Robert Lee Wilson v. Irvin T. Taylor, as Acting Chairman and Examiner, Civil Service Board, Winter Park, Florida

Park Commission. FAY, HATCHETT, Before VANCE and public hearing, After a also held without Judges. Circuit formal notice the Commission HATCHETT, Judge: Circuit voted to overrule the Civil Board Service Beary’s reinstated dismissal or- case, In this we relief is decide what der. filed this lawsuit. brought available a suit U.S. under § (West 1974) C.A. 1983 officer by police The district court found that Wilson’s fired process rights from his without department had been vio- allegedly lated ordered the Winter Park officials dismissing continuing Wilson was his asso- hearing. After a remedial to hold Blackburn, and if Wil- ciation with Susan of Winter hearing, court-ordered discharged had he discharge. son would Park reaffirmed again see reneged promise on his not to officials’ motion granted the court district Blackburn, Wil- then district holding that Susan summary judgment, to whether the asso- determine discharged his associa- would because son was protect- Blackburn The court ciation with Susan was district a known felon. tion with Wilson, by the 658 his first ed first amendment. claim rejected 10, 1983, March after a F.2d at 1028. On association had amendment court, effect, trial, judg- court district entered The district infringed. against city in the for Wilson and discharged ment Wilson had been ruled that addition, $286,429.64. In with Susan amount association because $35,000 in Blackburn, court awarded Wilson association district but because attorney’s in costs. The district court fees Harlan Blackburn. with against proce- award for his suit any of Wilson’s total Wilson violations held that $324,429.64. city thus to rights had been cured amounted dural due hearing. Wilson’s the remedial through interrogatories, jury, special Fifth appealed to the Circuit was case (1) dischаrged that Wilson had been cluded (5th Cir. Taylor, F.2d 1021 Wilson Beary relationship due to his with by Chief 1981). vacated Fifth Circuit B Unit Blackburn, (2) Beary Chief was dele- Susan concluding judgment court’s the district authority the final or ultimate to gated as to fact existed genuine issue of why he discharge and to decide discharged. was why Wilson (3) discharged, Beary be should ultimate delegated the final or case to the district had been remanding the Upon any authority concerning court, the dis- appeals advised to be to cedures accorded Wilson.1 if a substantial factor trict court 4, you preponder- Question interrogatories find from a complete and their do 1. list that, regardless of his ance of evidence below: answers shown again, not to see Susan Blackburn refusal 1, Paragraph yоu preponder- find from a do discharged anyway Plaintiff would have been moti- that a substantial ance of the evidence possible past future associ- because of his Beary’s dis- vating decision to factor in Chief yes Blackburn? Answer or ation with Harlan charge not to was Plaintiff's refusal Plaintiff no. yes again? or Answer Susan Blackburn see No. Note, no. question your above if answer to -Yes. go your yes, question answer to 9. If was Note, your question 1 above if answer to no, go question number 5. was on to your yes, go was question to 2. If answer was 5, you Question do from a number find no, go question to 9. preponderance evidence that the 2, you preponder- Question from a do find Park, to Chief Florida discharging Plain- that in ance of evidence discharge to the final ultimate tiff, a belief was motivated why be decide he should Plaintiff and to with Blackburn Susan that future association yes or no. fired? Answer necessarily associat- result Plaintiff Yes. yes ing with Harlan Blackburn? Answer Note, question your to 5 above if answer no. go question yes, 7. answer on to If your was No. Note, no, go question 6. was on to your question 2 above if answer 6, you preponder- Question find do from your yes, go was question If answer was 3. ance of the evidence a substantial no, go question 4. motivating Commission’s factor in 3, preponder- you Question find from a do discharge ratify Beary’s decision to continu- that Plaintiff's ance evidence refusal not to see Su- Plaintiff was Plaintiff's present- ing Blackburn again? yes association with Susan or no. Blackburn Answer san association ed an undue risk оf future Unanswered. Note, yes your or no. question Answer 6 above Harlan Blackburn? if answer yes, go question your 7. answer no was on to If There is answer. no, Note, question go question above your 9. was on to answer 7, money Question do your what