Belk v. Town of Minocqua

• Citation: 858 F.2d 1258
• Decision Date: 27 September 1988
• Docket Number: No. 88-1131,88-1131
• Parties: Sue M. BELK, Plaintiff-Appellant, v. TOWN OF MINOCQUA, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1258

858 F.2d 1258

3 Indiv.Empl.Rts.Cas. 1489

Sue M. BELK, Plaintiff-Appellant, v. TOWN OF MINOCQUA, et al., Defendants-Appellees.

No. 88-1131.

United States Court of Appeals Seventh Circuit.

Argued June 1, 1988.

Decided Sept. 27, 1988.

Charles Barr, Barr & Shapiro, Menomonee Falls, Wis., for plaintiff-appellant.

Michael J. Cieslewicz, Kasdorf Lewis & Swietlik, S.C., Milwaukee, Wis., for defendants-appellees.

Before WOOD, Jr., FLAUM, and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

Sue Belk, the former Town Clerk and Town Secretary of Minocqua, Wisconsin, appeals from the district court's grant of summary judgment in favor of the Town of Minocqua and certain members of its Board of Supervisors. Belk alleged that the defendants violated 42 U.S.C. Secs. 1983 and 1985 when they terminated her employment in retaliation for her expression of intent to exercise her first amendment right to petition the government for redress of grievances. ¹ For the reasons set forth below, we reverse and remand.

I.

In September 1978, Belk was appointed Town Clerk of Minocqua when the elected incumbent Clerk, Evelyn Hartlep, resigned. Belk ran for the position in the subsequent general election of 1979, won, and retained the office in the 1981 and 1983 elections. In the 1985 election, however, the voters denied Belk a fourth term in office and elected instead her deputy, Marlene Kerkes.

In addition to her duties as Town Clerk, Belk was appointed Town Secretary during each of her terms as Clerk. She served as Secretary as an "at will" employee throughout her tenure in elected office. The Town classifies the office of Clerk as a part-time salaried position, while the Secretary's position is denominated a part-time hourly position. During Belk's tenure as Secretary, however, she was compensated as a full-time employee--at a rate of seven hours per day, five days per week. Apparently, it was the custom in Minocqua for the Town Clerk to also assume the Town Secretary's duties. Belk was informed that this practice was adopted in response to the town residents' refusal to authorize salaries for both a full-time Clerk and a part-time Secretary. Belk asserts that the practice of combining the Clerk and Secretary posts created the appearance that the equivalent of one full-time position had been established, when in fact the net effect of the Town's administrative structure amounted to the creation of one full-time position and a half, because the Secretary was actually paid on a full-time basis, in apparent derogation of the wishes of town residents.

Although Belk stopped serving as Clerk immediately after her election defeat, for reasons that are not clear from the record she continued to perform the duties of Secretary. In the meantime, Belk requested a special meeting of the Town Board to consider a proposal that the Board adopt a new position classification for the job of Town Secretary clarifying the duties of the position and recognizing that it was, in fact, a full-time hourly position. A special Board meeting was convened on April 4, 1985, but was subsequently adjourned until April 9. Members of the public were present when the Board reconvened to consider the announced purpose of the meeting--Belk's request for the adoption of a revised position classification for the post of Town Secretary.

The meeting commenced with Board Supervisor Hartlep, Belk's predecessor as Clerk/Secretary, reiterating that the position of Town Secretary had been a part-time hourly position since its inception. Notwithstanding that Belk no longer occupied the affiliated office of Clerk, Hartlep, in a departure from tradition, offered to allow Belk to continue in the job of Secretary, but at the rate of compensation of three and one half hours per day, five days a week. Belk apparently responded that although she desired to stay on as Secretary, she considered the Board's offer to be a demotion because she had previously been paid seven hours per day as Secretary. ² When other Town Board members also voiced their opposition to the proposed reclassification of the Secretary's job as a full-time position, Belk stated her intention to pursue a grievance to review the Board's refusal to adopt a reclassification. ³

