Frazier v. King

THORNBERRY, Circuit Judge:

Frazier, plaintiff-appellee, brought suit against numerous Louisiana state officials, defendants-appellants, (1) under 42 U.S.C. § 1983 for violations of her rights under the First and Fourteenth Amendments; and (2) under state law for claims of retaliatory discharge and intentional infliction of emotional, physical and mental injuries. The district court held that (1) a previous finding by the Louisiana Civil Service Commission (LCSC) that the defendants had violated Frazier’s First Amendment rights precluded relitigation of this issue; (2) the defendants were not entitled to qualified immunity; (3) Frazier was entitled to lost wages, attorney’s fees, and compensatory and punitive damages for intentional infliction of emotional, physical and mental injuries; and (4) Frazier could not sustain a claim for retaliatory discharge. On appeal, the defendants urge that (1) they are entitled to Eleventh Amendment immunity and qualified immunity; (2) the prior LCSC adjudication precludes Frazier’s § 1983 claim and, alternatively, if the LCSC decision does not preclude Frazier’s § 1983 claim, the defendants are not precluded from re-litigating the issue of their liability; (3) they were denied due process to contest liability; (4) Frazier is not entitled to lost wages; (5) the court erred in awarding compensatory and punitive damages; and (6) the attorney’s fee award was improper.

I. Facts.

In May 1981, Frazier was hired by the Wade Correctional Center (Wade) as a registered nurse working in the infirmary. Soon after she began working at Wade, Frazier reported violations of nursing practices in the infirmary to her supervisor Mills. Frazier revealed that inmates were being denied medical care, and that nurses were changing doctors’ orders, completing prescription forms, and making medical diagnoses. Mills failed to address the problems Frazier brought to her attention.

Frazier then discussed the problems at the infirmary with Assistant Warden Henderson and Warden Guillory. The Warden did not investigate any of the improprieties Frazier had alleged. Henderson did attempt to investigate Frazier’s claims, but the Warden instructed him not to investigate and threatened to have him transferred out of Wade. Apparently in response to Frazier’s report to Henderson and Guillory, Mills reprimanded Frazier and threatened that Frazier might lose her job.

In the summer of 1982, Frazier spoke with Nurse Ibert, an administrator with the Department of Corrections, about the nursing practices at Wade. Frazier provided Ibert with documentation of her allegations. Ibert and another administrator then wrote two reports based on an investigation they conducted at Wade. These reports revealed that Frazier’s criticisms were well-founded.

Despite Frazier’s attempts to have the violations at Wade remedied, they continued to occur and Mills continued to threaten Frazier. In December 1982, Frazier again spoke with the Warden. She told him that she would report the violations to the media and the State Board of Nursing if they were not corrected. The Warden said that if Frazier went to the media or the State Board of Nursing, he would fire her.

Frazier then contacted former Secretary of the Louisiana Department of Corrections King and a nursing consultant with the Louisiana State Board of Nursing, Sister Lucie, outlining the violations at Wade. Frazier copied inmate records which she gave to Sister Lucie. Frazier obtained the inmates’ consent before forwarding their records to Sister Lucie; however, Frazier later sent Sister Lucie additional records for which she did not obtain consent.

In January 1983, the State Board of Nursing charged Mills with violations of the Louisiana Nursing Practices Act. Mills entered into a consent agreement in May of 1983.

In the meantime, the Warden called Frazier into his office and accused her of making malicious, derogatory and slanderous statements. He demanded that Frazier turn over a tape recording of a conversation in which Ibert told Frazier that Mills was going to be fired because of her professional improprieties. Frazier refused to turn over the tape. The Warden threatened to send a guard to Frazier’s home to retrieve the tape. Eventually, Frazier gave the Warden the tape under the condition that Ibert would not be fired.

The Warden continuously demanded that Frazier recant her allegations and write a formal apology. Frazier refused. Throughout this period, the Warden and Mills were trying to find some grounds to fire Frazier.

In February and April 1983, a Department of Corrections administrator, Davoli, investigated the infirmary at Wade for violations of the Nursing Practices Act. At the end of the investigation, Davoli filed a disciplinary report against Frazier, charging that she had made malicious statements about Department of Corrections’ personnel and about illegal practices at Wade. The report further stated that Frazier had violated Department of Corrections’ rules when she copied confidential inmate records without the inmates’ consent. The report ended with a recommendation that Frazier be terminated. Frazier was then fired.

Frazier appealed her termination to the LCSC, which found that the defendants’ decision to fire her was a violation of Frazier’s rights “to speak out about the nursing practices at Wade.” The LCSC then ordered the defendants to reinstate Frazier with back pay and to expunge all references to her termination from her personnel folder.

