States
Attorney were investigating one of Mr. Melton’s longtime
friends, then-judge William C. Page. in preparation for
the Page trial, the federal prosecutor interviewed Mr.
Melton whom he considered to be a potential defense
witness. At least some of the information discussed with
the federal prosecutor during that interview was gained
in the course of Mr. Melton’s duties as a police officer. In
order to protect himself from possible misrepresentation,
Mr. Melton covertly taped his interview with the assist nt
U.S. attorney.
During the interview, Mr. Melton gave the prosecutor
what Mr. Melton believed to be exculpatory information
concerning Mr. Page. This information was not released
to Mr. Page’s attorneys.' Mr. Page’s lawyers subsequently
contacted Mr. Melton about testifying for Mr. Page at
trial. Mr. Melton discussed the content of his interview
with the federal prosecutor with Mr. Page’s counsel. He
' Mr. Melton believed that the information he gave the
federal prosecutor should have been turned over to defense
counsel pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963)
(upon request by the defense, prosecution cannot suppress
evidence favorable to the accused).
App. 56
also offered them the recording he had made of the
interview.?
—
Mr. Melton and one other policeman testified for the
defense at Mr. Page’s trial. After the trial, in response to a
complaint made by an FBI agent involved in the Page
investigation, the Oklahoma City Police Department
began an Internal Affairs investigation of Mr. Melton.’
The investigation centered on two allegations: (1) that Mr.
Melton had violated the Police Code of Ethics by dis-
closing to Mr. Page’s counsel the details of a confidential
discussion between himself and the federal prosecutor,
and (2) that Mr. Melton had perjured himself in an affi-
davit and during the Page trial. These allegations and the
fact of the Internal Affairs investigation were released to
the press by defendant David McBride, the Police Depart-
ment’s Public Information Officer.
Mr. Melton received written notice that as a result of
the Internal Affairs Investigation a Disciplinary Review
Board would convene to hear the charges. The Review
2 Mr. Page’s counsel used Mr. Melton’s tape as the basis
for an affidavit which accompanied a Motion to Dismiss
because the prosecutor failed to provide exculpatory material
to defense counsel under Brady. The court hearing the Page
trial denied the motion because it found the material was not
Brady information. At trial on this matter, however, the court
instructed the jury that the taped conversation contained Brady
information that the prosecutor was obligated under court
order to turn over to defense counsel in the Page case.
3 The Department also investigated the other officer who
testified at the Page trial; he decided to retire from the police
departmert.
Le
in ath pally eS tart ink! me Pet sinner te Tne e Biches
App. 57
Board convened as scheduled.‘ At his arrival, the Chair
informed Mr. Melton that the Board would not entertain
discussion nor consider the perjury allegations; rather it
would focus solely on the alleged violation of the Police
Code of Ethics. After Mr. Melton testified, the Board, by a
six-to-one vote, found that he had violated the Code of
Ethics and recommended that he be fired. That same day
with the approval of the City Manager, defendant Lloyd
A. Gramling, Oklahoma City’s Chief of Police, fired Mr.
Melton. Lieutenant McBride confirmed Mr. Melton’s dis-
missal to the press,> but did not comment on the disposi-
tion of the perjury charge. Shortly after the dismissal (and
without prior notice or hearing) Mr. Melton received a
4 The members of the Disciplinary Review Board who
were individual defendants in this action are: Board Chair
Gerald L. Emmett (Assistant Chief of Police); William R. Cham-
bless (Major, Oklahoma City Police Department), Marvin Max-
well (Major, Oklahoma City Police Department), Robert Taylor
(Lieutenant, Oklahoma City Police Department), and Paula
Hearn (Assistant to the City Manager).
Members of the Review Board who were not parties to this
action are Ted Pollock (Lieutenant, Oklahoma City Police
Department) and John Clark (Senior Police Officer, Oklahoma
Police Department). Mr. Clark sat on the Board as the represen-
tative of the Fraternal Order of Police, the Plaintiff’s collective
bargaining agent.
5 It is undisputed tnat Lieutenant McBride’s statements to
the press following Mr. Melton’s dismissal were limited to
confirming the dismissal and stating, as grounds therefor, the
violation of the Police Code of Ethics. Nevertheless, Mr. Melton
challenges Lieutenant McBride’s actions on the basis of the
earlier dissemination of the perjury charges, which Mr. Melton
was never allowed to refute and which Lieutenant McBride
never withdrew.
App. 58
letter from Chief Gramling which forbade plaintiff from
representing himself in any way as a retired police offi-
cer.®
Mr. Melton sued the City of Oklahoma City and some
members of the Review Board alleging that he was
deprived of property and liberty without due process of
law, that he was discharged in retaliation for exercising
his free speech rights, and that the City violated federal
RICO provisions. He also sought punitive damages
against the defendants.
Mr. Melton’s RICO claim was dismissed at the close
of plaintiff’s evidence. The jury rendered a general ver-
dict against the City and certain individual defendants in
the amount of $1,272,000. The trial court set aside the
© Although Mr. Melton was dismissed from his employ-
ment, his years of service entitled him to receive retirement
benefits. Also due to his retirement status, Mr. Melton was
entitled under Oklahoma law to retain his “status as peace
officer [| ] of the State of Oklahoma, retired, and as such [to]
retain the right to keep and bear firearms when approved by
the officials of the municipality of retirement.” Okla Stat. tit.
11, § 50-125 (West 1978). ~
Chief Gramling’s letter to Mr. Melton stated:
This letter is to inform you of your status as a
retired officer from this Department.
Due to your unnieritorious retirement, you do
not retain the privilege or approval to bear firearms
or otherwise represent yourself as a commissioned
officer of the Oklahoma City Police Department, as
provided in State Law 11 O.S. 50-125.
Piet te ee ate yt al lila Mls este.
Si Aig tate A hm ht Sit te ot He
ee eet
App. 59
punitive damages award against all but one of the defen-
dants on a j.n.o.v. motion.” The jury found for the defen-
dants on the section 1985 claim. The City, the individual
defendants, and Mr. Melion raise a number of issues on
appeal. Their respective contentions are addressed below.
II. Liability Determinations
A. Free speech claim.
On appeal, the City challenges the trial court's First
Amendment instruction because it does not address the
application of the First Amendment in the context of a
public employee’s speech. In examining a challenge to
jury instructions, “we review the record as a whole, to
determine whether the instructions ‘state the law which
governs and provided the jury with an ample under-
standing of the issues and the standards applicable.’ ” Big
Horr Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259,
1271 (10th Cir. 1988) (quoting Ramsey v. Culpepper, 738
F.2d 1092, 1098 (10th Cir. 1984)). We need not address
whether this instruction is proper because “(t]he inquiry
into the protected status of speech is one of law, not fact.”
Connick v. Myers, 461 U.S. 138, 148 n.7 (1983). See also
Wren v. Spurlock, 798 F.2d 1313, 1318 (10th Cir. 1986), cert.
denied, 479 U.S. 1085 (1987). Thus, the trial court improp-
erly submitted to the jury the question of whether Mr.
? The jury found in favor of Lieutenant Carl Smith, the
officer who conducted the Internal Affairs investigation, on all
causes of action. The jury also exonerated Lieutenant McBride
on the First Amendment and deprivation of property claims,
but held him liable for deprivation of liberty without due
process of law. ;
App. 60
Melton’s speech was constitutionally protected. However,
we find that the court’s improper submission of this First
Amendment issue to the jury constitutes harmless error —
because we conclude as a matter of law that Mr. Melton’s
First Amendment rights were violated.
In cases which implicate the First Amendment, “an
appellate court has an obligation to ‘make an indepen-
dent examination of the whole record’ in order to make
sure that ‘the judgment does not constitute a forbidden
intrusion on the field of free expression.’ ” Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984)
(quoting New York Times Co. v. Sullivan, 376 U.S. 254,
284-86 (1964)). The court’s inquiry is a multi-step process.
