Full opinion text
MEMORANDUM OPINION MYRON H. THOMPSON, Chief Judge. Plaintiffs David Green and Jerry Han-kins, two police officers with the Montgomery City Police Department, have brought this class-action lawsuit charging the defendants — Mayor Emory Folmar, Police Chief John Wilson, and the City of Montgomery, Alabama — with violation of rights given and protected under the first and fourteenth amendments to the United States Constitution as enforced through 42 U.S.C.A. § 1983 (West 1981). Green and Hankins claim that the defendants have subjected them and other officers to a variety of adverse employment actions, including disadvantageous transfers and assignments, unwarranted discipline, and denial of promotions, because of their speech, associational activities, ■ and participation in litigation against defendants. They are pursuing claims on behalf of 15 persons— their own claims and the individual claims of 13 other class members — as well as a broad class-wide claim that Folmar and Wilson have engaged in a “pattern and practice” of retaliation against officers for exercising their first-amendment freedoms. They have invoked the jurisdiction of the court pursuant to 28 U.S.C.A. §§ 1331 (West Supp.1991) and 1343 (West Supp. 1991). The court has certified a plaintiff class of all past, present, and future Montgomery Police Department employees as of January 9, 1984. Based on trial evidence that included over 40 witnesses and a mound of documentary evidence several feet in height, the court concludes that one police officer is entitled to full relief, that one officer is entitled to partial relief, that whether two officers are entitled to any relief cannot be determined from the present record, and that the remaining eleven officers are not entitled to any relief. The court further concludes that the plaintiff class is entitled to recover on only the narrow claim that defendants have retaliated against its members for taking part in lawsuits unfavorable to or critical of Folmar’s or Wilson’s policies and decisions in the area of police employment. I. BACKGROUND It is somewhat of an understatement to say that the court does not write on a clean slate in considering Green and Hankins’s first-amendment claims against Folmar and Wilson. Since the early 1980’s, city and police department officials have been the frequent target of successful retaliation challenges brought by police officers, principally under the headings of three cases: Jordan v. Wilson, civil action no. 75-19-N; United States v. City of Montgomery, civil action no. 3739-N; and Eiland v. City of Montgomery, civil action no. 84-T-120-N. Because the acts of retaliation addressed in these cases were committed by, or at the instigation of, Folmar or Wilson and because most of the claims asserted by the plaintiffs are either directly or indirectly factually related to these cases, any fair consideration of the plaintiffs’ claims must begin with these three cases. A. Jordan v. Wilson and United States v. City of Montgomery 1. Pierce-Hanna In 1986, in response to a complaint filed in Jordan v. Wilson, civil action no. 75-19-N, by Sandra Pierce-Hanna on behalf of herself and other female officers in the Montgomery Police Department, the court held that the department had systematically and intentionally discriminated against female officers in promotions, in violation of Title VII of the Civil Rights Act of 1964, as amended, and the equal protection clause of the fourteenth amendment as enforced through § 1983. Jordan v. Wilson, 649 F.Supp. 1038 (M.D.Ala.1986). The court found that “discriminating against women because they are women was and remains the ‘standard operating procedure’ within the City of Montgomery Police Department.” Id. at 1058. The court ordered the department to develop new promotion procedures. Id. at 1063. The court also found that Mayor Folmar had “concocted a department-wide scheme to discredit and embarrass ... Pierce[Hanna] for having initiated the charges.” Jordan v. Wilson, 667 F.Supp. 772, 776 (M.D.Ala.1987). As later capsulized by the court, the evidence relied upon in reaching this finding was as follows: “Receiving their cue from the mayor, Pierce[-Hanna]’s supervisors suddenly began to give her extremely poor ratings, with the result that her ranking on .the promotion register dropped precipitously and dramatically. The scheme was thus not subtle and hidden, but open, obvious and widespread so that everyone in the department could see that the penalty for ‘disloyalty’ was very great. It was based on open intimidation and had a two-fold purpose: first to punish Pierce-[Hanna] and force her out of the department; and second, to force others in the department to join the mayor in his vendetta against Pierce[-Hanna] and in his opposition to her lawsuit. “The scheme, however, also had an element of reward to it. On one occasion the mayor rewarded two female officers for supporting him against Pierce[-Hanna], by promoting them while rejecting Pierce[-Hanna].” Id. (citation omitted). Because “there [was] a strong probability of further retaliation” and because an injunction banning retaliation was not already outstanding, the court issued an order prohibiting Mayor Folmar and all police officials from retaliating against persons in the department and, in particular, from retaliating against Pierce-Hanna. Jordan v. Wilson, 649 F.Supp. at 1064. At the time of this litigation, the promotion process in the Police Department was not based on objective standards of performance, but rather essentially reflected the personal choices of Folmar. The department ranked its law-enforcement personnel as follows from lowest to highest: police officer, corporal or investigator; sergeant; lieutenant; captain; major; deputy chief; and chief. The process for promotion was identical for all ranks from sergeant through major. Every year, the Montgomery City-County Personnel Board compiled a list of police officers who sought and were eligible for promotion. The only requirement for eligibility was one or two years of service in the next lower rank. The Personnel Board then sent this list to the Police Department, where it was distributed to each of six division commanders. The division commanders, who usually held the rank of major, gave each applicant a numerical rating between one (lowest) and ten (highest) and the police chief and the deputy chief together gave each applicant a similar rating. The chief or deputy chief then averaged the seven ratings so that each applicant had one rating between one and ten. Based on these ratings, the Personnel Board prepared a register of all applicants rated from highest to lowest for each rank. Where two applicants had the same rating, the one with greater seniority was placed higher. According to law, the mayor alone was authorized to promote employees in the Police Department. When there was a vacancy that the department wished to fill by promotion, the mayor asked the Personnel Board to provide a certification of applicants off the register for the rank being considered. The standard certification contained the names of the five highest rated officers on the register for the relevant rank. The mayor then selected for promotion any one of the five applicants from the certification he had requested. Mayor Folmar, who had served as mayor since 1977, did “not view his