Bermingham v. City of Clermont, Florida et al
Filing
103
ORDER granting in part and denying in part 76 Motion in Limine; denying 92 Motion for Miscellaneous Relief. See Order for details. Signed by Judge Roy B. Dalton, Jr. on 11/8/2013. (RTH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
KYLE BERMINGHAM,
Plaintiff,
v.
Case No. 5:12-cv-37-Oc-37PRL
CITY OF CLERMONT, FLORIDA; and
STEPHEN GRAHAM,
Defendants.
ORDER
This cause is before the Court on the following:
1.
Plaintiff’s Omnibus Motions in Limine (Doc. 76), filed August 29, 2013;
2.
Defendant, City of Clermont’s, Response in Opposition to Plaintiff’s
Omnibus Motion in Limine (Doc. 81), filed September 12, 2013;
3.
Defendant’s Motion to Deny Plaintiff’s Omnibus Motions in Limine Section
II.A (Doc. 92), filed October 28, 2013; and
4.
Plaintiff Kyle Bermingham’s Response to Defendant’s Motion to Deny
Plaintiff’s Motion in Limine Section II-A, and Incorporated Memorandum of
Law (Doc. 93), filed November 4, 2013.
Upon consideration, the Court finds that Plaintiff’s Omnibus Motions in Limine (Doc. 76)
is due to be granted in part and denied in part.
BACKGROUND
Plaintiff was an officer with the City of Clermont Police Department whose
employment was governed by a Collective Bargaining Agreement between the
International Union of Police Associations and the City of Clermont. (See Doc. 39, p. 3;
Doc. 39-17; Doc. 39-18.) Plaintiff was terminated after he complained to the City and
the Florida Department of Law Enforcement about Chief Graham’s allegedly unlawful
police practices. (Doc. 54-1; Doc. 54-2.) Thereafter, Plaintiff filed a grievance with the
City, alleging that his termination violated the terms of the Collective Bargaining
Agreement. (Doc. 39-44; Doc. 39-45.) After the City Manager upheld his termination on
initial review, Plaintiff brought his grievance to arbitration. (Doc. 39-45.) Ultimately, the
arbitrator determined that the City had just cause to terminate Plaintiff and that none of
his rights under the Agreement had been violated. (Id.) Plaintiff subsequently brought
this 42 U.S.C. § 1983 claim, alleging that the City fired him in retaliation for engaging in
speech protected by the First Amendment.
In its Order on the parties’ motions for summary judgment, the Court determined
that Plaintiff’s complaints about his supervising officer qualified as protected speech.
The only issues that remain to be tried are whether Plaintiff’s protected speech played a
substantial role in the City’s decision to fire him, and, if so, whether the City “would have
reached the same conclusion in the absence of the protected [speech].” See Brochu v.
City of Riviera Beach, 304 F.2d 1144, 1157 (11th Cir. 2002) and damages.
Plaintiff now moves to exclude documents related to the arbitration proceedings
in which he and Defendant participated during the course of Plaintiff’s employment.
(Doc. 76, pp. 3–5.) Defendant opposes. (Doc. 81.) Both parties filed supplemental
briefing. (Doc. 92; Doc. 93.) This matter is now ripe for the Court’s adjudication.
DISCUSSION
Defendant seeks to introduce evidence related to arbitration in which the parties
engaged during Plaintiff’s employment. (Doc. 81, Doc. 92.) The proceedings involved
arbitral review of whether Chief Graham’s decisions to discipline—and ultimately
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terminate—Plaintiff’s employment violated the terms of the parties’ Collective
Bargaining Agreement. (See Doc. 46-27; Doc. 46-36; Doc. 39-45.)
Plaintiff moves to exclude these documents on the grounds that they are
irrelevant and unfairly prejudicial. (Doc. 76, pp. 3–5.) Defendant opposes, arguing that
arbitral decisions deserve special weight in this Court’s consideration because of the
expertise that arbitrators have in the “law of the shop” and the “strong federal policies”
favoring arbitration. (Doc. 92, p. 5.) Defendant further contends that the arbitrator’s
decisions are probative of the motivations behind Defendant’s ultimate decision to
terminate Plaintiff. (Doc. 81, p. 6.) Additionally, Defendant avers that the arbitral
decisions are relevant to determining who constitutes a final policymaking authority for
the City’s employment decisions. (Doc. 81, p. 7.)
