Opinion
Civil Action No. 3:98-CV-0731-L
June 27, 2001
MEMORANDUM OPINION AND ORDER
I. Introduction
Danny O. Crawford ("Plaintiff" or "Crawford") filed this action in state court against the City of Richardson (the "City") on October 27, 1998, contending that he was unlawfully discharged from his position as a firefighter for the City of Richardson. The City removed the action to federal court on March 18, 1998, after Crawford amended his petition and included federal claims. A bench trial was held on March 25-26, 1999. The court by this Memorandum Opinion and Order enters its findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a). II. Issues Presented and Contentions of the Parties
Although Crawford was suspended prior to his termination, Plaintiff's First Amended Petition and Plaintiff's Contentions as set forth in the Pretrial Order make it clear that he is only contesting the legality of his termination. Crawford has asserted no claim arising from his suspension, and none is before the court. The court therefore only includes facts regarding Plaintiff's suspension to the extent necessary to provide relevant background information.
The court apologizes for the delay in ruling on this matter. The court simply has been overwhelmed with a backlog of cases but is pleased to announce it has made significant progress in reducing the backlog. Some of the delay, however, is the result of the court having to brief certain issues because they were not addressed by the parties.
A. Plaintiff Danny O. Crawford's Contentions
Crawford contends that: (1) his employment was wrongfully terminated by the City of Richardson — at the time of his termination, Plaintiff was a firefighter serving as a vested member of the civil service system of the City; (2) he was terminated in violation of the provisions of the city charter of the City dealing with the civil service system of the City; (3) he was terminated in violation of the civil service rules and regulations of the City; (4) he was terminated in violation of the departmental rules and regulations of the fire department of the City; (5) he was terminated in retaliation for his election to use procedural steps and rights granted by applicable rules, regulations, and laws, in violation of his right to due process of law; and (6) he was terminated for refusing to make statements and enter into agreements improperly demanded of him by the City, in violation of his right of free speech and association.
B. Defendant City of Richardson's Contentions
The City contends that: (1) Plaintiff's employment was terminated after repeated acts of insubordination and refusals to comply with the City's policies, rules, and regulations, and he was therefore terminated for just cause; (2) Plaintiff's employment was not wrongfully terminated; (3) it has not violated any applicable rule, regulation, or law; (4) it has not violated any legal or constitutional right of Plaintiff; (5) Plaintiff was provided with due process of law by virtue of the Civil Service hearings conducted in 1996, and therefore his constitutional claims fail as a matter of law; (6) Plaintiff's claims fail as a matter of law because the decision of the City's Civil Service Appeals Board terminating Plaintiff's employment is supported by substantial evidence; and (7) Crawford lacks standing to pursue his alleged claims for injunctive relief because he is no longer employed by the City and subject to its rules, regulations, policies, or procedures.
III. Findings of Fact A. Stipulated or Undisputed Facts
1. On or about April 4, 1994, Crawford was employed by the City of Richardson as a firefighter. The City is a home rule municipality under the laws of the State of Texas.
2. Pursuant to the City's Charter, the City has established a Municipal Civil Service System for employees in its classified service, including all firefighters employed by the City of Richardson Fire Department (the "Department").
3. The Department is responsible for providing fire suppression and emergency medical services ("EMS") to the residents of the City. The Department's EMS function represents one of the most important aspects of its mission. The majority of emergency calls received by the Department are EMS calls, rather than fire related calls.
4. In order to fulfill its EMS function, the Department operates and maintains one ambulance (also known as Mobile Intensive Care Units ("MICUs")) at each of its five fire stations. Each of the five MICUs is equipped to provide full life support and must be manned by properly trained medical personnel. To ensure that the public and citizens of the City receive professional emergency medical services, it is the Department's policy to staff each MICU with two certified paramedics. Consequently, to adequately staff its MICUs, the Department must employ at least 36 paramedics. In April 1996, approximately 60 to 65 percent of the total service calls made by the Department were EMS calls. In February 1997, the City employed a total of 138 firefighters.
5. The Department does not have a separate rank or position for paramedics. It selects paramedics from the firefighter ranks. These individuals are assigned by the fire chief to EMS duty. The City has selected its paramedics in this manner since it first began providing EMS paramedic services in 1978.
6. The City's job description for the position of firefighters in effect at the time of Crawford's hiring stated, inter alia, that a firefighter in the Department was expected to (1) administer emergency medical services, (2) respond to emergency medical services calls, (3) administer first aid and emergency medical services to injured persons, (4) relieve a paramedic and function as an ambulance attendant, (5) do related work as required, and (6) perform other duties as directed by his supervisor.
