Waters v. Churchill
Encyclopedia
Waters v. Churchill, , is a 1994 decision of the United States Supreme Court concerning the First Amendment
rights of public employees in the workplace. By a 7–2 margin the justices held that it was not necessary to determine what a nurse at a public hospital had actually said while criticizing a supervisor's staffing practices to coworkers, as long as the hospital had formed a reasonable belief as to the content of her remarks and reasonably believed that they could be disruptive to its operations. They vacated
a Seventh Circuit Court of Appeals
ruling in her favor, and ordered the case remanded to district court to determine instead if the nurse had been fired for the speech or other reasons, per the Court's ruling two decades prior in Mt. Healthy City Bd. of Ed. v. Doyle.
The case had first been brought by Cheryl Churchill, a nurse in the obstetrics
ward at McDonough District Hospital, operated by the city of Macomb, Illinois
. During a dinner break one night in early 1987, she had been talking with another nurse who was considering transferring to obstetrics. In that conversation she made statements critical of cross-training
practices recently implemented by the hospital's nursing supervisor, Cindy Waters, and referred to personal issues between the two. Another nurse who overheard the conversation believed Churchill's comments about Waters had dissuaded her interlocutor from the transfer, and reported it to Waters. After an investigation in which Churchill alleged she was never asked about what she had said, she was fired
.
There were four separate opinions. Sandra Day O'Connor
wrote for a four-justice plurality
that the government has a lower obligation to respect constitutional rights when it acts as employer rather than as the sovereign. Accordingly, in that situation it should not be required to meet a due process
standard greater than the reasonableness of its own finding of fact. David Souter
added a short concurring opinion
qualifying the plurality, which he said was in fact a majority, with his insistence that in such cases the government must demonstrate that its understanding of what the employee said was not only a reasonable belief but a truthful one. Antonin Scalia
concurred as well, but harshly criticized O'Connor's opinion. He read it as requiring a procedural handling of every possible adverse personnel action where First Amendment rights might be implicated, providing "more questions than answers". John Paul Stevens
' dissent
argued that the First Amendment required that the lower court determine exactly what Churchill had said before ruling on whether it was protected.
Outside commentators have also been critical of the decision, since it might discourage whistleblowers. In addition to echoing Stevens' concerns, they have seen it as abandoning any concern for the truth, imposing a heavy burden on a plaintiff
, relying on an overly narrow conception of the public's interest, and possibly discouraging people from entering public service. The decision resulted in a lower court changing its ruling in a high-profile case involving controversial academic Leonard Jeffries
.
ward. She had generally received favorable performance evaluation
s until Waters became her supervisor in the middle of 1986.
That happened a few months after Kathy Davis took over as the hospital's vice president of nursing. Waters had been implementing Davis's policy of cross-training
, under which nurses in areas that were overstaffed on a particular shift were reassigned to departments that needed more nurses. Churchill was one of several employees who had voiced objections to the way the policy was being implemented. She and other critics feared that it was primarily being used to address staffing shortages without providing adequate training, with detrimental effects on patient care.
Churchill's criticisms had been long voiced by one of the hospital's obstetricians, Dr. Thomas Koch. During a 1982 malpractice
suit he had blamed a stillbirth
on nursing shortages created, he alleged, by hospital policies, and had continued the criticism since then. Churchill and he became friends and allies, with her providing inside information on nursing policies that he then used to criticize the administration. She believed this incurred her the enmity of administrators who by summer of 1986 were keeping a file of criticisms of Koch made by Davis and nursing supervisor Cindy Waters.
That August, an incident occurred that bore out Churchill and Koch's concerns, and began the sequence of events that led to the lawsuit. During a difficult delivery, Koch called for a "Code pink
" emergency, indicating danger to the life of mother and/or child. A probationary
nurse, Mary Lou Ballew, did not know how to properly signal the emergency and did not alert all the necessary personnel. Churchill responded and helped Koch prepare for an emergency Cesarean section.
After the surgery, Churchill was completing paperwork in the delivery room when Waters looked in on a patient in the early stages of labor Churchill had been attending to across the hall. She ordered Churchill to check on that patient. Churchill responded "You don't need to tell me what to do", and then complied with the order. Koch was very upset by this interference. At a meeting the next day with Waters and Stephen Hopper, the hospital's president and chief executive officer
, he criticized Waters' conduct and the effect of the cross-training policies.
Churchill was later given a written warning for insubordination
; she chose not to either make a written response or file a grievance
, which she had the right to do, as she "did not want to make mountains out of molehills". Waters' annual evaluation of Churchill was overall positive, but noted an increasing antipathy toward her. In January of 1987, a cross-trainee, Melanie Perkins-Graham, mentioned to Churchill over dinner during a meal break, with Koch present, that she was considering transferring to obstetrics. The exact nature of the ensuing conversation was central to the ensuing dispute.
Since the break room was located immediately behind the main nurse's station in obstetrics, others overheard all or part of it. Ballew, whose work-related absences from the nurses' station limited her exposure to the conversation, and head nurse Jean Welty, were among them. The next morning Ballew told Davis that Churchill had spent 20 minutes "knocking the department" and specifically criticizing Waters and Davis, saying the former was trying to get her fired and the latter "was going to ruin this hospital". After the conversation, Ballew claimed, Perkins-Graham was no longer interested in transferring. The morning afterwards, Davis asked Perkins-Graham to tell her about the conversation.
Perkins-Graham told her that Churchill "had indeed said unkind and inappropriate negative things about Cindy Waters" and confirmed the complaints about the ward and the criticism of Davis. Davis decided to fire
Churchill for what she considered continued insubordination, but did not do so until after she had consulted with Waters, Hopper and the hospital's personnel director. Churchill appealed to Hopper, her only recourse
under the hospital's employee policy, but after a meeting with her and the personnel director he told her that the negative evaluation the month before counted as a second written warning and thus her termination had followed the proper process
.
in Peoria
named Waters, Davis, Hopper and the hospital as defendants. She alleged violations of her First Amendment
right to free speech and Fourteenth Amendment
right to due process
under Section 1983, and breach of contract
under Illinois law.
No trial was actually held. After all witnesses had been deposed
, Judge Michael M. Mihm
considered motions for summary judgement, granting them for the defense. Churchill appealed, and won a reversal.
, Churchill gave her version of the break room conversation she had had with Perkins-Graham that had led to her dismissal. She had repeated her earlier criticisms, which were not of cross-training in itself but merely the way Davis had implemented it. A specific concern of hers was the hospital's requirement that obstetric nurses who had reassigned to another department shower and change before returning to obstetrics, in an apparent effort to circumvent a regulatory requirement that nurses assigned to obstetrics remain there for an entire shift or not return if they were temporarily assigned elsewhere.
As to whether her comments about Waters had been as continuous and negative as Perkins-Graham and Ballew had asserted, Churchill testified that she had not had a problem with Waters and felt she could have a good working relationship with her. Welty, the chief shift nurse on duty that night, who had overheard most of the conversation from the nearby nurses' station, corroborated Churchill's version. She further recalled that Perkins-Graham had said she had only one reservation about transferring to obstetrics—Waters. Churchill, Welty testified, had actually defended Waters, saying she had a difficult job and was sometimes moody, but that could be accommodated.
After the depositions had been taken and briefs
filed, the defendants moved for summary judgement. Judge Michael M. Mihm
granted it on all but the First Amendment claim. Much of his opinion, handed down in early 1990, consisted of a lengthy explication of Illinois case law on contract formation
as it applied to language in the hospital's employee handbook. He held that it did not constitute a firm offer
of continued employment and thus could not be considered a contract Churchill had become party to by continuing to work once aware of its terms. Since there was no contract to breach, there could be no denial of due process rights. He could not grant summary judgement on the First Amendment claim since there was a factual dispute in that area, and ordered a status conference
to be held the next month with a magistrate
.
Churchill then moved for summary judgement on the remaining claim, arguing that she had been fired without a determination that she had been engaging in protected speech on a matter of public concern, and that her rights to freedom of association
with Dr. Koch had also been abridged, in violation of her due process rights. The defendants cross-moved for the same, arguing failure to state a claim
on the free-association claim. They denied she had been engaging in protected speech, and that even if it were, she would still have been fired for undermining the hospital administration.
Mihm found Churchill's speech "inherently disruptive". Echoing Perkins-Graham's description of it as a "bitch session", and noting "history of hostility between Churchill and her supervisors", he found she intended "not to inform but rather to gripe." He entered judgement for the defendants.
. Koch, whom she married in 1991, joined the case as an appellant, arguing that Waters, Davis and Hopper had tried to have his privileges revoked as retaliation for his role in the incident. A three-judge panel of Richard Dickson Cudahy
, John Louis Coffey
and Daniel Anthony Manion
heard the case in February 1992. Eight months later, they ruled in favor of Churchill.
Coffey's opinion considered three issues: whether the district court had properly found Churchill's criticisms of Waters, Davis and cross-training did not touch on a matter of public concern, whether the appellants' failure to determine that before firing her had been a due process violation and whether they were entitled to qualified immunity
from the suit since they argued there was no settled law on the subject. To resolve the first issue, he turned to the relevant case law
on the subject.
In 1968's Pickering v. Board of Education
, the Supreme Court had overturned the firing of an Illinois high-school teacher for writing a letter to the editor
in a local newspaper critical of the school board's handling of a recent tax increase. That case had established that public employees had First Amendment rights to "comment on matters of public interest in connection with the operations of the public [entity] in which they work." A decade later, Givhan v. Western Line Consol. School Dist. had extended that protection to an employee speaking privately to a superior about such issues.
The most important precedent
for Churchill's case was 1983's Connick v. Myers
, where the Court had upheld the dismissal of an assistant district attorney who had circulated questionnaires among her coworkers about office policy and named superiors in the wake of a transfer she had resisted. In that case the deciding issue had been that the questionnaire had largely concerned matters of personal, not public, concern. Coffey quoted that case's holding that courts "must determine the content, form, and context of a given statement, as revealed by the whole record." Circuit precedent, from shortly after Connick, held that the content of the speech was the most important of those three.
Under the Federal Rules of Civil Procedure
, the appeals court could not make a determination as to the content of the disputed speech. Instead, Coffey wrote, it would rule on the status of Churchill's speech, reviewing the record and considering it in the light most favorable to her, as the party in opposition to the motion for summary judgement.
"It is evident that the District Court's grant of summary judgment was in error," wrote Coffey. In her deposition, Churchill had discussed at length her criticisms of how cross-training had been implemented, and her concerns that the policy requiring a shower and change of clothes for nurses returning to the obstetric ward from another department was a possible violation of state regulations. "She was undoubtedly speaking about a matter of public concern", the judge concluded. He chastised the hospital for its apparent violations, quoting from and discussing at length the standards of the Joint Commission on Accreditation of Healthcare Organizations
on cross-training to demonstrate that this was a matter of public concern. "[T]he content of the speech is a question of fact for the jury," Coffey concluded.
Coffey turned next to the context, addressing Mihm's holding that under the Pickering balancing test
, the hospital was permitted to fire Churchill because her speech was sufficiently disruptive to it even if it had been on a matter of public concern. It was erroneous, he wrote, because it ignored Jean Welty's testimony that had corroborated Churchill's account of the conversation. Further, she had professional obligations to act under the code of the American Nursing Association, which Coffey quoted in relevant part. "Cheryl Churchill's actions fall far short of the actions of an insubordinate or problem employee", he wrote. "[Her] interest in fulfilling her duties and obligations as an ethical, responsible professional ... clearly outweighs the hospital's interests in interfering and ultimately preventing her from speaking out on important matters of public concern." Further, the animosity between Churchill and her superiors was, upon further examination, "nothing but a one sided demonstration of hostility toward Churchill."
The next argument Coffey considered was due process
. The Mt. Healthy defense raised by the hospital was that Churchill had not demonstrated that her speech was why she was fired. In response she had argued that the hospital violated her due process rights by not investigating the actual content of her speech. "We disagree" wrote Coffey, "that it is necessary to create a First Amendment due process right in order to protect the rights of public employees to speak out on matters of public concern, for we believe that Mt. Healthy provides adequate safeguards regardless of whether the employer actually knew the precise content of the statements for which it fired the employee."
The hospital believed it had overcome Mt. Healthy, since it claimed Churchill was fired for her general pattern of complaining rather than the conversation with Perkins-Graham. Coffey said that was a misreading of that holding, which was meant to protect conduct.
