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holding that even though an employee's statement was “partially, if not entirely, motivated by self-interest,” it nevertheless touched on a matter of public concern
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No. 89SC696
Decided December 10, 1990. Rehearing Denied January 14, 1991.
Certiorari to the Colorado Court of Appeals.
Holland Hart, A. Bruce Jones, Ian S. Karpel, for Petitioner.
Hall Evans, Daniel R. Satriana, Jr., Marlene T. Gresh, Sean R. Gallagher; Duane Woodard, Attorney General, Tim Arnold, Deputy Attorney General, Lee Combs, Special Assistant Attorney General, State Board of Agriculture, for Respondents.
We granted certiorari to review Kemp v. State Board of Agriculture, 790 P.2d 870 (Colo.App. 1989), and we now affirm. The petitioner, Sandra Kemp, was a black female employee of Colorado State University (CSU), and was assigned as an extension agent in a predominately white community in Southern Colorado from August 16, 1982, until August 30, 1985. She alleges that starting in the Fall of 1983, she received lower than normal performance evaluations, and in the Spring of 1984 received a salary increase she felt was too low. In November 1984, Kemp filed a formal complaint with the CSU Equal Opportunity Office pursuant to CSU's internal grievance procedure manual charging her co-workers and supervisors with discrimination due to her race and sex. The grievance procedure permits the complainant to elect either a formal or informal complaint and either an open or closed hearing. If a formal complaint is filed, a hearing panel of the school's equal opportunity council takes evidence and then prepares a written report setting out its findings and any resulting recommendations. A formal complaint also means that the complainant has a right of appeal to an appeals committee and the president of the university. The grievance procedure also stated "complainants may pursue remedies in other agencies and the courts while simultaneously invoking these procedures informally." (Emphasis added.) There is no definition in the internal procedure manual of a "closed hearing" nor any indication of what sanctions will be imposed for violating the procedure or criteria for determining appropriate sanctions. Kemp elected to file a formal complaint and to have a closed hearing.
Grievance Procedure for the Resolution of Complaints of Discrimination (hereinafter Grievance Procedure).
Grievance Procedure at 4.
Grievance Procedure at 1.
On December 7, 1984, Kemp contacted the office of United States Senator William Armstrong (R. Colorado) and requested that his office monitor her complaint. Senator Armstrong's office responded by requesting that Kemp keep the senator advised. On January 27, 1985, after the hearing but before a decision had been rendered, Kemp's husband wrote another letter to Senator Armstrong's office on behalf of Kemp and with her knowledge and assistance. The letter asserted irregularities in Kemp's grievance hearing, that a university official had suggested Kemp quietly resign, and requested a review by the local United States Attorney's Office of "possible civil rights violations."
The full text of the letter is: "My wife, Sandra, recently had an EEO hearing at CSU. I appeared as one of the witnesses. "During the proceedings, we both observed too many irregularities practiced by the EEO office to prejudice the case in the defendants' favor. We are presently awaiting the panel's decision. "Regardless of the decision, it has even been suggested that my wife quietly resign with the promise of good references because nothing will be probably done to the perpetrators. "Would your office please assist my wife in maintaining her employment at CSU? As you mentioned in your letter to Sandra dated December 13th, the Senator may request a proper review of my wife's complaints by the U.S. Department of Agriculture. Perhaps you might also, at your discretion, request an investigation of possible civil rights violations by the U.S. Attorney's Office."
On February 13, 1985, the office in charge of investigating discrimination complaints at CSU wrote Kemp and informed her that the proceedings in her case had been "voided." The school stated that Kemp had violated the grievance rules by informing an outside party, Senator Armstrong, which was prohibited when the complainant elected to proceed with a formal complaint and a closed hearing. The letter informed Kemp that all internal mechanisms for lodging a discrimination complaint were exhausted.
Kemp appealed to the university president, who upheld the decision on March 22, 1985. Thereafter, Kemp filed a complaint in state district court alleging that CSU's action in terminating her proceedings violated her state constitutional rights and her federal first amendment rights to free speech, petition, and due process of law under the fourteenth amendment in violation of 42 U.S.C. § 1983. Following limited discovery, the parties filed cross motions for summary judgment. On November 5, 1987, the trial court ruled that her speech was not a matter of public concern and was not protected under Connick v. Myers, 461 U.S. 138 (1983). The court further ruled that even if protected, the state's interest in maintaining its procedures outweighed Kemp's interest and granted summary judgment for the state.
The court of appeals affirmed in Kemp v. State Board of Agriculture, 790 P.2d 870 (Colo.App. 1989), holding that Kemp's speech was not protected, and did not address the balancing of Kemp's interests with those of the state. For the reasons set forth in this opinion, we affirm.
