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August 13, 1985

JOSEPH LYNN, Plaintiff
LINDA SMITH, et al., Defendants


The opinion of the court was delivered by: NEALON

Plaintiff filed this action dated August 1, 1984, pursuant to 28 U.S.C. §§ 1331, 1343 and 42 U.S.C. § 1985(3), requesting injunctive relief and damages for alleged violations of the First and Fourteenth Amendment, as well as a state claim of intentional infliction of emotional distress. It is the plaintiff's claim that the defendants have punished him for filing internal grievances and will continue to do so if they are not restrained. The plaintiff filed an application for a temporary restraining order (TRO) on August 13, 1984, which was granted August 14, 1984, restraining the defendants from suspending Mr. Lynn from his employment. The TRO remains in effect by consent of the parties. The defendants filed a Motion for Summary Judgment dated October 25, 1984 and brief in support thereof dated November 5, 1984. On November 26, 1984, plaintiff filed a brief in opposition to the motion and on December 10, 1984, the defendants filed a reply brief. By Order dated February 11, 1985, the court granted the plaintiff's request for additional time in which to pursue further discovery. The plaintiff filed a supplemental brief in opposition to the motion for summary judgment on April 9, 1985 and the defendants filed their supplemental brief in support of the motion on May 13, 1985. The motion is now ripe for disposition. For the reasons set forth below, the motion for summary judgment will be granted as to all issues except plaintiff's claim of invasion of privacy in his grievance dated June 26, 1984, and the emotional distress claim.

 The parties are all employed by the Bureau of Claim Settlement in the Pennsylvania Department of Public Welfare. In addition, Mr. Lynn is chief shop steward for his union in the Luzerne Area Office of the Department of Public Welfare. Between June of 1981 and August of 1984, Mr. Lynn filed approximately thirty grievances under the contract procedure on behalf of others in the shop and himself. Several of the grievances filed concern themselves with typical employer-employee disputes such as overtime compensation, travel time, reimbursement for expenses, leave requests and disputed disciplinary actions. Others, however, deal with matters such as interfering with union business, discrimination, harassment and invasion of privacy. *fn1"

 On July 26, 1984, Linda Smith, Acting Director of Field Operations, Department of Public Welfare, acting through Theresa Dunbar, Area Executive, Department of Public Welfare, made several changes in Mr. Lynn's work. Ms. Smith changed his headquarters, his supervisor and his work assignment. In addition, Mr. Lynn received a letter dated August 8, 1984 informing him that he would be suspended for three days based upon insubordination. *fn2" The parties do not dispute that these changes took place, only what the defendants' motivation was as to why they took place. It is the plaintiff's contention that these actions were undertaken to punish him for filing grievances. The defendants deny this.


 The plaintiff alleges that Ms. Smith and Ms. Dunbar have punished him for filing grievances in the past and for refusing their request to abstain from filing any grievance in the future. This, he contends, violates his First Amendment right to freedom of speech.

 The leading Supreme Court case in the First Amendment area is Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). As a general rule, citizens do not relinquish all of their First Amendment rights when they become public employees. Id. However, the state "has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Id. at 568. Accordingly, courts must "arrive at a balance between the interests of the [employee] . . ., as a citizen, in commenting upon matters of public concern and interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. The Court in Pickering explained that as a general rule, a school board may not dismiss an employee for criticizing school policies that are of public interest unless the speech contains knowingly or recklessly false statements, undermines the ability of a teacher to function, or interferes with the operation of the school. Id. at 568-72. See also McGee v. South Pemiscot School District, 712 F.2d 339, 342 (8th Cir. 1983); Czurlanis v. Albanese, 721 F.2d 98, 102 (3d Cir. 1983); Monsanto v. Quinn, 674 F.2d 990, 993 (3d Cir. 1982).

 In Trotman v. Board of Trustees, 635 F.2d 216, 224-25 (3d Cir. 1980), cert. denied, 451 U.S. 986, 101 S. Ct. 2320, 68 L. Ed. 2d 844 (1981), the Court of Appeals reviewed the three step process usually required in examining a public employee's claim of retaliation for engaging in protective activity. See also Monsanto v. Quinn, supra ; and Czurlanis v. Albanese, supra. First, the plaintiff must show that the activity in question was protected. See Pickering v. Board of Education, supra. If successful in demonstrating that the activity was protected, the plaintiff must then show that the activity was a substantial or motivating factor in the decision or action taken against the claimant. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). Lastly, the defendant has the opportunity to defeat the plaintiff's claim by demonstrating that the same action would have been taken even in the absence of the protected conduct. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 416-17, 58 L. Ed. 2d 619, 99 S. Ct. 693 (1979); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. at 287; Paschal v. Florida Public Employees Relations Commission, 666 F.2d 1381, 1384 (11th Cir.), cert. denied 457 U.S. 1109, 73 L. Ed. 2d 1319, 102 S. Ct. 2911 (1982).

