Plaintiff-appellant brought this action against defendants-appellees claiming they had violated his First Amendment right to free speech and Fourteenth Amendment right to due process by wrongfully discharging him from public employment. Defendants thereafter filed a motion for summary judgment, which the district court granted. Plaintiff appeals this judgment and argues that genuine issues of material fact exist as to his liberty and property interest due process claims and as to his First Amendment claim.
I. Factual Background
Clyde Conaway, plaintiff, was hired on July 27, 1982, by the City of Kansas City, Kansas, as an electrical inspector in the Building Inspection Division of the Neighborhood Preservation Department. At the time he was hired, no written or oral contract of employment was entered into stating the terms, conditions, or duration of his employment.
According to Conaway's verified complaint, several work-related problems arose during the next two years. First, Conaway and his partner were ordered by their immediate supervisor, Robert Wiggins, to perform certain campaign work for the mayor on city time or for compensatory time off. Second, Conaway claims problems developed because he refused to approve or "release as operational" substandard
Conaway was suspended for thirty days on March 16, 1984, for the stated reason that he had threatened his immediate supervisor, Robert Wiggins. On April 3, 1984, Conaway was notified by a letter from Ed Smith, Department Director, that he could return to work after his suspension but was subject to a six-month probation period. While on probation, Conaway was warned he would be immediately terminated for any further "serious misconduct."
The events which led up to Conaway's ultimate dismissal began on May 25, 1984. Conaway was instructed to perform an electrical inspection of the Highland Park baseball fields. He discovered several electrical violations which were dangerously exposed to the public and refused to approve the facility as operational. Upon informing his new supervisor, Lyle Fisher, of the violations, Fisher instructed him to release the facility as operational and to perform a follow-up inspection the next week. Conaway released the electrical job to the Board of Power and Light, but also told the company about the existing violations, which they agreed to fix. Upon reinspection on Friday, June 1, 1984, Conaway found that the violations had not been corrected. Returning to the office that Friday afternoon to report the problem, Conaway found Fisher was not available.
Thursday, June 7, 1984, Fisher called Conaway into his office and requested him to sign a letter of reprimand for his failure to immediately notify Fisher on June 1st about the Highland Park violations. Conaway claims that the letter also contained allegations that Conaway had lied on a previous occasion when he testified against the City for a coemployee. Conaway refused to sign the letter, tore it into pieces, and left the office. That same day, Fisher wrote a memorandum to Smith, recommending that Conaway be terminated immediately for his failure to follow instructions and for the insubordinate act in tearing up the letter of reprimand. On June 13, 1984, Smith wrote a memorandum to Medin, informing the City Administrator of his decision to terminate Conaway because of Conaway's attitude toward his supervisor and refusal to perform work assignments. The termination was approved by the Medin on June 14, 1984, for the stated reason of insubordination.
After a formal grievance proceeding, the Board of Review affirmed Conaway's discharge, based on his act of insubordination while on probation. In a later hearing, a referee for the State of Kansas Department of Human Resources, Division of Employment, reviewed defendant's denial of Conaway's unemployment benefits. After hearing testimony by Conaway and Fisher,
Thereafter, Conaway filed a verified complaint claiming the City of Kansas City, Ed Smith, and James Medin had violated his constitutional rights by wrongfully terminating him. One year later, defendants moved for summary judgment on several grounds, including qualified immunity, failure to state a claim, and absence of any material issue of fact regarding the constitutional claims.
In granting defendants' motion for summary judgment, the district court concluded: (1) Conaway had neither a property nor a liberty interest protected by the Fourteenth Amendment which requires a pretermination hearing, and (2) Conaway's First Amendment rights were not violated because his speech was not protected under the First Amendment. Having decided the motion on these grounds, the district court dispensed with any discussion of defendants' other arguments. We affirm in part and reverse in part.
II. Standards of Review
In reviewing the order of summary judgment issued below, this court does not apply the clearly erroneous standard of Fed.R.Civ.P. 52, but instead views the case in the same manner as the trial court.