Lastly, he dismissed the defendants' claim to qualified immunity
, under which officials who engage in conduct which may later be found illegal are immune from prosecution or suit if they can demonstrate a lack of settled law on it at the time, for the same underlying reasons. "[I]n 1987 the law was clear that the speech of public employees while at work was protected under the First Amendment if it was about matters of public concern in connection with their workplace," Coffey wrote. "[W]e hold that ignorance of the nature of the employee's speech (in particular in light of the record before us) is inadequate to insulate officials from a § 1983 action."
The court amended its decision the day after handing it down. Two months later a motion for rehearing was denied. The appellees then petitioned the Supreme Court for certiorari
. In order to resolve a conflict the case had created with similar cases in other appellate circuits where qualified immunity was at issue,Atcherson v. Siebenmann, 605 F. 2d 1058, (8th Cir.
, 1979), judge granted qualified immunity when acting as administrator disciplining probation officer for letter alleging misconduct by coworkers; Wulf v. Wichita , 883 F. 2d 842 (10th Cir.
, 1989), reasonable police chief should have been aware that allegations of anti-union bias were protected speech; and Sims v. Metropolitan Dade County, 972 F. 2d 1230 (11th Cir.
, 1992), county officials should have been reasonably aware that off-duty sermon by employee in church was protected speech. the Court granted the request in 1993.
brief urging reversal, along with the International City/County Management Association
. Amici urging affirmance came from the National Education Association
and Southern States Police Benevolent Association. The National Employment Lawyers Assocation filed a brief that took neither side.
Oral arguments were heard in December of 1993. Lawrence Manson, arguing for the hospital and other original defendants as petitioners, was joined by assistant Solicitor General Richard Seamon. John Bisbee, who had represented Churchill and Koch from the beginning, argued their case.
Manson began by attacking the Seventh Circuit's "unprecedented holding". Churchill, he argued, had to show that the defendants were aware that her speech was protected. "[A]ll the defendants knew about was comments of personal matters, grievances against the supervisor." He quoted at length from Ballew's deposition to support that contention. If Churchill had wanted to contest the veracity of Ballew's report, she had the opportunity to do so when Davis fired her, but chose not to do so.
The justices challenged him at length on the implications of that theory, whether it would apply to a more clear-cut situation where the employer had acted on mistaken information. Manson insisted that under the Mt. Healthy rule that would not be a violation of the First Amendment. He also insisted that it covered a case where the motive for the firing was clearly the speech and not any other associated conduct. Seamon, too, was questioned on this as well, with the same result. "[I]n an employment at will
situation like this one, the Government can discharge an employee for any reason or no reason at all, as long as it is not motivated by a desire to retaliate against the employee for engaging in protected speech."
Bisbee was asked the same question, but preferred to focus on the facts of his case. He stressed that "[w]hat was reported to them was basically a headline: 'Things were bad in OB and the administration was responsible.'" Justice Sandra Day O'Connor
asked about the Pickering test: "Do you think that even protected speech could also serve to demonstrate sufficient disruption to the employer's operation that a firing could be justified?" Bisbee conceded that it could, but "it seems to me there has got to be some reasonable basis for thinking that the speech was doing that."
How, he was later asked, could the Seventh Circuit's holding that an employer could be held liable for adverse action against speech believed to be unprotected but later held otherwise be reconciled with qualified immunity
? "Number one, I disagree with that," he said. "Unfortunately that's the question cert was granted on", came the reply. Bisbee insisted that the record did not support that reading, that it was merely a dictum
and that he himself had not so argued.
When pressed about this again later, some sharp exchanges resulted. Bisbee said "the Court doesn't even really need to reach that question". "Suppose we think we need to reach that decision" he was told. "[W]e didn't take this case to determine who said what in the cafeteria. We determine this case to see what the rule of law ought to be if an employer acts on reasonable, substantiated information, but is wrong." Bisbee suggested that the Seventh Circuit had perhaps used "language that was broader than it needed to", to which O'Connor responded that it might need to be sent back since even he declined to defend their legal theory. "It seems to me that you can affirm the judgment and say that the legal test employed by the Seventh Circuit was not altogether correct," he proposed.
in a plurality opinion
. David Souter
, a member of that plurality, added a concurrence
of his own. Antonin Scalia
wrote a separate concurrence, joined by two other justices. John Paul Stevens
wrote for himself and Harry Blackmun
that the First Amendment was important enough that Churchill was entitled to the trial she sought to determine what she said.
, David Souter
and Ruth Bader Ginsburg
, held that the appeals court had proposed a test too onerous to the government to be broadly applied, but agreed that there was enough of a factual dispute over what Churchill had been fired for to remand the case to district court for that determination. Souter added a concurrence
clarifying that the employers can act against unprotected employee speech when they believe their facts about the speech to be true, rather than just the result of a reasonable investigation. He also noted that, since the plurality holding had been joined by the other majority justices in one aspect and the dissenting justices in another, it was in fact a majority opinion
.
In a separate concurrence, Antonin Scalia
wrote for himself, Clarence Thomas
and Anthony Kennedy
that adverse personnel actions for speech by public employees violate the First Amendment
only when their purpose is clearly retaliatory, as he believed it had been in Pickering
. He attacked the plurality opinion as creating a poorly defined procedural requirement that might well prove unworkable in practice.
O'Connor rejected the narrower protection Scalia advocated in his concurrence. "Speech can be chilled and punished by administrative action as much as by judicial processes; in no case have we asserted or even implied the contrary." To the plurality, however, it did not follow that all possible procedural review was constitutionally necessary. The Court had in some past defamation cases declined to apply the actual malice
standard, even though doing so would strengthen free-speech protections, she noted.
It was, O'Connor agreed with Scalia, inconvenient that no general test existed for these cases. So, "[w]e must therefore reconcile ourselves to answering the question on a case-by-case basis, at least until some workable general rule emerges." The general principle, from Pickering and previous cases had established that "the government as employer indeed has far broader powers than does the government as sovereign". No one, she suggested, would dispute that a government agency could bar its employees from wearing, on the job, clothing decorated with profanity
, despite the Court's Cohen v. California
holding that such behavior could not sustain a prosecution for disorderly conduct
. The Court had also upheld the Hatch Act
's limitations on political activity by federal employees on several occasions, she noted.Broadrick v. Oklahoma
, ; United States Civil Service Commission v. National Association of Letter Carriers
, and United Public Workers v. Mitchell
, .
Those past cases, O'Connor continued, had shown deference to the government's opinion of what speech acts by employees in the workplace would be disruptive to the government's interest in providing public services efficiently, again in ways the Court had not with cases concerning speech in general.
The Seventh Circuit's requirement "would force the government employer to come to its factual conclusions through procedures that substantially mirror the evidentiary rules used in court", O'Connor wrote. Hearsay
evidence might not be usable, and credibility judgements might not be shared by a jury or judge. Yet both were regularly used by both public and private employers in making personnel decisions. "Government employers should be allowed to use [them], without fear that these differences will lead to liability."
What O'Connor did allow was that the public employer's decision must be the result of "the care that a reasonable manager would use before making an employment decision". She again responded to Scalia, who had said precedent made that standard applicable only where the employment had some sort of contractual basis and was not at-will
or probationary. "We believe that the possibility of inadvertently punishing someone for exercising her First Amendment rights makes such care necessary." She then addressed Stevens' claim in dissent that this was less protection than the Court had required for lesser rights. "We have never held that it is a violation of the Constitution for a government employer to discharge an employee based on substantively incorrect information. Where an employee has a property interest in her job, the only protection we have found the Constitution gives her is a right to adequate procedure."
Applying this analysis to the facts of the case, she concluded that hospital management had made a reasonable decision of what Churchill had said before firing her.
And what they believed Churchill to have said, under Connick, was disruptive enough to justify adverse action regardless of whether it addressed a public concern, which the plurality declined to decide. "Discouraging people from coming to work for a department certainly qualifies as disruption." Perkins-Graham herself had told Davis she didn't think the hospital could "tolerate that kind of negativism" much longer, and if Churchill had indeed denied the possibility of getting along with Waters, Churchill's continued effectiveness as a nurse under Waters' supervision could be reasonably expected to be diminished.
Despite this, O'Connor agreed with Churchill and the Seventh Circuit that Mihm had erred in granting summary judgement against the nurse. "[She] has produced enough evidence to create a material issue of disputed fact about petitioners' actual motivation." It was possible that a trier of fact could find, in certain other actions by the hospital management, evidence that her non-disruptive, and therefore protected, criticisms of the implementation of the cross-training policy. That conclusion foreclosed the need to decide the qualified immunity
question that had been discussed so heavily at oral argument. The Seventh Circuit's decision was vacated and the case remanded to district court to decide what action of Churchill's had motivated the firing.
, one of the four justices in the plurality, added his own concurrence
. He wished "to emphasize that, in order to avoid liability, the public employer must not only reasonably investigate the third-party report, but must also actually believe it." Without that criterion, he argued, the government "can assert no legitimate interest strong enough to justify chilling protected expression." That left it open for Churchill to argue on remand that the putatively disruptive speech issue was merely a pretext for an unjustified, retaliatory firing over her criticisms of the cross-training implementation.
He also clarified that the plurality's holding was the one lower courts should look to in future cases, per the standard for divided majority opinion
s announced in the 1977 obscenity case Marks v. United States. Seven justices agreed that public employers who acted on a reasonable belief of the content of employee speech had met their constitutional burden, and the plurality and dissent both supported a view that public employers who did not had violated the First Amendment. Therefore, the plurality was in fact a majority with its components joined by different justices.
began, "of a broad new First Amendment procedural right is in my view unprecedented, superfluous to the decision in the present case, unnecessary for protection of public-employee speech on matters of public concern, and unpredictable in its application and consequences." He agreed that sometimes procedures were necessary to protect First Amendment rights. Most of the cases the plurality had cited were from defamation law, which was primarily enforced through litigation, thus making procedural safeguards a necessary subject of discussion.
"Although we are assured that 'not every procedure that may safeguard protected speech is constitutionally mandated,' the implication of that assurance is that many are'" Scalia continued. The plurality had provided little guidance in that area. He could not reconcile this due-process requirement with other casesScalia specifically cites Board of Regents of State Colleges v. Roth
, , in this regard. where the Court had ruled that at-will public employees, lacking a property interest in their jobs, were not entitled to this level of process in adverse personnel actions. He found it absurd that there was no need to investigate if the dismissal was for other causes, whether erroneously believed or not., But if speech was involved, the matter would have to be investigated, after which an adverse action could proceed, even if the investigation had produced inaccurate information about the content of the speech, as long as it did not touch on matters of public concern.
Scalia argued that the plurality had not created new procedural protections for the First Amendment, "but rather new First Amendment rights". Pickering had held that public employees must be free to speak on issues of public concern without fear of retaliation, and he considered that the important factor. "A category of employee speech is certainly not being 'retaliated against' if it is no more and no less subject to being mistaken for a disciplinable infraction than is any other category of speech or conduct." He found the procedural test "doubly irrelevant" since not only had the plurality found the hospital to have satisfied it, they then remanded the case so the district court could conduct a trial on whether the speech was a pretext for a retaliatory firing. Since that had been the end result of Mt. Healthy he found no need for a new requirement in this case, and cited other areas where the Court had found a pretext inquiry sufficient to protect constitutional rights.
In response to Stevens' dissent, he said such an inquiry had been held constitutionally inadequate only where there was a contractual relationship, which Churchill did not have. "An employee dismissable at will can be fired on the basis of an erroneous factual judgment, with no legal recourse—which is what happened here." Her only protection was the Pickering holding that she could not be retaliated against, and the plurality was not so much reinforcing that as expanding it to cover employer mistakes.
The plurality opinion "provides more questions than answers, subjecting public employers to intolerable legal uncertainty", Scalia concluded. He went through all the hypothetical questions they would have to ask under the decision, and possible remedies that might be derived from it due to the lack of guidance on the question. "Loose ends are the inevitable consequence of judicial invention", he wrote. "We will spend decades trying to improvise the limits of this new First Amendment procedure that is unmentioned in text and unformed by tradition."
Stevens believed there was no real factual dispute as to the basis of Churchill's termination—the dinner-break conversation. The Court had to assume it was protected speech, per procedure, but the plurality had concluded that what mattered was that the hospital reasonably believed it was not. "This conclusion is erroneous because it provides less protection for a fundamental constitutional right than the law ordinarily provides for less exalted rights, including contractual and statutory rights applicable in the private sector."
Had Churchill been a contractual employee, fired in the mistaken belief that she had failed to perform her job adequately, she would have been entitled to relief, he noted. "Ordinarily, when someone acts to another person's detriment based upon a factual judgment, the actor assumes the risk that an impartial adjudicator may come to a different conclusion". The Court, he noted, had done just that in National Labor Relations Board v. Burnup & Sims, Inc., when it upheld the board's order to reinstate two workers fired in the mistaken belief that they had threatened violence if a union certification vote failed.
