Petition for Writ of Certiorari — Jones v. United States

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In The

Supreme Court of the United States

October Term, 1993

—?

JACQUELINE R. MORGAN,

Petitioner,

JOHN S. FORD, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Amy S. GELLINS

Counsel of Record for Petitioner

Law Office oF Amy S. GELLINS

229 West Cloverhurst Avenue

Athens, Georgia 30605

(706) 353-1528

ALBERT M. Pearson, III

Of Counsel to Petitioner

BuTLerR, Wooren, OVERBY

& CHEELEY

2719 Buford Highway

Atlanta, Georgia 30324

(404) 321-1700

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

eos Cee ed

haat a Ra eee

ASE gy

Sy er per

QUESTION PRESENTED

Under Connick v. Myers, 461 U.S. 138 (1983), does the

First Amendment protect speech by an entry level public

employee about sexual harassment directed at her and

her co-workers where (a) she voiced the complaint in her

own behalf only at the specific request of one of her

superiors investigating sexual harassment directed at a

co-worker; (b) she sought a departmental investigation

into her own complaint only at the instigation of her

superior; (c) she sought an independent investigation of

her own complaint in accordance with established state

procedure as posted at her place of employment; and (d)

she never sought any job benefit other than an end to acts

of sexual harassment?

LIST OF PARTIES

The parties to the proceedings before this Court are:

Petitioner:

JACQUELINE R. MORGAN

Respondents:

JOHN S. FORD, TYDUS MEADOWS, CHARLES BUR-

DEN, individually and in their official capacities as

supervisors for the Georgia Department of Corrections.

“i Bs. 4 deinen

TABLE OF CONTENTS

Page

QUESTION PRESENTED... - y ‘Ssek)

ED oc ccevvccccecces kai kis innesen

TABLE OF AUTHORITIES............ Tere . iv

OPINIONS BELOW....... | Saeed l

a ceed édevdvewss ——

CONSTITUTIONAL PROVISIONS INVOLVED...... 2

STATUTES INVOLVED ................. 3 ieee ae

STATEMENT OF THE CASE.......... - 3

REASONS FOR GRANTING THE WRIT ............ 7

I. Introduction....... idesee see's rr + 7

Il. The Eleventh Circuit Misapplied this Court's

Decisions in Givhan v. Western Line Consolidated

School District; Connick v. Myers; and Rankin v.

cums wueenen. 10

I. In Analyzing and Applying the Connick v. Myers

Public Concern Standard, The Courts of Appeais

Have Applied Divergent Tests and Reached

Seriously Inconsistent Results................. 19

A. Decisions in Conflict with Morgan ........ 20

B. Decisions Compatible with Morgan........ 23

EE Opava ae

TABLE OF AUTHORITIES

Page

SurremMe Court Cases

Connick v. Myers, 461 U.S. 138 (1983)............ passim

Cox v. Louisiana, 379 U.S. 559 (1965)............... 9, 18

Florida Star v. B.J.F., 491 U.S. 524 (1989)............. 18

Givhan v. Western Line Consolidated School District,

459 US. 416, S15-16 CIG7SD. 2c ccccccccvecscens passim

Harris v. Forklift Systems, 510 U.S. __, 114 S.Ct.

NS i vias a's wd a edac Kas eh eadeeaeoeae 8, 27, 28

Pickering v. Board of Education, 391 U.S. 563 (1968) passim

maey @ Cielo, S60 US. 42d (IGGF) «on vc ccccevcvesces: 18

Rankin v. McPherson, 483 U.S. 378 (1987) reh. denied

gk OB, ae eee 9, 10, 15, 16, 17

Thornhill v. Alabama, 310 U.S. 88 (1940).............. 21

Circurt Courts oF APPEAL CASES

Auriemma v. Rice, 910 F.2d 1449 (7th Cir. 1990) (en

banc), cert. denied, __ U.S. __, 111 S.Ct. 2796

SE 6 igi wad hile wltasiidins brainin Wine k a Gita rd AY Wo 25

Belk v. Town of Minocqua, 858 F.2d 1258 (7th Cir.

SDR Acicsabhcsciskues ee tubeanehev wach enauesess ys 25

Berg v. Hunter, 854 F.2d 238 (7th Cir. 1988), cert.

Ss ee Ge ee es kod be dcb ae kodde ce ced 25

Brasslett v. Cota, 761 F.2d 827 (1st Cir. 1985)......... 21

Breuer v. Hart, 909 F.2d 1035 (7th Cir. 1990)......... 25

TABLE OF AUTHORITIES —- Continued

Brown v. City of Trenton, 867 F.2d 318 (6th Cir.

SRS Da ena

Callaway v. Hafeman, 832 F.2d 414 (7th Cir. 1986)

Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d

775 (2d Cir. 1991), cert. denied, US. __, 112

Pe PEE Se irr iS 0s cower cevrvnsceetes

Gonzales v. Benavides, 774 F.2d 1295 (5th Cir. 1985),

cert. denied, 475 U.S. 1140 (1986)..............

Gray v. Lacke, 885 F.2d 399 (7th Cir. 1989), cert.

Gemied, GS US. TEGP CIGGE). occ cc eccccccccses

Hall v. Ford, 856 F.2d 255 (D.C. Cir. 1988).......

Kurtz v. Vickrey,, 855 F.2d 723 (11th Cir. 1988)...

Marshall v. Allen, 984 F.2d 787 (7th Cir. 1993)....

McKinley v. City of Eloy, 705 F.2d 1110 (9th Cir.

oe SOE Oe EEE OE Bote pe

Morgan v. Ford, et al., 6 F.3d 750 (11th Cir. 1993)

O’Connor v. Steeves, et al., 994 F.2d 905 (1st Cir.

1993), cert. denied sub nom, Town of Nahunt, Mass.

v. O'Connor, __ U.S. __, 114 S.Ct. 634 (1993)..

Peterson v. Atlanta Housing Authority, 998 F.2d 904

SERRE SG aera as ne

Piesco v. City of New York, Dept. of Personnel, 933

F.2d 1149 "(0d Cir. 1991), cert. denied, ___ US.

peers eee repre

Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988) ....

hers ae

TABLE OF AUTHORITIES - Continued

Page

Saulpaugh v. Monroe Community Hospital, 4 F.3d

134 (2d Cir. 1993), cert. denied, __ U.S. __, 114

S.Ct. 1199 (SOG Kcscengusenesecterss 19, 25, 26, 27

Thompson v. City of Starkville, 901 F.2d 456 (5th Cir.

1990)... .0cccsesvtue SUURACEREEGUORENY SEL db ees Ges’ 22

Versarge v. Township of Clinton, New Jersey, 984 F.2d

1359 (3d Cie. TOG pxcankah scetadeceeseescecssx sss 21

White Plains Towing Corp. v. Patterson, 991 F.2d

1049 (2d Cir. 1993), cert. denied sub nom, White

Plains Towing Corp. v. Wright, __ U.S. __, 114

S.Ct. 185 (199BP. oi c xu Cab aes 0 8 68 25

Wilson v. UT Health Center, 973 F.2d 1263 (5th Cir.

1992), cert. denied, __ U.S. __, 113 S.Ct. 1644

(1993) . . 0 ss:0 «cwswenewnbee eek 19, 21, 22

Wulf v. City of Wichita, 883 F.2d 842 (10th Cir. 1989) 22, 23

Yatvin v. Madison Metropolitan School District, 840

F.2d 412 (70 COR Teta aces et ee reeds iicctencnce: 25

CONSTITUTIONAL PROVISIONS

Fourteenth Amendment to the United States Con-

otitertiom.. . 6s 6ca cd 8c ce ee ea ee hes cbses 8

STATUTES

18 United Staten: Sr Bee oie hc ok Sakcd bcekd scence: &

28 United Statin Gale mien Gabakunscachedwuwenecwe cs 2

28 United States Cie Me ceed lccksbaebeesécccvénecss 2

vii

TABLE OF AUTHORITIES - Continued

Page

ae United States Code 1331 ..... 0.22... cccccccccccces 2

28 United States Code 1343................. 0. ceceeee 2

42 United States Code 1983..................... ae

a ee 8

ee 8

Getemeits MU OPOPOED ooo ccc ccs ccvcccccccccesecs 8

ee ee 17

O.C.G.A. Section 45-19-20 et seq. .................. 6, 17

OTHER AUTHORITIES:

Stephen Allred, From Connick to Confusion, The

Struggle to Define Speech on Matters of Public

Concern, 64 Ind.L.J. 43 (1988) ..................... 20

Cynthia L. Estlund, Speech on Matters of Public

Concern: The Perils of an Emerging First Amend-

ment Category, 59 Geo. Wash. L. Rev. 1 (1990)..... 19

Toni M. Massaro, Significant Silences: Freedom of

Speech in the Public Sector Workplace, 61

re ou odes. cwlck he vebews ee eee. 20

In The

Supreme Court of the United States

October Term, 1993

JACQUELINE R. MORGAN,

Petitioner,

JOHN S. FORD, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

The petitioner, JACQUELINE R. MORGAN, respect-

fully prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Eleventh Circuit.

OPINIONS BELOW

The panel opinion of the Court of Appeals for the

Eleventh Circuit was entered on November 9, 1993, (A 3)

and is reported at 6 F.3d 750 (11th Cir. 1993). Petitioner

filed a timely petition for rehearing and suggestion for

rehearing en banc. The Eleventh Circuit Court of Appeals

entered an order denying this petition on January 28,

1994. (A 1) See 15 F.3d 1099 (11th Cir. 1994).

