Hesse v. Board of Education of Township High School

848 F.2d 748, 1988 WL 59012

• Court: Court of Appeals for the Seventh Circuit
• Decided: June 10, 1988
• Docket: No. 87-1522
• Status: Published

Opinions

ESCHBACH, Senior Circuit Judge.

David Hesse, plaintiff-appellee, prevailed in a jury trial on his claim filed under 42 U.S.C. § 1983 for alleged abridgments of his rights under the First and Fourteenth Amendments to the United States Constitution. The defendants in this action are the Board of Education of Township High School in Cook County, Illinois, the seven individual members of the Board, the superintendent of the Township High School District and the principal of Schaumburg High School. The plaintiff asserted jurisdiction in the district court on the basis of 28 U.S.C. §§ 1331 and 1343. We have jurisdiction to review the final judgment under 28 U.S.C. § 1291. Hesse sought both damages and equitable relief, alleging that the defendants took adverse retaliatory job action against him as a result of the exercise of his right to freedom of expression.

The appellants challenge the verdict on several grounds. They claim that: 1) the plaintiff’s statements did not involve matters of public concern because of their personal content; 2) that even if the plaintiff’s statements did involve a matter of public concern, the defendants’ interest in maintaining discipline, harmony and efficiency in the public education system outweighed the plaintiff’s interest as a citizen in making such statements; 3) that the instructions to the jury were in error; 4) that the job action taken would have occurred irrespective of the plaintiff’s expressions; 5) that certain expert testimony should not have been admitted; and 6) that the verdict was excessive in amount. Initially, we dismissed the first appeal of this case because judgment on the jury verdict for damages had left unresolved the plaintiff’s claim for equitable relief, but the district court subsequently entered equitable relief for the plaintiff. We will reverse the judgment of the district court and remand with instructions to enter judgment for all the defendants ¹ and against the plaintiff.

I

Hesse has taught at schools in the defendants’ school district since 1972, and is a tenured teacher. He teaches classes in both art and photography. Between 1972 and 1985, Hesse taught at Schaumburg High School. During the 1985-86 school year, Hesse served as a traveling teacher between Hoffman Estates High School and Palatine High School. This transfer to a traveling teacher status for one year underlies the plaintiff’s contentions that the defendants took adverse job action against him to retaliate for his expressions on matters of public concern and interest. In addition to this transfer, the plaintiff alleges that the defendants harassed him by requiring him to submit his daily lesson plans to them, forcing him to undergo more classroom evaluations than other teachers, and manipulating his 1984-85 teaching schedule to make it less desirable to him. However, the plaintiff does not complain that any of the job action taken resulted in a diminution of his salary.

As far back as 1978, Hesse’s teaching evaluations contained criticisms of his performance. They contained criticisms of his grading policies, of the lack of motivation of his students, of his inability to maintain student discipline and similar matters. For instance, we note from the record that an evaluation dated December 8, 1978 indicated that 93% of the plaintiff's students in Photography I received D’s and F’s that term. Numerous other evaluations contained negative ratings based on inadequacies in the plaintiff’s performance. Not all of Hesse’s evaluations were negative, however. Good and even excellent performance ratings were interspersed throughout the evaluations. Nevertheless, the record is clear that the negative evaluations created within Hesse a deep sense of personal animosity toward his superiors, a bitterness evidenced by his personal attacks against these various school officials in the many memoranda that he wrote to them. These memoranda were often sarcastic, unprofessional and insulting in nature. While some of them did criticize school rules or policies, most of the criticisms were not voiced out of a concern for the public. Instead, they merely defended the plaintiffs personal teaching methods.

