Petition for Writ of Certiorari — Cochran v. Taylor

87-1497 maR 7 1986

-=OH F. SPANIOL,

| CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

A rr Petitioner

VS.

WAVEAND TAUUAME 5 cate eee AN ees ihc we sees. Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

By: WINSTON BRYANT

Attorney at Law i

Post OFFICE Box 38

No. LittLe Rock, AR 72115

(501) 374-0225

Attorney for Petitioner

ARKANSAS LEGISLATIVE DIGEST, INC.

QUESTION PRESENTED

WHETHER THE EIGHTH CIRCUIT VIOLATED THE

PRINCIPLE OF CAUSATION AND VICARIOUS LIA-

BILITY ENUNCIATED BY U.S. SUPREME COURT

DECISIONS BY HOLDING THAT A MAYOR CAN BE

LIABLE IN HIS INDIVIDUAL CAPACITY UNDER 42

U.S.C. §1983 FOR ACTIONS OF A CITY COUNCIL IN

TERMINATING A CITY EMPLOYEE.

LIST OF PARTIES

THE PARTIES LISTED IN THE CAPTION TO THIS

PROCEEDING WERE THE ONLY PARTIES REMAIN-

ING IN THE LAWSUIT WHEN IT WAS TRIED BEFORE

THE DISTRICT COURT AND APPEALED TO THE

EIGHTH CIRCUIT COURT OF APPEALS.

TT

TABLE OF CONTENTS

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REASON FOR GRANTING THE WRIT ........... 5-8

This court should grant certiorari because the

Fighth Circuit’s ruling overturning the judgment

notwithstanding the verdict by the District Court

conflicts with this Court’s ruling in recent cases

setting forth the principles of causation and vicar-

ious liability in 42 U.S.C. Section 1983 cases.

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TABLE OF AUTHORITIES

Page

CASES:

Monell vs. Dept. of Social Services, 436

a ee 6, 7

Mt. Healthy City School District Board of

Education vs. Doyle, 429 U.S. 274 (1977) ........ 4,7

Rizzo vs. Goode, 423 U.S. 362 (1976) .............02. 6, 7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

No.

ie AEE cf cc an ne ces ckseebasbinsatesakewe Petitioner

VS.

WeAPEA TANG cc ccaccccnvaseanseneccnsces Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The above-captioned Petitioner hereby petitions fora writ

of certiorari to review the Judgment of the United States Court

of Appeals for the Eighth Circuit in this case.

OPINIONS BELOW

The opinion of the Eighth Circuit Court of Appeals,

which is Appendix A attached to this Petition, was filed on

October 5, 1987, and is reported at 830 F.2d 900 (8th Cir., 1987).

The decision denying the Petition for a Rehearing and

Petition for Rehearing En Banc is reprinted as Appendix B to

this Petition. The Memorandum Opinion and Order of the

United States District Court is unreported, and is reprinted as

Appendix C to this Petition. It is case number J-C-85-7. Also

included as Appendix D is the Order of Summary Judgment by

the District Court which is unreported.

2

JURISDICTION

The judgment of the Court of Appeals was filed on

October 5, 1987. Petitioner (Defendant below) petitioned the

Court of Appeals for rehearing, and rehearing en banc, which

petition was denied on December 10, 1987. The jurisdiction of

this Court is invoked pursuant to 28 U.S.C. §1254(1).

STATUTE INVOLVED

42 U.S.C., Section 1983, provides:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory,

subjects or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other

proceeding for redress.

3

STATEMENT OF THE CASE

Respondent was hired by the City of Corning, Arkansas,

on April 2, 1971, and was laid off on January 3, 1983. The

Respondent worked as a Water Department employee. On

January |, 1983, Petitioner took office as the Mayor of the City

of Corning. On January 3, 1983, the Corning City Council met

in special session for the purpose of discussing the operations

of the Water and Sewer Department. After discussing the

operation of the Water Department, the Council voted unani-

mously to lay off the Respondent and another individual in the

Water Department.

The Respondent was notified of his separation from the

Water Department by his supervisor on January 3, 1983.

Thereafter, on the same day, Respondent talked with Peti-

uioner. The Respondent testified at the trial that Petitioner told

him he was through because “you're Jess Pulliam'’s man”

(Petitioner's opponent in the preceding election).

On January 17, 1985, Respondent filed suit against

Petitioner, all members of the Corning City Council, and the

City of Corning, Arkansas, under 42 U.S.C. §1983. Respondent

alleged a violation of his procedural due process rights under

the Fourteenth Amendment to the United States Constitution.