authority to promote within the police department as titular, as routinely accepting the recommendations of the police chief.” Jordan v. Wilson, 649 F.Supp. at 1048. Rather, he was “directly, personally, and intimately involved in the day-to-day operations of the department, so much so that his relationship with the department [was] more that of a ‘super-chief of police’ rather than that of an external executive who merely sets policy.” Id. He “therefore always had a profound effect on how officers [were] rated by the police chief, his deputy, and the commanders; and Folmar’s promotion selections from the certifications ... usually reflected his own personal choices.” Id. In May 1987, the court approved and ordered implemented an interim plan for promotions in the Police Department. Because the department was subject to outstanding orders in a companion case prohibiting racial discrimination in hiring and promotions, United States v. City of Montgomery, civil action no. 3739-N, the relief also applied to this companion case. Under the plan, “if the mayor chooses to select a lower-ranked candidate over a higher-ranked candidate, even if all the candidates involved are women, he must state in writing his reasons for rejecting the higher-ranked candidate.” Jordan v. Wilson, 667 F.Supp. at 777. The female police officers are then given a period of time to challenge the objection as either sexually discriminatory or retaliatory. If an objection is made, “the mayor may not select the lower-ranked candidate unless and until the court rules in the mayor’s favor on the challenge.” Id. These provisions were based on findings that Mayor Folmar and others had engaged in a longstanding scheme against Pierce-Hanna and other female officers “to discourage [them] from pursuing discrimination claims and to retaliate against those who do.” Id. at 776. At the trial on Pierce-Hanna’s complaint in 1985, Chief Wilson, who was then only a major in the department, testified that, because Pierce-Hanna had brought a lawsuit against the department, he could not be objective in his assessment of her performance as an officer. Upon hearing Wilson’s testimony, the department’s then-Chief of Police prohibited Wilson from having any future input into the required periodic departmental evaluations of Pierce-Hanna. Later, in January 1987, based on Wilson’s testimony, the court approved a decree, submitted by counsel for Pierce-Hanna and for the defendants, which provided, among other things, that “the current Chief of Police, John Wilson, will not be involved in any selection process in which Pierce-Hanna has applied for promotion.” Jordan v. Wilson, civil action no. 75-19-N at p. 2 (M.D.Ala. January 14, 1987). The court later learned in 1991 that May- or Folmar’s bias toward Pierce-Hanna was even stronger than the court had realized. Later evidence revealed that, during the trial on Pierce-Hanna’s claims in 1985, Fol-mar commented to some police officers that “he would fall on his sword and die before he would promote her.” 2. Pierce-Hanna, Lisenby, Williams, and Gamble In 1989, one of the Police Department’s two deputy chiefs announced that he intended to retire. Chief Wilson appointed Roger Owens, a white male, as “deputy-chief designate,” to assume the new position when the retiring deputy chief left on September 29, 1989. In June 1989, in response to challenges to the appointment made by four majors— Pierce-Hanna, Irma Lisenby, Sidney Williams, and James Gamble — the court preliminarily found that Chief Wilson had appointed Owens, and had refused to consider and select one of the four other police officers in retaliation for the four officers’ prior participation in this litigation. United States v. City of Montgomery, civil action nos. 3739-N and 75-19-N (M.D.Ala. June 21,1989). Wilson testified that one of the reasons he had selected Owens was because he was not “controversial” — that is, according to Wilson, because “He’s never been the center of controversy in any of these proceedings or any others.” Id. at 6. The court understood Wilson to mean “that he wanted someone unconnected with this litigation, someone who had not become controversial through his or her support for, or opposition to, these cases — in short someone other than [the four complaining] officers.” Id. The court entered a preliminary injunction requiring that Folmar and Wilson develop an interim selection plan that would allow all eligible officers, including the four complaining officers and Owens, to compete for the deputy-chief position without regard to a candidate’s sex, race, or connection with this litigation. The court further required that Folmar and Wilson vacate the appointment of Owens pending court resolution of the challenges to the appointment. Owens was allowed to continue as acting deputy chief only. In August 1989, the court .entered a memorandum opinion and injunction making final its earlier preliminary finding of retaliation against Pierce-Hanna and the other three officers. The court concluded that “Wilson intended to choose only someone for deputy chief who had not in the past participated in lawsuits challenging the employment practices of the police department.” United States v. the City of Montgomery, 744 F.Supp. 1074, 1080-81 (M.D.Ala.1989). The court continued its injunction against the appointment of Owens and continued its requirement that Mayor Folmar and Chief Wilson develop an interim plan for selection of deputy chief. Id. at 1088. The defendants appealed, and the Eleventh Circuit Court of Appeals affirmed the court’s final injunction. United States v. City of Montgomery, 911 F.2d 741 (11th Cir.1990) (table). 3. Pierce-Hanna In August 1990, after the Eleventh Circuit had affirmed the final order requiring that the defendants establish new procedures for selecting a new deputy chief, this court approved and adopted an interim selection plan. United States v. City of Montgomery, civil action nos. 3739-N and 75-19-N (M.D.Ala. August 2, 1990). The plan was substantially parallel to the court-ordered interim-promotion plan previously adopted for ranks below that of deputy chief, with the exception that its reach was expanded to allow black officers as well as female officers to seek immediate court relief should the defendants discriminate or retaliate against them. Paragraph 7 of the deputy-chief plan provided that, “If the mayor passes over a higher-ranked candidate for a lower-ranked candidate, he must state his reasons for doing so in writing.” The female police officers and the black police officers were then given a period of time to challenge the rejection as either sexually or racially discriminatory or retaliatory. Paragraph 7 further provided that, if there is a challenge to a selection, “the mayor may not select the lower-ranked candidate unless and until the court rules in the mayor’s favor on the challenge.” In the spring of 1991, after almost another year without activity, Pierce-Hanna complained to the court on behalf of the class of female officers that Mayor Folmar and Chief Wilson were intentionally delaying implementation of the interim plan in order to keep Owens as acting deputy chief. In July 1991, the court entered an order requiring that Folmar and Wilson complete the ranking of the candidates for the position of deputy chief by July 31, 1991. Folmar and Wilson requested, and