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Greenberg v. Kmetko

decided: February 3, 1987.


Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78 C 2332--John F. Grady, Judge.

Author: Cudahy

Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

CUDAHY, Circuit Judge.

Plaintiff-Appellee, Richard Greenberg, was a social worker with the Illinois Department of Child and Family Services (the "DCFS" or the "Department"). Defendants-Appellants were his supervisors. Plaintiff contends that as a result of criticizing the Department's handling of certain cases he was ostracized, reprimanded, demoted and eventually forced to resign. He filed suit under 42 U.S.C. § 1983 alleging that his free speech and fourteenth amendment rights had been infringed. Before the case was submitted to the jury the judge determined that Greenberg had raised a first amendment claim and that defendants' conduct was not excused by the doctrine of qualified immunity. After a bifurcated trial the jury found defendants liable on the first amendment claim but not liable on the fourteenth amendment constructive discharge claim, and then awarded plaintiff $150,000 in compensatory damages. Defendants appeal the finding that plaintiff's conduct was protected by the first amendment and argue that they acted in good faith toward Greenberg and should be shielded from liability by qualified immunity. Defendants also argue that the court misinstructed the jury on the standards for establishing illegal retaliatory conduct. Plaintiff cross-appeals arguing that the fourteenth amendment should provide an additional basis for defendants' liability. We affirm in part and vacate and remand in part.

Greenberg began working for DCFS's North Area Office in Chicago in 1974. Defendant Bruce Weflen was the supervisor of plaintiff's unit after October 1974. Defendant Thomas Kmetko was the Area Administrator for the DCFS. Over the course of several years plaintiff had several disagreements with his supervisors over department policy.

DCFS had a policy of trying to minimize the placement of children in foster care by reuniting them with their natural families. Greenberg objected to the application of this policy to a child, Brian C. Brian C. had run away from his family and had become ill. The Department wanted him reunited with his biological parent. Plaintiff objected, saying the parent was unwilling and unfit to care for Brian. Over plaintiff's strenuous objections, Brian was returned to his parent. Within 24 hours of his return, Brian died of a lesion on his appendix that had not received medical care.

Plaintiff's second argument with his supervisors occurred over the handling of the case of Richard S. I. The Juvenile Court had ordered DCFS to place Richard S. I in a foster home, but his had not been done. Plaintiff informed the court that its order was not being enforced. Defendant Weflen was ordered to appear in court and explain DCFS's nonperformance. Greenberg eventually received permission to place Richard S. I. After this incident, plaintiff contends, he was denied any new casework responsibility even though the volume of cases at the Department increased, and children in his caseload were denied important services.

After placing Richard S. I, plaintiff wrote a letter to defendant Kmetko complaining of difficulties in handling Richard S. I's case and accusing Weflen of having mistaken priorities. Greenberg indicated that his relationship with Weflen was affecting his emotional health. Thereafter, Kmetko met with Greenberg and informed him that he considered Greenberg's mental health a problem.

Greenberg alienated fellow caseworkers by becoming involved with a child in another caseworker's charge. The caseworker in question refused to find a new placement for the child who had run away from his old placement. The caseworker was attempting to force the child to return to the former placement. Plaintiff felt the child was being mistreated. Without the other caseworker's knowledge, he gave the child a "Fair and Equal Treatment" Card, which entitled the child to receive the help of a state ombudsman. Greenberg also found the child temporary shelter. Greenberg was called disloyal for the action, and he contends that his supervisor, Weflen, encouraged the other caseworker to avoid him.

In March 1975, plaintiff received an adverse performance evaluation from Ronald Dombrowski, his former supervisor. The evaluation spoke of 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 psycho-therapy." Richard Greenberg Six Month Performance Evaluation, Appellants' Appendix Exhibit 3 at 3. After reading this evaluation, plaintiff fell under great stress and from mid-May through mid-June took a leave of absence.

In September 1975, plaintiff became involved in the case of Richard S. II, a child suffering from psychosis and epilepsy with occasional homicidal or suicidal behavior. Richard S. II was in Elgin State Hospital. Plaintiff felt that Richard S. II was not being cared for properly and complained to Phillip Gorman, the assistant guardianship administrator. Gorman resented plaintiff's interference in the case and wrote a letter to defendants Kmetko and Weflen requesting that Richard S. II's case be assigned to another worker.

