Petition for Writ of Certiorari — Baker v. Mecklenburg County

Ms Guprncs Court, U.S.

MEIDED

| oo um

4

NOSEPH F. SPANIOL, JR.

VY

90-3995

i

——

IN THE

Supreme Court of the Anited States

October Term, 1990

LLOYD BAKER,

Petitioner,

MECKLENBURG COUNTY, NORTH CAROLINA, et ai.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

FROM THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

AND SUPPORTING APPENDIX

MICHAEL A. SHEELY

Attorney at Law

418-423 Law Building

730 East Trade Street

Charlotte, NC 28202

(704) 376-6591

Counsel for Petitioner Baker

Appellate Printing Services * 523 East Main Street * Richmond, VA 23219 * (800) 642-7789

¢ |

I - QUESTION PRESENTED FOR REVIEW

Can an appellate court appropriately

review the issue of the sufficiency of the

evidence to see whether it supports a jury

verdict and hold that it is insufficient when

the defendants explicitly limit their motion

for a judgment notwithstanding the verdict

(j.n.o.v.) to the single ground that the

plaintiff's remarks to the district attorney

about the alleged financial improprieties of

his superior are not protected by the First

Amendment of the United States Constitution

since they are not a matter of "public con-

cern" in that they were motivated by plain-

tiff's privately motivated desire for

"revenge" and none of the defendants' motions

for directed verdict contained the specific

reason that there was no evidence of a causal

connection between the remarks and adverse

\

employment decisions?

o2e

i ae

TABLE OF CONTENTS

PAGE(S)

I - QUESTION PRESENTED FOR 1

REVIEW:

II - LISTING OF THE PARTIES 2

III - REFERENCES TO OPINIONS 3

IV - GROUNDS UPON WHICH THE 3

JURISDICTION OF THIS

COURT IS INVOKED

V - STATUTE INVOLVED IN 5

THIS CASE

VI - STATEMENT OF THE CASE 5

VII - ARGUMENT 10

A. The Court Of Appeals 10

Decision In This Case

Conflicts With

Decisions Of Other

Circuits

B. The Court Of Appeals 19

Decision Has So Far

Departed From The

Accepted And Usual

Course Of Judicial

Proceedings As To Call

For An Exercise Of

This Court's

Supervisory Powers

(1)

TABLE OF CONTENTS

The Issue Of The Scope

Of Appellate Review

Under These

Circumstances Is

Important Enough For

This Court To Grant

The Petition

VIII - CONCLUSION

IX - APPENDIX

(a)

(b)

(c)

(d)

(e)

(f)

Opinion Appealed

From

Correction to Appeal

Appealed From

District Court Order

Order Denying

Appellate Rehearing

Defendants' Post

Trial Motion For

Judgment

Notwithstanding

The Verdict

Text Of Federal Rules

of Civil Procedure,

Rules 50(a), 50(b)

X - CERTIFICATE OF SERVICE

(ii)

PAGE(S)

20

App. 54

24

ll ee i i se ea ie

rs

|

TABLE OF AUTHORITIES

COURT DECISIONS

Fishman v. Clancy,

763 F.2d 485 (ist Cir. 1985)

Orlando v. Billcon Interna-

tional et al., 822 F.2d 1294

(3rd Cir. 1987)

Reichman v. Bonsignore et al.,

818 F.2d 278 (2nd Cir. 1987)

Walters v. City of Atlanta,

603 F.2d 1135 (llth Cir. 1986)

STATUTES

28 USC Federal Rules of Civil

Procedure Rule 50

TREATISES

Stern and Gressman, Supreme

Court Practice, 5th Ed.

(BNA, 1975)

Wright and Miller, Federal

Practice and Procedure,

Civil § 2521, Vol.9, p.537

(West Publishing, 1971)

(111)

PAGE(S)

4,13,14,

15,18,19,20

4,12,13,15,

18,19,20

5,8,10,11,

18,20,21,

22,23

20

21,22

II - LISTING OF PARTIES

The parties are:

(a) Lloyd Baker, plaintiff (petitioner

herein), employee of defendant Mecklenburg

County, North Carolina.

(b) Defendants (Respondents herein):

(1) Mecklenburg County, North

Carolina;

(41) Gerald Fox, County Manager;

(iii) Harry Weatherly, Director of

Finance of Mecklenburg County and immediate

superior of Lloyd Baker;

(iv) Louie Strickland, Mecklenburg

County Personnel Director.

III - REFERENCES TO OPINIONS

Set forth in the attached Appendix are

the opinions in this action. All are unre-

ported. The opinions are: the opinion, as

corrected, upon which this petition is

seeking relief from (App. 1 - App. 24);

district court order/judgment (App. 24 - App.

37); and appellate order denying rehearing

(App. 38 - App. 39).

IV - GROUNDS UPON WHICH THE JURISDICTION

OF THIS COURT IS INVOKED

The jurisdiction of this Court is being

invoked pursuant to 28 U.S.C. § 1254. The

Fourth Circuit's opinion (App. 1 - App. 22)

was dated August 27, 1990 (App. 1). A

correction to the dissent (App. 23 - App. 24)

was filed on September 20, 1990 (App. 23).

The appellate order denying plaintiff's

motion for rehearing (App. 38 - App. 39) was

filed on September 27, 1990 (App. 38).

The Fourth Circuit Court of Appeals con-

sidered the issue of the sufficiency of all

-3-

a ee

of the evidence as to all defendants when the

issue of the sufficiency of the evidence in

the defendants' motions for directed verdict

was limited to one particular ground as to

two (Weatherly, Strickland) of the four

defendants and was entirely absent from both

the remaining two defendants (Fox,

Mecklenburg County) and the defendants'

motion for judgment notwithstanding the ver-

dict (j.n.o.v.). This action of the

appellate court conflicts with the following

decisions from other circuits: Orlando v.

Billcon International, et al., 822 F.2d 1294,

1298 (3rd Cir. 1987); Reichman v.

Bonsignore, et al., 818 F.2d 278, 281 (2nd

Cir. 1987); Walters v. City of Atlanta, et

al., 803 F.2d 1135, 1146 (11th Cir. 1986);

and, Fishman v. Clancy, 763 F.2d 485, 489

(lst Cir. 1985). This action of the

appellate Court appears to be a departure

from the accepted and usual course of judi-

cial proceedings.

VY - STATUTE INVOLVED IN TEIS CASE

The statute involved in this case is 28

U.S.C. Federal Rules of Civil Procedure Rules

50(a) and 50(b). The text of same is set

forth in the attached Appendix at App. 53 -

App. 54.

VI - STATEMENT OF THE CASE

The plaintiff, Lloyd Baker, filed his

Complaint on May 2, 1986. Jurisdiction was

conferred upon the district court pursuant to

28 USC § 1343(a)(3) since the claim was based

on 42 USC § 1983 and the First and Fourteenth

Amendments of the United States Constitution.

Baker alleged that because he went to the

local District Attorney (Gilchrist) about

what he perceived as either improper or cri-

minal activity on the part of his immediate

superior he was subjected to various adverse

employment decisions. Baker made his claims

pursuant to 42 USC § 1983 (subjected

-5-

to retaliatory and adverse employment deci-

sions because Baker exercised his First

Amendment rights by going to District

Attorney Gilchrist about Alberty's

activities). The named defendants are:

Mecklenburg County; Gerald Fox, County

Manager; Harry Weatherly, Finance Director;

and, Louie Strickland, Personnel Director.

Baker specifically alleged the following

adverse employment decisions: removal of

specific duties; Alberty's job as Assistant

County Manager remained unfilled and even-

tually was eliminated so that Baker could not

get it; Baker's job title was changed in

January, 1985, his wages were frozen and his

pay grade lowered; and, he was gradually

lowered in rank within the Finance

Department.

The case was submitted to the jury on

the following § 1983 issues: selection of

Weatherly as Acting Finance Director;

othe

selection of Weatherly as the permanent

Finance Director; December, 1985 job perfor-

mance review rating; and, the reclassifica-

tion of plaintiff's job position in January,

1985. The jury awarded $27,400.00 in damages

in finding for Baker on three of the four

issues (App. 24-25).

