Greer, Ronnie B. v. Amsequa, Debra H. , 212 F.3d 358 ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2767
Ronnie B. Greer,
Plaintiff-Appellant,
v.
Debra H. Amesqua, Alan Seeger, Margaret
MacMurray, Byron Bishop, Lynn Hobbie, Mario
Mendoza, The City of Madison Fire Department,
The City of Madison, The City of Madison Police
& Fire Commission and Wisconsin Municipal
Mutual Insurance Company,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 98 C 560--Barbara B. Crabb, Judge.
Argued January 21, 2000--Decided May 9, 2000
Before Bauer, Ripple and Kanne, Circuit Judges.
Kanne, Circuit Judge. Plaintiff Ronnie Greer is
never shy about speaking his mind, and he doesn’t
think highly of his former boss Debra Amesqua.
While he was a firefighter for the City of
Madison, Wisconsin, Greer publicly condemned
Amesqua’s appointment as fire department chief
and attended her swearing-in ceremony carrying a
protest sign. Greer already had a long
disciplinary history with the fire department,
and when he distributed a "news release" to local
newspapers accusing Amesqua of favoritism to
homosexuals and of executing a radical lesbian
agenda as fire chief, the department terminated
his employment. Greer sued Amesqua, the fire
department and the City of Madison among others
for violating his due process, equal protection
and First Amendment rights in discharging him,
but the district court granted the defendants’
motion for summary judgment. Greer appeals, and
we affirm.
I. History
Ronnie Greer has compiled an eventful
disciplinary history with the City of Madison
Fire Department ("Department") since his hiring
in 1981. During the 1980s, Greer was reprimanded
for chronic tardiness and disciplined at least
twice for insubordination after shouting matches
with superior officers. Greer also quarreled with
Chief Earle Roberts, Amesqua’s predecessor, over
two separate but related issues. Greer refused to
submit to Department shaving inspections and
filed a complaint with the Wisconsin Equal Rights
Division ("ERD"). Around the same time, Greer
told newspaper reporters that Chief Roberts and
the mayor were deceiving the public by announcing
that the hazardous materials protection team was
ready for action. Greer told reporters that,
contrary to the chief and mayor’s claim, the team
was unequipped, untrained and unprepared for
emergency calls. The Department removed Greer
from the hazardous materials team, and Greer sued
the Department for employment retaliation in
violation of his First Amendment rights. The
Department and Greer agreed to settle both the
ERD complaint and the federal lawsuit for
$18,500.
In 1996, Greer received a letter of reprimand
and was docked pay for being absent without leave
or permission. The Department also began
disciplinary proceedings against Greer for
religious speech in the workplace but later
dropped the investigation. Then, Greer had an
argument with Assistant Chief Fred Kinney over
Greer’s misuse of sick pay and was suspended for
three days. Greer appealed this suspension to the
Board of Police and Fire Commissioners of the
City of Madison ("PFC"), but the PFC affirmed the
suspension. Finally, in late 1996, Greer
disseminated a pamphlet entitled "Homosexuality:
The Truth" to fellow firefighters in his station.
The pamphlets referred to homosexuality as a
"filthy scourge" and blamed gays for disease and
child molestation. On November 27, 1996, Amesqua
suspended Greer for three months without pay and
wrote Greer that "your disciplinary record is
extremely poor. The sanction I am imposing is a
last-ditch attempt to get you to alter your ways.
You should fully appreciate that any further
breaches of our standards could well result in
your termination." On June 25, 1997, after Greer
appealed, the PFC noted Greer’s "uniquely abysmal
and disheartening" disciplinary record, found
that Greer’s pamphleteering constituted workplace
harassment and upheld Greer’s suspension. The PFC
commented that Greer’s record reflected his
"persistent incapacity to conform himself
consistently to the appropriate requirements of
ordinary civil conduct" and warned that it was
"not overly confident that this discipline will
accomplish a change in [Greer’s] pattern of
conduct. However, [the PFC is] confident that
[it] will not suspend him again."
