Sadid v. Idaho State Univ.

• Decision Date: 30 November 2011
• Docket Number: No. 37563–2010.,37563–2010.
• Citation: 265 P.3d 1144,151 Idaho 932
• Court: Idaho Supreme Court
• Parties: Habib SADID, an individual, Plaintiff–Appellant–Cross Respondent, v. IDAHO STATE UNIVERSITY, Robert Wharton, Jack Kunze, Michael Jay Lineberry, Manoochehr Aoghi, Richard Jacobsen, Gary Olson, Authur Vailas, and John and Jane Does I through X, whose true identities are presently unknown, Defendants–Respondents–Cross Appellants.

151 Idaho 932

265 P.3d 1144

Habib SADID, an individual, Plaintiff–Appellant–Cross Respondent,

v.IDAHO STATE UNIVERSITY, Robert Wharton, Jack Kunze, Michael Jay Lineberry, Manoochehr Aoghi, Richard Jacobsen, Gary Olson, Authur Vailas, and John and Jane Does I through X, whose true identities are presently unknown, Defendants–Respondents–Cross Appellants.

No. 37563–2010.

Supreme Court of Idaho, Twin Falls, November 2011 Term.

Nov. 30, 2011.

Ronaldo A. Coulter ; Camacho Mendoza Coulter Law Group, PLLC; Eagle; argued for appellant.

John A. Bailey, Jr. ; Racine, Olson, Nye, Budge & Bailey Chtd.; Pocatello; argued for respondents.

EISMANN, Justice.

This is an appeal from a summary judgment dismissing a complaint by an engineering professor who alleged that Idaho State University had retaliated against him because of his comments criticizing the administration that had been published in a local newspaper over several years and that the University had breached his employment contract. We affirm the summary judgment, but remand for determination of reasonable attorney fees on the breach of contract claim.

I.Factual Background

Habib Sadid ("Plaintiff") was a tenured professor in the Department of Civil Engineering at Idaho State University. He began working for the University in 1991, was given full tenure in 1993, and became a full professor in 1999. During the period from 2001 through 2008, Plaintiff publically criticized successive University administrations in guest columns, printed comments, a letter to the editor, and a paid advertisement, all of which were published in a local newspaper.

On September 29, 2008, Plaintiff filed this action against the University and a University administrator alleging that they retaliated against him for exercising his free speech rights, that the University breached his employment contract, and that the administrator defamed him. He later amended his complaint to add as defendants the former and current Provosts, the former and current Deans of the College of Engineering, the current Chair of the Department of Civil and Environmental Engineering, and the current University President.

The Defendants moved for summary judgment on various grounds, and the district court granted their motion. Plaintiff filed a motion for reconsideration, which the court denied. The court awarded the Defendants court costs as a matter of right, but denied their request for an award of attorney fees. Plaintiff appealed the granting of summary judgment, and the Defendants cross-appealed the denial of their request for attorney fees.

II.Applicable Standards

When reviewing on appeal the granting of a motion for summary judgment, we apply the same standard used by the trial court in ruling on the motion. Infanger v. City of Salmon, 137 Idaho 45, 46–47, 44 P.3d 1100, 1101–02 (2002). We construe all disputed facts, and draw all reasonable inferences from the record, in favor of the non-moving party. Id. at 47, 44 P.3d at 1102. Summary judgment is appropriate only if the evidence in the record and any admissions show that there is no genuine issue of any material fact regarding the issues raised in the pleadings and that the moving party is entitled to judgment as a matter of law. Id.

Plaintiff seeks damages under 42 U.S.C. § 1983 on the ground that Defendants violated his freedom of speech guaranteed by the First and Fourteenth Amendments to the Constitution of the United States. Determining whether a public employer infringed upon its employee's constitutionally protected interest in freedom of expression requires the following analysis:

(a) Did the plaintiff make the statements at issue pursuant to his or her official duties as a public employee? Garcetti v. Ceballos, 547 U.S. 410, 421 [126 S.Ct. 1951, 1959–60, 164 L.Ed.2d 689, 701] (2006). If so, the speech is not protected from employer discipline. Id.

(b) If not, does the court conclude, as a matter of law, that any of the plaintiff's speech addressed a matter of public concern, considering the content, form, and context of the statement(s) as revealed by the whole record? Connick v. Myers, 461 U.S. 138, 147–48 & n. 7 [103 S.Ct. 1684, 1690–91 & n. 7, 75 L.Ed.2d 708, 720 & n.7 ] (1983). If none of the speech at issue addressed a matter of public concern, the speech was not protected from employer discipline. Id.

