Khuans v. School Dist. 110, 96-3664

• Decision Date: 02 September 1997
• Docket Number: No. 96-3664,96-3664
• Parties: 121 Ed. Law Rep. 29 Collette A. KHUANS, Plaintiff-Appellee, v. SCHOOL DISTRICT 110, James Nelson, Superintendent, A.E.R.O. Special Education Cooperative, Charles J. Sahs School, Defendants, and James Nelson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1010

123 F.3d 1010

121 Ed. Law Rep. 29

Collette A. KHUANS, Plaintiff-Appellee, v. SCHOOL DISTRICT 110, James Nelson, Superintendent, A.E.R.O.

Special Education Cooperative, Charles J. Sahs

School, Defendants,

and

James Nelson, Defendant-Appellant.

No. 96-3664.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 28, 1997.

Decided Sept. 2, 1997.

Herbert H. Victor (argued), Karen Spence, Cynthia L. Hackerott, Chicago, IL, for Plaintiff-Appellee.

John J. Piegore (argued), Mary E. Haeger, Kiesler & Berman, Chicago, IL, for Defendant-Appellant.

Before CUDAHY, DIANE P. WOOD, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

James Nelson, a school superintendent who relies on qualified immunity as a defense, was rebuffed by the district court when he sought a quick exit from this suit brought by Collette Ann Khuans. Because his request should have come up a winner, we reverse.

At this early stage of the proceedings we must assume that the allegations in Ms. Khuans' complaint are true. So we set out her view of the facts without, of course, vouching for their accuracy.

A.E.R.O. Special Education Cooperative of Cook County provides special education services to 12 different school districts, including District Number 110. A.E.R.O. employed Ms. Khuans from 1986 through 1994 as a part-time school psychologist at the Charles J. Sahs School in District 110, located in Central Stickney, Illinois. Khuans' duties, which she performed competently, included diagnosing students who displayed emotional or learning difficulties, counseling those students, and developing individualized educational programs for them when necessary. Khuans' employment relationship with A.E.R.O. was governed by an annually renewed contract.

Khuans' immediate supervisor at Sahs was Lynda Zielke, also an A.E.R.O. employee. In the autumn of 1993, Khuans and other special education staff members at Sahs encountered problems with Zielke, particularly because they often could not find her on school property. They also had difficulty "communicating" with her. Zielke was also departing from what Khuans and other A.E.R.O. employees believed were proper legal procedures governing special education services.

In early December, Khuans related her thoughts on Zielke's shortcomings to the Sahs principal, James Steyskal, who then met with the special education staff (minus Zielke) on December 14, 1993. Steyskal reported the conflict to Zielke's supervisor at A.E.R.O., Assistant Administrator Tom Bever, who declined to address the matter until the staff first met with Zielke. On December 15, 1993, the members of the special education staff, with Khuans as "liaison" (so designated by Steyskal), met with Zielke and relayed their concerns. According to Khuans, as a result of her speaking on behalf of her co-workers, she received a "browbeating" from Zielke when the two met privately.

In early February 1994, Khuans took her continued complaints about Zielke to Superintendent Nelson. She discussed the propriety of some changes in services, which Zielke planned and Nelson approved, as well as a memo written by Nelson (and not intended for Khuans' eyes) indicating his belief that Khuans' services were no longer needed.

On February 22, 1994, Khuans was called into a meeting with Nelson, Steyskal, and Bever. Bever told Khuans that the District (apparently this was Nelson's decision) not only was cutting the hours of her position but also that she was going to be replaced. Bever added that he was displeased that she had tried to cause dissension. In March of 1994, Khuans received written notification that her annual contract with A.E.R.O. would not be renewed for the following school year. True to its word, A.E.R.O. did not renew her contract when it expired in June.

Khuans has sued District 110, Nelson, and A.E.R.O. for damages under 42 U.S.C. § 1983, alleging violation of her First Amendment rights. ¹ In regard to Nelson, Khuans claims he sought her removal from Sahs in retaliation for her speaking out about Zielke's failure to follow proper legal procedures regarding the education of disabled children. This, Khuans says, caused A.E.R.O. to refuse to renew her annual contract.