Prior to trial, Petitioner, along with the other Defendants,

filed a Motion for Summary Judgment. The District Court

granted the Motion for Summary Judgment in all respects

except as to Petitioner in his individual capacity. See

Appendix D. Petitioner was left in the lawsuit because the

allegation by Respondent that he was fired because he was

“Jess Pulliam’s man” stated a First Amendment violation.

The case proceeded to trial and the jury found for

the Respondent and returned a verdict in the amount of

$33,000.00.

4

Subsequent to the jury's verdict, the District Court granted

Petitioner's motion for a judgment notwithstanding the

verdict. The District Court applied the test set forth in Mt.

Healthy City School District Board of Education v. Doyle, 429

U.S. 274 (1977), and found that the Respondent had met his

burden under the Mt. Healthy decision, but that the Petitioner

also met his burden by proving by a preponderance of the

evidence that the Respondent would have been fired for other

permissible reasons even in the absence of the protected

conduct. See Appendix C-1 & 2.

On October 5, 1987, an Eighth Circuit panel reversed the

judgment of the District Court and reinstated the jury's verdict

(See Appendix A-1 to A-13). The majority panel held that the

jury had reasonable grounds to conclude that the Petitioner

would not have been fired but for his political affiliations (See

Appendix A-7). Judge Henley concurred with the majority

of the panel's decision affirming the District Court's granting

of summary judgment. However, Judge Henley dissented,

stating that he believed the District Court was right in granting

the judgment notwithstanding the verdict because the evidence

“was overwhelming, and went unrebutted,” that Defendants

had satisfied Mt. Healthy, supra. Additionally, Judge Henley

stated that the District Court's decision should be affirmed for

a further reason, not addressed by the majority of the pancl,

that the Respondent failed to show that the Constitutionally

protected conduct was a motivating factor in his firing (See

Appendix A-10). Judge Henley has hit upon the specific issue

that should be addressed by this Court.

The Petitioner filed for a Rehearing and Rehearing En

Banc which was denied by the Eighth Circuit on December 10,

1987 (See Appendix B).

———————————————ae

Vr

REASON FOR GRANTING THE WRIT

THE EIGHTH CIRCUIT VIOLATED THE PRINCIPLES

OF CAUSATION AND VICARIOUS LIABILITY ENUN-

CIATED BY U.S. SUPREME COURT DECISIONS BY

HOLDING THAT A MAYOR CAN BE LIABLE IN HIS

INDIVIDUAL CAPACITY UNDER SECTION 1983 FOR

ACTIONS OF A CITY COUNCIL IN TERMINATING A

CITY EMPLOYEE.

The decision of the Eighth Circuit in this case leads off

with the following sentence: ‘In this case a jury found that the

City of Corning, Arkansas, wrongfully fired Wayland Taylor

for exercising his First Amendment rights, and awarded him

damages." (emphasis added) The City of Corning was not a

Defendant in the case before the District Court. The only

Defendant in the case before the District Court was E. W.

Cochran in his individual capacity. The order of the District

Court granting Petitioner's Motion for Summary Judgment is

quite clear.

The District Court states:

Accordingly, the Plaintiff's due process claim must fail as

to all Defendants, individually and officially. Defendants’

Motion for Summary Judgment is granted insofar as the

due process claim is concerned. (See Appendix D-1 & 2)

However, the Court at page 2 of its order further stated:

Defendant Cochran does not contend, nor could he, that

he would be entitled to a (sic) qualified immunity had he

indeed laid off the Plaintiff on the basis of whom he

supported or voted for in an election. Accordingly,

Defendant Cochran's Motion for Summary Judgment in

his individual capacity is denied. (See Appendix D-2)

ee

6

There is no question but that E. W. Cochran was the only

Defendant in the District Court, and he was a Defendant only

in his individual capacity. Therefore, if the City of Corning

fired the Respondent, there must be some causal connection

between the City and Petitioner if the ruling of the Eighth

Circuit is allowed to stand. As the Eighth Circuit dissent

suggests, there is no causal connection. Petitioner did not

lay off the Respondent. The Respondent was laid off by

unanimous vote of the City Council. Petitioner did not vote

on that decision (See Appendix A-10). Additionally, both

members of the City Council that testified, did not disclose any

Constitutional impermissible motivation for their actions (See

Appendix A-10).

In Rizzo v. Goode, 423 U.S. 362 (1976), the United States

Supreme Court held that personal involvement and a causal

relationship are necessary to maintain a Section 1983 cause

of action.

The Rizzo court stated at 423 U.S. 371:

As the facts developed, there was no affirmative link

between the occurrence of the various incidents of police

misconduct and the adoption of any plan or policy

by petitioners — express or otherwise — showing

their authorization or disapproval of such misconduct.