First, the court must determine whether a_ public
employee’s speech touches upon a matter of public con-
cern. Connick, 461 U.S. 138. Second, if the statement satis-
fies the public concern inquiry, the court must then
balance the interests of the employee in making the state-
ment against the public employer’s interest in the effec-
tive and efficient fulfillment of its responsibilities to the
public. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).
Third, assuming that both previous elements have been
found in favor of the plaintiff, he or she must then prove
that the protected speech “was a ‘motivating factor’ in
the detrimental employment decision.” Mt. Healthy City
School Dist. v. Doyle, 429 U.S. 274, 287 (1977). Fourth and
finally, if plaintiff makes this showing, the burden then
shifts to the employer to show by a preponderance of
evidence that it would have reached the same decision in
the absence of the protected activity. [d. While, as we
have already stated, the first two steps of the process
involve questions of law for the court, the two-part Mt.
ee
Pe eee a ee rT ee
eee eaieaereaeniaiel
eevee
App. 61
Healthy analysis involves questions uf fact for the jury.
Koch v. City of Hutchinson, 847 F.2d 1141 n.11 (10th Cir.)
(en banc), cert. denied, 109 S.Ct. 262 (1988).
1. Public concern analysis.
Speech on a matter of public concern is speech which
can “be fairly considered as relating to any matter of
political, social, or other concern to the community.” Con-
nick, 461 U.S. at 146. Under Connick, “[w]hether an
employee’s speech addresses a matter of public concern
must be determined by the content, form, and context of
a given statement, as revealed by the whole record.” /d. at
147-48 (footnote omitted). See also Koch v. City of Hutchin-
son, 847 F.2d at 1436 (listing factors courts have consid-
ered in public concern analysis).
Our examination of the record in light of these fac-
tors convinces us that Mr. Melton’s speech to defense
counsel and at trial touched upon a matter of public
concern. Mr. Melton’s speech clearly related to political,
social, or other concerns of the community. Yowever, in
determining whether speech is on a matter of public
concern, “it is not always enough that ‘its subject matter
could in [certain] circumstances, [be] the topic of a com-
munication to the public that might be of general inter-
est.’ (Connick, 461 U.S. at 148] n.8 (emphasis added). What
is actually said on that topic must itself be of public
concern.” Wilson v. City of Littleton, Colo., 732 F.2d 765,
769 (10th Cir. 1984).
App. 62
Mr. Page was a public official under investigation
and prosecution for malfeasance in his public duties.® Of
course the public would want, and is arguably entitled to,
information relating to a public official’s guilt or inno-
cence in a public trial which relates to his public duties.
Additionally, Mr. Melton’s speech was “calculated to dis-
close wrongdoing or inefficiency or other malfeasance on
the part of government officials in the conduct of their
official duties,” Koch, 847 F.2d at 1445, by revealing what
he believed to be exculpatory Brady material to Mr. Page’s
defense counsel and the court - information which might
otherwise have been suppressed by the federai prosecu-
tor. See Connick, 461 U.S. at 148 (“Nor did [the plaintiff]
seek to bring to light actual or potential wrongdoing or
breach of public trust on the part of [the employer]”). We
conclude that Mr. Melton’s speech to Mr. Page’s defense
counsel and at Mr. Page’s trial dealt with a matter of
“public concern” within the meaning of Pickering and its
progeny.
2. The Pickering balancing.
We find that the balance between the State’s interest
as an employer in the effective functioning of its public
enterprise and Mr. Melton’s interest in testifying at trial
and his interest in talking with Mr. Page’s defense coun-
sel clearly tip in favor of Mr. Melton in both cases.
8 “Mr. Page was being investigated and prosecuted for
racketeering activities in his capacity as a public official.
a
App. 63
a. Mr. Melton’s trial testimony.
The First Amendment protects the right to testify
truthfully at trial. Smith v. Hightower, 693 F.2d 359, 368
(5th Cir. 1982). Under Pickering balancing we find that Mr.
Melton’s interest in testifying truthfully at trial easily
outweighs the City’s interest in preventing the testimony
in order to preserve the efficiency and effectiveness of the
police department.
Although police officers rarely testify on behalf of
criminal defendants, they are frequently called upon to
testify at trial. In cases other than those in which officers
testify against each other, it is difficult to imagine a
situation in which the efficiency and effectiveness of the
department would be significantly impaired.? It is possi-
ble that an officer’s testimony might impair harmony
among fellow officers if officers disagree on the propriety
of such testimony. It may also detrimentally impact on
the kind of close working relationships which depend on
personal loyalty and confidence. However, truthful trial
testimony is unlikely to impair discipline by immediate
superiors, interfere with the regular operation of the
enterprise or impede the officer’s performance of his
daily duties.
9 “[Plertinent considerations [are] whether the statement
impairs discipline by superiors or harmony among coworkers,
has a detrimental impact on close working relationships for
which personal loyalty and confidence are necessary, or
impedes the performance of the speaker’s duties or interferes
with the regular operation of the enterprise.” Rankin v.
McPherson, 107 S.Ct. 2891, 2899 (1987) (citing Pickering, 391
U.S. at 570-573).
App. 64
One troubling aspect of this case concerns the weight
to be given in a Pickering balance to the State’s interest in
departmental confidentiality. The need for confidentiality
and the resultant disruption caused by its breach in the
law enforcement context cannot be gainsaid. Yet, absent
circumstances which indicate a serious security risk or a
risk that the business of the department will be seriously
impaired due to a breach of trust, we feel that the confi-
dentiality of information given at trial is not paramount
in assessing the City’s interest in preventing trial testi-
mony.
In any event, Mr. Melton’s interest in testifying at
trial is so strong in this case that any disruption or
impairment of the enterprise would have to be extreme in
order to justify preventing trial testimony. The City
offered no evidence that Mr. Melton’s trial testimony
affected the operation of the enterprise.
In addition, Mr. Melton’s interest in testifying at trial
was compelling. Mr. Melton had a clear public duty to
testify. In many instances, that duty might be enhanced
by judicial compulsion. Certainly we would not expect a
public employee to suffer contempt in order to preserve
the efficiency and effectiveness of a public employer,
even the police department. Moreover, Mr. Melton had an
interest in helping a friend who could be well-served by
character testimony and what Mr. Melton believed to be
exculpatory materiai. When we balance Mr. Melton’s
interests in testifying against what little disruption may
occur due to an officer’s testimony on behalf of a criminal
defendant, we find that Mr. Melton’s interest clearly pre-
vails.
App. 65
b. Mr. Melton’s communication with
defense counsel
With respect to Mr. Melton’s communication to
defense counsel, we find that although the Pickering bal
ance is closer than in the case of trial testimony, the
balance tips in favor of Mr. Melton
The City has an interest in preventing Mr. Melton’s
communication with defense counsel because of its
impact on intergovernmental harmony and effectiveness
Obviously, the direct result of a city police officer’s com-
munication with defense counsel in a federal prosecution
may be the impairment of the department's cooperative
relations with federal law enforcement personnel i
Notwithstanding the legitimacy of the City’s interest
in fostering harmonious relations with other law enforce
ment agencies, for purposes of Pickering balancing greater
10 This court can imagine several situations in which the
impairment or disruption of cooperative efforts between law
enforcement agencies could affect intergovernmental effective
ness; for instance, if federal agents and local officers were
working together to dismantle a drug ring, or a fencing opera
tion implicating interstate commerce, or the investigation of
the assassination of a prominent citizen. In all these cases, if
the law enforcement operation were divided by a “turncoat” to
the enterprise, arguably neither agency by itself could effi
ciently, competently, and fully complete the investigation. In
addition, if federal agencies feel they cannot trust local law
enforcement personnel to cooperate with or at least refrain
from disrupting their investigations and prosecutions, they
would be more reluctant to engage local law enforcement
agencies for the benefit of both
App. 66
weight is given to the effect of the disclosure on intra-
departmental effectiveness and efficiency. Pickering focuses
on the balance between the interests of the employee in
free speech and “the interest of the State, as an employer,
in promoting the efficiency of the public services it per-
forms through its employees.” 391 U.S. at 568 (emphasis
added). See also Rankin v. McPherson, 107 S.Ct. 2891, 2899
(1987) (“[T]he state interest element of the [Pickering] test
focuses on the effective functioning of the public
employer’s enterprise.”). Thus, we must examine the
extent to which Mr. Melton’s communications with Mr.
