Azzaro v. Allegheny

• Court: Court of Appeals for the Third Circuit
• Decided: April 11, 1997
• Docket: 95-3253
• Status: Unknown

Opinion

Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit

4-11-1997

Azzaro v. Allegheny Precedential or Non-Precedential:

Docket 95-3253

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

Recommended Citation "Azzaro v. Allegheny" (1997). 1997 Decisions. Paper 81. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/81

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NO. 95-3253

BEVERLY A. AZZARO

v.

COUNTY OF ALLEGHENY; TOM FOERSTER, an individual and Chairman, Allegheny County Commissioners and WAYNE FUSARO

BEVERLY AZZARO, Appellant

On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Civil Action No. 93-1589)

Argued December 7, 1995

BEFORE: STAPLETON, SAROKIN,* and ROSENN, Circuit Judges

Reargued En Banc December 2, 1996

BEFORE: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE and ROSENN, Circuit Judges

(Opinion Filed April 11, 1997 )

Michael J. Healey (Argued) Healey, Davidson & Hornack 429 Fourth Avenue Law & Finance Building, 5th Floor Pittsburgh, PA 15219 Attorney for Appellant

* Hon. H. Lee Sarokin heard argument before the original panel but retired from office prior to the en banc hearing.

1 Ira Weiss, County Solicitor Robert L. McTiernan (Argued) Assistant County Solicitor Caroline Liebenguth Assistant County Solicitor Allegheny County Law Department 300 Fort Pitt Commons Building 445 Fort Pitt Boulevard Pittsburgh, PA 15219 Attorneys for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Plaintiff Beverly Azzaro worked for Allegheny County in

various capacities from March, 1979, until June 19, 1992, when

she was discharged from her position as marketing coordinator in

the Allegheny County Department of Development. Azzaro claims

that her discharge was in retaliation for her reporting an

incident of sexual harassment by an executive assistant to the

County Commissioner. The district court entered summary judgment

against Azzaro.

We conclude that there was sufficient evidence from

which a reasonable factfinder could conclude that there was a

causal link between plaintiff's report of sexual harassment and

her termination. We also conclude that plaintiff’s report of

sexual harassment is constitutionally-protected speech. We will

reverse the district court and remand for a resolution of the

remaining factual issues.

2 I.

Because we are obligated on summary judgment to view

the facts in the light most favorable to the nonmoving party, we

will present Azzaro's version of the events leading up to her

discharge. According to Azzaro, the chain of events that

resulted in her termination began on June 11, 1991 -- just over a

year before she was discharged -- when her husband, who was also

employed by the County, had a verbal confrontation with employees

of the County Department of Employee Relations regarding the

manner in which the Azzaros' daughters were treated in connection

with their applications for jobs as County lifeguards. The

Director of the Department of Employee Relations reported the

incident to Harry Kramer, who was an executive assistant to then-

County Commissioner Tom Foerster, indicating that his employees

were upset by Mr. Azzaro's behavior. Kramer instructed Wayne

Fusaro, another of Foerster's executive assistants, to speak with

Mr. Azzaro and request that he apologize. Fusaro spoke with Mr.

Azzaro, and Mr. Azzaro apologized to the appropriate people.

Azzaro learned of these events a day or two later

through her husband and a co-worker, Donna Brusco. She was told

by the co-worker that Mr. Azzaro's job might be in danger as a

result of the incident. Fearing for her husband's position and

hoping to smooth things over, Azzaro went to Commissioner

Foerster's offices to talk to Fusaro. Azzaro testified that,

after she had entered Fusaro's office and seated herself, Fusaro

shut the office door and pulled a chair very close to hers. He

3 then began pulling open the lapels of her blazer, saying "let me

see." App. 120. She tried to hold the blazer shut, telling him

to stop, and saying "[w]hat the hell is wrong with you," but he

put his hand inside and pulled her blouse out of her slacks.

App. 121. Azzaro continued to try to evade Fusaro, standing when

he sat down and sitting when he stood. Suddenly, Fusaro unzipped

his pants and put his hand inside the zipper. App. 122. Azzaro

stood up and said loudly, "[a]re you nuts." Id. As soon as

plaintiff "got loud," Fusaro "assumed . . . [a] professional

attitude." App. 123. He sat down at his desk and took a phone

call. After he hung up, he said, "Beverly, I want you to promise

what happened here is never going to go any further." App. 124.

Azzaro promised.

Allegheny County's policy regarding sexual harassment

defines it as conduct "includ[ing] any unwelcome sexual advances,

request for sexual favors, and other verbal, visual, or physical

conduct of a sexual nature." App. 56. Under the terms of the

policy, an employee who has been subjected to sexual harassment

"should bring the matter to the immediate attention of his or her

supervisor." Id. Following such a report, the County Equal

Employment Opportunity Director is required to "promptly

investigate . . . in as confidential a manner as possible" and to

submit a report to the Director of Administration within thirty

days. Id. It is the Director of Administration who is

authorized to "take appropriate corrective action." Id.

Azzaro did not immediately report the sexual harassment

incident with Fusaro to her supervisor. However, she did tell

4 her daughters of the incident on the day it occurred, and she

told her husband and a friend the following day. She and her

husband decided at that time not to report the matter or pursue

it further for fear that they could lose their jobs.

In October 1991, Azzaro did finally tell her

supervisor, Tom Fox, of the incident. She first brought the

matter to Fox’s attention at a party, during a discussion of

Anita Hill’s testimony at the Clarence Thomas confirmation

hearings. Fox expressed shock and urged Azzaro to report the

incident and pursue it through the proper channels. The

following Monday, he called her into his office, asked her to

repeat the story, and pressed her once again to report the

incident to the Director of the Department of Development, Joe

Hohman. He told her that if she did not report it, he would be

obliged to do so on his own. Azzaro asked him not to do so,

telling him, "I ... [am] scared for my job and my husband's job."

App. 163.

Subsequently, Fox told Hohman himself. In so doing, he

impressed upon Hohman that he was telling him in confidence and

that Hohman should not take any action unless he felt that he had

an obligation to do so as director of the department. Hohman

told Fox that if Azzaro wanted to pursue the matter, she would

have to report to him directly.

Meanwhile, Hohman was growing concerned that his

relationship with Commissioner Foerster was deteriorating because

Foerster no longer sought his input or advice. Hohman scheduled

a meeting with Commissioner Foerster in December, 1991 to address

5 these concerns. Foerster invited his executive assistants,

Fusaro and Kramer, to attend. During the course of the meeting,

Hohman stated that he "had problems with the people [Foerster]

was surrounding himself" with, such as Wayne Fusaro. Hohman

testified that he said at the meeting, Wayne Fusaro ... potentially has a sexual harassment case coming against him from an employee in my office who I cannot name because the employee has not given me permission to name, but it occurred right upstairs in this office, Commissioner, over a summer job for her daughters.

