Dorothea E. Yoggerst v. Michael Hedges and James McDonough

739 F.2d 293, 1984 U.S. App. LEXIS 20269
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 23, 1984
Docket83-2419
StatusPublished
Cited by42 cases

This text of 739 F.2d 293 (Dorothea E. Yoggerst v. Michael Hedges and James McDonough) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dorothea E. Yoggerst v. Michael Hedges and James McDonough, 739 F.2d 293, 1984 U.S. App. LEXIS 20269 (7th Cir. 1984).

Opinion

ESCHBACH, Circuit Judge.

This is the second time this case has been before us and we are again confronted with the issue whether the plaintiff, Dorothea Yoggerst, received a reprimand from her public employer in violation of the First Amendment. The district court dismissed Yoggerst’s complaint on remand from our first decision, and we affirm.

I.

A complete recitation of the facts can be found in our first decision. See Yoggerst v. Stewart, 623 F.2d 35 (7th Cir.1980) (Yoggerst I). We provide only a brief summary of the relevant facts here.

Dorothea Yoggerst was an employee of the Illinois Governor’s Office of Manpower and Human Development (“GOMAHD”). The present defendants were Yoggerst’s supervisor, Michael Hedges, and GOM-AHD’s supervisor of personnel activities, James McDonough.

On April 26 and 27, 1978, unconfirmed reports circulated that the Director of GOMAHD, L.W. Murray, had been discharged by Governor Thompson. An article to this effect appeared on April 27 in the morning edition of the Chicago Sun-Times. On the morning of April 27, Yoggerst made a telephone call to a fellow employee, Linda Coker, seeking information about a work-related matter. The first thing Yoggerst said to Coker, however, was “Did you hear the good news?” This question obviously referred to the reports of Murray’s termination. As a result of this remark, Yoggerst received an oral reprimand from Hedges, telling her that her behavior was unprofessional and had disrupted the office. Subsequently, a written memorandum of the oral reprimand was placed in Yoggerst’s personnel file by McDonough, though no copy of the memorandum was sent to the Department of Personnel (where presumably Yoggerst’s permanent personnel file was maintained). Yoggerst resigned from GOMAHD effective June 15, 1978, citing the infringement of her First Amendment rights as her reason for leaving.

Yoggerst filed § 1983 actions against four employees of GOMAHD. The district court granted summary judgment in favor of two defendants and dismissed the complaint against the other two defendants. On appeal, we affirmed the district court’s judgment with respect to two of these defendants. See Yoggerst I, supra. We reversed the district court’s judgment, however, with respect to Hedges and McDonough and remanded the case for further proceedings. Specifically, we stated:

It is possible that further evidence may demonstrate either (1) that no constitutional right has been infringed, or (2) that the speech at issue here was not protected by the First Amendment and, *295 possibly, (3) that no damage was done. But certainly we cannot say that any of these propositions is determinable at this time as a matter of summary judgment.

Yoggerst I, 623 F.2d at 41 (footnote omitted).

Following our remand, the Supreme Court decided Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). In light of that intervening decision, the district court sua sponte dismissed the complaint as to Hedges and McDonough, holding that the speech did not address a matter of public concern and was, therefore, without the protection of the First Amendment. The district court further concluded that, even assuming First Amendment coverage, the defendants had qualified immunity from civil damage suits under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Because we agree with the district court’s principal holding, we do not reach the immunity issue.

II.

Public employees do not abandon their First Amendment rights when they enter the workplace. On the other hand, public employers do not lose their ability to control behavior and speech in the workplace merely because they are governmental bodies subject to the restraints of the First Amendment. In Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Supreme Court held that a balance must be struck between the two positions. See also Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Givhan v. Western Line Consolidated School District, 439 U.S. 410, 414, 99 S.Ct. 693, 696, 58 L.Ed.2d 619 (1979); Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 284, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977); Altman v. Hurst, 734 F.2d 1240, 1244 (7th Cir.1984) (per curiam); McBee v. Jim Hogg County, 730 F.2d 1009, 1013 (5th Cir.1984).

The Supreme Court most recently addressed the First Amendment rights of public employees in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Previously, the issue presented to the Court had been the proper balance between the employee and employer’s interests; Connick presented for the first time the issue whether specific speech — there,' a questionnaire circulated among office workers — addressed a public concern. The Court described a two-step process for determining whether a public employer had violated a public employee’s right to free speech. The first step in the process requires a determination, as a matter of law, whether the speech in question addressed a matter of public concern. Id. 103 S.Ct. at 1689, 1690. See also Clark v. Holmes, 474 F.2d 928 (7th Cir.1972), cert. denied, 411 U.S. 972, 93 S.Ct. 2148, 36 L.Ed.2d 695 (1973). The Court held that this determination rests on an examination of the content, form, and context of the speech. Connick v. Myers, 103 S.Ct. at 1690. If the speech fails this test, then the plaintiff has no right to a federal judicial forum. This is not to say that the speech is totally unprotected, state law may provide some protection. See id. Only after a court determines that the speech addressed a matter of public concern does it reach the second step: application of the Pickering balancing test between the speech and the government’s interest in efficient operations. Id. at 1691-92.

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