Page’s counsel affected intradepartmental relationships
and performance.
The City’s primary, if not exclusive, argument is that
it has an interest in preventing this speech in order to
protect the confidentiality of communications in a law
enforcement context. We agree that breaches of depart-
mental confidentiality could impair discipline and control
by immediate superiors, and detrimentally impact on the
kind of close working relationships among officers for
which personal loyalty and confidence are necessary. We
also agree that a breach of departmental! confidentiality
could interfere with the regular operation of the enter-
prise. If an officer cannot keep police business in the
office, he is a potential threat to follow officers. In addi-
tion, neither his peers nor his supervisors could trust him
to conduct sensitive investigations. Any breach of confi-
dentiality, therefore, reflects negatively on an officer’s
ability and competence to perform his job, and each
officer’s competence affects the overall effectiveness of
the department.
App. 67
Although we recognize the potential impact that a
breach of confidentiality may have on the department, we
must point out that the government must introduce evi-
dence of an actual disruption of its services resulting
from the speech at issue. See Rankin, 107 S.Ct. at 2899;
Pickering, 391 U.S. at 570-71.'!' While the confidentiality
claim may, under other circumstances, tip the balance in
favor of the government, here the City failed to make its
case.
Moreover, we are unpersuaded that the City’s funda-
mental assumption - that any communication between
law enforcement officials is by its very nature confiden
tial —- is correct. It is undisputed that neither Mr. Melton
'! The dissent’s assertions notwithstanding, we are not
creating a new rule nor are we increasing the quantum of proof
which the government must carry. We merely recognize what
we belicve to be an obvious Pickering requirement that the
government show some ascertainable damage to its functioning
as a result of the challenged speech. Accord Roth v. Veteran's
Admin., 856 F.2d 1401, 1407 (9th Cir. 1988); Conner v. Reinhard,
847 F.2d 384, 390 (7th Cir. 1988); Zamboni v. Stamler, 847 F.2d
73, 78 (3d Cir.), cert. denied, 109 S.Ct. 245 (1988); American
Postal Workers Union v. Postal Service, 830 F.2d 294, 303 n.12
(D.C. Cir. 1987). In our view the government cannot prevail in
a Pickering balance by merely relying on unsubstantiated allega-
tions of disruption. Some circuits appear to take the position
that a reasonable belief that disruption will occur is sufficient,
at least in some circumstances. See, e.g., Matherne v. Wilson,
851 F.2d 752, 761 n.53 (5th Cir. 1988); Jurgensen v. Fairfax
County, 745 F.2d 868, 879 (4th Cir. 1984); Waters v. Chaffin, 684
F.2d 833, 839 n.12 (11th Cir. 1982). None, however, accept
purely speculative allegations. Here, the City made no showing
_ Of disruption or, for that matter, potential disruption; only a
bald assertion that Mr. Melton’s actions in communicating with
Page’s counsel implicated the City’s confidentiality interests.
App. 68
nor the City Police Department participated in an official
capacity in the Page investigation and prosecution; it was
solely a federal matter. We view the communication
between Mr. Melton and the prosecutor (which in turn
was disclosed to Mr. Page’s counsel) as one arising outside
the scope of departmental confidentiality. The transcript
of Mr. Melton’s interview with the federal prosecutor
clearly shows that the prosecutor interviewed Mr. Melton
solely because he believed Mr. Melton would probably
testify as a defense witness in the Page trial. Furthermore,
while we are persuaded that at least some of the informa-
tion which Mr. Melton possessed initially had been
gained in the course of his official duties, the City did not
focus on that fact in its confidentiality claim.
Under these circumstances, Mr. Melton’s interest in
this speech outweighs the City’s interest in intradepart-
mental relations. He is under a high duty as a citizen to
come forward with information relevant to a federal
investigation and prosecution. In addition, Mr. Melton
believed that the information he communicated to
defense counsel was actual Brady material that he was
under a duty to supply. Mr. Melton also indicated that he
feared if he did not disclose this information, he would be
implicated in Mr. Page’s activities and possibly suffer
prosecution as a result. As with his trial testimony, he
believed he was disclosing exculpatory material at the
request of defense counsel in a public investigation -
information which the federal prosecutor did not other-
wise disclose.
App. 69
3. Protected speech as the “motivating factor”
in the dismissal — the Mt. Healthy inquiry. '!?
Having determined that both Mr. Melton’s trial testi-
mony and his communications with Mr. Page’s defense
counsel constituted protected speech within the meaning
of Connick and Pickering, we must now determine
whether Mr. Melton’s actions played a causative role in
his dismissal.
a. Mr. Melton’s trial testimony
Throughout the trial, defendants repeatedly denied
that Mr. Melton’s testimony in the Page trial was in any
way related to his dismissal. However, Mr. Melton pre-
sented evidence, albeit circumstantial, that his testimony
may have been a substantial or motivating factor in his
dismissal. Specifically he introduced testimony by the
only other police officer who testified at the Page trial
Like Mr. Melton, that individual too was subjected to an
Internal Affairs investigation shortly after his testimony
Eventually the other officer chose involuntary retirement
rather than risk losing his retirement benefits if he were
fired. From this evidence the jury could have determined
that Mr. Melton’s trial testimony was indeed a substantial
Or motivating factor in his dismissal, notwithstanding
defendants’ disavowa! of that fact
12 Because of the facts of this case, we treat the two steps
of the Mt. Healthy inquiry together, although analytically they
are distinct.
App. 70
As to the second Mt. Healthy prong, defendants claim
that the trial testimony was not the basis for the disciplin-
ary action taken against Mr. Melton. Their consistent
position has been that Mr. Melton was dismissed for his
communication with Mr. Page’s defense counsel.
b. Mr. Melton’s communication with
defense counsel.
Not only did Mr. Melton make a substantial showing
that his dismissal was in fact a result of his communica-
tion with Mr. Page’s counsel, defendants readily admitted
that fact. The jury had ample evidence on which to find
that those actions were the motivating factor in plaintiff’s
discharge.
c. The jury instruction.
In its First Amendment instruction the court improp-
erly combined the two bases for potential liability: plain-
tiff’s trial testimony and his communications with
counsel.!%
13 The jury instruction on the First Amendment claim
states in pertinent part:
In order to prevail upon his civil rights claim
against the defendants for a violation of his First
Amendment right to freedom of speech, plaintiff
must establish the following elements by a prepon-
derance of the evidence:
FIRST: That his actions in connection with the
tape recording and/or in appearing as a
(Continued on following page)
App. 71
Additionally, while the jury instruction addressed the
first prong of the Mt. Healthy inquiry - whether plaintiff
had shown that his protected speech was the substantial
or motivating factor in the dismissal - the court never
informed the jury as to the defendants’ burden of rebuttal
under Mt. Healthy.
We find we cannot affirm the jury’s verdict against
the individual defendants on the First Amendment claim
because the errors in the instruction leave us “uncertain
as to the actual ground on which the jury’s decision
rested.” Zant v. Stephens, 462 U.S. 862, 881 (1983). Under
Zant, “a general verdict must be set aside if the jury was
instructed that it could rely on any of two or more inde-
pendent grounds, and one of those grounds is insuffi-
cient, because the verdict may have rested exclusively on
the insufficient ground.” Id; see also Sunkist Growers, Inc.
v. Winckler & Smith Citrus Prods. Co., 370 U.S.-19, 30
(1962). Because we determine herein that the individual
defendants are qualifiedly immune under Harlow if the
dismissal was for Mr. Melton’s communications with Mr.
