Langford v. Lane, 89-5488

• Decision Date: 25 February 1991
• Docket Number: No. 89-5488,89-5488
• Citation: 921 F.2d 677
• Parties: Anna Nell LANGFORD, Plaintiff-Appellant, v. Gay LANE; Richard Mitchell; Overton County, Tennessee, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 677

921 F.2d 677

Anna Nell LANGFORD, Plaintiff-Appellant, v. Gay LANE; Richard Mitchell; Overton County, Tennessee Defendants-Appellees.

No. 89-5488.

United States Court of Appeals Sixth Circuit.

Argued Jan. 22, 1990.

Decided Jan. 3, 1991.

Rehearing and Rehearing En Banc

Denied Feb. 25, 1991.

Onnie L. Winebarger (argued), Byrdstown, Tenn., for plaintiff-appellant.

Darrell G. Townsend (argued), Thomas M. Pinckney, Jr., Clifford Wilson, Howell, Fisher, Branham & North, Nashville, Tenn., A.F. Officer, III, Livingston, Tenn., for defendants-appellees.

Before WELLFORD and GUY, Circuit Judges; and ENGEL, Senior Circuit Judge.

ENGEL, Senior Circuit Judge.

Anna Nell Langford appeals a summary judgment rendered against her in her suit brought under 42 U.S.C. Sec. 1983, against her former supervisor, Gay Lane, as well as against Richard Mitchell, County Executive of Overton County, Tennessee, and against the county itself. Langford was employed as a nurse's aid at a County-owned and operated nursing home until June 4, 1987, when Lane fired her. Langford contends that she was fired in violation of her first amendment rights after speaking against Lane at a public meeting of the County Board of Commissioners. The district court granted summary judgment ¹ against Langford, concluding that her speech related only to private concerns arising out of her employment and was thus not protected by the first amendment. The court also found that Lane could have fired Langford for reasons independent of her allegedly public speech.

Assuming without deciding that Langford's remarks before the Commission constituted protected speech under the first amendment, we conclude that her other and unprotected conduct in all events would inevitably have brought about her discharge for insubordination and other causes unrelated to her exercise of free speech.

I.

In mid-1986, Langford's fifth year of employment at the nursing home, her relations with co-workers began to deteriorate. In July and August 1986, Langford bypassed her immediate supervisors and brought complaints against a fellow employee directly to Lane, the administrator of the home. Lane held a meeting with Langford, Langford's supervisors, and the other employee to settle the conflict. In September, Langford again clashed with co-workers and threatened to quit, but Lane convinced her to take a leave of absence instead.

In October or November 1986, twenty-two of Langford's co-workers signed a petition asking Lane to remove Langford from their shift. Without responding directly to the petition, Lane circulated a memo stating that such petitions violate grievance policies of the nursing home. When Langford learned of the petition a few months later, she thought that Lane should have disciplined the petitioners. Disgruntled, Langford began to tell her co-workers that Lane had "done her dirty."

In May and June 1987, there was a great deal of public controversy in the county concerning the operation of the nursing home and whether Lane should be retained as administrator. In May, the Nursing Home Committee of the County Board of Commissioners decided to terminate Lane because of personnel problems at the home. After Lane defended herself before the Commission, however, it suspended her termination and scheduled a public meeting on June 2 to allow the public to state their views on the problems at the nursing home and on Lane's retention. During this time, Langford showed the petition against her to one of the commissioners, and it was read to the Commission at a meeting on May 26.

The first alleged infringement of protected speech in this lawsuit occurred on June 1, the day before the public meeting, when Lane called Langford to her office and asked her "why you are against me so bad." Langford responded that "a long time ago I came to you for some help and I didn't get any and I'm not a-going to talk to you about this problem." Langford then excused herself and went back to her work station. After Langford left the office, Lane called Joe West, Chairman of the County Commission Nursing Home Committee, told him that Langford had refused to talk to her, and asked if she could fire Langford. According to West, Lane told him that she had wanted to talk to Langford about what Langford was going to say at the public meeting the next evening. West responded that not having been there, he could not make the decision what to do.

