Appendix — Greer v. Amesqua
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APPENDIX
TABLE OF CONTENTS
Opinion of the United States Court of Appeals for the
oe stitey eanien care, ., HR Oe Ia ]
Decision and Order of the United States District Court
for the Western District of Wisconsin Granting
Respondents’ Summary Judgment Motion......... ae
Decision and Order of the United States District Court
for the Western District of Wisconsin Denying
Petitioner’s Motion for Preliminary Injunction ..... 60
Order of the United States Court of Appeals for the
Seventh Circuit Denying Petition for Panel Rehearing
and Rehearing En Banc........................ 92
Decision and Order of the Madison Fire and Police
Commission Terminating Petitioner.............. 94
Wisconsin Statutes § 62.13(1) - CN is eee ets 122
rabies dncinc, .. Leer CTO re Penn eae
Internal Department Memorandum.............. 153
Conway letter to Amesqua, 11/12/96 ............ 154
Amesqua letter to Conway, 11/14/96 ............ 156
» eT ee 157
Spohn Investigation Memorandum.............. 163
. Conway letter to Amesqua, 1/15/97 ............. 165
- Amesqua letter to Conway, 1/28/97 ............. 166
ll
. Amesqua Decision Re Holtz-Cato Incident ...... . 167
» Wiliams OTE GT PIOO oo is eck ec cbereuas 170
. Amesqua letter to Conway, 4/10/97 ............. 178
]8. News Release, 4/10/97 .. ww ccc ccc ecctnccen’s 179
. Saxe Investigation Memorandum, 6/5/97 ......... 182
PUOMENIME TURUMOCIIE TOILET ois aioe in casein nave 184
5 BE TU 5 Cees Sin Wee A eects 187
. Seeger Deposition ....... a Oe TOE es Ree 189
( ON ORE Ki a cn ca en nein ees 191
. 34° £ 3... Se eeraee ee rer rrr 193
, aay SI, SIRI IS sia vie hs CRS Ee 200
. Prior Decision and Order of the Madison Fire and
Police Commission Suspending Petitioner........ 201
. Madison Fire Department Employee Discipline
SO , EE ees eee True ee 203
. Capital Times Article, 8/28/96 ................ 204
< See Fe ie eS aaa eae 207
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IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 99-2767.
RONNIE B. GREER,
Plaintiff-Appellant,
v.
DEBRA H. AMESQUA, ALAN SEEGER, MARGARET
MACMURRAY, BYRON BISHOP, LYNN HOBBIE, MARIO
MENDOZA, THE CITY OF MADISON FIRE DEPARTMENT, THE
CITY OF MADISON, THE CITY OF MADISON POLICE & FIRE
COMMISSION, AND WISCONSIN MUNICIPAL MUTUAL
INSURANCE COMPANY,
Defendants-Respondents.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 98 C 560- Barbara B. Crabb, Judge.
ARGUED JANUARY 21, 2000-DECIDED MAY 9, 2000
Before BAUER, RIPPLE and KANNE, Circuit Judges.
KANNE, Circuit Judge.
Plaintiff Ronnie Greer is never shy about speaking his mind,
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——. ee
and he doesn't think highly of his former boss Debra Amesqua.
While he was a firefighter for the City of Madison, Wisconsin,
——-Greer publicly condemned Amesqua's appointment as fire
department chief and attended her swearing-in ceremony
Carrying a protest sign. Greer already had a long disciplinary
history with the fire department, and when he distributed a |
"news release" to local newspapers accusing Amesqua of :
favoritism to homosexuals and of executing a radical lesbian
agenda as fire chief, the department terminated his
employment. Greer sued Amesqua, the fire department and the
City of Madison among others for violating his due process,
equal protection and First Amendment rights in discharging
him, but the district court granted the defendants' motion for
summary judgment. Greer appeals, and we affirm.
I. HISTORY
Ronnie Greer has compiled an eventful disciplinary history
with the City of Madison Fire Department ("Department") since
his hiring in 1981. During the 1980s, Greer was reprimanded
for chronic tardiness and disciplined at least twice for
insubordination after shouting matches with superior officers. .
Greer also quarreled with Chief Earle Roberts, Ameésqua's
predecessor, over two separate but related issues. Greer refused |
to submit to Department shaving inspections and filed a
complaint with the Wisconsin Equal Rights Division ("ERD").
Around the same time, Greer told newspaper reporters that
Chief Roberts and the mayor were deceiving the public by
announcing that the hazardous materials protection team was
ready for action. Greer told reporters that, contrary to the chief .
and mayor's claim, the team was unequipped, untrained and
unprepared for emergency calls. The Department removed
Greer from the hazardous materials team, and Greer sued the
Department for employment retaliation in violation of his First
Amendment rights. The Department and Greer agreed to settle
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both the ERD complaint and the federal lawsuit for $18,500.
In 1996, Greer received a letter of reprimand and was
docked pay for being absent without leave or permission. The
Department also began disciplinary proceedings against Greer
for religious speech in the workplace but later dropped the
investigation. Then, Greer had an argument with Assistant
Chief Fred Kinney over Greer's misuse of sick pay and was
suspended for three days. Greer appealed this suspension to the
Board of Police and Fire Commissioners of the City of
Madison ("PFC"), but the PFC affirmed the suspension.
Finally, in late 1996, Greer disseminated a pamphlet entitled
"Homosexuality: The Truth" to fellow firefighters in his station.
The pamphlets referred to homosexuality as a "filthy scourge"
and blamed gays for disease and child molestation. On
November 27, 1996, Amesqua suspended Greer for three
months without pay and wrote Greer that "your disciplinary
record is extremely poor. The sanction I am imposing is a last-
ditch attempt to get you to alter your ways. You should fully
appreciate that any further breaches of our standards could well
result in your termination." On June 25, 1997, after Greer
appealed, the PFC noted Greer's "uniquely abysmal and
disheartening" disciplinary record, found that Greer's
pamphleteering constituted workplace harassment and upheld
Greer's suspension. The PFC commented that Greer’s record
reflected his "persistent incapacity to conform himself
consistently to the appropriate requirements of ordinary civil
conduct" and warned that it was "not overly confident that this
discipline will accomplish a change in [Greer’s] pattern of
conduct. However, [the PFC is] confident that [it] will not
suspend him again."
Greer bitterly objected to Amesqua's appointment. Greer
believed that Amesqua was unqualified for the job and that the
Department had hired her over more qualified candidates.
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Amesqua is a Native American woman who Greer believed to
be homosexual, and Greer credited her appointment to
affirmative action rather than to her substantive qualifications.
Greer opposed affirmative action in the Department, and on
several occasions, Greer complained personally to the mayor of
Madison about hiring discrimination and Amesqua. At the
press conference announcing Amesqua's hiring, Greer told
reporters that Amesqua was unqualified and the Department
might have engaged in "something that was illegal" in hiring
her and "purposely overlook[ing] other qualified candidates."
Greer also attended Amesqua's swearing-in ceremony as the
lone vocal dissenter, bearing a large placard declaring "Injustice -
is just wrong. Not affirmative action" on its face and "When
does wrong become right?" on its back. Greer admits that he
has been publicly critical of Amesqua more than fifty times
since her appointment.
Greer also believed that Amesqua lacked character and
leadership ability because she is a lesbian. Indeed, Greer could
._ be fairly characterized as an anti-homosexuality crusader. As
pastor for the thirty-member Trinity Evangelical Church, Greer
_ inveighed against the sins and evils of homosexuality. One
newspaper article profiling Greer described him as a "Madison
firefighter whose personal mission is to wipe homosexuality
from our midst" and explained that Greer has been "called a
hate-monger and a malcontent unable to obey authority" by
some and "a person of integrity who put his own job on the line
to fight for civil rights" by others. Greer deemed homosexuality
to be "a perversion, and usually sexual perversion is related to
someone's character." He compared it to "pedophilia or some
guy sleep[ing] around with different women when he's married,
it's a character issue." He questioned whether homosexuals
should be permitted to hold positions of authority because he
considered homosexuality to be leew genoaitn to the individual
and as well as society."
Sa
All this came to a head in late 1996, less than a year after
Amesqua's appointment. On November 5, 1996, a local
television station aired video of Division Chief Marcia Holtz
making physical contact and screaming at recruit Ron Cato
during a training session. Six days later, the firefighters’ union
formally requested that Holtz be suspended and reprimanded
for the incident with Cato ("Holtz-Cato incident"), and
Amesqua assigned Assistant Chief Bill Spohn to investigate the
charge. On April 9, 1997, amid local media scrutiny, Amesqua
announced that Spohn's investigation found Holtz's conduct
was "not unreasonable under the totality of the circumstances,"
but extended Holtz's probation for six months and ordered her
to attend a leadership class.
Since Holtz is a lesbian, Greer predictably was appalled by
Amesqua's decision and suspected favoritism. On April 28,
1997, Greer faxed the following self- styled "news release" to
a number of local media outlets, including both major Madison
newspapers:
News Release
Homosexual Chief rewards Homosexual
Chief for Assault?
Fire Chief Debra Amesqua has issued a decision on the
investigation of an incident involving Training Chief
Marcia Holtz and a fired firefighter trainee. In the
incident, recorded by WMTV News-15 in October 1996,
Chief Holtz shoved and screamed at the trainee during a
training exercise. An investigation was ordered and a
decision based on the investigation was issued on April
9, 1997. It is Chief Amesqua's conclusion that the
"questionable measures" (shoving & screaming) used by
chief Holtz were not "unreasonable", and that she simply
"needs further guidance and training". That training is to
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be accomplished by "attending an advance leadership
class", a training program which is coveted by other chief
officers to the extent that there is a "waiting list" to get
in! She has also called for a 6 month extension of chief
Holtz's probationary period, something she (Chief Holtz)
herself appears to have suggested.
Now this would be laughable it were not such a serious
matter. A senior officer in essence, physically and
verbally assaults an employee and Chief Amesqua finds
that "not unreasonable" and that her screaming was
"professional in content and germane". In over 17 years
of firefighting with both experienced and non-
experienced firefighters, I don't believe I've ever seen a
situation where it was necessary to physically assault
anyone to get their attention or to instruct them. Granted
it is often necessary to make physical contact in a fire
situation to initiate communication with another
firefighter, but never to the extent as we have seen in this
incident. So what's so special or different about this case?
I said in October that this matter would be "down
played", "swept over" and nothing significant would be
done about it. A lot of my fellow firefighters doubted my
"prediction". Well, time has “told the story". One does
not need to be a prophet, just someone willing to see
things as they are.
Consider the following. One would think that if you
wanted to achieve clear facts in investigating a matter of
this type it would be only proper to have that
investigation done by an independent, disinterested party.
However, that is not the case here. The investigation was
done by another Division Chief who is a subordinate to
Chief Amesqua and a staff member with Division Chief
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Holtz. Is it possible that the investigating officer could
have been unduly influenced? Or could the conclusions
of the investigation be simply disregarded without
opposition by that subordinate?
The relationship between Chief Amesqua and Chief
Holtz goes back a ways, namely through their affiliation
with an organization called "Women In Fire", an
organization seen by most firefighters in this area as a
predominantly homosexual organization. Is it possible
that some favoritism has been shown here to a fellow
member or possible friend? Both are homosexual
women, who have been seen in the past (and still now
among many), with clear agendas as it concerns women
in the fire service. Could it be that their radical agendas
has come to play to the extent that even violence can be
excused and "glossed over", or in this case, rewarded?
Sounds a lot like the much assailed "good- ol-boy"
system revived, repainted and given another name.
Now, I'm confused and maybe someone could make
sense of this for me; It's not okay to communicate .
verbally my views on a department chief officer's
handling an issue but it's okay to use physical force to
communicate with a trainee? Maybe I'm missing
something! The department/city is willing to spend
thousands of dollars on a case of an alleged comment
without proof, on alleged harassment without a
complaint or proof, and on an alleged rule violation
without action or proof, but "winks" at and rewards
physical assault?
Another firefighter is given a disciplinary letter and has
the.same placed in his employment file because he made
a remark regarding homosexuals. He was "off-duty" and
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happened to stop by the fire station. A letter of
discipline?
A fire officer is facing a 12 hour suspension for angrily
making comments to a uniform delivery driver whom he
is familiar with. A 12 hour suspension?
But yet, it's not unreasonable for a chief officer in anger
to physically handle an employee? Imagine if it were a
white male chief officer shoving and screaming at a
female recruit. Heads would have rolled! So much for
fair treatment and equity! Go figure.
Oh, by the way, that male trainee who was the victim, he
was mysteriously "let-go" literally days before graduating
from the fire academy. Makes you go, "Hmm."
The Capital Times, a Madison newspaper, received Greer's
facsimile and printed the following article on the front page of
the Local/State section in its May 1, 1997 edition:
! Greer says fire chief plays gay games
Madison firefighter Ron Greer has lobbed another
Molotov cocktail at his boss, this time accusing Fire
Chief Debra Amesqua of meting out lax discipline to a
female assistant fire chief.
He also insinuates that it's a lesbian conspiracy.
In a press release titled "Homosexual chief rewards
homosexual chief for assault?" Greer implies that
Amesqua showed favoritism in an investigation of
Assistant Chief Marcia Holtz.
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Holtz was accused of using excessive force on a
recruit during a live fire training exercise last October.
Neither Amesqua nor Holtz has said anything publicly
about their sexual orientations, whether they're gay or
Straight.
- * * *
Greer, a pastor of a conservative Christian church, has
become an anti-gay crusader. He has attacked the chief
publicly ever since she came to Madison in January
1996.
Saying Amesqua was unqualified, Greer carried a
protest sign when she was sworn in.
Greer himself is facing discipline for insubordination
and for handing out anti-gay literature at work. The
Madison Police and Fire Commission held roughly 20
hours of hearings on Greer's case and is expected to rule
in a few months.
** *
According to his press release, he concluded that the
two women are homosexual apparently because they both
belong to a group "Women in Fire," an erroneous
reference to the Madison-based group Women in the Fire
Service.
The organization "is seen by most firefighters in this
area as a predominantly homosexual organization,"
Greer's press release said.
"Could it be that their radical agenda has come to play
to the extent that even violence can be excused and
‘glossed over,' or in this case, rewarded?" the release said.
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Amesqua directed Assistant Chief Carl Saxe to investigate
Greer's news release. Greer confessed to Saxe that he had
written and faxed the news release to the local media. Greer
admitted that his knowledge about the Holtz- Cato incident
derived completely from television reports and workplace
gossip, but insisted that his news release "was only asking
questions," not making accusatory insinuations. On June 5,
1997, Saxe filed his report with Amesqua and recommended
that Greer be discharged based on his insubordination,
continuing campaign to derogate the Department, disregard for
Department rules and "unequivocal assertion of his continued
right to do what he did." Saxe felt that Greer's news release
charged that Amesqua was "not fit to be Chief because [she]
violate[s] the law in [her] official capacity. If ever [Saxe had]
seen conduct that brings the Department in disrepute, this is it."
Saxe found that Greer's news release had violated Department
Rules 18, 39, 51, 65 and Administrative Procedure
Memorandum 3-5 ("APM 3-5"), prohibiting insubordination,
harassment and bringing the Department into disrepute.
' Rule 18: Members shall be efficient and capable in the service
and must not neglect their duty. They shall hold themselves in
readiness, at all times, to answer the calls and obey the orders of
their superior officers. They shall treat their superiors with respect....
They shall conform to the rules and regulations of the Department,
observe the laws and ordinances, and render their services to the city
with zeal, courage and discretion and fidelity.
Rule 39: Members must conform to and promptly and cheerfully
obey all laws, ordinances, rules, regulations, and orders, whether
general, special or verbal, when emanating from due authority.
Rule 51: Officers and members shall at all times conduct
themselves so as not to bring the Department in disrepute.
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However, Saxe found that Greer had not violated Department
Rule 47, requiring employees to tell the truth, or Department
Rule 50, barring false reporting and gossip, because Greer
sincerely believed that the substance of his news release was
true.
In a letter dated June 10, 1997, Amesqua adopted Saxe's
findings and notified Greer that she would recommend to the
PFC that, especially in light of his disciplinary history, he be
terminated because his news release violated the
aforementioned Department rules. She explained that Greer's
news release was "equivalent to spitting in the Department's
face" and his "continuing presence on the worksite can no
longer be tolerated considering the open, notorious and
personal way in which [he] attempt[s] to address [his] personal
agenda." Amesqua filed formal charges with the PFC for
disciplinary proceedings and recommended Greer’s termination.