7. The Department confronts numerous constraints and difficulties in maintaining an adequate number of paramedics. Paramedic duties are stressful and demanding with a relatively higher incidence of employee "burnout" than some of the other assignments in the Department. This fact, together with paramedics being promoted to a higher rank in the Department and other causes of employee attrition, causes the Department to sporadically require new paramedics.
8. Since the City does not itself sponsor paramedic training, it is dependent upon other medical programs to train its paramedics. The City uses the paramedic training program offered by the University of Texas Southwestern Medical Center (the "Southwestern Program") to train the Department's paramedics. Other municipalities in the North Texas area also participate in the Southwestern Program, and there is a high demand for the limited number of "slots" offered in each paramedic class. The City is allocated only a specified number of slots in each class and is therefore generally unable to dictate the number of students it can send to paramedic training.
9. In addition to the class space limitations inherent in the Southwestern Program, the training of a paramedic entails significant expense. The Department must pay tuition and other costs associated with the program, as well as the student's normal salary, while attending the five-month class. The total cost of sending a student through the training exceeds $10,000. Once a paramedic has been certified, there are continuing education and training requirements that must be fulfilled each year to maintain that certification. As a result of these factors, the Department desired flexibility in assigning personnel to paramedic duties.
10. Prior to his employment as a firefighter, Crawford was interviewed by a panel consisting of Fire Chief Bobby Holley, Assistant Chief Steve Brown, and EMS Chief Bill Duggan. In keeping with the Department's practices and policies when hiring new firefighters, Crawford was told during his interview that if he was hired by the Department, he might be required to participate in paramedic training. Crawford told the interviewer that he knew "EMS [had] become a big part of the fire service."
11. Prior to Crawford's employment, the Department had adopted Policy No. 133 to address the manner in which paramedic assignments would be made. Policy No. 133 established a two-step approach to the selection process. First, volunteers would be solicited to attend paramedic training. If an insufficient number of firefighters volunteered for paramedic training, an eligibility list for paramedic training would be prepared based on seniority. This list consisted of all firefighters with at least two years of seniority. From that list, the non-paramedic firefighters with the least amount of seniority would be selected for the paramedic positions. During May 1996, Policy No. 133 was amended to make all firefighters with at least one year of seniority eligible for assignment to paramedic training. The amendment to Policy No. 133 occurred after Crawford had been selected and assigned to attend paramedic training.
12. In early 1996, the Department anticipated the need for several new paramedics. Accordingly, pursuant to Policy No. 133, Chief Duggan sought volunteers to attend an upcoming paramedic school scheduled for May 1996. When no volunteers were forthcoming, the Department resorted to the seniority list, and Crawford was selected to attend paramedic school. Crawford was selected and notified in April 1996 that he would be required to attend paramedic school.
13. In anticipation of Crawford attending the May 1996 training, he was ordered to take and pass the Descriptive Test Language Skills (DTLS) test, a standardized test that is a prerequisite for enrollment in the Southwestern Program. Crawford took the DTLS on two occasions prior to May 1996, and each time failed to achieve a passing score. As a result, since he did not pass, Crawford was ineligible to attend the May 1996 paramedic training.
14. After Crawford twice failed the DTLS examination, he was ordered to study for a future retest. Crawford then took the test for a third time and did not pass.
15. Following Crawford's third failure of the DTLS test, he was given a written order on August 6, 1996, requiring that he pass the DTLS test by August 16, 1996, or face possible disciplinary action. Crawford took the test for the fourth time and passed with a score of 80. He was then ordered to report to the Southwestern Program on September 9, 1996, to commence paramedic training.
16. Rather than report to the paramedic training, Crawford delivered a letter addressed to Chief Brown and Chief Duggan stating that he refused to participate in such training. Among other things, Crawford complained that his assignment to paramedic training would conflict with his off-duty employment outside the Department, conflict with his child care arrangements, and impose "financial hardships" on his family. Because the letter came without any forewarning on or about the day the paramedic school began, Crawford's conduct impaired the Department's ability to find a replacement for the training slot allocated to Crawford.
17. As a result of Crawford's refusal to attend the September 1996 paramedic training, he was given a three-shift disciplinary suspension. He served his suspension on September 11, 14, and 17, 1996. Crawford appealed the suspension, and it was upheld by the City's Civil Service Appeals Board (the "Board") in October 1996.
18. When Crawford returned to work after his three-shift suspension, he was given a written order from Chief Holley on September 23, 1996, requiring him to (1) attend paramedic training in January 1997 and (2) confirm in writing that he would prepare for enrollment and successful completion of paramedic training.
19. Crawford never complied with the September 23, 1996 order. Instead, Crawford's counsel sent a letter to Chief Holley on September 25, 1996, informing him that Crawford continued to dispute whether he could be required to attend paramedic training. Crawford acknowledged that the letter correctly reflected his (Crawford's) position regarding his attending paramedic training and that he authorized his counsel to make the statements on his behalf. The letter stated in part "[y]ou can continue to issue these demands and orders [to attend paramedic class and achieve paramedic certification] on a daily basis if you so desire, and Mr. Crawford will continue to challenge each of them until the underlying legal issue is formally resolved." Crawford understood what was being asked of him and did not ask for clarification of Chief Holley's order of September 23, 1996.