App. 361-62. Both Foerster and Kramer offered a slightly

different account, testifying that Hohman mentioned a possible

lawsuit against Fusaro but did not say that it concerned

allegations of sexual harassment or offer any other details

regarding the incident or the alleged victim. However, both men

have testified under oath in a related case that Hohman accused

Fusaro of sexual harassment at that meeting. App. 306, 433.1

Just as this meeting was taking place, Azzaro reported

the harassment incident to the County Director of Administration,

Sal Sirabella, the official ultimately responsible for reviewing

reports of sexual harassment and deciding what corrective action

to take. When he asked what she wanted him to do, she replied:

"I don't know what to do. That's why I'm here." App. 146-47.

1. That related case was initiated by other former employees of the Allegheny County Department of Development who were discharged when their positions were eliminated at the same time as Azzaro’s. These other employees claimed that their discharges were impermissibly in retaliation for their support of Joe Brimmeier, an anti-Foerster candidate for prothonotary. See Carver v. Foerster, 102 F.3d 96 (3d Cir. 1996).

6 Sirabella allegedly replied, "[L]et's leave it alone for now

...." App. 147. Azzaro testified that she did not ask Sirabella

to keep their conversation confidential. According to Sirabella,

however, Azzaro asked him to keep the content of their

conversation confidential. Mr. Azzaro, who attended the meeting

with Sirabella, also indicated that he thought his wife told

Sirabella that "she'd prefer him to keep it confidential." App.

225. Sirabella did not take any action.

That evening, Donna Brusco phoned Azzaro at home. She

had spoken to Fusaro about the incident in Commissioner

Foerster's office. Brusco told Azzaro that Joe Hohman had been

in Commissioner Foerster's office that day, that he had been

"extremely upset," and that he "was screaming at Commissioner

Foerster that Wayne [Fusaro] was a pervert." App. 168. Brusco

said that Fusaro had been too upset to tell her all the details.

She then asked Azzaro why she had gone to see Sirabella that

day. Subsequently, Fusaro asked Sirabella "three or four times"

what the purpose of Azzaro's visit had been. App. 172.

Azzaro alleges that she was fired in retaliation for

her reporting of the Fusaro incident. According to Azzaro, this

retaliation was initiated by Fusaro and Brusco. Fusaro began by

calling Don Kovac, who was the Director of Employee Relations

during the relevant time period and was responsible for

coordinating personnel activity for all County employees. Fusaro

told Kovac that he suspected that the Department of Development,

where Azzaro worked, had employees on the payroll who were

disloyal to Commissioner Foerster. He asked Kovac to allow Donna

7 Brusco and another member of the Employee Relations Department to

"review the entire payroll in the Department of Development to

pick out people that were loyal to Foerster and people that were

loyal to Brimmeier," who was Foerster's opponent. App. 417.

Because Brusco had worked for the Department of Development until

she was transferred to the Employee Relations Department at

Fusaro's request in the fall of 1991, she was believed to be

familiar with the entire Department of Development payroll and

aware of people's loyalties. Fusaro told Kovac that he had

authorization to compile the list from both Commissioner Foerster

and Harry Kramer, Foerster's other executive assistant.

Accordingly, Kovac granted his permission and appointed John

Chapman, another employee of the Employee Relations Department,

to assist Brusco.

Sometime between February and April 1992, Chapman and

Brusco reviewed the list of Department of Development employees

in accordance with Fusaro's request. As they did so, Brusco

identified certain names as pro-Foerster or anti-Foerster.

Azzaro alleges that the list of anti-Foerster names was a "hit

list" and that she was a target. Indeed, Chapman testified that

he had heard Fusaro say on more than one occasion that Brimmeier

supporters would be "retaliated against." App. 273. When

Chapman and Brusco reached Azzaro's name, according to Chapman,

Brusco said, "We're going to get this bitch." App. 279.

Meanwhile, in March 1992, George Braun replaced Hohman

as Director of the Department of Development. Braun caused the

Department of Development to enter into an agreement with the

8 federal Department of Housing and Urban Development (HUD) which

required the County department to spend less than the permitted

amount on administrative expenses for three years, to offset

excess administrative expenses incurred in prior years. Braun

pursued this agreement in response to a HUD directive requiring

the department to reduce the portion of its budget dedicated to

administrative expenses by two or three percent in order to

retain its federal funding. While this same federal directive

had been in place during Hohman's tenure as Director of the

Department of Development, Hohman had not taken steps to address

it because he believed the problem would correct itself over

time.

Braun also drafted a proposal to reorganize the

department by, among other things, merging several divisions and

eliminating the Marketing Division, in which Azzaro worked.

Under the heading "Positions to be Terminated," the proposal

specifically named Azzaro and Tom Fox, the supervisor to whom she

had first reported the harassment incident, along with two

employees whose pensions had already vested. App. 31. At the

same time, the proposal recommended hiring nine new employees and

increasing the salaries of eight others.

Braun submitted this proposal to Commissioner

Foerster's office, which approved it and passed it on to the

Salary Board. On June 18, 1992, the Salary Board approved the

proposed restructuring of the Department of Development. The

following day Braun told Azzaro that her position would be

eliminated as of August 1 due to budgetary reasons unrelated to

9 her job performance. No effort was made to find another position

for Azzaro with the County government.

In September, 1993, Azzaro filed this suit against the

County of Allegheny, Commissioner Tom Foerster, and Wayne Fusaro.

The complaint alleges retaliatory discharge against Allegheny

County in violation of 42 U.S.C. § 2000(e); asserts a claim

against all defendants under 42 U.S.C. § 1983 for infringement of

Azzaro's First Amendment rights; and alleges violations of the

Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 955(a),

(d) & (e), against Allegheny County. Defendants filed a joint

motion for summary judgment which the district court granted,

deciding the two federal claims on the merits and declining to

exercise supplemental jurisdiction over plaintiff's state-law

claims. We exercise plenary review over the district court's

decision to grant summary judgment. Commercial Union Ins. Co. v.

Bituminous Cas. Corp., 851 F.2d 98, 100 (3d Cir. 1988).

10 II.

Azzaro alleges that the County violated Title VII by

discharging her in retaliation for her reports of sexual

harassment. To establish a prima facie case of retaliatory

firing in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000(e), a plaintiff must establish that (1) she

engaged in a protected activity; (2) she was discharged after or

contemporaneously with that activity; and (3) there was a causal

link between the protected activity and the firing. Quiroga v.

Hasbro, Inc., 934 F.2d 497, 501 (3d Cir. 1991). In this case,

the district court concluded that Azzaro had failed to bring

forward any competent evidence of a causal connection between her

allegations of sexual harassment and her discharge, and therefore

granted summary judgment in favor of defendants. Azzaro v.

County of Allegheny et al., No. 93-1589, slip op. at 19 (W.D. Pa.