Nelson and the School District moved for dismissal for failure to allege an employment relationship between Khuans and the District. Nelson alternatively moved to dismiss based on qualified immunity. On September 30, 1996, the district court denied the motions. A memorandum opinion followed on December 16, 1996, with the district judge's note that the qualified immunity issue "would be best addressed at a later time when more facts have become apparent."

Nelson appeals only the denial of qualified immunity. Because qualified immunity is immunity from suit, not merely a defense to liability, and effectively is lost if a case erroneously is permitted to go to trial, the denial of qualified immunity is a final appealable order for purposes of 28 U.S.C. § 1291, if based solely on a matter of law. Behrens v. Pelletier, 516 U.S. 299, ----, 116 S.Ct. 834, 839-40, 133 L.Ed.2d 773 (1996); Mitchell v. Forsyth, 472 U.S. 511, 526, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). If, however, qualified immunity was denied because there is a genuine issue of fact for trial, the denial is not appealable immediately. Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). As we assume at this time that the facts of the complaint are true, whether qualified immunity applies to Nelson is a pure legal question, so we have jurisdiction. See Behrens, 516 U.S. at ----, 116 S.Ct. at 840; Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816. ² We review the matter de novo.

To prevent government officials from being hampered in the discharge of their duties by the fear of lawsuits, officials performing discretionary functions generally are shielded from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). There is no doubt here that at the time of the alleged events giving rise to Khuans' claim, Nelson was a government official performing discretionary functions. To determine whether Nelson met Harlow's test of objective legal reasonableness, we scrutinize his "conduct as alleged in the complaint." Behrens, 516 U.S. at ----, 116 S.Ct. at 840. Therefore, qualified immunity will apply unless (1) the conduct alleged in the complaint sets forth a constitutional violation and (2) the constitutional standards were clearly established at the time of the alleged violation. Johnson v. Fankell, 520 U.S. ----, ----, 117 S.Ct. 1800, 1803, 138 L.Ed.2d 108 (1997); Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 472 (7th Cir.1997). We think Khuans fails to establish either condition.

Khuans rests her claim, under 42 U.S.C. § 1983, on an alleged violation of her First Amendment right to free speech. Generally speaking, public employment cannot be conditioned on a basis that infringes an 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). But although it now is clear that government employees do not lose their First Amendment rights to free speech and association when they walk through their employers' doors, the state nevertheless has additional interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of citizens in general. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). The government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. Waters v. Churchill, 511 U.S. 661, 675, 114 S.Ct. 1878, 1887, 128 L.Ed.2d 686 (1994). As an employer, a governmental agency must have the "prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency." Connick, 461 U.S. at 151, 103 S.Ct. at 1692. The public employer is not required to wait until actual disruption occurs, either. Where employee speech carries the potential to be disruptive, the public employer must have the ability to move quickly. Id. at 152, 154, 103 S.Ct. at 1692, 1693.

The Pickering Court indicated that in cases like Khuans', the task is to "arrive at a balance between the interests of the teacher, 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, 391 U.S. at 568, 88 S.Ct. at 1734. Thus, to be protected by the First Amendment, (1) the speech by a government employee must be on a matter of public concern, and (2) the employee's interest in expressing herself on the matter must not be outweighed by any injury the speech could cause to the interest of the state, as employer, in promoting efficient and effective public service. Waters, 511 U.S. at 668, 114 S.Ct. at 1884; Smith v. Fruin, 28 F.3d 646, 650 (7th Cir.1994).

In Connick, 461 U.S. at 143, 147, 103 S.Ct. at 1687, 1690, the Court reiterated the importance of the requirement that an employee's speech involve a public issue:

The repeated emphasis in Pickering on the right of a public employee "as a citizen, in commenting upon matters of public concern," was not accidental. This language ... reflects both the historical evolvement of the rights of public employees, and the common-sense...