The plaintiff’s personnel record with the school district is replete with evidence of Hesse’s personal animosity toward the school officials, and its ultimate disruption to the school environment. Aside from his many rancorous memoranda reacting to his poor evaluations, Hesse’s personnel record details several unprofessional displays of hostility. As an example, in one month the plaintiff referred an unprecedented 42 students to the administration for disciplinary action. In another incident, Hesse threw a temper tantrum in class before his students. The plaintiff’s behavior at a March 2,1984 faculty symposium held at Schaum-burg High School, a meeting all teachers were required to attend, exemplifies the plaintiff’s disruptive hostility. At the request of the guest speaker, several rows of seats in the back of the hall had been taped off in order to move the audience forward for enhanced visibility and audibility. Resentful of this procedure and apparently of the entire meeting itself, Hesse sat down in the taped area and invited other teachers to follow suit. During the speaker’s question and answer session, Hesse embarrassed the other teachers by asking the guest speaker pointed questions pertaining to Hesse’s conflicts with the school administration, but unrelated to the speaker’s topic. Following this incident, the school principal sent Hesse a memorandum reprimanding him for his behavior at the symposium. In response, Hesse sent back a sarcastic memorandum attacking the school officials, and containing insulting suggestions.

On June 1, 1984, the school board sent the plaintiff a request to undergo psychiatric examination. On the same day, the plaintiff was also given a “Notice to Remedy,” which under Illinois law is an early step in the process which may lead to the dismissal of a tenured teacher. However, the request for psychiatric examination was later withdrawn at the request of plaintiff’s counsel.

For the 1985-86 school term, the plaintiff was assigned to serve as a teacher traveling between Hoffman Estates High School and Palatine High School. While the defendants contend that this assignment was necessary because only two of Schaumburg High School’s four art teachers were qualified to teach photography, it is this assignment which the plaintiff primarily relies upon as constituting retaliatory adverse employment action taken against him by the defendants.

II

In analyzing the constitutional protection to be accorded Hesse’s speech, we must first determine whether the context, content and form of Hesse’s statements as revealed by the record as a whole indicate that they were on a matter of public concern. See Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). The district court instructed the jury that the “plaintiff’s statements on the subject of grading and student discipline policies and teacher evaluation procedures constitute speech on matters of public concern and are therefore entitled to constitutional protection.” We have considered the plaintiff’s expressions from the standpoint of their content, form and context as revealed by the entire record, and have carefully examined all of the various memoranda sent by the plaintiff to the defendants. As a matter of law, we can only conclude that but one of Hesse’s memoranda arguably related to a matter of public concern.² In the context of this case, we hold that the jury instruction constituted prejudicial error.

With the exception noted above and hereinafter described, each of Hesse’s memo-randa dealt primarily with matters of personal interest to the plaintiff. Under these circumstances, we are not at liberty to review the wisdom of the personnel decision made by the defendants in this case. As the Supreme Court stated in Conniek: “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.” Id. at 147, 103 S.Ct. at 1690. While it cannot be gainsaid that educational policies in a public school are matters of public concern, all but one of the plaintiff’s memo-randa and statements were directed to the defense of his personal teaching methods and his resentment of the evaluations and criticisms of those methods. “To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark— and certainly every criticism directed at a public official — would plant the seed of a constitutional case.” Id. at 149, 103 S.Ct. at 1691.

Even though some of Hesse’s memoran-da tangentially included general references to public education, an analysis of each memorandum clearly indicates that the memoranda themselves were not intrinsically on a matter of public concern. This Court has noted that “there is a difference between criticism directed at the institution in general and disputes with which the complainant has an intimate personal involvement.” Egger v. Phillips, 710 F.2d 292, 318 (7th Cir.1983) (en banc). The fact that a public employee’s “verbalized reason for [his lack of cooperation] was a criticism of the institution does not significantly alter the essentially private nature of the dispute.” Id. at 318. This court has recently reaffirmed its stance that even though an expression may inherently deal with a matter of public concern, the Con-nick test “ ‘requires us to look at the point of the speech in question: was it the employee’s point to bring wrongdoing to light? Or to raise other issues of public concern, because they are of public concern? Or was the point to further some purely private interest?’ ” Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir.1987) (quoting Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir.1985)). The Eleventh Circuit has also noted that “a public employee may not transform a personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions are run.” Ferrara v. Mills, 781 F.2d 1508, 1515-16 (11th Cir.1986). The text of the various memoranda makes clear that Hesse was not attempting to speak out as a citizen concerned with the problems facing the school district, but was instead attempting to articulate his own private disagreement with policies and procedures which he had either failed to apply or refused to follow.

