Rehearing Denied in No. 86-6261 August 4, 1988.
BOGGS, Circuit Judge.
Robert Barnes and Joe Thompson appeal the district court's decisions granting summary judgment in favor of defendants in their actions under 42 U.S.C. § 1983, 661 F.Supp. 498 (1987) and 647 F.Supp. 1307 (1986). Barnes and Thompson claim they were discharged in retaliation for having exercised their right to free speech. Upon review of the parties' briefs and the records, we conclude that the district court correctly awarded summary judgment in favor of defendants on Thompson's claim. However, the lower court erred in granting summary judgment in favor of defendants with respect to Barnes's claim.
Accordingly, we affirm the district court's decision in Thompson's appeal (No. 87-5776). We reverse the district court's decision in Barnes's appeal (No. 86-6261), and remand that case for further consideration of Barnes's section 1983 claim.
At the time he was discharged, Barnes was Director of the Business Enterprises Program of the Bureau for the Blind (the Bureau), a Kentucky agency within the state's Education and Humanities Cabinet.
On March 18, 1982, defendant-appellee Charles McDowell, acting Director of the Bureau and the immediate superior of Barnes and Thompson, notified them in separate letters that they were suspended for thirty working days while the Bureau investigated a report that the men had sexually harassed Thompson's secretary, a blind female named Libby Williams. Defendant-appellee Ed Fossett, acting attorney for the Education and Humanities Cabinet, and defendant-appellee Sam Serraglio, acting Finance and Personnel Officer of the Bureau, conducted the investigation.
On April 30, 1982, McDowell notified Barnes and Thompson, again in separate letters, that they were discharged for having sexually harassed Libby Williams. Barnes also was accused of having harassed two other females associated with the Bureau. In addition to the sexual harassment charges, both men were accused of various deficiencies in their work performance, including allegations that the two had been inebriated while on the job and when socializing with vendor operators in the field. The letter stated that the men had ten working days to reply to McDowell about the charges.
On May 21, 1982, Barnes and Thompson appeared with counsel before McDowell. Fossett and Serraglio also were present. According to affidavits from Fossett and Serraglio, "Mr. McDowell confronted Mr. Barnes and Mr. Thompson with the charges against them and gave them an opportunity to refute, explain and otherwise address the charges." Apparently, Barnes's and Thompson's responses were inadequate, as McDowell adhered to his decision to discharge the men.
Barnes and Thompson then appealed their firings to the Kentucky Personnel Board. A hearing officer for the Personnel Board held an adjudicative hearing on the matter. Subsequently, the hearing officer issued his findings of fact, conclusions of law and recommended order. He found that Barnes had engaged in sexual harassment and upheld his dismissal on that ground.
With regard to Thompson, the officer found that "technically" Thompson was not guilty of sexual harassment.
After considering the hearing officer's report, the state Personnel Board sustained the officer's findings of fact and conclusions of law, thereby upholding Barnes's
Barnes sought judicial review of the Board's decision in state court.
On March 17, 1983, while judicial review of Barnes's discharge still was pending in state court, Barnes and Thompson filed suit under 42 U.S.C. § 1983 in federal district court in Kentucky claiming that McDowell, with "the advice, encouragement, and assistance of Defendants Ed Fossett and Sam [Serraglio]" used the sexual harassment and unsatisfactory work allegations as a pretext for their discharge. In their complaint, Barnes and Thompson alleged that the real reason they were fired was in retaliation for having expressed, on various occasions, their opinions that certain Bureau practices under McDowell's supervision evidenced corruption and cronyism at the Bureau.
On January 9, 1985, upon motion by the plaintiffs, the district court ordered that the federal litigation be held in abeyance until Barnes's appeals in the Kentucky courts were resolved.
After the Kentucky Supreme Court denied review of Barnes's discharge, Barnes and Thompson moved for a trial date in federal court. The defendants moved for summary judgment, arguing that the Board's decision against Barnes, and its affirmance in the state courts, constituted res judicata or collateral estoppel
On September 17, 1986, the district court sustained the defendants' motion for summary judgment against Barnes's section 1983 claim in a non-final order. The court, however, did not dismiss Thompson's claim. Instead it ordered Thompson to file a memorandum addressing whether any issues resolved in the state administrative proceedings concerning his discharge had a preclusive effect upon his federal claim.
Thompson filed the requested memorandum. At the same time, Barnes moved the court to reconsider its September 17, 1986, order.
