Beate Bernheim v. Jeffrey Litt

JACOBS, Circuit Judge,

concurring:

I concur in the judgment and in the majority opinion except for Part C, as to which I write separately in order to reach an issue that I think is fairly presented. Judge Brieant held that the plaintiff has no retaliation claim because she “has not been deprived of her job status or her employment.” I think this holding frames an issue that we should address. I vote to reverse because I think that the proper standard for the sufficiency of First Amendment retaliation claims is somewhat more nuanced, and that the proper standard cannot be categorically applied on this record under Rule 12(b)(6) to all of Bernheim’s allegations. At the same time, I think that in reversing we should consider whether the proper standard was applied and, if not, what the proper standard is.

*327 It is beyond question that a state agency may not discharge, refuse to rehire, fail to promote, or demote a public employee in retaliation for speaking on a matter of public concern. Rutan v. Republican Party, 497 U.S. 62, 75 , 110 S.Ct. 2729, 2737 , 111 L.Ed.2d 52 (1990); Pickering v. Board of Educ., 391 U.S. 563, 568 , 88 S.Ct. 1731, 1734-35 , 20 L.Ed.2d 811 (1968). Certainly, Beatte Bern-heim spoke on a matter of public concern. But the role of the courts in assessing First Amendment claims alleging retaliation (such as this one) “is to seek ‘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’ ” Connick v. Myers, 461 U.S. 138, 142 , 103 S.Ct. 1684, 1687 , 75 L.Ed.2d 708 (1983) (quoting Pickering, 391 U.S. at 568 , 88 S.Ct. at 1734-35 ) (emphasis added). We should seek this balance even at the Rule 12(b)(6) pleading stage, treating retaliation as actionable only if, measured by a standard of reasonableness, it affects employment in a way that is both detrimental and substantial. Absent dismissal, transfer or refusal to rehire, retaliation is what reasonably may be deemed a demotion. See Rutan, 497 U.S. at 75 , 110 S.Ct. at 2737 .

In my view, many of the instances of retaliation alleged by this plaintiff are either (i) petty, or (ii) adverse only by reason of her personal preference for other arrangements, or (in) both. Bernheim has not suffered dismissal, reduction in pay, or demotion in rank. Her assignment to a particular class, classroom or supply closet — even if she prefers another class, classroom or supply closet — does not appreciably impact on her employment as an elementary school teacher. Even if it would matter, she has not alleged that she had a job right in any of these things by law, by contract or otherwise. Some of her grievances amount to nothing more than a demand that the court suppress all manifestations of annoyance by a person she has publicly and repeatedly vilified. As to other grievances, such as the number of teacher preparation periods, she has not alleged (although she suggests) that she was singled out for disadvantage. Nevertheless, I concur in the reversal because it is conceivable that one or more of the claims of retaliation, under circumstances not evident at the pleading stage, may arguably add up to a demotion.

In Pickering , the Supreme Court held that “a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.” 391 U.S. at 574 , 88 S.Ct. at 1737-38 (emphasis added). Pickering , and the precedents in which it was rooted, recognized that a public employee’s First Amendment rights could be “ ‘chilled’ by the fear of discharge.” Connick, 461 U.S. at 145 , 103 S.Ct. at 1689 (emphasis added); see also Elrod v. Burns, 427 U.S. 347, 372 , 96 S.Ct. 2673, 2689 , 49 L.Ed.2d 547 (1976) (impermissible to terminate government employees by reason of political affiliation). Cases following Pickering extended this principle to the refusal to rehire. See, e.g., Givhan v. Western Line Consolidated Sch. Dist., 439 U.S. 410, 417 , 99 S.Ct. 693, 697-98 , 58 L.Ed.2d 619 (1979) (plaintiff must show that “she would have been rehired but for her criticism”) (emphasis omitted); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 , 97 S.Ct. 568, 576 , 50 L.Ed.2d 471 (1977) (discussing burden-shifting framework for First Amendment claim alleging defendant improperly failed to rehire plaintiff); Perry v. Sindermann, 408 U.S. 593, 598 , 92 S.Ct. 2694, 2698 , 33 L.Ed.2d 570 (1972) (impermissible to not rehire teacher who testified before state legislature).