sum or sums of go If answer yes, 9. you preponderance the evi- find no, go 4. on to court denied the city’s right, rights district various mo- including speech guaranteed for directed association under tions motions for new first amendment.” trial, 1027. judgment motions notwith- examining In whether individual was standing the verdict. fired infringing upon for a reason a consti- right, tutional have applied courts the test Discussion Court in Picker- Supreme set forth Right of Association ing Education, v. Board 563, 391 U.S. proposition “A fundamental in our and Mt. (1968) 20 L.Ed.2d 811 Healthy City School District Board of jurisprudence gоvern constitutional is that v. Doyle, employment may Education ment not be conditioned relinquishment (1977). of a constitutional 50 L.Ed.2d 471 Note, your total dence to be the amount of if question Plaintiff's answer to 10 above damages proximatcly by discharge? no, caused yes, go question was on go to 11. If it was in dollars. Answer question on to 12. A, backpay, including degree pay, pay, base 11, Question money what sum or sums of pay, pay, pay, career $128,129.64. overtime certification you do preponderance find from a of the evidence to be the total amount of Plaintiff’s retirement, B, benefits, including health anguish mental and emotional dam- distress insurance, allowances, medical education ages solely by which were caused his failure vacation, benefits, paid Security death Social against to charges receive formal notice of the contribution, $18,- savings, of loss interest on respond him opportunity effective to 300. charges prior to discharge? those to his losses, C, including damage future to ca- dollars, $50,000. Amount in reer, income, damage person- loss of future to Note, go question on to 12. benefits, $40,000. reputation, of future al loss 12, Question you preponder- do find from a Note, you money if indicated of sums that, ance of the evidence at of the time Chief above, question go ques- response to on to appear Commission, Bcary’s City to the [sic] not, you go question 8. If tion did on to 9. Park, Florida, City delegat- of Winter had 8, you preponder- Question find a do from ed to Chief the final or ultimate author- of the evidence that the ance Plaintiff failed to notice, ity concerning any, what if was to be advantage out or take seek employm'erit opportunity of business or given appeal such to Plaintiff? Answer reasonably that was yes or no. available to him under all the circumstances evidence, so, shown and if what Yes. Note, is the reasonably your he question amount would have realized if to answer above advantage opportunity? he taken had of such yes, go question your was on to 14. If answer in dollars. no, Answer go question was on to 13. No answer is listed. 13, you preponderance do find from 9, 2, question you Part do find from a that, City the evidence at the time Com- that, preponderance of the evidence at the discharge, they mission ratified Plaintiff’s also discharge, City time Plaintiff's of Win- Beary’s providing ratified action of not Park, delegated ter Florida had to Beary’s Plaintiff with formal notice of Chief authority concerning the final or ultimate City yes to Commission? Answer receive, prior Plaintiff whether discharge, was to to his or no. charges formal notice of Not answered. against opportunity respond him and an to to Note, your question if to answer 13 above charges? yes those Answer or no. yes, go no, question was on to 14. If it was Yes. stop question here and do not answer 14. Note, your question if answer to 9 above money Question you what sum of do no, go yes, go was on to 11. it If was preponderance find of the evidence to on to 10. be the total amount of Plaintiff’s mental an- you City Question find that the guish and emotional distress which Park, Winter Florida had not such solely caused his failure to receive Beary, final ultimate to Chief do Bcary’s appeal City notice of Chief you preponderance find from a of the evi- Commission? Amount dollars. dence that the of the Commission $50,000. Park, Florida, Winter cither autho- decided to Bcary’s all, date, 8, 1983, ratify say signed rize or of not So we actions March S. giving Smead, charges Jury Plaintiff notice of formal Arnold Foreman. against respond opportunity him charges? yes those no. Answer Unanswered. case, held strongly The courts have that free- in this the burden Initially, longer is no tied merely dom of association upon respondent show properly placed advancing political to an beliefs. сonstitutionally pro- that his conduct By limiting power a “sub- tected, that this conduct