Walsh v. Ward

• Decision Date: 28 April 1993
• Docket Number: No. 92-1680,92-1680
• Citation: 991 F.2d 1344
• Parties: , 8 IER Cases 716 James WALSH, Plaintiff-Appellant, v. Pat WARD and Thomas Oseland, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1344

991 F.2d 1344

61 USLW 2663, 8 IER Cases 716

James WALSH, Plaintiff-Appellant, v. Pat WARD and Thomas Oseland, Defendants-Appellees.

No. 92-1680.

United States Court of Appeals Seventh Circuit.

Argued March 3, 1993.

Decided April 28, 1993.

James P. Baker (argued), Springfield, IL, for plaintiff-appellant.

Jill Leka (argued), and Gary S. Rapaport, Springfield, IL, for defendants-appellees.

Before POSNER and EASTERBROOK, Circuit Judges, and PELL, Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

On being promoted to battalion chief, the highest civil service position in the Springfield, Illinois, fire department, James Walsh received what many would consider a plum appointment: directing the training of other firefighters during normal business hours. Until this promotion, Walsh had been a captain of an engine company, with 24 hours on duty followed by 48 hours off. His new position paid more and had shorter, regular hours. Walsh nonetheless filed this suit, contending that the assignment violated his rights under the Constitution of the United States.

Walsh's complaint asserts that he conducted a business during the 48-hour gaps between turns at the fire station. Until the union secured him the right to return to his old hours, Walsh had to give up this business in order to train firefighters. During the year he worked every weekday, he lost more from his private endeavors than he received in additional salary. Now the Constitution does not create a right to moonlighting; public agencies may insist on the full-time services of their employees. Walsh concedes as much. His case is special, he contends, because his superiors assigned him the 9-5 post in retribution for his speech while allowing other firefighters to hold second jobs. According to the complaint, "for many years [Walsh] has openly expressed his opinions with respect to the manner in which [defendant Pat Ward] performed his role as the Director of the Department of Public Safety and, from time to time, was critical of certain policies and views adopted" by Ward. Ward and Thomas Oseland, the Fire Chief, changed his work schedule in order to get back at him for criticizing Ward. Walsh concedes that the training job was appropriate work for a battalion chief and that his on-the-job perquisites and satisfactions were unaffected by the assignment. His sole contention is that public agencies may not consider an employee's speech when making assignments that affect other sources of income.

The district court dismissed the complaint under Fed.R.Civ.P. 12(b)(6), holding that defendants are immune from liability in damages. 757 F.Supp. 959. (Walsh, back on 24-hour shifts, does not seek an injunction or damages from the municipality.) In assigning Walsh to a new position after his promotion in 1988, the district court held, the defendants did not violate any clearly established constitutional right. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Walsh disputes this assessment, pointing out that in 1979 we held that "a job transfer, in contrast to a discharge, could be the subject of a first amendment challenge." Egger v. Phillips, 710 F.2d 292, 324 (7th Cir.1983) (in banc) (Cudahy, J., concurring), citing McGill v. Board of Education, 602 F.2d 774, 780 (7th Cir.1979). Defendants concede that McGill applies the approach of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and other first amendment cases, to transfers at no loss of pay, but reply that Walsh was not "transferred." He was promoted--at his own request, albeit not to the position of his choosing. To this day we have not applied Pickering, McGill, and similar cases to promotions, initial assignments, and the like, all of which means, defendants insist, that it was not "clearly established" in 1988 that they were forbidden to consider an employee's speech when matching battalion chiefs with positions.

McGill recognizes a proposition that cannot be denied: an employer can penalize past speech and discourage future speech by assigning a worker to an undesirable job. Dissenters exiled to Siberia (or the equivalents found within many bureaucracies) quickly get the message, even though the new postings carry the same salary and title. Supervisors control many sources of satisfactions, from the cleanliness of the workplace to the allocation of parking spaces. Rewards and penalties are most visible to judges when stated in monetary terms--say, supporters receive 20% more than critics--but incentives are no less effective when they are subtle. A campaign of petty harassment may achieve the same effect as an explicit punishment. Pieczynski v. Duffy, 875 F.2d 1331 (7th Cir.1989); Bart v. Telford, 677 F.2d 622 (7th Cir.1982).