Page’s defense counsel, see discussion infra at 46-49, that
ground would be an insufficient basis for a verdict
(Continued from previous page)
witness in a federal proceeding were con-
stitutionally protected; and,
SECOND: That the exercise of his constitutional
right to freedom of speech was a motivat-
ing factor in the defendant City’s decision
to terminate his employment.
Brief of Defendant/Appellant, Jury Instruction No. 5, First
Amendment Claim, Appendix at 7.
App. 72
against them.!4 Consequently, we reverse the jury verdict
on the First Amendment claim and remand for a new trial
on the issue of whether Mr. Melton’s trial testimony was
a substantial motivating factor in his discharge.
B. Procedural due process claims.
Mr. Melton alleged at trial that the City deprived him
of two property interests without due process of law: (1)
a property interest in his employment as a lieutenant in
the Oklahoma City Police Department, and (2) a property
interest in his status as a retired police officer. Mr. Melton
also alleged that the City deprived him of liberty without
due process of law by publicly disseminating stigmatiz-
ing charges in connection with his dismissal.
1. Deprivation of property. —
The City raises three issues on appeal concerning Mr.
Melton’s procedural due process claim arising out of his
property interest in continued employment:'> (1) that the
14 Either basis of liability submitted to the jury is adequate
to impose liability on the City for the First Amendment claim.
Consequently, we can affirm the jury’s verdict notwithstanding
the failure to separate the two bases in the instruction. See
discussion of municipal liability infra at 32-38.
15 On appeal, the City challenges the court’s determination
that Mr. Melton had a property interest in his continued
employment. It is well established that such a property interest
may be created by a state statute, ordinance, or express or
implied contract; and “the sufficiency of the claim of
(Continued on following page)
App. 73
court erred in denying defendants’ motion for a directed
verdict; (2) that the court erred in instructing the jury that
(Continued from previous page)
entitlement must be decided by reference to state law.” Sec
Bishop v. Wood, 426 U.S. 341, 344-45 (1976); see also Vinyard v.
King, 728 F.2d 428, 432 (10th Cir. 1984). The City argues that
the organic law of the City — the City Charter - provides that
removal of a classified employee (such as Mr. Melton in this
case) “shall be solely for the good of the service.” This lan-
guage has been authoritatively construed not to create a prop-
erty interest in Oklahoma City employment. Thus, the City
argues, neither the Police Department Policy Manual nor the
City’s Policies and Procedures Manual can supplant “the con-
ditions of emplcyment provided for by the Charter.” Appel-
lant-City’s Brief in a Chief, at 14.
Although compelling, the City’s argument was not prop-
erly raised to the trial court nor preserved for appeal. See Fed.
R. Civ. P. 51. Rule 51 specifically requires a party to object to an
instruction before its submission to a jury. Our precedent uni-
formly holds that this court will “not review the propriety of a
jury instruction unless counsel has timely objected to the
instruction at trial.” See Ryder v. City of Topeka, 814 F.2d 1412
(10th Cir. 1987). Although this circuit recognizes a narrow plain
error exception to Rule 51’s otherwise unqualified language,
“we have applied this exception rarely,” Glasscock v. Wilson
Constructors, Inc., 627 F.2d 1065, 1068 (10th Cir. 1980); Prebble
v. Brodrick, 535 F.2d 605, 612 (10th Cir. 1976), and only in the
interest of justice. Pridgin v. Wilkinson, 296 F.2d 74, 76 (10th
Cir. 1961). Here, neither the City nor the individual defendants
ever offered their own proposed set of jury instructions. In
fact, the City raised the issue of the City Charter (as negating
plaintiff’s alleged entitlement to a property interest) for the
first time on its Motion for Judgment N.O.V. Record, vol. 1,
Motion for Judgment Notwithstanding the Verdict, at 3, ¥ 11.
The City has never explained why it failed to present such
important evidence to the trial court. Because the City did not
(Continued on following page)
App. 74
due process requires that a person deprived of a property
interest in his continued employment with the City of
Oklahoma City is entitled to a pre-termination hearing
before an impartial tribunal, reasonable notice and an
opportunity to be heard; and (3) that the court erred in
excluding evidence of available post-termination pro-
cedures.
We first address whether the trial court erred in
denying the defendants’ motion for directed verdict on
the procedural due process claim arising out of his prop-
erty interest in continued employment. The standard of
review for the denial of a motion for directed verdict is
the same standard used by the trial court to test the
original motion, Swearngin v. Sears Roebuck & Co., 376 F.2d
637, 639 (10th Cir. 1967): Viewing the evidence and all
inferences to be drawn therefrom in the light most favor-
able to the opponent of the motion, a directed verdict is
proper only if “the evidence points but one way and is
susceptible to no reasonable inferences which may sus-
tain the position of the party against whom the motion is
made.” Symons v. Mueller Co., 493 F.2d 972, 976 (10th Cir.
1974).
—
(Continued from previous page)
raise this issue in its Answer, during its oral Motion for a
Directed Verdict, nor as an objection to the jury instructions,
neither the court nor the plaintiff was given timely opportunity
to respond at trial with argument and relevant evidence. For
these reasons we decline to review the issue on the basis of
plain error. We conclude that on the record before it, the trial
court did not err in ruling that Mr. Melton had a valid property
interest in his continued employment.
App. 75
Both parties agree that the Supreme Court's decision
in Cleveland Board of Education v. Loudermill, 470 U.S. 532
(1985), governs the determination of what process is due
before the state may deprive a person of an existing
property interest.'© The Supreme Court held that before “a
tenured public employee” can be discharged, he “is enti-
tled to oral or written notice of the charges against him,
an explanation of the employer’s evidence, and an oppor-
tunity to present his side of the story.” 470 U.S. at 546.
In light of the principles outlined in Loudermill, we
conclude that Mr. Melton was not deprived of his prop-
erty interest in continued employment without due pro-
cess of law. Nearly one month before the disciplinary
board was convened Mr. Melton was given written notice
of the Internal Affairs investigation, the allegations
against him, and the name of the party who made the
allegations. Additionally, he was given five days’ (three
working days) written notice before the Review Board
was actually convened. While this period may not have
been as long as Mr. Melton desired, we believe that in this
case it was adequate to prepare a defense in light of the
earlier notice.'7
16 Loudermill was decided by the Supreme Court after the
events giving rise to this action took place. Nevertheless, the
Loudermill decision interpreted case law extant at the time of
Mr. Melton’s discharge and on the issues before us does not
mark a radical departure from prior precedent.
'7 The record indicates that the collective bargaining
agreement between the City and the Fraternal Order of Police
requires a minimum of 48 hours’ notice before a disciplinary
board is convened. The hours’ notice given in this case was at
(Continued on following page)
App. 76
The record plainly shows that Mr. Melton received
due process before being deprived of his property inter-
est in continued employment. We conclude that the trial
court should have directed a verdict for defendants
because the undisputed facts concerning notice and hear-
ing clearly indicate that adequate process was given.
Because we now direct a verdict for the defendants on
this issue, we need not address their other grounds for
appeal concerning Mr. Melton’s property interest in con-
tinued employment. We reverse the jury verdict on this
issue.
One additional problem plagues us. Mr. Melton origi-
nally alleged that he had been deprived of two property
interests without due process of law: (1) his interest in
continued full-time employment, and (2) his interest in
his status as a retired police officer.‘® The problem is that
which we faced earlier — that the trial court erroneously
submitted both procedural due process determinations to
the jury under one instruction. The jury rendered a gen-
eral verdict for Mr. Melton on the combined procedura!
due process issues. However, our reversal on the contin-
ued employment issue invalidates the jury’s general ver-
dict. Therefore, we must now address the disposition of
the retirement status issue.