Greer bitterly objected to Amesqua’s
appointment. Greer believed that Amesqua was
unqualified for the job and that the Department
had hired her over more qualified candidates.
Amesqua is a Native American woman who Greer
believed to be homosexual, and Greer credited her
appointment to affirmative action rather than to
her substantive qualifications. Greer opposed
affirmative action in the Department, and on
several occasions, Greer complained personally to
the mayor of Madison about hiring discrimination
and Amesqua. At the press conference announcing
Amesqua’s hiring, Greer told reporters that
Amesqua was unqualified and the Department might
have engaged in "something that was illegal" in
hiring her and "purposely overlook[ing] other
qualified candidates." Greer also attended
Amesqua’s swearing-in ceremony as the lone vocal
dissenter, bearing a large placard declaring
"Injustice is just wrong. Not affirmative action"
on its face and "When does wrong become right?"
on its back. Greer admits that he has been
publicly critical of Amesqua more than fifty
times since her appointment.
Greer also believed that Amesqua lacked
character and leadership ability because she is
a lesbian. Indeed, Greer could be fairly
characterized as an anti-homosexuality crusader.
As pastor for the thirty-member Trinity
Evangelical Church, Greer inveighed against the
sins and evils of homosexuality. One newspaper
article profiling Greer described him as a
"Madison firefighter whose personal mission is to
wipe homosexuality from our midst" and explained
that Greer has been "called a hate-monger and a
malcontent unable to obey authority" by some and
"a person of integrity who put his own job on the
line to fight for civil rights" by others. Greer
deemed homosexuality to be "a perversion, and
usually sexual perversion is related to someone’s
character." He compared it to "pedophilia or some
guy sleep[ing] around with different women when
he’s married, it’s a character issue." He
questioned whether homosexuals should be
permitted to hold positions of authority because
he considered homosexuality to be "destructive to
the individual and as well as society."
All this came to a head in late 1996, less than
a year after Amesqua’s appointment. On November
5, 1996, a local television station aired video
of Division Chief Marcia Holtz making physical
contact and screaming at recruit Ron Cato during
a training session. Six days later, the
firefighters’ union formally requested that Holtz
be suspended and reprimanded for the incident
with Cato ("Holtz-Cato incident"), and Amesqua
assigned Assistant Chief Bill Spohn to
investigate the charge. On April 9, 1997, amid
local media scrutiny, Amesqua announced that
Spohn’s investigation found Holtz’s conduct was
"not unreasonable under the totality of the
circumstances," but extended Holtz’s probation
for six months and ordered her to attend a
leadership class.
Since Holtz is a lesbian, Greer predictably was
appalled by Amesqua’s decision and suspected
favoritism. On April 28, 1997, Greer faxed the
following self-styled "news release" to a number
of local media outlets, including both major
Madison newspapers:
News Release
Homosexual Chief rewards Homosexual
Chief for Assault?
Fire Chief Debra Amesqua has issued a decision on
the investigation of an incident involving
Training Chief Marcia Holtz and a fired
firefighter trainee. In the incident, recorded by
WMTV News-15 in October 1996, Chief Holtz shoved
and screamed at the trainee during a training
exercise. An investigation was ordered and a
decision based on the investigation was issued on
April 9, 1997. It is Chief Amesqua’s conclusion
that the "questionable measures" (shoving &
screaming) used by chief Holtz were not
"unreasonable", and that she simply "needs
further guidance and training". That training is
to be accomplished by "attending an advance
leadership class", a training program which is
coveted by other chief officers to the extent
that there is a "waiting list" to get in! She has
also called for a 6 month extension of chief
Holtz’s probationary period, something she (Chief
Holtz) herself appears to have suggested.
Now this would be laughable it were not such a
serious matter. A senior officer in essence,
physically and verbally assaults an employee and
Chief Amesqua finds that "not unreasonable" and
that her screaming was "professional in content
and germane". In over 17 years of firefighting
with both experienced and non-experienced
firefighters, I don’t believe I’ve ever seen a
situation where it was necessary to physically
assault anyone to get their attention or to
instruct them. Granted it is often necessary to
make physical contact in a fire situation to
initiate communication with another firefighter,
but never to the extent as we have seen in this
incident. So what’s so special or different about
this case?