In August 1984, Frazier brought the instant suit against the defendants alleging (1) a 42 U.S.C. § 1983 claim based on violations of her rights under the First and Fourteenth Amendments, and (2) state law claims for retaliatory discharge and intentional infliction of physical, emotional and mental injuries.

II. Preclusion.

As discussed above, Frazier appealed her termination to the LCSC, alleging that the decision to fire her was discriminatory, retaliatory and in violation of her due process and First Amendment rights. After two days of hearings, the LCSC found that

[t]he public interest in having free and unhindered debate on matters of public importance is the core value of the Free Speech Clause of the First Amendments of the United States and Louisiana Constitutions. Equally as important is the right of the employee to engage in such speech without the threat of retaliatory dismissal by their [sic] employer....

[T]he referee concludes that appellant’s constitutional right to speak out about the nursing practices at Wade and to supply the nursing board with copies of inmate medical records is [not]¹ significantly outweighed by the Department of Corrections’ need to maintain discipline among its employees.

The LCSC then ordered the defendants to reinstate Frazier with back pay and awarded Frazier attorney’s fees.

A central question in this appeal is the claim and issue preclusive effect of the LCSC decision. We must decide whether the LCSC decision precludes Frazier’s § 1983 claim. Then, we must determine whether the LCSC finding that the defendants violated Frazier’s First Amendment rights precludes relitigation of this issue. We note at the outset that the district court erred in its preclusion analysis. The district court reviewed the issue preclusive effect of the LCSC’s determination that the defendants violated Frazier’s rights under rules of claim preclusion.

A. Claim Preclusion.

In reviewing the defendants’ argument that the doctrine of claim preclusion prohibits Frazier from bringing this suit, two issues arise: first, whether state, federal or both state and federal claim preclusion rules apply; and second, whether Frazier is barred from bringing this claim under the relevant rules of claim preclusion.

In University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), the Supreme Court held that federal common law rules of preclusion incorporate state issue preclusion rules in a federal suit brought after a state administrative adjudication arising from the same facts. The Supreme Court has not established which forums’ rules of claim preclusion apply to federal suits brought after state agency adjudications. In fact, since Elliott, only one circuit has addressed this issue. In Gjellum v. City of Birmingham, 829 F.2d 1056 (11th Cir.1987), the Eleventh Circuit held that federal claim preclusion rules apply when determining whether a state administrative decision precludes a subsequent § 1983 claim.

We need not, at this time, decide whether state or federal rules of claim preclusion apply in this situation because, after analyzing the claim preclusive effect of the LCSC decision under both state and federal rules, we find that neither forums’ claim preclusion rules bar Frazier’s § 1983 claim.

1. Federal Rules of Claim Preclusion.

In Patsy v. Florida International University, 634 F.2d 900, 910 (5th Cir.1981) (en banc), rev’d on other grounds, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), we held that “[ujnlike judicial actions, state administrative proceedings carry no res ju-dicata or collateral estoppel baggage into federal court. Resorting to appropriate and adequate state administrative remedies in no way precludes federal court protection of federal constitutional and statutory rights.” Although Elliott has overruled the Patsy holding regarding issue preclusion,² neither this court nor the Supreme Court has held that success in an administrative proceeding precludes a § 1983 claim in federal court. In fact, the Eleventh Circuit has held that claim preclusion does not apply in this context. See Gjellum, 829 F.2d at 1070 (relying on Patsy to hold that the plaintiff was not precluded from pursuing his § 1983 claim even though he had prevailed in a prior administrative proceeding); Healy v. Town of Pembroke Park, 831 F.2d 989, 991-92 (11th Cir.1987) (holding that where a state commission lacked the authority to award compensatory damages, the commission’s award of reinstatement with back pay did not preclude the plaintiffs from bringing a subsequent claim in federal court for compensatory damages under § 1983). The Sixth Circuit allowed plaintiffs to pursue § 1983 claims following administrative proceedings without even mentioning claim preclusion in Barnes v. McDowell, 848 F.2d 725, 732 (6th Cir.1988). Several other courts have held that unreviewed administrative decisions do not preclude subsequent claims under the Age Discrimination in Employment Act. See Duggan v. Board of Education of East Chicago Heights, 818 F.2d 1291 (7th Cir.1987); Rosenfield v. Department of the Army, 769 F.2d 237 (4th Cir.1985). Contra Stillians v. State of Iowa, 843 F.2d 276 (8th Cir.1987). Similarly, the Supreme Court has held that an arbitration award does not preclude a subsequent § 1983 action. McDonald v. City of West Branch, 466 U.S. 284, 290-92, 104 S.Ct. 1799, 1803-04, 80 L.Ed.2d 302 (1984).

