Ware v. Unified School Dist. No. 492, Butler County, State of Kan.

• Decision Date: 04 August 1989
• Docket Number: B,No. 492,No. 86-1081,492,86-1081
• Citation: 881 F.2d 906
• Parties: 55 Ed. Law Rep. 373 Norma J. WARE, Plaintiff-Appellant, v. UNIFIED SCHOOL DISTRICT NO. 492, BUTLER COUNTY, STATE OF KANSAS; Board of Education, Unified School Districtutler County, State of Kansas and Larry L. Geil, Superintendent of Schools, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 906

881 F.2d 906

55 Ed. Law Rep. 373

Norma J. WARE, Plaintiff-Appellant, v. UNIFIED SCHOOL DISTRICT NO. 492, BUTLER COUNTY, STATE OF

KANSAS; Board of Education, Unified School District No.

492, Butler County, State of Kansas and Larry L. Geil,

Superintendent of Schools, Defendants-Appellees.

No. 86-1081.

United States Court of Appeals, Tenth Circuit.

Aug. 4, 1989.

Philip A. Hamm, El Dorado, Kan., for plaintiff-appellant.

Mary Kathleen Babcock (Timothy B. Mustaine with her, on the brief), of Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., for defendant-appellee, Unified School Dist. No. 492.

Daniel J. Sevart, of Sevart & Sevart, Wichita, Kan., for defendant-appellee, Larry L. Geil.

Before McKAY, SEYMOUR, and BARRETT, Circuit Judges.

SEYMOUR, Circuit Judge.

Norma Ware brought this action under 42 U.S.C. Sec. 1983 (1982) against Unified School District No. 492, the District school board, and Larry Geil, the District superintendent. Ware, who had been Geil's secretary and the school board clerk, alleged that defendants terminated her employment in retaliation for her exercise of free speech rights protected by the First and Fourteenth Amendments. The district court assumed that Ware's speech was constitutionally protected but entered a directed verdict for the school board, concluding Ware had presented no evidence that her speech played a part in the board's decision to terminate her. The court granted Geil's motion for a j.n.o.v. following a jury verdict against him, holding that Ware had failed to present sufficient evidence that her speech was a motivating factor in Geil's decision to recommend her termination to the board. We reverse.

I

Norma Ware's employment was terminated on April 8, 1980. At the time of her dismissal, Ware had worked for the school district for sixteen years and as Geil's secretary for nine years. A major part of her secretarial duties included keeping the school financial records and doing the payroll. She also served as clerk for the board of education from 1968 until her termination.

During the year prior to Ware's dismissal, Geil and the board developed a master plan for the entire school district that included a proposed bond issue to raise funds for construction of a new school building and for maintenance and repairs to old buildings. Ware generally agreed with the bond issue, but in discussions with school district patrons and some school board members, she expressed disapproval of a proposal to seek money for certain repairs.

Ware and Geil had two conversations involving the bond issue. Ware testified that on February 26, 1980, Geil asked her why she opposed the bond issue and she responded "exactly what I had said all the time, that I felt like there was a lot of maintenance work in there that we should have already completed." Rec., vol. V, at 59. Although Ware testified that Geil told her he did not think someone in her position as clerk of the board should openly oppose the bond issue, he denied telling Ware not to oppose it. After their discussion, Ware stopped calling patrons or otherwise openly talking about the bond issue. The bond issue was hotly contested but passed by a small margin on March 18, 1980.

The second conversation occurred on April 2, when Geil informed Ware he was going to recommend that the board not renew her contract, and gave three reasons for the recommendation: poor working relationships in the office; his belief that working on the bond issue would upset Ware; and Ware's resistance to typing, authority, computers, and changes in the office. That evening, Ware and her husband called several members of the school board either complaining that Ware was being fired over the bond issue or asking why Ware was being dismissed. The next day, Geil had the locks on the school office changed and did not give Ware a key.

