Petition for Writ of Certiorari — Shockey v. City of Portland

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Supreme Court, U.S.

92-1055 [eer

| DEC 15 tgp

No.

]

| OFFICE OF THE CLERK

In The Supreme Court Of The United States

October Term, 1992

WILLIAM H. SHOCKEY,

Petitioner,

CITY OF PORTLAND, a municipal

corporation; JACK C. IRVIN,

individually and in his

official capacity; and

JOHN LANG, individually and

in his official capacity,

Respondents.

Petition For A Writ Of Certiorari

To The Supreme Court Of

The State Of Oregon

PETITION FOR A WRIT OF CERTIORARI

Richard C. Busse

(Counsel of Record)

Scott N. Hunt

LAW OFFICES OF

RICHARD C. BUSSE

521 American Bank Building

621 SW Morrison Street

Portland, Oregon 97205

(503) 248-0504

Counsel for Petitioner

QUESTION PRESENTED FOR REVIEW

Whether a public employee’s motive is

the controlling factor in determining

whether that person’s speech is constitu-

tionally protected under the First

Amendment where the content of the speech

addresses a matter of public concern.

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW........... i

: s

TABLE OF AUTHORITIES... .cccvccvvsccssecs iii

OPINIONS BELOW... cer cccnccnsesesesesesse 2

JURISDICTION. wccccccseantesseseenssesess 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED... ccccaccecesesces 3

STATEMENT OF THE CASE. . oc cnvccsevcnsesns 5

REASONS FOR GRANTING THE WRIT........... 9

1. This Case Presents An Exceptionally

Important Question That Concerns The

Essence Of Constitutional Analysis

Under The First Amendment............ 12

2. The Majority Opinion Below Incor-

rectly Interprets First Amendment

Precedent And Improperly Focuses

On Petitioner’s MOtive. .cssscssessene 12

a. Incorrect Interpretation Of

COMRIGR 00000040600 0666555 550 12

b. Improper Focus On Motive......... io

3. The Dissent Below And The Content-

Based Analysis Present The Correct

Interpretation Of Pickering And Its

PLOGONY.. ce crccnnceeeneseseneuseeeeeee 18

CONCLUSION. .cccvecesesecesecesseeeeeeuns 22

| |

iii

TABLE OF AUTHORITIES

Cases Page

Berg v. Hunter,

854 F.2d 238 (7th Cir. 1988),

cert. den., 498 U.S. 1053, 109

S.Ct. 1314, 103 L.Ed.2d 583

DUE CCGG cba Aes eG utc enécacccesccecee 10

Berger v. Battaglia,

779 F.2d 992 (4th Cir. 1985),

cert. den. 476 U.S. 1159, 106

S.Ct. 2278, 90 L.Ed.2d 720

Oe eee eels Ge Ske b-e-e 46k oa 604% 0 10

Breuer v. Hart,

909 F.2d 1035 (7th Cir. | a ee 10

Brinkley v. City of Tacoma,

114 Wash.2d 373, 787 P.2d 1366

Eee er 11

Caldwell v. City of Elwood, Ind.,

poe F.20 670 (7th Cir. 1992)........... 17

Connick v. Myers,

461 U.S. 138, 103 S.Ct. 1684, 75

Ee | ES passim

Cox v. Broadcasting Corp. v. Cohn,

420 U.S. 469, 95 S.ct. 1029, 43

LS 8 3

Dodds v. Childers,

wee Fu.ee 271 (Sth Cir. 1991)........... 10

Dorsett v. Bd. of Tr. for St.

Colleges & Univ.,

940 F.2d 121 (Sth Cir. 1991)........... 10

TABLE OF AUTHORITIES - Continued

Garrison v. Louisiana,

379 U.S. 64, 85 S.Ct. 209, 13

£8.26 125 (L9GE) 2. cw ccecccvsesses

Givnan v. Western Line Consolidated

School District,

439 U.S. 410, 99 S.Ct. 693, 58

L.8G.20 GID (A979) wn ccnvcceessecss

Goffer v. Marbury,

956 F.2d 1045 (llth Cir. 1992)....

Havekost v. United States Dept.

of Navy,

Fee £sa0 386 (9H CIC. E9FL} 2005

Johnson v. Lincoln Univ. of Conn.,

77@ F.a6 443 (304 Cie. E9SS). 0000s

Kemp v. State Bd. of Agriculture,

803 P.2d 498 (Colo. 1990), cert.

den. U.S. » e828 8. SC.

2798, 118 L.8d.2d 972 (1991)......

McEvoy v. Shoemaker,

G2 F.2G 463 (10th Cic. 1969).....

Pearson v. Macon-Bibb County Hosp.

Authority,

vos Fuam 2274 (Lith Cic. 1992)....

Pickering v. Board of Education,

S9L U.Bs SSS, BS S.Ct. LIBk,

40 &18G. 26 Gil CEPGS) oc ccccncccoss

Rankin v. McPherson,

Sos U.68. Bes O86) Baits seen.

OT &. BWR. 2G 283 CSOT lh cccksudacee is,

Page

19, 20

TABLE OF AUTHORITIES - Continued

Page

Roberts v. Joiner,

590 So.2d 195 (Ala. 1991), cert.

den. U.S. » B22 §.Ct.

he ee eS eee 11

Rode v. Dellarciprete,

BES FidG BAGS CAPSOl o wee ccnwewensssacce 10

Schalk v. Gallemore,

UG F.2G SFL CESK Ci. 299O) a ccvccscves 10

Shockey v. City of Portland,

313 Or. 414, _P.2d _—s- (1992)...passim

Stever v. Independent School Dist.

No. 625,

Paes Time BSS CECH CAs... TOPE) «osc 6a ce ess 16

Zamboni v. Stamler,

“B47 F240 73S (Sed Cic.), cect.

den. 488 U.S. 899, 109 S.Ct.

O95 200 cRGsdG 232 CAFES) oc ec accnances 15

Constitution And Statutes Page

ee ee Pas Serr ee eee eee ee ee ee 3

42 U.S.C. § 1983S... ccc ccrncrvscceceee passim

Be Pi Re er eee 4

eee a a rere ee ee ee ee 4

TABLE OF AUTHORITIES - Continued

Other Authorities Page

McGowan and Tangri, A Libertarian

Critique of University

Restrictions of Offensive

Speech,

pp Bw > OR ee ee ER. Drea re 19

No.

In The Supreme Court Of The United States

October Term, 1992

WILLIAM H. SHOCKEY,

Petitioner,

Vv.

CITY OF PORTLAND, a municipal

corporation; JACK C. IRVIN,

individually and in his

official capacity; and

JOHN LANG, individually and

in his official capacity,

Respondents.

Petition For A Writ Of Certiorari

To The Supreme Court Of

The State Of Oregon

PETITION FOR A WRIT OF CERTIORARI

Petitioner William H. Shockey ("Peti-

tioner") respectfully prays that a Writ of

Certiorari issue to review the Judgment and

Opinicn of the Supreme Court of the State

of Oregon entered on September 21, 1992.

OPINIONS BELOW

The Judgment and Opinion of the Su-

preme Court of the State of Oregon was en-

tered on September 21, 1992, following the

denial of a Petition for Reconsideration,

is reported at 313 Or. 414, °.|'P.2d__,,

and appears in the Appendix. Judgment and

Opinion was entered in the Court of Appeals

of the State of Oregon on January 17, 1990,

is reported at 100 Or.App. 166, 785 P.2d

776, and appears in the Appendi:. Juve oment

was entered in the Circuit Court of the

State of Oregon for Multnomah County on

July 5, 1988, and appears in the Appendix.

JURISDICTION

The Judgment and Opinion of the

Supreme Court of the State of Oregon was

entered on September 21, 1992, following

the denial on August 25, 1992 of Respon-

dent’s Petition for Reconsideration.

This Court’s jurisdiction is invoked

pursuant to 28 U.S.C. § 1257(a); Cox Broad-

casting Corp. v. Cohn, 420 U.S. 469, 477-

79, 481, 95 §&$.¢€t. 1029, 43 L.Bd.2d 328

(1973).

CONSTITUTIONAL AND STATUTORY ..

PROVISIONS INVOLVED

Petitioner alleged a violation of 42

U.S.C. § 1983. Section 1983 provides:

Every person- who, under

color of any statute, ordinance,

regulation, custom, or usage, of

any State or Territory or the

District of Columbia, subjects,

Or causes to be subjected, any

citizen of the United States or

other person within the jurisdic-

tion thereof to the deprivation

of any rights, privileges, or

immunities secured by the Con-

stitution 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

this section, any Act cf Congress

applicable exclusively to the

District of Columbia shall _ be

considered to be a statute of the

District of Columbia.

Petitioner bases his 42 U.S.C. § 1983

claim upon the First Amendment and the

Fourteenth Amendment to the United States

Constitution. The First Amendment states:

Congress shall make no law re-

specting an establishment o1

religion, or prohibiting the free

exercise thereof; or abridging

the freedom of speech, or of the

press; or the right of the pecple

peaceably to assemble, and to

petition the Government for a

redress of grievances.

U.S. CONST. amend. I.

The Fourteenth Amendment states:

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; mor deny to any person

within its jurisdiction the equal

protection of the laws.

US. CONST. amend. XIV, § l.

STATEMENT OF THE CASE

William Shockey (Petitioner) was

employed as a wastewater mechanic’. for

Respondent City of Portland (Respondent or

City) from December 31, 1981 until his

discharge on June 11, 1985. Respondents

John Lang (Lang) and Jack Irvin (Irvin)

were his supervisors. Petitioner has worn

a beard for 25 years, because he develops

an inflammatory skin rash when he _ shaves

and because he has a "weak chin".

During 1984, the City considered

instituting a policy requiring wastewater

mechanics and other employees who could be

exposed to chlorine gas to wear respira-

tors. In an effort to comply with adminis-

trative rules that prohibited the wearing

of respirators over facial hair, the City

intended to adopt a clean shaven policy for

all wastewater mechanics. Petitioner wrote

and circulated a petition within his agency

protesting the regulations and submitted

the petition, which was signed by 34 per-

sons, to City of Portland Commissioner Mike

Lindberg, a publicly-elected official.

Commissioner Lindberg instructed Irvin to

"rethink" the policy.

Petitioner’s petition states:

"We, the undersigned, find

the proposed rules demanding that

beards be shaved before a _ res-

pirator test can even be taken to

be arbitrary and discriminatory.

The wearing or not wearing of

beards was not a condition of

employment and any hazards that

exist now existed at that time.

Furthermore, if everyone on site

is to be available in a chlorine

emergency, the questions of fit,

maintenance and hygiene of the

respirators, the supplying of

respirators for those who wear

glasses, training of all_ em-

ployees in their use, hazard pay,

and the availability of respir-

ators for office staff, contrac-

tors’ employees and visitors must

be answered. The aforementioned

proposed rules do not take into

account the use of respirators by

the last three mentioned groups.

It would be far more practical to

have a volunteer crew, specially

trained and outfitted to deal

with chlorine in emergency and

non-emergency situations." (Em-

phasis in original) (emphasis

added).

Despite the petition, the City im-

plemented the policy on August 1, 1984.

Petitioner subsequently attempted to obtain

an exemption from the clean shaven policy.

He submitted medical evidence that he has a

psychological attachment to his beard and

that he develops a most uncomfortable and

distressing facial rash when he_ shaves.

Nevertheless, the City refused to grant an

exemption and subsequently discharged him.

Petitioner brought this action for

violation of 42 U.S.C. § 1983, and state

Claims for wrongful discharge, intentional

interference with economic relations and

handicap discrimination. He alleged that

the City had violated his right of free

speech under the First and Fourteenth

Amendments to the United States Consti-

tution. Petitioner dismissed his handicap

discrimination claim before trial. After

Petitioner had rested his case the trial

court granted a directed verdict against

Petitioner on his wrongful discharge and §

1983 claims. Although the trial court

allowed the intentional interference claim

to go to the jury, it struck any reference

in the claim to Petitioner’s right of free

speech. The jury returned a verdict for

Petitioner but did not award any damages.

Petitioner appealed the granting of

the directed verdict. The Oregon Court of

Appeals reversed and remanded on the § 1983

claim and the wrongful discharge claim.

Respondents petitioned for review. The

Supreme Court of the State of Oregon unani-

mously affirmed the Court of Appeals on the

wrongful discharge claim, and in a majority

opinion (four to three) reversed the Court

of Appeals on the § 1983 claim.

REASONS FOR GRANTING THE WRIT

ia This Case Presents An Exceptionally

Important Question That Concerns The

Essence Of Constitutional Analysis

Under The First Amendment.

This case squarely presents the issue

of whether if the content of a public en-

ployee’s speech on its face addresses a

matter of public concern, the _ speaker’s

personal interest in making it can denude

that speech of First Amendment protection,

and, if so, under what circumstances.

Stated differently, the question presented

is whether motive is determinative in that

analysis. Currently, Circuit Courts of

Appeal are sharply split as to whether

content or motive is the paramount factor

in the analysis established in Connick v.

Myers, 461 U.S. 138, 147-48, 103 S.Ct.

1684, 1690, 75 L.Ed.2d 708 (1983) (whether

an employee’s speech addresses a matter of

public concern must be determined by the

content, form, and context of a given

Statement, as revealed by the whole rec-

ord).°* State courts of last resort are

Breuer v. Hart, 909 F.2d 1035, 1039 (7th

Cir. 1990) (content is the greatest single

factor in the Connick inquiry); Ber Vv.

