Reheard En Banc September 15, 1987.
COFFEY, Circuit Judge.
The defendants-appellants, Thomas Kmetko and Bruce Weflen, appeal from the judgment of the district court that they had violated plaintiff-appellant Richard Greenberg's First Amendment free speech right. The defendants submit on appeal that they should be shielded from liability by qualified immunity. They also challenge the district court's finding that Greenberg's conduct was protected by the First Amendment and argue that the court misinstructed the jury on the standards for establishing illegal retaliatory conduct. Greenberg cross-appeals, arguing that the Fourteenth Amendment should have provided an additional basis for the defendants' liability. We vacate, remand in part, and affirm in part.
Greenberg was a social worker with the Illinois Department of Children and Family Services (the "DCFS"). When Greenberg began working for DCFS's North Area Office in Chicago in May of 1974, he had little or no social work experience or training at all. The record reveals that Greenberg was the least experienced social worker in his unit, and his experience pales in comparison to that of his supervisors.
Defendant Weflen became the supervisor of Greenberg's unit in October of 1974. Defendant Kmetko was the Area Administrator for the DCFS. From the outset of his tenure at DCFS and over the course of several years, Greenberg had several conflicts with his supervisors over department policy.
DCFS had a general policy of continuing parental involvement when clinically acceptable, hoping to achieve the best interest of the child as well as maintaining the parent's interest in the child's welfare, a well-accepted social welfare policy
DCFS wanted Brian C. to be reunited with his biological mother. In line with this policy, Weflen directed Greenberg to contact Brian C.'s mother and step-father to arrange for them to pick up Brian C. Greenberg objected to the placement, claiming that the parents were unwilling and unfit to care for the boy. Over Greenberg's protestations, Brian C. was returned to his parents. Shortly thereafter, Brian C. died of an appendix disorder which the trained medical professionals who had examined Brian C. failed to diagnose and treat.
Greenberg's second argument with his supervisors occurred at the end of 1974 and early 1975, less than eight months after he joined the agency, over the handling of the case of Richard S. I. Weflen instructed Greenberg to investigate whether the boy could be returned home to live with his parents. Greenberg completed his investigation and reported to Weflen that the parents did not want their son to come home. Nevertheless, Greenberg's supervisors, Kmetko and Weflen, after conferring, determined that a temporary placement for Richard S. I could be made only if the child's parents remained involved in the case, conditioned upon their signing a three-month voluntary placement agreement.
After placing Richard S. I, Greenberg wrote Kmetko a memo entitled, "Schizophrenic Defense As a Supervisory Reaction to Administrative Agency Policy," in which he advised Kmetko about his difficulties with Weflen concerning the Richard S. I case. Greenberg prefaced his remarks by admitting that his relationship with Weflen was affecting his mental health. He also questioned Weflen's priorities in the letter as to whether Weflen's decisions were based on the best interests of the children or the limited resources of the agency. After reading the memo, Kmetko informed Greenberg that he agreed with Greenberg's assessment of himself that his mental health was a problem.
During this period of time, Greenberg's conduct in the office began alienating fellow caseworkers and thus adversely affecting office harmony when he interfered in the case of another caseworker and told others in the unit how to handle their cases. As an example of his meddling, a child had run away from his current placement, and his worker refused to find the child another placement in order to force the child to go back to the old placement. Because Greenberg felt the child was being mistreated, he interjected himself into the case, one to which he was not assigned. Without his co-worker's consent or knowledge, Greenberg gave the child a "Fair and Equal Treatment" card (which entitled the child to receive the help of a state ombudsman) and proceeded to find the boy a new placement for the evening. Weflen informed Greenberg that such conduct would not be tolerated and stated that his relationship with his fellow workers was unacceptable
In March 1975, Greenberg received an adverse performance evaluation from Ronald Dombrowski, his former supervisor, who did the evaluation at the request of Virginia Mextroff, an assistant area administrator. Dombrowski assessed Greenberg as a "troubled young man whose personal problems are interfering with his effectiveness, growth and development as a social worker," and suggested that Greenberg "avail himself of psychotherapy." Greenberg's inability to deal with Dombrowski's assessment required him to take a leave of absence for approximately a month in order to recover from the emotional and psychological pressures he had created for himself. Greenberg admits that because of his disagreements with his supervisors, his ability to perform his responsibilities as a social worker was impeded and his mental health was affected as well; in fact, he stated that he took the leave of absence because of his admitted difficulty in complying with the agency's placement decision in the Richard S. I case.