Stevens criticized Scalia's approach as derived solely from the use of the word "retaliation" in the cases Scalia had cited. In all those cases, there had been no factual dispute over the content of the speech. Two, Pickering and Perry v. Sindermann
suggested that a "causal connection between the employee's speech and her discharge is all the 'retaliation' that must be shown."
Stevens saw the issue in very stark terms.
Since disagreements among employees were inevitable, the plurality's rule "invites discipline, rather than further discussion, when such disputes arise." In conclusion, he said, the First Amendment "requires that, before firing a public employee for her speech, management get its facts straight."
instead of a disciplinary action against a single employee for actual speech. Following Waters he find the government's predictions of disruption if the statute unwarranted.
O'Connor wrote a separate concurrence
noting that this case was an instance of the limits on deference to the government as employer she had recognized in Waters. "As the magnitude of intrusion on employees' interests rises, so does the Government's burden of justification ... In this case ... the Government has exceeded the limits of its latitude". Chief Justice William Rehnquist
, writing for the dissenters, argued that the majority overemphasized the Waters test at the expense of the balancing of individual and government interests required by Pickering.
), neither has involved a factual dispute over the substance of the speech. Its holding that the government has a lower constitutional burden as employer than as sovereign has been reiterated in those cases, and it has also appeared in cases involving other constitutional claims by public employees, particularly the Fourth Amendment
.
That holding has also been cited many times by lower courts. At the appellate level, there have been several notable cases where Waters has factored into the analysis, sometimes helping to decide the case, and in others allowing judges to develop aspects of the holding in greater depth. Two cases concerned academic freedom
and political correctness
. Others involved same-sex marriage
and satanic ritual abuse
.
The Waters decision had an immediate effect on a case arising from an academic controversy in New York. Following a 1991 speech making assertions that Jews sponsored the slave trade
and controlled the media, Leonard Jeffries
, chairman of the African-American studies department at the City College of New York
(CCNY), was terminated from the chairmanship prior to the end of his three-year term by the City University of New York
(CUNY) trustees although he retained his professorship. CUNY administrators claimed they did so for other reasons unrelated to the speech. He sued, was awarded damages, and the Second Circuit
upheld the verdict in 1993.
After Waters, the university petitioned the Supreme Court for certiorari
. The Supreme Court told the Second Circuit to reconsider the case in light of that holding. In 1995, the Second Circuit reversed its original ruling, finding that under Waters the College could have reasonably considered Jeffries' speech disruptive enough to justify adverse action. Judge Joseph M. McLaughlin
interpreted Waters to hold, relevant to the Jeffries case, "that the closer the employee's speech reflects on matters of public concern, the greater must be the employer's showing that the speech is likely to be disruptive before it may be punished".
The first appellate decision had held that the university had failed to show actual disruption to its operations by the speech. "Waters pulls a crucial support column out from under our earlier Jeffries opinion", McLaughlin wrote, by lowering the requirement to demonstrate only the likelihood. Since the jury had found that a majority of the CUNY trustees voted to end his chairmanship for that reason, his First Amendment rights had not been abridged. McLaughlin also rejected an argument in an amicus brief that Jeffries' academic freedom
deserved greater protection than Churchill's, since he was tenured and retained his professorship.
In fall 1991 two students in the History Club at the University of Minnesota Duluth
had the idea to photograph professors in the history department with props that represented their specialties for a display near the department offices. Department chairman Albert Burnham, the club's advisor and a specialist in American military history, wore a coonskin cap
while brandishing a .45-caliber military pistol. Ronald Marchese, who specialized in classical antiquity
, was photographed with an ancient Roman sword and laurel wreath. A month after the display was installed, the university's chancellor
, Lawrence Ianni, ordered the two photographs removed after complaints from female administrators and faculty, some of whom had been targeted by an anonymous public harassment campaign that year over Ianni's establishment of a Commission on Women. The professors and students sued, and won partial summary judgement holding that Ianni did not have qualified immunity
. The defendants cited Waters, but Judge Michael J. Davis
ruled that it was not relevant since the case did not involve an adverse employment action.
The Eighth Circuit
reversed on appeal. Theodore McMillian
relied on Waters to give weight to the chancellor's fears of disruption in light of the harassment campaign, noting that "It cannot seriously be disputed that, during that spring 1992 semester, the atmosphere on campus was more tense than normal." Clarence Arlen Beam
rejected that analysis in his dissent, saying those fears were "based on conclusory hearsay and rank speculation".
An en banc
rehearing in turn reversed that panel. Beam reiterated his arguments in the majority opinion. McMillian, dissenting along with John R. Gibson
, who had joined him in the original panel, wrote that the majority had understated the effect of the harassment on the campus in assessing the potential for disruption. Despite the lack of adverse action, it was "no less an employment-related case" than Waters and its related cases, he argued. Ianni, who they felt had qualified immunity
in any event due to the lack of settled law where academic freedom was concerned, had had to make a choice between two subordinates' conflicting interests. The messages conveyed by the photographs could clearly have been conveyed through other means, they observed.
case brought against Georgia Attorney General Mike Bowers
by a woman to whom he had withdrawn a job offer after learning of her plans for a lesbian wedding
in 1991, saying it would reflect badly on his office in public opinion to have an employee whose lifestyle involved regularly violating Georgia law against sodomy
. After Northern District of Georgia
senior judge Richard Cameron Freeman
granted Bowers summary judgement on her First and Fourteenth Amendment claims, she appealed. A three-judge panel agreed her right to intimate association had been violated and remanded to have that claim considered under a strict scrutiny
standard.
In a partial concurrence with John Cooper Godbold
's holding, Judge Phyllis A. Kravitch
looked to Waters, then a new decision. Its lower constitutional standard for the government as employer led her to conclude that the Pickering balancing test should be applied to the intimate-association claim rather than strict scrutiny, as the district court had done. "[T]he employer's assessment of harm" she wrote, "should be discounted by the probability of its realization in order to weigh it fairly against an actual burden on an employee's constitutional rights. This was in keeping with circuit precedent regarding Connick.
A petition for rehearing en banc
was granted in late 1995. In writing for a majority that upheld the district court absolutely, Judge J.L. Edmondson
applied the Pickering test as Kravitch had argued. He cited Waters as requiring "substantial weight" be given to the concerns of Bowers and his senior aides that Shahar's wedding ceremony would reflect adversely on his office and its ability to fulfill its duties. Therefore they did not have to make "a particularized showing of interference with the provision of public services" as Shahar argued.
Three of the four dissenting judges took up Waters. In a dissent joined by Godbold, Kravitch responded that while it did require great deference to public-employer concerns, neither did it require "that courts must accept blindly all claims of harm conjured by government employers" since they could evaluate whether they were reasonable or not. Shahar, she observed, wasn't claiming her marriage was a legally-recognized one, and had been discreetly held in another state with no media attention, which Bowers should have known before rescinding the job offer. Therefore, his adverse action was unreasonable and "his predictions regarding intra-office strife do not weigh very heavily in the balance."
Judge Stanley Birch went even further in his dissent, also joined by Kravitch and Godbold. In the wake of the Supreme Court's Romer v. Evans
holding that homosexuals as a class were entitled to at least some rights under the Equal Protection Clause
, he argued that all of Bowers' fears of disruption under Waters ultimately arose from her status as a lesbian and were thus not a legitimate basis for state action.."
Rosemary Barkett
accused the majority of using Waters to effect a "wholesale restructuring of Pickering". The only issue in Waters, she wrote, had been whether to decide the case on the basis of what the employer reasonably believed was said or what a jury found was said. Like Birch and Kravitch, she found that case supported Shahar's position, since she did not find Bowers' investigation reasonable. "Waters asserts Pickering' s principles and reiterates the necessity for constitutionally enforced processes to protect the rights of government employees."
made it part of a two-fold test with Connick in Wright v. Illinois Department of Children & Family Services, a complicated case in which a child-welfare worker accused her employer of retaliating against her after she complained it was covering up evidence of satanic ritual abuse
she had found. He read it as making clear that "not every utterance by a public employee, even if entitled to First Amendment protection in another context, is constitutionally shielded from employer discipline." As a result, the case considered only the speech for which the plaintiff had been disciplined, and held that in one instance the defendants would prevail if they showed their belief that she had perjured
herself in court testimony was reasonable even if the testimony later was found to be truthful.A Tenth Circuit
panel also considered this possibility in a later case (Deutsch v. Jordan, 618 F.3d 1093, 1102, note 3 (10th Cir., 2010)), but came to the conclusion it did not need to decide it for lack of jurisdiction.
After an extensive analysis finding that truthful trial testimony was protected speech, which culminating in find a genuine factual dispute on the issue and thus overturning the summary judgement initially granted by the district court, Flaum echoed one of Scalia's criticisms in a footnote. "Waters provides little direct guidance as to the division of labor between judge and jury in a case like this one," he observed. "The critical question that, to this point, remains unanswered requires an assessment of the defendants' subjective motivation, a classic jury issue."
considered Lewis v. Cowen, a case in which the former director of the Connecticut Lottery
claimed his dismissal for not speaking violated his First Amendment rights. The appellant was dismissed after refusing to prepare changes to the lottery he had privately expressed reservations about. Without any actual speech to apply the Pickering–Connick tests to, Judge John Walker
held that behavior fell under Waters since it adversely affected the lottery's operations. "In such a case, the agency may terminate the employee because a more compliant subordinate who agrees to publicly support and convey the agency's positions would allow the agency to do the job more effectively."
Waters forced the Third Circuit
to no longer require that public employers show actual disruption. In Watters v. Philadelphia, it overturned summary judgment against the administrator of a police department's employee assistance program
who had told a local newspaper there was a "crisis" in the program due to the lack of key official policies, and been fired. "Disruption caused by actions independent of the speech at issue cannot be equated with disruption caused by the speech itself", wrote Dolores Korman Sloviter.
The Sixth Circuit
found Waters very similar to a 2006 case it heard, Farhat v. Jopke. A Michigan school custodian fired after a long history of abusive communications with administrators and his union, which sometimes included threats of violence, was found to have engaged in unprotected speech. "[E]ven if portions of appellant's expression did address matters of public concern," wrote William O. Bertelsman, "the disruptiveness of his speech in the workplace outweighed any value his expression might have had."
. However, Madden cautioned, this would depend on how lower courts interpreted the case.
A.N. Moshirnia sees Waters as a further erosion, along with Mt. Healthy and Connick, of the rights of educators affirmed in Pickering, which "may have indicated the zenith of First Amendment protection for public employee speech." After the later cases imposed some other barriers to a public-employee plaintiff, Waters, Moshirnia said, "dramatically reduced the government’s trial burden by permitting the government to justify its employment action with less than conclusive evidence." He also thought it could be used for prior restraint
since, in his analysis, a public employer could "fire an employee before he or she has spoken in cases where the government knows the general contours of the speech, and predicts that it might cause a disruption.
Charles W. Hemingway, a Virginia federal employment lawyer, took up O'Connor's question about the unique nature of government employment that allows the lower constitutional obligation. Looking over older Supreme Court jurisprudence on the subject, he observed that "Employees who are appointed in the federal service act as agents of the sovereign and thereby accept both the powers and the obligations imposed on the sovereign itself. To enable our government to function properly and to promote the public good, federal employees must be under stricter authority of the sovereign than private citizen[s]." He found its source in the authority of the government over military personnel. While civilian employees enjoyed greater liberty than soldiers, the Court had ruled they were both under the same authority.Hemingway cites Butler v. Pennsylvania Canal Commission, ; United States v. Hartwell, and Blake v. United States, .
For most of the country's history, Hemingway wrote, federal employees were appointees, employed at will, with no legal recourse against adverse actions due to the federal government's sovereign immunity
. That began to change in the late 19th century with the Pendleton Act. Over the course of the 20th century Congress expanded the protections of federal employees, to the point that by the 1990s they had the same legal recourse against discrimination
as employees in the private sector, with five separate administrative agenciesThe Office of Personnel Management
, Federal Labor Relations Authority
, United States Merit Systems Protection Board
, Equal Employment Opportunity Commission
and the Office of Special Counsel. empowered to hear employee complaints and grant relief.
Those rights have come with restrictions private workers are not subject to. In the late 1930s Congress passed the Hatch Act
, limiting political activity by federal employees, and it has been upheld by the Supreme Court on several occasions. Federal employees, though in some cases unionized, are also not allowed to strike
, a restriction upheld by a district court.United Federation of Postal Clerks v. Blount, 325 F.Supp 879 (D.D.C.
