Azzaro v. Allegheny

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
4-11-1997
Azzaro v. Allegheny
Precedential or Non-Precedential:
Docket 95-3253
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997
Recommended Citation
"Azzaro v. Allegheny" (1997). 1997 Decisions. Paper 81.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/81
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 95-3253
BEVERLY A. AZZARO
v.
COUNTY OF ALLEGHENY; TOM FOERSTER,
an individual and Chairman, Allegheny County Commissioners and
WAYNE FUSARO
BEVERLY AZZARO,
Appellant
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civil Action No. 93-1589)
Argued December 7, 1995
BEFORE: STAPLETON, SAROKIN,* and ROSENN, Circuit Judges
Reargued En Banc
December 2, 1996
BEFORE: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN,
GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH,
LEWIS, MCKEE and ROSENN, Circuit Judges
(Opinion Filed April 11, 1997 )
Michael J. Healey (Argued)
Healey, Davidson & Hornack
429 Fourth Avenue
Law & Finance Building, 5th Floor
Pittsburgh, PA 15219
Attorney for Appellant
* Hon. H. Lee Sarokin heard argument before the original panel
but retired from office prior to the en banc hearing.
1
Ira Weiss, County Solicitor
Robert L. McTiernan (Argued)
Assistant County Solicitor
Caroline Liebenguth
Assistant County Solicitor
Allegheny County Law Department
300 Fort Pitt Commons Building
445 Fort Pitt Boulevard
Pittsburgh, PA 15219
Attorneys for Appellees
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Plaintiff Beverly Azzaro worked for Allegheny County in
various capacities from March, 1979, until June 19, 1992, when
she was discharged from her position as marketing coordinator in
the Allegheny County Department of Development. Azzaro claims
that her discharge was in retaliation for her reporting an
incident of sexual harassment by an executive assistant to the
County Commissioner. The district court entered summary judgment
against Azzaro.
We conclude that there was sufficient evidence from
which a reasonable factfinder could conclude that there was a
causal link between plaintiff's report of sexual harassment and
her termination. We also conclude that plaintiff’s report of
sexual harassment is constitutionally-protected speech. We will
reverse the district court and remand for a resolution of the
remaining factual issues.
2
I.
Because we are obligated on summary judgment to view
the facts in the light most favorable to the nonmoving party, we
will present Azzaro's version of the events leading up to her
discharge. According to Azzaro, the chain of events that
resulted in her termination began on June 11, 1991 -- just over a
year before she was discharged -- when her husband, who was also
employed by the County, had a verbal confrontation with employees
of the County Department of Employee Relations regarding the
manner in which the Azzaros' daughters were treated in connection
with their applications for jobs as County lifeguards. The
Director of the Department of Employee Relations reported the
incident to Harry Kramer, who was an executive assistant to then-
County Commissioner Tom Foerster, indicating that his employees
were upset by Mr. Azzaro's behavior. Kramer instructed Wayne
Fusaro, another of Foerster's executive assistants, to speak with
Mr. Azzaro and request that he apologize. Fusaro spoke with Mr.
Azzaro, and Mr. Azzaro apologized to the appropriate people.
Azzaro learned of these events a day or two later
through her husband and a co-worker, Donna Brusco. She was told
by the co-worker that Mr. Azzaro's job might be in danger as a
result of the incident. Fearing for her husband's position and
hoping to smooth things over, Azzaro went to Commissioner
Foerster's offices to talk to Fusaro. Azzaro testified that,
after she had entered Fusaro's office and seated herself, Fusaro
shut the office door and pulled a chair very close to hers. He
3
then began pulling open the lapels of her blazer, saying "let me
see." App. 120. She tried to hold the blazer shut, telling him
to stop, and saying "[w]hat the hell is wrong with you," but he
put his hand inside and pulled her blouse out of her slacks.
App. 121. Azzaro continued to try to evade Fusaro, standing when
he sat down and sitting when he stood. Suddenly, Fusaro unzipped
his pants and put his hand inside the zipper. App. 122. Azzaro
stood up and said loudly, "[a]re you nuts." Id. As soon as
plaintiff "got loud," Fusaro "assumed . . . [a] professional
attitude." App. 123. He sat down at his desk and took a phone
call. After he hung up, he said, "Beverly, I want you to promise
what happened here is never going to go any further." App. 124.
Azzaro promised.
Allegheny County's policy regarding sexual harassment
defines it as conduct "includ[ing] any unwelcome sexual advances,
request for sexual favors, and other verbal, visual, or physical
conduct of a sexual nature." App. 56. Under the terms of the
policy, an employee who has been subjected to sexual harassment
"should bring the matter to the immediate attention of his or her
supervisor." Id. Following such a report, the County Equal
Employment Opportunity Director is required to "promptly
investigate . . . in as confidential a manner as possible" and to
submit a report to the Director of Administration within thirty
days. Id. It is the Director of Administration who is
authorized to "take appropriate corrective action." Id.
Azzaro did not immediately report the sexual harassment
incident with Fusaro to her supervisor. However, she did tell
4
her daughters of the incident on the day it occurred, and she
told her husband and a friend the following day. She and her
husband decided at that time not to report the matter or pursue
it further for fear that they could lose their jobs.
In October 1991, Azzaro did finally tell her
supervisor, Tom Fox, of the incident. She first brought the
matter to Fox’s attention at a party, during a discussion of
Anita Hill’s testimony at the Clarence Thomas confirmation
hearings. Fox expressed shock and urged Azzaro to report the
incident and pursue it through the proper channels. The
following Monday, he called her into his office, asked her to
repeat the story, and pressed her once again to report the
incident to the Director of the Department of Development, Joe
Hohman. He told her that if she did not report it, he would be
obliged to do so on his own. Azzaro asked him not to do so,
telling him, "I ... [am] scared for my job and my husband's job."
App. 163.
Subsequently, Fox told Hohman himself. In so doing, he
impressed upon Hohman that he was telling him in confidence and
that Hohman should not take any action unless he felt that he had
an obligation to do so as director of the department. Hohman
told Fox that if Azzaro wanted to pursue the matter, she would
have to report to him directly.
Meanwhile, Hohman was growing concerned that his
relationship with Commissioner Foerster was deteriorating because
Foerster no longer sought his input or advice. Hohman scheduled
a meeting with Commissioner Foerster in December, 1991 to address
5
these concerns. Foerster invited his executive assistants,
Fusaro and Kramer, to attend. During the course of the meeting,
Hohman stated that he "had problems with the people [Foerster]
was surrounding himself" with, such as Wayne Fusaro. Hohman
testified that he said at the meeting,
Wayne Fusaro ... potentially has a sexual harassment
case coming against him from an employee in
my office who I cannot name because the
employee has not given me permission to name,
but it occurred right upstairs in this
office, Commissioner, over a summer job for
her daughters.
App. 361-62. Both Foerster and Kramer offered a slightly
different account, testifying that Hohman mentioned a possible
lawsuit against Fusaro but did not say that it concerned
allegations of sexual harassment or offer any other details
regarding the incident or the alleged victim. However, both men
have testified under oath in a related case that Hohman accused
Fusaro of sexual harassment at that meeting. App. 306, 433.1
Just as this meeting was taking place, Azzaro reported
the harassment incident to the County Director of Administration,
Sal Sirabella, the official ultimately responsible for reviewing
reports of sexual harassment and deciding what corrective action
to take. When he asked what she wanted him to do, she replied:
"I don't know what to do. That's why I'm here." App. 146-47.