JURISDICTION

This cause arose under 42 United States Code Section

1983. The United States District Court for the Northern

District of Georgia had jurisdiction under 28 United States

Code Sections 1331 and 1343. On August 19, 1991, the

district court granted in full respondents’ motion for

summary judgment. The Court of Appeals for the Elev-

enth Circuit had jurisdiction of this cause under 28 United

States Code Section 1291. Jurisdiction of this Court is

invoked under 28 United States Code Section 1254.

CONSTITUTIONAL PROVISIONS INVOLVED

First Amendment to the United States Constitution:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peace-

ably to assemble, and to petition the Govern-

ment for a redress of grievances.

Fourteenth Amendment to the United States Constitu-

tion:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No state shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

ID ta

STATUTES INVOLVED

42 United States Code Section 1983:

Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any

State or Territory of the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress. For the

purposes of the section, any Act of Congress

applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the

District of Columbia.

STATEMENT OF THE CASE

In 1984, petitioner was hired as a Correctional Officer

by the Georgia Department of Corrections. She was

assigned to provide security at the Augusta Correctional

and Medical Institute (ACMI) until her constructive dis-

charge in April, 1988. Petitioner served under respondent

Ford’s direct supervision for two periods between 1985

and 1988. The Superintendent at ACMI was respondent

Charles Burden.

Throughout petitioner's employment, Ford made

sexually suggestive comments to her. For instance, Ford

told her that she “had not had a real man until she had”

him. Ford also said that Superintendent Burden had told

him [Ford] that he “couldn’t get his paycheck and his

pussy in the same place,” but that what Burden “did not

know would not hurt him.” Ford made constant requests

for dates, and when refused, Ford threatened her: “There

is a thin line between love and hate, and one day [Mor-

gan] was going to realize that [she] loved” him.

ai.

In September, 1987, petitioner returned from military

leave. About this time, Sheila Parrish, another female

corrections officer, made sexual harassment claims

against Ford. Previously, the petitioner, Parrish and other

female employees had discussed Ford’s sexual harass-

ment, but had not brought it to Superintendent Burden’s

attention. They were extremely concerned about retalia-

tion. Ford previously had “gotten in [Morgan’s] face” and

threatened that if she told of his harassment, “nobody

was going to believe [her].”

After Superintendent Burden posted a bulletin

“about sexual harassment in the workplace,” however,

Parrish overcame her reluctance to complain. The bulletin

“explained what sexual harassment was, statements and

innuendoes, and the number to call, which that number

was the [State of Georgia’s Office of] Fair Employment

Practices number.”

Once Parrish identified petitioner as a witness to

Ford’s sexual misconduct, Burden asked petitioner to

meet him to discuss Ford’s actions. During this meeting,

Burden was immediately skeptical. Nonetheless, after-

wards, Burden advised petitioner to go to the Depart-

ment’s Internal Affairs Section. Petitioner did so in

accordance with procedures established for such matters.

At no time did she seek favorable treatment such as a pay

raise, transfer or a promotion. Along with Parrish and her

co-workers, her goal was simply to stop Ford’s sexual

harassment.

Prior to her speech about Ford’s misconduct, peti-

tioner always had been viewed as a capable worker. She

had never been disciplined. As soon as Ford learned of

her meeting with Burden, however, petitioner’s troubles

got worse. Ford threatened petitioner that she “better

stop this shit or else.” Ford disciplined her for failing to

respond to an “officer needs assistance” call, despite wit-

ness testimony to the contrary. Ford also told other super-

visors to write up petitioner whenever possible. These

and other adverse actions all occurred while Internal

Affairs was conducting its “investigation” of Ford.

Then, on October 9, 1987, respondent Burden joined

the other supervisors in disciplining petitioner for her

speech. Burden issued an official written reprimand.

Recently, you came to my office for the pur-

pose of providing supporting testimony to Offi-

cer Shiela [sic] Parrish’s claim of sexual

harassment by Lt. John Ford.

During the interview with me [Supt. Bur-

den] and with Interal [sic] Affairs Investigator

Horne, you failed to establish any incident

which would be considered sexual harassment

either directed at you or Officer Parrish.

This letter is a warning. You have made a

serious charge against your supervisor but were

unable to substantiate those charges. Your hav-

ing done so is unprofessional, unethical, and

deemed harassing in itself.

While I will not tollerate [sic] sexual harass-

ment in the workplace, I am equally protective

of those wrongfully accused You are hereby

warned against such future misconduct. Should

misconduct of this nature reoccur disciplinary

measures will be taken.

Burden also wrote a letter to Ford on the same day,

clearing him of sexual harassment charges. The letter,

however, cautioned Ford about his “admitted personal

conversation and remarks.” Although Burden admon-

ished Ford not to “plac[e] himself in a situation that could

be perceived as personal,” Burden took no other action.

]

Burden’s premise was that no sexual harassment

occurred because Ford made no demands for sexual

favors.

During the following month, petitioner’s difficulty

with Ford continued to be severe. Ford took the highly

unusual step of giving petitioner an interim job rating

which was the lowest she had ever gotten while at the

department. Finally, after being overwhelmed with

adverse actions by department officials following her

allegations against Ford, petitioner filed a charge of sex-

ual harassment and retaliation with the Office of Fair

Employment Practices (“OFEP”). An independent state

agency, OFEP is responsible for investigating charges of

discrimination.' Petitioner followed the procedures out-

lined in the bulletin that Burden previously had posted at

ACMI.

When Ford learned of the OFEP investigation, he set

out to make petitioner even more miserable.? The

cumulative effect of Ford’s misconduct and the subse-

quent vendetta caused her depression, anxiety and intim-

idation. This situation, made worse by the inherent stress

of working in a prison, led to her resignation in April, |

1988. Sheila Parrish, too, resigned from ACMI because of .

the harassment and retaliatory measures.

In late August, 1989, OFEP concluded its investiga-

tion of petitioner’s charge. OFEP found cause to believe

that Ford had discriminated against petitioner because of

1 O.C.G.A. Section 45-19-20 et seq.

2 For example, Ford gave petitioner dangerous assignments

for which she did not have proper certification. Petitioner also

was assigned to the dorm with AIDS patients, and to the hous-

ing ward for violent inmates. Ford continued to comment about

his “manhood.” Petitioner’s treatment was so calculatedly petty

that she was denied sick leave when she was ill with the chicken

pox.

her sex, and that the department had retaliated against

her for opposing Ford’s misconduct. Sheila Parrish

received a similar finding.

Petitioner filed suit under 42 United States Code Sec-

tion 1983, claiming that the respondents had violated her

First Amendment right to freedom of speech, as applied

to the states by the Fourteenth Amendment to the United

States Constitution. Following discovery efforts, respon-

dents moved for summary judgment on all claims. The

district court granted the motion in full. On appeal, the

Eleventh Circuit rejected petitioner’s first amendment

contention.* The Court reasoned that petitioner had not

“gone public” with her speech, and that she had spoken

“primarily as an employee in an effort to improve her

own working conditions,” and “not as a citizen on mat-

ters of public concern.”

REASONS FOR GRANTING THE WRIT

I. Introduction

The Court should grant the petition because the Elev-

enth Circuit’s decision in Morgan presents the “special

and important reasons” needed to justify the writ of

certiorari. Supreme Court Rule 10.1.

Morgan's speech regarding sexual harassment by her

prison supervisor addressed a significant issue of miscon-

duct in the workplace generally. Not only is sexual

harassment a civil or tort-like wrong under both federal

* Petitioner also filed a claim against the Georgia Depart-

ment of Corrections under Title VII of the Civil Rights Act of

1964, alleging sexual harassment and retaliation for opposing

discriminatory practices. The Eleventh Circuit reversed the dis-

trict court’s grant of summary judgment on petitioner’s Title VII

constructive discharge claim, and that issue is not before this

Court.

Sn nn

and Georgia law, it is misconduct often threatened or

carried out by criminal means. See, e.g., O.C.G.A.

§ 16-5-20 (simple assault); O.C.G.A. § 16-5-23 (simple

battery); O.C.G.A. § 16-5-41 (false imprisonment); 18

U.S.C. § 241 (general civil rights conspiracy statute). Indi-

vidual resistance to and exposure of such misconduct is

therefore a matter of overriding public concern wherever

it happens. Where, as here, the state is implicated in the

misconduct, the vindication of a core constitutional right

under the Fourteenth Amendment is at stake. See Connick

v. Myers, 461 U.S. 138, 146 (1983); Givhan v. Western Line

Consolidated School District, 439 U.S. 410 (1979).

While this Court only recently reaffirmed its vig-

orous commitment to protect the victims of workplace

sexual harassment, Harris v. Forklift Systems, Inc., 510 U.S.

___, 114 S.Ct. 367 (1993), the Eleventh Circuit decision

undermines that commitment by blunting one of the most

effective tools of self-protection available to working

women such as Jacqueline Morgan: freedom of speech.

This right, as petitioner conceives it, includes the right to

discuss with fellow employees the occurrence of illegal or

criminal acts in the workplace, and the concomitant right

to report such acts to persons or agencies officially desig-

nated by the state for dealing with them. The fact that

this case involves allegations of sexual harassment -

which were deemed credible by the only independent state

agency which investigated them - adds a sense of

urgency to petitioner’s first amendment argument. That

dimension, however, is not analytically critical to the first

amendment principle involved.

By asserting the primacy of Connick at the expense of

Pickering v. Board of Education, 391 U.S. 563 (1968), the

Eleventh Circuit’s decision places an exaggerated - and

extraordinarily unfair - emphasis on petitioner’s failure

to “go public” with her sexual harassment charges. As

will be demonstrated, that emphasis conflicts sharply

with this Court’s decisions in Givhan v. Western Line Con-

solidated School District, 439 U.S. 410, 415-16 (1979); Con-

nick v. Myers, 461 U.S. 138, 148 n.8 (1983); and Rankin v.