Instead, the sole causal connection found by the District

Court between petitioners and the individual respondents

was that in the absence of a change in police disciplinary

procedures, the incidents were likely to continue to occur,

not with respect to them but as to the members of the

classes they represented.

Likewise, the Supreme Court in Monell v. Dept. of Social

Services, 436 U.S. 658 (1978) stated:

The italicized language (referring to the language of

saan iceiaaaieae i

Section 1983) only imposes liability on a government

that, under color of some official policy, ‘“‘causes’’ an

employee to violate another’s constitutional rights. At the

same time, that language cannot be easily read to impose

liability vicariously on governing bodies solely on the

basis of the existence of an employer-employee relation-

ship with a tortfeasor. Indeed, the fact that Congress did

specifically provide that A’s tort became B’s liability if B

“caused”’ A to subject another to a tort suggests that

Congress did not intend Section 1983 liability to attach

where such causation was absent. (436 U.S. at 692)

Mt. Healthy School District Board of Education v. Doyle,

supra, also held that causation is an essential element to

impose liability on a Defendant.

The decision of the Eighth Circuit might logically follow

if the Petitioner had been before the District Court in his

official capacity as Mayor. Had that been the case, the action of

the Council in laying off the Respondent would bind the City.

Had the Petitioner been before the District Court in his official

capacity, then the judgment of the jury in the District Court

would be a judgment against the City. But, that is not the case.

The Eighth Circuit decision allows the City Council, in

terminating the Respondent, to vicariously impose liability

against Petitioner in his individual capacity. If the principle of

causation as enunciated in Rizzo v. Goode, supra, Monell v.

Dept. of Social Services, supra, and Mt. Healthy City School

District Board of Education v. Doyle, supra, means anything,

then the Eighth Circuit decision is incorrect.

By reinstating the verdict against Petitioner, in his

individual capacity, the Eighth Circuit has carved out an

exception to the requirement of causation mandated by Monell

v. Dept. of Social Services, supra, Rizzo v. Goode, supra, and

Mt. Healthy City School District Board of Education v. Doyle,

supra, and their progeny.

8

The Eighth Circuit has used the doctrine of respondeat

superior, or its equivalent, to impose liability on a Mayor

in his individual capacity. True, the City Council is not in

a master/servant relationship with the Mayor in that both

offices should be equal under the concept of separation of

powers. However, the practical effect of the Eighth Circuit's

decision would be the same as imposing liability on the Mayor

for actions of a city employee. Such vicarious liability is

expressly forbidden even had Petitioner been before the

District Court in his official capacity. Here the Petitioner

is actually one step removed from that situation because he

was before the District Court in his individual capacity.

Since Petitioner had no causal relationship to Respondent's

termination, to impose liability on him is to do so vicariously.

CONCLUSION

For the reasons stated above, the petition for writ of

certiorari should be granted.

Respectfully submitted,

By: WINSTON BRYANT

Attorney at Law

2ND AND WILLOW STREETS

Post OFFICE Box 38

No. LittLe Rock, AR 72115

(501) 374-0225

Attorney for Petitioner

APPENDIX A

A-1

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 86-2370

Wayland Taylor, *

*

Appellant, * Appeal from the United

* States District Court for

v. * the Eastern District of

* Arkansas.

E. W. Cochran, Mayor of the

City of Corning and as an

individual; Gene Kellett;

Edwin Ahrent; Clarence

Thomas; and Dorothy John-

son, Members of The City

Council of Corning, Arkansas;

and The City of Corning,

Arkansas,

+ + + + + + + + HH FH

Appellees.

Submitted: June 11, 1987

Filed: October 5, 1987

Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit

Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

In this case a jury found that the City of Corning,

Arkansas wrongfully fired Wayland Taylor for exercising his

first amendment rights, and awarded him damages. The

district court then granted defendant's motion for judgment

A-2

notwithstanding the verdict. We examine whether the district

court was correct in granting defendant's motion. We conclude

that the district court erred and accordingly, we reverse.

I. FACTS.

Appellant Wayland Taylor (Taylor) was hired by the City

of Corning, Arkansas, on April 2, 1971. Taylor was originally

hired as a mechanic and later was transferred to the Street

Department, and then to the Water Department. When he was

fired on January 3, 1983, Taylor was working in the Water

Department.

On January 1, 1983, defendant E. W. Cochran (Cochran)

took office as the mayor of Corning, Arkansas. Two days later,

the Corning City Council met in special session to discuss the

operations of the Water and Sewer Department. During this

meeting, the Council voted to lay off Taylor and one other

Water Department employee. -

That same day, Taylor’s supervisor told him of the layoff,

then Taylor met and talked with Cochran. Taylor testified that

Cochran told him he was through because “‘you’re just Jess

Pulliam’s man" (Cochran's opponent in the preceding

election). Cochran denied making such a statement.

