Barbara Sparr v. B. A. McIntosh

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3401
___________
Barbara Sparr, *
*
Plaintiff - Appellee, *
*
v. *
*
Janet Ward, individually and in her *
official capacity as an employee of the * Appeal from the United States
Pulaski County Tax Assessor's Office, * District Court for the Eastern
* District of Arkansas.
Defendant, *
*
B. A. McIntosh, individually and in his *
official capacity as an employee of the *
Pulaski County Tax Assessor's Office, *
*
Defendant - Appellant. *
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Submitted: May 15, 2002
Filed: October 7, 2002 (Corrected 10/21/02)
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Before LOKEN, BOWMAN, and BYE, Circuit Judges.
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BYE, Circuit Judge.
This is an appeal from the district court's denial of a motion for summary
judgment based upon the defense of qualified immunity in a civil rights action
alleging unlawful termination of employment in retaliation for exercise of First
Amendment rights to free speech. Because we find no violation of a clearly
established constitutional right, we reverse.
I.
Barbara Sparr was employed by the Pulaski County Assessor's office from
January, 1991, until her discharge on August 22, 2000. During her tenure with the
Assessor's office the County Assessor was B.A. McIntosh. At the time of her
termination, Sparr was working as an administrative assistant to McIntosh and the
Chief Deputy Assessor, Janet Ward.
In 2000, McIntosh chose to retire and Ward decided to run for County
Assessor. Ward told Sparr she would promote her to Chief Deputy Assessor if Ward
won the election. Initially, Sparr supported Ward's candidacy but later changed her
mind and refused to support Ward or to accept the Chief Deputy Assessor position.
Sparr advised Ward of her change of heart in a memorandum dated August 21, 2000.1
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The memorandum read as follows:
Janet, you have indicated that upon your election to the
position of Assessor in the November 2000 [sic], I would
be placed into the Chief Deputy position with an
assigned county vehicle. I have indicated to you my
interest in this upgrade and appreciate your confidence in
me, but after much soul searching I must decline the
upgrade.
As you know I have been with the Assessor’s office since
January 1991. During this period I have worked under
B.A.“Mac” McIntosh, and I may not have agreed with all
his policies, but I have always respected, honored and
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supported his position and his political campaigns
because I believed in him.
Since your tenure as Chief Deputy you have encouraged
me to continue my education and raised my salary
accordingly and this is much appreciated. However, I
also realize that all the hard work of studying, passing the
necessary IAAO course work to gain my Senior
Appraiser (Administration) status given by ACD is a goal
I set for myself and accomplished. I have had many
achievements during the last ten (10) years of
employment, but of those I hold in highest regard are the
"Outstanding Achievement Award" presented to me by
Mr. McIntosh at the Assessor’s Annual Christmas
luncheon in December 1999, and my Certificate as
["]Senior Appraiser in Administration" from State
Assessment Coordination Division. Of course receiving
the monetary reward from the State of Arkansas of $500
for achieving this designation was great.
Under my request and Mr. McIntosh’s advice you have
placed me in a position of day to day operations of
personnel matters so that your time can be spent on the
upcoming appraisal. I again appreciate your confidence,
however I have come to realize that our differences in
management styles are so different that it would be
extremely difficult and stressful for me to be the [sic] in
the position of Chief Deputy. I believe I can better serve
Pulaski County in my present position. I look forward to
the opportunity of continuing my college education, paid
by the County and will certainly pay it back with my
work and support.
Feeling as I do, I cannot in good conscience campaign
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Before giving the memorandum to Ward, Sparr showed it to McIntosh. She
asked for his advice and sought assurances that he would protect her job. McIntosh
encouraged Sparr to give the memorandum to Ward. He noted, however, that Sparr
had copied the memorandum to Temperlene Smith, Pulaski County Personnel
Director, and instructed Sparr not to provide Smith with a copy. McIntosh wanted
to keep the matter "in house" and was concerned problems would escalate if the
memorandum was circulated outside the Assessor's office. Sparr nevertheless met
with Smith and gave her a copy of the memorandum. Smith read the memorandum,
discussed it with Sparr and Smith's supervisor, and placed it in Sparr's personnel file.
At no time did Sparr ask or expect Smith to take any further action regarding the
memorandum. Shortly thereafter, Sparr delivered a copy of the memorandum to
Ward. Later that day, McIntosh discovered Sparr had given the memorandum to
Smith. The next day he called Sparr and terminated her position.
for you in your quest for Assessor in the November
election. I will always treat you with respect in your
position, whatever it may be, but I council [sic] you to
take a serious look at present management style and
techniques. There are employees being hurt emotionally,
spying on one another, spreading untrue rumors about
other employees, sexual language to female and male
employees to encourage undesired relationships which
could result in more sexually discriminating [sic] suits
against Pulaski County. You have so much to offer in
your present position and possibly the next Assessor of
Pulaski County, but only if a straight-forward and honest
approach is used with employees as to what their
positions are and will be. An office cannot move
forward with promises to employees that cannot be kept,
or employees that are afraid of losing their livelihood in
declining management’s personal, unethical requests.
