The full case caption appears at the
end of this opinion. Easterbrook, Circuit Judge. After HamiltonCarmouche was promoted to Corporation Counsel ofGary, Indiana, he needed to appoint a CityAttorney, the No. 2 position. He chose MargaretFelton, which caused an uproar among thesecretaries in the office. It was not just thatFelton is white, while Carmouche, most of theother attorneys and staff, and most residents ofGary are black. The problem was that peoplethought that Felton would be a taskmaster–as sheturned out to be (for example, she had a timeclock installed). The next year was filled withstrife: staff members complained to Carmouche andwent over his head when he backed Felton.Displeased with efforts to undermine his positionand that of his chosen second in command,Carmouche disciplined several of the insurgents.By the end of that year our two plaintiffs–Cynthia Taylor, a lawyer in the office, andRebecca Smith, a secretary and paralegal–weregone. Soon Carmouche and Felton followed them toprivate life, as they had lost the confidence ofMayor Barnes. He, too, was replaced before muchlonger, having decided not to run for reelectionin 1995. Taylor was hired in June 1993, fresh from lawschool, and last worked for the Law Department inOctober 1994, when she took maternity leave. WhenTaylor sought to return in December, Carmouchedemanded a medical clearance in light of Taylor’scontention that she needed therapy three days aweek to address her inability to climb stairs–aserious problem at the Law Department, located onthe fourth floor of a building whose elevatordoes not go higher than the third floor. Taylordid not respond for a month, and the physician’sopinion she finally secured in January said thatshe could not climb stairs or work more than fourhours a day. Carmouche told Taylor that she wouldbe welcome to come back when she could work fulltime; instead she found other employment and suedfor wrongful discharge, contending that Carmoucheretaliated against her on account of hercomplaints about his (and Felton’s) stewardshipof the Law Department. Claims under the Americanswith Disabilities Act, the Family Medical LeaveAct, and Title VII of the Civil Rights Act of1964 have dropped by the wayside. In this courtTaylor’s sole contention, based on 42 U.S.C.sec.1983, is that Carmouche violated her rightsunder the first amendment by penalizing her forspeech about matters of public concern. Smith joined the Law Department in 1991 and wassatisfied with her situation until February 1994,when Felton became City Attorney. Smithcomplained in general terms to both Carmouche andMayor Barnes that Felton is a “racist,” and Smithperceives that she suffered as a result. Feltonissued Smith a written warning for taking toomuch time for lunch and complained in writing toCarmouche about Smith’s unwillingness to attenda professional seminar. Felton delivered a verbalwarning for using profanity and failing to treatothers with respect. In July Felton spoiled asurprise birthday party that Smith and othersecretaries had planned for a co-worker, tellingthe object of the party to “call off the dogs.”When Smith paged Carmouche to return to theoffice so that she could complain in writingabout Felton’s reference to the secretaries as”dogs,” Carmouche blew up and called Smith’s memo”a piece of shit” and handed her a written order(dated ten days earlier) suspending her forfailing to provide certain documents to the CityCouncil in a timely fashion. Smith appealed thissuspension to the City’s personnel committee,where both she and Taylor testified that Smithwas being singled out for alleging that Felton isa racist. Smith prevailed on this grievance butsoon was suspended again, and her additionalgrievances were unsuccessful. (She does notcontend in this litigation that any of theadditional suspensions was unjustified. Nor doesshe complain about the multiple written warningsfor tardiness and insubordination that wereplaced in her file before Felton’s appointment.)Smith quit in October 1994 and labels this aconstructive discharge. Carmouche was not pleased by Smith’s decisionto go over his head, or by Taylor’s criticism ofhis management decisions, and let both of themknow it. Taylor, who had been working in adetached office on the third floor (large enoughfor one attorney and one secretary) toaccommodate her leg injury, was ordered back tothe fourth floor for closer supervision. Sheappealed to Gary’s chief operating officer, whotold her to stay put. Taylor then went home andwas not present for a visit from Carmouche andFelton, who suspended her for abandoning her job.Taylor filed another grievance, sought medicalleave for the period of the suspension, and alsoapplied for maternity leave. When Feltoninitially granted a shorter period of leave thanTaylor sought, she filed a grievance about thatdecision too, this time with the City’s personneldirector. Taylor returned to work and filed aworkers’ compensation claim, asserting that alltime off had been attributable to an injurysustained on the job, and filed yet anothergrievance, this time asserting retaliation fortestifying at Smith’s grievance hearing. For thefirst time, Taylor went outside the City’spersonnel hierarchy; she turned to the UnitedStates Department of Labor, asserting in a letterthat she was the victim not only of retaliationfor speech but also of racial discrimination.Meanwhile Taylor commenced her maternity leave,which was to last until mid-December. Taylorreported back to work on December 19, and heranswer to Carmouche’s question whether she wasable to work full time led to his request for aphysician’s evaluation–and what happened then wehave already described. Magistrate Judge Rodovich, presiding by consentunder 28 U.S.C. sec.636(c), granted judgment asa matter of law to the City of Gary on the firstamendment claims at the close of plaintiffs’case. Municipalities are not vicariously liablein litigation under sec.1983. Monell v. New YorkDepartment of Social Services, 436 U.S. 658(1978). That Carmouche was a department head doesnot affect application of the Monell principle.Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992).Unless the City had a policy of retaliatingagainst protected speech–and neither Taylor norSmith contends this–it cannot be liable. IfCarmouche or Felton retaliated against protectedspeech, then they violated rather thanimplemented Gary’s personnel policy, so thesec.1983 claim against the City was rightlydismissed. Evidence concerning plaintiffs’ remaining claimsshowed that Felton alienated the secretaries byinsisting that they work harder, that thesecretaries perceived her as condescending, andthat Carmouche was touchy, insensitive, profane,and in many other respects a poor manager. Noneof these is a federal offense, however, and themagistrate judge concluded that Smith, at least,had nothing else to go on. After plaintiffs’ casethe magistrate judge granted judgment as a matterof law against Smith (and in substantial measureagainst Taylor), ruling that none of the eventswithin the City’s chain of command was speechprotected by the first amendment againstretaliation. All of the statements, protests, andgrievances were internal personnel matters,dealing with the situations of the plaintiffsrather than matters of general public concern,the magistrate judge concluded. See Connick v.Myers, 461 U.S. 138 (1983); Waters v. Churchill,511 U.S. 661 (1994). The letter to the Departmentof Labor, however, was not an internal affair,and retaliation against Taylor for writing thisletter could support recovery, the court stated.The jury returned a verdict in Taylor’s favoragainst Carmouche on this theory, awarding atotal of $80,000 in damages: $14,000 for lostwages and benefits, $6,000 for other loss, and$60,000 as punitive damages. On all othertheories of liability (for example, Title VII andthe FMLA), the jury’s verdict was for defendants. After the verdict the court entered judgment asa matter of law in Carmouche’s favor under Fed.R. Civ. P. 50(b) (1)(C), and conditionallyawarded Carmouche a new trial in the event weshould disagree with this disposition. See Fed.R. Civ. P. 50(c)(1). The magistrate judgebelieved that the three-month lapse betweenTaylor’s letter to the Department of Labor andCarmouche’s decision not to allow Taylor toreturn from leave was too great to support aninference that the former precipitated thelatter. Given the rule that all evidence andinferences must be taken in the light mostfavorable to the verdict, this observation doesnot permit the court to set aside the jury’sconclusion. Taylor went on leave soon aftersending the letter, and Carmouche demandedmedical clearance the very day she returned. Thelength of Taylor’s maternity leave cannotpreclude, as a matter of law, an inference thatCarmouche imposed a penalty for criticism. What does preclude the inference is the absenceof any evidence that what Carmouche did was apenalty. Gary requires all employees returningfrom any health-related leave to provide medicalevidence of fitness for duty. Carmouche did nomore than enforce this rule. Whatever intentionsor hopes Carmouche may have harbored, enforcinga policy applicable to all employees cannotreasonably be described as a penalty for speech.(No evidence of record implies that Carmoucheenforced the rule selectively.) To find apenalty, therefore, Taylor would have to point tothe decision of January 1995, when Carmouchedeclined to allow her to work part time. ButTaylor does not contend that the January 1995decision was retaliation for her letter to theDepartment of Labor. Although plaintiffs chastise the magistratejudge for removing from the jury’s purview thedecision whether the remaining grievances andprotests dealt with matters of general publicconcern, their status is a question of law ratherthan fact, so the court rather than the jury isthe proper decisionmaker. Connick, 461 U.S. at148 n.7. Our review is plenary, id. at 150 n.10,and we agree with the magistrate judge’sresolution. Three principal considerationspersuade us that the magistrate judge was rightin thinking these grievances covered by Connick. First, as in Connick, all of the questionedspeech took place within the employer’s personnelhierarchy and concerned the management of thelabor force. Smith and Taylor complained aboutFelton to Carmouche, and then to Carmouche’ssuperiors. That Gary’s personnel committeesometimes takes formal testimony rather thanresolving grievances in other ways does not turnthe subject from management to politics. InConnick itself the Court concluded that some ofthe speech concerned issues of public concern,but it held that the speech as a whole must bedeemed work-related, in large measure because itall occurred within the workplace and concernedsupervisory management styles–which