, 1971). The 1978 Ethics in Government Act
imposed other restrictions on federal employees that sometimes go beyond the term of their employment. Lastly, the federal government's sovereign immunity means it can only be sued where such actions are permitted by statute.
He reviewed actions of the Merit Systems Protection Board
(MSPB), the administrative body that hears most claims by federal employees, and the Federal Circuit
, which hears appeals from the MSPB and the other agencies, in light of Waters and United States v. National Treasury Employees Union. Recounting the differences between O'Connor and Scalia, he advised federal managers to follow O'Connor's approach pending later jurisprudence. "[I]t is clear that Waters expands federal employee due process rights while attempting to reserve for public managers the ultimate ability to determine whether public employee speech detracts from the Government's ability to perform its mission.
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
rights of public employees in the workplace. By a 7–2 margin the justices held that it was not necessary to determine what a nurse at a public hospital had actually said while criticizing a supervisor's staffing practices to coworkers, as long as the hospital had formed a reasonable belief as to the content of her remarks and reasonably believed that they could be disruptive to its operations. They vacated
Vacated judgment
A vacated judgment makes a previous legal judgment legally void. A vacated judgment is usually the result of the judgment of an appellate court which overturns, reverses, or sets aside the judgment of a lower court....
a Seventh Circuit Court of Appeals
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
ruling in her favor, and ordered the case remanded to district court to determine instead if the nurse had been fired for the speech or other reasons, per the Court's ruling two decades prior in Mt. Healthy City Bd. of Ed. v. Doyle.
The case had first been brought by Cheryl Churchill, a nurse in the obstetrics
Obstetrics
Obstetrics is the medical specialty dealing with the care of all women's reproductive tracts and their children during pregnancy , childbirth and the postnatal period...
ward at McDonough District Hospital, operated by the city of Macomb, Illinois
Macomb, Illinois
Macomb is a city in and the county seat of McDonough County, Illinois, United States. It is situated in western Illinois southwest of Galesburg. The population was 18,588 at the 2000 census. Macomb is the home of Western Illinois University.- Geography :...
. During a dinner break one night in early 1987, she had been talking with another nurse who was considering transferring to obstetrics. In that conversation she made statements critical of cross-training
Cross-training (business)
Cross-training in business operations involves training employees to engage in quality control measures. Employees are trained in tangent job functions to increase oversight in ways that are impossible through management interactions with workers alone....
practices recently implemented by the hospital's nursing supervisor, Cindy Waters, and referred to personal issues between the two. Another nurse who overheard the conversation believed Churchill's comments about Waters had dissuaded her interlocutor from the transfer, and reported it to Waters. After an investigation in which Churchill alleged she was never asked about what she had said, she was fired
Termination of employment
-Involuntary termination:Involuntary termination is the employee's departure at the hands of the employer. There are two basic types of involuntary termination, known often as being "fired" and "laid off." To be fired, as opposed to being laid off, is generally thought of to be the employee's...
.
There were four separate opinions. Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
wrote for a four-justice plurality
Plurality opinion
A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
that the government has a lower obligation to respect constitutional rights when it acts as employer rather than as the sovereign. Accordingly, in that situation it should not be required to meet a due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
standard greater than the reasonableness of its own finding of fact. David Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
added a short concurring opinion
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
qualifying the plurality, which he said was in fact a majority, with his insistence that in such cases the government must demonstrate that its understanding of what the employee said was not only a reasonable belief but a truthful one. Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
concurred as well, but harshly criticized O'Connor's opinion. He read it as requiring a procedural handling of every possible adverse personnel action where First Amendment rights might be implicated, providing "more questions than answers". John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
' dissent
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
argued that the First Amendment required that the lower court determine exactly what Churchill had said before ruling on whether it was protected.
Outside commentators have also been critical of the decision, since it might discourage whistleblowers. In addition to echoing Stevens' concerns, they have seen it as abandoning any concern for the truth, imposing a heavy burden on a plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
, relying on an overly narrow conception of the public's interest, and possibly discouraging people from entering public service. The decision resulted in a lower court changing its ruling in a high-profile case involving controversial academic Leonard Jeffries
Leonard Jeffries
Leonard Jeffries Jr. is an American professor of black studies at the City College of New York, part of the City University of New York. He achieved national prominence in the early 1990s for his controversial statements about Jews and other white people...
.
Underlying dispute
Churchill had been hired as a part-time nurse at McDonough in 1982, and promoted to full-time status three years later. She worked for the next two years in the obstetricsObstetrics
Obstetrics is the medical specialty dealing with the care of all women's reproductive tracts and their children during pregnancy , childbirth and the postnatal period...
ward. She had generally received favorable performance evaluation
Performance Evaluation
Performance Evaluation is an international journal published by Elsevier. The current Editor-in-chief is Philippe Nain. The journal was previously published by North-Holland Publisher.-Editors:*1981–1986 Hisashi Kobayashi*1987–1990 Martin Reiser...
s until Waters became her supervisor in the middle of 1986.
That happened a few months after Kathy Davis took over as the hospital's vice president of nursing. Waters had been implementing Davis's policy of cross-training
Cross-training (business)
Cross-training in business operations involves training employees to engage in quality control measures. Employees are trained in tangent job functions to increase oversight in ways that are impossible through management interactions with workers alone....
, under which nurses in areas that were overstaffed on a particular shift were reassigned to departments that needed more nurses. Churchill was one of several employees who had voiced objections to the way the policy was being implemented. She and other critics feared that it was primarily being used to address staffing shortages without providing adequate training, with detrimental effects on patient care.
Churchill's criticisms had been long voiced by one of the hospital's obstetricians, Dr. Thomas Koch. During a 1982 malpractice
Medical malpractice
Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Standards and...
suit he had blamed a stillbirth
Stillbirth
A stillbirth occurs when a fetus has died in the uterus. The Australian definition specifies that fetal death is termed a stillbirth after 20 weeks gestation or the fetus weighs more than . Once the fetus has died the mother still has contractions and remains undelivered. The term is often used in...
on nursing shortages created, he alleged, by hospital policies, and had continued the criticism since then. Churchill and he became friends and allies, with her providing inside information on nursing policies that he then used to criticize the administration. She believed this incurred her the enmity of administrators who by summer of 1986 were keeping a file of criticisms of Koch made by Davis and nursing supervisor Cindy Waters.
That August, an incident occurred that bore out Churchill and Koch's concerns, and began the sequence of events that led to the lawsuit. During a difficult delivery, Koch called for a "Code pink
Hospital emergency codes
Hospital Emergency Codes are used in hospitals worldwide to alert staff to various emergency situations. The use of codes is intended to convey essential information quickly and with a minimum of misunderstanding to staff, while preventing stress or panic among visitors to the hospital...
" emergency, indicating danger to the life of mother and/or child. A probationary
Probation (workplace)
In a workplace setting, probation is a status given to new employees of a company or business.It is widely termed as Probation Period of an employee...
nurse, Mary Lou Ballew, did not know how to properly signal the emergency and did not alert all the necessary personnel. Churchill responded and helped Koch prepare for an emergency Cesarean section.
After the surgery, Churchill was completing paperwork in the delivery room when Waters looked in on a patient in the early stages of labor Churchill had been attending to across the hall. She ordered Churchill to check on that patient. Churchill responded "You don't need to tell me what to do", and then complied with the order. Koch was very upset by this interference. At a meeting the next day with Waters and Stephen Hopper, the hospital's president and chief executive officer
Chief executive officer
A chief executive officer , managing director , Executive Director for non-profit organizations, or chief executive is the highest-ranking corporate officer or administrator in charge of total management of an organization...
, he criticized Waters' conduct and the effect of the cross-training policies.
Churchill was later given a written warning for insubordination
Insubordination
Insubordination is the act of willfully disobeying an authority. Refusing to perform an action that is unethical or illegal is not insubordination; neither is refusing to perform an action that is not within the scope of authority of the person issuing the order.Insubordination is typically a...
; she chose not to either make a written response or file a grievance
Grievance (labour)
In a trade union, a grievance is a complaint filed by an employee which may be resolved by procedures provided for in a collective agreement or by mechanisms established by an employer...
, which she had the right to do, as she "did not want to make mountains out of molehills". Waters' annual evaluation of Churchill was overall positive, but noted an increasing antipathy toward her. In January of 1987, a cross-trainee, Melanie Perkins-Graham, mentioned to Churchill over dinner during a meal break, with Koch present, that she was considering transferring to obstetrics. The exact nature of the ensuing conversation was central to the ensuing dispute.
Since the break room was located immediately behind the main nurse's station in obstetrics, others overheard all or part of it. Ballew, whose work-related absences from the nurses' station limited her exposure to the conversation, and head nurse Jean Welty, were among them. The next morning Ballew told Davis that Churchill had spent 20 minutes "knocking the department" and specifically criticizing Waters and Davis, saying the former was trying to get her fired and the latter "was going to ruin this hospital". After the conversation, Ballew claimed, Perkins-Graham was no longer interested in transferring. The morning afterwards, Davis asked Perkins-Graham to tell her about the conversation.
Perkins-Graham told her that Churchill "had indeed said unkind and inappropriate negative things about Cindy Waters" and confirmed the complaints about the ward and the criticism of Davis. Davis decided to fire
Termination of employment
-Involuntary termination:Involuntary termination is the employee's departure at the hands of the employer. There are two basic types of involuntary termination, known often as being "fired" and "laid off." To be fired, as opposed to being laid off, is generally thought of to be the employee's...
Churchill for what she considered continued insubordination, but did not do so until after she had consulted with Waters, Hopper and the hospital's personnel director. Churchill appealed to Hopper, her only recourse
Legal recourse
A legal recourse is an action that can be taken by an individual or a corporation to attempt to remedy a legal difficulty.* A lawsuit if the issue is a matter of civil law* Many contracts require mediation or arbitration before a dispute can go to court...
under the hospital's employee policy, but after a meeting with her and the personnel director he told her that the negative evaluation the month before counted as a second written warning and thus her termination had followed the proper process
Progressive Discipline
Progressive Discipline is a system of discipline where the penalties increase upon repeat occurrences.This term is often used in an employment or human resources context where rather than terminating employees for first or minor infractions, there is a system of escalating responses intended to...
.
Litigation
Waters took her case to federal court. Her suit in the Central District of IllinoisUnited States District Court for the Central District of Illinois
The U.S. District Court for the Central District of Illinois serves the residents of forty-six counties from its four courthouses...
in Peoria
Peoria, Illinois
Peoria is the largest city on the Illinois River and the county seat of Peoria County, Illinois, in the United States. It is named after the Peoria tribe. As of the 2010 census, the city was the seventh-most populated in Illinois, with a population of 115,007, and is the third-most populated...
named Waters, Davis, Hopper and the hospital as defendants. She alleged violations of her First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
right to free speech and Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
right to due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
under Section 1983, and breach of contract
Breach of contract
Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
under Illinois law.
No trial was actually held. After all witnesses had been deposed
Deposition (law)
In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...
, Judge Michael M. Mihm
Michael M. Mihm
Michael Martin Mihm is an incumbent United States federal judge on the United States District Court for the Central District of Illinois, with chambers in Peoria, Illinois. He became a judge in 1982 by way of nomination by President Ronald Reagan...
considered motions for summary judgement, granting them for the defense. Churchill appealed, and won a reversal.
District court
In a depositionDeposition (law)
In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...
, Churchill gave her version of the break room conversation she had had with Perkins-Graham that had led to her dismissal. She had repeated her earlier criticisms, which were not of cross-training in itself but merely the way Davis had implemented it. A specific concern of hers was the hospital's requirement that obstetric nurses who had reassigned to another department shower and change before returning to obstetrics, in an apparent effort to circumvent a regulatory requirement that nurses assigned to obstetrics remain there for an entire shift or not return if they were temporarily assigned elsewhere.
As to whether her comments about Waters had been as continuous and negative as Perkins-Graham and Ballew had asserted, Churchill testified that she had not had a problem with Waters and felt she could have a good working relationship with her. Welty, the chief shift nurse on duty that night, who had overheard most of the conversation from the nearby nurses' station, corroborated Churchill's version. She further recalled that Perkins-Graham had said she had only one reservation about transferring to obstetrics—Waters. Churchill, Welty testified, had actually defended Waters, saying she had a difficult job and was sometimes moody, but that could be accommodated.
