769 F.2d 1251 (7th Cir. 1985), 84-1063, Patkus v. Sangamon-Cass Consortium

Docket Nº:84-1063.
Citation:769 F.2d 1251
Party Name:Empl.Prac.Cas. 1272, 27 Wage & Hour Cas. (BN 499, 1 Indiv.Empl.Rts.Cas. 1716 Carol D. PATKUS, Plaintiff-Appellant, v. SANGAMON-CASS CONSORTIUM, Sangamon County, Cass County, and Richard Austin, individually and in his official capacity, Defendants-Appellees.
Case Date:August 07, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1251

769 F.2d 1251 (7th Cir. 1985)

Empl.Prac.Cas. 1272,

27 Wage & Hour Cas. (BN 499,

1 Indiv.Empl.Rts.Cas. 1716

Carol D. PATKUS, Plaintiff-Appellant,

v.

SANGAMON-CASS CONSORTIUM, Sangamon County, Cass County, and

Richard Austin, individually and in his official

capacity, Defendants-Appellees.

No. 84-1063.

United States Court of Appeals, Seventh Circuit

August 7, 1985

Argued Feb. 27, 1985.

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[Copyrighted Material Omitted]

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Charles J. Speta, Springfield, Ill., for plaintiff-appellant.

Ann L. Carr, Sangamon County State's Atty. Office, Springfield, Ill., for defendants-appellees.

Before ESCHBACH and FLAUM, Circuit Judges, and DOYLE, Senior District Judge. [*]

FLAUM, Circuit Judge.

This action involves several challenges to the conduct of defendants in connection with the employment and subsequent discharge of plaintiff Carol D. Patkus. Patkus was employed as the administrator of the Sangamon-Cass Consortium, an agency responsible for management of the Comprehensive Employment and Training Act (CETA) program for two counties, from March 1978 until December 1980. Patkus's complaint alleged violations of her rights to free speech, free association, and due process under 42 U.S.C. Sec. 1983; sex discrimination in pay and discharge under 42 U.S.C. Sec. 2000e; and sex discrimination in pay under 29 U.S.C. Sec. 206. After a four-day bench trial, the district court entered judgment for the defendants on all counts. Patkus appeals from this judgment in all respects. We reverse the district court's judgment on the issue of a due process violation and affirm on the remaining issues.

I.

In July 1977, Sangamon County and Cass County established, by agreement, the Sangamon-Cass Consortium (Consortium) to receive funds for and to administer a CETA program. Sangamon County, as the primary employer, had final authority and responsibility for employment decisions. An Advisory Council was established, pursuant to federal requirements, to perform limited supervisory and advisory functions for the Consortium's staff. On March 22, 1978, Carol Patkus was hired as administrator of the Consortium, replacing another woman. The duties of the Consortium administrator were to manage and supervise its regular business, to maintain contact with federal and state CETA offices, to develop policies for the operation of a CETA program, and to take an active role in improving and coordinating manpower resources in the two-county area.

In January 1980, a Consortium employee, Evelyn Townshend, filed a complaint against Patkus with the United States Department of Labor (DOL). DOL rejected the complaint, stating that personnel matters were to be resolved locally, and recommended that the Consortium appoint an impartial hearing officer to investigate the matter. Richard Austin, in his capacity as chairman of the Sangamon County Board, appointed a private attorney, Bruce Stratton, to be the hearing officer. Austin directed

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Stratton to conduct the investigation in compliance with federal regulations governing internal investigations, located at 20 C.F.R. Sec. 676.83 (1984). On June 24, 1980, Patkus wrote to one of the attorneys handling Townshend's complaint to request that Stratton be required to follow the regulatory procedures. The following day Stratton, Townshend's counsel, and counsel representing Sangamon County met and agreed to certain procedures for the investigation. One of these procedures, giving Stratton the power to interview persons on his own initiative or at the request of Townshend or Patkus, did not agree with the federal regulation governing such power.

Five months later, on November 25, 1980, Patkus and several other Consortium staff members sent a telegram to the DOL. The telegram stated that the Consortium staff had concerns regarding the "political involvement regarding this investigator" and listed a number of specific charges against Stratton. 1 On the same day, Patkus wrote to Austin requesting that the investigation be conducted in conformance with federal guidelines. The following day, November 26th, Patkus called a meeting of some, but not all, members of the Consortium's Advisory Council. She informed them that the problems of the Consortium were a "political battle," charged that the County Board was undermining her authority, and referred to the Stratton investigation as a "witch hunt." She also informed the Council members present that those members who had not been invited were not objective or unbiased.