(Continued from previous page)
least double that minimum. We reserve judgment whether in
all circumstances advance notice of 48, or even 96, hours
would be adequate; in this case we believe it is.
18 The City did not challenge the trial court’s finding that
Mr. Melton had a property interest in this status as a retired
police officer. We do not disturb that finding on appeal.
App. 77
As we discussed previously, supra at 18-19, under
Zant we cannot affirm a general verdict if one of the basis
for lability is insufficient as a matter of law. Although
unlikely, the jury might have predicated its finding of
liability on the City’s alleged deprivation of plaintiff's
property interest in continued employment. In view of
our conclusion that adequate process was given on that
claim, it should not have been submitted to the jury and
constitutes an “insufficient ground” for the jury’s general
verdict for Mr. Melton.
Normally, we should remand for a new trial on the
issue whether Mr. Melton was deprived of his property
interest in retirement status without due process of law.
We find it unnecessary to remand on this issue, however,
because we find that the evidence developed in the
record establishes as a matter of law that Mr. Melton
received no process before he was deprived of his prop-
erty interest in his status as a retired police officer. Okla-
homa law authorizes retired police officers to retain their
Status as “peace officers”. Okla. Stat. tit. 11, § 50-125
(West 1978). Additionally, the City’s Police Department
Operations Manual permits retiring officers with twenty
years of service to retain their police badges. Operations
Manual § 5.05. These provisions clearly created a prop-
erty interest in Mr. Melton with respect to his status as a
retired officer and in the benefits which accrue therefrom.
Among these are the opportunity and common practice of
accepting law enforcement-related employment and
working those jobs in uniform. Notwithstanding these
provisions, upon his dismissal Mr. Melton was asked to
surrender his badge. Shortly thereafter, the Chief
App. 78
informed him by letter that he was prohibited from repre-
senting himself in any way as a retired Oklahoma City
police officer. Chief Gramling testified that the terms of
the letter were intended to keep Mr. Melton from wearing
his uniform — essentially foreclosing plaintiff from secu-
rity-type employment.
At no time was Mr. Melton given any type of hearing
in which to contest these actions. We conclude that there
was no evidence from which reasonable jurors could have
found for defendants on this issue. Consequently, we
direct the trial court to enter a verdict for plaintiff on the
procedural due process issue arising out of his status as a
retired officer.
In sum, with respect to defendants’ liability on Mr.
Melton’s deprivation of property claims, the trial court
shall direct a verdict for defendants on the continued
employment claim and direct a verdict for plaintiff on the
retirement status claim. However, plaintiff's verdict shall
be entered solely against Chief Gramling.'? We remand
for a new trial on two issues: (1) the damages to be
assessed against Chief Gramling, and (2) the liability of
the City for Chief Gramling’s actions. The trial court must
'9 The trial court not only erred in combining the two
deprivation of property issues under one jury instruction but
also erred by failing to limit its application to Chief Gramling
and the City in the retirement status determination. The other
individual defendants played no part in the deprivation of Mr.
Melton’s property interest in his retirement status. Therefore,
we dismiss that claim with respect to the other individual
defendants.
Under this claim, Chief Gramling is not entitled to quali-
fied immunity. See discussion infra at 50-52.
App. 79
determine as a matter of law if Chief Gramling acted as a
“final policymaker” or if his actions were ratified by a
“final policymaker” before it submits the question of
damages against the City to the jury. See City of St. Louis v.
Praprotnik, 108 S. Ct. 915 (1988), and discussion infra
2. Deprivation of liberty.
The City makes four arguments on appeal in chal-
lenging its liability under Mr. Melton’s liberty interest
claim: (1) that the court erred in instructing the jury that
an individual’s liberty may be deprived when termina
tion is accompanied by public dissemination of the
charges against the employee, rather than the reasons for
dismissal; (2) that the court erred in instructing the jury
that when a person is deprived of liberty, due process
requires a pre-termination hearing with right to counsel,
and right to confront and cross-examine witnesses; (3)
that the court erred in failing to instruct the jury that the
disseminated information must be false as well as stig
matizing; and (4) that there was insufficient evidence to
support the jury’s verdict because plaintiff did not show
he was damaged as a result of the claimed violation of the
liberty interest.
a. Dissemination of the charges
The City claims that any alleged damage to Mr
Melton’s reputation arising from the dissemination in the
news media of the perjury charges did not implicate any
liberty interest because the damage must be proximately
connected with the termination of the employment. See
App. 80
Paul v. Davis, 424 U.S. 693, 701 (1976). Therefore, the
damage, if any, must stem from dissemination of the
reasons for dismissal, and not merely the dissemination of
the original charges alone. The City argues that the sole
reason for Mr. Melton’s dismissal was violation of the
Police Code of Ethics. Since the Review Board never
addressed the perjury charge, the argument goes, that
charge was not a reason for dismissal. Therefore, the City
did not impair Mr. Melton’s liberty interest.
The crucial focus of any liberty interest inquiry must
be the stigmatization which results from the publication of
false and damaging information, regardless of whether it
involves dissemination of “charges” or “reasons for dis-
missal”. [t is disingenuous to argue that one can stigma-
tize by publishing charges of this nature and then dismiss
the employee on other grounds and claim no impairment
to the liberty interest because “charges” are not “reasons
for dismissal”. In either case, the plaintiff’s liberty inter-
est in his good name and reputation has been impaired.
We hold that where all other elements are met, the pub-
lication of-—“charges” which stigmatize can give rise to a
claim that plaintiff's liberty interest has been impaired.
Despite the language in some of our opinions con-
cerning the dissemination of the reasons for dismissal as
an element of the liberty interest claim, see e.g., Miller v.
City of Mission, 705 F.2d 368, 373 (10th Cir. 1983), we
believe our holding today is not inconsistent with the
premise which underlies our previous opinions on this
subject — that is, concern with protecting the good name
and reputation of individuals from unlawful action which
impairs an established right to employment. See Paul v.
Davis, 424 U.S. at 708-09. In McGhee v. Draper, 639 F.2d 639
App. 81
(10th Cir. 1981), we demonstrated our concern with and
focus on actual stigmatization. In McGhee, the employer
circulated charges of immorality but never formally
charged the employee with these incidents. Under the
circumstances of that case, we stated:
The requirement of Paul v. Davis that repu-
tational harm be entangled with “some more
tangible interests” is thus met when a termi-
nated or non-renewed § 1983 plaintiff can show
that the termination at least aggravated his stig-
matization. We do not mean to imply that this is
a heavy burden for a plaintiff. Any termination
occurring in an atmosphere where the plaintiff's
reputation is at issue should be sufficient to
meet Paul's entanglement requirement. It should
be the state’s burden to show that termination is
such a context is so removed from plaintiff's
reputational concern that it in no way impacted
upon it.
Id. at 643 n.2 (emphasis in original). Therefore, the circu-
lation of the charges, coupled with the discharge, was
sufficient to establish a liberty interest. See also McGhee v.
Draper, 564 F.2d 902 (10th Cir. 1977). We concluded that in
this case, as in McGhee, the dissemination of the charges
coupled with dismissal was enough to establish a liberty
interest which could not be deprived without due process
of law. Therefore, the court’s instruction in this regard
was not erroneous.
b. Right to confront and cross-examine.