I.
Deference to Arbitral Decision Under § 1983
Defendant argues that “strong federal policies favoring arbitration” and the
arbitrator’s “specialized competence . . . [in] the law of the shop” render his decision
especially probative in this § 1983 action. (See Doc. 92, p. 5.) The U.S. Supreme Court
has squarely rejected this proposition.
The federal policies favoring arbitration are limited to situations where “an
employee seeks to vindicate his contractual right under a collective-bargaining
agreement.” Alexander v. Gardner-Denver, 415 U.S. 36, 49 (1974). In these contractual
disputes, arbitrators have special expertise in the “law of the shop”—that is, “knowledge
and judgment concerning the demands and norms of industrial relations”—and courts
ordinarily defer to arbitral decisions. See id. at 56–58; Barrentine v. Arkansas-Best
Freight System, Inc., 450 U.S. 728, 737 (1981). However, an employee’s rights
pursuant to a collective bargaining agreement are separate and distinct from rights
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granted by statute. See Gardner-Denver, 415 U.S. at 49–50. Where an employee seeks
to vindicate a right granted by statute, such as the § 1983 claim here, the right involves
the “law of the land,” and arbitrators are awarded no special deference.1 See McDonald
v. City of W. Branch, Mich., 466 U.S. 284, 290 (1984) (observing that, “although
arbitration is well suited to resolving contractual disputes, . . . it cannot provide an
adequate substitute for a judicial proceeding in protecting the federal statutory and
constitutional rights that § 1983 is designed to safeguard”). Accordingly, this Court need
not give any special weight to Defendant’s proffered arbitration documents in this §
1983 action. See Barrentine, 450 U.S. at 728.
II.
Admissibility of Arbitration Documents
Although they are awarded no special deference, “an arbitral decision may be
admitted as evidence in a § 1983 action” at the discretion of the court. McDonald, 466
U.S. at 292 n.13 (emphasis added). However, the U.S. Supreme Court has cautioned
courts to “ever be mindful that Congress . . . thought it necessary to provide a judicial
forum for the ultimate resolution of [these] claims . . . [and that it] is the duty of courts to
assure the full availability of this forum.” Id.
A. Defendant’s Motivation
Defendant argues that the arbitration evidence is relevant to show that it
1
In reaching this conclusion, the U.S. Supreme Court noted that an arbitrator’s
expertise in the “law of the shop” is unrelated to the “expertise required to resolve the
complex legal questions that arise in § 1983 actions.” McDonald, 466 U.S. at 290.
Moreover, “because an arbitrator’s authority derives solely from the contract, . . . when
the rights guaranteed by § 1983 conflict with provisions of the collective-bargaining
agreement, the arbitrator must enforce the agreement.” Id. at 291. Additionally, “arbitral
factfinding is generally not equivalent to judicial factfinding,” lacking the complete
record, rules of evidence, and “rights and procedures common to civil trials, such as
discovery, compulsory process, cross-examination, and testimony under oath.” Id.
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discharged Plaintiff for reasons unrelated to his protected expression. (Doc. 81, p. 6.)
According to Defendant, the arbitration awards demonstrate that Defendant’s decisions
to discipline Plaintiff complied with the terms of the Collective Bargaining Agreement,
which in turn demonstrates that Defendant acted out of legitimate non-speech-related
concerns. (Id.)
Here, the questions posed before the arbitrator were whether Defendant’s
disciplinary decisions—including the termination decision—violated Plaintiff’s rights
under the Collective Bargaining Agreement with the city, not whether they violated his
First Amendment rights. (See Doc. 39-45, p. 2; Doc. 81, p. 5.) Thus, the arbitrator’s
ultimate conclusions have no bearing on Plaintiff’s constitutional claim and should be
excluded as irrelevant. See Arlio v. Lively, 474 F.3d 46, 52 (2d Cir. 2007) (holding that a
district court abused its discretion by admitting evidence of similar arbitration
proceedings in a police officer’s § 1983 First Amendment retaliatory firing claim).