I said in October that this matter would be "down
played", "swept over" and nothing significant
would be done about it. A lot of my fellow
firefighters doubted my "prediction". Well, time
has "told the story". One does not need to be a
prophet, just someone willing to see things as
they are.
Consider the following. One would think that if
you wanted to achieve clear facts in
investigating a matter of this type it would be
only proper to have that investigation done by an
independent, disinterested party. However, that
is not the case here. The investigation was done
by another Division Chief who is a subordinate to
Chief Amesqua and a staff member with Division
Chief Holtz. Is it possible that the
investigating officer could have been unduly
influenced? Or could the conclusions of the
investigation be simply disregarded without
opposition by that subordinate?
The relationship between Chief Amesqua and Chief
Holtz goes back a ways, namely through their
affiliation with an organization called "Women In
Fire", an organization seen by most firefighters
in this area as a predominantly homosexual
organization. Is it possible that some favoritism
has been shown here to a fellow member or
possible friend? Both are homosexual women, who
have been seen in the past (and still now among
many), with clear agendas as it concerns women in
the fire service. Could it be that their radical
agendas has come to play to the extent that even
violence can be excused and "glossed over", or in
this case, rewarded? Sounds a lot like the much
assailed "good-ol-boy" system revived, repainted
and given another name.
Now, I’m confused and maybe someone could make
sense of this for me; It’s not okay to
communicate verbally my views on a department
chief officer’s handling an issue but it’s okay
to use physical force to communicate with a
trainee? Maybe I’m missing something! The
department/city is willing to spend thousands of
dollars on a case of an alleged comment without
proof, on alleged harassment without a complaint
or proof, and on an alleged rule violation
without action or proof, but "winks" at and
rewards physical assault?
Another firefighter is given a disciplinary
letter and has the same placed in his employment
file because he made a remark regarding
homosexuals. He was "off-duty" and happened to
stop by the fire station. A letter of discipline?
A fire officer is facing a 12 hour suspension for
angrily making comments to a uniform delivery
driver whom he is familiar with. A 12 hour
suspension?
But yet, it’s not unreasonable for a chief
officer in anger to physically handle an
employee? Imagine if it were a white male chief
officer shoving and screaming at a female
recruit. Heads would have rolled! So much for
fair treatment and equity! Go figure.
Oh, by the way, that male trainee who was the
victim, he was mysteriously "let-go" literally
days before graduating from the fire academy.
Makes you go, "Hmm."
The Capital Times, a Madison newspaper, received
Greer’s facsimile and printed the following
article on the front page of the Local/State
section in its May 1, 1997 edition:
Greer says fire chief plays gay games
Madison firefighter Ron Greer has lobbed another
Molotov cocktail at his boss, this time accusing
Fire Chief Debra Amesqua of meting out lax
discipline to a female assistant fire chief.
He also insinuates that it’s a lesbian
conspiracy.
In a press release titled "Homosexual chief
rewards homosexual chief for assault?" Greer
implies that Amesqua showed favoritism in an
investigation of Assistant Chief Marcia Holtz.
Holtz was accused of using excessive force on a
recruit during a live fire training exercise last
October.
Neither Amesqua nor Holtz has said anything
publicly about their sexual orientations, whether
they’re gay or straight.
* * *
Greer, a pastor of a conservative Christian
church, has become an anti-gay crusader. He has
attacked the chief publicly ever since she came
to Madison in January 1996.
Saying Amesqua was unqualified, Greer carried a
protest sign when she was sworn in.
Greer himself is facing discipline for
insubordination and for handing out anti-gay
literature at work. The Madison Police and Fire
Commission held roughly 20 hours of hearings on
Greer’s case and is expected to rule in a few
months.
* * *
According to his press release, he concluded
that the two women are homosexual apparently
because they both belong to a group "Women in
Fire," an erroneous reference to the Madison-
based group Women in the Fire Service.
The organization "is seen by most firefighters
in this area as a predominantly homosexual
organization," Greer’s press release said.