Mar. 31, 1995). Specifically, the court found "no competent

evidence that those persons involved in the decision to

reorganize the [Department of Development] were aware of the

alleged sexual harassment prior to the approval of the

reorganization." Id. We disagree. While it is true that Foerster, Kramer,

and Braun have denied having knowledge of the alleged sexual

harassment prior to the termination, and while there is no

evidence that the members of the Salary Board other than Foerster

had such knowledge at the time of the Board's action, the

district court's conclusion overlooks a great deal of direct and

circumstantial evidence favoring Azzaro's position. That

11 evidence would support an inference that Foerster, Kramer,

Fusaro, and Braun, with knowledge of the harassment incident and

of Azzaro's reports, agreed to "get" her, and that they included

a minor provision in the reorganization to accomplish this

objective covertly, securing the routine approval of an

unsuspecting Salary Board which cared about nothing more than

that Foerster had approved the reorganization and that it would

save the County money.

First, Azzaro produced evidence showing that Hohman

stated at a meeting with Foerster, Fusaro, and Kramer that Fusaro

sexually harassed a Department of Development employee who had

come to see him in connection with summer jobs for her daughters.

As both Fusaro and Kramer had been informed of the incident with

Azzaro's husband and had been involved in resolving the dispute,

Hohman's statement is sufficient to support a finding that Fusaro

and Kramer knew of Azzaro's allegations. Moreover, since Fusaro

and Kramer were close personal advisors of Foerster and since

Foerster was present at the meeting with Hohman, a reasonable

jury could find that it is more probable than not that Foerster,

too, knew, as of the day of the meeting or shortly thereafter,

that Azzaro was the employee in question.

There is further evidence that Fusaro, with the

authorization of Foerster, thereafter caused a "hit list" to be

prepared and Azzaro's name to be included on that list. There is

no evidence suggesting any reason for Azzaro's inclusion other

than her reporting the sexual harassment allegation to Fox and

12 Sirabella.2 Other evidence indicated that Braun, a new member of

the Foerster team, conferred frequently with Fusaro and Kramer

during the period in which the "hit list" and the

"reorganization" were being prepared. Even if he did not himself

know of Azzaro’s allegations against Fusaro, a reasonable juror

could infer that Braun knew Azzaro was for some reason on a “hit

list,” and that he sought to aid the efforts to “get” Azzaro by

including her discharge as part of his reorganization plan.

It is true, as defendants point out, that these

individuals could not implement the reorganization plan

themselves. To discharge Azzaro in this manner, it was necessary

to obtain the approval of the Salary Board. While there is no

evidence that a majority of the Board’s voting members had actual

knowledge of Azzaro’s reports when they approved the

reorganization, this does not preclude Azzaro from recovering on

her Title VII retaliation claim. See generally Bartholomew v.

Fischl, 782 F.2d 1148, 1153 (3d Cir. 1986) (holding that

plaintiff may state claim of constitutional deprivation against

city by alleging that mayor, who was powerless to discharge

plaintiff, persuaded city council to eliminate plaintiff’s

position). To hold otherwise would be to grant public officials

carte blanche to retaliate against employees as long as the

retaliation is formally effectuated by the “rubber stamp”

2. In particular, there is no evidence in the record that Azzaro was placed on the list because she was, or was perceived to be, a supporter of Joe Brimmeier and therefore disloyal to Foerster. See supra note 1.

13 approval of another public agent. Title VII’s prohibitions

cannot be so easily evaded.

There is evidence from which a reasonable juror could

conclude that it is a routine matter for the Salary Board to

approve, with little or no discussion, proposals which purport to

save the County money. During his deposition, Commissioner

Foerster gave the following testimony concerning the Salary Board

proceedings: Q. Who sits on the Salary Board?

A. Three Commissioners and the Controller.

Q. From looking at that document, do you have any way of telling what the vote was to approve Braun's request?

A. I would have to check the minutes to make sure that it was approved. I would have no reason to vote against it, because I note the annual net savings of the Salary Board was $39,000.

Q. At the time the request for Salary Board action was presented, was there a discussion among the Commissioners and the Controller concerning the request, that you recall?

A. No, I do not. * * * * Q. At the Salary Board meeting itself, are there typically discussions within that Salary Board meeting about the pros and cons of the proposals that come to the Salary Board or are they just routinely approved?

A. If there is any questions [sic] by the Salary Board, they're asked at the Salary Board meeting. Otherwise they're routinely approved. Especially those requests for Salary Boards that indicate a savings of money.

App. 300-01.

14 Also significant in the context of the causation issue

is the apparent fact that no one else in the recent history of

the County had been terminated in the way Azzaro was discharged.

Although the County had frequently eliminated vacant positions

in the past, only once in the preceding fourteen years had it

eliminated positions occupied by an incumbent -- and those jobs,

unlike Azzaro's, had been designated from the outset as temporary

positions. Moreover, the Department of Employee Relations had,

as its director testified, "made every attempt to place" the

displaced employees in new positions for the County. App. 407.

In Azzaro's case, by contrast, no attempt was made to retain her

as a County employee, notwithstanding the fact that there were

hundreds of unfilled County positions available at the time of

her discharge.

Additionally, Azzaro tendered evidence from which it

could be inferred that the reason given by Braun for her

discharge was pretextual and, accordingly, that the

reorganization plan was simply a cover for an illicit motive.

There is substantial evidence in the record indicating that,

contrary to the County’s contention, budgetary constraints did

not compel Azzaro’s discharge. That evidence indicated that the

administrative cost overrun could have been corrected by

attrition, without layoffs; that the reorganization plan which

resulted in Azzaro's termination also recommended nine new hires

and eight salary increases; that drastic measures were not

necessary because the Department had four years to solve the

15 budget problem; and that the problem was ultimately fully

addressed by the end of 1992, two years earlier than was

required. Based on all of the evidence, we believe a jury could

reasonably find that Azzaro’s termination was not necessary to

bring the County into compliance with the HUD directive.

We thus conclude that granting summary judgment for the

County on Azzaro's Title VII claim was inappropriate.

III.

In addition to her retaliatory discharge claim against

her employer under Title VII, Azzaro asserts a retaliatory

discharge claim against all of the defendants under § 1983.

Specifically, she alleges that the defendants, acting under color

of state law, violated her rights under the First Amendment by

discharging her in retaliation for her reports to Fox and

Sirabella. We conclude that summary judgment was erroneously

granted on this claim as well.

We must first inquire whether Azzaro's reports to Fox

and Sirabella were protected by the First Amendment. This is a

question of law. See Watters v. City of Philadelphia, 55 F.3d

886, 892 (3d Cir. 1995). We must then determine whether the

record reflects a material dispute of fact on two factual issues:

whether those reports were a motivating factor in the decision

to discharge Azzaro and whether Azzaro would have been discharged

for other reasons even in the absence of those reports. See id.

A.

16 Our analysis for determining whether Azzaro’s sexual

harassment reports were protected by the First Amendment is

dictated by Connick v. Myers, 461 U.S. 138 (1983). There the

Supreme Court held that the expressive rights of public employees

are more restricted than those of public citizens who are not in

an employment relationship with the government. Therefore, a

discharged public employee cannot receive redress in a § 1983

action simply by showing that the same speech would be protected

from government sanction were it to be engaged in by a non-

employee citizen.