Taylor was not given prior notice of the action to be taken

against him and was not given a hearing either before or after

being laid off.

Il. TRIAL COURT PROCEEDINGS.

On January 7, 1985, Taylor filed suit under 42 U.S.C.

§1983 against Cochran, all members of the Corning City

Council and the City of Corning. Taylor alleged (1) that

his procedural due process rights under the fourteenth

amendment were violated because he had a property interest in

A-3

his position with the Water Department, (2) that he was

entitled to a pretermination hearing, and (3) that he was

entitled to a name-clearing hearing because of stigmatizing

charges. Taylor sought both compensatory and punitive

damages.

The defendants filed a pretrial motion for summary

judgment, which the district court granted in part on

September 16, 1986. The court held that Taylor did not have a

property interest in his continued employment with the City of

Corning, and thus his due process claim must fail as to all

defendants. The court also concluded that the Council

members were entitled to absolute immunity in their indi-

vidual capacities because they were functioning in their

legislative capacities. The court further held that in order to

hold the City of Corning liable, Taylor must allege that a

custom or policy existed of impermissible firing of emplovees

on the basis of their political affiliations. Since no such policy

was alleged in the complaint, the district court granted

summary judgment to all the defendants in their official

capacities. However, Cochran was left in the lawsuit because

Taylor, although not alleging a first amendment violation

in his complaint, filed an affidavit with his response to

defendants’ motion for summary judgment which alleged that

he was laid off because he had supported Cochran’s opponent

in the previous election. The district court allowed the case to

go to trial against Cochran because a material fact remained as

to whether Cochran had told Taylor he was fired for being

“Jess Pulliam’s man” and also as to whether the reduction in

personnel was merely a pretext for impermissible political

retribution.

The case was tried before a jury on September 22, 1986, in

the United States District Court, Eastern District of Arkansas, —

Jonesboro Division. The issues of fact were submitted to the

jury by interrogatories. Interrogatory No. | asked: “‘Do you

find from a preponderance of the evidence that Wayland

A-4

Tavlor’s exercise of his first amendment rights to freedom of

association was a substantial or motivating factor in the

decision to lay him off from his job with the water department

of Corning, Arkansas?” To which the jury answered “yes.”

Interrogatory No. 2asked: “Do you find from a preponderance

of the evidence that Wayland Taylor would have been laid off

from his job with the Corning water department even if he had

not exercised his first amendment rights?" To which the jury

answered “no.” The jury returned a verdict for Taylor and

awarded him damages of $33,000.

After the jury determination, Cochran filed a motion for

directed verdict and/or motion for judgment notwithstanding

ihe verdict (judgment n.o.v.). The district court granted the

motion on October 14, 1986, holding that the “evidence of

‘other reasons’ for Taylor's ‘layoff’ was overwhelming, and

went unrebutted * * *."° This appeal followed.

Il. DISCUSSION.

Taylor argues that the district court erred in granting

Cochran's motion for judgment n.o.v. because there was

substantial evidence to support the jury's finding of impermis-

sible interference with Taylor's first amendment rights.' We

thus examine the applicable standards.

'Taylor sets forth two other arguments: (1) that he had a property

interest in his continued employment, and (2) that the district court

failed to consider his affidavit alleging that his supervisors had

advised him that he could not be fired or disciplined without cause.

Both of these arguments address the district court's grant of summary

judgment as to all the defendants but Cochran. In his brief, however,

Taylor concedes that any property interest in continued employment

with the City of Corning does not rest on an express contract.

Moreover, Taylor does not claim that he was employed for a fixed

term, or that there existed any express provision in a personnel

manual or regulation prohibiting termination except for cause. This

court's recent opinion in Stow v. Cochran, 819 F.2d 864 (8th Cir.

1987), is thus dispositive of Taylor's arguments. Stow, also an action

.

TT ee

A-5

The standards for granting a motion for judgment n.o.v.

are the same as those governing a directed verdict. Tackett v.

Kidder, 616 F.2d 1050 (8th Cir. 1980). A directed verdict is

normally employed when: (1) there is a complete absence of

pleadings or proof on an issue or issues material to the cause of

action; or (2) there are no controverted issues of fact upon

which reasonable persons could differ. Thus, a verdict may

properly be directed when, without weighing the credibility of

the witnesses, there can be but one reasonable conclusion as to

the verdict. But where there is sufficient evidence in conflict, so

that reasonable persons could reach different conclusions, a

directed verdict is improper. Dace v. ACF Industries, Inc., 722

F.2d 374 (8th Cir. 1983).