On November 6, 1986, the court denied Barnes's motion for reconsideration and made its dismissal of Barnes's claim a final and appealable order. The court stated that the state administrative and judicial proceedings already had determined "that [Barnes] was justly dismissed for good cause arising out of his sexually harassing a female employee." Consequently, the district court apparently concluded that Barnes was collaterally estopped from relitigating in a section 1983 action the issues of the motivation and justification for his discharge. On December 3, 1986, Barnes filed a notice of appeal of the district court's dismissal of his section 1983 action.
In the same order issued on November 6, 1986, the district court denied the defendants' motion for summary judgment against Thompson. Although the court determined that the parties were bound by the Board's findings concerning the allegations about Thompson's misconduct, the court noted that the Board's findings were in Thompson's favor. The Board had determined that Thompson was not guilty of sexual harassment. Therefore, the court concluded that it was possible for Thompson to prevail in his retaliatory discharge claim,
On February 4, 1987, the defendants moved for summary judgment against Thompson partly on the ground that the speech Thompson claimed motivated his discharge did not address a matter of public concern but rather, touched "only upon matters of a personal interest as an employee."
On June 2, 1987, the district court granted the defendants' motion for summary
After the district court rendered its decision, Thompson timely filed a notice of appeal. Because the underlying facts are the same in both Barnes's and Thompson's appeals, their appeals have been consolidated for disposition before this court.
In University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), the Supreme Court held, "when a state agency `acting in a judicial capacity ... resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,' federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts." Elliott, 106 S.Ct. at 3227.
In addition, section 1738 of Title 28 of the United States Code requires that federal courts afford state court judgments both the issue and claim preclusive effects in subsequent actions under 42 U.S.C. § 1983 that the state courts would afford them. See Elliott, 106 S.Ct. at 3225 (citing Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (issue preclusion), and Migra v. Warren City School District Bd. of Educ., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (claim preclusion)).
Kentucky courts do not apply the doctrine of claim preclusion in a subsequent suit involving facts already at issue in another action when the causes of action in the two proceedings are not the same. See Vinson v. Campbell County Fiscal Court, 820 F.2d 194, 197 (6th Cir.1987); George v. United Kentucky Bank, Inc., 753 F.2d 50, 53 (6th Cir.), cert. denied, 471 U.S. 1018, 105 S.Ct. 2024, 85 L.Ed.2d 306, 474 U.S. 821, 106 S.Ct. 70, 88 L.Ed.2d 58 (1985). Moreover, in general, Kentucky courts apply the doctrine of issue preclusion or collateral estoppel, "only as to matters which were necessarily involved and determined in the former action, and is not conclusive
Sedley v. City of West Buechel, 461 S.W.2d 556, 558 (Ky.1970).
Barnes's section 1983 action to redress the alleged violation of his right to free speech is not the same cause of action as the state action in which he sought judicial review of an administrative decision. Accordingly, the doctrine of claim preclusion does not prevent Barnes from proceeding with his federal claim.
However, the district court concluded that the doctrine of issue preclusion, as applied by the Kentucky courts, does prevent Barnes from succeeding in his section 1983 claim. The court so held because the state courts sustained the Board's determination that Barnes was discharged for having engaged in sexual harassment. Thus, the district court determined that Barnes could not prevail in a federal action in which he essentially claimed that his discharge was unjustified.
When the Kentucky state courts reviewed Barnes's discharge, the only matter determined was whether the Board's factual finding that the discharge was justified because Barnes had engaged in sexual harassment was supported by substantial evidence in the record. Whether the defendants' motivation for the discharge was unconstitutional simply was not an issue in the state judicial proceedings. Thus, because Barnes's section 1983 action involves a constitutional issue which was not involved in the state proceedings, the district court erred in concluding that the doctrine of issue preclusion bars further litigation of Barnes's federal claim.
The district court dismissed Barnes's action before this court issued its decision in Wicker v. Bd. of Educ., 826 F.2d 442 (6th Cir.1987), a case involving issues similar to those presented in Barnes's appeal. In Wicker, a Kentucky school superintendent was fired after a hearing before the school board employing him on charges that he inadequately handled the school system's financial affairs. Wicker, the superintendent, then filed suit in federal court under section 1983 claiming, inter alia, that the real reason for his discharge was because he had not supported some of the Board members in a recent election. After he filed suit in federal court, Wicker apparently filed the same suit in state court. The federal court decided to enter an abstention order and Wicker then filed in state court an England reservation of the federal issues.