the court approved, a plan authorizing the Police Department to have the rankings done under the auspices of a private organization. In early August 1991, the private organization hired by the department completed its rankings, with Pierce-Hanna ranked first and Owens ranked second. Chief Wilson, however, passed over Pierce-Hanna and recommended that Owens receive the appointment. Folmar agreed with Wilson and approved the recommendation. As expected, Pierce-Hanna quickly responded to the reappointment by filing a challenge on August 23, 1991, charging that Mayor Folmar and Chief Wilson had passed over her and selected Owens because of her sex and because of her participation in this litigation. Pierce-Hanna also requested that the court immediately require that Folmar and Wilson vacate the appointment of Owens pending resolution of her challenge to the appointment. Fol-mar and Wilson refused to vacate the appointment voluntarily, arguing that the selection plan did not apply to the reappointment. On October 3, 1991, the court entered a final order requiring that the defendants vacate the appointment pursuant to ¶ 7 of the selection plan. United States v. City of Montgomery, 775 F.Supp. 1450 (M.D.Ala.1991). The court found the defendants’ argument — that the selection plan did not apply to the reappointment — to be “disingenuous.” Id. at 1455. By order entered in March 1992, the court found the evidence to be overwhelming that Pierce-Hanna had again been a victim of retaliation. United States v. City of Montgomery, 788 F.Supp. 1563 (M.D.Ala.1992). The court repeated its earlier finding that Wilson had rejected Pierce-Hanna in 1989 because he “wanted someone unconnected with this litigation, someone who had not become controversial through his or her support for, or opposition to, these cases,” United States v. City of Montgomery, civil action nos. 3739-N and 75-19-N at p. 6 (M.D.Ala. June 21, 1989) — in other words, “someone for deputy chief who had not in the past participated in lawsuits challenging the employment practices of the police department,” United States v. the City of Montgomery, 744 F.Supp. at 1080-81. The court then found that Wilson’s recent testimony reflected that he still harbored this bias against Pierce-Hanna. The court concluded that “Wilson intentionally rejected Pierce-Hanna because of his disappointment that she has continued to pursue her litigation,” and the court ordered the defendants to appoint her immediately as the new deputy chief. United States v. City of Montgomery, 788 F.Supp. 1563, 1574 (M.D.Ala.1992). 4. T. Alford In early 1990, in response to a challenge filed by Tommi Lee Alford, a female officer in the Police Department, the court held that Chief Wilson had refused to promote Alford to the rank of captain “because of her prominent role in this litigation.” United States v. City of Montgomery, 755 F.Supp. 1522, 1531 (M.D.Ala.1990). Part of the evidence consisted of comments Folmar made during a radio talk show, condemning the participation of Alford and her husband, then-Colonel Alford, in litigation against the city: “I’m not the least bit happy about the lawsuits that either one of them have participated in both ex-Colonel Alford and his wife. They both been prominent in lawsuits against the city and ah, I just ... I don’t have much use for either one of ’em” Id. at 1530. The court required the defendants to promote Alford. Id. at 1531. The defendants appealed and the Eleventh Circuit affirmed the court’s decision. United States v. City of Montgomery, 934 F.2d 1265 (11th Cir.1991) (table). 5. Caffey, Pierce, Brown, McDonald, Childrey, and Oliver More recently, in July 1991, in response to another claim filed by Pierce-Hanna on behalf of other members of the female class — Lois Caffey, Mable Pierce, Jimmetta Brown, Margie McDonald, Nadine Chil-drey, and Eula Oliver — the court held that the defendants had, in bad faith, refused to comply with two aspects of a 1988 consent decree. United States v. City of Montgomery, 770 F.Supp. 1523 (M.D.Ala.1991). First, the decree required the defendants to promote one female to lieutenant and another female to captain in 1990. Jordan v. Wilson, civil action no. 75-19-N at p. 5 (M.D.Ala. March 17,1988). The defendants argued that, although the consent decree required that they make the promotions, they had no obligations to do so because no plan for promotions had been developed and the consent decree did not expressly require that they develop a plan. The court rejected the defendants’ argument as “frivolous and disingenuous.” United States v. City of Montgomery, 770 F.Supp. at 1526. Second, the 1988 consent decree required that the defendants promote two other named female officers to the rank of sergeant in 1990. The defendants argued that they had not promoted the two officers because of their substandard performance. United States v. City of Montgomery, 770 F.Supp. at 1527. In rejecting the defendants’ argument, the court relied on an earlier opinion in which the court had specifically instructed the defendants as to when and under what circumstances they may decline to promote an officer in the face of an order or consent decree that required that they do so. The court wrote that it had previously instructed the defendants that “In the future ... the defendants must seek formal court approval before taking any action which conflicts with any of the orders of the court.” Id. at 1528 (emphasis deleted), quoting Jordan v. Wilson, 755 F.Supp. 993, 1001 n. 13 (M.D.Ala.1990). In “flagrant disregard of this language and of their obligation under the 1988 consent decree,” the court continued, “the defendants refused to promote [the two officers] in 1990 without obtaining prior approval of the court.” United States v. City of Montgomery, 770 F.Supp. at 1528. “The defendants have not attempted to justify, or even explain, their actions,” the court stated, but rather they “have approached this litigation as if the above cautionary instructions by the court did not exist.” Id. The court characterized “the defendants’ actions toward the required 1990 promotions [as being] part of a pattern of conscious disregard and violation of the orders of this court.” Id. The defendants did not appeal. 6. The Letter The evidence reflected that Wilson continues to prominently and officially signal his feelings about Pierce-Hanna and her lawsuit by displaying to the public on the walls of his office a framed copy of a public letter signed by female officers opposing the prosecution of Pierce-Hanna’s initial sex discrimination lawsuit against the department. As the court has explained before regarding this letter, “The message to all in the department who see the display or who hear about the display, is clear: that these female police officers whose names are listed in the advertisement are the ‘loyal favored,’ at least among the women in the department and, correlatively, that those female officers whose names are not listed are not among the favored.” Jordan v. Wilson, 667 F.Supp. at 778. Indeed, the evidence from earlier proceedings reflected that one of the department’s deputy chiefs stated matter-of-factly at a staff meeting that a certain female officer would never be promoted because she had failed to sign this letter. The deputy chief later testified that it was the common feeling of members of the department that anyone who did not sign the letter would be viewed as “throwing stones,” and as “not being in your corner.” United States v. City of Montgomery, 744 F.Supp. at 1082. 