Conner v. Reinhard
| Citation | 847 F.2d 384 |
| Decision Date | 19 May 1988 |
| Docket Number | No. 87-1940,87-1940 |
| Parties | Barbara CONNER, Plaintiff-Appellant, v. Rudy G. REINHARD, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Victor M. Arellano, Lawton & Cates, S.C., Madison, Wis., for plaintiff-appellant.
James M. Kalny, Green Bay, Wis., for defendants-appellees.
Before WOOD, Jr. and CUDAHY, Circuit Judges, and WILL, Senior District Judge. *
In an action brought under 42 U.S.C. Sec. 1983, plaintiff Barbara Conner charged that she was fired from her job with the City of Green Bay in violation of her first amendment right to freedom of speech. Conner named as defendants Rudy Reinhard, her former supervisor, and the estate of Richard Zolper, 1 a former alderman for the City of Green Bay. The district court granted the defendants' motion for summary judgment based upon their affirmative defense of qualified immunity.
Plaintiff Barbara Conner was hired as a Clerk Steno II for the Comptroller's Office of the City of Green Bay in February 1982. Defendant Rudy Reinhard, Comptroller for the City of Green Bay, was Conner's immediate supervisor.
In addition to her regular duties, Conner also took minutes at the Board of Ethics meetings. The Board of Ethics handled complaints that alleged violations of the city's Ethics Code. Defendant Richard Zolper was a member of the Board of Ethics in May 1982. On May 12, 1982, Conner was taking the minutes of a Board of Ethics meeting when a discussion arose concerning the use of money from the city contingency fund to investigate alleged wrongdoing by alderman Guy Zima. During the course of the meeting, the Board suspended the rules to allow interested parties to speak. The following exchange between the Board members and Barbara Conner took place:
Camilli: Is there anybody else that would like to speak?
Conner: I'd like to speak a little bit about the Contingency Fund not being for this purpose.
Marinan: What are you linked to?
Conner: I'm a citizen of Green Bay.
Marinan: You have no right to speak now.
Venci: Why? We suspended the (regular) order to let everybody speak.
Zolper: Well, if you're going to speak then we want your name and address and your position ... what you do for a living.
Marinan: And we want to cross examine you ... tell how you know that fact.
Venci: That's really intimidation, you guys.
Zolper: It's not.
Conner: I work for Rudy and I know that the Contingency Fund is not for this purpose.
Camilli: Your name, please, for the record.
Conner: Barbara Conner, 215 North Van Buren. I'm a citizen of Green Bay.
Camilli: You're also a city employee?
Conner: I'm a city employee and I have some concern about how we spend tax money.
Camilli: And you're aware of the Contingency Fund because of your work in the Comptroller's Office, is that correct?
Conner: Right. And I take the minutes of the Finance Committee meeting and I know the reticence with which they dip into the Contingency Fund.
Appendix of Plaintiff-Appellant at 165.
As the district court found, Zolper appeared to be angry with Conner at the meeting. A few days after the May 12th meeting, Zolper visited Reinhard in his office and, according to Conner, slammed the door shut.
On May 19, 1982, Conner received the following letter of reprimand from Reinhard:
In reference to the remark concerning the use of the Contingency Fund attributed to you at the May 12th, 1982, Board of Ethics Meeting, I must advise you that it was a case of poor judgment on your part when you expressed the views of the Comptroller's Office while acting as Recording Secretary for the Committee. If you had been attending the Hearing not as the Recording Secretary but as a private citizen your personal viewpoint would have been more appropriate.
In the future I would caution you, while acting as the Recording Secretary, not to speak for the Comptroller's Office unless questioned directly.
I am sorry this situation arose and hope to avoid a similar situation in the future.
Upon receiving this letter, Conner asked Reinhard what the letter meant. Reinhard advised Conner not to speak on his behalf without prior authorization. Conner replied that if the situation occurred again, she would do the same thing. Shortly thereafter, Conner announced to the press that she had been fired.
Conner also wrote a long letter to Reinhard, dated May 20, 1982. In that letter, she expressed her disappointment at Reinhard's refusal to consider her right as an individual to express an opinion. Conner also opined that if Reinhard checked the transcript of the May 12th meeting, he would find that she had been expressing her personal viewpoint, and not that of the Comptroller's Office:
I do not know the view of the Comptroller's Office. I did check with Lou Marchetti, chairman of the Finance Committee, about the use of the Contingency Fund, and as I had surmised from being present at Finance Committee Meetings, the Contingency Fund is for unforeseen emergencies and Acts of God, such as severe winters, floods, equipment breakdowns, etc. It is not for flying to Louisiana oil rigs to check on past activities of Councilman Guy Zima. It is not for personal vendettas.
Record Item 26 at 4. Reinhard terminated Conner's employment on May 24, 1982.
Conner initially filed an action regarding the events of May 1982 on March 11, 1983 in the Eastern District of Wisconsin, naming the City of Green Bay as defendant. Three months prior to the trial, Conner attempted to join Reinhard as a defendant, but the court denied that motion as untimely. The trial commenced with the city as the sole defendant. During the second day of trial, the district court granted the city's motion for a directed verdict because Conner failed to show a custom or policy that could result in municipal liability. Conner subsequently filed the present lawsuit on May 10, 1985, naming Rudy Reinhard and the estate of Richard Zolper as defendants.
On December 6, 1985, the defendants filed a motion for summary judgment based on the doctrine of claim preclusion. 2 The district court denied that motion on April 18, 1986.
At the completion of discovery, the defendants again moved for summary judgment, this time on the basis of qualified immunity. On March 26, 1987, the district court granted the defendants' motion. We have jurisdiction over this appeal under 28 U.S.C. Sec. 1291.
Conner appeals the district court's ruling that the defendants are qualifiedly immune from suit. Conner also argues that because there are material factual issues in dispute, the district court erred in granting summary judgment. The defendants, of course, contend that the district court properly ruled on their motion for summary judgment. In addition, the defendants argue that even if this court finds that they are not entitled to qualified immunity, the doctrine of claim preclusion bars this suit. Finally, defendant Zolper claims that the plaintiff has no basis on which to hold him liable for her wrongful discharge.
The doctrine of qualified immunity shields government officials performing discretionary functions from liability for civil damages. The doctrine is designed to accommodate competing values. An action for damages may provide a citizen with her only means of vindication when an official violates her constitutional rights. Courts, however, must also protect against the danger that the fear of being sued will hamper officials in the proper discharge of their duties. Qualified immunity allows courts to quickly terminate insubstantial lawsuits, without denying worthy claimants their day in court. Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982). Officials cannot receive qualified immunity, however, if their conduct violated clearly established constitutional rights of which a reasonable person would have known. Id. at 818, 102 S.Ct. at 2738.
Summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c), Donald v. Polk County, 836 F.2d 376, 378-79 (7th Cir.1988). As this court has explained, "appellate review of a denial of summary judgment on the issue of qualified immunity is limited to the legal question of whether the law was well established at the time of the conduct." Wade v. Hegner, 804 F.2d 67, 70 (7th Cir.1986); see Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985). "[I]f there are issues of disputed fact upon which the question of immunity turns, or if it is clear that the defendant's conduct did violate clearly established norms, the case must proceed to trial." Green v. Carlson, 826 F.2d 647, 652 (7th Cir.1987).
Conner has the burden of demonstrating that the defendants violated a constitutional right that was clearly established in May 1982. Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984); Abel v. Miller, 824 F.2d 1522, 1534 (7th Cir.1987). The Supreme Court recently provided courts with guidance in determining whether the law was clearly established at the time of an alleged constitutional violation:
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.
Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citation omitted).
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