HATCHETT, Circuit Judge:
In this case, we decide what relief is available in a suit brought under 42 U.S.C.A. § 1983 (West 1974) by a police officer fired from his police department without procedural due process and allegedly in contravention of his first amendment right of association. We affirm the decision of the trial court as to all matters except the award of $100,000 for alleged injury due to procedural due process violations.
Robert Lee Wilson joined the Winter Park, Florida, police department in June, 1971. During that year, Wilson began dating Susan Blackburn, the adopted daughter of Harlan Blackburn, a convicted felon reputed to be a key figure in organized crime in central Florida. Wilson knew that Susan was related to Harlan Blackburn, and he knew that Harlan Blackburn was a convicted felon and a reputed member of organized crime. In May, 1975, Wilson met with Harlan Blackburn when he and Susan drove Blackburn from the Avon Park Correctional Institution to Winter Park and when they twice dined at the family home.
Wilson relayed the fact that he had met Harlan Blackburn to his superiors in the police department. At one meeting with his superiors, Wilson promised not to see Susan Blackburn again. A short time after making this promise, Wilson called his Deputy Chief and reneged on his promise not to see Susan Blackburn again. On June 13, 1975, Chief Beary informed Wilson that he was fired. Prior to his discharge, Wilson was not given any formal notice of the charges against him nor any opportunity to respond to those charges.
Following his discharge, Wilson appealed to the city of Winter Park's Civil Service Board. On August 5, 1975, the Board voted to rescind the termination notice effective upon the completion of a thirty-day disciplinary suspension of Wilson. Chief Beary, without formal notice to Wilson, appealed the Civil Service Board decision to the city of Winter Park City Commission. After a public hearing, also held without formal notice to Wilson, the Commission voted to overrule the Civil Service Board and reinstated Chief Beary's dismissal order. Wilson filed this lawsuit.
The district court found that Wilson's procedural due process rights had been violated and ordered the Winter Park officials
Upon remanding the case to the district court, the court of appeals advised the district court that if a substantial factor for dismissing Wilson was his continuing association with Susan Blackburn, and if Wilson would not have been discharged had he not reneged on his promise not to again see Susan Blackburn, then the district court would have to determine whether the association with Susan Blackburn was protected by the first amendment. Wilson, 658 F.2d at 1028. On March 10, 1983, after a jury trial, the district court entered judgment for Wilson and against the city in the amount of $286,429.64. In addition, the district court awarded Wilson $35,000 in attorney's fees and $3,000 in costs. The total award for Wilson in his suit against the city thus amounted to $324,429.64.
The jury, in special interrogatories, concluded that (1) Wilson had been discharged by Chief Beary due to his relationship with Susan Blackburn, (2) Chief Beary was delegated the final or ultimate authority to discharge Wilson and to decide why he should be discharged, and (3) Chief Beary had been delegated the final or ultimate authority concerning any due process procedures to be accorded to Wilson.
Right of Association
"A fundamental proposition in our constitutional jurisprudence is that government employment may not be conditioned upon a relinquishment of a constitutional right, including the rights to speech and association guaranteed under the first amendment." Wilson, 658 F.2d at 1027. In examining whether an individual was fired for a reason infringing upon a constitutional right, courts have applied the test set forth by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).
Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576. In this case, the jury found that Wilson's association with Susan Blackburn constituted a substantial factor in his being fired from the police department, and found that he would not have been fired in the absence of that association. The key question becomes, therefore, whether Wilson's association with Susan Blackburn is constitutionally protected. Although Wilson argues that his relationship with Susan Blackburn entailed discussions of philosophical beliefs and other social issues, we view the issue as though Wilson and Susan Blackburn were simply dating.
The Supreme Court stressed in NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958), that the freedom to engage in association for the advancement of beliefs and ideas is a basic part of the fourteenth amendment due process guarantee of liberty. "Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny." NAACP v. Alabama, 357 U.S. at 460-61, 78 S.Ct. at 1170-71.
The courts have strongly held that freedom of association is no longer tied merely to an advancing of political beliefs.
Bruns v. Pomerleau, 319 F.Supp. 58, 64-65 (D.Md.1970). Contrary to the argument raised by the city of Winter Park, the courts have expanded upon the NAACP v. Alabama interpretation of the first amendment freedom of association. The concept of freedom of association has grown to include more than associations which are for the purpose of advancing shared beliefs.
The Fifth Circuit adopted an expansive view of an individual's first amendment right of association in Sawyer v. Sandstrom, 615 F.2d 311 (5th Cir.1980). The court concluded that an overly broad anti-loitering ordinance violated an individual's first amendment right of association.