In September 1975, Greenberg became involved in the case of Richard S. II, a child in the Elgin State Hospital with serious behavioral problems and on medication to control epileptic seizures. Greenberg decided that Richard S. II was not being cared for properly and complained to Phillip Gorman, the assistant guardianship administrator at DCFS. Gorman resented Greenberg's interference and wrote a letter to Kmetko and Weflen requesting that Greenberg be taken off the case.
Greenberg attended a meeting of the Children's Rights Council, a community service organization, on October 10, 1975. The speaker there was Jesse McDonald, a deputy director of DCFS. During a question and answer period, Greenberg complained of the department's policy which he characterized as minimizing services to children, especially Richard S. II, who was not mentioned by name. After the meeting, Greenberg and McDonald talked privately, and McDonald assured Greenberg that he would look into Richard S. II's case.
Greenberg continued to interfere in Richard S. II's case. Greenberg's superiors received complaints from Dr. Leavitt, head of the hospital where Richard S. II was confined, that Greenberg was meddling in the child's hospital treatment. Greenberg took it upon himself to tell the medical personnel that he believed the child needed in-patient medical care, whereas the child's treating medical professionals determined, and Greenberg's superiors concurred, that Richard S. II could be released from confinement and placed in a non-medical facility. Greenberg disagreed with the agency's decision to discharge the child and place him in a non-medical facility, and in the attempt to override the opinion of his superiors and the medical professionals as to the proper treatment for the child, Greenberg contacted the Director of the Legal Assistance Foundation for assistance to challenge the release, again without the department's knowledge or approval.
Soon thereafter, Greenberg was transferred to the Title 20 unit (without incurring a loss of pay) in a position in the administrative division of the department with neither social work responsibilities nor contact with children, but of great importance to the overall operation of the agency because it eliminated the budget deficit that was resulting from the untimely submission of reimbursement requests to the federal government. Greenberg contends that the transfer harmed his health and ultimately forced him to resign.
In 1978, Greenberg filed suit under 42 U.S.C. § 1983, alleging that Kmetko and Weflen had deprived him of his First and Fourteenth Amendment rights. The defendants filed a motion for summary judgment, claiming that they could not have known their actions toward Greenberg were unlawful because the Supreme Court did not find interoffice communication protected by the First Amendment until five
Initially, we address the defendants' argument that they are protected by the doctrine of qualified immunity. Under this doctrine, government officials performing discretionary functions are shielded from liability for civil damages unless their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The principle behind the doctrine is that "[i]f the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to `know' that the law forbade conduct not previously identified as unlawful." Id. The Supreme Court has stated that this inquiry is a question of law, see Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and that the determination should generally be made at the outset of a case to avoid unnecessary litigation.
Under the case law of this Circuit, the district court clearly erred in not applying the doctrine of qualified immunity to shield the defendants from liability for allegedly penalizing Greenberg for First Amendment communications made within the office. It was not until 1979 that the Supreme Court concluded in Givhan v. Western Line Consolidated School District, 439 U.S. 410, 414, 99 S.Ct. 693, 696, 58 L.Ed.2d 619 (1979) that "a public employee [does not forfeit] his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly." Hence, this court for some time has applied the doctrine of qualified immunity in cases where public employees were penalized for internal communications made prior to 1979. See Egger v. Phillips, 710 F.2d 292, 314-15 (7th Cir.) (en banc), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). As we stated in Benson v. Allphin, 786 F.2d 268 (7th Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 172, 93 L.Ed.2d 109 (1986):
Id. at 277 (citations omitted). Thus, qualified immunity does shield the defendants from liability for any actions taken against Greenberg for on-the-job communications, and the district court improperly permitted the jury to find the defendants liable for penalizing Greenberg for communications (freedom of speech) made both within and outside the office.
