875 F.2d 1331 (7th Cir. 1989), 88-2381, Pieczynski v. Duffy

Docket Nº:88-2381.
Citation:875 F.2d 1331
Party Name:Mary PIECZYNSKI, Plaintiff-Appellee, v. Katherine DUFFY and Roberto Maldonado, Defendants-Appellants.
Case Date:May 30, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1331

875 F.2d 1331 (7th Cir. 1989)

Mary PIECZYNSKI, Plaintiff-Appellee,

v.

Katherine DUFFY and Roberto Maldonado, Defendants-Appellants.

No. 88-2381.

United States Court of Appeals, Seventh Circuit

May 30, 1989

Argued April 19, 1989.

Rehearing and Rehearing En Banc Denied July 7, 1989.

Page 1332

Mardell Nereim, Asst. Corp. Counsel, Chicago, Ill., for defendants-appellants.

John L. Gubbins, John L. Gubbins & Associates, Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, POSNER, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

Mary Pieczynski, an employee of the City of Chicago, brought this civil rights suit (42 U.S.C. Sec. 1983) against the City and three of her supervisors, charging political harassment in violation of the First Amendment, which has of course been held applicable to the states and their subdivisions. The jury exonerated the City and one of the supervisors, but found the other two supervisors, Duffy and Maldonado, liable, and awarded Pieczynski $95,000 in compensatory damages and $7,500 in punitive damages. Duffy and Maldonado appeal, represented by the City. The City argues qualified immunity and also complains about the exclusion of certain evidence and about the size of the damages award, but its major argument is that there is insufficient evidence of harassment to sustain the verdict. In making this argument the City, in an ill-mannered brief bristling with ad hominem criticisms of its adversary, presents the facts as it would have liked the jury to find them rather than the facts that a rational jury might have found against the appellants.

Claims of politically motivated personnel action in public employment abound in this circuit--Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), which opened this particular floodgate, originated here--and it may be useful at the outset to try to harmonize the precedents in order to provide guidance to the bench and bar of this circuit. Our emphasis is therefore on Supreme Court and Seventh Circuit cases, but we shall refer to a few cases from the other circuits too.

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1. The discharge of a public employee because of his political beliefs violates the First Amendment, Elrod v. Burns, supra, unless the employee's job is a policymaking position or a position of confidence, such that his employer should have a free hand in deciding whether to retain him, Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Bicanic v. McDermott, 867 F.2d 391 (7th Cir.1989); Kurowski v. Krajewski, 848 F.2d 767, 769-70 (7th Cir.1988); Soderbeck v. Burnett County, 752 F.2d 285, 288 (7th Cir.1985).

2. A discharge is not because of the employee's political beliefs if the employee would have been discharged regardless of those beliefs, even if the reason he would have been discharged anyway, while nonpolitical, is thoroughly disreputable, such as nepotism. Byron v. Clay, 867 F.2d 1049, 1051 (7th Cir.1989) (dictum); Lindahl v. Bartolomei, 618 F.Supp. 981, 990-91 (N.D.Ind.1985). The First Amendment is not a civil service statute.

3. A discharge does not violate the First Amendment even though the only reason for the discharge is political, if reinstatement or the other relief requested would violate strong public policy, for example as embodied in state criminal prohibitions of "ghost employment" (which means being on the public payroll without doing any work). Byron v. Clay, supra, 867 F.2d at 1051-52. To that extent--but to that extent only--there is a defense of "unclean hands" (if equitable relief is sought) or "in pari delicto" (if legal relief is sought). But the mere fact that valid grounds exist for discharging the worker will not excuse the employer if, had it not been for the worker's political beliefs, he would not have been discharged. See id. at 1051; Shondel v. McDermott, 775 F.2d 859, 869 (7th Cir.1985).

4. Harassment of a public employee for his political beliefs violates the First Amendment unless the harassment is so trivial that a person of ordinary firmness would not be deterred from holding or expressing those beliefs. See, e.g., Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982); Rode v. Dellarciprete, 845 F.2d 1195, 1205 (3d Cir.1988). The harassment need not be so severe as to amount to constructive discharge--that is, it need not force the employee to quit, by making work unbearable for him. Lieberman v. Reisman, 857 F.2d 896, 900 (2d Cir.1988); contra, Delong v. United States, 621 F.2d 618 (4th Cir.1980).

5. A statute or ordinance, general in terms, governing public employment does not violate the First Amendment even if enacted in retaliation against a group of public employees for their political views or activities. Fraternal Order of Police v. City of Hobart, 864 F.2d 551 (7th Cir.1988); cf. Rateree v. Rockett, 852 F.2d 946, 950-51 (7th Cir.1988).

6. Political criteria are permissible in hiring, although not in firing. Rutan v. Republican Party of Illinois, 868 F.2d 943, 954-55 (7th Cir.1989) (en banc); cf. LaFalce v. Houston, 712 F.2d 292 (7th Cir.1983) (permitting the use of political criteria in awarding public contracts). The principle has been extended to transfers following the abolition of particular jobs--as a practical matter such transfers are hires. See McDonald v. Krajewski, 874 F.2d 454, 455, (7th Cir. 1989).

7. Political criteria are also permissible in promotions and in transfers between existing jobs unless the practical consequence for an employee adversely affected by the application of the criteria is to discharge him. Rutan v. Republican Party of Illinois, supra, 868 F.2d at 955-56; contra, Bennis v. Gable, 823 F.2d 723, 731-32 (3d Cir.1987). This use of politics is thus treated differently from harassment targeted on particular employees (Bart v. Telford, supra ). "[A]cts of retaliation must be distinguished from favored treatment of political supporters that has the incidental effect of making a nonsupporter no better off." Rutan v. Republican Party of Illinois, supra, 868 F.2d at 954 n. 4. It is one thing to be a target of a campaign of retaliation, another to be incidentally disfavored as an inevitable but not intended

Page 1334

consequence of favoritism for other employees.

Do the decisions establishing as the law of this circuit the propositions we have set forth compose a pattern, or a crazy quilt? We discern a pattern, albeit of the rough-and-ready sort characteristic of common law adjudication. The courts, interpreting a vague constitutional command in circumstances remote from those envisaged by the framers, feel the tug of opposing policies. See, e.g., LaFalce v. Houston, supra; Horn v. Kean, 796 F.2d 668 (3d Cir.1986) (en banc). On the one hand, retaliating against public...

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