was states to speech or, interfere freedom of put in other it stantial factor”— association, freedom of the fourteenth words, “motivating factor” that it was a protects persons all no mat- amendment not to him. decision rehire the board’s expres- what ter their views means burden, Respondent having carried that day It late in the sion. is too doubt however, have the district court should that this freedom of association extends board gone to determine whether the political or conventional associa- preponderance had shown tions and not to the social or the unortho- that it have reached evidence dox. respondеnt’s as to reem- same decision Pomerleau, F.Supp. 58, Bruns 64- ployment even the absence of (D.Md.1970). argument Contrary tected conduct. Park, raised at Healthy, Mt. expanded courts NAACP case, found that Wil- 576. In this interpretation the first Alabama amend- Susan Blackburn son’s association with concept ment freedom association. being factor in his a substantial constituted grown freedom of association police department, and fired from than include more associations which are fired in he would not have been found that purpose advancing for shared be- key of that association. the absence liefs. becomes, therefore, Wil- whether expansive an adopted The Fifth ‍​​‌‌​‌‌​​​​‌‌​‌​​​​​​​‌‌​​‌​​​​​​​‌​​​​​​‌​​‌​‌‌‍Circuit is with Susan Blackburn son’s association view of an individual’s first amendment Wil- constitutionally protected. Although right of Sawyer association Sand relationship argues that his with Susan son (5th Cir.1980). strom, 615 F.2d 311 philo- discussions of Blackburn entailed an overly that broad anti- court concluded issues, sophical and other social we beliefs loitering violated an individual’s ordinance though as Wilson and Susan view the issue right first amendment of association. must, dating.2 simply We Blackburn were appellant in this case not therefore, dating whether determine narcotics, charged possessing with or protected by the first type of association any peace; with other breach of the his freedom of association. amendment’s only act with “criminal” was to associate Supreme stressed Court individuals, knowing they certain Alabama, 78 357 U.S. NAACP v. unlawfully using рossessing ille- were or (1958), 1163, 1170,2 L.Ed.2d drugs. Appellant gal has been convicted in association for engage the freedom to loitering appar- under the ordinance is a and ideas the advancement of beliefs ently activity; innocent conviction part amendment clearly infringes basic fourteenth on free exercise rights. “Of process guarantee liberty. associational course, immaterial whether the beliefs it is Sawyer, Sawyer, F.2d at 316. Under per sought advanced association to be right the first amendment to associate is economic, religious or cul to political, tain merely limited to instances not those where may matters, tural and action which state meet to advance two more individuals to curtailing the freedom effect of have the Sawyer teaches that one’s shared beliefs. scrutiny.” subject closest right associate is associate encom- first amendment 460-61, Alabama, right simply meet with oth- passes 357 U.S. NAACP v. If, indeed, right of freedom of ers. 1170-71. S.Ct. at dating. was never asked address support a find- this 2. Evidence in record discussions) (dating philosophical and that issue ing by jury that Wilson trial court or by special interrogatory, engaged in discussions Susan were Blackburn finding as no on the well made issue. issues as philosophical and social body applies meeting relationship thought into association individuals their streets, it public apply political programme, govern- must into a also dating. man and a woman who are interference their interaction ment with implicates the first nonetheless amend- court, Sawyer As with the vocal, people Just assertive as ment. Housing Authority, v. Peekskill McKenna safeguard their invoke constitution (S.D.N.Y.1980),modified, F.Supp. 1217 expression, people silent freedom (1981), held that freedom 647 F.2d 332 protect should be able to invoke it to merely limited to those is not association their silence. advancing common where situations McKenna, F.Supp. at 1221. beliefs occurs. properly recog- recent cases More align follow Sawyer ourselves ap- First also that the Amendment nized holding recent the first cases associations, personal plies to social applies freedom amendment of association which including purport those do not advancing to situations where an For express and advocate ideas. exam- occurs, pure- of common beliefs but also to ple, in New York Hous. Tyson personal