McPherson, 483 U.S. 378, 387 n.11 (1987). Supreme Court

Rule 10.1(c). It also conflicts with this Court’s decisions

suggesting that the state cannot create a public forum and

then punish those who use that forum properly to com-

municate about subject matter protected by the First

Amendment. See Cox v. Louisiana, 379 U.S. 559 (1965);

Florida Star v. B.J.F., 491 U.S. 524 (1989).

In addition, while the Eleventh Circuit in Morgan

along with several other courts have recognized that

“sexual harassment in the workplace is a matter of impor-

tant social interest,” some courts nevertheless seem

driven to probe deeply - petitioner would say subjec-

tively — into the alleged personal motive. Under this

restrictive view of Connick, even if speech can fairly be

described as addressing a matter of public concern, it can

lose first amendment protection because a complainant

has a personal interest in the subject. Thus, only the truly

altruistic and the openly heroic are constitutionally wor-

thy. Again, as will be shown, consideration of this amor-

phous factor under the Connick “content, form and

context” analysis has resulted in conflicting lower court

decisions which distort and undermine the relationship

between Connick and the balancing analysis

* Petitioner is mindful of the risks of issuing a challenge to

respondents, but she does not believe that they can cite to a

single decision of this Court where the existence of a personal

stake in the outcome of a controversy has ever deprived the

speaker or writer of first amendment protection. Were it not for

the cases that have so misconstrued Connick, petitioner doubts

that any such cases could be found in the lower courts as well.

ccc

called for under Pickering. Supreme Court Rule

10.1(a).

The intervention of this Court is urgently needed to

resolve the doctrinal tension that is present in this impor-

tant area of first amendment jurisprudence. As the law

presently stands, no attorney — whether representing a

prospective plaintiff or defendant - can explicitly advise

a client about liability, settlement or the hazards of trial.

As the “public concern” standard was construed by the

Eleventh Circuit, vastly too much depends on the trial

judge’s predelictions and linguistic facility, and far too

little on the concrete circumstances associated with work-

place expression.

II. The Eleventh Circuit Misapplied this Court’s Deci-

sion in Givhan v. Western Line Consolidated School

District; Connick v. Myers; and Rankin v. McPher-

son

The Morgan panel refused to protect plaintiff's

speech on a vital matter of public concern allegedly

because she did not “attempt to make the concerns pub-

2 al

lic”:

The speech that Morgan cites is in the form of

complaints to official bodies - the Superintendent

of ACMI, Internal Affairs, and the Office of Fair

Employment Practices. She did not relate her

concerns about sexual harassment to the public

or attempt to involve the public in any manner.

Morgan's expressions ‘in no way drew the pub-

lic at large or its concerns into the picture.’

Pearson v. Macon-Bibb County Hospital Authority,

962 F.2d 1274, 1279 (11th Cir. 1992).

Morgan, 6 F.3d at 754-55 (emphasis added). In a footnote,

the Eleventh Circuit tried to downplay the importance of

this consideration, describing it only as a “relevant fac-

tor.” Id. at 754 and n.5. In actuality, however, the court

gave it dispositive weight.

To pass first amendment muster as the Eleventh Cir-

cuit reads Connick, a public employee must pursue a

course of action that will intensify workplace antagonism,

will make dispute mediation far less likely and will

heighten — not lessen - the employee’s vulnerability

under the Pickering balancing analysis if a lawsuit results.

For many public employees, this view of Connick is a

prescription for suffering in silence. Few will be bold

enough to undertake the economic, professional and per-

sonal risks demanded by the Eleventh Circuit if the first

amendment does not offer a safe harbor for the private,

yet respectful, articulation of publicly important work-

place grievances.

This is contrary to all of the Court’s relevant prece-

dent.

For example, in Givhan v. Western Line Consolidated

School District, 439 U.S. 410, 415-16 (1979), this Court

considered whether an employee’s speech about race dis-

crimination in public employment, made in a private

meeting with her supervisor, was protected by the First

Amendment. 439 U.S. at 415-16. The former Fifth Circuit

Court of Appeals had concluded that “because petitioner

had privately expressed her complaints and opinions to

the principal, her expression was not protected. ... ” Id.

at 413. Reversing the Fifth Circuit, this Court recognized

an important point:

. . . Pickering, Perry, and Mount Healthy do not

support the conclusion that a public employee

forfeits his protection against governmental

abridgement of freedom of speech if he decides

to express his views privately rather than pub-

licly. While those cases each arose in the context

of a public employee’s public expression, the

rule to be derived from them is not dependent

on that largely coincidental fact.

Id. at 414 (emphasis added).

Not to be overlooked in Givhan is the important fact

that the teacher, a black woman, complained about racial

discrimination in a school that had recently been subject

to a district-wide desegregation order. Her complaints

were not general in nature, but, in part, were related to

“employment policies and practices” at the very school

where she taught. She apparently believed these policies

and practices to be racially discriminatory in purpose or

effect. This Court was notably unconcerned with whether

the plaintiff might in some way benefit personally, pro-

fessionally or economically if her complaints or criticisms

were acted upon favorably. This crucial aspect of Givhan

was ignored by the Eleventh Circuit.

In Connick v. Myers, 461 U.S. 138, 140, 148 (1983), the

first amendment issue stemmed from an office dispute

concerning a transfer. Myers, an unhappy assistant faced

with a transfer she did not want, drafted and circulated a

questionnaire to her co-workers about the handling of

transfers generally. She was discharged for insubordina-

tion. The Court’s primary purpose in Connick was to

clarity the public concern standard first enunciated in

Pickering. No Justice in Connick questioned Givhan.

It is highly significant that on the public concern

issue, this Court in Connick gave no weight to the fact that

the plaintiff circulated the questionnaire wholly within

the office and only to co-workers. If this had been a

“relevant” or potentially dispositive factor, then the

Court could have ruled the entire questionnaire to be

unprotected expression on that basis alone and reversed

without further discussion. The Court instead focused on

the objective content of the questionnaire. For all but one

of its questions, the objective content was enough to hold

that they “were extensions of [the plaintiff’s] dispute

over her transfer to another section of the criminal court.”

Id. at 149. To that extent, this Court held, they did not

address a matter of “public concern” and the First

Amendment did not protect them. This analysis is consis-

tent with the objective content emphasis in Givhan.5

One question on the questionnaire at issue in Con-

nick, however, did “[touch] upon” a matter of public

concern. The now well known question 11 asked

whether assistant district attorneys “ever felt pressured

to work in political campaigns on behalf of office sup-

ported candidates.” Id. at 149. Describing such pressure

as “a coercion of belief in violation of fundamental consti-

tutional rights,” the Court found the issue to be “a matter

of interest to the community upon which it is essential

that public employees be able to speak out freely without

> It is important to note that in Givhan, the remand was not

for an appiication of the Pickering balancing test. On that sub-

ject, the Court observed that under Pickering, private speech on

a matter of public concern would be assessed in terms of the

“manner, time and place in which it is delivered.” Givhan, 439

U.S. at 415 n.4. Nothing in Connick altered this fundamental

proposition.

choice in Connick. 461 U.S. at 149. The phrase reflects what is

more or less a presumption — fostering reasonable breathing

space for first amendment values — that workplace speech satis-

fies the “public concern” standard if the speech, even in part, is a

“matter of interest to the community” at large. Id. The phrase is

also consistent with the observation in Connick that speech loses

first amendment protection only when it refers to “matters . . . of

personal interest.” Id. at 147. The Eleventh Circuit decision

below radically distorted this part of Connick in holding that any

semblance of personal interest defeated petitioner’s free speech

claim.

fear of retaliatory reprisal.” Id. Based on those consider-

ations, the Court proceeded to undertake the “manner,

place and time analysis” required under Pickering. Id. at

149-154. Again, this approach in no way departed from

anything said in Givhan; indeed, it was undertaken in

Connick in explicit reliance upon footnote 4 in Givhan. 461

U.S. at 153-54.

It is difficult to fathom how freedom from the coer-

\ cion of sexual harassment in the workplace could be any

less a matter of interest to the community than political

coercion — particularly where state actors are culpable.

On that basis alone, the petitioner would appear to have

met the Connick public concern standard. The Eleventh

Circuit opinion, however, completely ignores this aspect

of Connick and substitutes what is essentially an ad hoc

inquiry into whether an employee aired her concerns

publicly. This inquiry is plainly and simply not a part of

the public concern analysis under Connick. The Eleventh

Circuit took a factor relevant to the Pickering balancing

analysis (and only to that) and realigned it under the

public concern test.

This approach is genuinely pernicious. The bright

line for the Eleventh Circuit turns on whether a plaintiff

goes public with her crusade. Granted, this bright line

has the virtue of being an “objective” standard. It is

simply the wrong bright line. It is far less speech protec-

tive than the “objective” test actually articulated in Giv-

han and Connick.

As a general proposition, the privateness of expres-

sion will work in favor of the first amendment claimant

under the Pickering “manner, time and place” inquiry as

clarified by Givhan and Connick. Yet, if the Eleventh Cir-

cuit’s approach is constitutionally correct, then this same

factor will weigh heavily against a first amendment

claimant's effort to satisfy the public concern standard.

The Eleventh Circuit’s inversion of the reasoning in Con-

nick creates an unnecessary and false tension in the juris-

prudence of workplace first amendment rights. Worse

still, it substantially diminishes the scope of first amend-

ment protection for public employees in a manner not

contemplated by this Court in Givhan or Connick.

