Azzaro v. Allegheny ( 1996 )

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
7-31-1996
Azzaro v. Allegheny
Precedential or Non-Precedential:
Docket 95-3253
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
----------
NO. 95-3253
----------
BEVERLY AZZARO,
Appellant
v.
COUNTY OF ALLEGHENY; TOM FOERSTER, an individual
and Chairman, Allegheny County Commissioners
and WAYNE FUSARO
----------
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 93-1589)
----------
Argued December 7, 1995
BEFORE: STAPLETON,
SAROKIN, and ROSENN, Circuit Judges
----------
(Opinion filed July 31, 1996)
Michael J. Healey, Esq. (ARGUED)
Healey, Davidson & Hornack
Fifth Floor
Law & Finance Building
Pittsburgh, PA 15219
Attorney for Appellant
Ira Weiss, Esq.
County Solicitor
Robert L. McTiernan, Esq. (ARGUED)
Ass't County Solicitor
Caroline Liebenguth, Esq.
Ass't County Solicitor
Allegheny County Law Dep't
300 Fort Pitt Commons Building
445 Fort Pitt Blvd.
Pittsburgh, PA 15219
Attorneys for Appellees
----------
OPINION OF THE COURT
----------
SAROKIN, Circuit Judge:
Plaintiff's claims for retaliatory discharge following her
reports of sexual harassment were dismissed on summary judgment.
Contrary to the district court, we conclude that there was
sufficient evidence upon which a reasonable factfinder could
conclude that there was a causal link between plaintiff's
complaint of sexual harassment and her termination. We also
conclude that there was sufficient evidence to conclude that
plaintiff was discharged as a result of speech protected by the
First Amendment.
We recognize that most complaints of sexual harassment are
likely to have as their primary purpose the vindication of the
private rights of the person offended. However, a public
employee's complaints of sexual harassment by a public official,
because they disclose serious official malfeasance, are
inherently of public concern even if made in a private forum.
Unless the employee's interests in speaking out upon matters of
public concern are outweighed by the public employer's interests
in running an efficient workplace, the speech is protected under
the First Amendment.
I.
We begin by setting forth a brief "Cast of Characters" to
serve as a reference and a guide through the complicated factual
maze that follows. All of the individuals listed below are
employees of the County of Allegheny, Pennsylvania.
Beverly Azzaro Plaintiff, employee of Dept.
of Development
Chuck Azzaro Plaintiff's husband
George Braun Director of Dept. of
Development (Hohman's
successor)
Donna Brusco Employee of Dept. of Employee
Relations, close personal
friend of defendant
Fusaro
Tom Foerster Defendant, County Commissioner
Tom Fox Plaintiff's supervisor
Wayne Fusaro Defendant, Assistant to
Commissioner Foerster,
accused by plaintiff of
sexual harassment
Joe Hohman Director of Dept. of
Development (prior to
Braun)
Don Kovac Director of Dept. of Employee
Relations
Harry Kramer Executive Assistant to
Commissioner Foerster
Sal Sirabella County Director of
Administration
A.
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. Subsequently, she
filed a discrimination charge with the Equal Employment
Opportunity Commission alleging retaliatory discharge "because of
[her] refusal to agree to sexual advances and subsequently [sic]
complaint of unwelcomed sexual advances." App. 104.
The circumstances of Azzaro's discharge are disputed by the
parties. 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, Don Kovac,
reported the incident to Harry Kramer, who is the Executive
Assistant to County Commissioner Tom Foerster, indicating that
his employees were upset by Mr. Azzaro's behavior. Kramer
instructed Wayne Fusaro, an assistant to Foerster who was
acquainted with Mr. Azzaro, to speak with Mr. Azzaro and request
that he apologize. Accordingly, Fusaro dropped by Mr. Azzaro's
office, and Mr. Azzaro apologized to the appropriate people.
Plaintiff Azzaro learned of these events a day or two later
through her husband and through a co-worker, Donna Brusco, who
had heard the story from Fusaro. Plaintiff testified that
Brusco told her that Fusaro had said 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, plaintiff Azzaro went
to Commissioner Foerster's offices to talk to Fusaro.
What happened after Azzaro entered Fusaro's office is the
subject of some dispute. Because we are obligated on summary
judgment to construe the facts in the light most favorable to the
nonmoving party, we will present Azzaro's version of the events.
Azzaro testified that she began to cry, and Fusaro drew near her.
She became uncomfortable and made her way to a chair across the
room. Fusaro shut the office door and pulled a chair very close
to hers. He 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. At that point, Azzaro rose, saying
"what's wrong with you. Stop it. I'm here for the kids . . . ."
Id. She 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. Id. Plaintiff stood
up and said loudly, "[a]re you nuts." App. 123. As soon as
plaintiff "got loud," Fusaro "assumed . . . [a] professional
attitude." Id. Azzaro said, "I don't think you want Donna
[Brusco] to know about this, do you, Wayne?" Id. Fusaro shook
his head, then 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.
Plaintiff promised.
Fusaro denies all allegations of sexual assault or
impropriety.
Plaintiff did not immediately report the incident. She
told her daughters of the incident on the day it occurred,
however, and 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.
Azzaro testified that she did tell several co-workers of the
incident, including Mary Ionadi, Harry Rohm, Mark Patrick and
Cheryl Zentgraf. Donna Brusco testified that Azzaro also told
Kevin O'Laughlin and Mickey Maycar, both of whom mentioned those
conversations to Brusco.