1. That related case was initiated by other former employees of
the Allegheny County Department of Development who were
discharged when their positions were eliminated at the same time
as Azzaro’s. These other employees claimed that their discharges
were impermissibly in retaliation for their support of Joe
Brimmeier, an anti-Foerster candidate for prothonotary. See
Carver v. Foerster, 102 F.3d 96 (3d Cir. 1996).
6
Sirabella allegedly replied, "[L]et's leave it alone for now
...." App. 147. Azzaro testified that she did not ask Sirabella
to keep their conversation confidential. According to Sirabella,
however, Azzaro asked him to keep the content of their
conversation confidential. Mr. Azzaro, who attended the meeting
with Sirabella, also indicated that he thought his wife told
Sirabella that "she'd prefer him to keep it confidential." App.
225. Sirabella did not take any action.
That evening, Donna Brusco phoned Azzaro at home. She
had spoken to Fusaro about the incident in Commissioner
Foerster's office. Brusco told Azzaro that Joe Hohman had been
in Commissioner Foerster's office that day, that he had been
"extremely upset," and that he "was screaming at Commissioner
Foerster that Wayne [Fusaro] was a pervert." App. 168. Brusco
said that Fusaro had been too upset to tell her all the details.
She then asked Azzaro why she had gone to see Sirabella that
day. Subsequently, Fusaro asked Sirabella "three or four times"
what the purpose of Azzaro's visit had been. App. 172.
Azzaro alleges that she was fired in retaliation for
her reporting of the Fusaro incident. According to Azzaro, this
retaliation was initiated by Fusaro and Brusco. Fusaro began by
calling Don Kovac, who was the Director of Employee Relations
during the relevant time period and was responsible for
coordinating personnel activity for all County employees. Fusaro
told Kovac that he suspected that the Department of Development,
where Azzaro worked, had employees on the payroll who were
disloyal to Commissioner Foerster. He asked Kovac to allow Donna
7
Brusco and another member of the Employee Relations Department to
"review the entire payroll in the Department of Development to
pick out people that were loyal to Foerster and people that were
loyal to Brimmeier," who was Foerster's opponent. App. 417.
Because Brusco had worked for the Department of Development until
she was transferred to the Employee Relations Department at
Fusaro's request in the fall of 1991, she was believed to be
familiar with the entire Department of Development payroll and
aware of people's loyalties. Fusaro told Kovac that he had
authorization to compile the list from both Commissioner Foerster
and Harry Kramer, Foerster's other executive assistant.
Accordingly, Kovac granted his permission and appointed John
Chapman, another employee of the Employee Relations Department,
to assist Brusco.
Sometime between February and April 1992, Chapman and
Brusco reviewed the list of Department of Development employees
in accordance with Fusaro's request. As they did so, Brusco
identified certain names as pro-Foerster or anti-Foerster.
Azzaro alleges that the list of anti-Foerster names was a "hit
list" and that she was a target. Indeed, Chapman testified that
he had heard Fusaro say on more than one occasion that Brimmeier
supporters would be "retaliated against." App. 273. When
Chapman and Brusco reached Azzaro's name, according to Chapman,
Brusco said, "We're going to get this bitch." App. 279.
Meanwhile, in March 1992, George Braun replaced Hohman
as Director of the Department of Development. Braun caused the
Department of Development to enter into an agreement with the
8
federal Department of Housing and Urban Development (HUD) which
required the County department to spend less than the permitted
amount on administrative expenses for three years, to offset
excess administrative expenses incurred in prior years. Braun
pursued this agreement in response to a HUD directive requiring
the department to reduce the portion of its budget dedicated to
administrative expenses by two or three percent in order to
retain its federal funding. While this same federal directive
had been in place during Hohman's tenure as Director of the
Department of Development, Hohman had not taken steps to address
it because he believed the problem would correct itself over
time.
Braun also drafted a proposal to reorganize the
department by, among other things, merging several divisions and
eliminating the Marketing Division, in which Azzaro worked.
Under the heading "Positions to be Terminated," the proposal
specifically named Azzaro and Tom Fox, the supervisor to whom she
had first reported the harassment incident, along with two
employees whose pensions had already vested. App. 31. At the
same time, the proposal recommended hiring nine new employees and
increasing the salaries of eight others.
Braun submitted this proposal to Commissioner
Foerster's office, which approved it and passed it on to the
Salary Board. On June 18, 1992, the Salary Board approved the
proposed restructuring of the Department of Development. The
following day Braun told Azzaro that her position would be
eliminated as of August 1 due to budgetary reasons unrelated to
9
her job performance. No effort was made to find another position
for Azzaro with the County government.
In September, 1993, Azzaro filed this suit against the
County of Allegheny, Commissioner Tom Foerster, and Wayne Fusaro.
The complaint alleges retaliatory discharge against Allegheny
County in violation of 42 U.S.C. § 2000(e); asserts a claim
against all defendants under 42 U.S.C. § 1983 for infringement of
Azzaro's First Amendment rights; and alleges violations of the
Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 955(a),
(d) & (e), against Allegheny County. Defendants filed a joint
motion for summary judgment which the district court granted,
deciding the two federal claims on the merits and declining to
exercise supplemental jurisdiction over plaintiff's state-law
claims. We exercise plenary review over the district court's
decision to grant summary judgment. Commercial Union Ins. Co. v.
Bituminous Cas. Corp., 851 F.2d 98, 100 (3d Cir. 1988).
10
II.
Azzaro alleges that the County violated Title VII by
discharging her in retaliation for her reports of sexual
harassment. To establish a prima facie case of retaliatory
firing in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000(e), a plaintiff must establish that (1) she
engaged in a protected activity; (2) she was discharged after or
contemporaneously with that activity; and (3) there was a causal
link between the protected activity and the firing. Quiroga v.
Hasbro, Inc., 934 F.2d 497, 501 (3d Cir. 1991). In this case,
the district court concluded that Azzaro had failed to bring
forward any competent evidence of a causal connection between her
allegations of sexual harassment and her discharge, and therefore
granted summary judgment in favor of defendants. Azzaro v.
County of Allegheny et al., No. 93-1589, slip op. at 19 (W.D. Pa.
Mar. 31, 1995). Specifically, the court found "no competent
evidence that those persons involved in the decision to
reorganize the [Department of Development] were aware of the
alleged sexual harassment prior to the approval of the
reorganization." Id.We disagree. While it is true that Foerster, Kramer,
and Braun have denied having knowledge of the alleged sexual
harassment prior to the termination, and while there is no
evidence that the members of the Salary Board other than Foerster
had such knowledge at the time of the Board's action, the
district court's conclusion overlooks a great deal of direct and
circumstantial evidence favoring Azzaro's position. That
11
evidence would support an inference that Foerster, Kramer,
Fusaro, and Braun, with knowledge of the harassment incident and
of Azzaro's reports, agreed to "get" her, and that they included
a minor provision in the reorganization to accomplish this
objective covertly, securing the routine approval of an
unsuspecting Salary Board which cared about nothing more than
that Foerster had approved the reorganization and that it would
save the County money.