20. On September 26, 1996, Crawford's employment was terminated on grounds of neglect of duty, conduct prejudicial to good order, insubordination, failure or refusal to carry out instructions, willful disregard of orders or other misconduct, and violation of the rules and regulations of the Department or of special orders.
21. Crawford appealed his termination to the Board. On November 5, 1996, the Board held an evidentiary hearing to consider Crawford's appeal. As a result of that hearing, the Board denied the appeal and sustained Crawford's termination from the Department.
22. Emergency medical services are an important component of the Department's mission: (a) paramedic training has been a part of the duties of the City's firefighters since long before Crawford was hired, (b) Policy No. 133 was in place prior to Crawford's employment, (c) Crawford was advised during his pre-hire interview that paramedic training might be required, (d) Crawford's selection for paramedic training was made in accordance with the provisions of Policy No. 133, (e) Crawford consistently refused to participate in paramedic training and clearly expressed his intention to contest the orders received from his superior officers regarding such training, and (f) the City's Civil Service Rules and Regulations expressly permit termination of employment for neglect of duty, conduct prejudicial to good order, insubordination, failure or refusal to carry out instructions, willful disregard of orders or other misconduct, and violation of the rules and regulations of the Department or of special orders.
23. Crawford could have been terminated for his insubordination in refusing to attend the September 1996 paramedic training. He was suspended rather than terminated. He was given another opportunity to attend paramedic training scheduled to begin in January 1997.
24. Prior to his termination in 1996, Plaintiff was a vested member of the Civil Service System of the City, serving as a firefighter within the Department of the City.
25. The paramedic training ordered by the Department officials would have taken Plaintiff away from his normal duties and work schedule for several months, and would have been conducted primarily at sites outside the City.
26. The Civil Service Board of the City is created by Section 9.01(e) within Article 9 of the City's charter. Section 9.11 within Article 9 of the City's charter states the purpose and creates the powers of the Civil Service Board, specifically providing:
(a) Purpose. The primary purpose of the Civil Service Board is to oversee the Civil Service System of the City of Richardson.
(b) Powers. The Civil Service Board, subject to the approval of the City Council, shall adopt, amend, and enforce a Code of Rules and Regulations providing for appointment and employment in all positions in the Classified Service which shall have the force and effect of law; also [shall adopt, amend, and enforce] rules regulating reduction of forces of employees and in what order they shall be dismissed and reinstated; [and] shall make investigations concerning the enforcement and effect of the Civil Service sections of this Charter and of the rules adopted under the powers herein granted. Pursuant to the authority and duty specified in Section 9.11(b) of the City's charter, the Civil Service Board has adopted a Code of Rules and Regulations for the Municipal Civil Service System.
27. Within the Civil Service Code of Rules and Regulations, the Civil Service Board has promulgated Rule IV, Section 18, relating to job classification codes. Section 18 provides:
Creation of Classification and Salary Plan. The governing body of the City will adopt in ordinance form a classification and salary plan for all employees in the classified service. Such plan shall have been originally prepared by the Director of Human Resources and submitted to the Board for its recommendation before final submission to the governing body for its action. Within each classification there may be a differential in salary. The classification and pay plan may be revised when necessary.
28. Pursuant to Section 9.11 of the City's Charter, and pursuant to Section 18 of the Civil Service Rules and Regulations, the Civil Service Board promulgated, and the City Council passed into effect, Civil Service Job Classification Code 1414 relating to the position of firefighter within the Department.B. Additional Facts
1. Chief Holley did not tell Crawford that if he was going to take the City to court, he (Holley) would have to let Crawford go or words to that effect. As Chief Holley testified, he had enough "smarts" not to make a statement or threat of that nature. The court, having observed the testimony and demeanor of Chief Holley and other factors, finds his testimony more credible on this issue.
2. During the meeting with Crawford on September 26, 1996, Chief Holley inquired of Crawford's intentions regarding his attending paramedic training and why he did not want to attend. The record is not clear with respect to the exact exchange between Holley and Crawford; however, Crawford did not state affirmatively that he planned to attend and complete paramedic training. Crawford knew that Holley wanted a decision or commitment that he would attend and complete paramedic training.
3. Chief Holley already had received the letter from Crawford's counsel dated September 25, 1996, which stated Crawford's position regarding his attending paramedic training. Crawford had the opportunity to tell Holley that the letter did not correctly reflect his position, but did not indicate in any way that his position was different than that stated by his attorney or that he would attend paramedic training.
