Greg Grusendorf, Plaintiff-Appellant, v

Greg Grusendorf, Plaintiff-Appellant, v. City of Oklahoma City, a municipal

corporation; Jimmy R. Catledge, Fire Chief, City of Oklahoma City; Paul Benson,

Assistant Fire Chief, City of Oklahoma City and John D. Parasich, Assistant

Training Officer, City of Oklahoma City, Defendants-Appellees

No. 85-1807

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

816 F.2d 539; 1987 U.S. App. LEXIS 5133; 2 BNA IER CAS 51

April 17, 1987, Filed

PRIOR HISTORY:

[**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF

OKLAHOMA (CIV-85-124-E).

COUNSEL: Steven M. Angel of Hughes & Nelson, Attorney for Plaintiff-Appellant.

Diane Davis Huckins, Assistant Municipal Counselor (Robert D. Allen, Municipal

Counselor, with her on the brief), Attorney for Defendant-Appellee.

Richard C. Smith, Assistant Municipal Counselor, Attorney for

Defendants-Appellees, Catlege, Benson and Parasich.

JUDGES: Barrett and Tacha, Circuit Judges, and Jenkins, * District Court Judge.

* The Honorable Bruce S. Jenkins, United States District Court Judge for the

District of Utah, sitting by designation.

OPINIONBY: BARRETT

OPINION: [*540] BARRETT, Circuit Judge.

On December 14, 1984, appellant Greg Grusendorf took three puffs from a

cigarette while on a lunch break from his job as a firefighter trainee with the

Oklahoma City Fire Department. He was fired that afternoon by his supervisor on

the grounds that he had violated the terms of an agreement he signed as a

precondition of employment that he would not smoke a cigarette, either on or off

duty, for a period of one year from the time he began work. Grusendorf brought

suit against the City of Oklahoma City and his supervisors at the Oklahoma

[**2] City Fire Department under 42 U.S.C. § 1983, claiming his constitutional

rights of liberty, privacy, property and due process had been violated. The

district court for the Western District of Oklahoma granted the defendants'

motion to dismiss Grusendorf's suit and awarded the defendants $2,250 in

attorney's fees.

Grusendorf first applied for a position as firefighter with the Oklahoma City

Fire Department in January, 1983, but was not hired. He thereafter devoted his

energies to becoming a qualified applicant for future openings with the fire

department by studying firefighting manuals, getting into top physical condition

and, finally, giving up cigarette smoking. When the Oklahoma City Fire

Department announced openings for the position of firefighter trainee in

September, 1984, Grusendorf applied again. After taking a written examination, a

physical ability test, and receiving a medical checkup by a physician,

Grusendorf was ranked fifth on a list of four hundred applicants. He was hired

in October, 1984, as a firefighter trainee. Upon being hired, Grusendorf signed

a certificate indicating that he had read and understood the fire department's

non-smoking rule for firefighter trainees [**3] and agreed to abide by it.

The incident that precipitated Grusendorf's dismissal occurred when, after a

"particularly stressful day," Grusendorf went to lunch with several co-workers.

This lunch break was unpaid and constituted Grusendorf's free time. While at

lunch, Grusendorf took approximately three puffs from a cigarette and

extinguished it. This act was observed by another city employee who reported the

incident to the Oklahoma City Fire Department. Fire Chief Jimmy R. Catledge

questioned the trainees who had been present at the lunch about the report and

threatened to discharge them all if the individual who had smoked the cigarette

did not identify himself. When Grusendorf admitted that he was the smoker, Chief

Catledge fired him.

Grusendorf argues on appeal that the non-smoking condition imposed by the

Oklahoma City Fire Department required him to surrender his constitutional

rights in the area of liberty and privacy. n1 The rights of liberty and privacy

that Grusendorf relies upon are not clearly spelled out in the constitution.

They have been variously described as "penumbras" emanating from the Bill of

Rights, Griswold v. Connecticut, 381 U.S. 479, 484, 14 L. Ed. 2d 510, 85 S. Ct.