Still, Pickering does not hold that the first amendment creates a remedy for every official action that responds in some way to an employee's speech. Instead it establishes a balancing approach: public employers may penalize speech that is excessively disruptive, or concerns the employee's private business, unless that penalty is excessively burdensome to the public interest in free speech. E.g., Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980); Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). Any balancing approach is hard to administer and invites consideration of many factors. Among these are the costs of administering the judicial system. Litigation is expensive and, alas, prone to error. The farther we depart from bright line rules, the more common error becomes. Have defendants gone "too far"? Questions of degree cannot be answered reliably, which means that taking any action is risky to a potential defendant.

Once courts begin to use a sliding scale--posing questions that lack right, or at least obviously right, answers--it becomes correspondingly important to insist, before exacting damages from public officials who step over the line, that the line between the permitted and the forbidden have been marked in advance. Public officials do not receive rewards proportioned to their success, which makes management of a civil service system difficult. Employees can use their procedural and substantive rights to resist discipline or reassignment; supervisors who receive no rewards for improving the efficiency of their agencies may respond with a live-and-let-live approach. Little wonder that some bureaucracies become havens to slothful and inept workers. When the staff can lash back at the supervisors with actions for damages, the problem becomes worse. Cf. Wyatt v. Cole, --- U.S. ----, 112 S.Ct. 1827, 1833-34, 118 L.Ed.2d 504 (1992). An employee with a threat to collect damages from a supervisor who assigns him to a post he does not want--a threat made credible by the plastic nature of "balancing" approaches, which gives most suits some positive settlement value--is in a good position to bring the civil service system to its knees. If the first amendment clearly forbids the supervisors' acts, the cost is worth bearing (and also is diminished, by the very clarity of the rule). In the main, however, the rules must be firmly established before they can be enforced by damages taxed against the supervisors' personal wealth. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (emphasis added).

Balancing approaches make disagreement inevitable.... [S]ome judges will rely on the qualitative aspects of the earlier cases (the interest in free speech), while others will emphasize the quantitative aspects (treating the early cases as showing only that there ought not be an "excessive" price tag attached to expression).... Where the line eventually will be drawn is not predictable at the beginning. Indeed, lines of this kind are unstable; a change in Justices' attitudes about the importance of the speakers' interests and those of the government may produce different outcomes.

Principles of immunity relieve [public employees] from having to decide, at their financial peril, how judges will balance these interests in the years to come. Governmental employees must obey the law in force at the time but need not predict its evolution, need not know that in the fight between broad and narrow readings of a precedent the broad reading will become ascendant.

Greenberg v. Kmetko, 922 F.2d 382, 385 (7th Cir.1991).

Would careful supervisors have understood in 1988 that assigning a newly promoted worker to a 9-5 job could violate the Constitution because of its effect on earnings from a business that worker operated on the side? Walsh has been unable to find a single case before 1988 (or since, for that matter) applying Pickering to decisions that affect income from second jobs. Our own search has been equally fruitless. There are plenty of cases like McGill, involving a transfer to a job less desirable on its own terms--perhaps because it was more dangerous, or boring, or had less potential for advancement, or was so unsuited to the worker's skills that it amounted to constructive discharge, or even because it was harder to get to. See 602 F.2d at 780 and, among pre-1988 cases in other circuits, Reeves v. Claiborne County Board of Education, 828 F.2d 1096 (5th Cir.1987); Clark v. Yosemite Community College District, 785 F.2d 781, 790 (9th Cir.1986); Bowman v. Pulaski County Special School District, 723 F.2d 640 (8th Cir.1983); Childers v. Independent School District, 676 F.2d 1338 (10th Cir.1982); Alicea Rosado v. Garcia Santiago, 562 F.2d 114 (1st Cir.1977). None holds that the first amendment compels supervisors to assign positions so as to avoid curtailing an employee's opportunities for earnings from other employment.

The...