After reviewing the extensive case law on claim preclusion, we rely on the language in Patsy to hold that federal law does not preclude Frazier from pursuing her § 1983 claim. This holding permits plaintiffs to pursue administrative remedies without jeopardizing their § 1983 claims. This result is consistent with § 1983’s purpose of protecting federal rights. In addition, it has the practical effect of encouraging plaintiffs to seek administrative remedies before turning to the federal courts. A contrary result would encourage plaintiffs to bypass administrative proceedings in order to preserve their claims under § 1983.

2. State Rules of Claim Preclusion.

The defendants must prove that the following conditions exist before the doctrine of res judicata will bar Frazier’s claim: “The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.” La.Rev.Stat.Ann. § 13:4231 (West In the LCSC proceeding Frazi-Supp.1989). er demanded reinstatement with back pay. In the instant suit, she seeks lost wages, compensatory and punitive damages, and attorney’s fees. We have previously held that plaintiffs cannot escape Louisiana rules of res judicata by pleading separate and distinct relief in different lawsuits where both suits involve the same cause of action. Lewis v. East Feliciana Parish School Board, 820 F.2d 143 (5th Cir.1987); Hernandez v. City of Lafayette, 699 F.2d 734 (5th Cir.1983). Although the logic of Lewis and Hernandez is compelling where plaintiffs seek damages in federal court that they could have sought in state court, it is not relevant where the original forum does not have the power to award the damages sought in the second action. In the instant case, the LCSC did not have the power to award Frazier all the damages she now seeks in federal court. Unlike the plaintiffs in Lewis and Hernandez, Frazier has not engaged in artful pleading to create the illusion that the “things demanded” in her two actions differ. Rather, limitations on the power of the LCSC prohibited her from seeking complete damages in the LCSC proceeding. We, thus find that Louisiana rules of res judicata do not bar Frazier from bringing the instant suit. See Robertson v. Popeye’s Famous Fried Chicken, 524 So.2d 97 (La.App. 4th Cir.), writ denied, 526 So.2d 802 (1988) (holding that plaintiff’s demand for workers’ compensation disability benefits differed from thing demanded in subsequent tort action).

B. Issue Preclusion.

In Elliott, 478 U.S. at 799, 106 S.Ct. at 3227, the Supreme Court held that state rules of issue preclusion apply in federal actions brought after unreviewed state administrative proceedings.

Louisiana rules of issue preclusion apply to this case. A review of Louisiana law reveals that Louisiana courts have not adopted the doctrine of collateral estoppel. B.E. Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156-57 (La.1978). Thus, under Louisiana law, the LCSC determination that the defendants violated Frazier’s First Amendment rights does not have issue pre-clusive effect.

III. Constitutional Violation.

Although the LCSC finding that the defendants violated Frazier’s rights does not have issue preclusive effect, we need not remand the case for the district court to determine whether a violation did, in fact, occur. A review of the record indicates that the parties actually litigated and the district court ruled on this issue in the context of the defendants’ claim of qualified immunity. The parties presented evidence and memoranda of law to the trial court and provided extensive briefing to this court on the precise elements of Frazier’s claim that the defendants violated her constitutional rights. Because the parties litigated this issue and the district court ruled on it, albeit in the context of qualified immunity, we find that the issue was fully litigated and is now ripe for our review.

In order to establish a constitutional violation Frazier must first prove that her speech involved a matter of public concern. Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). Second, she must demonstrate that her interest in “commenting upon matters of public concern” is greater than the defendants’ interest in “promoting the efficiency of the public services [they] perform.” Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). Third, she must show that her speech motivated the defendants’ decision to fire her. Mt. Healthy City School District v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). If Frazier is able to prove these three elements, the burden shifts to the defendants to prove that they would have fired Frazier even if she had not exercised her right to free speech. Id.

A. Matter of public concern.

The defendants concede that “[t]he quality of nursing care given to any group of people, including inmates, is a matter of public concern.” We agree. See Brawner v. City of Richardson, Texas, 855 F.2d 187, 192 (5th Cir.1988) (holding that a police officer’s letter to local paper reporting improprieties at the police department addressed a matter of public concern).

B. Balancing Frazier’s interest against the interests of the state.

The defendants hinge their claim of qualified immunity on the fact that the state’s interest in confidentiality and the smooth functioning of the infirmary is greater than Frazier’s interest in speaking out about the nursing practices at Wade. The defendants urge that Frazier violated rules of confidentiality and Wade’s procedures when she gave Sister Lucie copies of inmates’ records. In addition, the defendants assert that Frazier disrupted the infirmary by (1) copying inmate records when she should have been helping patients; (2) creating “an atmosphere of uncertainty among the other nurses;” and (3) failing to follow established grievance procedures.