During an eight-day hearing, beginning on September 29,
1997, and ending March 19, 1998, Greer was represented by
counsel, submitted evidence in his defense and had the
opportunity to cross-examine witnesses against him, including
Amesqua and Saxe. Amesqua explained during cross-
examination that Greer was discharged because of his flagrant
insubordination against her and Department leadership in
Rule 65: Employees shall not harass co-employees because of
their sexual orientation either by the use of derogatory verbal or
written comments, graphic materials, gestures or conduct... .
APM 3-5: Any employee who shall engage in harassment on the
basis of race, sex, religion, color, age, disability, national origin or
sexual orientation ... is guilty of misconduct and shall be subject to
remedial action, which may include the imposition of discipline up
to and including discharge.
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publicizing his unsupported suspicions to newspapers. In
deciding to terminate Greer, Amesqua considered the news
release, Saxe's report, Greer's personnel file, Greer's
disciplinary record and the disciplinary records of other
Department personnel. She observed that "[t]here is no one that
has a work history or disciplinary history as bad as Ron
Greer's." She also denied that she had ever publicly declared
herself homosexual and reported that she had received
numerous complaints from the public and firefighters about
Greer, although she could not remember how many of these
complaints related to the news release. Greer moved to
introduce evidence contesting elements of his disciplinary
record and moved for the recusal of several commissioners,
pointing to a potential conflict of interest stemming from their
involvement in an unrelated discrimination suit to which Greer
was not a party nor otherwise involved. The PFC denied both
of Greer's motions. On July 31, 1998, the PFC found just cause
for termination under Department rules, Wisconsin law and
federal law.
On August 5, 1998, Greer sued Amesqua, the individual
commissioners of the PFC, the City of Madison, the
Department and the City's insurer in district court under 42
U.S.C. § 1983 seeking damages and reinstatement for violation
of his First Amendment, due process and equal protection
rights. Greer waived his rights under Wisconsin law to appeal
the PFC ruling to Wisconsin state court, see Wis. Stat. §
62.13(5)(1), and both Greer and the defendants filed cross-
motions for summary judgment. On June 21, 1999, the district
court granted summary judgment for the defendants on all three
of Greer's claims, and Greer now appeals.
II. ANALYSIS
The district court granted summary judgment for the
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defendants on all three of Greer's claims: (1) denial of
procedural due process under the Fourteenth Amendment; (2)
denial of equal protection under the Fourteenth Amendment;
(3) employment termination in violation of the First
Amendment. We review a grant of summary judgment de novo.
See Weicherding v. Riegel, 160 F.3d 1139, 1142 (7th Cir.1998).
Summary judgment is proper when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c); see also
Celotex Corp. v. Catrett,477 U.S. 317, 322-23, 106 S.Ct. 2548,
91 L,Ed.2d 265 (1986). In determining whether a genuine issue
of material fact exists, we construe all facts in the light most
favorable to the non-moving party and draw all reasonable and
justifiable inferences in favor of that party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986).
A. Due Process
The parties agree that Greer had a protected property interest
in his continued employment with the Department, but Greer
claims that the Department terminated his employment without
granting him procedural due process under the Fourteenth
Amendment because (1) his pretermination hearing was
constitutionally inadequate; (2) three of five PFC
commissioners were biased against him; and (3) the
Department rules under which he was prosecuted did not give
him prior notice of proscribed conduct.
1. Pretermination Hearing
Due process requires that the government employer provide
a pretermination hearing in which the employee receives notice
of the reasons for the prospective termination and has the
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opportunity to respond to the charges. See Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84
L.Ed.2d 494 (1985). The hearing need not constitute a full
evidentiary hearing that definitively resolves the propriety of
the discharge, so long as it serves as "an initial check against
mistaken decisions--essentially, a determination of whether
there are reasonable grounds to believe that the charges against
the employee are true and support the proposed action." /d. at
545-46, 105 S.Ct. 1487. |
During his eight-day hearing before the PFC, Greer was
represented by counsel and had the opportunity to hear the
charges against him, present evidence in his defense and
confront witnesses testifying against him. His hearing satisfied
the basic requirements of procedural due process under
Loudermill, and requiring more before termination in this
context "would intrude to an unwarranted extent on the
government's interest in quickly removing an unsatisfactory
employee." Jd. at 546, 105 S.Ct. 1487. The fact that Greer did
not have the opportunity to contest whether his previous
disciplinary reprimands were justified does not detract from the
adequacy of Greer’s PFC hearing. Unlike the petitioners in
Kaczmarczyk v. INS, 933 F.2d 588, 596 (7th Cir.1991); who
lacked the opportunity to rebut officially noticed facts before
the Board of Immigration Appeals, Greer had ample previous
opportunity to rebut the factual findings underlying the past
charges against him when those disciplinary actions were
prosecuted. Greer concedes that he received due process in
connection with those past offenses, and due process does not
require that the Department permit Greer to re-argue the merits
of his previous offenses each subsequent time that he is charged
with violating Department rules. The employee is entitled only
to notice and a legitimate opportunity to respond before an
unbiased adjudicator. See Schacht v. Wisconsin Dep't of
Corrections, 175 F.3d 497, 503 (7th Cir.1999).
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In addition, Greer complains that the PFC excluded
testimonial evidence which he claims would prove that his
charges against Amesqua were true. Essentially, Greer insists
that the PFC pretermination hearing was insufficient because
he was barred from presenting all the evidence that he felt was
relevant, as he might at a trial. However, as we have discussed,
a pretermination hearing need not be a "full evidentiary
hearing” to satisfy due process concerns. See Loudermill, 470
USS. at 545, 105 S.Ct. 1487; Staples v. City of Milwaukee, 142
F.3d 383, 387 (7th Cir.1998). With respect to a First
Amendment retaliation claim, the relevant inquiry is whether
the employer had reasonable grounds to believe that the
employee had violated its rules and that its interests as an
employer outweighed the employee's free speech interests. See
Waters v. Churchill, 511 U.S. 661, 676, 114 S.Ct. 1878, 128
L.Ed.2d 686 (1994). The PFC needed only to ascertain a
reasonable basis for finding whether Greer had violated
Department rules, and "[o]nly procedures outside the range of
what a reasonable manager would use may be condemned as
unreasonable." Jd. at 678, 114 S.Ct. 1878. The PFC hearing
was quite sufficient under this standard, and Greer enjoyed
adequate opportunity to respond to the charges against him.
2. Conflicts of Interest
At his PFC hearing, Greer moved for the recusal of
Commissioners Alan Seeger, Margaret MacMurray and Byron
Bishop, citing alleged conflicts of interest from their
participation in hiring Amesqua and consequent involvement
in a discrimination suit filed against them by an unsuccessful
applicant for Amesqua's position. Greer claimed that the named
commissioners possessed "a clear personal, official, and
potential financial interest” in upholding Amesqua's decision to
terminate Greer. A showing that administrative adjudicators
were biased would establish a failing of procedural due process,
but mere participation in earlier decisions that relate only
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tangentially to the current adjudication does not constitute an
impermissible conflict of interest, unless the employee can
produce evidence that bias in fact infected resolution of his
case. See Hortonville Joint Sch. Dist. No. 1 v. Hortonville
Educ. Ass'n, 426 U.S. 482, 493, 96 $.Ct. 2308, 49 L.Ed.24 1
(1976). Greer must overcome a strong presumption of "honesty
and integrity" in assessing whether the adjudicators were
impartial. See Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct.
1456, 43 L.Ed.2d 712 (1975); Vukadinovich v. Board of Sch.
Trustees of Mich. City Area Schs., 978 F.2d 403, 411-12 (7th
Cir.1992).
Greer failed to adduce any evidence of personal bias or
animosity against him on the part of Seeger, MacMurray or
Bishop, and it is difficult even to identify the conflict of interest
that Greer suspects here. Greer's case had no bearing on the
discrimination suit brought against the Department and the
commissioners because that suit did not involve Greer in any
way or touch upon any of the same underlying factual
circumstances. Greer guesses that adjudging against him would
permit the commissioners to present a united front with
Amesqua and would therefore bolster their credibility in the
discrimination suit. We are not sure why Greer thinks this to be
the case, but without any substantiating evidence of bias, this
confused possibility does not constitute an impermissible
conflict of interest.
3. Void for Vagueness
Greer also argues that the Department rules under which he
was terminated violated his due process rights because they
were void for vagueness and failed to give him adequate prior
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notice of workplace rules.” Although a government regulation
is void for vagueness if people of common intelligence must
necessarily guess at its meaning and differ as to its application,
see Grayned v. City of Rockford, 408 U.S. 104, 108- 09, 92
S.Cr. 2294, 33 L-B4.24 YZ (1972), the government acting in
the role of employer enjoys much more latitude in crafting
reasonable work regulations for its employees. For example, a
government employer "may, consistently with the First
Amendment, prohibit its employees from being ‘rude to
customers,’ a standard almost certainly too vague when applied
to the public at large." Waters, 511 U.S. at 673, 114S.Ct. 1878;
see also Arnett v. Kennedy, 416 U.S. 134, 158-62, 94 S.Ct.
1633, 40 L.Ed.2d 15 (1974). The Department need not have
adopted "a quasi-criminal code" in establishing employment
regulations. See Keen v. Penson, 970 F.2d 252, 259 (7th
Cir.1992); see also Brown v. City of Trenton, 867 F.2d 318,
325 (6th Cir. 1989). Department rules gave fair warning to
employees in instructing them to "conduct themselves so as not
to bring the Department into disrepute" (Rule 51); "treat their
superiors with respect [and] conform to the rules and
regulations of the Department" (Rule 18); "conform to and
promptly and cheerfully obey all laws, ordinances, rules,
regulations, and orders" (Rule 39); "not [to] harass co-
employees because of their sexual orientation" (Rule 65); and
not to "engage in harassment on the basis of race, sex, religion,
color, age, disability, national origin or sexual orientation.”
(APM 3-5). Although written in general language, these rules
in the employment setting sufficiently define a range of
2
Greer also argued on appeal that the rules were unconstitutionally
overbroad, but that claim is waived because he failed to raise that
claim before the district court. See United States v. Payne, 102 F.3d
289, 293 (7th Cir.1996). r
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inappropriate conduct which a reasonable employee would
understand to satisfy due process and convey adequate warning
‘that Greer's news release would result in discipline.
Greer points to purportedly uneven punishment under
Department rules as sapping them of fair notice of prohibited
conduct. Even ignoring the fact that most of the cited instances
of unpunished insubordination occurred under the previous
Chief Earle Roberts, none of the other Department critics made
comparably instigative accusations or possessed comparably
poor disciplinary records. Greer's strongest example illustrates
this point: The Capital Times reported in 1992 that firefighter
Art Cuccia called Chief Roberts a "spineless, gutless, self-
centered S.0.B." The Department punished Cuccia with a letter
of discipline but added no further penalties. When asked about
the disparity between the punishments received by Cuccia and
Greer, Amesqua answered that Cuccia had a spotless
disciplinary record before the incident and evinced genuine
contrition by affirming his "utmost respect" for Roberts and
explaining that his comment was a misquotation of a response
to a journalist's question. In contrast, Greer had widely
distributed an inflammatory news reles°e criticizing the
Department, possessed an opprobrious disciplinary record and
had been disciplined under Department rules many times
before. Amesqua had cautioned him that future misconduct
would lead to a more serious penalty, and the PFC had
specifically warned him that it "will not suspend him again."
Blame for any failure to foresee severe punishment for his news
release fell on Greer alone.
. B. Equal Protection
To state a prima facie claim under the Equal Protection
Clause of the Fourteenth Amendment, a plaintiff must
demonstrate that (1) he is otherwise similarly situated to
members of the unprotected class; (2) he was treated differently
19a
from members of the unprotected class; and (3) the defendant
acted with discriminatory intent. See Johnson v. City of Fort
Wayne, 91 F.3d 922, 944-45 (7th Cir.1996). Greer complains
that the Department violated the Equal Protection Clause by
treating him, as a male heterosexual, differently from female
homosexual employees who likewise have criticized the
Department--namely Holtz and Amesqua.
Where an employee has an "undisputed record of gross
insubordination," as Greer does, the employee must show that
another grossly insubordinate worker was treated better than
him to defeat the presumption that his comparatively harsher
punishment. was attributable to his poor disciplinary history.
See O'Connor v. Chicago Transit Auth., 985 F.2d 1362, 1371
(7th Cir. 1993). Greer claims that Holtz and Amesqua publicly
criticized the Department and were not terminated, but neither
had comparably dismal disciplinary records nor made
comparably vituperative attacks. According to Department
records, Greer had the worst disciplinary record in recent
memory, and his public diatribe was an incendiary attack on the
Department defying repeated warnings and sanctions in the
past. Greer has failed to show himself to be similarly situated
with Amesqua, Holtz and other members of the unprotected
class treated better than him. —
Moreover, Greer presents no evidence of prejudice against
him. Greer invites an inference of bias based on the disparate
treatment given to his news release compared with Department
criticism by Holtz, Amesqua and another female firefighter that
went unpunished. Similarly in Vukadinovich, the plaintiff
argued that his employer had violated the Equal Protection
Clause because he was "singled out" from his co-workers and
punished for his alcohol-related problems while his similarly
situated co-workers were not. We refused to engage in a review
of all the employer's personnel decisions absent some evidence
20a
of "purposeful or invidious prejudice" by the employer. See
Vukadinovich, 978 F.2d at 414. Greer fails to produce such
evidence of prejudice underlying the allegedly disparate
treatment that he received, and his equal protection claim
likewise fails.
C. First Amendment Retaliation
Lastly, Greer claims that the Department violated his First
Amendment rights under the balancing test of Pickering v.
Board of Education of Township High School District, 391
U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), by terminating ©
him based on his news release. While it is undisputed that the
Department fired Greer because of his news release, the
Department violated Greer's rights under the First Amendment
only if Greer can establish that (1) his speech addressed a
matter of public concern and (2) his First Amendment interest _
in that speech outweighed any injury that the speech might :
cause to the government's interest in promoting the efficiency |
of the public services it performs through its employees. See .
Waters, 511 U.S. at 668, 114 S.Ct. 1878; Pickering, 391 U.S. H
at 568, 88 S.Ct. 1731. The PFC ruled that Greer's speech |
addressed a matter of public concern but decided that the :
Department's interests as an employer outweighed Greer's First 2
Amendment interests. Without deciding whether Greer's speech
addressed a matter of public concern, the district court agreed
that the Department's interests outweighed Greer's First
Amendment interests and affirmed the PFC's decision to
discharge Greer. We now address this question de novo. See
Wright v. Illinois Dep't of Children & Fam. Servs.,40 F.3d -
1492, 1499-1500 (7th Cir.1994). Under Pickering balancing,
we assess Greer's speech as the Department reasonably believed
it to be, after adequate investigation, when making the decision
to terminate Greer. See Waters, 511 U.S. at 676, 114 S.Ct.
1878. ,
2la
As the PFC correctly ruled, Greer's speech regarded a matter
of public concern. Looking to "the content, form, and context"
of Greer's news release, Connick v. Myers, 461 U.S. 138, 147-
48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), we agree that the
news release primarily addressed the issue of favoritism within
the Department and the lenient disciplinary action taken against
Marcia Holtz. Whether public officials are operating the
government ethically and legally is a quintessential issue of
_ public concern. See Lickiss v. Drexler, 141 F.3d 1220, 1222
(7th Cir.1998); Knapp v. Whitaker, 757 F.2d 827, 840 (7th
Cir.1985); see also Walter v. Morton, 33 F.3d 1240, 1243 (10th
Cir.1994). Although Greer’s news release was replete with
personal jibes at Amesqua and Greer nursed an ongoing
disrespect for Amesqua, "[a] personal aspect contained within
the motive of the speaker does not necessarily remove the
speech from the scope of public concern." See Marshall v.
Porter County Plan Comm'n, 32 F.3d 1215, 1219 (7th Cir.
1994). Greer's central motivation was exposing what he
considered wrongdoing by declaring that the Department's
handling of the Holtz-Cato incident reflected illegitimate
favoritism by Amesqua for lesbian firefighters. His criticisms
of the Department went far beyond complaints regarding his
individual employment situation and were not motivated
primarily by purely personal grievances. See, e.g., Kokkinis v.
Ivkovich, 185 F.3d 840, 844 (7th Cir.1999); Smith v. Fruin, 28
F.3d 646, 653 (7th Cir.1994); Swank v. Smart, 898 F.2d 1247,
1251 (7th Cir.1990).