First, Azzaro produced evidence showing that Hohman
stated at a meeting with Foerster, Fusaro, and Kramer that Fusaro
sexually harassed a Department of Development employee who had
come to see him in connection with summer jobs for her daughters.
As both Fusaro and Kramer had been informed of the incident with
Azzaro's husband and had been involved in resolving the dispute,
Hohman's statement is sufficient to support a finding that Fusaro
and Kramer knew of Azzaro's allegations. Moreover, since Fusaro
and Kramer were close personal advisors of Foerster and since
Foerster was present at the meeting with Hohman, a reasonable
jury could find that it is more probable than not that Foerster,
too, knew, as of the day of the meeting or shortly thereafter,
that Azzaro was the employee in question.
There is further evidence that Fusaro, with the
authorization of Foerster, thereafter caused a "hit list" to be
prepared and Azzaro's name to be included on that list. There is
no evidence suggesting any reason for Azzaro's inclusion other
than her reporting the sexual harassment allegation to Fox and
12
Sirabella.2 Other evidence indicated that Braun, a new member of
the Foerster team, conferred frequently with Fusaro and Kramer
during the period in which the "hit list" and the
"reorganization" were being prepared. Even if he did not himself
know of Azzaro’s allegations against Fusaro, a reasonable juror
could infer that Braun knew Azzaro was for some reason on a “hit
list,” and that he sought to aid the efforts to “get” Azzaro by
including her discharge as part of his reorganization plan.
It is true, as defendants point out, that these
individuals could not implement the reorganization plan
themselves. To discharge Azzaro in this manner, it was necessary
to obtain the approval of the Salary Board. While there is no
evidence that a majority of the Board’s voting members had actual
knowledge of Azzaro’s reports when they approved the
reorganization, this does not preclude Azzaro from recovering on
her Title VII retaliation claim. See generally Bartholomew v.
Fischl, 782 F.2d 1148, 1153 (3d Cir. 1986) (holding that
plaintiff may state claim of constitutional deprivation against
city by alleging that mayor, who was powerless to discharge
plaintiff, persuaded city council to eliminate plaintiff’s
position). To hold otherwise would be to grant public officials
carte blanche to retaliate against employees as long as the
retaliation is formally effectuated by the “rubber stamp”
2. In particular, there is no evidence in the record that
Azzaro was placed on the list because she was, or was perceived
to be, a supporter of Joe Brimmeier and therefore disloyal to
Foerster. See supra note 1.
13
approval of another public agent. Title VII’s prohibitions
cannot be so easily evaded.
There is evidence from which a reasonable juror could
conclude that it is a routine matter for the Salary Board to
approve, with little or no discussion, proposals which purport to
save the County money. During his deposition, Commissioner
Foerster gave the following testimony concerning the Salary Board
proceedings:
Q. Who sits on the Salary Board?
A. Three Commissioners and the Controller.
Q. From looking at that document, do you have any way
of telling what the vote was to approve
Braun's request?
A. I would have to check the minutes to make sure that
it was approved. I would have no reason to
vote against it, because I note the annual
net savings of the Salary Board was $39,000.
Q. At the time the request for Salary Board action was
presented, was there a discussion among the
Commissioners and the Controller concerning
the request, that you recall?
A. No, I do not.
* * * *
Q. At the Salary Board meeting itself, are there
typically discussions within that Salary
Board meeting about the pros and cons of the
proposals that come to the Salary Board or
are they just routinely approved?
A. If there is any questions [sic] by the Salary
Board, they're asked at the Salary Board
meeting. Otherwise they're routinely
approved. Especially those requests for
Salary Boards that indicate a savings of
money.
App. 300-01.
14
Also significant in the context of the causation issue
is the apparent fact that no one else in the recent history of
the County had been terminated in the way Azzaro was discharged.
Although the County had frequently eliminated vacant positions
in the past, only once in the preceding fourteen years had it
eliminated positions occupied by an incumbent -- and those jobs,
unlike Azzaro's, had been designated from the outset as temporary
positions. Moreover, the Department of Employee Relations had,
as its director testified, "made every attempt to place" the
displaced employees in new positions for the County. App. 407.
In Azzaro's case, by contrast, no attempt was made to retain her
as a County employee, notwithstanding the fact that there were
hundreds of unfilled County positions available at the time of
her discharge.
Additionally, Azzaro tendered evidence from which it
could be inferred that the reason given by Braun for her
discharge was pretextual and, accordingly, that the
reorganization plan was simply a cover for an illicit motive.
There is substantial evidence in the record indicating that,
contrary to the County’s contention, budgetary constraints did
not compel Azzaro’s discharge. That evidence indicated that the
administrative cost overrun could have been corrected by
attrition, without layoffs; that the reorganization plan which
resulted in Azzaro's termination also recommended nine new hires
and eight salary increases; that drastic measures were not
necessary because the Department had four years to solve the
15
budget problem; and that the problem was ultimately fully
addressed by the end of 1992, two years earlier than was
required. Based on all of the evidence, we believe a jury could
reasonably find that Azzaro’s termination was not necessary to
bring the County into compliance with the HUD directive.
We thus conclude that granting summary judgment for the
County on Azzaro's Title VII claim was inappropriate.
III.
In addition to her retaliatory discharge claim against
her employer under Title VII, Azzaro asserts a retaliatory
discharge claim against all of the defendants under § 1983.
Specifically, she alleges that the defendants, acting under color
of state law, violated her rights under the First Amendment by
discharging her in retaliation for her reports to Fox and
Sirabella. We conclude that summary judgment was erroneously
granted on this claim as well.
We must first inquire whether Azzaro's reports to Fox
and Sirabella were protected by the First Amendment. This is a
question of law. See Watters v. City of Philadelphia, 55 F.3d
886, 892 (3d Cir. 1995). We must then determine whether the
record reflects a material dispute of fact on two factual issues:
whether those reports were a motivating factor in the decision
to discharge Azzaro and whether Azzaro would have been discharged
for other reasons even in the absence of those reports. See id.A.
16
Our analysis for determining whether Azzaro’s sexual
harassment reports were protected by the First Amendment is
dictated by Connick v. Myers, 461 U.S. 138 (1983). There the
Supreme Court held that the expressive rights of public employees
are more restricted than those of public citizens who are not in
an employment relationship with the government. Therefore, a
discharged public employee cannot receive redress in a § 1983
action simply by showing that the same speech would be protected
from government sanction were it to be engaged in by a non-
employee citizen.
The facts of Connick can be succinctly stated. Myers,
an Assistant District Attorney, was very unhappy about the
District Attorney's decision to transfer her to a different
division of the criminal court. In the course of her discussion
with her superior about the impending transfer, she complained
about other conditions in the office. When he responded that he
did not think her grievances were shared by others, Myers decided
to draft and circulate a questionnaire among her peers. The
questionnaire inquired of the respondents, inter alia, what they
thought of the trustworthiness of named superiors and the current
state of morale in the office. It also inquired about whether
they had ever been pressured to participate in political
campaigns. Myers was then discharged for her distribution of the
questionnaire, which she claimed violated her First Amendment
right to free speech.