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, plaintiff rose from the floor and spoke critically of the department's policy of minimizing services to children, especially Richard S. II, who was not mentioned by name. After the speech, Greenberg and McDonald talked privately, and Greenberg was assured that McDonald would look into Richard S. II's case.

The Richard S. II case continued to disturb Greenberg. The hospital determined that the boy should be transferred to the Edison Park Home. Plaintiff protested, arguing that the home did not have adequate facilities for Richard S. II's special needs. In November 1975, plaintiff learned that Richard S. II had been transferred to an isolation room at the Edison Park Home and that the home was seeking emergency hospitalization for the child. When Gorman refused permission to allow medical care, plaintiff contacted John Shallenberger, the Juvenile Litigation Director of the Legal Assistance Foundation of Chicago, and told him that Richard S. II was being denied essential medical services. Following the Legal Assistance Foundation's involvement in the case, Richard S. II was placed under emergency hospital care.

Soon after Richard S. II was moved to the hospital, plaintiff was transferred to the Title 20 unit, a unit that defendants stipulated was widely viewed as a punishment unit. Workers there had no social work responsibility of contact with children. Their jobs consisted of repetitively filing out forms for federal reimbursement of department services. Plaintiff contends that the transfer harmed his health and untimely forced him to resign.

In 1978, plaintiff filed suit under 42 U.S.C. § 1983 alleging that defendants had deprived him of his first and fourteenth amendment rights. Before trial, defendants made a motion in limine to exclude from consideration all evidence of communications by plaintiff regarding him handling of DCFS cases. The court denied this motion, concluding that the suit pertained to matters of public importance and that their public significance was not outweighed by the Department's concern for efficiency. The defendants also sought summary judgment, saying that they could not have known their actions toward plaintiff were unlawful because, inter alia, the Supreme Court did not find intraoffice communications protected by the first by the first amendment until 1979, and that therefore these defendants acted in good faith and should be protected by qualified immunity. The court denied this motion. The court also denied plaintiff's motion for summary judgment on his fourteenth amendment claim for constructive discharge. The case was submitted to the jury first on the question of liability. The jury found for plaintiff on the first amendment claim but for defendants on the fourteenth amendment issue. The jury then tried the issue of damages and returned a verdict of $150,000 to compensate the plaintiff for his wrongful transfer to the Title 20 unit. Defendants appeal the finding of liability under the first amendment. Plaintiff cross-appeals the denial of liability under the fourteenth amendment.


In determining whether plaintiff suffered retaliation for the exercise of his constitutional rights, the first question is whether his comments qualify as protected speech. This inquiry involves a question of law rather than fact. Connick v. Myers, 461 U.S. 138, 148 n.7, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). The recognition that public employees retain a first amendment right to comment on public matters dates from Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). In Pickering the Supreme Court overturned a ruling upholding the dismissal of a teacher who wrote a letter to a newspaper criticizing his school board. The teacher found fault with the way the board allocated funds between athletic and educational programs, and he criticized the Superintendent of Schools for misleading the public as to why he was seeking a tax increase. In ruling that Pickering could not be penalized for exercising his constitutional rights, the Court held that individuals could not be compelled, as a condition of public employment, to relinquish their constitutional rights. The Court noted that "the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." 391 U.S. at 568 (quoting Keyishian v. Board of Regents, 385 U.S. 589, 605-606, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967)).

The standards for assessing when public employees' first amendment rights are implicated received further refinement in Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 . There an assistant district attorney was unhappy with a forthcoming transfer. In response, she circulated a questionnaire to her co-workers seeking their opinions about her supervisors' performance and about office morale. She was dismissed and she sued. The court rejected her first amendment claim saying:

Myers did not seek to inform the public that the District Attorney's Office was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases. Nor did Myers seek to bring to light actual or potential wrongdoing or breach of public trust on the part of Connick and others. Indeed, the questionnaire, if released to the public, would convey no information at all other than the fact that a single employee is upset with the status quo.

461 U.S. at 148.

Essentially nonpublic disputes should not be the subject of court action, lest "every remark--and certainly every criticism directed at a public official--. . . plant the seed of a constitutional case." Connick, 461 U.S. at 149. It is only when a comment touches on matters of public concern that free speech rights are at stake. In judging whether an employee's speech addresses a matter of public concern, a court must examine the "content, form and context of a given statement, as revealed by the whole record." Id. at 147-48.