Hunter, 854 F.2d 238, 242 (7th Cir. S85).

cert. den. 498 U.S. 1053, 109 S.Ct. 1314,

103 L.Ed.2d 583 (1989) (even if the state-

ment is an outgrowth of a personal dispute

some aspect of it may touch upon matters of

public concern); Havekost v. United States

Dept. of Navy, 925 F.2d 316, 318 (9th Cir.

1991) (motive is not a litmus test, content

greatest single factor); Rode v. Dellar-

ciprete, 845 F.2d 1195, 1201 (1988) (motive

not determinative, focus on content);

Berger v. Battaglia, 779 F.2d 992, 998 (4th

Cir. 1985), cert. den. 476 U.S. 1159, 106

S.Ct. 2278, 90 L.Ed.2d 720 (1986) (same);

Cf. Schalk v. Gallemore, 906 F.2d 491, 495

(10th Cir. 1990) (look to subjective intent

of the speaker); McEvoy v. Shoemaker, 882

F.2d 463, 466 (10th Cir. 1989) (focus on

the motive of the speaker); Dorsett v. Bd.

of Tr. for St. Colleges & Univ., 940 F.2d

121, 124 (5th Cir. 1991) (must assess

speaker’s primary motivation); Dodds v.

Childers, 933 F.2d 271, 273 (5th Cir. 1991)

(same); Pearson v. Macon-Bibb County Hosp.

Authority, 952 F.2d 1274, 1278-79 (11th

Cir. 1992) (context emphasized); Goffer v.

Marbury, 956 F.2d 1045, 1049-50 (lith Cir.

1992) (same).

also in direct conflict regarding the

application of the Connick analysis.’ Sup.

Ct. BR. 10.4(B). The issue of the proper

analysis under Connick is extremely im-

portant, because "speech concerning public

affairs is more than self-expression, it is

the essence of self-government." Garrison

v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct.

209, 13 L.Ed.2d 125 (1964). In this case,

the majority and dissent together represent

the two divergent and irreconcilable ap-

proaches to First Amendment analysis which

have developed in the wake of Connick. The

Kemp v. State Bd. of Agriculture, 803

P.2d 498, 503-04 (Colo. 1990), cert. den.

U.S. » 111 S.ct. 2798, 115 L.Ed.2ad

972 (1991) (personal motivation does not

preclude content touching on matter of

public concern); Cf. Roberts v. Joiner, 590

So.2d 195, 201-02 (Ala. 1991), cert. den.

U.S. _, 112 S.Ct. 2302, i L.Ed.2d

ats (1992) (focus on extent to which

speech calculated to disclose governmental

officials wrongdoing); Cf. Brinkley v. City

of Tacoma, 114 Wash.2d 373, 787 P.2d 1366,

1373 fn. 8 (1990) (Connick seems to say

even the "slightest tinge" of public con-

cern is sufficient).

existence of clear conflict among the

Circuit Courts of Appeal and state courts

of final resort on such a fundamental con-

stitutional issue, coupled with the extreme

importance of resolving that motive is not

determinative of such a right, dictate that

a Writ of Certiorari should issue.

a. The Majority Opinion Below Incorrectly

Interprets First Amendment Precedent

And Improperly Focuses On Petitioner’s

Motive.

a. Incorrect Interpretation Of

Connick.

The majority below erred in holding

that Petitioner’s speech did not address a

matter of public concern. Shockey v. City

of Portland, 313 Or. 414, 431, P.2d

(1992). The majority’s analysis relied

upon only two decisions, both from this

Court - Pickering v. Board of Education,

391 U.S. 563, 868 S.Ct. 1731, 20 L.Ed.2d 811

(1968) and Connick v. Myers, 461 U.S. 138,

103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). In

examining Connick the majority reasoned

that the context in which the questionnaire

was circulated was “the most’ important

factor to the Court." Shockey, 313 Or. at

429. Based upon this analysis the majority

found Petitioner only cared about his

beard, and even though the argument in his

petition "related to public policy” it did

not pass the Connick threshold test of

public concern. Shockey, 313 Or. at 330-

$l.

The majority’s analysis is fundamen-

tally flawed, because it is premised on the

belief that context is the determinative

factor in determining whether speech is a

matter of public concern. [In Connick, this

Court clearly stated the context to be a

personal grievance, i.e. one employee’s

dissatisfaction with a_ transfer e

Connick, 461 U.S. at 148. If context was

the determinative factor, all the questions

within the employee’s questionnaire would

not have touched a matter of public con-

cern. However, the Court found one ques-

tion, Question 11, to be a matter of public

concern because, notwithstanding its con-

text, personal grievance, and its form, a

questionnaire circulated only to. other

employees, its content or subject matter

established it to be so. Connick, 461 U.S.

at 148-49. For the majority below to be

correct, all of the questions in Connick

would have had to have been treated in the

Same manner. Shockey, 313 Or. at 445 fn.

14 (Unis, J., dissenting). The fact that

the Court in Connick did not treat all the

questions the same establishes that the

majority below erred when it found Peti-

tioner’s argument "related to public

policy" but, because context is the most

important factor, it did not touch a matter

of public concern. Shockey, 313 Or. at

429-31.

b. Improper Focus On Motive.

By elevating context to the status of

the controlling factor in the determination

of public concern, the majority below mis-

takenly transformed the motive of Petition-

er’s statement into its content. Rankin v.

McPherson, 483 U.S. 378, 397, 107 S.Ct.

2891, 97 L.Ed.2d 315 (1987) (Scalia, J.,

dissenting). An employee’s speech which

addresses matters of public concern is

protected even though the person’s sole

purpose is to protest a plan adverse to him

personally. Zamboni v. Stamler, 847 F.2d

73, 77-78 (3rd Cir.), cert. den. 488 U.S.

899, 109 S.Ct. 245, 102 L.Ed.2d 233 (1988).

The motive behind the speech is not rele-

vant to the threshold question, rather it

Should be considered in the second prong of

the Pickering balancing test. Johnson v.

Lincoln Univ. of Conn., 776 F.2d 443, 451

(3e@ Cir. 1965).

This focus on Petitioner’s motive led

to a further error. The majority below

treated the petition as a single statement,

and did not examine each statement within

the petition. Such a simplistic approach

ignored the detailed analysis used in

Connick. Connick, 461 U.S. at 147-51; see

Stever v. Independent School Dist. No. 625,

943 F.2d 845, 850-51 (8th Cir. 1991) (case

by case determination requires particular-

ized attention and evaluation of speech).

In Connick the Court examined and evaluated

each question, on the employee’s' single

questionnaire, separately. Connick, 461

0.8. 347-51. However, in this case, the

majority addressed the petition as a whole;

and, having decided that Petitioner "cared

about his beard, period" ruled all his

speech did not address matters of public

concern. Shockey, 313 Or. at 329-31.

By treating motive as determinative,

the majority in this case summarily dis-

missed the elements of the petition that

addressed the practicality and adequacy of

the proposed work safety rules. The peti-

tion specifically pointed out that’ the

rules did not take into account the use of

respirators by staff employees, contrac-

tors’ employees and visitors, any of whom

could be exposed to a poisonous chlorine

gas leak. The essence of all but the first

two sentences of the petition is that the

proposed city rule for dealing with a

lethal substance was inadequate to protect

large groups of employees and other members

of the general public. Such speech in-

volves public health and safety and there-

fore it relates to a matter of public

concern. See Caldwell v. City of Elwood,

Ind., 959 F.zZd 670, 672 (7th Cir. 1992)

(firefighter’s personal safety concerns re-

garding department’s use of ambulances are

“certainly a matter of public concern");

Shockey, 313 Or. at 442-45 (Unis, J.,

dissenting) (discussing numerous’ cases).

Thus, at least part of Petitioner’s speech

related to "a matter of political, social

or other concern to the community" and

therefore passed the threshold public

concern test. Connick, 461 U.S. at 146.

3. The Dissent Below And The Content-

Based Analysis Present The Correct

Interpretation Of Pickering And Its

Progeny.

"Content, not context as stated by the

majority [in Shockey], is the most impor-

tant factor in the inquiry whether the

public employee’s speech passes the

threshold public concern test." Shockey,

313 Or. 445-46 (Unis, J., dissenting). As

a starting point, even the majority’s

review of Pickering led it to conclude that

the decision was based on the "public’s in-

terest in the subject matter of Pickering’s

letter as a whole." Shockey, 313 Or. at

426 (emphasis added). In Connick while

distinguishing Givhan v. Western Line

Consolidated School District, 439 U.S. 410,

415-16, 99 S.Ct. 693, 696-97, 58 L.Ed.2d

619 (1979), this Court observed that the

employee’s protest of racially discrim-

inatory policies was "a matter inherently

of public concern" (emphasis’ supplied);

regardless of the choice of a private

forum. Connick, 461 U.S. at 148 fn. 8. If

the subject of a private protest can be

Said to "inherently" address a matter of

public concern, the aga of such a

protest must have been taken to be deter-

minative. Following Connick, in Rankin v.

McPherson, 483 U.S. 378, the analysis by

both the majority and dissent stressed the

paramount importance of content. Rankin,

483 U.8. at 386-87, 396-97; see also

McGowan and Tangri, A Libertarian Critique

of University Restrictions of Offensive

Speech, 79 Cal. L. Rev. 825, 855 (1991)

("Rankin demonstrates that the concept of

public speech has a very strong content

base ....)". Thus, the majority’s analysis

in Shockey is contrary to the major

holdings of this Court on the subject.

In Rankin though the majority and

dissent differed as to the meaning of an

employee’s ambiguous comment, both opinions

looked to the subject matter or content to

make the threshold determination. Rankin,

483 U.S. it 386-87, 396-97. Context was

used to determine the meaning of the

speech, not the speaker’s motive. The

dissent criticized the majority’s "trans-

formation of the motive for [the em-

ployee’s] statement into its content ... as

misguided ...." Rankin, 483 U.S. at 397

(Scalia, Jie dissenting) (emphasis in

Original). Although the rationale of the

Rankin majority may be explained because it

differed from the dissent as to the meaning

of the comment, the principle behind the

dissent’s criticism is sound - motive

should not be determinative of the thresh-

Old public concern test.

In this case, the majority actually

transformed the Petitioner’s motive for the

petition into the content of the petition,

by finding motive determinative. Rather

than using context to clarify any ambiguity

in the meaning of the petition, as the

Rankin majority did, the majority in

Shockey held that context itself was deter-

minative. The dissent in Shockey properly

rejected this approach believing this

Court’s precedent establishes that content

was the most important factor. The major-

ity’s error, if allowed to stand, would

deprive Petitioner of his constitutional

rights and have a chilling effect on the

speech of all public employees in Oregon

and elsewhere.

CONCLUSION

Content, rather than motive or con-

text, shouid be the most important factor

in determining whether a public employee’s

speech passes the threshold public concern

test. Motive should not be determinative

where the speech on its face addresses a

matter of public concern.

For this reason, Petitioner respect-

fully prays that a writ of certiorari issue

to review the Judgment and Opinion of the

Supreme Court of the State of Oregon.

Respectfully submitted,

Richard C. Busse

Scott N. Hunt

LAW OFFICES OF

RICHARD C. BUSSE

521 American Bank Building

621 SW Morrison Street

Portland, Oregon 97205

(503) 248-0504

APPENDIX

iio Se ee

TABLE OF CONTENTS - APPENDIX

PAGE CONTENTS

la Decision and Opinion of the Supreme

Court of Oregon filed on July 9,

1992.

86a Order Denying Reconsideration in

the Supreme Court of Oregon dated

August 25, 1992.

88a Appellate Judgment in the Supreme

Court of Oregon entered on

September 21, 1992.

9la Decision and Opinion of the Court

of Appeals of the State of Oregon

entered on January 17, 1990.

102a Judgment in the Circuit Court of

the State of Oregon for the County

of Multnomah entered July 5, 1988.

IN THE SUPREME COURT OF THE

STATE OF OREGON

William H. SHOCKEY

Respondent on Review

CITY OF PORTLAND,

Jack C. Irvin and John Lang,

Petitioners on Review.

(CC A8611-06957; CA A49282; SC 36999)

In Banc

On review from the Court of Appeals*

Argued and submitted December 4, 1990.

Harry Auerbach, Deputy City Attorney, City

of Portland, argued the cause and filed the

petition for petitioners on review.

Richard C. Busse, Portland, argued the

cause for respondent on review. With him on

the response brief was Donald B. Potter,

Portland.

Robert D. Durham, of Bennett & Durhan,,

Portland, filed a brief on behalf of amici

curiae Oregon Trial Lawyers Association,

American Civil Liberties Union, Oregon

Education Association, AFSCME Council 75,

AFSCME Local 189, Portland Police Commanding

Officers Association, Portland Police Assoc-

iation, and Oregon Public Employees Union.

* Appeal from judgment of Multnomah

County Circuit Court, Robert L. Kirkman,

Judge pro tempore. 100 Or App 166, 785 P2d

776 (1990).

GILLETTE, J.

The decision of the Court of Appeals is

reversed in part and affirmed in part. The

judgment of the circuit court is reversed as

to the wrongful discharge claim; otherwise

affirmed.

Unis, 7 or concurred in part and

dissented in part and filed an opinion in

which Van Hoomissen and Fadeley, JJ.,

joined.

GILLETTE, J.

This action for damages involves a city

employee’s claim that he was wrongfully

terminated in retaliation for circulating a

petition protesting a work safety policy.

The circuit court directed a verdict against

the employee. The Court of Appeals reversed

the judgment of the circuit court, holding

that firing petitioner for circulating the

petition would violate petitioner’s right to

free speech under the federal

constitution.

Shockey v. City oF

Portland, 100 Or App 166, 785 P2d 776

(1990). We reverse in part and affirm in

part the decision of the Court of Appeals.

Plaintiff was a wastewater mechanic for

defendant City of Portland (city).

