The opinion of the court was delivered by: ALESIA
JAMES H. ALESIA, UNITED STATES DISTRICT JUDGE
The plaintiff, Kay Thompson ("Thompson"), has brought this action against the defendants, the Board of Education of the City of Chicago ("the Board"), Manford Byrd, Jr. ("Byrd"), and Norman Silber ("Silber"), pursuant to 42 U.S.C. § 1983. In her complaint, as amended, Thompson, a Chicago public school teacher and librarian, alleges that the defendants, while acting under color of state law, violated her right of free speech under the First and Fourteenth Amendments to the United States Constitution by transferring her to another school and by denying her "selected status" in retaliation for making remarks which were published in an article appearing in a weekly Chicago newspaper. As a result, Thompson seeks declaratory and injunctive relief, as well as damages.
This matter now comes before the Court for a final disposition on the merits following a five-day bench trial.
After hearing testimony, examining the credible evidence of record, and reviewing the applicable law, we issue Thompson a declaratory judgment and a permanent injunction. We also award her $ 15,000.00 in compensatory damages against defendant Board and $ 15,000.00 in compensatory damages against defendant Byrd, in his official capacity only. We set forth the facts as we find them to be and outline our reasons below.
Thompson is a teacher and librarian at Roberto Clemente Academy High School ("Clemente"), a public high school operated by the Board. Thompson has been employed by the Board as a librarian at Clemente since 1974, the school's first year of operation. She holds a Bachelor's Degree in History from Roosevelt University, a Master's Degree in Library Science from Rosary College, and a Master's Degree in Guidance and Counseling from Northeastern Illinois University. During her thirteen years at Clemente, Thompson has consistently received a "superior" rating, the highest rating available, on her employment evaluations. She has never been the subject of any administrative disciplinary proceeding.
The Board is a body politic and corporate charged by statute with operating the public schools of the City of Chicago. Byrd is the General Superintendent of the Chicago public schools. In that capacity, Byrd makes the final decisions regarding personnel matters in all of the schools operated by the Board, subject to Board approval. Byrd's actions constitute the official practices and policies of the Board. Silber is the Superintendent of District 31, an administrative division of the Board. Clemente is located within the boundaries of District 31. As Superintendent of District 31, Silber has authority over personnel decisions within the district, subject to Byrd's approval. In this case, Thompson challenges two of the personnel decisions made by the defendants: the decision to involuntarily transfer her to Carl Schurz High School and the decision to deny her "selected status" at Clemente.
Decision to Transfer Thompson
In October, 1987, in the wake of a Chicago teachers' strike, Elizabeth Blanchard, a journalist, contacted Thompson and two of her fellow teachers. Blanchard requested an interview with the three teachers in order to obtain their perspective on teaching conditions and the quality of education in an inner-city high school.
Thompson and her two fellow teachers consented to an interview and met with Blanchard on two subsequent occasions. The first interview occurred at Blanchard's home in Evanston. During that interview, the teachers discussed a variety of topics, including lack of administrative and Board support, lack of parental involvement at Clemente, low reading levels, high drop-out rates, and numerous other social problems perceived by them to affect student education within the Clemente community. The second interview occurred approximately three weeks later, after school had adjourned for the day, in Clemente's library. During this second interview, the teachers concentrated on the positive aspects of teaching and some of the success stories that had emanated from Clemente. Blanchard conducted both interviews in the form of an informal question and answer session.
After these interviews occurred, but before Blanchard submitted her finished product for publication, Blanchard showed Thompson a draft of the article she intended to submit. Thompson reviewed the draft, expressing her disappointment to Blanchard over the format and content of the draft. Specifically, Thompson noted that the draft did not appear in traditional article format, but, rather, read like a transcript. Additionally, Thompson pointed out that the draft painted a rather lopsided portrait of the matters addressed by the teachers because it omitted many of the success stories and positive aspects of teaching discussed by the three teachers during their second interview with Blanchard. Although Blanchard listened to Thompson's comments on the draft, Blanchard did not afford Thompson the opportunity to modify the draft.