“The fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319,
App. 82
333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). This requirement is applicable as well when a
plaintiff alleges a deprivation of liberty without due pro-
cess of law. Board of Regents v. Roth, 408 U.S. 564, 569-70
(1972). The opportunity to be heard at a meaningful time
and in a meaningful manner includes (1) an impartial
tribunal; (2) notice of the charges within a reasonable
time before the hearing; and (3) absent emergency cir-
cumstances, a pre-termination hearing. Miller v. City of
Mission, Kansas, 705 F.2d 368, 372 (10th Cir. 1983). In
Walker v. United States, 744 F.2d 67, 70 (10th Cir. 1984), we
recognized that “[w]hile not necessary in every case,
‘procedural due process often requires confrontation and
cross-examination of those whose word deprives a person
of his livelihood,’” (quoting Willner v. Committee On
Character, 373 U.S. 96, 103 (1963)).
Defendant Carl Smith informed Mr. Melton that he
‘was being investigated, inter alia, because of accusations
of perjury, both in a sworn affidavit and at trial. These
charges were widely circulated in the media, due in part
to defendant McBride’s statements to the press confirm-
ing that Mr. Melton was under investigation and the
nature of the charges, including perjury. Approximately
three weeks later Mr. Melton was given three working-
days’ notice to appear at a meeting of the Disciplinary
Review Board, and was told that “[yJour appearance
before this board is as a result of the Departmental Inter-
nal Affairs investigation.”
It is clear that plaintiff (and probably the public)
understood that the Review Board would address both
charges and provide Mr. Melton the opportunity to refute
them. Yet, on the very morning of the hearing, Mr. Melton
a
App. 83
was informed that he would not be allowed to address
the perjury charge and that the Board would not consider
the issue in its deliberations. Given the expectations cre-
ated by the publicity concerning the perjury charge and
the generalized nature of the stated reason for dismissal
(violation of the Police Code of Ethics), it is reasonable to
conclude that the public may have been left with the
impression that Mr. Melton’s dismissal was based in part
upon the perjury charge.
Here, as in Walker, the employee’s honesty and integ-
rity were definitely called into question. The fact that the
Board did not address the perjury issue in recommending
his dismissal only compounded the problem because its
refusal effectively precluded Mr. Melton from receiving
the necessary name-clearing hearing. In addition, we
believe that the perjury allegation was of a serious
enough nature that at his hearing Mr. Melton should have
been given the right to confront and cross-examine those
who charged him with dishonesty. Under these circum-
stances, we cannot say that the trial court erred in
instructing the jury that Mr. Melton was entitled to con-
front and cross-examine his accusers.
c. Instruction as to falsity element.
The City also objects to the liberty interest instruction
on the basis that the court failed to instruct the jury that
the disseminated information had to be false as well as
stigmatizing. Asbill v. Housing Authority of the Choctaw
Nation of Oklahoma, 726 F.2d 1499 (10th Cir. 1984). This
objection was not properly made before the jury instruc-
tions were read to the jury as required by Rule 51, Fed. R.
App. 84
Civ. P.2° As a result, the matter was not properly pre-
served for appeal. We decline to reach it for that reason
and because, in our view, no “plain error” was made.?!
d. Sufficiency of the evidence to support the
jury verdict: Evidence of economic dam-
age.
As a final matter, the City claims that the jury verdict
cannot stand because plaintiff did not show he was dam-
aged as a result of the violation of his liberty interest.
While the City did not object to the jury instruction on
this ground, nor raise this argument as a direct point of
appeal, it is briefly discussed for the first time in the
City’s brief on appeal in the last two paragraphs of a
related objection. See City’s Brief in Chief, at 31-32.
The essence of the City’s argument is that plaintiff
failed to present evidence “that he was foreclosed from
employment as a policeman because the reasons for his
discharge.” Id. at 32. The City misapprehends the legal
20 See supra note 15.
21 We note that all along Mr. Melton has denied that he
perjured himself in any way, and the evidence indicated that
the City’s own investigators declined to pursue this charge.
This, while “falsity” as an express element of the liberty claim
was not outlined in the jury instruction, we believe the matter
was clearly before the jury.
22 In reviewing the sufficiency of the evidence underlying
a civil jury verdict, this court’s review is “limited to the inquiry
whether the record contains substantial evidence to support
the jury’s . . . conclusion, viewing the evidence in the light
most favorable to the prevailing party.” Kitchens v. Bryan
County Nat’l Bank, 825 F.2d 248, 251 (10th Cir. 1987).
App. 85
and factual bases for Mr. Melton’s liberty claim. In Paul v.
Davis the Supreme Court established that damage to rep-
utation alone did_not create a protectable liberty interest.
Rather, there had to be a published stigmatizing state-
ment and an attendant change in the individual’s legal
status; such as the “accompanying loss of government
employment.” 424 U.S. a! _06, 710. Here there has clearly,
been the publication of a defamatory and stigmatizing
statement accompanied by the loss of Mr. Melton’s gov-
ernment employment, ail without the opportunity for a
name-clearing hearing. In addition, Mr. Melton also pre-
sented evidence that his options for future law enforce-
ment-related employment (e.g. in the private security
field) would likely be curtailed because of actions by the
Police Chief which were expressly designed to accom-
plish that objective.2* On this record we believe that Mr.
Melton adequately stated a liberty interest under Paul v.
Davis.
The dissent argues that the trial court committed
“plain error” in its instruction on the liberty interest. See
post at 18. However, the trial court’s instruction is almost
a direct restatement of our language in Miller v. City of
Mission, 705 F.2d at 373, the only change being the substi-
tution of the term “charges” for the Milier language on
“reasons for dismissal.” We have already discussed our
views on this substitution, concluding that the change
was appropriate. See supra at 23-24. Where the trial court
has directly tracked our own language in its instruction,
we cannot say this constitutes plain error.
23 See discussion supra concerning Mr. Melton’s property
interest in his status as a retired police officer
App. 86
III. Municipal Liability
A. Liability.
The preceding discussion establishes that Mr. Melton
suffered at least two constitutional deprivations as a
result of his dismissal from city employment. The next
inquiry is whether, in light of the Supreme Court’s deci-
sion in City of St. Louis v. Praprotnik, 108 S. Ct. 915 (1988),
the unconstitutional action was taken pursuant to munici-
pal policy sufficient to impose section 1983 liability upon
Oklahoma City.
In Monell v. New York City Dept. of Social Servs., 436
U.S. 658 (1978), the Supreme Court recognized that
municipalities could be subjected to section 1983 liability
if a deprivation of a federally protected right was caused
by action taken “pursuant to official municipal policy of
some nature... .” Id. at 691. Thus, “when execution of a
government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be
said to represent official policy inflicts the injury .. . the
government as an entity is responsible under § 1983.” Id.
at 694.
Subsequently, in Pembaur v. City of Cincinnati, 475
U.S. 469 (1986), the Court examined the circumstances
under which a decision by municipal policymakers on a
single occasion could nevertheless satisfy the “official
policy” requirement of Monell. The Pembaur Court noted,
a government frequently chooses a course of
action tailored to a particular situation and not
intended to control decisions in later situations.
If the decision to adopt that particular course of
action is properly made by that government’s
authorized decisionmakers, it surely represents
App. 87
an act of official government “policy” as that
term is commonly understood. More impor-
tantly, where action is directed by those who
established government policy, the municipality
is equally responsible whether that action is to
be taken only once or to be taken repeatedly.
475 U.S. at 481 (footnote omitted). The touchstone for
determining “official policy” is “distinguishling] acts of
the municipality from acts of employees of the municipality,
and thereby mak[ing] clear that municipal liability is
limited to action for which the municipality is actually
responsible.” Id. at 479-80 (emphasis in original). The
Court equated municipal responsibility with the actions
of a “final policymaker”: “[MJunicipal liability under
§ 1983 attaches where - and only where - a deliberate
choice to follow a course of action is made from among
various alternatives by the official or officials responsible
for establishing final policy with respect to the subject
matter in question.” Id. at 483-84.
