Meyer v. University of Washington
| Citation | 719 P.2d 98,105 Wn.2d 847 |
| Decision Date | 15 May 1986 |
| Docket Number | No. 52137-9,52137-9 |
| Parties | , 32 Ed. Law Rep. 791 Carl B. MEYER, Appellant, v. UNIVERSITY OF WASHINGTON; Neils H. Andersen and Jane Doe Andersen, his wife, and their marital community; Arthur G. Anderson, Jr. and Jane Doe Anderson, his wife, and their marital community; Westen T. Borden and Jane Doe Borden, his wife, and their marital community; William S. Chilton and Jane Doe Chilton, his wife, and their marital community; Ernest R. Davidson and Jane Doe Davidson, his wife, and their marital community; David F. Eggers and Jane Doe Eggers, his wife, and their marital community; Nicholas Epiotis and Jane Doe Epiotis, his wife, and their marital community; Arthur W. Fairhall and Jane Doe Fairhall, his wife, and their marital community; Larry R. Field and Jane Doe Field, his wife, and their marital community; George D. Halsey and Jane Doe Halsey, his wife, and their marital community; Bruce R. Kowalski and Jane Doe Kowalski, his wife, and their marital community; Alvin L. Kwiram and Jane Doe Kwiram, his wife, and their marital community; Edward C. Lingafelter and Jane Doe Lingafelter, his wife, and their marital community; Josephus G. Norman, Jr. and Jane Doe Norman, his wife, and their marital community; B. Seymour Rabinovitch and Jane Doe Rabinovitch, his wife, and their marital community; Norman J. Rose and Jane Doe Rose, his wife, and their marital community; Verner Schomaker and Jane Doe Schomaker, his wife, and their marital community; Stanley Raucher and Jane Doe Raucher, his wife, and their marital community; W.M. Schubert and Jane Doe Schubert, his wife, and their marital community; J.M. Schurr and Jane Doe Schurr, his wife, and their marital community; Leon J. Slutsky and Jane Doe Slutsky, his wife, and their marital community; Robert Vandenbosch and Jane Doe Vandenbosch, his wife, and their marital community; Boris Weinstein and Jane Doe Weinstein, his wife, and their marital community; Darrell J. Woodman and Jane Doe Woodman, his wife, and their marital community; S. Frank Miyamoto an |
| Court | United States State Supreme Court of Washington |
John Biggs, Walla Walla, Bendich, Stobaugh & Strong, Stephen Strong, Seattle, for appellant.
Kenneth Eikenberry, Atty. Gen., Steven Milam, Asst. Atty. Gen., Seattle, for respondents.
Cornelius Peck, University of WA Chapter--American Assoc. of University Professors, Seattle, amici curiae, for Ass'n of University Professors.
Charles Henderson, Seattle, amici curiae, for American Civil Liberties Union.
Plaintiff Carl Beat Meyer is a tenured professor of chemistry at the University of Washington. In November 1978, he filed a grievance with the University grievance committee alleging inadequate space for his work at the chemistry department and insufficient pay. The grievance committee is a standing committee of the faculty of the University which reviews faculty grievances through formal or informal hearings and makes written statements of its findings and recommendations.
In an internal matter separate from plaintiff's grievance action, plaintiff's colleagues in the chemistry department, at a closed executive session faculty meeting on May 17, 1979, approved a motion to reprimand the plaintiff for inappropriate responses to interdepartmental activities. The motion passed by a vote of 22 in favor, 2 opposed, with 1 abstention. The plaintiff left the faculty meeting before discussion regarding the motion took place. From the record, it appears he left with a knowledge of the discussion but not of the subsequent motion to reprimand.
The plaintiff was informed of this faculty action on June 14, 1979. He then added to his list of grievances before the grievance committee new allegations of an improper departmental reprimand and systematic efforts to defame his name. Although the committee considered the reprimand questionable because it bypassed the more normal mechanisms which could have been used, it found no direct evidence the plaintiff had been defamed.
After review of the grievance committee's decision, President William P. Gerberding of the University issued his decision in a letter to the grievance committee. Agreeing with the committee, Gerberding found no action needed to be taken with regard to Meyer's allegations because "on almost all the issues, Professor Meyer's allegations have gone unproven and are found to be without merit." The plaintiff did not utilize the appeal mechanism provided by RCW 28B.19.150.
