Griffin v. Thomas

Decision Date12 April 1991
Docket NumberNo. 89-3542,89-3542
Citation929 F.2d 1210
Parties66 Ed. Law Rep. 974 Alice L. GRIFFIN, Plaintiff-Appellant, v. Eddie THOMAS, Jr. and Board of Education, City of Chicago, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Michael Radzilowsky, Deborah Dobish, Radzilowsky & Dobish, Chicago, Ill., for plaintiff-appellant.

Iris E. Sholder, Office of the State's Atty. of Cook County, Karen Gatsis Anderson, Board of Educ. of the City of Chicago, Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, CUMMINGS and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

The plaintiff, an assistant principal, sued her principal-supervisor and the Board of Education for violating her right to freedom of association by retaliating against her for filing a union grievance. The district court granted the defendants' motion

for summary judgment because the plaintiff's claim did not involve a matter of public concern. For the following reasons, we affirm the judgment of the district court.

I BACKGROUND
A. Facts

Alice L. Griffin is an assistant principal at May School and an employee of the Board of Education of the City of Chicago (the Board). Eddie Thomas, Jr. is the principal at May School and Ms. Griffin's immediate supervisor. Employees of the Board are evaluated each school year. For the 1984-85 school year, and for fourteen of the previous sixteen years, Ms. Griffin received a "superior" performance rating, the highest rating available to Board employees.

In March 1986, Ms. Griffin sustained injuries while performing duties in her employment. As a result, she missed more than two months of work and filed a worker's compensation claim. Subsequently, at the completion of the 1985-86 school year, Thomas rated Ms. Griffin's performance as "excellent," instead of "superior." Disappointed with the reduction in her rating, Ms. Griffin filed a grievance through the Chicago Teachers Union (the Union). Ms. Griffin prevailed in the dispute, and Thomas restored Ms. Griffin's "superior" rating in September 1986.

Within twenty-four hours after he restored her rating, Thomas reassigned Ms. Griffin to the position of classroom teaching assistant principal; previously Ms. Griffin had been performing administrative, not classroom duties. Ms. Griffin claims that Thomas, in addition to reassigning her, embarked on a course of harassing retaliatory conduct designed to punish her for having filed the grievance with the Union.

Ms. Griffin brought this suit against Thomas and the Board. She alleged a violation of her first and fourteenth amendment guaranties of freedom of association. After the completion of discovery, the district court granted the defendants' motion for summary judgment and dismissed the case with prejudice. Ms. Griffin filed a timely notice of appeal.

B. District Court Opinion

The district court believed that this case was controlled by the Supreme Court's teaching in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983): unless a public employee's expression "can be characterized as touching on a matter of public concern, it is unnecessary for the courts to scrutinize the reasons for the employer's adverse conduct." Griffin v. Thomas, 724 F.Supp. 587, 588 (N.D.Ill.1989). The district court rejected the Eleventh Circuit's position, 1 proffered by Ms. Griffin, that Connick is inapplicable to freedom of association claims. The court instead followed the Sixth Circuit's position 2 and held that any distinction among first amendment rights is "nonsensical." Id. at 589. Therefore, Ms. Griffin's freedom of association claim had to address a matter of public concern. See id. at 589-90.

The court followed Connick 's directive to ascertain whether the speech addressed a matter of public concern by " 'the content, form, and context of a given statement, as revealed by the whole record.' " Id. at 589 (quoting Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690). Ms. Griffin's grievance did not satisfy this test, the court concluded, because "[c]learly Griffin's primary objective in filing that grievance was to resolve a personal dispute between herself and her superior," a matter of private and not public concern under Gray v. Lacke, 885 F.2d 399, 412 (7th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1476, 108 L.Ed.2d 613 (1990). See 724 F.Supp. at 589. Moreover, the court rejected Ms. Griffin's argument that, because Thomas'

actions affected the functioning of the school, she had advanced a matter of public concern. The court reasoned that, in order to ascertain whether a public concern is raised, Connick instructs a court to look to the allegedly protected speech or action, not to the character of the response induced by the speech or act. Finally, the court declined to accept Ms. Griffin's argument that she voiced an issue of public concern when she filed a grievance with the Union. The court commented that acceptance of such a view would circumvent Connick 's substantive requirements and ignore Seventh Circuit precedent. See id.

II ANALYSIS
A. Standard of Review

We review de novo a district court's grant of summary judgment. See Doe v. Allied-Signal Inc., 925 F.2d 1007, 1008 (7th Cir.1991). Our task is to determine whether the record reveals that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). "A motion for summary judgment is not an appropriate occasion for weighing the evidence; rather, the inquiry is limited to determining if there is a genuine issue for trial." Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir.1990); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). And, as we undertake our task, we " 'must view the record and all inferences drawn from it in the light most favorable to the party opposing the motion.' " Lohorn, 913 F.2d at 331 (quoting Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir.1989)).

B. Freedom of Association
1. Applicability of the Connick analysis

After reviewing Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), as well as its antecedents and progeny, the Supreme Court in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), concluded that a public employee's expression is protected under the first amendment when it relates to a matter of public concern. 3

[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.

Connick, 461 U.S. at 147, 103 S.Ct. at 1690. Indeed, unless the expression can be characterized as touching upon a matter of public concern, it is unnecessary for federal courts to scrutinize the reasons for the allegedly improper discharge. See id. at 146, 103 S.Ct. at 1689. This threshold issue is to be decided by the court as a matter of law. See Landstrom v. Illinois Dep't of Children & Family Servs., 892 F.2d 670, 679 (7th Cir.1990); Hesse v. Board of Educ., 848 F.2d 748, 751 (7th Cir.1988).

Connick and Pickering involved issues of speech; the present case, however, raises associational concerns. 4 As the district court noted, the circuits are split over the issue of whether Connick 's public concern requirement applies to freedom of association claims. The Eleventh Circuit has held that "Connick is inapplicable to freedom of association claims." Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546, 1558 (11th Cir.1987). The court reasoned that Connick was not a retreat from NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), which stated that " 'it is immaterial whether the beliefs sought to be advanced by association pertains to political, economic, religious or cultural matters....' " Hatcher, 809 F.2d at 1558 (quoting NAACP v. Alabama, 357 U.S. at 460, 78 S.Ct. at 1171). 5 Conversely, in Boals v. Gray, 775 F.2d 686, 692 (6th Cir.1985), the Sixth Circuit reviewed the precedent in which Pickering and Connick were rooted and concluded that, while those two cases involved free speech, they "are based upon freedom of association cases." 6 Thus, the court could "perceive no logical reason for differentiating between speech and association in applying Connick to first amendment claims...." Id. 7 We believe that Supreme Court precedent and Seventh Circuit case law mandate that we follow this latter approach.

First, we agree with Judge Kennedy's observation in Boals that, although Connick did not specifically refer to associational rights in drawing the distinction between speech on matters of public concern and matters of private concern, Connick acknowledged that the governing precedent, Pickering, was rooted in cases dealing with speech and associational rights. See id. 8

We also agree with our colleagues in the Sixth Circuit that the Connick Court "did not hold that speech by a public employee on a matter not of public interest was 'totally beyond the protection of the First Amendment[.]' " Id. (quoting Connick, 461 U.S. at 147, 103 S.Ct. at 1690). It merely held that "such speech did not give rise to a cause of action in federal court 'to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.' " Id. (quoting Connick, 461 U.S. at 147, 103 S.Ct. at 1690). Consequently, we see no merit in the Eleventh Circuit's suggestion that Connick does not apply to associational rights because those rights encompass broad areas of non-political association. As Connick itself emphasizes, speech rights, in parallel...

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