Richard Greenberg v. Thomas Kmetko and Bruce Weflen

CUDAHY, Circuit Judge,

concurring.

I agree generally with the law as analyzed in the majority opinion and I write separately principally to comment on the unusual facts and the unusual procedural history, which make this seem such a difficult and close case. The specific facts are of importance here because the case was remanded by the en banc court for an examination of those facts under Anderson v. Creighton, 483 U.S. 635 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987). See Greenberg v. Kmetko & Weflen, 840 F.2d 467, 473 (7th Cir.1988) (en banc). The facts are also important because the law of qualified immunity, as it has developed in this circuit, has tended to find qualified immunity in almost any case of first impression. Cf. Landstrom v. Illinois Dept. of Children & Family Servs., 892 F.2d 670 (7th Cir.1990) (school officials’ investigation of potential child abuse case over objection of parents held immune); Hedge v. County of Tippecanoe, 890 F.2d 4 (7th Cir.1989) (county officials immune under section 1983 for questions about sexual history in polygraph-monitored employment interview); Lenea v. Lane, 882 F.2d 1171 (7th Cir.1989) (prison officials’ reliance solely on polygraph exam to establish prisoner’s guilt in disciplinary offense held immune); Doe v. Bobbitt, 881 F.2d 510 (7th Cir.1989) (immunity granted in due process claim when officials placed child in home with aunt who sexually abused child, even though officials were warned of potential for abuse), cert. denied, — U.S. -, 110 S.Ct. 2560 , 109 L.Ed.2d 742 (1990); Shields v. Burge, 874 F.2d 1201 (7th Cir.1989) (during internal investigation, search of police officer’s briefcase stored in automobile and his desk protected by immunity from Fourth Amendment claim); Smart v. Simonson, 867 F.2d 429 (7th Cir.1989) (employees of state mental institution immune for reliance on court commitment for insanity and incompetence to stand trial as basis for holding patient even in face of later *386 determination of competency). But cf. Cleveland-Perdue v. Brutsche, 881 F.2d 427 (7th Cir.1989) (prison officials not immune for not correcting systematic deficiencies in delivery of health care services), cert. denied, — U.S. -, 111 S.Ct. 368 , 112 L.Ed.2d 331 (1990); Conner v. Reinhard, 847 F.2d 384 (7th Cir.1988) (no immunity for retaliatory discharge after plaintiff made statement of “public interest”). 1

The original jury trial in this case was conducted by Judge Grady, but the remand from the en banc court went to Judge Parsons. So far as can be discerned from his opinion on remand, Judge Parsons was aware of no facts beyond those before the original panel and the en banc court. Judge Parsons was therefore apparently in no better position than the en banc court had been to resolve the immunity issue under Anderson v. Creighton. In the interest of coherence, if not of brevity, I believe it is necessary to furnish a more complete statement of the underlying facts.

From 1974 until 1978, Greenberg was a social worker with the Illinois Department of Children and Family Services (“DCFS” or “Department”). He worked in the Department’s North Area Office located in Chicago. Weflen was the supervisor of the plaintiffs unit after October 1974, and Kmetko was the Area Administrator for the DCFS. Over the course of several years, Greenberg had a number of disagreements with his supervisors over Department policy. He voiced some criticism of Department policy inside the office and some outside of the office. Particularly at issue now are three “outside” statements made by Greenberg in 1975. The first occurred on April 10, 1975, when Green-berg appeared before a judge of the Cook County Juvenile Court to give a status report on a child who had been assigned to Greenberg. The court had previously ordered the DCFS to place the child in a foster home, but this had not been done. Greenberg informed the court that its order had not been followed and complained that the DCFS policy of minimizing placement services was probably the cause of the Department’s noncompliance. The judge became upset and ordered Weflen to appear in court to explain the DCFS’s failure to place the child.

The next incident occurred on October 10, 1975, when Greenberg attended a public meeting of the Children’s Rights Council, a community interest group. The deputy director of the DCFS spoke, and the meeting attracted several hundred people. During a question and answer period following the address, Greenberg stood up and voiced his objections to the Department’s policy of minimizing services and offered as an example of the problems caused by the policy the case of Richard S., a child who had been assigned to Greenberg. Richard S. suffered from psychosis and epilepsy, occasionally demonstrating violent tendencies, and was currently living in Elgin State Hospital. Greenberg complained at the meeting — as he had previously complained to the Department’s assistant guardianship administrator — that Richard S. was not receiving adequate medical care. (Greenberg did not mention the child’s name.) After the meeting Greenberg approached the deputy director, who assured Greenberg that he personally would contact Green-berg’s supervisors about Richard S.’s case.

