KENNETH L. HUNTER v. TOWN OF MOCKSVILLE, NORTH CAROLINA
US Court of Appeals for the Fourth Circuit, Wynn, July 26, 2018,
First Amendment – A town was liable for retaliatory termination of officers who reported wrongdoing where the town manager who approved termination had been delegated authority to make final policy

(Concur and Dissent – Niemeyer – Insurance policy was not ambiguous)

Facts:
Three police officers were fired from the Mocksville Police Department after they tried to report concerns about the Chief of Police’s personal conduct and management.
They first tried to report the issues to the town manager. When that did not work, they contacted the Governor’s Office to report corruption and misconduct within the department.
Despite attempts to remain anonymous, the town manager and chief of police identified these three officers as the ones that made the report. The three were then terminated for “insubordination, attitude, and conduct unbecoming an officer.” However, prior to termination the three had “received numerous awards and commendations” and prior to termination “none had received any performance-related discipline.” Moreover, this was the first time that the chief had terminated an officer, “notwithstanding the fact that other officers previously had engaged in misconduct.”
After termination, the officers sued for retaliation for exercising their free speech rights, among other things.
After a nine-day trial, a jury found for the officers and awarded $1.4 million in compensatory damages as well as $60,000 in punitive damages. The jury also recommended $2.6 million in “front pay.”
Two of the officers requested reinstatement instead of front pay, but this was only granted as to one.
The trial judge decided that, while the town manager and chief of police were liable, they were not “final policymakers” and so the town should not be liable.
Both sides appealed.

Held: The Court held that the chief of police was not a “final policymaker,” but the town manager who was involved in the termination was a final policymaker, so the town was liable for damages.

First Amendment Liability

First Amendment – The First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech

Civil Action for Deprivation of Rights – “1983” suit- A government official can be sued in federal court for depriving someone of their federal constitutional rights. This is commonly referred to as a “1983” suit since it comes from 42 USC 1983.

Civil Action for Deprivation of Rights – “1983” suit- A 1983 case against a local government must involve harm caused by the implementation of an official policy

Civil Action for Deprivation of Rights – Municipal Liability – A municipality cannot be held liable solely because it employs someone who violated the constitutional rights of another. It can only be liable if the violation “represents official policy.”

Civil Action for Deprivation of Rights – Municipal Liability – “A single act by a municipality may give rise to civil liability if it is shown that the officials of the municipality responsible for establishing the challenged policy made a calculated choice to follow the course of action deemed unconstitutional.”

Civil Action for Deprivation of Rights – Municipal Liability – If the decisionmaker has been given “final authority to establish municipal policy with respect to the action,” the municipality can be held liable for the action.

Example from the Case: The County Sheriff may have discretion to hire and fire employees without also being the county official responsible for establishing county employment policy. Instead, if county employment policy was set by the Board of County Commissioners, only that body’s decisions would provide a basis for county liability. This would be true even if the Board left the Sheriff discretion to hire and fire employees and the Sheriff exercised that discretion in an unconstitutional manner; the decision to act unlawfully would not be a decision of the Board. However, if the Board delegated its power to establish final employment policy to the Sheriff, the Sheriff’s decisions would represent county policy and could give rise to municipal liability.

From the Case: “The relevant local positive law in this case makes clear that the Town delegated to [the town manager] final and unconstrained policymaking authority with regard to the challenged actions at issue.”

From the Case: “We conclude that [the town manager’s] actions may fairly be imputed to the Town, as she acted with final policymaking authority when she fired Plaintiffs in violation of their First Amendment rights. We conclude further that [the Chief of Police] did not act with such authority. Because [the town manager’s] actions, by themselves, are sufficient to subject the Town to liability under Section 1983, we reverse the district court’s grant of summary judgment in favor of the Town on Plaintiffs’ First Amendment claims.”

Reinstatement

Wrongful Discharge – After a finding of wrongful discharge, reinstatement is the preferred equitable remedy

Wrongful Discharge – In some cases, reinstatement is impractical. In many cases, “a productive and amicable working relationship would be impossible” due to hostility before or caused by litigation.

From the Case: One of the officers stated on social media that “Mocksville was a crooked [expletive] hole of a town.” Thus, the district court’s denial of his request for reinstatement was based on sufficient evidence.

Front Pay – Front pay may be awarded in the case of wrongful termination to compensate for the time it would take to find new employment (or bridge to reinstatement).

Front Pay – Factors considered by the courts in deciding front pay include:
– the plaintiff’s age
– the length of plaintiff’s employment with the defendant-employer
– the likelihood that plaintiff’s employment would have continued absent the discrimination
– the length of time it would take plaintiff to secure comparable employment using reasonable efforts
– plaintiff’s work and life expectancy
– the typical length of time other employees held the position lost
– plaintiff’s status as an at-will employee
– plaintiff’s ability to work, including the ability to work for the defendant-employer
– plaintiff’s subjective intention to remain in the position
– plaintiff’s efforts to mitigate damages

From the Case: The District Court’s decision to award 1.75 years of front pay was not unreasonable. The court considered “Medlin’s tenure and likelihood of continued employment—including the length of time other employees typically held the position lost and Medlin’s subjective intent to continue employment—weighed in favor of a front-pay award, his age (forty-four years old) and work-life expectancy weighed against an extended front pay award. Additionally, the district court concluded that Medlin’s prospects of obtaining comparable employment moving forward are good given the interest he received from two police departments early on in his job search, and in light of the fact that the jury verdict in his favor removed ‘any cloud over his reputation as a result of his termination and this litigation.'”