Opposition Brief — Workman v. Jordan

51 —. eT

No. 94-1112;

rt be ' 1936 \

In The i |

G ee. } mA e*Sh:: j

Sapreme Court of the Hniled’ States —

s

ROBERT WORKMAN,

Petitioner,

VS.

SHERIFF ED JORDAN, in his individual capacity, and

UNDERSHERIFF RICK DILL, in his individual capacity,

Respondents.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Tenth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

CHRISTINA M. HABAS ALAN EPSTEIN

WATSON, NATHAN Counsel of Record

& BREMER, P.C. CATHY H. GREER

Attorneys for Respondent MALCOLM S. MEAD

Sheriff Ed Jordan HALL & EVANS, L.L.C.

3900 East Mexico Ave., #1000 Attorneys for Respondent

Denver, CO 80210 Undersheriff Rick Dill

(303) 691-3737 1200 17th St., Suite 1700

Denver, CO 80202-5800

(303) 628-3300

LA —~ (800) 3 APPEAL * (800) 5 APPEAL « (800) BRIEF 21

QUESTIONS PRESENTED FOR REVIEW

1. Whether a government employee’s testimony regarding

matters of purely personal interest at a quasi-judicial,

administrative hearing is inherently a matter of public concern

subject to First Amendment protection?

2. Whether a First Amendment claim is timely filed under a

two year statute of limitations where the allegations of the

complaint, filed in November of 1990, show that the employee

was injured in July of 1987 when he was placed on disciplinary

suspension and given an adverse performance review in alleged

retaliation for his testimony at aco-employee’s grievance hearing,

which adverse performance review then caused the employee

additional injury when it was used in substantial part in November

of 1989 as the basis for his termination?

ii

TABLE OF CONTENTS

Page

Questions Presented for Review .........ccccccccees i

PRR CECRIIN oc 6.9:006006486045 li

BP er re Poe iil

SRRNNNGE TUN. occa secuceuctedeceneeesaee ieee 1

A. FOCORGL OGRIOUUE 6 6506 6cccetaenneeasasess l

BR. PCE POORN 60d iccesasececudiseseas 6

Reasons for Denying the Writ .........cccccceccccess 7

SUEY CEA onc kc kbeiasaesacnawersens 7

I. The Tenth Circuit’s holding does not create a

conflict with the law of the Fifth Circuit. ........ 9

II. The deviation by the Fifth Circuit from this Court’s

“public concern” requirement does not justify

issuing the writ of certiorari to the Tenth Circuit.

o 0000 s00040 6090 e nee aes 10

III. Respondents’ conduct in alleged retaliation for

Workman’s speech at his 1990 grievance hearing is

too insubstantial to justify constitutional scrutiny

im TeGeebeOUh. «6c céxisuvewecauueeeneesans 21

IV. The Tenth Circuit properly found Workman’s free

speech claim, to the extent based upon an alleged

incident in 1987, to be time-barred. ............ 25

Contents

Page

EE ETT TT TTT eT TTL TTT TLE Terre 29

TABLE OF CITATIONS

Cases Cited:

Altman v. Hurst, 734 F.2d 1240 (7th Cir. 1984), cert.

Co RR | ee ee 17,20

Arvinger v. Mayor and City Council of Baltimore, 862 F.2d

ae ee ee 13,14, 15

Belk v. Town of Minocqua, 858 F.2d 1258 (7th Cir. 1988)

fo ion 5 ys ay Seer eA EA eae ee 18

Bose Corp. v. Consumers Union of the United States, Inc.,

CE ET TOT TTT eT CTT ee Tee 11

Brawner v. City of Richardson, 855 F.2d 187 (Sth Cir.

EIR SG St SR a ee ee ee ee 13

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

SS a a ee 7,8, 11,12, 12,20, 21,22,24

Curl v. Reavis, 740 F.2d 1323(4th Cir. 1984) ........... 15,20

Czurlanis v. Albanese,721 F.2d 98 (3rd Cir. 1983) ..... 13,14, 18

Dalton v. Dow Chemical Co., 280 Minn. 147, 158 N.W.2d

ESS 28

iv

Contents

Page

~ Day v. South Park Independent School Dist., 768 F.2d 696

(5th Cir. 1985), cert. denied, 474 U.S. 1101 (1986) ... 18

Doyle v. Linn, 37 Colo. App. 214, 547 P.2d 257 (1975) ... 28

Ferrara v. Mills, 781 F.2d 1508 (11th Cir. 1986) ...... 14, 15,16

Freeman v. McKellar, 795 F. Supp. 733 (E.D. Pa. 1992) .. 18

Garrison v. Louisiana, 379 U.S. 64(1964) ............ 21

Givhan v.Western Line Consolidated School Dist., 439

SEE wo nes 06445 5406 R sae $1, 52,22

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

SORT CE 460 40% Vewebesnntasasedea 13, 15,18

Green v. City of Montgomery, 792 F. Supp. 1238 (M.D. Ala.

SE 404.5464:004344000 0rd oe eee 18

Housing Authority v. Leo A. Daly Co., 35 Colo. App. 244,

pi gy Le 3 | nr nine gym ree 28

Hunt v. Bennett, 17 F.3d 1263 (10th Cir. 1994), cert.

denied, U3... LISS. Ce. OT CIGSS) nc ccccccas. 25

Johnston v. Harris County Flood Control District, 869 F.2d

1565 (Sth Cir. 1989), cert. denied, 493 U.S. 1019

CPs 8549 hs0kGun ead eeaenaeeneers 7,9, 10, 11, 15, 18, 19

v

Contents

Koch v. City of Hutchinson, 847 F.2d 1436 (10th Cir. 1988),

cert. denied, 488 U.S.909 (1988) ............. ver

Lathrop v. Entenmann’s Inc., 770 P.2d 1367 (Colo. App.

OTTER ORT ETTORE CT Oe

SOP eek cesddvndavecuans sees ceestueeseare

rrr re er een rar res

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

Melton v. City of Oklahoma City, 879 F.2d 706 (10th Cir.

1989), cert. denied, __U.S.__, 112 S. Ct. 297 (1991) ..

Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429

tn Be kg: Tee ee eee eT err ery rere re

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)

oeeeveweeeseeoeveeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

O’Connor v. Steeves, 994 F.2d 905 (ist Cir. 1993), cert.

denied, _U.S.__, 114S. Ct. 634(1993) ............

Olson v. Bell Telephone Laboratories, Inc., 388 Mass. 171,

Oe Fs ID 4 ko oo 066 bee se endscuesis

Parratt v. Taylor, 451 U.S.527(1981) ............606.

Page

14

19

19

15

14

10

11,22

21

13

vi

Contents

Patrick v. Miller, 953 F.2d 1240 (10th Cir. 1992) ........ 19

Paul v. Davis, 424 U.S. 693 (1976) ............0 eee 20

Perry v. Sindermann, 408 U.S.593 (1972) ............ 22

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

0600000040680064%04502000000CR 10, 11, 14,22, 24

Rankin v. McPherson, 483 U.S. 378 (1987) ....11,12, 14, 19,22

Reeves v. Claiborne County Bd. of Educ., 828 F.2d 1096

CSUN G UUED 0c acesccuascasaeuvawed ves“ vents 17,18

Renfroe v. Kirkpatrick, 722 F.2d 714 (11th Cir. 1984), cert.

Gated, GSP UB ee lO) oct cteeticcoscecsctss 18

Rice v. Ohio Dept. of Transportation, 887 F.2d 716 (6th Cir.