Finally, in October 1991, Azzaro told her supervisor, Tom
Fox, of the incident at a party during a discussion of the Anita
Hill hearings. Fox expressed shock and urged Azzaro to report
it. 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. Plaintiff 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
these concerns. Foerster invited his 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. 361-63. 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
had testified under oath in a previous, related case that Hohman
accused Fusaro of sexual harassment at that meeting. It is
uncontroverted that Hohman neither mentioned Azzaro's name nor
offered any substantive details of the incident.
While this meeting was taking place, Azzaro reported the
incident to the County Director of Administration, Sal Sirabella.
Under the County's sexual harassment policy, the Director of
Administration is the official ultimately responsible for
reviewing reports of sexual harassment and deciding what official
action to take. Azzaro testified that she went to Sirabella
because he was an official in "high office" whom she could trust.
App. 143. 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.
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. Azzaro's husband, 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 or discuss Azzaro's
allegations with anyone.
That evening, Donna Brusco phoned Azzaro at home. She had
spoken to Fusaro about the incident in Commissioner Foerster's
office, and 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,
according to Sirabella, Fusaro asked Sirabella "three or four
times" what the purpose of Azzaro's visit had been. App. 172.
B. Termination
Azzaro alleges that she was fired in retaliation for her
actions in the aftermath of the Fusaro incident. According to
Azzaro, this retaliation was engineered by Fusaro and Brusco, who
share a close personal relationship. 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 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 ostensibly 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 his
assistant, Harry Kramer. Accordingly, Kovac granted his
permission and appointed John Chapman, another employee of the
Employee Relations Department, to assist Brusco.
Approximately eight to ten weeks prior to Azzaro's
termination, 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. Appellant's
Brief at 11. 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. 274. On June 19, 1992, George Braun, who
had replaced Hohman as Director of the Department of Development,
told Azzaro that her position would be eliminated as of August 1
due to budgetary reasons unrelated to her job performance.
According to the explanation offered by Braun and asserted by
defendants in this case, the elimination of Azzaro's position was
motivated by a directive of the federal Department of Housing and
Urban Development that required the county Department of
Development 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.
After Braun took over as Director of Development in March
1992, the Department of Development entered into an agreement
with HUD which required Development to spend less than the
permitted amount on administrative expenses for three years to
offset excess administrative expenditures in prior years. Braun
sought to satisfy the terms of this agreement by reorganizing the
Department of Development. He drafted a proposal to merge
together several divisions and eliminate 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 reported the 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
assistant, Harry Kramer, who 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, more than one year after the alleged harassment
took place, Azzaro was discharged.
C. Pretext
Azzaro maintains that defendants' explanation is purely
pretextual. To support her argument, she points to evidence that
the county's action in pulling her position out from under her
and making no effort to place her elsewhere was unprecedented.
Although the county had fairly frequently eliminated vacant
positions in the past, only once in the preceding fourteen years
had it eliminated staffed positions--and those staffed jobs,
unlike Azzaro's, had been designated from the outset as temporary
positions. Moreover, the Department of Employee Relations had
"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.
Azzaro further argues that the county's excess
administrative spending could have been reduced over time through
attrition. She points out that Hohman, whom Braun succeeded as
Director of Development, had believed that the problem could be
addressed without layoffs. The Letter of Agreement that HUD and
the county executed in May, 1992 required the county to make up
for the excess expenditures over a four-year "mitigation period."
App. 96. By the end of fiscal 1992, however, the county had
already reduced spending sufficiently to solve the problem and
compensate the government for the excess expenditures of the
past. Azzaro cites these facts as evidence that her termination
was not necessary to bring the county into compliance with the
HUD directive, and concludes that defendant's explanation of her
termination as a budgetary necessity is purely pretextual.
II.
In September, 1993, Beverly Azzaro filed a three-count
complaint in the United States District Court for the Western
District of Pennsylvania against the County of Allegheny,
Commissioner Tom Foerster, and Wayne Fusaro. Count I asserts a
claim against all defendants under 42 U.S.C. 1983 for
infringement of her First Amendment rights; Count II alleges
retaliatory discharge against Allegheny County in violation of 42
U.S.C. 2000(e); and Count III alleges violations of the
Pennsylvania Human Relations Act, 42 P.S. 955(a), (d) & (e),
against Allegheny County.
Defendants filed a joint motion for summary judgment which
the district court granted, deciding Counts I and II on the
merits and declining to exercise supplemental jurisdiction over
plaintiff's state-law claims. Plaintiff filed a timely notice of
appeal. We have jurisdiction over this appeal pursuant to 28
U.S.C. 1291, which grants us jurisdiction over appeals from
final orders of federal district courts. The district court had
jurisdiction over the federal causes of action pursuant to 28
U.S.C. 1331, and had supplemental jurisdiction over plaintiff's
state-law claims pursuant to 28 U.S.C. 1367(a).
III.
We exercise plenary review over a district court's decision
to grant summary judgment. Commercial Union Ins. Co. v.