In responding to defendants' motion for summary judgment, Conaway relied heavily on specific facts he had asserted in his verified complaint to support his First Amendment claim. Although a nonmoving party may not rely merely on the unsupported or conclusory allegations contained in his pleadings, a verified complaint may be treated as an affidavit for purposes of summary judgment if it satisfies the standards for affidavits set out in Rule 56(e). See McElyea v. Babbitt, 833 F.2d 196 (9th Cir.1987); Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77 (5th Cir.1987); Hooks v. Hooks, 771 F.2d 935 (6th Cir.1985); Lew v. Kona Hospital, 754 F.2d 1420 (9th Cir.1985); Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 154 (5th Cir.1965). Rule 56(e) requires that the affidavit be based on personal knowledge, contain facts which would be admissible at trial, and show that the affiant is competent to testify on the matters stated therein. Conaway's verified complaint as to the factual allegations in support of his free speech claim meets these requirements.
Conaway did not rely solely on the "mere" pleadings to oppose the motion for summary judgment regarding his free speech claim. In addition to the factual allegations stated in his verified complaint, Conaway submitted certain documentary evidence to substantiate his claim. Conaway also identified other documents, photos and evidence to corroborate his rendition of the events which evidence was inexplicably missing from the files of the Building Inspection Division and was therefore unavailable to him. Under these circumstances, we will treat the verified complaint as an affidavit for the purpose of the motion for summary judgment. We note that
III. Due Process
Conaway's first claim of error concerns the deprivation of the liberty and property interest without due process. Procedural due process requires a pretermination hearing where liberty or property interests protected by the Fourteenth Amendment are implicated. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 567, 92 S.Ct. 2701, 2704, 33 L.Ed.2d 548 (1972). A plaintiff must first establish, however, that there is a protected interest at stake.
Sipes v. United States, 744 F.2d 1418, 1420 (10th Cir.1984).
A. Property Interest
Determination of whether a plaintiff has a property interest is a question of state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976).
Id. Kansas case law recognizes a property interest in public employment when the employee is hired for a definite term. An employee hired for an indefinite term is an "at will employee," whose contract may be terminated at any time by either party. An at will employee has no property interest in employment.
Defendants have established through affidavits and deposition testimony that Conaway never had an oral or written contract with the city for permanent employment. They have further shown that there are no facts from which an implied contract can be inferred. We find defendants have met their initial burden of showing there are no material issues of fact as to the existence of a property interest.
In response, Conaway maintains an implied contract for continued employment may have existed for two reasons. First, he received a letter from Ed Smith which informed him, during his probation, he would be immediately terminated for any further serious misconduct. In addition, Conaway claims he "expected to remain employed as long as [he] performed the duties of [his] employment properly." To have a property interest, a person "must have more than a unilateral expectation, but, must instead, have a legitimate claim of entitlement to the interest." Roth, 408 U.S. at 577, 92 S.Ct. at 2709. It is apparent that these facts indicate nothing more than a unilateral expectation on the part of Conaway. Placing an employee on probation, without more, indicates only an employer's intention to discipline, and not an intention to create an implied contract.
Second, Conaway alleges he was given an employee handbook when he was hired. The State of Kansas recognizes that termination procedures in an employment manual "may be one of the relevant circumstances
Kansas law holds that a unilateral expression in a personnel manual, which is not bargained for, cannot alone be the basis for an employment contract. Rouse v. Peoples Natural Gas Co., 605 F.Supp. at 232. Conaway has failed to show any specific facts from which an implied contract may be inferred. Having failed to raise any facts supporting a property interest, we find summary judgment is proper as to Conaway's property interest claim.
B. Liberty Interest
"The concept of liberty recognizes two particular interests of a public employee: 1) the protection of his good name, reputation, honor, and integrity, and 2) his freedom to take advantage of other employment opportunities." Miller v. City of Mission, Kan., 705 F.2d 368 (10th Cir.1983); Weathers v. West Yuma County School Dist. R-J-1, 530 F.2d 1335, 1338 (10th Cir.1976). For an employee to make a successful liberty deprivation claim, in addition to proving one of the above-recognized interests, he must also show that his dismissal resulted in the publication of information which was false and stigmatizing. Sipes v. United States, 744 F.2d at 1421.