1678 (1964), "zones [**4] of privacy" implicit in the fourteenth amendment's

concept of liberty, Palko v. Connecticut, 302 U.S. 319, 325, 82 L. Ed. 288, 58

S. Ct. 149 (1937), or simply as "the right to be let alone" Olmstead v. United

States, 277 U.S. 438, 478, 72 L. Ed. 944, 48 S. Ct. 564 (1928) (Brandeis, J.,

[*541] dissenting). The Supreme Court recognized these implicit rights when,

for example, it upheld the right of an individual to provide children with

foreign language instruction, Meyer v. Nebraska, 262 U.S. 390, 67 L. Ed. 1042,

43 S. Ct. 625 (1923), the right of parents to educate children in private

schools, Pierce v. Society of Sisters, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct.

571 (1925) and the right of married couples to use contraceptives, Griswold, 381

U.S. at 479, even though no provision in the Constitution or Bill of Rights

specifically protects those activities. In the same spirit, Grusendorf argues

that although there is no specific constitutional right to smoke, it is implicit

in the fourteenth amendment that he has a right of liberty or privacy in the

conduct of his private life, a right to be let alone, which includes the right

to smoke.

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n1 Grusendorf's brief also indicates, apparently inadvertently, that the

non-smoking rule violated his property rights under the fourteenth amendment. It

was established at oral argument, however, that as a probationary employee,

Grusendorf did not have a sufficiently reasonable expectation of continued

employment to create a property interest in his job. Board of Regents v. Roth,

408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Hall v. O'Keefe, 617 P.2d

196 (Okla. 1980); and Vinyard v. King, 728 F.2d 428 (10th Cir. 1984).

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[**5]

Grusendorf contends that the government may not unreasonably infringe upon its

employees' freedom of choice in personal matters that are unrelated to the

performance of any duties. He notes that in Hander v. San Jacinto Junior

College, 519 F.2d 273, 277 (5th Cir. 1975), the court held "constitutionally

impermissible" a junior college's requirement that instructors be clean shaven

and wear "reasonable hair styles" because the regulation had no reasonable

relation to any legitimate administrative or educational function. Similarly,

Grusendorf points out that in Keyishian v. Board of Regents, 385 U.S. 589, 605,

17 L. Ed. 2d 629, 87 S. Ct. 675 (1967), the Supreme Court expressly rejected the

premise "that public employment . . . may be conditioned upon the surrender of

constitutional rights which could not be abridged by direct government action. .

. ." Grusendorf concludes that since the defendants have failed to demonstrate a

rational reason for the non-smoking rule, it is likewise constitutionally

impermissible and unenforceable.

The defendants deny that the non-smoking regulation infringes upon any liberty

or privacy interest. They point out that these rights of liberty and privacy

have been recognized in [**6] only a limited number of circumstances. In Roe

v. Wade, 410 U.S. 113, 152, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), the Supreme

Court observed that only "personal rights that can be deemed 'fundamental' or

'implicit in the concept of ordered liberty,' [citation omitted] are included in

this guarantee of personal liberty." In Carey v. Population Services

International, 431 U.S. 678, 685, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977), the

Court outlined the current reach of these freedoms as embracing personal

decisions relating to marriage, procreation, contraception, family

relationships, child rearing and education. The defendants argue that the act of

smoking a cigarette does not rise to the level of a fundamental right and,

further, that since there is no fundamental right to smoke a cigarette, no

balancing test nor rationale of any kind is needed to justify the rule.

Though we agree with the defendants that cigarette smoking may be distinguished

from the activities involving liberty or privacy that the Supreme Court has thus

far recognized as fundamental rights, we are not confident that this observation

effectively disposes of the Grusendorf's claim. It can hardly be disputed that

the Oklahoma City Fire Department's non-smoking regulation infringes [**7]

upon the liberty and privacy of the firefighter trainees. The regulation reaches

well beyond the work place and well beyond the hours for which they receive pay.

