Hulbert v. Wilhelm

• Decision Date: 07 July 1997
• Docket Number: 96-2537,Nos. 96-2417,s. 96-2417
• Citation: 120 F.3d 648
• Parties: James HULBERT, Plaintiff-Appellee, Cross-Appellant, v. Richard WILHELM et al., Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 648

120 F.3d 648

James HULBERT, Plaintiff-Appellee, Cross-Appellant, v. Richard WILHELM et al., Defendants-Appellants, Cross-Appellees.

Nos. 96-2417, 96-2537.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 4, 1996.

Decided July 7, 1997.

Norman D. Singleton, White, Welter & Schilling, Eau Claire, WI, Harry R. Hertel (argued), Hertel & Gibbs, Eau Claire, WI, for Plaintiff-Appellee, Cross-Appellant.

Joel L. Aberg (argued), Weld, Riley, Prenn & Ricci, Eau Claire, WI, for Defendants-Appellants, Cross-Appellees.

Before RIPPLE, MANION, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Supreme Court held that public employees do not relinquish all rights to free speech under the First Amendment, even when that speech relates to their employment. Instead, a public employee's speech is constitutionally protected if it would be protected if uttered by a private citizen, it relates to a matter of public concern, and the public employer has not shown a convincing reason for forbidding the speech. See Brown v. Disciplinary Committee of Edgerton, 97 F.3d 969, 972 (7th Cir.1996); Dishnow v. School District of Rib Lake, 77 F.3d 194, 197 (7th Cir.1996). In this case, James Hulbert won a verdict after a jury trial on his claim that Pierce County, Wisconsin, and a number of its officials violated his First Amendment rights when it retaliated against him for voicing his concerns about certain county practices. We conclude that the district court correctly refused to set aside the jury's verdict on the county defendants' post-verdict motion for judgment as a matter of law, that it correctly refused to find that the individual defendants enjoyed qualified immunity in these circumstances, and finally that the court correctly decided that the issue of punitive damages should not be submitted to the jury. We therefore affirm the district court's judgment in its entirety.

I

As the defendants make no complaint about evidentiary rulings or jury instructions, we view the facts here in the light most favorable to the jury's verdict. See Frazell v. Flanigan, 102 F.3d 877, 882 (7th Cir.1996). Hulbert began working for Pierce County, Wisconsin, in November 1988 as a zoning administrator. In May 1989 he became the administrator of the land management department, and he assumed additional duties as administrator for the solid waste department. Hulbert enjoyed his job, felt that he performed it well, and was vindicated in that opinion by the grades of 1's and 2's (corresponding to "distinguished" and "commendable") that he received in his May 1991 evaluation. Things turned sour for him in early 1992, after he observed a large open fire burning potentially toxic materials behind the Pierce County highway department shop on February 20th of that year. Hulbert had cautioned the highway department in the past against the illegal, open burning of such materials, and he was disturbed to find the fire.

He immediately informed Marge Baldwin, then the chair of the solid waste management board, of the burning incident. She authorized him to report it to the Wisconsin Department of Natural Resources (DNR), which he did on the next day. Repercussions for him began almost immediately, when corporation counsel Deb Wojtowski asked Hulbert if he was trying to embarrass the county and told him that "Pierce County does not protect whistleblowers." Land management committee chair Joe Rohl (one of the defendants here) also reprimanded him verbally. In spite of these problems with the higher county management, after the open fire incident Hulbert and an assistant highway commissioner successfully worked together on a coordinated waste management policy for the highway department and the solid waste management department. As a result, the working relationship between those two departments improved.

The second negative incident between Hulbert and the county board arose over certain billing practices followed by the county surveyor. The surveyor's office had been supervised by Hulbert's land management department since 1991. The county used private surveying contractors, rather than having its own full-time surveyor. Hulbert believed that this was a bad idea, because he thought it created a potential conflict of interest and it led to a lack of accountability in the surveyor's office. In June 1992, the land management department received a check for $2,059.43 made out to the Pierce County Surveyor, accompanied by a surveying bill that had not been sent by the department. Hulbert recognized that this method of billing and payment deviated from official procedures, and he suspected that it represented improper activity.