Using ly social and associations. (S.D.N.Y.1974), Auth., F.Supp. 513 Bruns, in Sawyer, the rationale Judge public housing held that Metzner McKenna, we conclude the relation- cause of action tenants had a under ship Susan between Blackburn they when of association protected under the first amendment eviction of acts threatened with because Contrary freedom association. did by adult children who committed argument city, offered freedom of Judge them. As Metzner ex- live with play merely association does not into come plained: advancing when of common beliefs this claim is that declar- the individuals in The nub of exists. Where ing ineligible contin- seek these tenants two individuals to associate with each other, any without occupancy promulgat- ued basis their evidence of acts, ing advancing political religious children’s defendants have and or be- liefs, they from “solely protected acted the fact associa- under the freedom plaintiffs provision. chil- tion” dren____ their of association claim, proven, a Such if interaction, It is the the associa run afoul of the First Amend- tion, protected. protection is The which guarantees every per- ment which play only does not come into when or two right freely son the associate with more individuals seek distill the fruits others, including members of his fami- relationship body thought their or into a ly- political McKenna, program. into a 497 at Id. 520. F.Supp. at 1221. A state violates four McKenna, F.Supp. at 1221. The rele- teenth amendment it seeks when to inter vant is whether individuals relationship fere with social of two or beliefs, common wish to advance but people. dating more We that conclude is they whether wish associate with others. type association protect which must be agrees This court the first amend- ed the first amendment’s freedom protection right for freedom ment’s of associa- association. Wilson’s to date Susan private right tion extends to associa- falls social Blackburn under his of freedom tions, aggregation per- even when of association. We further conclude that hortatory purpose____ sons infringing has no Sim- Wilson was fired for a reason ply group, pair, upon constitutionally-protected because a or even a freedom persons not distilled the fruits of association.3 - -, holding. 3. This is hold that a narrow We do not L.Ed.2d 345 (1983). (The may upheld a law be fired of a enforcement officer never Shawgo department punish because of others. a male female officer associations with cohabitation, denied, (5th Cir.), Spradlin, off-duty dating alleged cert. upon analysis earlier Liability Based our question, we con- freedom of association if city The even Wil contends that unconstitutionally Beary clude Chief rights were of association freedom son’s Monell, however, Wilson. Under dismissed violated, it cannot be held liable. Su held city may be liable Department in Monell Court preme of Beary authority the final or had ultimate York, New Social Services of government the local to make the within 2018, L.Ed.2d 611 98 S.Ct. 436 U.S. caused decision or take action which (1978) which set down standard that since the violation. contends municipali from could recover individuals through appellate process existed which an in section 1983 actions. ties termination, it fol- Wilson could conclude, therefore, that a local Beary not have the lows did may sued under sec- government not be authority Ac- final to terminate Wilson. solely by injury inflicted 1983 for tion cording city, it Commis- Instead, it is employees agents. its sion, Beary, not Chief who had and exer- policy government’s of a when execution authority cised the final to terminate Wil- custom, by its lawmak- whether made however, jury, answеring son. may acts by those whose edicts or ers or special question five found policy, represent said to official fairly be preponderance of the evidence that as injury government inflicts the that the Park, Florida, of Winter entity responsible under section authority to Chief the final to termi- 1983. nate Wilson and to conduct decide what justify was sufficient to termination. Monell, at 2037. 436 U.S. Circuit, analyzing the Mo- The Eleventh city contends the district court liability, municipal nell standard directing in not on Wilson’s erred verdict cluded: first amendment substantive claim because interpreted Fifth The former Circuit has presented no evidence was to indicate that that “in to mean liability authority this standard had the final to ter- ‘is the final those areas where the official minate Wilsоn. [city] repository ultimate Fifth the standard Circuit set forth