Bituminous Casualty Corp., 851 F.2d 98, 100 (3d Cir. 1988). In
determining whether summary judgment is appropriate, we are
required to apply the same test that the district court should
have applied initially. Id.A motion for summary judgment shall be granted if "there is
no genuine issue as to any material fact and . . . the moving
party is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c). A fact is material if it could affect the outcome of the
dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The task of the court at the summary judgment stage is
"not . . . to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial." Anderson, 477 U.S. at 249. Thus, we must resolve all
reasonable doubts in favor of the non-moving party. Meyer v.
Riegel Products Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983).
A. Title VII Claim
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.), cert. denied, 502 U.S.
940 (1992). Because Title VII places the burden of persuasion on
the plaintiff, the defendant is entitled to summary judgment if
it can show that the plaintiff is unable to establish one or more
of the elements of this prima facie case. Jalil v. Avdel Corp.,
873 F.2d 701, 707 (3d Cir. 1989), cert. denied, 493 U.S. 1023(1990). 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. filed March 31, 1995).
As neither party challenges the district court's conclusions
with respect to the first two elements of the prima facie case
for retaliatory discharge, we will address them only briefly.
First, under the EEOC's Guidelines, an employee's opposition to
any unlawful employment practice is protected. Magnuson v. Peak
Technical Services, Inc., 808 F. Supp. 500, 515 n.13 (E.D. Va.
1992) (citing EEOC Compliance Manual, 704(a) Discrimination,
492.2(e)), aff'd, 40 F.3d 1244, 1994 WL 619727 (4th Cir. 1994).
Therefore, Azzaro's actions in reporting the incident with Fusaro
clearly constitute a protected activity within the meaning of
Title VII. As it is undisputed that Azzaro lost her job, she
satisfies the second requirement of Title VII as well.
The controversy swirls around the third prong of the test:
causation. The district court granted summary judgment on the
ground that plaintiff could not establish a causal link between
the protected activity and her discharge, because "there is no
competent evidence that those persons involved in the decision to
reorganize the DOD were aware of the alleged sexual harassment
prior to the approval of the reorganization." Azzaro, No. 93-
1589, at 19. We disagree.
To establish a causal connection sufficient to state a prima
facie case of retaliatory discharge under Title VII, a plaintiff
must proffer "evidence sufficient to raise the inference that the
protected activity was likely the reason for the adverse action."
Zanders v. National Railroad Passenger Co., 898 F.2d 1127, 1135
(6th Cir. 1990). In this case, plaintiff proffered the following
evidence in support of her theory of retaliation. First, she
produced evidence showing that Hohman stated at a meeting with
Foerster, Fusaro and Kramer that Fusaro sexually harassed a
Department of Development employee in connection with an incident
regarding 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, a reasonable jury could find
that it is more probable than not that Foerster, too, knew or
later learned that Azzaro was the employee in question.
Second, plaintiff produced evidence that Fusaro, upon
learning of plaintiff's meeting with Sirabella, asked Sirabella
what the meeting was about, and that Brusco called plaintiff to
make the same inquiry. A jury could reasonably infer from this
evidence, and from the evidence discussed above about the meeting
among Hohman, Fusaro, Kramer and Foerster, that Fusaro believed
plaintiff had broken her promise not to disclose the incident,
and that Fusaro accordingly arranged to terminate plaintiff in
retaliation.
Third, plaintiff proffered evidence that, following the
alleged harassment, her name was placed on a "hit list" of
Department of Development employees which was compiled by
Fusaro's close friend and ally, Donna Brusco, at Fusaro's
request.
Fourth, she brought forward uncontroverted evidence showing
that defendants' action in eliminating her position was
unprecedented in county history and contravened established
principles regarding the treatment of county personnel.
Fifth, she proffered evidence that defendants' stated reason
for eliminating her position and discharging her was pretextual.
The evidence demonstrated 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 budget problem; that the problem had been
fully addressed by the end of 1992, two years earlier than was
required; and that Azzaro was the only employee in the last
fourteen years whose position was eliminated and who was not
offered a transfer to a different county position. We believe
that these contentions are more than sufficient to support a
finding that the defendants' alleged reason for discharging
Azzaro was a pretext.
It is true, as defendants point out, that plaintiff did not
produce any direct evidence that Director of Development Braun,
who drafted the reorganization plan that resulted in Azzaro's
discharge, knew of Azzaro's allegations or acted in concert with
the defendants. In light of the ample evidence that plaintiff
produced suggesting that Braun's justification for his
recommended action was pretextual, however, we conclude that
granting summary judgment against plaintiff for failure to
produce direct evidence of Braun's knowledge is inappropriate.
Plaintiff has produced sufficient evidence to support a finding
in her favor by a reasonable factfinder, and she should be
allowed to proceed.
B. Section 1983 Claim
Count I of the complaint alleges that plaintiff was
discharged as a result of protected speech in violation of the
First Amendment and section 1983. We employ a three-step
analysis to determine whether a public employee was fired as a
result of protected speech. Swineford v. Snyder County, 15 F.3d
1258, 1270 (3d Cir. 1994). First, plaintiff must establish that
she was engaged in a protected activity. Id. If she succeeds,
then she must show that the protected activity was a "substantial
or motivating factor in her discharge." Id. A plaintiff who
satisfies both of these burdens will prevail unless the defendant
then proves that it would have fired the employee regardless of
the protected speech. Id. The district court granted summary
judgment on the grounds that plaintiff had failed to satisfy
either of the first two prongs of the Swineford test. We will
examine each in turn.
1.
