Greenberg v. Kmetko

• Decision Date: 15 September 1987
• Docket Number: No. 85-2104,85-2183,85-2104
• Parties: Richard Paul GREENBERG, Plaintiff-Appellee, v. Thomas KMETKO and Bruce Weflen, Defendants-Appellants. Richard Paul GREENBERG, Plaintiff-Cross-Appellant, v. Thomas KMETKO and Bruce Weflen, Defendants-Cross-Appellees. . Reheard En Banc
• Court: U.S. Court of Appeals — Seventh Circuit

Page 467

840 F.2d 467

Richard Paul GREENBERG, Plaintiff-Appellee, v. Thomas KMETKO and Bruce Weflen, Defendants-Appellants.

Richard Paul GREENBERG, Plaintiff-Cross-Appellant, v. Thomas KMETKO and Bruce Weflen, Defendants-Cross-Appellees.

No. 85-2104, 85-2183.

United States Court of Appeals, Seventh Circuit.

Reheard En Banc Sept. 15, 1987.

Decided Feb. 18, 1988.

As Amended March 9, 1988.

Robert McFarland, Asst. Atty. Gen., Chicago, Ill., for defendants-appellants/cross-appellees.

Sheldon L. Smith, Chicago, Ill., for plaintiff-appellee/cross-appellant.

Before BAUER, Chief Judge, CUMMINGS, WOOD, CUDAHY, POSNER, COFFEY, FLAUM EASTERBROOK, RIPPLE, MANION, and KANNE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

COFFEY, Circuit Judge.

The defendants-appellants, Thomas Kmetko and Bruce Weflen, appeal from the judgment of the district court that they had violated plaintiff-appellant Richard Greenberg's First Amendment free speech right. The defendants submit on appeal that they should be shielded from liability by qualified immunity. They also challenge the district court's finding that Greenberg's conduct was protected by the First Amendment and argue that the court misinstructed the jury on the standards for establishing illegal retaliatory conduct. Greenberg cross-appeals, arguing that the Fourteenth Amendment should have provided an additional basis for the defendants' liability. We vacate, remand in part, and affirm in part.

I.

Greenberg was a social worker with the Illinois Department of Children and Family Services (the "DCFS"). When Greenberg began working for DCFS's North Area Office in Chicago in May of 1974, he had little or no social work experience or training at all. The record reveals that Greenberg was the least experienced social worker in his unit, and his experience pales in comparison to that of his supervisors. ¹ Greenberg's lack of experience and training was noted in a performance evaluation issued by Greenberg's immediate supervisor, Ronald Dombrowski, for the period ending October 1974, when Dombrowski was reassigned to another position in the agency. Dombrowski stated:

"However, for whatever personal or emotional reasons, Mr. Greenberg seems to have tremendous difficulty in differentiating his own needs and perceptions from the needs of his clients. At the time I left the unit in October 1974, I was hopeful that perhaps there might be some change in Mr. Greenberg. I thought that because of his particular personality, his inexperience and lack of knowledge about agency policies and social work in general, that he could gain this experience and become effective with his clients...."

Defendant Weflen became the supervisor of Greenberg's unit in October of 1974. Defendant Kmetko was the Area Administrator for the DCFS. From the outset of his tenure at DCFS and over the course of several years, Greenberg had several conflicts with his supervisors over department policy.

DCFS had a general policy of continuing parental involvement when clinically acceptable, hoping to achieve the best interest of the child as well as maintaining the parent's interest in the child's welfare, a well-accepted social welfare policy ² later codified by the Illinois legislature. ³ Greenberg's first altercation with his supervisors over the application of this policy occurred in the summer of 1974, shortly after he had assumed his position at DCFS. The case involved a child, Brian C., who had run away from his family and became ill. Brian C. collapsed in a gas station and was taken to a local hospital, where he was released to a juvenile home after he was examined. Three days later, Brian C. once again collapsed in the detention facility and was diagnosed as suffering from severe abdominal cramps.

DCFS wanted Brian C. to be reunited with his biological mother. In line with this policy, Weflen directed Greenberg to contact Brian C.'s mother and step-father to arrange for them to pick up Brian C. Greenberg objected to the placement, claiming that the parents were unwilling and unfit to care for the boy. Over Greenberg's protestations, Brian C. was returned to his parents. Shortly thereafter, Brian C. died of an appendix disorder which the trained medical professionals who had examined Brian C. failed to diagnose and treat.