At the April 8 board meeting, the board reviewed employment contracts for all noncertified personnel. An unusually large number of people attended the meeting due to efforts to rally support for Ware, and the bond issue was a topic of discussion from the floor. After the board went into executive session, Geil made a formal recommendation not to renew Ware's contract, listing several reasons for his recommendation, including his belief that it would be impossible for him and Ware to continue working together in the future. Although Ware and her attorney were permitted to attend the second half of the executive session, Ware's attorney advised her to remain silent. When confronted with Geil's list of reasons, she objected only to the accusation of having alcohol on her breath at work. The board asked Ware one question. ¹ Board member Remsburg moved to reject Geil's recommendation concerning Ware's contract, but his motion was voted down. A second motion to accept all Geil's recommendations concerning noncertified personnel, including nonrenewal of Ware's contract, passed by a four to three vote. Ware never returned to work.

II

We begin by addressing defendants' argument that Ware's speech on the bond issue is not constitutionally protected. Although the trial court assumed the speech was protected in deciding in favor of defendants on other grounds, "we can affirm on any grounds that find support in the record." Colorado Flying Academy, Inc. v. U.S., 724 F.2d 871, 880 (10th Cir.1984). Moreover, while the sufficiency of the underlying historical facts is determined by the traditional standard of review, the protected nature of Ware's speech is subject to our independent constitutional judgment. Saye v. St. Vrain Valley School Dist. RE-1J, 785 F.2d 862, 865 (10th Cir.1986). In assessing the status of Ware's speech, we view the historical facts most favorably to Ware and give her the benefit of all reasonable inferences to be drawn from the evidence. Id.

In determining whether a public employee's speech is entitled to First Amendment protection, a court must first consider whether the speech relates to a matter of public concern, that is, a "matter of political, social, or other concern to the community." Connick v. Meyers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983). The plaintiff must also present evidence that the speech itself was of general interest rather than of purely personal significance. See Saye, 785 F.2d at 866; Wren v. Spurlock, 798 F.2d 1313, 1317-18 & n. 1 (10th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 145 (1987); Wilson v. City of Littleton, 732 F.2d 765, 768-69 (10th Cir.1984). Ware met this burden with evidence that the bond issue was a matter of widespread community interest and that the content of her speech contributed to the public debate on that issue.

When the speech is a matter of public concern, the court must then balance the interest of a public employee in commenting on such matters and the interest of the employer in promoting the efficiency of its public services. See Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). Under the Pickering test, an employee's First Amendment rights are protected " 'unless the employer shows that some restriction is necessary to prevent the disruption of official functions or to insure effective performance by the employee.' " Wren, 798 F.2d at 1318 (quoting Childers v. Ind. School Dist. of Bryan Cty., 676 F.2d 1338, 1341 (10th Cir.1982)). The employer's burden to justify its restriction on speech increases in proportion to the value of that speech in the public debate. See Connick, 461 U.S. at 152, 103 S.Ct. at 16; Conaway v. Smith, 853 F.2d 789, 797 (10th Cir.1988) (per curiam). In focusing on the effective functioning of the employer's enterprise, a court should consider "whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 2899, 97 L.Ed.2d 315 (1987).

On appeal, defendants contend that they were justified in terminating Ware because she and Geil had a confidential employment relationship that was compromised by their disagreement over the bond issue. Whatever merit this argument might have in the abstract, it is fatally undermined by defendants' failure to assert it at trial or present any evidence to support it. Although Geil testified that his action was based in part on a deteriorating work atmosphere, he attributed it to factors other than Ware's public statements on the bond issue. Indeed, Geil testified that Ware's stance on the bond issue played no part in his decision to recommend her termination. Neither did he offer the disruptive effect of Ware's speech as a basis for his action either to Ware or to the school board. Those testifying board members who voted in favor of Geil's recommendation also stated that Ware's speech had no bearing on their vote.

Under these circumstances it is difficult to give credence to defendants' argument on appeal that Ware's speech was so disruptive it justified her termination, particularly in view of independent evidence that the effective functioning of the office was not affected by Ware's speech. Marguerite Banks, the secretary who shared an office with Ware, Geil and the high school principal, Neill Wheeler, testified that she did not observe any change in Ware's relationship with Geil or Wheeler that led her to believe Ware would be fired. She described the office atmosphere as friendly most of the time. The evidence was undisputed that Ware had never revealed any confidential information and that her position on the bond issue was based on facts available to the public. On April 1, only a day before Geil told her he was recommending her termination, the state auditors praised her work. In sum, the record contains no...