Travers v. Jones: Is "fact Preclusion" a Death Knell for Section 1983 Employment Claims Against Local Governments by Civil Service Employees?
| Publication year | 2010 |
Georgia State University Law Review
3-1-2005
Travers v. Jones: Is "Fact Preclusion" a Death Knell for Section 1983 Employment Claims Against Local Governments By Civil Service Employees?
William J. III Linkous
Follow this and additional works at: http://digitalarchive.gsu.edu/gsulr Part of the Law Commons
Recommended Citation
Linkous, William J. III (2004) "Travers v. Jones: Is "Fact Preclusion" a Death Knell for Section 1983 Employment Claims Against Local Governments By Civil Service Employees?," Georgia State University Law Review: Vol. 21: Iss. 3, Article 6. Available at: http://digitalarchive.gsu.edu/gsulr/vol21/iss3/6
This Article is brought to you for free and open access by the College of Law Publications at Digital Archive @ GSU. It has been accepted for inclusion in Georgia State University Law Review by an authorized administrator of Digital Archive @ GSU. For more information, please contact digitalarchive@gsu.edu.
TRAVERS V. JONES: IS "FACT PRECLUSION" A DEATH KNELL FOR SECTION 1983 EMPLOYMENT CLAIMS AGAINST LOCAL GOVERNMENTS BY CIVIL SERVICE EMPLOYEES?
William J. Linkous, in
Introduction
On March 11, 2003, a three-judge panel of the Eleventh Circuit Court of Appeals decided the case of Travers v. Jones.1 By itself, the holding of the Eleventh Circuit in Travers is not particularly noteworthy given its solid reliance on U.S. Supreme Court and Georgia court precedent. However, when coupled with other binding employment law principles in the Eleventh Circuit, the case restricts the ability of civil service employees to bring duplicative litigation against local governments, particularly when these employees seek leverage through multiple avenues of relief. Although the court in Travers did not do away with Section 1983 employment litigation for civil service government employees, its holding relegates litigants to a choice of one or two more limited roads and presents potential pitfalls for local governments.4 However, the public policy benefits of the decision should vastly outweigh any problems.
* Chief Assistant County Attorney for DeKalb County in charge of all litigation; B.A., Roanoke College; J.D., Law Review, Georgia State University College of Law. Mr. Linkous orchestrated the Travers v. Jones litigation on behalf of the Defendants and actively participated in the litigation of the case, in conjunction with Senior Assistant County Attorneys Melanie R Wilson and R Charles Reed, before the U.S. District Court, Eleventh Circuit Court of Appeals, and the U.S. Supreme Court.
1. 323 F.3d 1294 (11th Cir. 2003).
2. See generally id.
3. See Bishop v. City of Birmingham Police Dep't, 361 F.3d 607 (11th Cir. 2004).
4. Travers, 323 R3d at 1296-97.
627
GEORGIA STATE UNIVERSITY LAW REVIEW
I. Case Facts and History
A. Prior to Litigation
James Travers, the plaintiff in the Trovers case, worked as a civil service employee for the Fire and Emergency Services Department in DeKalb County Georgia.5 At that time, Fire and Emergency Services employees were concerned about what they described as a "pay disparity" issue in their department and began to picket outside of the county's main administration building.6 At some point during the pickets, the employees began to loudly "chant" the first name of DeKalb County's Chief Executive Officer ("CEO"), Vernon Jones.7 There was no evidence that prior to the day in question the CEO had ever heard this chanting.8 The Fire and Emergency Services Department had never disciplined an employee for picketing, nor had it disciplined an employee for taking a position on the "pay disparity" issue.9 In other words, there was no evidence of any history of retaliation against employees for the expression of their First Amendment rights.
On the date at issue, Mr. Travers was the lone firefighter picketing outside the building.10 When DeKalb's CEO emerged from the building, Mr. Travers began chanting the CEO's first name.11 The
12
CEO heard Mr. Travers and approached him. There was a verbal exchange, the exact wording of which the parties dispute.13 Mr. Travers admitted removing his sunglasses during the exchange.14 The CEO then left the area.15 Later, Fire Chief Scott Wilder received notice of this incident, and after investigating and hearing Mr.
