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Watters v. City of Philadelphia

filed: June 2, 1995.


On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil No. 91-cv-00177).

Before: Sloviter, Chief Judge, Nygaard and McKEE, Circuit Judges.

Author: Sloviter


SLOVITER, Chief Judge

Richard C. Watters appeals the district court's order under Rule 50(a) dismissing his action under 42 U.S.C. § 1983 against the City of Philadelphia, Police Commissioner Willie L. Williams and Managing Director David Pingree (hereafter collectively referred to as "the City") for denial of his First Amendment right to freedom of speech. Watters' claim arose out of his termination from employment as Manager of the Employee Assistance Program (EAP) for the Philadelphia Police Department following the publication of a newspaper article in which he was quoted criticizing aspects of the EAP.



In 1987 then-Police Commissioner Kevin Tucker solicited Watters to leave his employment with the Princeton Medical Center and to accept a position as Manager of the Employee Assistance Program for the Philadelphia Police Department. The idea for a coordinated EAP grew out of a study conducted by the Philadelphia Police Study Task Force which Tucker had convened "to review all aspects of the Philadelphia Police Department and to make recommendations . . . for improvement in the way this vital service is provided to the citizens of Philadelphia." App. at 30.

The Task Force's report, Philadelphia and Its Police: Toward a New Partnership, issued in 1987, emphasized the importance of providing stress management and psychological, drug and alcohol counseling services to officers. The Task Force found "significant barriers and limitations" in the existing counseling programs and noted the lack of a "clear commitment" by the Department to an employee assistance program, "the lack of a comprehensive program for assisting employees with alcohol, drug or psychological problems, and police employees' suspicions of treatment programs, including fear of being dismissed, disciplined or stigmatized." App. at 44. The Task Force concluded that "procedures must be established that allow an officer to be referred to treatment before the problem gets out of hand [and that a] key to convincing employees that they can get help is for the Department to ensure the confidentiality of the program. . . ." App. at 44. The Task Force specifically recommended hiring a "program coordinator with psychological counseling training" and developing a formal employee assistance policy. App. at 45.

Watters was charged in his appointment letter with managing the EAP "as outlined in the recommendations of the Philadelphia Police Study Task Force Report." App. at 123. The defendants do not deny that pursuant to that charge Watters upgraded and consolidated existing services, added educational programs, and supervised the professional training of the counselors. Again following the Task Force's recommendations, he oversaw the formation of internal and external advisory committees to draft an employee assistance policy. One draft policy statement addressed issues of confidentiality and specified the services the EAP would provide. App. at 51-52. Another outlined a Traumatic Incident Management Program. App. at 53-55.

The genesis of Watters' employment problems apparently lay in his attempts to get formal and public acceptance of those policy statements by the Police Commissioner. Watters submitted the draft policy statements to Commissioner Tucker in 1988 for his approval. Tucker told Watters orally to implement the services. He testified that he approved the goals Watters had set but that in light of his forthcoming retirement he deferred decisions on a formal policy to his successor. Tucker resigned in June 1988 and was succeeded by Commissioner W. Willie Williams.

Watters then sought formal approval of the draft policies from Williams but was again disappointed. Williams testified that he told Watters that it might take up to eighteen months to get consensus on the policy issues but that Watters had the authority to do whatever was necessary in the meantime to run the EAP. App. at 605-06.

According to Watters, the lack of official policies caused problems in at least two areas -- one dealing with maintaining confidentiality as to the identity of police officers who sought counseling and the other dealing with reimbursement for certain services referred to providers by the EAP rather than by the City's workers' compensation program. Explaining the reason for his concern about confidentiality, Watters testified, "One of the counselors . . . made it clear that if a police officer were to have revealed to him that he had a chemical dependency problem, that he would Mirandize him, he would arrest him." App. at 189. Defendants maintain that confidentiality was protected unless an officer posed a danger to himself or others. There is evidence in the record that existing departmental policy required reporting any police officer who was using drugs. App. at 181-82.

Watters also described difficulties with reimbursement for an outside referral. He stated: "I received a letter from the police department safety officer telling me that the police department would not reimburse this employee for those services because the employee assistance program did not have a mandate to act in that capacity." App. at 214. According to Watters, some officers viewed the EAP with mistrust and challenged him every day with questions about its legitimacy. They told him that the EAP was a "bogus program" because "without the authority authorization [sic] of the policy statement, it was meaningless." App. at 220.