The District Court denied the defen-

dants'-motion for judgment notwithstanding

the verdict (j.n.o.v.). The District Court

entered judgment, specific relief, costs and

fees (App. 24-37). The defendants filed a

timely notice of appeal.

The appellate decision, over a dissent:

addressed the issue of the "sufficiency of

the evidence"; declared that the District

Court had been "alerted" to the issue of the

sufficiency of the evidence after stating

that the issue "could have been raised more

clearly"; distinguished cases cited by Baker;

and, held that since the evidence only raised

-7-

a "possibility" instead of the required

"probability", the case should not have been

submitted to the jury (App. 1-20). The

dissenting opinion: did not specifically

address the question of whether the

"sufficiency of the evidence" issue was pro-

perly before the Court; and, found the evi-

dence to be sufficient for submission to the

jury (App. 21-22). A petition for rehearing

was denied (App. 41-42).

After the jury trial, the defendants

filed a j.n.o.v. motion wherein they stated:

1. At the close of the plaintiff's

evidence, the defendants moved for

directed verdicts pursuant to Fed. R. of

Civ. P. 50(a) upon the basis (1) that

the plaintiff's evidence with respect to

his second cause of action (the pendent

North Carolina tort of intentional

infliction of emotional distress) was

insufficient to make out a prima facie

case, (2) that the plaintiff's evidence

with respect to Messrs. Strickland and

Weatherly upon the first cause of action

(alleged retaliation for exercise of

First Amendment rights) was insufficient

to go to the jury as to those defendants

because Messrs. Strickland and Weatherly

had no knowledge or information with

regard to the exercise of the First

Amendment rights, and (3) that the

we

——————————

plaintiff's remarks were to further his

purely private interest in retaining or

maintaining his position with the

Finance Department and that the comments

were, accordingly, not protected against

employer retaliation by any of the

defendants. All motions were denied

without prejudice.

At the close of all the evidence, the

defendants repeated all of their motions

for directed verdicts. The defendants'

motions with regard to the North

Carolina tort of intentional infliction

of emotional distress were granted. All

other motions were denied.

This motion for judgment not-

withstanding the verdict pertains to all

issues answered in favor of the plain-

tiff and is made upon the third proposi-

tion mentioned above, i1.e., that where

the sole point or purpose of the plain-

tiff's remarks was to further his purely

private interest of retaining or main-

taining his own position with the

Finance Department, his comments lacked

First Amendment protection against

employer reaction. (App. 40-42) (emphasis

supplied)

Defendant's counsel stated that:

he (Baker) is entitled to to to the

jury as to Mr. Fox because he did have

information, as to Mr. Fox alone and on

-9-

the subject of Mr. Fox's recommendation

that Mr. Weatherly be named acting

Finance Director...! (parenthesis added)

VII - ARGUMENT

A. The Court of Appeals Decision

In This Case Conflicts With

Decisions Of Other Circuits

In this case the Court of Appeals held

as follows:

The County and the individual defen-

dants argue that this court should

reverse the decision below because there

is insufficient evidence to show that

protected speech was the motivating fac-

tor in any adverse employment decision.

In response, Baker claims that the

defendants waived their argument

regarding the sufficiency of the evi-

dence by failing to properly raise it

below.

Perhaps the sufficiency of the evi-

dence argument could have been raised

more clearly below in the motions for

directed verdict and judgment n.o.v.

1. The claim against Fox was dismissed by the

majority appellate opinion because of insuf-

ficient evidence. (App. 10-12) This claim

was never the subject of any Rule 50(a)

motion made by the defendants. (App. 43-45)

This shows the sweeping nature of the

majority opinion's improper consideration of

"insufficiency of evidence" issue.

=10-

However, we find that the defendants'

Rule 50(a) motion for a directed verdict

alerted the district court to this issue

and that the defendants sought to renew

this argument in the motion for judgment

n.O.V. .-.in this case, the court below

was adequately informed at the close of

all of the evidence of the nature of the

defendants' contention that there was a

deficiency in the evidence. (App. 8-9)

When one compares the holding of the

Court of Appeals with the record, it is

explicitly clear that the appellate decision

conflicts with the record in the following

ways:

(a) The Court of Appeals stated that

the defendants' j.n.o.v. motion "sought to

renew" the issue of the sufficiency of the

evidence. (App. 8) The defendants' j.n.o.v.

motion limits itself to the following:

This motion for judgment not-

withstanding the verdict pertains to all

issues answered in favor of the plain-

tiff and is made upon the third proposi-

tion mentioned above, i.e., that where

the sole point or purpose of the plain-

tiff's remarks was to further his purely

private interest of retaining or main-

athe

———————V

taining his own positions with the

Finance Department, his comments lacked

First Amendment protection against

employer reaction. (App. 45)

(b) The Court of Appeals found that the

motions for a directed verdict and j.n.o.v.

properly alerted the district court to the

issue of the sufficiency of the evidence as

to all adverse employment decisions. (App.

8-9) The defendants' motions for a directed

verdict raise the sufficiency of evidence

issue as to two defendants (Weatherly,

Strickland) but not to the third and fourth

defendants (Fox; Mecklenburg County). The

defendants' j.n.o.v. motion is not concerned

with the sufficiency of evidence issue since

it explicitly argues only the "public con-

cern" issue. (App. 43-45)

The Court of Appeals' decision to enter-

tain the "sufficiency of evidence issue"

below conflicts with various circuit opi-

nions.

(a) Walters v. City of Atlanta, 803

ot2o

F.2d 1135, 1146 (llth Cir. 1986): In

Walters, the defendants, at the trial level

asserted that the issue of damages for mental

distress should not go to the jury because

there was insufficient proof of the tort for

intentional infliction of emotional distress.

The issue was submitted to the jury. The

jury returned a verdict which included dama-

ges for mental distress. The defendants, on

appeal, argued that there was insufficient

proof of damages for mental distress. The

appellate court declined to consider the

issue and stated:

Any deficiency in the evidence which is

not specifically addressed in the motion

for directed verdict may not be raised

on appeal...To perserve such a claim for

appeal, a party must squarely present it

to the trial court and afford that Court

the initial opportunity to consider it.

(Emphasis added)

(ob) Reichman v. Bonsignore, et al., 818

F.2d 278, 281 (2nd Cir. 1987): This is an

age discrimination in employment case. The

willfulness issue was submitted to the jury.

On appeal, the employer challenged the

sufficiency of the evidence on the

willfulness issue. The Reichman court

declined to consider the issue and stated:

Under these circumstances, where the

specific contention was never called to

the District Court's attention,

appellate review of the sufficiency of

the evidence of the evidence on that

point is inappropriate. (citation omit-

ted) (Emphasis added)

(c) Orlando v. Billcon International et

al., 822 F.2d 1294, 1298 (3rd Cir. 1987): In

Orlando, the district court granted the

defendants' j.n.o.v. motion after the jury

returned a verdict in favor of the plaintiff

on his "tortious interference" claim. The

district court granted the j.n.o.v. motion

because of the plaintiff's failure to prove

lost profits. The appellate court reversed

the district court because the specific issue

of insufficient evidence as to lost profits

was not present in the defendants' motions

for a directed verdict.

(d) Fishman v. Clancy, 763 F.2d 485,

489 (lst Cir. 1985): The First Circuit

«thn

ial

stated that where a defendant failed to

object to the submission of the issue of

punitive damages to a jury, the failure to

object ordinarily precludes appellate review

of the issue of the sufficiency of evidence

as to punitive damages.

The conflict between the Court of

Appeals' decision and the above ctied circuit

decisions arises in that the foregoing

authorities require that the issue upon which

the appellant seeks review must have been

"Specifically raised" (Walters; Reichman;

Orlando; and Fishman) and "squarely presen-

ted" (Walters) to the trial court. If one

compares the issue on appeal ("because there

is insufficient evidence to show that pro-

tected speech was the motivating factor in

any adverse employment decision..."; (App. 8)

with the defendants' motions for a directed

verdict and j.n.o.v. (App. 43-45) it is clear

that said issue was neither "specifically

raised" nor "squarely presented" to the trial

-15-

Oat OS ieee tt.

court. In fact, the Court of Appeals

acknowledged that "Perhaps the sufficiency of

the evidence argument could have been raised

more clearly below in the motions for

directed verdict and judgment n.o.v." (App.8)

The Court of Appeals clearly should not have

considered the issue since it was not

"specifically raised" and "squarely presen-

ted" to the trial court.