Sawyer, 615 F.2d at 316. Under Sawyer, the first amendment right to associate is not limited merely to those instances where two or more individuals meet to advance shared beliefs. Sawyer teaches that one's first amendment right to associate encompasses the right to simply meet with others. If, indeed, the right of freedom of
As with the Sawyer court, the court in McKenna v. Peekskill Housing Authority, 497 F.Supp. 1217 (S.D.N.Y.1980), modified, 647 F.2d 332 (1981), held that freedom of association is not limited merely to those situations where an advancing of common beliefs occurs.
Id. at 520.
McKenna, 497 F.Supp. at 1221. The relevant question is not whether individuals wish to advance common beliefs, but whether they wish to associate with others.
McKenna, 497 F.Supp. at 1221.
We follow Sawyer and align ourselves with recent cases holding that the first amendment freedom of association applies not only to situations where an advancing of common beliefs occurs, but also to purely social and personal associations. Using the rationale in Sawyer, Bruns, and McKenna, we conclude that the relationship between Wilson and Susan Blackburn was protected under the first amendment freedom of association. Contrary to the argument offered by the city, freedom of association does not come into play merely when an advancing of common beliefs by the individuals in question exists. Where two individuals seek to associate with each other, without any evidence of promulgating and advancing political or religious beliefs, they are protected under the freedom of association provision.
It is the interaction, the association, which is protected. The protection does not come into play only when two or more individuals seek to distill the fruits of their relationship into a body of thought or into a political program. McKenna, 497 F.Supp. at 1221. A state violates the fourteenth amendment when it seeks to interfere with the social relationship of two or more people. We conclude that dating is a type of association which must be protected by the first amendment's freedom of association. Wilson's right to date Susan Blackburn falls under his right of freedom of association. We further conclude that Wilson was fired for a reason infringing upon his constitutionally-protected freedom of association.
The city contends that even if Wilson's freedom of association rights were violated, it cannot be held liable. The Supreme Court in Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) set down a standard upon which individuals could recover from municipalities in section 1983 actions.
Monell, 436 U.S. at 694, 98 S.Ct. at 2037. The Eleventh Circuit, in analyzing the Monell standard for municipal liability, concluded:
Hearn v. City of Gainesville, 688 F.2d 1328, 1334 (11th Cir.1982).
Based upon our earlier analysis of the freedom of association question, we conclude that Chief Beary unconstitutionally dismissed Wilson. Under Monell, however, the city may be held liable only if Chief Beary had the final or ultimate authority within the local government to make the decision or take the action which caused the violation. The city contends that since an appellate process existed through which Wilson could appeal his termination, it follows that Chief Beary did not have the final authority to terminate Wilson. According to the city, it was the City Commission, not Chief Beary, who had and exercised the final authority to terminate Wilson. The jury, however, in answering question five of the special verdict, found from a preponderance of the evidence that the city of Winter Park, Florida, delegated to Chief Beary the final authority to terminate Wilson and to decide what conduct was sufficient to justify termination.
The city contends that the district court erred in not directing a verdict on Wilson's first amendment substantive claim because no evidence was presented to indicate that Chief Beary had the final authority to terminate Wilson.
The Fifth Circuit set forth the standard governing directed verdict motions in Boeing Company v. Shipman, 411 F.2d 365 (5th Cir.1969).
Boeing, 411 F.2d at 374. The record is rife with evidence from which a jury could conclude that Chief Beary had the final authority to terminate a police officer. James E. Harrison, a former police officer in Winter Park, testified: "Chief Beary did take the final burden. He always has while I was there." Wilson, in discussing the power of Chief Beary to terminate an officer, stated:
Based upon the testimony of these individuals, the jury concluded that Chief Beary possessed final authority to terminate Wilson. This substantial evidence also justified the district court's denial of the motion for directed verdict.
The city argues that the existence of an appeals process to review termination decisions, by necessity, implies that Chief Beary's termination of Wilson was not final. Case law does not support this position. It must be remembered that an appeal did not automatically follow a decision by Chief Beary to terminate an officer. The duty was upon the terminated officer, in this case Wilson, to appeal the termination to the Civil Service Board. If the officer chose not to appeal, Chief Beary's termination would not be reviewed.
In Bowen v. Watkins, 669 F.2d 979 (5th Cir.1982), the court examined the question of whether an official exercised final authority to make certain decisions even when those decisions were reviewable through an appeals process. In Bowen, the Chief of Police had recommended that an individual be promoted. Following a protest by several other officers, the City Council rescinded the promotion. The Police Chief then filled the vacancy in question. After several officers filed a section 1983 suit, the City Council ratified the chief's decision. A question faced by the Fifth Circuit was whether the Chief of Police exercised final authority even though his decisions were reviewable by the city council. The court stated:
Bowen, 669 F.2d at 989-90.