The facts of Connick can be succinctly stated. Myers,

an Assistant District Attorney, was very unhappy about the

District Attorney's decision to transfer her to a different

division of the criminal court. In the course of her discussion

with her superior about the impending transfer, she complained

about other conditions in the office. When he responded that he

did not think her grievances were shared by others, Myers decided

to draft and circulate a questionnaire among her peers. The

questionnaire inquired of the respondents, inter alia, what they

thought of the trustworthiness of named superiors and the current

state of morale in the office. It also inquired about whether

they had ever been pressured to participate in political

campaigns. Myers was then discharged for her distribution of the

questionnaire, which she claimed violated her First Amendment

right to free speech.

The Connick Court began its analysis of Myers’ claim with an historical note:

17 For most of this century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment -- including those which restricted the exercise of constitutional rights. The classic formulation of this position was that of Justice Holmes, who, when sitting on the Supreme Judicial Court of Massachusetts, observed: "[A policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892).

Connick, 461 U.S. at 143-44. The Court hastened to add, however,

that subsequent cases had accorded public employees some

protection against adverse employment actions based on expressive

activity. Relying primarily on Pickering v. Board of Educ., 391

U.S. 563 (1968), and its progeny, the Court held that a public

employee’s expressive conduct is constitutionally protected only

when two conditions are satisfied. First, the employee’s conduct

must address a "matter of public concern," which is to be

determined by the “content, form, and context of a given

statement, as revealed by the whole record.” Connick, 461 U.S.

at 147-48. Second, the value of that expression must outweigh

"the government's interest in the effective and efficient

fulfillment of its responsibilities to the public." Id. at 150. A discharged public employee is entitled to no redress if her

expression is not related to a matter of public concern or, even

if it is so related, if its value is outweighed by the value of

permitting the government to take action promoting efficiency and

effectiveness.

18 Applying this analysis to the facts before it, the

Court found that most of Myers’ speech was unprotected. Her

questions about the trustworthiness of the supervising attorneys

and the morale in the District Attorney's office were not related

to matters of public concern, and, therefore, were not protected

by the First Amendment. In the context of a disgruntled employee

who was only seeking "to gather ammunition for another round of

controversy with her superiors," id. at 148, Myers' questions

about trustworthiness and morale were not communications in which

the community would have a significant interest. By contrast,

however, her suggestion that there might be pressure from

superiors in the office to participate in political campaigns was

found to be a matter of public concern.

After Connick, then, the expressive rights of public

employees are not as expansive as those of citizens outside the

public work force. “[T]he government’s role as employer . . .

gives it a freer hand in regulating the speech of its employees

than it has in regulating the speech of the public at large . . .

.” Waters v. Churchill, 511 U.S. 661, ___, 114 S. Ct. 1878, 1886

(1994) (plurality opinion). Only a subset of speech that is

protected for citizens is also protected for public employees:

i.e. public concern speech.3

3. This is what the Court meant when it observed in Connick that a public employee's speech, even if not touching upon a matter of public concern, may be entitled to some protection under the First Amendment. 461 U.S. at 147. Speech unrelated to a matter of public concern is not, like obscenity, entirely outside the protection of the First Amendment. While the government as employer may discharge a public employee for such speech, the government as sovereign may not sanction the same individual when

19 To understand what is meant by “public concern” speech,

it is crucial to understand the Court’s justification for

distinguishing between speech relating to matters of public

concern and speech not relating to such matters. As the Court

explained it: The First Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484 (1957); New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964). "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the "'highest rung of the heirarchy [sic] of First Amendment values,'" and is entitled to special protection.

Connick, 461 U.S. at 145. It is the value of exchanges of

information and ideas relevant to self-governance that entitles

public concern speech to "special protection.”

It was for this reason that the Court, in delineating

the expressive rights of public employees, chose to draw the line

at speech related to matters of public concern. Silencing a

public employee seeking to speak on a matter of public concern

deprives a self-governing society of information that may be

vital to informed decision-making. See Pickering, 391 U.S. at 571-72 (depriving community of teachers’ opinions on how school

funds should be allotted seriously hinders free and open debate

and is inconsistent with intent of First Amendment); Watters, 55 (..continued) she engages in such speech as a citizen, outside the employment context.

20 F.3d at 886 (finding former police department employee’s

statements about employee assistance program to be public concern

speech, because public had significant interest in learning about

problems which might impair effective operation of program).

This can be a particularly serious loss because public employees,

by virtue of their constant interactions with a public office,

are often in the best position to know what ails that office.

See Board of County Comm'rs v. Umbehr, __ U.S. __, 116 S. Ct.

2342, 2347 (1996).

Given that the basis for the special protection

accorded public concern speech is its instrumental value to the

community in enabling self-governance, a court asked whether a

public employee’s speech relates to a matter of public concern

must determine whether expression of the kind at issue is of

value to the process of self-governance. This task does not, of

course, involve the court’s passing judgment on the merit of the

view expressed or its source. Rather, the issue is whether it is

important to the process of self-governance that communications

on this topic, in this form and in this context, take place.

This point is well illustrated by the Supreme Court’s

subsequent decision in Rankin v. McPherson, 483 U.S. 378 (1987).

There, a clerical employee of a constable’s office, after

hearing a news report of an attempt to assassinate the President,

said to a co-worker in what she thought to be a private

conversation, "'If they go for him again, I hope they get him.'"

Id. at 380. This remark was reported to her supervisor and she

was discharged. While acknowledging that the employee’s opinion

21 might understandably be regarded by some as ill-considered, the

Court concluded that her statement could nevertheless be "'fairly

characterized as constituting speech on a matter of public

concern.'" Id. at 384 (quoting Connick, 461 U.S. at 146). As

the Court explained: Considering the statement in context, as Connick requires, discloses that it plainly dealt with a matter of public concern. The statement was made in the course of a conversation addressing the policies of the President’s administration. It came on the heels of a news bulletin regarding what is certainly a matter of heightened public attention: an attempt on the life of the President. . . . The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern. "[D]ebate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); see also Bond v. Floyd, 385 U.S. 116, 136 (1966): "Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected."

Id. at 386-87 (footnote omitted.)

Connick teaches a number of other lessons that are useful when applying its holding to new situations. First,

Connick expressly recognizes that the community's interest in the

free exchange of information and ideas relating to matters of

public concern is not limited to public declarations. That

interest is implicated in private exchanges between two

individuals as well as in exchanges between an individual and

22 members of the public. Private dissemination of information and

ideas can be as important to effective self-governance as public

speeches. Thus, if the content and circumstances of a private

communication are such that the message conveyed would be

relevant to the process of self-governance if disseminated to the

community, that communication is public concern speech even

though it occurred in a private context. Connick, 461 U.S. at

146, 148; see also Givhan v. Western Line Consol. Sch. Dist., 439

U.S. 410, 415-16 (1979) ("Neither the [First] Amendment itself

nor our decisions indicate that [the] freedom [of speech] is lost

to the public employee who arranges to communicate privately with

his employer rather than to spread his views before the

public.").

Second, Connick contains helpful lessons concerning the

kinds of subject matter that are likely to be of public concern.