 Initially, in determining whether a motion for summary judgment by the defendants is appropriate, we must begin with an inquiry of whether Mr. Lynn's oral or written speech was protected. To determine that issue, we must first ascertain whether the speech dealt with a matter of public concern and then balance the interests of the state, as an employer, against the interests of the employee, as a citizen. In Connick v. Myers, 461 U.S. 138, 146, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1982), the Supreme Court held that where public employee's activity "cannot be fairly characterized as constituting speech on a matter of public concern," it is unnecessary for the court to scrutinize the reasons for the plaintiff's discharge or the disciplinary action. Connick involved a former assistant district attorney unhappy about a transfer. She contended she was dismissed for compiling and distributing a questionnaire to her co-workers concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors and whether employees felt pressure to work in political campaigns. With the exception of the last issue, the Court held the questions posed by the plaintiff did not fall within the realm of matters of public concern. 461 U.S. at 148. The Court explained, "when employee expression cannot be fairly considered as relating to any matter of political, social or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Id. Accordingly, the Court in Connick made an essential distinction between speech by a public employee "as a citizen upon matters of public concern" and speech by an employee "upon matters of only personal interest." Id. at 147. Only when an employee speaks upon a matter of public concern is a federal court 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. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form and context of a given statement, as revealed by the whole record." Id. at 147-48. The Connick Court further explained:

[Plaintiff, here,] did not seek to inform the public that the district attorney's office was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases. Nor did [she] seek to bring to light actual or potential wrongdoing or breach of public trust on the part of the [district attorney] and others. . . . The questions reflect one employee's dissatisfaction with the transfer and an attempt to turn that displeasure into a cause celebre.

 461 U.S. at 148.

 Unlike Connick, the plaintiff in Czurlanis, alleging he was suspended in retaliation for making a speech at a county board meeting, was found to have a protected First Amendment right. 721 F.2d at 107. Czurlanis, a senior mechanic at the Westfield Garage, addressed the board concerning precisely the questions which the court in Connick noted were not the subject of plaintiff's speech there, i.e., whether county officials in the Division of Motor Vehicles were discharging their governmental responsibilities. Id. at 104. He sought to bring to light actual or potential wrongdoings or breach of public trust on the part of these officials. Czurlanis spoke as a concerned citizen and taxpayer and not as an aggrieved employee. The Court of Appeals explained that "the fact that Czurlanis became aware of the matters which he raised at the board meeting through his employment with the county does not make these matters any less public concern." Id. Therefore, they determined the speech in question approximated that in Pickering.

 The Ninth Circuit Court of Appeals in McKinley v. City of Eloy, 705 F.2d 1110 (9th Cir. 1983), distinguished matters of public concern from individual employee disputes in determining the degree of First Amendment protection to which a particular activity is entitled.

Speech by public employees may be characterized as not of 'public concern' when it is clear that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public's evaluation of the performance of governmental agencies. See Connick. On the other hand, speech that concerns issues about which information is needed or appropriate to enable the members of society' to make informed decisions about the operation of their government merits the highest degree of first amendment protection.

 Id. (footnote omitted). The court in McKinley found the speech involved clearly a matter of public concern. The plaintiff's speech dealt with the rate of compensation for members of the police force and, generally, with the working relationship between the police union and elected city officials. The Ninth Circuit explained:

First, compensation levels undoubtedly affect the ability of the city to attract and retain qualified police personnel, and the competency of the police force is surely a matter of great public concern. Second, the inter-relationships between city management and its employees is closely connected with 'discipline and morale in the workplace' -- factors that 'are related to an agency's efficient performance of its duties. ' Connick, [ ] U.S. at [ ,] 103 S. Ct. at 1691. See also id. at [ ] n.2, 103 S. Ct. at 1697 n.2 (Brennan, J. dissenting). Third, the way in which an elected official or his appointed surrogates deal with diverse and sometimes opposing viewpoints from within government is an important attribute of public service about which the members of society are entitled to know. Finally, plaintiff's speech was specifically and purposefully directed to the public both through city council meetings and a television interview.

 Id. at 1114-15.

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