Edited portions of the teachers' interviews appeared in the January 22, 1988 issue of the Reader, a weekly Chicago newspaper, under the caption "What's It Like To Teach In An Inner-City High School? Listen In: Three Teachers Talking" ("the Reader article"). The Reader article summarized the comments of the teachers, including Thompson, on a variety of topics related to the general conditions in the Chicago public schools and the conditions at one particular high school in a largely Hispanic area. The topics covered in the Reader article included teacher "burnout," lack of administrative and Board support, teen pregnancy, AIDS, gangs, high drop-out rates, low reading levels, lack of parental support and involvement, shortcomings of the bilingual program, incest, drugs, student attitudes, and other social problems perceived within the community. The article also briefly mentioned a few of the "success stories" and some of the positive aspects of teaching.
When it was published, the Reader article did not identify any of the three teachers by name, nor did it identify Clemente as the high school at which they taught. Instead, the Reader article described the positions held by each of the three teachers and assigned each of them a pseudonym. Thompson's pseudonym was "Meg," who was described as a 50-year old librarian.
Despite the use of this pseudonym, shortly after publication and distribution of the Reader article, certain individuals either affiliated with Clemente or residing in the surrounding community surmised that Thompson was "Meg" and that the high school described in the article was Clemente. As circulation of the article increased, certain comments made by the three teachers in the Reader article aroused the wrath of a small, but very vocal, band of individuals within the community. This small band of individuals expressed their outrage over certain comments in the article which they perceived to be insulting and offensive to the Hispanic community. Nevertheless, other members of the Clemente faculty and the Clemente community expressed their unequivocal support for Thompson.
During the next two months, in March and April of 1988, at least two faculty meetings and three community meetings were held, at which the contents of the Reader article were discussed. During the two faculty meetings, those teachers present expressed divergent views about the Reader article. Some teachers expressed support for Thompson and her fellow teachers; others did not. Those who did not consisted primarily of a handful of teachers assigned to the Clemente bilingual education program, which had been the subject of some critical remarks in the Reader article.
Prior to the faculty meetings, this small group of teachers who took offense at the remarks in the Reader article had formed an organization they dubbed the "Ad Hoc Committee of Concerned Clemente Teachers." Some of the teachers who comprised this ad hoc committee also actively participated in the three community meetings at which the Reader article was discussed. They circulated copies of the Reader article within the Clemente community and recruited community members to attend the meetings and to launch a campaign to demand removal of the three teachers.
All three of the community meetings were led by Mirta Ramirez, the vice-president and acting president of the Clemente local school improvement council, an advisory body. Two of the three community meetings were previously scheduled hearings on the school budget, at which the conversation among the attendees turned from the topics listed on the agenda to the topic of community sentiment over the Reader article. During the two budget hearings, the same core group of bilingual teachers, along with Ramirez, demanded the removal of Thompson and her fellow teachers. Although Silber listened to their demands, he did not promise to take any action to remove the three teachers during either of these two meetings.
During the time which elapsed between the second and third community meetings, Silber and two other administrators met individually with each of the three teachers. On April 18, 1988, without any advance notice to Thompson, Silber summoned her to a meeting. Aside from Silber and Thompson, Arthur Tarvardian, Silber's assistant, and Jesus Sosa, Clemente's principal, were present. During this meeting, Silber made several remarks to Thompson regarding her participation in the Reader article. First, Silber told Thompson that if he were a private employer, he could fire her. Then, Silber stated that he had the power to transfer Thompson to another school. Finally, Silber asked Thompson what she thought he should do about the situation and Thompson facetiously responded that he should give her a raise. At the conclusion of this meeting, Tarvardian asked to speak privately with Thompson. During this private conversation, Tarvardian essentially told Thompson that she could fight the situation and win. Thompson interpreted Tarvardian's remarks to mean that he did not agree with Silber and Sosa as to how the situation should be handled.
Several days later, on April 21, 1988, Silber, Tarvardian, and Sosa attended the third community meeting, which was held at the Trina Davila Center within the Clemente community. Ramirez had invited Silber to attend the meeting, threatening to hold a press conference in the event that he failed to attend. Ramirez, one of Thompson's most vocal opponents, acted as the moderator of the meeting. Angel Quinones, one of the members of the "Ad Hoc Committee of Concerned Clemente Teachers," served as the translator at the meeting. He "summarized" in Spanish the contents of the Reader article for those Spanish-speaking individuals who had not read it. The majority of those present at the meeting again demanded the immediate removal of the three teachers. In response, Silber advised the group that it was not within his jurisdiction to fire the teachers. Silber further stated that although he had the power to transfer the three teachers, he refused to do so in late April because he did not want to disrupt the remainder of the school year. Without consulting any of the three teachers or their fellow faculty members, or conducting any further investigation, however, Silber did promise the group that he would remove Thompson and the other two teachers from Clemente prior to the opening of the 1988-89 school year. Silber made this promise in exchange for the group's promise to refrain from picketing or boycotting and to allow the school year to end peacefully.