power, his official and decisions conduct governing directed verdict motions Boe- necessarily be those of must considered Shipman, 411 F.2d 365 ing Company v. fairly may edicts acts be one whose Cir.1969). (5th ” ‍​​‌‌​‌‌​​​​‌‌​‌​​​​​​​‌‌​​‌​​​​​​​‌​​​​​​‌​​‌​‌‌‍policy.’ represent said official point so If the facts inferences Atlanta, F.2d City v. 628 Schneider in strongly overwhelmingly and favor 915, (5th Cir.1980),quoting Familias 920 party that believes that one (5th Briscoe, 391, 404 619 F.2d Unidas arrive at a reasonable men could not Cir.1980)). contrary granting of the motions Gainesville, hand, City proper. On the other if there is Hearn 1328, (11th Cir.1982). opposed evidence to the mo- substantial case, 315-16.) finding Gasparinetti, the exi 568 F.2d at In this "a rational connection between forbidding city argument Department Winter Park gencies discipline and made the unit, especially dating protected quasi-military was not under the first amend- of a members rank, speech apartment provision. did an ment freedom of different to share those 483.) argument dating Shawgo, at See not make the that even if to cohabit.” 701 F.2d (3rd Kerr, protected under the Gasparinetti v. freedom of association also 568 F.2d amendment, denied, 903, Cir.1977), of the first a law enforce- cert. vision court, 2232, (The rights (1978). provision could al officer's under that L.Ed.2d 401 ment police to the work. though concluding police regula be curtailed due nature of that certain overbroad, advisory opinion render We choose not to unconstitutionally did tions were be termina- significant conduct would sufficient recognize government interest what "a police speech of a officer who associates regulating police in or tion some officers felons, individuals, suspects, public indicted certain promote efficiency instill der to ... their relatives. institution.” confidence in the law enforcement is, tions, quality promoted. Following evidence of such individual be weight protest officers, and fair by reasonable several other City impartial minded men in the exercise of promotion. Council rescinded the The Po- might reach different judgment conclu- vacancy ques- lice Chief then filled the sions, denied, motions should be tion. After several officers filed a section jury. suit, the case submitted Council ratified the chief’s decision. A faced Boeing, 411 F.2d at 374. The record is rife Fifth Circuit was whether thе Chief of Po- jury which a could with evidence from lice authority though exercised final even Beary had the final au- clude that Chief decisions were the city reviewable police thority to terminate officer. council. The court stated: Harrison, a former officer James E. Park, Beary