The Court’s recent decision in Praprotnik further
defines the circumstances under which section 1983 lia-
bility will be imposed upon municipalities. A plurality of
the Court held that a municipality can only be liable
under section 1983 if the final policymaker, as identified
by statute, is the one who takes the unconstitutional ©
action. Moreover, in identifying “final” policymakers,
courts must turn to state laws and local ordinances or
regulations to determine where the statutory law places
the responsibility for making law or setting policy in a
particular area. The Praprotnik Court emphasized that this
determination is a question of the law for the courts, not
the jury.
App. 88
Despite its “final policymaker” standard, the plurality in
Praprotnik identified two situations where municipal liability
nevertheless could be found even though the action is taken
by an individual other than the “final policymaker”: First,
“egregious attempts by local government to insulate them-
selves from liability for unconstitutional policies” will be
precluded if the plaintiff establishes “the existence of a wide-
spread practice that, although not authorized by written law
or express municipal policy, is ‘so permanent and well set-
tled as to constitute a “custom or usage” with the force of
law.’ ” Praprotnik, 108 S. Ct. at 925-26 (quoting Adickes v. S.H.
Kress & Co., 398 U.S. 144, 167-68 (1970)). Second, if “a subor-
dinate’s position is subject to review by the municipality’s
authorized policymakers, . . . [and] the authorized policy-
makers approve a subordinate’s decision and the basis for it,
their ratification [will] be chargeable to the municipality. . . .
” 108 S. Ct. at 926.
In applying these principles to the present case, we
start by noting that, as an issue of law, this court can
examine and determine the liability of Oklahoma City
under the standard and considerations outlined in Prap-
rotnik. Even though Praprotnik was decided after this trial
and the parties did not have an opportunity to address
this issue, we take judicial notice of the City Charter in
order to proceed with our Praprotnik analysis.24 See Mills
24 Section 3. The City Manager. The City Manager shall:
(a) Be the Chief Administrative Officer of the City
and shall have charge and supervision of all
branches of the City service, except as otherwise
in this Charter provided.
(Continued on following page)
App. 89
v. Denver Tramway Corp., 155 F.2d 808, 812 (10th Cir. 1946)
(appellate court has discretion to take judicial notice on
its own accord).25 We have considered whether the record
(Continued from previous page)
(c) Appoint all officers and employees of The City
of Oklahoma City except the elective officers
and the officers whose election is vested in the
Council by this Charter.
(d) Dismiss any officer or employee appointed by him
whenever, in his judgment, the interests of the City
service so require.
Additionally, art. II], § 1 of the Charter provides:
Section 1. Appointments and Promotions. Appoint-
ments and promotions in the classified service of the
City shall be made according to merit and fitness,
and removals and demotions shall be made solely
for the good of the service.
25 There seem to be two conflicting lines of cases in our
circuit on the question of judicial notice of city ordinances. In
Allred v. Svarczkopf, 573 F.2d 1146, 1151 (10th Cir. 1978), we
took judicial notice of the city ordinances of Roosevelt City,
Utah, and in Jackson v. Denver Producing & Refining Co., 96
F.2d 457, 460 (10th Cir. 1938), we took judicial notice of the
Oklahoma City Charter and its provisions. However, elsewhere
we have stated that “[iJn our Circuit, municipal ordinances
may not be judicially noticed. ...” Ruhs v. Pacific Power &
Light, 671 F.2d 1268, 1273 (10th Cir. 1982) (quoting Dewell v.
Lawson, 489 F.2d 877, 879 (10th Cir. 1974)). We believe that the
better rule permits the appellate court to take judicial notice of
matters “not subject to reasonable dispute in that [they
are] .. . capable of accurate and ready determination by resort
to sources whose accuracy cannot . . . reasonably be ques-
tioned.” Fed. R. Evid. 201.
App. 90
of this case provides a sufficient basis to make this deter-
mination. We have concluded that it does.
As Praprotnik instructs us, our analysis must begin
with an examination of state law, including valid local
ordinances and regulations, in order to find the “official
or body that has the responsibility for making law or
setting policy in any given area of a local government's
business.” Id. at 924-25. The City of Oklahoma City is a
chartered city under the laws of the State of Oklahoma,
operating under a Council-Manager form of government.
The City Charter makes clear that the City Manager
is the “final policymaking authority” over employment
decisions affecting City personnel. This section 1983
action was precipitated by the firing of Mr. Melton by the
Chief of Police upon recommendation of the Disciplinary
Review Board and with the approval and concurrence of the
City Manager. The testimony indicated that Chief Gram-
ling met with the City Manager and discussed the pro-
posed dismissal of Mr. Melton. The City Manager
expressly approved such dismissal. See Record, vol. 14,
Transcript of Proceedings, at 878-79. Under the facts of
this case, we are convinced that the City Manager ratified
the Chief’s actions within the meaning of Praprotnik.
We have already held that Mr. Melton was fired for
exercising his First Amendment rights. In the process, he
was also denied his liberty interest without due process.
We now hold that the firing was done pursuant to a
“municipal policy” which was ratified by the “final poli-
cymaking authority” as identified by state statute and
local ordinance. Consequently, Oklahoma City is liable in
App. 91
damages to Mr. Melton under section 1983 for the viola-
tion of his First Amendment rights and liberty interest
without due process of law.26 Our conclusion remains the
same regardless of whether the jury predicated its finding
of municipal liability on Mr. Melton’s communication
with Mr. Page’s attorney, his testimony at trial, or both.
26 While not conclusive, the internal investigation which
led to the forced retirement of the other officer who testified at
the Page trial suggests the possibility that the City may have
had a pattern or practice of subjecting individuals to retalia
tory action because of their exercise of protected speech. Under
Monell, such a pattern might also be sufficient to show the
existence of an unconstitutional municipal policy giving rise to
section 1983 liability.
In this case Mr. Melton showed, via the former officer’s
testimony, that someone else had apparently experienced retal-
iatory action after testifying at the Page trial See Record, vol.
11, Transcript of Proceedings, at 484-489. By contrast, in Prap
rotnik the plurality considered persuasive the fact that the
plaintiff had never “attempt[ed] to prove that such_retaliation
was ever directed against anyone other than himself.” 108 S.
Ct. 926.
This case differs from many section 1983 actions because
here the City does not disavow the actions of some of its
employees as not being in keeping with official policy. Rather,
it is the City’s official litigation posture that it can discipline
officers who disclose information gained in the process of
being questioned as potential witnesses - without regard to
whether or not the officers are acting in an official capacity.
The City in effect argues that it is its policy to act in this
manner. Thus, if Mr. Melton’s actions were to be replicated by
another officer, the City claims that the individual would be
properly subject to discipline, including dismissal.
App. 92
B. Damages.
The City also challenges as excessive the damages
awarded by the jury to Mr. Melton. Specifically, the City
claims that (a) the verdict form permitted damage awards
to be “stacked,” resulting in an insupportable total judg-
ment;?7 (b) the court erred in its instruction by failing to
require the jury to consider Mr. Melton’s service pension
in determining damages; and (c) piaintiff did not estab-
lish an entitlement to damages under the liberty interest
claim because he failed to seek suitable employment.
With respect to all of the City’s contentions, we noted
earlier that defendants had made no effort to submit their
own proposed jury instructions.78 In addition, the City
did not request special interrogatories to accompany the
jury verdict form. Moreover, they raised no objections at
trial which are relevant to their present claims. Because
no attempt was made to properly raise these issues at the
trial level or to preserve these alleged errors for appeal,
we decline to reach them.
It has been our circuit’s long-held position that
“absent an award so excessive as to shock the judicial
conscience and to raise an irresistible inference that pas-
sion, prejudice, corruption or other improper cause
invaded the trial, the jury’s determination of the damages
is considered inviolate.” Malandris v. Merrill Lynch, Pierce,
27 A review of the verdict form makes abundantly clear
that the jury weighed each of the claims separately and gave
them an individualized valuation. We find no merit in defen-
dants’ argument that the damages were “stacked”.