To determine whether plaintiff engaged in a protected
activity, we engage in a two-step inquiry. First, we determine
whether her speech was related to a matter of public concern.
Swineford, 15 F.3d at 1270. If the answer is no, then
plaintiff's speech is not protected and our inquiry is at an end.
Id. at 1273 n.13. If the answer is yes, then we proceed to the
second step of the inquiry: "balancing the public employee's
interests in commenting on matters of public concern against the
public employer's interests in efficiency." Id. at 1270. If the
employee's interest in speaking on a matter of public concern
outweighs the employer's interest in providing efficient
services, then the speech is protected under the First Amendment.
The district court ruled that plaintiff's speech was not related
to a matter of public concern and granted summary judgment on
that basis without reaching the second part of the inquiry into
whether plaintiff's speech is protected. Accordingly, we will
confine our analysis to that issue.
Just what constitutes a matter of public concern for First
Amendment purposes has never been precisely defined. SeeSanguini v.
Pittsburgh Board of Public Educ., 968 F.2d 393 (3d
Cir. 1992). While it is axiomatic that "matters only of personal
interest" do not constitute matters of public concern, Connick v.
Myers, 461 U.S. 138, 147 (1983), there is no bright line rule or
test that can be applied to determine when speech is personal in
nature and when it is public. Instead, the determination of
whether speech is related to a matter of public concern involves
an inquiry into the "content, form, and context of a given
statement, as revealed by the whole record." Connick, 461 U.S.
at 147-48.
Where, as here, the speaker is a public employee, the First
Amendment inquiry is somewhat more refined. This court has
stated that "speech by public employees is deemed to be speech
about public concern when it relates to their employment so long
as it is not speech upon matters of only personal interest."
Swineford, 15 F.3d at 1271. Thus, as Mrs. Azzaro is a public
employee and the speech at issue relates to her employment, her
speech will be protected under the Swineford rule unless it is
limited to matters of only personal interest.
The public and the personal often overlap, however, and the
line between the two is rarely distinct. The distinction is
especially blurry in the context of speech regarding sexual
harassment. As a general matter, we believe that the topic of
sexual harassment of employees by a public official is one
"inherently of public concern." Connick, 461 U.S. at 148 n.8
(noting that racial discrimination is a matter inherently of
public concern); Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir.
1987) (extending that principle to speech regarding sexual
harassment). At the same time, however, speech alleging sexual
harassment is almost always personal in nature. It therefore
seems inevitable that speech regarding sexual harassment will
involve elements of both public and private interest.
In sorting out the public and private elements of speech,
the Supreme Court has occasionally looked to see whether the
speech arose in the context of a personal employment dispute.
See Connick, 461 U.S. at 148 & n.8; Givhan v. Western Line
Consol. Sch. Dist., 439 U.S. 410 (1979). The Court relied most
heavily on this factor in Connick v. Myers. Connick involved an
Assistant District Attorney who opposed the District Attorney's
attempt to transfer her to a different division of the criminal
court. As part of her efforts to resist the transfer, she
prepared and distributed a questionnaire soliciting the views of
her co-workers concerning office transfer policy, morale,
confidence in supervisors, whether a grievance committee should
be instituted, and whether employees felt pressured to work on
political campaigns. 461 U.S. at 140-41. Subsequently, due to
her distribution of the questionnaire, she was fired.
The Court found that the questions, with one exception, were
mere "extensions of Myers' dispute over her transfer to another
section of the criminal court" and were not "of public import in
evaluating the performance of the District Attorney as an elected
official." The Court reasoned that
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.
Indeed, the questionnaire, if released to the public,
would convey no information at all other than the fact
that a single employee is upset with the status quo. .
. . [T]he focus of Myers' questions is not to evaluate
the performance of the office but rather to gather
ammunition for another round of controversy with her
superiors. These questions reflect one employee's
dissatisfaction with a transfer and an attempt to turn
that displeasure into a cause celebre.
Id. at 148. The Court concluded that "the First Amendment does
not require a public office to be run as a roundtable for
employee complaints over internal office affairs." Id. at 149.
In addition, the Court suggested in a footnote that its
holding in a prior First Amendment case, Givhan v. Western Line
Consol. Sch. Dist., turned in part on the fact that the speech at
issue was not tied to a personal employment dispute, although
this had not been mentioned as a factor in the opinion itself.
Connick, 461 U.S. at 148 n.8. In Givhan, the Court held that
complaints regarding racial discrimination in a school district's
hiring process, voiced privately by a teacher to the school
principal, were protected speech. Discussing this holding in
Connick, the Court explained that the speech at issue in Givhanwas
protected despite the choice of a private forum because it
addressed a matter "inherently of public concern" and was "not
tied to a personal employment dispute." 461 U.S. at 148 n.8.
The implication of this footnote is that the speech in Givhanwould not
have been protected had it been "tied to a personal
employment dispute."
Although the Court has never precisely defined the phrase
"tied to a personal employment dispute," it seems clear from the
facts of Connick that the phrase refers to speech by a public
employee that is wholly tied to such a dispute without any
broader public element. This conclusion is based on the fact
that, although all of the speech involved in Connick arose from a
personal employment dispute and was apparently intended to
further the interests of the employee in that dispute, the Court
nevertheless found that one component of that speech was
protected because it "touch[ed] upon a matter of public concern."
