Fracaro v. Priddy

• Decision Date: 01 May 1981
• Docket Number: No. C-78-291-WS.,C-78-291-WS.
• Citation: 514 F. Supp. 191
• Parties: Arlene Villanova FRACARO, Plaintiff, v. Paul M. PRIDDY et al., Defendants.
• Court: U.S. District Court — Middle District of North Carolina

514 F. Supp. 191

Arlene Villanova FRACARO, Plaintiff, v. Paul M. PRIDDY et al., Defendants.

No. C-78-291-WS.

United States District Court, M. D. North Carolina, Winston-Salem Division.

May 1, 1981.

William G. Pfefferkorn and Jim D. Cooley, Winston-Salem, N. C., for plaintiff.

Richard Tyndall, Winston-Salem, N. C. and William F. Marshall, Jr., Danbury, N. C., for defendants.

MEMORANDUM OPINION AND ORDER

GORDON, Chief Judge.

This case was noticed for hearing on March 25, 1981, at 2:00 P. M. in the United States Courthouse in Winston-Salem, North Carolina. Pursuant to the notice, the summary judgment motions of the individual defendants and of the County of Stokes were heard. Having considered the arguments of counsel, the briefs, and the materials of record, the Court concludes that the motion by the County of Stokes should be granted, and the motion by the individual defendants should be granted in part and denied in part.

On July 3, 1978, the plaintiff Fracaro instituted this action pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, alleging that her constitutional rights had been violated in various ways by the termination of her employment as Eligibility Supervisor of the Stokes County Department of Social Services. She named the County of Stokes and six persons as defendants: Paul M. Priddy, Director of the Stokes County Department of Social Services, individually and in his official capacity; Elsie Dearmin, Ruby Goad, and Mary Wright, members of the Stokes County Board of Social Services, individually and in their official capacity; and Frank Dalton and Elizabeth Heath, members of the Stokes County Board of Social Services in their official capacity. The Stokes County Board of Social Services was not named as a defendant. At the time of filing the complaint, the plaintiff also moved for a preliminary injunction seeking reinstatement in her job. A hearing was held on August 11, 1978, before Magistrate Eliason. Magistrate Eliason made lengthy findings of fact and conclusions of law, applying the Blackwelder standards to the plaintiff's prayer for injunctive relief. Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977). The magistrate recommended that the plaintiff's motion for a preliminary injunction be denied, and this Court so ordered on September 18, 1978. The Fourth Circuit affirmed the denial of the injunction on May 10, 1979, 598 F.2d 614.

The individual defendants' summary judgment motion asserts five separate grounds for granting the motion. The Court will discuss these five grounds seriatim, and then will discuss the County's motion for summary judgment. The undisputed facts are set forth in the course of this opinion. The Court notes at the outset that it cannot accept as undisputed the Findings of Fact made by the magistrate in connection with the preliminary injunction hearing. The magistrate was bound to find facts, that is, to resolve disputed issues of fact and make credibility determinations. It is apparent that the magistrate did not find the plaintiff to be a very credible witness. Yet for purposes of this motion, the Court must draw inferences in favor of the non-moving party, who is the plaintiff. The defendants have the burden of showing the absence of any genuine issue of material fact.

I. The Claimed Violation of the First Amendment

The plaintiff alleges that she was terminated from her position because of the exercise of her rights of free speech under the First and Fourteenth Amendments, in violation of 42 U.S.C. § 1983. On June 28, 1978, the defendant Priddy dismissed her as Eligibility Supervisor on the ground that she publicly revealed confidential information about clients of the Department of Social Services. The letter of dismissal referred to two instances in which Mrs. Fracaro appeared on news broadcasts of WXII-TV.¹ The defendants contend that Mrs. Fracaro's statements were not protected speech under the First Amendment.

