Schalk v. Gallemore

• Decision Date: 20 June 1990
• Docket Number: No. 89-3220,89-3220
• Citation: 906 F.2d 491
• Parties: Melva A. SCHALK, Plaintiff-Appellant, v. James GALLEMORE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 491

906 F.2d 491

107 A.L.R.Fed. 1

Melva A. SCHALK, Plaintiff-Appellant, v. James GALLEMORE, Defendant-Appellee.

No. 89-3220.

United States Court of Appeals, Tenth Circuit.

June 20, 1990.

James S. Phillips, Jr. of Phillips & Phillips, Wichita, Kan., for plaintiff-appellant.

Steven C. Day of Woodard, Blaylock, Hernandez, Pilgreen & Roth, Wichita, Kan., for defendant-appellee.

Before LOGAN, JONES, ^* and SEYMOUR, Circuit Judges.

PER CURIAM.

Plaintiff-appellant Melva Schalk appeals the district court's order granting summary judgment in favor of defendant-appellee James Gallemore on her First Amendment claims asserted under 42 U.S.C. Sec. 1983. In this appeal, Schalk alleges Gallemore violated her First Amendment rights when, as chief administrator of a publicly owned hospital, he fired her for writing a letter to, and later speaking with, hospital board of trustees members about management practices. Gallemore denies there was any First Amendment violation and argues, in the alternative, that he is immune from liability for civil damages. ¹

I

Schalk was employed at St. Luke's Hospital in Wellington, Kansas, for approximately eighteen years prior to her termination in August 1986. St. Luke's is a municipally owned hospital governed by a publicly elected board of trustees. At the time she was terminated, Schalk was a part-time patient accounts clerk. Before his appointment as chief administrator, Gallemore was Schalk's immediate supervisor.

At some time subsequent to Gallemore's appointment, Schalk became concerned about what she perceived to be "waste," "inefficiency," and "favoritism" at the hospital. Appellant's Addendum at A-1, Schalk Affidavit at 2. In November 1985, Schalk hand-delivered a four-page letter to the hospital board members and the city council expressing concern over various hospital matters, including specific concerns regarding certain hospital employees. In the letter, she requested that the trustees schedule time for her to speak at the next board meeting to discuss her concerns. Schalk stated that Gallemore had refused to let her address the board as a group, but invited her to speak to them individually.

The first two pages of the letter raise questions regarding specific instances of problems with employees. It states, in part, as follows:

"Do kitchen employees pay for their food as was requested in Department Head meeting a few months ago? Why does an employee in the kitchen get to leave the building every day to take her children to school on our time? Why do some salaried people have to work 6 hours a day and others 8? There are some salaried people who do not even work 6. Why did they pay $1,000.00 for [one employee] to take Lamaze instructions when [another employee] already knew how and would have taught?"

Appellant's Addendum at A-16.

The second two pages are designated "personal complaints" and consist mainly of Schalk's personal observations and concerns about hospital administration and a dispute she had with a nurse supervisor in 1983. The second section also includes a complaint related to Schalk's failure to get a pay raise. In the letter's last paragraph Schalk requests that the board intervene to improve hospital management and, consequently, raise employee morale.

On December 4, 1985, the board of trustees sent Schalk a written response. The board outlined each question or issue and answered it. In this response, Gallemore's position was clarified. The board stated:

"The Administrator's reply to your request [to be placed on the agenda] was as follows: That he would not place you on the agenda. He suggested that you discuss these matters with any or all of the members of the board of trustees, and after you have had these discussions, if any Board Member feels this topic is suitable for discussion at the Board Meeting, they can request it be placed on the agenda and he would certainly do that.

The Administrator further advised you that matters of this nature were normally discussed in Executive Sessions and that you might or might not be present during the executive Session. Your reply was, that;s fair.' [sic] You further replied, 'and after that I will be fired.' The administrator's reply was, 'no.' "

Appellant's Addendum at A-40.

The board did not specifically respond to the last paragraph of the letter. The board did, however, take action based on at least one of the concerns raised.