Defendants Lang and Irvin were his

supervisors. During 1984, the city

considered implementing a policy requiring

wastewater mechanics and other employees who

could be exposed to chlorine gas to wear

respirators. Pursuant to an administrative

rule, the policy also included a provision

that required bearded employees to shave any

facial hair that would be located under the

sealing surface of the respirator.

Plaintiff, who has worn a beard for

over 25 years, strongly opposed the policy.

lfhe First Amendment to the United

States Constitution, provides: "Congress

shall make no law *** abridging the freedom

of speech ***,"

He circulated within his own city agency a

petition that stated:

the policy.

"We, the undersigned, find the

proposed rules demanding that

beards be shaved before a

respirator test can even be taken

to be arbitrary and

discriminatory. The wearing or

not wearing of beards was not a

condition of employment and any

hazards that exist now existed at

that time. Furthermore, if

everyone onsite is to _ be

available in a chlorine

emergency, the questions of fit,

maintenance and hygiene of the

respirators for those who wear

glasses, training of all

employees in their use, hazard

pay, and the availability of

respirators for office staff,

contractors’ employees and

visitors must be answered. The

aforementioned proposed rules do

not take into account the use of

respirators by the last three

mentioned groups.

"It would be far more practical

to have a volunteer crew

specially trained and outfitted

to deal with chlorine in

emergency and non-emergency

situations."

(Emphasis in original.)

In August 1984, the city implemented

Plaintiff refused to shave his

beard and sought to be exempted from the

policy by providing an evaluation from a

social worker that he "is a normally

integrated man who has organically

integrated his beard into his identity."

Evidence also indicated that plaintiff would

develop “=~ most uncomfortable and

distressing facial inflammatory skin

eruption" if he shaved. The city refused to

make an exception for plaintiff. Plaintiff

did not shave off his beard. On June 10,

1985, the city discharged him.

Plaintiff sought review by the city’s

Civil Service Board. The board found that,

in violation of the ‘eity’s charter, the

"discharge decision was not made in good

faith for the purpose of improving public

service" and ordered that plaintiff be

reinstated with back pay.

Plaintiff then brought an action for

damages based on the common law tort of

nti

wrongful discharge.” He also claimed

damages under 42 USC § 1983, on the ground

that his employment has been terminated

wrongfully because he had exercised his

constitutionally protected right of free

speech when he circulated his petition.

Plaintiff also brought a claim against Lang

and Irvin as individuals for intentional

interference with economic relations.?

The case was tried to a jury. After

plaintiff rested his case, the circuit court

granted defendants’ motion for directed

verdict on the wrongful discharge and § 1983

claims, finding that there was "no evidence

to indicate that [plaintiff] was terminated

as a result of the circulation of the

petition." The jury found in favor of

*The common law tort of wrongful

discharge was recognized by this court in

Nees v. Hocks, 272 Or 210, 536 P2d 512

(1975).

3Before trial, plaintiff voluntarily

dismissed a separate claim that is not

relevant to this appeal.

plaintiff on the remaining claim against

Lang and Irvin for intentional interference

with economic relations, but awarded no

damages.

Plaintiff appealed, contending that the

Circuit court erred in granting the directed

verdict. The Court of Appeals agreed with

plaintiff and reversed the circuit court’s

entry of the directed verdict on both the

wrongful discharge and § 1983 claims. The

Court of Appeals held that "there was

evidence of a causal link between

plaintiff’s petition and his termination"

and that the petition was constitutionally

protected by the free speech guarantee of

the First and Fourteenth Amendments to the

United States Constitution. ?% Shockey v.

4The Court of Appeals also held that

the trial court erred in striking

plaintiff’s request for attorney fees under

42 USC § 1988 and in granting defendants’

motion for summary judgment on plaintiff’s

Claim for punitive damages under 42 usc §

1983. Shockey v. City of Portland, 100

Or App 166, 170, 785 P2d 776 (1990). The

City of Portland, 100 Or App 166, 170, 785

P2d 776 (1990). Defendants then petitioned

this court for review, which we allowed.

310 Or 195, 795 P2d 554 (1990).

Defendants first contend that’ the

circuit court lacked subject matter

jurisdiction over plaintiff’s common law

wrongful discharge claim. Defendants reason

that plaintiff’s common law_- wrongful

discharge claim is, in essence, a complaint

alleging an unfair labor practice, "for

which the Public Employees Collective

Bargaining Act [PECBA], ORS 243.650 to

243.782, provides his exclusive remedy."

Defendants argue in the alternative that, to

the extent plaintiff’s claim is not

foreclosed by PECBA, "plaintiff’s exclusive

Court of Appeals affirmed the circuit court

in striking plaintiff’s request in his

intentional interference claim for attorney

fees incurred in reinstatement proceedings

before the Civil Service Board. Id. at 171.

Defendants do not challenge those holdings

before this court.

judicial remedy for challenging defendants’

action is by writ of review, under ORS

34.010 to 34.100."

PECBA defines certain acts as unfair

labor practices. Under the Act, the

Employment Relations Board (ERB) is

responsible for investigating complaints

alleging unfair labor practices and, if

necessary, conducts a hearing before issuing

a final order. ORS 243.676.

ORS 243.672(1)(g) provides:

of ¢ 3 ey - is an unfair labor

practice for a public employer or

its designated representative to

do any of the following:

Nkkkkk

"(g) Violate the provisions of

any written contract with respect

to employment relations[.]"

The collective bargaining agreement between

the city and the union to which plaintiff

belonged stated that the city could not

discharge any employee "without just cause."

We understand defendants to argue that

10a

plaintiffs’ claim for common law wrongful

discharge constitutes an unfair labor

practice under ORS 243.672(1)(g), because

the discharge would be without just cause in

violation of the collective bargaining

agreement. We shall assume, for the

purposes of this opinion, that firing

plaintiff "without just cause" would be an

unfair labor practice that ERB’ could

investigate. ORS 243.672(1)(g) and (4); ORS

243.676.

Defendants’ argument requires us to

consider whether PECBA deprives the circuit

court of subject matter jurisdiction over

the wrongful discharge action.

ORS 243.676(1) charges ERB with

investigating an unfair labor. practice

complaint. ERB holds a hearing to determine

whether the person named in the complaint

has engaged in or is engaging in any unfair

labor practice. If so, ERB must state its

findings of fact, order the person to cease

lla

and desist from the unfair labor practice,

take "such affirmative action, including but

not limited to the’ reinstatement of

employees with or without back pay, as

necessary to effectuate the purposes of"

PECBA, and award representation costs and

attorney fees. ORS 243.676(2).

PECBA, while granting jurisdiction to

ERB to investigate and hear unfair labor

practice complaints, is silent as to whether

the Act was intended to foreclose common law

state remedies, such as claims for wrongful

discharge, and a review of the legislative

history does not provide the answer to this

issue.

This court has summarized its

methodology in determining whether the

legislature intended to foreclose a common-

law remedy when it created a statutory one

as follows:

"(Aj]n actionable common law tort

[remains actionable] *** unless

the provisions of [the allegedly

12a

conflicting legislation]

demonstrate the legislature’s

intent not only to provide what

it considered to be adequate

remedies to *** plaintiff, but by

implication show a _ legislative

intent to abrogate or supersede

any common law remedy for

damages. See Brown v. Transcon

Lines, 284 Or [597], 611[, 588

P2d 1087 (1978)]."

Holien v. Sears, Roebuck and Co., 298 Or 76,

90-91, 689 P2d 1292 (1984).

PECBA expressly states that its purpose

is to ensure that public employers and

public employees enter into negotiations and

collective bargaining agreements. For

instance, ORS 243.656(5) states that:

"It is the purpose of [PECBA] to

obligate public employers, public

employees and their

representatives to enter into

collective negotiations with

willingness to resolve grievances

and disputes relating to

employment relations and to enter

into written and signed contracts

evidencing agreements resulting

from such negotiations. It is

also the purpose of [PECBA]} to

promote the improvement of

emplioyer-employee relations

within the various public

employers by providing a uniform

basis for recognizing the right

13a

of public employees to join

organizations of their own

choice, and to be represented by

such organizations in their

employment relations with public

employers."

PECBA also declares that the "people of this

state have a fundamental interest in the

development of harmonious and cooperative

relationships between government and its

employees," ORS 243.656(1); that

"(rjecognition by public employers of the

right of public employees to organize and

full acceptance ke K [of ] collective

negotiation between public employers and

public employee organizations can alleviate

various forms of strife and unrest," ORS

243.656(2); that "(e)]xperience in private

and public employment has also proved that

protection by law of the right of employees

to organize and negotiate collectively

Safeguards employees and the public from

injury, impairment and interruptions of

necessary services, and removes’ certain

14a

recognized sources of strife and unrest,"

ORS 243.656(3); and that "(t]he state has a

basic obligation to protect the public by

attempting to assure the orderly and

uninterrupted operation and functions of

government," ORS 243.656(4).

The purpose and policy underlying PECBA

is that public employers and _ public

employees resolve their disputes through

resort to collective bargaining when there

is a collective bargaining agreement. That

approach is consistent with this state’s

policy that, ordinarily, an employee who is

subject to a collective bargaining agreement

first must utilize any collective bargaining

agreement procedures as the vehicle for

redress of disputes before resorting to a

court action. See, e.g., Gilstrap v.

Mitchell Bros. Truck Lines, 270 Or 599, 606,

529 P2d 370 (1974) cert den 421 US 1011

(1975) (so holding).

15a

We perceive no reason to say that

plaintiff’s claim for wrongful discharge

offends the purpose and policy of PECBA or

this court’s requirement that a complaining

party first pursue its contractual remedies

before seeking help from the court system.

The present action does not interfere with

PECBA’s purpose of requiring public

employers and employees to enter into

negotiations and_ collective bargaining

agreements, nor does it thwart the act’s

intent that disputes first be resolved

through resort to contract remedies -

plaintiff successfully exhausted his

contract remedies when he appeared before

the Civil Service Board. In this action,

plaintiff seeks damages that were not

available to him either before the Civil

Service Board or before ERB. In short, in

the terms of the standards identified in

Holien v. Sears, Roebuck and Co., supra,

there has been no demonstration of either

16a

the legislature’s intent to identify and

provide an adequate remedy for all the harm

suffered by plaintiff or of a legislative

intent to supersede this common law remedy.

The circuit court has_ subject matter

jurisdiction to hear plaintiff’s claim.°

Cf. Tracy v. Lane County, 305 Or 378, 752

P2d 300 (1988) (ERB’s jurisdiction under

PECBA not exclusive, but is primary where

the right of a party to seex relief in

circuit court depends on defendant’s having

committed an unfair labor practice.)

Defendants next contend that’ the

circuit court lacked subject matter

jurisdiction over plaintiff’s common law

wrongful discharge claim because, defendants

assert, plaintiff’s sole judicial remedy

under state law is a writ of review under

Sour decision today speaks only to

whether PECBA forecloses a particular form

of tort action. We do not decide whether

other types of claims likewise would be

available in spite of the fact that PECBA

was implicated.

17a

ORS 34.010 to 34.100. Defendants rely on

Koch v. City of Portland, 306 Or 444, 760

P2d 252 (1988), to support that assertion.

Defendant’s assertion is incorrect, and

their reliance on Koch is misplaced.

The sole issue before this court in

Koch v. City of Portland, supra, was whether

the decision of the Mayor of the City of

Portland, acting in his capacity as

Commissioner of Public Safety, to suspend a

Portland police officer, "was made ’in the

exercise of judicial or quasi-judicial

functions[.]’" Id. at 447. This court held

that the suspension decision was a quasi-

judicial act and, therefore, was reviewable

by writ of review. Id. at 448-49. This

court did not hold in Koch, or in any other

case that has been brought to our attention,

that, because writ of review is available to

review a termination decision, the affected

employee is precluded from bringing an

18a

action for damages based on the common law

tort of wrongful discharge.

As previously stated, plaintiff

appealed his termination to the City of

Portland Civil Service Board pursuant to

Portland City Charter Section 4-501. The

Civil Service Board found in plaintiff’s

favor, reinstated plaintiff with back pay

and restored seniority and benefits. In

Miller v. Schrunk, 232 Or 383, 388, 375 P2d

823 (1962), this court held:

"When any charter or statute sets

out a procedure whereby = an

administrative agency must review

its own prior determination, that

procedure must be followed.

Judicial review [by way of writ

of review] is only available

after the procedure for relief

within the administrative body

itself has been followed without

success." (Emphasis added.)

Plaintiff’s success before the Civil Service

Board made writ of review not. only

unnecessary, but unavailable. The circuit

court has subject matter jurisdiction over

plaintiff’s common law wrongful discharge

19a

Claim. We turn now to a consideration of

the evidence on the merits of plaintiff’s

claims.

Defendants argue that the trial court

did not err in directing verdicts as to

plaintiff’s wrongful discharge and 42 USC §

1983 claims, because there was no evidence

of a causal connection between plaintiff’s

circulation of the petition and his

discharge.

In determining whether the trial court

erred in entering a directed verdict for

defendants, we view the evidence in the

light most favorable to the non-moving

party - in this case, plaintiff - and extend

to that party the benefit of every

reasonable inference that may be drawn from

the evidence. Foster Vv. Schnell

Refrigeration Co., 280 Or 411, 414, 571 P2d

497 (1977).