4. Had Crawford informed Holley that he would attend paramedic training and make a reasonable effort to complete it, no termination would have occurred.IV. Conclusions of Law
Virtually all facts set forth in Findings Nos. 1-28 are taken directly from the Stipulated Facts agreed to by the parties and set forth in the Pretrial Order signed by the court and filed on March 26, 1999; the few that do not, come from undisputed portions of the record.
The parties refer to this test as the DTLS test; however, several documents refer to the test as the Descriptive Test Language Skills Reading Math and Assessment test. The court will use the acronym DTLS which was agreed to by the parties.
Although the parties stipulate to the term "impaired," the eleventh-hour receipt of the letter impeded the Department's ability, or effectively made it impossible, to find someone to attend in Crawford's place.
The facts contained herein are either undisputed or the court has made the finding based on the credibility or believability of each witness. In doing so, the court considered all of the circumstances under which the witness testified which include: the relationship of the witness to Plaintiff or Defendant; the interest, if any, the witness has in the outcome of the case; the witness's appearance, demeanor, and manner of testifying while on the witness stand; the witness's apparent candor and fairness, or the lack thereof; the reasonableness or unreasonableness of the witness's testimony; the opportunity of the witness to observe or acquire knowledge concerning the facts to which he testified; the extent to which the witness was contradicted or supported by other credible evidence; and whether such contradiction related to an important factor in the case or some minor or unimportant detail.
A. Plaintiff's Termination and Substantial Evidence
Crawford contends that substantial evidence did not exist to support his termination from employment after he served his three-shift suspension because no evidence in the record establishes that he did anything improper following his return to work after the suspension. The court disagrees and holds that more than substantial evidence exists in the record to justify Crawford's termination from employment.
The parties acknowledge that the substantial evidence test is the appropriate standard of review to be applied by the court in determining the legality of Crawford's discharge.
The court begins its analysis by first setting forth the applicable test for substantial evidence review. In describing and defining the standard of review of the substantial evidence rule, the Texas Supreme Court stated:
At its core, the substantial evidence rule is a reasonableness test or a rational basis test. The reviewing court, then, concerns itself with the reasonableness of the administrative order, not the correctness of the order. In applying this test, we may not substitute our judgment as to the weight of the evidence for that of the agency. (The substantial evidence rule prevents the court from usurping the agency's adjudicative authority even though the court would have struck a different balance.)
Although substantial evidence is more than a mere scintilla, the evidence in the record actually may preponderate against the decision of the agency and nonetheless amount to substantial evidence. The true test is not whether the agency reached the correct conclusion, but whether some reasonable basis exists in the record for the action taken by the agency. The findings, inferences, conclusions, and decisions of an administrative agency are presumed to be supported by substantial evidence, and the burden is on the contestant to prove otherwise.El Paso v. Public Utility Comm'n of Texas, 883 S.W.2d 179, 185 (Tex. 1994) (internal quotations and citations omitted). The bottom line is that if there is evidence "to support either affirmative or negative findings on a specific matter, the decision of the agency must be upheld." Texas Health Facilities Comm'n v. Charter Medical — Dallas, Inc., 665 S.W.2d 446, 453 (Tex. 1984). Stated another way, the reviewing court may not reverse an agency or board's decision if a reasonable person could have come to the same conclusion as that of the agency or board. Id.
The evidence at the hearing regarding Crawford's termination necessarily establishes that Crawford did not comply with the order contained in the memorandum from Chief Holley on September 23, 1996. Crawford acknowledges that he did not comply with the memorandum. The memorandum gave Crawford a specific order. Contrary to the assertion by Crawford, the order is not ambiguous. The contention that Crawford did not know what was being ordered of him comes ever so close to being frivolous. The plain and obvious meaning of the memorandum, given Crawford's earlier refusal to attend paramedic training, is that the Chief merely directed Crawford to state in writing that he would "prepare for enrollment and successful completion of the assigned paramedic class." The court interprets this to mean that Crawford would commit to attending paramedic school and make an effort to complete it successfully. Crawford makes much ado about the word "successful." The word "successful" is really superfluous because by definition, if one completes a course or training class, he has done it successfully. Of course, no person can predict to an absolute certainty future success, but one can certainly make a reasonable and concentrated effort to successfully complete a task. This is all that was being ordered of Crawford, and the court finds that the order was reasonable to a person of ordinary understanding. Nothing prevented Crawford from complying with this order, except his deeply held belief that the order was beyond the scope of authority of the Chief and the Department. Crawford had a right to his position and to contest the order administratively and in court; however, he must live with the legal consequences of that decision, for better or worse. At the same time, the Chief has responsibility for oversight of the Department and must make decisions consistent with its mission and purpose of providing for the public safety and welfare through adequate emergency medical and fire services.