461 U.S. at 149. The combined message of Connick and Givhan,
therefore, is that speaking on a topic "inherently of public
concern," id., in and of itself, does not entitle a public
employee to First Amendment protection; rather, a public employee
must speak out at least partly "as a citizen" on such a topic,
and not purely "as an employee upon matters only of personal
interest," in order to gain protection. Id. at 147 (emphasis
added); see United States v. National Treasury Employees Union,
115 S. Ct. 1003, 1013 (1995) (noting that "speech that involves
nothing more than a complaint about a change in the employee's
own duties" is not protected). In other words, if an employee
speaks on a topic--such as racism or sexual harassment--that is
inherently of public concern, but her speech is "tied to a
personal employment dispute" and does not transcend that dispute,
her speech is not protected. Connick, 461 U.S. at 148 n.8.
Because sexual harassment in the workplace, by its very
nature, is an employment issue, speech regarding such sexual
harassment is highly likely to arise in the context of a personal
employment dispute. The Court has never spoken on the issue of
whether or under what circumstances sexual harassment allegations
constitute speech on a matter of public concern, however, and
thus has not addressed the relevance of personal employment
disputes to the determination of whether such allegations are
personal or public in nature. Those lower courts that have
addressed the protected status of sexual harassment allegations
have all but unanimously concluded that such allegations are not
protected unless the speaker takes some measure to expand her
speech beyond the context of the personal employment dispute in
which it arose or to give it broader relevance. This may include
speaking in a manner that exposes official malfeasance, warning
other employees to prevent them from undergoing a similar ordeal,
or voicing a private complaint about systemic sexual harassment.
For example, in Callaway v. Hafeman, where an employee of
the Madison, Wisconsin school district alleged that she had been
harassed by the district's Public Relations Director, the Seventh
Circuit concluded that allegations of harassment which are
"limited . . . to oral statements intended to be purely
confidential" are not matters of public concern. 832 F.2d at
417. The court reasoned that, "[w]hile the content of Callaway's
communications touched upon an issue of public concern generally,
she was not attempting to speak out as a citizen concerned with
problems facing the school district; instead, she spoke as an
employee attempting to resolve her private dilemma." Id. Under
the Seventh Circuit's analysis, it appears that allegations of
sexual harassment leveled against a public official are not
protected unless the plaintiff treats them as a social problem as
well as a personal one; the plaintiff's confidential, internal
complaints regarding her personal employment dispute did not rise
to the level of speech that discloses official malfeasance.
In Saulpaugh v. Monroe Community Hosp., 4 F.3d 134 (2d Cir.
1993), cert. denied, 114 S. Ct. 1189 (1994), the Second Circuit
found that a public employee's complaints of sexual harassment,
voiced to two coworkers and two supervisors, were "motivated by
and dealt with her individual employment situation" and thus were
not a matter of public concern. Id. at 143. The court reasoned
that because there was "no indication that the plaintiff 'wanted
to debate issues of sex discrimination,' that her suit 'sought
relief against pervasive or systemic misconduct by a public
agency or public officials,' or that her suit was 'part of an
overall effort . . . to correct allegedly unlawful practices or
bring them to public attention.'" Id. (quoting Yatvin v. Madison
Metro. Sch. Dist., 840 F.2d 412, 420 (7th Cir. 1983)).
In Bedford v. Southeastern Pennsylvania Trans. Auth., 867 F.
Supp. 288 (E.D. Pa. 1994), the court analyzed a police
dispatcher's complaint of sexual harassment by police officers
and an undersheriff as follows:
Had plaintiff publicly complained of sexual
harassment, her statement would clearly relate to a
matter of legitimate public concern. Where one voices
an internal complaint of an act of harassment or
discrimination to secure some personal advantage, the
complaint is arguably a matter of private interest
only.
Where, however, one complains to her employer of
alleged sexual harassment . . . not to secure personal
gain but to expose and protect herself and other female
employees in the future from such conduct, the court
concludes that it does touch upon a matter of
legitimate public concern.
Id. at 295-96 (internal citations omitted). Under Bedford,
internal complaints intended only to secure relief or protection
for the complainant are not protected, while internal allegations
intended to inform and protect others are comprehended by the
First Amendment. See also Morgan v. Ford, 6 F.3d 750, 755 (11th
Cir. 1993) (finding that correctional officer's sexual harassment
allegations against lieutenants, which consisted entirely of
complaints to official bodies, were not a matter of public
concern because they were made solely to further the plaintiff's
personal interest in improving the conditions of her employment),
cert. denied, 114 S. Ct. 2708 (1994); Woodward v. City of
Worland, 977 F.2d 1392 (10th Cir. 1992) (finding that
dispatchers' formal complaints of sexual harassment by police
officers and undersheriffs did not constitute a matter of public
concern because the thrust of plaintiffs' allegations was that
they personally were being harassed and wanted that harassment to
stop), cert. denied, 509 U.S. 923 (1993); Wilson v. UT Health
Center, 973 F.2d 1263 (5th Cir. 1992) (finding that UTHC police
sergeant's reports of sexual harassment perpetrated on several
women including herself by UTHC police officers constituted a
matter "of great public concern"), cert. denied, 507 U.S. 1004(1993). While these courts have articulated slightly different
standards, they have unanimously agreed that reports of sexual
harassment must somehow transcend the personal employment dispute
in which they are rooted--for example, by publicly exposing
official malfeasance or protecting others from similar treatment-
-in order to gain protected status.