However, the second prong of the Pickering test instructs
that we also must balance "the interest of the [employee], as a
citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
employees." See Pickering, 391 U.S. at 567-68, 88 S.Ct. 1731.
Factors to consider in applying Pickering balancing include (1)
22a
whether the speech would create problems in maintaining
discipline or harmony among co- workers; (2) whether the
employment relationship is one in which personal loyalty and
confidence are necessary; (3) whether the speech impeded the
employee's ability to perform her responsibilities; (4) the time,
place and manner of the speech; (5) the context in which the
underlying dispute arose; (6) whether the matter was one on
which debate was vital to informed decisionmaking; and (7)
whether the speaker should be regarded as a member of the
general public. See Kokkinis, 185 F.3d at 845; Wright, 40 F.3d
at 1502.
Although it is often proper for public employees to raise
questions about favoritism or improper investigation of
disciplinary incidents, the manner and means of the employee's
protestation are key considerations in balancing the employer's
and employee's interests under Pickering. See Wright, 40 F.3d
at 1503; Hulbert v. Wilhelm, 120 F.3d 648, 654 (7th Cir.1997);
Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1259
(7th Cir.1985). Greer never approached Amesqua or Holtz
regarding the Holtz-Cato incident, and did not pursue internal
avenues for questioning the Department's investigation. Instead,
unwilling to let the firefighters' union address the matter and
ignorant of specifics about Spohn's investigation, Greer fired
off his news release to local media, causing considerable public
embarrassment to the Department. Without inside knowledge
about the Holtz-Cato incident or the ensuing investigation,
Greer speculated that Amesqua and Spohn "glossed over"
workplace violence because Amesqua was illegitimately biased
in favor of homosexuals. The publicity and sensationalism of
Greer's news release belied the fact that it imparted little new
information about the Holtz-Cato incident to the public
discourse other than Greer's unsubstantiated suspicions. Greer's
posture under Pickering would be stronger if he "had followed
authorized procedures, appealed to more appropriate
Pee ee ee ee ee ee ee eee
CS a ee ee eR ee ee een
23a
authorities, or perhaps shown a wilful lack of investigation on
the part of [his] superiors." Wright, 40 F.3d at 1504; see also
Hulbert, 120 F.3d at 654. Despite his claim that he was
innocently "just asking questions," Greer instead circulated his
naked accusations to mass media outlets for broad public
consumption and intended to indict the integrity of the
Department's leadership publicly.
Moreover, the Department's interests in disciplining Greer
and maintaining order were quite substantial. In a fax
distributed to the major newspapers in Madison, Greer had
publicly excoriated Amesqua as a lesbian harboring "radical
agendas" and announced both Amesqua and Holtz to be
“homosexual women" despite the fact that neither had publicly
declared their sexual orientation (Greer protests irrelevantly
that both had not concealed their homosexuality at work). His
harangue led directly to the publication of a front-page
newspaper story headlined, "Greer says fire chief plays gay
games." Furthermore, Greer had a well-established history of
publicly criticizing the Department over policy disagreements.
Greer had just been suspended three months for distributing
anti-homosexuality literature at work, and the PFC had warned
him to cease his campaign against Amesqua. As a firefighter
known within the community as an outspoken Department
critic, Greer likely anticipated and intended the damaging effect
of his news release. The Department reasonably felt that Greer's
speech, if left unpunished, particularly in light of his
disciplinary history, would disrupt the operation of the
Department by degrading the Department's standing with the
public, undermining Amesqua's authority and inciting
disharmony within Department ranks. See Campbell v. Towse,
99 F.3d 820, 830 (7th Cir. 1996); Marshall, 32 F.3d at 1221:
Brown, 867 F.2d at 322. As Amesqua declared in her charge
letter, Greer's news release was "the equivalent to spitting in the
Department's face." Analyzing analogous factual circumstances
24a
in Kokkinis, we held that Pickering balancing favored the
government when a police officer with a poor disciplinary
- record leveled sensationalistic charges of impropriety at the
police chief during a television news interview. Kokkinis, 185
F.3d at 846. Likewise, the Department's interests as an
employer in government efficiency and workplace morale
outweigh Greer's First Amendment interests here.
Although Greer protests that his news release did not ignite
actual disruption in his workplace, an employer need not
establish actual disruption before disciplining an employee
when the threat of future disruption is obvious. See Waters, 511
U.S. at 673, 114 S.Ct. 1878. After learning of Greer's news
release, Amesqua promptly disciplined Greer to reestablish her
authority and stave off workplace dissension potentially
flowing from Greer's conduct. Greer's news release threatened
to undercut Amesqua's authority and disrupt the Department,
just as the police officer's accusations in Kokkinis potentially
"undermined the Chief's ability to maintain authority and
discipline within the police department." Kokkinis, 185 F.3d at
846 (quoting Khuans v. School Dist. 110, 123 F.3d 1010, 1017
(7th Cir. 1997)). A government employer need not "allow
events to unfold to the extent that the disruption of the office
and the destruction of working relationships is manifest before
taking action," Connick, 461 U.S. at 152, 103 S.Ct. 1684, and
we grant "substantial weight to government employers’
reasonable predictions of disruption." Waters, 511 U.S. at 673,
114 S.Ct. 1878; see also Weicherding, 160 F.3d at 1143
(explaining that the defendant "need not wait until a riot breaks
out before acting to quell a dangerous situation"); Breuer v.
Hart, 909 F.2d 1035, 1040 (7th Cir.1990) ( "The public
employer is not required to wait until those working
relationships actually disintegrate if immediate action might
prevent such disintegration."). The potential disruption that
Greer's news release could have caused to the Department's
. ee -
25a
operations if Greer had not been terminated is clear.
Greer expostulates at length that the "veracity" and
"sincerity" of his statements bear critical weight, but truth is not
an absolute defense under Pickering balancing. Indeed, the
Department dropped its charges under Rules 47 and 50 because
Saxe concluded that Greer believed the truth of his charges and
did not violate the rules requiring honesty and prohibiting false
reporting; the PFC instead found that Greer had violated
Department rules against insubordination, harassment and
bringing the Department into disrepute. Nonetheless, Greer
claims his allegation that Amesqua had illegally favored Holtz
was true, or at worst a sincerely held belief, and thus carried
decisive weight under Pickering.
Recklessly false statements by a public employee enjoy no
First Amendment protection, see Brenner v. Brown, 36 F.3d 18,
20 (7th Cir.1994), and from this principle Greer wrongly
extrapolates that speech which is factually true therefore must
be absolutely protected. However, we have never held that an
employer must prove the falsehood of the employee's statement
before disciplining the employee based on that speech. In fact,
Pickering would be senseless if speech sincerely believed to be
true was absolutely protected. Pickering balancing only applies
to speech that is true or believed to be true, because recklessly
false speech is unprotected by the First Amendment. In Wright,
which Greer cites for support, we noted that a public employee
"summoned to give sworn testimony ... has a compelling
interest in testifying truthfully and the government employer
can have an offsetting interest in preventing her from doing so
only in the rarest of cases." Wright, 40 F.3d at 1505. The point
is that an employee has an enhanced interest in telling the truth
when sworm to do so before "an official government
adjudicatory or fact-finding body," and his employer's interest
is unlikely to counterprevail. Jd. Greer's news release did not
26a
constitute adjudicatory testimony under penalty of perjury and
enjoys no special protection under Wright. Like the PFC, we
have assumed that Greer's news release was not recklessly false
and nonetheless hold that the Department was justified in
terminating him under Pickering.
III. CONCLUSION
For the foregoing reasons, we AFFIRM summary judgment
for the defendants on all Greer's claims.
27a
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
\
RONNIE B. GREER,
Plaintiff, OPINION AND
ORDER
Vv.
Case No.: 98-C-
DEBRA H. AMESQUA, Individually 0560-C
and in her capacity as Fire Chief of the
City of Madison, Wisconsin, ALAN
SEEGER, (In his individual and
official capacities) MARGARET
MACMURRAY ( In her individual
and official capacities), BYRON
BISHOP ( In his individual and
official capacities), LYNN HOBBIE
(In her individual and official
capacities), MARIO MENDOZA ( In
his individual and official capacities),
THE CITY OF MADISON FIRE
DEPARTMENT, THE CITY OF
MADISON, THE CITY OF
MADISON POLICE & FIRE
COMMISSION, and WISCONSIN
MUNICIPAL MUTUAL
INSURANCE COMPANY,
Defendants.
28a
In this civil action brought pursuant to 42 U.S.C. § 1983,
plaintiff Ronnie B. Greer contends that defendants Debra H.
Amesqua, the city of Madison Fire Department, the City of
Madison and the City of Madison Police and Fire Commission
( and its constituent members defendants Seeger, MacMurray,
Bishop, Hobbie and Mendoza) violated his right to freedom of
speech by the First amendment and his rights to due process
and equal protection of law protected by the Fourteenth
Amendment.Defendants deny that they violated plaintiffs
rights and assert that if the court finds otherwise they are
entitled to qualified immunity.Previously plaintiff moved for a
preliminary injunction on his first Amendment claim, but the
motion was denied for lack of probability of success on the
merits.See Greer v. Amesqua, 22 F. Supp. 2d 916 (W.D. Wis.
1998).
Presently before the court are plaintiff's and defendants’
cross-motions for summary judgment.Because I conclude that
defendants did not violate plaintiff s right to freedom of speech,
did not deny him equal protection of law and provided him all
the process due him under the Fourteenth Amendment, I will
grant defendants’ motion for summary judgment and deny
plaintiff's motion for summary judgment. In light of this
conclusion, it is unnecessary to address defendants’ claim of
qualified immunity. See estate of Stevens v. City of Green Bay,
105 F.3d 1169, 1178 (7th Cir. 1997).
Before reciting the undisputed material facts, it is necessary
to address plaintiff's contention that the entire evidentiary
record must be limited solely to the actions of defendant
commission and the record before the commission. As
discussed in greater detail below and in accordance with
plaintiff's position, I will limit analysis of plaintiff's First
Amendment claim to the facts as reasonably found by the
commission at the time it made its decision. The analysis of his
~ Ke NP ee een ey ee ae ee ee ee as
29a
due process claim is necessarily limited to the record before the
commission; whether plaintiff's due process rights were
violated depends entirely on whether the actual process he
received was the process due him. It is unnecessary to rely on
any facts other than those before defendant commission to
decide plaintiff's equal protection claim.
However, as explained in my earlier decision denying
plaintiff's motion for a preliminary injunction, the posture of
this case in this court is very different from what it would have
been in state court pursuant to the procedural review scheme
available to plaintiff under Wis. Stat. §62.13(5) (1). This
court’s role is not simply to review matters decided by
defendant commission to determine whether, in its role as
employer, the commission violated any federal constitutional
rights of plaintiff. As explained to both parties in the pretrial
conference order, both parties were free to submt proposed
findings of fact supported by appropriate citations to the record
and to cite those facts in support of arguments for summary
judgment. Indeed, both parties submitted to the court a joint
pretrial report requesting extensive discovery, including
depositions and interrogatories. Therefore, there is no merit to
plaintiff's argument that a// of defendants’ proposed findings
of fact that refer to depositions and affidavits taken after
defendant commission’s decision must be excluded in their
entirety. For example, such innocuous proposed facts as “Greer
prepared and circulated his news release in April 1997" and
“Chief Amesqua assigned Assistant Chief Spohn to investigate
this matter” are not only relevant and necessary background
facts but were clearly known by defendant commission at the
time of its decision. Such facts are included below.
From the facts proposed by the parties, I find the following
to be material and undisputed.
30a
UNDISPUTED FACTS
Defendant City of Madison is a Wisconsin municipal
corporation. Defendant City of Madison Fire Department is a
fire department organized under Wisconsin law. Defendant
City of Madison Police and Fire Commission is a city .
commission organized under Wisconsin law. Defendant Debra
H. Amesqua is Fire Chief for defendant City of Madison.
Defendants Alan Seeger, Margaret MacMurray, Byron Bishop,
Lynn Hobbie, and Mario Mendoza are members of defendant
City of Madison Police and Fire Commission. Defendant
Wisconsin Municipal Mutual Insurance Company provide
insurance coverage to defendant City of Madison. Plaintiff
Ronnie B. Greer was employed as a firefighter with the City of
Madison Fire Department from February 4, 1981, until July 31,
1998, when he was terminated by order of defendant police and
__fire commission.
Plaintiff was disciplined in the mid-1980's for violation of
a work rule prohibiting disrespect of superior officers. He was
disciplined a second time in the 1980's for disrespect of a
superior officer or insubordination. Plaintiff received a
disciplinary suspension of ninety-six hours for disrespect
because of an argument with a superior officer in 1995 or 1996.
Plaintiff appealed that discipline to defendant commission,
which upheld the decision. Plaintiff stipulated to the charges,
not understanding that he could not challenge the stipulation on
appeal. Plaintiff was next disciplined on June 25, 1997, for
distributing anti-homosexual written material to firefighters in
1995-1996. Defendant commission found that plaintiffs
- conduct violated the City of Madison’s employee rule
prohibiting harassment and department rules 18, 51 and 65 (all
described below). In its decision, defendant commission stated
that it was “not overly confident that this discipline will
9 ee, ee ey ee Eee eS! ee eS Le ee we eee ey eee ele ore
3la
accomplish a change in respondent’s pattern of conduct.
However, we are confident that this Board will not suspend him
again.” This disciplinary decision is on appeal in state court.
In January 1996, defendant Amesqua was hired as the new
chief of the department. Following her hiring, she was named
along with defendant commission and defendants Seeger,
MacMurray and Bishop as defendants in a lawsuit brought by
one of the applicants alleging that defendant Amesqua had been
hired because of her gender and race. Shortly after Amesqua
was appointed, she promoted Marcia Holtz from lieutenant to
Division Chief in Charge of Training. On October 3, 1996, a
local television station doing a story about the training of
Madison firefighters filmed and broadcast a live fire training
session. In the report, Holtz is seen to make physical contact
with a recruit named Ron Cato and yell at him.
Although the propriety of Holtz’s conduct towards Cato was
not a topic of the television report, Holtz’s behavior was
questioned by members of the department who happened to
watch it. In a letter dated November 11, 1996, the president of
the local firefighters union, Lt. Joseph P. Conway, asked
Amesquo to order an independent investigation by the City of
Madison attorney because he believed that Holtz’s conduct had
violated several department rules. Also, Conway advised
Amesqua that he had spoken to other recruits and that his
conversations led him to believe that Holtz had treated other
recruits in the same way she had treated Cato. Conway urged
that Holtz be suspended during the investigation. f
Amesqua released her findings on the Holtz investigation in
an internal memorandum dated April 9, 1997, in which she says
that Holtz had reported that she was uncomfortable with her
treatment of Cato because she had never taken such
extraordinary measures. From this statement and other fact,
32a
Amesqua found that Holtz’s actions were “not unreasonable
under the totality of the circumstances,” but she extended
Holtz’s probation by six months and ordered her to participate
in a leadership class.
On April 28, 1997, plaintiff issued to at least two local
newspapers a document he called a “news release” that reads in
full as follows:
News Release
Homo ief ief for t?
Fire Chief Debra Amesqua issued a decision on the
investigation of an incident involving Training Chief
Marcia Holtz and a fired firefighter trainee. In the
incident, recorded by WMTV News-15 in October 1996,
Chief Holtz shoved and screamed at the trainee during a
training exercise. An investigation was ordered and a
decision based on the investigation was issued on April
9, 1997. It is Chief Amesqua’s conclusion that the
“questionable measures” (shoving & screaming) used by
chief Holtz were not “unreasonable”, and that she simply
“needs further guidance and training”. That training is to
be accomplished by “attending an advance leadership
class”, a training program which is coveted by other chief
officers to the extent that there is a “waiting list” to get
in! She has also called for a 6 month extension of chief
Holtz’s probationary period, something she (Chief Holtz)
herself appears to have suggested.
Now this would be laughable [if] it were not such a
serious matter. A senior office in essence, physically and
verbally assaults an employee and Chief Amesqua finds
that “not unreasonable” and that her screaming was
“professional in content and germane”. In over 17 years
33a
of firefighting with both experienced and non-
experience[d] firefighters, I don’t believe I’ve ever seen
a situation where it was necessary to physically assault
anyone to get their attention or to instruct them. Granted
it is often necessary to make physical contact in a fire
situation to initiate communication with another
firefighter, but never to the extent as we have seen in this
incident. So what’s so special or different about this
case?
I said in October that this matter would be “down
played”, “swept over” and nothing significant would be
done about it. A lot of my fellow firefighters doubted my
“prediction”. Well, time has “told the story”. One does
not need to be a prophet, just someone willing to see
things as they are.