Dissatisfied with what he perceived as the lack of progress in Richard S.’s case, Greenberg contacted the Legal Assistance Foundation (the “LAF”). The LAF’s Juvenile Division was an agency given authority by the Circuit Court of Cook County to receive and monitor information concerning DCFS wards. Greenberg sought to enlist the LAF’s assistance in preventing the *387 DCFS from discharging Richard S. to a non-medical facility.

Soon after this last incident, Greenberg’s supervisors transferred him to a clerical unit known officially as “Title 20,” but known among the Department’s social workers as a punishment unit and referred to by more colorful epithets, such as “the monkey cage,” “the dumping ground” and “the scapegoat unit.” Appellant’s Br. at 20. Those assigned to Title 20 did no casework, but only filled out government reimbursement forms. Greenberg labels this assignment a demotion, although he suffered no loss of salary or benefits. Kmet-ko and Weflen say they simply reassigned Greenberg to a job that would be less emotionally and mentally taxing for him. In fact, Greenberg charges that it was the reassignment that adversely affected his mental health. In late July 1976, after an increasing number of absences from work due to his deteriorating mental condition, Greenberg sought a medical leave of absence, based on the recommendation of his psychiatrist. He never returned to work and formally resigned in March 1978.

After resigning, Greenberg filed a two-count complaint against his supervisors based on the reassignment to Title 20. In the first count, he alleged that the DCFS had punished him for exercising his First Amendment right to criticize Department policy. In count II, he alleged that the reassignment amounted to constructive discharge. Prior to trial, the district court heard the defendants’ motion for summary judgment based on their claim to qualified immunity. Judge Grady, then presiding over the case, denied the defendants’ motion. The case was tried to a jury, which found in favor of the defendants on the constructive discharge claim, but which returned a verdict in favor of Greenberg on the First Amendment claim. The jury awarded Greenberg $150,000 in damages.

On appeal, both the original panel (Judges Cudahy and Fairchild, with Judge Coffey dissenting) and the en banc court (by Judge Coffey) ruled that the defendants were entitled to qualified immunity with regard to Greenberg’s statements made within the office. 811 F.2d at 1063; 840 F.2d at 472 . A majority of the original panel agreed with Judge Grady, however, that the defendants were not entitled to qualified immunity based on Greenberg’s public statements. 811 F.2d at 1063. After the original panel announced its decision, the Supreme Court issued its opinion in Anderson v. Creighton, 483 U.S. 635 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987). In light of Anderson v. Creighton, the en banc court remanded the case to the district court for a determination whether a reasonable supervisor in 1975 would have thought, given the specific facts of the case, that Greenberg’s reassignment was lawful.

While qualified immunity is a question of law for the court to decide, Rakovich v. Wade, 850 F.2d 1180, 1201-02 (7th Cir.) (en banc), cert. denied, 488 U.S. 968 , 109 S.Ct. 497 , 102 L.Ed.2d 534 (1988), the facts of this case were unusually complicated, and the en banc court remanded the case, ostensibly because of the district court’s superior familiarity with the record, for a determination by the district court of the qualified immunity question. In this procedural respect, the en banc court may have delegated to the district court obligations which it might well have undertaken itself. The en banc court concluded that the district court had erred in its initial resolution of the qualified immunity question primarily by not considering the specific facts of the case. The consideration of the specific facts was an obligation imposed by Anderson v. Creighton, and the en banc majority said:

[W]e conclude that this case must be remanded for reconsideration in light of Anderson on the issue of qualified immunity for Greenberg’s public statements for the district judge, familiar as he is with the entire record, to apply the new test to it.

840 F.2d at 473 .

Although the defendants claimed that Greenberg was reassigned (or “transferred”) because of his emotional difficulties, a number of affidavits were submitted by Greenberg’s co-workers stating that they considered the transfer a punitive measure. *388 And at trial there was evidence of this. For example, the following colloquy took place on direct examination of George Neagu, a former administrative assistant of the Cook County Region of DCFS:

Q: Mr. Neagu, in connection with the Title 20 unit, that unit Mr. Greenberg had been placed in, were you aware if that unit had developed any particular reputation at the north area office or beyond it?