1989), vacated on other grounds, 497 U.S. 1001 (1990)

0 +40b 09409 00066500645bES UC RRA EES TERS beens 13, 14,15

Sandutch v. Muroski, 684 F.2d 252 (3d Cir. 1982) ....... 26, 28

Santella v. Grishaber, 654 F. Supp. 428 (N.D. Il. 1987) .. 18

Schalk v. Gallemore, 718 F. Supp. 862 (D. Kan. 1989) ... 18

Siegert v. Gilley, 500 U.S. 226, 114 L. Ed. 24277, 111 S. Ct.

SII nose on uscsav xoecsneele 24

vii

Contents

Page

Singleton v. City of New York, 632 F.2d 185 (2nd Cir.

1980), cert. denied, 450 U.S.920(1981) ........ ‘... 26,28

Smith v. Cleburne County Hospital, 870 F.2d 1375 (8th Cir.

1989), cert. denied, 493 U.S. 847 (1989) ........... 14

Stough v. Gallagher, 967 F.2d 1523 (11th Cir. 1992) ..... 14

Thornhill v. State of Alabama, 310 U.S. 88 (1940) ...... 11

Ullman v. United States, 350 U.S. 422 (1956) .......... 17

Waters v. Churchill, _U.S.__, 1148S. Ct. 1878 (1994) ... 11,22

White Plains Towing Corp. v. Patterson, 991 F.2d 1049

(2nd Cir. 1993), cert. denied, _U.S.__, 114 S. Ct. 185

SET vn ss bok eae e sa Ode Chee ee ane ekesees 13

Wilson v.Garcia, 471 U.S. 261 (1985) ................ 25

Workman v. Jordan, 32 F.3d 475 (10th Cir. 1994)

Ci vicka Cates at ckedeokucwns 7,8, 10, 14, 15,22, 25, 26

Yatvin v. Madison Metropolitan School Dist., 840 F.2d

EEG GE haa k ods sb deestceducaeecendns 14, 15,16

Ziccarelli v. Leake, 767 F.Supp. 1450(N.D. Ill. 1991) ... 18

Statutes Cited:

GEO NES Koes cissendevcccweenesinees 6, 9, 25, 26, 28

vill

Contents

Page

Colo. Rev. Stat. § 13-80-102(1)(a) ................4.. 25

Colo. Rev. Stats. §§ 24-50.5-101, etseg. .............. 19

United States Constitution Cited:

FirstAmendment .......... i, 7, 10, 11, 17, 18, 20, 21, 24, 25, 28

Rule Cited:

SD GE te BNE 5k 08 056 va cae cndescevasaacs 1

1

STATEMENT OF FACTS'

A. Factual Background

Respondent Ed Jordon is the duly elected sheriff of Weld

County, Colorado. Respondent Rick Dill is the appointed

undersheriff in the Weld County Sheriff’s Office. Petitioner

Robert Workman is a captain in the Weld County Sheriff’s Office.

At all times relevant to this lawsuit, all three people occupied the

positions stated (Aplt. App. at Tab 1, pp.1-2, {J 2-4). This lawsuit

concerns the conduct of Captain Workman toward female

employees in the Weld County Sheriff’s Office, and the efforts of

Sheriff Jordan and Undersheriff Dill to deal with such conduct.

In the spring of 1989, two female employees in the sheriff’s

office complained to Sheriff Jordan about “rude treatment” and

“inappropriate comments” by Workman (/d. at 89). In June of

1989, two female employees of the sheriff’s office met with

Sheriff Jordan and Undersheriff Dill to complain about

Workman’s abrupt and rude demeanor (/d. at 8,

{ 33). One of these employees, Marilyn Bedford, complained that

Workman had been rude to her, that he had made a sexist remark

to her and that he had called her a bitch (/d. at 8-9, JJ 30, 33). The

other employee, Susan Jarrett, complained of receiving a “wolf

whistle” as she passed Workman’s office, that Workman had

called her “red riding hood” when she wore a red dress, that

1. The following statement of facts is taken from the allegations of

Workman’s complaint and the attached documents (Aplt. App. at Tab 1). In

keeping with the appropriate standard of review, all of the factual allegations of

the complaint are accepted as true, except where specifically contradicted by

the documents attached to the complaint. Where Workman has attached a

document and summarized its contents, but the summary is contradicted by the

document, the facts as contained in the referenced document are adopted. This

statement of facts is also presented with the admonition of Rule 15.1 of the

Rules of the Supreme Court in mind. References are id the Appellant’s

Appendix which was filed in the underlying appeal in the Tenth Circuit.

2

Workman had made a comment about her fiance, and that

Workman had said her services were not needed by the sheriff (/d.

at 8-9, Jf 31, 33). On October 18, 1989, Susan Jarrett complained

to a supervisory employee in the sheriff’s office that on October

13, 1989 Workman had stood too close to her and pinched her

cheek (/d. at 5, ¥ 23). Sheriff Jordan and Undersheriff Dill

received “specific, actual and contemporaneous knowledge of

these complaints.” (/d. at 8, J 36).

On October 19, 1989, Undersheriff Dill issued to Workman a

memorandum regarding “Notice of Internal Investigation”

stating that allegations had been made against Workman by a

female employee at the Weld County Sheriff’s Office which “if

substantiated, may constitute sexual harassment,” placing

Workman on administrative leave and notifying Workman that

the personnel department would be initiating an investigation of

the allegations (/d. at 5, J 24 and p. 42). The investigation was

conducted by an officer from the police department of the City of

Greeley, Colorado (/d. at 5-6, J 26). At the conclusion of his

investigation, the investigator made the following factual

findings:

1. Workman had made “wolf whistles” to a

female employee which intimidated her

into changing her dress.

2. Workman violated the personal space of

female employees. In one case he had

stood only a few inches from Susan

Jarrett.

3. Workman pinched Susan Jarrett on the

cheek.

4. Workman made a sexist remark to Susan

Jarrett about how women should work in

jobs involving typewriters.

a

5. Women reported “unwelcomed touches”

by Workman.

6. Some women in the sheriff’s office

perceived that Workman believes women

are lower than men.

7. Workman made a comment to Marilyn

Bedford that “maybe we better give this

job to a man to get it done right.”

8. Workman created a level of fear among

female employees.

9. Workman’s behavior caused emotional

stress among the female employees,

evidenced by the crying of a few female

employees.

10. Workman used inappropriate language of

a sexual nature.

11. Workman called women “bimbo,”

“sweetie,” “bitch.”

(Id. at 43-44). Based upon a review of the factual information

compiled by the investigator, David Worden, Acting Director of

Personnel for Weld County, concluded that Workman was guilty

of sexual harassment:

It is my finding that Capt. Workman’s

behavior had the effect of creating a sexually

intimidating, hostile, and offensive working

environment. This is evidenced throughout

the interviews of women in the department.

* * *

4

It is my feeling that there was some sexual

harassment. He has created a hostile working

environment towards certain female

employees, in particular, Susan Jarrett,

Marilyn Bedford and Linda Hartley. He has at

times used comments and behaviors of a

sexual nature to help create this environment.

(Id. at 43-44),

On November 8, 1989, Workman attended a

“predetermination hearing” with Sheriff Jordan and Undersheriff

Dill, to discuss the results of the investigation (/d. at 10, ¥ 43).

