Piggee v. Carl Sandburg College

• Decision Date: 19 September 2006
• Docket Number: No. 05-3228.,05-3228.
• Citation: 464 F.3d 667
• Parties: Martha Louise PIGGEE, Plaintiff-Appellant, v. CARL SANDBURG COLLEGE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

464 F.3d 667

Martha Louise PIGGEE, Plaintiff-Appellant, v. CARL SANDBURG COLLEGE, et al., Defendants-Appellees.

No. 05-3228.

United States Court of Appeals, Seventh Circuit.

Argued February 9, 2006.

Decided September 19, 2006.

J. Brian Heller (argued), Washington, IL, for Plaintiff-Appellant.

Thomas J. Piskorski (argued), Seyfarth & Shaw, Chicago, IL, for Defendants-Appellees.

Before BAUER, EASTERBROOK, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

In September 2002, Martha Louise Piggee, who was then a part-time instructor of cosmetology at Carl Sandburg College, gave a gay student two religious pamphlets on the sinfulness of homosexuality. The student was offended and complained to college officials. After the college looked into the matter, it found that Piggee had sexually harassed the student. It admonished her in a letter to cease such behavior, and the following semester it chose not to retain her. Piggee sued the college, the members of its board of trustees, and various college administrators (including one person who directed the mortuary science program, whose offense was to clean out Piggee's refrigerator and throw away her noodles at some point during the spring of 2003) under 42 U.S.C. § 1983. She asserted, among other things, that the measures the college took violated her due process rights, her rights under the Free Exercise, Equal Protection, and Free Speech clauses of the Constitution, and that the college's sexual harassment policy was constitutionally infirm. Noting that none of the facts was seriously in dispute, the district court entered summary judgment for the defendants. We affirm.

I

Carl Sandburg College ("the college") is a public community college located in downtown Galesburg, Illinois. Its cosmetology department requires its students to undertake a combination of classroom and clinical work in a facility that operates as an ordinary beauty salon open to the public. Jason Ruel was a student in the program. He enrolled in June 2002, and Piggee was his instructor for several classes. At some point, Ruel became aware that Piggee was a Christian and she realized that he was gay. On September 5, 2002, Piggee placed two pamphlets in Ruel's smock during clinical instruction time, as he was preparing to leave for the day. She told him to read the materials later and invited him to discuss them with her.

The next day, Ruel glanced at the pamphlets, both of which used a comic-book format. The first was entitled "Sin City." It tells the story of a man who tries to persuade gay pride advocates that homosexuality is an abomination. He is beaten when he tries to stop a gay pride parade; he is arrested by the police; a demon urges on a minister who preaches that God loves even gay people; the man then asks about Sodom and Gomorrah; and eventually the minister repents his sin (which apparently is supporting gay pride). The second pamphlet was entitled "Doom Town." Its message is similar. It begins by showing a group of homosexuals headed by a speaker, who states that a certain number of children will wind up homosexual. She threatens that all gay males will pollute the blood supply with HIV-positive blood unless people give more money for AIDS research. A Christian observing this recounts the story of Sodom and Gomorrah. One scene implies that an evil man is about to assault a frightened boy sexually; another indicates that some angels being sheltered by Lot are about to be raped. God, however, intervenes, stops the mob, and destroys the two sinful cities.

A short time later, on September 17, Ruel wrote to Barb Kirchgessner, the director of the cosmetology program, Tim Smith, chair of the college's business division, and Larry Benne, the vice president of instructional services, telling them about Piggee's pamphlets and stating that he "was appalled at what [he] found inside [them]." As the district court put it, "[h]e did not appreciate being called an abomination, a child molester, or a rapist and a deviant." Ruel urged the administrators to terminate Piggee's employment.

In a follow-up letter written on September 19, Ruel reported that Piggee had approached him and accused him of trying to get her fired. Initially, he said that he did not know what she was talking about, but after she demanded that he follow her into a back room (where she shut the door), he conceded that he had complained, and told her that the matter was being handled through the proper channels. Uncomfortable with the whole conversation, Ruel soon walked out.