Watters' dissatisfaction with managing the EAP without the policy statements grew. He was concerned "that we were operating in an unethical way. That we were viewed as having some service that didn't exist. That I would be responsible or liable for supervising or directing a program that wasn't authorized to exist." App. at 219. In August 1989, Watters wrote to Chief Deputy Solicitor Ralph J. Teti seeking guidance about the legal and ethical difficulties he perceived in providing the EAP services without a signed policy statement. App. at 220-22.

In November 1989, because of his concerns over the lack of formal Departmental policies, Watters decided to scale back the EAP services to the level they were prior to his becoming the EAP manager. App. at 228-29, 234-35. Watters testified that he informed Commissioner Williams and Deputy Commissioner James Clark of his decision. Clark instructed Watters to continue providing the services but Watters responded that he could not ethically do so. App. at 230-32. Shortly thereafter Watters refused to provide referrals for outside counseling for the family of a slain officer because he believed that, without a clear policy mandate, the referral could interfere with the family's receipt of workers' compensation benefits. App. at 232-34. He was not disciplined for this refusal to provide referral services. App. at 234.

In April 1990, a reporter for The Philadelphia Inquirer approached Watters with questions about the EAP.*fn1 On April 19, 1990 an article appeared in that newspaper under the headline "Dispute puts counseling program for police in limbo." The article states that "[the EAP] has ground to a virtual standstill in the services it offers, stymied by an internal dispute over the scope of its effort." The article continues, "According to Dick Watters, the head of the Employee Assistance Program, the turmoil has its roots in the way the program was set up--the department, he said, never formally authorized counseling for anything but alcohol problems" and "What has frustrated program counselors, Watters said, is that authorization is crucial to effective service. Without it, he said, there have been problems of liability, difficulties in worker's compensation cases and snafus in reimbursement for care referrals, all of which have undercut the coordinated system of service envisioned by the task force." The article continues, (quoting Watters): "'It's been a charade from the start.'--so he decided to pull the plug to make a point. 'I'm taking a risk. We're creating a crisis. The program's not here. Somebody's got to make a decision.'" App. at 56. Watters agreed at trial that in general the reporter accurately paraphrased him, but noted that he did not say that he "pulled the plug to make a point."

As soon as the article was published, Williams summoned Watters to his office. Watters claims that Williams told him that he should not have talked to the reporter and that he was an abomination and unfit for public service. App. at 242-44. On April 26, 1990, Watters was again summoned, and this time was informed of his termination.

Williams testified that the April 19 article was his first knowledge that the EAP services had been cut back, and that at his meeting with Watters immediately thereafter he asked whether and why he had reduced services and who had given him the authority to do so. He testified that Watters admitted that he had made the statement that he "pulled the plug" and said that he had stopped providing crisis counseling and the morning information meetings because he felt he lacked authority. It was Williams' view that "[Watters] was obligated as a city employee to provide those services." App. at 627.

Williams also discussed the article with Managing Director David Pingree, who testified that Williams was concerned that Watters had taken actions to hinder the operation of the EAP but "I don't recall the Commissioner being concerned relative to Mr. Watters speaking to the press." App. at 719. Pingree suggested that Williams should look into whether services had been reduced. Williams verified that some services had been stopped and recommended firing Watters, which Pingree authorized. Six months later, Williams issued two written policy statements. One was entitled "Employee Assistance Program for Sworn Personnel And Their Families," and was substantially similar to that proposed by Watters. The other which mandated counseling for any officer involved in a police shooting, also addressed issues Watters had raised. App. at 633-35.

Watters filed his section 1983 suit against the City of Philadelphia, Mayor W. Wilson Goode, Police Commissioner Williams, and Managing Director Pingree claiming violations of the due process and freedom of speech clauses of the United States Constitution. The district court granted defendants' motion for judgment as a matter of law after the close of evidence at trial,*fn2 holding that Watters' speech was not on a matter of public concern and that the "speech activity interfered with the Police Department's interests in promoting the efficiency of the public services it performs through its employees." App. at 756-58.

We exercise plenary review of the district court's grant of a motion for judgment as a matter of law. Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993). Such a motion should be granted only if "viewing all the evidence which has been tendered and should have been admitted in the light most favorable to the party opposing the motion, no jury could decide in that party's favor." Id. (citation and quotation omitted). This court has an obligation to make an "'independent constitutional judgment on the facts of the case'" as to whether the speech involved is constitutionally protected. Connick v. Myers, 461 U.S. 138, 150 ...

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