Greenberg v. Kmetko, 89-2857

• Decision Date: 15 February 1991
• Docket Number: No. 89-2857,89-2857
• Citation: 922 F.2d 382
• Parties: Richard GREENBERG, Plaintiff-Appellant, v. Thomas KMETKO and Bruce Weflen, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 382

922 F.2d 382

Richard GREENBERG, Plaintiff-Appellant, v. Thomas KMETKO and Bruce Weflen, Defendants-Appellees.

No. 89-2857.

United States Court of Appeals, Seventh Circuit.

Argued June 8, 1990.

Decided January 8, 1991.

As Amended on Denial of Rehearing

and Rehearing En Banc

Feb. 15, 1991.

Ellen R. Domph, Gregory J. Schlesinger, Schlesinger & Krasny, Chicago, Ill., for plaintiff-appellant.

Robert McFarland, Office of the Atty. Gen., Terry Troy, Rich A. White, Chicago, Ill., for defendants-appellees.

Before CUDAHY and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

In 1975 Richard Greenberg, a social worker, made public and private comments critical of his agency. Thomas Kmetko and Bruce Weflen, Greenberg's supervisors, transferred him to the "Title 20 unit", where he spent his time repetitively filling out forms for federal reimbursement. He was stripped of social work responsibility and eventually quit. Defendants stipulated that the Title 20 unit was widely viewed as a punishment unit, and a jury determined that the transfer punished Greenberg for his speech; it awarded substantial damages. The jury also determined that the change of duties (at no loss in pay or benefits) was not a constructive discharge. We held that the defendants are entitled to immunity from liability for their response to Greenberg's private comments, 840 F.2d 467 (7th Cir.1988) (in banc), and remanded to allow the district court to assess the effect of Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), on the claim of immunity from liability for a transfer based on Greenberg's public speech. Both the in banc opinion and the earlier panel opinion, 811 F.2d 1057 (1987), lay out the facts. We spare the reader a repetition.

Our opinion remanding the case identified as potentially dispositive the question whether the law in 1975 clearly forbade transfers on account of protected speech. Greenberg's reassignment was not a "discharge"; the jury's verdict establishes so much. Laurence Peter describes what happened to Greenberg as a "lateral arabesque", shuffling an aggravating employee to a make-work job in another part of the building. Laurence J. Peter & Raymond Hull, The Peter Principle 38-39 (1969). (The book gives as an illustration the office manager reassigned "as co-ordinator of interdepartmental communications, supervising the filing of second copies of inter-office memos", id. at 39, equivalent to Greenberg's fate.) Judge Parsons, to whom this case was assigned on remand, concluded that lateral arabesques were not clearly unconstitutional in 1975 and entered summary judgment for the defendants. 1989 WL 91842, 1989 U.S.Dist. LEXIS 9493 (N.D.Ill.). Greenberg contends that no later than 1968, when Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), came down, it was established that employers could do nothing to discourage protected speech. Transfer to a meaningless job may be an impediment, just as a discharge would be, so Greenberg urges us to reinstate his claim.

Greenberg does not contend that any case, anywhere in the country, had held before his transfer that lateral arabesques should be treated the same as discharges for purposes of the first amendment. "[I]t was not until July 1979 that this circuit specifically held that a job transfer, in contrast to a discharge, could be the subject of a first amendment challenge." Egger v. Phillips, 710 F.2d 292, 324 (7th Cir.1983) (in banc) (Cudahy, J., concurring), citing McGill v. Board of Education, 602 F.2d 774, 780 (7th Cir.1979). Even 1979 did not end the debate. Our in banc opinion of 1988 remarks that "it is unusual at the very least to even suspect that a government department head cannot transfer a disruptive worker after that employee has gone public with a dispute", 840 F.2d at 474. A year later this court held that there is a constitutional difference between discharging a worker for political views and failing to promote the same person. Rutan v. Republican Party of Illinois, 868 F.2d 943, 950-54 (7th Cir.1989) (in banc). We observed that "employment decisions not involving dismissals ... are significantly less coercive and disruptive than discharges", id. at 952, and correspondingly easier to support in a constitutional analysis characterized by balancing interests. Four Justices of the Supreme Court agreed, --- U.S. ----, 110 S.Ct. 2729, 2758, 111 L.Ed.2d 52 (1990) (Scalia, J., joined by Rehnquist, C.J., and O'Connor & Kennedy, JJ.), but five disagreed, so our distinction did not survive. Still, the existence of this debate (and close division) in 1990 implies that the game was afoot in 1975.

