# Joseph L. Donahue v. Patrick Staunton, Individually and as Chicago Area Zone Director

> Court of Appeals for the Seventh Circuit · February 26, 1973 · 471 F.2d 475

URL: https://www.frixlaw.com/law-library/cases/9459029

## Case

- **Full name:** Joseph L. DONAHUE, Plaintiff-Appellee, v. Patrick STAUNTON, Individually and as Chicago Area Zone Director, Et Al., Defendants-Appellants
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** February 26, 1973
- **Citations:** 471 F.2d 475
- **Precedential status:** Published
- **Opinion:** Dissent by Swygert
- **Judges:** Swygert, Hastings, Sprecher
- **Cited by:** 65 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/9459029

## How later opinions describe it (automated extraction)

- recognizing right to money damages under 42 U.S.C. § 1983

## Opinion text

SWYGERT, Chief Judge
(dissenting).
Despite the defendants' arguments, I agree with the court that the plaintiff’s connection with the Manteno State Hospital was tantamount to an employment relationship. Thus, as indicated by Judge Hastings, the crucial question is whether the plaintiff’s constitutional right of freedom of speech was infringed by reason of his termination as chaplain of the hospital. In my judgment the circumstances leading to plaintiff’s discharge legally justified that action and therefore it was error to afford relief under 42 U.S.C. § 1983 .
The premise that public employment may be conditioned upon a surrender of constitutional rights was flatly rejected in Keyishian v. Board of Regents, 385 U.S. 589, 605-606 , 87 S.Ct. 675 , 17 L.Ed.2d 629 (1966); however, the first amendment rights of public employees are not absolute and must yield to accommodation when overriding interests of public policy are at stake. United Public Workers v. Mitchell, 330 U.S. 75, 95 , 67 S.Ct. 556 , 91 L.Ed. 754 (1946). The court concedes as much when it acknowledges that there can be circumstances when a public employee may be discharged for his utterances.
Pickering v. Board of Education etc., 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), does not wipe out all curtailment of a public employee’s right to speak. “[I]t 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.” 391 U.S. at 568 , 88 S.Ct. at 1734 . *484 The Court went on to explain that a balance of competing interests must be struck. “The problem in any case is to arrive at a balance between the interests of the . . . [employee], 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.” Id. at 568 , 88 S.Ct. at 1734 .
I read Pickering to hold that if the functions of a public entity are substantially impeded by an employee’s statements relating to those functions, measures may be taken to regulate such speech even to the point of terminating employment. If that reading is correct, then the following view expressed by the Eighth Circuit in Jenson v. Olson, 353 F.2d 825 (8th Cir. 1965), even though predating Pickering, has continuing vitality: “When his . . . [the employee’s] speech is disruptive of the proper functioning of the public’s business the privilege of governmental employment may be withdrawn without it being said that he was denied his freedom of speech. To hold otherwise would enable governmental employees to practice the rankest form of insubordination and safely hide behind the right of free speech.”
As shown by the majority opinion the plaintiff initially began criticizing the hospital’s operation in 1966. Because of plaintiff’s and others criticism, the then Governor of the State of Illinois requested the Board of Mental Health Commissioners to investigate charges of immorality at the Manteno State Hospital. Five Illinois citizens, including two members of the Chicago Bar, composed the Board. After conducting several days of hearings and interviewing nearly thirty witnesses, the Board issued a lengthy report which included a number of findings and a variety of recommendations.
The report pointed out that the hospital housed over six thousand patients and had in excess of eighteen hundred employees. The Board then referred to the fact that, in line with modern mental health concepts, the old custodial approach “which resulted in the bitterly criticized warehousing of our mentally ill” was being replaced by newer methods so as to permit the institution to be administered as an “open institution.” It was acknowledged that this change had generated a number of administrative problems. The Board then addressed itself to the specific accusation of immorality within the institution. The substance of the report is that the hospital had been doing all it could do to curb “acting-out” sexual behavior among the patients, given the fact that there was a lack of adequate security and supervisory personnel. The Board specifically found the charge untrue that birth control pills were being purchased and indiscriminately dispensed. It concluded that sexual immorality was not the basic problem and that many of the other problems besetting the hospital were due to the changes then in progress as well as a “skimpy” budget and a “burgeoning” admission load. Among other recommendations, the Board urged that the “open door” policy continue.
In the course of its discussion, the Board stressed the fact that the promulgation of exaggerated and in some instances unfounded accusations were harmful to patients and their families and discouraged administrators “who are trying their best to bring about changes against considerable odds.” Regarding these accusations, the Board observed, “Estimates are that it will take a year to repair the damage done to the patients and their relatives, and to restore their pride and that of the employees.” The Board added, “These remarks are not a plea to stifle criticism • — in a community of 8,000 people related to a giant mental health institution as patient, employee or executive, there will always be a broad range of matters to criticize. . . . It is always a satisfying demonstration of public conscience when there is discussion and concern *485 about programs. But this is only true when responsible and valid criticism with supporting facts is so directed in such a way as to be constructive and to preserve the goals of the institution.” The Board’s report was issued in October 1966. Following its issuance, the plaintiff ceased critizing the hospital for approximately three years; however, in the latter part of 1969 he resumed his attacks. As the majority opinion indicates, these attacks took the form of a speech reported in the Kankakee Daily Journal, a letter to the editor printed in the same newspaper, an appearance on a television program, and an advertisement prepared and paid for by the plaintiff which appeared in the Journal.
