Gardetto v. Mason, 95-8005

Decision Date13 November 1996
Docket NumberNo. 95-8005,95-8005
Citation100 F.3d 803
PartiesANNE GARDETTO, Plaintiff - Appellant, v. ROY MASON, Individually, and in his official capacity, and EASTERN WYOMING COLLEGE, Defendants - Appellees
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from the United States District Court for the District of Wyoming, (D. Ct. No. 93-CV-328) Jeremiah A. collins, Bredhoff & Kaiser, Washington, DC (Leon Dayan, Bredhoff & Kaiser, Washington, DC and Patrick E. Hacker, Cheyenne, WY, with him, on the briefs), appearing for Plaintiff-Appellant.

Alan Epstein, Hall & Evans, Denver, CO (Mayo Sommermeyer, Kent N. Campbell Troy A. Ukasick, Sommermeyer, Wick, Down & Campbell, with him, on the brief), appearing for Defendants-Appellees.

Before PORFILIO, ANDERSON, and TACHA, Circuit Judges.

TACHA, Circuit Judge.

Ann Gardetto bought this suit against her former employer, Eastern Wyoming College ("EWC"), and EWC's former president, Roy Mason, after they demoted and suspended her. Gardetto claims that EWC and Mason violated her First Amendment rights of free speech and free association by retaliating against her for criticizing the policies of Mason and EWC. In addition to her federal claims, she brought two claims under Wyoming common law: one against Mason for defamation and the second against EWC for breach of its duty of good faith and fair dealing.

A jury returned a verdict for the defendants on Gardetto's First Amendment claims and her breach of the duty of good faith and fair dealing claim. With regard to the defamation claim, the jury returned a verdict in Gardetto's favor on the issue of liability but found that Gardetto had failed to prove any damages resulting from the defamation.

Gardetto moved for a new trial and alternatively for an entry of judgment notwithstanding the verdict. The district court denied both motions. Gardetto now appeals on two grounds. First, Gardetto claims that the district court committed reversible error by submitting the question of whether her speech was entitled to First Amendment protection to the jury rather than deciding the issue as a matter of law. Second, Gardetto contends that the court abused its discretion in admitting evidence regarding her rude and abusive behavior allegedly unrelated to her suspension and demotion. We exercise jurisdiction pursuant to 28 U.S.C. Section(s) 1291. Because we reverse and remand for a new trial on the plaintiff's First Amendment free speech claim, we need not address the plaintiff's evidentiary ground for appeal.

BACKGROUND

In 1974, Gardetto began working for EWC as the college's Minority and Community Counselor. EWC eventually promoted Gardetto to the position of Director of Nontraditional Student Services/Special Services. In that capacity, Gardetto was responsible for developing programs designed to support and provide guidance to adult students. She also supervised four staff members and twelve peer counselors at the college's Adult Re-entry Center ("ARC").

In 1990, Roy Mason became president of EWC. Although Mason initially praised Gardetto's work, his view of Gardetto changed markedly when she began to speak out on matters relating to the educational policies and practices of the college. Gardetto asserts that as a result of her criticisms, the defendants retaliated against her in violation of her First Amendment rights. Specifically, Gardetto identifies six speech incidents which allegedly resulted in her demotion and suspension: (1) her criticism of the college's proposed reduction-in-force procedures at the college's board of trustees meeting, (2) her opposition to the application of those procedures to terminate a fellow ARC employee and eliminate that employee's position, (3) her support for a vote of "no confidence" in Mason by a local faculty association, (4) her criticism of Mason for holding himself out as a "doctor" when he did not have a doctoral degree, (5) her campaign support of three non-incumbent candidates vying for a position on the college's board of trustees, and (6) her criticism of the reorganization of the ARC to a visitor giving a speech at the college. We will briefly describe each of these expressive incidents.1

Gardetto first began criticizing Mason and EWC in December 1991 when the EWC board of trustees directed Mason to develop a reduction-in-force procedure for the college. In the spring of 1992, Gardetto, who previously had served on a finance committee responsible for drafting the college's reduction-in-force procedures, attended two open board of trustees meetings held to consider Mason's new proposed procedures. At the meetings, Gardetto, as well as other EWC faculty members, criticized the proposed procedures because they contemplated a reduction-in-force absent any finding of fiscal exigency and because they failed to use objective criteria (such as seniority or tenure) to determine which personnel should be terminated. Gardetto and others expressed their view that a reduction-in-force should be undertaken only after other cost-cutting measures failed to resolve the budget shortfall.