After the depositions had been taken and briefs
Brief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....
filed, the defendants moved for summary judgement. Judge Michael M. Mihm
Michael M. Mihm
Michael Martin Mihm is an incumbent United States federal judge on the United States District Court for the Central District of Illinois, with chambers in Peoria, Illinois. He became a judge in 1982 by way of nomination by President Ronald Reagan...
granted it on all but the First Amendment claim. Much of his opinion, handed down in early 1990, consisted of a lengthy explication of Illinois case law on contract formation
Offer and acceptance
Offer and acceptance analysis is a traditional approach in contract law used to determine whether an agreement exists between two parties. Agreement consists of an offer by an indication of one person to another of the offeror's willingness to enter into a contract on certain terms without...
as it applied to language in the hospital's employee handbook. He held that it did not constitute a firm offer
Firm offer
A firm offer means an irrevocable offer made by a merchant. As a general rule, all offers are revocable at any time prior to acceptance, even those offers that purport to be irrevocable on their face...
of continued employment and thus could not be considered a contract Churchill had become party to by continuing to work once aware of its terms. Since there was no contract to breach, there could be no denial of due process rights. He could not grant summary judgement on the First Amendment claim since there was a factual dispute in that area, and ordered a status conference
Status conference
A status conference is a court-ordered meeting with a judge where they decide the date of the trial....
to be held the next month with a magistrate
Magistrate
A magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...
.
Churchill then moved for summary judgement on the remaining claim, arguing that she had been fired without a determination that she had been engaging in protected speech on a matter of public concern, and that her rights to freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
with Dr. Koch had also been abridged, in violation of her due process rights. The defendants cross-moved for the same, arguing failure to state a claim
Demurrer
A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection...
on the free-association claim. They denied she had been engaging in protected speech, and that even if it were, she would still have been fired for undermining the hospital administration.
Mihm found Churchill's speech "inherently disruptive". Echoing Perkins-Graham's description of it as a "bitch session", and noting "history of hostility between Churchill and her supervisors", he found she intended "not to inform but rather to gripe." He entered judgement for the defendants.
Appeal
Churchill then appealed Mihm's ruling to the Seventh Circuit Court of AppealsUnited States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
. Koch, whom she married in 1991, joined the case as an appellant, arguing that Waters, Davis and Hopper had tried to have his privileges revoked as retaliation for his role in the incident. A three-judge panel of Richard Dickson Cudahy
Richard Dickson Cudahy
Richard Dickson Cudahy is a United States federal judge.Born in Milwaukee, Wisconsin, Cudahy received a B.S. from the United States Military Academy at West Point, New York in 1948, and a J.D. from Yale Law School in 1955. He was a Lieutenant in the United States Army Air Corps from 1948 to 1951....
, John Louis Coffey
John Louis Coffey
John Louis Coffey is a United States federal judge.Born in Milwaukee, Wisconsin, Coffey received a B.A. from Marquette University in 1943 and was in the United States Navy during World War II, from 1943 to 1946. He received a LL.D. from Marquette University Law School in 1948. He was an Assistant...
and Daniel Anthony Manion
Daniel Anthony Manion
Daniel Anthony Manion is a Judge on the United States Court of Appeals for the Seventh Circuit.Manion received his B.A. from the University of Notre Dame in 1964. At Notre Dame, Manion was a participant in the Bengal Bouts. Following graduation, Manion served in the Army in the Vietnam War...
heard the case in February 1992. Eight months later, they ruled in favor of Churchill.
Coffey's opinion considered three issues: whether the district court had properly found Churchill's criticisms of Waters, Davis and cross-training did not touch on a matter of public concern, whether the appellants' failure to determine that before firing her had been a due process violation and whether they were entitled to qualified immunity
Qualified immunity
Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 . Qualified immunity shields government officials from liability for the...
from the suit since they argued there was no settled law on the subject. To resolve the first issue, he turned to the relevant case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
on the subject.
In 1968's Pickering v. Board of Education
Pickering v. Board of Education
Pickering v. Board of Education, 391 U.S. 563 , was a case in which the Supreme Court of the United States held that in the absence of proof of the teacher knowingly or recklessly making false statements the teacher had a right to speak on issues of public importance without being dismissed from...
, the Supreme Court had overturned the firing of an Illinois high-school teacher for writing a letter to the editor
Letter to the editor
A letter to the editor is a letter sent to a publication about issues of concern from its readers. Usually, letters are intended for publication...
in a local newspaper critical of the school board's handling of a recent tax increase. That case had established that public employees had First Amendment rights to "comment on matters of public interest in connection with the operations of the public [entity] in which they work." A decade later, Givhan v. Western Line Consol. School Dist. had extended that protection to an employee speaking privately to a superior about such issues.
The most important precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
for Churchill's case was 1983's Connick v. Myers
Connick v. Myers
Connick v. Myers, , is a United States Supreme Court decision concerning the First Amendment rights of public employees who speak on matters of possible public concern within the workplace context. It was first brought by Sheila Myers, an Orleans Parish, Louisiana, assistant district attorney...
, where the Court had upheld the dismissal of an assistant district attorney who had circulated questionnaires among her coworkers about office policy and named superiors in the wake of a transfer she had resisted. In that case the deciding issue had been that the questionnaire had largely concerned matters of personal, not public, concern. Coffey quoted that case's holding that courts "must determine the content, form, and context of a given statement, as revealed by the whole record." Circuit precedent, from shortly after Connick, held that the content of the speech was the most important of those three.
Under the Federal Rules of Civil Procedure
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
, the appeals court could not make a determination as to the content of the disputed speech. Instead, Coffey wrote, it would rule on the status of Churchill's speech, reviewing the record and considering it in the light most favorable to her, as the party in opposition to the motion for summary judgement.
"It is evident that the District Court's grant of summary judgment was in error," wrote Coffey. In her deposition, Churchill had discussed at length her criticisms of how cross-training had been implemented, and her concerns that the policy requiring a shower and change of clothes for nurses returning to the obstetric ward from another department was a possible violation of state regulations. "She was undoubtedly speaking about a matter of public concern", the judge concluded. He chastised the hospital for its apparent violations, quoting from and discussing at length the standards of the Joint Commission on Accreditation of Healthcare Organizations
Joint Commission on Accreditation of Healthcare Organizations
The Joint Commission , formerly the Joint Commission on Accreditation of Healthcare Organizations , is a United States-based not-for-profit organization that accredits over 19,000 health care organizations and programs in the United States...
on cross-training to demonstrate that this was a matter of public concern. "[T]he content of the speech is a question of fact for the jury," Coffey concluded.
Coffey turned next to the context, addressing Mihm's holding that under the Pickering balancing test
Balancing test
A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case. Proponents of such tests argue that they allow a deeper consideration of complex issues than a bright line rule can allow...
, the hospital was permitted to fire Churchill because her speech was sufficiently disruptive to it even if it had been on a matter of public concern. It was erroneous, he wrote, because it ignored Jean Welty's testimony that had corroborated Churchill's account of the conversation. Further, she had professional obligations to act under the code of the American Nursing Association, which Coffey quoted in relevant part. "Cheryl Churchill's actions fall far short of the actions of an insubordinate or problem employee", he wrote. "[Her] interest in fulfilling her duties and obligations as an ethical, responsible professional ... clearly outweighs the hospital's interests in interfering and ultimately preventing her from speaking out on important matters of public concern." Further, the animosity between Churchill and her superiors was, upon further examination, "nothing but a one sided demonstration of hostility toward Churchill."
The next argument Coffey considered was due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
. The Mt. Healthy defense raised by the hospital was that Churchill had not demonstrated that her speech was why she was fired. In response she had argued that the hospital violated her due process rights by not investigating the actual content of her speech. "We disagree" wrote Coffey, "that it is necessary to create a First Amendment due process right in order to protect the rights of public employees to speak out on matters of public concern, for we believe that Mt. Healthy provides adequate safeguards regardless of whether the employer actually knew the precise content of the statements for which it fired the employee."
The hospital believed it had overcome Mt. Healthy, since it claimed Churchill was fired for her general pattern of complaining rather than the conversation with Perkins-Graham. Coffey said that was a misreading of that holding, which was meant to protect conduct.
Lastly, he dismissed the defendants' claim to qualified immunity
Qualified immunity
Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 . Qualified immunity shields government officials from liability for the...
, under which officials who engage in conduct which may later be found illegal are immune from prosecution or suit if they can demonstrate a lack of settled law on it at the time, for the same underlying reasons. "[I]n 1987 the law was clear that the speech of public employees while at work was protected under the First Amendment if it was about matters of public concern in connection with their workplace," Coffey wrote. "[W]e hold that ignorance of the nature of the employee's speech (in particular in light of the record before us) is inadequate to insulate officials from a § 1983 action."
The court amended its decision the day after handing it down. Two months later a motion for rehearing was denied. The appellees then petitioned the Supreme Court for certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
. In order to resolve a conflict the case had created with similar cases in other appellate circuits where qualified immunity was at issue,Atcherson v. Siebenmann, 605 F. 2d 1058, (8th Cir.
United States Court of Appeals for the Eighth Circuit
The United States Court of Appeals for the Eighth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Arkansas* Western District of Arkansas...
, 1979), judge granted qualified immunity when acting as administrator disciplining probation officer for letter alleging misconduct by coworkers; Wulf v. Wichita , 883 F. 2d 842 (10th Cir.
United States Court of Appeals for the Tenth Circuit
The United States Court of Appeals for the Tenth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Colorado* District of Kansas...
, 1989), reasonable police chief should have been aware that allegations of anti-union bias were protected speech; and Sims v. Metropolitan Dade County, 972 F. 2d 1230 (11th Cir.
United States Court of Appeals for the Eleventh Circuit
The United States Court of Appeals for the Eleventh Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Middle District of Alabama...
, 1992), county officials should have been reasonably aware that off-duty sermon by employee in church was protected speech. the Court granted the request in 1993.
Before the Court
The federal government filed an amicus curiaeAmicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
brief urging reversal, along with the International City/County Management Association
International City/County Management Association
ICMA is an association representing professionals in local government management. It is based in Washington, D.C., USA....
. Amici urging affirmance came from the National Education Association
National Education Association
The National Education Association is the largest professional organization and largest labor union in the United States, representing public school teachers and other support personnel, faculty and staffers at colleges and universities, retired educators, and college students preparing to become...
and Southern States Police Benevolent Association. The National Employment Lawyers Assocation filed a brief that took neither side.
Oral arguments were heard in December of 1993. Lawrence Manson, arguing for the hospital and other original defendants as petitioners, was joined by assistant Solicitor General Richard Seamon. John Bisbee, who had represented Churchill and Koch from the beginning, argued their case.
Manson began by attacking the Seventh Circuit's "unprecedented holding". Churchill, he argued, had to show that the defendants were aware that her speech was protected. "[A]ll the defendants knew about was comments of personal matters, grievances against the supervisor." He quoted at length from Ballew's deposition to support that contention. If Churchill had wanted to contest the veracity of Ballew's report, she had the opportunity to do so when Davis fired her, but chose not to do so.
The justices challenged him at length on the implications of that theory, whether it would apply to a more clear-cut situation where the employer had acted on mistaken information. Manson insisted that under the Mt. Healthy rule that would not be a violation of the First Amendment. He also insisted that it covered a case where the motive for the firing was clearly the speech and not any other associated conduct. Seamon, too, was questioned on this as well, with the same result. "[I]n an employment at will
At-will employment
At-will employment is a doctrine of American law that defines anemployment relationship in which either party can break the relationship with no liability, provided there was no express contract for a definite term governing the employment relationship and that the employer does not belong to a...
situation like this one, the Government can discharge an employee for any reason or no reason at all, as long as it is not motivated by a desire to retaliate against the employee for engaging in protected speech."
Bisbee was asked the same question, but preferred to focus on the facts of his case. He stressed that "[w]hat was reported to them was basically a headline: 'Things were bad in OB and the administration was responsible.'" Justice Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
asked about the Pickering test: "Do you think that even protected speech could also serve to demonstrate sufficient disruption to the employer's operation that a firing could be justified?" Bisbee conceded that it could, but "it seems to me there has got to be some reasonable basis for thinking that the speech was doing that."
How, he was later asked, could the Seventh Circuit's holding that an employer could be held liable for adverse action against speech believed to be unprotected but later held otherwise be reconciled with qualified immunity
Qualified immunity
Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 . Qualified immunity shields government officials from liability for the...
? "Number one, I disagree with that," he said. "Unfortunately that's the question cert was granted on", came the reply. Bisbee insisted that the record did not support that reading, that it was merely a dictum
Dictum
In United States legal terminology, a dictum is a statement of opinion or belief considered authoritative though not binding, because of the authority of the person making it....
and that he himself had not so argued.