A detailed analysis of the defendants'

motions for a directed verdict and j.n.o.v.

and the Court of Appeals' decision shows that

the "sufficiency of evidence" issue was

inappropriately considered by the Court of

Appeals.

(a) The defendants' motions for

directed verdict only addressed the suf-

ficiency of evidence as to defendants

Weatherly and Strickland. This issue was

further limited to the factual issue of

whether Strickland and Weatherly were aware

o%€«

of Baker's remarks prior to the time of the

adverse employment decisions. (App. 43-45)

(bob) The defendants' motions for a

directed verdict utterly fail to make any

mention of defendants Fox and Mecklenburg

County.

(ec) The defendants' j.n.o.v. motion is

limited to the issue of whether Baker's

remarks are a matter of "public concern.” It

utterly fails to make any sufficiency of evi-

dence argument. (App. 43-45)

(d) The Court of Appeals defined the

appellate issue as "insufficient evidence to

show that the protected speech was the moti-

vating factor in any adverse employment

decision." (App. 8) This precise issue was

never presented in the defendants' motions

for directed verdict and j.n.o.v.

(e) The Court of Appeals held that

there was insufficient evidence as to Baker's

claim against Fox (App. 10-11) This issue

-17-

was never raised by the defendants in their

motions.

It is clear that the Court of Appeals

inappropriately considered the precise issue

of the sufficiency of evidence to show a

causal connection between the remarks and the

adverse employment decisions. The defen-

dants' motions for a directed verdict do not

contain this precise ground. Furthermore, by

the time of their j.n.o.v. motion, the defen-

dants have abandoned "any of the sufficiency

of evidence" resons and explicitly limit

their emphasis to the "public concern" issue.

The Court of Appeals erred when it relaxed

the "specifically raised" and "squarely pre-

sented" requirements set forth in Walters,

Reichman, Orlando and Fishman, supra. In so

relaxing the standard, the Court of Appeals

thwarted the purpose of Rule 50 and rendered

a decision which conflicts with the above

cited authorities.

-18-

B. The Court Of Appeals Decision

Has So Far Departed From The

Accepted And Usual Course Of

Judicial Proceedings As To

Call For An Exercise Of This

Court's Supervisory Powers

It appears to the petitioner that a

decision of the Court of Appeals is a far

departure from the accepted and usual course

of judicial proceedings. This is because of

the Court of Appeals "relaxed" standard

referred to above when the usual standard is

the "specifically raised" (Orlando, Reichman,

Walters and Fishman, supra) and "squarely

presented" (Walters) to the district court.

Petitioner submits that the supervisory

powers of this Court should be exercised

because «i the importance of the issue.

-19-

C. The Issue of The Scope of

Appellant Review Under These

Circumstances Is s Important

Enough F For. This Court To

Grant The Petition

The issue of importance is a factor in

deciding whether a petition will be granted.

It is a relative factor affected by many mat-

ters. See e.g. Stern and Gressman, Supreme

Court Practice, 5th Ed., pp. 284-285 (B.N.A.

1978).

Baker submits that the issue raised

herein is one of critical and practical

importance. Some circuits (Orlando,

Reichman, Walters, Fishman) require that each

basis of the Rule 50 motion for directed ver-

dict or j.n.o.v. be "specifically raised" and

"Squarely presented" to the trial court so

that it can have the first opportunity to

consider the precise issue. Furthermore,

these requirements present the non-moving

party with a opportunity to re-open the case

and present evidence on the precise issue.

-20-

On the other hand, at least in this case, the

Fourth Circuit only requires that the trial

court be “alerted". (App. 8) This relaxed

"alerting" standard avoids the precision and

specificity required by the authorities cited

nerein. It also enables the appellate court

to either review issues which are not pro-

perly before it or to review issues broader

than those contained in the motions for

directed verdict or j.n.o.v. Either

situation results in the purpose of Rule 50

being thwarted.

The purposes of Rule 50 are to: provide

a device whereby a trial court can enforce

rules of law; iron out procedural complexi-

ties; and, raise and preserve legal questions

concerning the sufficiency of the evidence.

Wright and Miller, Federal Practice And

Procedure, Civil § 2521, Vol. 9, p. 537 (West

Publishing, 1971). The requirement is that

the specific reasons for either a motion for

directed verdict or j.n.o.v. must be stated.

~ i

The requirement is important. Wright, Civil

§§ 2533, 2537. Strict compliance with the

procedural provisions of Rule 50 is necessary

in order to obtain appellate review of the

issues raised in the Rule 50 motions. See

Wright, Civil § 2540 and authorities cited

above. In this case, the Fourth Circuit, by

utilizing the "relaxed standard" reviewed

matters clearly beyond the appropriate scope.

Such an approach deprives Rule 50 of the uni-

formity sought by the Rules of Civil

Procedure.

The lack of using the strict standard of

"specifically raised" and "squarely presen-

ted" allowed the defendants to escape the

consequences of their decisions. The defen-

dants chose the limited grounds (sufficiency

of evidence for one reason and two of four

defendants) set forth in their motions for

directed verdict and the even more limited

ground (Baker's remarks are not a matter of

o2%=

1 eg

public concern) of their j.n.o.v. motion.

This escape was provided by the appellate

court's decision to review a specific issue

which was not raised in their Rule 50

motions. It is important that a defendant be

required to live with the results of his or

her choices.

VIII - CONCLUSION

For the reasons set forth herein, this

Court should grant Mr. Baker's petition.

This the \S day of December, 1990.

418-423 Law Building

730 East Trade Street

Charlotte, NC 28202

(704) 376-6591

N.C. State Bar# 3958

Member of U.S. Supreme Court Bar

Attorney for Petitioner Baker

-23-

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LLOYD BAKER,

Plaintiff-Appellee,

versus

MECKLENBURG COUNTY, NORTH CAROLINA; GERALD G.

FOX, individually and as county manager;

LOUIS JOE STRICKLAND, individually and as

personnel director; J. HARRY WEATHERLY, JR.,

individually and as finance officer,

Defendants-Appellants,

and

NATHAN E. ALBERTY,

Defendant.

Appeal from the United States District Court

for the Western District of North Carolina,

at Charlotte. James B. McMillan, Senior

District Judge. (CA-86-232k-C-C-M)

Argued: March 8, 1990

Decided: August 27, 1990

Before ERVIN, Chief Judge, and HALL and

WILKINS, Circuit Judges.

Appendix (App.) 1

Reversed by unpublished per curiam opinion.

Judge Hall wrote a dissenting opinion.

ARGUED: James Orr Cobb, Jr., RUFF, BOND,

COBB, WADE & MCNAIR, Charlotte, North

Carolina, for Appellants. Michael Anthony

Sheely, Charlotte, North Carolina, for

Appellee. ON BRIEF: Shelly Blum, Charlotte,

North Carolina, for Appellee.

Unpublished opinions are not binding prece-

dent in this circuit. See I.0.P. 36.5 and

36.6.

App. 2

PER CURIAM:

Mecklenburg County, Gerald G. Fox, Louie

Joe Strickland, and J. Harry Weatherly appeal

from a jury verdict which found them guilty

of violating Lloyd Baker's first amendment

rights. The jury awarded Baker $27,400 in

damages after finding that the various defen-

dants discriminated against him in making

employment decisions because he told the

County Manager and the District Attorney that

his supervisor was misusing County funds.

After thoroughly reviewing the record and

hearing oral argument we reverse the judgment

of the lower court because there is insuf-

ficient evidence that the employment deci-

sions were made in retaliation against Baker

because of his statements about the misuse of

County funds.

I.

Lloyd Baker was Accounting Manager in

the Mecklenburg County Finance Department

urider Finance Director Nathan Alberty from

App. 3

1976 until 1982. In July, 1982 Alberty

announced his decision to reorganize the

department. He split it into two units--

"Finance and Administration" and

"Operations." Alberty placed Baker at the

head of Operations and selected Harry

Weatherly, formerly Baker's subordinate, to

sities the Finance and Administration Unit.