Silber did not inform Thompson of his decision to transfer her until June 14, 1988. On that date, Silber, Tarvardian, Thompson, her two fellow teachers, and Victor Gonzalez, the union field representative, met in Silber's office. Silber then advised Thompson that he intended to transfer her to Carl Schurz High School before the opening of the next academic year because he thought she had lost her effectiveness at Clemente. Unlike her two fellow teachers, Thompson was offered only one "choice": to transfer to Carl Schurz High School. Thompson regarded the transfer as a punitive measure.
Shortly after receiving the personnel action notice, Thompson filed this lawsuit. At her request, on September 2, 1988, this Court intervened and issued a temporary restraining order preventing the defendants from transferring her to Carl Schurz High School. During the period of time between the publication of the Reader article and the issuance of the temporary restraining order, no actual disruption occurred at Clemente. No student or faculty member ever refused to use the library as a result of Thompson's continued presence and Thompson continued to discharge her duties as efficiently as she always had done. Even after publication of the Reader article, Sosa rated Thompson "superior."
Several weeks after the issuance of the temporary restraining order, on September 21, 1988, the Board issued another personnel action notice to Thompson. This notice directed Thompson to disregard the previous staffing notice of August 10, 1988 because it "was sent in error."
Decision To Deny Thompson "Selected Status "
Pursuant to the terms of a consent decree entered into between the Board and the Justice Department to foster system-wide desegregation, the Board has designated certain schools, including Clemente, as "academy" high schools.
When a school is designated as an "academy," all teachers at the school (except assistant principals and counselors) receive an "interim" or temporary appointment. "Interim status," as contrasted with "selected status," provides a teacher with less protection from removal, replacement, or transfer from a particular school. A teacher remains on "interim status" unless he or she is "selected" to the staff by the principal of the academy.
The decision to "select" staff initially rests with the principal of the academy. A principal, however, may only recommend a candidate for "selection"; Byrd has the final authority over decisions to terminate "interim" appointments, subject to Board approval. In the event a principal decides to "select" staff for a particular position, he must advertise the position in the Chicago Public Schools Personnel Bulletin. Under Section 42-4 of the collective bargaining agreement between the Board and the Chicago Teachers Union, "selection" must be "on the basis of specific, articulated criteria which are published, and which relate to the requirements of the position, the academic and professional background and the other relevant experience of the applicants which relate to the requirements of the position." These specific criteria are commonly referred to as "preference."
On April 18, 1988, approximately three months after publication of the Reader article, Sosa advertised that he would be "selecting" staff for all three librarian positions at Clemente. The advertisement indicated that preference would be given to those applicants who had a Master's Degree, training or experience in individualized instruction, individual and group-diagnostic evaluation and computer-assisted instruction, and a bilingual endorsement in Spanish.
In addition, the terms of the collective bargaining agreement required Sosa to accord preference to incumbents when choosing between two equally qualified candidates.
Thompson applied for one of the three "selected" positions, as did others. After receiving the applications, Sosa decided to interview six candidates. The candidates included all three of Clemente's incumbent librarians: Anne Markey, the head librarian, John Yonkoff, an assistant librarian, and Thompson. The remaining three candidates held librarian positions at other Chicago public schools.
Sosa conducted interviews in May and June of 1988. For each incumbent candidate, the interview panel consisted of Sosa, one of his four assistant principals (on a rotating basis), and Ramirez, if she chose to participate. For each of the outside candidates, the composition of the panel remained unchanged, except for the addition of Markey, the head librarian. At the conclusion of each interview, each interviewer typically evaluated the candidate using an "Interview Record Sheet," which specified twelve different criteria on which the candidate would be judged. If completed in its entirety, for each criterion, the candidate received a numerical rating on a scale from 1 (the highest) to 5 (the lowest). Each interviewer then added the numerical ratings given and computed a composite score.
