# Greenberg v. Kmetko > Court of Appeals for the Seventh Circuit · March 9, 1988 · 840 F.2d 467 URL: https://www.frixlaw.com/law-library/cases/8958175 ## Case - **Full name:** Richard Paul GREENBERG v. Thomas KMETKO and Bruce Weflen, Defendants-Appellants Richard Paul GREENBERG, Plaintiff-Cross-Appellant v. Thomas KMETKO and Bruce Weflen, Defendants-Cross-Appellees - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** March 9, 1988 - **Citations:** 840 F.2d 467; 1988 WL 13275 - **Precedential status:** Published - **Opinion:** Dissent by Cudahy - **Judges:** Bauer, Coffey, Cudahy, Cummings, Easterbrook, Fairchild, Flaum, Kanne, Manion, Posner, Ripple, Wood - **Cited by:** 34 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8958175 ## Opinion text CUDAHY, Circuit Judge, with whom FAIRCHILD, Senior Circuit Judge joins, dissenting: The original panel majority opinion in this case appears at 811 F.2d 1057 . I rely on that opinion of the panel majority as a dissent from the en banc opinion here. Despite the drastic shift in tone and inference from that opinion to this one, the results reached by the two opinions are not that much different. Thus, the panel majority concluded that the defendants were not entitled to qualified immunity for statements made outside the work place, but were entitled to such immunity for internal office communications. The panel noted, however, that there was no way of determining whether liability had been assessed based in whole or in part on actions taken by the defendants in response to internal communications. The panel therefore vacated the judgments as to liability and remanded for a new trial on the issue of defendants’ liability for retaliatory action taken in response to communications made by Greenberg outside the office. The en banc majority has now in addition remanded the question of qualified immunity with respect to Greenberg’s comments made outside the office for consideration in light of Anderson v. Creighton, — U.S. -, 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987). The majority contends that, based on Anderson , the district court has erred in not considering the “specific facts” of this case in connection with the issue of qualified immunity. I question whether there exist any heretofore unnoted facts that would entitle defendants to qualified immunity with respect to retaliation for Green-berg’s public comments. This circuit already has indicated that the right of public employees to make public statements (as opposed to statements in the workplace) has been clearly established since 1968. Benson v. Scott, 734 F.2d 1181, 1185-86 (7th Cir.), cert. denied, 469 U.S. 1019 , 105 S.Ct. 435 , 83 L.Ed.2d 361 (1984). In Benson , an employee of the Illinois Department of Revenue claimed that the Illinois Attorney General’s Office retaliated against him after he told the news media and law enforcement agents about selective enforcement and improprieties in court. This court noted that [t]he right of employees to be free from retaliation for their exercise of first amendment rights has been clear since at least 1968, when the Supreme Court decided Pickering v. Board of Education. ... The defendants cannot claim that the law was unclear in 1977, when the events at issue in this case allegedly occurred. Id. at 1185 . Since the majority here has suggested no facts which would distinguish the instant case from the Pickering model, see Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), a remand for consideration in light of Anderson is wholly unnecessary. In Pickering a teacher publicly criticized the school board. Here a social worker publicly criticized a child welfare department. 1 Pickering is thus the most unambiguous notice to public employers of the consequences of retaliation for public comments about matters of public concern (for exam- *477 pie, the policies and practices of public agencies). Most importantly, the case before us involves a simple exercise of first amendment rights — not the esoteric, fact-dependent fourth amendment rights at issue in Anderson v. Creighton. The present issue is in no way fact-dependent, and I can imagine no facts which would take, for example, Greenberg’s remarks to the Children’s Rights Council outside the Pickering pattern of public employees’ having a protected right to criticize government policy in a public forum without retaliation. The en banc majority opinion makes little effort to justify this remand in light of Anderson v. Creighton and to my way of thinking there is no justification for it. In important respects the majority’s errors here appear most blatantly in its statement of the “facts” of the case. The majority has made a studied effort to depict Greenberg as a psychological basket case disrupting for no good reason the wise and benevolent initiatives of the DCFS. In this respect, the majority has disdained its own pronouncement that the evidence be viewed on remand in the light most favorable to Greenberg. The majority has attempted to paint Greenberg as simply inexperienced, untrained, emotionally shattered and as a simple saboteur. It is, of course, not unusual for dissenters to be pictured as mental cases and their objections to the conventional wisdom to be diagnosed, by those charged with maintaining the status quo, as symptoms of derangement. Some societies quiet such objectors by committing them to a mental institution. 