Concerning Greenberg's comments made outside the office (the comments to the Juvenile Court regarding Richard S. I and his comments at the meeting of the Children's Rights Council and to the Legal Assistance Foundation regarding Richard S. II), the case must be remanded in light
Anderson filed a petition for certiorari on the qualified immunity issue, and the Supreme Court reversed the judgment of the Eighth Circuit. The Court held that the court of appeals had erred in stating the legal principle at issue in overly abstract terms. The Court stated:
Id. at 3039 (quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984) (Brennan, J., concurring in part and dissenting in part)). Under the approach taken by the Eighth Circuit, the Court reasoned, "[a] passably clever plaintiff would always be able to identify an abstract clearly established right that the defendant could be alleged to have violated...." 107 S.Ct. at 3039 n. 2. On remand, the district court was to permit Anderson to argue that the law was not clearly established as to the facts of his particular situation.
In this case, the district court's analysis of the qualified immunity issue made no reference to the evidence in the record. Instead, the court simply stated:
Greenberg v. Kmetko, No. 78 C 2332, at 7 (N.D.Ill. Aug. 3, 1984). The district court therefore erred in not considering the specific facts of this case. See Anderson, 107 S.Ct. at 3039. Hence, we conclude that this case must be remanded for reconsideration in light of Anderson on the issue of qualified immunity for Greenberg's public statements for the district judge, familiar as he is with the entire record, to apply the new test to it. In deciding the qualified immunity issue on the defendants' motion for summary judgment, the district court should consider all of the undisputed evidence in the record, read in the light most favorable to Greenberg, the non-movant. See Green v. Carlson, 826 F.2d 647, 650 (7th Cir.1987).
Furthermore, we are convinced that if any part of Greenberg's statements survive the immunity question, the case must be retried on the questions of liability as well as damages. The district court's failure to distinguish interoffice non-protected speech from statements made outside the office creates a most serious question that the confusion permeated the jury's assessment of damages. Because almost certainly the
At this juncture, we do not think it necessary to disturb the district court's conclusion that Greenberg's comments qualify as protected speech under the standards established by the Supreme Court in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In Connick, the Court held that it is only when a comment touches on a matter of public concern that free speech rights are at stake. 461 U.S. at 147, 103 S.Ct. at 1690. An employee's right to comment on matters of public importance is not absolute. As the Court explained in Pickering, a court must "balance ... the interests of the [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 1734-35. Because Greenberg's statements might conceivably have come within the scope of public concern and the government's interest in promoting the efficiency of the public services it performed in this case may not have outweighed Greenberg's right to speak, we elect not to disturb these findings.
We point out, however, that the question before us is close because Greenberg did have an adverse effect on office harmony and certainly did not proceed in the least disruptive fashion. As Justice Powell stated in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974):
Id. at 168, 94 S.Ct. at 1651. (Powell, J., concurring). With this decision, we wish to point out that we remain sympathetic with the plight of the governmental supervisors who might be deterred from firing a disruptive worker because that employee attempted to create an arguable jury issue by "going public" with a grievance under the guise of a violation of his First Amendment rights. We also note that the case at hand does not involve the firing of a worker; rather, the plaintiff Greenberg was merely transferred to an administrative division of the department without incurring a loss of pay. We think it is unusual at the very least to even suspect that a government department head cannot transfer a disruptive worker after that employee has gone public with a dispute and by doing so "bought" himself an alleged First Amendment claim.
The defendants in this case also challenge the trial court's instructions to the jury on the standards for finding unconstitutional retaliation for the exercise of First Amendment rights. Specifically, the defendants question the correctness of the jury instruction that states:
Transcript at 1249 (emphasis added). The defendants submit that this instruction abrogates the proper test, as outlined in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977), that requires Greenberg to show that his protected speech or conduct was a substantial or motivating factor in a defendant's decision. When read as a whole, the instructions make clear that the jury must have found that Greenberg's conduct was both a motivating factor and a necessary factor in each defendant's decision to transfer Greenberg. Thus, this instruction was not erroneous. Cf. McGill v. Board of Education, 602 F.2d 774, 779 (7th Cir.1979) (approving instruction under which "the jury could not decide for plaintiff unless it found that her constitutionally protected speech was the motivating factor in defendants' decision to transfer her"). We suggest that in the event this case on remand is submitted to a jury, the district court consider instructing the jury with the equivalent and broadly accepted Mt. Healthy standard.
