Stewart v. Parish of Jefferson

• Decision Date: 28 January 1992
• Docket Number: No. 91-3078,91-3078
• Citation: 951 F.2d 681
• Parties: 58 Fair Empl.Prac.Cas. (BNA) 60, 58 Empl. Prac. Dec. P 41,310, 8 IER Cases 1790 Stanley J. STEWART, Plaintiff-Appellant, v. PARISH OF JEFFERSON, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 681

951 F.2d 681

58 Fair Empl.Prac.Cas. (BNA) 60, 58 Empl.

Prac. Dec. P 41,310,

8 IER Cases 1790

Stanley J. STEWART, Plaintiff-Appellant, v. PARISH OF JEFFERSON, et al., Defendants-Appellees.

No. 91-3078.

United States Court of Appeals Fifth Circuit.

Jan. 28, 1992.

M.H. Gertler, Gertler, Gertler & Vincent, New Orleans, La., for plaintiff-appellant.

Clement P. Donelon, Asst. Parish Atty., Metairie, La., for Parish of Jefferson.

Bernard Marcus, Ellis B. Murov, Deutsch, Kerrigan & Stiles, New Orleans, La., for Jefferson Parish Dept. of Public Works, Pete Schomaker.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, JONES, Circuit Judge and PARKER ^*, District Judge. ^**

ROBERT M. PARKER, District Judge:

Appellant Stanley J. Stewart (Stewart) filed suit against the Parish of Jefferson (Parish), Harold Pete (Pete), and Harold Shomaker (Shomaker) for violation of Stewarts First Amendment right to free speech, violation of Stewart's civil rights under 42 U.S.C. § 1983, and pendant state law tort claims. The Honorable Veronica D. Wicker, United States District Judge for the Eastern District of Louisiana, New Orleans Division, granted Pete's Motion to dismiss and subsequently granted summary judgment in favor of the Parish and Shomaker. In this appeal, Stewart challenges both actions of the district court. For the reasons stated below, we affirm.

Stewart began his employment with the Jefferson Parish Department of Public Works in August, 1970. Stewart eventually was promoted to the position of Engineering Inspector II. He developed a friendship with a co-worker, Joyce Breaud, who was also an Engineering Inspector II. Their immediate supervisor was Pete, who, in turn, was supervised by Shomaker. Shomaker's immediate superior was William Lavalle, Director of the Department of Public Works.

During their tenure with the Department of Public Works, Breaud and Pete entered into a rather stormy personal relationship which endured for a number of years. The demise of this relationship, in late 1987, is at the root of this lawsuit. ¹ Not only did Pete and Breaud engage in verbal confrontations at work, but Stewart alleges that Pete subjected him to harassment because of his friendship with Breaud, including repeated inquiries as to Breaud's after-hours activities. Stewart asserts that this verbal harassment included threats of demotion.

In January, 1988, Stewart and Breaud met with Shomaker to complain of Pete's alleged sexual harassment of Breaud and his related harassment of Stewart. Stewart had previously spoken with the Department of Public Works Personnel supervisor, Phil Rupp, who had instructed him to file an official complaint. Stewart asserts that Pete's harassment intensified after the complaint to the point that, on January 22, 1988, Stewart left work following a confrontation with Pete and checked himself into the Ochsner Hospital Psychiatric Unit. He was diagnosed as suffering from an acute anxiety attack and subsequently underwent stress relaxation therapy at the hospital.

In March, 1988, Breaud and Stewart brought their complaints to Shomaker's superior, Lavelle. At that time, they were removed from Pete's supervision and placed under the supervision of Larry Nalty. Breaud was subsequently transferred to another Department of Public Works section. In June, 1988, Pete retired.

Following Pete's retirement, Shomaker became Stewart's supervisor. Stewart asserts that Shomaker harassed him by over-burdening him with work and adding duties for which he was not previously responsible, such as parkway work. He further asserts that Shomaker was unfriendly toward him. In December, 1988, Stewart was assigned to the drainage inspection team. The assignment was made by Bill Sneed, who had replaced Lavelle as Director of the Department of Public Works. Stewart declined to perform the assignment because of his fear of snakes and rodents, often found in the drainage system. Rather than accept the assignment, Stewart transferred to the sign department as a Sign Technician I. ² The transfer was made in January, 1989. Although the salary for a Sign Technician I was somewhat lower than Stewart's previous salary, his overall income increased due to overtime pay. Stewart perceived the transfer as a demotion and his anxiety symptoms returned. He stopped working on August 3 1989. He filed this lawsuit on December 15, 1989.

Stewart raises two issues on appeal. He first contends that the district court erred in granting summary judgment as to his claims against the Parish and Shomaker. In his second issue, Stewart challenges the district court's order granting Pete's Motion to Dismiss.

I.

Stewart's challenge of the summary judgment is based upon the district courts determination that Stewart's speech was not a matter of public concern warranting First Amendment protection. The inquiry into the protected status of speech is one of law and, as such, is subject to de novo review by this Court. See Kirkland v. Northside Independent School Dist., 890 F.2d 794, 798 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990); Terrell v. University of Texas System Police, 792 F.2d 1360, 1362 n. 2 (5th Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). We have, therefore, considered the entire record in order to determine whether the district court properly resolved this legal question.

The issue of whether an employee's speech involves a matter of "public concern" is a slippery inquiry, one which defies precise definition. It thus requires a case-by-case analysis, with careful consideration of the content, context, and form of the statement. Kirkland, 890 F.2d at 798. When a public employee speaks as an employee rather than as a citizen on matters that address his personal employment conditions, First Amendment protection is not invoked absent unusual circumstances. See Ayoub v. Texas A & M University, 927 F.2d 834, 837 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 72, 116 L.Ed.2d 46 (1991) ( citing Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). This focus upon the role of the speaker is warranted by the realistic observation that "almost anything that occurs within a public agency could be of concern to the public." Ayoub, 927 F.2d at 837 (quoting 792 F.2d at 1362).

Review of the record as a whole leads this Court to the conclusion reached by the district court. Although Stewart vehemently asserts that the content of his speech concerned sexual harassment of Breaud, the facts are more indicative of what amounted to an unpleasant work environment. The demise of the long-term relationship between Breaud and Pete was apparently played out at the office in a particularly hostile and childish fashion with Stewart becoming involved due to his friendship with Breaud. ³

While the working conditions which prompted Stewart's complaints were at best unsatisfactory, the record indicates that the content of his speech concerned the personal abuse of Stewart by Pete...