7. Lisenby This same deputy chief also threatened Officer Irma Lisenby just before she was to give testimony in these suits against the department, accusing her of having “jumped ship” and of being “no longer loyal to the police department or the administration.” United States v. City of Montgomery, 744 F.Supp. at 1082. The deputy chief warned her that she and her division would no longer enjoy the “favorable treatment” they had received in the past. Id. Moreover, when Chief Wilson learned of the threat, he took no action against the deputy chief. And in a similar vein, Mayor Folmar has expressed deep disappointment with Lisenby’s testimony in these two cases. He stated that she “led the charge for me against the sex discrimination [lawsuit],” but that, in light of her recent testimony in these cases, he no longer viewed her as loyal. Id. B. Eiland v. City of Montgomery In 1984, Stephen Eiland, an officer in the Montgomery Police Department, brought a lawsuit against Mayor Folmar and the City of Montgomery charging Folmar had demoted him from the position of corporal to mere police officer because he had a written a humorous poem critical of Folmar and his “body guards.” The trial court found in favor of Folmar and the city after a jury trial. The Eleventh Circuit Court of Appeals reversed and directed that a verdict be entered in favor of Eiland. The appellate court found that Folmar had demoted Eiland in violation of the first amendment; Eiland v. City of Montgomery, 797 F.2d 953 (11th Cir.1986), cert. denied, 483. U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987). II. DISCUSSION OF INDIVIDUAL CLAIMS With the above cases in mind, the court now turns the plaintiffs’ individual claims. The plaintiffs have identified 20 persons who they contend have been victims of retaliation. First, they have identified 15 officers, including themselves, who have presented their claims in support of the plaintiffs’ pattern-and-practice class claim and who seek immediate resolution of those claims by the court today. These officers are Green, Hankins, Lonnie Benjamin, Ed Alford, James Bates, Steve Brantley, Randall Brown, Clarence Burson, James Gamble, Ken Hitson, Jere Knox, Irma Li-senby, Frank Mitchell, William Moore, and Robert Ward. And second, as additional background evidence as well as in support of their pattern-and-practice class claim, they have identified five other persons— Larry Benefield, Don Bird, Robert Han-kins, Mike Henderson, and Mark Pierce— who testified before the court that they were victims of retaliation but who do not seek relief in this litigation at this time. A. The Applicable Law In considering the claims of these persons, the first issue for the court is what law to apply. The applicable first-amendment law varies depending on the nature of the claim presented. Here, the plaintiffs assert claims based on rights to expression, association, and participation in litigation. 1. Expression The United States Supreme Court “long ago rejected Justice Holmes’ approach to the free speech rights of public employees, that ‘[a policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.’ ” Rankin v. McPherson, 483 U.S. 378, 395, 107 S.Ct. 2891, 2902, 97 L.Ed.2d 315 (1987) (Scalia, J., dissenting), quoting McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892). Even where a public employee has no independent constitutional right to retain his position, to be promoted, or to receive any other job benefit, the law is clear that a government employer may not deprive him of such a benefit in retaliation for expression protected under the first amendment. Rankin, 483 U.S. at 383, 107 S.Ct. at 2896; Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1505 (11th Cir.1990). Judicial scrutiny of a claim by a public employee that he was punished for exercising his right to freedom of speech involves a four-step analysis. See Williams v. Roberts, 904 F.2d 634, 637 (11th Cir.1990). See also Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546, 1556 n. 19 (11th Cir.1987). First, the employee must demonstrate that the expression addresses a matter of “public concern.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); Schneider v. Indian River Community College Found., Inc., 875 F.2d 1537, 1542 (11th Cir.1989). Whether an employee’s expression may be characterized as on a matter of public concern “must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Rankin, 483 U.S. at 384-85, 107 S.Ct. at 1987, quoting Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. Although not “all matters which transpire within a government office” or even “every criticism directed at a public official” will constitute a comment on a “matter of public concern,” it is clear that this phrase embraces a wide variety of speech directed to political, social, economic, and cultural issues of substantial, legitimate interest to the public. See Maples v. Martin, 858 F.2d 1546, 1552-53 (11th Cir.1988). When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, such expression is not “totally beyond the protection of the First Amendment”; however, “absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s, behavior.” Rankin, 483 U.S. at 385 n. 7, 107 S.Ct. at 2897 n. 7, quoting Connick, 461 U.S. at 147, 103 S.Ct. at 1690. See also Ferrara v. Mills, 781 F.2d 1508, 1512 n. 4 (11th Cir.1986). Second, once a court concludes that speech for which a public employee claims he suffered reprisal addresses a matter of public concern, it must resolve the factual issue of whether the expression was a “substantial or motivating factor” in the employment decision. Mount Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Schneider, 875 F.2d at 1542. As with the element of “public concern,” the employee bears the burden of persuasion on this issue of causation. Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576; Schneider, 875 F.2d at 1542. As the Supreme Court has recognized, “Proving the motivation behind official action is often a problematic undertaking.” Hunter v. Underwood, 471 U.S. 222, 228, 105 S.Ct. 1916, 1920, 85 L.Ed.2d 222 (1985). Determining whether a retaliatory purpose was a substantial or motivating factor behind an employment decision thus “demands a sensitive inquiry into such circumstantial and direct evidence, of intent as may be available.” Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977). If an employee is successful in showing that his speech directly related to a matter of public concern and that it was the cause of some action adverse to his employment, a reviewing court must next engage in the balancing test first set out in Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), in order to determine whether the employer’s action was nevertheless justified. Under Rankin, “The State bears a burden of justifying the discharge on legitimate grounds.” 483 U.S. at 388, 107 S.Ct. at 2899; see also Connick, 461 U.S. at 150-51, 103 S.Ct. at 1691-92. The court must decide on a case-by-case basis whether the detrimental impact, if any, of the expression on “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” outweighs “the interests of the [employee], as a citizen, in commenting upon matters of public concern.” Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35. Accord Connick, 461 U.S. at 150-51, 103 S.Ct. at 1692; Eiland v. City of Montgomery, 797 F.2d 953, 955-56 & n. 2 (11th Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987). In performing such a balancing, the court must not consider the statements in a vacuum; “the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose.” Rankin, 483 U.S. at 388, 107 S.Ct. at 2899. See also Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 415 n. 4, 99 S.Ct. 693, 696 n. 4, 58 L.Ed.2d 619 (1979). Relevant considerations include whether and to what extent the speech in question threatened to disrupt the workplace, impair discipline by superiors or harmony among co-workers, or interfere with the speaker’s duties or the regular operation of the enterprise. Rankin, 483 U.S. at 388, 107 S.Ct. at 2899. See also Maples, 858 F.2d at 1553-54. Fourth and finally, even if an employee has prevailed at each of these three steps, an employer may still avoid liability by demonstrating that it would have reached the same adverse decision with respect to the employee’s job even in the absence of the protected speech. Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576; Schneider, 875 F.2d at 1542. See also Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S.Ct. 1775, 1791, 104 L.Ed.2d 268 (1989) (plurality). 2. Association The first amendment guarantees the freedom of individuals to associate both for the purely private purpose of forming and preserving personal and social relationships, and as a collective means of engaging in political expression, religious worship, or other activities independently protected by the Constitution. Roberts v. United States Jaycees, 468 U.S. 609, 618-623, 104 S.Ct. 3244, 3249-52, 82 L.Ed.2d 462 (1984); Wilson v. Taylor, 733 F.2d 1539, 1544 (11th Cir.1984). The law in this circuit, as expressed in Hatcher v. Board of Public Education and Orphanage, 809 F.2d 1546 (11th Cir.1987), makes clear that a public employee is shielded from retaliation by his employer on the basis of the employee’s associational activity whether or not such activity relates to a matter of public concern. Id. at 1558. Accord Schneider v. Indian River Community College Found., 875 F.2d 1537, 1543 n. 6 (11th Cir.1989). Thus in reviewing such a challenge, a court need only employ three of the four steps used in analyzing a retaliation-for-speeeh claim. The employee must first demonstrate that his associational activity was a substantial or motivating factor in some action adverse to his employment. Hatcher, 809 F.2d at 1558. If he carries this burden, the employer may avoid liability only by proving either that he would have reached the same decision even in the absence of the employee’s associational activities, or that the government’s interest as an employer in the efficient operation of the work place supports the challenged action. Id. at 1559. Although certain first-amendment activities may appear to partake of elements of both expression and association, a court must look to the manner in which the employee’s views “became known to the outside world,” in order to “determine what line of cases is most analogous to” the employee’s retaliation claim. Berry v. Bailey, 726 F.2d 670, 673 n. 4 (11th Cir.1984). Where the employee’s beliefs are “made known only through speech and accompanying action — not through those with whom he associated ... or refused to associate” his claim should be analyzed as one of retaliation-for-speech. Id. 3. Participation in Litigation The right to participate as a party to litigation seeking to remedy an infringement of constitutionally-guaranteed or other legal rights has traditionally been considered an aspect of the freedom to petition the government for a redress of grievances protected by the first amendment. California Motor Transport v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611, 30 L.Ed.2d 642 (1972). See also NAACP v. Button, 371 U.S. 415, 428-30, 83 S.Ct. 328, 335-36, 9 L.Ed.2d 405 (1963). Similarly, the right to appear and give true testimony as a witness in a legal proceeding is guaranteed by the first amendment’s free speech clause. Melton v. City of Oklahoma City, 879 F.2d 706, 714 (10th Cir.1989), on reh’g en banc, 928 F.2d 920 (10th Cir.), cert. denied, — U.S. -, 112 S.Ct. 296, 116 L.Ed.2d 241 (1991). Reeves v. Claiborne County Bd. of Educ., 828 F.2d 1096, 1100 (5th Cir.1987). See also Patteson v. Johnson, 721 F.2d 228, 231 (8th Cir.1983). Thus, as with expression and association, the first amendment protects a public employee from employer retaliation for participating in a legal proceeding, either as a party or a witness. Melton, 879 F.2d at 714; Soranno’s Gasco, Inc. v. Morgan, Eli F.2d 1310, 1314 (9th Cir.1989); Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1577 (5th Cir.1989); Patteson, 721 F.2d at 231. In order to make out a prima-facie case of retaliation-for-litigation, a public employee must of course establish that his participation in legal proceedings was a substantial or motivating factor in a decision adverse to his employment. See, e.g., Soranno’s, 874 F.2d at 1314. However, the law is somewhat unclear as to whether the employee must also show that the proceedings or his participation related to a matter of public concern, compare Arvinger v. Mayor and City Council of Baltimore, 862 F.2d 75, 76-77 (4th Cir.1988) with Johnston, 869 F.2d at 1578, or whether an employer is ever legally permitted— or as a practical matter, factually capable — of demonstrating a threat of disruption to the workplace posed by the employee’s litigation or testimony sufficient to justify punishing the employee for such activity. See Melton, 879 F.2d at 714; Curl v. Reavis, 740 F.2d 1323, 1329 n. 5 (4th Cir.1984). See also Abbott v. Thetford, 534 F.2d 1101 (5th Cir.1976) (en banc), adopting panel dissent, 529 F.2d 695, 701-709 (1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 804 (1977). However, the court need not resolve either issue; as the court discusses further in evaluating each individual claim, all of the officers whom the plaintiffs allege were retaliated against by Folmar or Wilson for testifying or participating in litigation against these defendants were clearly addressing issues of public concern. Furthermore, defendants have not attempted to justify punishing such officers for these first-amendment activities on the basis of any interference allegedly caused by such testimony or litigation to the efficient operation of the police department; even if they had, the interests of plaintiffs in such exercise of their constitutional rights — at least as to those claims that otherwise have merit— overwhelmingly outweigh any resulting disruption or impairment of the police enterprise. See Melton, 879 F.2d at 714. Rather, the disputed and dispositive issue with respect to all the retaliation-for-litigation claims, as well as the vast majority of those claims involving expression and association, is whether the officer in question suffered a job detriment or was denied a job benefit because o/his exercise of a first amendment freedom, or instead for some other reason. B. Application of the Law to 15 Plaintiff Class Members The court now applies the standards for judging these three types of first-amendment retaliation challenges to the claims brought by the 15 class members