It remains a mystery why the Eleventh Circuit did

not attach more importance to Rankin v. McPherson, 483

U.S. 378 (1987), which was decided four years after Con-

nick v. Myers. Rankin seemingly put to rest the public

versus private expression distinction. An employee of a

county constable’s office, upon hearing of the unsuccess-

ful attempt to assassinate then-President Reagan, stated

to her boyfriend: ” . . . if they go for him again, I hope

they get him.” This remark was overheard by another

employee who reported the remark to the constable. The

constable called the plaintiff to his office, confirmed that

she had made the remark, and fired her. Rankin, 483 U.S.

at 381-382.

The Rankin Court specifically rejected the Govern-

ment’s contention that the vrivate nature of the statement

vitiated “the status of the statement as addressing a mat-

ter of public concern.” Id. at 387, n.11. As the Court

observed:

Vigilance is necessary to ensure that public

employees do not use authority over employees

to silence discourse, not because it hampers

public functions, but simply because superiors

disagree with the content of employees’ speech.

Id. at 384. The Court held that the content of the state-

ment, made during a discussion of Reagan Administra-

tion policies, was a matter of public concern. From there,

the Court proceeded to the balancing analysis required

by Pickering and upheld the first amendment claim in all

respects. Id. at 388-392.

All Justices in Rankin appeared to agree that an objec-

tive standard determines whether speech is a matter of

public concern. The four Rankin dissenters, led by Justice

Scalia, opposed what they perceived to be the majority’s

blurring of objective and subjective factors under Connick.

Specifically, Justice Scalia strongly chided the majority for

impermissibly injecting the motive of the speaker into

first amendment analysis:

[McPherson's political] criticisms merely

reveal[ed] the speaker’s motive for expressing

the desire that the next attempt on the President

succeed, in the same way that a political assas-

sin’s remarks to his victim before pulling the

trigger might reveal a motive for the crime.

483 U.S. 396-397. In Justice Scalia’s view, the motive for

speech must be kept distinct from its objective content

which, in Rankin, pointed toward low value, unprotected

speech — at least in the public workplace. In short, a good

motive cannot save objectively unprotected speech from

sanction. Petitioner suggests that the converse is equally

true: a bad motive cannot be used to deprive objectively

protected speech from full first amendment protection.”

This proposition is arguably well settled by the Court's

workplace free speech decisions.

Yet, the Eleventh Circuit’s use of personal motive to

hold against petitioner below is a clear inversion of the

first amendment methodology of Givhan, Connick and

7 In this regard, the Eleventh Circuit begrudgingly

acknowledged that when petitioner spoke on behalf of a co-

worker, the speech contained a “pui lic concern aspect.” Morgan

v. Ford, 6 F.2d 750, 755 (11th Cir. 1993). This part of petitioner’s

speech simply was not enough to make it the “primary” pur-

pose. Petitioner submits that there is no basis in this Court's

decisions for the “primary” purpose corollary to the public

concern standard.

Rankin. These decisions establish that when speaking on a

matter of public concern, the speaker’s forum is imma-

terial to the public concern inquiry. Despite this prece-

dent, the Morgan panel held that while the petitioner’s

motives were pure, they were_not pure enough for first

amendment protection, because petitioner did not

“attempt to involve the public in any manner.”® This

statement not only misstates the law, it is factually erro-

neous as well.

Petitioner indeed made her sexual harassment con-

cerns public. She did so in a manner directed by the state

and did so precisely in accordance with those directives.

More important, these procedures were established by

the state for the very reasons that underlie this Court’s

balancing analysis under Pickering: to promote efficiency

and to minimize disruption in the workplace. First, at the

specific request of the prison superintendent who was

investigating a co-worker’s sexual harassment complaint,

petitioner told him what she knew. Then, at the superin-

tendent’s specific suggestion, petitioner took her own

sexual harassment complaints to the Internal Affairs Sec-

tion.? Finally, exactly in accordance with the bulletin

posted at ACMI, she filed under oath a charge of discrim-

ination and retaliation with the official state Fair Employ-

ment Practices agency.!°

In this respect, petitioner went public with her sexual

harassment concerns in three distinct fora made available

by the state for the purpose of hearing discrimination

complaints. The notion of having to go public to satisfy

the public concern standard represents a comic book view

of the First Amendment. For reasons understandable to

8 Morgan v. Ford, 6 F.3d 750, 755 (11th Cir.1993).

9 See O.C.G.A. Section 42-5-36.

10 See O.C.G.A. Section 45-19-20 et seq.

anyone who has ever been in a subordinate position in

the workplace (which includes just about everybody),

petitioner took the procedurally approved course. Yet,

having extended this invitation to petitioner and opened

the fora to hear her complaints, the state now denies that

the subject matter of petitioner’s complaints is a matter of

public concern.

Contrary to what the Eleventh Circuit held, the state

cannot entice and punish at the same time. For example,

in Cox v. Louisiana, 379 U.S. 559, 569-571 (1965), the appel-

lant was convicted under a Louisiana statute making it a

misdemeanor to picket or parade “in or near” a court-

house. Law enforcement officials at the scene told civil

rights demonstrators that they could demonstrate across

the street from the courthouse. Relying on this, the dem-

onstrators assumed that they would not be in violation of

the statute. They were wrong. The Supreme Court

reversed appellant’s conviction on the ground that to do

otherwise “would be to sanction an indefensible sort of

entrapment by the State — convicting a citizen for exercis-

ing a privilege which the State had clearly told him was

available to him.” Id. at 571 quoting Raley v. Ohio, 360 U.S.

423, 426 (1959). The rationale of Cox v. Louisiana applies to

petitioner's case.

Much more recently, the Supreme Court in Florida

Star v. B.J.F., 491 U.S. 524 (1989), overturned an invasion

of privacy judgment against a newspaper for publishing

the name of a rape victim in violation of a Florida crimi-

nal statute. Id. at 527-528. One of the major factors in the

Court’s reasoning was the police department's distribu-

tion of a press release naming the victim. In reliance on

that, the newspaper reported the name. This Court was

greatly concerned about the state placing information in

the public domain and then permitting an invasion of

privacy lawsuit against a newspaper for reporting public

domain information. Id. at 535-536. As suggested in Cox,

the state’s conduct smacked of entrapment.

Although the opportunity to grant the writ on the

private speech/personal interest issue has presented

itself in several recent cases, this Court has passed each

time. See, e.g., Saulpaugh v. Monroe Community Hospital, 4

F.3d 134 (2d Cir. 1993), cert. denied, __ U.S. __, 114 S.Ct.

1189 (1994); O’Connor v. Steeves, et al., 994 F.2d 905 (lst

Cir. 1993), cert. denied, sub. nom Town of Nahunt, Mass. v.

O’Connor, __ U.S. __, 114 S.Ct. 684 (1993); Wilson v. UT

Health Center, 973 F.2d 1263 (5th Cir. 1992), cert. denied, __

U.S. __, 113 S.Ct. 1644 (1993). The circuit courts are now

in fundamental conflict on Connick and the probability of

a shift toward greater doctrinal uniformity is remote. This

Court’s detachment has contributed to the disarray. Con-

tinued hesitation will only make matters worse.

Ill. In Analyzing and Applying the Connick v. Myers

Public Concern Standard, The Circuit Courts Have

Applied Divergent Tests and Reached Seriously

Inconsistent Results

Many circuit courts recognize that speech regarding

workplace sexual harassment is a matter of public con-

cern; yet, these courts have reached conflicting decisions

on whether speech is constitutionally protected based

upon the weight given to the plaintiff’s “motive” in

speaking.!!

11 Several legal scholars have addressed this conflict, and

have emphasized the need for clarification in order to vindicate

free speech rights on matters of public concern. See, e.g., Cynthia

L. Estlund, Speech on Matters of Public Concern: The Perils of an

Emerging First Amendment Category, 59 Geo. Wash. L. Rev. 1,

A. Decisions in Conflict with Morgan

There are numerous circuit court decisions in conflict

with the Eleventh Circuit’s holding in Morgan. The Fifth

and the Tenth Circuits provide perhaps the leading exam-

ples.!2

36-39 and nn.210-225 (1990) (“Connick seems to require that in

order to secure the status of speech on matters of public con-

cern, grievances be purged of the taint of self-interest, and be

distilled into a generalized political or social commentary or

demand for reform . . . The Connick formula systematically

denigrates the importance of the particular grievance to gener-

ating public concern over an issue. As such, it deprives each

individual self-interested speaker of the very legal protections

she may need in order to discover and join those who share her

concerns . . . ”); Toni M. Massaro, Significant Silences: Freedom of

Speech in the Public Sector Workplace, 61 S.Cal.L.Rev. 3, 20-24 and

nn.95, 100-104 (1987) (” .. . In numerous post-Connick cases, the

lower courts have concluded that the employee speech in ques-

tion was personal and therefore not protected. [citations omit-

ted]... The message of the case law on public employee speech

is disconcerting . . . The decisions encourage workers to carry

their grievances to outside fora —- to newspaper, public meet-

ings, television, or other similar avenues — even though public-

ity could fan into flames an ember that might have been doused

quickly and quietly within the workplace. The decisions also

discourage workers from speaking up on the topics, and in the

manner, most likely to occur to them: on internal, work-related

problems expressed to a co-worker or supervisor during the

work days . . . ;”) see also Stephen Allred, From Connick to

Confusion: The Struggle to Define Speech on Matters of Public Con-

cern, 64 Ind.L.J. 43 (1988).

12 The Eleventh Circuit’s holding in Morgan concerning

“motive” in speaking is at odds with the analytical approach

generally taken by the Courts of Appeals for the First, Third,

Fifth, Ninth, Tenth and District of Columbia Circuits. First Cir-

cuit: O’Connor v. Steeves, et al., 994 F.2d 905, 913-915 and nn.4-6

(1st Cir. 1993), cert. denied, sub nom Town of Nahunt, Mass v.

O’Connor,__ U.S. ___, 114 S.Ct. 634 (1993) (Court addressed the

In Wilson v. UT Health Center, 973 F.2d 1263 (5th Cir.