I
The tension between the free speech rights of a state employee and the interests of a state employer was first addressed by the United States Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968). Pickering reversed a decision upholding the termination of a public school teacher for writing a letter to the editor addressing an upcoming school bond issue. The Court held that "absent proof of false statements knowingly or recklessly made . . . , a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment." Id. at 574. Pickering stated the problem was to "arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. at 568. The teacher's relationship with the school board was "not the kind of close working relationship for which it [could] persuasively be claimed that personal loyalty and confidence [were] necessary to" the state's interests in maintaining discipline or harmony within the workplace. Id. at 570.
In Mt. Healthy Board of Education v. Doyle, 429 U.S. 274 (1977), the Court held that the state was not constitutionally precluded from choosing not to renew a teacher's contract unless the teacher could show that the protected conduct at issue "played a `substantial part' in the actual decision not to renew," and the state could not show that it would have reached the same decision "even in the absence of the protected conduct." Id. at 285-87. Then, Connick v. Myers, 461 U.S. 138 (1983), upheld the termination of an assistant district attorney based partially on her exercise of constitutionally protected speech. Once the employee showed that the speech "touched upon a matter of public concern," id. at 149, and was therefore protected, the burden shifted to the state to justify the termination by showing that its interests outweighed the employee's interests in exercising her free speech rights. Id. at 150.
Clarifying the balancing test, Rankin v. McPherson, 483 U.S. 378 (1987), held that a constable's office clerk could not be fired for stating that she hoped the President would be assassinated. "Where, as here, an employee served no confidential, policymaking, or public contact role, the danger to the agency's successful functioning from that employee's private speech is minimal." Id. at 391-92 (government's interest may be greater when speaker is in a policymaking role). The Court stated that the employee's speech "dealt with a matter of public concern," was a substantial motivation in the decision to fire the employee, and that the state's interests did not outweigh those of the employee. Id. at 386-92. In performing that balancing, "the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose." Id. at 388.
In Johnson v. Jefferson County Board of Health, 662 P.2d 463, 473 (Colo. 1983), we said, "If the government could deny a benefit to a person solely because of the exercise of constitutionally protected speech, the exercise of that freedom would in effect be penalized and inhibited." In adopting the Mt. Healthy test, we stated, "The free speech interest of most government employees generally will be substantial enough to prohibit discharge or termination solely because of the employee's exercise of First Amendment rights on a matter of public interest." Id. See also Durango School Dist. v. Thorpe, 200 Colo. 268, 275, 614 P.2d 880, 885 (1980) (balance will be struck in favor of the government "when it is demonstrated that the teacher's speech activities constitute a material or substantial interference with the teaching program, appropriate discipline, or the rights of others." (Citing Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969).) It is with these factors in mind that we must review Kemp's claim that she was denied an employment benefit in retaliation for an exercise of a constitutionally protected activity.
In Johnson, we also stated, "The constitutional balance weighs more heavily in favor of the governmental interest in efficient operations in the case of policymaking employees." Johnson, 662 P.2d at 473. CSU does not argue that Kemp was in a policymaking role.
II
As a preliminary matter, CSU has implicitly raised the issue that Connick is limited to those situations in which the employee is actually terminated, which Kemp was not. In Perry v. Sindermann, 408 U.S. 593, 597 (1972), the Court said that the state "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech." (Emphasis added.) See also Johnson, 662 P.2d at 472 (state cannot deny a " benefit to a person solely because of the exercise of constitutionally protected speech . . . ." (Emphasis added.) Although Kemp was not actually terminated because of the letter, she was denied an important employee benefit of access to the internal grievance procedure. The state cannot deny a benefit when it is constitutionally precluded from firing the employee for the same reason. CSU's assertion that Connick does not apply to these facts must therefore be rejected.
III
To determine whether CSU's actions violated Kemp's constitutional rights, we employ the four-step test created by the foregoing cases. First, Kemp must show that her speech "touch[es] upon a matter of public concern." Connick, 461 U.S. at 149. Second, if the speech is a matter of public concern, the burden shifts to the state to show that its interests outweigh the employee's interest, "as a citizen, in commenting upon matters of public concern . . . ." Pickering, 391 U.S. at 568. Third, if the state shows that the Pickering balance is weighed in its favor, it is unnecessary to go further because the state has met its burden of showing that it terminated the employee or denied her a benefit for legislative reasons. If not, the employee must show that the protected activity was a substantial or motivating factor in the school's decision to deny the benefit. Mt. Healthy, 429 U.S. at 287. Finally, the school may still defeat the employee's claim if it can show that it would have reached the same decision even in the absence of the protected conduct. Id.; see also Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 416 (1979).