Before the reorganization, Weatherly reported

to Baker. After the reorganization,

Weatherly reported directly to Alberty, Baker

was given fewer seaponetetiietes: and Baker

was instructed to report to Weatherly in

Alberty's absence.

Baker complained about the reorganiza-

tion. He spoke to Strickland, the County

Personnel Director, to Fox, the County

Manager, and to Alberty himself about it.

The main topic of these meetings was

Alberty's authority to reorganize the depart-

ment. However, Baker also told Fox about

what he thought were financial improprieties

App 4

on the part of Alberty. Baker claimed that

Alberty nad used County employees for outside

business activities. Baker first learned of

these alleged improprieties in May of 1980.

The first time he mentioned them to anyone

was in a July 1982 meeting with Fox. Because

Fox did not act on the matter, Baker met with

District Attorney Peter Gilchrist to discuss

Alberty's alleged misuse of funds in August

1982.

In November 1982, the District Attorney

talked to Fox about conducting a criminal

investigation of Alberty in connection with a

matter unrelated to Baker's complaints. As

part of the investigation, Gilchrist asked

Baker to meet with a State Bureau of

Investigation agent. This meeting took place

in April 1983. The subject of the meeting

was Baker's knowledge, if any, of alleged

kickbacks received by Alberty in connection

with computer contracts. Baker had no

knowledge of any such kickbacks.

App. 5

In 1983 County Manager Fox recommended

that the Board of County Commissioners ter-

minate Alberty's position as Finance

Director. On Fox's recommendation, the Board

chose Weatherly for the position of acting

Finance Director.?+

During a meeting of the Finance

Department in June of 1983, Fox made an

announcement that Alberty had been placed on

leave. Fox also stated that there had been a

departmental leak to the news media from the

finance office. Baker commented that he was

being blamed for the leak because he had gone

to the District Attorney in 1982. Weatherly

was present at this meeting; however,

Strickland was not a Finance Department

employee and did not attend the meeting.

Baker filed a suit against Mecklenburg

County, Fox, Strickland, Weatherly and

Alberty claiming that they retaliated against

1. In May 1984 Weatherly was selected to be

the permanent Finance Director.

App. 6

him because he told Fox and Gilchrist that

Alberty was misusing County funds.

Specifically, Baker claimed that: (1) Fox

submitted only Weatherly's name to the Board

of Commissioners as a candidate for acting

Finance Director, (2) Weatherly lowered

Baker's performance ratings as a result of

his statements, (3) Weatherly failed to sup-

port him as a manager and reduced his respon-

sibilities from 1984 through 1987, and (4)

Fox, Weatherly, and Strickland were respon-

sible for reclassifying his job.

Baker settled all claims against

Alberty. The remaining claims were presented

to a jury which found that Fox retaliated

against Baker by recommending that Weatherly

be the acting Director of Finance, that no

retaliation was involved in the selection of

Weatherly rather than Baker as Director of

Finance in 1984, that Weatherly retaliated

against Baker by lowering his job performance

evaluation in 1985, and that Fox, Weatherly,

App. 7

and Strickland retaliated against Baker by

reclassifying his job position in January,

1985.

II.

The County and the individual defendants

argue that this court should reverse the

decision below because there is insufficient

evidence to show that protected speech was

the motivating factor in any adverse

employment decision. In response, Baker

claims that the defendants waived their argu-

ment regarding the sufficiency of the evi-

dence by failing to properly raise it below.

Perhaps the sufficiency of the evidence

argument could have been raised more clearly

below in the motions for directed verdict and

judgment n.o.v. However, we find that the

defendants' Rule 50(a) motion for a directed

verdict alerted the district court to this

issue and that the defendants sought to renew

this argument in the motion for judgment

n.oO.v. The cases cited by Baker in which the

App. 8

court refused to review an issue because it

was not presented in a motion for a directed

verdict at the close of the evidence can all

be distinguished because, in this case, the

court below was adequately informed at the

close of all of the evidence of the nature of

the defendants’ contention that there was a

deficiency in the evidence.?

2. Baker cites Kinzenbaw v. Deere & Co., 741

F.2d 383, 387 (Fed. Cir. 1984), cert. denied,

470 U.S. 1004 (1985); Litman v. Mass Mutual,

739 F.2d 1549, 1556-57 (llth Cir. 1984);

Orthokinetics, Inc. v. Safety Travel Chairs,

NC., .2ed 1 ed. Cir. 1986); Walters

v. City of Atlanta, 803 F.2d 1135, 1146 (llth

Cir. 1966); Hughes v. Halifax County School

Dd., 855 F.2d 183 (4th Cir. 1988), cert.

denied, 109 S.Ct. 867 (1989); and Federal

Sav. & Loan Ins. Corp. v. Reeves, 816 F.od

130, 137-38 (4th Cir. 1987). In Kinzenbaw,

5

Litman, Orthokinetics and Walters, the

appellant failed to raise the contested issue

in a motion for a directed verdict after the

close of the evidence. In Litman, the defen-

dant raised his argument in a motion for

directed verdict after the plaintiff's case,

however, the appellant did not reassert his

argument at the close of all of the evidence.

Furthermore, in response to the motion at the

close of plaintiff's evidence, the trial

App. 9

oy #

We agree with the defendants that there

is insufficient evidence in the record to

Support the verdict. In Whalen v. Roanoke

County Board of Supervisors, 797 F.2d 170

(4th Cir. 1986) (en banc), this court held

that an issue must be supported by evidence

which shows a "probability" of proof rather

than a mere "possibility" before it properly

can be submitted to a jury. Baker failed to

make that showing in this case.

The first question submitted to the jury

was whether the selection of Weatherly to be

the acting Director of Finance rather than

Baker violated Baker's first amendment

rights. At trial, Baker claimed that Fox

retaliated against him by recommending

Weatherly to the Board of County

court determined that the issue had not been

preserved for trial. In the Fourth Circuit

cases, Hughes, Reeves, and Miller, this court

did not refuse to review the contested

issues.

App. 10

Commisioners for the position of acting

Finance Director. Fox testified that he

recommended Weatherly because for the pre-

vious year and a half, Fox had had an oppor-

tunity to work with Weatherly. According to

Fox, since the 1982 reorganization, Weatherly

was essentially second in command and acted

in Alberty's stead.

After reviewing the record, we find that

there is insufficient evidence of reta-

liation. Weatherly was a logical choice to

fill the position of acting Finance Director,

and there is no evidence showing that Fox had

any reason to retaliate against Baker. There

is no evidence that Alberty and Fox were

close friends or that Fox would wish to reta-

liate against Baker for any other reason for

remarks made against Alberty. In fact, Fox

eventually fired Alberty for reasons totally

unrelated to Baker's allegations. We thus

find that there is insufficient evidence to

prove that Fox chose Weatherly in retaliation

App. ll

against Baker for making statements protected

by the first amendment.

The next question presented to the jury

was whether Weatherly retaliated against

Baker by lowering his performance ratings in

1985. Baker argues that Weatherly lowered

his performance ratings because he told Fox

and Gilchrist that Alberty was misusing

County funds. Again, we find that there is

insufficient evidence to support a verdict

against the defendant, Weatherly.

First, there is little, if any, evidence

showing that Weatherly knew about Baker's

statements to Fox and Gilchrist in 1982 and

1983. Weatherly testified that he had no

knowledge of Baker's reports. Baker has

shown no evidence that anyone told Weatherly

about the reports or that Weatherly ever men-

tioned the meetings. Rather, Baker claims

that Weatherly overheard Baker's remark to

Fox at the 1983 departmental meeting that he

had gone to the District Attorney. This is

App. 12

not evidence showing a probability of proof.

In addition, there is no evidence to

show that Weatherly had a reason to retaliate

against Baker for making remarks against

Alberty. It seems obvious that Weatherly's

motive for criticizing Baker's performance,

if any, was not any statement made against

Alberty, but rather Baker's complaints about

the reorganization of the department in which

Alberty promoted Weatherly. Baker's protest

against the reorganization is not protected

speech under the first amendment and cannot

be a basis for the jury verdict.

