Cox v. Crowe
Filing
86
MEMORANDUM OPINION & ORDER: DENYING dft's 79 MOTION to Reconsider. Signed by Judge Jennifer B Coffman on 8/26/11.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
CIVIL ACTION NO. 09-5-JBC
CHARLES CHRISTOPHER COX,
V.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
JAMES CROWE, ET AL.,
DEFENDANTS.
***********
The matter before the court is the motion of the defendants to alter or
amend pursuant to Fed. R. Civ. Pro. 59(e). R. 79. For the reasons below, the court
will deny the motion.
Charles Cox, an officer in the Irvine Police Department, testified at a bondreduction hearing for Denny Glenn Young on December 7, 2007. When asked who
he relies on in the course of his duties, Cox stated, "There's very few I trust to
come to me right now." R. 53-15 at 6. When asked, "Are you basically saying that
you don't have trust or faith in – in any of those other officers to be straight with
you, that you can trust them not to tip off defendants and the like," Cox
responded, "That's exactly what I'm saying." Id. Cox was later terminated
following a hearing before the Irvine City Council on January 7, 2008. Cox claims
that his comments were a substantial factor in his termination. Defendants
challenge this court’s denial of their motion for summary judgment on Cox’s First
Amendment claim. R. 72. They assert that Cox’s comments were not protected
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speech, that the State’s interests overbalance Cox’s First Amendment interests and
that the speech was not a substantial factor in their decision to terminate Cox.
1.
Protected Speech
Cox’s speech may be fairly characterized as a matter of public concern
based on the “content, form, and context of a given statement, as revealed by the
whole record.” Connick v. Myers, 461 U.S. 138, 147-48 (1983). The content of
the speech, the operation and possible corruption of a police department, is a
matter of public concern. See Id. (finding that a portion of a questionnaire regarding
official pressure of employees to work for political candidate was a matter of public
concern, even where the rest of the questionnaire was deemed a mere extension of
an employment dispute); See v. City of Elyria, 502 F.3d 484, 493 (6th Cir. 2007)
(citing numerous Sixth Circuit cases which held that the organization and
corruption of police departments are a matter of public concern). The speech itself
was in direct response to a series of questions regarding who he trusts in his
department. R. 53-15 at 6.
While the record shows that there were conflicts between Cox and his
employer, they do not rise to the level at which courts have found speech to be a
personal vendetta. See McMurphy v. City of Flushing, 802 F.2d 191 (6th Cir.
1986). While Cox, along with all officers in the department, was ordered not to
have contact with Young, the record does not indicate any conflict regarding this
order until after Cox’s testimony. Additionally, there was an order directing Cox to
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stay away from Officer Don Sheeks’s property after Sheeks made a complaint. The
record indicates that Cox was investigating Sheeks’s wife, though whether this
investigation was official is unclear. However, nothing in the record indicates any
confrontations or further conflict between Cox and his employer regarding Sheeks.
Unlike in McMurphy, where the district court conducted a two-day hearing
regarding the events surrounding the discharge and thus had a substantial record
from which to draw the conclusion that the statements were the result of a
personal grievance rather than a public one, this court has only the pleadings and
exhibits to make its determination and must draw inferences in the light most
favorable to the party opposing the motion. US v. Diebold, Inc., 396 U.S. 654, 655
(1962). The record, viewed in the light most in favor of Cox, shows that he had
concerns regarding the Irvine Police Department, which he stated at a public
judicial proceeding, which may be fairly characterized as a matter of public
concern.
2.
Balancing Test
The balance between Cox’s right to comment on matters of public concern
and the state’s right as an employer in promoting the efficiency of the public
services it performs through its employees weighs in favor of Cox. Pickering v.
Board of Regents, 391 U.S., 563, 568 (1968); Solomon v. Royal Oak, 842 F.2d
862, 865 (6th Cir.1988) (citing Pickering, 391 U.S. at 569-73). Given the public
importance of exposing trust issues within a police department, Cox’s interest is
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great. While the statement that Cox did not trust his fellow officers could foment
controversy and disruption, impede the department's general performance and
operation, and affect loyalty and confidence, no evidence in the record shows that
the comments actually had any of these effects, and all of those interests are
overborne by the public interest in airing them. While the defendants’ burden does
not rise to the level of clearly demonstrating that the speech substantially interfered
with official responsibilities, Connick v. Myers, 461 U.S. 138, 150 (1983), the
record is absent evidence of any negative aftermath on the police department due
to Cox’s speech. While the comments were directed towards Cox’s fellow officers
and, if false, would not be easily rebutted by the state, these factors do not
outweigh Cox’s interest.
3.
Substantial or motivating factor
Genuine issues of material fact exist as to whether Cox’s protected speech
was the motivating factor in his termination. Mt. Healthy City School Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 285-286 (1977). While his employer denied that
Cox’s termination was related to his speech, Cox has presented sufficient evidence
to show that the counts upon which he was allegedly terminated (insubordination,
failure to notify about the receipt of evidence, failure to complete mileage reports,
violations of rules, regulations, and orders) were unsupported or would not
ordinarily result in termination. As Cox has presented evidence to show that the
counts he was convicted of were not sufficient for termination, the fact that the
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Council considered charges related to speech indicates it may have been a
motivating factor in the termination. Accordingly,
IT IS ORDERED that the defendants’ motion to reconsider (R. 79) is DENIED.
Signed on August 26, 2011
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