Because the investigation sustained the charge of sexual

harassment, Undersheriff Dill recommended to Sheriff Jordan

that Workman be terminated. (J/d.) Following the

“predetermination hearing,” Workman was given a copy of the

results of the investigation (/d. at 8-9,1 4 38), and Sheriff Jordan

terminated Workman’s employment (/d. at 10, J 43). On

November 11, 1989, Sheriff Jordan gave Workman a written

notice of termination which states in part:

The findings from the Personnel Department

were sustained in the matter of Sexual

Harassment, stating that your “behavior had

the effect of creating a sexually intimidating,

hostile, and offensive working environment.”

This is evidenced through the interview of

women in the department. Again, I refer you

to page 13 of the Weld County Personnel

Policy Handbook, paragraph SEXUAL

HARASSMENT, wherein this conduct is

again cause for “strong disciplinary action up

to and including termination.”

(Aplt. App. at Tab 1, pp. 45-46).

—

5

Workman appealed his termination pursuant to established

grievance procedures (/d. at 15-18). The hearing on Workman’s

appeal was conducted by a neutral hearing officer; Workman was

represented by an attorney; and Workman was given extensive

due process rights (See id. at 15-18, particularly pp. 5-16, 4 55).

The post-deprivation grievance hearing commenced on March 6,

1990, and continued over several days (Jd. at 48). Numerous

witnesses testified and nearly thirty exhibits were introduced,

including transcripts of interviews with department emp!oyees.

(id.) At the conclusion of the proceeding, the hearing otficer

issued a seven-page opinion containing findings of fact,

conclusions of law and his decision sustaining Workman’s

grievance, reversing his termination and ordering reinstatement

(Id. at 48-54). Although the hearing officer specifically found

that “some of Captain Workman’s comments were vulgar, sexist,

inconsiderate and inappropriate in the work place,” he

nonetheless concluded that Workman’s conduct “did not rise to

the level of sexual harassment” and therefore that his

termination should be reversed (Jd. at 48-54). On April 11, 1990,

Workman was reinstated to his position at the Weld County

Sheriff’s Office “with all back pay.” (/d. at 1-2, 2).

Following Workman’s reinstatement, Undersheriff Dill

placed in Workman’s personnel file a letter of reprimand and

performance appraisal and subjected Workman to a “re-entry

plan.” (Jd. at 23-24, {J 66.a-d). The letter of reprimand and

performance appraisal essentially inform Workman that his

conduct toward women, although not found by the hearing officer

to rise to the level of sexual harassment, would no longer be

tolerated (Jd. at 67-76). The reprimand letter explains what

standard of conduct would be required (/d. at 67-68); the

performance appraisal identifies specific areas of conduct

needing improvement and recommends that Workman attend

various training classes and seminars to effectuate that

improvement (/d. at 72-76); and the re-entry plan imposes a

6

number of responsibilities, duties and tasks on Workman, for

which his performance could again be evaluated (/d. at 24,

{ 66.d).

On January 27, 1992, the Federal Bureau of Investigation

(“FBI”) reviewed Workman’s personnel file as part of a

background check in connection with Workman’s application to

the FBI Academy at Quantico, Virginia (Aplt. App. at Tab 9 and

Tab 10, pp. 31-32, {J 83.f-83.h). The FBI was able to review

Workman’s letter of termination, the hearing officer’s findings,

the order reinstating Workman to his position as captain, the letter

of reprimand and the performance evaluation. (Jd. at { 83.g).

Following its review of this material, the FBI denied Workman

admission to the Academy (/d. at { 83.h).

B. Federal Proceedings

On November 13, 1990, Workman sued Weld County,

Sheriff Ed Jordan, Undersheriff Dill and other defendants in the

United States District Court for the District of Colorado, alleging

various theories of relief under 42 U.S.C. § 1983 and state law

(Aplt. App. at Tab 1). As relevant here, Workman alleged that

Sheriff Jordan and Undersheriff Dill in both their individual and

official capacities violated Workman’s rights under 42 U.S.C.

§ 1983 to procedural due process, liberty interests and freedom of

speech (Aplt. App. at Tab 1, pp. 26-32).

Sheriff Jordan and Undersheriff Dill moved to dismiss the

federal claims against them in their individual capacities on the

basis of qualified immunity (Aplt. App. at Tab 2, pp. 14-16, and

Tab 5). The district court denied this motion (Aplt. App. at Tab

13). Nonetheless, the district court dismissed on the merits the

third claim for relief alleging a violation of Workman’s right to

free speech (/d. at 5).

Respondents Jordan and Dill, in their individual capacities,

Serer ee

=

Pho

7

appealed the denial of their motions to dismiss based upon

qualified immunity. Petitioner Workman cross-appealed the

dismissal of his third claim for relief. The United States Court of

Appeals for the Tenth Circuit reversed the district court’s ruling

on qualified immunity but affirmed the dismissal of the First

Amendment claim. Workman y. Jordan, 32 F.3d 475 (10th Cir.

1994). The Tenth Circuit found the First Amendment claim

barred in part by the appropriate statute of limitations and in part

by the personal nature of Workman’s speech. Id. The Tenth

Circuit subsequently denied Workman’s petition for rehearing

and suggestion of rehearing en banc with respect to his First

Amendment claim.

REASONS FOR DENYING THE WRIT

Summary of Argument

The decision below does not create a conflict with decisions

of the Fifth Circuit over what constitutes speech on a matter of

public concern. The Fifth Circuit has held that testimony by one

employee at a co-employee’s equal employment opportunity

hearing is inherently a matter of public concern. Johnston v.

Harris County Flood Control District, 869 F.2d 1565,1576-1579

(Sth Cir. 1989), cert. denied, 493 U.S. 1019 (1990). The Tenth

Circuit did not reject that holding, but merely declined to extend

it to testimony by one employee at his own personnel grievance

hearing. Workman v. Jordon, 32 F.3d 475, 483 (10th Cir. 1994).

Thus, this case does not present the Court with an appropriate

opportunity to review the Fifth Circuit’s test for protected speech.

The First Amendment protects employee speech on matters

of public concern because such speech occupies the “highest rung

[in] the hierarchy of First Amendment values,” and is essential to

our system of self-government. Connick v. Myers, 461 U.S. 138,

145 (1983). Conversely, when the employee’s speech does not

address matters of public concern, the government employer is

8

allowed “wide latitude” in managing its personnel, because such

speech does not contribute to the marketplace of ideas. Connick,

supra, 461 U.S. at 146. The context alone of the employee’s

speech cannot automatically elevate it to a matter of public

concern any more than the cover of a book can transform the

nature of its contents. Quite simply, petitioner’s argument

elevates form (testimonial speech) over substance (the public

concern requirement), and has been properly rejected by nearly

every circuit to consider it.

There is a third reason for refusing to issue the writ with

respect to petitioner’s free speech claim, to the extent that claim is

based upon actions allegedly taken in retaliation for his testimony

at his own grievance hearing in March of 1990. The alleged acts

of retaliation for this speech upon which petitioner focuses

consist of the placing of true documents (a letter of reprimand and

a performance appraisal) in his personnel file, and subjecting

petitioner to a “re-entry plan” (essentially, a list of duties).

Although petitioner argues that the contents of these documents

are false, the record demonstrates to the contrary, as specifically

found by the Tenth Circuit. Workman, supra, 32 F.3d at 481. In

retaliation for his speech in 1990, petitioner was not fired,

demoted, denied promotion or denied any other substantial

benefit. To the contrary, following his 1990 testimony, petitioner

was restored to his former position as a captain in the Weld

County Sheriff’s Office and given an award of all back pay (Aplt.