Thompson interviewed for the "selected" position on May 18, 1988. Her interview panel consisted of Sosa, Marge Ackerman, one of Sosa's assistant principals, and Ramirez, one of Thompson's most outspoken critics. Thompson's interview lasted less than five minutes. At the conclusion of Thompson's interview, Sosa and Ackerman evaluated Thompson by completing their respective "Interview Record Sheets." Ramirez, however, failed to complete her "Interview Record Sheet," merely writing at the bottom "no comment." In addition, though Ramirez customarily made oral comments after each interview, she declined to do so after Thompson's interview.
By the time Thompson's interview was held, Silber had already promised Ramirez and other vocal opponents of Thompson that he would transfer Thompson from Clemente prior to the opening of the next school year. Sosa had concurred in Silber's decision.
Of the six candidates interviewed by Sosa, only Markey and Thompson had received a "superior" rating on their most recent employment evaluations. Markey and Thompson had similar library training and experience, though Thompson held two Master's Degrees (as compared to Markey's one) and Thompson's computer skills surpassed Markey's computer skills. None of the six candidates, including Markey, had a bilingual endorsement in Spanish. Although Markey received "selected status," Thompson did not. In a memorandum dated June 23, 1988, Sosa formally notified Thompson of his recommendation to retain her on "interim status" at Clemente. Shortly thereafter, Byrd and the Board expressly ratified Sosa's recommendation to deny Thompson "selected status." Thompson claims that both of these personnel decisions violated her First Amendment rights.
II. FIRST AMENDMENT ANALYSIS
In deciding whether a public employee's First Amendment rights have been abridged by her employer, a three-step analysis is required. See Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); Knapp v. Whitaker, 757 F.2d 827, 845 (7th Cir.), cert. denied, 474 U.S. 803, 88 L. Ed. 2d 29, 106 S. Ct. 36 (1985). The court must determine: (1) whether, as a threshold matter, the public employee has carried her burden of showing that she engaged in constitutionally protected activity; (2) if so, whether the protected activity was a substantial or motivating factor in the employer's actions; and (3) whether the employer has defeated the public employee's claim by demonstrating that it would have taken the same action in the absence of the protected conduct. See Mt. Healthy, 429 U.S. at 287. We examine each of these requirements in turn.
A. Constitutionally Protected Activity
In Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), the Supreme Court established a two-pronged balancing test to be used in determining whether a public school teacher's First Amendment rights have been violated. First, the court must decide whether the teacher's speech addressed "matters of public concern." Pickering, 391 U.S. at 568. If so, then the court must "arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568.
1. " Matters of Public Concern "
Whether an employee's speech involves "matters of public concern" must be determined by "the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-48, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). For purposes of making this determination, the "inappropriate or controversial character of a statement is irrelevant." Rankin v. McPherson, 483 U.S. 378, 107 S. Ct. 2891, 2898, 97 L. Ed. 2d 315 (1987). Indeed, discussion on matters of public concern may "'well include vehement, caustic, and sometimes unpleasantly sharp attacks . . .'" Rankin, 107 S. Ct. at 2898 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964)). Thus, the mere fact that some listeners may take umbrage at certain remarks does not remove them from the realm of "public concern."
Applying these standards to this case, the remarks made by Thompson certainly fall under the rubric of "public concern." The content of Thompson's remarks encompassed a wide variety of topics at the forefront of contemporary public debate: the quality of education in public schools; the teaching and learning conditions in public schools; the ramifications of certain social, economic, and environmental factors on the educational process; and the numerous problems that plague the educational system. Relayed to the public in the form of a featured news article, Thompson's remarks presented the issues from a teacher's perspective. Publication of the remarks followed a bitter teachers' strike in this city and coincided with an ongoing debate throughout this city and the country over education of the young. Our consideration of the content, form, and context of Thompson's remarks leads us inescapably to the conclusion that they addressed matters of vital public concern.
The record abounds with evidence supporting this conclusion. First, Byrd and Sosa, both school administrators, conceded that the quality of education and conditions in the Chicago public schools constitute matters of vital public concern.
Aside from these admissions, Thompson presented the testimony of Michael Lenehan, a writer and managing editor of the Reader with substantial editorial and media experience. Lenehan testified that the Reader article contributed to the "ongoing debate" over the public education crisis not only in Chicago, but throughout the nation. He confirmed that because of the public significance of these matters, the Reader itself frequently published articles regarding education in public schools at the rate of two to three major feature articles per year and three to four smaller articles per year. Lenehan also commented on the particular pertinence of Thompson's remarks against the backdrop of the teachers' strike which immediately preceded her interview. According to Lenehan's testimony, this backdrop, together with the appeal of relating the issues directly from a teacher's perspective, prompted Lenehan to accept the article for publication.
