fell into this category. Mrs. Rafferty offered several reasons for this interpretation: the letter was typed on personal stationery, with only Mr. Sass's name on the letterhead; the stationery was a color other than the customary business white; the return address under the signature was Mr. Sass's home address rather than that of PPC or one of its satellites; and she had never heard of Mr. Sass nor of his connection with PPC. Although we found Mrs. Rafferty's testimony on this point less than entirely credible, or at least her reading of the letter not a reasonable one, our disposition of this case makes discussion of the letter and Mrs. Rafferty's reaction to it unnecessary. It is sufficient to note that she consulted with her husband and her attorney, chose to ignore the offer of an appeal, and continued with her plans to institute this lawsuit.
The Commonwealth of Pennsylvania has sued the defendants on behalf of itself, including officials and employees in state-funded programs; citizens and residents of the Commonwealth who receive treatment for mental illness in facilities supported by the Commonwealth; and Linda Rafferty. It claims an interest in this matter because of its "affirmative obligation to protect free speech and assure the adequate flow of ideas and information including the flow of information critical of state or state supported facilities for the mentally ill," as well as a statutory goal of providing adequate mental health services for all who need them. (Complaint, P3).
We find the Commonwealth's position unpersuasive. It is true that the doctrine of parens patriae has been broadened considerably since the days when it comprehended only the state's guardianship, as sovereign, of persons under legal disabilities to act for themselves. A state may now sue as parens patriae and recover damages for injuries to its "quasi-sovereign" interests, including harm to the health and welfare of its inhabitants. Hawaii v. Standard Oil Co., 405 U.S. 251, 92 S. Ct. 885, 31 L. Ed. 2d 184 (1972); State of West Virginia v. Chas. Pfizer and Co., 440 F.2d 1079 (C.A. 2, 1971); Note, State Protection of its Economy and Environment: Parens Patriae Suits for Damages, 6 Colum. J.L. & Soc. Prob. 411 (1970).
However, although to have standing as parens patriae a state need not be affected by the acts of the defendants in the same way that an individual plaintiff must be, it nevertheless must be able to show (i) that a substantial number of the state's inhabitants have been injured, and (ii) that the state's injury is somehow separate and distinct from the injury to the individual plaintiff. Note, 18 Vill. L. Rev. 79 (1972). We think the Commonwealth has shown neither here.
Any chilling of any individual's freedom of speech is bound to result in pernicious side effects, including an increased timidity on the part of other persons in similar positions and a decrease in the flow of certain kinds of information or opinion. This is one of the many reasons why any deprivation of rights guaranteed by the First Amendment must be carefully scrutinized and quickly remedied. However, merely because more than one Pennsylvanian may have been indirectly affected by Mrs. Rafferty's firing does not mean that Mrs. Rafferty's injury is an injury to all. Deprivations of an individual's First Amendment rights, whatever the secondary consequences, normally constitute an injury only to the individual. Neither existing law nor sound policy justifies viewing the deprivation of one person's freedom of expression as a fortiori a deprivation of the constitutional rights of the citizenry at large.
There was testimony at the hearing to the effect that the Department of Welfare, which is charged with the operation of the Commonwealth's mental health programs, is affected by newspaper articles and publicity concerning state-funded programs and facilities.
We assume this to be true, just as we may assume that the Department's decision-making process is also influenced by a host of other factors. However, we do not accept the Commonwealth's argument that its desire for a free flow of information critical of state-operated mental health programs is a quasi-sovereign interest which may properly be asserted in a parens patriae action.
In support of its contention, the Commonwealth refers us to Commonwealth of Pennsylvania v. Brown, 260 F. Supp. 323 (E.D. Pa. 1966) and Gibbs v. Titleman, (Civil No. 72-2165, E.D. Pa. Jan. 9, 1973). In Brown we determined, inter alia, that the Commonwealth had standing to sue as parens patriae because the education of its citizens is a state function of paramount importance, and therefore "a state has a sufficient interest in the elimination of discrimination for which it would be responsible to enable it to maintain an action in federal court." 260 F. Supp. at 338. In Gibbs, the Commonwealth was granted leave to intervene in an action attacking the constitutionality of the Pennsylvania statutory scheme of non-consensual repossession of motor vehicles. The Commonwealth's interest in each of these cases was direct, immediate and readily distinguishable from that of the individual plaintiffs. The public interest claimed here is in comparison vague, speculative and remote, too remote to be encompassed by the doctrine of parens patriae.