Shortly thereafter, on December 5, 1980, Austin informed Patkus that she was being discharged from her position as Consortium Administrator. In a written statement, signed by Austin and the head of the CETA committee, she was given the following reasons for her dismissal:

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A. You have engaged in insubordinate conduct toward the Sangamon County Board and the Chairman of the Sangamon County Board in that:

  1. You told employees of the Consortium and at least one public official that the Chairman of the Sangamon County Board was a person not to be trusted and that these employees were not to communicate with him.

  2. You attempted to cause the United States Department of Labor to intervene into the inquiry of a personnel matter authorized by the prime sponsor and attempted to stop or suspend said inquiry.

    B. You have engaged in abusive and insubordinate conduct toward the Consortium Advisory Council in that you called a meeting of certain members of the Council while excluding other members, and advised those in attendance that the other members of the Council not at the meeting could not be objective or unbiased.

    C. You have engaged in abusive behavior towards Consortium employees when such conduct was not related to effective administration of the Consortium, thereby causing employee morale to deteriorate in that:

  3. You caused or acquiesced in the discipline of an employee as a result of said employee giving a statement to the individual conducting the inquiry authorized by the prime sponsor.

  4. You caused Consortium employees to fear the loss of their job, suspension, or other discipline for failure to demonstrate personal loyalty to you.

  5. Some employees were assigned work in such volume that CETA clients could not be properly serviced or receive proper counseling.

    D. You caused the prime sponsor, specifically the Sangamon County Board, to be held in public disrepute by:

  6. Referring to the Chairman of the Sangamon County Board, your superior, as a person not to be trusted.

  7. Referring to the inquiry authorized by the prime sponsor as a "witch hunt."

  8. Asserting that the said inquiry was politically motivated.

  9. Telling members of the Consortium Advisory Council that the Sangamon County Board "undermines" you.

    E. Ineffective administration of the Sangamon-Cass Consortium CETA Program.

    Austin presented the letter to Patkus and informed her that she had five minutes to remove her personal belongings from her office. The letter advised Patkus that she could appeal her termination to the Advisory Board. She did not make such an appeal.

    II.

    Patkus's first claim is that she was discharged in retaliation for actions that were protected by the First Amendment--the November 25th telegram to the DOL and her statements at the November 26th special meeting of the Advisory Council. In general, a public employee's exercise of his or her right to speak on matters of public concern may not furnish the basis for dismissal from public employment. Pickering v. Board of Education of Township High School, 391 U.S. 563, 574, 88 S.Ct. 1731, 1737, 20 L.Ed.2d 811 (1968). To succeed on her First Amendment claim, Patkus would have to prove that her actions and statements concerned matters of public concern and that her interests, as a citizen, in commenting upon these matters outweighed those of the state, as an employer, in promoting the efficiency of the public services performed through its employees. Id. at 568, 88 S.Ct. at 1734; Egger v. Phillips, 710 F.2d 292, 322 (7th Cir.) (en banc), cert. denied, --- U.S. ----, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). In this case, the district court held that although the telegram to the DOL would constitute speech of public concern, her dismissal was for conduct that was not protected by the First Amendment. On appeal, Patkus argues that this ruling was in error and that,

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    under the Pickering analysis, her conduct should be protected.

    The reasons behind an employment decision will not be scrutinized unless the speech or other conduct can be "fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983). Determining whether an employee's speech addressed a matter of public concern is a legal, rather than a factual, inquiry, and the decision must be based on the content, form, and context of the statement in light of the entire record. Id. at 147-48 & n. 7, 103 S.Ct. at 1690-91 & n. 7. Prior to Connick, this court had noted that Pickering could be read to indicate that speech which does not involve matters of public interest is "not protected" by the First Amendment. McGill v. Board of Education, 602 F.2d 774, 777 (7th Cir.1979). In Connick, the Supreme Court clarified this issue by stating that even if speech does not touch on matters of public concern, it is not totally beyond the protection of the First Amendment. 461 U.S. at 147, 103 S.Ct. at 1690. However, personnel decisions taken in reaction to speech of only personal interest to the employee are not appropriate for review by federal courts, whether the employer is a state agency or a private enterprise. Id. 2 Therefore, we must...

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