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Callaway v. Hafeman

decided: October 27, 1987.


Appeal from the United States District Court for the Western District of Wisconsin. No. 85 C 611S -- John C. Shabaz, Judge.

Bauer, Chief Judge, Posner and Easterbrook, Circuit Judges.

Author: Bauer

BAUER, Chief Judge.

The plaintiff-appellant, Franzetta Callaway, appeals the district court's dismissal of her first amendment complaint on the defendants' motions for summary judgment. For the reasons that follow, we affirm the district court's order granting the defendants' motions.


Until July 1, 1985, plaintiff Franzetta Callaway served the Madison (Wisconsin) Metropolitan School District as an Affirmative Action Officer and as a Human Relations Coordinator.*fn1 In the latter capacity, her supervisor was defendant Herman Moody, Jr., who was the Human Relations Director for the School District. In her capacity as an affirmative action officer, plaintiff reported directly to the School District's superintendent, defendant Donald Hafeman. Plaintiff had held these positions since her initial hiring in November, 1980. Moody assumed his responsibilities as Human Relations Director in July, 1983, although he had previously held other positions with the School District.

Beginning in January, 1983, and intensifying after July 1, 1983, Moody allegedly engaged in sexual harassment of the plaintiff. Such harassment took the form of an attempt to kiss the plaintiff, numerous propositions to meet after work or at out-of-town conferences, and suggestive remarks or conduct. These advances were uninvited and discouraged.

Plaintiff complained of this sexual harassment to defendant Salter in December, 1983, and again in May or June, 1984. She also reported the harassment to defendant Hafeman and defendant Clarence Sherrord, the School District's legal counsel, in June or July, 1984.

Plaintiff's complaints of the sexual harassment by Dr. Moody were oral and informal. She explains that she did not want to make a public issue of the allegations which she viewed as personal and confidential. A performance evaluation of plaintiff prepared in May, 1984 by Moody was, in plaintiff's view, negative in tone and motivated by her reporting of the sexual harassment. Although Moody denied plaintiff's allegations, a meeting was held with Superintendent Hafeman to resolve the grievance. Moody was advised that if such behavior had occurred it should cease, and that the situation between the two would be monitored. Plaintiff was dissatisfied that she was not transferred from under Moody's supervision, although this dissatisfaction was relayed only to her attorney.

Thereafter Moody allegedly subjected the plaintiff to retaliation by creating a hostile work environment. Plaintiff reported this fact to Hafeman, who allegedly did nothing. As late as June, 1985, plaintiff was still attempting to resolve her dispute with Moody privately and informally.

During the period that plaintiff was being subjected to retaliation and before this lawsuit was filed (June, 1984 through June, 1985), a plan to reorganize human relations and affirmative action programs was formulated by Moody, at Hafeman's delegation. Hafeman modified Moody's initial proposal which was submitted in December, 1984, and then presented it to the Board. After additional modifications the plan was implemented in July, 1985. The reorganization resulted in plaintiff being reassigned as an administrative assistant in the Human Relations Department, under Moody. Moody assumed the plaintiff's affirmative action duties while her duties relative to Title IX were assigned to another person. Plaintiff was transferred to an office at Lincoln School, where she was the only administrative staff person present. She considers her new assignment to be a de facto demotion. Plaintiff was openly and publicly critical of the reorganization plan.


The appellant does not allege discrimination based on sex. Rather, she confines her appeal to the issue of whether the first amendment protects a government employee who is allegedly retaliated against for making private complaints of sexual harassment. We begin by recognizing the right of all public employees to engage in free speech and self-expression while participating in political and social affairs. Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983); Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980); Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972); Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967). In Connick, the Court outlined the constitutional underpinnings of the First Amendment's free speech provisions, stating that:

The First Amendment 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' '[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.' Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the ...

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