Barnhill v. Board of Regents of University of Wisconsin System

• Decision Date: 10 October 1989
• Docket Number: UW-E,No. 89-0372,89-0372
• Citation: 462 N.W.2d 249,158 Wis.2d 278
• Parties: , 63 Ed. Law Rep. 1052 Glenn B. BARNHILL, Plaintiff-Respondent, ** v. BOARD OF REGENTS OF the UW SYSTEM: Harry P. Sharp, Director, Wisconsin Survey Research Laboratory,xtension, Robert Lee, Field Director, Wisconsin Survey Research Laboratory,xtension, Defendants-Appellants d . . Oral Argument
• Court: Wisconsin Court of Appeals

Page 249

462 N.W.2d 249

158 Wis.2d 278, 63 Ed. Law Rep. 1052

Glenn B. BARNHILL, Plaintiff-Respondent, ^** v. BOARD OF REGENTS OF the UW SYSTEM: Harry P. Sharp,

Director, Wisconsin Survey Research Laboratory,

UW-Extension, Robert Lee, Field Director, Wisconsin Survey

Research Laboratory, UW-Extension, Defendants-Appellants

^d.

No. 89-0372.

Court of Appeals of Wisconsin.

Oral Argument Oct. 10, 1989.

Opinion Released Sept. 27, 1990.

Opinion Filed Sept. 27, 1990.

Donald J. Hanaway, Atty. Gen., with Robert D. Repasky, Asst. Atty. Gen. (argued), on brief, for defendants-appellants.

Borns, Macaulay & Jacobson by Jacqueline Macaulay (argued), on brief, Madison, for plaintiff-respondent.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

GARTZKE, Presiding Judge.

Harry Sharp and Robert Lee appeal from a judgment for $80,665.87 against them in favor of Glenn Barnhill. Barnhill claims they discharged him from his job with the University of Wisconsin-Extension Survey Research Laboratory (WSRL) in retaliation for speech protected by the first amendment to the United States Constitution.

The issues are whether: (1) Sharp and Lee violated Barnhill's first amendment rights of free speech; (2) Sharp and Lee are entitled to qualified immunity from suit against them in their personal capacities; and (3) Barnhill is entitled to punitive damages. We conclude that Sharp and Lee violated Barnhill's right of free speech and are not immune from suit. We also conclude, however, that the jury was improperly instructed concerning punitive damages, which prevented the real controversy from being tried with respect to that issue. We reverse the judgment under sec. 752.35, Stats., and remand for a new trial on punitive damages only.

1. PROCEDURAL BACKGROUND

Barnhill was a part-time interviewer for WSRL. Sharp is WSRL's director and Lee was its field director. Barnhill sued them and the Board of Regents of the University of Wisconsin System (Regents) under 42 U.S.C. sec. 1983, ¹ alleging he was fired in retaliation for giving information about a shopping mall survey to newspapers.

The jury found that no later than March 26, 1985 ² Barnhill was "discharged because he disclosed materials concerning the shopping mall survey to the newspaper(s)" and that "retaliation for exercise of his first amendment rights [was] a primary factor in [his] discharge." The jury awarded Barnhill $16,000 for lost earnings, $20,000 for mental anguish, and $25,000 punitive damages.

Sharp, Lee, and the Regents moved for judgment notwithstanding the verdict and for a new trial. They asserted that they had not violated Barnhill's first amendment rights, they are entitled to qualified immunity, and the award is excessive. The trial court denied the motion on the first two grounds but granted Sharp and Lee a new trial on damages for lost earnings. The court dismissed all claims against the Regents because they are entitled to absolute immunity.

The parties then stipulated that Barnhill's lost earnings were $5,200 and that his reasonable attorney's fees, costs, and disbursements were $30,465.87. The trial court entered judgment in favor of Barnhill and against Sharp and Lee for $80,665.87, and Sharp and Lee appealed.

2. FIRST AMENDMENT RIGHTS OF PUBLIC EMPLOYEES

If a public employee claims to have been impermissibly disciplined because of speech activity, the analysis is a multi-step process. Melton v. City of Oklahoma City, 879 F.2d 706, 713 (10th Cir.1989).