In Connick v. Myers, the Court warned that lesser claims of retaliation do not amount to constitutional torts:

Our holding today is grounded in our longstanding recognition that the First Amendment’s primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of a government office. ... [I]t would indeed be a Pyrrhic victory for the great principles of free expression if the Amendment’s safeguarding of a public employee’s right, as a citizen, to participate in discussions concerning public affairs were confused with the attempt to *328 constitutionalize the employee grievance that we see presented here.

461 U.S. at 154 , 103 S.Ct. at 1694 (emphasis added). Neither Connick nor any of the other authorities cited above considered whether the employer’s action was sufficiently detrimental to support a claim for relief. It was not until Rutan v. Republican Party that the Supreme Court held that an employee who suffered an adverse employment action other than dismissal could maintain a First Amendment tort suit. 497 U.S. at 75 , 110 S.Ct. at 2737 . In that case, the Seventh Circuit had held that the only actionable employment decisions are those that are the “substantial equivalent of a dismissal.” 868 F.2d 943, 955 (7th Cir.1989). The Supreme Court rejected this test as “unduly restrictive because it fails to recognize that there are deprivations less harsh than dismissal that nevertheless press state employees and applicants to conform their beliefs and associations to some state-selected orthodoxy,” 497 U.S. at 75 , 110 S.Ct. at 2737 , and held that “promotions, transfers, and recalls after layoffs based on political affiliation or support are an impermissible infringement on the First Amendment rights of public employees.” Id. As in Connick , however, the Court warned that “[t]he First Amendment is not a tenure provision, protecting public employees from actual or constructive discharge.” Id. at 76, 110 S.Ct. at 2737-38 .

A few circuits have drawn a line between actionable claims of retaliation and those insufficient to support a claim, 1 employing a balancing process that approximates what the Supreme Court contemplated in Pickering and its progeny. In Dorsett v. Board of Trustees for State Colleges & Univs., 940 F.2d 121, 123 (5th Cir.1991), the Fifth Circuit upheld summary judgment in favor of the defendants, holding that a state university professor who alleged “that various administrative decisions had harmed his reputation, that he had been unfairly denied summer employment and salary increases, and that he had suffered other miscellaneous harass-ments” could not maintain an action for retaliation. The Fifth Circuit explained that

[t]he continuing retaliatory actions alleged by [the plaintiff] appear to be nothing more than decisions concerning teaching assignments, pay increases, administrative matters, and departmental procedures. We recognize that such decisions might seem extremely significant to [the plaintiff] who has devoted his life to teaching. But we believe, nevertheless, that the alleged harms suffered by [the plaintiff] do not rise to the level of a constitutional deprivation.

Id. The Fifth Circuit found that the balance favored the state’s interest in efficiently and effectively educating students:

In public schools and universities across this nation, interfaculty disputes arise daily over teaching assignments, room assignments, administrative duties, classroom equipment, teacher recognition, and a host of other relatively trivial matters. A federal court is simply not the appropriate forum in which to seek redress for such harms.

Id.

In Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1212 (1st Cir.1989), the First Circuit, sitting in banc, considered “what type of employer action short of dismissal will support a claim for violation of the plaintiffs’ right of free political association.” The plaintiffs, career bureaucrats in the Puerto Rico Department of Public Education, were members of the New Progressive Party. That political party was forced out of power *329 when the Popular Democrats won the 1984 gubernatorial election. Id. at 1212-13 . The plaintiffs alleged that, in retaliation for their political allegiance, them duties were reduced, they were re-assigned to new positions, and their supervisory authority was reduced or eliminated. Id. at 1213-14 . The district court found for the plaintiffs after a bench trial. On appeal, defendants argued that the plaintiffs had no claim under the First or Fourteenth Amendments. Id. at 1214 .

The First Circuit recognized that, “if the threshold for an actionable constitutional violation were low, we believe employees would too often resort to litigation when the employer’s action was actually apolitical in nature.” Id. at 1216 . According to Agosto-de-Feliciano , the balancing approach announced in Connick and Pickering

suggests] that insubstantial changes in an employee’s work conditions and responsibilities, even when politically motivated, either would not reasonably chill the employee’s exercise of the right to free political association, or would cause a level of burden that is almost certainly outweighed by the government’s need to protect its own interest....

