Friday, December 24, 1999
Judge rebuffs reinstatement try
Alleged remark about judge behind case of ex-probation officer
BY BEN L. KAUFMAN
The Cincinnati Enquirer
A white former Hamilton County probation officer has failed to prove a claim that he was a scapegoat to political correctness in a racially tense office.
In 1997, Thomas Campbell of Delhi Township was accused of suggesting that an African-American municipal court judge, William J. Mallory Jr., discriminated against attractive white women.
When Mr. Campbell was forced out, he sued for reinstatement and damages.
Recently, U.S. District Judge S. Arthur Spiegel concluded that Mr. Campbell didn't have enough of a case to take before a jury, saying:
• The county had a legitimate reason for firing or forcing him to resign, and it wasn't a pretext for an illegitimate/discriminatory reason.
• There was insufficient evidence that Mr. Campbell was treated more harshly than African-Americans who fouled up.
• Because the comment about Judge Mallory was not a matter of public concern protected by the First Amendment, Mr. Campbell could be disciplined if officials believed he said it.
• Even if the comment were protected by the First Amendment, county interests in an effective probation system overrode Mr. Campbell's First Amendment rights.
With that, Judge Spiegel granted pretrial summary judgment to the defendants, including the county; Andrew Hitz, then-chief probation officer; and Timothy A. Shannon, assistant chief probation officer.
The case began in early 1997 when Michelle Back, a white woman on probation, faced a hearing before Judge Mallory. She told another probation officer that Mr. Campbell said:
“Whatever you do, don't dress up in court, Mallory strokes pretty white women.” (Stroke is court slang for being sent to jail or prison.)
Her story provoked an internal probe that encountered racial tensions and irreconcilable differences over who said what. Mr. Campbell denied making the offensive statement about Judge Mallory.
However, the county said Mr. Campbell admitted cautioning Ms. Back that “Judge Mallory will stroke you.” The county added that Mr. Campbell also told investigators that he did not refer to race or gender.
A white sheriff's deputy, Richard Morman, said he was present and it was an African-American probation officer, Wiley Ross, who told Ms. Back not to “get too dressed up” for Judge Mallory.
However, Mr. Ross said Mr. Campbell told Ms. Back “something about Mallory strokes pretty white women.”
There was also more to their conflicting statements than differing recollections:
• Deputy Morman and Mr. Camp bell were friends.
• Mr. Campbell was disciplined after an earlier racial confrontation with Mr. Ross.
• Ms. Back and Mr. Ross had a sexual relationship for which Mr. Ross was fired.
A further complication surrounds polygraph tests administered by Cincinnati Police Spc. Royce Winters. He said there were “significant physiological disturbances indicative of deception” in Mr. Campbell's answers but none in Ms. Back's answers. Mr. Campbell said the results were just the opposite.
Mr. Shannon, who oversaw the probe and became a defendant, said he did not require Mr. Ross to take a polygraph test because he feared further exacerbating departmental tensions from earlier incidents.
In addition to that disparate treatment, Mr. Campbell said, an African-American supervisor was not disciplined for a 1995 racially inflammatory remark to a white co-worker.
Addressing the statement that Ms. Back and county officials attributed to Mr. Campbell, Judge Spiegel said its “content, form and context” denied it First Amendment protection.
He said Mr. Campbell failed to convince him that he “intended to speak on a matter of public concern by bringing a "wrongdoing to light.'” Similarly, Mr. Campbell “did not seek to convey a sincere public message about possible discrimination on the part of a municipal court judge.”
Even if the critical comment were a matter of public concern, Judge Spiegel continued, probation department “legitimate interests” trumped Mr. Campbell's free speech.
That's a balancing act faced by public employees when they sound off about their jobs. Judge Spiegel said “the probation officer's loyalty to the judges he or she serves is a legitimate and paramount concern for a probation department and a court system. ”
At a minimum, the statement attributed to Mr. Campbell could “undermine a probation department's goal of encouraging probationers to believe in a fair judicial system and comply with the rules of their probation.”
Judge Spiegel also said Mr. Campbell failed to show hostile treatment that on its face was worse because he is white. Mr. Ross was fired for the relationship with Ms. Back and the unrelated 1995 racial incident was resolved without punishing the African-American supervisor because that seemed reasonable at the time.
The judge also said Mr. Shannon's decision to believe Ms. Back rather than Mr. Campbell was not evidence of racial discrimination.
Finally, Judge Spiegel wrote, isolated racial incidents in the probation department cited by Mr. Campbell were insufficient for a reasonable judge or juror to conclude that Mr. Campbell “was, in essence, a scapegoat.”
Mr. Campbell's attorney said it was premature to say whether they would appeal.
Judge Mallory denied any bias in sentencing and turned Ms. Back's case over to another judge.
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