1992), cert. denied, __ U.S. __, 113 S.Ct. 1644 (1993), a

case very similar factually to Morgan, the Fifth Circuit

Court of Appeals reached the opposite result. Wilson was

an officer with the University of Texas Health Center’s

(UTHC) police force. She alleged that officials demoted

and discharged her for reporting sexual harassment

within the health center’s police force against herself and

other co-employees. 973 F.2d at 1265-1266. At trial, the

“threshhold” issue under Connick of whether O’Connor’s alle-

gation of official misconduct against Steeves, an elected official,

was speech on a matter of public concern; discussed the varying

approaches taken by other Courts of Appeals; and found that its

precedent supported the “content-based” approach, and where

an employee’s speech involved an “inherent matter of public

concern to the electorate, the court may eschew further inquiry

into the employee’s motives as revealed by the form and context

of the expression”); and Brasslett v. Cota, 761 F.2d 827, 844 n.14

(1st Cir. 1985); Third Circuit: Rode v. Dellarciprete, 845 F.2d 1195,

1201-1202 (3d Cir. 1988) (” . . . Dismissing Rode’s speech about

racial discrimination as unprotected merely because she had a

personal stake in the controversy fetters public debate on an

important issue because it muzzles an affected public employee

from speaking out... ”); Versarge v. Township of Clinton New

Jersey, 984 F.2d 1339, 1365 (3d Cir. 1993) (“the law in this circuit

is that motivation is merely one factor to be considered .. . in

assessing the character of the [employee’s] speech”); Ninth Cir-

cuit: McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983)

(speech that concerns “issues about which information is

needed or appropriate to enable the members of society” to

make informed decisions about the operation of their govern-

ment merits the highest degree of first amendment protection)

quoting Thornhill v. Alabama, 310 U.S. 88, 102 (1940); District of

Columbia Circuit: Hall v. Ford, 856 F.2d 255, 260 (D.C. Cir. 1988)

(speech about alleged violations of NCAA and University rules

may be protected even if the speech reflected “job-related dis-

agreements.”)

district court ruled that Wilson’s speech did not involve a

matter of public concern. Id. at 1268.

The Fifth Circuit reversed and remanded for a jury

trial.15 The court reasoned:

The content of Wilson’s speech — reports of sex-

ual harassment perpetrated on her and other

women at UTHC - is of great public concern. Cf.

Connick, 461 U.S. at 148, n.8 (plaintiff’s constitu-

tional ‘right to protest racial discrimination [is]

a matter inherently of public concern,’ citing

Givhan v. Western Consolidated School District, 439

U.S. 410, 415-16 (1979)...

Connick ‘hold[s] only that when a public

employee speaks not as a citizen upon matters of

public concern, but instead as an employee upon

matters of personal interest,’ the First Amend-

ment does not protect the employee from disci-

plines for speaking 461 U.S. at 147 (emphasis

added). The words ‘not’ and ‘instead’ in this key

statement can only mean that the Court

removed from First Amendment protection only

that speech that is made only as an employee,

and left intact protection for speech that is made

both as an employee and as a citizen.

Wilson, 973 F.2d at 1269-1270 (emphasis in original).'4

In Wulf v. City of Wichita, 883 F.2d 842 (10th Cir. 1989),

the court reviewed a police officer’s claim that he was

fired for writing the State Attorney General seeking an

13 The Fifth Circuit’s analysis in Wilson is consistent with its

earlier decisions. See, e.g., Thompson v. City of Starkville, 901 F.2d

456, 465 (5th Cir. 1990) and Gonzales v. Benavides, 774 F.2d 1295,

1300-01 (5th Cir. 1985), cert. denied, 475 U.S. 1140 (1986).

14 The Wilson Court also recognized that Wilson’s speech

was protected under Givhan even though she had chosen an

“internal forum” in which to express her concerns. Id. citing

Givhan, 439 U.S. at 415-16 (other citation omitted). This portion

of the opinion, too, stands in stark contrast to Morgan.

investigation. Wulf’s letter had included allegations of

misuse and misappropriation of public funds and sexual

harassment of a female officer. Id. at 857. The Wulf court

concluded “that the content of Wulf’s letter strongly sup-

ports a finding of public concern,” and that “the form and

context of the letter also support such a finding.” Id. at

860, n.26. It specifically rejected the claim that the letter

was a “mere extension of a personnel dispute” and that

the context of Wulf’s speech showed that it “arose out of

Wulf’s displeasure at being transferred . . . and was the

culmination of a personal vendetta by Wulf against

[defendant] LaMunyon.” Id.

Finding that the speech addressed a matter of public

concern, the Wulf court noted:

[E]ven the questionnaire in Connick, which the

Court viewed as simply an extension of a per-

sonal dispute between employer and employee,

contained one matter of public concern. Sim-

ilarly, Wulf’s letter, while arguably linked to

some degree to his personal dispute with

LaMunyon and to his dissatisfaction with his

transfer to the Records Department which he

viewed as retaliatory, contains allegations of

public concern. Id. at 860.

B. Decisions Compatible with Morgan

In focusing upon the “point” of Morgan’s speech

instead of the “content, form and context, as revealed by

the whole record,” the Eleventh Circuit embraced reason-

ing that generally has been applied by the Courts of

Appeals for the Second Circuit, the Sixth Circuit, and

most notably, the Seventh Circuit. See Morgan, 6 F.3d at

754-755 citing Callaway v. Hafeman, 832 F.2d 414, 417 (7th

Cir. 1986) and Marshall v. Allen, 984 F.2d 787, 796 (7th Cir.

1993).15

In Callaway v. Hafeman, 832 F.2d 414 (7th Cir. 1987),

the Seventh Circuit denied first amendment protection to

speech about sexual harassment that the plaintiff person-

ally had experienced. It defined the standard as follows:

While it is undoubtedly true that incidences of

sexual harassment in [public employment] are

inherently matters of public concern, the Con-

nick ‘test requires us to look at the point of the

speech in question: was it the employee’s point

to bring wrongdoing to light or to raise other

issues of public concern, because they are of

public concern? Or was the point to further

some purely private interest?’ Linhart v. Glatfel-

ter, 771 F.2d 1004, 1010 (7th Cir. 1985) (other

citations omitted).

Callaway, 832 F.2d at 417. After purporting to review the

content, form and context of Callaway’s statements, the

Seventh Circuit concluded that her concern was “per-

sonal, not public.” Id. The court reasoned that Calloway

had always tried to keep her complaints confidential, and

that her communications were made in a context relating

to the resolution of a “personal dispute.” Id.

Although the Seventh Circuit usually has viewed

the factor of a “personal stake in the outcome” as

15 See also Brown v. City of Trenton, 867 F.2d 318, 322 (6th Cir.

1989) (court denied first amendment protection to an

employee’s letter of protest to his police chief about a perceived

lack of support of the emergency response team, advising that

when applying Connick’s factors of content, form and context, if

the Court found that the “employee’s personal interest qua

employee predominates over any interest he might have as a

member of the general public, we are not to intercede.”)

: ——— Fie

determinative,!© there is evidence of intra-circuit conflict

among its decisions. Some Seventh Circuit cases reject

undue emphasis on motive under Connick, and instead,

focus upon the objective content of the speech. See, e.g.,

Auriemma v. Rice, 910 F.2d 1449, 1460 (7th Cir. 1990) (en

banc), cert. denied, __ U.S. __, 111 S.Ct. 2796 (1991);

Breuer v. Hart, 909 F.2d 1035, 1038-1039 (7th Cir. 1990);

Belk v. Town of Minocqua, 858 F.2d 1258, 1264 (7th Cir.

1988); Berg v. Hunter, 854 F.2d 238, 242-243 (7th Cir. 1988),

cert. denied, 489 U.S. 1053 (1989). In this respect, the

Eleventh and Seventh Circuits are similar, although the

intra-circuit conflict parallel is no doubt unintentional.

See, e.g., Peterson v. Atlanta Housing Authority, 998 F.2d

904, 915-916 (11th Cir. 1993); Kurtz v. Vickrey, 855 F.2d 723,

727-729 (11th Cir. 1988).

In Saulpaugh v. Monroe Community Hospital, 4 F.3d

134, 142 (2d Cir. 1993), the Court denied first amendment

protection to a hospital employee who claimed her dis-

charge was for complaining about a supervisor’s sexual

harassment.!7 The Saulpaugh court stated that if the

16 See, e.g., Yatvin v. Madison Metropolitan School District, 840

F.2d 412, 420 (7th Cir. 1988); Gray v. Lacke, 885 F.2d 399 (7th Cir.

1989), cert. denied, 494 U.S. 1029 (1990).

17 See also White Plains Towing Corp. v. Patterson, 991 F.2d

1049, 1059 (2d Cir. 1993), cert. denied, __ U.S. __, 114 S.Ct. 184

(1993) (“Even as to an issue that could arguably be viewed as a

matter of public concern, if the employee has raised the issue

solely in order to further his own employment interest, his First

Amendment right to comment on that issue is entitled to little

weight in the [Pickering] balancing analysis”); Piesco v. City of

New York, Dept. of Personnel, 933 F.2d 1149, 1157 (2d Cir. 1991),

cert. denied, __ U.S. ___, 112 S.Ct. 331 (1991) (” .. . It also is

apparent that this case can be readily distinguished from those

cases where a disgruntled employee voluntarily comments on

an employment-related matter out of a personal interest”) (cita-

tions omitted).

plaintiff's complaints had been about “system-wide dis-

crimination, they would have unquestionably involved a

matter of public concern.” Id.