While we agree with the basic principle that allegations of
sexual harassment must somehow transcend the complainant's
personal employment dispute in order to gain protected status, we
believe that the above cited authorities interpret the phrase
"tied to a personal employment dispute" more broadly than the
Supreme Court intended it. To determine whether speech is
protected, courts must examine the "content, form, and context of
a given statement, as revealed by the whole record." Connick,
461 U.S. at 147-48 (emphasis added). The fact that speech arose
in the context of a personal employment dispute may be a relevant
factor in making that determination, but it is not dispositive--
i.e., speech is not considered to be "tied to a personal
employment dispute"--unless the content, form and context of the
speech reveal that it does not concern a matter of public import.
To hold otherwise would be to contravene the principle that "a
public employee does not relinquish First Amendment rights to
comment upon matters of public interest by virtue of government
employment." Id. at 140.
In Callaway and Morgan, however, the courts apparently
decided on the basis of context and form only that the speech at
issue was tied to a personal employment dispute. Because the
plaintiffs in those cases were motivated by a desire to improve
the conditions of their own employment, and voiced internal
complaints of sexual harassment, the courts concluded that their
speech was tied to a personal employment dispute and hence not
protected. Callaway, 832 F.2d at 417 ("We agree with the
district court that "[i]n this case, the context and form of the
speech leads to the inescapable conclusion that . . .
[Callaway's] concern was personal, not public."); Morgan, 6 F.3d
at 755 (finding speech unprotected because it "was driven by
[plaintiff's] own entirely rational self-interest in improving
the conditions of her employment" and because plaintiff "did not
relate her concerns about sexual harassment to the public, or
attempt to involve the public in any manner") (footnote omitted).
This curtailed inquiry, which elevates employment context and
speaker motivation over content, contravenes the three-part test
(content, form, and context) set forth by the Supreme Court in
Connick. Under this three-pronged inquiry, speech is only wholly
tied to a personal employment dispute if nothing in its content
is relevant to the public; even if speech arises in the context
of a personal employment dispute, it will be protected if its
content touches on a matter of public concern. Connick, 461 U.S.
at 147-49; see also Swineford, 15 F.3d at 1271 (stating that
speech by public employees which relates to their employment is
speech on a matter of public concern unless its content is purely
personal in nature).
Supreme Court cases dealing with the protected status of
employment-related speech by public employees have clearly and
consistently indicated that even speech arising from a personal
employment dispute will be protected if its content touches on a
matter of public concern. In Connick, for example, the Court
looked closely at the content of the speech at issue as well as
its context and form to determine whether it was tied to a
personal employment dispute, noting that "the questionnaire, if
released to the public, would convey no information at all other
than the fact that a single employee is upset with the status
quo." 461 U.S. at 148. Subsequently, while discussing the
distinction between speech as a citizen on matters of public
concern and speech as an employee on matters of only personal
interest in United States v. National Treasury Employees Union,
the Court stated that:
[P]rivate speech that involves nothing more than a
complaint about a change in the employee's own duties
may give rise to discipline without imposing any
special burden of justification on the government
employer. If, however, the speech does involve a
matter of public concern, the Government bears the
burden of justifying its adverse employment action.
115 S. Ct. at 1013. This language confirms that the phrase "tied
to a personal employment dispute" is a question of content as
well as context; the Court clearly indicated that speech that
arises in the context of a personal employment dispute andconcerns issues
that would interest only the individual
complainant--such as the scope of his or her duties on the job--
is not protected, whereas speech that involves a matter of public
concern, whether rooted in a personal employment dispute or not,
is protected.
To the extent that the above cited cases have concluded that
internal complaints of sexual harassment leveled against public
officials are not protected, they are also in conflict with Third
Circuit case law regarding the relevance of the speaker's
motivation to the First Amendment inquiry. This court has held
that a speaker's motivation for speaking is "one factor to be
considered" in determining whether speech is protected, but
"complete reliance on . . . motivation . . . is inappropriate."
Rode v. Dellarciprete, 845 F.2d 1195, 1201 (3d Cir. 1988). The
message of Rode is that even if a speaker was motivated by purely
personal considerations, such as stopping a pattern of harassment
or improving the conditions of her employment, her speech may
still be protected if its content touches on a matter of public
concern. Under the approach taken by the Seventh and Eleventh
Circuits, however, a finding that the speaker was motivated by a
desire to improve the conditions of her employment is, in and of
itself, sufficient to render her speech unprotected, regardless
of the specific content of that speech. Morgan, 6 F.3d at 754("[W]e must determine whether the purpose of Morgan's speech was
to raise issues of public concern, on the one hand, or to further
her own private interest, on the other."); Callaway, 832 F.2d at
417 (stating that the Supreme Court's decision in Connickrequires courts
to look at the point of the speech in question).
In sum, we conclude that speech is a matter of public concern if
it discloses malfeasance or misfeasance on the part of a public
official of sufficient gravity to be of legitimate interest to
members of the community. Whether the subject of a communication
is such a matter is of course a fact-sensitive inquiry.
In this case, we are convinced by the form, context andcontent of
plaintiff's speech that it has sufficient public
elements to merit First Amendment protection, notwithstanding the
fact that it is rooted in a personal employment dispute.