The evidence would permit a trier of

fact to find that Irvin and Lang were

20a

hostile toward plaintiff’s attempt to

receive an exemption from the challenged

policy. Other employees testified that

management retaliated against employees who

spoke out against management practices or on

safety issues by firing them. ®

Lang

admitted that plaintiff’s petition made him

angry and caused him some anxiety. Irvin

admitted that he did not help plaintiff find

other comparable city employment before

terminating him, although he had assisted

other employees who did not comply with the

facial hair policy. While plaintiff had no

proof to spare, the foregoing evidence, when

combined with the reasonable inferences that

can be drawn therefrom, was sufficient to

allow a trier of fact to conclude that

plaintiff was discharged for circulating his

Scontrary to defendants’ position taken

in their petition to this court, defendants

did not object to all of the testimony

supporting the foregoing summary, and the

evidence was not excluded by the trial

court.

—— Ce

21a

petition. The trial court’s ruling to the

contrary was error.

The foregoing sufficiency argument is

the last argument asserted by defendants

against the decision by the Court of Appeals

to reinstate plaintiff’s wrongful discharge

Having found no error with respect

claim.

to any of the claims that defendants make

here, we affirm the Court of Appeals’

decision to reinstate plaintiff’s wrongful

discharge claim. We turn next’ to

defendants’ contentions that deal

specifically with plaintiff’s claim under 42

USC § 1983.

After obtaining reinstatement through

the civil service process, plaintiff brought

Wwe do not intimate that the evidence

to which we have referred necessarily makes

out a case of wrongful discharge. But,

because the only challenge that defendants

make in this court is to the sufficiency of

the evidence of wrongful discharge, we have

not considered and do not address the other

elements of that tort or whether evidence of

the other elements was present in this case.

22a

the present action, claiming that firing him

because he wrote the aforementioned petition

violated his right to free speech under the

federal Constitution and that such a

violation was actionable under 42 USC §

1983. No one disputes the latter half of

his theory - if the circumstances of

plaintiff’s firing violated his free speech

rights under the First Amendment, the firing

is actionable. The fight here is over the

first half, viz., whether firing plaintiff

on account of the petition violated his

right to free speech.

Review of the relevant case law - case

law coming from the United States Supreme

Court, because the claim arises’ under

federal law - leads us to conclude that one

need consider only two pertinent cases to

see that plaintiff fails to meet’ the

criteria for obtaining the relief that he

seeks. Because those cases are dispositive,

we discuss them at some length.

23a

The first important case was Pickering

Vv. Board of Education, 391 US 563, 88 S Ct

1731, 20 L Ed 2d 811 (1968). Pickering, a

high school teacher, had written a letter to

a newspaper criticizing the local school

board and the district superintendent for

the way they had handled recent school

financing efforts. He was fired. After the

firing had been sustained in the state

courts, the United States Supreme Court

granted certiorari and reversed.

The Court first made it clear that

public employees do not forfeit free speech

rights by accepting public employment. Id.

at 568. The Court recognized that a public

employer has a right to expect loyalty on

the part of its employees, but that loyalty

could not be exacted at the expense of the

right of the public employees to voice their

views as to certain issues. Just which

issues would transcend the rights of the

employer to discipline its employees could

24a

not be described categorically, the Court

admitted. However, the Court said,

"in the course of evaluating the

conflicting claims of First

Amendment protection and the need

for orderly school administration

in the context of this case, we

shall indicate some of the

general lines along which an

analysis of the controlling

interests should run."

Id. at 569.

The Court began by noting that nothing

in Pickering’s letter implicated a close

working relationship between Pickering and

any of the persons whom he was criticizing.

"Thus," the Court said, "no question of

maintaining either discipline by immediate

superiors or harmony among coworkers is

presented here." Id. at 570. Therefore,

the Court held, a public’ employee’s

"comments on matters of public concern that

are substantially correct" could not furnish

grounds for dismissal, even if those

comments were critical in tone. Id.

25a

The Court then proceeded to examine the

false statements that it found in

Pickering’s letter. As to those, the Court

held, there was no proof of any harm to the

district or its interests caused by the

letter. (Indeed, the Court noted,

"Pickering’s letter was greeted by everyone

but its main target, the Board, with massive

apathy and total disbelief." Id.) "More

importantly," the Court noted,

"the question whether a_ school

system requires additional funds

is a matter of legitimate public

concern on which the judgment of

the school administration,

including the School Board,

cannot, in a society that leaves

such questions to popular vote,

be taken as conclusive. On such

a question, free and open debate

is vital to informed decision-

making by the electorate.

Teachers are, as a class, the

members of a community most

likely to have informed and

definite opinions as to how funds

allotted to the operation of the

schools should be spent.

Accordingly, it is essential that

they be able to speak out freely

on such questions without fear of

retaliatory dismissal.

26a

Ukkkke

"What we *** have before us is a

case in which a teacher has made

erroneous public statements upon

issues then currently the subject

of public attention, which are

critical of his ultimate employer

but which are neither shown nor

can be presumed to have in any

way either impeded the teacher’s

proper performance of his daily

duties in the classroom or to

have interfered with the regular

operation of the schools

generally. In these

circumstances we conclude that

the interest of the_- school

administration in limiting

teachers’ opportunities to

contribute to public debate is

not significantly greater than

its interest in limiting a

Similar contribution by any

member of the general public."

Id. at 571-73. (Footnote omitted.)

The Court’s constant references to

issues of "public importance" was no

accident. As it summarized its holding:

"In sum, we hold that, in a case

such as this, absent proof of

false statements knowingly or

recklessly made by hin, a

teacher’s exercise of his right

to speak on issues of public

importance may not furnish the

basis for his dismissal from

public employment."

27a

Id. at 574. (Footnote omitted.) It: is

Clear, both from text and context, that

Pickering was based on the public’s interest

in the subject matter of Pickering’s letter

as a whole. It was the lack of interest

that proved fatal in the other pertinent

decision of the Court.

In Connick v. Myers, 461 US 138, 103 S

Ct 1684, 75 L Ed 2d 708 (1983), the fired

public employee, Myers, was an assistant

district attorney. She objected to a

proposal to transfer her to another section

of the office and, when her protestations

did not help, she resorted to circulating a

14-item "questionnaire" to her’ fellow

employees that was not-so-subtly critical of

the district attorney and his principal

lieutenants. The district attorney

determined that the questionnaire was an act

of insubordination and fired her. She then

brought an action in federal court under 42

USC § 1983, claiming that her free speech

28a

rights had been violated. Both the district

court and the court of appeals sustained her

claim. On certiorari, the United States

Supreme Court reversed.

The district attorney maintained before

the Court that Myers’ questionnaire

concerned only internal office matters and,

as such, did not constitute speech of

"public concern," as that phrase had been

used in Pickering. As a general matter, the

Court was inclined to agree:

"Although we do not agree that

Myers’ communication in this case

was wholly without First

Amendment protection, there is

much force to [the district

attorney’s argument]. The

repeated emphasis in Pickering on

the right of a public employee

‘as a citizen, in commenting upon

matters of public concern,’ was

not accidental. This language,

reiterated in all of Pickering’s

progeny, reflects both the

historical evolvement of the

rights of public employees, and

the common-sense realization that

government offices could not

function if every employment

decision became a constitutional

matter."

29a

Id. at 143. (Footnote omitted.) The key to

Pickering, the Court explained, was the fact

that “"Pickering’s subject was ’a matter of

legitimate public concern’ upon which ‘free

and open debate is vital to informed

decision making by the eleoterats.** Id. at

145. (Citation omitted.) In fact,

Pickering, its antecedents, and

its progeny lead us to conclude

that if Myers’ questionnaire

cannot be fairly characterized as

constituting speech on a matter

of public concern, it is

unnecessary for us to scrutinize

the reasons for her discharge.

When employee expression cannot

be fairly considered as relating

to any matter of political,

social, or other concern to the

community, government officials

should enjoy wide latitude in

managing their offices, without

intrusive oversight by the

judiciary in the name of the

First Amendment."

Id. at 146. (Footnote omitted.)

The Court was not drawing a _ line

between employee speech wholly unrelated to

any matter of general public concern, on the

one hand, and speech that touches in some

30a

minor way on matters of public concern, on

the other. Even speech that alludes to

matters of public concern does not, by

virtue of that fact alone, bring the speaker

within the ambit of First Amendment

protections sufficient to support an action

under 42 USC § 1983. The Court explained:

"Whether an employee’s' speech

addresses a matter of public

concern must be determined by the

content, form, and context of a

given statement, as revealed by

the whole record. In this case,

with but one exception, the

questions posed by Myers to her

co-workers do not fall under the

rubric of matters of "public

concern." We view the questions

[in the questionnaire] pertaining

to the confidence and trust that

Myers’ co-workers possess’. in

various supervisors, the level of

office morale, and the need for a

grievance committee as mere

extensions of Myers’ dispute over

her transfer to another section

of the criminal court. *** [Wje

do not believe these questions

are of public import in

evaluating the performance of the

District Attorney as an elected

official. Myers did not seek to

inform the public that_~ the

District Attorney’s Office was

not discharging its governmental

responsibilities in the

31la

investigation and prosecution of

criminal cases. Nor did Myers

seek to bring to light actual or

potential wrongdoing or breach of

public trust on the part of [the

district attorney] and others.

Indeed, the questionnaire, if

released to the public, would

convey no information at all

other than the fact that a single

employee is upset with the status

quo. While discipline and morale

in the workplace are related to

an agency’s efficient performance

of its duties, the focus of

Myers’ questions is not’ to

evaluate the performance of the

office but rather to_ gather

ammunition for another round of

controversy with her superiors.

These questions reflect one

employee’s dissatisfaction with a

transfer and an attempt to turn

that dispute into a cause

celebre.

"To presume that all matters

which transpire within a

government office are of public

concern would mean that virtually

every remark - and_ certainly

every criticism directed at a

public official - would plant the

seed of a constitutional case.

While as a matter of good

judgment, pubic officials should

be receptive to- constructive

criticism offered by their

employees, the First Amendment

does not require a public office

to be run as a roundtable for

employee complaints over internal

office affairs."

32a

Id. at 147-48. (Emphasis supplied.)

Not all cases could be resolved by this

analysis, however. Some, including Connick,

would require a further step. The Court

explained:

"One question in Myers’

questionnaire, however, does

touch upon a matter of public

concern. Question 11 inquires if

assistant district attorneys

‘ever feel pressured to work in

political campaigns on behalf of

office supported candidates.’

kkk

"Because one of the questions in

Myers’ survey touched upon a

matter of public concern and

contributed to her discharge, we

must determine whether [the

district attorney] was justified

in discharging Myers. ***,"

Id. at 149. (Footnotes omitted.) In other

words, if, when read in context, part of

Myers’ questionnaire "touched on a matter of

public concern," it was necessary to proceed

to a second step in the analysis. That step

involved balancing’ the interests of

management and employee.

33a

The Court then examined the various

considerations that, under Pickering, should

play a role in such a balancing analysis.

A court in striking the balance was required

to give "full consideration" to’ the

government’s interest in effective and

efficient performance of its public

responsibilities. Id. at. 150. It was also

pertinent that Myers’ distribution of the

questionnaire interfered with the

necessarily close working’ relationship

required between a deputy prosecutor and her

superiors. Id. at 151-52. The time, place,

and manner in which the questionnaire was

circulated were also relevant. Id. at 152-

33s

It was clear, however, that the context

in which the questionnaire was circulated

was, even in the balancing phase of the

analysis, the most important factor to the

Court. The Court reviewed that

34a

consideration and then announced its

conclusions, as follows:

"Finally, the context in which

the dispute arose is also

Significant. This is not a case

where an employee, out of purely

academic interest, circulated a

questionnaire so as to obtain

useful research. Myers

acknowledges that it is- not

coincidence that the

questionnaire followed upon the

heels of the transfer notice.

When employee speech concerning

office policy arises from an

employment dispute concerning the

very application of that policy

to the speaker, additional weight

must be given to the supervisor’s

view that the employee _ has

threatened the authority of the

employer to run the office. ***

"Myers’ questionnaire touched

upon matters of public concern in

only a most limited sense; her

survey, in our view, is most

accurately characterized as an

employee grievance concerning

internal office policy. The

limited First Amendment interest

involved here does not require

that [the district attorney]

tolerate action which he

reasonably believed would disrupt

the office, - undermine his

authority, and destroy close

working relationships. Myers’

discharge therefore did not

offend the First Amendment. ***

errr eee

35a

"kke(T}]t would indeed be a

Pyrrhic victory for the great

principles of free expression if

the [First] Amendment’s

safeguarding of a public

employee’s right, as a citizen,

to participate in discussions

concerning public affairs were

‘ confused with the attempt to

constitutionalize the employee

grievance that we see presented

here."

Id. at 153-54. Thus, it will be seen that

"context" is a pertinent consideration in

both the first and second steps of the

Connick analysis.

It will be clear from the foregoing

that we do not disagree with the dissent as

to the appropriate analytical framework.

The difference between our view and that of

the dissent is simple: We do not find the

wording of plaintiff’s petition, in context,

to require us to proceed beyond the first

step in the Connick analysis. As to that

first step, the parallels between this case

and Connick are great and, where there are

36a

differences, the differences do not favor

plaintiff. The similarities:

1. Both cases arose out of an

employee’s dissatisfaction with a management

decision that affected that particular

employee in a way that the employee

disliked.

2. Both employees attempted to enlist

the views of fellow workers in support of

their position.

a. The principal thrust of each

employee’s message concerned the employee’s

particular grievance.

4. There is no suggestion that either

employee raised any issue beyond the

employee’s immediate personal grievance

other than for the purpose of gathering

ammunition for the principal, personal fight

that the employee already was waging.

i Each employee confined the dispute

to the workplace and to pertinent

supervisory personnel.

37a

The differences:

i. Plaintiff here chose a more direct

form of challenge even than that employed in

Connick. The questionnaire there at least

purported to be intended for employees, not

for management. The petition here was a

direct challenge to management.

a. Unlike Myers’ attitude in the

Connick case, plaintiff’s attitude here made

him a less fit employee than others who

complied with the shaving policy, because

plaintiff could not assist in circumstances

requiring use of a respirator.