Here, however, there has been no violation of

the First Amendment because Saulpaugh’s com-

plaints were ‘personal in nature and generally

related to her own situation.’. . . . Although

evidence was subsequently uncovered that

Rosemond had also sexually harassed a prior

employee, Saulpaugh’s complaints, like those in

Ezekwo and Yatvin, were motivated by and dealt

with her individual employment situation. (cita-

tions omitted).

Saulpaugh, 4 F.3d at 142-143.

Significantly, however, Chief Judge Newman wrote

separately to state his views that the “Circuit’s law con-

cerning the First Amendment rights of public employees

has evolved too hastily and too narrowly...” Id. at 146.

[The question arises] whether the speech of a

public employee must be placed in either the

‘public concern’ or the ‘personal interest’ cate-

gories, or whether, in an appropriate case, it

may be placed in both categories, drawing First

Amendment protection to the extent that the

speech is a matter of ‘public concern.’ The Fifth

Circuit has ruled that a public employee's

speech may fall into both of the Connick catego-

ries. In Wilson v. UT Health Center, 973 F.2d 1263

(5th Cir. 1992) cert. denied __ U.S. __, 113 S.Ct.

1644 (1993), the Court said that the Supreme

Court in Connick had ‘removed from First

Amendment protection only that speech that is

made only as an employee and left intact protec-

tion for speech that is made both as an

employee and as a citizen.’ Id. at 1269... .

I think the Fifth Circuit’s reading of Connick is

correct. In describing the category of ‘private

interest’ matters that do not receive First

Amendment protection, the Supreme Court was

careful to limit its ruling to ‘ordinary dismissals

from government service which violate no. . .

applicable statute.’ Connick, 461 U.S. at 146. A

dismissal in violation of Title VII is a matter of

‘public concern,’ and an employee who protests

that her discharge violates Title VII is speaking

about a matter of ‘public concern’ and a matter

of ‘private interest.’

Nevertheless, I am obliged to acknowledge that

our Circuit has adopted the position taken by

the Seventh Circuit, albeit without explicitly rec-

ognizing the two lines of conflicting authority,

much less articulating a basis for preferring the

Seventh Circuit’s conclusion. See Ezekwo v. NYC

Health & Hospitals Corp., 940 F.2d at 780-81... .

Though regretting our narrow view of First

Amendment protection, I am bound by Ezekwo

and therefore concur in the Court’s opinion.

Saulpaugh, 4 F.3d at 146-147 (Newman, Chief Judge, con-

curring).

CONCLUSION

Sexual harassment in the workplace is a pervasive

problem, which affects and undermines the efficiency of

businesses everywhere and the services that they pro-

vide. In Harris v. Forklift Systems, 510 U.S. __, 114 S.Ct.

367 (1993), this Court forcefully stated:

A discriminatorily abusive work environment,

even one that does not seriously affect

employees’ psychological well-being, can and

often will detract from employees’ job perfor-

mance, discourage employees from remaining

on the job, or keep them from advancing in their

careers. Moreover, even without regard to these

tangible effects, the very fact that the discrimi-

natory conduct was so severe or pervasive that

it created a work environment abusive to

employees, because of their race, gender, reli-

gion or national origin offends Title VII’s broad

rule of workplace equality.

114 S.Ct. at 370-371. ——___———

Despite the Supreme Court’s message in Harris, the

opinion in Morgan — issued, ironically, on the very same

day — will have the opposite effect. It will be cited to

claim that courts should not protect plaintiffs if they

oppose sexual harassment but do not go “public.” Also,

by refusing to protect speech made [only] to “official

bodies,” the opinion will discourage employees from

expressing their concerns internally, thereby denying the

employer a chance to address the misconduct before the

allegations are broadcast —- which then may cause even

greater problems. Indeed, at a time when courts are

stressing the need for alternative dispute resolution, Mor-

gan will compel the contrary, undesirable result.

Morgan further overlooks the reality of the work-

place, and the certain conclusion that most employees

will simply remain silent about official misconduct or

breach of duty rather than “rock the boat.” This holding

surely will keep employees from speaking about matters

of public import - except for the few who are bold

enough or financially secure enough to “go public,” and

inevitably, to risk their jobs in order to tell the truth for

the greater good.

The notion that personal motive might despoil the

first amendment claim in Morgan is especially unfair. The

petitioner is truly an average working woman, drawing a

paycheck and doing what she can to make ends meet. She

sought neither favors nor compensation when encour-

aged to air her complaint. She sought only to end illegal

and unconscionable actions by a state official. She fol-

lowed the procedures that the state created for hearing

sex discrimination complaints. She did everything right

and yet she was punished and ultimately, forced to give

up her chosen career.

The Eieventh Circuit’s trivialization of the First

Amendment in Morgan is especially ironic. Petitioner was

an employee of the Georgia Department of Corrections. It

is a state agency that has been devastated by a scandal

involving not only the sexual harassment of female

workers but also female inmates.!® Criminal prosecutions

18 The media has covered extensively the sex scandal

within the Department of Corrections. See e.g., Atlanta Journal

and Constitution: “Prison Sex Scandal Won’t Fade Away; Costs

Still Climb, Even as Contracts Inked for Movies,” March 14,

1993 (“[15 people] await trial on felony charges ranging from

sexual assault . . . to rape and aggravated sodomy. A warden

was fired and another demoted. 12 people have been trans-

ferred, suspended, fired or quit . . . Corrections Department

officials have waged a vigorous public relations campaign with

the media . . . But as much as they would like to, corrections

officials cannot readily lay the scandal to rest . . . So far, the case

has cost taxpayers about $5 million in attorneys’ fees, renova-

tion and new personnel and programs. The price is likely to

increase by millions more as the case progresses to criminal and

civil trials. “There was open hostility toward and abuse of

women, both inmates and employees, condoned and partici-

pated in by top officials,” said Kathie McClure, an attorney for

an inmate. “The inmates were treated like animals. The female

employees were treated like second-class citizens.” But the

department says if that was the case, it was allowed to happen

because no one knew ... ;” see also Chicago Tribune, “Assault

Charge: Inmates Accuse Prison Workers of Misconduct,” May

24, 1992; and The Dallas Morning News, “Female Inmates’ Sex-

Abuse Suit Rocks Georgia’s Prison System,” March 12, 1994

(“ ... At the state’s request, the Justice Department also has

begun investigating possible civil rights violations . . . Invest-

igators from an all-male internal affairs unit looked into

reported liaisons between inmates and prison staffers. But none

of the reports was ever ruled to be confirmed . .. Under pressure

and civil suits have resulted. Employees have been fired

and demoted. The Department now is doing much soul

searching. If the first amendment right of employees to

speak out on this matter had been protected, then maybe

this “culture of abuse” in the Department of Corrections’

workplaces would have been challenged sooner and more

successfully.

Petitioner asks the Court to bring its wisdom to bear

on this problem. Connick has become a favored trial court

tool for disposing of cases easily and quickly on summary

judgment. This phenomenon is far removed from the

guiding rationale behind that decision.

For the reasons set forth, petitioner asks this Court to

grant the writ and to reverse the judgment of the Elev-

enth Circuit.

Respectfully submitted,

Amy S. GELLINs

Counsel of Record for Petitioner

Law Orrice or Amy S. GELLINS

229 West Cloverhurst Avenue

Athens, Georgia 30605

(706) 353-1528

Apert M. Pearson, III

Of Counsel to Petitioner

ButLer, Wooten, Oversy

& CHEELEY

2719 Buford Highway

Atlanta, Georgia 30324

(404) 321-1700

from lawyers, state corrections officials appointed a special

investigator to check into the allegations. The findings

astounded even the attorneys for the women. ‘We found that

many or most of the women were probably telling the truth .. . ’

said Andie Moss, Deputy Commissioner.”

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 91-8816

JACQUELINE R. MORGAN,

Plaintiff-Appellant,

versus

JOHN FORD, Individually and in

his official capacity as an officer

of the Georgia Department of Corrections,

et al.,

Defendants-Appellees.

On Appeal from the United States District Court for the

Northern District of Georgia

ON PETITION(S) FOR REHEARING AND

SUGGESTION(S) OF REHEARING EN BANC

(Filed Jan. 28, 1994)

Before: TJOFLAT, Chief Judge, HATCHETT and BIRCH,

Circuit Judges.

PER CURIAM:

(X) The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active

service on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

_—a

A 2

Appellate Procedure; Eleventh Circuit Rule 35-5), the

Suggestion(s) of Rehearing En Banc are DENIED.

( ) The Petition(s) for Rehearing are DENIED and the

Court having been polled at the request of one of the

members of the Court and a majority of the Circuit

Judges who are in regular active service not having voted

in favor of it (Rule 35, Federal Rules of Appellate Pro-

cedure; Eleventh Circuit Rule 35-5), the Suggestion(s) of

Rehearing En Banc are also DENIED.

( ) A member of the Court in active service having

requested a poll on the reconsideration of this cause en

banc, and a majority of the judges in active service not

having voted in favor of it, Rehearing En Banc is

DENIED.

ENTERED FOR THE COURT:

/s/ Gerald B. Tjoflat

UNITED STATES CIRCUIT JUDGE

A 3

Jacqueline R. MORGAN,

Plaintiff-Appellant,

Vv.

John FORD, Individually and in his official

capacity as an officer of the Georgia Depart-

ment of Corrections, Tydus Meadows, Individ-

ually and in his official capacity as an officer

of the Georgia Department of Corrections;

Chuck Burton, Individually and in his official

capacity as an officer of the Georgia Depart-

ment of Corrections; Robert Whitmore, in his

official capacity as Commissioner of the Geor-

gia Department of Corrections and Georgia

Department of Corrections, Defendants-Appel-

lees.

David Evans, etc., Defendant.

No. 91-8816.

United States Court of Appeals,

Eleventh Circuit.