Finally, Thompson produced a number of publications of national and local stature, including Newsweek, New Expression, The Chicago Tribune, and Chicago Times Magazine. Like the Reader article, most of these publications lament the many weaknesses of the Chicago public school system; they do not portray the schools in a positive or flattering light. The Newsweek article, entitled "A School System Near Meltdown," describes a "bloated bureaucracy," "a powerful union," and numerous "wretched social ills" (limited English proficiency, poverty, high drop-out rates, and low teachers' salaries). The Chicago Tribune booklet labels Chicago's public schools the "worst in America."
Of particular note among these publications, however, is the final one, the Chicago Times Magazine article. Entitled "Bad Boys," this article, in a format virtually identical to that of the Reader article, summarizes the comments of five individuals on gangs, drugs, and violence among Chicago's youth, topics also covered in the Reader article. Ironically, Sosa, Clemente's principal, is one of the five individuals. His participation in the article, though it covered topics which can be characterized as distasteful and unpleasant, and it included remarks which some might deem derogatory or offensive, certainly demonstrates that he believed that the level of public concern on these issues warranted comment.
So did Thompson. This is not a case where Thompson sought to air a personal grievance in a public forum. Cf. Connick, 461 U.S. at 153-54 (public employee's circulation of questionnaire "followed upon the heels" of transfer notice); Hesse v. Bd. of Educ., 848 F.2d 748, 751 (7th Cir. 1988), cert. denied, 489 U.S. 1015, 103 L. Ed. 2d 190, 109 S. Ct. 1128, 57 U.S.L.W. 3551 (1989) (all but one of public high school teacher's memoranda dealt with "matters of personal interest"); Linhart v. Glatfelter, 771 F.2d 1004, 1010 (public employee's thoughts regarding another public employee's job performance were admittedly his "own personal opinion and concern"). On the contrary, Thompson testified that she spoke out as a concerned teacher and citizen motivated by a genuine desire to alert the public to the crisis in the Chicago public schools. Frankly, we do not see how anyone could contest that the remarks in the Reader article constitute a legitimate topic of vital public concern.
2. The Pickering Balancing Test
In Pickering, the Court held that the Board of Education's dismissal of a high school teacher for openly criticizing the Board's allocation of school funds violated the teacher's First Amendment rights. Pickering, 391 U.S. at 574. The Court in Pickering recognized, however, that a public employee's First Amendment rights are not absolute; a balance must be struck. Pickering, 391 U.S. at 568. Since Pickering was decided, the Supreme Court has reaffirmed the need to balance the competing interests of the public employee and the public employer in the First Amendment context. See Connick, 461 U.S. at 142; Rankin, 107 S. Ct. at 2896. In Rankin, the Supreme Court recently noted that "this balancing is necessary in order to accommodate the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment." Rankin, 107 S. Ct. at 2896.
Although the Supreme Court has declined to formulate a precise equation for balancing these competing interests, it has offered some general factors for consideration:
(a) whether the speech impaired discipline by superiors or harmony among co-workers;
(b) whether the speech had a detrimental impact on close working relationships for which personal loyalty and confidence are necessary;
(c) whether the speech impeded the performance of the speaker's duties; and
(d) whether the speech interfered with the regular operation of the enterprise;
Rankin, 107 S. Ct. at 2899 (citing Pickering, 391 U.S. 563 at 570-73). These factors primarily focus on the "effective functioning of the public employer's enterprise." Rankin, 107 S. Ct. at 2899. Our examination of the credible evidence of record reveals that the scales tip decidedly in favor of Thompson on all four factors.
a. Discipline and Harmony
By all accounts, Thompson complied with the Board's policy requiring interviews to take place "after hours"; therefore, we cannot see how her participation in the Reader article could have undermined discipline at Clemente. Based on our review of the evidence, no school official ever testified that Thompson's remarks affected the disciplinary process at Clemente.