2 It does not seem to me the appropriate role of this court to focus upon Greenberg’s “personal problems” to the exclusion of everything else or to conclude that his objections to department policy are the mere ravings of a lunatic. Dissenters and whistleblowers rarely win popularity contests or Dale Carnegie awards. They are frequently irritating and unsettling. These qualities, however, do not necessarily make their views wrong or unhelpful, and the Supreme Court has concluded that it is in the public interest and consonant with the first amendment for them to express opinions on subjects of public concern without fear of retaliation. In describing Greenberg and his clashes with DCFS policy, the majority makes a calculated effort to put Greenberg always in the wrong. We have noted the heavy-handed emphasis upon Greenberg’s alleged mental problems. But there also are attempts to deprive Greenberg of possible credit even when, at least on the face of things, he might have been on the right track. Thus, the majority describes the insistence of the DCFS, over Greenberg’s strenuous objection, that the sick Brian C. be returned to his mother and stepfather, who had resisted having the child back in their home. Within twenty-four hours of his return Brian C. was dead. Quite gratuitously, the majority ascribes this tragedy to the doctors — presumably to make certain that no blame falls on the parents. I do not believe it is our proper task to assign blame. It is possible that the jury felt that Greenberg and not his superiors correctly assessed the appropriate custody for Brian C. The jury awarded Greenberg $150,000 damages. This suggests that they may have believed him a courageous objector to misguided policies rather than an inept mental case merely rubbing his peers and superiors the wrong way. To the extent that the majority’s belabored “facts” are relevant (and I think that few are relevant) their resolution is for the jury and not for us. After he has won a jury verdict, Greenberg is entitled to have the inferences drawn in his favor, not wrenched about to conform to the preconceptions of the majority. For example, the majority has somehow been able to put the blame on Greenberg for the failure to place Richard S. I, when Greenberg’s only role was his inability to convince the boy’s parents to *478 sign a voluntary placement order. This is simply unfair. Rather than continue in this vein, I simply suggest to the interested reader a perusal of the statement of the facts in the original panel opinion at 811 F.2d 1057 . That statement makes no effort to conceal Greenberg’s apparent frailties but, on the other hand, does not strain to demean him. Finally, the majority has ordered a new trial on damages. There is no principled basis for this prescription. Whatever the basis of liability — the public statements or the internal office communications — once it is established that there is liability resulting from the transfer to the Title 20 unit, the damages flow from the transfer not from the making of protected statements as the majority suggests. A properly instructed jury has already determined what the damages were, and no objection has been made to the amount of the damages. I am therefore at a loss to understand how this issue can properly be reexamined. No doubt the result reached by the majority in this respect reflects its view that the damages are “too high.” As I have noted, I think their perceived magnitude reflects primarily the chasm between the evaluation of Greenberg by the jury (which saw and heard him) and his evaluation by the majority. There is no basis in logic, however, for saying that the damages should be any different whether they arose from public statements or private ones. Again the differences in result between the panel opinion and that of the en banc majority here are not monumental. My most emphatic objection is to the tone of the majority opinion which reflects the heavy-handed preemption of the role of the jury by an appellate court. I think this approach is unfitting, and I therefore respectfully dissent. RIPPLE, Circuit Judge, with whom FAIRCHILD, Senior Circuit Judge, joins. I would vacate the order granting rehearing en banc on the ground that it was improvidently entered. See Fed.R.App.P. 35. See generally United States v. Rosciano, 499 F.2d 173 (7th Cir.1974). . For example, Greenberg made public remarks at a meeting of the Children's Rights Council in October of 1975 in which he criticized the department policy of “minimizing services to children.” See supra p. 471. . Interestingly, the “Title 20 Unit” to which Greenberg was transferred had become known as the "monkey cage” and the "punishment unit.” Record at 195, 427-28, 576, 605; Defendants’ Opening Brief at 21. Thus the majority is disingenuous in implying that Greenberg's transfer should not be viewed as retaliatory. See supra p. 474. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8958175. Public record. Not legal advice.