seeking immediate relief in this litigation. In each instance, as shown above, one of the critical issues is intent. The Supreme Court in Arlington Heights enumerated a variety of possible evidentiary sources of circumstantial evidence of intent, including “[t]he historical background of the decision ..., particularly if it reveals a series of official actions taken for invidious purposes”; “[t]he specific sequence of events leading up [to] the challenged decision”; “[departures from the normal procedural sequence”; “substantive departures ..., particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached”; and “contemporary statements by members of the decisionmaking body.” 429 U.S. at 267-68, 97 S.Ct. at 564-65. Other “types of circumstantial evidence commonly encountered which can support an inference that retaliatory motive played some part in the adverse treatment of the employee” include: “[e]vidence that after learning of the opposition, the employer treated the employee differently from similarly situated nonprotesting employees”; evidence that “the employer deviated] from its own written procedures to carry out adverse action against the protesting employee”; “[ejvidence that after learning of the opposition, the employer treated the employee differently than before the protected activity, including evidence that the employer began surveillance ... suggesting] the possibility of a search for a pretextual basis for discipline”; “[closeness in time between the employer’s knowledge of the protected opposition or participation and the adverse activity”; and “[attempts to conceal the fact that the person who decided on the adverse action knew at the time that the employee had engaged in protected participation or opposition.” B. Schlei & P. Grossman, Employment Discrimination Law, at 558-59 (2d ed. Supp.1989). 1. Green Green has been an officer in the Police Department for close to 18 years. He currently holds the rank of major and serves as commander of the traffic division. Green makes essentially three claims. First, he claims that Folmar delayed his promotion to captain until June 1985 in retaliation for his vocal opposition during the early 1980’s, and particularly 1983, to the department’s promotion system, and his lack of support for Folmar’s 1983 mayoral campaign; he contends he should have received such a promotion as early as November 1983. Second, Green claims that he was passed over for promotion to major in June 1988 because he expressed objections to Wilson about impending “emergency” promotions planned by Folmar and because of his August 1987 deposition testimony in Eiland v. City of Montgomery, civil action no. 84-T-120-N. Green was later promoted to major in February 1989 after he and Hankins had filed this lawsuit. Finally, according to ..Green, his January 1991 application for a transfer to the position of commander of the department’s detective division was denied as a result of defendants’ distaste for his first-amendment activities. The court concludes that only his claim with respect to his promotion to major has merit. Since joining the department, Green has been an active member and sometimes-officer of the Montgomery chapter of the Fraternal Order of Police, a professional organization of persons employed in law enforcement. One of its principal activities is addressing issues of concern to Montgomery police officers involving the operation of the department or the conditions of their employment, and communicating to Folmar and Wilson the views and positions of its membership. In 1980, Green began to make known at Fraternal Order meetings his opposition to what he believed was an inequitable system of promotions in the department. In 1983, he along with several other members took the lead in initiating efforts to retain an attorney from the National Fraternal Order to assist the local chapter in obtaining changes in the department’s promotion process. During an October 3rd meeting that year, he also spoke out at a Fraternal Order meeting against the practice of officers circulating petitions in support of Folmar’s cándidacy at police stations, and against a proposal that the Fraternal Order endorse Folmar’s reelection. On several occasions, Folmar indicated displeasure with Green’s involvement in the Fraternal Order. In late 1980, Folmar summoned Green to his office. During this meeting, Folmar informed him that he might consider transferring him to the detective division — viewed by most as the most prestigious in the department — and that Green, then a sergeant, was “in reach” of a promotion to lieutenant. However, Folmar Warned Green that he would have to choose between pursuing his activities in the Fraternal Order and successfully rising through the department. On October 20, 1983 — less than three weeks after the meeting in which Green objected to police and Fraternal Order support for Fol-mar’s mayoral candidacy — Folmar gave an angry, impromptu speech to a large group of officers at police headquarters. In sharp, vituperative terms, he criticized those officers who had been “causing ... trouble,” and spoke particularly unfavorably of the Fraternal Order, warning, “[y]ou bring all the damn lawyers you want to down here, we’re not going to have collective bargaining, we’re not going to have a labor union ... we’re not going to have any of that stuff.” While uttering these words, Folmar was staring directly at Green. Later, during encounters with Green in 1988, both Folmar and Wilson told him that he was a “troublemaker,” referring to his involvement in the Fraternal Order. Several weeks after Folmar’s speech, in November 1983, he promoted three lieutenants to the rank of captain, passing over Green. Pursuant to the promotion process then in effect, he selected these three names from a March 1983 eligibility list submitted to him by the Personnel Board, setting forth the highest-rated officers. Green was the second-highest rated candidate on this list. All three of the officers promoted ahead of Green had received ratings inferior to his. The court believes that Green has offered proof from which the court may infer that his involvement in the Fraternal Order was a substantial or motivating factor in Folmar’s decision not to promote him to captain in November 1983. Yet the difficulty with this claim is that the court has already ruled that all claims in this case arising prior to January 9, 1984, are time-barred under the statute of limitations applicable to § 1983 actions. In response to defendants’ limitations objection, Green argues that Folmar continued his retaliation, originally manifested in November 1983, by refusing to promote him between April 1984 and June 1985. However, the court is not persuaded by this theory. After November 1983, no further promotions were made by Folmar from the March 1983 list on which Green was rated number two. In April 1984, a new certification was issued, on which Green was only the eighth-highest rated candidate for captain. In May 1984, Folmar promoted two officers with better ratings than Green to captain, and then in June 1985 awarded Green and two other candidates with similar promotions. Thus as to the May 1984 promotions, Green would most likely not have been selected anyway, as a result of the drop in his rating, even had Folmar not been animated by a retaliatory motive in making these