Similarly, a motion for judgment n.o.v. may be granted

only when, without weighing the credibility of the evidence or

substituting the court's judgment for that of the jury, there can

be but one reasonable conclusion as to proper judgment.

Where there is sufficient conflicting evidence, or insufficient

evidence to conclusively establish the movant's case, judgment

n.o.v. should not be awarded. Kort v. Western Surety Co., 705

F.2d 278 (8th Cir. 1983). In considering the motion, the court

must view the evidence in the light and with all reasonable

inferences most favorable to the party who secured the jury

verdict. Russell v. United Parcel Service, Inc., 666 F.2d 1188

(8th Cir. 1981).

against Mayor Cochran by an employee of the City of Corning, held

that the city’s employee handbook created no property rights under

Arkansas law, and that any oral assurances of permanent employ-

ment were unauthorized and unenforceable. Although Arkansas case

law has recently been slightly liberalized in favor of employees, see,

Gladden v. Arkansas Children’s Hospital, 728 §.W.2d 501, 505 (Ark.

1987), the Caty of Corning’s employee handbooks would still be

insufficient to create a property interest, because they do not

expressly state that employees can be discharged only for enumerated

causes. See Drake v. Scott, 823 F.2d 239 (8th Cir. 1987). Accordingly,

we hold Taylor's arguments as to a property interest and binding oral

assurances to be without merit.

A-6

Dace quotes the standard used in Giordano v. Lee, 434

F.2d 1227, 1231 (8th Cir. 1970), cert. denied, 403 U.S. 931, 91

S.Ct. 2250, 29 L.Ed. 2d 709 (1971), that:

[A] motion for directed verdict is properly denied where

the evidence presented allows reasonable men in a fai

exercise of then judgment to draw different conclusions

* * * In making this determination, the evidence,

together with all reasonable inferences to be drawn

therefrom, must be viewed in the light most favorable to

the nonmoving party.

Dace, 722 F.2d at 375.

In short, when a motion for directed verdict or fon

judgment n.o.v. is made, the court must assume that all of the

evidence supporting the party opposing the motion is true,

and must, in addition, give that party the benefit of all

reasonable inferences drawn from the evidence. The case may

be taken from the jury only if no rational jury could find

against the moving party on the evidence so viewed. Dace, 722

F.2d at 376.

Based on these standards, we conclude that there was

sullicient evidence to create an issue of fact for the jury

regarding the true reason for Taylor's lavolf, and thus the

district court erred in granting judgment n.o.v. for Cochran.

The district court properly set out the applicable analytc

framework governing Taylor's first amendment clarm, as

stated by the Supreme Court in Mt. Healthy City School

District Board of Education v. Doyle, 429 U.S. 274, 287 (1977).

Under this test, the burden was first placed on Taylor to show ,

that his conduct was a substantial or motivating factor in the

decision to lay him off. Taylor met this burden, for the jury,

when asked in Interrogatory No. | whether Taylor's political

activities had been a motivating factor in his being laid off,

answered in the affirmative.

A-7

The burden then shifted to the defendant, Cochran, to

prove by a preponderance of the evidence that Taylor would

still have been fired, for other permissible reasons, even in the

absence of the protected conduct. As to this step, the district

court found as follows:

The evidence of “other reasons” for Taylor's “layoff”

was overwhelming, and went unrebutted: The division of

the water department where Taylor worked was reduced

from a five-person force to a three-person force; the City

of Corning was experiencing a financial dilemma,

requiring budget cuts; Taylor's position was left vacant

after his layoff; Taylor and the other man laid off in the

force reduction were the only two of the five employees

who were not State certified to mix the chemicals used

to treat the water; and Taylor could not become certified

due to the fact that he cannot read and write well enough

tO pass a written test (a fact acknowledged by Taylor),

Each of these facts presented by the defendant was either

acknowledged or uncontested by the plaintll.

Our review of the evidence, however, convinces us that the

jury had reasonable grounds to conclude, as itdid, that Taylor

would not have been fired but for his political affiliations,

We acknowledge that there was testimony, through Cochran

and two councilmen, that Taylor's firing was economically

motivated; however, other evidence failed to support that the

Water Department was losing money, suggested that the city

officials did not know the overall financial condition of the

Water Department when the decision was made to lay olf

Taylor, or controverted Cochran's contention that the City's

financial problems required budget cuts and layoffs.

First, the evidence reflecting the financial condition of the

Water Department for the 1982 calendar year was not made

available to Cochran and the two councilmen until January

10, 1983; one week after Taylor was laid off. Second, Cochran

i aaa aan

A-8

testified that the Water Department finished the 1982 calendar

vear with some $41,742 in surplus funds. Third, during the

March 1983 regular meeting, the City Council discussed

reducing municipal water rates by $2.50.