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Sparr brought this action seeking relief under the First Amendment and 42
U.S.C. § 1983; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-
17; and the Arkansas Civil Rights Act of 1993, Ark. Code Ann. § 16-123-101 to 16-
123-108. (Supp. 2001). Sparr claims she was discharged in retaliation for speaking
out about sexual harassment in the Assessor’s office, and for exercising her First
Amendment right to refuse to support Ward's candidacy.
McIntosh moved for summary judgment in his individual capacity arguing he
was entitled to qualified immunity. The district court rejected McIntosh's qualified
immunity defense finding Sparr’s speech was on a matter of public concern and her
right to free speech outweighed the interests of her employer. On appeal, McIntosh
contends the district court erred by finding Sparr's speech protected by the First
Amendment, and by finding her right to free speech outweighed the interests of her
employer.
II.
Qualified immunity is an affirmative defense for which the defendant carries
the burden of proof. The plaintiff, however, must demonstrate that the law is clearly
established. Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989). The
district court's denial of summary judgment on grounds of qualified immunity is
subject to de novo review, Cornell v. Woods, 69 F.3d 1383, 1390 (8th Cir. 1995),
taking as true Sparr's factual allegations and drawing all inferences from the
underlying facts in Sparr’s favor. Natale v. Town of Ridgefield, 927 F.2d 101, 104
(2d Cir. 1991).
The purpose of qualified immunity is to allow public officers to carry out their
duties as they believe are correct and consistent with good public policy, rather than
acting out of fear for their own personal financial well being. See generally Harlow
v. Fitzgerald, 457 U.S. 800, 814 (1982). Toward this end, the rule has evolved that
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an official performing discretionary functions will generally be immune from liability
unless a reasonable person in his position would have known his actions violated
clearly established law. Anderson v. Creighton, 483 U.S. 635, 640 (1987). An
official loses immunity if the law he violated was clearly established at the time of the
violation, and the applicability of the law to his particular action was evident. Id.
The inquiry "focuses on the objective legal reasonableness of an official's acts,"
and the qualified immunity defense fails if the official violates a clearly established
right because "a reasonably competent public official should know the law governing
his conduct." Harlow, 457 U.S. at 818-19. To demonstrate the law is "clearly
established," the plaintiff must show a "reasonable official would understand that
what he is doing violate[s]" plaintiff's rights. Anderson, 483 U.S. at 640. We have
taken a broad view of what constitutes "clearly established law" for the purpose of
qualified immunity, requiring some but not precise factual correspondence with
precedents and demanding officials apply "general, well-developed legal principles."
Boswell v. Sherburne County, 849 F.2d 1117, 1121 (8th Cir. 1988); see also Lappe
v. Loeffelholz, 815 F.2d 1173, 1177 (8th Cir. 1987). In determining the validity of
a qualified immunity defense the issue is not whether the defendant acted wrongly,
but whether reasonable persons would know they acted in a manner which deprived
another of a known constitutional right. Malley v. Briggs, 475 U.S. 335, 344-45
(1986) (holding that police officers applying for warrant were shielded from liability
if a reasonable police officer could have believed there was probable cause to support
the application). "As the qualified immunity defense has evolved, it provides ample
protection to all but the plainly incompetent or those who knowingly violate the law."
Id., at 341.
III.
Our review follows a two-step inquiry to determine whether Sparr's speech was
protected. First, we must determine whether her speech can be "fairly characterized
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as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S.
138, 146 (1983). If so, Sparr’s right to comment on matters of public concern must
next be balanced with the County’s interest in "promoting the efficiency of the public
services it performs through its employees." Pickering v. Board of Education,
391U.S. 563, 568 (1968). Both parts of the Connick-Pickering inquiry are questions
of law for the court to decide. Connick, 461 U.S. at 148 n.7, 150 n.10.
A matter of public concern is a matter of political, social or other concern to
the community. Id., at 146. To determine whether speech qualifies as a matter of
public concern, we must examine the content, form and context of the speech, as
revealed by the whole record. Id. at 147-148; Shands v. City of Kennett, 993 F.2d
1337, 1343 (8th Cir. 1993). If we determine the speech is a matter of public concern,
we then proceed to a Pickering analysis and consider a number of interrelated factors
to balance the interests of the employee and the employer.
The district court determined as a matter of law that Sparr's memorandum
constituted speech on a matter of public concern. The district court focused on the
last paragraph of the memorandum and concluded the statements about Ward's
management style and the County's exposure to litigation were matters of public
concern sufficient to bring Sparr's speech within the protections of the First
Amendment. On appeal, McIntosh contends the district court's review of the
memorandum is unreasonably narrow. McIntosh argues the memorandum, when
considered in its entirety, clearly evinces an intention to speak out privately on
internal personnel matters. We agree.