The state court reviewed the Board's findings and upheld the discharge. Wicker then returned to federal court and that court dismissed his action on the ground that the state decision upholding the discharge precluded consideration of his constitutional claim.
This court reversed the district court's decision concluding,
Wicker, 826 F.2d at 449; see also, Wicker, 826 F.2d at 451 (noting that Kentucky may not apply its preclusion rules as strictly to questions of law and that different standards of proof may render issue preclusion rules inapplicable). We reached this conclusion in Wicker, even though we assumed that Wicker had tried to raise and fully litigate the issue of whether he was discharged in retaliation for his political views in the state courts, because it was clear from the record in that case that the state courts never reached the constitutional issue. Wicker, 826 F.2d at 449.
In Barnes's case, it is unclear to what extent, if any, he raised his constitutional claim in the state proceedings. However, it is clear from the record that his constitutional claim never was resolved by any of the state tribunals.
Unlike the plaintiff in Wicker, Barnes did not make an explicit England reservation of his federal claim after the district court decided to hold the federal litigation in abeyance until the state judicial review of his discharge had concluded. However, also unlike the plaintiff in Wicker, Barnes filed suit in state court before he filed suit in federal court. By splitting on his own initiative the state and federal actions stemming from his discharge, Barnes achieved the very same effect that he would have had he made an England reservation. Consequently, we do not view the absence of an England reservation as a factor which distinguishes the applicability of Wicker to this case. We find the analysis presented in Wicker persuasive and, accordingly, dispositive of Barnes's appeal.
The district court's initial conclusion is correct. The factual determination of the state administrative proceedings, as sustained by the state courts, that Barnes was guilty of sexual harassment may not be relitigated in federal court. However, the fact that Barnes harassed females during his tenure at the Bureau does not eliminate the possibility that the real reason he was discharged from the Bureau was because he spoke out on a matter of public concern. Thus, if Barnes can establish that he spoke on a matter of public concern and that his speech was a motivating factor for his dismissal, Barnes may be able to prevail in a retaliatory discharge action under section 1983 even though he was guilty of sexual harassment.
Accordingly, the district court erred in dismissing Barnes's federal action on the ground that the doctrine of issue preclusion, as applied in Kentucky, prevents consideration of his retaliatory discharge claim. We believe that Barnes must be given the opportunity to present evidence supporting his assertion that the real reason for his discharge was because his speech addressed a matter of public concern. Therefore, the district court's decision granting summary judgment in favor of the defendants on Barnes's claim is reversed and that case is remanded for further consideration.
The district court allowed Thompson's case to proceed through the discovery stage and subsequently granted summary judgment in favor of the defendants on Thompson's claim after concluding that Thompson had not engaged in speech which addressed a matter of public concern.
In order to prevail in a retaliatory discharge action under section 1983, a plaintiff must first establish that he or she engaged in speech which is constitutionally protected because it addressed a matter of public concern. Rankin v. McPherson, ___ U.S. ___, 107 S.Ct. 2891, 2896-97, 97 L.Ed.
In Connick, the Supreme Court provided guidance for determining whether a public employee's speech addressed a matter of public concern. In that case, an assistant district attorney, objecting to her employer's proposal to transfer her, circulated a questionnaire among her fellow workers asking their opinions concerning several office policies, including the transfer policy. Her employer then fired her for refusing to accept the transfer. The former assistant district attorney filed suit, claiming that she was fired because of her speech, i.e., the questionnaire.
The Supreme Court determined that only one question on the form, whether assistant district attorneys "ever [felt] pressured to work in political campaigns on behalf of office supported candidates," Connick, 461 U.S. at 149, 103 S.Ct. at 1691, addressed a matter of public concern. The Court concluded that the rest of the questions were not designed "to evaluate the performance of the office but rather to gather ammunition for another round of controversy with her superiors." Connick, 461 U.S. at 148, 103 S.Ct. at 1691. Accordingly, the Court concluded that those questions merely reflected "one employee's dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celebre." Ibid.
In reaching this conclusion the Court emphasized the limited nature of the inquiry into whether a public employee's speech addressed a matter of public concern:
In a case with facts relevant here, the District of Columbia Circuit relied on this passage from Connick when it rejected the claim of an FBI agent that he had been suspended without pay in retaliation for his speech. Murray v. Gardner, 741 F.2d 434 (D.C.Cir.1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1748, 84 L.Ed.2d 813 (1985).