is, in theend, pretty much what Smith and Taylor werecomplaining about. Second, as in Connick and Waters, Smith andTaylor were protesting in their capacity asemployees, not in their capacity as citizens.Their complaints related to their jobs. Taylorbelieves that she rather than Felton should havebeen promoted and that her leg injury should havebeen accommodated by allowing her to continueworking on the third floor; Smith believes thatshe should have been allowed to hold surpriseparties without interference, contends that herbelated document delivery was someone else’sfault, and believes that her supervisors used toomuch crude language. These are normal workplacegrievances, and statements made in an employmentsetting about how the tasks should be carried outare appropriate subjects for reaction bymanagement, without constitutional obstacles.Wales v. Board of Education, 120 F.3d 82, 84-85(7th Cir. 1997). None of the statements wasoffered as a political view about what legalpolicies the City of Gary should adopt, or evenas a view about the City’s organizationalstructure. Smith and Taylor were not engaged ina debate about whether it was desirable, say, forGary to hire racists; they contended, rather,that race influenced what happened to them, onthe job. None of the defendants’ responsesaffected political discourse. As Justice O’Connorobserved in Waters, 511 U.S. at 672-75 (someinternal citations omitted): [E]ven many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees. The First Amendment demands a tolerance of “verbal tumult, discord, and even offensive utterance,” as “necessary side effects of . . . the process of open debate,” Cohen v. California, 403 U.S. 15, 24-25 (1971). But we have never expressed doubt that a government employer may bar its employees from using Mr. Cohen’s offensive utterance to members of the public or to the people with whom they work. . . . [W]hen an employee counsels her co-workers to do their job in a way with which the public employer disagrees, her managers may tell her to stop, rather than relying on counterspeech. … [T]hough a private person is perfectly free to uninhibitedly and robustly criticize a state governor’s legislative program, we have never suggested that the Constitution bars the governor from firing a high-ranking deputy for doing the same thing. Even something as close to the core of the First Amendment as participation in political campaigns may be prohibited to government employees. … This does not, of course, show that the First Amendment should play no role in government employment decisions. Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions. And a government employee, like any citizen, may have a strong, legitimate interest in speaking out on public matters. In many such situations the government may have to make a substantial showing that the speech is, in fact, likely to be disruptive before it may be punished. … . . . [T]he extra power the government has in this area comes from the nature of the government’s mission as employer. Government agencies are charged by law with doing particular tasks. Agencies hire employees to help do those tasks as effectively and efficiently as possible. When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her. The reason the governor may, in the example given above, fire the deputy is not that this dismissal would somehow be narrowly tailored to a compelling government interest. It is that the governor and the governor’s staff have a job to do, and the governor justifiably feels that a quieter subordinate would allow them to do this job more effectively. The key to First Amendment analysis of government employment decisions, then, is this: The government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate. Carmouche and Felton acted in their capacity assupervisors of the Law Department rather than asregulators of private speech, which under Watersthey may do without violating the firstamendment. Third, Smith and Taylor offered their assertionthat Felton is a “racist”–the only statementthat plaintiffs characterize as raising an issueof public concern–as a proposition of factrather than of opinion, though it is principallythe latter that the first amendment protects.Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40(1974); Stevens v. Tillman, 855 F.2d 394, 398-402(7th Cir. 1988). The statement at issue in Rankinv. McPherson, 483 U.S. 378 (1987), an employee’swish that the President be assassinated, asserteda political stance. But whether a givensupervisor is a racist, or practices racialdiscrimination in the workplace, is a mundaneissue of fact, litigated every day in federalcourt. “Felton is a racist” is defamatory, and aperson who makes an unsupported defamatorystatement may be penalized without offending thefirst amendment. Whether that penalty isdelivered in a slander action, in a perjuryprosecution, in an award of attorneys’ fees formaking unsubstantiated allegations, or in theworkplace by a suspension, is immaterial to theConstitution. What matters is that defamation ofa co-worker may be punished, and as we pointedout in Feldman v. Ho, 171 F.3d 494, 497-98 (7thCir. 