It is, thus, clear that even where an appellate process exists to review an official's decision, that official may be held to exercise final authority within the city. As in Bowen, an official may exercise such authority even when the appellate body occasionally reverses one of his decisions. In this case, even though an appellate process
The Eleventh Circuit in Berdin v. Duggan, 701 F.2d 909 (11th Cir.), cert. denied, 464 U.S. 893, 104 S.Ct. 239, 78 L.Ed.2d 230 (1983), concurred with that portion of the Bowen decision which held that an official may exercise final authority even when his actions are subject to review by an appellate body.
Duggan, 701 F.2d at 914. The district court's denial of the city's motion for directed verdict on Wilson's first amendment substantive claim was clearly proper.
Procedural Due Process
With respect to Wilson's claim of procedural due process violations in the pre-termination and post-termination phases, the city contends that it is not liable for any damages incurred by Wilson. The city seeks to rely upon Monell for its claim that it is not liable for the acts or omissions by Chief Beary in violating Wilson's procedural due process rights. The jury, however, in response to question nine of the special verdict, concluded, from a preponderance of the evidence, that at the time of Wilson's discharge, the city of Winter Park, Florida, had delegated to Beary the final authority on whether Wilson was to receive, prior to termination, formal notice of the charges against him and an opportunity to respond to those charges. In response to question twelve of the special verdict, the jury concluded, from a preponderance of the evidence, that at the time of Chief Beary's appeal to the City Commission, the city of Winter Park, Florida, had delegated to Chief Beary the final authority concerning what notice, if any, was to be given of such an appeal to Wilson. The record lends support to the jury's findings that Chief Beary possessed the final authority concerning not only the termination of police officers, but also the procedure to be employed. As set forth in the Berdin and Bowen decisions, we conclude that the jury's determination that Chief Beary exercised final authority is a factual decision properly left to the jury. We conclude that the district court's denial of the city's motion for a directed verdict on the procedural due process issue was correct.
The Supreme Court analyzed the question of damage recovery for procedural due process violations in Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). It held that in the absence of proof of actual injury caused from procedural due process violations, plaintiffs are entitled to recover only nominal damages. Carey, 435 U.S. at 248, 98 S.Ct. at 1044. The earlier Wilson panel, in interpreting the Carey decision, held:
Contrary to the city's claim, we find that the record amply supports the jury's conclusion that Wilson suffered damages resulting solely from the two violations. John Fisher testified that Wilson became very upset, quite angry, and emotionally disturbed because of "the manner in which they terminated him." Evidence of damage due to the pre-termination procedural due process violations was also related by John David Hartsfield who testified, "He was upset that he was not aware of what they were doing and he had not been advised of what was happening." Wilson's father testified that Wilson was very upset when he found out that he was not given notice of the appeal to the City Commission.
Following the trial, the city moved for a new trial contending that the jury's determination of the amount of mental anguish and emotional upset damages were excessive and the product of the jury's passion or prejudice against the city. The city contended that the award of damages bore no rational relationship to any anguish or upset caused solely by any deprivation of Wilson's procedural due process rights. The jury awarded $50,000 for the pre-termination procedural due process violations and $50,000 for the procedural due process violations occurring during the appeals process. The district court denied the city's motion for a new trial.
The Fifth Circuit in Rosiello v. Sellman, 354 F.2d 219 (5th Cir.1965), set down a standard upon which an appellate court reviews a trial court's denial of a new trial motion based upon a claim of excessive damages.
Rosiello, 354 F.2d at 219-20 (footnote omitted.)
The Second Circuit in Dagnello v. Long Island Rail Road Co., 289 F.2d 797 (2d Cir.1961), examined the power of a circuit court to review the exercise of discretion by the trial judge in refusing to grant a new trial on the ground of alleged excessiveness of the verdict.
Dagnello, 289 F.2d at 806. The Supreme Court in Grunenthal v. Long Island R. Co., 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed.2d 309 (1968), in examining the Dagnello decision, concluded that courts in determining whether a verdict is excessive look to whether it is "grossly excessive, inordinate, shocking to the judicial conscience, outrageously excessive, so large as to shock the conscience of the court, [or] monstrous." Grunenthal, 393 U.S. at 159, n. 4, 89 S.Ct.