With respect to harmony among the Clemente faculty, we acknowledge that a handful of mostly bilingual faculty members, including Quinones, complained to Sosa about Thompson's remarks. According to Sosa's testimony, however, those expressing disagreement with Thompson's remarks numbered only five or six. At a public high school the size of Clemente, disagreement or negative sentiments expressed by five or six teachers, out of a teaching faculty of approximately 170, and a total staff of approximately 240 (Sosa's figures), do not rise to a level which could justify a finding of "impaired harmony among co-workers." We are not persuaded that the disagreement, or even outrage, of such a relative few would ever outweigh a fellow faculty member's right to speak out on matters of public concern.
b. Close Working Relationships
Anne Markey, the head librarian at Clemente and Thompson's immediate supervisor, testified that the publication of the Reader article did not alter Thompson's close working relationships with Markey, other Clemente faculty members, or Clemente students in any way. Markey described Thompson's working relationship with Clemente students -- both before and after publication of the Reader article -- as "excellent." Similarly, Markey characterized Thompson's working relationship with herself and other Clemente faculty members -- both before and after publication of the Reader article -- as "very good." Finally, Markey confirmed that no student or faculty member had ever refused to use the Clemente library as a result of Thompson's presence.
Neither Sosa nor any other school official disputed Markey's testimony, which was based on fifteen years of working side-by-side with Thompson on a daily basis. Even Quinones, the only Clemente faculty member who testified to being offended by the Reader article, admitted that during the course of performing his job he "almost never" had occasion to go to the library and "had very little reason" even to see Thompson during the day.
While Thompson's remarks may have detrimentally affected her personal relationships with Quinones and a few other fellow faculty members, we would expect that even under the best circumstances, most public high schools with large faculties function smoothly in spite of strained personal relationships and personality clashes among some faculty members. In any event, that is not an element that factors into our equation; here, our only concern is whether Thompson's speech detrimentally affected any of her close working relationships. As noted, the record is barren of any such evidence.
Based upon her fifteen years of experience as Thompson's immediate supervisor on a day-to-day basis, Markey's assessment of Thompson's job performance was not only the most knowledgeable, but also the most reliable. Markey's testimony consisted of nothing but "kudos" and accolades for Thompson. Markey described Thompson as an "excellent librarian" and a "very gifted," "creative," and "enthusiastic", individual who took a genuine interest in students as people, as well as in their endeavors. While Markey candidly acknowledged that during her fifteen-year working relationship with Thompson, she had occasionally criticized Thompson, Markey essentially described those occasions as rare and the reasons as trivial. Most significantly, Markey testified that the events which followed the publication of the Reader article in no way affected Thompson's performance of her job. Indeed, Markey unequivocally expressed her desire to maintain Thompson on the staff of Clemente's library because of her many valuable contributions.
Silber and Sosa agreed with Markey's assessment of Thompson as an excellent and dedicated librarian. Yet, both of them also testified, without citing any specific reasons or examples, that they thought Thompson had "lost her effectiveness" after the publication of the Reader article. Neither of them, however, ever consulted Markey, who was certainly in the best position to know, or any other faculty member, to substantiate those general feelings.
Sosa's testimony on this issue was certainly suspect. If he truly believed that Thompson had lost her effectiveness after publication of the Reader article, his subsequent actions did not bear that out. Five months after the publication of the Reader article, Sosa gave Thompson a "superior" rating on her employment evaluation, a rating she had received for thirteen consecutive years at Clemente. While Sosa stated that he gave "superior" ratings "only to those who deserve them," he admitted on cross-examination that his actions in rating Thompson "superior" were not consistent with his feelings that she had lost her effectiveness. Frankly, we think Sosa's actions (in rating Thompson "superior") spoke louder than his words (his belated contention that he felt that Thompson had lost her effectiveness at Clemente).
Silber's testimony on this issue was equally suspect. Silber candidly admitted that his feelings along these same lines were predicated on discussions with Ramirez, one of Thompson's most outspoken critics, and "a few others," whom he could not name.
Like Sosa, Silber could cite no specific instances of deficient performance by Thompson.
For obvious reasons, on this issue, we credit Markey's testimony and discredit the testimony of Silber and Sosa to the extent that it conflicted with Markey's testimony. Thompson's unblemished employment record corroborated Markey's testimony. Accordingly, we specifically find that Thompson's remarks in the Reader article in no way impeded her job performance. This factor, then, also weighs overwhelmingly in favor of Thompson.
d. Operation of the Enterprise
The defendants conceded that prior to the decision to transfer Thompson, there had been no actual disruption of the educational process at Clemente. Hence, at least up until the time Thompson was transferred, Clemente functioned as usual. Indeed, both Markey and Sosa verified that even to date, no student or faculty member has ever refused to use the Clemente library as a result of Thompson's continued presence.