In a subsequent counseling session with Gallemore and her immediate supervisor, Jerry Zoglmann, Schalk was formally reprimanded for writing the letter. Her written reprimand describes the violation as follows:

"With reference to a four page list of questions and allegations concerning management practices in the Hospital.... This list was prepared, signed and submitted to members of the Board of Trustees and members of the city council by Melva Schalk.... None of the questions ask [sic] or allegations made in the four page list, referred to above, relate to any area of responsibility associated with your job or position in the Hospital. In the future, if you wish to continue as an employee of the Hospital, complaints of this nature that do not directly relate to your job or its performance will not be tolerated and will be considered as unacceptable conduct on your part. I refer specifically to the Personnel Policies page 10, items 12, 14, 15, and 19 that cover Disciplinary Action.

Any further conduct of this nature, in violation of policies covering employee conduct, will result in immediate discharge."

Appellee's Addendum at App. C. As a result of this session, it was Schalk's understanding that she could not approach the board as she had done in the past. However, she did not believe she was prohibited from speaking casually with board members if she saw them.

On August 16, 1986, Schalk encountered board member Richard Strait in a local grocery store. She told him she wanted to meet with the board to discuss problems and concerns she had regarding waste and inefficiency at the hospital, specifically including her concern over nurses sleeping on the job. The following week, Gallemore was made aware of this conversation, and Schalk was terminated.

Gallemore testified in his deposition that he fired Schalk because she spoke with board member Strait. He also took into account the letter she wrote to the board and city council members. Gallemore readily admitted Schalk's 1986 employee review identified her as an "above average" employee. He agreed that her performance on the job had nothing to do with the termination.

Schalk ran for and was elected to the hospital board of trustees in April 1987. A number of Wellington newspaper articles from 1987-88 indicate that the hospital was having severe financial difficulty which dated back several years. See Appellant's Addendum at A-11. It is worth noting that Schalk raised the issue of fiscal problems in her 1985 letter some two years earlier. Defendant Gallemore resigned as administrator effective January 1, 1988.

Schalk brought suit against Gallemore in June 1988, asserting that he violated her First Amendment rights to freedom of association and to petition the government for redress of grievances. She also asserted that the rule prohibiting her from speaking to board members constituted a prior restraint on her speech. ² Gallemore filed a motion for summary judgment arguing that there was no First Amendment violation. In the alternative, he argued he was immune from suit. The district court granted summary judgment on all claims and did not reach the immunity issue. Schalk v. Gallemore, 718 F.Supp. 862, 868 (D.Kan.1989).

II

A. Standard of Review

On appeal, we review the granting of a motion for summary judgment de novo, and apply the same standard as the district court. Conaway v. Smith, 853 F.2d 789, 792 (10th Cir.1988). Summary judgment is appropriate only when there are no genuine issues of fact, and one party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Here, the evidence must be viewed in the light most favorable to the appellant, as the nonmoving party. Conaway, 853 F.2d at 792 n. 4.

In First Amendment cases in particular, "an appellate court has an obligation 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 United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1985, 80 L.Ed.2d 502 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 729, 11 L.Ed.2d 686 (1964)). The threshold issue of whether Melva Schalk's speech is protected is one of law. Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 1690 n. 7, 75 L.Ed.2d 708 (1983); Koch v. City of Hutchinson, 847 F.2d 1436, 1441 (10th Cir.) (en banc), cert. denied, 488 U.S. 909, 109 S.Ct. 262, 102 L.Ed.2d 250 (1988).

B. Freedom of Speech

It is now axiomatic that a governmental entity cannot condition employment "on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Connick, 461 U.S. at 142, 103 S.Ct. at 1687. In analyzing whether a public employer's actions impermissibly infringe on free speech rights, the Supreme Court has adopted a multi-tier test. Melton v. City of Oklahoma City, 879 F.2d 706, 713 (10th Cir.), reh'g granted on other grounds, 888 F.2d 724 (1989).

First, the court must decide whether the speech at issue touches on a matter of public concern. Connick, 461 U.S. at 146, 103 S.Ct. at 1689; Melton, 879 F.2d at 713. If it does, the court must balance the interest of the employee in making the statement against the employer's interest "in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811 (1968)...