App. at Tab 10, p. 2,4 2). The acts of retaliation allegedly taken in

response to petitioner’s 1990 speech are simply too insubstantial

to merit constitutional scrutiny.

The Tenth Circuit also properly found petitioner’s free

speech claim, to the extent based upon allegations of actions

taken in retaliation for his testimony at a co-employee’s

grievance hearing in July of 1987, to be time-barred under the

applicable two year statute of limitations. Workman, supra, 32

F.3d at 482. Accepting the allegations of his complaint, petitioner

9

knew in July of 1987 that respondents had retaliated against him

for testifying at his co-worker’s grievance by placing him on

disciplinary suspension, subjecting him to an unscheduled

performance appraisal and giving him his first unsatisfactory

performance review in his lengthy employment history. The

allegation that respondents subsequently relied in part upon this

unsatisfactory performance appraisal as grounds for dismissing

petitioner in November of 1989 merely shows the development

of additional injury from the initial act of retaliation. Because

petitioner could have maintained an action for damages under 42

U.S.C. § 1983 in July of 1987 for the injury allegedly caused by

his disciplinary suspension and unsatisfactory performance

review, the Tenth Circuit properly found petitioner’s November

1990 claim for retaliation against his July 1987 testimony to be

time-barred.

I. THE TENTH CIRCUIT’S HOLDING DOES NOT

CREATE A CONFLICT WITH THE LAW OF THE FIFTH

CIRCUIT.

Focusing on a perceived disagreement between the decision

below and the decision of the United States Court of Appeals for

the Fifth Circuit in Johnston, supra, Workman urges this Court to

issue a writ of certiorari to the Tenth Circuit in order to resolve the

issue of whether a government employee’s testimonial speech at

his grievance hearing, no matter how personal or trivial, is

inherently a matter of public concern. This Court should decline

the invitation for numerous reasons, as explained herein. First

among them, however, is the absence of any substantial

disagreement between the Fifth and Tenth Circuits.

In Johnston, supra, the Fifth Circuit held that sworn,

testimonial speech by a government employee at aco-employee’s

equal employment opportunity hearing is inherently a matter of

public concern. 869 F.2d at 1578. In contrast to the situation in

Johnston, the case at hand does not involve testimony by one

10

employee at another employee’s equal employment opportunity

hearing, but testimony by one employee at his own personnel

grievance hearing.” After discussing Johnston, the Tenth Circuit

noted that Workman “has not cited any cases holding that sworn

testimony in an employee’s grievance proceeding is necessarily

of a public concern.” Workman, supra, 32 F.3d at 483. The Tenth

Circuit has acknowledged that one employee may have an

interest in testifying on behalf of another employee where the co-

employee’s livelihood and/or reputation are at stake. See Melton

v. City of Oklahoma City, 879 F.2d 706, 715 (10th Cir. 1989), cert.

denied, __ U.S. ___, 112 S. Ct. 297 (1991). However, the Tenth.

Circuit simply refused to accept that Workman’s self-serving

testimony at his own personnel grievance hearing was inherently

a matter of public concern. 32 F.3d 483. Thus, rather than

rejecting the Fifth Circuit’s analysis in Johnston, the Tenth

Circuit left open the possibility that it would follow Johnston

when confronted with the appropriate facts. This case therefore

does not present the Court with an appropriate opportunity for

reviewing the correctness of the Fifth Circuit’s test for protected

speech.

II. THE DEVIATION BY THE FIFTH CIRCUIT FROM

THIS COURT’S “PUBLIC CONCERN” REQUIREMENT

DOES NOT JUSTIFY ISSUING THE WRIT OF

CERTIORARI TO THE TENTH CIRCUIT.

The public interest in free and unhindered debate on matters

of public interest is the core value of the Free Speech Clause of

the First Amendment. Pickering v. Board of Education, 391 U.S.

563, 573 (1968). The First Amendment therefore embraces the

liberty “to discuss publicly and truthfully all matters of public

2. Although Workman’s complaint sets forth the factual basis for two

discreet claims of retaliation (Aplt. App. at Tab 10, p. 33, {¥ 85-90), the Tenth

Circuit properly held that the first claim (which involved testimony by

Workman at a co-employee’s grievance hearing) was time-barred. Workman,

supra, 32 F.3d at 482.

11

concern without previous restraint or fear of subsequent

punishment.” Thornhill v. State of Alabama, 310 U.S. 88, 101

(1940). Conversely, there are categories of speech to which the

“majestic protection” of the First Amendment does not extend

because they are “no essential part” of the marketplace of ideas.

Bose Corp. v. Consumers Union of the United States Inc., 466

U.S. 485, 504 (1984). Among these are statements made by

public employees in their employment capacity which de not

touch on matters of public concern. Bose Corp., supra, 466 U.S.

at 505, n.22.

The function of the courts when confronted with the question

of public employee speech is to balance “the interests of the

[employee], as a citizen, in commenting upon matters of public

concern and the interests of the State, as an employer, in

promoting the efficiency of the public services it performs

through its employees.” Pickering, supra, 391 U.S. at 568; see

also, Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 284 (1977) (same); Givhan v. Western Line

Consolidated School Dist., 439 U.S. 410, 414 (1979) (same);

Connick v. Myers, 461 U.S. 138, 142 (1983) (same); Rankin v.

McPherson, 483 U.S. 378, 384 (1987) (same). The “threshold

question” for the court’s determination is whether the employee’s

speech addresses a matter of public concern. Rankin, supra, 483

U.S. at 384. If it does not, “it is unnecessary for [the court] to

scrutinize the reasons” for the employment decision. Connick,

supra, 461 U.S. at 146; see also, Waters v. Churchill, __ U.S. _,

114 S. Ct. 1878, 1887 (1994) (“... we have refrained from

intervening in government employer decisions that are based on

speech that is of entirely private concern”).

Petitioner seeks to eliminate this Court’s “threshold

question” for the determination of whether a public employee’s

speech is constitutionally protected. Relying primarily upon the

Fifth Circuit’s decision in Johnston, supra, petitioner would have

this Court issue the writ of certiorari to the Tenth Circuit in order

12

to establish that testimonial speech at any employee grievance

hearing is inherently a matter of public concern, no matter how

trivial or personal the content of the speech. The Court should

decline the invitation.

This Court has repeatedly refused to consider the form or

content of the speech alone as determinative of its constitutional

status. Givhan, supra, 439 U.S. at 415-416 (speech on matters of

public concern does not lose protected status because it is

delivered in private); Connick, supra, 461 U.S. at 148, n.8

(discussing Givhan, supra); Rankin, supra, 483 U.S. at 386, n.11

(discussing Givhan). Rather, in determining whether an

employee’s speech addresses a matter of public concern, the

Court is to consider the “content, form and context of a given

statement, as revealed by the whole record.” Connick, supra, 461

U.S. at 147-148 (emphasis added). As this Court explained quite

clearly in Connick, the limitation of constitutional protection to

speech on matters of public concern was not accidental:

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.

* * x

When employee expression cannot be fairly

considered as relating to any matter of

political, social, or other concern to the

community, government officials should

13

enjoy wide latitude in managing their offices,

without intrusive oversight by the judiciary in

the name of the First Amendment.

* * *

We hold only that when a public employee

speaks not as a citizen upon matters of public

concern, but instead as an employee upon

matters of only personal interest, absent the

most unusual circumstances, a federal court is

not the appropriate forum in which to review

the wisdom of a personnel decision taken by a

public agency allegedly in reaction to the

employee’s behavior.