A
Kemp's first burden is to show, by a preponderance of the evidence, that her speech touched on "matters of public concern" and therefore fell within the first amendment's protection. Connick, 461 U.S. at 138; Johnson, 662 P.2d at 472. If not, it is unnecessary to scrutinize the reasons for terminating the proceeding. "When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Connick, 461 U.S. at 146.
The court of appeals upheld the trial court finding that Kemp's letter was not addressed to a matter of public concern since it focused "on [Kemp's] concerns about irregularities in her own hearing, rather than seeking to alert the senator or the public to broader discriminatory problems at the university." 790 P.2d at 872.
"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48 (footnote omitted).
Some courts have chosen to look primarily at motivation, or the "point" of the speech. See, e.g., Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir. 1987) (" Connick test requires us to look at the point of the speech in question" (citations omitted)); Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir. 1985) (is the employee's point to bring wrongdoing to light, raise issues of public concern because they are public concern, or to further some purely private interest?) Undoubtedly, Kemp's point in sending a letter was partially, if not entirely, motivated by self interest. Other courts, however, have not made that the sole determinative question. In Johnson v. Lincoln University of Commerce, 776 F.2d 443, 452 (3d Cir. 1985), the court said, "Speech touches upon a matter of public concern when it can `be fairly considered as relating to any matter of political, social, or other concern to the community.'" (Quoting Connick, 461 U.S. at 146.) "[T]he mere fact that an employee's statement is an `outgrowth of his personal dispute' does not prevent some aspect of it from touching upon matters of public concern, as Connick itself makes clear." Johnson, 776 F.2d at 451.
In Connick, an assistant district attorney, who was unhappy about a pending transfer, circulated a questionnaire soliciting her co-workers' comments on office management. For the most part, the Court viewed Myers' speech as "mere extensions of Myers' dispute over her transfer . . . ." Connick, 461 U.S. at 148. The Court did find, however, one question directed to whether attorneys were pressured to work on political campaigns to be of public concern, notwithstanding that the question arose out of Myers' personal dispute or that it was aimed at solving a private problem. Id. at 149. See also Zamboni v. Stamler, 847 F.2d 73, 77-78 (3d Cir.), cert. denied, 488 U.S. 899 (1988) (employee's speech touched upon public concern even though his sole purpose was to invalidate a promotional plan adverse to him); Rode v. Dellarciprete, 845 F.2d 1195, 1202 (3d Cir. 1988) ("Dismissing Rode's speech as unprotected merely because she had a personal stake in the controversy fetters public debate on an important issue because it muzzles an affected public employee from speaking out."); Wren v. Spurlock, 798 F.2d 1313, 1317 (10th Cir. 1986), cert. denied, 479 U.S. 1085 (1987) (employee's letter complaining of sexual harassment public concern although letter arose from conflict between teacher and principal).
Here, Kemp wrote a letter to her elected representative complaining of irregularities in the grievance hearing, alerting the senator to the possibility that no action would be taken regardless of the outcome, and requesting that the United States Attorney's Office "investigate possible civil rights violations."
At least part of Kemp's letter seems directed at exposing racial discrimination problems within the university. We recognize that there is a significant difference between questions surrounding the fairness of office transfer policies, as in Connick, and questions concerning racial discrimination, which are presented here. "[I]t is clear that [the employee's statement in Givhan] concerning School District allegedly racially discriminatory policies involved a matter of public concern." Connick, 461 U.S. at 146. It cannot be said speech that touches upon discrimination within a university system does not relate to "any matter of political, social, or other concern to the community." Johnson, 776 F.2d at 452. This case is similar to Rode, in which the Third Circuit emphasized that the plaintiff was not merely complaining about being mistreated, "she claimed that she was a victim of retaliation arising out of racial animus . . . ." 845 F.2d at 1201. "If, in fact, the employee's speech is largely composed of matters of only personal concern, that becomes relevant when the balancing is done, not in the determination whether the speech touches upon matters of public concern." Johnson, 776 F.2d at 451.
Although the context within which Kemp's letter arose was one in which she had a personal stake, it was nevertheless a context in which charges of racial discrimination had been filed. The very purpose of the grievance was to address alleged discrimination, which the grievance manual defines as any act or policy that violates any of a multitude of state and federal anti-discrimination laws, all of which are public matters. Moreover, the form of the speech — a letter to a United States senator, only lends credence to the argument that the speech touched on a matter of public concern.
Grievance Procedure at 2.
When an employee alleges a colorable claim that a university is guilty of racial discrimination, it is a matter of public concern, and the fact that she has a personal stake in the outcome does not alchemize that claim into a purely private matter in which the public has no interest.
