James Gooden v. Michael v. Neal

17 F.3d 925

Opinions

EASTERBROOK, Circuit Judge.

As James Gooden tells the story, the truth was more than the warden could bear. Promoted to lieutenant and placed in charge of the internal affairs unit of the Danville Correctional Center in August 1986, Gooden started digging. His performance won accolades, including an “employee of the month” award while he was a member of the unit but not yet its head. The praise-filled evaluations continued after his promotion. Yet after turning up abuses by fellow guards, such as their performing favors for gang leaders (presumably for compensation), he found his superiors unwilling to listen. Despite enough information to start a criminal investigation of corruption — information he supplied to the local prosecutor — nothing happened within the prison. Instead of putting out the fire, the warden switched off the alarm. One morning in March 1987 Gooden reported for work at internal affairs only to be told to “turn in his keys, take his name plate and not come back.” Reassigned to ordinary guard duty, he did not take the hint. In January 1988 he was assigned to perimeter duty and required to trudge around the prison in snow and cold; when not marching, he was posted to an unheated guard tower. After the assistant warden refused to provide him with a winter coat for his tour in the tower, another correctional officer refused to let him back into the prison, showing him a memo forbidding his entry into the prison unescorted. Gooden quit.

As Warden Neal tells the story, James Gooden was more than anyone could bear. Promotion to a desk job left Gooden at sea, edgy, and defensive, a textbook example of the Peter Principle. He saw wrongdoing in the most innocuous events and committed the bureaucrat’s cardinal sin of barging into another employee’s jurisdiction despite a direct order to respect the division of authority. He got so overwrought that he couldn’t take a joke. Another guard circulated a memo in Gooden’s name canceling Christmas. Gooden became livid and started testing all of the prison’s typewriters in an attempt to identify the prankster—as if he were trying to use the Pumpkin Papers to find out whether Whittaker Chambers was telling the truth about Alger Hiss. So the warden returned Gooden to the last job he had done well: guard. Normal rotation had him marching through sleet.

The tales have some overlap: Goo-den does not deny the typewriter incident, and the warden concedes telling Gooden to keep his nose out of some areas where, Goo-den says, he smelled a rat. By and large, however, both the stories and their legal implications are diametrically opposed. If Gooden is right, and he was constructively discharged for discovering and speaking to the prosecutor about criminal conduct by other guards, then the persons responsible for these events violated the first amendment.†† If Warden Neal is right, and Goo-den is an irascible busybody who roiled the prisoners and hampered the -work of other employees, then sending Gooden to the prison’s equivalent of Siberia (thus inducing him to quit) is more supportable—for, even if the methods the warden used were poor public administration, a constructive discharge motivated by considerations other than speech does not violate the first amendment. Cf. St. Mary’s Honor Center v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 658-60 (7th Cir.1991) (en banc); Benzies v. Illinois Department of Mental Health, 810 F.2d 146 (7th Cir.1987).

As the district judge saw matters, the jury in this action under 42 U.S.C. § 1983 had to choose between two stories. Gooden was either a whistleblower forced out because of his speech or a frazzled bureaucrat in over his head. There was at least one more possibility: a little of each. Defendants’ lawyer asked for a charge based on Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). He wanted the judge to tell the jury that, even if the defendants retaliated for Gooden’s speech, they prevail if they would have forced his resignation for reasons unrelated to his speech. Counsel planned to make a dual-motive argument in closing. The judge declined to give a Mt. Healthy instruction and told the jurors that if Goo- den’s speech was a “motivating factor” they were to return a verdict in his favor. The jury did so, awarding damages of $375,000. The judge later added almost $200,000 in attorneys’ fees. In response to a post-trial motion the judge wrote: “If the protected speech was a motivating factor and a constitutional violation, the fact that the defendants would have done what they did anyway, without being motivated by the protected speech, is not germane to the question of liability.” Although defendants relied heavily on Mt. Healthy, the judge did not cite or discuss that opinion.

The district court’s conclusion that an employer violates the first amendment when speech is a “motivating factor” even if “the defendants would have done what they did anyway” tracks an approach the Supreme Court disapproved in Mt. Healthy. The district court in that case concluded that “[i]f a non-permissible reason, e.g., exercise of First Amendment rights, played a substantial part in the decision not to renew [employment]— even in the face of other permissible grounds — the decision may not stand”. 429 U.S. at 284, 97 S.Ct. at 574. The Court replied:

A rule of causation which focuses solely on whether protected conduct played a part, “substantial” or otherwise, in [an employment] decision ... could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing. The difficulty with the rule enunciated by the District Court is that it would require reinstatement in cases where a dramatic and perhaps abrasive incident is inevitably on the minds of those responsible for the decision ... and does indeed play a part in that decision— even if the same decision would have been reached had the incident not occurred. The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct.

Id. at 285-86, 97 S.Ct. at 575. The Court devised a burden-shifting approach: if the employee shows by a preponderance of the evidence “that his conduct was a ‘substantial factor’ — or, to put it in other words, that it was a ‘motivating factor’ in the [employer’s] decision” then the burden shifts to the employer to establish “by a preponderance of the evidence that it would have reached the same decision ... even in the absence of the protected conduct.” Id. at 287, 97 S.Ct. at 576. (footnote omitted). The district court’s conclusion that when protected speech is a “motivating factor” what would have happened in the absence of that speech is “not germane to the question of liability” is accordingly untenable. The district court may have confused the standards Mt. Healthy establishes for constitutional litigation with the standards in some other kinds of employment litigation. See 42 U.S.C. § 2000e-2(m) (added by the Civil Rights Act of 1991). Cf. NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983); Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Whatever may be the case under labor and civil rights statutes, Mt. Healthy establishes the approach for litigation under the first amendment.