Plaintiff brought this action in Superior Court alleging violation of his civil rights under the First, Fifth, and Fourteenth Amendments; violation of 42 U.S.C. §§ 1983, 1985(c) (1976); violation of the rules of the University of Washington and the Open Public Meetings Act of 1971, RCW 42.30; and defamation. He sought injunctive relief, damages, and attorney fees pursuant to 42 U.S.C. § 1988 (1976). After 1 1/2 years of pretrial discovery, plaintiff filed a motion for partial summary judgment on his Fourteenth Amendment due process claims. In response, defendants also moved for summary judgment. The trial court dismissed all of plaintiff's claims with prejudice and granted summary judgment for defendants. Plaintiff's actions were found to be frivolous and without merit. The trial court awarded defendants, as prevailing parties, costs and attorney fees of $50,000.
Plaintiff appealed his case to the Court of Appeals; we accepted the case on an administrative transfer.
To allege a violation of the right to free speech, a public employee must show the conduct in question is constitutionally protected. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). Whether speech is protected is a question of law, not fact. Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 1690, n. 7, 75 L.Ed.2d 708 (1983).
Plaintiff argues his First Amendment rights were violated by the reprimand because he was punished for statements made as a public officer on matters of public concern. Defendants argue plaintiff's statements at issue were not protected speech and were instead matters of personal interest or employment concerns, speech not protected by the First Amendment.
In Connick, the Supreme Court set the test for determining the scope of First Amendment rights of public employees. In affirming a dismissal of an assistant district attorney for insubordination after she circulated a questionnaire concerning internal office affairs, the court established a two-step test.
First, a court must determine whether the speech in question is spoken as a matter of public concern by looking at the content, form, and context of a given statement. Connick, at 147-48, 103 S.Ct. at 1690-91. When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices ...
Connick, at 146, 103 S.Ct. at 1690. Thus, if the employee is speaking on matters of personal interest, a court applying federal law is not the appropriate forum to review the wisdom of a personnel decision. Connick, at 147, 103 S.Ct. at 1690. Employee grievances concerning internal policy are not protected speech. Connick, at 154, 103 S.Ct. at 1693.
If a court determines the speech to be on a matter of public concern, then the second step requires the court to balance the interest of an employee as a citizen commenting on matters of public concern with the interest of the State as employer in promoting effective and efficient public service. Connick, at 150, 103 S.Ct. at 1691. Because close working relationships are essential to fulfilling public responsibilities, there is a wide degree of deference given to the employer's judgment. Connick, at 151-52, 103 S.Ct. at 1692-93.
A recent federal court of appeals applied the Connick test to the protected speech of a teacher. Knapp v. Whitaker, 757 F.2d 827 (7th Cir.1985). The court in Knapp found the teacher's speech to be protected because it was directed at certain school policies and not to any particular person with whom the teacher had daily contact. The key to the Knapp court was that the "speech" in question was not simply expressions of disagreement with internal decisions of immediate superiors.
In the present case, the plaintiff's speech in question has only an attenuated relationship, if any, to public interest. The incidents of speech discussed during the executive faculty session leading to the reprimand were all regarding matters of personal interest.
[T]he Connick court made it plain that an individual cannot bootstrap his individual grievance into a matter of public concern either by bruiting his complaint to the world or by invoking a supposed popular interest in all aspects of the way public institutions are run.
(D.Kan.1983). This is what plaintiff appears to be doing; his statements are not protected.
Plaintiff also argues the reprimand "chills" his speech in violation of the First Amendment. In a somewhat similar case, a federal district court found the chilling effect of a reprimand was minimized by the restrictions on the use of the reprimand. Gregory v. Durham Cy. Bd. of Educ., 591 F.Supp. 145 (M.D.N.C.1984). The court also found the fact the plaintiff instituted a grievance proceeding regarding the reprimand reinforced its conclusion the plaintiff's First Amendment rights were not chilled. Gregory, at 155.
Here, the reprimand has severe restrictions on its use. In fact, the intent of the reprimand was only as a warning to plaintiff and is not to be used to his detriment. Far from having his own right of free speech "chilled", plaintiff appears to be attempting to chill his colleagues right...
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