Crawford also contends that his termination was not justified because the September 25, 1996 letter did not state that he would refuse to report to paramedic training. As stated before, Crawford never complied with the September 23, 1996 order. Instead, Crawford's counsel sent a letter to Chief Holley on September 25, 1996, informing him that Crawford continued to dispute whether he could be required to attend paramedic training. Crawford acknowledged that the letter correctly reflected his (Crawford's) position regarding his attending paramedic training and that he authorized his counsel to make the statements on his behalf. The letter stated in part "[y]ou can continue to issue these demands and orders [to attend paramedic class and achieve paramedic certification] on a daily basis if you so desire, and Mr. Crawford will continue to challenge each of them until the underlying legal issue is formally resolved." Crawford never informed Chief Holley that he did not understand what was being ordered of him and did not ask for clarification of the Chief's order of September 23, 1996. The issue is whether Crawford complied with the Chief's order, not whether he ever stated that "he would not attend paramedic training." Crawford admitted that he did not comply. At the termination hearing in November 1996 before the Civil Service Appeals Board, Crawford stated that he would attend paramedic training if he were reinstated. The court concludes that Crawford had a change of heart because he knew his career was on the line and wanted to display a cooperative and conciliatory attitude before the Board. This deathbed conversion, however, came too late in the game because the die had already been cast.
The court concludes that not only substantial, but clear and convincing evidence, exists in the record for the Board's decision to discharge Crawford for insubordination, refusal to follow orders, refusal to carry out orders, and willful disregard of orders. There is evidence to support the Board's decision to uphold the termination of Crawford because a reasonable person could have reached the same conclusion as that of the Board.
The court's ruling regarding insubordination and refusal to follow orders necessarily includes a finding that the order was lawful and that Crawford understood what was being ordered of him.
Although the court does not believe that Crawford has raised a claim regarding his suspension, the court would conclude that substantial evidence exists in the record of the Civil Service Appeal Board's hearing in October 1996 to support the three-shift suspension. Crawford conceded that he refused to attend paramedic school in September. Although the City chose not to discharge Crawford because of his refusal to attend paramedic training in September 1996, the court finds and concludes that Crawford's refusal or insubordination would constitute grounds for his dismissal. A paramilitary organization, such as a fire department, has a strong governmental interest in maintaining discipline and order within its ranks. One who is insubordinate cannot be relied on or trusted to follow instructions and perform his job duties. Such insubordination undermines authority, can adversely affect employee morale, can compromise the integrity or good order of an organization, can jeopardize the safety and welfare of fellow employees and the public, and can impair or impede the ability of an organization to deliver services to the public. An insubordinate employee is of no value to an organization.
B. Plaintiff's Termination — Violation of City Charter and Civil Service Rules
Crawford contends that the administrative officers of the Department, by attempting to use a departmental administrative policy to upgrade the medical certification requirement for ambulance personnel from EMT certification to paramedic certification, rather than seek the proper amendment and revision of Job Classification Code 1414 through appropriate legislative action of the Civil Service Board and the City Council, have violated the separation of powers doctrine and have violated the City's charter. In particular, Crawford's position regarding this contention is stated thusly:
Section 9.11 of the City's charter assigns legislative authority to the Civil Service Board to promulgate, amend and enforce the rules and regulation[s] governing employment in the civil service system of the City, subject to approval by the City Council. Included within that assignment is the power and duty to promulgate job classification categories and standards. Under this specific assignment of power and duty, the Civil Service Board and the City Council have legislatively enacted Job Classification Code 1414, and it has the effect of law. Job Classification Code 1414 requires only EMT medical certification, not the higher paramedic certification. Job Classification Code 1414 can only be modified or amended by further legislative action of the Civil Service Board and the City Council. Here, however, the fire department has attempted, through administrative fiat, to avoid the medical certification provisions of Job Classification Code 1414. The fire department essentially seeks to split the ranks of firefighters serving under Job Classification Code 1414 into two groups — one group being required only to maintain EMT medical certification, and a second group being required to maintain paramedic certification. This administrative attempt to usurp and invade the legislative function assigned under the City's charter to the Civil Service Board and the City Council is a violation of the separation of powers doctrine, and is therefore invalid.
Plaintiff's Trial Brief at 4-5.
The requirement of the Department that some firefighters are required to attend paramedic training and obtain paramedic certification does not violate the separation of powers doctrine or usurp the legislative function of the Board and City Council. While Crawford has correctly stated the law in a general sense regarding the separation of powers doctrine, he cited no authorities on point, and those he did cite have no applicability to this case.