Since we have concluded that the injury here was to Mrs. Rafferty alone and that the Commonwealth has no separate interest in this matter which may be protected by suing as parens patriae, the Commonwealth will be dismissed for lack of standing to sue.
There can be no doubt that the firing of Linda Rafferty constituted "state action" for Fourteenth Amendment purposes. The extensive support PPC and its Community Mental Health Center receive from government funds and the extensive governmental regulation that travels with the money make its action "state action." Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (C.A. 4, 1969); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (C.A. 4, 1963), cert. denied, 376 U.S. 938, 84 S. Ct. 793, 11 L. Ed. 2d 659 (1964); Holmes v. Silver Cross Hospital, 340 F. Supp. 125 (N.D. Ill. 1972); Citta v. Delaware Valley Hospital, 313 F. Supp. 301 (E.D. Pa. 1970). And conduct which is state action under the Fourteenth Amendment is under "color of law" for a § 1983 claim. "In cases under § 1983, 'under color' of law has consistently been treated as the same thing as the 'state action' required under the Fourteenth Amendment." United States v. Price, 383 U.S. 787, 794 n. 7, 86 S. Ct. 1152, 1157, 16 L. Ed. 2d 267 (1966). Defendants' arguments to the contrary do nothing to refute these settled principles.
Defendants have asserted two reasons for Mrs. Rafferty's discharge: (1) inadequate performance of her job duties and (2) "staff anxiety" caused by the publication of the September 5 Daily News article.
We think it clear that Mrs. Rafferty was not fired for incompetence or for failure to do what was required of her at PPC. In their answer to the complaint, sworn to by defendant Einbinder, defendants state that "immediately upon assuming her duties as Supervisor of Nurses, plaintiff Rafferty totally and completely refused to follow the direction of the Director of Nursing, notified all their [ sic ] employees that should ignore the direction and requirements of the Director of Nursing, and that she as Supervisor of Nurses was in sole charge." (Answer, P16). However, at the hearing, Director of Nursing Lehman, Nurses Smith and Oberlander and even Mr. Einbinder himself directly denied that Mrs. Rafferty had ever told the staff to ignore Mr. Lehman or said that she was in sole charge. Mr. Lehman also testified that Mrs. Rafferty had never ignored or refused to follow his directions.
There was some testimony to the effect that Mrs. Rafferty was often late for work and kept irregular hours at the Center. Mr. Lehman testified that he had told Mrs. Rafferty that she was responsible for round-the-clock supervision of the three shifts of nurses at the inpatient unit, and therefore she could choose her working hours each day in a manner that would put her in contact with each of the three shifts. This plan, by giving her the power to make her own hours, made it almost by definition impossible for Mrs. Rafferty ever to be late. The irregularity of Mrs. Rafferty's hours was clearly sanctioned by Mr. Lehman's instructions. The nurses apparently were unaware of the arrangement during the first week and complained to Mr. Lehman, who asked Mrs. Rafferty to begin posting a schedule of her hours. She did so for what was to have been her second week.
Nurse Oberlander testified that Mrs. Rafferty showed insufficient interest during her first week in giving or supervising the administration of medication, in getting to know her subordinates, or in dealing with the patients. Since Miss Oberlander was unable to oversee all of Mrs. Rafferty's activities during her brief period of employment, we give little weight to her testimony. However, even if Mrs. Rafferty was guilty of these apparent shortcomings, we conclude that they were the result of her need to become familiar with the responsibilities of a new administrative job and not indications of incompetence.
We find the allegations of inadequate performance afterthoughts to justify the firing rather than reasons for it.
Defendants' primary explanation for the decision to fire Mrs. Rafferty is that the article about Haverford State Hospital resulted in a great deal of "staff anxiety" at PPC which, according to Dr. Murphy's testimony, created an "antitherapeutic situation" in the in-patient unit because the staff's anxiety would be felt by the patients. Dr. Murphy concluded that this situation could not be dealt with through group discussions or the passage of time and therefore that Mrs. Rafferty had to be excised immediately from the staff.
A public employer may not, as a condition of employment, require an employee to surrender all First Amendment rights he would otherwise possess. Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960); Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952). This does not mean that a public employee may never be restricted in his freedom to comment on public issues if his comments adversely affect an important interest of his employer.
"The problem in any case is to arrive at a balance between the interest of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."
Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811 (1968).