Greenberg's second argument with his supervisors occurred at the end of 1974 and early 1975, less than eight months after he joined the agency, over the handling of the case of Richard S. I. Weflen instructed Greenberg to investigate whether the boy could be returned home to live with his parents. Greenberg completed his investigation and reported to Weflen that the parents did not want their son to come home. Nevertheless, Greenberg's supervisors, Kmetko and Weflen, after conferring, determined that a temporary placement for Richard S. I could be made only if the child's parents remained involved in the case, conditioned upon their signing a three-month voluntary placement agreement. ⁴ Because Greenberg was unable to convince the parents to sign the agreement, to remain involved, and to cooperate, the child remained unplaced. Shortly thereafter Greenberg, while making a status report to the juvenile court on Richard S. I, was questioned by the court as to why the child had not been placed, and in response thereto stated that his superiors in the DCFS, specifically Kmetko and Weflen, were responsible for the failure to place Richard S. I, when in fact it was the failure on Greenberg's part to convince the boy's parents to sign the voluntary placement order that caused the delay in the placement.

After placing Richard S. I, Greenberg wrote Kmetko a memo entitled, "Schizophrenic Defense As a Supervisory Reaction to Administrative Agency Policy," in which he advised Kmetko about his difficulties with Weflen concerning the Richard S. I case. Greenberg prefaced his remarks by admitting that his relationship with Weflen was affecting his mental health. He also questioned Weflen's priorities in the letter as to whether Weflen's decisions were based on the best interests of the children or the limited resources of the agency. After reading the memo, Kmetko informed Greenberg that he agreed with Greenberg's assessment of himself that his mental health was a problem.

During this period of time, Greenberg's conduct in the office began alienating fellow caseworkers and thus adversely affecting office harmony when he interfered in the case of another caseworker and told others in the unit how to handle their cases. As an example of his meddling, a child had run away from his current placement, and his worker refused to find the child another placement in order to force the child to go back to the old placement. Because Greenberg felt the child was being mistreated, he interjected himself into the case, one to which he was not assigned. Without his co-worker's consent or knowledge, Greenberg gave the child a "Fair and Equal Treatment" card (which entitled the child to receive the help of a state ombudsman) and proceeded to find the boy a new placement for the evening. Weflen informed Greenberg that such conduct would not be tolerated and stated that his relationship with his fellow workers was unacceptable in that he was interfering with and usurping their responsibilities. ⁵

In March 1975, Greenberg received an adverse performance evaluation from Ronald Dombrowski, his former supervisor, who did the evaluation at the request of Virginia Mextroff, an assistant area administrator. Dombrowski assessed Greenberg as a "troubled young man whose personal problems are interfering with his effectiveness, growth and development as a social worker," and suggested that Greenberg "avail[ ] himself of psychotherapy." Greenberg's inability to deal with Dombrowski's assessment required him to take a leave of absence for approximately a month in order to recover from the emotional and psychological pressures he had created for himself. Greenberg admits that because of his disagreements with his supervisors, his ability to perform his responsibilities as a social worker was impeded and his mental health was affected as well; in fact, he stated that he took the leave of absence because of his admitted difficulty in complying with the agency's placement decision in the Richard S. I case.

In September 1975, Greenberg became involved in the case of Richard S. II, a child in the Elgin State Hospital with serious behavioral problems and on medication to control epileptic seizures. Greenberg decided that Richard S. II was not being cared for properly and complained to Phillip Gorman, the assistant guardianship administrator at DCFS. Gorman resented Greenberg's interference and wrote a letter to Kmetko and Weflen requesting that Greenberg be taken off the case.

Greenberg attended a meeting of the Children's Rights Council, a community service organization, on October 10, 1975. The speaker there was Jesse McDonald, a deputy director of DCFS. During a question and answer period, Greenberg complained of the department's policy which he characterized as minimizing services to children, especially Richard S. II, who was not mentioned by name. After the meeting, Greenberg and McDonald talked privately, and McDonald assured Greenberg that he would look into Richard S. II's case.

Greenberg continued to interfere in Richard S. II's case. Greenberg's superiors received complaints from Dr. Leavitt, head of the hospital where Richard S. II was confined, that Greenberg was meddling in the child's hospital treatment. Greenberg took it upon himself to tell the medical personnel that he believed the child needed in-patient medical care, whereas the child's treating medical professionals determined, and Greenberg's superiors concurred, that Richard S. II could be released from confinement and placed in a non-medical facility. Greenberg disagreed with the agency's decision to discharge the child and place him in a non-medical...