2 Perhaps most importantly, there

truly is no matter raised by plaintiff’s

petition that is of "public concern," at

least in the Pickering and Connick sense of

that term. Plaintiff here was not

challenging any act of his supervisors as

illegal. He was not speaking to any matter

that either had been or would be put to a

public vote. And he was not protesting,

38a

even indirectly, office policy that was

requiring other employees to give up or

compromise one or another of their rights as

citizens. In other words, this employee

cared about his beard, period. To elevate

that concern to a constitutional case merely

because the employee mustered an argument

related to public policy in pursuit of his

personal goal would so trivialize the

"public concern" requirement of Pickering,

Connick, and other cases, as to read the

requirement virtually out of existence.

Although its stated ground for its

decision was incorrect, the circuit court

did not err in dismissing plaintiff’s claim

under 42 USC § 1983. The Court of Appeals

decision to the contrary was error.

The decision of the Court of Appeals is

reversed in part and affirmed in part. The

judgment of the circuit court is reversed as

to the wrongful discharge claim; otherwise

affirmed.

= = |

39a

UNIS, Jey concurring in part,

dissenting in part.

The majority misreads well-established

First Amendment? precedent used to

determine the free speech of public

employees. In so doing, the majority

misconstrues the class of speech on which

public employees may speak out without fear

of retaliation. The majority’s opinion has

the potential to discourage disclosures of

the sort of information that the public

employee is particularly, and often

uniquely, able to provide. Thus, the

majority’s opinion may deprive the public of

valuable information with which to evaluate

the performance of elected officials.

Plaintiff, a wastewater mechanic for

the city of Portland (city), was discharged

after he circulated a petition within his

Ifhe First Amendment to the United

States Constitution provides:

"Congress shall make no law ***

abridging the freedom of speech ***,"

40a

agency protesting a work safety policy.”

The city’s Civil Service Board found that,

in violation of the city’s charter, the

*Plaintiff’s petition stated:

"We the undersigned, find the

proposed rules demanding that

beards be shaved before a

respirator test can even be taken

to be arbitrary and

discriminatory. The wearing or

not wearing of beards was not a

condition of employment and any

hazards that exist now existed at

that time. Furthermore, if

everyone on site is to _ be

available in a chlorine

emergency, the questions of fit,

maintenance and hygiene of the

respirators, the supplying of

respirators for those who wear

glasses, training of all

employees in their use, hazard

pay, and the availability of

respirators for office staff,

contractors’ employees and

visitors must be answered. The

aforementioned proposed rules do

not take into account the use of

respirators by the last three

mentioned groups.

"It would be far more practical

to have a volunteer crew,

specially trained and outfitted

to ~ deal with chlorine in

emergency and non-emergency

situations." (Emphasis in

original.)

4la

"discharge decision was not made in good

faith for the purpose of improving public

service," and ordered that plaintiff be

reinstated with back pay. The majority

concludes that the dismissal of plaintiff’s

43 USC § 1983 claim? did not violate

plaintiff’s free speech rights under the

First Amendment, because the petition did

not address a matter that, in the majority’s

view, is of public concern.?4

342 USC § 1983. The section provides:

"Every person who, under color of

any statute, ordinance,

regulations, custom, or usage, of

any State or Territory or 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. ***"

4Remarkably, the majority recognizes

that plaintiff’s petition relates to public

policy. 313 Or at 431. Nonetheless, the

42a

It is beyond dispute that speech by a

public employee which discloses information

on matters of public health and safety is of

> Because all but the first

public concern.

two sentences of plaintiff’s petition

address matters of public health and safety

and because there is no evidence in the

record that the circulation of the petition

adversely affected the operations of the

city, interfered with plaintiff’s working

relationship with his fellow employees, or

impaired workplace discip'tine, I dissent

from the majority’s holding that denies

plaintiff the right to proceed under § 1983.

I concur, however, in the majority’s

decision concerning plaintiff’s common law

claim for wrongful discharge.

majority holds that plaintiff’s petition

does not touch upon a matter of public

- concern.

>See discussion, infra.

| |

43a

Plaintiff’s action under § 1983 is

based on his claim that his employment had

been terminated wrongfully in retaliation

for exercising his right to free speech

under the First Amendment. At his jury

trial, after plaintiff rested his case, the

trial court directed a verdict on the § 1983

claim, finding that there was insufficient

evidence of causation, i.e., that there was

"no evidence to indicate that [plaintiff]

was terminated as ae result of the

circulation of the petition." The Court of

Appeals reversed, holding that there was

sufficient evidence of causation, that

plaintiff’s speech was a matter of public

concern, and that plaintiff’s petition was

protected speech under the First Amendment.

Shockey v. City of Portland, 100 Or App 166,

785 P2d 776 (1950). Defendants’7 then

petitioned this court for review, which we

allowed. 310 Or 195, 795 P2d 554 (1990).

The issue presented to this court as to

44a

plaintiff’s § 1983 claim is whether it was

proper for the trial court to direct a

verdict for defendants at the conclusion o1

plaintiff’s case in chief.

I. 42 USC § 1983 CLAIM

A. Jurisdiction

Section 1983 of the Civil Rights Act,

a successor of the Civil Rights Act of

1871,° was enacted in response to a

perceived unwillingness by states to protect

their citizens’ rights. Monroe v. Pape, 365

we i167, 160, 31..83 Ce 473,..3 & 8a 2a) 492

(1961), overruled on other grounds, Monell

v. Department of Social Services of New

York, 436 US 658, 98 S Ct 2018, 56 L Ed 2d

611 (1978). "The purpose of § 1983 is to

deter state actors from using the badge of

their authority to deprive individuals of

their federally guaranteed rights and to

provide relief to victims if such deterrence

act of Apr. 20, 1871, ch 22, § 1, 17

Stat 13 (codified at 42 USC § 1983 (1982)).

intinsdliecpeernainemeieneneiamaend

45a

fails." Wyatt v. Cole, US , P

S Ct ’ L Ed 2d , 60 USLW

4383, 4384 (May 18, 1992) (citing Carey v.

Piphus, 435 US 247, 254-55, 98 S Ct 1042, 55

L Ed 2d 252 (1978)). Thus, § 1983 provides

direct access to a judicial forum to all

individuals who claim that > their

constitutional or other federal rights have

been violated by persons acting under color

of state law. Collins v. City of Harker

Heights, Texas, ___—~-US____, 112 S Ct 1061,

1066, 117 L Ed 2d 261 (1992); Burnett v.

Grattan, 468 US 42, 50, 104 S Ct 2924, 82 L

Ed 2d 36 (1984). "State courts have

concurrent subject matter jurisdiction with

federal courts over § 1983 actions."

Nutbrown v. Munn, 311 Or 328, 337, 811 P2d

131 (1991) (citing Maine v. Thiboutot, 448

US 1, 100 S Ct 2502, 65 L Ed 2d 555 (1980).

B. Background

As relevant to this case, § 1983

provides a remedy to a public employee who

46a

is discharged for exercising his or her free

speech rights guaranteed by the First

Amendment. Rankin v. McPherson, 483 US 378,

383, 107 S Ct 2891, 97 L Ed 2d 315 (1987)

(citing Perry v. Sindermann, 408 US 593,

597, 92 S Ct 2694, 33 L Ed 2d 570 (1972)).

The question then is whether a public

employee’s speech (here, plaintiff’s

petition) is protected by the First

Amendment.

To determine whether a public

employee’s speech is protected by the First

Amendment, we must consider a series of

decisions by the Supreme Court of the United

States which collectively suggest a method

of analysis. I will discuss the relevant

law in those decisions and the suggested

methodology. I then will apply that

methodology to this case.

In Keyishian v. Board of Regents, 385

US 589, 605-06, 87 S Ct 675, 17 L Ed 2d 629

(1967), the Supreme Court held that a public

47a

employer may not condition public employment

on the relingquishment of First Amendment

rights. In Pickering v. Board of Education,

391 US 563, 88 S Ct 1731, 20 L Ed 2d 811

(1968), the Court qualified that holding by

stating that, although a public employee

does not surrender First Amendment rights to

comment on matters of public interest by

virtue of government employment, "the State

has interests as an employer in regulating

the speech of its employees that differ

Significantly from those it possesses in

connection with regulation of the speech of

the citizenry in general." Id. at 568.

In Pickering, the Court imposed two

important limitations on a public employee’s

free speech rights guaranteed by the First

Amendment. First, the Court suggested that

false statements knowingly or recklessly

made would not be protected. Id. at 574 and

n 6. There is no contention asserted in

this case that this limitation applies to

48a

plaintiff’s statements in this’ case.

Second, the Court articulated a balancing

test to determine whether the speech rights

asserted by public employees are protected

by the First Amendment. "The problem in any

case[,]" said the Court, "is to arrive ata

balance between the interests of the [public

employee], as a citizen, in commenting upon

matters of public concern and the interest

of the State, as an employer, in promoting

the efficiency of the public services it

performs through its employees." Id. at

568.

In Connick v. Myers, 461 US 138, 103 S

Ct 1684, 75 L Ed 2d 708 (1983), the Court

fine-tuned its holding in Pickering. In

Connick, the public concern test made its

debut in the area of public employee speech.

There, the Court held that First Amendment

protection afforded to a public employee

under Pickering extends only to speech

addressed to matters of "public concern" and

——————— ee

49a

that unless the employee’s speech involves

a “matter of public concern," "it is

unnecessary for [courts] to scrutinize the

reasons for *** discharge." Id. at 146.

Stated slightly differently, only when the

public employee engages in speech addressed

to matters of "public concern" is the First

Amendment implicated.’ "(Wjhen a public

7See Mt. Healthy City School District

Board of Education v. Doyle, 429 US 274,

283-84, 97 S Ct 568, 50 L Ed 2d 471 (1977)

(although untenured teacher can be dismissed

for "no reason whatever," he cannot be fired

for exercise of First Amendment rights).

"’Whatever differences may exist

about interpretations of the

First Amendment, there is

practically universal agreement

that a major purpose of that

amendment was to protect the free

discussion of governmental

affairs.’ Mills v. Alabama, 384

US [214, 218, 86 S Ct 1434, 16 L

Ed 2d 484 (1966)]}. ‘For speech

concerning public affairs is more

than self-expression; it is the

essence of self-government. ’

Garrison v. Louisiana, 379 US 64,

74-75[, 85 S Ct 209, 13 L Ed 2d

125,] (1964)."

Burson v. Freeman, US . » aa8

S Ct 1846, 1850, 119 L Ed 2d 5 (1992).

50a

employee speaks not as a citizen upon

matters of public concern, but instead as an

employee upon matters only of personal

interest," the First Amendment does not

protect that employee from termination. Id.

at 147.

Cc. Analytical Framework to Determine

Whether Public Employee Speech is

Constitutionally Protected

The Senrine Court has framed a two-

prong test to determine whether a public

employee’s speech is protected by the First

Amendment. First, the employee’s speech

must involve a matter of public concern.

Second, the employee’s First Amendment

rights in commenting on a matter of public

concern must not be outweighed by the public

employer’s interest in providing public

services efficiently. Each of these

requirements must be satisfied before the

employee’s speech is protected by the First

Amendment.

5la

i. Threshold Public Concern Test

An employee’s expression may be fairly

characterized as constituting expression on

a matter oof public’ concern when it

"relat[es] to any matter of political,

social, or other concern to the community,"

id. at 146, as “determined by the content,

form, and context of [that expression] as

revealed by the whole record." Id. at 147-

48. In answering the question whether the

employee’s speech involves a matter of

public concern, the court must examine for

itself the statements in issue and the

circumstances under which they are made to

see whether they are of a character that the

First Amendment protects. Rankin v.

McPherson, supra, 483 US at 386; Connick v.

Myers, supra, 461 US at 150 n 10. "The

inappropriate or controversial character" of

the expression is irrelevant to the inquiry.

‘Rankin v. McPherson, supra, 483 US at 387.

Whether speech concerns a matter of "public

52a

concern" is a question of law, not fact, for.

the Court. Connick v. Myers, supra, 461 US

at 148 n 7.

2. Pickering Balancing Test

Even if the public employee’s speech

involves a matter of public concern and,

therefore, passes the threshold public

concern test introduced in Connick and,

accordingly, the First huewdnant is

implicated, a retaliatory discharge

nevertheless may not offend the First

Amendment. As previously stated, the

determination of whether a public employer

has properly discharged an employee for

engaging in speech of public’ concern

requires an application of the Pickering

balancing test, i.e., a balance between the

interests of the employee as a citizen, in

commenting on matters of public concern, and.

the interest of the governmental body as an

employer, in providing public’ services

efficiently. Connick v. Myers, supra, 461

53a

US at 146; Pickering v. Board of Education,

supra, 391 US at 568. Relevant to the

balancing analysis is the manner, time, and

place in which the expression is made.

Connick v. Myers, supra, 461 US at 152.

Impairment of workplace discipline and

creation of disharmony with coworkers are

factors to be weighed in the balance.

Rankin v. McPherson, supra, 483 US at 388;

Connick v. Myers, supra, 461 US at 152-53;

Pickering v. Board of Education, supra, 391

US at 570-73. In applying the Pickering

balancing test, a wide degree of deference

will be given to the employer’s assessment

of such disruption, at least in situations

where "close working relationships are

essential to fulfilling public

responsibilities. Connick v. Myers,

- 8For public employee speech that

touches on matters of public concern in only

a most limited sense, the public employer’s

disciplinary action will be upheld when the

employer "reasonably believe{s that the

speech] would disrupt the office, undermine

54a

Supra, 461 US at 151-52. If the public

employer’s interest in efficiency outweighs

the employee’s right to freedom of

expression, the employee’s expression is not

protected by the First Amendment.’ If the

public employer’s interest in efficiency

outweighs the employee’s right to freedom of

expression, the expression is’ protected.