The job classification or description of a firefighter lists several responsibilities that relate to providing emergency medical services. More important to the court's analysis on this issue is that part of the job description which states that a firefighter might be required to "relieve a paramedic and function as an ambulance attendant." These responsibilities necessarily contemplate and expect firefighters to perform the same duties as those of a paramedic when they are relieving paramedics. If one is to serve in the place of a paramedic, requiring such relief person to be certified as a paramedic is not unreasonable. Indeed, it would be fatuous to assume that one who relieves a paramedic need not be certified to perform as a paramedic. The requirement of which Plaintiff complains is so closely related to a job duty that he may be called upon to perform at various times as part of his firefighter position. That the Department wants a higher level of training is commendable and serves a legitimate governmental objective in that such training provides improved emergency services to the public and reduces the potential for liability against the City. Moreover, job classifications or descriptions are often written in general language, and no job description can be written such that it entails each and every conceivable duty, task, or requirement that an employee may have to perform to serve in the position. Administrators need the flexibility and discretion to add requirements to a job, provided the requirements are reasonably related to one of the job duties specified in the job classification. A job classification or description is not intended to be so draconian or rigid that it prevents reasonable discretion and flexibility on the part of those charged with daily administration of municipal business and affairs. The court therefore concludes that a job description need not contain or contemplate every minute requirement or responsibility. The court holds that a governmental entity may impose duties or requirements not specifically stated within a job description as long as the additional duties or requirements reasonably arise from, or are reasonably related to, a duty or responsibility specifically contained within the job description or classification. The court finds that the Department's requirement that some firefighters attend paramedic school is reasonably related to the duty of relieving paramedics which is specifically contained within the job classification. Accordingly, there is no violation of the separation of powers doctrine, and the Department has not usurped the powers of the Board or City Council by implementing Policy No. 133. No formal action was required by the Board or the City Council for the Department to implement Policy No. 133.
Crawford states that the Department has not sought an amendment to Job Classification 1414 to include a requirement of paramedic certification or training because of economic reasons. There was some testimony by Chief Holley in this regard; however, that testimony must be read in context of the entire record. Moreover, regardless of how Chief Holley's testimony is interpreted, it is really irrelevant and of no moment because the court has concluded approval of the Civil Service Board and City Council was not necessary for the Department to require paramedic training of some of its firefighters.
C. Plaintiff's Termination — Violation of Departmental Rules and Regulations
The court is not certain which rules and regulations of the Department Plaintiff contends were violated. Apparently, Crawford does not dispute that according to the previous version of Policy No. 133, under which only firefighters with at least two years seniority were eligible for assignment to paramedic training, he would have been the least senior eligible individual. His selection would therefore have been consistent with the previous version of the policy. Crawford argues, however, that the selection should have been based on the May 1996 amendment to the policy, which made all firefighters with at least one year seniority eligible for assignment to paramedic training. Presumably, under the amended policy, he would have not been selected as he would not have been the least senior eligible individual. The amendment to Policy No. 133 occurred after Crawford had been selected, assigned, and notified to attend paramedic training. Crawford originally was to attend paramedic school in May 1996 had he passed the DTLS test. Under these facts, the court cannot conclude that the Department officials were wrong in holding that Policy No. 133 before it was amended applied to Crawford. When the issue of paramedic training surfaced regarding Crawford, he squarely fell under old Policy No. 133, as it was the one in effect. Although the policy was amended, the Department took the position that a firefighter's attendance would be governed by the policy in effect at the time the firefighter was selected and assigned to paramedic school. The court finds this application reasonable. Crawford has come forth with no evidence to establish that the manner of application was arbitrary or inconsistent with the manner in which the Department had applied other policy changes in the Department. Accordingly, the court concludes that the Department did not violate its own rules and regulations or apply Policy No. 133 in an arbitrary or inconsistent manner.
D. Plaintiff's Termination — Denial of Due Process
Crawford makes several arguments contending that the City denied him due process of law when he was terminated from the Department. The court disagrees that Crawford has been denied due process of law in any respect and addresses each of Crawford's arguments.
