Grantham v. Trickey, 93-1143

• Decision Date: 12 April 1994
• Docket Number: No. 93-1143,93-1143
• Citation: 21 F.3d 289
• Parties: Lee L. GRANTHAM, Plaintiff-Appellant, v. Myrna E. TRICKEY, Director; Randee Kaiser, Missouri Sexual Offender Program Director; Jeannie Thies, previously Jeannie Schneider; and Dale Riley, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 289

21 F.3d 289

Lee L. GRANTHAM, Plaintiff-Appellant, v. Myrna E. TRICKEY, Director; Randee Kaiser, Missouri Sexual Offender Program Director; Jeannie Thies previously Jeannie Schneider; and Dale Riley, Defendants-Appellees.

No. 93-1143.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 11, 1993.

Decided April 12, 1994.

Larry M. Schumaker, Kansas City, MO, argued, for appellant.

Gary L. Gardner, Asst. Atty. Gen., Jefferson City, MO, argued, for appellee.

Before BOWMAN, Circuit Judge, JOHN R. GIBSON, ^* Senior Circuit Judge, HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Lee L. Grantham appeals the district court's ¹ order granting summary judgment to the defendants on his 42 U.S.C. Sec. 1983 First Amendment wrongful discharge claim. Grantham claimed he was discharged from his job in the Missouri Sex Offender Program ("MOSOP") in retaliation for criticizing the operation of the program. The district court held that the defendants were entitled to qualified immunity on Grantham's First Amendment damages claim and denied equitable relief as being inappropriate on the facts of this case. We affirm.

I.

Grantham was hired as a Caseworker I for MOSOP in June of 1988, a position carrying a six-month probationary period. He was promoted to a Caseworker II position in October of 1988, a position also carrying a six-month probationary period. He worked with "Phase I" of MOSOP. His immediate supervisor was defendant Jeannie Thies (formerly known as Jeannie Schneider). Thies' supervisor was defendant Randee Kaiser, the director of MOSOP. Kaiser reported to defendant Myrna Trickey, then director of the Division of Classification and Treatment. Defendant Dale Riley succeeded Trickey as the director of Classification and Treatment.

At a staff meeting in October 1988, Grantham began voicing his concerns about the way "Phase II" of MOSOP functioned and the way inmates were being treated. While Grantham had never worked with Phase II of the program, he claimed he had heard that inmates in Phase II were being verbally abused by staff members. Grantham brought these concerns to Kaiser's attention in a memo dated October 31, 1988. He also alleged in that memo that Thies had begun retaliating against him because of his complaints about Phase II of MOSOP. He continued to voice those concerns at points throughout his employment in MOSOP.

On November 28, 1988, Grantham filed a formal grievance against Thies alleging, among other things, that she was retaliating against him for his criticisms of Phase II. (R. at 428-30.) He specifically noted that his criticisms had caused a controversy and that many therapists strongly opposed his stated position on Phase II. His grievance specifically requested that Phase I of the program be reassigned to Kaiser instead of Thies. Kaiser denied the grievance on November 30, 1988. (R. at 431-33.)

On December 2, 1988, Grantham wrote to Kaiser noting that Kaiser had improperly denied the grievance before Thies had responded. ² Grantham concluded with a statement that if he did not request a further proceeding by January 10, 1989, the matter should be considered resolved. Thies, Kaiser, and Grantham, however, continued to meet to attempt to resolve the issues.

On January 5, 1989, Grantham wrote Trickey to complain about the way Kaiser and Thies had handled his grievance. (R. at 439-40.) He specifically requested a transfer, stating that he did not think he could continue to work with Thies. On January 10, 1989, Trickey directed Kaiser, with the help of a personnel officer, to conduct a formal hearing on Grantham's grievance. Grantham wrote back to Trickey attempting to waive the hearing and filing a supplement to his original grievance. (R. at 445-48, 461.) Trickey denied Grantham's attempt to waive the hearing and instructed him to continue in the process of scheduling a hearing. (R. at 460.) The hearing on Grantham's grievance was scheduled for three different occasions, but the hearing never took place. Grantham was sick on two occasions, and he declined to proceed on the other occasion.