Nov. 9, 1993.

Appeal from the United States District Court for the

Northern District of Georgia.

Before TJOFLAT, Chief Judge, HATCHETT and

BIRCH, Circuit Judges.

PER CURIAM:

In this case, Jacqueline Morgan claims that she left

her job with the Georgia Department of Corrections

because three of her supervisors subjected her to sexual

harassment in the workplace. She seeks an injunctive

A 4

order, under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq. (1988), requiring the Department of

Corrections to reinstate her to her position, with back pay

and fringe benefits. Morgan also claims that when she

exercised her First Amendment right of free speech and

complained about the sexual harassment, these super-

visors retaliated against her. Accordingly, she seeks com-

pensatory and punitive damages against them, under 42

U.S.C. § 1983 (1988).

The district court found no merit in any of Morgan’s

claims, and therefore granted summary judgment against

her. We agree with the district court’s disposition of

Morgan’s section 1983 claims against the supervisors, and

thus affirm that disposition. We vacate, however, the

judgment for the Department of Corrections, and remand

Morgan's case for reinstatement for further proceedings,

because a material issue of fact remains to be litigated.

Jacqueline Morgan went to work for the Georgia

Department of Corrections (the Department) in 1984. The

Department assigned her to the Augusta Correctional

Medical Institute (ACMI); her position was Correctional

Officer I (COI). Lieutenant John Ford, one of the defen-

dants sued in this case, was her immediate supervisor. He

supervised Morgan for two periods during her employ-

ment at ACMI: for her initial six months and for a time in

1987.

Soon after Morgan came to work, Ford directed Cor-

rectional Officer Kenneth Carswell to ask Morgan if she

would be interested in going on a date with Ford. Morgan

ANS ets) CR ae a aa

told Carswell that she was not interested in seeing Ford

socially.

Upon receiving this response, Ford told Morgan that

she “had not had a real man until she had him.” Ford

made statements to this effect to Morgan, and to other

female employees throughout Morgan’s employment at

ACMI. After telling Morgan “that she had not had a real

man until she had him,” Ford began to spend long

periods - up to three or fours hours at a time - at

Morgan’s work station. While there, he would scrutinize

the minutiae of Morgan’s work, and engage her in

unwanted conversation. During one of these episodes,

Ford boasted that Charles Burden, ACMI’s Superinten-

dent and another defendant in this case, had told him

that “[Ford] could not get his pussy and his paycheck in

the same place,” but that “what [Burden] doesn’t know

won’t hurt him.” On occasions, Ford remarked that

“there is a thin line between love and hate and someday

[Morgan] will realize that [she] love[s] [Ford],” or words

to that effect. Once, while on her way to a party for ACMI

employees, Ford told Morgan that she looked good in her

dress and that he “could imagine her without it.”

Ford’s conduct troubled Morgan. She claims that

after sharing her concerns about Ford with a fellow offi-

cer one evening at work, she discovered that Ford had

electronically monitored her conversation.

After Morgan had been on the job for six months,

Ford changed shifts and no longer supervised Morgan’s

work. Although they saw each other infrequently, Ford’s

troubling behavior did not cease; he continued to com-

ment on his virtues.

A 6

In 1987, Morgan left ACMI for several weeks to go on

military leave. Upon her return, Ford again served as her

supervisor. At her annual evaluation, in June of 1987,

Ford rated her 3.4 on a 5-point scale.

In September 1987, one of Morgan’s co-workers,

Sheila Parrish, lodged a sexual harassment complaint

against Ford with Superintendent Burden. In her com-

plaint, Parrish cited Ford’s unwanted attentions and

habitual sexually suggestive comments. Parrish identified

Morgan as a witness who could substantiate her allega-

tions.

At Burden’s request, Morgan met with Burden to

discuss Ford’s actions toward Parrish. At that meeting,

Morgan told Burden about Ford’s behavior — toward her

as well as Parrish. Burden suggested that Morgan take

her charges to the Department’s Internal Affairs Division,

which she promptly did.

Ford soon learned of Morgan’s meeting with Burden,

and within two weeks he took action against her. Ford

disciplined Morgan for failing to respond to an “officer

needs assistance” call, although a witness testified to the

contrary. Ford then instructed lieutenants with super-

visory authority over Morgan to watch her closely and to

write her up for the smallest of infractions. Shortly there-

after, Lieutenant Tydus Meadows, another defendant

before us, disciplined Morgan for being rude to a visitor;

he did so in the face of a witness’ testimony that she had

not been rude.

In early October 1987, Internal Affairs completed its

investigation and sent a report thereof to Burden. After

reading the report, Burden concluded that Morgan had

not been sexually harassed. On October 9, 1987, he

informed Morgan in writing that she had not established

her claims of sexual harassment and admonished her

against bringing false claims against her supervisors. He

warned her that she would be disciplined for any further

“misconduct.” Burden also wrote to Ford. He told Ford

that although there was no finding of sexual harassment,

he should not “plac[e himself] in a position which could

be construed as personal.” Burden took no other action in

the matter.

On November 3, 1987, Ford gave Morgan an interim

rating of 2.6 on a scale of 5, significantly lower than the

rating he had given her in June. An interim review is an

extraordinary procedure which is used to register a

supervisor's strong impressions of an employee’s perfor-

mance. Ford gave Morgan a 2.6 rating because, he said,

she had exhibited a poor attitude and was uncooperative.

On November 9, 1987, Morgan filed a sexual harassment

charge against Ford with the Georgia Office of Fair

Employment Practices. When notified of the charge, Ford

told Morgan to drop it because “no one would believe.

her.” Immediately thereafter, Morgan found herself reas-

signed to the more distasteful duties around the com-

pound. Ford assigned Morgan to the guard tower

although she did not have a proper weapons certification,

to the unit for AIDS patients, and to the housing ward for

violent inmates.

Ford’s supervision of Morgan ended in November

1987. Although Ford no longer had direct control over

her, Morgan claims that he continued to engage other

officers to make her working environment unpleasant. In

April 1988, Morgan resigned. In August 1989, the Office

A 8

of Fair Employment Practices issued a finding of reason-

able cause to believe that the Department had discrimi-

nated against Morgan and had retaliated against her for

opposing perceived discriminatory practices.

On October 6, 1989, Morgan brought this suit against

Ford, Meadows, and Burden in their individual and offi-

cial capacities, seeking compensatory and punitive dam-

ages, under 42 U.S.C § 1983,? for retaliating against her

for complaining, purportedly in the exercise of her First

Amendment right of free speech, about sexual harass-

ment against her in the workplace. On January 30, 1990,

Morgan filed an Amended Complaint adding Robert

Whitworth, in his official capacity as Commissioner of

the Georgia Department of Corrections, as a party defen-

dant, and seeking an order requiring Whitworth to rein-

state her to the job she left because of the harassment she

had received at the hands of Ford, Meadows and Burden.

On April 12, 1990 Morgan again amended her Complaint,

1 Morgan also sued David Evans in his official capacity as

Commissioner of the Georgia Department of Corrections. She

dropped him from the case when Robert Whitworth assumed

that position.

2 Section 1983 provides, in relevant part, as follows:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any to a

subjects, or causes to be subjected, any citizen of the

United States or other person within, the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured... .

42 U.S.C. § 1983.

EEE

adding the Department of Corrections as a party defen-

dant and seeking an order, under Title VII, requiring the

Department to reinstate her to her position.3

After the parties joined issue and engaged in consid-

erable discovery, the district court granted the defendants

summary judgment. Morgan now appeals.

Il.

In the discussion that follows, we first address Mor-

gan’s First Amendment claims for damages against Ford,

Meadows and Burden. We then turn to Morgan’s Title VII

claim.

Morgan claims that Ford, Meadows and Burden

abridged her First Amendment right to free speech after

she complained to Burden,‘ the Internal Affairs Division,

and the Georgia Office of Fair Employment Practices that

she was being harassed in the workplace. We agree with

the district court that Morgan suffered no constitutional

deprivation.

* Morgan also seeks such relief from Whitworth. Because,

for purposes of this Title VII claim, Whitworth and the Depart-

ment are essentially one and the same, we refer to them hereaf-

ter collectively as the “Department.”

* The First Amendment provides that “Congress shall make

no law .. . abridging the freedom of speech. .. . ” U.S. Const.

amend. I. This right was made applicable to the states by the

Fourteenth Amendment, Everson v. Board of Educ., 330 U.S. 1, 8,

67 S.Ct. 504, 507-08, 91 L.Ed. 711 (1947).

A 10

A state may not demote or discharge a public

employee in retaliation for protected speech. Bryson v.

City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989) (citing

Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97

L.Ed.2d 315 (1987)). This circuit has developed a four-part

test to determine whether an employee suffered such

retaliation. First, a court must determine “whether the

employee’s speech may be ‘fairly characterized as consti-

tuting speech on a matter of public concern.’ ” Bryson, 888

F.2d at 1565 (quoting Rankin, 483 U.S. at 384, 107 S.Ct. at

2896-97 (citation omitted)). See also Kurtz v. Vickrey, 855

F.2d 723 (11th Cir.1988); Ferrara v. Mills, 781 F.2d 1508,

1512 (11th Cir.1986). If so, the district court must “weigh|

] the employee’s first amendment interests against ‘the

interest of the state, as an employer, in promoting the

efficiency of the public services it performs through its

employees.’ ” Id. (citing Pickering v. Board of Educ., 31 U.S.

563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968)).

Should the employee prevail on the balancing test, “the

fact-finder determines whether the employee’s speech

played a ‘substantial part’ in the government's decision

to demote or discharge the employee.” Id. (citing Mount

Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,

97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Finally, if the

employee shows that the speech was a substantial

motivating factor in the employment decision, “the state

must prove by a preponderance of the evidence that ‘it

would have reached the same decision . . . even in the

absence of the protected conduct.’ ” Id. at 1566 (quoting

Mount Healthy, 429 U.S. at 286, 97 S.Ct. at 576).