Nevertheless, the defendants argued that their decision to transfer Thompson was justified based on the judgment of school administrators that there was "nascent disruption" or a "potential for disruption" at Clemente. However, neither the credible evidence adduced at trial, nor a proper analysis of the applicable law, supports the defendants' position.
We first examine the evidence elicited at trial to support the defendants' claims of "nascent" or "potential" disruption. In their trial brief, defendants contended that "many parents, members of the community and other teachers perceived plaintiff's comments as racist and inflammatory." The defendants persisted in this theory at trial, presenting the testimony of Silber and Sosa, school administrators, who essentially confirmed that some individuals in the community had expressed outrage over the remarks contained in the Reader article. Silber and Sosa testified about the three community meetings during which certain individuals had demanded removal of the three teachers. Sosa testified about the two faculty meetings during which some faculty members criticized the three teachers.
Both school administrators appeared to place great emphasis on the final meeting held at the Trina Davila Center and led by Ramirez. Neither Silber nor Sosa had any idea who had been invited to attend this meeting or who had been excluded from it.
Moreover, among the three witnesses (Silber, Sosa, and Quinones) who testified about this meeting, there was not even a consensus as to approximately how many people attended the meeting. The estimates ranged from a low of 40 people (Sosa's estimate) to a high of 100 people (Silber's estimate) or 150 people (Quinones' estimate). Despite the fact that Silber's and Sosa's estimates as to the size of the crowd differed substantially, they both agreed that "a majority" of the people present demanded the removal of Thompson and her two fellow teachers. They also agreed that these individuals' repeated demands for removal of the three teachers and their threats to picket or boycott Clemente in the event these demands went unfulfilled formed the basis for the administration's conclusion that there was a "potential for disruption."
Significantly, when pressed to specifically identify those individuals at these meetings who repeatedly complained about Thompson's remarks and demanded her removal, Silber and Sosa consistently identified the same, small, basic, core group of individuals: a handful of faculty members from the bilingual program at Clemente and Ramirez. Apparently sensing this, Silber and Sosa attempted to magnify the significance of these individuals. In their testimony, Silber and Sosa both implied that Ramirez, who was vice-president and acting president of the local school improvement council, acted as a mouthpiece for other members of the community. If that were so (and we believe that credible evidence of record suggests that it was not so), the defendants never substantiated, nor even attempted to substantiate, that Ramirez's views represented the views of others in the community, much less a consensus of community views. For the record, we note Ramirez's conspicuous absence at trial.
Of course, the conspicuous absence of testimony substantiating the defendants' claims was the hallmark of this trial. Of approximately 2,900 students currently attending Clemente, the defendants failed to present even one student to testify regarding this threatened disruption. Nor did the defendants present even one Clemente parent to provide similar testimony. Additionally, of approximately 170 members of the teaching faculty at Clemente and 240 total staff members at Clemente, defendants produced only one faculty member, Angel Quinones, to attest to this "nascent disruption."
Quinones, who holds a teaching certificate with a bilingual endorsement in Spanish, does not currently teach at Clemente, but serves as an attendance officer there. He resides in Des Plaines, a suburb of Chicago. His testimony consisted primarily of recounting his own emotional reaction to the remarks contained in the Reader article. He described feeling "deeply hurt, insulted, and outraged" after reading the Reader article. He characterized Thompson's comments in the Reader article as insensitive, mocking, and lacking in compassion. Nevertheless, Quinones admitted that at least some of the comments made in the Reader article were true.
Aside from testifying about his own thoughts and opinions on the Reader article, Quinones testified that he, another ex-Clemente faculty member (who, incidentally, now works for Silber), and a few other teachers (all except one from the bilingual program) formed the "Ad Hoc Committee of Concerned Clemente Teachers." According to Quinones, the individuals who formed this group did so to express their offense over the comments made in the Reader article. The members of this group may have expressed their offense, as they were perfectly entitled to do; yet, by Sosa's own admission, neither they nor any other staff members ever threatened to disrupt the educational process at Clemente. In addition, by Quinones' own admission, a substantial number of Clemente faculty members expressed their support for Thompson.