The Connick Court began its analysis of Myers’ claim
with an historical note:
17
For most of this century, the unchallenged
dogma was that a public employee had no right
to object to conditions placed upon the terms
of employment -- including those which
restricted the exercise of constitutional
rights. The classic formulation of this
position was that of Justice Holmes, who,
when sitting on the Supreme Judicial Court of
Massachusetts, observed: "[A policeman] may
have a constitutional right to talk politics,
but he has no constitutional right to be a
policeman." McAuliffe v. Mayor of New
Bedford, 155 Mass. 216, 220, 29 N.E. 517(1892).
Connick, 461 U.S. at 143-44. The Court hastened to add, however,
that subsequent cases had accorded public employees some
protection against adverse employment actions based on expressive
activity. Relying primarily on Pickering v. Board of Educ., 391
U.S. 563 (1968), and its progeny, the Court held that a public
employee’s expressive conduct is constitutionally protected only
when two conditions are satisfied. First, the employee’s conduct
must address a "matter of public concern," which is to 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. Second, the value of that expression must outweigh
"the government's interest in the effective and efficient
fulfillment of its responsibilities to the public." Id. at 150.
A discharged public employee is entitled to no redress if her
expression is not related to a matter of public concern or, even
if it is so related, if its value is outweighed by the value of
permitting the government to take action promoting efficiency and
effectiveness.
18
Applying this analysis to the facts before it, the
Court found that most of Myers’ speech was unprotected. Her
questions about the trustworthiness of the supervising attorneys
and the morale in the District Attorney's office were not related
to matters of public concern, and, therefore, were not protected
by the First Amendment. In the context of a disgruntled employee
who was only seeking "to gather ammunition for another round of
controversy with her superiors," id. at 148, Myers' questions
about trustworthiness and morale were not communications in which
the community would have a significant interest. By contrast,
however, her suggestion that there might be pressure from
superiors in the office to participate in political campaigns was
found to be a matter of public concern.
After Connick, then, the expressive rights of public
employees are not as expansive as those of citizens outside the
public work force. “[T]he government’s role as employer . . .
gives it a freer hand in regulating the speech of its employees
than it has in regulating the speech of the public at large . . .
.” Waters v. Churchill, 511 U.S. 661, ___, 114 S. Ct. 1878, 1886
(1994) (plurality opinion). Only a subset of speech that is
protected for citizens is also protected for public employees:
i.e. public concern speech.3
3. This is what the Court meant when it observed in Connick that
a public employee's speech, even if not touching upon a matter of
public concern, may be entitled to some protection under the
First Amendment. 461 U.S. at 147. Speech unrelated to a matter
of public concern is not, like obscenity, entirely outside the
protection of the First Amendment. While the government as
employer may discharge a public employee for such speech, the
government as sovereign may not sanction the same individual when
19
To understand what is meant by “public concern” speech,
it is crucial to understand the Court’s justification for
distinguishing between speech relating to matters of public
concern and speech not relating to such matters. As the Court
explained it:
The First Amendment "was fashioned to assure unfettered
interchange of ideas for the bringing about
of political and social changes desired by
the people." Roth v. United States, 354 U.S.
476, 484 (1957); New York Times Co. v.
Sullivan, 376 U.S. 254, 269 (1964).
"[S]peech concerning public affairs is more
than self-expression; it is the essence of
self-government." Garrison v. Louisiana, 379
U.S. 64, 74-75 (1964). Accordingly, the
Court has frequently reaffirmed that speech
on public issues occupies the "'highest rung
of the heirarchy [sic] of First Amendment
values,'" and is entitled to special
protection.
Connick, 461 U.S. at 145. It is the value of exchanges of
information and ideas relevant to self-governance that entitles
public concern speech to "special protection.”
It was for this reason that the Court, in delineating
the expressive rights of public employees, chose to draw the line
at speech related to matters of public concern. Silencing a
public employee seeking to speak on a matter of public concern
deprives a self-governing society of information that may be
vital to informed decision-making. See Pickering, 391 U.S. at
571-72 (depriving community of teachers’ opinions on how school
funds should be allotted seriously hinders free and open debate
and is inconsistent with intent of First Amendment); Watters, 55
(..continued)
she engages in such speech as a citizen, outside the employment
context.
20
F.3d at 886 (finding former police department employee’s
statements about employee assistance program to be public concern
speech, because public had significant interest in learning about
problems which might impair effective operation of program).
This can be a particularly serious loss because public employees,
by virtue of their constant interactions with a public office,
are often in the best position to know what ails that office.
See Board of County Comm'rs v. Umbehr, __ U.S. __, 116 S. Ct.
2342, 2347 (1996).
Given that the basis for the special protection
accorded public concern speech is its instrumental value to the
community in enabling self-governance, a court asked whether a
public employee’s speech relates to a matter of public concern
must determine whether expression of the kind at issue is of
value to the process of self-governance. This task does not, of
course, involve the court’s passing judgment on the merit of the
view expressed or its source. Rather, the issue is whether it is
important to the process of self-governance that communications
on this topic, in this form and in this context, take place.
This point is well illustrated by the Supreme Court’s
subsequent decision in Rankin v. McPherson, 483 U.S. 378 (1987).
There, a clerical employee of a constable’s office, after
hearing a news report of an attempt to assassinate the President,
said to a co-worker in what she thought to be a private
conversation, "'If they go for him again, I hope they get him.'"
Id. at 380. This remark was reported to her supervisor and she
was discharged. While acknowledging that the employee’s opinion
21
might understandably be regarded by some as ill-considered, the
Court concluded that her statement could nevertheless be "'fairly
characterized as constituting speech on a matter of public
concern.'" Id. at 384 (quoting Connick, 461 U.S. at 146). As
the Court explained:
Considering the statement in context, as
Connick requires, discloses that it plainly
dealt with a matter of public concern. The
statement was made in the course of a
conversation addressing the policies of the
President’s administration. It came on the
heels of a news bulletin regarding what is
certainly a matter of heightened public
attention: an attempt on the life of the
President. . . . The inappropriate or
controversial character of a statement is
irrelevant to the question whether it deals
with a matter of public concern. "[D]ebate
on public issues should be uninhibited,
robust, and wide-open, and . . . may well
include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and
public officials." New York Times Co. v.
Sullivan, 376 U.S. 254, 270 (1964); see also
Bond v. Floyd, 385 U.S. 116, 136 (1966):
"Just as erroneous statements must be
protected to give freedom of expression the
breathing space it needs to survive, so
statements criticizing public policy and the
implementation of it must be similarly
protected."
Id. at 386-87 (footnote omitted.)
Connick teaches a number of other lessons that are
useful when applying its holding to new situations. First,
Connick expressly recognizes that the community's interest in the
free exchange of information and ideas relating to matters of
public concern is not limited to public declarations. That
interest is implicated in private exchanges between two
individuals as well as in exchanges between an individual and
22
members of the public. Private dissemination of information and
ideas can be as important to effective self-governance as public
speeches. Thus, if the content and circumstances of a private
communication are such that the message conveyed would be
relevant to the process of self-governance if disseminated to the
community, that communication is public concern speech even
though it occurred in a private context. Connick, 461 U.S. at
146, 148; see also Givhan v. Western Line Consol. Sch. Dist., 439
U.S. 410, 415-16 (1979) ("Neither the [First] Amendment itself
nor our decisions indicate that [the] freedom [of speech] is lost
to the public employee who arranges to communicate privately with
his employer rather than to spread his views before the
public.").