1. Procedural Due Process
To the extent that Crawford contends that he was not afforded due process regarding his pretermination and posttermination hearings, the court concludes that such contention is without merit. Under Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547-48 (1985), an employee with a property right in his employment is entitled to notice and a pretermination opportunity to respond to the charges and a posttermination hearing. Chief Holley and other Department officials held a meeting with Crawford on September 26, 1996, prior to his termination. Holley inquired of Crawford why he did not want to attend paramedic training and whether he had made up his mind. Crawford knew what the issue was and had an opportunity to respond or tell Holley that he would or would not attend. The court concludes, given the history of the Department's efforts to get Crawford to attend paramedic training and the warnings issued to him, that Crawford knew he would be terminated if he did not comply with Holley's order of September 23, 1996. The court finds that the meeting with Holley and other officials satisfied the pretermination notice and opportunity to respond as required by Loudermill. Even if the meeting did not satisfy these requirements and the pretermination hearing was inadequate, such failure was effectively cured by the posttermination hearing held in November 1996 following Crawford's discharge. Moreover, assuming that the pretermination meeting was inadequate under Loudermill, the Department necessarily established at the posttermination hearing before the Board that it would have made the same decision (that is, reached the same result) regarding Crawford's termination, and therefore he has suffered no constitutional harm. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
2. Substantive Due Process
Crawford contends that the termination deprived him of substantive due process. Specifically, he contends as follows:
Chief Holley's demand letter of September 23, 1996 was susceptible of more than one meaning or construction, and could be construed as a demand that Crawford enter into a contractual agreement with the City as a condition of his retention of his civil service position. The demand letter could also be construed as a demand that Crawford waive, or make statements which could be construed as a waiver or impairment of, his appellate rights under the civil service system of the City and his right to challenge the actions of the administrative officers of the fire department through judicial processes. The letter can also be construed as a demand that Crawford make statements against his will.
Because the demand letter can be construed in several ways and can be construed to make unlawful and improper demands, it is impermissibly vague, nonspecific, and improper. It therefore cannot serve as the legal basis for the termination of Crawford's vested property interest in his civil service position. Because the demand letter was in fact utilized as the primary basis for Crawford's termination, Crawford has been denied substantive due process of law.
Plaintiff's First Amended Petition ¶¶ 5.2, 5.3.
In response to Crawford's argument that the letter of September 23, 1996 was susceptible of more than one construction or meaning, the court, for the reasons already stated, finds that the argument is meritless because the letter was not susceptible of more than one reasonable meaning or interpretation to a person of ordinary intelligence. Accordingly, it is not vague or ambiguous in violation of the Plaintiff's substantive due process rights.
The court also concludes that Plaintiff's contentions regarding a contractual agreement, waiver, and forced statements against his will are meritless. The cases cited by Crawford to support his contentions: Pappachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Ross v. State, 802 S.W.2d 308, 314 (Tex.App.-Dallas, 1990, no writ); Turner Broadcasting Sys. Inc., v. F.C.C., 512 U.S. 622, 641 (1994); West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943); R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); and Riley v. Nat'l Fed'n of the Blind of North Carolina, 487 U.S. 781, 791-795 (1988), do not deal with or analyze public employees embroiled in an employee-employer dispute regarding due process or free speech claims and simply have no applicability to the issues presented in this case.
E. Plaintiff's Termination — Free Speech and Association
1. Free Speech
Crawford contends that his employment was terminated because he spoke out on public issues. In particular, he contends that he notified public officials that the administrative officers of the Department were acting in contradiction of the charter of the City, and that when he refused to withdraw the allegation, he was terminated for insubordination. For the reasons that follow, the court disagrees that Crawford has suffered a First Amendment violation.
In analyzing this claim, the court begins with the applicable law. To prevail on or establish a First Amendment retaliation claim, a public employee must (1) suffer an adverse employment action; (2) establish that his speech involves a matter of public concern; (3) establish that his interest in commenting on matters of public concern outweigh any interest the employer has in promoting efficiency; and (4) show that his speech motivated the employer's adverse action. Teague v. City of Flower Mound, Texas, 179 F.3d 377, 380 (5th Cir. 1999); Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir. 1999). First Amendment protection is not afforded to expressive conduct that is not of public concern. Connick v. Meyers, 461 U.S. 138, 146 (1983); Gillum v. City of Kerrville, 3 F.3d 117 (5th Cir. 1993); Dodds v. Childers, 933 F.2d 271, 273 (5th Cir. 1991); Coughlin v. Lee, 946 F.2d 1152, 1157-1158 (5th Cir. 1991). The Supreme Court and the Fifth Circuit have held that a public employee's speech is not protected when the employee speaks as a citizen on a matter of general concern that is tied to a personal employment dispute. Connick, 461 U.S. at 147, 148 n. 8; Ayoub v. Tex. A M Univ., 927 F.2d 835, 838 (5th Cir. 1991); Terrell v. Univ. of Tex. Sys. Police, 792 F.2d 1360, 1362 (5th Cir. 1986), cert. denied, 479 U.S. 1064 (1987). The courts do not focus on the inherent interest or importance of the matters discussed by the employee, but decide whether the speech at issue was made primarily in the employee's role as citizen or primarily in his role as employee. Stewart v. Parish of Jefferson, 951 F.2d 681 (5th Cir. 1992); Ayoub, 927 F.2d at 837; Terrell, 792 F.2d at 1362. Thus, a communication will not rise to the level of public concern if a person speaks out primarily as an employee rather than as a citizen.