461 U.S. at 143, 146-147. Without this “common-sense”

restriction to matters of public concern; the federal courts would

be “swamped with routine employee grievances

mischaracterized as First Amendment cases.” Connick, supra,

461 U.S. at 165 (Brennan, Marshall, Blackmun and Stevens, J.J.,

dissenting).

Every federal circuit recognizes that subject matter of

“public concern” is the “threshold” requirement in determining

the constitutional status of employee speech. O’Conno*r v.

Steeves, 994 F.2d 905, 912-913 (1st Cir. 1993), cert. denied, __

U.S. _, 114 S. Ct. 634 (1993); White Plains Towing Corp. v.

Patterson, 991 F.2d 1049, 1058 (2nd Cir. 1993), cert. denied,

__U.S.__ , 1148. Ct. 185 (1993); Czurlanis v. Albanese, 721 F.2d

98, 103 (3rd Cir. 1983); Arvinger v. Mayor and City Council of

Baltimore, 862 F.2d 75, 77 (4th Cir. 1988); Brawner v. City of

Richardson, 855 F.2d 187,191 (Sth Cir. 1988); Rice v. Ohio Dept.

of Transportation, 887 F.2d 716, 720 (6th Cir. 1989), vacated on

other grounds, 497 U.S. 1001 (1990); Gray v. Lacke, 885 F.2d

399, 410 (7th Cir. 1989), cert. denied, 494 U.S. 1029 (1990);

14

Smith v. Cleburne County Hospital, 870 F.2d 1375, 1381 (8th Cir.

1989), cert. denied, 493 U.S. 847 (1989); McKinley v. City of

Eloy, 705 F.2d 1110,1113-1114 (9th Cir. 1983); Koch v. City of

Hutchinson, 847 F.2d 1436,1440 (10th Cir. 1988), cert. denied,

488 U.S. 909 (1988); Stough v. Gallagher, 967 F.2d 1523,1527

(11th Cir. 1992). The circuits also generally recognize that if the

employee’s speech does not touch on a subject of public concern,

the constitutional inquiry is at an end. Czurlanis, supra, 721 F.2d

at 103; Arvinger, supra, 862 F.2d at 77; Rice, supra, 887 F.2d at

720; Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir. 1986). The

Circuits also recognize the reason for the restriction of

constitutional protection to matters of public concern: a desire

not to let government employees “constitutionalize” every

employment decision. See Arvinger, supra, 862 F.2d at 78; Rice,

supra, 887 F.2d at 720; Yatvin v. Madison Metropolitan School

Dist., 840 F.2d 412, 420 (7th Cir. 1988).

The decision of the Tenth Circuit below is directly in line

with this Court’s analysis as laid out from Pickering to Rankin

and the majority of circuits applying this analysis. Workman,

supra, 32 F.3d at 482-483. The Tenth Circuit properly noted that

in order “To proceed with his First Amendment claim, Captain

Workman must show the testimony he gave at his own grievance

proceeding ‘touches upon a matter of public concern’.” 32 F.3d at

481. After considering the “content, form and context” of the

speech at issue, “as revealed by the whole record,” including

Workman’s motive for speaking, the Tenth Circuit properly

concluded that Workman’s speech “was clearly limited to his

termination grievance and was not calculated to address concerns

of the public.” 32 F.3d at 482-483. Accordingly, the Tenth Circuit

correctly found that Workman’s speech did not rise to the level of

constitutional protection. 32 F.3d at 483. Noting that “Captain

Workman has not cited any cases holding that sworn testimony in

an employee’s own grievance proceeding is necessarily of a

public concern,” the Tenth Circuit rejected Workman’s argument

that the context alone of his speech elevated it to constitutional

15

status. Jd. These conclusions by the Tenth Circuit followed

naturally from an application of this Court’s “public concern”

requirement to Workman’s speech.

In light of the widespread recognition and appreciation of

the “public concern” requirement, this Court need not be overly

alarmed by the Fifth Circuit’s attempt in Johnston to widen the

scope of protected speech. Disregarding the historical roots of the

“public concern” requirement, the Fifth Circuit in Johnston held

that “under certain circumstances .. . the context in which the

employee speaks may be sufficient to elevate the speech to the

level of public concern” and that “when an employee testifies

before an official government adjudicatory or fact finding body

he speaks in a context that is inherently of public concern.”

Johnston, supra, 869 F.2d at 1577-1578, emphasis added. Quite

simply, the flaw in the Fifth Circuit’s reasoning is that it elevates

form (testimonial speech) over substance (content of public

concern). If the employee is not speaking on a matter of public

concern, the context in which he is speaking cannot transform his

speech into a matter of public concern. The context in which the

employee speaks may significantly affect the interest which the

government as employer has in regulating that speech, but it

should not affect the threshold determination of whether the

subject matter upon which the employee speaks relates to an issue

of public concern.

The majority of circuits to address this issue have expressly

or implicitly rejected the Fifth Circuit’s analysis. Arvinger, supra,

862 F.2d at 79; Rice, supra, 887 F.2d at 720-721; Gray, supra, 885

F.2d at 412-413 (involving the Petition Clause); Ferrara, supra,

781 F.2d at 1513-1514; Yatvin, supra, 840 F.2d at 419-420; Curl v.

Reavis, 740 F.2d 1323, 1329, n.5 (4th Cir. 1984); Martinez v. City

of Opa-Locka, 971 F.2d 708, 712 (11th Cir. 1992). As explained

by the Eleventh Circuit Court of Appeals in Ferrara, supra:

The Pickering balance is not triggered unless

16

it is first determined that the employee’s

speech is constitutionally protected. If the

employee’s speech does not relate to matters

of public concern, then the employee has no

First Amendment interest against which the

employer’s interest need be weighed.

* * *

Ferrara deems it relevant that he followed

established procedures in airing his

grievance, thereby avoiding any disruption in

the operation of the school. Again, this is a

factor to be weighed in the Pickering balance

to determine whether the employer has

infringed upon the employee’s

constitutionally protected right to freedom of

speech. (citation omitted) It bears no relation

to the issue of whether the speech is

constitutionally protected.

781 F.2d at 1513-1514.

If Workman’s testimony at a grievance hearing is i

automatically a matter of public concern (no matter how limited

or personal), then all speech in connection with all litigation must

also necessarily be a matter of public concern. This position

receives a sound rebuke from the Seventh Circuit Court of

Appeals in Yatvin, supra:

Not every legal gesture — not every legal

pleading — is protected by the First

Amendment.

* *« *

Necessarily, by filing suit in an area of

17

debated legal principles, Yatvin raised issues

of public significance; but the marketplace of

ideas would not have been constricted, the

vitality of public debate diminished, or the

range of ideas and opinions in our society

curtailed, if fear of retaliation had caused her

to refrain from filing charges of sex

discrimination.

*x* * *

Everyone exaggerates the importance of his

or her own activity, and it is therefore natural

for lawyers to suppose that every legal

pleading, however, humble, comes trailing

clouds of First Amendment glory. But this is

an extreme position and we reject it. The

vitality of the marketplace of ideas does not

depend on the volume of litigation in the

federal courts.

840 F.2d at 419-420; see also, Altman v. Hurst, 734 F.2d 1240,

1244, n.10 (7th Cir. 1984) (“Thus, a private office dispute cannot

be constitutionalized merely by filing a legal action”), cert.

denied, 469 U.S. 982 (1984). Although petitioner posits that the

First Amendment protects the right to testify truthfully at trial,

petitioner perhaps has forgotten that when a witness is placed

under oath he has a duty — not a privilege — to speak the truth.

