Horton v. Taylor

WOLLMAN, Circuit Judge.

This case is once again before us on appeal. Appellants are road-grader operators who were' former employees of the Searcy County Judge in the Searcy County, Arkansas, road department. They alleged that appellee, Duford Taylor, who was elected Searcy County Judge on the Democratic ticket in the 1982 general election, had dismissed them upon his taking office on January 1, 1983. They alleged that their dismissal resulted from their status as members of the Republican Party. The district court dismissed appellants’ complaint, and they appealed to this court. (For a full discussion of the procedural and factual background of this case, see Horton v. Taylor, 585 F.Supp. 224 (W.D.Ark.1984)).

In Horton v. Taylor, 767 F.2d 471 (8th Cir.1985) this court held that the district court had erred in carving out a small-county exception to the rule of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Accordingly, the court reversed the district court’s judgment and remanded the case for further findings. Specifically, the court directed the district court to determine the reason or reasons for the dismissal for each of the appellants. The district court was also directed to determine whether any of the appellants had made statements on matters of public concern that *478may have led to or have contributed to their dismissal. If it found that certain of the appellants were dismissed because of overt activity involving arguably protected speech, the district court was directed to apply the balancing test of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

The opinion concluded its elaborate exegesis of Elrod-Branti-Pickering-Connick by stating:

Finally, if the district court should find that certain road-graders were dismissed for mixed motives, one motive implicating first amendment interests (political affiliation and/or overt speech) and one or more being unrelated to the first amendment, then the district court should apply the test of Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and determine whether Judge Taylor showed that some or all of the discharges “would have been made in any event for reasons unrelated to any exercise of protected first amendment rights.” Jones [v. Dodson, 727 F.2d 1329, 1335 (4th Cir.1984)]. If so, then judgment should be entered for him.

Horton v. Taylor, 767 F.2d at 481 (footnote omitted).

On remand, the district court1 took further testimony. As in the first hearing, a number of the witnesses testified regarding the pervasive presence of partisan politics in Searcy County.

Not surprisingly, the didactic nature of the remanding opinion had a memory-enhancing effect on certain of the witnesses. Be that as it may, the record reveals that appellants portrayed themselves as faithful, dedicated, impartial roadgraders — good men and true, graders gleaming and at the ready — prepared to grade roads for one and all without fear or favor. Judge Taylor, on the other hand, painted a picture of appellants as a cabal of inept slackers who, when they were not drinking coffee and exchanging gossip at the local cross-roads stores, ran their machines to ruin, leaving a path of destruction in their wake.

The district court found Judge Taylor’s testimony to be more credible than that of appellants. The district court found that although a motivating factor, appellants’ party affiliation was not the sole motivation for their being discharged by Judge Taylor. The district court further found that certain statements made by appellants Horton and Adams during the 1982 general election campaign were mere expressions of personal invective and not statements on matters of legitimate public concern. The district court also found that Judge Taylor either ignored such statements or was unaware of them and that therefore the statements played no role in his discharge of Horton and Adams. Applying the test set forth in Mt. Healthy, supra, the district court found that Judge Taylor would have discharged appellants in any event for legitimate reasons unrelated to their first amendment rights.

With respect to the deficiencies in appellants' job performance, the trial court found that during their employment as roadgraders appellants had damaged culverts, destroyed personal property, improperly graded roads, refused to grade certain sections of road, left rock and debris piled in roadways, improperly graded private driveways, failed in certain instances to maintain county equipment, spent work hours at stores and coffee shops, slept in county equipment, and generally failed to discharge their job duties to the best of their abilities.2

Without recounting the testimony in detail, we conclude that although certainly not overwhelming, there is evidence to support the foregoing findings. True, there are inconsistencies in the testimony offered at the first and second hearings. *479Moreover, given the pervasive influence of partisan politics in Searcy County, one could be forgiven for viewing Judge Taylor’s testimony with a healthy degree of skepticism. However, as the Supreme Court has reminded us, the standard of review set forth in Fed.R.Civ.P. 52(a) forecloses an appellate court from reversing a finding of fact merely because it is convinced that it would have decided the case differently. Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Accordingly, whatever dubiety may arise from our reading of the cold record, it must yield to the command of Rule 52(a), for if ever there was a case that demonstrated the need for giving due regard to the opportunity of the trial court to judge the credibility of the witnesses, this is it. We cannot say that Judge Taylor’s testimony was so internally inconsistent or implausible on its face that no reasonable factfinder would credit it. Id. 105 S.Ct. at 1512-13. Rather, we conclude that because Judge Taylor’s testimony was neither incoherent nor facially implausible, the district court’s findings based upon its decision to credit that testimony is not clearly erroneous. Id. 105 S.Ct. at 1513.

The judgment dismissing appellant’s complaint is affirmed.

. The Honorable H. Franklin Waters, Chief Judge, United States District Court for the Western District of Arkansas.

. The district court also found that appellants had knocked down mail boxes while grading roads. In his brief to this court, however, Judge Taylor concedes that there is no support for this finding.