Morgan v. Ford

• Decision Date: 09 November 1993
• Docket Number: No. 91-8816,91-8816
• Citation: 6 F.3d 750
• Parties: 63 Empl. Prac. Dec. P 42,660 Jacqueline R. MORGAN, Plaintiff-Appellant, v. John FORD, Individually and in his official capacity as an officer of the Georgia Department of Corrections, Tydus Meadows, Individually and in his official capacity as an officer of the Georgia Department of Corrections; Chuck Burton, Individually and in his official capacity as an officer of the Georgia Department of Corrections; Robert Whitmore, in his official capacity as Commissioner of the Georgia Department of Corrections and Georgia Department of Corrections, Defendants-Appellees. David Evans, etc., Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 750

6 F.3d 750

63 Empl. Prac. Dec. P 42,660

Jacqueline R. MORGAN, Plaintiff-Appellant, v. John FORD, Individually and in his official capacity as an officer of the Georgia Department of Corrections, Tydus Meadows, Individually and in his official capacity as an officer of the Georgia Department of Corrections; Chuck Burton, Individually and in his official capacity as an officer of the Georgia Department of Corrections; Robert Whitmore, in his official capacity as Commissioner of the Georgia Department of Corrections and Georgia Department of Corrections, Defendants-Appellees David Evans, etc., Defendant.

No. 91-8816.

United States Court of Appeals Eleventh Circuit.

Nov. 9, 1993.

Amy S. Gellins, Athens, GA, for plaintiff-appellant.

George M. Weaver, England, Weaver & Kytle, Atlanta, GA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, HATCHETT and BIRCH, Circuit Judges.

PER CURIAM:

In this case, Jacqueline Morgan claims that she left her job with the Georgia Department of Corrections because three of her supervisors subjected her to sexual harassment in the workplace. She seeks an injunctive order, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1988), requiring the Department of Corrections to reinstate her to her position, with back pay and fringe benefits. Morgan also claims that when she exercised her First Amendment right of free speech and complained about the sexual harassment, these supervisors retaliated against her. Accordingly, she seeks compensatory and punitive damages against them, under 42 U.S.C. Sec. 1983 (1988).

The district court found no merit in any of Morgan's claims, and therefore granted summary judgment against her. We agree with the district court's disposition of Morgan's section 1983 claims against the supervisors, and thus affirm that disposition. We vacate, however, the judgment for the Department of Corrections, and remand Morgan's case for reinstatement for further proceedings, because a material issue of fact remains to be litigated.

I.

Jacqueline Morgan went to work for the Georgia Department of Corrections (the Department) in 1984. The Department assigned her to the Augusta Correctional Medical Institute (ACMI); her position was Correctional Officer I (COI). Lieutenant John Ford, one of the defendants sued in this case, was her immediate supervisor. He supervised Morgan for two periods during her employment at ACMI: for her initial six months and for a time in 1987.

Soon after Morgan came to work, Ford directed Correctional Officer Kenneth Carswell to ask Morgan if she would be interested in going on a date with Ford. Morgan told Carswell that she was not interested in seeing Ford socially.

Upon receiving this response, Ford told Morgan that she "had not had a real man until she had him." Ford made statements to this effect to Morgan, and to other female employees, throughout Morgan's employment at ACMI. After telling Morgan "that she had not had a real man until she had him," Ford began to spend long periods--up to three or four hours at a time--at Morgan's work station. While there, he would scrutinize the minutiae of Morgan's work, and engage her in unwanted conversation. During one of these episodes, Ford boasted that Charles Burden, ACMI's Superintendent and another defendant in this case, had told him that "[Ford] could not get his pussy and his paycheck in the same place," but that "what [Burden] doesn't know won't hurt him." On occasions, Ford remarked that "there is a thin line between love and hate and someday [Morgan] will realize that [she] love[s] [Ford]," or words to that effect. Once, while on her way to a party for ACMI employees, Ford told Morgan that she looked good in her dress and that he "could imagine her without it."

Ford's conduct troubled Morgan. She claims that after sharing her concerns about Ford with a fellow officer one evening at work, she discovered that Ford had electronically monitored her conversation.

After Morgan had been on the job for six months, Ford changed shifts and no longer supervised Morgan's work. Although they saw each other infrequently, Ford's troubling behavior did not cease; he continued to comment on his virtues.

In 1987, Morgan left ACMI for several weeks to go on military leave. Upon her return, Ford again served as her supervisor. At her annual evaluation, in June of 1987, Ford rated her 3.4 on a 5-point scale.