In the present case, nothing in the record suggests that appellant's good name, reputation, honor, or integrity was stigmatized. Conaway only generally alleges that he has suffered damage to his personal and business reputation due to the city's false accusations and wrongful termination. No specific facts are asserted to support this claim.
The reasons for Conaway's discharge, neglect of duties and insubordination, even when considered false, do not call into question his good name, reputation, honor, or integrity. In comparison, a liberty interest might be implicated by charges of "dishonesty or immorality" because such charge might seriously damage his standing and associations in the community, Roth, 408 U.S. at 573, 92 S.Ct. at 2707, but not by charges of insubordination. See Sullivan v. Stark, 808 F.2d 737, 739 (10th Cir.1987) (charge that park ranger was negligent or derelict in performing his duties did not implicate liberty interest); Asbill v. Housing Authority of Choctaw Nation, 726 F.2d 1499 (10th Cir.1984) (charge of disputing authority of a new agency director held not to stigmatize discharged employee); Sipes v. United States, 744 F.2d at 1422 (discharge for tardiness, unreliable behavior, and horseplay not a liberty interest infraction); Stritzl v. U.S. Postal Service, 602 F.2d 249, 252 (10th Cir.1979) (poor work habits and low productivity held not to implicate liberty interest).
Conaway failed to present any facts that indicate he experienced any disadvantage in obtaining other employment or that he
Because no reasonable inference of a property or liberty interest can be drawn from Conaway's complaint and supplemental evidence, summary judgment is appropriate as to the due process claims.
IV. First Amendment
Conaway also asserts a First Amendment claim, arguing that the City terminated him not for the stated reason of insubordination, but in retaliation for his criticism of his supervisors' actions. Conaway contends several work-related incidents contributed to defendants' decision to terminate him. First, Conaway made public comments about Robert Wiggins, the Chief Building Inspector, and John Mendez, Supervisor of the Building Inspection Division, concerning work he was requested to perform on city time for city officials and their friends and relatives, often without the required permits and license.
Under Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), the plaintiff in a retaliation case must demonstrate that (1) the speech was constitutionally protected and (2) the speech was a substantial or a motivating factor in the state's detrimental action. Id. 429 U.S. at 287, 97 S.Ct. at 576; Wren v. Spurlock, 798 F.2d 1313, 1317 (10th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 145 (1987). In determining whether a public employee's speech warrants First Amendment protection, the court must first consider whether the speech related to a matter of public concern, meaning the speech can be "fairly considered as relating to any matter of political, social or other concern to the community." Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). If the speech is of public concern, the court must then balance the interests of the public
Under Connick v. Myers, whether an employee's speech addresses a matter of public concern must be determined by the "content, form, and context of a given statement, as revealed by the whole record." 461 U.S. at 147-48, 103 S.Ct. at 1690. Considering the content, form, and context of the speech at issue in the present case, Conaway's complaints of government misconduct constitute matters of public concern.
Speech which discloses any evidence of corruption, impropriety, or other malfeasance on the part of city officials, in terms of content, clearly concerns matters of public import. See, e.g., Southside Pub. Schools v. Hill, 827 F.2d 270 (8th Cir.1987); Daniels v. Quinn, 801 F.2d 687, 690 (4th Cir.1986); Cox v. Dardanelle Pub. School Dist., 790 F.2d 668, 672 (8th Cir.1986); Marohnic v. Walker, 800 F.2d 613 (6th Cir.1986); Knapp v. Whitaker, 757 F.2d 827, 840 (7th Cir.), cert. denied, 474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29 (1985); Brasslett v. Cota, 761 F.2d 827 (1st Cir.1985); McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983); Czurlanis v. Albanese, 721 F.2d 98 (3d Cir.1983); Key v. Rutherford, 645 F.2d 880 (10th Cir.1981). Courts have focused on the motive of the speaker in analyzing whether the speech qualifies as a matter of public concern, i.e., whether the speech was calculated to disclose misconduct or dealt with only personal disputes and grievances with no relevance to the public interests. See Koch v. Hutchinson, 847 F.2d 1436, 1445-46 (10th Cir.1988) (en banc) (and cases cited therein); Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir.1987).