Ullman v. United States, 350 U.S. 422, 439, n.15 (1956); Reeves

v. Claiborne County Bd. of Educ., 828 F.2d 1096, 1100 (Sth Cir.

1987).

Petitioner’s request that this Court sanction all testimonial

speech as inherently worthy of First Amendment protection is

similar to efforts of other plaintiffs to seek special protection in

the Petition Clause of the First Amendment. In an effort to evade

this Court’s public concern requirement, some plaintiffs have

18

argued that formal employee grievances are inherently a matter

of public concern and therefore worthy of First Amendment

protection under that amendment’s guaranty of the right to

petition for redress of grievances, because the speech is delivered

in the form of a formal “grievance.” The circuits which have

addressed this issue — including the Fifth Circuit — have

uniformly rejected this attempt to elevate form (grievance) over

substance (the public concern requirement). Renfroe v.

Kirkpatrick, 722 F.2d 714-715 (11th Cir. 1984), cert. denied, 469

U.S. 823 (1984); Belk v. Town of Minocqua, 858 F.2d 1258, 1261-

1262 (7th Cir. 1988); Day v. South Park Independent School

Dist., 768 F.2d 696, 701 (Sth Cir. 1985), cert. denied, 474 U.S.

1101(1986); Gray, supra, 885 F.2d at 412-413; see also, Schalk v.

Gallemore, 718 F. Supp. 862, 867-868 (D. Kan. 1989); Santella v.

Grishaber, 654 F. Supp. 428, 435-436 (N.D. Ill. 1987).

Petitioner attempts to legitimize Johnston by citing

decisions from various other courts purportedly following the

Johnston analysis. In most of those cases, however, the speech in

fact addressed matters of public concern. See Ziccarelli v. Leake,

767 F. Supp. 1450, 1454 (N.D. Ill. 1991) (testimony at death

penalty hearing; “A contentious political and social debate has

long surrounded the ultimate penalty”); Green v. City of

Montgomery, 792 F. Supp. 1238, 1253 (M.D. Ala. 1992) (court

declines to address the Johnston issue because “all of the officers

whom the plaintiffs allege were retaliated against by Folmar or

Wilson for testifying or participating in litigation against these

defendants were clearly addressing issues of public concern”);

Freeman v. McKellar, 795 F. Supp. 733, 736 (E.D. Pa. 1992)

(testimony concerning misuse of funds for personal ends by city

councilmen); Czurlanis, supra, 721 F.2d at 104 (“Information

concerning the functioning of a segment of the county

government is of considerable public importance, . . .”). Reeves,

a decision by the Fifth Circuit, also involved speech on a matter of

public concern, see 828 F.2d at 1100, as petitioner admits. (See

Petition for A Writ of Certiorari at 12, hereafter, “Petition”).

19

Interestingly, the district court in the Johnston case held that

Mr. Johnston’s speech was protected both by reason of its context

and its content. See Johnston, supra, 869 F.2d at 1576. The

testimony involved in Johnston was given at an equal

employment opportunity hearing, 869 F.2d at 1568, 1578, and it

has been held that speech regarding discrimination in

employment is inherently a matter of public concern. Patrick v.

Miller, 953 F.2d 1240, 1247 (10th Cir. 1992). It is also worth

noting that the Fifth Circuit in Johnston attempts to rationalize its

holding by reliance on this Court’s decision in Rankin,

commenting that the speech at issue in Rankin did not involve a

matter of public concern. Johnston, supra, 869 F.2d at 1577.

Rankin, however, involved speech which expressed a desire to

assassinate the President of the United States, speech which this

Court noted clearly related to a matter of obvious public concern.

Rankin, supra, 483 U.S. at 386-388.

Petitioner decries the public employee who is discharged for

testifying truthfully under oath at an employment grievance

hearing, even though his speech was of purely personal content.

Noting the injustice of suffering acts of discrimination in

retaliation for truthful testimony, petitioner argues for automatic

First Amendment protection — no matter how trivial or of limited

interest is the content of the testimony. Respondents agree that

acts of retaliation of any kind for offering truthful testimony

should not be tolerated. The remedy, however, lies in the

rejuvenated use of state courts, not the incessant use of federal

courts.

The State of Colorado provides many legal remedies for

retaliatory discharge and other acts of retaliatory employment

discrimination. Martin Marietta Corp. v. Lorenz, 823 P.2d 100,

104-110 (Colo. 1992); Lathrop v. Entenmann’s Inc., 770 P.2d

1367, 1372-1373 (Colo. App. 1989); Colorado Revised Statutes

§§ 24-50.5-101, ef. seq. (state “whistle-blower” statute).

Petitioner is free to invoke these remedies, regardless of the

20

constitutional status of his speech. As the Seventh Circuit Court

of Appeals explained in Altman:

Despite our sympathy for plaintiff and our

incredulity over some of the disciplinary

measures imposed by defendants, we

recognize that permitting him to maintain this

action would open the federal flood gates to

all manner of petty personnel disputes. Such

disputes are best left to internal procedures

established by errployers and employees or,

as here, where nv such protection exists or

where such procedures are inadequate,

through state court adjudication.

734 F.2d at 1244; see also, Curl, supra, 740 F.2d at 1329, n.5 (“An

employee’s protection against being discharged in retaliation for

filing E.E.O.C. charges, however, is not grounded in the

Constitution but in Title VII... .”).

Absent speech on a subject of public concern, a federal court

is simply “not the appropriate forum in which to review the

wisdom of a personnel decision taken by a public agency

allegedly in reaction to the employee’s behavior.” Connick,

supra, 461 U.S. at 147. To set aside the limitation of speech on a

matter of public concern would make of the First Amendment a

“font of tort law,” see Paul v. Davis, 424 U.S. 693, 701 (1976),

which would flood the federal courts “with routine employee

grievances mischaracterized as First Amendment cases.”

Connick, supra, 461 U.S. at 165. Accordingly, this Court should

decline petitioner’s invitation to issue the writ of certiorari to the

Tenth Circuit to determine whether testimonial speech on matters

of purely personal interest at an employee grievance hearing

constitutes speech on a matter of public concern.

en he ee a ™

Kae cape AhAS RRR CRE SRC e REM Nsicgs

21

Ill. RESPONDENTS’ CONDUCT IN ALLEGED

RETALIATION FOR WORKMAN’S SPEECH AT HIS 1990

GRIEVANCE HEARING IS TOO INSUBSTANTIAL TO

JUSTIFY CONSTITUTIONAL SCRUTINY IN FEDERAL

COURT.

Petitioner alleges that respondents retaliated against him for

testifying at his own grievance hearing in March of 1990. The

alleged acts of retaliation for this speech consist of placing a

performance evaluation and letter of reprimand in petitioner’s

personnel file and subjecting petitioner to a “re-entry plan.”

(Aplt. App. at Tab 10, pp. 23-24, 4] 66.a-66.d). Following his

1990 grievance hearing, petitioner was reinstated to his former

position in the Weld County Sheriff’s Office and was awarded all

back pay (Aplt. App. at Tab 10, p. 2, ¥ 2). He was not terminated,

demoted or denied promotion. The alleged acts of retaliation for

his 1990 grievance hearing testimony are too insubstantial to

merit constitutional scrutiny.