Cochran contended that Taylor was the most logical

choice for the lavoff because he could not read or write and thus

could not be certified by the Arkansas State Board of Health to

operate the Water Department. However, the trial transcript

reveals that witnesses were uncertain as to whether it was

necessary for Taylor to be certified.

Finally, Cochran testified that he had- discussed his

concern over the financial problems of the Water Department

with its department head, Floyd Pence, before the City Council

meeting of January 3, 1983, and advised him of the action

which would be taken. However, on further examination,

Cochran admitted to being unsure whether he had spoken with

Pence before or after the meeting.

Cochran points to other evidence which undermines

Tavlor’s; for example, that although the City Council did not

have the 1982 year-end financial report, monthly reports were

available and showed financial losses, that the Council was

considering reducing the water rates only in conjunction with

an offsetting tax increase, and that certification was required

for all Water Department employees.

We conclude, however, that these evidentiary conflicts

were properly for the jury to decide. The evidence did not

approach the complete level of one-sidedness necessary before

judgment n.o.v. could properly be granted. “‘[FJor an orde

entering judgment notwithstanding the verdict to be proper,

all the evidence must point one way and be susceptible of no

reasonable inferences sustaining the position of the non-

moving party.’’ Gilkerson v. Toastmaster, Inc., 770 F.2d 133,

A-9

136 (8th Cir. 1985) (emphasis added). As the Dace court pointed

out:

This evidence supplies reasonable grounds for a jury

to disbelieve the defendant's proffered reasons. * * * In

short, the case was not clear enough to justify [a judgment

n.o.v.]. If this case had been tried to the court, we would

have had no difficulty in affirming, as not clearly

erroneous, a finding for defendant supported by the

opinion the District Court rendered here. But this case

was not tried to the court. It should have been permitted to

go to the trier of fact.

Dace, 722 F.2d at 379.

Accordingly, we reverse the judgment of the district court

granting Cochran’s motion for judgment n.o.v., and we

reinstate the jury’s verdict.

HENLEY, Senior Circuit Judge, concurring in part and

dissenting in part.

I concur in footnote | of the panel’s decision affirming the

district court’s granting of summary judgment. I dissent from

the remainder of the panel’s opinion which holds that the

district court erred in granting defendant Cochran's motion for

judgment notwithstanding the verdict.

The gravamen of this case is that Taylor claims he was laid

off from his position in the Water Department of the City of

Corning because the newly elected mayor, E. W. Cochran,

believed that Taylor was “just Jess Pulliam’s man” (Cochran's

opponent in the mayoral election).

The allocation of the burden of proof ina case of this type

istwo-fold. “Initially. ..the burden. . . [is] upon [plainutf] to

show that his conduct was constitutionally protected, and that

A-10

this conduct was a ‘substantial factor’ — or to put it in other

words, that it was a ‘motivating factor’ in the .. . decision

{to fire him].”” Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274, 287 (1977). If plainuff carries

that burden the defendant may still avoid liability if he can

show by a preponderance of the evidence that the same decision

would have been reached in the absence of the protected

conduct. /d. In granting Cochran's motion for judgment n.o.v.

the district court focused on Cochran's burden and concluded

that the evidence that the same decision would have been made

“was overwhelming, and went unrebutted.”’ For reasons to be

stated, I believe the district court's decision in this regard was

correct. In addition, I believe that the district court’s decision

should be upheld on another ground argued by Cochran in his

motion for judgment n.o.v. but not directly addressed by the

district court — Taylor failed to show that constitutionally

protected conduct was a motivating factor in his firing.

The evidence, read in the light most favorable to Taylor,

does support the conclusion that Cochran harbored a consti-

tutionally impermissible motivation. Cochran, however, did

not lay off Taylor. Taylor was laid off upon unanimous vote of

the city council. Cochran did not vote on that decision. The

two councilmen who testified at trial (one of whom made the

motion leading to~Taylor’s layoff) did not disclose any

constitutionally impermissible motivation for their actions.

In McGee v. South Pemiscot School District R-V, 712 F.2d

339 (8th Cir. 1983), we held that where a school board's

decision to discharge a teacher turned on a single vote and

the teacher met his Mt. Healthy burden of demonstrating

impermissible motivation on the part of one board member

who voted against him, he is entitled to relief. In the present

case the only connection Taylor has shown between the

adverse employment decision and Cochran's impermissible

motivation is that Cochran called the city council meeting.