Finally, the jury was asked whether

Weatherly, Strickland, or Fox reclassified

Baker's job to retaliate against him for his

statements about the misuse of County funds

by Alberty. Again, there is scant, if any,

evidence supporting a verdict against the

defendants on this claim.

In 1985, the County Personnel Department

conducted an evaluation of Finance Department

App. 13

jobs. It was a routine practice for the

classification and compensation division (the

"division") of the County Personnel

Department to evaluate job positions at the

request of a department every time changes

were made in employee positions or department

operations. Alberty requested the study

after he reorganized the Finance Department.

A member of the division explained that

the reclassification was based upon infor-

mation provided by the employees and their

supervisors about their responsibilities.

The division does not promote or demote

employees. Rather, the division studies

questionnaires that are completed by the

employees, and gives the job position a score

according to factors such as the degree of

responsibility and difficulty of the job,

etc. The score places the job within the

County's pay plan. Based upon this study,

the division determines whether the position

needs to be retitled.

App. 14

as — —

Baker's job reclassification was based

upon information provided by Baker about his

responsibilities in 1984. Because of a

reduction in his duties, the division recom-

mended a reclassification of his job and a

freeze on his pay potential. His salary was

not reduced. As a matter of routine prac-

tice, Strickland and Fox approved the

reclassification. Howéver, they were not

involved in the decision to conduct the study

or the decision to reclassify Baker's

position.

Just as there is insufficient evidence

to show that Weatherly retaliated against

Baker because of Baker's statements to Fox

and Gilchrist by lowering Baker's performance

ratings, there is also insufficient evidence

to show that Weatherly retaliated against him

by reclassifying his job. Alberty asked the

classification division to study the Finance

Department after he reorganized the depart-

ment. The division recommended the change in

App. 15

Baker's title and salarly potential based

upon information supplied by Baker in 1984.

While Weatherly may have been partially

responsible for the fact that Baker had fewer

responsibilities in 1984 than he had prior to

that time, the evidence does not show a pro-

bability that Weatherly reduced Baker's

responsibilities because of Baker's state-

ments about Alberty. Again, the record shows

little, if any, evidence that Weatherly knew

about Baker's conversations with Fox and

Gilchrist, and even less evidence that

Weatherly was motivated to make any

employment decision based upon those state-

ments.

There is also no evidence showing that

Strickland knew about Baker's reports or was

motivated to retaliate against Baker.

Strickland testified that he was unaware of

Baker's statements to Fox and the District

Attorney until after Baker filed this

lawsuit. Fox testified that he never

App. 16

revealed any of the Alberty information to

Strickland. Baker provided no evidence that

anyone ever told Strickland about his allega-

tions against Alberty. As evidence of

Strickland's knowledge of the reports, Baker

points to the testimony of employee Patricia

Grigg who testified that she overheard

Strickland remark to County employee Alan

McBrayer:

I'm, sorry I had to be so hard on

you.... Did you see me set him up?

I set him up like a clay pigeon....

The statement was made after a meeting called

to determine whether or not an employee, Ana

Dixon, should be disciplined for writing a

check without prior approval. Grigg believed

that Strickland was telling McBrayer that

Strickland had "set up" Baker.

McBrayer and Strickland, however,

testified that Strickland was not talking

about Baker, but about McBraye. According to

McBrayer, Strickland told him that he had

asked McBrayer some pretty rough questions in

App. 17

the disciplinary meeting. Strickland's

questions had forced McBrayer to take a

viewpoint directly opposed to Baker's opi-

nion. Baker was McBrayer's immediate

superior at the time. Strickland indicated

that he hoped that he had not set up McBrayer

for retaliation by Baker.

Grigg's testimony is hardly evidence of

"Drobability" that Strickland knew about

Baker's reports to Fox and Gilchrist or that

Strickland retaliated against Baker because

of those reports. This is only speculation

by an employee who overheard a vague remark

about what the remark meant. Furthermore, in

addition to the absence of evidence of

Strickland's knowledge of Baker's complaints

about Alberty, we note the fact that the

reclassification of Baker's job occurred in

1985, over two and a half years after Baker's

meetings with Fox and Gilchrist. We also

note that Strickland did not initiate the job

€valuation or participate in the decision to

App. 18

reclassify Baker's job. Strickland merely

approved a recommendation by the classifica-

tion and compensation division.

There is also insufficient evidence that

Fox retaliated against Baker. Fox, of

course, knew about Baker's accusations.

However, there is no evidence that Fox wanted

to demote Baker because of his allegations.

Like Strickland, Fox merely signed a decision

made by another group of employees to

reclassify Baker's position.

IV.

The County also argues that Baker's sta-

tements about Alberty's alleged misuse of

County funds were not a matter of public con-

cern because Baker was acting in his own pri-

vate interest. Because we find that there

was insufficient evidence showing a casual

connection between the statements and the

alleged employment decisions, we need not

reach this issue.

App. 19

V.

Having searched the record for evidence

to support the jury verdict but having failed

to find it, we reverse the district court's

order awarding judgment for Baker.

REVERSED

App. 20

Mat et eer ele mn

ON RO ee

a LelintS Nae Sith in

HALL, Circuit Judge, dissenting:

I would not disturb the jury verdict in

this case.

If this court sat as a de novo trier of

facts, and I were called upon to draw the

most reasonable inference from direct evi-

dence in the cold record, I would perhaps

agree with the version concluded upon by the

majority. Nonetheless, the appellate perch is

a much more difficult place to find facts

than is a jury box. Consequently, we are not

assigned the arduous duty to conduct a quest

for the ultimate truth in every case; when

our limited examination discovers contro-

verted evidence which reasonable minds may

interpret differently, our inquiry is at an

end.

From 1982 until the filing of this case

Baker's status, responsibility, and treatment

at work steadily and inexorably declined.

Fox's admonitions about news leaks when

Alberty resigned certainly tend to show that

App. 21

employee whistleblowing was discouraged; by

the timing of the remarks, they show that Fox

attributed Alberty's downfall, at least in

part, to such whistleblowing. Strickland's

"clay pigeon" comment can be reasonabiy read

as evidence of deliberate intent to discrimi-

nate against Baker.

The district. court concluded that there

was sufficent evidence to put all inferen-

ces necessary to Baker's case within the ver-

dict. Though, as my colleagues’ majority

opinion shows, other reasonable minds might

have reached a contrary result, there was

sufficient evidence to support the judgment.

I repectfully dissent.*

* Because of its disposition of this appeal,

the majority declines to address what the

parties treated as the focal issue--whether

Baker's statements involved "matters of

public concern." See Connick v. Myers, 461

U.S. 138 (1983). They plainly do. The

public should be as vitally concerned with

allegations of financial improprieties by

those entrusted with public funds as is a

farmer whose henhouse is guarded by the pro-

verbial fox.

App. 22

Filed: September 20, 1990

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

(CA-86-232-C-C-M)

Lloyd Baker,

Plaintiff - Appellee,

versus

Mecklenburg County, et al,

Defendants - Appellants.

ORDER

The Court amends its opinion filed

August 27, 1990, as follows:

line

On page 14, 4th full paragraph -- a new

3 is inserted. The paragraph now reads:

The district court concluded

that there is sufficient evidence

to put all inferences necessary to

Baker's case withir the range of

probability. This conclusion was

vindicated by the jury's verdict.

Though, aS my colleagues' majority

opinion shows, other reasonable

minds might have reached a contrary

result, there was sufficient evi-

dence to support the judgment.

For the Court - By Direction

/s/ John M. Greacen

CLERK

App. 23

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

Charlotte Division

C-C-86-232-M

LLOYD BAKER,

Plaintiff,

)

)

)

MECKLENBURG COUNTY, NORTH )

CAROLINA; GERALD G. FOX, )

individually and as County )

Manager; LOUIE JOE ) ORDER

STRICKLAND, individually )

and as Personnel Director; )

J. HARRY WEATHERLY, JR., )

individually, and as Finance )

Officer; and NATHAN E. ALBERTY, )

)

)

Defendants.