It has long been settled that a state may not condition public

employment on a basis that infringes the employee’s

constitutionally protected interest in freedom of speech. Connick,

supra, 461 U.S. at 142. Anemployee’s interest in speaking freely

is constitutionally protected if the subject matter of his speech

addresses an issue of public concern. Connick, supra, 461 U.S. at

143-146. The Constitution protects speech on issues of public

concern because such speech occupies the “highest rung [in] the

hierarchy of First Amendment values” and is essential to our

system of self-government. NAACP v. Claiborne Hardware Co.,

458 U.S. 886, 913 (1982); Garrison v. Louisiana, 379 U.S. 64,

74-75 (1964); see also, Connick, supra, 461 U.S. at 145. In order

to protect this essential predicate for self-government, the First

Amendment forbids government employer decisions which

could “chill” an employee’s interest in speaking out on matters of

public concern. Connick, supra, 461 U.S. at 145.

22

Not surprisingly, Pickering and its progeny address

government decisions involving employee dismissals or

employment contract “non-renewals” because “the threat of

dismissal from public employment is ... a potent means of

inhibiting speech.” Pickering, supra, 391 U.S. at 574; Rankin,

supra, 483 U.S. at 384. See Pickering, supra, 391 U.S. at 564,574

(teacher dismissed); Mt. Health School Dist. Bd. of Educ., supra,

429 U.S. at 276, 283 (teaching contract not renewed); Givhan,

supra, 439 U.S. at 411-412 (teaching contract not renewed);

Connick, supra, 461 U.S. at 140, 141 (district attorney

discharged); Rankin, supra, 483 U.S. at 379, 382 (clerical

employee discharged); Waters, supra, 114 S. Ct. at 1883 (nurse

discharged). This Court has also noted that constitutional

principles forbid the government from withholding any

substantial benefit on grounds which inhibit the exercise of

constitutionally protected rights. Perry v. Sindermann, 408 U.S.

at 593, 597 (1972).

Workman, however, was neither terminated, demoted,

denied promotion nor denied any other governmental benefit in

alleged retaliation for his speech at his 1990 grievance hearing.

Rather, following his successful use of the Weld County

grievance procedures, he was restored to his former position as

captain in the Weld County Sheriff’s Office and given an award of

all back pay (Aplt. App. at Tab 10, p. 2, 2). The alleged acts of

retaliation for his 1990 testimony upon which Workman focuses

consist only of the placement of the letter of reprimand and

performance appraisal in his personnel file and the development

of a “re-entry plan” for him. As noted, the Tenth Circuit properly

found that nothing in either the letter of reprimand or the

performance appraisal was false. Workman, supra, 32 F.3d at 481.

The placing of documents containing true statements in an

employee’s personnel file and the development of a “re-entry

plan” do not rise to the level of conduct sufficient to justify

constitutional scrutiny in federal court.

23

Workman alleges that the letter of reprimand and

performance appraisal contain “demonstrably false allegations”

and “false and scandalous material.” (Pet. at 6, 7). He complains

that the letter of reprimand, performance appraisal and re-entry

plan memorialized the allegations precipitating his termination,

which allegations he asserts were specifically found to be false.

(Pet. at 6, 7). As explained in the Statement of Facts, however, the

factual allegations underlying the charge of sexual harassment

were never found to be false. Rather, the hearing officer found

that although the allegations were grounded in fact, they did not

“rise to the level of sexual harassment by any definition available

to the Hearing Officer” and were consistent with what he

perceived to be the overall atmosphere in the sheriff’s office

(Aplt. App. at Tab 1, p. 50). For example, the hearing officer found

that Workman’s conduct was “inappropriate” and that he did use

“sexist, vulgar, inconsiderate and inappropriate [language] in the

workplace.” (Jd. at 50). Even Workman has never denied that the

specific instances of improper conduct did in fact occur. To the

contrary, he implicitly concedes that they did occur. (See id. at 10,

{ 44).

Contrary to Workman’s allegations, the letter of reprimand

does not state that Workman is guilty of sexual harassment. (See

Pet. at 6, 7). Rather, the reprimand reiterates the hearing officer’s

specific finding that some of Workman’s comments were “vulgar,

sexist, inconsiderate and inappropriate in the work place” and

that Workman employed terms such as “bimbo” and “bitch.”

(Aplt. App. at Tab 1, p. 67). A comparison of the letter of

reprimand with the hearing officer’s findings demonstrates that

the matters contained in both are entirely consistent: the

reprimand reiterates the findings of the hearing officer, including

the determination that Workman’s actions did not constitute

sexual harassment (Compare Aplt. App. at Tab 1, pp. 48-54 with

pp. 67-70). The “performance appraisal” contains less that can be

characterized as true or false and more that is a matter of opinion

regarding Workman’s professional qualifications and general

24

conduct (/d. at 72-76). Contrary to Workman’s arguments, the

performance appraisal does not accuse Workman of sexual

harassment (See, id. at 72-76). The performance appraisal merely

reiterates the hearing officer’s findings of “inappropriate”

behavior and notes that Workman is responsible “to improve the

climate.” (/d. at 75).

The placing of documents containing true statements in an

employee’s personnel file and the development of a “re-entry

plan” do not constitute “potent means of inhibiting speech.”

Pickering, supra, 391 U.S. at 574. These actions stand at the

opposite end of the spectrum of personnel decisions from the

dismissals and non-renewals involved in Pickering and its

progeny. To hold that these alleged acts of retaliation merit

constitutional scrutiny would “trivialize” the First Amendment in

a “Pyrrhic victory.” Connick, supra, 461 U.S. at 154; Parratt v.

Taylor, 451 U.S. 527, 545 (1981) (Stewart, J., concurring) (“To

hold that this kind of loss is a deprivation of property within the

meaning of the Fourteenth Amendment seems not only to

trivialize, but grossly to distort the meaning and intent of the

Constitution”). To subject this type of conduct to constitutional

scrutiny would be to extend an invitation for every “personnel

decision taken by a public agency allegedly in reaction to the

employee’s behavior” to be reviewed in federal court. Connick,

supra, 461 U.S. at 147. That would obviously run contrary to the

“practical realities involved in the administration of a

government office.” Connick, supra, 461 U.S. at 154.

Accordingly, Workman’s allegations of retaliation for

testifying at his 1990 grievance hearing fail to show a

constitutional violation, even if it is assumed that he spoke on

matters of public concern. See Siegert v. Gilley, 500 U.S. 226, 114

L. Ed. 2d 277, 111 S. Ct. 1789, 1794 (1991) (“Siegert not only

failed to allege the violation of a constitutional right that was

clearly established at the time of Gilley’s actions, but he failed to

establish the violation of any constitutional right at all”).

25

Therefore, for this additional reason, the Court should decline

Workman’s request to issue a writ of certiorari to the Tenth

Circuit to review that court’s holding on Workman’s First

Amendment claim concerning various acts allegedly taken in

retaliation for testimony at his 1990 grievance hearing.

IV. THE TENTH CIRCUIT PROPERLY FOUND

WORKMAN’S FREE SPEECH CLAIM, TO THE EXTENT

BASED UPON AN ALLEGED INCIDENT IN 1987, TO BE

TIME-BARRED.

Although Workman’s complaint sets out one claim for the

alleged violation of his right to freedom of speech, this claim (as

Workman explains in his petition) is based upon “two discreet,

but very similar, violations” of his free speech rights (Aplt. App.

at Tab 10, p. 33, JJ 85-90; Pet. at 6). The first violation consists of

an alleged act of retaliation for testimony Workman gave at aco-

worker’s grievance hearing in July of 1987, which retaliation

allegedly injured Workman in July of 1987 and again in

November of 1989. This will be referred to hereafter as the “first

free speech claim.” The second violation consists of alleged acts

of retaliation for testimony Workman gave at his own grievance

hearing in March of 1990. The Tenth Circuit properly found the

first free speech claim to be time-barred. Workman, supra, 32

F.3d at 482.