Conaway's expression of potential wrongdoing did not address internal policies relevant only to department personnel nor involve essentially a private matter, but concerned information in which the public would definitely be interested. See Piver v. Pender County Bd. of Educ., 835 F.2d 1076, 1079-80 (4th Cir.1987) (citing Berger v. Battaglia, 779 F.2d 992, 998-99 (4th Cir.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 720 (1986)). Nor was Conaway's speech motivated solely by personal interest or hostility, but was primarily for the purpose of informing his superiors of what he perceived to be improper and illegal conduct.
The second step of the First Amendment test concerns the Pickering balancing test, wherein the employee's interest in free comment upon matters of public concern is weighed against the state's interest in the efficiency of its public services. Pickering v. Board of Educ. of Township High School Dist. 205, Will County, Ill., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). Under the Pickering test, Conaway's First Amendment rights are protected "unless the employer shows that some restriction is necessary to prevent the disruption of official functions or to insure effective performance by the employee." Wren v. Spurlock, 798 F.2d at 1318, (citing Childers v. Independent School Dist. No. 1 of Bryan County, Okla., 676 F.2d 1338, 1341 (10th Cir.1982); Accord National Gay Task Force v. Board of Educ., 729 F.2d 1270, 1274 (10th Cir.1984), aff'd, 470 U.S. 903, 105 S.Ct. 1858, 84 L.Ed.2d 776 (1985)). The extent of the government's burden varies, depending on the nature of the employee's expression. Speech which involves clear public concern may merit a greater degree of First Amendment protection. Connick, 461 U.S. at 152, 103 S.Ct. at 1692.
When balancing the rights of the employee against those of the employer, an employee's First Amendment interest is entitled to greater weight where he is acting as a whistle blower in exposing government corruption. See Foster v. Ripley, 645 F.2d 1142, 1149 (D.C. Cir.1981). Speech that seeks to expose improper operations of the government or questions the integrity of governmental officials clearly concerns vital public interests. Each of Conaway's expressions in the present case involved some impropriety on the part of his government supervisors. The facts alleged in Conaway's verified complaint may correctly be described as a whistle blowing situation. See also O'Brien v. Town of Caledonia, 748 F.2d 403 (7th Cir.1984); Brockell v. Norton, 732 F.2d 664 (8th Cir.1984); Atcherson v. Siebenmann, 605 F.2d 1058 (8th Cir.1979).
The Supreme Court recognizes as pertinent factors of the Pickering test "whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." Rankin, 107 S.Ct. at 2899. The court should also consider the employee's position within the work force, the manner, time, and place of the employee's expression, and the context in which the dispute arose. Id. 107 S.Ct. at 2898.
We first consider the impact of Conaway's speech on the Building Inspection Division. Disruptions in the working relationship between Conaway and his supervisors, and general disharmony in the office, are foreseeable consequences when an employee reports improper activities of co-workers
Protecting an employer's interest in preventing disruptions in the office or interference with department functions is most important in an agency where loyalty and confidence are essential to close working relationships. Although confidence and loyalty are attributes which help any office function more efficiently, a building inspection department does not involve as close a working relationship as, for example, a police department, Jurgensen v. Fairfax County, Va., 745 F.2d 868, 880 (4th Cir.1984); a fire department, Koch v. Hutchinson, 847 F.2d at 1452 n. 22; the F.B.I., Egger v. Phillips, 710 F.2d 292, 319 (7th Cir.), cert denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983); or a district attorney's office, Connick, 461 U.S. at 151, 103 S.Ct. at 1692. The limited importance of loyalty and confidence in the Building Inspection Division further diminishes the city's interest in preventing interference with departmental functions.