in Winter testified: “Chief did the question Thus becomes one of identi- always He fying take the final burden. authority the official who has Wilson, discussing while I was there.” policy; municipal liability make then at- Beary power to terminate an performed pursuant taches to acts officer, stated: policy. When an official has final authority in a matter Department. involving Police runs the Chief of selec- fired, says you goals tion of you If the Chief are are of means of achieving fired____ goals, represent Chief of Police governmen- has the choices See Schneider v. authority policy. sole and absolute within the tal At- lanta, Department to command it and run 915, 920; it 5 Cir. see fire____ authority generally and he has the I Schnapper, Rights Litiga- Civil knew at that time that the Police Monell, tion After 79 Colum.L.Rev. authority (1979). had the sole to fire me at that higher 213-21 If a official has time, accepted and I that as a termina- power to overrule a decision but as a tion. so, practical matter never does the deci- may represent sion maker the effective upon testimony Based of these individu- authority final question. Finally, als, concluded that Chief appeal even there is an of an action but possessed authority final to terminate Wil- appellate body defers substantial justi- son. This substantial evidence also part judgment original deci- fied the district court’s denial of the motion maker, original sion may. decision for directed verdict. be government’s viewed as the Id. policy. argues that the existence of an questions 223. These of the divi- appeals process to review termination deci- sion of between Chief of Police sions, by necessity, implies that Chief Watkins, promotions who initiated Beary's termination of fi- Wilson was not whose were uniformly recommendations support nal. Case law does posi- this accepted prior to the rescission of Pick- tion. It ap- must be remembered that an promotion, City Council, ens’s and the peal did not automatically follow a decision which power held at least a veto to terminate an officer. rescission, exercised it in pre-emi- duty officer, the terminated nently factual and are for decision in this case the termina- in the first instance. tion to the Civil Service Board. If the Beary’s Bowen, appeal, officer to chose not Chief 669 F.2d at 989-90. termination not be reviewed. is, thus, It clear that even where an Watkins, appellate process Bowen v. (5th In exists to review an offi- decision, Cir.1982), may cial’s that official question the court be held examined the to of authority city. whether an exercise final official exercised final au- within the As Bowen, thority may to make an official certain decisions even exercise such authority when even when appellate body those the decisions were reviewable Bowen, through occasionally reverses one appeals process. an In of his decisions. case, the though appellate Chief In even of Police had recommended that this an evidence, time Park, at the of the Civil of the that Wilson’s exists in Winter cess initially Park, Florida, ‍​​‌‌​‌‌​​​​‌‌​‌​​​​​​​‌‌​​‌​​​​​​​‌​​​​​​‌​​‌​‌‌‍Chief reversed discharge, city Board the of Winter Service decision, jury could the Beary’s termination delegated Beary authority the final had to Beary to ex- that continued conclude Chief receive, prior was to to on whether Wilson authority regarding termination final ercise termination, of charges formal notice the conclusion that Chief jury’s The decisions. against opportunity respond him and an to authority final was Beary this exercised charges. response question to those In to and was evidence supported substantial special the con- twelve jury. the properly left to a factual decision cluded, a preponderance from of the evi- Dug dence, The Eleventh Circuit Berdin of Beary’s that the time Cir.), denied, (11th 701 F.2d 909 cert. gan, Commission, city the City to the — U.S. -, 104 S.Ct. 78 L.Ed.2d Park, Florida, had to (1983), portion that the concurred with Beary authority concerning the final held that an official Bowen decision which notice, any, given was to be such what authority may exercise final even when appeal to lends Wilson. record appel review subject are to actions findings support jury’s that Chief body. late Beary possessed authority the final Duggan argues that Florida also cerning only termination the authority administra- not the final was officers, procedure the but also to be em- rather, but, answera- was tive decisions As set in the ployed. forth Berdin ques- the Commission. ble decisions, we conclude that Bowen city delegated to tion of whether the that Chief exer- jury’s determination per- authority make mayor the final authority final is a factual decision cised for of fact sonnel is decisions We properly jury. left conclude that instance____ in the the trial first city’s mo- the district court’s denial finding that note district court’s procedural tion for a directed verdict mayor, clothed the authori- “the was process issue was correct. due firing decision. ty actually make Damages only Not clear from the evidence is this granted had that Supreme analyzed Court government type of that him under the recovery damage procedur for evi- city operated, but because the process Carey v. Pi al due violations shows that all it took dence otherwise 1042, 55 phus, 435 U.S. say, your ‘Get stuff mayor was (1978). It held in the L.Ed.2d 252 fired,’ hap- go, you is what proof injury caused of actual absence city him out.” pened and the closed violations, process from 701 F.2d at 914. The district Duggan, plaintiffs are entitled to recover nomi city’s di- motion for court’s denial of the damages. Carey, 435 U.S. at nal. rected verdict on Wilson’s first amendment panel, at 1044. The earlier clearly proper. was substantive claim decision, interpreting Carey held: Piphus makes it clear that if a Carеy v. Due Procedural Process damages can actual re plaintiff prove respect proce- Wilson’s With claim deprivation solely sulting pre-ter- dural due violations in process, plaintiff phases, post-termination mination and damages____ One of the ele- entitled any that it is liable contends Supreme damage ments of Court incurred Wilson. recoverable for denial of indicated was rely claim seeks to Monell for its mental it is not liable for the acts or omissions and emotional distress. Court violating procedur- damage may to note that such however, careful process jury, rights. al due The presumed, proved must be not be but special response nine the question of plaintiff. the concluded, a preponderance 154 8 jury, 1032-33. The thereon should be overturned in ex questions fourteen, eleven response ceptional long circumstances. In a line that Wilson determined suffered mental an- cases this court consistently em emotional guish damages distress phasized granting that “the or denial of a solely by his failure to receive cer- caused ground new trial on the of excessive [or procedures. process jury tain due inadequate] damages is a matter of dis $50,000 anguish in mental awarded court, cretion within the subject trial not damages for distress each the emotional except t0 review grave abuse of dis process due violations. procedural two cretion.” Houston Bottling Coca-Cola claim, city’s we find that Contrary to 627, v. Kelley, (5th Co. amply supports jury s con record Cir.1942) fully .... We are aware of the damages Wilson suffered re- elusion equally principle well settled that circuit solely from the two violations. suiting courts duty-bound to reverse the trial testified that Wilson became