Evidence was presented concerning mental anguish and emotional distress incurred by Wilson because of the procedural due process violations. Although evidence was presented to indicate the existence of damage, based upon a careful review of the record, any damage incurred by Wilson was slight. Wilson testified that he felt frustration and ultimate betrayal when the city denied him the required due process procedures. In his testimony concerning the post-termination procedural due process violations, Wilson testified:
Later in his testimony, Wilson stated that he felt frustration, anger, humiliation, and embarrassment because of the way he was fired. In reviewing the damage incurred by Wilson, we must concentrate on those damages incurred by Wilson solely due to the procedural due process violations and not those caused by the firing itself. Other witnesses testified that Wilson was "very down and out" due to the manner in which he was terminated. John Fisher testified concerning Wilson's condition due to the procedural due process violations. "He was very, very upset, very distressed, emotionally upset, emotionally disturbed, very volatile, angry." Although these witnesses stressed the emotional strain incurred by Wilson due to the procedural due process violations, the most relevant evidence concerning Wilson's damages comes from Wilson himself. Wilson testified that he was frustrated and angry due to the procedural due process violations. He does not discuss nor relate any extreme emotional damage or injury incurred because of the manner in which he was terminated. We must then conclude that the injuries incurred by Wilson from the procedural due process violations were slight. The mere fact that Wilson was angry or frustrated from the procedural violations, alone, is insufficient basis for a jury award of $100,000.
In reviewing the district court's denial of the new trial motion based upon the alleged excessiveness of damages, we have made a detailed appraisal of the evidence bearing on damages. Grunenthal, 393 U.S. at 159, 89 S.Ct. at 333. We conclude that the amount of damages awarded to Wilson for the procedural due process violations was an amount so high that it would be a denial of justice to permit it to stand. Dagnello, 289 F.2d at 806. The evidence does not support an award of $100,000 for the mental anguish and emotional distress suffered by Wilson from the procedural due process violations.
Although in many cases a court will grant a new trial where the award of damages by the jury is excessive, the court may, in its discretion, "use the remittitur practice whereby it denies the defendant's motion for new trial on condition the plaintiff remits a stated amount." 6A Moore's Federal Practice ¶ 59.08 (2d ed. 1983). Courts have stressed that no legal obstacle exists to the exercise by a circuit court of the power to review the exercise of discretion by the trial judge in denying a new trial motion based upon a claim of excessive damages and to resort to remittitur in proper cases. Dagnello, 289 F.2d at 804. The Fifth Circuit has held: "If the passion, prejudice, caprice, undue sympathy, arbitrariness or more taints only the damage award and not the liability assessment, the proper response is a remittitur or a new trial addressed to damages alone." Edwards v. Sears, Roebuck and Co., 512 F.2d 276, 282 (5th Cir.1975).
This case is remanded to the trial court with directions to require a remittitur to the extent of $90,000, or, at the option of Wilson, to grant a new trial on the question of damages sustained by Wilson from the procedural due process violations. Natco, Inc. v. Williams Brothers Engineering Co., 489 F.2d 639, 641 (5th Cir.1974).
The city's claims that the trial court committed harmful error in (1) allowing Wilson to re-raise the issue of whether his pre-termination conduct vis-a-vis Harlan Blackburn constituted a violation of the city's civil service rules and regulations, (2) allowing Wilson to interject the issue of whether his rights under Florida Statutes 112.531-534 ("the Policeman's Bill of Rights") had been violated, and (3) not limiting the chronological scope of plaintiff's cross examination of Chief Beary to the chronological scope of that witness's direct examination are meritless. Likewise, the city's contention that the court abused its discretion in not ordering a new trial on the basis that the verdict was contrary to the manifest weight of the evidence is also meritless. Finally, we conclude that the court did not err in not reducing the backpay awarded Wilson by the amount of other income received by him after his initial termination by Chief Beary.
In the context of how this case was litigated, Wilson's freedom of association rights were violated when he was terminated because he was dating Susan Blackburn. Beary, the individual who terminated Wilson and who caused the procedural due process violations, was delegated the final or ultimate authority by the city to make these determinations. We reverse and remand because the award of $100,000 for the procedural due process violations is grossly excessive. We hold that a proper award to Wilson for the damages he incurred from the procedural due process violations would have been $10,000. The case is remanded to the trial court with directions that it require a remittitur in the amount of $90,000 or, at the option of Wilson, order a new trial solely on the question of damages incurred by Wilson from the procedural due process violations.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
FAY, Circuit Judge, concurring in part and dissenting in part:
While agreeing with most of the majority opinion, I respectfully dissent from that section labeled Damages. Judge Hatchett has set forth fully the facts and law surrounding the issues presented. The claims for damages flowing from the denials of due process were fully supported by the evidence and properly submitted to the jury. The jury responded with specific awards for specific claims. The trial judge reviewed the awards and affirmed. Obviously, the trial judge was not "shocked" by the amounts and neither am I. There is nothing excessive about $100,000 being awarded for this type of conduct. Even civil employees have rights. Even police officers are entitled to the full protection of the law.
In my opinion the majority has merely substituted its subjective thoughts on money damages for the considered opinions rendered by the jury and trial judge. Such is not the function of appellate judges. I would affirm the judgment in toto.