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November 25, 1997

F.D.R. FOX, Plaintiff,
DISTRICT OF COLUMBIA, et al., Defendants.

The opinion of the court was delivered by: OBERDORFER

 Plaintiff filed this suit under 42 U.S.C. § 1983, alleging that he was terminated from his position as the director of security of the District of Columbia Lottery Board because he reported to the Metropolitan Police Department a theft of funds from the D.C. Lottery Claims Center, and that such termination violated his constitutional rights to free speech and due process. *fn1" Defendants were granted summary judgment on the due process claim, see March 22, 1994 Memorandum and Order, and the First Amendment claim went to trial in February 1995. After plaintiff presented his case-in-chief, a verdict was directed for the defendants on the grounds that Fox's report of the theft of funds was not a matter of public concern, and therefore not protected by the First Amendment. See February 17, 1995 Memorandum and Order. The Court of Appeals reversed, holding that plaintiff's report of the theft of funds was a matter of public concern. Fox v. District of Columbia, 317 U.S. App. D.C. 443, 83 F.3d 1491 (D.C. Cir. 1996). The Court of Appeals also vacated the earlier grant of summary judgment, holding that plaintiff's due process claim should be held in abeyance until he had adequate opportunity to pursue an administrative remedy.

 This ruling necessitated a second trial on plaintiff's First Amendment claim. On January 31, 1997, a jury determined via special verdict that (1) plaintiff proved by a preponderance of the evidence that his reporting to the Metropolitan Police Department the theft of funds from the D.C. Lottery Claims Center was a substantial or motivating factor in defendants' decision to terminate him; and (2) defendants did not prove by a preponderance of the evidence that they would have terminated the plaintiff even if he had not reported the theft to the Metropolitan Police Department. The jury also determined that Fox was entitled to $ 10,000 in compensatory damages, and that "defendants' termination of plaintiff was malicious or willful or in reckless disregard of plaintiff's rights," warranting an award of punitive damages in the amount of $ 100,000.

 That special verdict did not resolve the case. Plaintiff's First Amendment claim also required a legal finding as to whether his interest in commenting upon matters of public concern outweighed the interest of the Lottery Board in promoting efficient public service. See Pickering v. Bd. of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968); see also Pl's Mot. for Partial Summ. Judg. (96-1). Plaintiff moved for summary judgment on this issue on the eve of trial, and a ruling was deferred until after the verdict. See January 24, 1997 Notice to Counsel (94-1). By stipulation of the parties, issues concerning backpay and other damages were also reserved for post-trial determination by the Court, following additional discovery and briefing. See February 13, 1995 Stipulation (73-1). Finally, the parties filed numerous post-trial motions, including defendants' motions for judgment notwithstanding the verdict, a new trial, and/or remittitur; plaintiff's motion to "clarify" or amend the complaint; and defendants' motion to amend the answer.

 Assuming, as the Court of Appeals decided, that plaintiff's report to the police was a matter of public concern, I conclude that his interest in that speech did outweigh the interest of the Lottery Board in promoting governmental efficiency. Plaintiff thus has a colorable claim under the First Amendment. However, several fundamental legal issues concerning liability of the various defendants under § 1983 were either not raised or were improperly framed by the parties prior to submission of the case to the jury. For this reason, defendants' motion for a third trial must be granted in order to avoid a miscarriage of justice. Plaintiff's motion to amend the complaint is granted, to the extent that he may proceed to trial on the theory that defendant Sylvia Kinard is liable in her individual capacity for any violation of his First Amendment rights. Defendants' motion to amend the answer is likewise granted; the motion for remittitur is denied as moot. Plaintiff is also directed to show cause why his due process claim should not be dismissed for lack of prosecution.


 Plaintiff's First Amendment Claim

 The Supreme Court addressed the parameters of a public employee's First Amendment rights in Pickering v. Board of Education 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). Under Pickering, a public employee's cause of action has four elements. Hall v. Ford, 272 U.S. App. D.C. 301, 856 F.2d 255, 258 (D.C. Cir. 1988). Two of these are questions of law to be resolved by the court: whether the employee's speech involves a matter of public concern, and whether the employee's interest in commenting on such matters outweighs the interest of the State, as employer, "in promoting the efficiency of the public services it performs through its employees." Id., citing Pickering, 391 U.S. at 568. *fn2"

 The Court of Appeals has already determined the first of these legal questions, by holding that the theft of $ 500 from the Lottery Claim Center was a matter of public concern. 83 F.3d at 1495. On January 24, 1997, plaintiff moved for summary judgment on the second question. Defendants effectively responded in their February 10, 1997 motion for judgment as a matter of law.

 The Supreme Court has stated that in balancing the interests of the employee and the government employer under Pickering,

 Rankin v. McPherson, 483 U.S. 378, 388, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987) (internal quotations omitted).

 Pickering inquires "whether there was, in fact an interference with the efficiency of the public services performed. Where no such interference is shown, the discharge cannot be sustained." Tygrett v. Barry, 201 U.S. App. D.C. 293, 627 F.2d 1279, 1282 (D.C. Cir. 1980) (emphasis supplied); see also Brasslett v. Cota, 761 F.2d 827, 845 (1st Cir. 1985) (detrimental impact must be objectively shown lest "public employers . . . promiscuously offer a subjective explanation that could almost never effectively be rebutted"). Moreover, judicial review of the discharge "must be addressed solely to contemporaneous considerations." Tygrett, 627 F.2d at 1286. "Any kind of reconstruction of the reasoning behind the discharge that provides the employer with a post hoc justification for its action cannot be allowed." Id.