It burdens them after their shift has ended, restricts them on weekends and

vacations, in their automobiles and backyards and even, with the doors closed

and the shades drawn, in the private sanctuary of their own homes.

Furthermore, while it is true that the Court has thus far recognized a right of

liberty or privacy in only a handful of circumstances, it is also true that "the

outer limits of this aspect of privacy have not yet been marked by the Court. .

. ." Carey v. Population Services International, 431 U.S. at 684. In a case

similar to ours, for example, the Court considered whether a county regulation

limiting the length of a police officer's hair violated a liberty interest

protected by the fourteenth amendment. Kelley v. Johnson, [*542] 425 U.S. 238,

47 L. Ed. 2d 708, 96 S. Ct. 1440 (1976). Writing for the majority, Justice

Rehnquist observed that the plaintiff's claim to a liberty interest in his

choice of hair styles was distinguishable from the kinds of liberty interests

the Court had previously recognized but noted, also, that "whether the [**8]

citizenry at large has some sort of 'liberty' interest within the Fourteenth

Amendment in matters of personal appearance is a question on which this Court's

cases offer little, if any, guidance." Id. at 244. Without resolving the issue,

Justice Rehnquist proceeded to "assume" that there was such a liberty interest

under the fourteenth amendment and decided the case against the plaintiff on

other grounds. n2 Id.

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n2 Justice Marshall, joined in dissent by Justice Brennan, argued that the

fourteenth amendment clearly protects against comprehensive regulation of what

citizens may or may not wear and found no rational relationship between the

regulation and the state's legitimate interests. Id. at 250, 254. Justice Powell

wrote separately in concurrence "to make clear that, contrary to the concern

expressed in the dissent, I find no negative implication in the opinion with

respect to a liberty interest within the Fourteenth Amendment as to matters of

personal appearance." Id. at 249. Justice Stevens took no part in the

consideration or the decision.

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Nor are we inclined to accept the defendants' contention that, since cigarette

smoking has not been recognized as a fundamental [**9] right, no balancing

test nor rationale of any kind whatsoever is needed to justify the restriction.

This reasoning would seem to suggest that the state can, arbitrarily and for no

reason, condition employment upon an agreement to refrain from any of a nearly

limitless number of innocent, private and personal activities. We would be

reluctant to go this far even if the law would tolerate such a venture. The

success of the defendants' argument, however, does not hinge upon this

contention.

To resolve the issue of whether or not Grusendorf's rights of liberty or privacy

were violated by the non-smoking regulation, it is instructive to study the

Supreme Court's approach in Kelley v. Johnson. As noted above, that case is

similar to ours though the plaintiff there was a police officer rather than a

firefighter and claimed a fourteenth amendment right to grow a beard rather than

a right to smoke a cigarette.

In Kelley, the Court assumed a liberty interest in matters of personal

appearance. The Court noted, however, that both the state and federal

governments, as employers, have interests sufficient to justify comprehensive

and substantial restrictions upon the freedoms of their employees [**10] that

go beyond the restrictions they might impose on the rest of the citizenry. Id.

at 245. See also, Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d

811, 88 S. Ct. 1731 (1968); CSC v. Letter Carriers, 413 U.S. 548, 37 L. Ed. 2d

796, 93 S. Ct. 2880 (1973). The Court in Kelley also observed that a county's

chosen mode of organization for its police force was entitled to the same

deference and presumption of legislative validity as state regulations enacted

pursuant to the state's police powers. Kelley v. Johnson, 425 U.S. at 247. See

also, Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 96 L. Ed. 469, 72

S. Ct. 405 (1952).

In Kelley, the Court explained that the issue was not whether there existed a

genuine public need for the regulation but "whether respondent can demonstrate

that there is no rational connection between the regulation . . . and the

promotion of safety of persons and property." Kelley v. Johnson, 425 U.S. at

247. Indeed, the Court concluded, the respondent must demonstrate that the

regulation is "so irrational that it may be branded 'arbitrary' and therefore a

deprivation of respondent's 'liberty' interest in freedom to choose his own hair

style." Id. at 248 (quoting, Williamson v. Lee Optical Co., [**11] 348 U.S.