Second, Connick contains helpful lessons concerning the
kinds of subject matter that are likely to be of public concern.
Racial discrimination in the assignment of school personnel,
the subject matter of the private communication in Givhan, 439
U.S. at 410, was characterized by the Connick Court as "a matter
inherently of public concern." 461 U.S. at 148 n.8. The Court
also suggested that a communication would be of public concern,
barring a form or context that detracted from its value to the
process of self-governance, if it (1) indicated "that the
District Attorney's office was not discharging its governmental
responsibilities in the investigation and prosecution of criminal
cases," or (2) brought "to light actual or potential wrongdoing
or breach of public trust on the part of [the District Attorney]
and others" that would be relevant in evaluating the performance
23
of a public office or official. Id. at 148; see also Swineford
v. Snyder County Pennsylvania, 15 F.3d 1258, 1271 (3d Cir. 1994)
(allegation of malfeasance by election officials is speech
"fall[ing] squarely within the core public speech delineated in
Connick").
Finally, Connick indicates that the speaker's motive,
while often a relevant part of the context of the speech, is not
dispositive in determining whether a particular statement relates
to a matter of public concern. Myers' motive for devising and
distributing her questionnaire was to defeat the proposed
transfer. Despite this same motive underlying all of her
questions, the Court found that some of them related to matters
of public concern and some did not. If motive were dispositive,
the inquiry could only have resulted in finding either that all
of Myers' speech was public concern speech or that none of it
was. See also Rode v. Dellarciprete, 845 F.2d 1195, 1201 (3d
Cir. 1988) (explaining that "motivation [is] merely one factor to
be considered, [and] not necessarily controlling, in assessing
the character of the employee's speech").
With this background, we now turn to an application of
the governing law to the facts of this case. The subject matter
of Azzaro's reports to Fox and Sirabella was an incident of
sexual harassment by an assistant to the Commissioner which
occurred in the Commissioner's office during the course of an
appointment Azzaro had made, in her capacity as the spouse of an
employee, to plead for her husband's job. The harassment was a
form of gender discrimination since Fusaro presumably would not
24
have behaved in the same manner toward a supplicant male spouse
of a female employee. We believe this form of discrimination,
when practiced by those exercising authority in the name of a
public official, is as much a matter of public concern as racial
discrimination practiced under similar circumstances. We also
believe that Azzaro's communications to Fox and Sirabella brought
to light actual wrongdoing on the part of one exercising public
authority that would be relevant to the electorate’s evaluation
of the performance of the office of an elected official.4 For
these reasons, we conclude Azzaro's communications should be
regarded as a matter of public concern unless something in their
form or context deprived them of their value to the process of
self-governance.
Turning to form and context, we find nothing that
detracts significantly from the value of these communications to
the process of self-governance. Based on her deposition, it is
fair to say that Azzaro complained reluctantly, that her interest
in each instance was in saving her job and that of her husband,
and that she might have been content if the only relief she had
received was protection from discharge. But this, in our
judgment, would not cause a citizen engaged in an evaluation of
the Commissioner's office to disregard or discount her complaint.
4. We are thus not here presented with a situation in which a
public employee has filed a complaint about an isolated incident
of what he or she perceived to be inappropriate conduct on the
part of a non-supervisory co-worker. While we express no opinion
on such a situation, it would presumably be less important to an
evaluation of the performance of the public office involved than
the situation now before us.
25
Assessing content, form, and context, including Azzaro's
motivation, we conclude that Azzaro's reports to Fox and
Sirabella were matters of public concern.
In reaching this conclusion, we have considered several
distinctions that other courts of appeals have found to be
controlling on the issue of whether a public employee's speech is
speech of public concern. Although in each instance we find
relevance in the factor relied upon by our sister courts, we
respectfully decline to give those factors controlling
significance.
A distinction has been suggested between speech uttered
by a public employee "as an employee" and speech uttered by a
public employee "as a citizen."5 See, e.g., David v. City and
County of Denver, 101 F.3d 1344, 1355 (10th Cir. 1996) (stating
that this distinction is "the fundamental inquiry" in deciding
whether speech involves matter of public concern). An employee
5. The apparent origin of this distinction is the following
language from Connick:
We hold only that when a public employee speaks not as
a citizen upon matters of public concern, but
instead as an employee upon matters only of
personal interest, absent the most unusual
circumstances, a federal court is not the
appropriate forum in which to review the
wisdom of a personnel decision taken by a
public agency allegedly in reaction to the
employee's behavior.
461 U.S. at 147. In context, however, we believe this sentence
was intended to contrast "matters of public concern" with
"matters only of personal interest" and not to suggest a critical
distinction based on the subjective motivation of the employee.
As we point out in text, the latter interpretation is
inconsistent with the holding in the case.
26
speaks as an "employee," it is said, when her primary purpose is
to secure relief for herself, and as a "citizen" only when her
primary purpose is to bring about systemic reform. See id. at
1356. Under this view, if the employee's purpose was primarily
to solve her own personal problem, the fact that her statement
would be of value to the process of self-governance does not make
the speech public concern speech. See, e.g., Morgan v. Ford, 6
F.3d 750, 754 (11th Cir. 1993).
The distinction between speaking as a citizen and
speaking as an employee, then, is simply an alternative way of
describing the inquiry into the speaker's motive. While, as we
have explained, an employee's motive may be relevant to whether
speech is on a matter of public concern, giving controlling
significance to "primary purpose" is inconsistent with the result
in Connick. Myers' purpose in asking her question about pressure
to participate in political campaigns was no different than her
purpose in asking her questions on the same questionnaire about
office morale and the general reputation of the office
supervisors for trustworthiness. Her purpose with respect to
each of these questions was clearly "to gather ammunition for
another round of controversy with her superiors." 461 U.S. at
148. Nevertheless, the question regarding pressure to campaign
was speech about a matter of public concern because, even taking
into account its form and context, it was important to a self-
governing society that public employees be free to express
themselves about it. As the Court explained:
[T]here is a demonstrated interest in this country that
government service should depend upon
27
meritorious performance rather than political
service. Given this history, we believe it
apparent that the issue of whether assistant
district attorneys are pressured to work in
political campaigns is a matter of interest
to the community upon which it is essential
that public employees be able to speak out
freely without fear of retaliatory dismissal.
Id. at 149 (emphasis added) (citations omitted).
A related distinction has been suggested between
situations in which the employee is seeking to bring information
to the attention of the public and those in which the employee
did not want her speech to be publicly circulated. Under this
view, "oral statements [about sexual harassment] intended to be
confidential" and to lead to the internal resolution of a problem
without "public controversy" are not speech on a matter of public
concern even though "incidences of sexual harassment in a public
[institution] are inherently matters of public concern . . . ."
Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir. 1987). Here
again, although we think a request for confidentiality may be
relevant to the public concern issue, we conclude that it would
be inconsistent with Connick and Givhan to give it controlling
significance.
A final, closely related distinction suggests that a
grievance about sexual harassment is only a matter of public
concern if it includes indications that there is a systemic
problem interfering with the public agency's performance of its
governmental functions, and not if the complaints relate solely
to the employee's own situation. See David, 101 F.3d at 1356;
Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d Cir.
28
1993). In rejecting this notion, we do not suggest that all
public employee complaints about sexual harassment are matters of
public concern. We do believe, however, that under all of the
surrounding circumstances, Azzaro's reports address a matter of
public concern even though they referred to a single incident.