This § 1983 case was tried to a jury

beginning on December 3, 1987, and on

Devember 9, 197, the jury returned a verdict

in favor of the plaintiff, finding as

follows:

"Were the plaintiff's rights of free

speech under the First Amendment of the

United States Constitution violated by:

"1. Selection of Weatherly rather

than plaintiff to be the Acting Director

of Finance in June, 1983?

"ANSWER: Yes

App. 24

Repmeten <<< SC

"If so, what amount is the plaintiff

entitled to recover of defendants

Mecklenburg County and Fox?

"ANSWER: $2,000.00

"2. Selection of Weatherly rather

than plaintiff to be Permanent Director

of Finance in 1984?

"ANSWER: No

"If so, what amount is the plaintiff

entitled to recover of defendants

Mecklenburg County?

"ANSWER: None

"3. Unfavorable evaluation of plain-

tiff's job performance in 1985?

"ANSWER: Yes

"If so, what amount is the plaintiff

entitled to recover of defendants

Mecklenburg County and Weatherly?

"ANSWER: $5,100.00

"4H, Reclassification of plaintiff's

job position from Accounting Manager to

General Accounting and Disbursement

Manager in January, 1985, by:

"a. Mr. Fox and Mecklenburg County

ANSWER: Yes

"b. Mr. Weatherly and Mecklenburg

County

ANSWER: Yes

App. 25

"c. Mr. Strickland and Mecklenburg

County

ANSWER: Yes

"If the answer to issue 4 is yes as

to any one or more of the defendants, what

amount is the plaintiff entitled to recover?

ANSWER: $20,300.00"

On December 14, 1987, plaintiff filed a

motion for relief, asking (1) that his salary

be adjusted to the appropriate level; (2)

that his 1985 and 198t performance eva-

luations be corrected; (3) that his current

job title and pay scale be corrected; (4)

that the defendants be ordered not to make

any adverse employment decision affecting him

on the basis of his visits to the District

Attorney or his bringing this lawsuit; and

(5) that he recover costs and attorney's

fees.

On December 17, 1987, defendants filed a

motion for judgment notwithstanding the ver-

dict. Plaintiff responded to defendants'

motion on December 22, 1987. Defendants

App. 26

responded to plaintiff's motion for attorney

fees and costs on December 23, 1987, and

filed a post-trial memorandum on January 4,

1988.

All pending motions were heard on

January 14, 1988, and are decided as set

forth below.

Defendants' motion for Judgment

Notwithstanding the Verdict.--Defendants

maintain that the plaintiff's speech does not

Warrant First Amendment protection because

plaintiff's sole purpose in speaking to the

District Attorney about the alleged criminal

acts of former Assistant County Manager

Alberty was to further plaintiff's purely

private interest of retaining or maintaining

his own position with the county Finance

department.

Defendants do not deny that Alberty's

alleged criminal activities and breaches of

public trust were matters of public concern.

Instead they contend that speech by a public

App. 27

employee, regardless of its content, does not

warrant First Amendment protection if the

public employee speaks as a disgruntled

employee and not as a concerned citizen.

Defendant's assertion that the speaker's

motives, rather than the speech's content,

determine the scope of First Amendment pro-

tections is incorrect.

When a public employee claims to have

suffered discrimination because of that

employee's exercise of rights guaranteed by

the first amendment to the United States

Constitution, the reviewing court must make a

two-step analysis. The court must first

determine if the subject speech is a matter

of public concern. See, Connick v. Myers,

461 U.S. 138 (1983). If the speech is a

matter of public concern the court must per-

form a balancing inquiry and determine if the

interests of the speaker and the community in

the speech outweigh the interests of the

employer in maintaining an efficient

App. 28

workplace. See, Pickering v. Board of

Education, 391 U.S. 563 (1968); Piver v.

: Pender County Board of Education et al.,

F.2d Ss (4th Cir. 1987) No. 87-2536.

wee ee

In assessing whether the subject speech

is about a matter of public concern the focus

is on "whether the 'public' or the ‘'com-

munity' is likely to be truely concerned with

wei Swe RN Se ERE Mt CSO ATE

or interested in the particular expression,

or whether it is more properly viewed as

essentially a 'rrivate' matter between

employer and employee." Berger v. Battaglia,

779 F.2d 992, 998-99 (4th Cir. 1985); Piver

Ret BAD y's EEE Be EL hone

v. Pender, at - The speaker's motives may

be relevant to the inquiry but they are not

dispositive.

When plaintiff spoke with the local

District Attorney he did not complain about

his working conditions, a personal grievance

or the reorganization of the County's Finance

Department. He complained about then

Assistant County Manager Nathan Alberty's

. App. 29

stealing money and property from the County's

till. Plaintiff began learning about

Alberty's alleged wrongdoings in late 1980

and communicated his concerns about these

improprieties to the District Attorney in

August 1982. Defendants maintain that the

only reason plaintiff went to the district

Attorney in August 1982, was that he was

upset with Alberty's reorganization of the

Finance Department in July 1982, and its

impact on plaintiff's job responsibilities.

Defendants' argument ignores the credible

testimony of plaintiff that he was fearful of

revealing the 1980 wrongdoing prior to the

time that he did, because of possible reta-

liation by Alberty; that he went to the

District Attorney as a citizen concerned

about a public matter; and that he spoke with

the District Attorney about alleged wrong-

doings between March and June, 1982, as well

as the alleged wrongdoings in June, 1980.

App. 30

Plaintiff "blew the whistle" on

Alberty's padded expense account. The sub-

ject speech was clearly a matter of public

concern and since the defendants do not claim

that the efficient running of the County's

offices has been in any way harmed by plain-

tiff's speech, the speech is deserving of

constitutional protections.

Defendants' motion for judgment not-

withstanding the verdict is DENIED.

Plaintiff's motion for relief.

Plaintiff is entitled to relief as follows:

1. Adjustment of plaintiff's salary to

the appropriate pay grade and classification.

--In answer to issue number 4 the jury found

that the 1985 reclassification of plaintiff's

job from Accounting Manager to General

Accounting and Disbursement Manager was reta-

liatory. When plaintiff was reclassified his

Salary was frozen, his job title was changed,

and his pay range was lowered from "SAM Grade

3, step 7 to SAM Grade 7, step 7."

App. 31

To make plaintiff whole he must be

placed in the position he was in before the

retaliatory reclassification took place. The

defendants and the court are not free to spe-

culate as to how or to what level plaintiff's

position might have been reclassified, free

from discrimination, during the ensuing

years.

2. Job performance evaluations.--In

answer to issue number 3, the jury found that

the unfavorable rating on plaintiff's 1985

job evaluation was retaliatory. Plaintiff

requests that the numerical rating on his

1985 and 1986 performance evaluation be

changed to 74.5, the rating he received in

1983.

The court will not fix some arbitrary

numerical rating for the 1985 performance

evaluation. Instead defendants are directed

to withdraw the "63.1" rating for 1985, and

change it to read "favorable."

App. 32

Since there is no jury finding per-

taining to plaintiff's 1986 evaluation, no

ruling will be made on that evaluation.

3. Attorney's fees.--In determining a

reasonable fee, courts in this circuit are to

consider the twelve factors enunciated in

Johnston v. Georgia Highway Express, Inc.,

488 F.2d 714, 717-719 (5th Cir. 1974), and

apply them in a manner consistent with

Hensley v. Eckerhart, 461 U.S. 424 (1983),

Blum v. Stenson, 465 U.S. 886 (1984), and

City of Riverside v. Riveria, U.S.

106 S.Ct. 2686 (1986).

1. Time and labor required.--The

1 verified time spent on the case by plain-

tiff's counsel is 200.2 hours. Defendants

acknowledge that this is a reasonable number

bieiitecccdeghthiadeire sais!

of hours to have expended on the case.

2. Novelty and difficulty of the

questions.--This case presented no new or

novel issues of law.

App. 33

3. Requisite skill.--The level of skill

required of plaintiff's attorney in this

First Amendment civil rights suit, a highly

contentious and emotion laden case, was

considerable.

4. Preclusion of other employment.--

Plaintiff's counsel does not claim that he

was precluded from accepting other employment

because of this case.

5. Customary fee.--Plaintiff's counsel

seeks $150.00 per hour. Defendants maintain

that an hourly rate of $150.00 is excessive

and that plaintiff's counsel should receive

no more than $115.00 per hour.