When determining the appropriate statute of limitations to

apply to a claim unde: 42 U.S.C. § 1983, such claims are best

characterized as actions for personal injury. Wilson v. Garcia, 471

U.S. 261, 275-276 (1985). Federal courts therefore apply the

State statute of limitations for personal injury actions when

determining the timeliness of § 1983 claims. Jd. In Colorado, that

statute is Colo. Rev. Stats. § 13-80-102(1)(a) which provides a

two year period of limitations for all tort actions. Hunt v. Bennett,

17 F.3d 1263, 1265-1266 (10th Cir. 1994), cert. denied, _ U.S.

—» 115 S. Ct. 107 (1994). Workman does not dispute that the

26

Tenth Circuit applied the correct statute of limitations to his first

free speech claim (Pet. at 8).

Although the federal courts must borrow the most

appropriate state statute of limitations, the question of when a

plaintiff’s cause of action under § 1983 accrues for limitation

purposes is governed by federal law. Sandutch v. Muroski, 684

F.2d 252, 254 (3rd Cir. 1982). A cause of action under § 1983

accrues when the plaintiff knows or has reason to know of the

injury which forms the basis of his action. Singleton v. City of

New York, 632 F.2d 185, 191 (2nd Cir. 1980), cert. denied, 450

U.S. 920 (1981). Workman implicitly concedes this principle

(Pet. at 20).

Here, Workman knew of the injury (an allegedly negative

performance review) which forms the basis of his first free

speech claim when the review occurred in July of 1987. Because

Workman did not sue for relief from that injury until he filed the

complaint herein in November of 1990, the Tenth Circuit

properly found this aspect of his free speech claim to be time-

barred. Workman, supra, 32 F.3d at 482. Workman contends,

however, that the Tenth Circuit misread his complaint. In

particular, he contends that the first free speech claim set out in

his complaint seeks damages for conduct taken in November of

1989 (his termination) which was based in substantial part upon

the July 1987 negative performance appraisal. However, because

Workman’s termination in November of 1989 was allegedly

based in substantial part upon the negative performance review of

July 1987, and not upon Workman’s speech at the July 1987

grievance hearing, Workman’s complaint demonstrates that his

termination in November of 1989 was merely a further

manifestation of the injury he admits suffering in July of 1987.

According to Workman’s complaint, in July of 1987 he

testified adversely to the interests of Jordan and Dill at a co-

employee’s grievance hearing (Aplt. App. at Tab 10, p. 4, 17).

27

Within 24 hours of that hearing, Jordan and Dill imposed a

“disciplinary suspension” upon Workman and ordered him to

attend a previously unscheduled performance appraisal, at which

Workman was given the first unsatisfactory performance review

in his “lengthy employment history.” (Jd. at 4-5, Ti 18-20; p. 33,

{ 87) (see also, Pet. at 4, 22). More than two years later, in

November of 1990, Jordan and Dill terminated Workman “in

substantial part” due to his negative performance review in July

of 1987 (Aplt. App. at Tab 10, p. 15, | 53.h.6; p. 33, 88). As

Workman explains in his complaint, the negative performance

review of July 1987 “was adopted and served in part as the basis

for the defendant’s justification of plaintiff’s termination in

November of 1989.” (Apit. App. at Tab 10, p. 33, { 88). Or, as he

explains in his petition, “Respondents adopted the earlier

retaliatory act and used it as a basis for terminating Workman’s

employment.” (Pet. at 20, emphasis added). In neither his

complaint nor his petition does he allege that his termination in

November of 1989 was based in part upon his speech at the July

1987 grievance hearing.

Accepting the allegations of his complaint, Workman knew

in July of 1987 that he had been retaliated against for speaking at

his co-employee’s grievance when he was subjected to a

previously unscheduled performance review, placed on

disciplinary suspension and given the first unsatisfactory

performance review in his lengthy employment history (Apt.

App. at Tab 10, pp. 4-5, 4] 17-20; p. 33, 86-87). Workman

knew that he had been injured at that time, yet he did not file suit

for over two years. The contents of his negative performance

review therefore became final. As Workman admits, his

subsequent termination in November of 1990 was based in part

upon his then-final performance review from July of 1987, not

upon his speech at the July 1987 grievance hearing (/d. at 15,

{ 53.h.6; p. 33, ¥ 88). Thus, to the extent his termination in

November of 1990 was based in part upon the July 1987

performance appraisal, the termination merely constituted a

28

further development of the previous injury of which Workman

was already aware in July of 1987.

It is well established in Colorado (as elsewhere) that a cause

of action accrues when the plaintiff is aware he has suffered some

injury upon which a lawsuit could be brought, and that the

plaintiff may not await the full development of his injuries before

filing suit. Doyle v. Linn, 37 Colo. App. 214, 547 P.2d 257, 259

(1975); Housing Authority v. LeoA. Daly Co.,35 Colo. App. 244,

533 P.2d 937 (1975); Dalton v. Dow Chemical Co., 280 Minn.

147, 158 N.W. 2d 580, 585 (1968); Olson v. Bell Telephone

Laboratories, Inc., 388 Mass. 171, 445 N.E. 2d 609, 610 (1983).

Similarly, the “crucial time for accrual purposes” under

§ 1983 “is when the plaintiff becomes aware that he is suffering

from a wrong for which damages may be recovered in a civil

action.” Singleton, supra, 632 F.2d at 192. Workman was aware

that he was suffering from an alleged wrong (unjustified

disciplinary suspension and negative performance appraisal) for

which damages may be recovered in a civil action under § 1983

when he received the allegedly unjustified disciplinary

suspension and negative performance appraisal in July of 1987.

Having not filed suit within two years of that known injury, his

claim for an alleged violation of his right of free speech arising

from that incident is time-barred, as the Tenth Circuit properly

found. Sandutch, supra, 684 F.2d at 254 (“ ... he has alleged

continuing ill-effects from preconviction acts”). Conversely, if

Workman asserts that the disciplinary suspension and negative

performance review alone did not constitute an injury upon

which suit could have been brought, then he must also admit that

the letter of reprimand and performance appraisal placed in his

personnel file, and the development of the “re-entry plan” for

him, following his own grievance in March of 1990, do not

constitute sufficient injury to give rise to a First Amendment

claim based upon the alleged incident in 1990.

29

Accordingly, this Court should also decline Workman’s

invitation to issue the writ of certiorari to the Tenth Circuit to

review its holding with respect to the timeliness of Workman’s

first free speech claim.

CONCLUSION

Respondents respectfully request that this Court refuse to

issue the writ of certiorari to the Tenth Circuit.

Respectfully submitted,

ALAN EPSTEIN

Counsel of Record

CHRISTINA M. HABAS CATHY H. GREER

WATSON, NATHAN MALCOLM S. MEAD

& BREMER, P.C. HALL & EVANS, L.L.C.

Attorneys for Respondent Attorneys for Respondent

Sheriff Ed Jordan Undersheriff Rick Dill

3900 East Mexico Ave., #1000 1200 17th St., Suite 1700

Denver, CO 80210 Denver, CO 80202-5800

(303) 691-3737 (303) 628-3300