B.
The next step in our analysis is to conduct the
balancing of interests required by Pickering and Connick. On one
side we weigh the public employee’s interest in speaking about a
matter of public concern and the value to the community of her
being free to speak on such matters. See Green v. Philadelphia
Housing Auth., 105 F.3d 882, 885 (3d Cir. 1997); Watters, 55 F.3d
at 895; Versarge v. Township of Clinton New Jersey, 984 F.2d
1359, 1366 (3d Cir. 1993). Balanced against these interests is
the government's interest as an employer in promoting the
efficiency of the services it performs through its employees.
Watters, 55 F.3d at 895. Only if the value of the speech, as
measured by the employee’s and the public’s interests, is
outweighed by the government’s interest in effective and
efficient provision of services, will we hold that the speech is
unprotected.
Striking the appropriate balance in this case is not
difficult. It is true that Azzaro's revelations were apparently
not about systemic gender discrimination, as were Ms. Givhan's
complaints about racial discrimination. Nevertheless, as we have
explained, there is a substantial public interest in Azzaro’s
29
revelations because they were relevant to an evaluation of the
performance of the office of an elected official. We conclude
that this public interest is clearly sufficient to outweigh any
legitimate countervailing governmental interest that might have
been implicated here, if any such interest there be.
Indeed, those governmental interests are negligible
here. We fail to see how Azzaro's reports to Fox and Sirabella
could have posed any threats to the government's interest in
efficiency or effectiveness. She and Fusaro did not work in the
same office, much less have an employment relationship requiring
trust and confidence. By adopting a policy against sexual
harassment and a process for reporting and dealing with it,
Allegheny County had affirmatively recognized that complaints
about sexual harassment were important to its ability to serve
the public effectively and efficiently. This seems to us an
acknowledgement on the part of Azzaro's employer that
communications in the manner and place of hers do not pose an
undue threat of disruption.6
It follows that the Pickering balance falls in Azzaro's
favor.
C.
6. While Ms. Azzaro was harassed in her capacity as the spouse
of an employee rather than in her capacity as an employee, her
complaining to her supervisor and then to the Director of
Administration in accordance with her employer's policy for
handling employee complaints would not appear to have any greater
propensity for disruption.
30
We conclude that Azzaro’s speech is protected as a
matter of law. Her reports of sexual harassment are related to a
matter of public concern; and her interest in making such
reports, combined with the value to the community of her being
free to do so, outweighs the County’s interest in preventing her
from reporting such incidents. Therefore, Azzaro could not be
discharged on the basis of this speech. See Swineford, 15 F.3d
at 1270.
Based on the evidence we have reviewed in the context
of Azzaro's Title VII claim, we also conclude that there is a
material dispute of fact as to whether her reports were a
motivating factor in the discharge decision. Finally, we
determine that the district court's summary judgment in favor of
the defendants cannot be sustained on the ground that
uncontroverted evidence establishes that Azzaro's termination
would have occurred in any event for reasons other than those
reports. A trier of fact could conclude from this record that
Azzaro would not have been discharged in the absence of her
reports of sexual harassment. Accordingly, we hold that summary
judgment in favor of the defendants on the § 1983 claim was
erroneously entered.
IV.
In light of our ruling on Azzaro’s Title VII and § 1983
claims, we will also reverse the district court’s dismissal of
her Pennsylvania Human Relations Act claim. The district court
31
should exercise supplemental jurisdiction over this claim. See
28 U.S.C. § 1367(a).
V.
For the foregoing reasons, we will reverse the district
court’s order granting summary judgment to the defendants and
will remand for further proceedings consistent with this opinion.
32
Beverly A. Azzaro v. County of Allegheny; Tom Foerster, an
individual and Chairman, Allegheny County Commissioners and Wayne
Fusaro, No. 95-3253
BECKER, J., concurring.
I join in the majority’s opinion with the understanding
that, under its rendering of Connick v. Myers, 461 U.S. 138(1983), in part III, it has not created anything close to a per
se rule under which reports of sexual harassment will always
constitute public concern speech. It seems to me that there will
be many complaints of sexual harassment, about more aggravated
conduct than that described in footnote 4 of the opinion, which
will not qualify as matters of public concern and with respect to
which summary judgment for the defendant will be appropriate.
This will include cases where the offender is a non-supervisory
co-worker and the incident is more than “isolated,” though
neither egregious nor repeated with great frequency; where the
incident is not known to the “powers that be”; where, even if a
supervisor is involved, the incident is minor or questionable;
where the motive or credibility of the complainant is
significantly in doubt; or where a combination of these factors
is at work. Under the majority’s approach, the opposite result
might attain, incorrectly I submit.
I am satisfied that the record in the case at bar
supports the denial of summary judgment, though not by much. I
33
note in this regard Azzaro’s delayed and offhand non-report to
Fox which became a “report” to Sirabella only in the context of
the political crossfire in which she became caught when Hohman
sought to use her report to combat his dwindling influence with
Foerster. Indeed, the record is far from clear that she was not
targeted for dismissal because of possible support for Brimmeier,
see Carver v. Foerster, 102 F.3d 96 (3d Cir. 1996), rather than
her non-complaint of sexual harassment.
Judges Scirica, Roth and Alito join in this
opinion.BEVERLY AZZARO v. COUNTY of ALLEGHENY, et al.
No. 95-3253
ROSENN, Circuit Judge, dissenting.
I join in the majority opinion except as to Part III
pertaining to the First Amendment issue. Although the evidence
is tenuous, I agree that there are sufficient facts in dispute
which, if the plaintiff's version is believed, could lead a
reasonable factfinder to conclude that Allegheny County
discharged her in retaliation for her accounts of harassment.
Summary judgment on her Title VII claim, therefore, was
inappropriate. However, I do not agree with the majority that
the evidence was sufficient to conclude that the plaintiff's
speech was a matter of public concern and therefore protected by
34
the First Amendment. Thus, I would affirm the grant of summary
judgment on her § 1983 claim.
I do not regard the First Amendment to be of lesser
importance than does the majority. I believe, however, that
Azzaro's conversation with Fox at a social party and her meeting
with Sirabella for advice or assistance in connection with the
potential termination of her position did not constitute matters
of public concern that command First Amendment protection. I
fear that the majority's expansion of protected speech for public
employees not only is contrary to the decisions of the Supreme
Court and our sister courts, but has the dangerous effect of
elevating personal and confidential conversation, which in form,
content, and context is not of public concern, to the level of
constitutionally protected speech. The consequence may seriously
impede normal discourse and create management problems in the
public workplace. I, therefore, respectfully dissent from Part
III of the majority opinion.
I.
Not all speech is protected by the First Amendment and
"the State has interests as an employer in regulating the speech
of its employees that differ significantly from those it
possesses in connection with regulation of the speech of the
citizenry in general." Pickering v. Board of Educ., 391 U.S. 563,
568 (1968). This is not to say that a public employee, like any
citizen, may not have a legitimate interest in speech on public
matters. But as Justice O'Connor recently observed in writing
35
the plurality opinion for the Supreme Court of the United States,
"even many of the most fundamental maxims of our First Amendment
jurisprudence cannot reasonably be applied to speech by
government employees." Waters v. Churchill, 511 U.S. 661, 672
(1994).