Belk's announcement was apparently not what the Town Board had hoped to hear. It quickly and without further discussion voted to terminate Belk as Secretary, although such action was never contemplated by the official notice for the meeting. Following the vote, which Belk contends caught her completely by surprise, none of the Board members would respond to her entreaties to explain their decision, nor would they furnish her with an official written explanation and notice of dismissal as required by the Town Manual. Except for the instant lawsuit, Belk has taken no other steps to obtain relief--she never filed her threatened grievance, appealed the Board's decision terminating her, or complained about the lack of due process attending her summary dismissal. Consistent with past practice, Belk's successor as Town Clerk assumed the additional duties of Town Secretary, receiving compensation at the old rate of seven hours a day, five days per week.

Belk filed suit in district court under 42 U.S.C. Secs. 1983 and 1985, alleging that the Town Board violated her first amendment right to petition the government for redress of grievances by terminating her in retaliation for threatening to appeal the Board's decision not to reclassify the position of Town Secretary. The district court initially rejected Belk's argument that because her claim involved the petition clause it should be analyzed under different principles than are customarily employed in cases involving public employees who are allegedly terminated for exercising their right to free speech. The court then proceeded to find that the purported substance of Belk's threatened grievance was not constitutionally protected because it did not deal with a matter of public concern. Consequently, the court granted summary judgment in favor of the defendants on the issue of whether Belk's termination was lawful.

Belk raises two arguments on appeal. She contends that the first amendment establishes an absolute right to petition the government for a redress of grievances which was violated when the Board fired her as a direct consequence of her threat to appeal the Board's decision not to reclassify the job of Town Secretary. Alternatively, Belk argues that even if no such absolutely protected right exists, the content of her threatened grievance was constitutionally protected. Thus, the Board's order dismissing her was an impermissible retaliation for the threatened exercise of her constitutional right. It is Belk's specific contention that the Board's decision to terminate her was motivated by the fear that a formal reconsideration of its adverse decision would bring to light more fully the Board's "deceit" of the townspeople concerning the compensation scheme for the Clerk/Secretary position(s). Furthermore, the attending publicity would also have exposed the fact that the occupancy of those offices by the same person violated a Wisconsin statute, the existence of which Belk had disclosed to at least one Board member prior to her 1985 election defeat. We will consider these arguments in turn.

II.

Because Belk is appealing from a grant of summary judgment to the defendants, we must draw all reasonable inferences from the record in her favor. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir.1988). Where, as here, there are no genuine issues of material fact requiring a trial, our role is limited to determining whether the district court properly held that the party seeking summary judgment was entitled to prevail as a matter of law. See, e.g., E.E.O.C. v. Sears, Roebuck & Co., 839 F.2d 302, 354 (7th Cir.1988); DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir.1987). We make this determination de novo.

Neither the Supreme Court nor this court has ever directly addressed Belk's first claim--that the first amendment confers upon public employees what amounts to an absolute right, divorced from any consideration of content, to file employment-related grievances. ⁴ However, while the roots of the petition clause extend deep into our constitutional history, the freedom to petition the government for redress of grievances is but one of several fundamental freedoms protected by the first amendment. The Supreme Court recently underscored this truism in McDonald v. Smith, 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985), in which the Court flatly rejected the proposition that the petition clause provided absolute immunity from damages for libel. Disagreeing with the notion that the petition clause either can or should be considered in isolation, the Court stated:

To accept petitioner's claim of absolute immunity would elevate the Petition Clause to special First Amendment status. The Petition Clause, however, was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble. These First Amendment rights are inseparable and there is no sound basis for granting greater constitutional protection to statements made in a petition ... than other first amendment expressions.

Id. at 485, 105 S.Ct. at 2791 (citations omitted). Were we to adopt Belk's position that the right to petition is absolute, we would be guilty of implementing precisely the sort of hierarchy of first amendment rights forbidden by McDonald.

In the leading case of Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Supreme Court held that the right to free speech protected by the first amendment is not violated by an employer who retaliates against a public employee for exercising that right, unless the employee's speech addressed...