When pressed about this again later, some sharp exchanges resulted. Bisbee said "the Court doesn't even really need to reach that question". "Suppose we think we need to reach that decision" he was told. "[W]e didn't take this case to determine who said what in the cafeteria. We determine this case to see what the rule of law ought to be if an employer acts on reasonable, substantiated information, but is wrong." Bisbee suggested that the Seventh Circuit had perhaps used "language that was broader than it needed to", to which O'Connor responded that it might need to be sent back since even he declined to defend their legal theory. "It seems to me that you can affirm the judgment and say that the legal test employed by the Seventh Circuit was not altogether correct," he proposed.
Decision
The Court announced its decision May 31, 1994. Seven justices had agreed to vacate the Seventh Circuit and remand the case to district court for a determination of what exactly Churchill was fired for. Three justices joined Sandra Day O'ConnorSandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
in a plurality opinion
Plurality opinion
A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
. David Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
, a member of that plurality, added a concurrence
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
of his own. Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
wrote a separate concurrence, joined by two other justices. John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
wrote for himself and Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
that the First Amendment was important enough that Churchill was entitled to the trial she sought to determine what she said.
Majority
The plurality, joined by Chief Justice William RehnquistWilliam Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
, David Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
and Ruth Bader Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
, held that the appeals court had proposed a test too onerous to the government to be broadly applied, but agreed that there was enough of a factual dispute over what Churchill had been fired for to remand the case to district court for that determination. Souter added a concurrence
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
clarifying that the employers can act against unprotected employee speech when they believe their facts about the speech to be true, rather than just the result of a reasonable investigation. He also noted that, since the plurality holding had been joined by the other majority justices in one aspect and the dissenting justices in another, it was in fact a majority opinion
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
.
In a separate concurrence, Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
wrote for himself, Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
and Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
that adverse personnel actions for speech by public employees violate the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
only when their purpose is clearly retaliatory, as he believed it had been in Pickering
Pickering v. Board of Education
Pickering v. Board of Education, 391 U.S. 563 , was a case in which the Supreme Court of the United States held that in the absence of proof of the teacher knowingly or recklessly making false statements the teacher had a right to speak on issues of public importance without being dismissed from...
. He attacked the plurality opinion as creating a poorly defined procedural requirement that might well prove unworkable in practice.
Plurality opinion
"There is no dispute in this case about when speech by a government employee is protected by the First Amendment," began O'Connor's analysis, after she recounted the facts of the case. "The dispute is over how the factual basis for applying the test—what the speech was, in what tone it was delivered, what the listener's reactions were—is to be determined." She agreed with Churchill that some reliable procedures were necessary to protect First Amendment rights, and cited several cases that imposed such procedural requirements, primarily in the area of defamation law.O'Connor rejected the narrower protection Scalia advocated in his concurrence. "Speech can be chilled and punished by administrative action as much as by judicial processes; in no case have we asserted or even implied the contrary." To the plurality, however, it did not follow that all possible procedural review was constitutionally necessary. The Court had in some past defamation cases declined to apply the actual malice
Actual malice
Actual malice in United States law is a condition required to establish libel against public officials or public figures and is defined as "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not." Reckless disregard does not...
standard, even though doing so would strengthen free-speech protections, she noted.
It was, O'Connor agreed with Scalia, inconvenient that no general test existed for these cases. So, "[w]e must therefore reconcile ourselves to answering the question on a case-by-case basis, at least until some workable general rule emerges." The general principle, from Pickering and previous cases had established that "the government as employer indeed has far broader powers than does the government as sovereign". No one, she suggested, would dispute that a government agency could bar its employees from wearing, on the job, clothing decorated with profanity
Profanity
Profanity is a show of disrespect, or a desecration or debasement of someone or something. Profanity can take the form of words, expressions, gestures, or other social behaviors that are socially constructed or interpreted as insulting, rude, vulgar, obscene, desecrating, or other forms.The...
, despite the Court's Cohen v. California
Cohen v. California
Cohen v. California, 403 U.S. 15 was a United States Supreme Court case dealing with freedom of speech. The Court overturned a disturbing the peace conviction of a man wearing a jacket decorated with profanity.-Background of the case:...
holding that such behavior could not sustain a prosecution for disorderly conduct
Disorderly conduct
Disorderly conduct is a criminal charge in most jurisdictions in the United States. Typically, disorderly conduct makes it a crime to be drunk in public, to "disturb the peace", or to loiter in certain areas. Many types of unruly conduct may fit the definition of disorderly conduct, as such...
. The Court had also upheld the Hatch Act
Hatch Act of 1939
The Hatch Act of 1939 is a United States federal law whose main provision is to prohibit federal employees in the executive branch of the federal government, except the President and the Vice President, from engaging in partisan political activity...
's limitations on political activity by federal employees on several occasions, she noted.Broadrick v. Oklahoma
Broadrick v. Oklahoma
Broadrick v. Oklahoma, 413 U.S. 601 is a United States Supreme Court decision upholding an Oklahoma statute which prohibited state employees from engaging in partisan political activities...
, ; United States Civil Service Commission v. National Association of Letter Carriers
United States Civil Service Commission v. National Association of Letter Carriers
United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 , is a ruling by the United States Supreme Court which held that the Hatch Act of 1939 does not violate the First Amendment, and its implementing regulations are not unconstitutionally vague and...
, and United Public Workers v. Mitchell
United Public Workers v. Mitchell
United Public Workers v. Mitchell, 330 U.S. 75 , is a 4-to-3 ruling by the United States Supreme Court which held that the Hatch Act of 1939, as amended in 1940, does not violate the First, Fifth, Ninth, or Tenth amendments to U.S...
, .
Those past cases, O'Connor continued, had shown deference to the government's opinion of what speech acts by employees in the workplace would be disruptive to the government's interest in providing public services efficiently, again in ways the Court had not with cases concerning speech in general.
The Seventh Circuit's requirement "would force the government employer to come to its factual conclusions through procedures that substantially mirror the evidentiary rules used in court", O'Connor wrote. Hearsay
Hearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
evidence might not be usable, and credibility judgements might not be shared by a jury or judge. Yet both were regularly used by both public and private employers in making personnel decisions. "Government employers should be allowed to use [them], without fear that these differences will lead to liability."
What O'Connor did allow was that the public employer's decision must be the result of "the care that a reasonable manager would use before making an employment decision". She again responded to Scalia, who had said precedent made that standard applicable only where the employment had some sort of contractual basis and was not at-will
At-will employment
At-will employment is a doctrine of American law that defines anemployment relationship in which either party can break the relationship with no liability, provided there was no express contract for a definite term governing the employment relationship and that the employer does not belong to a...
or probationary. "We believe that the possibility of inadvertently punishing someone for exercising her First Amendment rights makes such care necessary." She then addressed Stevens' claim in dissent that this was less protection than the Court had required for lesser rights. "We have never held that it is a violation of the Constitution for a government employer to discharge an employee based on substantively incorrect information. Where an employee has a property interest in her job, the only protection we have found the Constitution gives her is a right to adequate procedure."
Applying this analysis to the facts of the case, she concluded that hospital management had made a reasonable decision of what Churchill had said before firing her.
And what they believed Churchill to have said, under Connick, was disruptive enough to justify adverse action regardless of whether it addressed a public concern, which the plurality declined to decide. "Discouraging people from coming to work for a department certainly qualifies as disruption." Perkins-Graham herself had told Davis she didn't think the hospital could "tolerate that kind of negativism" much longer, and if Churchill had indeed denied the possibility of getting along with Waters, Churchill's continued effectiveness as a nurse under Waters' supervision could be reasonably expected to be diminished.
Despite this, O'Connor agreed with Churchill and the Seventh Circuit that Mihm had erred in granting summary judgement against the nurse. "[She] has produced enough evidence to create a material issue of disputed fact about petitioners' actual motivation." It was possible that a trier of fact could find, in certain other actions by the hospital management, evidence that her non-disruptive, and therefore protected, criticisms of the implementation of the cross-training policy. That conclusion foreclosed the need to decide the qualified immunity
Qualified immunity
Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 . Qualified immunity shields government officials from liability for the...
question that had been discussed so heavily at oral argument. The Seventh Circuit's decision was vacated and the case remanded to district court to decide what action of Churchill's had motivated the firing.
Souter concurrence
David SouterDavid Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
, one of the four justices in the plurality, added his own concurrence
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
. He wished "to emphasize that, in order to avoid liability, the public employer must not only reasonably investigate the third-party report, but must also actually believe it." Without that criterion, he argued, the government "can assert no legitimate interest strong enough to justify chilling protected expression." That left it open for Churchill to argue on remand that the putatively disruptive speech issue was merely a pretext for an unjustified, retaliatory firing over her criticisms of the cross-training implementation.
He also clarified that the plurality's holding was the one lower courts should look to in future cases, per the standard for divided majority opinion
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
s announced in the 1977 obscenity case Marks v. United States. Seven justices agreed that public employers who acted on a reasonable belief of the content of employee speech had met their constitutional burden, and the plurality and dissent both supported a view that public employers who did not had violated the First Amendment. Therefore, the plurality was in fact a majority with its components joined by different justices.
Scalia concurrence
"This recognition", ScaliaAntonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
began, "of a broad new First Amendment procedural right is in my view unprecedented, superfluous to the decision in the present case, unnecessary for protection of public-employee speech on matters of public concern, and unpredictable in its application and consequences." He agreed that sometimes procedures were necessary to protect First Amendment rights. Most of the cases the plurality had cited were from defamation law, which was primarily enforced through litigation, thus making procedural safeguards a necessary subject of discussion.
"Although we are assured that 'not every procedure that may safeguard protected speech is constitutionally mandated,' the implication of that assurance is that many are'" Scalia continued. The plurality had provided little guidance in that area. He could not reconcile this due-process requirement with other casesScalia specifically cites Board of Regents of State Colleges v. Roth
Board of Regents of State Colleges v. Roth
Board of Regents of State Colleges v. Roth, 408 U.S. 564 , was a case decided by the United States Supreme Court concerning alleged discrimination against a nontenured teacher at Wisconsin State University in Oshkosh....
, , in this regard. where the Court had ruled that at-will public employees, lacking a property interest in their jobs, were not entitled to this level of process in adverse personnel actions. He found it absurd that there was no need to investigate if the dismissal was for other causes, whether erroneously believed or not., But if speech was involved, the matter would have to be investigated, after which an adverse action could proceed, even if the investigation had produced inaccurate information about the content of the speech, as long as it did not touch on matters of public concern.
Scalia argued that the plurality had not created new procedural protections for the First Amendment, "but rather new First Amendment rights". Pickering had held that public employees must be free to speak on issues of public concern without fear of retaliation, and he considered that the important factor. "A category of employee speech is certainly not being 'retaliated against' if it is no more and no less subject to being mistaken for a disciplinable infraction than is any other category of speech or conduct." He found the procedural test "doubly irrelevant" since not only had the plurality found the hospital to have satisfied it, they then remanded the case so the district court could conduct a trial on whether the speech was a pretext for a retaliatory firing. Since that had been the end result of Mt. Healthy he found no need for a new requirement in this case, and cited other areas where the Court had found a pretext inquiry sufficient to protect constitutional rights.
In response to Stevens' dissent, he said such an inquiry had been held constitutionally inadequate only where there was a contractual relationship, which Churchill did not have. "An employee dismissable at will can be fired on the basis of an erroneous factual judgment, with no legal recourse—which is what happened here." Her only protection was the Pickering holding that she could not be retaliated against, and the plurality was not so much reinforcing that as expanding it to cover employer mistakes.
The plurality opinion "provides more questions than answers, subjecting public employers to intolerable legal uncertainty", Scalia concluded. He went through all the hypothetical questions they would have to ask under the decision, and possible remedies that might be derived from it due to the lack of guidance on the question. "Loose ends are the inevitable consequence of judicial invention", he wrote. "We will spend decades trying to improvise the limits of this new First Amendment procedure that is unmentioned in text and unformed by tradition."
Dissent
For private-sector employees, Stevens wrote, the exercise of their First Amendment rights to speak on matters of public concern "may entail unpleasant consequences." But public employees were entitled to greater protections. "As long as that expression is not unduly disruptive, it simply may not provide the basis for discipline or termination."Stevens believed there was no real factual dispute as to the basis of Churchill's termination—the dinner-break conversation. The Court had to assume it was protected speech, per procedure, but the plurality had concluded that what mattered was that the hospital reasonably believed it was not. "This conclusion is erroneous because it provides less protection for a fundamental constitutional right than the law ordinarily provides for less exalted rights, including contractual and statutory rights applicable in the private sector."