Id. at 1217. The court then “turn[ed] to [its] primary task, the creation of a workable standard for recognizing a violation of a civil servant’s freedom of association.” Id. After rejecting several approaches that placed “an impermissibly high burden” on the right to free speech, see id. at 1218, the court determined that the constitutional threshold is breached “when the employer’s challenged actions result in a work situation ‘unreasonably inferior’ to the norm for the position.” Id. 2

Then-Judge Breyer concurred in the balance struck by the majority because

[o]n the one hand, it permits suits designed to show a serious, politically motivated “demotion.” On the other, it seeks to prevent juries from simply supplanting civil service commissions — by insisting that the relevant harm be severe, that it be shown by clear and convincing evidence, and that it correspond roughly to the types of significant harm that the court illustrates with examples.

Id. at 1224 (Breyer, J., concurring in part and dissenting in part). Judge Breyer observed that “not only [may] the lack of any protection ... open the door to unwarranted, politically based victimization, but also ... too much judicial intervention may unjustifiably interfere with the electorate’s ability to see its political aims translated into action.” Id.

The majority opinion in this ease does not close the door to eventual summary disposition of Bernheim’s claims at a later stage of proceedings on the ground that they do not amount to claims of demotion. But I believe that we should engage in some balancing at this stage, in order to avoid turning the First Amendment “a tenure provision,” Rutan, 497 U.S. at 76 , 110 S.Ct. at 2737-38 , and to prevent “constitutíonaliz[ing]” employee grievances. 3 Connick, 461 U.S. at 154 , 103 S.Ct. at 1693-94 .

*330 I turn to the allegations of Bernheim’s second amended complaint, and present them in roughly ascending order of triviality:

77. Defendant Jeffrey Litt retaliated against plaintiff for exercising her first amendment rights in the following manner: [He] illegally conferred plaintiffs position of library teacher upon another teacher.

78. Thereafter, ... Litt demoted plaintiff to the position of classroom teacher, although she had held an out of class position for five years....

80. Defendant Jeffrey Litt was aware that plaintiff suffered from certain disabili-ties_ In order to retaliate ... Litt assigned her to a classroom on the fifth floor of the bufiding.

81. Litt assigned plaintiff to lunch duty-

82. [Defendant caused an assistant principal to direct plaintiff to remove her school belongings from the room that she had been using as an office....

83. Litt caused the lock on plaintiff’s supply closets to be cut on the first day of school, and her property removed.

84. Litt caused plaintiff’s prepatory [sic] periods to be reduced from two a day to one a day....

86. Litt caused Assistant Principal Rafael Gonzalez to harass plaintiff by sending her letters unjustly criticizing her performance as a teacher.

87. [Litt] required plaintiff to escort the class to the lunchroom from the fifth floor to the ground floor....

88. Litt told a parent that plaintiff’s assertion that there were not enough science books was untruthful....

89. [Defendant failed to return necessary “no fault” forms that had been sent to the school by the plaintiffs insurance company.

93. [Litt] stood near the plaintiff when she reviewed her file and when she asked that a document be marked for copying he slapped a marker on it in a physically aggressive manner, slamming it down on the paper.

94. As a result of the aforesaid discriminatory practices and retaliatory practices by defendant Jeffrey Litt, plaintiff has been damaged in the sum of seven hundred" and fifty thousand dollars.

It is clear that Bernheim has not alleged that she was terminated in retaliation for her speech, and thus cannot plead a cause of action under Pickering and Connick . She does not allege a reduction in salary. Bem-heim does allege that she was “demoted” by being re-assigned to sixth grade teaching from what she calls the “out of class position” of library teacher, but this conclusory allegation, in my view, is insufficient. While Bern-heim evidently considers it advantageous for a schoolteacher to be disburdened of having to teach a class of children, she cites no ground of right or entitlement for her continued enjoyment of a child-free teaching career. More important, this assignment cannot be deemed a punishment or retaliation. Many teachers who teach children would view it as a detriment to lose the opportunity to teach by being consigned to the role of library teacher. In short, classroom or library assignment is at most a matter of preference, and for that reason cannot reasonably be deemed to be a demotion.

