Berg v. Hunter, 532
| Decision Date | 21 September 1988 |
| Docket Number | No. 532,D,No. 87-2050,532,87-2050 |
| Citation | 854 F.2d 238 |
| Parties | 47 Empl. Prac. Dec. P 38,242, 48 Ed. Law Rep. 789, 3 Indiv.Empl.Rts.Cas. 1317 William BERG, Plaintiff-Appellant, v. Dr. John HUNTER, individually and as President of the College of Lake County, Illinois; James Doppke, individually and as Vice President of Academic Affairs of the College of Lake County, Illinois; Lawrence Matthews, individually and as Associate Dean and Chairman of Health, Physical Education, Recreation, Intramurals, and Athletics of the College of Lake County, Illinois; Board of Trustees of Illinois Community College District; and Eleanor Rostron, Richard A. Anderson, Nancy Block, Millicent Berliant, James Lumber, Richard Bryan, and Nan Fairhurst, individually and jointly as Members of the Board of Trustees of Illinois Community College District, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Lawrence Jay Walker, Cohen Starck & Weiner, Chicago, Ill., for plaintiff-appellant.
Allen D. Schwartz, Robbins Schwartz Nicholas Lifton & Taylor, Ltd., Chicago, Ill., for defendants-appellees.
Before BAUER, Chief Judge, MANION and KANNE, Circuit Judges.
William Berg appeals the district court's grant of summary judgment to the defendants on his First and Fourteenth Amendment claims. We affirm.
Berg served as the intramural athletic coordinator for the Community College of Lake County, Illinois (CLC) in its department of Health, Physical Education, Recreation, Intramurals, and Athletics (HPERIA), from January, 1978, until his dismissal in June, 1984. The defendants maintain that Berg's termination was incidental to a legitimate reorganization of HPERIA. Berg, the only casualty of the reorganization, charges that contrary to his First Amendment right to free speech, his termination was in retaliation for speaking out against the alleged misconduct of CLC's president, Dr. John Hunter. The district court declined to scrutinize the reasons behind Berg's dismissal, concluding that his accusations against Hunter were merely an extension of a personal grievance, not entitled to first amendment protection. 1
Berg's tale begins with a clash involving Dr. Lawerence Matthews, CLC's Associate Dean and Chairman of HPERIA during Berg's employ. It seems that Berg and Matthews couldn't agree on which day of the week it was, much less deal with the complexities of scheduling intramural athletic events. Their squabbling culminated in a physical altercation on May 10, 1983, in which Berg alleged that Matthews assaulted him. Berg subsequently filed a "concern" against Matthews under CLC's formal grievance procedures. 2 Under these procedures, Dr. Hunter ultimately disposed of Berg's claim, finding that while there was no actual assault, "there was a regrettable loss of controlled response to Mr. Berg on Dr. Matthews' [sic] part." While Berg appealed Hunter's decision to CLC's Board of Regents, he filed a grievance against Hunter alleging fraud, management malpractice, public misrepresentation, and violations of CLC policy, the United States Constitution, and civil law. 3
Although Berg acknowledges that many of his charges are grounded on Hunter's alleged mishandling of his personal dispute with Matthews, 4 he maintains that his accusations involve matters of public concern and, thus, are entitled to First Amendment protection. The district court viewed Berg's grievance against Hunter as nothing more than the "second round" of his personal squabble with Matthews in which Berg attacked the "judge" (Hunter) who scored the "first round" in Matthews's favor. 5
Pickering v. Board of Regents, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and its progeny, see Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), signaled a new era in First Amendment law, marked by greater appreciation for an employee's right to speak out on matters of public concern. Today, a balance must be struck between "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. Where the employee's speech touches upon a matter of public concern and does not so substantially interfere with her work as to disrupt the efficient performance of the public service she renders, that speech cannot form the basis for an adverse employment decision. Id.
