# Opposition Brief — Workman v. Jordan

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1037%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1015

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1037%3A2. Public record. Not legal advice.