Bernheim’s allegations that she was assigned to a fifth-floor classroom cannot support a claim under Rutan , both because the claim is trivial and because this too is a matter of preference. If there is no elevator, the fifth floor will be harder to get to than the first; at the same time, it might be more airy and quiet. But even if the roof leaks, this is not the stuff of constitutional litigation because (if for no other reason) no one would be driven from the marketplace of ideas because of a fear of a room assignment.

As to lunchroom duty and the accompanying of her charges to the lunchroom, it is possible (however unlikely), that these constitute new burdens that are not part of her responsibilities as a teacher, although I note that there is no allegation that she was singled out from the ranks of sixth grade teachers to bear these burdens. Similarly, Bem-heim’s allegation that the number of her *331 preparatory periods was reduced does not say that she was singled out for this scheduling adjustment. I do note that the record in the district court contains a grievance form signed by Bemheim — the authenticity of which Bemheim has not thus far disputed— in which she states that “every sixth grade teacher’s preparatory periods was [sic] reduced from [two] ... to an elementary school program consisting of one preparation period per day.” However, neither we nor the district court may consider this in the context of Rule 12(b)(6).

Bernheim’s allegations concerning her supply closet and the insurance form are simply too trivial to support a retaliation claim. The removal of her “school belongings” from “the room she had been using as an office” could be read to say that she was denied an office that goes with her job; but I note that she fails to allege specifically that the room was assigned to her as an office, or that any of the materials removed belonged to anyone but the school.

Other alleged instances of retaliation — (i) a critical letter, (ii) a disagreement about the supply of science textbooks, and (iii) Principal Litt’s vigorous application of Post-Its® to Bemheim’s file — are also trivial, and reflect a misperception on her part that her free expression under the First Amendment requires that other people suppress the disapproval and anger that her speech provokes.

I agree with the majority that the dismissal under Rule 12(b)(6) was at least premature; but the particular instances of retaliation in this complaint illustrate why we should draw some line (as the district court undertook to do) between claims of retaliation that are actionable, and claims of retaliation that are not. I would draw that line in this case, and specify which allegations should be dismissed and which should be subject to such further proceedings as they require.

. Some circuits have addressed that question obliquely or in dicta. See, e.g., Dahm v. Flynn, 60 F.3d 253, 257 (7th Cir.1994) ("agreefing] that ... a dramatic downward shift in skill level required to perform job responsibilities can rise to the level of an adverse employment action,” but rejecting plaintiff's claim because supervisor enjoyed qualified immunity); Smith v. Fruin, 28 F.3d 646 , 649 n. 3 (7th Cir.1994) (stating that "even minor forms of retaliation can support a First Amendment claim,” but holding that speech was on a matter of personal concern, and thus not actionable), cert. denied, - U.S. -, 115 S.Ct. 735 , 130 L.Ed.2d 638 (1995); Tao v. Freeh, 27 F.3d 635, 639 (D.C.Cir.1994) (stating that "[e]mployer action taken against an employee ... need not be as significant as the denial of promotion to raise a constitutional claim,” but resting decision on ground that defendant imposed “more burdensome promotion requirements” in retaliation).

. The First Circuit has recognized that the Supreme Court's decision in Rutan changed the landscape of Agosto-de-Feliciano by categorically extending First Amendment protection to government employment decisions concerning hiring, promotion and transfer. See Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 705 (1st Cir.1993). The First. Circuit has surmised that Agosto-de-Feliciano now provides "an intermediate First Amendment haven for employees wounded by slings and arrows less damaging than those described by the Rutan Court,” but the court has not ruled definitively on Rutan 's effect on Agosto-de-Feliciano. Id. at 705. But see Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 42 (1st Cir.1993) (Torruellea, J., concurring) (expressing view that Agosto-de-Feliciano is no longer authoritative precedent).

. We need not look- far to see where such abuses lead. Bernheim filed her initial complaint on June 21, 1994. I agree with my colleagues that the racial discrimination claim asserted in that pleading is meritless. What is interesting is that Bernheim was not inspired to publicize criticisms of Principal Litt until (as dated in the amended complaint) sometime "in June 1994.” The earliest public letter that she annexed to her complaint was dated June 22, 1994. In short, her public speech and her meritless litigation are contemporaneous. It may be that Bemheim’s publicity campaign denouncing her principal was public spirited; but it also may be just a second front in a purely local workplace squabble.