991 F.2d 1344 (7th Cir. 1993), 92-1680, Walsh v. Ward

Docket Nº:92-1680.
Citation:991 F.2d 1344
Party Name:James WALSH, Plaintiff-Appellant, v. Pat WARD and Thomas Oseland, Defendants-Appellees.
Case Date:April 28, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1344

991 F.2d 1344 (7th Cir. 1993)

James WALSH, Plaintiff-Appellant,


Pat WARD and Thomas Oseland, Defendants-Appellees.

No. 92-1680.

United States Court of Appeals, Seventh Circuit

April 28, 1993

Argued March 3, 1993.

James P. Baker (argued), Springfield, IL, for plaintiff-appellant.

Jill Leka (argued), and Gary S. Rapaport, Springfield, IL, for defendants-appellees.

Before POSNER and EASTERBROOK, Circuit Judges, and PELL, Senior Circuit Judge.

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EASTERBROOK, Circuit Judge.

On being promoted to battalion chief, the highest civil service position in the Springfield, Illinois, fire department, James Walsh received what many would consider a plum appointment: directing the training of other firefighters during normal business hours. Until this promotion, Walsh had been a captain of an engine company, with 24 hours on duty followed by 48 hours off. His new position paid more and had shorter, regular hours. Walsh nonetheless filed this suit, contending that the assignment violated his rights under the Constitution of the United States.

Walsh's complaint asserts that he conducted a business during the 48-hour gaps between turns at the fire station. Until the union secured him the right to return to his old hours, Walsh had to give up this business in order to train firefighters. During the year he worked every weekday, he lost more from his private endeavors than he received in additional salary. Now the Constitution does not create a right to moonlighting; public agencies may insist on the full-time services of their employees. Walsh concedes as much. His case is special, he contends, because his superiors assigned him the 9-5 post in retribution for his speech while allowing other firefighters to hold second jobs. According to the complaint, "for many years [Walsh] has openly expressed his opinions with respect to the manner in which [defendant Pat Ward] performed his role as the Director of the Department of Public Safety and, from time to time, was critical of certain policies and views adopted" by Ward. Ward and Thomas Oseland, the Fire Chief, changed his work schedule in order to get back at him for criticizing Ward. Walsh concedes that the training job was appropriate work for a battalion chief and that his on-the-job perquisites and satisfactions were unaffected by the assignment. His sole contention is that public agencies may not consider an employee's speech when making assignments that affect other sources of income.

The district court dismissed the complaint under Fed.R.Civ.P. 12(b)(6), holding that defendants are immune from liability in damages. 757 F.Supp. 959. (Walsh, back on 24-hour shifts, does not seek an injunction or damages from the municipality.) In assigning Walsh to a new position after his promotion in 1988, the district court held, the defendants did not violate any clearly established constitutional right. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Walsh disputes this assessment, pointing out that in 1979 we held that "a job transfer, in contrast to a discharge, could be the subject of a first amendment challenge." Egger v. Phillips, 710 F.2d 292, 324 (7th Cir.1983) (in banc) (Cudahy, J., concurring), citing McGill v. Board of Education, 602 F.2d 774, 780 (7th Cir.1979). Defendants concede that McGill applies the approach of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and other first amendment cases, to transfers at no loss of pay, but reply that Walsh was not "transferred." He was promoted--at his own request, albeit not to the position of his choosing. To this day we have not applied Pickering, McGill, and similar cases to promotions, initial assignments, and the like, all of which means, defendants insist, that it was not "clearly established" in 1988 that they were forbidden to consider an employee's speech when matching battalion chiefs with positions.

McGill recognizes a proposition that cannot be denied: an employer can penalize past speech and discourage future speech by assigning a worker to an undesirable job. Dissenters exiled to Siberia (or the equivalents found within many bureaucracies) quickly get the message, even though the new postings carry the same salary and title. Supervisors control many sources of satisfactions, from the cleanliness of the workplace to the allocation of parking spaces. Rewards and penalties are most visible to judges when stated in monetary terms--say, supporters receive 20% more than critics--but incentives are no less effective when they are subtle. A campaign of petty harassment may achieve the same effect as an explicit punishment. Pieczynski v. Duffy, 875 F.2d 1331 (7th Cir.1989); Bart v. Telford, 677 F.2d 622 (7th Cir.1982).

Still, Pickering does not hold that the first amendment creates a remedy for every official action that responds in some way to an employee's speech. Instead it establishes a balancing approach: public

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employers may penalize speech that is excessively disruptive, or concerns the employee's private business, unless that penalty is excessively burdensome to the public interest in free speech. E.g., Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980); Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). Any balancing approach is hard to administer and invites consideration of many factors. Among these are the costs of administering the judicial system. Litigation is expensive and, alas, prone to error. The farther we depart from bright line rules, the more common error becomes. Have defendants gone "too far"? Questions of degree cannot be answered reliably, which means that taking any action is risky to a potential defendant.

Once courts begin to use a sliding scale--posing questions that lack right, or at least obviously right, answers--it becomes correspondingly important to insist, before exacting damages from public officials who step over the line, that the...

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