Finding that an employee has commented on a matter of public importance, however, does not end the inquiry. An employee's right to comment on matters of public importance is not absolute. While employees have a right to make known their public views, the government has a legitimate purpose "in promoting efficiency and integrity in the discharge of official duties, and [in] maintain[ing] proper discipline in the public service." Id. at 150-51 (quoting Ex Parte Curtis, 106 U.S. 371, 373, 27 L. Ed. 232, 1 S. Ct. 381 (1882)). As the Pickering Court noted:

It cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, 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.

This circuit, in Egger v. Phillips, 710 F.2d 292 (7th Cir.) (en banc), cert. denied, 464 U.S. 918, 78 L. Ed. 2d 262, 104 S. Ct. 284 (1983), identified certain needs of governmental employers that courts should weigh in balancing individual and state rights:

1) the need to maintain discipline or harmony among co-workers; 2) the need for confidentiality; 3) the need to curtail conduct which impedes the [employee's] proper and competent performance of his daily duties; and 4) the need to encourage a close and personal relationship between the employee and his superiors where that relationship calls for loyalty and confidence.

710 F.2d at 319 (quoting Clark v. Holmes, 474 F.2d 928, 931 (7th Cir. 1972), cert. denied, 411 U.S. 972, 93 S. Ct. 2148, 36 L. Ed. 2d 695 (1973)).

Applying these various standards to the instant case, defendants argue that Greenberg's statements were not speech but were merely the expression of "professional disagreements with his supervisors over the handling of specific cases." Appellants' Brief at 23. Defendants note that most of Greenberg's statements were made internally within the office and to his supervisors. Because most of the statements involved confidential cases, defendants claim, they were not matters of general public knowledge and hence not matters of public concern.

We disagree and instead concur with the district court that, taken as a whole, Greenberg's comments were not self-serving statements on private affairs, such as were Connick's, but were instead comments designed to right injustices Greenberg saw in the handling of the office's primary responsibilities. Greenberg's comments attempted to inform his supervisors and certain members of the public that children's physical and mental health and even their lives were being threatened. The comments described in the record attempted to show, for example, that court orders were being ignored, that children were being denied essential medical care, and that, in order to save expense, children were being returned to unfit families. The DCFS has an exceptionally important public responsibility--protecting the state's children. As such, we cannot conclude that comments that publicize neglect of this responsibility are not also of exceptional public importance. Nor does it matter that some of plaintiff's conversations were private. These, too, were intended by Greenberg to improve children's care. And, as the Supreme Court concluded in Givhan v. Western Line Consolidated School District, 439 U.S. 410, 414, 58 L. Ed. 2d 619, 99 S. Ct. 693 (1979), "A public employee [does not forfeit] his protection against governmental abridgement of freedom of speech if he decides to express his views privately rather than publicly."

We also agree with the district court that the government's interest in efficiency in this case does not outweigh the plaintiff's right to speak. The need for discipline and harmony is not as great in the case of individual social workers who have separate charges and responsibilities as it is part of a "quasi-military" team where esprit de-corps and coordinated effort are essential. Compare Egger v. Phillips, 710 F.2d at 319 ("Mutual trust and respect among agents and between agents and supervisory personnel are particularly important in law enforcement. The need for confidentiality cannot be gainsaid. And given the high stakes involved--sometimes life and death decisions are made--the risks of disharmony can be grave."). While confidentiality is important, Greenberg does not appear to have breached his obligation to protect the identity of the individual children about whom he was concerned. To the extent that his role as critic and gadfly impeded his office performance, we believe this negative aspect was offset by the importance his comments had in alerting the courts and state DCFS officials that their orders were being subverted or ignored. Similarly, supervisors who are criticized may always complaint that such commentary is injuring close staff relations, but that, by itself, should not be enough to stifle such criticism. We believe the question before us is close because Greenberg did have an adverse effect on office harmony and did not always proceed in the least disruptive fashion. Nonetheless, we see no reason to disturb the district court's evaluation of the balance in favor of the right to speak.


Defendants' second argument is that they are protected from liability under the doctrine of qualified immunity. Under this doctrine, "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Davis v. Scherer, 468 U.S. 183, 194, 82 L. Ed. 2d 139, 104 S. Ct. 3012 (1984); Coleman v. Frantz, 754 F.2d 719, 725 (7th Cir. 1985). 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." Harlow, 457 U.S. at 818. The test for qualified ...

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