Consider the following. One would think that if you
wanted to achieve clear facts in investigating a matter of
this type it would be only proper to have that
investigation done by an independent, disinterested party.
However, that is not the case here. The investigation was
done by another Division Chief who is subordinate to
Chief Amesqua and a staff member with Division Chief
Holtz. Is it possible that the investigating officer could
have bee unduly influenced? Or could the conclusions of
the investigation be simply disregarded without
opposition by that subordinate?
The relationship between Chief Amesqua and Chief
Holtz goes back a ways, namely through their affiliation
with an organization called “Women In Fire [Service]”,
an organization seen by most firefighters in this area as
a predominately homosexual organization. Is it possible
that some favoritism has been shown here to a fellow
34a
member or possible friend?
Both are homosexual women, who have been seen in the
past ( and still now among many), with clear agendas as
it is concerns women in the fire service. Could it be that
their radical agendas has come to play to the extent that
even violence can be excused as “glossed over”, or in
this case, rewarded? Sounds a lot like the much assailed
“good-ol-boy” system revived, repainted and given
another name.
Now, I’m confused and maybe someone could make
sense of this for me; It’s not okay to communicate
verbally my views on a department chief officer’s
handling an issue but it’s okay to use physical force to
communicate with a trainee? Maybe I’m missing
something! The department/city is willing to spend
thousands of dollars on a case of an alleged comment
without -proof, on alleged harassment without a
complaint or proof, and on an alleged rule violation
without action or proof, but “winks” at and rewards
physical assault? ~
Another firefighter is given a disciplinary letter and has
the same placed in his employment file because he made
a remark regarding homosexuals. He was “off-duty” and
happened to stop by the fire station. A letter of
discipline?
A fire officer is facing a 12 hour suspension for angrily
making comments to a uniform delivery driver whom he
is familiar with. A 12 hour suspension?
But yet, it’s not unreasonable for a chief officer in anger
to physically handle an employee? Imagine if it were a
¥
date ata id nak
a LOE ea RES CRE Sey foe De aren fee wee
Sich SOE A ay chshbinte De a EA a hah ey ba re te aaah ER cx: Pe
35a
white male chief officer showing and screaming at a
female recruit. Heads would have rolled! So much for
fair treatment and equity! Go figure. |
Oh, by the way, that male trainee who was the victim, he
was mysteriously “let-go” literally days before graduating
from the fire academy. Makes you go, “Hmm.”
/s/ Just sharing my thoughts with you all. \
Portions of plaintiff's news release were quoted in a May 1,
1997, article in a Madison newspaper, the Capital Times, which
states, in part:
Greer says fire chief plays gay games
Raps treatment of woman in shoving incident
* * *
Madison firefighter Ron Greer has lobbed another
Molotov cocktail at his boss, this time accusing Fire
Chief Debra Amesqua of meting out lax discipline to a
female assistant fire chief.
He also insinuates that it’s a lesbian conspiracy.
In a press release title “Homosexual chief rewards
homosexual chief for assault?” Greer implies that
Amesqua showed favoritism in an investigation of
Assistant Chief Marcia Holtz.
Holtz was accused of using excessive force on a
recruit during a live fire training exercise last October.
Neither Amesqua nor Holtz has said anything publicly
about their sexual orientations, whether they’re gay or
36a
straight.
The discipline for Holtz, recently made public, is a
six-month extension of Holtz’s probation and a
requirement that she attend an advanced leadership class.
Greer criticizes the sanction, saying that getting to attend
a leadership class is a highly sought-after perk, not a
penalty.
** *
Greer, a pastor of a conservative Christian church,
has become an anti-gay crusader. He has attacked the
chief publicly ever since she came to Madison in
January 1996.
Saying Amesqua was unqualified, Greer carried a
protest sign when she was sworn in.
Greer himself is facing discipline for
insubordination and for handing out anti-gay literature
at work. The Madison Police and Fire Commission
held roughly 20 hours of hearings on Greer’s case and
is expected to rule in a few months.
Holtz provided the spark for the latest Greer-
Amesqua flap.
** *_
Following plaintiff s issuance of the news release, Amesqua
initiated an investigation to determine whether plaintiff had
violated department rules. She directed Assistant Chief Carl
Saxe to conduct a pretermination hearing. Attendance at the
c hearing was mandatory and plaintiff could not call witnesses,
ask his own questions, review witness statements or cross
examine witnesses. Plaintiff was asked a series of questions
37a
designed to elicit the circumstances surrounding his issuance of
the news release. After the hearing, Saxe reported to Amesqua
that in his view plaintiff had violated various department rules.
In a letter dated June 10, 1997, Amesqua informed plaintiff
that she believed he had committed rule violations that included
disseminating a communication with the intent to discredit
supervisors and the department and violating the department’ s
rule against harassment of employees on the basis of sexual
orientation. Amesqua asked for plaintiffs resignation and told
him that if he did not resign, she would seek his termination
before defendant commission.
Plaintiff did not resign and Amesqua filed charges seeking
plaintiff's termination with defendant police and fire
commission. Plaintiff was suspended with full pay pending
results of the hearing. The hearings before the commission took
place over seven months on eight separate days for a total of
more than twenty-two hours. Plaintiff was represented by
counsel and permitted to present testimony and documentary
evidence and to cross examine witnesses who testified against
him.
The commission concluded that plaintiff's discharge was
warranted under five different departmental and city rules: 1)
fire department Rule 51, which provides that “officers and
members shall at all times conduct themselves so as not to
bring the department into disrepute”; 2) rule 18, which provides
that employees must “treat their superiors with respect,”
“conform to all rules and regulations of the department,” and
render service with “discretion and fidelity”; 3) Rule 39, which
provides that employees must “conform to and promptly and
cheerfully obey” all “rules, regulations and orders” that
emanate “from due authority”; 4) Rule 65, which provides that
employees “shall not harass co-employees because of their
38a
sexual orientation” by use of “derogatory verbal or written
comments” or “conduct which would interfere with the
performance of their duties”; and 5) Madison Administrative
Procedure Memorandum 3-5, which prohibits harassment in the
workplace on the basis of sexual orientation and other protected
characteristics under state and federal law. Defendant Fire
Department dropped its charges against plaintiff under rules 47
and 50, which require employees to “speak the truth at all
times” and prohibit “false reports.”
After finding that plaintiff's speech warranted discharge
under departmental and city rules, defendant commission
considered whether plaintiffs speech was protected by the First
Amendment. To make this determination, defendant applied the
Connick-Pickering test, which can be summarized as giving
First Amendment protection to public employee speech that is
a matter of public concern provided that the employee’s interest
in expressing a view on a subject outweighs the harm to a
public employer that can result when an employee speaks his
or her mind. See Connick v. Myers, to warrant application of
the test articulated in Pickering for balancing the interests of
the employee and employer as to each of the rule violations
with which plaintiff was charged. In each case, defendant
commission determined that plaintiff's interest in expressing
his views was outweighed by the interests of the department
and the public in maintaining orderly administration of the
department and a harassment-free work environment for all
department employees.
In a decision dated July 31, 1998, the commission ordered
that plaintiff be discharged. The decision was appealable
directly to state court under Wis. Stat. §62.13(5)(1), but plaintiff
chose to file the present action instead.
39a
OPINION
Summary judgment is appropriate if there are no disputed
issues of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Weicherding
v. Riegel, 160 F.3d 1139, 1142 (7th Cir. 1998). All evidence
and inferences must be viewed in the light most favorable to
the non-moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). However, the non-moving party must set
forth specific facts sufficient to raise a genuine issue for trial.
Celotex v. Catrett, 477 U.S. 317, 324 (1986).
A. First Amendment
It is well established that government as employer has “a
freer hand in regulating speech” than government as sovereign.
Wright v. Illinois Dept. of Children & Family Services, 40 F.3d
1492, 1500 (7th Cir. 1994). The First Amendment “does not
require a public office to be run as a roundtable for employee
complaints over internal office affairs.” Connick, 461 U.S. at
149. At the same time, public employees do not relinquish their
First Amendment rights when they accept employment in the
public sector. See Biggs v. Dupo, 892 F.2d 1298, 1303 (7th Cir.
1990) (“[F]reedom of speech is not traded for an officer’s
badge.”). First Amendment claims asserted by public
employees are evaluated utilizing a three-step inquiry: (1) was
the employee’s speech protected by the First Amendment; and
(2) if so, was the employment decision motivated by the
speech; and (3) if so, would the employer have taken the same
action but for the speech. See Mt. Healthy City School District
Board of Educ. v. Doyle, 429 U.S. 274, 284-87 (1977).
In this case, only the first step is at issue: evaluating whether
plaintiff's speech is protected by the First Amendment. To
determine whether a government employee’s speech is
40a
protected by the First Amendment, courts employ the same
Connick-Pickering test the defendant commission applied.
First, the court determines whether the employee’s speech
addresses a matter of public concern. See id. (citing Connick,
461 U.S. at 146). If it does, then the court balances the “interest
of the [employee], as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees.’” Jd. (quoting Pickering, 391 U.S. at
568).
A threshold issue is the scope of the evidentiary record
before the court in deciding plaintiff's First Amendment claim.
Is it limited to just what was before the commission wehn it
made its decision or does it include any properly submitted
evidence relevant to the determination of the nature of
plaintiff's speech under Connick? A related question was
addressed in Waters v. Churchill, 511 U.S. 661 (1994), a case
that clarified the extent of the employer’s obligation to
determine what the employee actually said before imposing
discipline. Waters held that in conducting a Connick inquiry to
determine whether particular speech is a matter of public
concern, a court should look at the statements the employer
reasonably believed the employee made. “Reasonably” means
after the employer has conducted an investigation into what
was actually said, using reasonable care. See id. at 677. In
Weicherding, 160 F.3d at 1143, the Court of Appeals for the
Seventh Circuit extended the Waters rule to cover not only
what the employee said, but all facts reasonably found by the
employer at the time the employee was terminated.
From the Waters and Weicherding, it was the defendant
employers who wanted the record limited to what was before
them at the time of discharge. In this case, it is plaintiff who
insists that the record be so limited. In particular, plaintiff
4la
wants to exclude evidence gathered from his own deposition
taken during discovery in this litigation and an affidavit from
defendant Amesqua, because defendants have attempted to use
that evidence to establish that plaintiff's motive in issuing the
news release was furtherance of his personal belief that
homosexuality is a sin and homosexuals should not hold public
office.
In aclosely related argument, plaintiff urges the court not to
re-open the defendant commission’s decision that his news
release met the public concern requirement of the Connick
analysis. He argues that because the commission found that his
speech touched upon matters of public concern, its decision to
fire him could not be based on the ground that his speech was
wholly personal in nature and therefore unprotected. He
contends that defendants cannot try to justify his termination on
the ground that his speech represented his personal beliefs and
gripes. See Miller v. Whitburn, 10 R.3d 1315 (7th Cir. 1993)
(administrative agency may not raise justification for its action
that it failed to rely upon during administrative proceedings).
Plaintiff is correct that under Waters and Weicherding, a
court engaged in a First Amendment analysis of public
employee speech should look at all facts as reasonably found by
the employer at the time the employee was terminated. He is
less persuasive in asserting that the court must accept defendant
commission’s decision that his speech touched upon matters of
public concern under Connick. However, in this case, even if
the record is limited to those facts before the commission at the
_ time it made its decision and even if I accept defendant
commission’s decision that plaintiff's speech was public in
nature, the outcome is not affected. Accordingly, I will limit the
First Amendment analysis to the Pickering side of the equation:
balancing plaintiff's interest in commenting upon matters of
public concern and the interest of defendants in promoting the
42a
safe and efficient operation of its services, using the facts as the
commission found them at the time of its decision. I find that
even if. as plaintiff insists, I exclude evidence not before the
commission at the time of its decision and accept the
commission’s decision that plaintiffs speech addressed matters
of public concern, his speech is still not entitled to First
Amendment protection under the Pickering balancing test.
Among factors considered in performing the Pickering
balancing test are the effect of the employee’s speech on the
orderly operation and efficiency of services; the effect of the
speech on the employee’s ability to perform his or her duties;
the nature of the employee’s duties, including whether his
position is one of loyalty or confidence; and the time, place,
and matter of the employee’s speech or activity. See
Weicherding, 160 F3d at 1142. Contrary to plaintiffs
assertions, the truth or falsity of the employee’s speech is not
necessarily a critical factor in public employee free speech
cases generally and it is irrelevant in this case. See Connick,
461 U.S. 138 (1983) (truth or falsity of employee speech not
addressed); Waters, 511 U.S. 661 (1994) (truth or falsity of
employee speech not addressed); Campbell v. Towse, 99 F3d
820 (7th Cir. 1996) (truth or falsity of employee speech not
addressed); Probst v. Bitzer, 39 F.3d 148 (7th Cir. 1994) (truth
or falsity of employee speech not addressed). Plaintiff's
reliance on Wright v. Illinois Dept. of Children & Family
Services, 40 F.3d 1492, 1505 (7th Cir. 1994), is misplaced. In
Wright, the court of appeals considered whether “an employee
who testifies before an official government adjudicatory or fact-
finding body speaks in a context that is inherently of public
concern.” The court refused to find that employee speech is
protected simply because it is made in the course of a lawsuit
or otherwise under oath:
...[TJhere is no sound basis for granting greater
43a
constitutional protection to statements made under the
Petition Clause than to other run-of-the-mill speech or
expression. In short, airing private gripes in the form of a
complaint or testimony cannot alter their status as private
gripes.
Id. Instead, the court held that in determining the weight to be
accorded to the employee’s interest when assessing the
Pickering factors, court should be mindful that “an employee
summoned to give sworn testimony has a compelling interest
in testifying truthfully and the government employer can have
an offsetting interest in preventing her from doing so only in
the rarest of cases.” Jd. In other words, because an employee
has a particularly strong interest in not perjuring him or herself,
truthful testimony is usually but not automatically protected
under the Pickering balancing test.
This does not imply, as plaintiff insists, that truthful
statements in other fora, such as news releases, are entitled to
substantial weight. Because it is difficult to imagine how false
or erroneous employee speech could raise matters of public
concern, it is arguable that truth is a necessary but insufficient
condition for first amendment protection. Indeed, the court of
appeals for the Seventh circuit has held that recklessly untrue
speech is never protected; true speech might be, if it survives
the Connick-Pickering analysis. See Brenner v. Brown, 36,
R.3d 18 (7th cir. 1994). To hold, as plaintiff insists, that public
employers must prove an employee’s speech is recklessly
untrue before imposing discipline would require extensive fact-
finding investigations every time an employee alleged
wrongdoing regardless how severely the speech disrupted the
employer’s interest in effective operation, a result clearly not
contemplated under either Connick or Pickering.
Further, unlike the situation in Wright, plaintiff's discipline
44a ‘
was not conditioned on his employer’s belief that he spoke
untruthfully. Defendant commission explicitly stated: “We will
not condition [plaintiff s] constitutional rights on our judgment
of his accuracy.” The commission then applied the Connick-
Pickering test, finding that plaintiff's speech was recklessly
untrue after they had said that they would not attempt to
determine its truthfulness. If defendants had determined that
plaintiff's speech was recklessly untrue, it would not have
found that it touched upon matters of public concern and there
would have been no need to apply the Pickering balancing test.
Moreover, defendant Fire Department dropped its charges
against plaintiff under Rule 47, which requires employees to
“speak the truth at all times” and Rule 50, which prohibits
“false reports.”
Plaintiff points to language in defendants’ decision that
describes his news release as “uninformed and uninformative”
to support his argument that defendants decided that his
insinuations were untrue despite its statements to the contrary.
However, even a cursory reading of the news release indicates
that plaintiff was not purporting to state as a fact that the
department investigation was a coverup. Rather, plaintiff raised
questions regarding that possibility: “Is it possible that some
favoritism has been shown here to a fellow member of possible
friend?...Could it be that their radical agendas has come to play
to the extent that even violence can be excused as ‘glossed
over’, or in this case, rewarded?” Defendants need not have
determined that plaintiffs insinuations were untrue to
determine that they were “uninformed and uninformative.” By
their very nature, the questions plaintiff posed fit that
characterization.