 It is undisputed that the manner, time, and place of the employee's expression and the context in which this "matter of public concern" arose is substantially as follows. On the morning of January 13, 1988, employees at the D.C. Lottery and Charitable Games Control Board discovered that a safe located at the claims center -- evidently left unlocked overnight -- was missing a little over $ 500. Fox, the Board's director of security, traveled from his office at Lottery Headquarters to the Lottery Claims Center to make some preliminary inquiries. He interviewed three employees, including Laverne Hinds, the custodian of the funds. He returned to Lottery headquarters and reported his findings to Bernard Edwards, the Director of the Lottery Board. Edwards and Fox agreed to wait for the results of an audit before deciding how to proceed. On January 14, the audit concluded that $ 508.58 was missing from the safe. Fox and Edwards decided that the police should be notified regarding the theft of government funds. Fox called the police on January 15, 1988, and notified them about the theft of funds. Fox provided the police with a report.

 On February 5th and 8th of 1988 defendant Sylvia Kinard, a deputy director of the Board, contacted Fox to determine why he was not interviewing suspects in the case. Fox responded that the matter was now a police investigation and thus no longer in the hands of the Lottery Board. He also told Kinard that he reported to Edwards, the director of the Board, and not to her. Kinard was not pleased with the manner in which Fox was handling of the matter. She testified that she thought his report to the police premature because Fox did not complete his own investigation first. Fox contended that the timing of his report was not really what bothered Kinard. Rather, it was his theory that Kinard was angry because his call to the police placed Laverne Hines, the Board employee responsible for safeguarding the missing funds and a relative of a friend of Kinard, under uncomfortable outside scrutiny -- scrutiny that allegedly delayed a desired promotion for Hines. In any event, Kinard succeeded Edwards as the Board's acting director in March 1988 and promptly fired Fox.


 Fox argues correctly that the Pickering balancing test -- weighing the interest of the employee in commenting upon matters of public concern and the interest of the employer in promoting the efficiency of the public services it performs -- tips in his favor. Fox points out that his job description, in fact, explicitly states that the Director of Security:

 Pl. Part. Mot. Summ. J., Exh. C. at 2.

 Fox acted within the scope of his authority as contemplated by his position description. He made a preliminary investigation of a "criminal or administrative violation," including interviewing witnesses and requesting an audit. He then made a "recommendation of [its] disposition to the Executive Director." That recommendation was to contact the Metropolitan Police Department. That is what he did, an action that the job description specifically contemplates.

 Fox also points out that defendants conceded before the court of appeals that Fox "made no allegation to the media, did not participate in a demonstration, and made no communication for general distribution." Id. at 6. Fox also demonstrates that defendants have previously characterized Fox's report of the theft to the police as "merely carrying out a routine job task in his capacity as Director of Security for the Lottery Board." Id.. Fox also accurately states that is undisputed that he did not violate any regulations in making his report. Nor is there any evidence of record that Bernard Edwards, the director of the Board at the time of this incident, criticized Fox's performance of his duties as Director of Security with respect to this incident or any other. See Edwards Dep. at 8.

 The government argues that Fox interfered with the efficiency of the workplace by failing to complete an internal investigation. Sylvia Kinard testified that she believed Fox should have completed an internal investigation instead of deferring to the investigation by the police. This showing is inadequate to justify Fox's termination for his exercise of protected rights. First, Fox called the police in consultation with Executive Director Edwards, as contemplated by Fox's position description. Second, the government has not demonstrated that any disruption caused by Fox's report to the police is the kind of disruption that adversely affects the efficiency of the workplace. In other words, Fox's report to the police might have ruffled some feathers--and perhaps even delayed a promotion--but there is no showing that the report materially affected the efficiency of the workplace. Third, to the extent that the record reflects any "disruption" resulting from Fox's failure to complete his internal investigation before calling the police, the disruption was de minimis in nature. Indeed, objectively, it was the correct way to deal with the situation. Prolonged internal investigation could delay and chill police professional activity, and lead to charges of "cover-up."

 The only other evidence in the record that may support the employer's interest pursuant to the Pickering balancing test is the testimony of several of Fox's co-workers who stated that they did not have "trust and confidence" in him. Indeed, "detrimental impact on close working relationships for which personal loyalty and confidence are necessary" is a recognized factor of the Pickering balancing test. This concern, however, is not at issue here because Pickering requires an inquiry only as to whether "the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." (emphasis added). Rankin, 483 U.S. at 388. The government made no showing that the lack of trust and confidence was attributable to the protected statement. Fox's coworkers, for example, testified that they were aware (by personal knowledge or otherwise) that Fox (i) may have included inaccurate or false information on his application for employment at the Lottery; (ii) looked out his office window with binoculars for purposes unrelated to work; and (iii) angered members of a nearby church by informing them that they could not park in the Lottery headquarters' parking lot. Witnesses also drew adverse inferences from the fact that Fox kept a fishing rod and a stack of newspapers in his office although none of these inferences were apparently informed by personal knowledge. The lack of "trust and confidence" in Fox by his coworkers thus is not relevant to the Pickering balancing test because the government did not show that this opinion of Fox was attributable to the fact that Fox reported $ 500 in missing funds to the police before he completed an internal investigation. In sum, Fox's interest in commenting on matters what has been determined to be of public concern outweighs the government's interest in promoting efficiency in the workplace.


 Defendants' Motion for Post ...

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