In balancing the state’s interest in confidentiality and a non-disruptive environment against Frazier’s interest in reporting the nursing practices at Wade, we are guided by the Supreme Court’s recent decision in Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 2898-99, 97 L.Ed.2d 315 (1987), holding that the

statements] will not be considered in a vacuum; the manner, time and place of [Frazier’s] expression are relevant, as is the context in which the dispute arose [citations omitted]_ [P]ertinent considerations [are] whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impeded the performance of the speaker’s duties or interferes with the regular operations of the enterprise [citations omitted].

The Rankin court stated that “[v]igilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.” Id. at 384, 107 S.Ct. at 2896.

The defendants concern about confidentiality is misguided. Their own witness testified that it would not be a breach of confidentiality to send copies of the records to the State Board of Nursing.

The defendants do have a legitimate concern about the disruption caused by Frazier’s accusations. Although Frazier’s “whistle blowing” obviously created tension and difficulties at Wade, when weighed against the exposure of unethical medical practices affecting hundreds of inmates, the disruption is a minimal interest. See Matherne v. Wilson, 851 F.2d 752, 761 (5th Cir.1988) (holding that the greater the public concern, the greater the disruption must be to give rise to qualified immunity, relying on Gonzalez v. Benavides, 774 F.2d 1295 (5th Cir.1985), cert. denied 475 U.S. 1140, 106 S.Ct. 1789, 90 L.Ed.2d 335 (1986)). As this court held in Porter v. Califano, 592 F.2d 770, 773-74 (5th Cir.1979), “it would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office.”

C. Motivation behind defendants’ decision to terminate Frazier.

Under Mt. Healthy, Frazier must demonstrate that the exercise of her First Amendment rights motivated the defendants’ decision to fire her. Once she has shown such motivation, the defendants must prove that they would have fired Frazier even absent her expression.

The district court found that Frazier’s speech motivated the defendants’ decision to fire her. The Warden’s warning that if Frazier filed a complaint with the State Board of Nursing she would lose her job is alone sufficient evidence to support this finding.

The only reason the defendants gave for terminating Frazier was that she copied some inmate records without the inmates’ consent. A witness for the defendants testified that it was not a violation for Frazier to copy the inmates’ records and submit the records to the State Board of Nursing without the inmates’ consent. This testimony supports the district court’s finding that the defendants failed to demonstrate that they would have fired Frazier even if she had not exercised her First Amendment rights.

We find that the district court was correct in holding that the defendants violated Frazier’s right of free speech.

IV. Sovereign Immunity.

The defendants urge that the Eleventh Amendment grant of sovereign immunity shields them from liability and deprives this court of jurisdiction. The Eleventh Amendment prohibits a citizen from bringing a suit in federal court against his own state. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

In Ex parte Young, the Supreme Court held that a state official cannot invoke the shield of sovereign immunity if the official has acted in violation of the Constitution. 209 U.S. 123, 159, 28 S.Ct. 441, 454, 52 L.Ed. 714 (1909). Under Young, when a state officer acts unconstitutionally, he is acting outside his authority and is “stripped of his official or representative character.” Id. at 160, 28 S.Ct. at 454. See also Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984) (recognizing the continued validity of Ex parte Young).

Because Frazier sued the defendants in their official and individual capacities for violations of her constitutional rights, her claim falls within Ex parte Young and she can maintain an action against the defendants in their individual capacities under 42 U.S.C. § 1983. See American Civil Liberties Union of Mississippi v. Finch, 638 F.2d 1336, 1340-41 (5th Cir.1981) (holding that the Eleventh Amendment does not bar claims for damages against state officials for violations of individuals’ First Amendment rights).

V. Qualified Immunity.

The defendants are not entitled to qualified immunity if Frazier’s First Amendment rights were “ ‘clearly established’ at the time of [the defendants’] conduct so that a reasonable official would have understood that his conduct violated [Frazier’s rights].” Brawner, 855 F.2d at 191.

The Supreme Court recently articulated what is meant by “a clearly established right.” In Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987), the Supreme Court stated that:

[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. That is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful [citations omitted]; but it is to say that in the light of preexisting law the unlawfulness must be apparent.

Applying Anderson to the instant case, the evidence indicates that the defendants violated Frazier’s clearly established First Amendment rights. There has been extensive publicity over the past decade concerning the rights and protections afforded whistle blowers. A reasonable official would know that it would be a violation of Frazier’s rights to fire her after she blew the whistle on the improprieties at the prison. See Brawner, 855 F.2d at 193 (stating that “a reasonably objective public official would have known that termination of an employee for his speech concerning misconduct by public officials would violate a clearly established constitutional right”).

VI. Damages.

After reviewing the record and the district court’s findings, we hold that the evidence fully supports the district court’s award of damages and attorney’s fees.

VII. Conclusion.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

1 . The LCSC opinion does not include the word "not;” however, a review of the entire opinion indicates that the omission of "not" in this sentence was an error.

2 . State rules of issue preclusion may bar relit-igation of issues in federal court that were previously litigated in state administrative proceedings.