In September 1987, one of Morgan's co-workers, Sheila Parrish, lodged a sexual harassment complaint against Ford with Superintendent Burden. In her complaint, Parrish cited Ford's unwanted attentions and habitual sexually suggestive comments. Parrish identified Morgan as a witness who could substantiate her allegations.

At Burden's request, Morgan met with Burden to discuss Ford's actions toward Parrish. At that meeting, Morgan told Burden about Ford's behavior--toward her as well as Parrish. Burden suggested that Morgan take her charges to the Department's Internal Affairs Division, which she promptly did.

Ford soon learned of Morgan's meeting with Burden, and within two weeks he took action against her. Ford disciplined Morgan for failing to respond to an "officer needs assistance" call, although a witness testified to the contrary. Ford then instructed lieutenants with supervisory authority over Morgan to watch her closely and to write her up for the smallest of infractions. Shortly thereafter, Lieutenant Tydus Meadows, another defendant before us, disciplined Morgan for being rude to a visitor; he did so in the face of a witness' testimony that she had not been rude.

In early October 1987, Internal Affairs completed its investigation and sent a report thereof to Burden. After reading the report, Burden concluded that Morgan had not been sexually harassed. On October 9, 1987, he informed Morgan in writing that she had not established her claims of sexual harassment and admonished her against bringing false claims against her supervisors. He warned her that she would be disciplined for any further "misconduct." Burden also wrote to Ford. He told Ford that although there was no finding of sexual harassment, he should not "plac[e himself] in a position which could be construed as personal." Burden took no other action in the matter.

On November 3, 1987, Ford gave Morgan an interim rating of 2.6 on a scale of 5, significantly lower than the rating he had given her in June. An interim review is an extraordinary procedure which is used to register a supervisor's strong impressions of an employee's performance. Ford gave Morgan a 2.6 rating because, he said, she had exhibited a poor attitude and was uncooperative. On November 9, 1987, Morgan filed a sexual harassment charge against Ford with the Georgia Office of Fair Employment Practices. When notified of the charge, Ford told Morgan to drop it because "no one would believe her." Immediately thereafter, Morgan found herself reassigned to the more distasteful duties around the compound. Ford assigned Morgan to the guard tower although she did not have a proper weapons certification, to the unit for AIDS patients, and to the housing ward for violent inmates.

Ford's supervision of Morgan ended in November 1987. Although Ford no longer had direct control over her, Morgan claims that he continued to engage other officers to make her working environment unpleasant. In April 1988, Morgan resigned. In August 1989, the Office of Fair Employment Practices issued a finding of reasonable cause to believe that the Department had discriminated against Morgan and had retaliated against her for opposing perceived discriminatory practices.

On October 6, 1989, Morgan brought this suit against Ford, Meadows, and Burden in their individual and official capacities, ¹ seeking compensatory and punitive damages, under 42 U.S.C. Sec. 1983, ² for retaliating against her for complaining, purportedly in the exercise of her First Amendment right of free speech, about sexual harassment against her in the workplace. On January 30, 1990, Morgan filed an Amended Complaint adding Robert Whitworth, in his official capacity as Commissioner of the Georgia Department of Corrections, as a party defendant, and seeking an order requiring Whitworth to reinstate her to the job she left because of the harassment she had received at the hands of Ford, Meadows, and Burden. On April 12, 1990, Morgan again amended her Complaint, adding the Department of Corrections as a party defendant and seeking an order, under Title VII, requiring the Department to reinstate her to her position. ³

After the parties joined issue and engaged in considerable discovery, the district court granted the defendants summary judgment. Morgan now appeals.

II.

In the discussion that follows, we first address Morgan's First Amendment claims for damages against Ford, Meadows, and Burden. We then turn to Morgan's Title VII claim.

A.

Morgan claims that Ford, Meadows, and Burden abridged her First Amendment right to free speech ⁴ after she complained to Burden, the Internal Affairs Division, and the Georgia Office of Fair Employment Practices that she was being harassed in the workplace. We agree with the district court that Morgan suffered no constitutional deprivation.

A state may not demote or discharge a public employee in retaliation for protected speech. Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989) (citing Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)). This circuit has developed a four-part test to determine whether an employee suffered such retaliation. First, a court must determine "whether the employee's speech may be 'fairly characterized as constituting speech on a matter of public concern.' " Bryson, 888 F.2d at 1565 (quoting Rankin, 483 U.S. at 384, 107 S.Ct. at 2896-97 (citation omitted)). See alsoKurtz v. Vickrey, 855 F.2d...