(c) If any of the speech did address a matter of public concern, has the plaintiff produced evidence from which the trier of fact could reasonably find that such speech was a substantial or motivating factor in adverse employment action? Id. at 149 [103 S.Ct. at 1691, 75 L.Ed.2d at 721–22]; Brown v. City of Pocatello, 148 Idaho 802, 806, 229 P.3d 1164, 1168 (2010). If not, the plaintiff has no First Amendment cause of action based upon his or her employer's reaction to the speech. Connick, 461 U.S. at 146 [103 S.Ct. at 1689–90, 75 L.Ed.2d at 719].

(d) If so, does the court conclude that the employer has shown adequate justification for the action taken because its interest in the effective and efficient fulfillment of its responsibilities to the public, including promoting efficiency and integrity in the discharge of official duties and in maintaining proper discipline in public service, outweighed the employee's First Amendment right, considering factors such as how substantially the speech involved matters of public concern; the manner, time, and place where the speech occurred; and the context in which it arose, giving a wide degree of deference to the employer's judgment? Id. at 150–54 [103 S.Ct. at 1691–92, 75 L.Ed.2d at 722–25]. If the court so concludes, then the employer's action did not offend the First Amendment. Id. at 154 [103 S.Ct. at 1693–94, 75 L.Ed.2d at 724–25].

(e) If the court cannot so conclude, has the employer shown by a preponderance of the evidence that it would have taken the same adverse employment action even in the absence of the protected speech? Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286 [97 S.Ct. 568, 575–76, 50 L.Ed.2d 471, 483] (1977).

III.Did the District Court Err in Holding that Plaintiff's Statements Were Not Protected Because He Spoke as a Public Employee?

Plaintiff alleged that the Defendants violated his rights of freedom of speech. When he made the statements at issue, Plaintiff was a public employee. The district court characterized the issue as whether he "spoke as Public Employee or Private Citizen," and concluded that his speech was not protected because he spoke as a public employee.

"When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom." Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 1958, 164 L.Ed.2d 689, 699 (2006). "[T]he State has 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 the citizenry in general." Pickering v. Bd. of Ed. of Township High School Dist. 205, Will County, Illinois, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811, 817 (1968). "A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations." Garcetti, 547 U.S. at 418, 126 S.Ct. at 1958, 164 L.Ed.2d at 699.

When a public employee alleges retaliation for exercising his or her freedom of speech, the first issue is determining whether the employee was speaking as a citizen or pursuant to his or her official duties. "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421, 126 S.Ct. at 1960, 164 L.Ed.2d at 701. Conversely, "[e]mployees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government." Id. at 423, 126 S.Ct. at 1961, 164 L.Ed.2d at 702. Thus, the issue is whether Plaintiff's statements at issue were made in the course of performing his official duties.

Defendants contend that Plaintiff's speech was in performance of his duties, as shown by the allegation in his amended complaint stating that he made the public comments at issue "[i]n his capacity as a Faculty Member and Full Professor of ISU." Plaintiff made that same allegation in his original complaint, and the two Defendants named in the original complaint admitted the allegation in their answer. Plaintiff was later granted permission to file an amended complaint naming additional defendants. Plaintiff's amended complaint superseded the original complaint, and all subsequent proceedings had to be based upon the amended complaint. Weinstein v. Prudential Property and Cas. Ins. Co., 149 Idaho 299, 330, 233 P.3d 1221, 1252 (2010). Although "[t]here is no genuine issue of material fact as to issues admitted by the parties in their pleadings," Esser Elec. v. Lost River Ballistics Technologies, Inc., 145 Idaho 912, 919, 188 P.3d 854, 861 (2008), the Defendants did not file an answer to Plaintiff's amended complaint, which was unverified. Because the allegation was unsworn and was not admitted by the Defendants, we need not decide whether it should be construed as alleging that Plaintiff's statements at issue were made in the course of performing his official duties. The party moving for summary judgment has the burden of presenting admissible evidence showing that there is an absence of any genuine issue of material fact with respect to the issues raised by the summary judgment motion. Foster v. Traul, 141 Idaho 890, 893, 120 P.3d 278, 281 (2005). The unsworn allegation in the amended complaint does not satisfy that burden.

The district court held that Plaint...