John Fisher refusa] judge>s of a new trial where the quite angry, emotionally very upset, ag j jud h a matter of abused his di manner m which because disturbed scret ion. him.” Evidence dam they terminated Rosiello, (footnote 354 F.2d at 219-20 omit pre-termination procedural age due to ted.) violations was also process due related testified, The Second Circuit ‍​​‌‌​‌‌​​​​‌‌​‌​​​​​​​‌‌​​‌​​​​​​​‌​​​​​​‌​​‌​‌‌‍in Dagnello Long David Hartsfield who “He John Co., that he was not aware what upset (2d Island Rail Road 289 F.2d 797 doing and he had not ad they Cir.1961), power examined the of a circuit happening.” of what was vised Wilson’s court to review exercise of discretion upset very father testified Wilson was by the judge refusing trial grant a given found out that he was when he ground trial alleged new exces- notice of Commis siveness of the verdict. slon' as a upon Just trial is not.called Following trial, moved for a say higher whether the amount is than contending that the jury’s new trial deter- awarded, personally he would have so anguish mination of amount mental appellate judges are we not to decide upset damages'were exces- and emotional whether we set aside the product jury’s passion sive and the ¡f presiding verdict we were at the ^ prejudice against city. ig g0 hi but whether the amount h that it tended that the award of no bore tQ jugtice would be a denial mit it relationship any anguish up- rational , , , , , give to stand. must the benefit of , „ solely by any deprivation ,, , set caused ^ every ju ou e gmen o o e na process rights. but there must be an up- $50,000 pre-termi- awarded for the ^ ^and whether that has been sur Per passed nation violations is fact for the respect may which reasonable men occurring during appeals pro- violations differ, but of law. city’s cess. district court denied the Dagnello, Supreme motion a new trial. 289 F.2d at 806. The Long Court Grunenthal Island R. Sellman, Circuit in The Fifth Rosiello v. 156, Co., L.Ed.2d (5th Cir.1965), 354 F.2d 219 set down (1968), examining Dagnello deci upon appellate standard which an sion, determining concluded that courts in reviews a trial court’s denial of a new trial whether a verdict excessive look to motion based claim of excessive excessive, damages. “grossly inordinate, whether it is shocking conscience, judicial outra trial, grant sought refusal to a new excessive, geously large so toas shock the ground inadequate or excessive court, damages, conscience of the monstrous.” is a within the sound matter [or] Grunenthal, discretion action judge, whose U.S. at n. cerning damages Wilson’s from Wil- 289 F.2d at comes (quoting Dagnello, n. 4 concludes, carefully after 802). himself. Wilson testified that he was This court son evidence, award of that the reviewing the angry procedural frustrated and due to the process due $100,000 procedural the He does not process due violations. dis- excessive. grossly violations any relate extreme emotional dam- cuss nor concerning men- presented age injury was incurred of the man- Evidence because incurred emotional distress anguish and tal ner in which he was terminated. We must procedural the due by Wilson because injuries by then conclude that the incurred Although evidence was process violations. procedural process Wilson from the due the existence of dam- to indicate presented slight. violations were The mere fact that upon a careful review age, based angry or the Wilson was frustrated from record, damage by Wilson any incurred violations, alone, is insufficient procedural that he felt slight. Wilson testified was $100,000. basis for a award of betrayal ultimate when the frustration reviewing In the district court’s denial of process required him the due city denied alleged trial the new motion based testimony concerning In his рrocedures. damages, we have made a excessiveness procedural due post-termination appraisal bearing' detailed of the evidence violations, Wilson testified: cess Grunenthal, damages. on 393 U.S. at newspaper arti- Q. you read When at 333. We conclude morning, morning, Sunday cle that damages amount of awarded to Wilson for feel? you how did process procedural due violations was said, was, all, I Again, like I first A. high an amount so that it would be a denial again, very betrayed felt first because —I permit justice Dagnello, it to stand. all, obviously they couldn’t follow first of F.2d at 806. The evidence does not proce- established what was our own support an award of for the men- They again policies. dures and my got Then I sneaking anguish behind back. and emotional distress suffered tal point got upset that I so angry to the process by from the due telephone, Mayor I called violations. said, holding him and like I accused Although many cases a court will my without notice. matter of dam grant a new trial where award any anguish? mental Q. you Did feel excessive, by jury is the court ages mentally I frustrated at that A. was discretion, the remittitur may, in its “use point. whereby it denies the defendant’s practice testimony, Wilson stated that Later plain condition the motion for new humiliation, frustration, anger, he felt a stated amount.” 