In a memo dated January 24, 1989, Grantham communicated his criticisms of Phase II of MOSOP to Trickey. (R. at 360.) Grantham specifically complained that Thies overassigned inmates to Phase II therapy groups and that group therapists were being forced to eliminate arbitrarily up to half of the inmates to get their groups to a manageable size. Grantham alleged that Thies pressured the therapists to eliminate group members to accomplish this goal. Both Trickey and Kaiser investigated and responded to Grantham's concerns.

In a March 5, 1989, memo, Kaiser advised Trickey to deny Grantham's November 1988 grievance. (R. at 771.) In a March 6, 1989, memo, Kaiser requested Trickey to authorize Grantham's termination. (R. at 762-66.) Kaiser noted that Grantham's work performance was not satisfactory. Kaiser also stated that Grantham had been a problem and that his continued employment as a caseworker in MOSOP would risk both morale problems and the program's reputation with the Department of Corrections and the inmates. A member of Trickey's staff investigated Kaiser's request. That staff member talked only to Kaiser.

On March 7, 1989, Trickey denied Grantham's November 1988 grievance. (R. at 481.) Trickey found that Grantham had been given three opportunities for a grievance hearing and had been absent for each one. After Grantham received notice of the denial of the grievance, he called Kaiser at home on a Friday evening to discuss further his concerns about MOSOP. Grantham recorded the call without Kaiser's knowledge and had a transcript of the conversation made. (R. at 485-87.) Grantham told Kaiser that he wanted to get "[t]he whole office [to] move ahead into doing something beside [sic] all the problems that we have been having." (Id. at 485.) Kaiser responded angrily and complained about Grantham's repeated criticism of the program and the increasingly disloyal tone of his criticism. Kaiser told Grantham not to call him at home anymore.

On March 9, 1989, Trickey wrote a letter to Grantham formally terminating his employment. (R. at 816.) At the time of his termination, Grantham had approximately two weeks remaining in his six-month probationary period of employment.

Grantham filed this action alleging that Thies, Kaiser, and Trickey violated his First Amendment rights by harassing him and eventually discharging him because he voiced his concerns about Phase II of MOSOP. He also asserted that defendants Riley and Trickey violated his due process rights by failing to provide pretermination or posttermination review. Grantham sued Thies, Kaiser, and Trickey in their individual capacities and all the defendants in their official capacities for both money damages and equitable relief.

The district court granted defendants' motion for summary judgment. The district court held that the defendants had Eleventh Amendment immunity as to the suit against them in their official capacity. The district court then held that the defendants were entitled to qualified immunity as to the suit against them in their individual capacities.

Grantham filed a motion requesting the district court to alter or amend its decision granting summary judgment on his First Amendment claim. He argued that the district court erred in holding the suit against the defendants in their individual capacity was barred by qualified immunity. He also argued that the district court erred in granting summary judgment on the suit against the defendants in their official capacities because they do not have immunity from his claim for equitable relief against them in their official capacities. The district court denied Grantham's motion to alter or amend the summary judgment order and specifically found that equitable relief was not appropriate in this case. Grantham appeals the district court's decision granting summary judgment on his First Amendment wrongful discharge claim and argues that the district court erred in granting the defendants qualified immunity in their individual capacity and in denying his claim for equitable relief against them in their official capacity.

II.

"[I]t has been settled that a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression," Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983). In the context of public employment, however:

this First Amendment right is not absolute. If a public employee has been disciplined for engaging in protected speech, whether that discipline violated the First Amendment requires a careful balance of "the interests of the [employee], as a citizen, 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."

Bartlett v. Fisher, 972 F.2d 911, 916 (8th Cir.1992) (quoting Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968) (alteration in original)).

The district court granted the defendants' motion for summary judgment on Grantham's First Amendment claim, concluding the defendants were entitled to qualified immunity. ³ "[P]ublic officials are entitled to qualified immunity when their 'conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Id. at 914 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). "A right is 'clearly established' for qualified immunity purposes if '[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.' " Swenson v. Trickey, 995 F.2d 132, 133 (8th Cir.1993) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (alterations in original)).

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