Crawford's speech claim fails for two reasons: his failure to speak on a matter of public concern and lack of causation between the allegedly protected speech and his discharge. Crawford spoke not as a citizen on a matter of public concern, but as an employee on matters only of a personal or private interest. Regardless of how Crawford characterizes the allegedly protected speech, he made the statements in his role as an employee embroiled in an employment dispute. Crawford's statements were focused on and geared toward getting himself reinstated to his former job. This is really his primary motivation for making the statement. Speech made by a public employee is entitled to protection in only limited instances: "those involving the report of corruption or wrongdoing to higher authorities." Wallace v. Texas Tech. Univ. 80 F.3d 1042, 1051 (5th Cir. 1996). At best, Crawford contends that the City administrators have misapplied or misinterpreted certain provisions of the City Charter or Civil Service Rules. As Crawford's primary goal was to be reinstated because he believed the administrators incorrectly applied certain City regulations against him, his statements were motivated by, and primarily addressed, his private and personal dispute with the City. Accordingly, the court concludes that such statements are not entitled to First Amendment protection.
Second, Crawford has produced no evidence that his discharge was causally connected to his speaking out on a matter of public concern. Even assuming that his speech was a matter of public concern, Crawford wholly fails to establish that his speech motivated the City to discharge him. The evidence necessarily establishes that Crawford was fired for insubordination and refusal to follow orders regarding his attending paramedic school. The Department had been trying to get Crawford into paramedic training since April 1996. When Crawford refused to comply with a legitimate order of the Chief in September 1996, he was terminated. There is simply no causal connection between the allegedly protected speech and the discharge. At best, Crawford has a subjective belief that he was retaliated against for what he believes was protected speech; such subjective belief, however, is wholly insufficient to establish that the allegedly protected speech motivated Holley to discharge Crawford. Since Crawford cannot establish two essential elements of his First Amendment retaliation claim, it fails as a matter of law.
Plaintiff cites Davis v. Ector County, Texas, 40 F.3d 777, 782 (5th Cir. 1994), and Brawner v. City of Richardson, 855 F.2d 187, 191-92 (5th Cir. 1988), in support of his First Amendment retaliation claim. Plaintiff's Trial Brief at 11. Crawford's reliance on these two cases is misplaced. In Davis, the employee alleged sexual harassment of employees at the Sheriff's Department and a possible coverup at the Sheriff's office which would prevent the allegations from being fully investigated. What Davis alleged was unequivocally a matter of public concern — alleged wrongdoing and a possible coverup in the Sheriff's office. In Brawner, an anonymous letter and a letter from an attorney raised questions about illegal activities and serious misconduct within the Richardson Police Department, an obvious matter of public concern. The court fully recognizes that the concerns raised in Davis and Brawner are matters of public concern; however, for reasons previously stated, Crawford was speaking primarily as an employee rather than a citizen, and his speech was therefore not a matter of public concern. Accordingly, Davis and Brawner are clearly distinguishable from this case and have no relevance to Crawford's First Amendment claim or impact on the court's analysis.
2. Freedom of Association
Crawford contends that the City deprived him of his right to freedom of association. The court simply does not understand the factual basis for this claim because all Crawford says in regard to this claim is "he was terminated for refusing to make statements and enter into agreements improperly demanded of him by the City, in violation of his right of free speech and association." Joint Pretrial Order, Plaintiff's Summary of Claims at 2. The court, nevertheless, addresses the claim and sets forth the applicable standard for analyzing it.
The United States Constitution does not protect or include a "generalized right of social association." City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). With respect to the right of free association as guaranteed by the First Amendment, the United States Supreme Court recognizes a constitutional right of free association in only two specific contexts:
Our decisions have referred to constitutionally protected `freedom of association' in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984). The first category is epitomized by "highly personal relationships" such as marriage and family, and the personal affiliations that necessarily "attend the creation and sustenance of these highly personal relationships." Id. at 618-20; Hobbs v. Hawkins, 968 F.2d 471, 482 (5th Cir. 1992). This line of cases does not limit freedom of association to family relationships; however, the right is limited to relationships "that presuppose `deep attachments and commitments to the necessary few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life.'" Board of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987) (citation omitted). The second category of cases recognizes "associational rights derivative of the First Amendment rights of speech, assembly, petition for redress of grievances, and exercise of religion." Hobbs v. Hawkins, 968 F.2d at 482. Crawford has neither alleged nor established that he falls within the ambit of either category of cases. Since Plaintiff has failed to present evidence that he has been denied his right to freedom of association, this claim necessarily fails.
V. Conclusion
Based upon the findings of fact and conclusions of law previously set forth, the court determines that Plaintiff has failed to establish that he should prevail on any of this claims. Defendant therefore has no liability to Plaintiff and is entitled to judgment in its favor. Accordingly, the court will enter judgment by separate document, pursuant to Fed.R.Civ.P. 58, in favor of Defendant City of Richardson.
It is so ordered this 27th day of June, 2001.