Plaintiff testified that she reported the alleged harassment to
Director of Administration Sal Sirabella, who is the official
ultimately responsible for deciding what official action to take
in response to complaints of sexual harassment, seeking advice as
to what she should do. According to plaintiff, Sirabella
responded that she should simply "leave it alone for now." App.
147. Thus, Azzaro reported the incident as fully as the County,
through Sirabella, actually required her to do. Plaintiff's
report to Sirabella, "if released to the public," Connick, 461
U.S. at 148, would expose the alleged malfeasance of a government
official who is a close personal advisor to the Commissioner. We
believe that where, as here, a complainant reports sexual
harassment by a public official, her speech touches on a matter
of public concern even if motivated by purely personal
considerations, because it exposes the potential malfeasance of a
public official. See id.; Swineford, 15 F.3d at 1271 (stating
that "speech disclosing public officials' misfeasance is
protected"). If a government employee complained of not
receiving a promotion because she failed to pay a bribe demanded
by her superior, that speech would be a matter of public concern,
even though her sole interest was to obtain the promotion.
Complaints of sexual harassment by government officials do not
cease to be matters of public concern simply because the
complainant seeks solely to have some personal right vindicated.
A personal desire for confidentiality or relief limited to the
complainant cannot and should not transform a matter of public
concern into one that is solely private. Indeed, when a public
employee reports an incident of sexual harassment by a public
official in the manner specifically set forth by the government
agency for whom she works, thereby calling the malfeasance of a
government official to the attention of the relevant authorities
in the manner prescribed by those authorities, we would be hard-
pressed to conclude that her speech does not expose the
malfeasance of a public official or constitute a matter of public
concern.
Although we conclude solely on the basis of plaintiff's
report to the appropriate county official that her speech was
protected, we note that several additional factors lend support
to that conclusion. First, plaintiff's meeting with Sirabella
provides evidence of motive--a relevant, albeit not dispositive,
factor in the public concern inquiry. Swineford, 15 F.3d at
1272. Thus, even if Sirabella had not been the official in
charge of sexual harassment reports, we believe that plaintiff's
conversation with him evidences an intent to expose the
malfeasance of a public official. Second, unlike the plaintiff
in Callaway, Azzaro told many co-workers of her complaint, and
there was evidence that rumors regarding the incident were
widespread in the office. This informal broadcasting is
inconsistent with a desire to resolve the issue privately, and
suggests that plaintiff may have sought to publicize the incident
for non-personal reasons. A reasonable factfinder could conclude
that plaintiff sought to disclose the malfeasance of one of the
Commissioner's close personal advisors and warn other women in
the office of his actions.
We are persuaded that our holding today that an internal
report by a public employee of sexual harassment by a government
official is a matter of public concern makes sense for public
policy reasons as well as legal precedential ones. The general
principle that speech which is wholly tied to a personal
employment dispute is unprotected cannot be inflexibly and
blindly applied; rather, the public or private nature of such
speech must be evaluated in light of the surrounding
circumstances. Sexual harassment presents a unique circumstance
in which personal elements and public concerns are almost
invariably intermingled and social pressures toward silence can
be overwhelming. Ample evidence has demonstrated that sexual
harassment is an issue which its victims find extremely difficult
to discuss privately, much less publicly. Given the inherent
difficulty of broaching the topic of sexual harassment and
disclosing such a sensitive problem to one's coworkers and/or
community, we believe that greater flexibility is required in
weighing the personal employment dispute aspects of the speech
against its more public elements than the above-cited authorities
allow. We cannot believe that the First Amendment protects only
those victims of sexual harassment who either speak out for
purely selfless reasons or are bold enough to shout their
accusations "over the roofs of the world." Walt Whitman, Song of
Myself, Leaves of Grass, in The Portable Walt Whitman 32, 96
(1973).
Because we conclude that plaintiff's report to Sirabella is
sufficient to make her speech regarding a personal incident of
sexual harassment by a government official a matter of public
concern, we will reverse the district court's ruling on this
issue.
2.
The district court also found that plaintiff had failed to
satisfy the second prong of the Swineford test: establishing that
the speech at issue was a "substantial or motivating factor in
her discharge." Swineford, 15 F.3d at 1270. For the reasons
stated in our discussion of causation under Title VII in Part
III.A above, we conclude that a reasonable jury could find that
plaintiff established a causal link between the protected speech
and her termination. Accordingly, we will reverse the district
court's grant of summary judgment on this ground as well.
Having reversed the district court's rulings on both of the
first two prongs of the Swineford test, we will remand to the
district court for further proceedings with respect to
plaintiff's section 1983 claim.
IV.
Count III of plaintiff's complaint asserts a claim under the
Pennsylvania Human Relations Act, 43 P.S. 955 et seq. The
district court initially exercised supplemental jurisdiction over
the claim, but subsequently dismissed the claim pursuant to 28
U.S.C. 1367(c)(3) in light of its ruling on defendants' motion
for summary judgment. 28 U.S.C. 1367(c)(3) (providing that a
district court "may decline to exercise supplemental jurisdiction
over a claim . . . [if] the district court has dismissed all
claims over which it has original jurisdiction"). In light of
our ruling today, we conclude that this dismissal was
inappropriate and we hereby reverse it.
V.