The second incident involving Gardetto's First Amendment claim occurred in April 1992. At that time, Gardetto learned that Mason proposed to terminate Mary McBroom, an employee who worked in the ARC, and to eliminate McBroom's position as part of the reduction-in-force plan. Gardetto privately voiced her opposition to Mason's treatment of McBroom and her position, stating that McBroom's services were critical to the success of the program and that if a cut were truly necessary, Mason should eliminate a secretarial position in his own office. During a second meeting between Mason and Gardetto about McBroom's position, Gardetto became agitated and yelled at him. She threatened Mason, stating that if he did anything to harm the ARC, she would destroy him personally and professionally. When Mason attempted to end the conversation, Gardetto followed him down a hallway and continued to yell at him.

In addition to her private conversations with Mason about McBroom's position, Gardetto criticized Mason's decision to terminate McBroom during an EWC reduction-in-force grievance committee meeting. Although the committee expressed concern about the decision in its report to the board of trustees, the board nevertheless approved Mason's proposal to terminate Mary McBroom and eliminate her position. EWC eventually rehired McBroom in a grant-funded position that became available. The board's handling of McBroom and other personnel reductions, however, sparked a great deal of controversy throughout the college and the community. A regional radio station interviewed Mason about the termination and rehiring of McBroom, and a local newspaper ran a series of stories on the decision.

The third incident that forms the basis of Gardetto's First Amendment claim occurred around the same time as the McBroom debate. Gardetto had become concerned with Mason's ability to administer the college. Accordingly, she proposed that the Eastern Wyoming Higher Educational Professional Association render an advisory vote of "no confidence" in Mason. Although the motion failed in May 1992, it passed in April 1993.

The fourth event relevant to Gardetto's free speech claim occurred in the summer of 1992 when Gardetto discovered that although Mason allowed others to refer to him as "Dr." Mason and wore distinctive doctoral robes at graduation ceremonies, Mason did not have a doctoral degree. Gardetto spoke to a reporter at a local newspaper about the matter. She told the reporter that Mason's misrepresentation was an "egregious act" and "that in the world of academia, this centers around issues of honesty and integrity." The newspaper reported the story in September 1992.

The fifth event that Gardetto argues gives rise to her First Amendment claim occurred in the fall of 1992. Gardetto publicly supported the election of three non-incumbents who were vying for a position on the college's seven-member board of trustees. Gardetto also served as the campaign treasurer for one of the challengers. After all three challengers won, Mason sent a confidential letter to the lame-duck board indicating that he wanted either to suspend or terminate Gardetto. Mason told the board that "given the history and recent election results, I would like your counsel before I take action." In response, the board requested that Mason not take any adverse action due to the sensitive nature of the matter.

On April 13, 1993, Mason demoted Gardetto to the position of Special Populations Counselor, a position similar to her first job with the EWC, Minority Community Counselor. One day later, Mason gave her the title of Recruitment and Retention Specialist, but her status as a counselor without any staff remained the same.

The final event relevant to Gardetto's free speech claim occurred on May 25, 1993, when EWC hosted a statewide Student Services Conference. The keynote speaker, Dr. Tom Gonzales, was introduced to Gardetto after his speech. She took the opportunity to give Gonzales a tour of the ARC and to praise the center's achievements. Shortly after Mason observed Gardetto with Gonzales, Mason summoned Billy Bates, Gardetto's direct supervisor, to his office. Mason was very angry and told Bates that he was going to suspend Anne Gardetto for insubordination. Bates thought that this "Gonzalez incident" precipitated Mason's plans to suspend Gardetto.

On May 28, 1993, Mason suspended Gardetto with pay for the remainder of the academic year and removed her from her current position at EWC. Gardetto brought this suit against Mason and EWC, and the case proceeded to trial.

At the close of the evidence, the district court gave the following instruction to the jury:

Jury Instruction No. 9

If you find that the plaintiff carried her burden of proving that her speech, her associations or both, were a substantial or a motivating factor in the defendants' decision to...

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