483, 487-88, 99 L. Ed. 563, 75 S. Ct. 461 (1955)).

Recognizing that the overwhelming majority of state and local police officers

are clean shaven and uniformed, either for the purpose of making them readily

recognizable to the public or to foster an esprit de [*543] corps, the Court

concluded that either purpose provided a sufficiently rational justification for

the regulation to outweigh the respondent's claim under the liberty guarantee of

the Fourteenth Amendment. Kelley v. Johnson, 425 U.S. at 248.

In applying the Kelley approach to our case, we begin by assuming that there is

a liberty interest within the fourteenth amendment that protects the right of

firefighter trainees to smoke cigarettes when off duty. n3 At the same time,

however, we take into account the heightened interest the state government has

in regulating the firefighters by virtue of being their employer. Thus, we

extend to the non-smoking regulation a presumption of validity.

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n3 We are not unmindful that the Supreme Court in Bowers v. Hardwick, 478 U.S.

186, 106 S. Ct. 2841, 2846, 92 L. Ed. 2d 140 (1986) cautioned that federal

courts should not take an expansive view of their authority to discover new

fundamental rights:

Nor are we inclined to take a more expansive view of our authority to discover

new fundamental rights imbedded in the Due Process Clause. The Court is most

vulnerable and comes nearest to illegitimacy when it deals with judge-made

constitutional law having little or no cognizable roots in the language or

design of the Constitution. That this is so was painfully demonstrated by the

face-off between the Executive and the Court in the 1930's, which resulted in

the repudiation of much of the substantive gloss that the Court had placed on

the Due Process Clause of the Fifth and Fourteenth Amendments. There should

be, therefore, great resistance to expand the substantive reach of those

Clauses, particularly if it requires redefining the category of rights deemed

to be fundamental. Otherwise, the Judiciary necessarily takes to itself

further authority to govern the country without express constitutional

authority. The claimed right pressed on us today falls far short of overcoming

this resistance.

[**12]

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With this presumption of validity in mind, we consider whether there is a

rational connection between the non-smoking regulation and the promotion of the

health and safety of the firefighter trainees. We need look no further for a

legitimate purpose and rational connection than the Surgeon General's warning on

the side of every box of cigarettes sold in this country that cigarette smoking

is hazardous to health. Further, we take notice that good health and physical

conditioning are essential requirements for firefighters. We also note that

firefighters are frequently exposed to smoke inhalation and that it might

reasonably be feared that smoking increases this health risk. We conclude that

these considerations are enough to establish, prima facie, a rational basis for

the regulation.

The one peculiar aspect of the non-smoking regulation that does not appear

entirely rational is that it is limited in its application to first year

firefighter trainees only. The rest of the firefighters, for whom good health

and physical conditioning are no doubt also important, are apparently free, as

far as the Oklahoma City Fire Department is concerned, to smoke all the

cigarettes they desire. Grusendorf, [**13] however, did not raise an equal

protection objection to the rule. Since neither side mentioned, let alone

explained, this aspect of the regulation in their briefs, n4 we are not inclined

to address it sua sponte.

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n4 An allusion was made at oral argument to the collective bargaining agreement

between the Oklahoma City Fire Department and the union that represents the full

status firefighters suggesting that the collective bargaining agreement forbids

imposition of a non-smoking regulation upon union firefighters.

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As against this prima facie rational explanation for the non-smoking regulation,

Grusendorf does not raise any argument or bring to our attention any information

suggesting that the regulation is irrational. Grusendorf, apparently

misapprehending where the burden lies, contends that the defendants have an

obligation to justify the regulation so that he may attack their rationale. As

we have seen in Kelley, however, the burden is upon Grusendorf to prove that the

regulation is irrational and arbitrary. The initial burden is not upon the

defendants to justify the rule.

Since the non-smoking regulation appears rational on its face and since

Grusendorf has not challenged [**14] this prima facie rationality by

specifying any irrational aspects of the regulation, we hold that the rule is

valid and enforceable.