Racial discrimination in the assignment of school personnel,

the subject matter of the private communication in Givhan, 439

U.S. at 410, was characterized by the Connick Court as "a matter

inherently of public concern." 461 U.S. at 148 n.8. The Court

also suggested that a communication would be of public concern,

barring a form or context that detracted from its value to the

process of self-governance, if it (1) indicated "that the

District Attorney's office was not discharging its governmental

responsibilities in the investigation and prosecution of criminal

cases," or (2) brought "to light actual or potential wrongdoing

or breach of public trust on the part of [the District Attorney]

and others" that would be relevant in evaluating the performance

23 of a public office or official. Id. at 148; see also Swineford

v. Snyder County Pennsylvania, 15 F.3d 1258, 1271 (3d Cir. 1994)

(allegation of malfeasance by election officials is speech

"fall[ing] squarely within the core public speech delineated in

Connick").

Finally, Connick indicates that the speaker's motive,

while often a relevant part of the context of the speech, is not

dispositive in determining whether a particular statement relates

to a matter of public concern. Myers' motive for devising and

distributing her questionnaire was to defeat the proposed

transfer. Despite this same motive underlying all of her

questions, the Court found that some of them related to matters

of public concern and some did not. If motive were dispositive,

the inquiry could only have resulted in finding either that all

of Myers' speech was public concern speech or that none of it

was. See also Rode v. Dellarciprete, 845 F.2d 1195, 1201 (3d

Cir. 1988) (explaining that "motivation [is] merely one factor to

be considered, [and] not necessarily controlling, in assessing

the character of the employee's speech").

With this background, we now turn to an application of

the governing law to the facts of this case. The subject matter

of Azzaro's reports to Fox and Sirabella was an incident of

sexual harassment by an assistant to the Commissioner which

occurred in the Commissioner's office during the course of an

appointment Azzaro had made, in her capacity as the spouse of an

employee, to plead for her husband's job. The harassment was a

form of gender discrimination since Fusaro presumably would not

24 have behaved in the same manner toward a supplicant male spouse

of a female employee. We believe this form of discrimination,

when practiced by those exercising authority in the name of a

public official, is as much a matter of public concern as racial

discrimination practiced under similar circumstances. We also

believe that Azzaro's communications to Fox and Sirabella brought

to light actual wrongdoing on the part of one exercising public

authority that would be relevant to the electorate’s evaluation

of the performance of the office of an elected official.4 For

these reasons, we conclude Azzaro's communications should be

regarded as a matter of public concern unless something in their

form or context deprived them of their value to the process of

self-governance.

Turning to form and context, we find nothing that

detracts significantly from the value of these communications to

the process of self-governance. Based on her deposition, it is

fair to say that Azzaro complained reluctantly, that her interest

in each instance was in saving her job and that of her husband, and that she might have been content if the only relief she had

received was protection from discharge. But this, in our

judgment, would not cause a citizen engaged in an evaluation of

the Commissioner's office to disregard or discount her complaint.

4. We are thus not here presented with a situation in which a public employee has filed a complaint about an isolated incident of what he or she perceived to be inappropriate conduct on the part of a non-supervisory co-worker. While we express no opinion on such a situation, it would presumably be less important to an evaluation of the performance of the public office involved than the situation now before us.

25 Assessing content, form, and context, including Azzaro's

motivation, we conclude that Azzaro's reports to Fox and

Sirabella were matters of public concern.

In reaching this conclusion, we have considered several

distinctions that other courts of appeals have found to be

controlling on the issue of whether a public employee's speech is

speech of public concern. Although in each instance we find

relevance in the factor relied upon by our sister courts, we

respectfully decline to give those factors controlling

significance.

A distinction has been suggested between speech uttered

by a public employee "as an employee" and speech uttered by a

public employee "as a citizen."5 See, e.g., David v. City and

County of Denver, 101 F.3d 1344, 1355 (10th Cir. 1996) (stating

that this distinction is "the fundamental inquiry" in deciding

whether speech involves matter of public concern). An employee

5. The apparent origin of this distinction is the following language from Connick:

We hold only that when a public employee speaks not as a citizen upon matters 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.

461 U.S. at 147. In context, however, we believe this sentence was intended to contrast "matters of public concern" with "matters only of personal interest" and not to suggest a critical distinction based on the subjective motivation of the employee. As we point out in text, the latter interpretation is inconsistent with the holding in the case.

26 speaks as an "employee," it is said, when her primary purpose is

to secure relief for herself, and as a "citizen" only when her

primary purpose is to bring about systemic reform. See id. at

1356. Under this view, if the employee's purpose was primarily

to solve her own personal problem, the fact that her statement

would be of value to the process of self-governance does not make

the speech public concern speech. See, e.g., Morgan v. Ford, 6

F.3d 750, 754 (11th Cir. 1993).

The distinction between speaking as a citizen and

speaking as an employee, then, is simply an alternative way of

describing the inquiry into the speaker's motive. While, as we

have explained, an employee's motive may be relevant to whether

speech is on a matter of public concern, giving controlling

significance to "primary purpose" is inconsistent with the result

in Connick. Myers' purpose in asking her question about pressure

to participate in political campaigns was no different than her

purpose in asking her questions on the same questionnaire about

office morale and the general reputation of the office

supervisors for trustworthiness. Her purpose with respect to

each of these questions was clearly "to gather ammunition for

another round of controversy with her superiors." 461 U.S. at

148. Nevertheless, the question regarding pressure to campaign

was speech about a matter of public concern because, even taking

into account its form and context, it was important to a self-

governing society that public employees be free to express

themselves about it. As the Court explained: [T]here is a demonstrated interest in this country that government service should depend upon

27 meritorious performance rather than political service. Given this history, we believe it apparent that the issue of whether assistant district attorneys are pressured to work in political campaigns is a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal.

Id. at 149 (emphasis added) (citations omitted).

A related distinction has been suggested between

situations in which the employee is seeking to bring information

to the attention of the public and those in which the employee

did not want her speech to be publicly circulated. Under this

view, "oral statements [about sexual harassment] intended to be

confidential" and to lead to the internal resolution of a problem

without "public controversy" are not speech on a matter of public

concern even though "incidences of sexual harassment in a public

[institution] are inherently matters of public concern . . . ."

Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir. 1987). Here

again, although we think a request for confidentiality may be

relevant to the public concern issue, we conclude that it would

be inconsistent with Connick and Givhan to give it controlling

A final, closely related distinction suggests that a

grievance about sexual harassment is only a matter of public

concern if it includes indications that there is a systemic

problem interfering with the public agency's performance of its

governmental functions, and not if the complaints relate solely

to the employee's own situation. See David, 101 F.3d at 1356; Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d Cir.

28 1993). In rejecting this notion, we do not suggest that all

public employee complaints about sexual harassment are matters of

public concern. We do believe, however, that under all of the

surrounding circumstances, Azzaro's reports address a matter of

public concern even though they referred to a single incident.

B.