Applying this four-part test, we first examine whether

Morgan's speech related to a matter of “public concern.”

™ —

A ll

Morgan contends that her speech - the complaints of sexual

harassment — involves a public concern, because sexual

harassment in the workplace is a matter of vital social inter-

est.

To fall within the realm of the “public concern,” an

employee’s speech must “relat[e] to a [ ] matter of political,

social, or other concern to the community.” Connick v. Meyers,

461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983).

Absent extraordinary circumstances, however, First Amend-

ment protection remains unavailable when “a public

employee speaks not as a citizen upon matters of public

concern, but instead as an employee upon matters only of

personal interest... .” Id. at 147, 103 S.Ct. at 1690. A court

must therefore discern the purpose of the employee’s speech

- that is, whether she spoke on behalf of the public as a

citizen, or whether the employee spoke for herself as an

employee. Id. at 146, 103 S.Ct. at 1690; Kurtz, 855 F.2d at 730;

Ferrara, 781 F.2d at 1515-16. To accomplish this, a court

considers “the content, form and context of a given state-

ment, as revealed by the whole record.” Deremo v. Watkins,

939 F.2d 908, 910 (11th Cir.1991) (citing Connick, 461 US. at

147-48, 103 S.Ct. at 1690). A court may consider the

employee’s attempts to make the concerns public,5 along

5 We understand that a court cannot determine that an

utterance is not a matter of public concern solely because the

employee does not air the concerns to the public. Deremo, 939

F.2d at 911 n. 3 (citing Kurtz v. Vickrey, 855 F.2d 723, 727 (11th

Cir.1988)). The employee’s attempt at public disclosure none-

theless remains a relevant factor in determining whether the

speech was a matter of public concern. Id.; see also Kurtz, 855

F.2d at 729; Terrell v. University of Tex. Sys. Police, 792 F.2d 1360,

1362-63 (5th Cir. 1986).

with “the employee’s motivation in speaking.” Id. at 911

(citations omitted).

While we heartily agree with Morgan that sexual

harassment in the workplace is a matter of important

social interest, “the mere fact that the topic of the

employee’s speech was one in which the public might or

would have had a great interest is of little moment.”

Kurtz, 855 F.2d at 727 (quoting Terrell v. University of Tex.

Sys. Police, 792 F.2d 1360, 1362 (5th Cir.1986)). Rather, we

must determine whether the purpose of Morgan’s speech

was to raise issues of public concern, on the one hand, or

to further her own private interest, on the other. See

Deremo, 939 F.2d at 912 (employees’ request for compen-

sation for remaining silent about sexual harassment did

not constitute a matter of public concern); Callaway v.

Hafeman, 832 F.2d 414, 417 (7th Cir.1987) (employee's

private complaints of sexual harassment were not matter

of public concern); see also Marshall v. Allen, 984 F.2d 787,

796 (7th Cir. 1993) (male co-worker’s verbal support for

victims of sexual harassment constituted speech touching

upon a public concern).

In the case at hand, Morgan’s speech largely focused

upon how Ford behaved toward her and how that con-

duct affected her work. The speech that Morgan cites is in

the form of complaints to official bodies — the Superinten-

dent of ACMI, Internal Affairs, and the Office of Fair

Employment Practices. She did not relate her concerns

about sexual harassment to the public® or attempt to

6 See Martinez v. City of Opa-Locka, 971 F.2d 708, 710 (11th

Cir.1992) (providing testimony regarding the public disposition

a CU

A 13

involve the public in any manner. Morgan’s expressions

“in no way dr[ew] the public at large or its concerns into

the picture.” Pearson v. Macon Bibb County Hosp. Auth., 952

F.2d 1274, 1279 (11th Cir.1992). The record shows that

Morgan’s speech was driven by her own entirely rational

self-interest in improving the conditions of her employ-

ment. Her complaints about Ford’s behavior, as serious as

they were, centered around her private matters not mat-

ters of social interest. As an employee grievance, Mor-

gan’s speech was not a matter of public concern. See

Connick, 461 U.S. at 146-47, 103 S.Ct. at 1690; Ferrara, 781

F.2d at 1512; Renfroe v. Kirkpatrick, 722 F.2d 714, 715 (11th

Cir. 1984).7

That Morgan spoke on behalf of Sheila Parrish

regarding Ford’s harassing behavior does not change the

of money); Stough v. Gallagher, 967 F.2d 1523, 1524, 1528 (11th

Cir.1992) (campaigning publicly for sheriff candidate); Stewart

v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1506 (11th Cir.1990)

(expressing opposition to tax referendum at Superintendent's

meeting); Williams v. Roberts, 904 F.2d 634, 638 (11th Cir.1990)

(publishing criticism of budget proposal); see also Rode v. Delar-

ciprete, 845 F.2d 1195 (3d Cir.1988) (giving television interview

about experiencing racial discrimination on the State Police

Force).

7 Our statement in Deremo is not to the contrary. There we

stated in dicta that “[w]e assume that an employee’s complaint

to a superior reporting the wrongful conduct of a public official,

including sexual harassment, would ordinarily be a matter of

public concern.” Deremo, 939 F.2d at 912. While we agree that the

general subject of sexual harassment in the workplace is a mat-

ter of public concern, each complaint must be assessed on a

case-by-case basis. We will not permit an employee to manufac-

ture First Amendment protection (thereby job security) by com-

plaining on a matter related to a social concern.

A 14

outcome. An employee’s speech will rarely be entirely

private or entirely public. Rather than categorize each

phrase the employee uttered, we “consider whether the

speech at issue was made primarily in the employee's

role as citizen, or primarily in the role of employee.”

Kurtz, 855 F.2d at 727 (citing Connick, 461 U.S. at 147, 103

S.Ct. at 1690); see Pearson, 952 F.2d at 1278 (“Pearson's

complaints primarily pertained to . . . [her employee

grievance]. It was only incident to speaking on these

concerns that [her] remarks touched on [what could be

considered a public concern.|”). Considering the entire

record, we conclude that Morgan primarily spoke as an

employee in order to improve her work environment.

While she did speak about her co-worker’s plight, which

contains a public concern aspect, see Marshall, 984 F.2d at

796, the main thrust of her speech took the form of a

private employee grievance. Summary judgment on Mor-

gan’s section 1983 claim was therefore appropriate.

Morgan claims that she was constructively dis-

charged by the Department in violation of Title VII.§

“(W]hen an employee involuntarily resigns in order to

escape intolerable and illegal employment requirements

to which he or she is subjected because of race, color,

8 Title VII in pertinent part, makes it “an unlawful employ-

ment practice for an employer . . . to discriminate against an

individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individ-

ual’s ...sex....” 42 U.S.C. § 2000e-2(a)(1).

A 15

religion, sex, or national origin, the employer has com-

mitted a constructive discharge in violation of Title VII.”

Henson v. City of Dundee, 682 F.2d 897, 907 (11th Cir.1982)

(quoting Young v. Southwestern Savings & Loan Ass’n, 509

F.2d 140, 144 (5th Cir.1975) (internal quotation marks

omitted)). Moreover, a plaintiff “must demonstrate that

[her] working conditions were so intolerable that a rea-

sonable person in [her] position would be compelled to

resign.” Steel v. Offshore Shipbuilding, Inc., 867 F.2d 1311,

1317 (11th Cir.1989) (citations omitted); see also Hill v.

Winn-Dixie Stores, Inc., 934 F.2d 1518, 1527 (11th Cir.1991);

Wardwell v. School Bd. of Palm Beach County, 786 F.2d 1554,

1557 (11th Cir.1986).

As we have noted, Ford supervised Morgan on two

separate occasions. During his first stint as supervisor, in

1984, Ford repeatedly, albeit indirectly, invited Morgan

out. Moreover, Ford’s inquiries continued even after Mor-

gan had stated that she was not interested in forming a

personal relationship with him. Once rebuffed, Ford pro-

ceeded to direct completely inappropriate and suggestive

remarks at Morgan. In the guise of supervising her work,

Ford hovered about her for hours at a time. In this way,

he was able to subject Morgan to his unwanted personal

attentions. In 1985, Ford rotated to another shift and was

no longer Morgan’s direct supervisor. Ford and Morgan

had much less contact with each other, and most of Ford’s

inappropriate behavior stopped.

During the second period of supervision, Ford’s

undesired attentions and reports of masculine virility

resumed. Ford’s pervasive attention disturbed Morgan,

A 16

and she complained to Superintendent Burden. After con-

cluding that her charges had not been substantiated, Bur-

den warned Ford to be careful. Ford, having been

reprimanded for misconduct before, apparently took the

admonition to heart. Ford thus turned from lavishing

unwelcome personal attention on Morgan to other

methods of making her life miserable. When Ford’s

supervision of Morgan ceased again, in late 1987, the

harassment did not stop. Ford had his co-workers send

Morgan messages telling her to drop her charges because

“no one would believe her.” Additionally, Morgan faced

the real possibility that at some point Ford would once

again become her immediate supervisor. To preclude this

from happening, Morgan resigned her position.

We conclude that a material question of fact remains

as to whether Morgan’s employment conditions were

“intolerable.” Accordingly, the district court erred in

granting the Department’s motions for summary judg-

ment on Morgan’s claims for reinstatement with back pay

and fringe benefits.

If.

We affirm the district court’s grant of summary judg-

ment for Ford, Meadows and Burden. We vacate the grant

of summary judgment for the Department, and remand

the case for further proceedings not inconsistent here-

with.

IT IS SO ORDERED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.