B
In holding that Kemp's letter touched on a matter of public concern, we have only resolved one part of the Connick test. Even though speech may be of public concern, it is still incumbent upon the court to balance the interests of the speaker with those of the state in its capacity as an employer. "The inquiry into the protected status of speech is one of law, not fact." Connick, 461 U.S. at 148 n. 7. That balancing requires "full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public." Id. at 150. In this case, CSU argues that its interests are in maintaining the integrity of its grievance procedure, which Kemp violated. Here, the state "bears a burden of justifying [terminating the procedure] on legitimate grounds." Id. Relevant factors include "the manner, time, and place of the employee's expression . . . [and] the context in which the dispute arose." Rankin, 483 U.S. at 389.
CSU's grievance manual provides that an employee may select a formal or informal procedure, and an open or closed hearing. If the employee selects a formal procedure, she may not seek remedies in other agencies or the courts until the hearing is complete. Although the manual neither defines what a closed hearing is, nor specifies what sanctions will occur if any of the provisions are violated, "closed" clearly indicates that outside forces may not be invited into the proceedings until a decision has been rendered. Kemp's interest here, then, is slight. She was given the choice to elect a formal or informal procedure, and an open or closed hearing. She chose a formal, closed proceeding and then violated that procedure by involving an outside individual in hopes of influencing a favorable result.
An employee cannot invoke the first amendment's protection by simply using the term "discrimination." There must be some attempt to inform the public of discriminatory practices rather than a motive primarily aimed at simply "gather[ing] ammunition for another round of controversy with her superiors." Connick, 461 U.S. at 148. Kemp's letter is entirely couched in terms of what the senator could do to help her, rather than exposing an alleged university discrimination problem to the public. Kemp's reference to the United States Attorney's Office seems primarily aimed at eliciting an investigation of her complaint, rather than alerting the public to a larger problem. In other words, the sole motivating factor for the letter was to further Kemp's own cause, rather than a larger, more publicly important problem. As in Connick, "When employee speech concerning office policy arises from an employment dispute concerning the very application of that policy to the speaker, additional weight must be given to the [state]." 461 U.S. at 153. Kemp's letter "touched on matters of public concern in only a most limited sense; [Kemp's letter], in our view, is most accurately characterized as an employee grievance concerning internal office policy." Id. at 154.
Balanced against Kemp's interest is the school's interest in having an internal grievance procedure that is followed by all parties. Although unartfully drawn, CSU's grievance procedure is clear enough for Kemp to have understood the consequence of selecting a particular method for solving her complaint. That she decided to go outside that procedure cannot now be held against the university.
The state has met its burden of showing that Kemp's letter "impair[ed] discipline by superiors or harmony among co-workers, [had] a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impede[ed] the performance of the speaker's duties or interfer[ed] with the regular operation of the enterprise." Rankin, 483 U.S. at 388 (quoting Pickering, 391 U.S. at 570-73) (emphasis added). That Kemp's letter is composed of matters of only personal concern to her weighs against her in the balancing. Johnson, 776 P.2d at 451. Given the circumstances, the trial court correctly found that CSU's interest in maintaining its grievance procedure outweighed whatever interest Kemp had.
IV
Neither this court nor the United States Supreme Court has addressed the problem of whether a person's right to petition under the first amendment is balanced under the Connick test. Even assuming that Kemp's right to petition was implicated, the Pickering/Connick balancing test is equally applicable in deciding whether the state's interest as an employer outweighs the first amendment interest of the employee. There is no more of an absolute right to petition than there is to engage in speech. McDonald v. Smith, 472 U.S. 479 (1985) (petition clause does not grant absolute immunity to libel action):
"[T]he Court's decisions interpreting the Petition Clause in contexts other than defamation indicate that the right to petition is [not] absolute. For example, filing a complaint in court is a form of petitioning activity; but `baseless litigation is not immunized by the First Amendment right to petition.' Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983); accord, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972). Similarly, petitions to the President that contain intentional and reckless falsehoods `do not enjoy constitutional protection,' Garrison v. Louisiana, 379 U.S. 64, 75 (1964) . . . ."
Id. at 484.
At most, Kemp waives her right to petition for only the amount of time needed for the formal grievance procedure to run its course, and then only if she chooses that procedure. We can find no stronger interest here than Kemp had under the free speech clause, and the state's interest is equally compelling. Once again, the state has met its burden of showing that it terminated the procedure for legitimate reasons. Connick, 461 U.S. at 150.
V
Because we hold that the state's interest outweighs Kemp's interest in her rights to free speech and to petition, it is unnecessary to go further and determine whether Kemp's conduct was a substantial or motivating factor in the school's decision to void the procedure, or whether the procedure would have been terminated absent the protected conduct.
Accordingly, we affirm the trial court and the court of appeals.
JUSTICE MULLARKEY dissents and JUSTICE LOHR and JUSTICE QUINN join in the dissent.