Recognition of an employee's free speech rights, however, does not subject every public employment decision to judicial scrutiny. See Callaway v. Hafeman, 832 F.2d 414, 416 (7th Cir.1987) (). Nor do allegations involving free speech necessitate application of Pickering's balancing test where an employee "speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of private interest...." Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). Only where the asserted speech touches upon matters of political, social, or other concern to the community must the court employ a balancing test to determine whether the speech is constitutionally protected. Connick, 461 U.S. at 146, 1689; Pickering, 391 U.S. at 572, 88 S.Ct. at 1736.
Clearly, much of Berg's speech involves matters only of private concern, not requiring further scrutiny of the reasons for his discharge. As noted by the district court, Berg's ongoing personal dispute with Matthews cannot be divorced from his charges against Hunter. Although Berg makes much of the fact that he neither named Matthews in any of his three complaints alleging Hunter's management malpractice, nor admitted that dissatisfaction with the disposition of his grievance against Matthews motivated his charges against Hunter, we are obligated to consider the entire record in evaluating his speech. See Connick, 461 U.S. at 147-148, 103 S.Ct. at 1690-1691. That record belies Berg's contention that the two are unrelated.
It is no coincidence that Berg's grievance against Hunter followed closely behind an appeal of Hunter's disposition of the Matthews altercation. Berg himself acknowledges that the underlying facts and rationale for his grievance against Matthews form the basis for several of his charges against Hunter. The content of those charges substantiates the interdependence of the two. Many of the allegations relate directly to Hunter's handling of Berg's numerous personal grievances with Matthews. For example, Berg's charge that Hunter violated CLC Policy 933 against sexual harassment stems from Berg's complaint that Matthews's sexual harassment of others prevented Berg from doing his job. His claim that Hunter violated Policy 912, "Non-Scheduled Use of College Facilities, Equipment and Materials by Employees," is based on an allegation that Hunter ignored information about Matthews's failure to investigate the misappropriation of school equipment by faculty members as identified by Berg. And Berg's charge based on CLC Policy 204, "Specific Duties and Responsibilities," arises from Berg's complaint that Matthews failed to supply him with a charter of responsibilities setting out his duties.
Although matters of sexual harassment, the misappropriation of college property, and the allocation of specific duties within the college may relate to CLC's efficient performance, Berg's charges clearly sought vindication of his many disagreements with Matthews and his personal dissatisfaction with Hunter's performance as the President of CLC. His speech does not implicate broader issues of public school administration unrelated to his personal disputes. See Altman v. Hurst, 734 F.2d 1240, 1244 (7th Cir.), cert. denied, 469 U.S. 982, 105 S.Ct. 385, 83 L.Ed.2d 320 (1984). The timing and content of these charges are tied inexorably to matters of only personal interest to Berg. See Connick, 461 U.S. at 148, 103 S.Ct. at 1690 (). That the effective operation of government and the services it renders are matters of public concern generally does not make each link in the chain of government operations constitutional fodder for disgruntled employees. If every facet of internal operations within a government agency were of public concern, and therefore any employee complaint or comment on such matters constitutionally protected, no escape from judicial oversight of every governmental activity down to the smallest minutia would be possible. Id. at 149, 103 S.Ct. at 1691. Personal grievances cloaked in the garb of institutional dress are not thereby made matters of public concern. See Vukadinovich v. Bartels, 853 F.2d 1387 (7th Cir.1988); Hesse v. Bd. of Educ., 848 F.2d 748 (7th Cir.1988); Egger v. Phillips, 710 F.2d 292, 318 (7th Cir.) (en banc), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983); Ferrara v. Mills, 781 F.2d 1508, 1515-16 (11th Cir.1986). Content, form, and context all must be considered in evaluating the true nature of the speech in question.
Notwithstanding these caveats and admonitions, however, Connick makes clear that even amid the strife of personal dispute, an employee's speech may touch upon matters of public concern necessitating...
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