Most of the accusations leveled at the hospital’s administration were nothing short of sensational. The newspaper account of his speech reported the plaintiff as having said that “homieidals, suicidáis, arsonists and molesters were being released into the streets of Kankakee, Bradley, Manteno” and other communities; also that because of unqualified employees there were “unsupervised wards, inadequate care, and illicit sexual activity.” During the television program the plaintiff charged that many of the patients had died of dehydration because they could not get to a drinking fountain. The most scathing criticism was contained in the advertisement which the plaintiff authored. 1
*486 Shortly after the appearance of the advertisement the hospital terminated the plaintiff’s employment. The termination notice contained the reason given by the hospital for its action: “For cause, to wit: In the best interest of the patients and staff at Manteno State Hospital, the Chicago Area Zone Director, Patrick Staunton, M.D., and Manteno State Hospital Superintendent, H. C. Piepenbrink, have decided on this action. This priest has consistently, and without checking validity of criticism, made public charges against the treatment programs of this facility which have little basis in fact and which are detrimental to the care and treatment of the patients and can no longer be tolerated by the management of one of its employees.” This reason, namely, that plaintiff’s accusations had a detrimental effect on the hospital’s programs for the treatment and care of its patients is corroborated by two contemporaneous documents : one, a report made by the head of the Mental Health Department, 2 the other, a memorandum signed by the director of the hospital’s Administrative Services. 3
Although the state has the burden of demonstrating that its governmental functions have been impaired by the public utterances of an employee, that burden was met in this case. It is not difficult to envision the harmful and disruptive effect that plaintiff’s accusations had on the patients and their families, the hospital employees and the operation of the hospital generally. His earlier criticism in 1966, the resulting investigation, and the report of the Board of Commissioners must be considered in assessing the position taken by the hospital in 1969. The belief entertained by the institution's authorities that the health and well-being of the patients had been endangered was reasonable under the circumstances. Significantly, the plaintiff offered no evidence to refute the conclusions stated in the termination notice.
Moreover, the hospital’s conclusion that the plaintiff had been irresponsible in voicing his criticisms is substantiated by the plaintiff’s testimony at trial. The heading of the advertisement contained the statement, “Missing; Psychiatrists and Licensed Physicians; who should know what is best for Mentally Ill.” On cross-examination the plaintiff admitted that there “may have been a few” psychiatrists • and licensed physicians at the hospital. In reference to his charge that many patients had died of dehydration because they were unable to get to a drinking fountain, the plaintiff admitted that during his employment he received hospital records in regard to “various deaths and so-called causes,” and that none of the reports indicated that dehydration had been caused in the manner he had stated during the television broadcast. As a further indication of plaintiff’s irresponsibility in making his accusations, a Kankakee Daily Journal reporter accompanied the plaintiff prior to his dismissal on an inspection tour of wards at Manteno. The newspaper later carried a story that its reporter could find no evidence of the conditions the plaintiff had described.
The task of balancing the conflicting interests outlined in Pickering v. Board of Education etc. is admittedly a difficult one. It requires a careful examination of every facet of the situation in question lest a vital constitutional right be inadequately protected. Such an examination of the facts in this case persuades me that the disruptive effects of plaintiff’s actions on the proper func *487 tioning of the Manteno State Hospital which lead to his dismissal were substantial and that the interests of the state outweighed the right of the plaintiff to speak as he did. I would hold that defendants had justifiable reasons for terminating the plaintiff’s employment and that there was no violation of a constitutional right.
APPENDIX I TO OPINION OF SWYGERT, CHIEF JUDGE, DISSENTING
Manteno State Hospital Department of Mental Health
REPORT OF SEPARATION
Name of Employee Joseph Donahue in the Program Support-Chaplaincy (Department or Program)
Nature of the Departure Termination (Resignation, Leave of Absence, Transfer, Termination, Discharge, Prob. Discharge, Susp.)
Character of Service Poor (Excellent, Good, Fair, Poor)
Final Date Employee Worked December 2, 1969
Final Date Employee is to be Paid Entitled to 3 vacation and 22 accumulated days as of December 16, 1969
/s/ E. C. Simmons, (Signature of Department Head) CPH
(Timekeepers Name)