5. Id. at 1295.
6. Id.
7. Id.
8. Id.
9. Id
10. Travers, 323 F.3d at 1295.
11. Id, at 1296.
12. Id
13. Id. at 1296-97.
14. Id. at 1296.
15. Id.
2005] travers V. jones 629
Travers' side of the story, he suspended Mr. Travers from duty without pay for 30 days.16 Mr. Travers appealed Chief Wilder's decision through DeKalb County's Merit (civil service) System.17
DeKalb County's Merit System generally affords employees the opportunity to contest disciplinary measures against them by presenting evidence to a county appointed administrative hearing officer.18 These hearing officers are ordinarily attorneys selected from the community who have no prior interest in the cases they hear.19 The Merit System rules allow the hearing officers to overturn the decision of the supervisor only when one of the following conditions apply: (1) the decision was "based upon an error in fact," or (2) was motivated by a non-job-related factor.20 The administrative hearing allows employees to present evidence, testify on their own behalf, cross-examine witnesses for the county, and make arguments.21 However, the proceedings do not afford the employees
22
or the county the opportunity to subpoena witnesses. Hearing officers must issue written decisions, containing the findings of fact, conclusions, and the grounds for the decision. Merit System employees may also seek review of actions against them that they consider discriminatory.24 The provisions governing discrimination appeals are generally similar, but a hearing officer can overturn these decisions only if (1) the decision was "based on error of fact," or (2)
16. Travers, 323 F.3d at 1296.
17. Id.
18. See generally DeKalb, Ga., code §§ 20-1 to 20-195 (1976) (containing basic provisions of DeKalb County Code) (on file with author); DeKalb, Ga., code §§ 1001-1058 (1996) (providing local acts applicable to DeKalb County) (on file with author); administrative procedures to the Personnel Chapter of the DeKalb County Code (2000) (on file with author).
19. DeKalb, Ga., code § 20-193(2) (1976) (on file with author); administrative procedures to the personnel chapter of the dekalb county code, Art. XVI, §§ 1055-56.
20. DeKalb, Ga., Code § 20-193(3) (1976) (on file with author).
21. DeKalb, Ga., Code § 20-193(2) (1976) (on file with author); Administrative Procedures to the Personnel Chapter of the DeKalb County Code, Art. XVI, §§ 1055-56.
22. Employees may request the presence of county employees as witnesses five days or more before the hearing. The hearing officer can only notify these employees that a party has requested their presence, but the officer cannot compel their attendance under the current administrative procedures. See Travers, 323 F.3d at 1297.
23. DeKalb, Ga., Code § 20-193(4) (1976) (on file with author).
24. dekalb, Ga., code § 20-194 (1976) (on file with author).
GEORGIA STATE UNIVERSITY LAW REVIEW
the decision "was motivated by intentional discrimination" against
25
the employee based upon one of the listed protected classifications.
Mr. Travers' appeal under the county Merit System was unsuccessful. He failed to request the presence of his county employee witnesses five days or more before the hearing date, as the procedures require, and thus, the failure of the witnesses to appear did not delay his hearing.27 The County did not present the CEO's testimony but relied instead on the testimony of the other two county officials present for the incident.28 As quoted by the Eleventh Circuit, the hearing officer made the following written findings regarding the incident in question:
Travers was participating in a picket demonstration in front of the administration building. As CEO Jones exited the building, Travers turned to him and repeatedly chanted Jones's first name in a "loudly, menacingly and taunting manner." CEO Jones approached Travers and asked whether he was a County employee. Travers acknowledged that he was a County employee exercising his rights as a citizen. CEO Jones told Travers that while he did not mind that Travers was exercising his rights, he would not tolerate Travers' insubordinate actions. Travers then said that he needed to take off his sunglasses so that he could look into CEO Jones's eyes. CEO Jones repeated that he would not tolerate Travers' insubordinate actions and walked
29
away.
The hearing officer also found that there were no non-job-related factors or any errors of fact that would warrant reversing Chief Wilder's 30-day suspension of Mr. Travers for insubordination and conduct unbecoming of civil service employees, regardless of
25. DeKalb, Ga., Code § 20-194 (1976) (on file with author).
26. Travers, 323 F.3d at 1296.
27. Id. at 1297.
28. Id. at 1296.
29. Id. (a copy of the hearing officer's decision is on file with author).
2005] travers v. jones 631
whether they are on or off duty. Mr. Travers did not appeal the decision of the hearing officer via Georgia's certiorari procedure or any other method.31
B. Litigation
Mr. Travers instead filed a lawsuit in the United States District Court for the Northern District of Georgia, alleging that the decision to suspend him violated his rights under the First Amendment and 42 U.S.C. § 1983. Mr. Travers also included duplicate claims under the Georgia Constitution.33 The defendants in the case were CEO Jones, in both his individual and official capacities, Chief Wilder, in both his individual and official capacities, and DeKalb County.34 Mr. Travers alleged that the motivation behind his suspension was suppression of his First Amendment rights to freedom of expression, freedom of association, and freedom to petition.35
The defendants filed their motion for summary judgment at the close of...
To continue reading
Request your trial