As previously indicated, only one of the plaintiff’s memoranda was arguably directed to a matter of public concern. In the plaintiff’s memorandum of December 8, 1984, addressed to the members of the school board and officials at Schaumburg High School, the plaintiff argued that the district’s grading policy allowed students to pass regardless of whether they possessed the basic skills required of high school graduates. We consider this memorandum not only under all of the circumstances, but also in isolation. It is far less sarcastic³ and offensive than the other memoranda, and its primary objective is to criticize the overall grading policy in the school district.

Assuming that the December 8, 1984 memorandum is one dealing with a matter of public concern, we must then consider whether the interests of the plaintiff, as a citizen, in commenting upon a matter of public concern outweigh the interests of the school district and its officials in promoting the efficiency of the public educational system. Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed. 2d 811 (1968). This Court has stated the test as “whether the adverse action taken by the defendants is likely to chill the exercise of constitutionally protected speech.” McGill v. Board of Educ., 602 F.2d 774 (7th Cir.1979). In essence, we must decide whether the school board was justified in taking the alleged retaliatory action that it did against the plaintiff. In this regard, we must evaluate the need of the school district to maintain harmony and discipline among co-workers in the workplace, as well as the need to assure that the employee can competently perform his duties. See Egger v. Phillips, 710 F.2d at 318. Other things we must consider include the employer’s need for confidentiality, the need for a close working relationship between the employer and employee, id. at 319, and the context in which the dispute arose. See Connick, 461 U.S. at 153, 103 S.Ct. at 1693. See also Yoggerst v. Stewart, 623 F.2d 35, 40 (7th Cir.1980); 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).

In striking a proper balance, it is essential that we note the increasing hostility and deteriorating employment relationship which had been developing between the plaintiff and his superiors for almost five years preceding the alleged adverse job action. The plaintiff's conduct at the March 2, 1984 faculty symposium illustrates the depths to which the relationship had disintegrated, as well as the disruption to the workplace. The plaintiff not only defied the procedures and planning for the meeting, but also openly invited other teachers to join his demonstration. In the five years preceding Hesse’s transfer to traveling teacher status, the memorandum of December 8, 1984 was the only one of Hesse’s memoranda that arguably dealt with a matter of public concern. This memorandum concerned a sensitive issue for which the plaintiff had been reprimanded by the administration. As the Supreme Court noted in Connick, “[w]hen employee speech concerning office policy arises from an employment dispute concerning the very application of the policy to the speaker, additional weight must be given to the supervisor’s view that the employee has threatened the authority of the employer to run the office.” 461 U.S. at 153-54, 103 S.Ct. at 1693. By the time of this memorandum, the plaintiff’s intense hostility had created an atmosphere detrimental to workplace harmony and cooperation. The efficiency of the public educational system as it involved the plaintiff was adversely impacted.

In view of the district court’s erroneous instruction to the jury, which permitted the jury to treat almost all of the plaintiff’s memoranda as protected by the Constitution, the verdict was understandable. However, we must conclude that the interests of the school officials in promoting the efficiency of its public educational services far outweighed the interests of the plaintiff as a citizen in commenting upon the grading policies. As a matter of law, this is the only conclusion we can reach from an examination of the record as a whole.⁴

Ill

While the jury was instructed that as a condition for recovery it must find that the protected expression was a substantial or motivating factor in the adverse job action, Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); see also Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 416, 99 S.Ct 693, 697, 58 L.Ed.2d 619 (1979), we need not, and in the context of a jury trial, should not determine whether the defendants would have taken the same job action without regard to the memorandum of December 8, 1984. While it would have been difficult, if not impossible, for a reasonable jury to have concluded that the single memorandum of December 8, 1984 was a substantial or motivating factor in the adverse job action, that causal determination is uniquely a jury question.

While it would have been possible for us to remand for a new trial with appropriate determinations and instructions from the trial court,⁵ we have determined as a matter of law under Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), that judgment should have been entered for the defendants and against the plaintiff.⁶

IV

We therefore reverse the judgment of the trial court and remand with instructions to enter judgment for all defendants.

Reversed.