The next step in our analysis is to conduct the

balancing of interests required by Pickering and Connick. On one

side we weigh the public employee’s interest in speaking about a

matter of public concern and the value to the community of her

being free to speak on such matters. See Green v. Philadelphia

Housing Auth., 105 F.3d 882, 885 (3d Cir. 1997); Watters, 55 F.3d

at 895; Versarge v. Township of Clinton New Jersey, 984 F.2d

1359, 1366 (3d Cir. 1993). Balanced against these interests is

the government's interest as an employer in promoting the

efficiency of the services it performs through its employees.

Watters, 55 F.3d at 895. Only if the value of the speech, as

measured by the employee’s and the public’s interests, is

outweighed by the government’s interest in effective and

efficient provision of services, will we hold that the speech is

unprotected.

Striking the appropriate balance in this case is not

difficult. It is true that Azzaro's revelations were apparently

not about systemic gender discrimination, as were Ms. Givhan's

complaints about racial discrimination. Nevertheless, as we have

explained, there is a substantial public interest in Azzaro’s

29 revelations because they were relevant to an evaluation of the

performance of the office of an elected official. We conclude

that this public interest is clearly sufficient to outweigh any

legitimate countervailing governmental interest that might have

been implicated here, if any such interest there be.

Indeed, those governmental interests are negligible

here. We fail to see how Azzaro's reports to Fox and Sirabella

could have posed any threats to the government's interest in

efficiency or effectiveness. She and Fusaro did not work in the

same office, much less have an employment relationship requiring

trust and confidence. By adopting a policy against sexual

harassment and a process for reporting and dealing with it,

Allegheny County had affirmatively recognized that complaints

about sexual harassment were important to its ability to serve

the public effectively and efficiently. This seems to us an

acknowledgement on the part of Azzaro's employer that

communications in the manner and place of hers do not pose an

undue threat of disruption.6

It follows that the Pickering balance falls in Azzaro's

favor.

C.

6. While Ms. Azzaro was harassed in her capacity as the spouse of an employee rather than in her capacity as an employee, her complaining to her supervisor and then to the Director of Administration in accordance with her employer's policy for handling employee complaints would not appear to have any greater propensity for disruption.

30 We conclude that Azzaro’s speech is protected as a

matter of law. Her reports of sexual harassment are related to a

matter of public concern; and her interest in making such

reports, combined with the value to the community of her being

free to do so, outweighs the County’s interest in preventing her

from reporting such incidents. Therefore, Azzaro could not be

discharged on the basis of this speech. See Swineford, 15 F.3d

at 1270.

Based on the evidence we have reviewed in the context

of Azzaro's Title VII claim, we also conclude that there is a

material dispute of fact as to whether her reports were a

motivating factor in the discharge decision. Finally, we

determine that the district court's summary judgment in favor of

the defendants cannot be sustained on the ground that

uncontroverted evidence establishes that Azzaro's termination

would have occurred in any event for reasons other than those

reports. A trier of fact could conclude from this record that

Azzaro would not have been discharged in the absence of her

reports of sexual harassment. Accordingly, we hold that summary

judgment in favor of the defendants on the § 1983 claim was

erroneously entered.

IV.

In light of our ruling on Azzaro’s Title VII and § 1983

claims, we will also reverse the district court’s dismissal of

her Pennsylvania Human Relations Act claim. The district court

31 should exercise supplemental jurisdiction over this claim. See

28 U.S.C. § 1367(a).

For the foregoing reasons, we will reverse the district

court’s order granting summary judgment to the defendants and

will remand for further proceedings consistent with this opinion.

32 Beverly A. Azzaro v. County of Allegheny; Tom Foerster, an

individual and Chairman, Allegheny County Commissioners and Wayne

Fusaro, No. 95-3253

BECKER, J., concurring.

I join in the majority’s opinion with the understanding

that, under its rendering of Connick v. Myers, 461 U.S. 138

(1983), in part III, it has not created anything close to a per

se rule under which reports of sexual harassment will always

constitute public concern speech. It seems to me that there will

be many complaints of sexual harassment, about more aggravated

conduct than that described in footnote 4 of the opinion, which

will not qualify as matters of public concern and with respect to

which summary judgment for the defendant will be appropriate.

This will include cases where the offender is a non-supervisory

co-worker and the incident is more than “isolated,” though

neither egregious nor repeated with great frequency; where the

incident is not known to the “powers that be”; where, even if a

supervisor is involved, the incident is minor or questionable;

where the motive or credibility of the complainant is

significantly in doubt; or where a combination of these factors

is at work. Under the majority’s approach, the opposite result

might attain, incorrectly I submit.

I am satisfied that the record in the case at bar

supports the denial of summary judgment, though not by much. I

33 note in this regard Azzaro’s delayed and offhand non-report to

Fox which became a “report” to Sirabella only in the context of

the political crossfire in which she became caught when Hohman

sought to use her report to combat his dwindling influence with

Foerster. Indeed, the record is far from clear that she was not

targeted for dismissal because of possible support for Brimmeier,

see Carver v. Foerster, 102 F.3d 96 (3d Cir. 1996), rather than

her non-complaint of sexual harassment.

Judges Scirica, Roth and Alito join in this

opinion.BEVERLY AZZARO v. COUNTY of ALLEGHENY, et al.

ROSENN, Circuit Judge, dissenting.

I join in the majority opinion except as to Part III

pertaining to the First Amendment issue. Although the evidence

is tenuous, I agree that there are sufficient facts in dispute

which, if the plaintiff's version is believed, could lead a

reasonable factfinder to conclude that Allegheny County

discharged her in retaliation for her accounts of harassment.

Summary judgment on her Title VII claim, therefore, was

inappropriate. However, I do not agree with the majority that

the evidence was sufficient to conclude that the plaintiff's

speech was a matter of public concern and therefore protected by

34 the First Amendment. Thus, I would affirm the grant of summary

judgment on her § 1983 claim.

I do not regard the First Amendment to be of lesser

importance than does the majority. I believe, however, that

Azzaro's conversation with Fox at a social party and her meeting

with Sirabella for advice or assistance in connection with the

potential termination of her position did not constitute matters

of public concern that command First Amendment protection. I

fear that the majority's expansion of protected speech for public

employees not only is contrary to the decisions of the Supreme

Court and our sister courts, but has the dangerous effect of

elevating personal and confidential conversation, which in form,

content, and context is not of public concern, to the level of

constitutionally protected speech. The consequence may seriously

impede normal discourse and create management problems in the

public workplace. I, therefore, respectfully dissent from Part

III of the majority opinion.

I.

Not all speech is protected by the First Amendment and

"the State has interests as an employer in regulating the speech

of its employees that differ significantly from those it

possesses in connection with regulation of the speech of the

citizenry in general." Pickering v. Board of Educ., 391 U.S. 563,

568 (1968). This is not to say that a public employee, like any

citizen, may not have a legitimate interest in speech on public

matters. But as Justice O'Connor recently observed in writing

35 the plurality opinion for the Supreme Court of the United States,

"even many of the most fundamental maxims of our First Amendment

jurisprudence cannot reasonably be applied to speech by

government employees." Waters v. Churchill, 511 U.S. 661, 672

(1994).