The weight accorded to the Pickering factors depends upon
both the nature of the employee’s work and the mission of the
agency for which he or she works. Egger v. Phillips, 710 F.2d
45a
292 (7th Cir. 1983). Courts have recognized repeatedly that
when the mission of the agency is to protect public safety,
governments have a particularly acute interest in orderly and
effective performance of public services that is entitled to even
more weight. See Weicherding, 160 F.3d 1139 (prison guard);
Shands v. City of Kennett, 939 F.2d 1337 (8th Circ. 1993)
(firefighter); Versage v. Township of Clinton New Jersey, 984
F.2d 1359 (3d Cir. 1993) (firefighter); Bruer v. Hart, 909 F.2d
1035 (7th Cir. 1990) (law enforcement); Mings v. Department
of Justice, 813 F.2d 384 (Fed. Cir. 1987) (border patrol agent);
Egger 710 F.2d 292 (law enforcement); Bickel v. Burkhart, 632
F.2d 1251 (Sth Cir. 1980) (firefighter); Jansuaitis v.
Middlebury Volunteer Fire Dep’t, 607 F.2d 17 (2d Cir.
1979)(firefighter).
In Weicherding, 160 F.3d 1139, the court of appeals held
that a prison guard’s interest in promoting a Ku Klux Klanrally -
and advocating white power was substantially outweighed by
his employer’s interest in preventing disruption of safe and
effective prison guard services. See id. at 1143. The court noted
that the plaintiffs speech would disrupt operation of the prison
by exacerbating racial tensions. See id. In addition, the court
noted that the guard had attracted media attention and identified
himself freely as an employee of the Illinois Department of
Corrections. See id. Therefore, his discharge did not violate the
First Amendment.
In Campbell v. Towse, 99 F.3d 820 (7the Cir. 1996), the
plaintiff police officer was suspended for nine days after
writing a letter to the chief of police questioning the chief’s
management style and several of the policies he had instituted.
See id. at 823. The court of appeals observed that the police
department had a heightened interest in assuring the loyalty of
subordinates and that the chief’s interest in maintaining
department order and discipline outweighed the plaintiff's
46a
interest in his speech. See id. at 829. Therefore plaintiffs
speech was not protected by the First Amendment. See id
In Shands, 993 F.2d 1337 (8th Cir. 1993), the court of
appeals upheld the dismissal of plaintiff firefighters who
alleged they had been discharged in violation of the First
Amendment. The firefighters had petitioned city council
members not to hire a certain firefighter they believed was
unqualified and had informed the council that the new fire chief
had bought equipment they believed was unsafe. See id. at
1341. In applying the Pickering balancing test, the Shands court
noted,
As a public safety organization, a fire department, like a
police department, has a more significant interest than the
typical government employer in regulating the speech
activities of its employees in order “to promote efficiency,
foster loyalty and obedience to superior officers, maintain
morale and instill public confidence” in its ability.
Id. at 1344. The court found that the chief must be afforded
. wide deference in his determination that the firefighters’ speech
would cause disruption and that such disruption could be fatal
to the effective operation of the department. See id. at 1345. In
addition, the court found that the new chief had a particularly
strong interest in establishing his authority and in preventing its
erosion. See id. Therefore, despite the importance of the
firefighters’ speech, the court found that the department’s
interest in preventing disruption of the safe and effective
_ delivery of firefighting services outweighed the firefighters’
interest in speaking out. See id. at 1346.
Sinilarly, the court observed inVersage that “when lives are
at stake in a fire, an espirit de corps is,essential to the success
- of the joint endeavor.” /d. at 1367. It concluded that the
47a
important interest of the fire department in preventing
disruption outweighed the limited interests of the plaintiff
firefighter and the public in plaintiffs speech. See id. at 1368.
This sentiment is echoed in Janusaitis” “When lives may be at
stake in a fire, carping criticism and abrasive conduct have no
place in a small organization that depends upon common
loyalty-‘harmony among coworkers.’” Jd. at 26. Moreover, the
government need not show actual disruption in the workplace
before taking action to prevent it. See Weicherding, 160 F.3d at
1143; Connick, 461 U.S. at 152 (employer has no obligation “to
allow events to unfold to the extent that the disruption of the
office and the destruction of working relationships is manifest
~ before taking action.”). Thus, as a firefighter criticizing his
superior officers, plaintiff faces an even greater burden than a
typical government employee in establishing that his and the
public’s interest in disseminating his “news release” outweighs
defendants’ and the public’s interest in suppressing it. He
cannot overcome this burden.
It seems clear that plaintiff's bitter public criticism. of three
superior officers (Amesqua, Holtz, and the investigator, Spohn)
could have a negative effect on firefighter unit cohesion, an
essential factor in the safe and effective performance of duties.
See Campbell, 99 F.3d at 830 (7th Cir. 1996) (noting that
police officer’s criticism of chief could disrupt “departmental
discipline and cohesion”); Janusaitis, 607 F.2d at 26 (noting
that firefighter’s criticism could impair common loyalty upon
which unit depends to act effectively when lives are at stake);
see also Shands, 993 F.2d at 1345 (“[W]here the fire chief does
not closely supervise those under his command, personal
loyalty to the chiefis critical tothe management structure of the
fire department.”). The nature of a firefighter’s duties depends
upon loyalty and confidence; biting public Criticism that calls
loyalty and confidence into question may severely hamper both
the orderly operation and efficiency of services and the
48a
employee’s ability to perform his or her duties.
Beyond simply criticizing superior officers, plaintiff's
decision to state publicly that two of his superior officers are
homosexuals interferes with intensely personal interests in a
manner likely to cause lingering anger and resentment among
those officers an other co-workers. A residue of personal
animus among firefighters is incompatible with the safe and
effective deliver of public services. See Mings, 813 f.2d at 389
(continued presence of employee who expressed hostile attitude
toward Hispanic co-workers and supervisors likely to disrupt
operation of agency).
In addition, the news release’s derogatory tone toward
homosexuals in general may cause fear among the public
plaintiff was hired to serve that the safety of some of its
members is more important to him than the safety of others. See
id. (fear that border patrol agent hostile to Hispanics might
show less respect for their rights). “The public knows that its
protectors have a private agenda; everyone does. But it would
like to think that they leave that agenda at home while they are
on duty.” Rodriguez v. City of Chicago, 156 R.3d 771, 779 (7th
Cir. 1998) (Posner, C.J., concurring). In publicly insinuating
that there was a “radical” homosexual conspiracy afoot among
is superiors, plaintiff publicly mixed apparent personal biases
with professional interest in a manner likely to cause the public
to wonder whether he had left his private agenda at home while
on duty. This does not imply that plaintiff actually displayed
aversion toward homosexuals in the performance of his duties.
Rather, it suggests that defendants could have had a legitimate
fear that plaintiff's actions would undermine confidence in the
department in a portion of the public it is intended to serve.
There can be no doubt that the fire department has a significant
interest in preventing employee speech that so undermines the
department’s mission.
49a
Against defendants’ particularly acute interests in preventing
both disruption in a workplace where cohesion is especially
paramount and the erosion of public confidence in a department
designed to instill public confidence, plaintiffs interest in
disseminating his news release is relatively insubstantial. The
incident discussed in the news release was widely known
before plaintiff's news release reached the newspapers.
Plaintiff's news release added nothing to the public debate
other than an insinuation that the investigation was a sham
because of Amesqua’s and Holtz’s allegedly shared sexual
orientation and “agenda.” Compared to defendants’ interests in
maintaining firefighter cohesion and public confidence,
plaintiff's interest in disseminating such speech is minimal at
best. In short, the potentially disruptive effect of plaintiff s
news release substantially outweighed plaintiffs private
interest in disseminating it. Therefore, plaintiffs speech was
not entitled to protection under the First Amendment. See
Weicherding, 160 F.3d at 1144.
B. Due Process
The right to due process is absolute and does not depend
upon the merits of plaintiff's First Amendment claim. See
Carey v. Piphus, 435 U.S. 247, 266-67 (1977); Babcock v._
White, 102 F.3d 267, 271 (1996). Therefore, plaintiff's due
process claims must be addressed despite the conclusion that
his speech was not protected by the First Amendment.
Obviously, whether plaintiff's due process rights were violated
depends entirely on whether the actual process plaintiff
received was the process due him. Plaintiff alleges that he was
denied both substantive and procedural due process in violation
of the Fourteenth Amendment.
The due process clause of the Fourteenth Amendment has
come to embody two related but distinct concepts: procedural
50a
due process and substantive due process. Procedural due
process guarantees persons a fair decisionmaking process
before a state deprives them of life, liberty or property.
Procedural due process is unconcerned with outcomes: as long
as fair decisionmaking processes are offered, procedural due
process is satisfied. By contrast, substantive due process is
concerned with results. Rather than guaranteeing an individual
the right to a fair decisionmaking procedure, substantive due
process prevents the state from taking certain actions even if it
does provide procedural safeguards.
1. Substantive due process
Plaintiff's allegation that he was denied substantive due
process stems from defendant commission’s allegedly arbitrary
and capricious decision not to investigate the truth of plaintiffs
allegations before disciplining him. However, plaintiff cannot
raise a substantive due process claim if “a particular part of the
constitution ‘provides an explicit textual source of
constitutional protection against a particular sort of government
behavior.”” Schacht v. Wisconsin Dep't of Corrections, 1999
WL 2245667, *3 (7th Cir. 1999)(citations omitted). As in
Schacht, plaintiff s substantive due process claim fits “squarely
within our established procedural due process jurisprudence,”
because in essence it is a claim that he received an unfair
hearing. Jd. at *4. Therefore, plaintiff cannot raise a substantive
due process claim on these grounds. See id. Moreover, to the
extent that plaintiff is asserting he was denied a fundamental
right by the commission’s decision not investigate the truth of
his allegations, that is simply a recycling of his previously
addressed First Amendment claim.
2. Procedural due process
“Before one may be deprived of a constitutionally protected
Sla
property interest in one’s public employment...due process
requires that a pretermination hearing be held.” Cleveland Bd
Of Educ. v. Loudermill, 470 U.S. 532 (1985). Though
necessary, such hearings “need not be elaborate.” Jd. at 545. “In
general, ‘something less’ than a full evidentiary hearing is
sufficient prior to adverse administrative action.” Jd. (citing
Mathews v. Eldridge, 424 U.S. 319, 343 (1976)). The
pretermination hearing need not definitively resolve the
propriety of the discharge; rather, it should be an initial check
to insure there are reasonable grounds to believe the charges
against the employee and that they support the proposed action.
See id. at 545-46. “To require more than this prior to
_ termination would intrude to an unwarranted extent on the
government's interest in quickly removing an unsatisfactory
employee.” Jd.
The parties agree that plaintiff had a protected property
interest in his employment. The question is whether plaintiff
received the process due him. Before his termination, plaintiff
received an evidentiary hearing before the five-member police
and fire commission that took place over seven months on ei ght
separate days and lasted more than twenty-two hours. Plaintiff
was represented by counsel. Plaintiff was permitted to present
testamentary and documentary evidence and to cross examine
witnesses who testified against him. Plaintiff was permitted to
make an opening statement and to make a closing argument.
Although plaintiff admits that he received “the basic formalities
of procedural due process,” he nonetheless asserts several
reasons why he believes he did not receive the process he was
due before his termination.
a. Unfair predetermination hearing
Prior to his termination hearings, plaintiff was given a
pretermination hearing before assistant Chief Saxe. Attendance
52a
at the hearing was mandatory and plaintiff could not call
witnesses, ask his own question, review witness statements or
cross examine witnesses. Plaintiff was asked a series of
questions designed to elicit a description of the circumstances
surrounding his issuance of the news release. From the
information gathered at this hearing, Saxe reported to Amesqua
that he believed plaintiff had violated departmental rules.
However, plaintiff was not terminated as a result of the
pretermination hearing. Rather, he was suspended with full pay
pending his full hearing before the commission. Even if the
pretermination hearing were unfair (and there is certainly not
enough evidence to suggest that it was), it did not violate due
process because plaintiff was not deprived of a property interest
- as the result of it. See Loudermill, 455 U.S. at 524 (due process
requires “some kind of hearing” prior to discharge of employee
who has constitutionally protected property interest in
employment).
b. Biased decision makers
Plaintiff argues that three of the commissioners (defendants
Seeger, MacMurray and Bishop) should have recused
themselves from his hearing because they participated in the
decision to hire Amesqua, resulting in a lawsuit against them
alleging discrimination based on gender and sexual orientation.
Because of this, plaintiff argues, defendants had a “personal,
official, and potential financial interest in the issue of
Amesqua’s illegal activity” and therefore were too biased to
provide him with a fair hearing. In addition, defendants
participated in the earlier decision to discipline plaintiff for
distributing anti-homosexual literature at a fire station and
warned him then that they were not optimistic that his behavior
would change but theat they were “confident that his Board will
not suspend him again.” Plaintiff asserts that this cryptic threat
to fire him for further disruptions establishes that defendants
\
53a
had predetermined his case. In addition, plaintiff had criticized
defendants publicly before his hearing.
A fair and impartial decision maker is a requirement of
procedural due process. Withrow vy. Larkin, 421 U.S. 35, 46,
(1975). This requirement is denied when an administrative
decision maker performing a quasi-judicial function has a
" nal or financial stake” in the outcome that creates an
unacceptably high probability of bias. Hortonville Joint She
Dist. No. 1 v. Hortonville Ed Assoc., 426 U.S. 482, 491-92
(1975). However administrative adjudicators are entitled to a
strong presumption of “honesty and integrity” that a plaintiff
alleging unconstitutional bias must overcome. Withrow, 421
US. at 46.
In Hortonville, plaintiff school teachers went on strike when
negotiations with the local school board failed and were fired
by the school board following disciplinary hearings. The
teachers sued, arguing that they were deprived of procedural
due process because their adjudicators were also their
adversaries in the very contest that led to the disciplinary
hearings. The Supreme court rejected the teachers’ argument,
holding that “familiarity with the facts of the case gained by an
agency in performance of its statutory role does not disqualify
a decisionmaker.” J/d.at 497. Moreover, the court held that the
fact that the board members had taken public positions on
issues related to the dispute prior to the hearings did not
disqualify them “in the absence of a showing that [the decision
maker] is not capable of judging a particular controversy fairly
on the basis of its own circumstances.” Jd at 493; see also
Withrow, 421 U.S. at 48-49; Federal Trade com. V. Cement
Institute, 333 U.S. 683 (1948).
Like the school board members in Hortonville, defendants
are entitled to a presumption of honesty and integrity despite
\
54a
their involvement in Amesqua’s hiring and plaintiffs prior
discipline. Like the plaintiffs in Hortonville, plaintiff offers no
factual evidence of bias. He does not explain how the outcome
of his case could put defendants in personal, professional or
financial risk because of the lawsuit they faced related to their
decision to hire Amesqua. Obviously, whether plaintiff's news
release was protected by the First Amendment had nothing to
do with whether defendants decided to hire Amesqua years
earlier in reliance on impermissible characteristics.
Similarly, plaintiffs allegation that defendants had
prejudged his case is simply without evidence or merit. It is
true that defendants had warned plaintiff he would be fired for
his next serous disruption. Far from depriving him of due
process, that warning actual placed plaintiff on heightened
notice. Moreover, the length and elaborateness of the
proceedings that led to his dismissal indicates that defendants
had not prejudged plaintiff's case. Indeed, the record indicates
\ that defendants considered carefully whether plaintiff s speech
~ ‘was protected by the First Amendment before taking action
against him despite their earlier warning that plaintiff would
not be suspended again. With absolutely no evidence of
unconstitutional bias in fact and strong evidence of a careful
and deliberative process, plaintiff cannot overcome the heavy
presumption of honesty and integrity to which defendant
administrative decisonmakers are entitled.
c. Lack of notice because of vagueness of rules and selective
enforcement
Plaintiff argues that given the vagueness of the rules he was
found to have violated he had no notice that his news release
would violate them. It is true that due process is violated if a
rule is so vague that persons “of common intelligence must
necessarily guess at its meaning and differ as to its application”
55a
and therefore fails to provide notice of what is prohibited.
Connally v. General Const. Co.,269 U.S. 385, 391 (1926); see
also Grayned v. City of Rockford, 408 U. S. 104, 108 (1972).
However, plaintiff fails entirely to address or explain how the
individual rules he was found to have violated are so vague that
their meaning must be guessed at by persons of common
intelligence. He cites no decisions construing similar rules.
“Arguments that are not developed in any meaningful way are
waived.” Central State, Southeast and Southwest Areas
Pension Fund v. Midwest Motor Express, Inc., 1999 WL
361671, *7 (7th Cir. 1999); see also Finance Investment Co.
(Bermuda) Ltd. v. Geberit AG, 165 F.3d.526, 528 (7th Cir.
