Ballard v. Blount

• Decision Date: 12 December 1983
• Docket Number: Civ. A. No. C 81-2238A.
• Citation: 581 F. Supp. 160
• Parties: W.L. BALLARD, Plaintiff, v. Paul BLOUNT, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

581 F. Supp. 160

W.L. BALLARD, Plaintiff, v. Paul BLOUNT, et al., Defendants.

Civ. A. No. C 81-2238A.

United States District Court, N.D. Georgia, Atlanta Division.

December 12, 1983.

J. Hue Henry, Athens, Ga., for plaintiff.

Michael Bowers, Atty. Gen., Alfred L. Evans, Asst. Atty. Gen., H. Perry Michael, Carol Atha Cosgrove, Sr. Asst. Attys. Gen., Atlanta, Ga., for defendants.

ORDER

VINING, District Judge.

In this 42 U.S.C. § 1983 action, the plaintiff, a tenured professor at Georgia State University, alleges that he was retaliated against for conduct protected by the First and Fourteenth Amendments. In addition, he alleges that he was not awarded salary increases to which he was entitled and that this action violated the due process and equal protection clauses of the Fourteenth Amendment. The defendants have moved for summary judgment, claiming that the plaintiff's alleged speech was not protected because it did not relate to matters of "public concern" and that their pay raise system did not violate the plaintiff's due process and equal protection rights.

I. BACKGROUND

The plaintiff, Dr. William Lewis Ballard, was hired as an assistant professor of English at Georgia State University in 1969, and shortly thereafter he began developing a linguistics program in the English department. In 1973 he was promoted to associate professor of English and was awarded tenure. He continued teaching only linguistics courses until 1979. From the inception of the linguistics program in 1969 until its ultimate dissolution in 1980, it is uncontroverted that the linguistics program was plagued by consistently low student interest. The defendants contend that the lack of student interest was the motivating factor in the decision to dissolve the program.

Shortly before the dissolution of the linguistics program, but at the time when enrollment in the linguistics courses was extremely low, defendant Dr. Blount, Chairman of the English department and Dr. Ballard's immediate supervisor, informed Dr. Ballard that he (Dr. Ballard) would have to teach traditional English courses rather than the linguistics courses which he had previously taught. Dr. Ballard chose teaching a freshman-level English class, and he began teaching this class in the fall of 1979. He continued teaching in the English department until September 1981, at which time he was transferred to the College of Public and Urban Affairs. Shortly thereafter, in December 1981, Dr. Ballard instituted this suit.

In his complaint Dr. Ballard alleges that he has received less than the average annual salary increases for the academic years 1976-77 through 1981-82. He claims that these less-than-average salary increases were retaliatory actions designed to punish him for the exercise of rights secured by the First and Fourteenth Amendments. Dr. Ballard also claims that the defendants retaliated against him in a variety of other ways, including: cancelling the entire linguistics program, failing to appoint him to faculty committees, denying him equal release time (pay without duties), and failing to assign him to appropriate summer teaching duties.¹

After reviewing Dr. Ballard's complaint and deposition, this court has identified four separate communicative and associative activities for which Dr. Ballard claims he was retaliated against. These claims may be summarized as follows:

(1) A letter he wrote objecting to the joint decision of Dr. Blount and the Department Tenure Committee which recommended denying tenure to a colleague of Dr. Ballard. Ballard Deposition at 27.

(2) Dr. Ballard's challenges to the manner in which he and other colleagues were assigned to teach freshman-level English courses. Ballard Deposition at 19.

(3) Dr. Ballard's claim that he was further retaliated against when he unsuccessfully challenged through an internal administrative grievance procedure the defendants' decision to award him less-than-average annual salary increases. Complaint ¶ 25.

(4) Dr. Ballard's challenges to a proposed freshman English syllabus which restricted a teacher's latitude in conducting the class. Ballard Deposition at 18.

In addition to claiming that his less-than-average salary increases were in retaliation for protected First Amendment activity, Dr. Ballard claims that these salary increases denied him equal protection and due process. Complaint ¶¶ 23, 24.

II. DISCUSSION

Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears an exacting burden of establishing that there is no dispute regarding any material fact in the case. Warrior Tombigbee Transportation Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.1983). And all reasonable doubts about the facts should be resolved in favor of the non-movant. Clemons v. Doughterty County, Georgia, 684 F.2d 1365, 1369 (11th Cir.1982).

A. The First Amendment Claim

The threshold inquiry in this case is whether Dr. Ballard's speech involved matters of "public concern," rather than matters relating merely to Dr. Ballard's personal interest. Speech involving the former is protected, whereas speech involving the latter is not. Connick v. Myers, ___ U.S. ___, ___, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). See Note, Connick v. Myers: Narrowing The Free Speech Right of Public Employees, 33 CATH.U.L.REV. 429 (1983). If the employee's speech cannot be characterized fairly as constituting speech on a matter of public concern, it is unnecessary for the court to scrutinize the reasons for the employee's alleged reprimand. 103 S.Ct. at 1689. Whether Dr. Ballard's speech involved a matter of public concern is to be determined by the content, form, and context of a given statement as revealed by the whole record. Id. at 1690. Additionally, the question relating to the protected status of speech is one of law; thus it is an appropriate issue to be resolved on a motion for summary judgment. Id.; Mahaffey v. Kansas Board of Regents, 562 F.Supp. 887, 888, 890 (D.Kan. 1983).

In Connick v. Myers, the Supreme Court interpreted Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and its progeny and attempted to strike a balance between the interest of the employee, as a citizen, in commenting on 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. The specific question framed by the Connick Court was "whether the First and Fourteenth Amendments prevent the discharge of a state employee for circulating a questionnaire concerning internal office affairs." 103 S.Ct. at 1686 (emphasis added). The state argued that since the employee's questionnaire concerned matters relating only to internal office affairs, this speech was not protected because, by definition, it did not relate to a matter of public concern. The Court agreed, reasoning that employee expression which does not relate to any matter of political, social, or other community concern is a personal, rather than a public, expression. Id. at 1690. Additionally, the court recognized that

government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for dismissal are alleged to be mistaken or unreasonable.

Id.

The Court also noted that "the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs." Id. at 1691 (emphasis added). Finally, the Court recognized that even in those situations where the employee's speech has a limited impact on matters of public concern, it will not necessarily fall within the protection of the First and Fourteenth Amendments. Id. at 1693-94. In sum, the Court held

When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.

Id. at 1690.

The Connick Court's public versus private distinction reflects the common-sense realization that government offices could not function if every employment decision became a constitutional matter. The Court rejected the proposition that all matters which transpire within a government office are of public concern, since this would mean that every remark or criticism directed against a public official would plant the seed of a constitutional case. Id. at 1691. Indeed, if a faculty member need only point to some verbal criticism or altercation concerning his college, its curriculum, or how things are run in order to convert an adverse personnel decision into a federal action, then nearly every adverse personnel decision could be reviewed by a federal court under 42 U.S.C. § 1983.

The Connick decision was applied in a case remarkably similar to this case. In Mahaffey v. Kansas Board of Regents, 562 F.Supp. 887 (D.Kan.1983), a tenured professor claimed that he was punished for expressing opinions protected by the First and Fourteenth Amendments. The plaintiff's assertedly protected speech activities concerned matters such as his individual salary increases, his position on the college organizational chart, policy decisions concerning internal departmental affairs, and the identity of his superiors. The court characterized the discussion of these matters as quintessential items of individual, rather than public, concern. Further, the...