A public employee does not forfeit his protection against governmental abridgement of freedom of speech. A public employee does not have absolute First Amendment rights, however. The Supreme Court has established a "balancing" test for resolution of the competing interests. "The problem in any case is to arrive at a balance between the interests of the employee, as a citizen, in commenting upon 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." Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). The Pickering decision discussed four factors which the Court took into account in reaching its conclusion that the plaintiff teacher's statements did not impede the performance of his classroom duties or interfere with the regular operation of the schools generally. The "efficiency" factors are: (1) whether the statements are directed toward any person with whom the plaintiff would be in contact in the course of his daily work; (2) whether the statements might threaten either discipline by immediate supervisors or harmony among co-workers; (3) whether the plaintiff's relationship with the target of the speech is a working relationship for which personal loyalty and confidence are necessary; and (4) whether the statements would tend to damage the professional reputation of its targets or foment controversy and conflict among co-workers. Cooper v. Johnson, 590 F.2d 559, 561 (4th Cir. 1979). Two other factors discussed by the Pickering Court might be termed the "public concern" factors: (1) whether the statements reflect a difference of opinion on an issue of general public concern on which free and open debate is vital to informed decision-making by the electorate; and (2) whether the speaker's employment is substantially or only tangentially involved in the subject matter of the speech. Id.²

The Court is aware of cases which hold that whether the plaintiff is lawfully exercising a constitutional right is a matter for determination by the Court. See Schneider v. City of Atlanta, 628 F.2d 915, 918-19 (5th Cir. 1980); Greminger v. Seaborne, 584 F.2d 275 (8th Cir. 1978); Norbeck v. Davenport Community School District, 545 F.2d 63 (8th Cir. 1976), cert. denied, 431 U.S. 917, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977). The Fourth Circuit, however, has declined to lay down a hard and fast rule. Cooper v. Johnson, 590 F.2d 559, 562 (4th Cir. 1979). Although there are cases from this circuit which have held on summary judgment motions that statements that resulted in the loss of public employment were not protected by the First Amendment see English v. Powell, 592 F.2d 727 (4th Cir. 1979); Hopkins v. Dolinger, 453 F.Supp. 59 (W.D.Va.1978); Ely v. Honaker, 451 F.Supp. 16 (W.D.Va.1977), aff'd mem., 588 F.2d 1348 (4th Cir. 1978), it is apparent that those decisions were reached when the undisputed facts could lead to only one conclusion.³ In the instant case, many of the material facts are disputed; even where undisputed, conflicting inferences may be drawn. For example, the "efficiency" factors are concerned with the degree of disruption that will occur in the public agency due to strife precipitated between the speaker and the "target" of the speech. In the June 23 and 26 broadcasts, Mrs. Fracaro was critical of the social workers in the Department of Social Services in Stokes County. The Department is divided into two principal sections: eligibility determination and services. The social workers are grouped in "services", and this unit was under the direct supervision of the defendant Priddy. The plaintiff Fracaro was the supervisor of the "eligibility" section, and she reported directly to the defendant Priddy. There is dispute about the degree of harmony necessary between the two sections to serve efficiently the citizens of Stokes County. Rational factfinders could draw differing conclusions about the ability of the Department to perform its function adequately if Mrs. Fracaro had stayed on after her television appearances. If the defendants fail to show any significant interference with the efficient operation of the department, Mrs. Fracaro's termination for the stated reasons would not be justified. Tygrett v. Barry, 627 F.2d 1279, 1282 (D.C.Cir.1980); Porter v. Califano, 592 F.2d 770, 773 (5th Cir. 1979); Jannetta v. Cole, 493 F.2d 1334, 1337 (4th Cir. 1974).

The defendants claim that Mrs. Fracaro's termination resulted from the invocation of a rule derived from state law which prohibits the dissemination of confidential information. Mrs. Fracaro's alleged breach of a confidentiality rule does not eliminate the need for a Pickering — type analysis, however. In order to justify the application of a confidentiality rule in this case, the defendant Priddy must show a state interest in confidentiality applicable on these facts which outweighs the public and individual interests in the particular statements made. Hanneman v. Breier, 528 F.2d 750, 754 (7th Cir. 1976). Moreover, whether any "confidential" information was disclosed is open to question when construed in the light most favorable to the plaintiff. The state law in question makes it unlawful to disclose "any list of names or other information concerning persons applying for or receiving public assistance that may be directly or indirectly derived from the records, files or communications of the Department of Human Resources or the county boards of social services, or acquired in the course of performing official duties...." N.C.Gen.Stat. § 108-45(a). Clearly, Mrs. Fracaro's comments on the June 26 broadcast were general criticisms about the "dereliction of duty" by services personnel. It is also clear that the intent of the law is to protect the confidentiality of recipients of public assistance, and not to shield public officeholders from criticism. As to the comments on the June 23 broadcast, Mrs. Fracaro contends that ...