1998); Colburn v. Trustees of Indiana University, 973 F.2d
581, 593 (7th Cir. 1992) (“[plaintiffs] cannot leave it to this
court to scour the record in search of factual or legal support for
this claim); Freeman United Coal Mining Co. v. Office of
_ Workers’ Compensation Programs, Benefits Review Board,
957 F.2d 302, 305 (7th Cir. 1992) (court has not obligation to
consider an issue that is merely raised, but not developed, in a
party’s brief.”).
Plaintiff also argues that these rules have been applied so
inconsistently that he was deprived of notice that distribution
of the news release would violate them. Plaintiff offers several
examples of employee speech criticizing the department that he
Says went unpunished. But almost all of the examples plaintiff
provides occurred under a different administration. The only
examples of employee speech he provides that occurred during
chief Amesqua’s administration are a speech by Amesqua
herself and comments regarding the Holtz/Cato incident made
by the local firefighters union president, Conway, critical of the
incident but not alleging favoritism based on sexual orientation
or coverup. Plaintiff cites no case law in support of the
proposition that a previous superior officer’s decision not to
enforce departmental rules deprives employees of notice that
56a
those rules may be enforced by a new supervisor. Further,
comparison to comments made by Conway is misleading
because those comments neither included allegations of
wrongdoing nor stated anyone’s sexual orientation, both factors
that led to plaintiff's discipline. Finally, as plaintiff himself
states, he had been disciplined previously by defendant
commission on similar grounds and warned that his next
discipline would be more sever. Therefore, he cannot prevail on
his argument that he was without notice that the rules would be
enforced.
d. Denial of opportunity to respond because of commission’s
reliance on extra-record evidence
Plaintiff contends that defendant commission violated his
right to due process by relying on his prior disciplinary record
without giving him an opportunity to present evidence that his
prior discipline was unjustified. At least some of plaintiff's
prior discipline was apparently meted out by the commission
itself after hearings similar to the one he received after the news
release. Plaintiff offers no support for the remarkable
proposition that an employer is required to re-open the
proceedings of every previous disciplinary hearing in order to
take account of the employee’s record in determining his
knowledge of workplace rules and the appropriate discipline for
a new offense.
Plaintiff cites Kaczmarczyk v. Immigration and
Naturalization Service, 933 F.2d 588 (7th Cir. 1991), to
support the argument that he was denied due process when he
was not permitted to rebut defendants’ notice of his
employment record, including prior discipline. In Kaczmarczyk,
the Board of Immigration Appeals took official notice that
circumstances in Poland had changed so that members of the
political organization Solidarity were no longer being
57a
persecuted. The court of appeals hed that the due process clause
of the Fifth Amendment required that asylum seekers be
allowed the opportunity to rebut officially noticed facts. This
critical difference renders Kaczmarczyk- inapplicable to
plaintiff's case. Defendant commission did not violate
plaintiff's due process rights when it decided to take notice of
plaintiff's prior disciplinary record without allowing him to
rebut the disciplinary decisions described in the record.
C. Equal Protection
An equal protection violation occurs when different legal
standards are applied to similarly situated individuals because
of their membership in a suspect class or “definable minority”
or because of the exercise of a fundamental right. Nabozny v.
Podlesny, 92 F.3d 446, 457 (7th Cir. 1996); see also Smith on
behalf of Smith v. Severn, 129 F.3d 419, 429 (7th Cir. 1997). If
a plaintiff demonstrates that he was treated differently from
similarly situated persons because of his membership in a
suspect class, then the court applies some form of heightened
scrutiny depending upon the suspect class alleged. See
Nabozny, 92 F.3d at 454. However, dissimilar treatment of
dissimilarly situated persons does not violate the equal
protection clause. See Keevan v. Smith, 100 F.3d 644, 648 (8th
Cir. 1996).
Plaintiff contends that, as a male heterosexual, he was
treated differently for complaining about favoritism based on
sexual orientation in the department from a “similarly situated’
class...composed of those firefighters who have publicly
questioned or accused the Department command staff regarding
improper favoritism, whether based on race, gender, religion,
national origin, sexual orientation or any other characteristic
prohibited by law or collective bargaining ‘agreement.”
Although neither males nor heterosexuals are a “definable
58a
minority,” the equal protection clause prohibits disparate
treatment of similarly situated persons based upon gender and
sexual orientation under a heightened scrutiny and rational
basis standard of review, respectively. See Nabozny, 92 F.3d at
454. However, plaintiff must first demonstrate that he is
similarly situated to persons who do not share those
characteristics who were not punished.
Plaintiff provides examples of other Suilebeen who do not
share his characteristics who alleged favoritism in the
department _ut apparently were not disciplined. However, he
provides no examples of other firefighters-regardless of
characteristics-who interfered with the intensely personal
interests of their superior officers by stating their alleged sexual
orientations in a news release. Further, he provides no example
of other firefighters who alleged that their superior officers
engaged in a fraudulent disciplinary investigation and
deliberately attempted to conceal wrongdoing. Further, he
provides no information regarding the previous disciplinary
records of other firefighters who alleged favoritism, a factor
that even plaintiff insist was critical to his discipline in this
case. Therefore, plaintiff has not demonstrated a class of
similarly situated persons. See Smith, 129 F.3d at 428. Because
dissimilar treatment of dissimilarly situated persons does not
violate the equal protection clause, see Keevan, 100 F.3d at
648, plaintiff's equal protection claim fails.
ORDER
IT IS ORDERED that:
1. The motion of defendants Debra H. Amesqua, Alan
Seeger, Margaret MacMurray, Byron Bishop, Lynn Hobie,
Mario Mendoza, The City of Madison Fire Department, The
City of Madison, The City of /Madison Police & Fire
_—_—..
59a
Commission, and Wisconsin Municipal Mutual Insurance
Company for summary judgment is GRANTED; and
2. The motion of plaintiff Ronnie B. Greer for summary
judgment is DENIED; and
3. The clerk of court is directed to enter judgment for
defendants and close this case.
Entered this 21* day of June, 1999.
BY THE COURT:
/s/
BARBARA B. CRABB
60a
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN.
No. 98-C-0560-C.
RONNIE B. GREER,
Plaintiff,
v.
DEBRA H. AMESQUA, ALAN SEEGER, MARGARET
MACMURRAY, BYRON BISHOP, LYNN HOBBIE, MARIO
MENDOZA, THE CITY OF MADISON FIRE DEPARTMENT, THE
CITY OF MADISON, THE CITY OF MADISON POLICE & FIRE
COMMISSION, AND WISCONSIN MUNICIPAL MUTUAL
INSURANCE COMPANY,
Defendants.
OPINION AND ORDER
CRABB, District Judge.
Two Supreme Court decisions, Connick v. Myers, 461 U.S.
138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), and Pickering v.
Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d
811 (1968), establish a principle that a public employee is
entitled to First Amendment protection for speech that is a
matter of public concern provided that the employee's interest
in expressing a view on the subject outweighs the harm to a
public employer that can result when an employee speaks his
or her mind. Connick and Pickering recognize that the public
BEST AVAILABLE COPY’
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employee's free speech rights and the public's interest in having
public employees speak out on the operations of government
must be balanced against the need of public employers to
maintain order in the workplace so as to be able to serve the
public effectively and efficiently.
Plaintiff Ronnie B. Greer was discharged from his position
as a City of Madison firefighter because of statements he made
about the fire chief and another command officer in a self-
styled "news release" entitled "Homosexual Chief rewards
Homosexual Chief for Assault?" Plaintiff contends that his
discharge violated the First Amendment because under Connick
and Pickering, his news release was a matter of public concern
and his free speech interests outweighed any injury to the
interests of the fire department. Asserting that the harm to his
First Amendment rights is irreparable, plaintiff seeks an
injunction requiring his immediate reinstatement.
The request for preliminary injunctive relief will be denied
because plaintiff has not shown that he is likely to succeed on
the merits of his claim, which is one of the threshold burdens
he must meet to be entitled to preliminary injunctive relief. The
news release discusses alleged favoritism by the chief toward
another command officer because of allegedly shared personal
and professional beliefs and sexual orientation. Although
defendants contend that plaintiff's news release must be viewed
as just part of an "ongoing dispute" plaintiff has with the fire
chief, the factual record is too undeveloped at this stage to
justify such a conclusion. Because official wrongdoing of the
Sort alleged in the news release is a matter traditionally
recognized to be of public concern, for the sole purpose of
determining whether plaintiff is entitled to preliminary
injunctive relief, I find that the news release raises a matter of
public concern.
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However, Connick and Pickering establish that even when
a public employee speaks out on a matter of public concern, the
speech may jeopardize working relationships among public
employees and impair the delivery of governmental services.
Thus, the public employer's interest in taking action against the
employee may outweigh the employee's free speech rights. I
conclude that defendants are likely to show that the fire
department has a strong interest in controlling firefighters who
make public challenges to the decision making of the chief and
speculate publicly about the sexual orientation of command
officers and that this interest outweighs plaintiff's free speech
interests embodied in his news release. Because of the strong
probability that defendants will be able to show that the
department's interests outweigh plaintiff's, I conclude that
plaintiff has not met his threshold burden of demonstrating a
likelihood of success on the merits of his First Amendment
claim.
Before turning to the facts and legal analysis, it is necessary
to address several issues concerning the scope and nature of
proceedings before this court and the evidentiary record. Under
Wisconsin law, a person disciplined by a police and fire
commission is entitled to judicial review of the commission's
decision. See Wis. Stat. § 62.13(5)(i). Plaintiff's right to have
his discharge reviewed in state court has had two effects on this
litigation so far. First, it underlies defendants’ arguments that,
pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27
L.Ed.2d 669 (1971), this court should abstain from ruling on
plaintiffs motion for a preliminary injunction to avoid
interfering with ongoing state proceedings and that disputes
concerning plaintiff's discharge are not yet "ripe" for Article III
purposes. However, the ten-day time limit in which plaintiff
could have sought state court judicial review has expired. At
the August 18, 1998, hearing in this matter, plaintiff stated that
he had abandoned his right to such review. Therefore, there is
63a
no need to consider defendants' Younger abstention and
ripeness arguments.
Second, plaintiff's right to state court review has influenced
the parties' evidentiary presentations and legal arguments.
Plaintiff devotes attention to alleged errors in the commission
proceedings. Defendants assert that the commission's decision
is well-supported. If the parties believe that this court will
review the commission's decision in the same manner that a
State court would under Wis. Stat. § 62.13(5)(i), they are
wrong. The issue before this court is whether plaintiff's
discharge violated the Constitution, not whether it comported
with state law. There will be no opportunity for the parties to
retry matters heard by the commission. Arguments to that effect
have been disregarded.
Next, the constitutional issues material to plaintiff's motion
for preliminary injunctive relief must be identified. This action
is brought pursuant to 42 U.S.C. § 1983. The complaint alleges
three causes of action: 1) violation of plaintiff's First
Amendment rights resulting from his discharge for statements
made in the news release; 2) denial of plaintiff's right to due
process of law in the hearings leading to his discharge; and 3)
violation of plaintiffs equal protection rights when other
firefighters who committed more serious infractions received
lighter sanctions. Plaintiff contends that each of these three
causes of action warrants injunctive relief requiring his
immediate reinstatement, but at the hearing in this matter he
conceded that the sole harm to be remedied by his immediate
reinstatement is the alleged infringement of his First
Amendment rights. He contends that an award of back pay and
reinstatement after trial could not compensate him for the
interim harm to his First Amendment rights. From plaintiffs
concession, it is apparent that his due process and equal
protection claims are not material to his current request; any
64a
violation of those rights may be remedied with back pay and
reinstatement after trial. Plaintiffs motion for preliminary
injunctive relief will be confined to his contention that his news
release was protected by the First Amendment and that it was
unconstitutional for the department to discharge him for issuing
it. Whether commission proceedings violated his due process
rights and whether discharge was disproportionately severe in
violation of equal protection principles are matters reserved for
consideration at a larger stage of this litigation.
Finally, the sources of the factual findings must be
discussed. In support of his motion for a preliminary injunction,
plaintiff has proposed findings of fact that are supported by a
few affidavits and numerous exhibits that were used in the
commission proceedings. Defendants have filed a response to
plaintiffs proposed findings of fact in which they refer to
affidavits filed in this court as well as to plaintiff's exhibits.
This court's Procedure to be Followed on Motions for
Injunctive Relief contemplates that only evidence that is the
subject of a proposed finding of fact will be considered in the
analysis. See Procedure to be Followed on Motions for
Injunctive Relief, ff I1.A.2, III.A.2 (movant's and respondent's
obligations). Although no party has indicated that the process
of submitting proposed findings of fact is inadequate and that
an evidentiary hearing is necessary, plaintiff and defendants
both discuss evidence in their briefs that is not the subject of a
proposed finding of fact. I understand them to be extending an
invitation to the court to review and consider the bulky exhibits
and affidavits that are outside the proposed findings of fact and
make findings from the record as a whole. This court's
procedure makes clear that such invitations will be declined.
See id. | III.C ("This court does not consider that it is under any
obligation to search the record for factual matters that might
support either the grant or the denial of the motion.").
65a
Plaintiff's proposed findings of fact and defendants' response
reveal the following undisputed facts material to plaintiff's First
Amendment claim.
UNDISPUTED FACTS
A. The Parties
Defendant City of Madison is a Wisconsin municipal
corporation. Defendant City of Madison Fire Department is a
fire department organized under Wisconsin law. Defendant
City of Madison Police and Fire Commission is a city
commission organized under Wisconsin law. Defendant Debra
H. Amesqua is Fire Chief for defendant City of Madison.
Defendants Alan Seeger, Margaret MacMurray, Byron Bishop,
Lynn Hobbie and Mario Mendoza are members of defendant
City of Madison Police and Fire Commission. Defendant "ABC
Insurance Company" is the presently unknown firm that
provides insurance coverage to defendant City of Madison.
Plaintiff Ronnie B. Greer was employed as a firefighter with
the City of Madison Fire Department from February 4, 1981,
until July 31, 1998, when he was terminated by order of the
police and fire commission.
B. Events Leading to Plaintiff's News Release
In January 1996, defendant Amesqua was hired as the new
chief of the department. Shortly after her appointment,
Amesqua promoted Marcia Holtz from lieutenant to Division
Chief in Charge of Training. On October 3, 1996, a local
television station broadcast a fire training session as part of a
story about the training of Madison firefighters. In the report,
Holtz is seen to shove, hit and yell at a recruit named Ron Cato.
Although the propriety of Holtz's conduct towards Cato was
66a
not a topic of the television report, members of the department
who happened to watch the news program questioned Holtz's
behavior. In a letter dated November 11, 1996, the president of
the local firefighters union, Lt. Joseph P. Conway, asked
Amesqua to order an independent investigation by the City of
Madison attorney because he believed that Holtz's conduct had
violated several department rules. Conway advised Amesqua
that he had spoken to other recruits and that his conversations
led him to believe that Holtz had treated other recruits in the
same way she treated Cato. Conway urged that Holtz be
suspended during the investigation. In response, Amesqua
assigned Assistant Chief Bill Spohn to investigate Holtz's
conduct.
Amesqua released her findings on the Holtz investigation in
an internal memorandum dated April 9, 1997. In the
memorandum, Amesqua notes that Holtz had reported that she
was uncomfortable with her treatment of Cato because she had
never taken such extraordinary measures. On the basis of this
statement and other facts, Amesqua found that Holtz's actions
were "not unreasonable under the totality of the circumstances,"
although she extended Holtz's probation by six months and
ordered her to participate in a leadership class.
C. Plaintiff's News Release
On April 28, 1997, approximately three weeks after
Amesqua released the internal memorandum, plaintiff issued a
"news release" that reads in full as follows:
~ News Release
Homosexual Chief rewards Homosexual Chief for Assault?
Fire Chief Debra Amesqua issued a decision on the
67a
investigation of an incident involving Training Chief
Marcia Holtz and a fired firefighter trainee. In the
incident, recorded by WMTV News-15 in October 1996,
Chief Holtz shoved and screamed at the trainee during a
training exercise. An investigation was ordered and a
decision based on the investigation was issued on April
9, 1997. It is Chief Amesqua's conclusion that the
“questionable measures" (shoving & screaming) used by
chief Holtz were not "unreasonable," and that she simply
“needs further guidance and training." That training is to
be accomplished by "attending an advance leadership
class," a training program which is coveted by other chief
officers to the extent that there is a "waiting list" to get
in! She has also called for a 6 month extension of chief
Holtz's probationary period, something she (Chief Holtz)
herself appears to have suggested.
