Appeal from the United States District Court for the Central District of Illinois, Springfield Division. Nos. 79-C-3098 & 79-C-3075 -- J. Waldo Ackerman, Judge.
Before Bauer and Cudahy, Circuit Judges, and Noland, District Judge.*fn*
This is an appeal in two companion cases brought by an employee of the Illinois Governor's Office of Manpower and Human Development ("GOMAHD") alleging under 42 U.S.C. § 1983 that four other employees of GOMAHD had violated her First Amendment right to free speech and seeking damages for this violation. The four defendants in the two cases consist of plaintiff's supervisor, Michael Hedges; James McDonough, an administrative assistant to the Director of GOMAHD (who supervised personnel activities); Stan Stewart, a technical advisor (legal) to the Director of GOMAHD; and Ken Kirby, Deputy Director of GOMAHD.
At a time when the news media were announcing the impending termination of the Director of GOMAHD, L. W. Murray, plaintiff Yoggerst made a comment over the telephone to a fellow worker, "Have you heard the good news?" For this she was reprimanded orally and in writing by her supervisor, Hedges, on the advice of McDonough and Stewart; a copy of the written reprimand was placed in her file by McDonough; and her grievance with respect to the reprimand was subsequently denied by Kirby. The district court, with respect to Yoggerst's civil rights complaint against Stewart and McDonough, granted summary judgment for defendants. With respect to Hedges and Kirby, the district court dismissed the complaint for failure to state a claim upon which relief could be granted. We affirm the dismissal of the complaint against Kirby and the grant of summary judgment in favor of Stewart. We reverse the dismissal of the complaint against Hedges and the grant of summary judgment in favor of McDonough.
Plaintiff Yoggerst and the four defendants were employees of the State of Illinois serving in GOMAHD, the offices of which were located in Springfield, Illinois. Yoggerst was an administrative assistant, in charge of property control. As indicated, Hedges was Yoggerst's supervisor, McDonough was an administrative assistant to the Director (supervising personnel matters), Stewart was a technical advisor (lawyer), responsible to the Director, and Kirby was Deputy Director of the agency.
On April 26 and 27, 1978, unconfirmed reports were circulating indicating that L. W. Murray had been discharged by the Governor from his position as Director of GOMAHD. On April 27, 1978, the Chicago Sun Times featured an article under a headline which read, "Report Thompson Axes Aide." In fact, Murray had not been fired and remained as Director of GOMAHD through May 1978. Rumors of his departure, however, created an atmosphere of concern and confusion within the agency.
On the morning of April 27, 1978, Yoggerst made a telephone call to a fellow employee, Linda Coker, seeking information about a work-related matter. When Coker picked up the telephone, Yoggerst's first inquiry was, "Did you hear the good news?" The question was obviously directed to the unconfirmed reports of Murray's firing. Coker, responded that things at the office were pretty "hairy" that morning and that Coker didn't know whether the news was good. The conversation then proceeded on to work-related matters.
Coker then telephoned McDonough, who supervised personnel transactions at GOMAHD. Coker sounded emotionally upset and told McDonough about Yoggerst's question about the "good news." McDonough suggested that Coker report the incident to Hedges, Yoggerst's immediate supervisor. Coker then contacted Hedges and reported the incident. Coker told Hedges that Yoggerst was creating "unnecessary chaos" and asked Hedges to talk to Yoggerst about it.
Hedges then called Stewart, who, as a technical advisor to the Director, was employed to give legal advice on agency matters to any agency official who requested it. Hedges asked Stewart what, if anything, Hedges could do to control an employee who was approaching other employees and asking if they had heard the "good news" that Director Murray had been fired. Stewart proffered his opinion that, if the employee was disrupting office decorum, Hedges could issue a warning to the employee to cease such conduct. Later the same day Hedges, Stewart and McDonough met in Hedges' office. All three concluded that Yoggerst's comment had aggravated the "turmoil" existing in the office and was, therefore, unprofessional. Stewart reiterated his legal opinion that under the circumstances reprimanding Yoggerst would be appropriate. Stewart and McDonough suggested that Hedges verbally reprimand Yoggerst.
Hedges met with Yoggerst on April 27, 1978. At that meeting Hedges told Yoggerst that her conduct was unprofessional and had disrupted the office. Hedges verbally warned plaintiff that her conduct was unprofessional. Hedges subsequently drafted a written memorandum and sent a copy of the memorandum to Stewart and McDonough. McDonough put a copy of the memorandum in Yoggerst's personnel file but did not forward a copy to the Department of Personnel.
The memorandum placed in Yoggerst's personnel file states in pertinent part as follows:
"This type of behavior serves no useful purpose and only creates further chaos and unnecessary confusion. You may be assured that you are not singled out from other employees of this office in this particular matter. Any employee that works for me would receive the same reprimand as you have for this type of conduct. I trust this behavior will not reoccur."
Yoggerst filed a grievance requesting that the memorandum be removed from her personnel file. She pursued her grievance through step 3 of the grievance procedure, where it was denied by defendant Kirby, who was Deputy Director of GOMAHD. Yoggerst did not pursue her grievance ...