Justice O'Connor further noted that the Court has

recognized that a government employer has a certain latitude in

barring its employees from offensive utterances to the public and

in curbing speech that creates disruption, disorder, or confusion

among employees in the workplace. "Similarly, we have refrained

from intervening in government employer decisions that are based

on speech that is of entirely private concern." Id. at 674. See

also Connick v. Myers, 461 U.S. 138, 146-49 (1983). And the

presence of sexual content is not sufficient in itself to make

private speech a matter of public concern.

In Pickering, the Supreme Court set forth a framework

for analyzing a claim of a First Amendment violation brought by a

public employee disciplined because of speech. The Court

declared that employees had a First Amendment right to speak on

issues of public concern. There, a teacher wrote a letter to a

local newspaper in connection with a proposed tax increase by the

school board in which he criticized past proposals to raise new

revenue for the schools. He also criticized the priority of

school sports, the neglect of the deteriorating physical

condition of school buildings, and the insufficient appropriation

for teachers' salaries. Whether a school system requires

additional funds and their alleged profligate use is a matter of

36 legitimate concern for the community as a whole and "[o]n such a

question free and open debate is vital to informed decision-

making by the electorate. . . . Accordingly, it is essential

that [teachers] be able to speak out freely on such questions

without fear of retaliatory dismissal." Pickering, 391 U.S. at

571-72.

II.

In explicating its earlier decision in Pickering and

analyzing the specific problem then before it, the Court in

Connick again considered the First Amendment right of an employee

to freedom of speech and the State's interest as an employer "in

promoting the efficiency of the public services it performs

through its employees." Pickering, 391 U.S. at 568. In

returning to the public employee-employer balancing problem

raised earlier in Pickering, the Court recognized the First

Amendment rights of public employees but at the same time

demonstrated its concern for the public employer's responsibility

to manage efficiently its operations and fulfill its public

obligations. The Court noted that the reiteration in Pickering's

progeny of the right of a public employee to comment "as a

citizen" upon matters of public concern at the same time reflects

"the common-sense realization that government offices could not

function if every employment decision became a constitutional

matter." Connick, 461 U.S. at 143 (footnote omitted).

37 Therefore, the Connick Court in determining that most

of Myers' questionnaire could not be fairly characterized as

constituting speech on a matter of public concern stated: 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.

Id. at 146.

This court also has previously noted that speech is a

matter of public concern when it fairly can be considered as

relating to any matter of political, social or other concern to

the community. Swineford v. Snyder County, 15 F.3d 1258, 1270-71

(3d Cir. 1994); Holder v. City of Allentown, 987 F.2d 188, 195

(3d Cir. 1993). In some situations, speech pertaining to sexual

harassment may be a matter of community concern and thus

implicate the First Amendment. In other situations, it may be

simply a matter of private concern. See David v. City & County of

Denver, 101 F.3d 1344, 1357 (10th Cir. 1996).

This case bears a similarity to Saulpaugh v. Monroe Community Hosp., 4 F.3d 134 (2d Cir. 1993). There, a public

hospital employee sued her employer under Title VII and alleged a

First Amendment claim under § 1983, as well as state law claims.

The plaintiff testified that immediately after she was hired her

supervisor sexually harassed her, including making threats of

discharge, and ultimately terminated her for resisting his

proposals. The district court found the employer liable under

38 Title VII based on sexual harassment and retaliatory discharge

but dismissed the First Amendment claim because plaintiff's

complaints were personal in nature and generally did not

implicate matters of public concern. They did not involve a

debate on issues of sex discrimination, and her suit did not seek

"`relief against pervasive or systemic misconduct by a public

agency or public officials,'" nor was her suit "`part of an

overall effort . . . to correct allegedly unlawful practices or

bring them to public attention.'" Id. at 143 (quoting Yatvin v.

Madison Metro. Sch. Dist., 840 F.2d 412, 420 (7th Cir. 1988)).

The majority concludes that Azzaro's conversations with

Fox and Sirabella constituted protected speech under the First

Amendment. I believe that a careful analysis of the form,

content and context of these two conversations concerning a

single incident will show that these conversations did not

involve matters of public concern. In fact, the entire record

shows a pervasive desire by Azzaro not to "go public," and

although she claims she initially discussed the incident at times

with her friends, it was always with an attitude of entre nous.

The form of her communications with both Fox and Sirabella were

not in the nature of complaints or formal reports, either oral or

written.

The context of Azzaro's communications with her

supervisor, Tom Fox, was at a private party at the home of a

friend who was not a county employee. As to the content, they

were discussing the Anita Hill hearings, and Azzaro told of her

alleged incident with Fusaro to defend her position with respect

39 to Hill. The time was four months after the alleged Fusaro

incident. The timing, the social setting, the content, and the

context of this conversation were unequivocally personal and

social. Moreover, when Fox attempted to convince Azzaro to take

the matter up with her supervisor, she refused. Concerned with

the potential danger to her job, she continued to refuse until

Fox, against her wishes, reported the incident.

As for her conversation with Sal Sirabella, the

Director of Administration, Azzaro acknowledges that this

conversation also was of a personal nature. She did not

communicate with Sirabella to complain or officially report the

alleged harassment. Rather, she approached him several months

after the alleged incident to seek personal advice on how to

avoid losing her job.

In neither Azzaro's conversation with Fox or with

Sirabella was there any debate or even implication concerning

sexual policies or practices in the Allegheny County Department

of Development where she was employed. She did not complain of

any personal or systemic misconduct by her department or

officials in her department. Although the majority describes her

conversations with Fox and Sirabella as "reports," she made no

complaints whatsoever to Fox or even Sirabella, either written or

oral, nor did she submit any formal written statement to Fox or

any other supervisor in her department.

In context, it is apparent that Azzaro's statements

were only tangentially about her alleged experience with Fusaro,

and in no way focused on harassment as a matter of public

40 concern. Uppermost in her mind was her concern for her job. Her

speech utterly lacked political content, the protection of which

was foremost in the minds of the framers of the First Amendment,

or any element of social advocacy. The First Amendment was

designed by its framers "`to assure unfettered interchange of

ideas for the bringing about of political and social changes

desired by the people.'" Connick, 461 U.S. at 145 (quoting Roth

v. United States, 354 U.S. 476, 484 (1957)).

Azzaro's speech added nothing to improve the

administration of the government of Allegheny County. Her speech

made no effort to improve working conditions for her fellow

employees, nor did it attempt to evaluate the performance of her

department or the county. The Court in Connick rejected most of

Myer's questionnaire as not being an expression of public import

in evaluating her employer's performance as an elected

prosecutor, noting: Myers did not seek to inform the public that the District Attorney's Office was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases. Nor did Myers seek to bring to light actual or potential wrongdoing or breach of public trust on the part of Connick and others. . . . While discipline and morale in the workplace are related to an agency's efficient performance of its duties, the focus of Myer's questions is not to evaluate the performance of the office but to gather ammunition for another round of controversy with her superiors.