Had Churchill been a contractual employee, fired in the mistaken belief that she had failed to perform her job adequately, she would have been entitled to relief, he noted. "Ordinarily, when someone acts to another person's detriment based upon a factual judgment, the actor assumes the risk that an impartial adjudicator may come to a different conclusion". The Court, he noted, had done just that in National Labor Relations Board v. Burnup & Sims, Inc., when it upheld the board's order to reinstate two workers fired in the mistaken belief that they had threatened violence if a union certification vote failed.
Stevens criticized Scalia's approach as derived solely from the use of the word "retaliation" in the cases Scalia had cited. In all those cases, there had been no factual dispute over the content of the speech. Two, Pickering and Perry v. Sindermann
Perry v. Sindermann
Perry v. Sindermann, 408 U.S. 593 was a United States Supreme Court decision affecting educational case law involving tenure and due process.-Facts:...
suggested that a "causal connection between the employee's speech and her discharge is all the 'retaliation' that must be shown."
Stevens saw the issue in very stark terms.
Since disagreements among employees were inevitable, the plurality's rule "invites discipline, rather than further discussion, when such disputes arise." In conclusion, he said, the First Amendment "requires that, before firing a public employee for her speech, management get its facts straight."
Subsequent jurisprudence
The next term, in United States v. National Treasury Employees Union, a 6–3 Court held unconstitutional Section 501(b) of the Ethics Reform Act of 1989, which barred all federal employees from accepting compensation for making speeches or writing for publication. Stevens, writing for the majority, distinguished the case from Waters and its predecessors by noting that it involved a broadly applied instance of prior restraintPrior restraint
Prior restraint or prior censorship is censorship in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known...
instead of a disciplinary action against a single employee for actual speech. Following Waters he find the government's predictions of disruption if the statute unwarranted.
O'Connor wrote a separate concurrence
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
noting that this case was an instance of the limits on deference to the government as employer she had recognized in Waters. "As the magnitude of intrusion on employees' interests rises, so does the Government's burden of justification ... In this case ... the Government has exceeded the limits of its latitude". Chief Justice William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
, writing for the dissenters, argued that the majority overemphasized the Waters test at the expense of the balancing of individual and government interests required by Pickering.
Appeals courts
The Supreme Court has not explored the issues raised by Waters in any subsequent case it has heard, since of the two that have considered the First Amendment rights of public employees (San Diego v. Roe and Garcetti v. CeballosGarcetti v. Ceballos
Garcetti v. Ceballos, 547 U.S. 410 , is a decision by the Supreme Court of the United States involving the First Amendment free speech protections for government employees. The plaintiff in the case was a district attorney who claimed that he had been passed up for a promotion for criticizing the...
), neither has involved a factual dispute over the substance of the speech. Its holding that the government has a lower constitutional burden as employer than as sovereign has been reiterated in those cases, and it has also appeared in cases involving other constitutional claims by public employees, particularly the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
.
That holding has also been cited many times by lower courts. At the appellate level, there have been several notable cases where Waters has factored into the analysis, sometimes helping to decide the case, and in others allowing judges to develop aspects of the holding in greater depth. Two cases concerned academic freedom
Academic freedom
Academic freedom is the belief that the freedom of inquiry by students and faculty members is essential to the mission of the academy, and that scholars should have freedom to teach or communicate ideas or facts without being targeted for repression, job loss, or imprisonment.Academic freedom is a...
and political correctness
Political correctness
Political correctness is a term which denotes language, ideas, policies, and behavior seen as seeking to minimize social and institutional offense in occupational, gender, racial, cultural, sexual orientation, certain other religions, beliefs or ideologies, disability, and age-related contexts,...
. Others involved same-sex marriage
Same-sex marriage in the United States
The federal government does not recognize same-sex marriage in the United States, but such marriages are recognized by some individual states. The lack of federal recognition was codified in 1996 by the Defense of Marriage Act, before Massachusetts became the first state to grant marriage licenses...
and satanic ritual abuse
Satanic ritual abuse
Satanic ritual abuse refers to the abuse of a person or animal in a ritual setting or manner...
.
Jeffries v. Harleston
The Waters decision had an immediate effect on a case arising from an academic controversy in New York. Following a 1991 speech making assertions that Jews sponsored the slave trade
Jews and the slave trade
Like their Christian and Muslim neighbors, Jews owned slaves and participated in the slave trade. In the middle ages, Jews were minimally involved in slave trade. During the 1490s, trade with the New World began to open up. At the same time, the monarchies of Spain and Portugal expelled all of...
and controlled the media, Leonard Jeffries
Leonard Jeffries
Leonard Jeffries Jr. is an American professor of black studies at the City College of New York, part of the City University of New York. He achieved national prominence in the early 1990s for his controversial statements about Jews and other white people...
, chairman of the African-American studies department at the City College of New York
City College of New York
The City College of the City University of New York is a senior college of the City University of New York , in New York City. It is also the oldest of the City University's twenty-three institutions of higher learning...
(CCNY), was terminated from the chairmanship prior to the end of his three-year term by the City University of New York
City University of New York
The City University of New York is the public university system of New York City, with its administrative offices in Yorkville in Manhattan. It is the largest urban university in the United States, consisting of 23 institutions: 11 senior colleges, six community colleges, the William E...
(CUNY) trustees although he retained his professorship. CUNY administrators claimed they did so for other reasons unrelated to the speech. He sued, was awarded damages, and the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
upheld the verdict in 1993.
After Waters, the university petitioned the Supreme Court for certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
. The Supreme Court told the Second Circuit to reconsider the case in light of that holding. In 1995, the Second Circuit reversed its original ruling, finding that under Waters the College could have reasonably considered Jeffries' speech disruptive enough to justify adverse action. Judge Joseph M. McLaughlin
Joseph M. McLaughlin
Joseph Michael McLaughlin is a federal appellate judge in the United States.Born in Brooklyn, New York. He received an A.B. from Fordham College in 1954, and was in the United States Army Corps of Engineers Captain from 1955 to 1957. He then received a LL.B. from Fordham University School of Law...
interpreted Waters to hold, relevant to the Jeffries case, "that the closer the employee's speech reflects on matters of public concern, the greater must be the employer's showing that the speech is likely to be disruptive before it may be punished".
The first appellate decision had held that the university had failed to show actual disruption to its operations by the speech. "Waters pulls a crucial support column out from under our earlier Jeffries opinion", McLaughlin wrote, by lowering the requirement to demonstrate only the likelihood. Since the jury had found that a majority of the CUNY trustees voted to end his chairmanship for that reason, his First Amendment rights had not been abridged. McLaughlin also rejected an argument in an amicus brief that Jeffries' academic freedom
Academic freedom
Academic freedom is the belief that the freedom of inquiry by students and faculty members is essential to the mission of the academy, and that scholars should have freedom to teach or communicate ideas or facts without being targeted for repression, job loss, or imprisonment.Academic freedom is a...
deserved greater protection than Churchill's, since he was tenured and retained his professorship.
Burnham v. Ianni
In fall 1991 two students in the History Club at the University of Minnesota Duluth
University of Minnesota Duluth
The University of Minnesota Duluth is a regional branch of the University of Minnesota system located in Duluth, Minnesota, USA. As Duluth's public research university, UMD offers 13 bachelor's degrees in 74 majors, graduate programs in 24 different fields, a two-year program at the School of...
had the idea to photograph professors in the history department with props that represented their specialties for a display near the department offices. Department chairman Albert Burnham, the club's advisor and a specialist in American military history, wore a coonskin cap
Coonskin cap
A coonskin cap is a hat fashioned from the skin and fur of a raccoon. The original coonskin cap consisted of the entire skin of the raccoon including its head and tail...
while brandishing a .45-caliber military pistol. Ronald Marchese, who specialized in classical antiquity
Classical antiquity
Classical antiquity is a broad term for a long period of cultural history centered on the Mediterranean Sea, comprising the interlocking civilizations of ancient Greece and ancient Rome, collectively known as the Greco-Roman world...
, was photographed with an ancient Roman sword and laurel wreath. A month after the display was installed, the university's chancellor
Chancellor (education)
A chancellor or vice-chancellor is the chief executive of a university. Other titles are sometimes used, such as president or rector....
, Lawrence Ianni, ordered the two photographs removed after complaints from female administrators and faculty, some of whom had been targeted by an anonymous public harassment campaign that year over Ianni's establishment of a Commission on Women. The professors and students sued, and won partial summary judgement holding that Ianni did not have qualified immunity
Qualified immunity
Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 . Qualified immunity shields government officials from liability for the...
. The defendants cited Waters, but Judge Michael J. Davis
Michael J. Davis
Michael James Davis is an American lawyer and United States federal judge. He has sat on the United States District Court for the District of Minnesota since 1994.-Early life, education, and career:...
ruled that it was not relevant since the case did not involve an adverse employment action.
The Eighth Circuit
United States Court of Appeals for the Eighth Circuit
The United States Court of Appeals for the Eighth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Arkansas* Western District of Arkansas...
reversed on appeal. Theodore McMillian
Theodore McMillian
Theodore McMillian was the first African American to serve on the Missouri Court of Appeals.-Education:...
relied on Waters to give weight to the chancellor's fears of disruption in light of the harassment campaign, noting that "It cannot seriously be disputed that, during that spring 1992 semester, the atmosphere on campus was more tense than normal." Clarence Arlen Beam
Clarence Arlen Beam
Clarence Arlen Beam is an American jurist and a United States federal judge.Born in Stapleton, Nebraska, Beam received a B.S. from the University of Nebraska in 1951, and was a Captain in the United States Army during the Korean War from 1951 to 1953. He received a J.D...
rejected that analysis in his dissent, saying those fears were "based on conclusory hearsay and rank speculation".
An en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
rehearing in turn reversed that panel. Beam reiterated his arguments in the majority opinion. McMillian, dissenting along with John R. Gibson
John R. Gibson
John R. Gibson is a senior circuit judge on the United States Court of Appeals for the Eighth Circuit.- Early life and education :...
, who had joined him in the original panel, wrote that the majority had understated the effect of the harassment on the campus in assessing the potential for disruption. Despite the lack of adverse action, it was "no less an employment-related case" than Waters and its related cases, he argued. Ianni, who they felt had qualified immunity
Qualified immunity
Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 . Qualified immunity shields government officials from liability for the...
in any event due to the lack of settled law where academic freedom was concerned, had had to make a choice between two subordinates' conflicting interests. The messages conveyed by the photographs could clearly have been conveyed through other means, they observed.
Shahar v. Bowers
Waters was also part of the analysis employed in Shahar v. Bowers, an Eleventh CircuitUnited States Court of Appeals for the Eleventh Circuit
The United States Court of Appeals for the Eleventh Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Middle District of Alabama...
case brought against Georgia Attorney General Mike Bowers
Mike Bowers
-Early Life:Michael Joseph Bowers was a long-serving Attorney General of Georgia before switching parties and mounting an unsuccessful campaign for Georgia Governor. He now practices law with Balch & Bingham in Atlanta, Georgia.Bowers graduated from the United States Military Academy in 1963 and...
by a woman to whom he had withdrawn a job offer after learning of her plans for a lesbian wedding
Same-sex marriage in the United States
The federal government does not recognize same-sex marriage in the United States, but such marriages are recognized by some individual states. The lack of federal recognition was codified in 1996 by the Defense of Marriage Act, before Massachusetts became the first state to grant marriage licenses...
in 1991, saying it would reflect badly on his office in public opinion to have an employee whose lifestyle involved regularly violating Georgia law against sodomy
Sodomy
Sodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
. After Northern District of Georgia
United States District Court for the Northern District of Georgia
The United States District Court for the Northern District of Georgia is a United States District Court which serves the residents of forty-six counties...
senior judge Richard Cameron Freeman
Richard Cameron Freeman
Richard Cameron Freeman was a United States federal judge.Born in Atlanta, Georgia, Freeman was a Private in the United States Army toward the end of World War II, from 1945 to 1946. He received an A.B. from Emory University in 1950 and an LL.B. from Emory University School of Law in 1952...
granted Bowers summary judgement on her First and Fourteenth Amendment claims, she appealed. A three-judge panel agreed her right to intimate association had been violated and remanded to have that claim considered under a strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
standard.
In a partial concurrence with John Cooper Godbold
John Cooper Godbold
John Cooper Godbold was a United States federal judge.Born in Coy, Alabama, Godbold received a B.S. from Auburn University in 1940 and was a Major in the United States Army, Division Artillery Headquarters during World War II, from 1941 to 1946. He received a J.D...