* * * * * *

A: There was a stigma from the outset attached to the Title 20 formation and Title 20 unit. It was known as the monkey cage unit in the office in which it was generally believed that the people who were identified as troublemakers in disfavor would be placed.

Record at 195 (Tr. vol. II; testimony of George Neagu).

Other witnesses referred to the reputation of the unit as a “dumping ground for people that they [the administrators] wanted to get ... rid of,” Record at 576 (Tr. vol. IV; testimony of Joan Phillips), “punishment unit or a monkey cage unit, scapegoat unit,” Record at 605 (Tr. vol. IV: testimony of Paula Erenetta), and “basically a dumping ground, and basically kind of a clerical kind of a unit that really didn’t do much,” Record at 588 (Tr. vol. IV; testimony of Tom Johnson).

I think, therefore, that for purposes of summary judgment on the issue of qualified immunity, we must assume that the reassignment was punitive or retaliatory at least in part. Of course, as indicated, there had been a jury verdict to this effect earlier.

On remand, Judge Parsons, who, as I have noted, discerned no facts not already well known to this court, found, after reviewing the parties’ submissions and “bearing in mind the strict confines within which the Seventh Circuit has instructed [the district] court to review this motion for summary judgment,” Mem.Op. at 11, that “a reasonable supervisor [in 1975] could have honestly believed that transferring the plaintiff to the Title 20 Unit was important to staff management and was not illegal nor in violation of the plaintiff’s 1st Amendment right in that it was motivated by retaliation for the discomfort his conduct had caused them.” Id. Despite this and other suggestions of the defendants’ possible motives, I continue to think, for purposes of summary judgment, we must assume that these motives were, at least in part, retaliatory and punitive. The sworn testimony of record, the affidavits and the jury verdict make this inescapable. The majority opinion, in fact, seems to me implicitly to concede this.

Given, therefore, that the personnel action taken (“transfer,” “reassignment” or whatever) issued from motives of retaliation or punishment, is the result reached by the majority opinion supportable? Although the powerful values protected by the First Amendment make the matter extremely close and debatable, there is no decided case of the Supreme Court or of any of the courts of appeals which made it clear, as of 1975, that this sort of personnel action was of constitutional significance— however motivated. That this kind of action might be extraordinarily upsetting to a person of the plaintiff’s temperament seems not to be controlling. The cases in this circuit seem to turn more on the nature of the actions taken rather than on the motive or purpose underlying them, although this is a matter not fully worked out in the case law. For example, in one case we held that:

For purposes of the “offense” ... plaintiffs’ supported allegations are assumed true, including intent. Once those allegations demonstrate a constitutional violation, the issue of intent is put aside. Then the “defense” (qualified immunity) is analyzed without any reference to intent, as mandated by Harlow [v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982)]. Intent is relevant to the threshold question of whether the defendant violated plaintiffs’ constitutional rights but is ignored for a question of whether that right was “clearly established” at the time of the incident....

Thus under Harlow the district court must conduct a two-part analysis: (1) Does the alleged conduct set out a constitutional violation? and (2) Were the constitutional standards clearly established *389 at the time in question? ... Intent is relevant to (1) but not to (2).

Wade v. Hegner, 804 F.2d 67, 69-70 (7th Cir.1986); see also Auriemma v. Rice, 910 F.2d 1449, 1452 (7th Cir.1990) (en banc) (“The objective determination in these [qualified immunity] cases requires that courts not consider intent when making the final determination at summary judgment of whether the law is clearly established.”). Cf. Rakovich, 850 F.2d at 1210 (intent, for Harlow purposes, is irrelevant except when an element of the cause of action “because evaluating intent would be a factual analysis, whereas the objective inquiry is a legal question”). 1

Greenberg argues with a great deal of force that Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), involving the discharge of a teacher, established that a public employer could not retaliate against an employee who chose to exercise her First Amendment right to speak out on matters of public concern. And in Perry v. Sindermann, 408 U.S. 593 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972), the Supreme Court declared:

For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech.

