Klunk v. County of St. Joseph

Citation170 F.3d 772
Decision Date19 March 1999
Docket NumberNo. 98-2039,98-2039
Parties14 IER Cases 1678 Edward M. KLUNK, Plaintiff-Appellant, v. COUNTY OF ST. JOSEPH, Peter J. Nemeth, Judge, individually and in his official capacity as Judge of St. Joseph Probate Court, and Thomas N. Frederick, individually and in his official capacity as Director of Court Services, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Ivan E. Bodensteiner (argued), Valparaiso, IN, for Plaintiff-Appellant.

James A. Masters (argued), Nemeth, Feeney & Masters, South Bend, IN, for Defendants-Appellees.

Before POSNER, Chief Judge, and BAUER and MANION, Circuit Judges.

MANION, Circuit Judge.

Judge Peter J. Nemeth of the St. Joseph County Probate Court and Thomas N. Frederick, Director of Court Services, terminated Edward M. Klunk, an employee of the St. Joseph County Juvenile Probation Department, after Klunk announced he intended to run for a position on the Board of Trustees of the South Bend Community School Corporation (the "School Board"). Klunk sued St. Joseph County and his supervisors in the Northern District of Indiana for violating the First Amendment and the Indiana Constitution. The district court granted judgment as a matter of law to the defendants, holding that the Juvenile Probation Department's interests in efficiency and avoiding conflicts of interest outweighed Klunk's free speech interests. Moreover, the district court found that Indiana law and federal law involve the same legal inquiry, and granted judgment as a matter of law on the Indiana constitutional claim as well. We affirm.

I.

In 1974 Klunk began working for the St. Joseph County Juvenile Probation Department as a probation officer. By 1982 Klunk had become an intake officer, and thereafter became the Director of Intake. Intake officers initially determine whether a juvenile accused of a crime should be prosecuted, and if so, they appear as prosecutors at the initial hearings. Frederick testified that intake officers are a hybrid between police officers and prosecutors, and specialize in juvenile crime. As Director of Intake, Klunk was the third highest-ranking official in the department. He reported to the Director of Probation, who in turn reported to defendant Frederick, the Director of Court Services, and ultimately to Judge Nemeth, who, as Judge of the St. Joseph County Probate Court, ran the Probation Department. 1

On August 24, 1994, Klunk informed Frederick that he was contemplating running for the St. Joseph County School Board. School Board membership is only part-time, so Klunk intended to keep his position with the Juvenile Probation Department. Frederick immediately expressed concern over a conflict due to the time commitment involved. He also suggested that Klunk advise Judge Nemeth of his possible candidacy. While Klunk was unable to reach Judge Nemeth, Frederick managed to do so. The next day, Frederick told Klunk that Judge Nemeth thought that School Board membership would present a conflict of interest as Klunk would be perceived as representing the interests of the Juvenile Probation Department while serving on the School Board. The day after that, Klunk filed his candidacy papers, and then informed Frederick that his candidacy was official. Frederick stated that he was unhappy that Klunk had decided to pursue this candidacy despite Frederick's discouragement.

The following Monday, just five days after Klunk announced his intention to run for the School Board, Judge Nemeth called Klunk to his chambers. He asked for Klunk's resignation, and refused to state why. Rather, he maintained that Klunk served at the Judge's pleasure, and that he no longer wanted to employ Klunk.

Klunk lost his bid for School Board membership. He then brought this action against St. Joseph County, Judge Nemeth and Frederick. He claims that he was terminated in retaliation for running for School Board membership, in violation of the First Amendment and the Indiana Constitution's analogue, Article I, Section 9. The case was tried to a jury, but at the close of the plaintiff's presentation of evidence, the district court granted the defendants judgment as a matter of law, based on the test created by the United States Supreme Court in Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). This test weighs the interests of the government providing services to its citizens against the employee's interest in protected speech. The district court found that the Director of Intake serves in a position of trust and confidence with respect to the Juvenile Probation Department. Moreover, the district court noted that whether Klunk advocated views consistent with, or at odds with, department policy, the department would be ill served. If Klunk were to advocate views harmonious with the department, he would be perceived as taking orders from Judge Nemeth. And if Klunk were to disagree with the department, the department's viewpoint would be undercut by not having the support of its own employee. The district court also found that the Indiana Constitution offered the same protection as the First Amendment, and therefore, the First Amendment ruling was equally applicable to this claim. Finally, the district court denied the due process claim, finding that Klunk did not have a property interest in his employment. Klunk has appealed only the First Amendment and Indiana Constitution Art. I, § 9 claims.

II.
A. Standard of Review

Judgments as a matter of law are reviewed by appellate courts in the same fashion as summary judgment motions. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review the conclusions of the district court de novo, taking the evidence in the light most favorable to the non-moving party. Continental Bank N.A. v. Modansky, 997 F.2d 309, 312 (7th Cir.1993); Von Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1471 (7th Cir.1993). Judgment should be entered under Rule 50(a) only where the evidence "is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

B. First Amendment

In prosecuting a claim of retaliation under the First Amendment's Free Speech clause, the district court must resolve four issues. The first is that the speech must be on a matter of public concern. See, e.g., Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). If the speech addresses a matter of public concern, the employee must show that the protected speech caused, or at least played a substantial part in, the employer's decision to terminate, or take any other adverse employment action against, the plaintiff. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The district court must then consider the Pickering balancing test. This test involves weighing the employee's First Amendment interest against the government's interest, as an employer, in efficiently providing government services through its employees. Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Finally, the defendant can still prevail if he can show that he would have terminated the employee even in the absence of the protected speech. Mt. Healthy, 429 U.S. at 286, 97 S.Ct. 568. The plaintiff must carry the burden of proof for the first two elements; the government has the burden for the last two. See id. at 287, 97 S.Ct. 568; Glass v. Dachel, 2 F.3d 733, 744 (7th Cir.1993) (government must prove balancing test).

On appeal, Klunk first contends that the district court erred in reaching the Pickering balancing test, because both Judge Nemeth and Frederick denied that Klunk's candidacy was a factor motivating his dismissal. Klunk contends that if the defendants deny terminating him for his protected speech--and they do--then the Pickering balancing test cannot be applied. Rule 50(a) states:

If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

Fed.R.Civ.P. 50(a). Thus, the rule clearly contemplates that a factual dispute regarding one element of a claim or defense will not bar judgment as a matter of law if there is no legally sufficient evidentiary basis to support the other elements of the claim or defense.

The Eleventh Circuit addressed this procedural issue in Vista Community Serv. v. Dean, 107 F.3d 840, 845 (11th Cir.1997). Under facts similar to this case, the district court refused to grant summary judgment based on a defense of qualified immunity. "Because Defendants claimed that they fired Plaintiff for reasons unrelated to his speech, the court declined to apply Pickering to the facts of this case." Id. (emphasis in original). The appellate court reversed, holding that "[i]n those cases where the employer's claimed reasons are unrelated to the speech, we still apply the Pickering balancing test." Id. We see no meaningful distinction between Vista and this case.

This result is also consistent with this circuit's case law. For example, in Button v. Kibby-Brown, 146 F.3d 526 (7th Cir.1998), we affirmed the granting of judgment as a matter of law pursuant to Rule 50(a) on a First Amendment retaliation claim. We held that the employee's speech did not relate to a matter of public concern, and we did so without reaching the issue of the employer's motivation. Id. at 529-31.

In support of his argument, Klunk quotes from Wright v. Ill. Dept. of Children & Family Serv., 40 F.3d 1492, 1499 (7th Cir.1994): "The proper approach is to apply the appropriate legal standard to each instance of speech for...

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