about the matter or that Gorman conveyed his conversation with Ruhlman to Hankinson, the jury could reasonably have inferred that Hankinson was aware both of the low morale at Franklin and of its cause. Consequently, Hankinson would have had every opportunity to rebut plaintiff's statements or to take action to quell the unrest by instructing Lorent to refrain from employing a quota system. Thus, although it may have been preferable for plaintiff to have discussed the matter directly with Hankinson, the jury could have inferred that both the employer and the employee had access to the facts and that Hankinson could have rebutted any statements made by plaintiff without having to suppress him.
In Pickering, the Court noted that "significantly different considerations would be involved" in cases where "the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine" the effective relationship between them. 391 U.S. at 570, fn. 3, 88 S. Ct. at 1735, fn. 3. In Sprague v. Fitzpatrick, 546 F.2d 560 (3rd Cir. 1976), the Third Circuit held that such a relationship existed between the Philadelphia District Attorney and his First Assistant. The court held that no First Amendment rights were violated when the First Assistant was discharged for having impugned the integrity of the District Attorney in public. In this case, the court notes that no evidence was presented which in any way indicated that plaintiff had been disparaging or defamatory toward his superiors. He did not engage in name-calling or the use of lewd, insulting, or "fighting words." On the contrary, the testimony clearly established that plaintiff was always respectful toward his superiors. Further, it is significant that, unlike the statements made by the plaintiff in Sprague, supra, the discussions by the plaintiff in this case were not even directed toward his immediate superiors. Instead, they concerned the quota system, a matter of grave concern to the troopers and to the general public, and, tangentially, Sgt. Lorent. Finally, the jury was instructed that if they found that plaintiff maligned or defamed defendants, his speech would not be protected. Consequently, since plaintiff's statements to the troopers were not aimed at defendant Hankinson, but at a matter of public interest, the sensitivity of the relationship between plaintiff and Hankinson was not undermined.
The most troublesome element of Pickering, as applied to this case, is that of interference with the regular operation of the station. There is no doubt that plaintiff did exhort the troopers to disobey any attempt on the part of Lorent to impose a quota system. The impact of this exhortation on the operation of the station is the disputed issue.
It has been held that otherwise protected speech must "materially and substantially" disrupt the operation of the enterprise before it can be said to have relinquished this protection. Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969); Hastings v. Bonner, 578 F.2d 136 (5th Cir. 1978); Mabey v. Reagan, 537 F.2d 1036 (9th Cir. 1976). In this case, as discussed above, although disruption of the operation of the station may have occurred in that morale was low and some troopers did not fulfill their quotas, any such disruption was precipitated by the imposition of the quota system rather than by plaintiff's discussions with the troopers. It is important to remember that plaintiff did not initiate any conversations with the troopers regarding the quota system; the troopers came to him requesting his advice. The unrest existed because the troopers were disgruntled as a result of Lorent's thinly-veiled threats to them; plaintiff merely attempted to alleviate the strain and unhappiness by counselling the troopers that it was not wrong to disobey an improper order.
Defendant Hankinson contends, however, that plaintiff's statements constituted a call to mutiny, thereby creating a Potential for disruption which Hankinson was obligated to suppress. It has been held that "In a situation of potential disruption there is no requirement in the law that the proper authorities must wait for the blow to fall before taking remedial measures." Birdwell v. Hazelwood School Dist., 491 F.2d 490 (8th Cir. 1974). It has also been held, however, that the speech must pose a "substantial threat to material disruption," in order to remove it from the protection of the First Amendment. Franklin v. Atkins, 409 F. Supp. 439 (D.Colo.1976); see, Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972). Given that the evidence in this case established that discontent among the troopers had existed from mid-1974, some 6 months prior to plaintiff's transfer, it cannot be said that such a "substantial threat" to further disruption existed.
In Whitsel v. Southeast Local School Dist., 484 F.2d 1222 (6th Cir. 1973), the court upheld the discharge of a high school teacher who had made statements to an unauthorized assembly of students which encouraged disobedience to the directions given them by the principal and superintendent to return to their classes. The court held that plaintiff's words "went beyond the mere advocacy of ideas and counselled a course of action," and that plaintiff "was not terminated for the advocacy of ideas but for insubordination." 484 F.2d at 1229. Arguably, Sgt. Ruhlman's statements to the troopers could be viewed as insubordination. Indeed, it may have been preferable for him to have discussed the quota system issue with Hankinson directly. In Whitsel, however, the plaintiff was determined to have "inflamed" the existing situation and to have encouraged the students to disobey a legitimate directive from plaintiff's superiors. In the instant case, by contrast, plaintiff did not "inflame" the situation, but rather attempted to quell the unrest. Further, plaintiff counselled the troopers that they did not have to obey an order from another sergeant at the station which they, and he, believed to be unlawful.
Although plaintiff's case was thin, and the evidence did not compel the verdict reached, the jury was justified in finding that plaintiff was transferred for the exercise of protected rights rather than for insubordination. In a close case such as this, a court has no authority to overturn the jury's verdict unless its decision was clearly erroneous. The court is unable to hold that it was.
While the defendant advanced legitimate reasons for plaintiff's transfer (in the nature of an existing need for his services in Erie) unrelated to the quota system controversy, the jury was properly instructed that plaintiff's First Amendment speech need have been only "a substantial factor" in the transfer decision. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977). Consequently, viewing the evidence in the light most favorable to the plaintiff, as we must when considering a motion for new trial, the court concludes that the jury was justified in finding as it did and defendant Hankinson's motion for new trial must be denied. Having determined the First Amendment issue in favor of the plaintiff, the court finds it unnecessary to address the Fourteenth Amendment due process property right question.
MOTION TO AMEND THE JUDGMENT
Defendant Hankinson contends that the $ 50,000 damage award is excessive and unwarranted and moves the court pursuant to FRCP 59(e) to amend the judgment by reducing the award. The standard of review of a jury's damage award is similar to that employed in the determination of a motion for new trial. Although an award may be high, it should stand if there is ample evidence to support it or unless it shocks the conscience of the court. Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 89 S. Ct. 331, 21 L. Ed. 2d 309 (1968); Lebeck v. Wm. A. Jarvis, Inc., 250 F.2d 285 (3rd Cir. 1957). The court is not permitted to arbitrarily substitute its judgment for that of the jury. Lloyd v. Monessen Southwestern Ry. Co., 174 F. Supp. 751 (W.D.Pa.1959).
In the instant case, plaintiff established that he had sustained liquidated damages in the amount of $ 28,921.43 as a result of the transfer. In addition, substantial evidence was presented relating to the emotional distress suffered by Sgt. Ruhlman and its accompanying physical side effects. Finally, testimony was offered to the effect that plaintiff had undergone a material personality change following the transfer.
Compensatory damages for emotional distress are recoverable in a civil rights action. Paton v. La Prade, 524 F.2d 862 (3rd Cir., 1975); Aumiller v. Univ. of Delaware, 434 F. Supp. 1273 (D.Del.1977). Sgt. Ruhlman produced evidence of emotional distress amounting to more than "some pressure and embarrassment" which was found not to warrant a $ 10,000 damage award in Alicea Rosado v. Garcia Santiago, 562 F.2d 114 (1st Cir. 1977). Consequently, the court concludes that there was sufficient evidence to sustain the jury's award of $ 50,000. Defendant's motion to amend the judgment must be denied.
An appropriate order will be entered.