Plaintiff's counsel has submitted affi-

davits from two attorneys who are familiar

with his work and with the range of hourly

fees charged in Charlotte, North Carolina,

for civil rights cases. They both affirm

that $150.00 per hour is within the Charlotte

area range for federal court litigation.

App. 34

Defendants have not submitted any evi-

dence in support of their contention that an

hourly rate of $150.00 is excessive.

Recent orders of this court have awarded

$140.00 to $150.00 per hour to Charlotte

attorneys whose experience and skill is simi-

lar to that of plaintiff's counsel. See,

Norwood v. Charlotte Memorial Hospital, 653

F.Supp. 1350, 1354-1358 (W.D.N.C. 1987),

vacated and remanded on other grounds,

F.2d (4th Cir. 1987) unpublished opinion;

Thomas v. Cooper Industries, Inc., 640

F.Supp. 1374 (W.D.N.C. 1986).

6. Nature of the fee.--Counsel was

representing plaintiff on a contingency fee

basis. Had plaintiff lost, counsel would

have received no compensation for the 200.2

hours worth of work that he put into this

case.

7. Time limitations.--There is no evi-

dence or claim that the time limitations in

this case were in any way unusual or

App. 35

exceptionally demanding.

8. Results.--Defendants agree that from

plaintiff's standpoint the results were as

well as could be expected.

9. Experience of plaintiff's counsel.--

Plaintiff's counsel is an experienced and

able civil rights attorney. He has tried

many successful civil rights cases in this

court.

10. Undesirability of the case.--The

fact that all the parties to this case are in

the upper management of county government

does not make it any more desirable than

other civil rights cases, but as the term

"undesirable" is used in attorney fee analy-

sis, this was not an undesirable case.

11. Relationship with the client.--This

factor favors neither a high nor a low

lodestar fee.

12. Awards in similar casee.--This court

has awarded a lodestar fee of $150.00 per

hour in other employment discrimination

App. 36

cases. Norwood v. Charlotte Memorial

Hospital; Taylor v. Home Insurance Company,

NO. C-C-82-98-M (W.D.N.C. May 23, 1986);

Thomas v. Cooper Industries, Inc., 640

F.Supp. 1374 (W.D.N.C. 1986). However, the

issues in those cases were of greater

complexity than the issues raised by this

case.

Based on the foregoing, the court finds

that counsel for plaintiff should be compen-

sated for 200.2 hours at $140.00 per hour.

The court does not agree with the defen-

dants' suggestion that the lodestar fee be

reduced by 20% on account of the "amicability

enjoyed throughout [the proceedings]." |

Plaintiff's counsel is entitled to

recover attorney's fees of $28,028.00.

4, Costs and expenses.--Plaintiff is

entitled to recover costs and expenses

incurred in this litigation. Plaintiff's

verified motion for relief shows that the

costs and expenses incurred by plaintiff's

App. 37

counsel from May 1, 1986 throuth September

28, 1987, total $2,570.96.

Defendants contend that plaintiff's pho-

tocopying costs are not recoverable, that

$236.00 for service of process upon highly

visible public officials ought not be compen-

sable, and that $765.00 for subpoenas, wit-

ness fees, and service of process is

excessive.

The court finds that all of the claimed

expenses were reasonable, necessary to the

litigation of this case, and compensable

under the law.

On the basis of the foregoing, IT IS

HEREBY ORDERED, ADJUDGED AND DECREED that:

1. Defendants' motion for judgment not-

withstanding the verdict is DENIED.

2. Plaintiff shall recover from the

defendants as follows:

App. 38

aaah tok ee ee ee Se ee eT ee

ne

ISSUE NUMBER AMOUNT DEFENDANTS

1 $ 2,000.00 County, Fox

2 0 None

3 5,100.00 County, Weatherly

4 20,300.00 All

$27,400.00

3. Defendant shall restore plaintiff to

the pay grade and job classification, i.e.,

SAM grade 3, step 7, he held prior to the

unlawful reclassification of his position in

January, 1985.

4, Plaintiff's salary shall be retroac-

tively set at the rate appropriate to SAM

grade 3, step 7, and plaintiff shall have and

recover the resulting back-pay differential,

from December 9, 1986, to the present.

5. Defendants shall change plaintiff's

1985 job performance evaluation rating from

"63.1" to "favorable."

6. Defendants shall not retaliate in

any way against plaintiff because of this

suit or plaintiff's 1982 and 1983 com-

munications with the District Attorney.

App. 39

7. Plaintiff, as the prevailing party,

is entitled to recover from the defendants

$28,028.00 in attorney's fees and $2,570.56

for costs and expenses.

8. Interest shall be paid on all sums

now payable, at the maximum rate allowed

under North Carolina law, from December 9,

1986, the date of the jury verdict, until

paid.

This /s/ 30 day of March, 1988.

/s/ James B. McMillan

James B. McMillan

United States District Judge

App. 40

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 88-2097

LLOYD BAKER Filed

September 27,

Plaintiff-Appellee 1990

Vv.

MECKLENBURG COUNTY, NORTH CAROLINA; GERALD G.

FOX, individually and county manager;

LOUIS JOE STRICKLAND, individually and as

personnel director; J. HARRY WEATHERLY, JR.,

individually and as finance officer

Defendants~-Appellants

and

NATHAN E. ALBERTY,

Defendant.

On Petition for Rehearing with Suggestion

for Rehearing In Banc

The appellee's petition for rehearing

ane suggestion for rehearing in banc were

submitted to this Court. As no member of

this Court or the panel requested a poll on

the suggestion for rehearing in banc, and

App. 41

As the panel considered the petition for

rehearing and is of the opinion that it

should be denied,

IT IS ORDERED that the petition for

rehearing and suggestion for rehearing in

bance are denied.

Entered at the direction of Chief Judge

Ervin with the concurrence of Judge Hall and

Judge Wilkins.

For the Court,

JOHN M. GREACEN

CLERK

App. 42

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

NO. C-C-86-0232-M

LLOYD BAKER,

Plaintiff,

Ve

MECKLENBURG COUNTY, et al.,

NS NS SY SS OS SS OY

Defendants.

DEFENDANTS' MOTION FOR JUDGMENT

NOT WITHSTANDING THE VERDICT

The defendants, by and through their

attorneys of record, hereby move pursuant to

Fed. R. of Civ. P. 50(b) for judgment not-

withstanding the verdict, and the basis for

the motion is as follows:

1. At the close of the piaintiff's evi-

dence, the defendants moved for directed ver-

dicts pursuant to Fed. R. of Civ. P. 50(a)

upon the basis (1) that the plaintiff's evi-

dence with respect to his second cause of

action (the pendent North Carolina tort of

intentional infliction of emotional distress)

was insufficient to make out a prima facie

App. 43

case, (2) that the plaintiff's evidence with

respect to Messrs. Strickland and Weatherly

upon the first cause of action (alleged reta-

liation for exercise of First Amendment

rights) was insufficient to go to the jury as

those defendants because Messrs. Strickland

and Weatherly had no knowledge or information

with regard to the exercise of the First

Amendment rights, and (3) that the plaintiffs

remarks were to further his purely private

interest in retaining or maintaining his

position with the Finance Department and that

the comments were, accordingly, not protected

against employer retaliation by any of the

defendants. All motions were denied without

prejudice.

At the close of all the evidence, the

defendants repeated all of their motions for

directed verdicts. The defendants' motions

with regard to the North Carolina tort of

intentional infliction of emotional distress

were granted. All other motions were denied.

App. 44

This motion for judgment notwithstanding

the verdict pertains to all issues answered

in favor of the plaintiff and is made upon

the third proposition mentioned above, i.e.,

that where the sole point or purpose of the

plaintiff's remarks was to further his purely

private interest of retaining or maintaining

bis own position with the Finance Department,

his comments lacked First Amendment protec-

tion against employer reaction.

2. Natham Alberty was a defendant in

this litigation. The plaintiff settled his

claim against Mr. Alberty and, accordingly,

has received satisfaction for whatever

unlawful retaliation may have been admi-

nistered by Mr. Alberty. The settlement is

reflected by the plaintiff's stipulation of

dismissal with prejudice with respect to his

claims against Mr. Alberty, which stipulation

was filed on November 18, 1986. Hence, only

the alleged retaliation by the defendants

Fox, Weatherly, and Strickland is at issue.