An additional factor under the Pickering test is whether the content of Conaway's speech calls into question his general competence to perform his responsibilities. As noted earlier, defendants have not challenged the accuracy of Conaway's statements in any significant way nor otherwise questioned his ability to perform his job. Cf., Koch v. Hutchinson, 847 F.2d at 1452-53 (report written by plaintiff omitted important evidence which raised question of plaintiff's competence or possible official misconduct). No evidence in the record suggests that Conaway's statements reflected negatively on his ability to adequately perform.
Nor does Conaway's former position as an electrical inspector in the Building Inspection Division persuade us that the government's interest outweighs Conaway's First Amendment rights. Under Rankin, an employee whose duties include a "confidential, policymaking, or public contact role," must be more cautious with what he says. 107 S.Ct. at 2900. Although Conaway had some limited public contact as an electrical inspector, his position did not entail authority or a public accountability role which might be affected by his internal complaints to his superiors.
We finally address the manner, time, and place of Conaway's expressions. He privately spoke with Medin about the gratuitous favors he performed for Wiggins and Mendez, and the apparent payoffs involving Fisher. Later, he submitted a written report to Fisher, Smith, and Medin concerning the Highland Park electrical problems. There is no evidence that Conaway openly confronted Fisher in front of other employees or otherwise addressed coworkers about his concerns. Cf. Connick, 461 U.S. 153, 103 S.Ct. at 1693 (plaintiff circulated questionnaire about supervisors to coworkers). In each instance, it appears that Conaway used less disruptive internal channels, rather than going outside the city administration. The relatively low key context in which Conaway voiced his complaints further persuades us that the Pickering balance tilts in his favor.
This case resembles Rookard v. Health and Hosps. Corp., 710 F.2d 41 (2d Cir.1983), in which a director of nursing wrote a report to the corporation's inspector general complaining of certain corrupt and
Without any demonstrated adverse impact on the employer's operations apart from the general type of disruption noted by this court above, and in consideration of the importance of protecting reports of government misconduct, we hold Conaway's First Amendment interest in the speech at issue in this case outweighs the governmental interest at stake. We, therefore, conclude that the three incidences of speech are protected by the First Amendment.
Having concluded that Conaway's speech is constitutionally protected, we must now address whether the speech was a substantial or motivating factor in plaintiff's dismissal. The evidence presented in the record indicates a material issue of fact exists as to defendants' motivation in terminating Conaway. Conaway submitted documents and a verified complaint, which alleged specific facts based on personal knowledge, to show that he was terminated for reporting the improper activities of his supervisors. Conaway's personal account of the events which led to his dismissal must be accepted as true. On June 4th, Conaway submitted a report to Fisher, Smith, and Medin describing the Highland Park electrical violations and criticizing Fisher's release of the allegedly hazardous electrical work. Three days later, Fisher presented Conaway with a written reprimand and requested that Conaway sign the document. Although the parties dispute what actually occurred during the meeting, the evidence ties Fisher's reprimand to the very events about which Conaway had criticized Fisher. Immediately after this meeting, Fisher recommended Conaway be dismissed. In a later hearing concerning Conaway's unemployment benefits, Fisher indicated that Conaway's purpose in writing the June 4th report was to embarrass Fisher. See note 3, supra. Conaway also claimed he had a disagreement with defendant Smith the day before he was dismissed which, if accepted as true, puts Smith's motivation in recommending Conaway's termination under suspicion. See note 7, supra.
Reasonable inferences can be drawn from these facts that Fisher and Smith were at least partially motivated by Conaway's criticism of his supervisor's actions and his speech concerning what he perceived as definite problems in the Building Inspection Division. Based on this evidence, when viewed in a light most favorable to the plaintiff and considering the credibility factor involved, we conclude a jury might return a verdict in Conaway's favor on this issue. Anderson v. Liberty Lobby, Inc., 106 S.Ct. at 2514; Exnicious v. United States, 563 F.2d 418 (10th Cir.1977). Summary judgment is, therefore, inappropriate.
The decision of the district court is AFFIRMED IN PART and REVERSED IN PART and the case is REMANDED for further proceedings consistent with this opinion.