At oral argument the question arose whether Mt. Healthy is limited to cases in which an employer concedes basing its decision in part on protected speech. Although the employer made such a concession in Mt. Healthy, nothing in the Court’s rationale depends on that fact. Indeed, if the employer’s concession were vital, one wonders why the Court said that the plaintiff bears the initial burden of proving that protected speech is a motivating factor. Decisions in this circuit since Mt. Healthy apply its approach to circumstances in which employers took the same tack as Warden Neal: denying that they reacted adversely to the employee’s speech and insisting that, if the jury nonetheless concludes that speech played a role, other considerations would have produced the same decision anyway. E.g., Rakovich v. Wade, 850 F.2d 1180, 1188-99 (7th Cir.1988) (en banc) (concluding that defendant prevailed under Mt. Healthy because plaintiff had not established that protected speech was a motivating factor); Greenberg v. Kmetko, 840 F.2d 467, 474-75 (7th Cir.1988) (en banc) (directing district court to give a Mt. Healthy instruction in a case in which the defendants considered plaintiffs speech but denied that the speech was protected by the Constitution). .

Many defendants do not want Mt. Healthy instructions and prefer to ask an either-or question of the jury. This is especially so when, as in Greenberg and American Postal Workers Union v. United States Postal Service, 830 F.2d 294, 311 n. 28 (D.C.Cir.1987), the employer concedes taking adverse action on the basis of an employee’s speech but contends that the speech was not protected by the first amendment. Mt. Healthy is something of a misfit in such circumstances (although Greenberg relied on it). When, however, the plaintiff says that the adverse decision was based on speech, and the defendant says that the decision was based on something else, the jury should be told what to do if it concludes that the employer had both motives. Mt. Healthy gives the jury that essential information.

The evidence was not so overbalanced that the error can be called harmless. Instructional error of this kind would be harmless only if the evidence so favored Gooden that a jury could not find by a preponderance of the evidence that the constructive discharge was attributable to matters other than protected speech. The district judge, who submitted the case to the jury, did not think the evidence so lopsided. Gooden had a lot going for him—the awards and letters of praise, the odd manner of his removal, the accumulation of what appear to be trumped-up charges after March 1987 to justify assigning a lieutenant as a regular guard, the testimony of Charles Newman (a founding editor of Criminology) that Gooden behaved appropriately and that nothing in his personnel file or the records of his investigation reflected otherwise, and Gooden’s own testimony that one of the defendants told him that he had been banished for “starting to make waves within the institution.” But the defendants testified that they viewed Goo-den’s behavior as erratic and insubordinate, and a prison is enough like a military institution that jurors could believe that a subordinate viewed as a troublemaker is on the way out no matter what he said (and no matter whether the view is accurate). Defendants will have an uphill fight on this record, even with a properly instructed jury, but they are entitled to have the jury’s decision on the factual questions rather than ours.

Gooden raised a state-law claim under the supplementary jurisdiction. Illinois encourages reports of crime and forbids employers to retaliate against employees who make such reports. 20 ILCS 415/19c.l; Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981); Belline v. K-Mart Corp., 940 F.2d 184 (7th Cir.1991). The district court removed this claim from the jury’s consideration on a motion by Gooden that the court encouraged him to make, believing that it was redundant in light of the first amendment theories. As this opinion shows, however, the court’s belief is incorrect. To prevail under state law Gooden did not have to establish that his reports were protected speech, and the tort of retaliatory discharge in Illinois has not developed in precisely the same way as constitutional torts governed by Mt. Healthy. State and federal theories are distinct; Gooden could win under one and lose under the other. At any new trial Goo-den therefore should have the opportunity to present both theories if he desires.

Reversed and Remanded.

Footnotes

††

Defendants do not deny that reports of crime by public employees are speech on a matter of public concern within Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). We therefore need not decide whether, and if so how far, the concession is correct. Cf. Feldman v. Bahn, 12 F.3d 730 (7th Cir.1993). The claim of official immunity, which has succeeded in many Pickering cases, see Greenberg v. Kmetko, 922 F.2d 382 (7th Cir.1991); Benson v. Allphin, 786 F.2d 268 (7th Cir.1986), comes too late. Although it is an affirmative defense, which ordinarily is raised and resolved before trial, we have held that district judges may act favorably on immunity claims raised for the first time in mid-trial by motion for directed verdict (now a motion for judgment as a matter of law, see Fed.R.Civ.P. 17 Fed.3d-22 50(a)), see Rakovich v. Wade, 850 F.2d 1180, 1204 (7th Cir.1988) (en banc), but have not excused defendants from the procedural requirements of such motions. Defendants failed to list immunity as an issue in the pretrial order, taking it off the trial agenda. What is more, a contention rooted in the facts of a case may not be raised for the first time after trial; it must be raised during trial. A motion properly made during trial may be "renewed” after trial. Fed. R.Civ.P. 50(b). Defendants did not rely on immunity before or during trial; the subject first arose in post-trial practice. That is too late. E.g., McGee v. Bauer, 956 F.2d 730, 733-34 (7th Cir.1992); Thronson v. Meisels, 800 F.2d 136, 139 (7th Cir.1986); McKinnon v. Berwyn, 750 F.2d 1383, 1387-90 (7th Cir.1984).