Steinberg v. Thomas

• Decision Date: 05 May 1987
• Docket Number: Civ. A. No. 84-M-1759.
• Citation: 659 F. Supp. 789
• Parties: Bernard STEINBERG, Plaintiff, v. James THOMAS, individually and in his capacity as State Court Administrator, and the Colorado Judicial Department, Defendants.
• Court: U.S. District Court — District of Colorado

659 F. Supp. 789

Bernard STEINBERG, Plaintiff, v. James THOMAS, individually and in his capacity as State Court Administrator, and the Colorado Judicial Department, Defendants.

Civ. A. No. 84-M-1759.

United States District Court, D. Colorado.

May 5, 1987.

John R. Holland, Denver, Colo., for plaintiff.

Carol Welch, Hall & Evans, Neil Tilquist, Asst. Atty. Gen., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

MATSCH, District Judge.

The plaintiff, Bernard Steinberg, was employed as staff legal officer in the office of the State Court Administrator, Colorado Judicial Department, from July 1971 until October 29, 1982. The defendant, James Thomas, is and was the State Court Administrator during the time relevant to this dispute. Steinberg's duties involved providing legal advice and counsel, and representation when necessary, to the State Court Administrator, all justices and judges, and all court personnel on matters relating to the administration of the state court system.

In this civil action, the plaintiff claims damages from the defendant James Thomas, individually, pursuant to 42 U.S.C. § 1983, upon alleged violations of rights protected by the United States Constitution and for defamation under state law. The core of the dispute is an involuntary termination of employment after a confrontation at a staff meeting on September 3, 1982. The Colorado Judicial Department is a defendant only on the plaintiff's equitable claim for reinstatement. The plaintiff filed a motion for summary judgment of liability, reserving damages. The defendants filed a motion for summary judgment dismissing all claims. The issues have been briefed and oral argument was heard on April 10, 1987. Most of the material facts are not in dispute. To the extent of any disagreement, this court has accepted the plaintiff's version in determining these issues under Fed.R.Civ.P. 56.

In response to many complaints of unfairness and by direction of the Colorado Supreme Court, the Personnel Services Division of the State Court Administrator's office developed a new classification plan for all non-judicial personnel. That proposal was circulated to the entire judicial system in July, 1982, with a cover memorandum from Thomas, inviting comments, suggestions and any other response for consideration before making the plan final.

Some of the responses received were very negative. Thomas ridiculed and derided the critical comments and suggestions with which he disagreed. Two hundred Judicial Department clerks signed a request for a job title change from clerk to judicial administrator or judicial assistant. Steinberg's perception of Thomas' conduct was summarized in the following paragraphs from Steinberg's affidavit submitted to this court:

I considered my statements to be an integral part of my duties as staff legal officer of the Colorado Judicial Department, as I felt that James Thomas' conduct was a clear abuse of the power and trust imposed in the position of administrator of the Colorado judicial system. I criticized James Thomas for his publicly abusive, derisive, ridiculing, obscene, and scatological responses to input with which he disagreed, which input he specifically and expressly requested, and which input came from various parts of the state, on a plan that would affect all court personnel in the state.

During the process, Steinberg requested reclassification of his own position. Mel Fooks, director of Personnel Services, informally told Steinberg in August, 1982 that the request would probably be denied. Steinberg's request was officially denied October 18, 1982.

On September 3, 1982, the State Court Administrator's staff met for its bi-weekly meeting. Approximately ten people were present, including Steinberg and Thomas. The meeting was not open to the public. During the meeting, Steinberg was asked to report on one of his projects. He remarked that unlike the proposed reclassification plan, his project was genuinely open for input. Thomas immediately demanded to know what Steinberg meant by that statement. Steinberg attempted to avoid a confrontation, but Thomas insisted. Steinberg said the classification plan was not an open process. He criticized Thomas for making derogatory comments about some of the suggestions received and ridiculing people whose suggestions were critical.

Later that same day, Thomas asked for Steinberg's resignation. Steinberg asked Thomas to reconsider, and Thomas agreed to think about it over the Labor Day weekend. Thomas did not change his mind. Forced to resign or be fired, Steinberg resigned on September 22, 1982. He left the Judicial Department on October 29, 1982. Claiming that he was terminated solely for his speech at the September 3, 1982 meeting, in violation of his right to free speech protected by the First and Fourteenth Amendments, Steinberg filed this action under 42 U.S.C. § 1983 on August 31, 1984. Steinberg also asserts four common law claims for defamation, wrongful discharge, breach of implied and contractual duty of good faith, and outrageous conduct under the doctrine of pendent jurisdiction.

Under Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), Steinberg's speech is protected only if it related to a matter of public concern. In Connick, an assistant district attorney, unhappy over her transfer to another section of the criminal court, prepared and distributed to the other assistants a questionnaire concerning office transfer policy, office morale, whether employees felt pressured to work in political campaigns, and other matters. She was then fired for refusing to accept the transfer and for insubordination. The Supreme Court held the discharge did not offend the First Amendment because the questionnaire involved matters of public concern only in the limited sense of the question regarding whether employees felt pressured to work on political campaigns. Primarily, the dispute was characterized as an employee grievance concerning internal office matters. The limited First Amendment interest was outweighed by the governmental interest in the efficient and successful operation of the prosecutor's office.

Assuming that Steinberg's criticism was motivated by his concern for the effectiveness of the State Court Administrator in the performance of his responsibilities and for the operation of the Judicial Department in the public interest, and also assuming that Steinberg was fired solely in retaliation for his remarks at the September 3, 1982 meeting, this court concludes that the plaintiff has not established that his speech related to a matter of public concern, and, therefore, the court need not apply the balancing test required by Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). See, Wilson v. City of Littleton, Colo., 732 F.2d 765 (10th Cir.1984).

The speech at issue related to an internal departmental dispute, not a matter of community-wide political or social concern. Steinberg's complaint is with the manner of Thomas' reaction to the responses, not the substantive policies of the proposed plan or the ability of the agency to serve the public. Assuming the validity of the perception that Thomas' memorandum was a sham and that the personnel classification system was not really open for comment, the denial of a democratic process for departmental planning is not a matter of public interest. Granting First Amendment protection to public employees in this type of internal dispute would impair the ability of government to function. The incidental effect on the public which may result from internal agency conflict does not transform such a squabble into a matter of public concern.

The context of the speech was not public. Steinberg spoke during a private staff meeting. Thomas' offensive remarks all were made within the office of the State Court Administrator.

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, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable....

When a public employee speaks not as a citizen upon mattters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior. Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government; this does not require a grant of immunity for employee grievances not afforded by the First Amendment to those who do not work for the State....

To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark — and certainly every criticism directed at a public official — would plant the seed of a constitutional case.

Connick v. Myers, 461 U.S. at 146-147, 149, 103 S.Ct. at 1690, 1691 (citation omitted).

The cases Steinberg cites for support of his position are factually distinguishable. Johnson v. Lincoln University, 776 F.2d 443 (3rd Cir.1985), concerned academic freedom and the quality of black colleges in America. Lewis v. Harrison School Dist. No. 1, 805 F.2d 310 (8th Cir.1986), involved comments at a public meeting concerning public education and teacher organizing activities.

In Wulf v. City of Wichita, 644 F.Supp. 1211 (D.Kan.1986), the court held that a police officer's allegations to the state attorney...