Moreover, even if the arbitration documents were marginally relevant, their
probative value would be substantially outweighed by their considerable danger of
confusing the issues and unfairly prejudicing Plaintiff. This danger is especially acute
with respect to the post-termination arbitration proceedings, where the arbitrator
characterized the “core issue” before him as whether Plaintiff’s “activities concerning his
allegation of criminal misconduct against Chief Graham” violated the Clermont Police
Department’s “Standards of Conduct.” (See Doc. 39-45, p. 12.) This Court has already
determined that those activities were protected by the First Amendment. (See Doc. 64,
p.8.) The arbitrator’s conclusion that Plaintiff’s activities gave his employer “just cause”
to terminate him veers impermissibly close to an “expert” determination that the City
fired Plaintiff for reasons unrelated to protected speech. See Arlio, 474 F.3d at 53
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(observing that although arbitrators are not experts in § 1983 retaliatory firing claims,
they nevertheless have the “allure” of experts and juries often feel a “strong compulsion
to conform their verdict to the conclusion of [arbitrators]”)
Accordingly, the Court finds that the arbitration documents are not relevant to
Defendant’s motivation behind terminating Plaintiff, and their admission would unduly
prejudice Plaintiff. Accordingly, they are inadmissible. See Fed. R. Evid. 401, 403.
B. Final Policymaking Authority
Defendant also contends that the arbitration documents are relevant to
determining who constitutes the final policymaking authority for purposes of § 1983
municipal liability. (See Doc. 81, p. 7.) The Court disagrees. First, “the identification of
those officials whose decisions represent the official policy of the local governmental
unit is itself a legal question to be resolved by the trial judge before the case is
submitted to the jury.” Scala v. City of Winter Park, 116 F.3d 1396, 1398–99 (11th Cir.
1997) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). The Court now
determines that City Manager Saunders is the final policymaking authority for the City’s
employment decisions. (See Doc. 64, p. 11 n.7.); see also Clermont, Fla., Municipal
Code § 32(a); Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir. 1996); Martinez v. City of
Opa-Locka, 971 F.2d 708, 715 (11th Cir. 1992). Second, Defendant’s argument that the
arbitrator constitutes a final policymaking authority for the City is directly foreclosed by
Carter v. City of Melbourne, 731 F.3d 1161, 1167 (11th Cir. 2013) (“An independent
arbitrator, who is not otherwise an employee of the city, is not vested with final
policymaking authority for the city.”). Accordingly, the arbitration evidence is not
admissible on the issue of final policymaking authority.
Finally, the Court notes that Defendant initially raised this argument in its
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Response to Plaintiff’s Omnibus Motions in Limine, filed September 12, 2013. (Doc. 81,
pp. 6–8.) Though Defendant did not directly address the issue in its supplemental
briefing on the arbitration issue (Doc. 92), Defendant filed a proposed jury instruction on
November 5, 2013, which included the following language: “An ‘official policy or custom’
in this instance means . . . [a] policy statement or decision made by the arbitrator who
heard Mr. Bermingham’s employment grievances . . . .” (Doc. 98, p. 10.) In the interim,
on September 23, 2013, the U.S. Court of Appeals for the Eleventh Circuit published
Carter, which controls this case and directly forecloses the argument that an arbitrator
can qualify as a final policymaking authority. See Carter, 731 F.3d at 1167. Defendant
failed to address Carter in either its supplemental briefing or its proposed jury
instructions. Counsel for Defendant in this action is also listed as Counsel of record for
Defendant-Appellees in Carter. The Court reminds Counsel for the Defendant that
attorneys have a professional and ethical obligation of candor to the court and to
address controlling contradictory authority.
CONCLUSION.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
Plaintiff’s Omnibus Motions in Limine (Doc. 76) is GRANTED IN PART
AND DENIED IN PART.
a. The motion is granted with respect to testimony and documentary
evidence related to the prior arbitration proceedings, which is
excluded.
b. The motion is DENIED with respect to testimony and documentary
evidence concerning Plaintiff’s disciplinary history, which is admitted
on the condition that no reference to the arbitration proceedings is
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made.
2.
Defendant’s Motion to Deny Plaintiff’s Omnibus Motions in Limine Section
II.A (Doc. 92) is DENIED.
DONE AND ORDERED in Chambers in Orlando, Florida, on November 8, 2013.
Copies:
Counsel of Record
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