6A Moore's tiff remits way he because embarrassment ¶ (2d 1983). Practice ed. Federal 59.08[6] incurred reviewing damage In fired. legal have stressed that no obstacle Courts by we must concentrate on those by to the exercise a circuit court exists solely damages incurred Wilson due to of discre power to review the exercise process violations and procedural due denying tion the trial a new firing caused itself. Other not those upon a claim of exces trial motion based “very that Wilson was witnesses testified damages and to resort remittitur sive manner in which and out” down Dagnello, 289 F.2d at 804. proper cases. testified terminated. John Fisher he was passion, “If The Fifth has held: Circuit concerning condition due to sympathy, caprice, undue arbi prejudice, “He violations. damage or more taints trariness distressed, emo- very, very upset, very assessment, liability not the award and ‍​​‌‌​‌‌​​​​‌‌​‌​​​​​​​‌‌​​‌​​​​​​​‌​​​​​​‌​​‌​‌‌‍disturbed, very emotionally tionally upset, response is a remittitur or a new рroper volatile, angry.” Although these witnesses alone.” Ed trial addressed incurred the emotional strain stressed Co., Sears, wards v. Roebuck and Wilson due (5th Cir.1975). violations, the most relevant evidence violations, process sufficient evidence ex the final We conclude jury’s finding support by or ultimate to make ists procedural violations. We substantive these determinations. reverse and re- however, $100,000 find, that the award of $100,000 mand because the award procedural process due viola for the two procedural process due violations is excessive. We find that a grossly tions is grossly We hold proper excessive. that a procedural for the to Wilson proper award damages award to Wilson for the he in- have process violations would been due process curred from the due thus, violation, $5,000 totalling for each $10,000. violations would have $10,000 procedural violations. Ho for the case is remanded to the trial court with Naviera, Compania Marmpegaso well v. require directions that it a remittitur in the (5th Cir.1976). S.A., 1034-35 $90,000 or, option amount of at the is remanded court Wilson, This case solely order a new trial on the require a remittitur to with directions to by incurred Wilson $90,000, or, option at the extent of from the violations. trial on the grant new PART, AFFIRMED IN REVERSED IN by Wilson from the damages sustained PART, AND REMANDED. Natco, process violations. procedural due Engineering Brothers Inc. v. Williams FAY, Judge, concurring part Circuit (5th Cir.1974). Co., dissenting part: Other Claims agreeing While with most of the majority city’s claims that the trial court opinion, respectfully I dissent frоm that (1) allowing committed harmful error Damages. Judge section labeled Hatchett Wilson to re-raise the issue of whether his fully has set forth the facts and law sur- pre-termination conduct vis-a-vis Harlan rounding presented. the issues The claims Blackburn constituted a violation of the damages flowing from the denials of city’s regulations, (2) rules and civil.service fully supported by interject the issue of allowing Wilson properly evidence and submitted to the rights whether his under Florida Statutes jury. jury responded specific (“the Policeman’s Bill of 112.531-534 specific judge awards for claims. The trial violated, (3) Rights”) had been not lim reviewed the awards and affirmed. Obvi- chronological scope plaintiff’s iting the ously, by the trial “shocked” cross examination of Chief the amounts and neither am I. Therе is chronological scope of that witness’s direct nothing being excessive about Likewise, examination are meritless. type awarded for this of conduct. Even city’s that the court contention abused its employees rights. civil Even ordering a new trial discretion protection officers are entitled to the full contrary basis that the verdict was the law. weight manifest of the evidence is also Finally, meritless. we conclude that In my opinion majority merely reducing err in not did not the back- subjective thoughts substituted its on mon- pay awarded Wilson the amount of oth ey damages opinions for the considered er income received him after his initial judge. rendered and trial Such Beary. termination appellate judges. is not the function of I judgment would affirm the in toto.

Conclusion In the context of how this case was liti-

gated, Wilson’s freedom of association

rights were violated when he was terminat-

ed Blackburn. dating because he was Susan

Beary, the terminated Wil- individual who

son and who caused the

Case Details

Case Name: Robert Lee Wilson v. Irvin T. Taylor, as Acting Chairman and Examiner, Civil Service Board, Winter Park, Florida

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jun 11, 1984

Citation: 733 F.2d 1539

Docket Number: 83-3299

Court Abbreviation: 11th Cir.