1999), whether a particular defamatorystatement is true or false is not a question ofconstitutional moment, unless the target is a”public figure,” which Felton wasn’t. See alsoMilkovich v. Lorain Journal Co., 497 U.S. 1, 18-23 (1990); In re Palmisano, 70 F.3d 483 (7th Cir.1995). The Court held in Waters that so long asthe employer honestly and reasonably believesthat workplace speech is inappropriate ordisruptive, then the Constitution permits aresponse whether the speech in question was trueor false, disruptive or not. Smith and Taylor pressed their grievancesthrough the machinery Gary provided to itsemployees. Sometimes they won; sometimes theylost. They were not entitled to take their lossesto federal court and ask a jury to second-guess,in the name of the Constitution, the decisions ofthe personnel hierarchy. Affirmed Williams, Circuit Judge, dissenting. Irespectfully dissent. While I agree with themajority’s resolution of Cynthia Taylor’s claimrelating to her reinstatement after her medicalleave, I disagree with the majority’s resolutionof the plaintiffs’ other claims. Specifically, Iam not persuaded that the magistrate judgecorrectly ruled that the plaintiffs’ protestswithin the City of Gary’s chain of command didnot deal with matters of public concern. As I read the record, the plaintiffs’ protestswere an effort to challenge racism in the City’sLaw Department. In a variety of forums and onseveral occasions they raised their concernsabout racism on the part of both Margaret Feltonand Hamilton Carmouche. Most significantly, theywent directly to both the City’s Mayor and DeputyMayor in their effort to speak out. And, there isno indication in the record that their protestswere restricted to their individual concerns;rather, it appears that they were speaking out onbehalf of the entire office. In light of thesefacts, I cannot conclude that the plaintiffs’protests regarding racism in the City’s LawDepartment were simple workplace grievances thatdo not address matters of public concern. Seegenerally Marshall v. Allen, 984 F.2d 787, 795-96(7th Cir. 1993); Tindal v. Montgomery CountyComm’n, 32 F.3d 1535, 1539-40 (11th Cir. 1994).Assuming it is not related entirely to a privatedispute between the plaintiff and defendant,racism in a public agency is inherently a matterof public concern. See Connick v. Myers, 461 U.S.138, 148 n.8 (1983) (noting that racialdiscrimination is a matter inherently of publicconcern). Moreover, that the plaintiffs’ protests werecommunicated within the City’s chain of commanddoes not strike me as a particularly strongreason to deem their protests matters of privateconcern. The plaintiffs’ should not be penalizedfor taking advantage of internal procedures forraising their concerns, instead of running to thepress the first chance they had. See Givhan v.Western Line Consol. Sch. Dist., 439 U.S. 410,413-14 (1979) (expressing one’s views privatelyrather than publicly does not forfeit the firstamendment protections afforded a governmentemployee); Hulbert v. Wilhelm, 120 F.3d 648, 654(7th Cir. 1997) (noting that the plaintiff-employee was, if anything, to be commended forattempting to go through established internalchannels). As for the majority’s suggestion that theplaintiffs’ protests about racism in the LawDepartment were defamatory and therefore are notentitled to constitutional protection, I thinkthe majority collapses two distinct areas offirst amendment law. One area regards thelimitations placed on a government when it actsin its sovereign capacity to penalize orauthorize penalties for defamation. The otheraddresses the limitations placed on a governmentwhen it acts in its capacity as an employer todiscipline one of its employees based on thatemployee’s speech. In light of the distinctsituations that must be addressed, quitedifferent standards apply in these two areas.Whether defamation may be punished depends onwhether the subject of the defamatory statementis a public official, public figure, or privatefigure, whether the defamatory statement involvesa matter of public concern, and whether thedefamatory statement is a proposition of fact.See generally Milkovich v. Lorain Journal Co.,497 U.S. 1 (1990); Dun & Bradstreet, Inc. v.Greenmoss Builders, Inc., 472 U.S. 749 (1985)(plurality opinion). Moreover, truth is anabsolute defense. Whether a government employeemay be disciplined for his or her speech dependson whether the speech addresses a matter ofpublic concern and whether the government’sinterest in efficiency outweighs the employee’sinterest in speaking out. See generally Connickv. Myers, supra; Pickering v. Board of Education,391 U.S. 563 (1968). Truth is not a defense.Collapsing these distinct standards confuses theissues presented by this case. Contrast Waters v.Churchill, 511 U.S. 661, 671-75 (1994) (pluralityopinion) (making a point of distinguishing thesorts of the first amendment restrictions placedon a government in its sovereign capacity andthose placed on a government in its capacity asan employer). In fact, as this case is plainlygoverned by the law regarding employee speech,there is no need to discuss the law of defamationat all.
Taylor v. Carmouche In the United States Court of Appeals For the Seventh Circuit No. 99-3117 Cynthia Taylor and Rebecca Smith, Plaintiffs-Appellants, v. Hamilton Carmouche, Margaret Felton,and City of Gary, Indiana, Defendants-Appellees. Appeal from the United States District Court for theNorthern District of Indiana, Hammond Division. No. 2:96 cv 504–Andrew P. Rodovich, Magistrate Judge. Argued February 22, 2000–Decided May 24, 2000 Before Coffey, Easterbrook, and Williams, CircuitJudges.