On June 30, 1992, he voiced these concerns in a memorandum to the land management committee of the County Board. At the time, he did not personally confront the surveyor, Robert Sheffers, about the bill or his memo. The committee met on July 8, 1992, to discuss Hulbert's memo, and on July 23, 1992, committee vice-chair George Petaja authorized Hulbert to tell corporation counsel Wojtowski about his concerns relating to the surveyor's office and its billing practices. Hulbert did so and requested a legal opinion on the billing issue. Wojtowski accordingly conducted an investigation of the office and issued a written opinion on August 31, 1992, in which she raised general administrative concerns related to the payment, but also stated that the payment was not improper.

Meanwhile, Hulbert wrote a letter to the entire Pierce County Board on August 20, 1992, in which he analyzed the county surveyor situation and suggested that the upcoming September 2 closed session of the land management committee would be a good opportunity to review the matter. The committee, which included defendant County Board members Richard Wilhelm (chair of the County Board), Rohl, Ray Anderson, and Richard Truax, did take up the subject at the September 2 meeting, but the meeting was open, not closed, because Wojtowski had ordered it to be open. She distributed a memo to the committee members detailing the bills from the surveyor's office and the payments Sheffers had received. Things turned ugly during the open meeting when Sheffers angrily asked Hulbert if Hulbert was accusing him of "pocketing the money." Hulbert said that he was not.

After that meeting, matters turned worse for Hulbert. First, Sheffers appeared before the personnel committee of the County Board, which included most of the same people as were on the land management committee: Wilhelm, Truax, Anderson, Steve Schoeder, and John Berggren. (The same five men made up the executive committee of the Board during Hulbert's remaining tenure with the county.) Sheffers complained to the personnel committee that Hulbert had slandered him at the September 2 meeting and that he was considering suing. After this incident, however, the working relationship between Hulbert and Sheffers improved (or so the jury could have believed from the conflicting accounts it heard).

Even if Sheffers was willing to forgive and forget, the County Board was not. On March 17, 1993, the personnel committee sent Hulbert a letter of reprimand, which said in part:

As a result of an investigation authorized by this Committee, a concern has been raised about your judgment as a Department manager. Specifically, the Personnel Committee's concern is centered upon your action which instigated an inquiry by the corporation counsel's office into the contractual relationship between Pierce County and Bob Sheffers, the County surveyor. It is our understanding that you personally made a verbal request to the corporation counsel's office for an investigation of the County surveyor when certain bank checks were received by your office for survey work performed by Mr. Sheffers.

The letter also stated that the personnel committee had concluded that Hulbert had not discussed the billing issue with Sheffers or received authorization from the land management committee before contacting Wojtowski. "When in doubt, talk to your supervising committee," the letter advised. It was signed by Wilhelm and the other four members of the personnel committee, with a copy to Rohl. Rohl knew that Hulbert had obtained permission from Petaja before he contacted the corporation counsel, but Rohl did not tell the personnel committee about its error.

From Hulbert's perspective, this letter was a bolt out of the blue. Ordinarily, any disciplinary actions against an employee were initiated by a grievance filed with the alleged offender's department head by the employee who believed he was wronged. If that did not resolve matters, the employees and the chair of the supervising committee were to appear before the personnel committee for arbitration. No one ever told Hulbert about these procedures, which were not followed in his case.

Hulbert was devastated by the letter. He wrote to Wilhelm on April 4, 1993, informing him that the personnel committee's assumption that he had not been authorized to contact Wojtowski was wrong, because he had in fact obtained permission from his supervising committee's vice chair to do so. The personnel committee was unmoved. It wrote back that the reprimand would remain in his file unless he provided information "which would substantially alter the Committee's view of [his] action as a department head." Hulbert did not write back. He did, however, report the reprimand letter to the land management committee, as he was required to do by County personnel policy. The land management committee did not discipline him.

On August 25, 1993, Wilhelm notified Hulbert that under a new management study his job classification had been fixed as a Grade 11, Step 3, based on his 1989 job description. The 1989 description, while perhaps accurate at the time, did not reflect the expanded responsibilities Hulbert had assumed over the years....