Now this would be laughable [if] it were not such a
serious matter. A senior officer in essence, physically and
verbally assaults an employee and Chief Amesqua finds
that "not unreasonable" and that her screaming was
“professional in content and germane". In over 17 years
of firefighting with both experienced and non-
experience[d] firefighters, I don't believe I've ever seen
a Situation where it was necessary to physically assault
anyone to get their attention or to instruct them. Granted
it is often necessary to make physical contact in a fire
situation to initiate communication with another
firefighter, but never to the extent as we have seen in this
incident. So what's so special or different about this case?
I said in October that this matter would be "down
played", "swept over" and nothing significant would be
done about it. A lot of my fellow firefighters doubted my
"prediction." Well, time has "told the story." One does
not need to be a-prophet, just someone willing to see
68a
things as they are.
Consider the following. One would think that if you
wanted to achieve clear facts in investigating a matter of
this type it would be only proper to have that
investigation done by an independant, disinterested party.
However, that is not the case here. The investigation was
done by another Division Chief who is subordinate to
Chief Amesqua and a staff member with Division Chief
Holtz. Is it possible that the investigating officer could
have been unduly influenced? Or could the conclusions
of the investigation be simply disregarded without
opposition by that subordinate?
The relationship between Chief Amesqua and Chief
Holtz goes back a ways, namely through their affiliation
with an organization called "Women In Fire [Service]",
an organization seen by most firefighters in this area as
a predominatly homosexual organization. Is it possible
that some favoritism has been shown here to a fellow
member or possible friend?
Both are homosexual women, who have been seen in the
past (and still now among many), with clear agendas as
it is concerns women in the fire service. Could it be that
their radical agendas has come to play to the extent that
even violence can be excused as "glossed over," or in this
case, rewarded? Sounds a lot like the much assailed
"good-ol-boy" system revived, repainted and given
another name.
Now, I'm confused and maybe someone could make
sense of this for me; It's not okay to communicate
verbally my views on a department chief officer's
handling an issue but it's okay to use physical force to
69a
communicate with a trainee? Maybe I'm missing
something!
The department/city is willing to spend thousands of
dollars on a case of an alleged comment without proof,
on alleged harassment without a complaint or proof, and
on an alleged rule violation without action or proof,_but
"winks" at and rewards physical assault?
Another firefighter is given a disciplinary letter and has
the same placed in his employment file because he made
a remark regarding homosexuals. He was "off-duty" and
happened to stop by the fire station. A letter of
discipline?
A fire officer is facing a 12 hour suspension for angrily
making comments to a uniform delievery driver whom he
is familiar with. A 12 hour suspension?
But yet, it's not unreasonable for a chief officer in anger
to physically handle an employee? Imagine if it were a
white male chief officer showing and screaming at a
female recruit. Heads would have rolled! So much for
fair treatment and equity! Go figure.
Oh, by the way, that male trainee who was the victim, he
was mysteriously "let-go" literally days before graduating
from the fire academy. Makes you go, "Hmm."
/s/ Just sharing my thoughts with you all.
The case of alleged sexual harassment plaintiff mentions in
the seventh paragraph is one involving his distribution of anti-
gay literature entitled "Homosexuality: The Truth."
(Disciplinary charges in the matter were initiated against
70a
plaintiff by Amesqua in December 1996.) Also, it is worth
noting that Amesqua has not revealed her sexual orientation
publicly.
Portions of plaintiff's news release were quoted in a May 1,
1997 article in the Capital Times, which states, in part:
Greer says fire chief plays gay games
Raps treatment of woman in shoving incident
*e£ ee K *
Madison firefighter Ron Greer has lobbed another
Molotov cocktail at his boss, this time accusing Fire
Chief Debra Amesqua of meting out lax discipline to a
female assistant fire chief.
He also insinuates that it's a lesbian conspiracy. |
In a press release titled "Homosexual chief rewards |
homosexual chief for assault?" Greer implies that
Amesqua showed favoritism in an investigation of |
Assistant Chief Marcia Holtz. 7 |
Holtz was accused of using excessive force on a recruit |
during a live fire training exercise last October. |
Neither Amesqua nor Holtz has said anything publicly
about their sexual orientations, whether they're gay or
straight.
The discipline for Holtz, recently made public, is a six-
month extension of Holtz's probation and a requirement
that she attend an advanced leadership class. Greer
criticizes the sanction, saying that getting to attend a
leadership class is a highly sought-after perk, not a
penalty.
Tla
*e eke * *
Greer, a pastor of a conservative Christian church, has
become an anti-gay crusader. He has attacked the chief
publicly ever since she came to Madison in January
1996.
Saying Amesqua was unqualified, Greer carried a protest
sign when she was sworn in.
Greer himself is facing discipline for insubordination and
for handing out anti-gay literature at work. The Madison
Police and Fire Commission held roughly 20 hours of
hearings on Greer's case and is expected to rule in a few
months.
Holtz provided the spark for the latest Greer-Amesqua
flap.
**£ £4 * *
D. The Department's Response
Following plaintiff's issuance of the news release, Amesqua
initiated an investigation into whether plaintiff had violated
department rules. She directed Assistant Chief Carl Saxe to
conduct a pre-determination hearing. Saxe reported to Amesqua
that in his view, plaintiff had violated various department rules.
In a letter dated June 10, 1997, Amesqua informed plaintiff
that she believed he had committed rule violations that included
disseminating a communication with the intent to discredit
supervisors and the department and violating the department's
rule against harassment of employees on the basis of sexual
orientation. Amesqua asked for plaintiff's resignation and told
72a
him that if he did not resign, she would seek his termination
before the police and fire commission.
Plaintiff did not resign and Amesqua filed charges. After
extensive hearings, the commission concluded that plaintiff's
dissemination of the news release violated department rules and
that his termination was warranted. In a decision dated July 31,
1998, the commission ordered that plaintiff be discharged.
OPINION
A. Preliminary Injunction Standard
The standard applied to determine whether plaintiff is
entitled to preliminary injunctive relief is well established.
A district court must consider four factors in deciding
whether a preliminary injunction should be granted.
These factors are: 1) whether the plaintiff has a
reasonable likelihood of success on the merits; 2)
whether the plaintiff will have an adequate remedy at law
or will be irreparably harmed if the injunction does not
issue; 3) whether the threatened injury to the plaintiff
outweighs the threatened harm an injunction may inflict
on defendant; and 4) whether the granting of a
preliminary injunction will disserve the public interest.
Pelfresne v. Village of Williams Bay, 865 F.2d 877, 882 (7th
Cir.1989). The plaintiff must show some likelihood of success
on the merits and that irreparable harm will result if the
requested relief is denied. If the plaintiff makes both showings,
the court then moves on to balance the relative harms and
public interest, considering all four factors under a "sliding
scale" approach. See In re Forty-Eight Insulations, Inc., 115
F.3d 1294, 1300-01 (7th Cir.1997).
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B. Irreparable Harm
At the outset, defendants argue that plaintiff's motion must
be denied because he cannot satisfy the second threshold of
establishing irreparable harm. It is plaintiff's contention that
because his discharge implicates First Amendment rights,
irreparable harm must be presumed if he succeeds in
demonstrating a likelihood of success on the merits of his free
speech claim. In support, he relies on the Seventh Circuit's and
the Supreme Court's decisions in the Elrod v. Burns litigation.
See Burns v. Elrod, 509 F.2d 1133 (7th Cir.1975), affd sub
nom. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d
547 (1976).
Elrod v. Burns involved several former employees and one
current employee of the Cook County, Illinois sheriff's
department who alleged that they had been discharged or were
under a threat of discharge solely because of their political
affiliation. After an election, the new Democratic sheriff
decided to remove Republicans from the department or force
them either to join or sponsor the Democratic Party. See Burns,
509 F.2d at 1134-35. The district court denied the employees’
request for preliminary injunctive relief after determining that
back pay provided an adequate legal remedy; in other words,
there was no irreparable harm.
The court of appeals rejected the district court's reasoning,
ruling that more than a loss of employment was at stake:
“Inasmuch as this case involves First Amendment rights of
association which must be carefully guarded against
infringement by public office holders, we judge that injunctive
relief is clearly appropriate in these cases." Burns, 509 F.2d at
1136. When the Supreme Court took the case, it agreed with
the court of appeals’ assessment that the employees had
experienced irreparable harm. The Court stated: "The loss of
74a
First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury." Elrod, 427 U.S.
at 373, 96 S.Ct. 2673.
Plaintiff contends that the rationale of E/rod v. Burns applies
in this case and that he is not required to make any showing of
irreparable harm. In his view, this court should concentrate on
the merits of his claim. If he demonstrates a likelihood that his
First Amendment rights have been violated, he .s entitled
automatically to a presumption of irreparable harm curable by
an order requiring his reinstatement.
Defendants contend that plaintiff misinterprets the Supreme
Court's decision in the Elrod v. Burns litigation and ignores
later case law. According to defendants, Elrod v. Burns was a
special case because it involved politically motivated
discharges. They argue that in Elrod, the Supreme Court did
not establish a rule that irreparable harm is presumed to exist
in all employment discharge cases implicating First
Amendment issues. Defendants support their argument with
cases from other circuits decided after Elrod that hold as a
general matter that no irreparable harm existed because back
pay was an adequate remedy. ;
Defendants’ strongest case is American Postal Workers
Union, AFL--CIO v. United States Postal Service, 766 F.2d 715
(2d Cir.1985), because it addresses Elrod directly. After the
postal service announced job cuts at his branch, an employee
wrote to a local customer and told the customer that its mail
was being delayed because of the job cuts. The postal service
found that the employee had violated regulations and
discharged him. Although the discharge was to be tested in
arbitration, the employee would not receive pay pending the
outcome of the proceeding. His union moved for a preliminary
injunction in federal court seeking to stay the discharge until
75a
the arbitration was completed, allowing the employee to
continue to collect his salary. The district court granted the
injunction. See id. at 717-19.
On appeal, the Second Circuit reversed the award of
injunctive relief on the ground that the plaintiff had not shown
he would experience irreparable harm. It is significant that the
“court rejected the union's argument that Elrod established a
presumption of irreparable harm in First Amendment claims.
See id. at 722. The court read Elrod to require the party seeking
injunctive relief to produce evidence showing that First
Amendment interests were " ‘threatened or in fact being
impaired at the time relief [is] sought.'" See American Postal
Workers, 766 F.2d at 722 (quoting Elrod, 427 U.S. at 373, 96
S.Ct. 2673). Finding that neither the employee's First
Amendment rights nor the rights of his fellow employees who
remained on the job were in jeopardy during the arbitration, the
court of appeals determined that the district court had erred in
granting the injunction. See American Postal Workers, 766
F.2d at 722; see also Rendish y. City of Tacoma, 123 F.3d
1216, 1226 (9th Cir.1997) ("In this circuit, no presumption of
irreparable harm arises in a First Amendment retaliation claim
..-."); Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir.1989) ("[T]he
assertion of First Amendment rights does not automatically
require a finding of irreparable injury, thus entitling a plaintiff
to a preliminary injunction if he shows a likelihood of success
on the merits."); but see Newsom v. Norris, 888 F.2d 371, 378
(6th Cir.1989) (rejecting argument that monetary damages and
reinstatement are adequate to remedy harm caused by
infringement of First Amendment rights). In addition to this
case law, defendants rely on logic: while a discharged
employee waits for trial, his or her First Amendment rights to
speak out are not in jeopardy because the employer has no
power to sanction the employee.
76a
Plaintiff replies that the cited cases and arguments are of no
moment. Indeed, he concedes that the Second Circuit's decision
in American Postal Workers is squarely against him. He argues,
however, that because the Seventh Circuit has not voiced a
similarly restrictive view of the Supreme Court's decision in
Elrod, this court remains bound to a broad view of Elrod, under
which a showing of infringement of First Amendment rights
results automatically in a presumption of irreparable injury in
any type of employment case, not just one involving political
employment.
Defendants' arguments concerning Elrod are persuasive, but
plaintiff is correct that a broad view of Elrod is still the rule in
the Seventh Circuit. The only Seventh Circuit case that touches
on this element of Elrod is Shondel v. McDermott, 775 F.2d
859 (7th Cir.1985), in which the court intimated that there
might be limits to Elrod but chose not to rule on the question.
Two employees complained that they were discharged for their
political affiliation in violation of First Amendment and sought
injunctive relief requiring their reinstatement. The court of
appeals held that the plaintiffs were not entitled to such relief
on other grounds, avoiding the issue of irreparable harm
altogether. See id. at 866.
Nonetheless, the court of appeals made two important
observations:
Elrod v. Burns holds that a litigant who asks for a
preliminary injunction to prevent a deprivation of free
speech need not show that he will be irreparably harmed
if the injunction is denied, because "the loss of First
Amendment freedoms, even for minimal amounts of
time, unquestionably constitutes irreparable injury."
Shondel, 775 F.2d at 866-67 (quoting Elrod, 427 U.S. at 373,
77a
96 S.Ct. 2673). Also, in a latter part of the opinion, the court
said: ;
The waiver by the Supreme Court in Elrod of proof of
irreparable harm in preliminary-injunction cases under
the First Amendment rests on the view that the balancing
of equities that is undertaken in a conventional equity
case is out of place in dealing with rights so important as
the modern Supreme Court considers the rights of
expression to be.
Id. at 869. There is only one conclusion that can be gleaned
from Shondel and from the lack of any case to the contrary: the
Seventh Circuit continues to interpret Elrod's waiver of the
requirement to make an explicit showing of irreparable harm as
applicable in all types of First Amendment discharge cases.
It is true that Shondel recognizes that neither court in the
Elrod v. Burns litigation discussed the remedy of immediate
reinstatement, as contrasted with preventing a threatened
discharge, and that Shondel hints that a claim for reinstatement
may be different from a claim to stave off a threatened
discharge (the difference being related to the accepted principle
that a preliminary injunction should preserve the status quo
pending final resolution of the law suit). See id. at 867. But
Shondel does not express any holding to such effect.
Accordingly, this court is bound by the broad construction of
Elrod advocated by plaintiff. If he meets his other threshold
burden of probability of success on the merits, he is entitled to
a presumption that he has been harmed irreparably.
C. Success on the Merits
Not every work-related utterance of a public employee is
protected by the First Amendment. In Connick v. Myers, 461
78a
U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the
Supreme Court held:
[W]hen 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 to review the wisdom of a personnel
decision taken by a public agency allegedly in reaction to
the employee's behavior.
However, when a public employee does speak on a matter
of public concern, Pickering v. Board of Education, 391 U.S.
563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), holds that the First
Amendment protects the employee from discipline, provided
the employee's interest in expressing such views is greater than
the state's interest in regulating employee conduct so that
services are delivered efficiently and effectively. See Waters v.
Churchill, 511 U.S. 661, 668, 114S.Ct. 1878, 128 L.Ed.2d 686
(1994) (citing Connick, 461 U.S. at 142, 103 S.Ct. 1684, and
Pickering, 391 U.S. at 568, 88 S.Ct. 1731).
Dishnow v. School District of Rib Lake, 77 F.3d 194, 197
(7th Cir.1996), holds that the analysis of free speech and state
interests involved in Connick and Pickering proceeds in a three
step sequence.
1. Would the speech be protected if it were uttered by
someone who was not a public employee? This determination
is straightforward. For example, a person who is a public
employee has no special First Amendment right to falsely shout
fire in a theater. Cf Schenck v. United States, 249 U.S. 47, 52,
39 S.Ct. 247, 63 L.Ed. 470 (1919).
2. Is the speech a matter of public concern or is it the
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rumblings of a "disgruntled employee whose statements are
primarily of personal interest?" See Colburn vy. Trustees of
Indiana University, 973 F.2d 581, 585 (7th Cir.1992) (citing
Connick, 461 U.S. at 147, 103 S.Ct. 1684). The nature of the
employee's speech is a legal question to be answered by the
trial judge. See Marshall v. Porter County Plan Comm'n, 32
F.3d 1215, 1219 (7th Cir.1994). The judge must determine
whether the speech can be "fairly characterized as constituting
speech on a matter of public concern," after looking at the
“content, form and context of a given statement, as revealed by
the whole record." See Connick, 461 U.S. at 146, 147-48, 103
S.Ct. 1684. -
Seventh Circuit precedent fleshes out Connick’'s content,
form and context guideline. The court has held that content is
the most important factor, see Campbell v. Towse, 99 F.3d 820,
827 (7th Cir.1996), cert. denied, 520 US. 1120, 117 S.Ct.