Rankin v. McPherson, supra, 483 US at 392.

Whether the employee’s speech enjoys the

protected status is a question of law for

his authority, and destroy close working

relationships." Connick v. Myers, 461 US

138, 154, 103 S Ct 1684, 75 L Ed 2d 708

(1983). While the test is cast in objective

terms, its reasoning entails a large amount

of subjectivity, as the public employer may

take action based on his view of a potential

for disruption. Id.

%Justice Scalia, joined by three other

justices in Rankin v. McPherson, 483 US 378,

399, 107 S Ct 2891, 97 L Ed 2d 315 (1987)

(Scalia, J., dissenting) couched the issue

as whether the employer’s interest in

preventing the expression of such statements

outweighed the public employee’s First

Amendment interest in making the statement.

55a

the court. Connick v. Myers, supra, 461 US

at 148 n 7.

D. Causation

If the public employee’s speech is

constitutionally protected, the public

employee has the burden to show causation,

i.e., that his or her speech was a

"substantial" or "motivating" factor in the

discharge decision, Mt. Healthy City School

District Board of Education v. Doyle, 429 US

274, 287, 97 S Ct 568, 50 L Ed 2d 471

(1977), i.e., that one of the reasons for

the discharge decision was the employee’s

protected speech. See Price Waterhouse v.

Hopkins, 490 US 228, 250, 109 S Ct 1775, 104

L Ed 2d 268 (1989) (same standard in suit

under Title VII of the Civil Rights Act of

1964). If the public employee carries that

burden, the burden shifts to the public

employer to show by a preponderance of the

evidence that it had other adequate grounds

for dismissal, Mt. Healthy City School

56a

District Board of Education v. Doyle, supra,

429 US at 287, i.e., that the same adverse

decision as to the public’ employee’s

employment would have been reached even in

the absence of the _ protected speeci:. 1°

See Price Waterhouse v. Hopkins, supra, 490

US at 244-45 (opinion of Brennan, Marshall,

Blackmun, and Stevens, JJ.) (same standard

in suit under Titie VII of the Civil Rights

Act of 1964); id. at 259 (White, J.,

concurring in the judgment); id. at 276-77

(O’Connor, J., concurring in the judgment).

Whether the protected speech was a

10The public employer "must show that

it would have terminated him, not that it

could have." Gillette v. Delmore, 886 F2d

1194, 1198 (9th Cir 1989) (emphasis in

original).

"‘Tj]he employer’s burden is most

appropriately deemed an affirmative defense:

the plaintiff must persuade the factfinder

on one point, and then the employer, if it

wishes to prevail, must persuade it on

another." Price Waterhouse v. Hopkins, 490

US 228, 246, 109 S Ct 1775, 104 L Ed 2d 268

(1989) (discussion of burden of proof in

suit under Title VII of the Civil Rights Act

of 1964).

57a

substantial or motivating factor in the

decision to terminate employment is a

question of fact. Stever v. Independent

School Dist. No. 625, 943 F2d 845, 851 (8th

Cir 1991).?} If the public employer

"fails to purge its [discharge] decision of

the ‘taint’ of unconstitutional motivation,

that decision cannot’ stand." Tribe,

American Constitutional Law 816 (2d ed 1988)

(citing Mt. Healthy City School District

Board of Education v. Doyle, supra).

E. Discussion of Key Supreme Court

Decisions

llphe sufficiency of the evidence to

create an issue of fact for the jury is, of

course, solely a question of law. Stever v.

Independent School Dist. No. 625, 943 F2d,

845, 851 (8th Cir 1991). In reviewing a

trial court’s ruling on a motion for

directed verdict on insufficiency of proof,

an appellate court must view the evidence

and all reasonable inferences to be drawn

therefrom in the light most favorable to the

non-moving party. Foster v. Schnell

Refrigeration Co., 280 Or 411, 414, 571 P2d

497 (1977).

58a

The Supreme cCourt’s discussions in

Pickering v. Board of Education, supra,

Connick v. Myers, supra, and Rankin v.

McPherson, supra, provide a - useful

background for evaluating plaintiff’s claim.

In Pickering v. Board of Education, supra,

a public high school teacher was dismissed

for writing a letter to a local newspaper,

criticizing the way in which the Board of

Education had handled bond issue proposals

and its subsequent allocation of financial

resources between the school’s educational

and athletic programs. The teacher’s letter

also openly criticized the superintendent of

schools for attempting to prevent teachers

in the district from opposing or criticizing

the proposed bond issue. 391 US at 566.

The Court held that the dismissal of the

school teacher was an impermissible

infringement on the teacher’s' protected

speech, rejecting the notion "that teachers

may constitutionally be compelled to

59a

relinquish the First Amendment rights they

would otherwise enjoy as citizens to comment

on matters of public interest." 391 US at

568. The Court framed the proper inquiry as

“arriv[ing] at a balance between the

interests of the teacher, as a citizen, in

commenting on matters of public concern and

the interest of the State, as an employer,

in promoting the efficiency of the public

services it performs through its employees."

391 US at 568. The statements in the

letter, the Court said, addressed "issues

then currently the subject of public

attention, which are critical of [the

teacher’s] ultimate employer but which are

neither shown nor can be presumed to have in

any way either impeded the teacher’s proper

performance of his daily duties in the

classroom or to have interfered with the

regular operation of the schools generally."

391 US at 572-73 (footnote omitted). The

Court held that, "absent proof of false

60a

statements knowingly or recklessly made by

him, a teacher’s exercise of his right to

speak on issues of public importance may not

furnish the basis for his dismissal from

public employment." 391 US at 574 (footnote

omitted). Because no such showing had been

made regarding the teacher’s letter, the

Pickering court held that the teacher’s

dismissal was impermissible under the First

Amendment. Id. at 574-75.

In Connick v. Myers, supra, Myers, an

assistant district attorney in New Orleans,

was informed by Connick, the district

attorney, that she would be transferred to

prosecute cases in a different section of

the criminal court. Myers objected to the

transfer and, in this context, circulated a

questionnaire to other employees. 461 US at

140-41. The questionnaire consisted of

fourteen entries and is reprinted in the

appendix to the opinion, id. at 155-56.

Questions 1 through 5 asked employees to

6la

describe their work experience with office

transfers. Questions 6 through 9 asked

employees about the existence of a rumor

mill and its effect on office morale.

Question 10 asked for an assessment of their

confidence in certain named supervisors.

Question 11 asked whether employees felt

pressure to work in political campaigns

supported by the district attorney.

Questions 12 through 14 asked whether a

grievance committee was needed, whether

morale in the office was good, and whether

any other issues of concern to the employees

needed to be addressed. Id. Connick

accused Myers’) of "Creating a ‘mini-

insurrection, ’" considered the questionnaire

an act of insubordination, and discharged

Myers. Myers filed suit under 42 USC §

1983, | contending that her employment was

wrongfuily terminated because she exercised

her First Amendment right of free speech.

Id. at 141. The Supreme Court disagreed.

62a

The Court held that only one entry, Question

11 - asking whether fellcw staff members

felt pressured to work on- political

campaigns on behalf of of fice-supported

candidates - touched on a matter of public

concern. Id. at 149. The other questions

were "mere extensions of Myers’ dispute over

her transfer." Id. at 148. These questions

did not concern the office’s performance of

its prosecutorial functions, nor did they

allege any fraud or wrongdoing. According

to the Court:

"While discipline and morale in

the workplace are related to an

agency’s efficient performance of

its duties, the focus of Myers’

questions is not to evaluate the

performance of the office but

rather to gather ammunition for

another round of controversy with

her superiors. These questions

reflect one employee’s

dissatisfaction with a transfer

and an attempt to turn that

displeasure into a cause

celebre."

63a

Id. at 148. “fAs such, these questions did]

not fall under the rubric of matters of

‘public concern.’" Id.

With respect to Question 11, the only

entry that did relate to a matter of public

concern - the question concerning whether

staff members felt pressured to work on

political campaigns - the Court applied the

Pickering balancing test and struck the

balance for the public employer. Id. at

149. That is, the isolated statement

(Question 11) was afforded protection to the

point of requiring the Pickering balancing

even though the statement was only one of 14

entries and could arguably be called a

pretext for and motivated by the basically

personal grievance. According to the Court,

despite the "limited First Amendment

interest involved," Myers’ supervisor was

justified in discharging Myers based on

speech that he "reasonably believed would

disrupt the office, undermine his authority,

64a

and destroy close working relationships[,]"

id. at 154, even absent any evidence of

actual disruption. Myers’ discharge did

not, therefore, offend the First Amendment.

Id.

In Rankin v. McPherson, supra, the

firing of a data entry employee (deputy

county constable) for privately remarking to

a co-worker (who happened to be her

boyfriend), after hearing of an

assassination attempt on President Reagan,

"if they go for him again, I hope they get

him," 483 US at 381, was held to violate the

employee’s right of free speech under the

First Amendment to the federal constitution.

The Court held that the data-entry

employee’s remark, taken in context,

constituted a matter of public concern,

Since it was made in the course of a

conversation concerning the policies of the

President’s administration and came on the

heels of a news bulletin regarding a matter

65a

of heightened public attention, and was

protected by the First Amendment. /4 Id.

at 386. The Court stated that the constable

did not demonstrate that the state interest

justified firing the data entry employee:

she had purely clerical duties and no law

enforcement duties; the statement was made

privately in a room not readily accessible

to the public; and there was no evidence

that the employee’s statement had

discredited her office or interfered with

its efficient functioning. Id. at 388-89,

392.

F. Application of Analytical Framework to

This Case

i. Threshold Public Concern Inquiry

Turning to the first requirement of the

two-prong test to determine whether a public

employee’s speech is protected by the First

12th contrast, an actual threat to kill

the President would not be protected, the

Court said. Rankin v. McPherson, supra, 483

US at 386-87.

66a

Amendment, I agree with the Court of Appeals

that plaintiff’s petition does involve a

matter of public concern. As previously

stated, speech that can fairly be considered

as relating to any matter of political,

social, or other concern to the community is

constitutionally protected, Connick Vv.

Myers, supra, 461 US at 146, as determined

by the content, form and context of that

expression as revealed by the whole record.

Id. at 147-48.

a. Cantent

Except for the first two sentences of

plaintiff’s petition, the content’ of

plaintiff’s petition addresses issues

involving public health and safety.

Omitting the first two sentences,

plaintiff’s petition reads:

"'I]f everyone on site is to be

available in a chlorine

emergency, the questions of fit,

maintenance and hygiene of the

respirators, the supplying of

respirators for those who wear

glasses, training of all

67a

employees in their use, hazard

pay, and the availability of

respirators for office staff,

contractors’ employees and

visitors must be answered. The

aforementioned proposed rules do

not take into account the use of

respirators by the last three

mentioned groups.

"It would be far more practical

to have a volunteer crew,

specially trained and outfitted

to deal with chlorine in

emergency and non-emergency

situations."

How the majority concludes that this

language does not involve a matter of public

concern}? bewilders me.

The thrust of all but the first two

sentences of plaintiff’s petition addresses

the practicability and adequacy of the

proposed governmental work safety rules and

regulations in protecting employees and

other members of the public who could be

exposed to a chlorine’ gas_ leak. In

particular, the petition states that the

proposed rules did not address that "fit,

13313 Or at 429-31

68a

maintenance and hygiene of the respirators,"

"training of all employees in their use,"

and whether “office staff, contractors’

employees and visitors" would be required to

wear respirators. The petition suggested an

alternate solution for dealing with chlorine

gas, a lethal substance, in emergency and

non-emergency situations. The content of

the speech in plaintiff’s petition,

therefore, went beyond plaintiff’s personal

employment concern (his desire to retain his

beard), and expressed concern about health

and safety in the work place and

particularly about the protection afforded

to employees and other members of the public

from a chlorine gas _ leak. Plaintiff’s

petition, in essence, states that the

proposed city rule for dealing with a lethal

substance on city property was inadequate to

protect large groups of employees and other

members of the general public.

69a

Speech by a public employee about

public health and safety is clearly speech

on a matter of public concern. In Caldwell

v. City of Elwood, Ind., 959 F2d 670, 672

(7th Cir 1992), a firefighter’s statements

to the mayor at the mayor’s home discussing

his (firefighter’s) safety and employer’s

concerns regarding the fire department’s use

of ambulances are, the court said,

"Certainly a matter of public concern." In

Burgess v. Pierce County, 918 F2d 104, 105-

06 (9th Cir 1990), a county fire marshall’s

statements to county officials and members

of the public that passage and enforcement

of county ordinances would conflict with

state fire flow and county ordinances,

threaten life and property, and expose the

county to potential tort liability were held

to be a matter of public concern. In

Considine v. Board of County Com’rs, 910 F2d

695, 700 (10th Cir 1990), a county

employee’s statements that alleged numerous

70a

statutory and regulatory public health and

safety violations were occurring on projects

that were sponsored by the county and under

the direction of the county’s’ elected

officials and administrative staff were held

to involve a matter of public concern and

were entitled to First Amendment protection.

