REAVLEY, Circuit Judge:
Deborah Schneider filed suit against the City of Atlanta, the Bureau of Corrections of Atlanta, and the Director of the Bureau of Corrections, J. D. Hudson, alleging (1) that she suffered racial discrimination in violation of 42 U.S.C. §§ 1981 and 1983 and (2) that she was constructively discharged for exercising her First Amendment rights in violation of § 1983 and the Fourteenth Amendment.
Because this case was tried before the Supreme Court's decision in Monnell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (holding that municipalities are "persons" under § 1983 and are, therefore, subject to suit under that statute), the district court granted the city's motion for judgment notwithstanding the verdict in view of our en banc decision in Davis v. Passman, 571 F.2d 793 (5th Cir. 1978), rev'd 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), in which we held that a direct cause of action for sex discrimination would not be implied under the due process clause of the Fifth Amendment.
Director Hudson brings this appeal contending (1) that the evidence was insufficient to support the jury's verdict of constructive discharge because of plaintiff exercising her First Amendment rights and (2) that the district court improperly instructed the jury, over objection, as to the standard to be applied in determining the extent of control a public employer may exercise over the expressions of its employees.
Deborah Schneider was employed intermittently from September 1973 through December 1975 as a Correctional Officer I with the City of Atlanta's Bureau of Corrections. Her duties there consisted primarily of guarding prisoners housed in the detention facilities of the city. Concerned with what she considered to be improper treatment of the prisoners and unsatisfactory conditions of employment, including the arbitrary changing of days off without adequate notice and the noncompliance with established grievance procedures, the plaintiff in September of 1975 suggested to several other officers the possibility of a "sick out" to protest these conditions. Such a "sick out," however, never occurred. Approximately two weeks later plaintiff was promoted to a supervisory position of "acting sergeant." Almost immediately after her promotion was announced, however, Director Hudson became aware of Schneider's past criticisms of jail policies and, specifically, of her attempts to organize a "sick out," and, as a result, rescinded the promotion and transferred her to the city prison farm. The record reflects that such a transfer was considered a form of punishment. Thereafter,
The district court instructed the jury as follows:
Appellant contends that the district court used an incorrect standard in charging the jury as to the First Amendment claim. We agree. In determining whether a public employer may inhibit its employees' rights of free speech, a balancing test is to be applied. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); Porter v. Califano, 592 F.2d 770, 772 (5th Cir. 1979); Smith v. United States, 502 F.2d 512, 516-17 (5th Cir. 1974); Battle v. Mulholland, 439 F.2d 321, 324 (5th Cir. 1971).
In Pickering, the Court stated: "The problem in any case is to arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." 391 U.S. at 568, 88 S.Ct. at 1735. This is the test that should have been applied in this case. Moreover, the question of whether the plaintiff was constructively discharged for
In deciding this question, the court must apply the balancing test enunciated in Pickering. If plaintiff's conduct was constitutionally protected, then, it is, of course, a question of fact whether she was constructively discharged because of it. Therefore, we hold that the district court committed plain error in submitting to the jury the question of whether the plaintiff's First Amendment rights were violated by a constructive discharge.
Because we remand this case to the district court for a new trial, it is not necessary for us to decide the Monnell issue or the question concerning enhancement of attorney's fees over hourly rates because of the presence of a contingent fee contract.
Nonetheless, with respect to possible liability of the City of Atlanta, the Supreme Court in Monnell indicated that a municipality may be sued under § 1983 for a city official's "edicts or acts [that] may fairly be said to represent official policy . . . ." 436 U.S. at 694, 98 S.Ct. at 2038. At least in those areas in which Director Hudson, alone, "is the final authority or ultimate repository of [city] power his official conduct and decisions must necessarily be considered those of one `whose edicts or acts may fairly be said to represent official policy' for which the [city] may be held responsible under § 1983." Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980). See generally, Schnapper, Civil Rights Litigation After Monnell, 79 Colum.L.Rev. 213, 215-19 (1979).
It is a question of fact whether the City of Atlanta delegated to Director Hudson the final or ultimate authority to make personnel decisions in the Bureau of Corrections with respect to work assignments, transfers, days off, discipline, the hiring and firing of employees, and restrictions concerning employees' rights to engage in certain free speech activity.
With respect to the attorney's fee issue, it is sufficient to note that a district court is required to consider in setting attorney's fees whether the fee is fixed or contingent. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 718 (5th Cir. 1974). Moreover, this court has very recently intimated that an attorney's standard hourly billing rate should probably be enhanced somewhat for an award of fees under § 1988 due to the contingent nature of such an award. Harris v. City of Fort Myers, 621 F.2d 1321, 1325 (5th Cir. 1980); Knighton v. Watkins, 616 F.2d 795, 800-01 (5th Cir. 1980); accord, Wolf v. Frank, 555 F.2d 1213, 1218 (5th Cir. 1977) (in stockholder's derivative action where fee was contingent
REVERSED and REMANDED.
Although the balancing test prescribed in Pickering is a question of law for the court, this circuit has recognized that in striking this balance between the interests of a governmental employee as a citizen and the interests of the government in promoting efficiency of the services it performs through its employees, there are factual matters appropriate for determination by a jury. For example, in order for the balance to be struck in favor of a governmental employer, the government must "clearly demonstrate that the employee's conduct substantially interferes with the discharge of duties and responsibilities inherent, in [governmental] employment." Smith v. United States, 502 F.2d 512, 517 (5th Cir. 1974). Moreover, it is necessary for a plaintiff to show that the asserted retaliation by a governmental employer was motivated specifically by what has been determined to be protected speech. Lindsey v. Board of Regents of University System of Georgia, 607 F.2d 672, 676 (5th Cir. 1979). The district court should, therefore, submit to the jury these factual issues inherent in the balancing test, but the ultimate balancing remains in the province of the court. See, e. g., McGill v. Board of Education of Pekin Elementary School Dist., 602 F.2d 774, 777 (7th Cir. 1979) (trial court instructed the jury that a teacher's criticism would not be constitutionally protected if "the teacher's actions materially and substantially interfere with the operation of the education process in the classroom"); Bertot v. School Dist. No. 1, 552 F.2d at 1183 (jury instructed that plaintiff's conduct was constitutionally protected so long as it "did not lead to a material or substantial disruption of class work, or did not involve substantial disorder or invasion of the rights of others"). The use of special interrogatories to the jury are especially appropriate in resolving the factual issues inherent in the balancing process envisioned by Pickering. However, any factual issues decided by a jury that might relate to ultimate questions of law are nonetheless subject to careful review by the district court and this court which are invested with the power to "conduct an independent review of constitutional claims when necessary." Jenkins v. Georgia, 418 U.S. 153, 160, 94 S.Ct. 2750, 2755, 41 L.Ed.2d 642 (1974).
With respect to the proposition that (1) the determination of what constitutes protected speech under the balancing test of Pickering is a question of law for the court, and (2) the determination of whether a discharge, refusal to rehire, suspension, transfer to less desirable duties or location, etc. is a question for the finder of fact, see also Bates v. Dause, 502 F.2d 865 (6th Cir. 1974); Birdwell v. Hazelwood School Dist., 491 F.2d 490 (8th Cir. 1973); Illinois State Employees Union, Council 34, Etc. v. Lewis, 473 F.2d 561, 572-74 (7th Cir. 1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973); London v. Florida Department of Health and Rehabilitative Services, 448 F.2d 655 (5th Cir. 1971), cert. denied, 406 U.S. 929, 92 S.Ct. 1765, 32 L.Ed.2d 131 (1972).