Finally, Quinones testified about his perception of the events at the Trina Davila community meeting. While his account of the meeting essentially corroborated Silber's account, Quinones availed himself of every opportunity to embellish and dramatize the extent to which those present at the meeting expressed hostile sentiments toward the three teachers. His entire demeanor betrayed his significantly biased perceptions, and his testimony weakened, rather than strengthened, the defendants' already tenuous claims of "nascent" or "potential" disruption.
The defendants presented no other testimony to lend support to their claims of "nascent" or "potential" disruption. Even Byrd, who, with the Board's approval, made the final decisions on transfer and "selection," testified that he never even spoke to Silber or Sosa about the situation, much less conducted an independent investigation of the matter. Instead, Byrd merely relied on secondhand information received from the Board's attorneys, who, in turn, received their information from Silber. Though empowered to appoint a crisis intervention team to investigate the situation, Byrd did not do so. This is telling evidence of the absence of any such disruption. We suspect that if the school administrators' fears of potential disruption were as strong then as they would have us believe now, those administrators would have applied pressure to have a crisis intervention team appointed. In sum, neither this nor the other testimony in the record supports a finding of "nascent" or "potential" disruption.
Even if it could, we do not believe that such a finding would justify the defendants' personnel decisions in this case. Seizing upon the language in Connick, the defendants asserted that they were not required to wait for "events to unfold" before taking action. See Connick, 461 U.S. at 152. The Court in Connick did indicate that when a public employee's speech merely "touches upon" a matter of public concern, it might not always be necessary "for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action." Connick, 461 U.S. at 152. In the following sentence, however, the Court went on to say that "a stronger showing" would be required where, as here, the public employee's speech "more substantially involved" matters of public concern. Connick, 461 U.S. at 152. Following this directive, other courts have usually declined to find that a public employer's claims of "potential disruption" are sufficient to outweigh a public employee's right to speak out on matters of public concern. See, e.g., Conner v. Reinhard, 847 F.2d 384, 390-91 (7th Cir.), cert. denied, 488 U.S. 856, 109 S. Ct. 147, 102 L. Ed. 2d 118 (1988) (declining to do so where public employer failed to provide "any evidence of actual harmful effects" or where interference with public employee's duties was "de minimis or merely speculative"); Zamboni v. Stamler, 847 F.2d 73, 78 (3rd Cir.), cert. denied, 488 U.S. 899, 109 S. Ct. 245, 102 L. Ed. 2d 233 (1988) (flatly rejecting the proposition that a finding of "potential" disruption could be sufficient to outweigh public employee's interests in speaking out on matters of significant public concern and, instead, holding that a showing of actual disruption is required).
The other cases cited by the defendants in support of their "potential disruption" argument are clearly inapposite. In Jungels v. Pierce, 825 F.2d 1127, 1132 (7th Cir. 1987), the Seventh Circuit reversed the district court's order dismissing a public employee's First Amendment claim because of the absence of any evidence, much less a "substantial showing," of "disruption" based on hostile community sentiments. In Raposa v. Meade School Dist., 790 F.2d 1349, 1355 (8th Cir. 1986), the court upheld the transfer of a school teacher employed at a rural school attended by children from twelve families, where nine out of the twelve families persisted in demanding her removal. Thus, on its facts, Raposa is clearly distinguishable. Finally, in Saye v. St. Vrain Valley School Dist., 785 F.2d 862 (10th Cir. 1986), and Gregory v. Durham County Board of Education, 591 F. Supp. 145, 153 (M.D. N.C. 1984), the speech at issue did not directly address matters of vital public concern, as Thompson's speech does here.
Accordingly, after weighing the competing interests of Thompson and the defendants in light of the applicable law, this Court concludes that the scales tip overwhelmingly in Thompson's favor. The defendants have failed to persuade us that their interests in quelling what they perceived to be "nascent" disruption in any way outweighed Thompson's interests as a teacher in speaking out on matters of significant public concern. Thus, we find that Thompson has indisputably carried her burden of establishing that she engaged in constitutionally protected activity.
B. " Substantial" or "Motivating" Factor
Under the Mt. Healthy analysis, Thompson must also demonstrate that her speech was a "substantial" or "motivating" factor in the defendants' decisions to transfer her and to deny her "selected status." See Mt. Healthy, 429 U.S. at 287. The Seventh Circuit has recently ...