Justice O'Connor further noted that the Court has
recognized that a government employer has a certain latitude in
barring its employees from offensive utterances to the public and
in curbing speech that creates disruption, disorder, or confusion
among employees in the workplace. "Similarly, we have refrained
from intervening in government employer decisions that are based
on speech that is of entirely private concern." Id. at 674. See
also Connick v. Myers, 461 U.S. 138, 146-49 (1983). And the
presence of sexual content is not sufficient in itself to make
private speech a matter of public concern.
In Pickering, the Supreme Court set forth a framework
for analyzing a claim of a First Amendment violation brought by a
public employee disciplined because of speech. The Court
declared that employees had a First Amendment right to speak on
issues of public concern. There, a teacher wrote a letter to a
local newspaper in connection with a proposed tax increase by the
school board in which he criticized past proposals to raise new
revenue for the schools. He also criticized the priority of
school sports, the neglect of the deteriorating physical
condition of school buildings, and the insufficient appropriation
for teachers' salaries. Whether a school system requires
additional funds and their alleged profligate use is a matter of
36
legitimate concern for the community as a whole and "[o]n such a
question free and open debate is vital to informed decision-
making by the electorate. . . . Accordingly, it is essential
that [teachers] be able to speak out freely on such questions
without fear of retaliatory dismissal." Pickering, 391 U.S. at
571-72.
II.
In explicating its earlier decision in Pickering and
analyzing the specific problem then before it, the Court in
Connick again considered the First Amendment right of an employee
to freedom of speech and the State's interest as an employer "in
promoting the efficiency of the public services it performs
through its employees." Pickering, 391 U.S. at 568. In
returning to the public employee-employer balancing problem
raised earlier in Pickering, the Court recognized the First
Amendment rights of public employees but at the same time
demonstrated its concern for the public employer's responsibility
to manage efficiently its operations and fulfill its public
obligations. The Court noted that the reiteration in Pickering's
progeny of the right of a public employee to comment "as a
citizen" upon matters of public concern at the same time reflects
"the common-sense realization that government offices could not
function if every employment decision became a constitutional
matter." Connick, 461 U.S. at 143 (footnote omitted).
37
Therefore, the Connick Court in determining that most
of Myers' questionnaire could not be fairly characterized as
constituting speech on a matter of public concern stated:
When employee expression cannot be fairly
considered as relating to any
matter of political, social, or
other concern to the community,
government officials should enjoy
wide latitude in managing their
offices, without intrusive
oversight by the judiciary in the
name of the First Amendment.
Id. at 146.
This court also has previously noted that speech is a
matter of public concern when it fairly can be considered as
relating to any matter of political, social or other concern to
the community. Swineford v. Snyder County, 15 F.3d 1258, 1270-71
(3d Cir. 1994); Holder v. City of Allentown, 987 F.2d 188, 195
(3d Cir. 1993). In some situations, speech pertaining to sexual
harassment may be a matter of community concern and thus
implicate the First Amendment. In other situations, it may be
simply a matter of private concern. See David v. City & County of
Denver, 101 F.3d 1344, 1357 (10th Cir. 1996).
This case bears a similarity to Saulpaugh v. Monroe
Community Hosp., 4 F.3d 134 (2d Cir. 1993). There, a public
hospital employee sued her employer under Title VII and alleged a
First Amendment claim under § 1983, as well as state law claims.
The plaintiff testified that immediately after she was hired her
supervisor sexually harassed her, including making threats of
discharge, and ultimately terminated her for resisting his
proposals. The district court found the employer liable under
38
Title VII based on sexual harassment and retaliatory discharge
but dismissed the First Amendment claim because plaintiff's
complaints were personal in nature and generally did not
implicate matters of public concern. They did not involve a
debate on issues of sex discrimination, and her suit did not seek
"``relief against pervasive or systemic misconduct by a public
agency or public officials,'" nor was her suit "``part of an
overall effort . . . to correct allegedly unlawful practices or
bring them to public attention.'" Id. at 143 (quoting Yatvin v.
Madison Metro. Sch. Dist., 840 F.2d 412, 420 (7th Cir. 1988)).
The majority concludes that Azzaro's conversations with
Fox and Sirabella constituted protected speech under the First
Amendment. I believe that a careful analysis of the form,
content and context of these two conversations concerning a
single incident will show that these conversations did not
involve matters of public concern. In fact, the entire record
shows a pervasive desire by Azzaro not to "go public," and
although she claims she initially discussed the incident at times
with her friends, it was always with an attitude of entre nous.
The form of her communications with both Fox and Sirabella were
not in the nature of complaints or formal reports, either oral or
written.
The context of Azzaro's communications with her
supervisor, Tom Fox, was at a private party at the home of a
friend who was not a county employee. As to the content, they
were discussing the Anita Hill hearings, and Azzaro told of her
alleged incident with Fusaro to defend her position with respect
39
to Hill. The time was four months after the alleged Fusaro
incident. The timing, the social setting, the content, and the
context of this conversation were unequivocally personal and
social. Moreover, when Fox attempted to convince Azzaro to take
the matter up with her supervisor, she refused. Concerned with
the potential danger to her job, she continued to refuse until
Fox, against her wishes, reported the incident.
As for her conversation with Sal Sirabella, the
Director of Administration, Azzaro acknowledges that this
conversation also was of a personal nature. She did not
communicate with Sirabella to complain or officially report the
alleged harassment. Rather, she approached him several months
after the alleged incident to seek personal advice on how to
avoid losing her job.
In neither Azzaro's conversation with Fox or with
Sirabella was there any debate or even implication concerning
sexual policies or practices in the Allegheny County Department
of Development where she was employed. She did not complain of
any personal or systemic misconduct by her department or
officials in her department. Although the majority describes her
conversations with Fox and Sirabella as "reports," she made no
complaints whatsoever to Fox or even Sirabella, either written or
oral, nor did she submit any formal written statement to Fox or
any other supervisor in her department.
In context, it is apparent that Azzaro's statements
were only tangentially about her alleged experience with Fusaro,
and in no way focused on harassment as a matter of public
40
concern. Uppermost in her mind was her concern for her job. Her
speech utterly lacked political content, the protection of which
was foremost in the minds of the framers of the First Amendment,
or any element of social advocacy. The First Amendment was
designed by its framers "``to assure unfettered interchange of
ideas for the bringing about of political and social changes
desired by the people.'" Connick, 461 U.S. at 145 (quoting Roth
v. United States, 354 U.S. 476, 484 (1957)).
Azzaro's speech added nothing to improve the
administration of the government of Allegheny County. Her speech
made no effort to improve working conditions for her fellow
employees, nor did it attempt to evaluate the performance of her
department or the county. The Court in Connick rejected most of
Myer's questionnaire as not being an expression of public import
in evaluating her employer's performance as an elected
prosecutor, noting:
Myers did not seek to inform the public that the
District Attorney's Office was not
discharging its governmental
responsibilities in the
investigation and prosecution of
criminal cases. Nor did Myers seek
to bring to light actual or
potential wrongdoing or breach of
public trust on the part of Connick
and others. . . . While discipline
and morale in the workplace are
related to an agency's efficient
performance of its duties, the
focus of Myer's questions is not to
evaluate the performance of the
office but to gather ammunition for
another round of controversy with
her superiors.