's holding, Judge Phyllis A. Kravitch
Phyllis A. Kravitch
Phyllis A. Kravitch is a Senior Circuit Judge on the United States Court of Appeals for the Eleventh Circuit. She sits in Atlanta, Georgia....
looked to Waters, then a new decision. Its lower constitutional standard for the government as employer led her to conclude that the Pickering balancing test should be applied to the intimate-association claim rather than strict scrutiny, as the district court had done. "[T]he employer's assessment of harm" she wrote, "should be discounted by the probability of its realization in order to weigh it fairly against an actual burden on an employee's constitutional rights. This was in keeping with circuit precedent regarding Connick.
A petition for rehearing en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
was granted in late 1995. In writing for a majority that upheld the district court absolutely, Judge J.L. Edmondson
James Larry Edmondson
-Education and early career:Born in Jasper, Georgia, Edmondson received a B.A. from Emory University in 1968, a J.D. from the University of Georgia in 1971, and an M.L. in Judicial Process from the University of Virginia in 1990....
applied the Pickering test as Kravitch had argued. He cited Waters as requiring "substantial weight" be given to the concerns of Bowers and his senior aides that Shahar's wedding ceremony would reflect adversely on his office and its ability to fulfill its duties. Therefore they did not have to make "a particularized showing of interference with the provision of public services" as Shahar argued.
Three of the four dissenting judges took up Waters. In a dissent joined by Godbold, Kravitch responded that while it did require great deference to public-employer concerns, neither did it require "that courts must accept blindly all claims of harm conjured by government employers" since they could evaluate whether they were reasonable or not. Shahar, she observed, wasn't claiming her marriage was a legally-recognized one, and had been discreetly held in another state with no media attention, which Bowers should have known before rescinding the job offer. Therefore, his adverse action was unreasonable and "his predictions regarding intra-office strife do not weigh very heavily in the balance."
Judge Stanley Birch went even further in his dissent, also joined by Kravitch and Godbold. In the wake of the Supreme Court's Romer v. Evans
Romer v. Evans
Romer v. Evans, 517 U.S. 620 , is a landmark United States Supreme Court case dealing with civil rights and state laws. It was the first Supreme Court case to deal with LGBT rights since Bowers v...
holding that homosexuals as a class were entitled to at least some rights under the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
, he argued that all of Bowers' fears of disruption under Waters ultimately arose from her status as a lesbian and were thus not a legitimate basis for state action.."
Rosemary Barkett
Rosemary Barkett
Rosemary Barkett is a federal judge on the United States Court of Appeals for the Eleventh Circuit. Prior to her nomination for that post, she was Chief Justice of the Florida Supreme Court, where she was the first woman ever to serve on that court.- Background :Barkett has had an unusual career...
accused the majority of using Waters to effect a "wholesale restructuring of Pickering". The only issue in Waters, she wrote, had been whether to decide the case on the basis of what the employer reasonably believed was said or what a jury found was said. Like Birch and Kravitch, she found that case supported Shahar's position, since she did not find Bowers' investigation reasonable. "Waters asserts Pickering
Wright v. Illinois Dept. of Children & Family Services
A few months after Waters was handed down, back in the Seventh Circuit, Judge Joel Martin FlaumJoel Martin Flaum
Joel Martin Flaum is a United States federal judge.Born in Hudson, New York, Flaum received a B.A. from Union College in 1958, a J.D. from Northwestern University School of Law in 1963, and an LL.M. from Northwestern University School of Law in 1964. He was a U.S...
made it part of a two-fold test with Connick in Wright v. Illinois Department of Children & Family Services, a complicated case in which a child-welfare worker accused her employer of retaliating against her after she complained it was covering up evidence of satanic ritual abuse
Satanic ritual abuse
Satanic ritual abuse refers to the abuse of a person or animal in a ritual setting or manner...
she had found. He read it as making clear that "not every utterance by a public employee, even if entitled to First Amendment protection in another context, is constitutionally shielded from employer discipline." As a result, the case considered only the speech for which the plaintiff had been disciplined, and held that in one instance the defendants would prevail if they showed their belief that she had perjured
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
herself in court testimony was reasonable even if the testimony later was found to be truthful.A Tenth Circuit
United States Court of Appeals for the Tenth Circuit
The United States Court of Appeals for the Tenth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Colorado* District of Kansas...
panel also considered this possibility in a later case (Deutsch v. Jordan, 618 F.3d 1093, 1102, note 3 (10th Cir., 2010)), but came to the conclusion it did not need to decide it for lack of jurisdiction.
After an extensive analysis finding that truthful trial testimony was protected speech, which culminating in find a genuine factual dispute on the issue and thus overturning the summary judgement initially granted by the district court, Flaum echoed one of Scalia's criticisms in a footnote. "Waters provides little direct guidance as to the division of labor between judge and jury in a case like this one," he observed. "The critical question that, to this point, remains unanswered requires an assessment of the defendants' subjective motivation, a classic jury issue."
Other appellate cases
In 1999, the Second CircuitUnited States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
considered Lewis v. Cowen, a case in which the former director of the Connecticut Lottery
Connecticut Lottery
The Connecticut Lottery Corporation, also called the CT Lottery, is the official lottery in Connecticut. It was created in 1971 by then-Gov. Thomas Meskill, who signed Public Act No. 865. The first tickets were sold on February 15, 1972. The Connecticut Lottery offers five in-house drawing games...
claimed his dismissal for not speaking violated his First Amendment rights. The appellant was dismissed after refusing to prepare changes to the lottery he had privately expressed reservations about. Without any actual speech to apply the Pickering–Connick tests to, Judge John Walker
John M. Walker, Jr.
John Mercer Walker, Jr. is a judge of the United States Court of Appeals for the Second Circuit and a cousin of U.S. Presidents George H. W. Bush and George W. Bush...
held that behavior fell under Waters since it adversely affected the lottery's operations. "In such a case, the agency may terminate the employee because a more compliant subordinate who agrees to publicly support and convey the agency's positions would allow the agency to do the job more effectively."
Waters forced the Third Circuit
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
to no longer require that public employers show actual disruption. In Watters v. Philadelphia, it overturned summary judgment against the administrator of a police department's employee assistance program
Employee assistance programs
Employee Assistance Programs are employee benefit programs offered by many employers, typically in conjunction with a health insurance plan. EAPs are intended to help employees deal with personal problems that might adversely impact their work performance, health, and well-being...
who had told a local newspaper there was a "crisis" in the program due to the lack of key official policies, and been fired. "Disruption caused by actions independent of the speech at issue cannot be equated with disruption caused by the speech itself", wrote Dolores Korman Sloviter.
The Sixth Circuit
United States Court of Appeals for the Sixth Circuit
The United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Kentucky* Western District of Kentucky...
found Waters very similar to a 2006 case it heard, Farhat v. Jopke. A Michigan school custodian fired after a long history of abusive communications with administrators and his union, which sometimes included threats of violence, was found to have engaged in unprotected speech. "[E]ven if portions of appellant's expression did address matters of public concern," wrote William O. Bertelsman, "the disruptiveness of his speech in the workplace outweighed any value his expression might have had."
Analysis and commentary
Advocates for public employees, particularly in education, were dismayed by Waters. "Incredibly, this decision seems to abandon truth as a criterion for decision making and substitutes for it a belief be it true or false as long as it was established by reasonable means" wrote George Madden of Montana State University Billings, echoing Scalia's complaint. He also felt the case raised privacy concerns not touched on in the opinion since Churchill and Perkins-Graham had apparently believed they could speak freelyExpectation of privacy
In United States constitutional law the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution...
. However, Madden cautioned, this would depend on how lower courts interpreted the case.
A.N. Moshirnia sees Waters as a further erosion, along with Mt. Healthy and Connick, of the rights of educators affirmed in Pickering, which "may have indicated the zenith of First Amendment protection for public employee speech." After the later cases imposed some other barriers to a public-employee plaintiff, Waters, Moshirnia said, "dramatically reduced the government’s trial burden by permitting the government to justify its employment action with less than conclusive evidence." He also thought it could be used for prior restraint
Prior restraint
Prior restraint or prior censorship is censorship in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known...
since, in his analysis, a public employer could "fire an employee before he or she has spoken in cases where the government knows the general contours of the speech, and predicts that it might cause a disruption.
Charles W. Hemingway, a Virginia federal employment lawyer, took up O'Connor's question about the unique nature of government employment that allows the lower constitutional obligation. Looking over older Supreme Court jurisprudence on the subject, he observed that "Employees who are appointed in the federal service act as agents of the sovereign and thereby accept both the powers and the obligations imposed on the sovereign itself. To enable our government to function properly and to promote the public good, federal employees must be under stricter authority of the sovereign than private citizen[s]." He found its source in the authority of the government over military personnel. While civilian employees enjoyed greater liberty than soldiers, the Court had ruled they were both under the same authority.Hemingway cites Butler v. Pennsylvania Canal Commission, ; United States v. Hartwell, and Blake v. United States, .
For most of the country's history, Hemingway wrote, federal employees were appointees, employed at will, with no legal recourse against adverse actions due to the federal government's sovereign immunity
Sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....
. That began to change in the late 19th century with the Pendleton Act. Over the course of the 20th century Congress expanded the protections of federal employees, to the point that by the 1990s they had the same legal recourse against discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
as employees in the private sector, with five separate administrative agenciesThe Office of Personnel Management
Office of Personnel Management
The United States Office of Personnel Management is an independent agency of the United States government that manages the civil service of the federal government. The current Director is John Berry.-History:...
, Federal Labor Relations Authority
Federal Labor Relations Authority
The Federal Labor Relations Authority is an independent agency of the United States government that governs labor relations between the federal government and its employees....
, United States Merit Systems Protection Board
United States Merit Systems Protection Board
The Merit Systems Protection Board is an independent quasi-judicial agency established to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management...
, Equal Employment Opportunity Commission
Equal Employment Opportunity Commission
The U.S. Equal Employment Opportunity Commission is an independent federal law enforcement agency that enforces laws against workplace discrimination. The EEOC investigates discrimination complaints based on an individual's race, color, national origin, religion, sex, age, perceived intelligence,...
and the Office of Special Counsel. empowered to hear employee complaints and grant relief.
Those rights have come with restrictions private workers are not subject to. In the late 1930s Congress passed the Hatch Act
Hatch Act of 1939
The Hatch Act of 1939 is a United States federal law whose main provision is to prohibit federal employees in the executive branch of the federal government, except the President and the Vice President, from engaging in partisan political activity...
, limiting political activity by federal employees, and it has been upheld by the Supreme Court on several occasions. Federal employees, though in some cases unionized, are also not allowed to strike
Strike action
Strike action, also called labour strike, on strike, greve , or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became...
, a restriction upheld by a district court.United Federation of Postal Clerks v. Blount, 325 F.Supp 879 (D.D.C.
United States District Court for the District of Columbia
The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...
, 1971). The 1978 Ethics in Government Act
Ethics in Government Act
The Ethics in Government Act of 1978 is a United States federal law that was passed in the wake of the Nixon Watergate scandal and the Saturday Night Massacre. It created mandatory, public disclosure of financial and employment history of public officials and their immediate family...
imposed other restrictions on federal employees that sometimes go beyond the term of their employment. Lastly, the federal government's sovereign immunity means it can only be sued where such actions are permitted by statute.
He reviewed actions of the Merit Systems Protection Board
United States Merit Systems Protection Board
The Merit Systems Protection Board is an independent quasi-judicial agency established to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management...
(MSPB), the administrative body that hears most claims by federal employees, and the Federal Circuit
United States Court of Appeals for the Federal Circuit
-Vacancies and pending nominations:-List of former judges:-Chief judges:Notwithstanding the foregoing, when the court was initially created, Congress had to resolve which chief judge of the predecessor courts would become the first chief judge...
, which hears appeals from the MSPB and the other agencies, in light of Waters and United States v. National Treasury Employees Union. Recounting the differences between O'Connor and Scalia, he advised federal managers to follow O'Connor's approach pending later jurisprudence. "[I]t is clear that Waters expands federal employee due process rights while attempting to reserve for public managers the ultimate ability to determine whether public employee speech detracts from the Government's ability to perform its mission.
Further reading
- Roosevelt, Kermit. "Note: The Costs of Agencies: Waters v. Churchill and the First Amendment in the Administrative State", 106 Yale L.J.Yale Law JournalThe Yale Law Journal is a student-run law review affiliated with the Yale Law School. Published continuously since 1891, it is the most widely known of the eight law reviews published by students at Yale Law School...
1233, January 1997.
See also
- List of United States Supreme Court cases, volume 511
- List of United States Supreme Court cases by the Rehnquist Court
- List of United States Supreme Court cases involving the First Amendment