First, the court must determine whether a public employee's speech touches upon a matter of public concern. Connick [v. Myers], 461 U.S. 138, 103 S.Ct. 1684 [75 L.Ed.2d 708 (1983) ]. Second, if the statement satisfies the public concern inquiry, the court must then balance the interests of the employee in making the statement against the public employer's interest in the effective and efficient fulfillment of its responsibilities to the public. Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). Third, assuming that both previous elements have been found in favor of the plaintiff, he or she must then prove that the protected speech "was a 'motivating factor' in the detrimental employment decision." Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). Fourth and finally, if plaintiff makes this showing, the burden then shifts to the employer to show by a preponderance of evidence that it would have reached the same decision in the absence of the protected activity. Id. ... [T]he first two steps of the process involve questions of law for the court, the two-part Mt. Healthy analysis involves questions of fact for the jury. Koch v. City of Hutchinson, 847 F.2d 1436, 1440 n. 11 (10th Cir) (en banc) cert. denied, 488 U.S. 909, 109 S.Ct. 262, 102 L.Ed.2d 250 (1988).

Melton, 879 F.2d at 713.

The trial court concluded that Barnhill's speech had nothing to do with dissatisfaction over internal employment conditions. Rather, it related to a matter of public concern. Sharp and Lee do not dispute that Barnhill's disclosure constituted speech on a matter of public concern. They focus their argument on the second step in the analysis. They argue that the balancing of interests under Pickering weighs in their favor rather than Barnhill's.

When deciding the motions after verdict, the trial court did not explicitly perform the necessary Pickering balancing. It noted that the jury found the balance of interests weighed in favor of Barnhill and that the finding was advisory only. It apparently adopted that "finding" as its own conclusion of law.

The balancing of interests under Pickering is a question of law for the court. Melton, 879 F.2d at 713, Wren v. Spurlock, 798 F.2d 1313, 1317 (10th Cir.1986). A trial court errs by leaving the question to the jury. Wren, 798 F.2d at 1318. However, the error does not require reversal if our legal conclusion matches the jury's "finding." Id.

The trial court made no findings concerning facts material to the balancing of interests under Pickering. We have two options stemming from the failure of the trial court to make findings of fact supporting its conclusion of law. Dodge v. Carauna, 127 Wis.2d 62, 67, 377 N.W.2d 208, 211 (Ct.App.1985). First, we may independently review the record and affirm the court's decision if the evidence sustains findings supporting the trial court's conclusion, and reverse if not. Second, we may reverse and remand the matter to the court to make findings of fact and conclusions of law.

We choose the first option. The record is extensive and complete. We have reviewed it and conclude that the material evidence is undisputed. We now recite the evidence.

3. EVIDENCE

Sharp is a University of Wisconsin-Madison faculty member. He has been the director of WSRL since its formation twenty-five years ago and is an expert in survey research. He is primarily responsible for developing the questionnaires used in WSRL research. Lee was the field director of WSRL. His duties included supervision of interviewers and other personnel involved in actually performing surveys using questionnaires developed by WSRL.

WSRL generally avoids commercial market research but does research on customer preferences for trade associations and nonprofit organizations. WSRL is funded entirely from fees received from clients requesting survey research. It has an excellent reputation in its field.

The validity of survey research depends upon the confidentiality of the survey questions during the period that the survey is being conducted. A reputation for disclosing the text of survey questions before the survey is completed can harm the business of a survey research organization.

WSRL employs part-time interviewers to question randomly selected individuals. The interviewers are required to sign and follow a pledge of confidentiality which reads in relevant part:

I will maintain professional ethical standards of confidentiality while performing my duties. This means all information obtained during the course of conducting this research will be held in strict confidence. [emphasis added.] I know this is priviledged [sic] information and as such I promise to uphold the Laboratory's standards.

I am aware that the rights of human subjects is [sic] a prime concern to the Laboratory and that all study procedures are reviewed to ensure that individual respondents are protected at each stage of research.

Barnhill was a part-time interviewer beginning January 30, 1984. He signed a pledge of confidentiality. He had no prior expertise in survey research.

Although Sharp testified that he believed the language of the pledge extended to the disclosure of the questions from survey questionnaires, he acknowledged that it was ambiguous. Barnhill testified that he understood the pledge to apply only to information received from persons surveyed, such as a disclosure of a filled-out questionnaire. He testified that his training class and the training manual discussed confidentiality only in those terms. A coworker testified to the same effect.

WSRL's "Manual for Telephone Interviewers," in its discussion of the pledge of confidentiality, speaks only to protecting survey data and other information obtained through interviews. It suggests that the interviewers tell interviewees about the pledge on occasion.

In the fall of 1984, the International Council of Shopping Centers, a trade association, contracted with WSRL for a survey of shoppers' attitudes toward group activities in malls. Sharp prepared the survey questions with input from the sponsor. WSRL conducted a "pre-test" consisting of 100 interviews. This was done to examine questions for clarity and to do preliminary statistical analyses.

Before the pre-test, Barnhill attended a briefing on November 23, 1984 regarding the survey. He left the meeting. When the meeting leader asked why, Barnhill expressed displeasure that WSRL was doing a survey on...