The agent in Murray claimed that his criticism of a plan by his superiors to furlough one-third of the agents in his field office addressed a matter of public concern because "public monies and government efficiency [were] involved." The District of Columbia Circuit, implying that those two arguments can be raised in connection with virtually any public employment matter, concluded that if it accepted the agent's claim, "Connick would stand for nothing." Murray, 741 F.2d at 438.
We agree with the District of Columbia Circuit's reasoning in Murray. The mere fact that public monies and government efficiency are related to the subject of a public employee's speech do not, by themselves, qualify that speech as being addressed to a matter of public concern.
However, it is possible to view allegations that public monies are being spent unwisely and that a government program is being run inefficiently, as implying that a public agency or official is corrupt. This court recently "has held that speech disclosing public corruption is a matter of public interest and therefore deserves constitutional protection." Solomon v. Royal Oak Township, 842 F.2d 862, 865 (6th Cir.1988) (citations omitted).
Yet while a simple allegation that a public employee's speech disclosed corruption in a public agency satisfies the pleading requirements of the Federal Rules of Civil Procedure, those same rules require that when a defendant has moved for summary judgment, a plaintiff must present concrete evidence to support the allegation in order to survive the motion. The evidence need not be conclusive on the issues presented in the litigation, but it must sufficiently indicate the existence of facts which are disputed by the parties and which are material to the litigation to defeat the defendant's motion. As the Supreme Court repeatedly has emphasized, Federal Rule of Civil Procedure 56(c)
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
The speech alleged by Thompson in the complaint is concerned with the operation of the Bureau, a public agency. It is possible to read the allegations in the complaint as charging corruption in the agency, most notably on the part of McDowell, and as charging discrimination by the agency against totally blind individuals.
The defendants' motion for summary judgment was filed in February, 1987. By the time the district court ruled on the motion nearly four months later, Thompson had been afforded full opportunity to conduct discovery and to supply the district court with concrete evidence supporting the allegations raised in his complaint. Apparently, the only evidence presented to the court by either side was Thompson's deposition. We have reviewed the pages of that deposition designated for our consideration and conclude that the district court did not err in determining that none of the three items Thompson identified as the cause of his dismissal addressed matters of public concern. While Thompson may have been justified in his beliefs that his section of the Business Enterprises Program did not receive enough of the operating budget, that the Program should have had a 24-hour repair deadline before he instituted one and that the wisdom and propriety of
Thus, on the basis of the record before it, the district court did not err in granting summary judgment in favor of the defendants on the ground that Thompson's speech did not address a matter of public concern.
For the foregoing reasons, the district court's decision awarding summary judgment in favor of defendants in Thompson's case is AFFIRMED No. 87-5776. The decision in Barnes's case is REVERSED and that case is REMANDED for further consideration No. 86-6261.
Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 894 n. 1, 79 L.Ed.2d 56 (1984) (citations omitted). Some commentators and court decisions have used the term "res judicata" as being "virtually synonymous with `claim preclusion.'" Ibid.
In the proceedings attendant to these appeals, the parties and the district court appear to have adopted the position that "res judicata" is synonymous with "claim preclusion" and "collateral estoppel" is synonymous with "issue preclusion." At this stage of the litigation, we will not disturb this usage although we will, during the course of our discussion of the legal issues, use the terms "claim preclusion" and "issue preclusion." We also express our hope that future litigants, in the interests of precision and clarity, will formulate arguments which refer solely to issue or claim preclusion and which refrain from using the predecessors of those terms, whose meanings have become so convoluted.
If, after these first two steps, a court determines that the employee's speech is protected, the employee then must show that the speech was a substantial or motivating factor in the adverse employment decision. Once an employee makes this showing, the defendant must establish by a preponderance of the evidence that it would have taken the same employment action even in the absence of the protected conduct, in order to escape liability. See Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576. These issues are questions of fact. Daniels v. Quinn, 801 F.2d 687, 689 (4th Cir.1986).
At another time he stated:
Whatever implications may be read into these statements, Thompson never presented the court with any evidence indicating even a remote connection between these practices and corruption at the Bureau. Accordingly, his statements standing alone do not sufficiently raise an issue of material fact to survive the defendants' motion for summary judgment.