41
Id. at 148. The purpose of Azzaro's speech, her general conduct
with her employer, and her legal action concerned only herself
and keeping, as she testified, her job. She had no intention to
make her communications with Fox or Sirabella public. Even if
they had been released to the public, they would have revealed
only an alleged single incident on the part of a single co-worker
to sexually harass her.
The content of Azzaro's conversations with Fox and
Sirabella made no effort to personally complain or publicly
expose wrongful practices and objectionable policies on the part
of her department or county officials. For over a year after the
incident, she intermittently talked to her friends about the
alleged Fusaro incident but deliberately avoided going public.
She testified that she spoke to her personal friends:
I told it just to get it out. I mean I was carrying it
around all the time, and it was like a
release when I told someone.
Azzaro Dep. at 114. However, she had no intention of publicizing
the harassment, nor of warning other women of the danger of
harassment. In fact, when one friend recommended that Azzaro
file a complaint with the EEOC, she refused. Azzaro Dep. at 113.
In content, in form and in context, the two conversations
pertained to a private matter.
As in Callaway v. Hafeman, 832 F.2d 414 (7th Cir.
1987), the plaintiff's conversations were limited to "oral
statements intended to be purely confidential," and were not for
public information or debate. Id. at 417. She was not
attempting to speak out as a citizen concerned with conditions or
42
problems confronting Allegheny County; "instead, she spoke as an
employee attempting to resolve her private dilemma," id., even
when she spoke to Sirabella and when she conversed with her
friends.
In applying the law to the facts of this case, the
majority asserts that the alleged Fusaro incident was a form of
"gender discrimination" which "when practiced by those exercising
authority in the name of a public official, is as much a matter
of public concern as racial discrimination practiced under
similar circumstances." Maj. op. at 27. But the issue before us
is neither Fusaro's alleged behavior nor any gender
discrimination by the County. The issue is whether, in addition
to her Title VII claim for a retaliatory discharge, Azzaro has a
First Amendment claim against the County based on her
conversations with Fox and Sirabella.
Proceeding with its analysis, the majority
speculatively infers that:
Azzaro's communications to Fox and Sirabella
brought to light actual wrongdoing
on the part of one exercising
public authority that would be
relevant to the electorate's
evaluation of the performance of
the office of an elected official.
Maj. op. at 27. However, Azzaro's conversations with Fox and
Sirabella were intended for their ears only, and not the
electorate. The record is also silent with respect to any
knowledge on the part of the public of these conversations until,
presumably, this lawsuit was filed. Additionally, there is no
basis whatsoever for the majority's highly speculative conclusion
43
that these two confidential conversations pertaining to Fusaro
would be relevant to the electorate's evaluation of the
performance of Commissioner Foerster's office.
Recognizing the private nature of Azzaro's
conversations, the majority cites Givhan v. Western Line Consol.
Sch. Dist., 439 U.S. 410 (1979), and Connick, 461 U.S. at 146,
148, for the proposition that if the content of a private
communication would be relevant to the process of self-governance
if disseminated to the community, the communication is
nonetheless public concern speech even though it occurred in a
private context. Maj. op. at 25. This is correct if the content
and circumstances involve a matter of public concern. However,
private communication rather than public may be a factor for
consideration in determining whether the content of the
conversation is of public concern. Here, not only were the
communications private and confidential, but the content
personal. Moreover, as previously stated above, Azzaro made it
clear that the conversations were not intended for public
dissemination or for action by her employer. Therefore, they
could have no relevance to any community evaluation of county
government and their content could not be a matter of public
concern because they related only to a single incident of
personal behavior of a single fellow employee, not to the
performance of any elected official.
In Givhan, the school district dismissed the plaintiff,
a black junior high school English teacher, who sought
reinstatement on the ground, inter alia, that her dismissal
44
infringed her right of free speech under the First and Fourteenth
Amendments. The district court found that the primary reason for
her dismissal "was her criticism of the policies and practices of
the school district, especially the school to which she was
assigned to teach." Id. at 413. Neither the Supreme Court nor
the district court had difficulty in concluding that the content
of the speech by Givhan focused on "the policies and practices of
the school district." Azzaro's conversations only described
Fusaro's conduct -- a single incident -- and had no reference
whatsoever to policies, practices, or any wrongdoing of Allegheny
County or its agencies. The content in Givhan indisputably was
of public concern; Azzaro's content was not.
Givhan's communications to her superior, though private
in nature, in no way limited their dissemination to the public.
Azzaro did; she insisted on confidentiality. As the court
recently iterated in Waters, 511 U.S. at 674, "we have refrained
from intervening in government employer decisions that are based
on speech that is of entirely private concern." Azzaro's
conversations were entirely of private concern.
Thus, in David v. City & County of Denver, 101 F.3d
1344 (10th Cir. 1996), also a Title VII and § 1983 suit against
county officials charging sexual harassment and retaliatory
discharge for exercising the right of free speech, the district
court held that the plaintiff's complaints about sexual
harassment did not address matters of public concern. On appeal,
the Court of Appeals distinguished between speech pertaining to a
public agency's discharge of its governmental responsibilities
45
and speech relating to internal personnel disputes and working
conditions. It also considered the motive of the speaker to
ascertain whether the speech was calculated to redress personal
grievances, and therefore spoken as an employee, or to address a
broader public concern, and therefore spoken as a citizen.
David, 101 F.3d at 1355. The court concluded that plaintiff's
complaints to her supervisors and her letter focused "on the
conditions of her own employment" and in neither her EEOC
complaints nor her letter to the City Attorney did she allege
other employees had been subjected to harassment or that
harassment or retaliation had interfered with the department's
performance of its governmental responsibilities. Id. at 1356.
Likewise, in Morgan v. Ford, 6 F.3d 750, 754 (11th Cir.
1993), the plaintiff left her job with the Georgia Department of
Corrections because her supervisor subjected her to sexual
harassment in the workplace. The Court of Appeals in this case
also affirmed the district court's grant of summary judgment for
the supervisors. Plaintiff did not relate her complaints to the
public or attempt to involve the public. Her "speech was driven
by her own entirely rational self-interest in improving the
conditions of her employment. Her complaints about Ford's
behavior, as serious as they were, centered around her private
matters. . . . As an employee grievance, Morgan's speech was not
a matter of public concern." 6 F.3d at 755.
III.
46
I fear that the majority's extension today of the
constitutional protection of free speech goes far beyond what the
framers of the First Amendment envisioned. It will add to the
manifold complications already existing in administering all
types of government, especially sectors of government with a
large number of employees as has Allegheny County, and enlarge
needlessly its cost by the threat of mischievous litigation. We
should not become entangled in every employment dispute merely
because there are allegations of suppression of free speech.
Callaway, 832 F.2d at 416. Azzaro has not produced sufficient
evidence from which one can reasonably conclude that, in form,
content, or context, her speech was a matter of any public
concern.7 Therefore, I respectfully dissent on the First
Amendment issue.
7Because Azzaro has not shown that her conversations with Fox and
Sirabella were matters of public concern, I do not deem it
necessary to conduct a balancing of interests as required by
Pickering and Connick, by weighing Azzaro's interest when
speaking about a matter of public concern as against the
government's interest in the efficient conduct of its operations
and the effective services it performs.
47