In Mofin v. Albuquerque Public Schools, 906

F2d 1434, 1437-38 (10th Cir 1990), a public

school teacher’s criticism of a superior’s

disciplinary philosophy was recognized as

speech on a matter of public concern because

"'gjenerally, speech by a public’ school

employee about a policy or practice which

can substantially and detrimentally affect

the welfare of the children attending the

school constitutes speech on a matter of

public concern." In Finch v. City of

Vernon, 877 F2da 1497, 1502 (11th Cir 1989),

the court held that a police chief’s

"“(wjarning [to the city council] that

closing a public road would create a safety

hazard is speech on a matter of public

71a

concern." In Price v. Brittain, 874 F2d

252, 258 (5th Cir 1989), a state mental

health facility social worker’s statements

to patients regarding their right to outside

legal counsel and to prosecute civil actions

against officials within the facility who

were mistreating them were held to be a

matter of public concern. In Franzier v.

King, 873 F2d 820, 825-26 (5th Cir 1989), a

nurse’s report to superiors of violations of

nursing practices in the prison infirmary

which endangered the prisoners was held to

be a matter of public concern. In Gillette

v. Delmore, 886 F2d 1194, 1197-98 (9th Cir

1989), a firefighter’s comments to his

supervisor and other city workers

criticizing the behavior of other

firefighters and police officers in their

handling of a drug overdose case were held

to be speech about a matter of public

concern. In Teeters v. Scott, 733 F Supp

72a

1279, 1281-83 (ED Ark 1990), a nurse’s

comments to a mother of a patient that the

patient was occasionally deprived of meals

and bathroom privileges, and that hospital

personnel were being mean to the patient,

were a matter of public concern because they

concerned the standard of care given a

patient at a public institution. In Brown

v. Port Authority of New York and New

Jersey, 656 F Supp 517 (EDNY 19897). aff’d

without opinion, 867 F2d 1424 (a Cir 1988),

a lieutenant in the security force assigned

to JFK Airport was disciplined following his

writing a memo to his superiors and his

union in which he expressed the view that

airport security was not sufficient to repel

terrorist activity. Although the memo

addressed plaintiff’s personal safety

concerns, noted the court, the memo

essentially concerned the ability of the

airport to respond to a matter of utmost

public concern - terrorism. Id. at 521. In

73a

Woodruff Vv. Bd. | a 3) of Cabell

Huntington, 319 SE2d 372, 378-379 (W VA

1984), hospital employees’ distribution near

the hospital of leaflets disclosing a labor

dispute with the hospital and the effects of

job eliminations on the level of pubiic

health care was held to be speech on a

matter of public concern.

Additionally, the Oregon Legislative

Assembly has recognized that speech which

discloses information on matters of pubic

health and safety is of public import. ORS

659.510(1) (b) (B) prohibits a public employer

from taking or threatening to take

disciplinary action against an employee for

the disclosure of any information that the

employee reasonably believes is evidence of

"substantial and specific danger to public

health and safety resulting from action of

the state, agency or political sub-

division." One purpose of the Oregon Safe

Employment Act, ORS 654.001 to 654.295 ORS

74a

654.750 to 654.780, and ORS 654.991, is to

“assure as far aS possible safe and

healthful working conditions for every

working man and woman in Oregon." ORS

654.003. To accomplish that purpose, the

Legislative Assembly provides a procedure

that "{e]ncourage[s]) employers and employees

to reduce the number of occupational safety

and health hazards and to institute new

programs and improve existing programs for

providing safe and healthful working

conditions." ORS 654.003(1). Under ORS

654.062(5) (a), it is an unlawful employment

practice for an _ employer "to bar or

discharge from employment or otherwise

discriminate against any employee or

prospective employee," who “opposed any

practice forbidden by {health and safety

laws}]" or who “made = any complaint or

instituted or caused to be instituted any

proceeding under [the health and safety

laws)]."

75a

b. Form

As to form of plaintiff’s expression,

plaintiff’s petition was "posted on the

company bulletin board," given to the city

commissioner in charge of the Bureau of

Environmental Services, and circulated among

employees affected by the policy. The fact

that plaintiff’s speech was not directed to

the public at large, to inform it of the

perceived problems, is not determinative to

the inquiry of whether the speech involves

a matter of public concern. See Rankin v.

McPherson, supra, 483 US at 386 n 11 ("The

private nature of the [public employee’s]

statement does not *** vitiate the status of

the statement as addressing a matter of

public concern."); see also McGowan and

Tangri, A Libertarian Critique of University

Restrictions of Offensive Speech, 79 Cal L

Rev 825, 855 (1991) ("Rankin demonstrates

that the concept of public speech has a very

strong content base - the speech at issue

76a

was not distributed in anything remotely

resembling a public fashion."); Gillette v.

Delmore, supra, 886 F2d at 1198 (a public

employee’s speech was held to involve a

matter of public concern even though made to

employee’s supervisor and other city

workers, and not to the public at large).

c. Context

Taken in context, I will assume

that plaintiff’s petition arose because of

plaintiff’s personal dissatisfaction with

the proposed work safety policy. A motive

of personal concern’ behind a _ public

employee’s speech is not, however,

dispositive on the issue whether’ the

employee’s speech involved a matter of

public concern. Breuer v. Hart, 909 F2d

1035, 1038-39 (7th Cir 1990); Belk v. Town

of Minocqua, 858 F2d 1258, 1264 (7th Cir

1988). Content, not context as stated by the

77a

majority,/* is the most important factor

in the inquiry whether the public employee’s

speech passes the threshold public concern

test. Breuer v. Hart, supra, 909 F2d at

1039; Belk v. Town of Minocqua, supra, 858

14 The majority’s analysis is

premised on the notion that context

is the most important factor and, in

this case, the determinative factor, in

determining whether something is a

matter of public concern. 313 Or at 428

-429. The majority admits that plaintiff’s

petition relates to public policy, 313

Or at 430-31, but refused to consider it

a matter of public concern because of

the context in which it was presented.

This analysis is fundamentally flawed.

In Connick, the context was clearly

stated by the Court to be a personal

grievance, i.e., "one employee’s [Myers’ }

dissatisfaction with a transfer and an

attempt to turn that displeasure into

a cause celebre." 461 US at 148. If

context was the most important factor

in determining whether the speech was

a matter of public concern, what

caused the Court to conclude that

Question 11 was a matter of public

concern? Even though Question 11 was

presented in the context of thirteen

other entries relating to a private

grievance, it was found to be a matter

of public concern because, notwith-

standing its context (personal

grievance) and form (circulated only

to other employees), its content

established it to be so.

78a

1264; Berg v. Hunter, 854 F2d 238, 242-43

(7th Cir 1988), cert den 489 US 1053, 109 S

ce 1314, 103 L Ed 2d 583 (1989).

Bodensteiner and Levinson, 1 State & Local

Government Civil Rights Liability 77, §

1:08.50 (1987); McGowan and Tangri, supra,

79 Cal L Rev at 855.

In Connick v. Myers, supra, the Supreme

Court considered one of Myers’ thirteen

questions - the question regarding pressure

to work in political campaigns - to be of

public concern, even though the Court found

that Myers’ grievances were fairly rooted in

a personal dispute over her transfer. The

fact that a "speaker was motivated by narrow

self-interest" does not automatically mean

that the issue is not of public concern.

Breuer v. Hart, supra, 909 F2d at 1038-39;

Bodensteiner and Levinson, supra. Connick

makes clear that a public employee’s

statements motivated, triggered, or

predominated by a personal grievance,

79a

dissatisfaction, or narrow self-interests

may nevertheless involve matters of public

concern necessitating inquiry as to whether

the employee’s (plaintiff’s) speech passes

the second requirement of the two-prong test

to determine whether the speech is protected

by the First Amendment, namely, the

Pickering balancing test. The fact that

plaintiff’s speech arose in the context of

what began as a personal dispute does not,

therefore, in itself disqualify that speech

from constitutional protection.

In sum, as determined by the content,

form, and context of plaintiff’s expression

as revealed by the whole record, I conclude

that, despite whatever self-interests

motivated or triggered plaintiff to.

circulate the petition, all but the first

two sentences of plaintiff’s petition

concerns a matter of public concern.

2. Application of Pickering

Balancing Test

80a

Having determined that the speech

in plaintiff’s petition involves a matter of

public concern, the court must balance

plaintiff’s First Amendment interest in

commenting on a matter of public concern

against the interest of the city, as an

employer, in promoting the efficiency of the

public services it performs through its

employees. Rankin v. McPherson, supra, 483

US at 388-91. At the time that the trial

court directed the verdict for defendants,

the record did not support a finding that a

legitimate city interest justified firing

plaintiff. I find no evidence in the record

that plaintiff’s petition interfered with

the city’s interest in the effective and

efficient fulfillment of ite

responsibilities to the public. Nothing in

the record indicates that the circulation of

plaintiff’s petition impaired work-place

discipline or created disharmony with co-

workers. Nor does the record disclose any

8la

evidence that plaintiff’s superiors

reasonably believed that plaintiff’s speech

would disrupt the operation of the

wastewater treatment plant where plaintiff

worked, undermine his superior’s authority,

or destroy close working relationships.

Like Rankin v. McPherson, Supra, there was

no evidence that plaintiff’s statements had

discredited the city or interfered with its

efficient functioning.?° Similarly, there

is no evidence that plaintiff’s petition was

circulated in an inappropriate time, place

or manner. Absent any particularized

15 In fact, the city made no claim that

plaintiff’s petition disrupted the

wastewater treatment plant, destroyed close

working relationships with supervisors or

fellow employees, or constituted

insubordination.

As previously stated, the city’s

Civil Service Board found that, in violation

of the city’s charter, the decision to

discharge plaintiff was not made in good

faith for the purpose of improving public

service. Defendants did not Challenge the

propriety of that finding.

82a

evidence of defendants’ interests in this

case, I must conclude that, based on the

record the trial court had before it when it

directed the verdict, the employer’s

(city’s) interest in efficiency does not

outweigh the employee’s (plaintiff’s)

freedom of expression. Without such a

showing, plaintiff’s First Amendment rights

predominate. I conclude, therefore, that

defendants were not entitled to a directed

verdict on the issue whether plaintiff’s

petition is protected speech under the First

Amendment to the federal constitution.

G. Causation Determination

Having determined that defendants were

not entitled to a directed verdict with

respect to the question of whether

plaintiff’s petition is protected by the

First Amendment, I review the evidence to

determine whether it is sufficient on the

causation issue. If so, the trial court

erred in entering a directed verdict for

83a

defendants. If there was’ insufficient

evidence to establish causation, the trial

court correctly granted the defendants’

motion for directed verdict. In determining

the propriety of the trial court’s directing

the verdict, this court views the evidence

in the light most favorable to the non-

moving party (in this case, plaintiff), who

is entitled to the benefit of every

reasonable inference that may be drawn from

the evidence. Foster Vv. Schnell

Refrigeration Co., 280 Or 411, 414, 571 P2d

497 (1977).

The evidence would permit a trier of

fact to find that plaintiff’s supervisors,

Irvin and Lang, were hostile toward

plaintiff’s attempt to receive an exemption

from the challenged policy. Other employees

testified that management retaliated against

employees who spoke out against management

practices or on safety issues by firing

them. Lang admitted that plaintiff’s

84a

petition made him angry and caused him some

anxiety. Irvin admitted that he did not

help plaintiff find other comparable city

employment before terminating him, although

he had assisted other employees who did not

comply with the facial hair policy.?®

While plaintiff had no proof to spare, the

foregoing evidence, when combined with the

reasonable inferences that can be drawn

therefrom, was sufficient to allow a trier

of fact to conclude that plaintiff’s speech

was a "substantial" or "motivating" factor

in defendants’ discharge decision. There is

no evidence in the record to show by a

preponderance of the evidence that

defendants had other adequate grounds for

dismissal, i.e., that the same adverse

decision to plaintiff’s employment would

l6contrary to defendants’ assertions,

defendants did not object to the testimony

supporting the foregoing summary, and the

evidence was not excluded by the circuit

court.

85a

have been reached even in the absence of the

protected speech. It was error, therefore,

for the trial court to grant defendant’s

motion for directed verdict on plaintiff’s

§ 1983 claim.

II. CONCLUSION

For the foregoing reasons, I would

remand this case to the circuit court for

proceedings not inconsistent with this

opinion.??’

Van Hoomissen and Fadeley, JJ., join in

this opinion.

+7The Court of Appeals concluded that

"(pjlaintiff’s petition was constitu-

tionally protected." Shockey v. City of

Portland, 100 Or App 166, 170, 785 P2da 776

(1990). To the extent that that conclusion

forecloses defendants from demonstrating to

the trial court that plaintiff’s petition is

not protected by the First Amendment as a

result of the application of the Pickering

balancing test, I disagree.

86a

IN THE SUPREME COURT OF THE

STATE OF OREGON

WILLIAM H. SHOCKEY

Appellant/Respondent

Vv.

PORTLAND CITY OF

Respondent/Petitioner

JACK C. IRVING

Respondent /Petitioner

JOHN LANG

Respondent /Petitioner

OREGON TRIAL LAWYERS ASSN

Amicus Curiae

AMERICAN CIVIL LIBERTIES UNION

Amicus Curiae

OREGON EDUCATION ASSN

Amicus Curiae

AFSCME COUNCIL 75

Amicus Curiae

AFSCME LOCAL 189

Amicus Curiae

PORTLAND POLICE COM OFFICER

Amicus Curiae

PORTLAND POLICE ASSN

Amicus Curiae

OREGON PUBLIC EMPLOYEES UNION

Amicus Curiae

ORDER DENYING RECONSIDERATION

SC S36999

CA A49282

The court has considered the Petition

for Reconsideration and orders that it be

denied.

DATED: August 25, 1992

/s/ Wallace P. Carson, Jr.

WALLACE P. CARSON, JR.