1254, 137 L.Ed.2d 334 (1997), and that the speaker's motive is
relevant. See Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th
Cir.1985). Specifically, Linhart teaches that the aim is to
determine the speaker's "point." See id
3. Do the employee's free speech interests in voicing his
views outweigh the government's interest as an employer in
ensuring that employee discourse does not hamper the efficient
delivery of governmental services? See Wright v. Illinois Dept.
of Children & Family Services, 40 F.3d 1492, 1502 (7th
Cir.1994) (citing Pickering, 391 U.S. at 568, 88 S.Ct. 1731).
This determination is another legal question for the trial judge.
See Campbell, 99 F.3d at 826. The burden is on the government
to establish the greater weight of its interests. See Glass v.
Dachel, 2 F.3d 733, 744 (7th Cir.1993). In the balancing, the
judge must determine whether the public employer has
established a "convincing reason" for having taken action
against the employee's speech. See Dishnow, 77 F.3d at 197;
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see also Brown v. Disciplinary Committee of Edgerton
Volunteer Fire Dept., 97 F.3d 969, 972 (7th Cir.1996).
A number of criteria are considered in undertaking the
Pickering balance:
(1) whether the statement would create problems in
maintaining discipline by immediate supervisors or
harmony among co-workers; (2) whether the employment
relationship is one in which personal loyalty and
confidence are necessary; (3) whether the speech
impeded the employee's ability to perform her daily
responsibilities; (4) the time, place, and manner of the
speech; (5) the context in which the underlying dispute
arose; (6) whether the matter was one on which debate
was vital to informed decisionmaking; and (7) whether
the speaker should be regarded as a member of the
general public. |
Wright, 40 F.3d at 1502. The balancing of these seven criteria
in the third step may overlap the analysis of content, form and
context undertaken to determine whether the speech was a
matter of public concern in the second step. See Hesse v. Board
of Education of Township High School District No. 211, 848
F.2d 748, 752-53 (7th Cir.1988) (context in which dispute
arose is factor in balancing); Cooper v. Smith, 89 F.3d 761, 765
(11th Cir.1996) (context and circumstances are considered
"again" when balancing); but see Hesse, 848 F.2d at 757 n. 7
(Flaum, J., dissenting) (warning against collapse of Connick's
public concern determination into Pickering's balancing).
Once the public employee has taken all three steps and the
trial judge is persuaded that the employee's speech touches on
a matter of public concern and that the balance of interests
points in the employee's favor, usually there is the separate task
8la
of determining whether the employee's speech led to the
discipline. See Mt. Healthy City School District Board of
Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50
L.Ed.2d 471 (1977). In this case, however, it is not contested
that plaintiff's news release was the cause of his discharge.
Also, in some cases there is the related and sometimes difficult
task of identifying which element of the employee's speech led
to the discharge. See Wright, 40 F.3d at 1500. In this instance,
however, there is no need to parse plaintiff's news release
because defendants do not argue that he was discharged for
only some of the things he said in the news release.
Plaintiff breezes through the first step of the analysis. There
can be no dispute that his news release addresses matters that
would be entitled to First Amendment protection if he had not
been working for the department when he issued it.
Whether plaintiff meets the second step is disputed.
According to plaintiff, the main point of his news release was
to disclose to the local public "unlawful favoritism" on the part
of Amesqua. See Supp. Br. of Pl. in Supp. of Mot. for Prelim.
Inj., dkt. # 12, at 5-6. (Although the police and fire
commission's determination on this matter is immaterial in this
lawsuit, plaintiff emphasizes that the commission treated the
news release as a matter of public concern.) Additionally,
plaintiff says that he was disclosing to the public the related
matters of Amesqua's "whitewash[ing] of 'the Cato incident'
and her 'stonewalling' of intradepartment efforts to determine
the extent of Holtz's behavior, including Lt. Conway's request
that Amesqua investigate complaints about Holtz by other
recruits". See Brief of Pl. in Supp. of Pet. for T.R.O., dkt. # 4,
at 10-12. At a glance, the title of the news release and
discussion of Amesqua's sexual orientation appear out of place
in a news release intended to expose errors in her professional
judgment, suggesting that plaintiff included the remarks about
82a
sexual orientation to humiliate Amesqua and make the news
release titillating. However, plaintiff justifies the reference on
the basis that it supplies a possible reason for the display of
favoritism to Holtz. See id. at 17. Finally, plaintiff concedes
that the news release discusses the charges brought against him
by Amesqua, but he argues that he added the discussion of his
own experience only as another example of Amesqua's poor
judgment.
In support of the contention that his news release reveals a
matter of public concern, plaintiff relies on Biggs v. Village of
Dupo, 892 F.2d 1298 (7th Cir.1990). Biggs was a police officer
who complained during an interview with the local newspaper
about the department's inadequate funding and wrongful
interference by village officials. Biggs made a statement to the
effect that local officials were "criminals" and discussed his
own problems with local officials, including his being turned
down for promotions. See id. at 1299-1300. Biggs's speech was
found to be a matter of public concern because it was directed
mostly at the department's lack of funds and interference by
village officials in police matters and because his complaints
about the treatment he received were merely an example of the
department's problems. See id. at 1301-02. :
If there is such a thing as a "classic" matter of public
concern, exposure of wrongdoing by public officials would be
it. Exposing a fire chief's alleged favoritism toward a
subordinate officer falls into this category. Indeed, defendants
agree that the topic of Amesqua's alleged favoritism is a matter
of public concern. However, they argue that there is a personal
angle to the news release that is controlling: the news release is
not protected speech because it simply is a continuation of an
"ongoing personal dispute" between plaintiff and Amesqua.
At this preliminary stage, the determination whether
83a
plaintiff's news release is a matter of public concern turns on
the adequacy of the factual record. True, the newspaper articles
the parties have placed in the record describe Greer's long-
running "flap" with Amesqua. They report that plaintiff is
vehemently intolerant of homosexuality. He believes that
homosexuality is a sin, that homosexuals should be
discriminated against in jobs and housing, that they should not
be allowed to hold positions of public authority and that
homosexuals molest children and are the cause of human
disease. According to the newspapers, Greer was a lone
picketer at Amesqua's swearing-in, challenging her
appointment because he believed her to be a homosexual. If all
this context were evidence, it would be hard for plaintiff to
refute defendants’ contention that the news release was merely
another volley in plaintiff's ongoing feud with Amesqua. But it
is not evidence. Despite what the local newspapers say, the
present record supports plaintiff's view that his news release
was a legitimate attempt to disclose her possible wrongdoing.
Furthermore, when only the content of the news release is
considered and not the context, there appears to be merit to
plaintiff's argument that he mentioned his personal dispute as
but one example of Amesqua's poor decision making. Plaintiff
refers not only to his own experiences but also to alleged
difficulties that his colleagues have experienced under
Amesqua's leadership. He argues that two other firefighters
have received discipline harsher that Holtz's although their
offenses were not as serious and that recruit Cato left the fire
department before graduation, presumably because of undue
pressure from department leadership. |
Defendants present a separate and distinct but much less
developed argument that the discharge of plaintiff did not
violate the First Amendment. Although this argument appears
to fall outside the three-step Connick and Pickering analysis, it
84a
depends heavily on an assessment of the content of plaintiff's
news release. The "argument" consists primarily ofa citation to
a passage from Brenner v. Brown, 36 F.3d 18, 20 (7th
Cir.1994) (per curiam):
[E]}ven if the speech were protected on the basis, e.g., that
it involved a matter of public concern, an employee's
speech is not protected where it is made with reckless
disregard for the truth, or is otherwise profane and
disparaging.
Brenner was a Veterans Administration employee who
alleged that she was reprimanded and not promoted because of
complaints she made about her supervisor in several letters she
sent to administration officials, her state senator and United
States senator. In one letter, Brenner accused her supervisor of
being "the most devious and sadistic person I have ever met."
In another letter, Brenner remarked that although her supervisor
had been unmarried for five years, she had a three year old
daughter; mockingly, Brenner refused to say "Who rumor has it
the father is." See id. at 20.
The court of appeals agreed with the district court's
conclusion that any adverse job action taken against Brenner
for her statements did not violate the First Amendment for two
separate reasons. First, Brenner failed to present a claim under
Connick and Pickering because any adverse job action taken
against her was not the result of "any protected speech;" no
First Amendment protection exists for speech "that is of an
entirely private concern." See id. at 20 (citing Waters, 511 U.S.
at 674, 114 S.Ct. 1878, and Connick, 461 U.S. at 146-49, 103
S.Ct. 1684). Expressed another way, Brenner did not meet the
second step.
Alternatively, the court of appeals held that Brenner's First
85a
Amendment claim was properly rejected pursuant to the
passage quoted above, because "even if the speech were
protected on the basis, e.g., that is involved a matter of public
concern, an employee's speech is not protected where it is made
with reckless disregard for the truth, or is otherwise profane
and disparaging." Jd. at 20. The meaning of this one-sentence
holding is not immediately evident. The court of appeais
seemed to be suggesting that even if a public employee's speech
can be said to be a matter of public concem, if the speech
includes remarks that are factually unsupported or that are
profane and disparaging, the employee enjoys no First
Amendment protection against subsequent disciplinary action.
(It could also be said that Brenner involves the first step of the
Connick and Pickering inquiry because profanity or speech
uttered with reckless disregard for the truth does not generally
enjoy First Amendment protection whether it is spoken by a
public employee or by a citizen standing on a street corner.)
Assuming that it is correct to interpret Brenner to mean that
public employees have no First Amendment protection for
speech on a matter of public concern if the speech includes
reckless or degrading remarks, I am not persuaded that the’
holding applies in this instance. With respect to plaintiff's
recklessness, defendants argue that plaintiff had "no
knowledge" of the investigation that Amesqua ordered
concerning the Holtz-Cato incident and therefore had no factual
basis for his statement that Amesqua "glossed over" the
investigation. But they fail to develop their argument
adequately. Defendants do not attempt to answer questions
such as whether under Brenner plaintiff would need to establish
that he had first hand knowledge of the scope of the
investigation, or whether reliable but second hand knowledge
would suffice. In addition, the essential questions of what
plaintiff knew and when he knew it are issues of fact on which
defendants submitted no proposed findings. (Defendants do not
86a
raise it, but it is difficult to imagine that plaintiff had
knowledge of Amesqua's sexual orientation either because she
has not disclosed it publicly.)
Although I must reject defendants' invitation to apply this
aspect of Brenner, plaintiff's discussion of Amesqua's sexual
orientation is troubling when examined under Brenner's
disparaging remark rule. In our society, a remark that another
person is a "homosexual" can be viewed as degrading. In light
of plaintiff's choice of the title "Homosexual Chief rewards
Homosexual Chief for Assault?," and his allegation that
because Amesqua and Holtz are gay, they share a "radical
agenda," it is hard to accept his contention that he discussed
Amesqua's and Holtz's sexual orientation only as a possible
reason for Amesqua's display of favoritism toward Holtz. It is
even harder to accept his contention if the local newspapers are
correct that plaintiff has strong personal beliefs about
homosexuality: if a person believes that homosexuality is the
cause of human disease, when that person calls someone a
homosexual, it can only be viewed as degrading. Although
defendants argue that Amesqua's and Holtz’s sexual orientation
is not a matter of public concern, they acknowledge in their
brief that plaintiff's news release "accuses Chief Amesqua of
treating another employee differently based on sexual
orientation." See Defs.' Br. in Opp'n to Pl.'s Mot. for Prelim.
Inj., dkt. # 16, at 41. They do not argue that plaintiff's
speculation about Amesqua's and Holtz's sexual orientation was
intended to be degrading.
Although plaintiff meets the first and second parts of the
Connick and Pickering analysis, he is unlikely to progress
further, even though defendants bear the burden of proof at the
final step. There are two factors that weigh heavily in favor of
the fire department, making it implausible that plaintiff can
prevail ultimately. /
;
/
87a
A line firefighter’s public criticism of command may disrupt
the working relationships among firefighters. Courts have held
that firefighting forces cannot be staffed by persons who have
"lingering resentment" towards leadership and that the presence
of someone perceived as a "trouble-maker" may impair the
effective functioning of the force. See Janusaitis v. Middlebury
Volunteer Fire Dept., 607 F.2d 17, 27 (2d Cir.1979); Germann
v. City of Kansas City, 776 F.2d 761, 765 (8th Cir.1985) (fire
captain's continued display of hostility to chief during trial
confirms that denying him promotion to battalion chief was
appropriate) (citing Janusaitis, 607 F.2d at 27); Marshall vy.
City of Alianta, 614 F.Supp. 581, 583 (N.D.Ga.1984)
(department's interest in maintaining authority and harmony
outweighs line firefighter's interest in abrasive criticism of
officers) (citing Janusaitis, 607 F.2d at 26), aff'd, 770 F.2d 174
(11th Cir.1985); see also Shands v. City of Kennett, 993 F.2d
1337, 1345 (8th Cir.1993) (fire chief's infrequent contact with
line firefighter did not lessen department's interest in regulating
speech of line firefighters; where fire chief does not closely
supervise line firefighters, personal loyalty to chief may be
critical). In the news release, plaintiff not only challenges
Amesqua's decision making, he comments publicly on her
sexual orientation and the orientation of another command
officer. At this point, I must assume that plaintiff had a benign
reason for talking about this highly personal matter, but that
does not negate the fact what he said can have a dramatic effect
on departmental operations. No one can question seriously the
fire department's need to remove from its ranks a line
firefighter who sends a news release to local media that
challenges his chief's decision making on an internal personnel
matter and speculates about her sexual orientation and that of
another command officer.
Plaintiff's decision to spread his views about Amesqua's
sexual orientation publicly presented another risk. Although he
88a
may have had a reason to discuss Amesqua's and Holtz's sexual
orientation, he did not do so in a neutral tone, but instead
labeled homosexuality as a radical agenda. Ifa fire department
took no action against a line firefighter who makes such
‘ statements, its inaction could convey to gays and lesbians in the
ranks of the fire department and in the Madison community that
the department is not concerned with their well being. A fire
department must be able to take a strong stance against
statements that could be perceived as bigotry, not only to
preserve good working relationships in the ranks, but also to
assure the entire community that it does not discriminate in the
delivery of services.
On the other side, plaintiff contends that his new release
embodies free speech interests that are two-fold. One, he
asserts that Amesqua's favoritism is damaging the department's
"integrity" and that as a firefighter, he has an interest in
preserving the reputation of his department. Two, he asserts
that Amesqua's favoritism is a matter that can be remedied only
through outside intervention. Here, plaintiff relies again on
Biggs, 892 F.2d at 1298, in which the court of appeals
recognized that because employees of a government agency are
most likely to have " ‘informed’ " opinions about the
functioning of that agency, " ‘it is essential that they be able to
speak out freely on such questions without fear of retaliatory
[discharge].'" See id. at 1303 (quoting Pickering, 391 U.S. at
572, 88 S.Ct. 1731). Pursuant to this principle, the court of
appeals determined that the free speech interests in Biggs's
statements concerning inadequate funding of the police force
and interference by local politicians was greater than the state's
various interests, including the curtailing of conduct that might
impede discipline and harmony. See id.
These asserted interests are not enough to tip the balance
back in plaintiffs favor. First, ‘accepting that Amesqua's
89a
favoritism is damaging the department's reputation, plaintiff's
interests in preserving that reputation are at the very least
matched by the department's interest in taking a stand against
bigotry. Second, the claim that plaintiff is like officer Biggs has
no merit. There is a critical distinction between what Biggs said
during his interview with the local newspaper and what
plaintiff said in his news release: officer Biggs did noi
challenge the decision making of his supervisors; he challenged
only the decision making of village officials. In fact, Biggs
complained that village officials did not heed the judgment of
departmental officials. He was quoted as saying that his former
chief "was smarter than the politicians.... He knew all the
aspects about the law." See Biggs, 892 F.2d at 1307. Many
people have complaints about local politicians; Biggs's
complaint was a generalized one to the effect that local
politicians did not treat the force properly. Although Biggs's
speaking his mind on such a matter might not have helped
relations between the village and the police department, his
statements gave no indication that he would not follow orders
from his supervisors or be able to get along with his fellow
officers.
I reject plaintiff's contention that his interest in speaking out
about Amesqua's favoritism is greater than the harm that such
Statements might have on order among the ranks and ultimately
on the department's ability to fight fires effectively. In
undertaking the balancing in this case, I have given no weight
to two additional matters that plaintiff argues should tip the
balance in his favor: 1) the "truth" of his comment that Holtz’'s
conduct is considered unacceptable in professional circles and
2) the lack of evidence showing that the news release actually
disrupted departmental
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