Greenberg has also filed a cross-appeal asserting that the lower court wrongly denied his motions for summary judgment, directed verdict, and judgment notwithstanding the verdict for his claim under the Fourteenth Amendment that he was denied due process by being constructively demoted and discharged without notice or hearing. He contends that his transfer to the Title 20 unit was an act of punishment because it substituted repetitive, make-work tasks for the contact with children that he experienced as a caseworker. According to Greenberg, this situation caused him great stress which resulted in a loss of income by his having to take a voluntary medical leave of absence and eventually resign.
We cannot say that the district court was wrong to reject Greenberg's argument that he established a Fourteenth Amendment violation as a matter of law. This Circuit has expressed a reluctance to find a transfer to the same pay level to be a violation of the Fourteenth Amendment. As this court stated in Parrett v. City of Connersville, 737 F.2d 690, 693 (7th Cir.1984), cert. dismissed, 469 U.S. 1145, 105 S.Ct. 828, 83 L.Ed.2d 820 (1985):
Illinois Personnel Rule 2-470 defines demotion as being moved to a position with a "lower maximum possible salary." Here, Greenberg retained the same salary in the Title 20 unit and retained his title as Social Worker I. As such, it was within the lower court's discretion to allow the jury to determine whether the conditions of Greenberg's employment were so painful as to establish a constructive discharge or demotion. The jury found for the defendants, and we will not disturb its findings. See Knapp v. Whitaker, 757 F.2d 827, 843 (7th Cir.) ("It is well-settled in this circuit that `a jury verdict will not be set aside if a reasonable basis exists in the record to support that verdict.'") (quoting Spesco, Inc. v. General Electric Co., 719 F.2d 233, 237 (7th Cir.1983)), cert. denied, 474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29 (1985).
The judgment of the district court is VACATED, REMANDED in part, and AFFIRMED in part.
KANNE, Circuit Judge, concurring.
No area of the law generates more agonizing decisions than those involving child
In my view, the facts of this case do not produce quite the same pictures that have been developed. I accept the outcome of this difficult case and concur in the result.
FLAUM, Circuit Judge, concurring in part and dissenting in part.
I concur in the result reached by the majority, save the question of damages. While I believe that Anderson v. Creighton, ___ U.S. ___, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) mandates a remand of this matter, I adopt Judge Cudahy's view of the damages issue.
CUDAHY, Circuit Judge, with whom FAIRCHILD, Senior Circuit Judge joins, dissenting:
The original panel majority opinion in this case appears at 811 F.2d 1057. I rely on that opinion of the panel majority as a dissent from the en banc opinion here. Despite the drastic shift in tone and inference from that opinion to this one, the results reached by the two opinions are not that much different. Thus, the panel majority concluded that the defendants were not entitled to qualified immunity for statements made outside the work place, but were entitled to such immunity for internal office communications. The panel noted, however, that there was no way of determining whether liability had been assessed based in whole or in part on actions taken by the defendants in response to internal communications. The panel therefore vacated the judgments as to liability and remanded for a new trial on the issue of defendants' liability for retaliatory action taken in response to communications made by Greenberg outside the office.
The en banc majority has now in addition remanded the question of qualified immunity with respect to Greenberg's comments made outside the office for consideration in light of Anderson v. Creighton, ___ U.S. ___, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The majority contends that, based on Anderson, the district court has erred in not considering the "specific facts" of this case in connection with the issue of qualified immunity. I question whether there exist any heretofore unnoted facts that would entitle defendants to qualified immunity with respect to retaliation for Greenberg's public comments. This circuit already has indicated that the right of public employees to make public statements (as opposed to statements in the workplace) has been clearly established since 1968. Benson v. Scott, 734 F.2d 1181, 1185-86 (7th Cir.), cert. denied, 469 U.S. 1019, 105 S.Ct. 435, 83 L.Ed.2d 361 (1984). In Benson, an employee of the Illinois Department of Revenue claimed that the Illinois Attorney General's Office retaliated against him after he told the news media and law enforcement agents about selective enforcement and improprieties in court. This court noted that
Id. at 1185. Since the majority here has suggested no facts which would distinguish the instant case from the Pickering model, see Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), a remand for consideration in light of Anderson is wholly unnecessary. In Pickering a teacher publicly criticized the school board. Here a social worker publicly criticized a child welfare department.