App. 45

3. Our thesis is that First Amendment

free speech protection applies to public

employees no less but no more than to all

other citizens. For example, the State may

not make it a crime for citizens (including

public employees) to criticize public offi-

cials with respect to public issues; nor may

the State impose a civil penalty upon citi-

zens (including public employees) for such

criticism. When a public employee speaks as

a concerned citizen upon public issues, he is

protected just as are all other citizens; and

this protection extends to employment reta-

liation, which happens to be a form of

penalty that is uniquely available to the

State with respect to a public employee. But

when the speech or expression results purely

from an employment dispute and when the sub-

ject is directly related to that dispute, the

public employee is not speaking as a con-

cerned citizen but is, rather, motivated

solely to obtain or to retain something that

App. 46

has value only to the particular public

employee. In this context, and only for

public employment purposes, the speech and

the employer reaction to it may not be the

subject of a 42 U.S.C. §1983 action because

the speech has lost First Amendment protec-

tion against employer reaction, even though

the speech remains protected under the First

Amendment for all other purposes in precisely

the same way that First Amendment protection

would apply to similar speech by citizens at

large.

4. On December 3, 1987, the defendants

filed with the court a supplement to their

trial brief, which supplement contains a

recital of all of the relevant facts and cir-

cumstances and contains also all of the rele-

vant authorities except one. The defendants

hereby incorporate the supplement to their

trial brief into this motion.

5. A copy of the supplement to our

trial brief, which was filed on December 3,

App. 47

1987, is attached to this motion. We wish to

mention one additional case, which is Lewis

v. Blackburn, 734 F.2d 1000 (4th Cir. 1984),

rev'd 759 F.2d 1171 (en banc) (4th Cir.

1985), cert. den. v0.8. , 106 8.Ct.

228, 88 L.Ed.2d 228 (1985). Judge Ervin's

dissent to the panel opinion (734 F.2d

1008-1012) became the opinion of the en banc

Fourth Circuit by an overwhelming 8 to 2 vote

(759 F.2d 1171 and 1172).

The facts in Lewis are relatively

simple. Clerk Blackburn asked or directed

Magistrate Lewis to do some additional micro-

filming in connection with her judicial

duties. Magistrate Lewis spoke out against

the microfilming assignment. Clerk Blackburn

and Judge Snepp refused to renominate and

appoint Ms. Lewis to her magistrate's posi-

tion because of her vocal opposition to Clerk

Blackburn's directive. Judge Ervin con-

sidered, explained and followed Connick v.

Myers, 461 U.S. 138, 103 S.Ct. 1684, 75

App. 48

L.Ed.2d 708 (1983) in his opinion, which was

adopted by eight members of the Fourth

Circuit, and the gist of the opinion is as

follows:

In reaching the conclusion that

Myers's speech wa8S personal in nature,

the [Supreme] Court wrote that 'whether

an employee's speech addresses a matter

of public concern must ve cetermined by

the content, form, and context of a

given statement as revealed by the

whole record.' [citation to Connick v.

Myers omitted] Here, it is beyond

dispute that Lewis's complaints began

upon learning that she would be assigned

additional duties. The record as I view

it is unequivocal that the motivation

for her complaints was personal effron-

tery over being asked to do more work,

not public-spirited concern over the

administration of Justice. (734 F.2d at

1010)

6. In late 1980, Mr. Baker saw the

| document (Defendant's Exhibit 5), which con-

| firmed Mr. Baker's suspicions that Mr.

Alberty had padded his expense account with

respect to a May, 1980 trip to Phoenix,

Arizona. Mr. Baker kept this knowledge or

information to himself from late 1980 until

July 21, 1982 when he mentioned the subject

App. 49

to Mr. Fox. On July 19, 1982 (Defendant's

Exhibit 15), Mr. Alberty had reorganized the

Finance Department by promoting Mr.

Weatherly, which resulted in a loss of

authority and a lessening of responsibility

for Mr. Baker. This July 19, 1982 reorgani-

zation of the Finance Department caused Mr.

Baker to run to Mr. Fox two days later with

information and documents, some of which had

been in Mr. Baker's possession for more than

a year and a half, and caused Mr. Baker to

run to the District Attorney within a few

weeks thereafter. The obvious and irrefu-

table reason or purpose for Mr. Baker's con-

versations (his alleged First Amendment

expressions) was Mr. Baker's purely personal

concern about his position in the Finance

Department. The plaintiff's concern did not

exist until he was demoted. To paraphrase

from Judge Ervin's language quoted above, the

record is unequivocal that the motion for Mr.

Baker's revelations with respect to Mr.

App. 50

Alberty was concern over his July 19, 1982

demotion, not public-sprited concern that his

superior may have padded an expense account

or may have engaged in other financial

improprieties. Based upon the undisputed

facts and the authoriti entioned in this

motion and in the December 3, 1987 supplement

to our trial brief, judgment notwithstanding

the verdict must be entered in favor of the

defendants because Mr. Baker did not speak

out as a citizen concerned with the integrity

of the Finance Department but spoke orly as

an employee who was attempting either to

avoid the unfavorable employment decision by

Mr. Alberty or to injure Mr. Alberty if the

decision stood.

This 17th day of December, 1987.

App. 51

/s/ James O. Cobb

James O. Cobb

RUFF, BOND, COBB, WADE & MCNAIR

2100 First Union Plaza

Charlotte, North Carolina 28282

(704) 377-1634

and

/s/ Tyrus V. Dahl, Jr.

Tyrus V. Dahl, Jr.

WOMBLE CARLYLE SANDRIDGE & RICE

Post Office Drawer 84

Winston-Salem, North Carolina

27102

(919) 721-3600

Attorneys for Defendants

Mecklenburg County, Fox,

Strickland, and Weatherly

App. 52

Rule 50. Motion for a Directed Verdict and

for Judgment Notwithstanding the

Verdict.

(a) MOTION FOR DIRECTED VERDICT: WHEN

MADE; EFFECT. A party who moves for a

directed verdict at the close of the evidence

offered by an opponent may offer evidence in

the event that the motion is not granted

without having reserved the right so to do

and to the same extent as if the motion had

not been made. A motion for a directed ver-

dict which is not granted is not a waiver of

trial by jury even though all parties to the

action have moved for directed verdicts. A

motion for a directed verdict shall state the

specific grounds therefor. The order of the

court granting a motion for a directed ver-

dict is effective without any assent of the

jury.

(b) MOTION FOR JUDGMENT NOTWITHSTANDING

THE VERDICT. Whenever a motion for a

directed verdict made at the close of all the

App. 53

evidence is denied for for any reason is not

granted, the court is deemed to have sub-

mitted the action to the jury subject to a

later determination of the legal questions

raised by the motion. Not later than 10 days

after entry of judgment, a party who has

moved for a directed verdict may move to have

the verdict and any judgment entered in

accordance with the party's motion for a

directed verdict. A motion for a new trial

may be joined with this motion, or a new

trial may be prayed for in the alternative.

If a verdict was returned the court may allow

the judgment to stand or may reopen the

judgment and either order a new trial or

direct the entry of judgment as if the

requested verdict had been directed. If no

verdict was returned, the court may direct

the entry of judgment as if the requested

verdict had been directed or may order a new

trial.

App. 54

we le a reeey Ct a Ae

X - CERTIFICATE OF SERVICE

The undersigned hereby certifies

that he has this day served copies of

Baker's PETITION FOR CERTIORARI AND APPENDIX

upon opposing counsel by depositing said

copies in the United States Mail, postage

prepaid, addressed as follows:

Mr. James O. Cobb

Ruff, Bond, Cobb, Wade & McNair

Attorneys at Law

Two First Union Center

Suite 2100

Charlotte, NC 28282-8283

This the day of December, 1990.

Mehal BS

MICHAEL A. SHEELY

418-423 Law Building

730 East Trade Street

Charlotte, NC 28202

(704) 376-6591

Attorney for Petitioner Baker

-2h-