Other college administrators, including Mike Walters, the affirmative action officer, and Cheryl Cummings, the equal employment opportunity officer, and Lori Sundberg, the dean of human resources, promptly began investigating Ruel's complaint. They visited Piggee at home, where she essentially confirmed the account Ruel had given of the incident. On September 24, Benne wrote to Piggee and another teacher, Linda Delawder, who had supported Piggee, formally telling them that there had been a formal complaint by a student claiming a hostile environment and reminding them that students had a right to their beliefs. The letter went on to say that "[t]he purpose of our program is to provide instruction for Cosmetologist [sic] not religious, social and sexual beliefs or provide written materials to influence those beliefs." It called on them to cease such activities immediately, and warned them that further actions "could lead to disciplinary measures up to and including discharge."

On October 7, Walters and Cummings wrote a memo to Benne and Piggee, which read as follows:

It is the finding of the Affirmative Action Officer and the Equal Employment Opportunity Officer that sexual harassment has taken place in the case of Jason Ruel. It has been found that because of Mr. Ruel's sexual orientation, Mrs. Louise Piggee has been proselytizing in the hopes of changing Mr. Ruel's sexual orientation and religious beliefs. Recommendation: The recommendation is that Mrs. Piggee be given a warning to cease and desist all proselytizing in the workplace to Mr. Ruel and/or to other students. Failure to cease and desist will constitute insubordination, which can result in disciplinary action up to, and including, termination.

In a later letter to Piggee, Benne indicated that he agreed with this recommendation.

When the time came for the college to decide whether to offer Piggee a contract for the spring of 2003, Benne advised Smith that this would be unwise. Smith passed this advice along to Kirchgessner, who decided to accept it. On January 6, 2003, Piggee received a letter from Kirchgessner informing her that she was not needed for the spring 2003 semester. On October 9, 2003, Piggee filed this lawsuit; the district court denied her motion for summary judgment and granted the defendants' motion for summary judgment on June 27, 2005.

II

Although Piggee's brief purports to raise 10 issues on appeal, we see four broad arguments that we need to address: (1) whether her speech was on a matter of public concern; (2) whether the college's interest in enforcing its sexual harassment policy or controlling the cosmetology program outweighed Piggee's free speech interest; (3) whether the college unlawfully imposed a prior restraint on her speech; and (4) whether any such prior restraint was overbroad or unconstitutionally vague. Piggee also raises due process and equal protection claims, and the college asserts that its administrators are entitled to qualified immunity, should this court decide that Piggee has alleged a constitutional violation.

Before turning to these specific arguments, we think it important to set the stage. Apart from her due process and equal protection arguments, Piggee's real complaint has to do with her ability to speak at the workplace, and in particular her ability to discuss matters of religious concern there. Since the oral argument in this case, the Supreme Court has spoken to these issues, in Garcetti v. Ceballos, ___ U.S. ___, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). We therefore begin with a look at Ceballos, and then turn to Piggee's arguments.

Ceballos involved a claim brought by a deputy district attorney, Richard Ceballos, who worked for the Los Angeles County District Attorney's office. When a defense attorney told Ceballos that he had found inaccuracies in an affidavit supporting a search warrant, Ceballos looked into the matter and concluded that defense counsel was right. He communicated his concerns to his supervisors and wrote a couple of memoranda about the problem. The supervisors heard him out, but they decided in the end to continue with the prosecution. As a result of this disagreement, Ceballos claimed, he was subjected to a series of retaliatory actions, including a reassignment, a transfer to another location, and the denial of a promotion. He sued under 42 U.S.C. § 1983. The district court ruled for the county defendants, but the Ninth Circuit reversed, holding that "Ceballos's allegations of wrongdoing in the memorandum constitute protected speech under the First Amendment." 126 S.Ct. at 1956, quoting from 361 F.3d 1168, 1173 (9th Cir.2004). The Supreme Court accepted the case and reversed.

The Court's opinion reviews the line of cases dealing with employee speech that began with Pickering v. Board of Educ. of Township High School Dist. 205, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). It summarized those cases in the following way:

The Court's decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions. . . . Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to "constitutionalize the employee grievance." Connick [v....