CHIEF JUSTICE

87a

COPIES TO:

RICHARD C. BUSSE Attorney for

Appel lant/Respondent

HARRY AUERBACH Attorney for

Respondent/Petitioner

ROBERT ALLEN BENNETT Attorney for Amicus

Curiae

This computer-generated case Caption may not

comply with ORAP 2.05(1) & 5.05(5b).

88a

FILED: July 9, 1992

IN THE SUPREME COURT

OF THE STATE OF OREGON

WILLIAM H. SHOCKEY,

Respondent on Review,

Vv.

CITY OF PORTLAND, a municipal corporation;

JACK C. IRVIN, individually and in his

official capacity; and JOHN LANG,

individually and in his official capacity.

Petitioners on Review.

(CC A8611-06957; CA A49282; SC S$36999)

In Banc

On review from the Court of Appeals.*

Harry Auerbach, Deputy City Attorney, City

of Portland, attorney for petitioners on

review.

Richard C. Busse, Portland, attorney

respondent on review.

GILLETTE, J.

The decision of the Court of Appeals is

reversed in part and affirmed in part. The

judgment of the circuit court is reversed as

to the wrongful discharge claim; otherwise

affirmed.

89a

Unis, J., concurred in part and dissented in

part and filed an opinion in which Van

Hoomissen and Fadeley, JJ., joined.

*Appeal from Judgment of Multnomah County

Circuit Court, Robert L. Kirkman, Judge Pro

Tempore. 100 Or App 166, 785 P2d 776 (1990).

DESIGNATION OF PREVAILING PARTY AND AWARD OF

COosTs

Prevailing party: Petitioners on Review

{ ] No costs allowed. {X} Costs allowed,

payable by:

Respondent on

Review

APPELLATE JUDGMENT

MONEY JUDGMENT

Judqment #1

Creditor: CITY OF PORTLAND; JACK C. IRVIN,

individually and in his official

capacity; and JOHN LANG,

individually and in his official

Capacity

Debtor: WILLIAM H. SHOCKEY

Costs: $145.00* $60.00 of this amount

to be paid

90a

Attorney Fees: == to: STATE COURT

ADMINISTRATOR

TOTAL: $145.00

Interest: Simple, 9% per annum, from the

date of this appellate judgment

Appellate Judgment

Effective Date: September 17, 1992

SUPREME COURT

(seal)

9la

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

SHOCKEY,

Appellant,

Vv.

CITY OF PORTLAND et al,

RESPONDENTS.

(8611-06957; CA A49282)

Appeal from Circuit Court, Multnomah

County.

Robert L. Kirkman, Judge pro tempore.

Argued and submitted October 25, 1989.

Richard C. Busse, Portland, argued the

cause and filed the briefs for appellant.

With him on the reply brief was Donald B.

Potter, Portland.

Harry Auerbach, Deputy City Attorney,

Portland, argued the cause and submitted the

brief for respondents.

Before Joseph, Chief Judge, and Warren

and Rossman, Judges.

ROSSMAN, J.

Affirmed on claim for attorney fees

incurred before Civil Service Board;

otherwise reversed and remanded for

proceedings not inconsistent with this

opinion.

92a

ROSSMAN, J.

Plaintiff contends that the City of

Portland (city) and two of its employees,

defendants Land and Irvin, fired him in

retaliation for his circulating a petition

protesting a work policy. He alleged claims

for common law wrongful discharge and under

42 uSC § 1983,? asserting that defendants

violated his right to free speech under the

First and Fourteenth Amendments. He also

brought a claim against Lang and Irvin as

individuals, alleging that they had

intentionally interfered with his economic

relations with city. He sought punitive

142 USC § 1983 provides:

"Every person who, under color of

any statue, ordinance, regulation, custom,

or usage, of any State or Territory,

subjects, or cause 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 or equity, or

other proper proceeding for redress."

93a

damages on his § 1983 claim and, under 42

USC § 1988,2 reasonable attorney fees. He

also requested attorney fees incurred in

reinstatement proceedings before the city’s

Civil Service Board.

In pretrial motions, the trial court

struck plaintiff’s requests for attorney

fees and granted defendants’ partial summary

judgment on the § 1983 claim for punitive

damages. After plaintiff rested his case,

the trial court found that there was no

evidence that he was fired for circulating

the petition and, accordingly, granted

defendants’ directed verdict on the § 1983

and wrongful discharge claims. Although the

trial court allowed plaintiff’s intentional

242 USC § 1988 provides, in pertinent

part:

"In any action or proceeding to

enforce a provision of sections 1981, 1982,

1983, 1985, and 1986 of this title, *** the

court, in its discretion, may allow the

prevailing party, other than the United

States, a reasonable attorney’s fee as part

of the costs."

94a

interference claim to go to the jury, it

struck any reference to his right to free

speech. The jury returned a verdict for

plaintiff, but awarded no damages.

Plaintiff appeals; we affirm in part and

reverse and remand in part.

Plaintiff was employed as a waste water

mechanic for city and worked under Land and

Irvin. During 1984, he learned that city,

in an effort to comply with administrative

rules that prohibit the wearing of

respirators over facial hair, intended to

adopt a clean shaven policy for all waste

water mechanics. Plaintiff strongly opposed

the policy. He has worn a beard for 25

years, because he develops an inflammatory

skin rash when he shaves and because he has

a “weak chin." He circulated a petition

expressing dissatisfaction with the policy.

the petition reads:

"We, the undersigned, find the

proposed rules demanding that

beards be shaved before a

95a

respirator test can even be taken

to be arbitrary and discrim-

inatory. The wearing or not

wearing of beards was not a

condition of employment and any

hazards that exist now existed at

that time. Furthermore, at

everyone on site is to be avail-

able in a chlorine emergency, the

questions of fit, maintenance and

hygiene of the respirators, the

Supplying of respirators’ for

those who wear glasses, training

of all employees in their use,

hazard pay, and the availability

of respirators for office staff,

contractors’ employees and

visitors must be answered. The

aforementioned proposed rules do

not take into account the use of

respirators by the last three

mentioned groups. It would be

far more practical to have a

volunteer crew, specially trained

and outfitted to deal with

chlorine in emergency and non-

emergency situations."

Despite the petition, the policy was

implemented on August 1, 1984. Plaintiff

Subsequently refused to shave his beard,

and, in an attempt to receive an exemption

from the policy, he submitted medical

evidence that he has a_ psychological

attachment to his beard and that he develops

a skin rash when he shaves. Nonetheless, he

96a

was discharged on June 11, 1985. Shortly

thereafter, he commenced this~ action,

claiming that he was fired in retaliation

for circulating the petition.

Plaintiff first argues that the trial

court erred in allowing defendants’ motion

for a directed verdict on his wrongful

discharge and § 1983 claims and in striking

any reference to his right to free speech in

his intentional interference clain. A

directed verdict should be entered only when

a reasonable person could draw only one

inference from the evidence. Van Den Bron

v. Fred Meyer, Inc., 86 Or App 329, 738 P2d

1011 (1987). When reviewing a directed

verdict, we interpret the evidence in the

light most favorable to the non-moving

party, who is entitled to every reasonable

inference supported by the record. Dennis

v. McLean, 53 Or App 282, 631 P2d 839, rev

den 291 Or 771, 642 P2d 308 (1981). With

those principles in mind, we hold that there

97a

waS evidence of a causal link between

plaintiff’s petition and his termination.

Plaintiff testified that Irvin and Lang

appeared hostile toward his attempt to

receive an exemption from the policy. Other

employees testified that management had

retaliated against other workers who spoke

out against management practices or on

safety issues. When asked about’ the

petition, Lang admitted that it made him

angry and caused him some anxiety. Irvin

admitted that he did not assist plaintiff in

finding other comparable city employment

before terminating him, although he had done

so for other employees who did not comply

with the policy. Irvin also admitted that

he ignored reports concerning plaintiff’s

psychological attachment to his beard. Even

though 13 months had elapsed between the

petition and his termination, we conclude

that a jury could infer from the totality of

the evidence that the petition was a

98a

motivating factor in plaintiff’s

termination.

Defendants argue that, even if

plaintiff was fired for circulating the

petition, the trial court did not err

because his speech was not protected by the

First Amendment. Citing Connick v. Meyers,

461 US 138, 75 L Ed 2d 708, 103 S Ct 1684

(1983), they contend that plaintiff’s

petition is not protected because it does

not relate to "matters of public concern."

We disagree. Although plaintiff may have

been motivated to circulate the petition for

personal reasons, it questioned the

practicality of the hazards inherent in the

proposed policy. A major purpose of the

First Amendment is to protect free dis-

cussion, including the manner in which the

government operates. Mills v. Alabama, 384

US 214, 218, 16 L Ed 2d 484, 86 S Ct 1434

(1966). Plaintiff’s petition was constitu-

tionally protected.

99a

Plaintiff also argues that the trial

court erred in striking his request for

attorney fees under § 1988 and in granting

defendants’ motion for summary judgment on

his claim for punitive damages under § 1983.

The trial court based those rulings on its

determination that such damages are

prohibited by the Oregon Tort Claims Act

(OTCA). Under Rogers v. Saylor, 306 Or 267,

760 P2d 232 (1988), and our opinion in the

Same case, 88 Or App 480, 746 P2d 718

(1987), both rulings were in error.?

Plaintiff also argues that the trial

court erred in striking his request in his

intentional interference claim for attorney

fees incurred in reinstatement proceedings

before city’s Civil Service Board. Attorney

3In that § 1983 action, we allowed

attorney fees, but held that the oOTCA

precludes a claim for punitive damages. 88

Or App at 484. On review, this court’s

decision to allow attorney fees was not

contested, and the Supreme Court held that

punitive damages are also_ recoverable.

2Rogers v. Saylor, supra, 306 Or at 278.

100a

fees and other expenses from another

proceeding may be recovered in an action

against a defendant when the defendant’s

charged wrongful conduct has involved the

plaintiff in previous litigation with a

third party. fe ee Group/Equipment

Financing, Inc. v. Young, 99 Or App 270,

272, 782 P2d 169 (1989). The preceding

litigation, however, did not involve a third

party but rather the same defendants.

Therefore, the rule of damages involving

prior litigation with a third party is not

applicable. The trial court properly struck

the claim for attorney fees before the Civil

Service Board.

Plaintiff finally argues that the trial

court erred in denying his motion for a

mistrial. The motion was based on the trial

judge’s acknowledgement that he "wouldn’t

have taken the case" had he known that he

would be requested to evaluate the testimony

of a certain city employee, a personal

10la

acquaintance of the judge who had been

involved in plaintiff’s termination. We

need not discuss that contention, because

the problem should not arise on retrial.

Affirmed on the claim for attorney fees

incurred before the Civil Service Board;

otherwise reversed and remanded for

proceedings not inconsistent with this

opinion.

102a

IN THE CIRCUIT COURT OF THE STATE OF

OREGON FOR THE COUNTY OF MULTNOMAH

WILLIAM H. SHOCKEY,

Plaintiff,

Vv.

CITY OF PORTLAND, a municipal corporation;

JACK C. IRVIN, individually and in his

official capacity; and JOHN LANG, in-

dividually and in his official capacity,

Defendants.

No. A 86111-06957

JUDGMENT

This matter came on regularly for trial

on May 25, 1988 before the undersigned

judge, and a jury. Plaintiff William H.

Shockey appeared through his-~ attorney,

Richard C. Busse. Defendants City of

Portland, John Lang and Jack Irvin appeared

through their attorney, Stuart J. Cutler.

Prior to the commencement of the trial,

plaintiff moved to voluntarily dismiss his

First Claim for Relief (Handicap

Discrimination). The Court so ordered.

After plaintiff rested his case, and

after having heard arguments’ by both

counsel, the Court granted defendants’

103a

motions for directed verdict against

plaintiffs’ Second Claim for Relief

(Wrongful Discharge) and his Third Claim for

Relief (42 USC § 1983). Accordingly, the

Court ordered 2 and 3 dismissed.

The jury, having heard arguments by

both counsel and, having been instructed on

all matters of law and, having retired to

deliberate upon its verdict, did thereafter

on May 31, 1988 return into court a verdict

in favor of defendants, which, omitting the

title of the court and cause, was in the

following form:

We the jury, being first

duly empaneled and sworn, do as

our verdict answer as follows:

1. Has the Plaintiff estab-

lished by a preponderance of

the evidence that any of the

Defendants listed below

interfered with his economic

relations with the City of

Portland in any manner

alleged in Plaintiffs

complaint?

Answer:

No)

104a

Defendant, Jack C. Irvin:

(Yes or No)

Defendant, John Lang: Yes (Yes or

If your answer to this

question includes a Yes

answer as to any

defendant, then answer

the next question. If

your answers to this

question is No as to

all Defendants then

skip the next question.

2. What sum of money

has PiGint ses

established by a

preponderance of the

evidence will

compensate him for any

emotional distress that

he sustained which

should be ° awarded

against the Defendants

listed below as a

result of their

interference with his

economic relations with

the City of Portland?

Answer:

Defendant, Jack C Irvin:

Defendant, Jack Lang:

Dated the 31 day of May,

/s/Glenn Buchanan

Presiding Juror

| ;

105a

The matter now coming on for judgment

upon the foregoing verdict, it is hereby

ORDERED AND ADJUDGED that defendants

have judgment against plaintiff William H.

Shockey and that such action be, and the

same is, hereby dismissed in its entirety

and with prejudice, and that the defendant

is granted judgment against plaintiff

William H. Shockey for defendants’ costs and

disbursements of §

Dated this 29 day of June, 1988.

Robert L. Kirkman

Circuit Court Judge, Pro Tem

Submitted by:

fs/ Stuart J. Cutler

Stuart J. Cutler, OSB #72062

Deputy City Attorney

Of Attorneys for Defendants

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.