Later that evening, Lane approached Langford as she was working and asked her again to come talk about their problem. In front of other employees and patients, Langford refused. Lane told her that this was insubordination, but Langford still refused and said that Lane would learn her views at the public meeting.

After this rebuff, Lane pulled Langford's time card and left a note asking to meet with her the next day, June 2. Langford was not scheduled to work on this day. Rather than coming to the meeting, Langford called Lane to reschedule their meeting for the following day, June 3, which was also a day off for Langford. She claims that she agreed not to meet but merely to come if she could.

The second instance of allegedly protected speech occurred at the public meeting on the night of June 2. The meeting was well-attended and apparently was televised. Nursing home employees, former employees and families of patients were allowed to make statements to the Board. Langford's brief remarks were taped but apparently were never transcribed and do not appear verbatim in the record. By her account, she told the Commission about the petition against her; requested that her time card be put back in the rack; and said that she did not understand what had gone wrong and that she had always gotten along well with her immediate supervisor. She cannot remember what else she said. Others made statements to the Commission in person and in writing, including some nursing home employees who spoke against Langford. Several commissioners questioned various speakers, including Lane, about personnel matters at the home and particularly about how Langford's situation had been handled.

The next day, June 3, Langford did not come to the meeting with Lane, nor did she call to notify Lane that she would be absent. On June 4, she was scheduled to work and came in, but found that her card was still not in the rack. She left without speaking to anyone. Unknown to Langford, Lane fired her later that afternoon. For the next several days, Langford continued to come in at the beginning of her usual shift, but left promptly and without speaking to anyone when she saw that her card was still gone. She later learned that she had been fired.

Based on the June 2 public meeting, the County Commission reversed its original decision to terminate Lane and retained her on probation. Lane continued as administrator of the nursing home until she resigned one and a half years later.

After reviewing these facts, the district court below granted the defendants' motion for summary judgment. The court's opinion concluded that the employment problems involving Langford were "an internal personnel matter [at the nursing home] of no great public interest," Opinion at 5, and therefore that Langford's statement at the public meeting was not constitutionally protected speech. The court also stated that Lane could have fired Langford in the absence of her speech. We agree with this second conclusion.

II.

At the outset of our review, we recall our obligation in a free speech case "to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.' " Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984) (quoting New York Times v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964)).

To prevail on a free speech claim, a public employee must meet the two-stage test articulated in Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and developed in subsequent decisions. First, the employee must establish, as a matter of law, that her speech was constitutionally protected. 429 U.S. at 287, 97 S.Ct. at 576; see Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 1690 n. 7, 75 L.Ed.2d 708 (1983). To merit this status, the speech must address a matter of public concern, and the employee's interest in making such statements must outweigh the "interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees." Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); Connick, 461 U.S. at 146-54, 103 S.Ct. at 1689-94. The second stage of the inquiry addresses causation and is an issue of fact. If the employee can prove that the protected speech was a substantial and motivating factor in the adverse employment action against her, the burden then shifts to the employer to show by a preponderance of the evidence that it would have taken the same action even in the absence of the protected conduct. Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576; Barnes v. McDowell, 848 F.2d 725, 733 n. 9 (6th Cir.1988).

A. Langford's refusal to speak to Lane

Although the district court's opinion did not directly address this issue, it was argued in the summary judgment proceeding and is thus properly before us on appeal.

Langford contends that she had a constitutional right to refuse to tell Lane her grievances on the night before the public meeting, and that Lane violated this right by firing her for her silence. This claim of protected speech by a public employee is governed by the first amendment principles discussed above, as well as several further principles. The protection of the first amendment extends equally to "the right to speak freely and the right to refrain from speaking at all."...