28 See supra, note 15.
App. 93
Fenner & Smith, Inc., 703 F.2d 1152, 1168 (10th Cir. 1981)
(en banc}, cert. denied, 464 U.S. 824 (1983) (and cases cited
therein). We do not find the award to be “so excessive as
to shock the judicial conscience” nor do we consider the
award to be a result of passion or prejudice. The damage
award against the City stands.
IV. Immunity
We turn next to the issue of the individual defen-
dants’ liability for damages under section 1983. The jury
awarded a total of $906,500 in actual damages and
$28,200 in punitive damages against all but one of the
individual defendants. The district court thereafter
granted the defendants’ Motion for Judgment N.O.V. on
the issue of punitive damages.
The individual defendants challenge the jury’s
assessment of damages against them on two theories:
First, that the suit was brought against them in their
official capacity and therefore no individual! liability
should accrue. Second, if they are otherwise personally
liable, they should be shielded by the qualified immunity
recognized in Harlow v. Fitzgerald, 457 U.S. 800 (1982).
The applicability of immunity defenses is a question
of law. Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). Conse-
quently, this issue should not have been submitted to the
jury. To the extent that the trial court may have erred in
questions of law, this court reviews those issues de novo.
In re Ruti-Sweetwater, Inc., 836 F.2d 1263, 1266 (10th Cir.
1988). As a matter of law, we find that this was not solely
an “official capacity” action.
App. 94
A. Official-capacity.
In Kentucky v. Graham, 473 U.S. 159 (1985), the Court
stated that where the complaint does not clearly specify
whether officials are sued personally or in their official
capacity, courts must look to “the course of proceedings”
to determine the type of liability sought to be imposed.
Id. at 167 n.14 (quoting Brandon v. Holt, 469 U.S. 464, 465
(1985)). This is one of those cases where ambiguous
pleadings have required this court to closely examine the
“course of proceedings” in order to determine the basis
on which this suit was brought and litigated.2? We con-
clude that while the action was brought against the indi-
vidual defendants primarily for their actions in an official
capacity, possible personal liability was also contem-
plated by all the parties at the time of trial.%°
29 Here the caption of the pleadings did not specify on
what basis the individual defendants were being sued, and the
language of the complaint was ambiguous.
30 In Kentucky v. Graham, 473 U.S. 159, 165-66 (1985), the
Supreme Court summarized the differences between the two
types of suits:
Personal-capacity suits seek to impose personal
liability upon a government official for actions he
takes under color of state law. Official-capacity suits,
in contrast, “generally represent only another way of
pleading an action against an entity of which an
officer is an agent.” Monell v. New York City Dept. of
Social Services, 436 U.S. 658, 690, n.55 (1978). As long
as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in
all respects other than name, to be treated as a suit
against the entity. It is not a suit against the official
personally, for the real party in interest is the entity.
(citations omitted) (emphasis in original).
App. 95
Consequently, we reject defendants’ claim of no personal
liability on the basis that this was solely an official-
capacity suit.?!
We find support for our conclusion from the record
of the proceedings at the time the jury was receiving its
instructions. Initially the court instructed the jury that
“{uJnder the pleadings and the facts in this case, you
must find against Oklahoma City anytime you find
against any one of the individuals, because they were
acting for the City, except punitive damages.” Record,
vol. 14, Transcript of Proceedings, at 994. The court char-
acterized this instruction as one resulting from a “stipuia-
tion” by the parties. Id. at 997. However, defendants’
counsel, who was representing both the City and the
individual defendants, objected to the court’s representa-
tion. In response to counsel’s objection the court cor-
rected its instruction, telling the jury to “judge Oklahoma
City just like you would the individuals, whether it’s
liable or not liable, on that claim.” Id. at 998. Counsel's
objection effectively disavowed the City’s automatic lia-
bility if the jury found against the individual defendants
- the expected outcome if this were solely an official-
capacity suit. Counsel’s action can only be explained on
the basis that he was proceeding under an assumption
that the case also involved issues of personal capacity.*?
31 We do not reach the issue of how the Supreme Court's
decisions in Pembaur and Praprotnik would affect this case if it
were solely an official-capacity action.
32 in addition, at the close of plaintiff’s case, defendants’
counsel moved to dismiss with regard to the individual defen-
dants on the basis of a good faith defense. It is obvious that
(Continued on following page)
App. 96
B. Qualified immunity of individual defendants.
With respect to their second rationale for exoneration
from damages, the individual defendants object to the
jury instruction concerning good faith immunity on the
basis that (1) the court applied an improper standard, and
(2) that the instruction “presume[d] ‘established law’
without informing the jury as to what the law is.” Record,
vol. 14, at 1004.99
The qualified immunity of Harlow v. Fitzgerald, 457
U.S. 800 (1982), shields “government officials performing
discretionary functions . . . from liability for civil dam-
ages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow, 457 U.S.
at 818. The key to the inquiry is the “objective reasonable-
ness” of the official’s conduct in light of the legal rules
(Continued from previous page)
counsel was defending this case as both a personal-capacity
and an official-capacity action.
33 Appellants properly preserved the issue on appeal by
raising the affirmative defense of good faith immunity at var-
ious stages of the proceedings. Initially the issue was raised in
defendants’ Answer and in the Pre-Trial Order. Counsel for the
individual defendants also raised the defense in oral Motions
for Directed Verdict at the close of plaintiff’s case and then
again at the close of all the evidence. Finally, defendants objec-
ted to the jury instruction on good faith immunity.
In this appeal most of the individual defendants also claim
judicial and quasi-judicial immunity. However, this issue was
not raised until defendants’ Motion for Judgment N.O.V. We
conclude that this issue was not properly preserved and we
decline to reach it. See Fed. R. Civ. P. 51.
App. 97
that were “clearly established” at the time the action was
taken. Id.
Reliance on this qualified immunity standard should
“permit the resolution of many insubstantial claims on
summary judgment.” Harlow, 457 U.S. at 818. However,
this does not prevent defendants from raising the issue in
the absence of a prior summary judgment motion. See
Rakovich v. Wade, 850 F.2d 1180, 1204 (7th Cir.) (en banc),
cert. denied, 109 S. Ct. 497 (1988).
1. Qualified immunity inquiry in a First Amend-
ment context.
Determining whether a public employee has been
discharged in violation of his First Amendment rights
requires a case-by-case analysis: initially to determine if
the speech was on a matter of public concern, and, sec-
ondly, to determine how the balancing of competing
interests should be resolved in light of particular facts.
Pickering v. Board of Educ., 391 U.S. 563 (1968). We must
now determine how the individualized nature of this
inquiry can be reconciled with Harlow’s requirement that
the law be “cleariy established” before qualified immu-
nity can be defeated.
The Fifth Circuit recently addressed this issue in
Noyola v. Texas Department of Human Resources, 846 F.2d
1021 (5th Cir. 1988). In Noyola, a former employee of the
Texas Department of Human Resources sued officials of
the Department, claiming that he was fired for exercising
his First Amendment right of freedom of speech. The
Fifth Circuit held that the speech at issue was not pro-
tected. Even assuming arguendo that it was protected, the
App. 98
officials were entitled to qualified immunity because the
balancing process required by this type of case showed
that “neither the ‘contours’ of [the employee’s] rights
were so clearly outlined nor was the ‘unlawfulness’ of
terminating [him] so ‘apparent’ that [the officials] should
forfeit their qualified immunity.” Id. at 1026 (citing Ander-
son, 107 S. Ct. at 3039).
The Seventh Circuit has also recognized that:
[T]here is one type of constitutional rule,
namely that involving the balancing of compet-
ing interests, for which the standard may be
clearly established, but its application is so fact
dependent that the “law” can rarely be consid-
ered “clearly established.” . . . With Harlow’s
elimination of the inquiry into the actual
motivations of the official, qualified immunity
typically casts a wide net to protect government
officials from damage liability whenever balanc-
ing is required.
Benson v. Al
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