UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
July 22, 1975
ELEANOR ROSEMAN, 1709 WEST END DRIVE, PHILADELPHIA, PENNSYLVANIA, APPELLANT
INDIANA UNIVERSITY OF PENNSYLVANIA, AT INDIANA AND WILLIAM W. HASSLER AND HERBERT ISAR AND CHARLES FAUST AND ISOLDE A. HENNINGER AND FRANCIS MCGOVERN
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. D.C. Civil No. 73-1082.
Forman, Van Dusen and Garth, Circuit Judges.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
This is a timely appeal from a September 24, 1974, judgment of the United States District Court for the Western District of Pennsylvania. The plaintiff, Roseman, was an associate professor in the Foreign Languages Department of Indiana University of Pennsylvania for the academic years beginning September of 1969 and 1970. Her contract was not renewed for the academic year beginning in September of 1971. Her complaint, filed December 20, 1973, alleged that the non-renewal violated her right to a pre-termination hearing, was in retaliation for her exercise of protected speech, and penalized her for her religious beliefs.*fn1 She sought reinstatement, injunctive relief, and damages. The district court found for the defendants on all counts. Roseman v. Hassler, 382 F. Supp. 1328, 1341-42 (W.D. Pa. 1974). We affirm.
It will be unnecessary to restate the facts relevant to those claims in which we have no disagreement with the district court's opinion.*fn2 In particular, we find that as Pennsylvania contract law and Indiana University's tenure regulations apply to the plaintiff's negotiations with the University, she had no property interest in continued employment sufficient to require a pre-termination hearing under Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), and Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). We so find for the reasons stated by the district court. 382 F. Supp. at 1335-37, 1342 (Conclusions of Law 2-4). See also Skehan v. Board of Trustees, 501 F.2d 31 (3d Cir. 1974), vacated and remanded on other grounds, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975). We also affirm the district court's holding that the plaintiff's First Amendment right to practice her religion freely was not violated.*fn3
The plaintiff's freedom of speech claim requires somewhat more extended discussion. The Committee on Merit and Tenure of the Faculty evaluated the plaintiff's performance at a meeting on March 20, 1970, and called several shortcomings to the plaintiff's attention. The Committee indicated at that time that it would meet again for a further discussion of the non-tenured staff. Shortly thereafter, a controversy arose within the Foreign Languages Department. Plaintiff apparently thought that Faust, the Acting Chairman of the Foreign Languages Department and a defendant in this action, may have suppressed the application of one Hyde for chairmanship of the Department. The district court found that Faust had committed no impropriety.*fn4 The Findings (37-40 are set forth in note 4a below)*fn4a indicate that plaintiff never made an investigation of the facts and her complaint was first made after the deadline for receiving applications had passed. Notwithstanding, on April 5, 1970, the plaintiff complained to the Dean of the College of Arts and Sciences of the University, McGovern, about what she believed to have been Faust's wrongful suppression of the Hyde application, and later repeated these charges at a May 5, 1970, meeting of the teaching staff of the Foreign Languages Department at the invitation of Dean McGovern, who specifically invited the plaintiff to explain them.*fn5 She did so; the faculty nevertheless gave a vote of confidence to Faust. On May 12, the Committee on Merit and Tenure, of which Faust was a member decided not to renew the plaintiff's contract by a vote of ten affirmatives and one abstention. This decision was subsequently ratified by University officials.
The district court expressed concern, which we share, over the "close proximity of the meeting of May 12, 1970, to the faculty meeting of May 5, 1970, at which plaintiff had voiced her complaints as to Mr. Faust." 382 F. Supp. at 1338-39. The district court found, however, that "there were adequate work-related reasons for not renewing plaintiff's contract," which language is supported by Findings 34 and 45 (382 F. Supp. at 1331 and 1332), reading as follows:
"34. Plaintiff was non-renewed because of her work practices which created administrative hardships and delays, her inadequate classroom performance and her failure to get along amicably in the department.
"45. The decision to non-renew plaintiff was not made in retaliation for the exercise of any valid right of free speech."
The district court also reasoned that "plaintiff has the burden of proving by a preponderance of the evidence that her non-retention was caused in substantial part by restraint on her freedom of speech . . . ." 382 F. Supp. at 1339. In this respect, the district court appears to have misunderstood the proper standard of review where a public employee alleges that his employment has been terminated in retaliation for the exercise of protected speech. It is not enough merely to find that other grounds were adequate for the discharge, or that retaliation did not constitute a substantial part of the reason for the discharge. Instead, the plaintiff need only prove that the discharge was "predicated even in part on his exercise of first amendment rights." Skehan, supra at 39; Simard v. Board of Education, 473 F.2d 988, 995 (2d Cir. 1973).*fn6
The district court's use of the wrong standard of review would require us to remand for further consideration were it not for a second rationale on which the district court rested its decision. That is the court's finding that the plaintiff's communications to McGovern and at the faculty meeting were not protected by the First Amendment, and therefore might permissibly form part of the basis for the plaintiff's discharge.
The parameters defining protected speech for state employees*fn7 were set forth by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). "The problem in any case," the Court said, "is to arrive at a balance between the interests 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." Id. at 568. The communication for which Pickering, a high school teacher, had been discharged was a letter written to a "local newspaper in connection with a recently proposed tax increase." Id. at 564. Pickering's letter "was critical of the way in which the Board [of Education] and the district superintendent of schools had handled past proposals to raise new revenue for the schools." Id. The Court found some of the statements in Pickering's letter to be true and others, while not malicious, to be false, but it found all of them to be protected:
"What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public."
Id. at 572-73 (footnote omitted).
The communications made by the plaintiff in the case before us differ from Pickering's in two crucial respects. In the first place, Roseman's expressions were essentially private communications in which only members of the Foreign Languages Department and the Dean of the College of Arts and Sciences were shown by the plaintiff to have had any interest. Pickering's letter to the editor, urging the electorate with respect to a pending tax proposal, was, by contrast, a classic example of public communication on an issue of public interest. In Pickering,*fn8 as in other cases,*fn9 the Supreme Court inquired into the public nature of a communication in determining the degree of First Amendment protection. As Roseman's communications were made in forums not open to the general public and concerned an issue of less public interest than Pickering's, the First Amendment interest in their protection is correspondingly reduced.*fn10
The second respect in which Roseman's communications differ from Pickering's is in their potentially disruptive impact on the functioning of the Department. Pickering's attacks were on a remote superintendent and school board; in contrast, Roseman's called into question the integrity of the person immediately in charge of running a department which, it is fair to assume, was more intimate than a school district. The district court found that "plaintiff's attacks upon Faust's integrity in a faculty meeting would undoubtedly have the effect of interfering with harmonious relationships with plaintiff's superiors and co-workers." 382 F. Supp. at 1339. In making this finding, the district court reflected a similar concern expressed by the Supreme Court, which noted that Pickering's statements were "in no way directed towards any person with whom [Pickering] would normally be in contact in the course of his daily work as a teacher." Pickering, supra at 569-70. Because of this, Pickering's case raised "no question of maintaining either discipline by immediate superiors or harmony among co-workers." Id. at 570. The same obviously cannot be said of Roseman's faculty meeting accusations directed at the Acting Chairman of her Department.*fn11
For reason of these distinctions between the plaintiff's communications and the communications at issue in Pickering, we have concluded that the plaintiff's communications fall outside the First Amendment's protection. Because they do, the University did not deny the plaintiff her First Amendment rights, even if it considered her statements in making its non-renewal decision.*fn12
Accordingly, the judgment of the district court will be affirmed. The costs shall be taxed against the appellant.*fn13