Greer v. Amesqua
| Citation | 22 F.Supp.2d 916 |
| Decision Date | 25 September 1998 |
| Docket Number | No. 98-C-0560-C.,98-C-0560-C. |
| Parties | Ronnie B. GREER, Plaintiff, v. Debra H. AMESQUA, Individually 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 ABC Insurance Company, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Michael Dean, Michael Dean & Associates, Waukesha, WI, for Greer, Ronnie B., plaintiff.
Michael J. Modl, Axley Brynelson, Madison, WI, for Amesqua, Debra H., Seeger, Alan, Macmurray, Margaret, Bishop, Byron, Hobbie, Lynn, Mendoza, Mario, The City of Madison Fire Dept., The City of Madison, The City of Madison Police & Fire, defendants.
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 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 fire-fighter 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.
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 plaintiff's 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 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 plaintiff's 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 plaintiff's concession, it is apparent that his due process and equal protection claims are not material to his current request; any violation of those rights may be remedied with back pay and reinstatement after trial. Plaintiff's 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 plaintiff's 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, ¶¶ II.A.2, III.A.2 (). 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.").
Plaintiff's proposed findings of fact and defendants' response reveal the following undisputed facts material to plaintiff's First Amendment claim.
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. Defenda...
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