Anderson holds that immunity survives a conclusion that the public officials violated a right stated at a high level of generality--such as the "right of free speech". That right was established in 1791 but is too general to be useful. Such a general statement would do away with immunity, for any plaintiff can point to such a right (the Constitution predates the action being challenged). Principles of immunity stem from the belief that the law should develop in injunctive actions or damages actions against public bodies rather than at personal expense. Illinois indemnifies its employees in many cases, but Sec. 1983 does not allow a distinction between indemnifying states and those that leave employees to fend for themselves--and drawing such a line would be of doubtful benefit to plaintiffs, once states realized that they could protect themselves and their employees by terminating indemnification.

Courts require officials to adhere to rules that have been made specific enough to set operational guidelines. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640, 107 S.Ct. at 3039 (emphasis added). If Pickering had held that no public official may take any personnel action in response to speech, then Kmetko and Weflen should have known in 1975 that they could not reduce the psychic income Greenberg reaped from his work. Pickering is not, however, an absolutist decision. It establishes a balancing approach: public officials may penalize speech that interferes "too much" with the ability of the agency to accomplish its mission. 391 U.S. at 568, 88 S.Ct. at 1734. Ever since, it has been difficult to know just how much is too much. E.g., Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980); Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); Egger, 710 F.2d at 313-23. Pickering stressed that the speech was unrelated to the job, leaving to subsequent decisions the task of working out the significance of this fact. After Pickering, even discharge is permitted if job-related speech cuts too deeply into the efficient administration of public business. Balancing implies a sliding scale: courts may condone responses short of discharge even though they would think sacking an excessive price for the speech in question. So we thought in Egger, 710 F.2d at 313-23, an in banc decision concluding that a transfer from one city to another without loss in pay was not an excessive response to an FBI agent's speech.

No one supposes that Greenberg could collect damages if Kmetko had sneered at him in response to his statements, or if Weflen had icily told Greenberg to mind his own business and assigned him fewer battered children and more routine placements. How much beyond the sneer and cold shoulder is permissible?--was permissible in 1975? There is no logical answer to such a question under a balancing approach. Pickering and its sequels stand for the proposition that speech on questions of public interest ought not be deterred too much, or for too little reason, making it almost impossible to formulate bright lines. The employee's interest in speech is the same qualitatively whether the response is discharge, transfer without loss of pay, or a supervisor's curled lip. Yet there is a quantitative difference between discharge and a lateral arabesque, or between either of these and a snub.

We know today, from Bart v. Telford, 677 F.2d 622 (7th Cir.1982), if not from Rutan, that a series of little steps to get the goat of the speaker, including failure to invite her to a birthday party, can violate the first amendment. Prescience would have been required to know this in 1975, however. Government has some interest in inducing employees to think about the consequences of their public speech--social workers ought to preserve confidences and speak dispassionately, even if the first amendment allows them to do otherwise. 391 U.S. at 570 n. 3, 88 S.Ct. at 1735 n. 3. This interest may justify a measured response even if it is not enough to allow the agency to hurl the offender onto the street. Cf. Huang v. Board of Governors, 902 F.2d 1134, 1141-42 (4th Cir.1990), and Volk v. Coler, 845 F.2d 1422, 1430 (7th Cir.1988), which hold that an employee transferred to an unwelcome job without loss of pay does not suffer a deprivation of "property". Although one can draw lines between the first and fifth amendments (the first does not depend on a deprivation of "property"), what matters for the moment is that many judges believe that there are differences for constitutional purposes between being fired and being transferred.

Balancing approaches make disagreement inevitable. So, too, it is certain that some judges will rely on the qualitative aspects of the earlier cases (the interest in free speech), while others will emphasize the quantitative aspects (treating the early cases as showing only that there ought not be an "excessive" price tag attached to expression). Five Justices in Rutan emphasized the qualitative aspect of Pickering and four the quantitative aspect. It could...