For the foregoing reasons, we will reverse the district
court's order granting summary judgment to defendants on Counts I
and II and dismissing Count III, and remand for further
proceedings consistent with this opinion.
BEVERLY AZZARO v. COUNTY of ALLEGHENY, et al.
No. 95-3253
ROSENN, Circuit Judge, dissenting.
I join in Parts I, II, IIIA, IV, and V of the majority's
opinion. Although the evidence is tenuous, I agree that there
may be sufficient facts in dispute that, if the plaintiff's
version is believed, could lead a reasonable factfinder to
conclude that Azzaro was discharged in retaliation for her
complaints of harassment. The majority also believes that there
was sufficient evidence to conclude that the plaintiff was
discharged as a result of speech protected by the First
Amendment. What separates me from the majority is its analysis
and disposition of the First Amendment issue. I do not regard
this amendment to be of lesser importance than does the majority,
but I am unwilling to drape its majestic protection of freedom of
speech around idle personal prattle.
I strongly disagree with the majority's dogmatic assertion
that a public employee's complaints of sexual harassment by a
fellow employee "are inherently of public concern even if made in
a private forum," Maj. op. at 2, line 20, and its resulting
conclusion that Azzaro's belated conversation with Sirabella "is
sufficient to make her speech regarding a personal incident of
sexual harassment by a government official a matter of public
concern," Maj. op. at 33, and thus protected by the First
Amendment. Because I believe that such a sweeping rule has the
dangerous effect of elevating casual conversation to the level of
constitutionally protected speech, seriously impeding normal
discourse and management problems in the workplace, and inciting
frivolous litigation, I must dissent from Part IIIB of the
majority opinion.
I.
Over twenty-five years ago, the Supreme Court set forth a
solid framework for analyzing claims of First Amendment violation
by a public employee terminated or disciplined because of his or
her speech. In Pickering v. Board of Education, 391 U.S. 563(1968), the Court held 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. Whether a school
system requires funds is a matter of legitimate concern for the
community as a whole and on "such a question free and open debate
is vital to informed decision-making by the electorate."
Pickering, 391 U.S. at 571-2. The exercise of her right to speak
on this issue could not furnish the basis for dismissal from
employment. Id., at 574. On the other hand, if a public
employee speaks out "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." Connick v. Myers, 461 U.S. 138(1983). The proper inquiry in determining whether Azzaro's
allegations deserve the protection of the First Amendment, then,
is whether her speech was on a matter of public concern. This
inquiry is one of law; therefore, we review the district court's
determination de novo. Id., at 148 n.7.
I agree with the majority that to determine whether the
speech is on a matter of public concern, the court must examine
"the content, form and context of a given statement, as revealed
by the whole record." Connick, 461 U.S. at 147-48. I believe,
however, that the majority fails to make this analysis. Rather,
it adopts what amounts to almost a per se rule that speech by a
public employee about sexual harassment is always protected by
the First Amendment. "As a general rule we believe that the
topic of sexual harassment of employees by a public official is
one `inherently of public concern.'" Maj. op. at 20, quotingConnick, 461
U.S. at 148, n.8. It reaches this result by
incorporating several words of Connick dealing with racial
discrimination and fusing them with a question of sexual
harassment. The majority then stretches this generalization
still further to extend First Amendment protection to situations
such as Azzaro's, by characterizing her speech as a "report" when
it was nothing more than an attempt to seek advice several months
after the incident from the Director of Administration on how to
keep from becoming a pawn in a political struggle.
We have previously noted that speech is on a matter of
public concern when it can fairly be considered as relating to
any matter of political, social or other concern to the
community. Swineford v. Snyder County, Pa., 15 F.3d 1258, 1270-
71 (3d Cir. 1994); Holder v. City of Allentown, 987 F.2d 188 (3d
Cir. 1993). In many situations, discussion of sexual harassment
is a matter of community concern and thus implicates the First
Amendment. Under some situations, too, discussions of office
morale and discipline procedures in the district attorney's
office could also be such a matter of public concern. However,
in the particular fact situation presented in Connick, the Court
found that an employee's speech regarding office morale and
discipline was not of public concern. See Connick 461 U.S. at
148, n.8.
The issue is not whether the subject matter could, in other
circumstances, be the proper topic of a communication of public
concern. The question is whether the content of the
communication at hand, in the manner and context in which it was
communicated, is a matter of public concern or only of private
grievance. See Connick, 461 U.S. at 148-9, n.10; Rankin v.
McPherson, 483 U.S. 378 (1987)(employer may not divorce
employee's statements from the context in which they were made);
Holder v. City of Allentown, supra (whether speech is on a matter
of public concern is determined by the context, form and content
of the speech). The majority, in attempting to recognize the
egregious nature of sexual harassment, has missed this crucial
step of the analysis.
In the case at hand, this step demonstrates that Azzaro's
communications were not on a matter of public concern. Rather,
the context, form and content of her statements supports the
conclusion that her speech was on a matter of personal interest
only, precisely what is not protected by the First Amendment.
Connick, 461 U.S. at 147.
Azzaro related her alleged experience in Fusaro's office to
approximately five or six personal friends at different times at
her place of employment within the few weeks following the
incident. The chit-chat with these people were not official
reports. She never spoke to Sirabella, the official responsible
to take action on complaints of sexual harassment, until some
months after the alleged incident, and even then, not by way of
an official report but to seek advice on keeping her