[*544] The other issue Grusendorf raises in this appeal concerns the district

court's award of attorney's fees to the defendants. Grusendorf argues that since

he brought this action under 42 U.S.C. § 1983, attorney's fees should be awarded

to the prevailing defendants only if the plaintiff's action was frivolous,

unreasonable, or groundless. Pike v. City of Mission, Kansas, 731 F.2d 655 (10th

Cir. 1984). Noting the policy concerns behind this rule, such as encouraging

plaintiffs to bring good-faith actions to vindicate civil rights causes,

Grusendorf argues that awards of attorney's fees are usually limited to

situations in which the plaintiff's action is wholly groundless or without

foundation. Hughes v. Rowe, 449 U.S. 5, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980).

Grusendorf urges that his claim does not fall into this category and that the

award of attorney's fees was therefore improper.

The defendants do not argue, and we do not hold, that Grusendorf's claim that

the non-smoking regulation violated his rights of liberty and privacy is

frivolous, unreasonable or groundless. Litigation [**15] regarding smoking is

a relatively new phenomenon, and we have discovered no decisions dealing with

the issue in the context of the fourteenth amendment.

The defendants do argue, however, that it was frivolous, unreasonable and

groundless for Grusendorf to name and bring an action against the individual

defendants. They argue that the individual defendants were entitled to qualified

immunity from suit and that, by virtue of such qualified immunity, they were

shielded from liability for civil damages insofar as their conduct did not

violate any clearly established constitutional rights of which a reasonable

person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396,

102 S. Ct. 2727 (1982). Defendants argue that the right to smoke is not a

clearly established or well known right and that by proceeding against the

individual defendants, Grusendorf action was vexatious and in bad faith. The

defendants also point out that Grusendorf failed to respond to their motion for

attorney's fees within the fifteen day period required by Rule 14(a) of the

local rules of the United States District Court for the Western District of

Oklahoma.

A review of the record suggests that the district court found the defendants'

[**16] contentions persuasive. The defendants moved for an award of attorney's

fees and submitted briefs in support thereof, together with affidavits from

their attorneys detailing their fees, on May 7, 1985. Grusendorf failed to

respond to this motion within fifteen days but "after being fully advised in the

premises, and for good cause being [shown]," the district court on May 30, 1985,

granted Grusendorf leave to file a reply brief. On the following day, May 31,

1985, noting that it appeared that the defendants' motion for attorney's fees

"is unopposed within the time provided by local court rule . . ." and concluding

that the motion "is therefore deemed confessed . . . .", the district court

entered judgment awarding attorney's fees to the defendants. The district court

did not award all the attorney's fees that defendants requested. Rather, the

court awarded $2,225, a figure representing only the fees charged by the lawyers

for the individual defendants and not the expenses incurred by the City of

Oklahoma City.

Grusendorf did write a brief for the district court, a copy of which accompanied

his motion, another copy of which is part of the record. Neither copy of the

brief, however, [**17] bears a stamp indicating that the brief was filed with

the district court, nor does the docketing statement indicate such filing. The

order granting Grusendorf leave to file a late brief does not state a deadline,

and we do not know what communications occurred between Grusendorf and the

district court. Grusendorf does not argue that he was misled by or misunderstood

the court's order granting him leave. Rule 14(a) provides that the decision to

shorten or lengthen the time in which the parties must respond to a motion is

within the court's discretion.

It is our understanding of these facts and events that the district court

granted Grusendorf leave to file his brief although the time limit had already

expired. [*545] The day following the granting of this leave, when the

plaintiff still had not filed his brief, the district court entered a judgment

against Grusendorf based on the only briefs before it, those of the defendants.

Pursuant to Rule 14(a) of the local rules, the district court took it as

confessed by Grusendorf that the individual defendants obviously enjoyed

qualified immunity from suit and that suit against them was frivolous,

unreasonable and groundless. Under these circumstances [**18] we are not

inclined to reverse the district court's exercise of its discretion.

AFFIRMED.

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