1 . After trial, the district court judge suggested a remittitur of a portion of the $125,000 verdict for the plaintiff, but no formal order was ever entered.

2 . Of the memorandums written by the plaintiff which were introduced into evidence, three defended Hesse’s method of supervising students, two constituted his personal response to complaints voiced by parents and students, three concerned the poor teaching evaluations which Hesse received from the administration, two defended Hesse’s severe grading policies, two responded to the school administration’s criticism of Hesse's behavior at the March 2, 1984 faculty symposium, and three alleged that the school administration was harassing Hesse.

The dissent perfunctorily concludes that Hesse’s statements during the Board meeting on October 13, 1984 and during the March 2, 1984 faculty symposium constitute speech on matters of public concern because they touch on matters generally relating to public education. However, Conniek requires us to analyze the form and context of the speech, as well as the content. We note that the subjects that Hesse allegedly discussed relate to the teaching practices for which he had been criticized. The dissent does not proffer any evidence from the record to show that Hesse’s statements were more than part of a long-running defense of his teaching practices. In its application of Pickering to the faculty symposium incident, the dissent even concedes that Hesse’s comments were clearly related to his own negative evaluations.

In Section III and footnote 1 of its analysis, the dissent cites Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir.1988), for the proposition that an employee’s speech arising out of his personal grievance, but dealing with a matter of public concern, may be protected by the first amendment. Hesse’s situation is distinguishable from Rode precisely because most of Hesse’s speech did not deal with an issue of public concern. In Rode, a civilian employee of the Pennsylvania State Police ("PSP’’) had been suspended for a published interview she had given from her home which criticized the PSP. Although Rode's complaints were couched in terms of her employment problems with the PSP, her concerns were more than mere personal grievances. As the Third Circuit noted:

Rode did not merely claim that she was being mistreated-she claimed that she was a victim of retaliation arising out of racial animus within the PSP. This is a matter of grave public concern, especially in light of the prior protracted history of litigation against the PSP charging it with racial animus in its employment practices....

Rode v. Dellarciprete, 845 F.2d at 1201 (3d Cir.1988).

3 . Footnote 10 of the dissenting opinion misconstrues our reference to sarcastic speech. We are not implying that sarcastic speech is not entitled to constitutional protection. We only note the sarcastic form of Hesse’s speech as a measure of its disruption to the workplace, as well as its highly personal tenor. See, e.g., Callaway v. Hafeman, 832 F.2d at 417; Linhart v. Glatfelter, 771 F.2d at 1010.

4 . The dissent categorically concludes that Hesse’s memorandum is constitutionally protected by artificially viewing the memorandum in isolation. While we do not contend that context is the determinative factor in the Pickering balance, in Hesse’s case, the long-standing dispute between the parties cannot be ignored in reviewing the record. In Connick, the Supreme Court found that a questionaire distributed by an assistant district attorney to other district attorneys in the office contained one issue of public concern, but on balance concluded that the questionnaire as a whole was not protected. The questionnaire was determined to be an act of insubordination by the plaintiff in reaction to her impending transfer. 461 U.S. at 151-54, 103 S.Ct. at 1692-94. Hence, Hesse’s memorandum must be considered from the vantage point of its cumulative disruptive effect on the Board’s ability to maintain harmony and discipline in the workplace.

5 . Footnote 9 of the dissenting opinion miscom-prehends our arguendo argument. We are merely noting that if we had concluded that Hesse’s memorandum of December 8, 1984 satisfied the Pickering calculus, we would then have to remand this case for the jury’s determination of whether the memorandum was a motivating factor in the transfer. See Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. at 287, 97 S.Ct. at 576. We surmise that even if we had remanded, a reasonable jury, after considering all of the disruptive and unprotected statements made by Hesse, would have concluded that the memorandum did not trigger the transfer. We reject the dissent’s contention that the mere proximity in time of the grade fraud memorandum and the October 13 speech before the Board of Education to the transfer makes them the motivating cause of the transfer. However, our consideration of this issue does not constitute a basis of our holding, since this issue is clearly one for the jury.

6 . In view of our disposition of this case, we do not consider other alleged errors in the jury instructions, the admission of expert testimony or the excessiveness of damages.