14. Since the last rating, Father Donahue assumed an opposite position of that of the Department, and in so doing, endeavored to force his opinions and views above that of the Department and after repeated consultations with his Supervisor, the Superintendent and Zone Director, he was unable to support the Department; as a result he was terminated. He was unable to accept the policies established by the Department of Mental Health, and the end result was that he could not interpret them but instead rebutted them, which made him incompatable as a loyal employee of the Department of Mental Health. The position that he assumed in relationship to that of the Department consumed a great deal of his time and as a result, he was unable to complete the work and duties which normally are functions of the Catholic Chaplain. His opposition was so strong that .he had difficulty in cooperating with other faiths, even to the extent of being able to maintain rapport between himself and his assistant.
18. Father Donahue’s initiative in carrying out the duties of the Catholic Chaplains’ Office and his dependability in working with the Hospital and its Programs were in exact opposition. Little support, if any, was granted by him, but an undue amount of criticism and opposition were used in an attempt to defeat the policies which were believed to be in the best interests of the residents. His judgment in relation to the Programs at the Hospital and the position which he occupied, left a great deal to be desired and his ability to communicate instructions almost became nonexistent. His inability to work with and cooperate with his assistant were indicative of his inability to adequately supervise and develope his subordinates.
APPENDIX II TO OPINION OF SWYGERT, CHIEF JUDGE, DISSENTING
11-3-69 cc: Dr. Staunton Manteno State Hospital
MEMO
Date November 3, 1969
In Re: .............
To Mr. Piepenbrink, Superintendent From Mr. Wagner — Geriatric Program
Discussions with several Geriatric Program employees have made me aware *488 that some individuals in the community who might consider employment at the hospital are hesitating to do so due to Father Donahue’s recent “alarming” statements. At a time when the labor market is tight and finding suitable replacements is extremely difficult, it is indeed confusing that Father Donahue would undertake a vilification of the hospital on matters that have already been proven to be either exaggerations or falsehoods. Cannot someone assist Father Donahue in redefining his complaints so that they can be stated more constructively? Alarming potential employees will not assist the hospital in meeting current challenges and providing the best possible care to our patients.
RAW :mbp cc: Mr. Steinmetz Mr. Simmons
Signature /s/ Robert A. Wagner, Robert A. Wagner, Director Administrative Services.
. The advertisement appearing in the Kankakee Daily Journal reads in part:
SOME FACTS TO HELP YOU FORM A JUDGMENT:
1. The piling of bodies (male upon females) upon one. another in the Morgue Vaults.
2. Neglect of Morgue refrigeration, causing decay of bodies before Burial:
Recently a couple travelled over GO miles to attend Morgue Funeral of a relative, were unable to view deceased. Undertaker was unable to properly embalm the decomposed body.
3. Tittle, or no effort on part of authorities to prevent runaways: Some runaways have died in nearby fields, where their bodies were torn apart and eaten by the birds and animals of the fields. (It would be humane if they were dead before the beasts came upon them.)
4. One Patient complained she was ill. Suddenly she was violently ill and moved to the Acute Hospital where she died one hour later. Perforated ulcerated colon, peritonitis had liad set in. Proper examination of patient in the Acute Hospital on first complaint may have saved her life. Mother of this patient was not notified of the girl’s illness. She became very disturbed and upset when notified of her daughter’s death.
5. January 1969 a Patient was found to have a Cancer of the Nasal cavity. In March 1969 a biopsy was performed. The Patient was ordered to be sent to the Illinois Eye and Ear Infirmary, Chicago, a tranfer that was not made until late August, 19G9. Why the delay ? The Doctor at the Infirmary complained of the terrible manner that Manteno State Hospital neglected its patients. (Great loss of weight, difficulty in swallowing, dehydration, and so weak lie could not stand.)
6. Self Medication program, where Patients are given the responsibility to take their own medication. No Nurses or certified Aides on the program. (The legality of such a program is questionable.)
7. A Patient struck in face by another patient bled profusely. Unable to stop flow because Mantente State Hospital lacked the facilities. Time was a factor. Patient was moved to a Hospital 50 miles away where he died. In such an emergency the question is “why the facilities of the local Hospitals wore not used?”
S. Many patients are untidy because of organic reasons. Frequently they are placed on Wards with tidy patients. Some Physicians believe these organic conditions are most infectious. Visitors (of all ages) to these Wards are often exposed to Male and Female patients sitting around naked slopping in their feces.
9. Birth control Pills issued, as admitted by member of the Hospital pharmacy committee, only to prevent pregnancies of highly promiscuous patients.
10. Aides on Wards where young male and female patients reside complained to the Authorities “male patients abuse the female ones.” “Wards are not safe for patients or employees.” What must we do when female patients ask help *486 because male patients bother them? The Doctor replied: “Tell the men to leave the women alone.”
11. A known hostile, aggressive and frequent runaway patient has twice in four months stole sets of Hospital keys and car keys from careless employees and stole two automobiles.
12. Some Mittimus eases have privilege of the Hospital grounds. One was permitted a Home Visit. (ILLEGAL?)
. See Appendix I of this dissent.
. See Appendix II of this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459029. Public record. Not legal advice.