promotions. Furthermore, although Green is correct in noting that Folmar had the authority, which he sometimes exercised, to make promotions even when no specific vacancy in a rank existed, and thus could have promoted Green to captain at any time, Folmar in fact made no promotions to captain during the period in question other than the two in May 1984 already referred to, and there is no evidence he would have promoted anyone, let alone Green, even absent Green's first-amendment activities. Thus Green’s expression and association were not a substantial or motivating cause of Folmar’s decision not to promote him in addition to the two other officers selected as captains, between April 1984 and June 1985. Green again clashed with Folmar, and this time with Wilson as well, in April 1988. He and several other officers had learned that Folmar and Wilson intended to make certain “emergency” promotions in the Department which both believed would be permitted under an injunction temporarily barring permanent promotions imposed by this court in its 1986 decision in Jordan v. Wilson. Green, who took the lead in these events, and several other concerned colleagues met with Wilson to inquire about the emergency promotions and in particular to express dismay at the prospect that these promotions would be awarded to a few hand-picked officers favored by Folmar rather than based on any consideration of merit. It was during this encounter that Wilson called Green a “troublemaker” and referred to his activities in the Fraternal Order. The next day, however, when Green and Wilson again met, Wilson informed Green that he had communicated to Folmar the various objections to the emergency promotions, and that Folmar had decided not to follow through on these promotions. Wilson also told Green that Fol-mar would be angry at Green and these other officers for interfering with his plans. Prior to this dispute over promotions, Green had also exercised his first-amendment rights in a manner unfavorable to Folmar by giving testimony in several proceedings in an employment discrimination case brought by a fellow officer against the City. In Eiland v. City of Montgomery, Green testified in a trial that a poem written by officer Eiland — which lampooned Folmar and his policies and for which he was demoted — did not disrupt the operations of the department. Later, in August 1987, Green testified at a deposition in the same suit after remand from the Eleventh Circuit, this time as part of a proceeding by Eiland contesting his discharge, that he did not believe Eiland’s actions in firing a warning shot merited his dismissal, and that the manner in which Eiland’s infraction was investigated and he was disciplined was improper and not in accordance with standard procedures. Shortly after this testimony, Folmar attempted to transfer Green from his then-present assignment to a less desirable division, but relented when Wilson refused to go along with this decision. In June 1988, two months after Green complained to Wilson about Folmar’s emergency promotions and less than one year after his deposition testimony in Eiland, Folmar promoted five officers to the rank of major. Although Green was the highest-rated candidate on the list from which Folmar made his selections, the mayor passed over Green in favor of five other captains with inferior ratings. Because these promotions were made under the interim plan approved by the court in May 1987, Folmar was obligated to explain to the Personnel Board, in writing, his reasons for making promotions other than in the order of each candidate’s rating. As to both Green and another officer passed over for promotion, Folmar wrote: “it is my opinion they need more time to develop their knowledge of leadership skills before being given a Division command.” In discussing Green and his promotion decision, Folmar later told Wilson that he did not think Green was someone who would carry out his “philosophical beliefs.” The numerous examples of Folmar’s hostility toward Green’s first-amendment activities, which the court has discussed, together with the utter absence of any indication that Green suffered from any lack of leadership convinces the court that Folmar refused to promote Green to major in June 1988 in retaliation for such activities — and, in particular, for his testimony in the Eiland case. But for this testimony, Green would have been promoted in 1988. This conclusion is supported by not only Fol-mar’s treatment of Green and his dislike for Eiland himself, see Eiland, 797 F.2d at 955, but also the extensive evidence, discussed at various points in this opinion, of his animus toward and numerous acts of retaliation against other officers who have brought or testified in employment discrimination lawsuits against Folmar and the city. The court thus concludes that Green’s major-promotion claim has merit. Green’s final claim is that Wilson’s refusal to assign him command of the department’s detective division, as he requested in writing in January 1991, was retribution for his previously described first-amendment activities and also particularly for his initiation of this lawsuit. The court rejects this claim, finding instead that the decision was based on a professional judgment that appointing a captain with extensive experience in the detective division as its temporary commander would be less disruptive in the long run than transferring Green, and thus being compelled to find a new commander for the traffic division. Whatever the wisdom of this judgment, it does not appear to have been based on Green’s exercise of his first-amendment freedoms. The court will therefore award relief to Green with regard to his 1988-promotion claim only. 2. J. Hankins Jerry Hankins, the second named plaintiff in this lawsuit, has been employed as an officer with the Police Department for approximately 17 years, and currently holds the rank of captain and works as the assistant commander of the juvenile division. Like Green, Hankins claims that, despite being the top-rated candidate, he was passed over for promotion to captain in 1988 because he had recently expressed opposition to Folmar’s emergency promotion plan. Also contributing to Fol-mar’s refusal to promote him in 1988, according to Hankins, was a favorable performance evaluation he gave to another officer, Sandra Pierce-Hanna, at the time Folmar was encouraging retaliation against her for filing a sex discrimination lawsuit. Finally, Hankins contends that after he was finally promoted to captain in March 1989, his participation in this lawsuit resulted in the denial for his request to be reassigned as acting commander of the records and communication division. After closely considering the evidence on these matters, the court finds that none of the first-amendment activities cited by Hankins were, together or separately, a substantial or motivating factor either in his non-promotion in 1988 or the denial of his application for transfer. Unlike Green, Hankins did not communicate with either Folmar or Wilson about the upcoming emergency promotions during the brief period of controversy over this issue in April 1988. Although Wilson was aware that Hankins opposed such promotions, it is unclear whether his name was ever mentioned to Folmar, and, in contrast to Green, he was certainly not one of the active dissidents. As for Hankins’s