Taylor has not shown impermissible motivation by any of the

A-1]

councilmen who made the decision to lay him off. In McGee, I

was “unwilling to assume that a factor that motivates a single

board member motivates the board to such an extent as to”

sustain plainuff’s burden of proof under Mt. Healthy. McGee,

712 F.2d at 345 (Henley, Senior Circuit Judge, dissenting).

Thus, in this case I am even less willing to assume that

Cochran's improper motivation which may have led to calling

the council meeting should be imparted to the councilmen

who ultimately made the decision to lay off Taylor. Cochran’s

disposition toward Taylor simply cannot, without more, be

translated into the motivating factor of the council’s decision.

Mt. Healthy makes plain that it is the decision-maker’s

motivation that is to be plumbed, Mt. Healthy, 429 U.S. at 287;

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252, 270 (1977), not that of

persons peripheral to the decision-making process. Accord-

ingly, I would hold that Taylor failed to sustain his initial

burden of proof and affirm the district court’s granting of

judgment n.o.v.

I also believe that the district court correctly granted

judgment n.o.v. in Cochran’s favor because his evidence that

the council would have reached the same decision in the

absence of improper motivation went unrebutted. Cochran

presented evidence that the decision to lay off two Water

Department employees was for financial reasons. The panel’s

argument that the jury could have found the financial

explanation to be pretextual is unpersuasive. First, the panel

contends that the financial condition of the Water Department

was not made known to the city council until one week after

Taylor was laid off. This is incorrect. Although the final yearly

report did not become available untul that time, the council-

men received monthly fiscal reports. The councilmen knew by

looking at these monthly reports in October and November

when they prepare the following year’s budget that the Water

Department was experiencing financial difficulty. Thus, even

A-12

though the decision to lay off Taylor was taken before the final

year end financial statement was prepared, it is unrebutted that

the councilmen were well aware of the Water Department's

financial condition.

The panel next contends that the financial motivation

was pretextual because the city ended the year with surplus

funds- This is true. A municipality, however, does not have the

luxury of deficit spending as does the federal government. In

addition, the Water Department needed to maintain a surplus

account to cover major equipment breakdown. In fact, the

yearly statements prior to Taylor’s layoff show that the Water

Department's surplus was shrinking — they were losing

money.

Finally, the panel points to the fact that the city council

was considering reducing the municipal water rates as

evidencing a lack of financial hardship. This reduction,

however, would only go into effect if the voters approved an

increase of one cent in the city sales tax. When the sales tax

measure failed at the polls, no further consideration was given

to reducing water rates. Thus, the city council was only

interested in restructuring the way Water Department revenues

were raised, not reducing them.

The evidence that the Water Department was losing

money was not illusory and was unrebutted. The evidentiary

conflicts the panel finds are not true conflicts, but are the jury’s

disregard of the unrebutted evidence.

Finally, Cochran claims that Taylor was singled out to be

laid off because he was not state certified to add the chemicals

to treat the city’s water. Because Taylor can neither read

nor write, it was unlikely that he could pass the written

certification test. Although there may be some doubt as to

whether it was necessary for Taylor to become certified, it does

A-13

not follow that either lack of certification or illiteracy was an

invalid criterion for the council to apply, particularly when

the potability of the city’s drinking water was concerned.

From the reversal of the judgment granting Cochran's

motion for judgment n.o.v., I respectfully dissent.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

. APPENDIX B :

B-]

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 86-2370

Wayland Taylor, *

*

Pa -

Appellant,

* Appeal from the United

* States District Court for

V. * the Eastern District of

* Arkansas.

E. W. Cochran, etc., et al., *

*

Appellees. *

Petition for rehearing en banc filed by appellee E. W.

Cochran has been considered by the Court and is denied.

Petition for rehearing by the panel is also denied.

December 10, 1987

Order Entered at the Direction of the Court:

/s/ Clerk, United States Court of Appeals, Eighth Circuit

APPENDIX C

C-]

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

Jonesboro Division

WAVEAAIGED BAU MAIED cncecccncrcccccccccccssees Plaintiff

V. No. J-C-85-7

E. W. COCHRAN, Mayor of the

Se EN dna vheasdesescdccscoccces Defendant

ORDER

Pending before the Court is defendant's motion for

judgment n.o.v. The Court had reversed ruling on the

defendant's motion for directed verdict made at the close of the

plaintiff's case. The defendant's motion is meritorious and is

hereby granted.

Plaintiff Taylor alleged and testified at trial that Mayor

Cochran had told him that the reason Taylor was “‘laid off”

from his job at the water department was Taylor had supported

Mayor Cochran's opponent in the previous election. Mayor

Cochran denied that any such conversation had taken place.

However, the jury, when asked on Interrogatory whether

Taylor's political activities had been a motivating factor in his

being “laid off,’ answered in the affirmative.