"Whether an employee's speech addresses a matter of public concern must be
determined by the content, form, and context" of the speech, and the speech must
relate to some "matter of political, social or other concern to the community."
Connick, 461 U.S. at 146-47. When a public employee's speech is purely job- related,
her speech will not be deemed a matter of public concern. Bauzard v. Meridith, 172
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F.3d 546, 548 (8th Cir. 1999). "Unless the employee is speaking as a concerned
citizen, and not just as an employee, the speech does not fall under the protection of
the First Amendment." Id. It is not enough that the topic of an employee's speech is
one in which the public might have an interest. Morgan v. Ford, 6 F.3d 750, 754
(11th Cir. 1993). We must determine whether the purpose of the speech was to raise
issues of public concern or to further the employee's private interests. Id.
Sparr's memorandum was addressed only to McIntosh and Ward, with a carbon
copy to Smith for placement in Sparr's personnel file. The memorandum contains
mostly personal comments, i.e., expressions of gratitude and praise for both McIntosh
and Ward which one would not expect to find in speech intended "to bring to light
actual or potential wrongdoing or breach of public trust." Connick, 461 U.S. at 148.
Only the last paragraph contains any speech touching on matters of public concern.
Although the allegations of sexual harassment and mismanagement contained in
Sparr's memorandum could be of concern to the public, the record demonstrates Sparr
was speaking out as an employee, not as a concerned citizen. Sparr had chosen not
to support Ward's candidacy or to accept a promotion to Chief Deputy assessor. Her
memorandum to Ward was driven by her understandable self-interest in protecting
her employment in the event Ward won the election — not by a desire to introduce
matters of public concern into a public forum. Because Sparr's speech was motivated
primarily by concerns over her employment, and not by her concern about matters of
public concern, we find it undeserving of First Amendment protection. Morgan, 6
F.3d at 755 n.7 ("We will not permit an employee to manufacture First Amendment
protection (thereby job security) by complaining on a matter related to a social
concern."); cf. Barlett v. Fisher, 972 F.2d 911, 917 (8th Cir. 1992) (holding that when
an employee's self-interest outweighs his interest as a citizen commenting on matters
of public concern, the speech is not deserving of First Amendment protection).
Similarly, the context in which employee speech occurs is also relevant.
Connick, 461 U.S. at 147. In this case, the evidence shows the statements were
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entirely internal to the County Assessor's office. While a public employee does not
give up her right to free speech simply because her speech is private, Givhan v. W.
Consol. Sch. Dist., 439 U.S. 410, 414 (1979), the internal nature of Sparr's speech is
a factor to be considered.
Sparr contends that giving a copy of the memorandum to Smith demonstrates
her speech was on a matter of public concern because Smith was authorized to receive
complaints of discrimination. Sparr, however, has presented no evidence suggesting
her motivation for providing the memorandum to Smith was intended to bring the
allegations of discrimination into the public eye. Indeed, Smith testified she had
never received a complaint regarding sexual harassment and did not treat the
memorandum as one. Further, Sparr testified she expected Smith to place the
memorandum in her personnel file — nothing more. Thus, Sparr was motivated by
a concern that her decision not to support Ward might adversely affect her
employment. Her concerns were entirely understandable, but they belie her
contention that she was motivated by a desire to speak out as a concerned citizen on
matters of public concern.
Other decisions of this court have accorded employee speech protected status
because it could be "fairly characterized as constituting speech on a matter of public
concern." Connick, 461 U.S. at 146. We do not, however, find those cases apposite
in this instance. For example, in Altman v. MN Dep't of Corr., 251 F.3d 1199, 1202
(8th Cir. 2001) we found Bible reading during a mandatory training program dealing
with the issue of gays and lesbians in the workplace constituted nonverbal conduct
deserving of First Amendment protection. Though the nonverbal protest in Altman
was directed at an inherently internal policy, we found the employees' speech a matter
of public interest and concern because their public employer forced employees to
attend training which in their words constituted "state-sponsored indoctrination
designed to sanction, condone, promote, and otherwise approve behavior and a style
of life [they] believe[d] to be immoral, sinful, perverse, and contrary to the teachings
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of the Bible." Id. at1201-1202. Conversely, Sparr's speech cannot be construed as
public or even private comment on a matter of such broad social or public concern.
Inasmuch as it touched on matters which could be of interest to the public, its primary
purpose was to ensure Sparr would keep her job.
IV.
The content, form and context of Sparr's speech all show she was not speaking
out as a private citizen on matters of public concern. Therefore, we do not need to
reach the second part of the Connick-Pickering inquiry. Accordingly, the order of the
district court denying McIntosh's motion for summary judgment in his individual
capacity is reversed, and the case is remanded to the district court for further
proceedings consistent with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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