contention that his non-promotion resulted from a favorable evaluation he gave to Pierce-Hanna, it is true that Folmar expressed displeasure over Pierce-Hanna’s positive evaluation or evaluations, telling a group of officers at a 1987 meeting that he would “remember the evaluator.” However, it appears that another supervising officer, Grady Arnette, had also given Pierce-Hanna high marks in a then-recent evaluation, and it is equally plausible, as several officers indeed told Arnette, that Folmar was referring to him rather than Hankins. Finally, although one of the reasons offered by Folmar for passing over Hankins — his need for further experience as an assistant division commander — appears unsupported, as Hankins had spent more time in such a role than the candidates Folmar selected — the court credits Folmar’s assertion that he believed Han-kins lacked “maturity.” Although testimony from fellow officers uniformly demonstrated that Hankins does not in fact lack maturity, but rather simply has a lively and much-appreciated sense of humor, it is convincingly plausible that his occasional jocularity struck Folmar, who has sought to mold the department into a spit-and-polish, military-type enterprise, as inappropriate. The court similarly credits Wilson’s explanation for his refusal to place Hankins in the position of acting commander of the records and communications division. As in Green’s case, although Han-kins may well be more qualified than the present occupant of that position, the court is persuaded that Wilson’s decision was motivated purely by institutional, law enforcement concerns, and not by any retaliatory animus toward Hankins. Hankins is not entitled to any relief. 3. Benjamin In many ways, Lonnie Benjamin has suffered the most shameful, humiliating manifestation of Folmar’s retaliatory bias against those officers who resort to the courts to safeguard their constitutional rights. Benjamin has been employed with the Police Department since 1971, and currently holds the rank of sergeant. In October 1983, two white Montgomery police officers were assaulted and one was shot after a confrontation in the home of an African-American family. Several members of the family were then taken into custody and allegedly brutalized by the police. Benjamin and another officer were assigned to investigate these events, which became a local cause celebre, known as the “Todd Road incident.” When Benjamin and his colleague were subpoenaed to testify at the criminal trial of one of the family members, he refused to answer questions about the investigation of the incident, invoking his fifth-amendment right against self incrimination. In response, Folmar, who was also present in the courtroom as a witness, immediately fired both officers. Each man brought suit in this court against Folmar and the City of Montgomery, challenging their dismissals. Although the district court denied relief, the Eleventh Circuit reversed, holding that Folmar had illegally punished the two officers for exercising a fifth-amendment privilege. See Benjamin v. City of Montgomery, 785 F.2d 959 (11th Cir.), cert. denied, 479 U.S. 984, 107 S.Ct. 571, 93 L.Ed.2d 575 (1986). Following the appeals court’s decision, Benjamin returned to work at the Department in 1987 pursuant to a settlement of his lawsuit which called for him to be reinstated as a sergeant with back pay. However, instead of allowing Benjamin to fill a normal position in one of the divisions and permitting him to perform police work, Fol-mar personally assigned — or more accurately, condemned — him to a nominal, dead-end position at the Montgomery Civic Center, a public auditorium. Prior to Benjamin, no other officer had ever been assigned there full-time. At the civic center, Benjamin has no police duties or job description, no supervisor or fellow officers, has never been substantively evaluated for promotion, never met with a senior officer to discuss his work performance, and is not invited to any police rollcalls or meetings. Benjamin spends most of his on-duty time reading books. In short, as Benjamin himself described his situation which has now lasted approximately four years, it is a cruel “joke.” Not only has Benjamin endured this degrading experience for four years; it has also obviously destroyed any chance of promotion he might have had. Benjamin was promoted to sergeant in 1978. Although his ratings for promotion to lieutenant improved in the early 1980’s prior to his discharge, he received a far lower rating than before when he was “evaluated” in 1988 after his return to the Department. Of course, as Benjamin has been prevented from doing anything that even vaguely resembles police work, it is difficult to imagine how anyone could actually judge his performance, and it is obvious he has been prevented from developing the experience, accomplishments, and skills that are considered relevant to whether an officer merits promotion. In his testimony at trial, Folmar sought to justify his decision to place Benjamin at the civic center as one taken for Benjamin’s protection by claiming that a “variety of sources” had informed him Benjamin would be retaliated against by other officers because of his refusal to testify at the trial arising out of the Todd Road incident. However, Folmar — uncharacteristically un-thorough — made no effort to discover if Benjamin himself desired such protection, or was willing to sacrifice his career and suffer humiliation in return for it, or to pursue other means of ensuring that officers would treat Benjamin fairly, as he has done in certain other situations. Nor did the mayor seek to learn whether rumors of hostility toward Benjamin were true, and, if so, which officers planned reprisals. Finally, Folmar’s alleged “concern” for Benjamin’s welfare and the possibility of retaliation against him flies in the face of Fol-mar’s own record of encouraging reprisals against Sandra Pierce-Hanna and other officers who oppose him through litigation. Upon consideration, the court does not credit Folmar’s testimony on this issue, but instead finds that he relegated Benjamin to the civic center purely out of spite evoked by Benjamin’s successful employment discrimination suit against the mayor. But for his litigation, Benjamin would have enjoyed a full and active career as an officer within the Police Department. Benjamin is entitled to full relief. 4. E. Alford Ed Alford retired from the Police Department in September 1989 at the rank of deputy chief. He claims, first, that, because he had clashed with Folmar over several work-related issues, Folmar failed to select him for the position of chief in 1986 although he was the top-rated candidate, choosing Wilson instead. Alford’s second claim is that he was excluded from policy decisions and otherwise ostracized after giving deposition testimony in this case in December 1988. The court concludes that Folmar’s refusal to select Alford as chief does not give rise to an actionable claim, but that his first-amendment rights were violated as a result of the retaliatory treatment he suffered in response to his 1988 testimony. Alford’s first claim fails to meet the threshold, “public concern” test set forth in Connick and its progeny. All of his “speech” that gave rise to disagreements between Alford and Folmar prior to the mayor’s 1986 selection of Wilson over Alford as the d