41 Id. at 148. The purpose of Azzaro's speech, her general conduct

with her employer, and her legal action concerned only herself

and keeping, as she testified, her job. She had no intention to

make her communications with Fox or Sirabella public. Even if

they had been released to the public, they would have revealed

only an alleged single incident on the part of a single co-worker

to sexually harass her.

The content of Azzaro's conversations with Fox and

Sirabella made no effort to personally complain or publicly

expose wrongful practices and objectionable policies on the part

of her department or county officials. For over a year after the

incident, she intermittently talked to her friends about the

alleged Fusaro incident but deliberately avoided going public.

She testified that she spoke to her personal friends: I told it just to get it out. I mean I was carrying it around all the time, and it was like a release when I told someone.

Azzaro Dep. at 114. However, she had no intention of publicizing

the harassment, nor of warning other women of the danger of

harassment. In fact, when one friend recommended that Azzaro

file a complaint with the EEOC, she refused. Azzaro Dep. at 113.

In content, in form and in context, the two conversations

pertained to a private matter.

As in Callaway v. Hafeman, 832 F.2d 414 (7th Cir.

1987), the plaintiff's conversations were limited to "oral

statements intended to be purely confidential," and were not for

public information or debate. Id. at 417. She was not

attempting to speak out as a citizen concerned with conditions or

42 problems confronting Allegheny County; "instead, she spoke as an

employee attempting to resolve her private dilemma," id., even

when she spoke to Sirabella and when she conversed with her

friends.

In applying the law to the facts of this case, the

majority asserts that the alleged Fusaro incident was a form of

"gender discrimination" which "when practiced by those exercising

authority in the name of a public official, is as much a matter

of public concern as racial discrimination practiced under

similar circumstances." Maj. op. at 27. But the issue before us

is neither Fusaro's alleged behavior nor any gender

discrimination by the County. The issue is whether, in addition

to her Title VII claim for a retaliatory discharge, Azzaro has a

First Amendment claim against the County based on her

conversations with Fox and Sirabella.

Proceeding with its analysis, the majority

speculatively infers that: Azzaro's communications to Fox and Sirabella brought to light actual wrongdoing on the part of one exercising public authority that would be relevant to the electorate's evaluation of the performance of the office of an elected official.

Maj. op. at 27. However, Azzaro's conversations with Fox and

Sirabella were intended for their ears only, and not the

electorate. The record is also silent with respect to any

knowledge on the part of the public of these conversations until,

presumably, this lawsuit was filed. Additionally, there is no

basis whatsoever for the majority's highly speculative conclusion

43 that these two confidential conversations pertaining to Fusaro

would be relevant to the electorate's evaluation of the

performance of Commissioner Foerster's office.

Recognizing the private nature of Azzaro's

conversations, the majority cites Givhan v. Western Line Consol.

Sch. Dist., 439 U.S. 410 (1979), and Connick, 461 U.S. at 146,

148, for the proposition that if the content of a private

communication would be relevant to the process of self-governance

if disseminated to the community, the communication is

nonetheless public concern speech even though it occurred in a

private context. Maj. op. at 25. This is correct if the content

and circumstances involve a matter of public concern. However,

private communication rather than public may be a factor for

consideration in determining whether the content of the

conversation is of public concern. Here, not only were the

communications private and confidential, but the content

personal. Moreover, as previously stated above, Azzaro made it

clear that the conversations were not intended for public

dissemination or for action by her employer. Therefore, they

could have no relevance to any community evaluation of county

government and their content could not be a matter of public

concern because they related only to a single incident of

personal behavior of a single fellow employee, not to the

performance of any elected official.

In Givhan, the school district dismissed the plaintiff, a black junior high school English teacher, who sought

reinstatement on the ground, inter alia, that her dismissal

44 infringed her right of free speech under the First and Fourteenth

Amendments. The district court found that the primary reason for

her dismissal "was her criticism of the policies and practices of

the school district, especially the school to which she was

assigned to teach." Id. at 413. Neither the Supreme Court nor

the district court had difficulty in concluding that the content

of the speech by Givhan focused on "the policies and practices of

the school district." Azzaro's conversations only described

Fusaro's conduct -- a single incident -- and had no reference

whatsoever to policies, practices, or any wrongdoing of Allegheny

County or its agencies. The content in Givhan indisputably was

of public concern; Azzaro's content was not.

Givhan's communications to her superior, though private

in nature, in no way limited their dissemination to the public.

Azzaro did; she insisted on confidentiality. As the court

recently iterated in Waters, 511 U.S. at 674, "we have refrained

from intervening in government employer decisions that are based

on speech that is of entirely private concern." Azzaro's

conversations were entirely of private concern.

Thus, in David v. City & County of Denver, 101 F.3d 1344 (10th Cir. 1996), also a Title VII and § 1983 suit against

county officials charging sexual harassment and retaliatory

discharge for exercising the right of free speech, the district

court held that the plaintiff's complaints about sexual

harassment did not address matters of public concern. On appeal,

the Court of Appeals distinguished between speech pertaining to a

public agency's discharge of its governmental responsibilities

45 and speech relating to internal personnel disputes and working

conditions. It also considered the motive of the speaker to

ascertain whether the speech was calculated to redress personal

grievances, and therefore spoken as an employee, or to address a

broader public concern, and therefore spoken as a citizen.

David, 101 F.3d at 1355. The court concluded that plaintiff's

complaints to her supervisors and her letter focused "on the

conditions of her own employment" and in neither her EEOC

complaints nor her letter to the City Attorney did she allege

other employees had been subjected to harassment or that

harassment or retaliation had interfered with the department's

performance of its governmental responsibilities. Id. at 1356.

Likewise, in Morgan v. Ford, 6 F.3d 750, 754 (11th Cir.

1993), the plaintiff left her job with the Georgia Department of

Corrections because her supervisor subjected her to sexual

harassment in the workplace. The Court of Appeals in this case

also affirmed the district court's grant of summary judgment for

the supervisors. Plaintiff did not relate her complaints to the

public or attempt to involve the public. Her "speech was driven

by her own entirely rational self-interest in improving the

conditions of her employment. Her complaints about Ford's

behavior, as serious as they were, centered around her private

matters. . . . As an employee grievance, Morgan's speech was not

a matter of public concern." 6 F.3d at 755.

46 I fear that the majority's extension today of the

constitutional protection of free speech goes far beyond what the

framers of the First Amendment envisioned. It will add to the

manifold complications already existing in administering all

types of government, especially sectors of government with a

large number of employees as has Allegheny County, and enlarge

needlessly its cost by the threat of mischievous litigation. We

should not become entangled in every employment dispute merely

because there are allegations of suppression of free speech.

Callaway, 832 F.2d at 416. Azzaro has not produced sufficient

evidence from which one can reasonably conclude that, in form,

content, or context, her speech was a matter of any public

concern.7 Therefore, I respectfully dissent on the First

Amendment issue.

7Because Azzaro has not shown that her conversations with Fox and Sirabella were matters of public concern, I do not deem it necessary to conduct a balancing of interests as required by Pickering and Connick, by weighing Azzaro's interest when speaking about a matter of public concern as against the government's interest in the efficient conduct of its operations and the effective services it performs.