408 U.S. at 597 , 92 S.Ct. at 2697 .

But both Pickering and Perry involve the loss of a job and are not closely analogous to reassignment to a task of lesser quality — no matter how demeaning or upsetting. Perhaps, this is a distinction that Anderson v. Creighton does not intend us to make, but it is a distinction that appears to follow the line of analysis of cases in this circuit following Anderson v. Creighton. Compare Cygnar v. City of Chicago, 865 F.2d 827, 842-44, 846 (7th Cir.1989) (racial and political discrimination in job transfer not clear constitutional violation; qualified immunity granted), with Swank v. Smart, 898 F.2d 1247, 1256-57 (7th Cir.) (due process violation of firing policeman without opportunity to rebut charges held clearly established; qualified immunity denied), ce rt. denied, — U.S.-, 111 S.Ct. 147 , 112 L.Ed.2d 113 (1990). Cf. Auriemma, 910 F.2d at 1452-60 (immunity granted officials for demotion of police officers in count alleging race violation of 42 U.S.C. § 1985 (3) but denying immunity for race discrimination and First Amendment retaliation counts).

More importantly, perhaps, Judge Coffey, in the opinion for the en banc court remanding the matter for findings under Anderson v. Creighton (from which Judges Fairchild, Ripple and I dissented), made the following statement:

We also note that the case at hand does not involve the firing of a worker; rather, the plaintiff Greenberg was merely transferred to an administrative division of the department without incurring a loss of pay. We think it is unusual at the very least to even suspect that a government department head cannot transfer a disruptive worker after that employee has gone public with a dispute and by doing so “bought” himself an alleged First Amendment claim.

840 F.2d at 474 .

This seems to establish a law of the case of sorts, which may be inconsistent with a denial of qualified immunity, at least in a situation where no additional facts have been found on remand. I believe that this statement guided Judge Parsons in his determination on remand.

Based on the evidence and argument presented here, the reassignment or transfer of Greenberg could have been motivated by a desire to retaliate for his First *390 Amendment activity, or concern for his mental health or simply by a desire to put him in an “inside” job where he would have less opportunity to embarrass the DCFS. Or there could have been a combination of these motives and others that have not been mentioned. It would be difficult ever to plumb these institutional motives with great assurance. Since the question of qualified immunity is usually decided on a motion for summary judgment, there may be practical reasons to de-emphasize motive as a decisive factor in that determination. In earlier times, I believe that there was a greater inclination to commit these questions to jury verdict but this seems less the case since Harlow and Rakovich .

The majority opinion cites my concurrence in Egger v. Phillips, 710 F.2d 292, 323-24 (7th Cir.) (en banc), cert. denied, 464 U.S. 918 , 104 S.Ct. 284 , 78 L.Ed.2d 262 (1983), as authority for the proposition that a “transfer” would have enjoyed qualified immunity in 1976. Of course, at issue in that case was Egger’s “transfer” from Indianapolis to Chicago and his failure to report for work there, quite a different circumstance than an alleged reassignment to a “punishment unit” as is the case with Greenberg. To equate these “transfers” is to paint with a broad brush indeed — something that Anderson v. Creighton seems to counsel against. On the other hand, if summary judgment is to be the usual mode of disposition, there may be a case for taking a view which does not emphasize detailed distinctions.

I think this is a very close case and the public interest in protecting bureaucrats against the consequences of derailing the careers of whistleblowers is not so clear to me as to the majority. Nonetheless, I cannot say with confidence that the result reached by the majority opinion is incorrect under the case law.

. Both on brief and in his petition for rehearing, Greenberg relies heavily on Benson v. Scott, 734 F.2d 1181 (7th Cir.1984), cert. denied, 469 U.S. 1019 , 105 S.Ct. 435 , 83 L.Ed.2d 361 (1984). Benson , a pre-Anderson v. Creighton case, is helpful to Greenberg in its relatively narrow view of qualified immunity. However, it is not clear that Benson was still a state employee when he engaged in the protected speech, and it is therefore equally unclear whether there was a need to balance the state's interest as an employer against the plaintiffs interest in speech. Cf. Egger v. Phillips, 710 F.2d 292 (7th Cir.) (en banc) (FBI agent transferred allegedly in retaliation for complaining to supervisors about coworker; defendant found qualifiedly immune), cert. denied, 464 U.S. 918 , 104 S.Ct. 284 , 78 L.Ed,2d 262 (1983).

. A distinction must presumably be kept in mind between a subjective belief that an act is a constitutional tort and the subjective elements of the tort itself. Harlow expressly addresses the first of these mental states but not the second. But from the point of view of the easy availability of summary judgment, the need to resolve subjective matters of any kind presumably presents the same problem.