Assuming then that the conversation did take place, the

burden shifted to the defendant, Cochran, to prove by a

preponderance of the evidence that Taylor would have been

laid off for other permissible reasons. Of course, at that

juncture, Taylor had the opportunity to show that the “other

reasons” were pretextual. Mt. Healthy City Board of Education

v. Doyle, 429 U.S. 274 (1977).

C-2

The evidence of ‘other reasons” for Taylor's “layoff was

overwhelming, and went unrebutted: The division of the water

department where Taylor worked was reduced from a five-

person force to a three-person force; the City of Corning was

experiencing a financial dilemma, requiring budget cuts;

Taylor's position was left vacant after his layoff; Taylor and

the other man laid off in the force reduction were the only two

of the five employees who were not State certified to mix the

chemicals used to treat the water; and Taylor could not become

certified due to the fact that he cannot read and write well

enough to pass a written test (a fact acknowledged by Taylor).

Each of these facts presented by the defendant was either

acknowledged or uncontested by the plainuff. The jury verdict

for the plainuff simply cannot stand when the Mt. Healthy test

is applied to the evidence adduced at trial.

Accordingly, the defendant's motion is granted.

‘s/ Henry Woods

U.S. District Judge

10/14/86

APPENDIX D

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.

D-1

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

Jonesboro Division

ee tras bac ccnsccnases Plaintiff

V. No. J-C-85-7

E. W. COCHRAN, Mayor of the

SS IE Defendants

ORDER

Pending before the Court is Defendants’ Motion for

Summary Judgment. After a careful review of the pleadings

and supporting documents, the Court is convinced that the

plaintiff had no property interest cognizable under the

fourteenth amendment to the United States Constitution in

continued employment with the City of Corning, Arkansas.

Such an interest must be grounded in an independent source

such as state law or an employment contract, either express or

implied. Board of Regents v. Roth, 408 U.S, 577 (1972).

Plaintiff has directed the Court to no state law creating a

property interest in employment in a case such as this, There

was apparently no written contract and the Court can find no

substantial evidence of an implied contract. The “Personnel

Policies and Employee Handbook,” in fact, clearly indicates,

on Page Two, that it creates no contractual rights in the

employee.

Accordingly, the plaintiff's due process claim must fail as

to all defendants, individually and officially. Defendants’

motion for summary judgment is granted insofar as the due

process claim is concerned.

D-2

However, the plaintiff has also stated, somewhat inart-

fully, a claim based on the first amendment, as applied to the

state through the fourteenth amendment. The plaintiff alleges

Mayor E. W. Cochran told him that the reason for his being

“laid off’ was that the plaintiff had supported Mayor

Cochran’s opponent in the previous election. This allegation

is supported by the plaintiff's affidavit appended to his

Response to the Motion for Summary Judgment. While the

defendants have produced evidence that the plaintiff was laid

off for economic reasons, a genuine issue of material fact

remains as to whether Mayor Cochran and the plaintiff had

the conversation as alleged, and further, whether the force

reduction was merely a pretext for what was in fact impermis-

sible political retribution. If the plaintiff were penalized for

exercising his first amendment right of association, then his

property interest, or lack of it, in continued employment

is irrelevant. Neither the defendants’ motion for summary

judgment, nor the accompanying brief addresses the issue

of the allegation of impermissible interference with the

plaintiff's first amendment rights.

Defendant Cochran does not contend, nor could he, that

he would be entitled to a qualified immunity, had he indeed

laid off the plaintiff on the basis of whom he supported or

voted for in an election, Accordingly, defendant Cochran's

motion for summary judgment in his individual capacity is

denied.

A suit against a municipal officer in his or her official

capacity is tantamount to a suit against the governmental

entity itself. Brandon v. Holt, 469 U.S. 464 (1985). In order to

hold the City of Corning liable, the plaintiff must allege that

the city had a custom or policy of impermissibly firing or

laying off employees on the basis of their political affiliations.

No such policy is alleged. Accordingly, summary judgment is

granted to all defendants in their official capacities.

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D-3

Council members in their individual capacities are

entitled to absolute immunity when functioning in their

legislative capacities. Lake Country Estates, Inc. v. Tahoe

Regional Planning Agency, 440 U.S. 391 (1979); Gorman

Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir. 1980).

Clearly the council members in this case were functioning in

their legislative capacities when they voted to reduce the force

in the water department, which led to the plaintiff's “lay off.”

Accordingly, Gene Kellett, Edwin Ahrent, Clarence Thomas

and Dorothy Johnson are hereby granted summary judgment

in their individual capacities.

This 15th day of September, 1986.

/S/ Henry Woods

U.S. District Judge