The present issue is in no way fact-dependent, and I can imagine no facts which would take, for example, Greenberg's remarks to the Children's Rights Council outside the Pickering pattern of public employees' having a protected right to criticize government policy in a public forum without retaliation. The en banc majority opinion makes little effort to justify this remand in light of Anderson v. Creighton and to my way of thinking there is no justification for it.
In important respects the majority's errors here appear most blatantly in its statement of the "facts" of the case. The majority has made a studied effort to depict Greenberg as a psychological basket case disrupting for no good reason the wise and benevolent initiatives of the DCFS. In this respect, the majority has disdained its own pronouncement that the evidence be viewed on remand in the light most favorable to Greenberg. The majority has attempted to paint Greenberg as simply inexperienced, untrained, emotionally shattered and as a simple saboteur. It is, of course, not unusual for dissenters to be pictured as mental cases and their objections to the conventional wisdom to be diagnosed, by those charged with maintaining the status quo, as symptoms of derangement. Some societies quiet such objectors by committing them to a mental institution.
In describing Greenberg and his clashes with DCFS policy, the majority makes a calculated effort to put Greenberg always in the wrong. We have noted the heavy-handed emphasis upon Greenberg's alleged mental problems. But there also are attempts to deprive Greenberg of possible credit even when, at least on the face of things, he might have been on the right track. Thus, the majority describes the insistence of the DCFS, over Greenberg's strenuous objection, that the sick Brian C. be returned to his mother and stepfather, who had resisted having the child back in their home. Within twenty-four hours of his return Brian C. was dead. Quite gratuitously, the majority ascribes this tragedy to the doctors — presumably to make certain that no blame falls on the parents. I do not believe it is our proper task to assign blame. It is possible that the jury felt that Greenberg and not his superiors correctly assessed the appropriate custody for Brian C.
The jury awarded Greenberg $150,000 damages. This suggests that they may have believed him a courageous objector to misguided policies rather than an inept mental case merely rubbing his peers and superiors the wrong way. To the extent that the majority's belabored "facts" are relevant (and I think that few are relevant) their resolution is for the jury and not for us. After he has won a jury verdict, Greenberg is entitled to have the inferences drawn in his favor, not wrenched about to conform to the preconceptions of the majority. For example, the majority has somehow been able to put the blame on Greenberg for the failure to place Richard S. I, when Greenberg's only role was his inability to convince the boy's parents to
Finally, the majority has ordered a new trial on damages. There is no principled basis for this prescription. Whatever the basis of liability — the public statements or the internal office communications — once it is established that there is liability resulting from the transfer to the Title 20 unit, the damages flow from the transfer not from the making of protected statements as the majority suggests. A properly instructed jury has already determined what the damages were, and no objection has been made to the amount of the damages. I am therefore at a loss to understand how this issue can properly be reexamined. No doubt the result reached by the majority in this respect reflects its view that the damages are "too high." As I have noted, I think their perceived magnitude reflects primarily the chasm between the evaluation of Greenberg by the jury (which saw and heard him) and his evaluation by the majority. There is no basis in logic, however, for saying that the damages should be any different whether they arose from public statements or private ones. Again the differences in result between the panel opinion and that of the en banc majority here are not monumental. My most emphatic objection is to the tone of the majority opinion which reflects the heavy-handed preemption of the role of the jury by an appellate court. I think this approach is unfitting, and I therefore respectfully dissent.
RIPPLE, Circuit Judge, with whom FAIRCHILD, Senior Circuit Judge, joins.
I would vacate the order granting rehearing en banc on the ground that it was improvidently entered. See Fed.R.App.P. 35. See generally United States v. Rosciano, 499 F.2d 173 (7th Cir.1974).
Ill.Rev.Stat. ch. 23 § 5006a (emphasis added).