"Could it be that their radical agenda has come
to play to the extent that even violence can be
excused and ’glossed over,’ or in this case,
rewarded?" the release said.
Amesqua directed Assistant Chief Carl Saxe to
investigate Greer’s news release. Greer confessed
to Saxe that he had written and faxed the news
release to the local media. Greer admitted that
his knowledge about the Holtz-Cato incident
derived completely from television reports and
workplace gossip, but insisted that his news
release "was only asking questions," not making
accusatory insinuations. On June 5, 1997, Saxe
filed his report with Amesqua and recommended
that Greer be discharged based on his
insubordination, continuing campaign to derogate
the Department, disregard for Department rules
and "unequivocal assertion of his continued right
to do what he did." Saxe felt that Greer’s news
release charged that Amesqua was "not fit to be
Chief because [she] violate[s] the law in [her]
official capacity. If ever [Saxe had] seen
conduct that brings the Department in disrepute,
this is it." Saxe found that Greer’s news release
had violated Department Rules 18, 39, 51, 65 and
Administrative Procedure Memorandum 3-5 ("APM 3-
5"), prohibiting insubordination, harassment and
bringing the Department into disrepute./1
However, Saxe found that Greer had not violated
Department Rule 47, requiring employees to tell
the truth, or Department Rule 50, barring false
reporting and gossip, because Greer sincerely
believed that the substance of his news release
was true.
In a letter dated June 10, 1997, Amesqua
adopted Saxe’s findings and notified Greer that
she would recommend to the PFC that, especially
in light of his disciplinary history, he be
terminated because his news release violated the
aforementioned Department rules. She explained
that Greer’s news release was "equivalent to
spitting in the Department’s face" and his
"continuing presence on the worksite can no
longer be tolerated considering the open,
notorious and personal way in which [he]
attempt[s] to address [his] personal agenda."
Amesqua filed formal charges with the PFC for
disciplinary proceedings and recommended Greer’s
termination.
During an eight-day hearing, beginning on
September 29, 1997, and ending March 19, 1998,
Greer was represented by counsel, submitted
evidence in his defense and had the opportunity
to cross-examine witnesses against him, including
Amesqua and Saxe. Amesqua explained during cross-
examination that Greer was discharged because of
his flagrant insubordination against her and
Department leadership in publicizing his
unsupported suspicions to newspapers. In deciding
to terminate Greer, Amesqua considered the news
release, Saxe’s report, Greer’s personnel file,
Greer’s disciplinary record and the disciplinary
records of other Department personnel. She
observed that "[t]here is no one that has a work
history or disciplinary history as bad as Ron
Greer’s." She also denied that she had ever
publicly declared herself homosexual and reported
that she had received numerous complaints from
the public and firefighters about Greer, although
she could not remember how many of these
complaints related to the news release. Greer
moved to introduce evidence contesting elements
of his disciplinary record and moved for the
recusal of several commissioners, pointing to a
potential conflict of interest stemming from
their involvement in an unrelated discrimination
suit to which Greer was not a party nor otherwise
involved. The PFC denied both of Greer’s motions.
On July 31, 1998, the PFC found just cause for
termination under Department rules, Wisconsin law
and federal law.
On August 5, 1998, Greer sued Amesqua, the
individual commissioners of the PFC, the City of
Madison, the Department and the City’s insurer in
district court under 42 U.S.C. sec. 1983 seeking
damages and reinstatement for violation of his
First Amendment, due process and equal protection
rights. Greer waived his rights under Wisconsin
law to appeal the PFC ruling to Wisconsin state
court, see Wis. Stat. sec. 62.13(5)(I), and both
Greer and the defendants filed cross-motions for
summary judgment. On June 21, 1999, the district
court granted summary judgment for the defendants
on all three of Greer’s claims, and Greer now
appeals.
II. Analysis
The district court granted summary judgment for
the defendants on all three of Greer’s claims:
(1) denial of procedural due process under the
Fourteenth Amendment; (2) denial of equal
protection under the Fourteenth Amendment; (3)
employment termination in violation of the First
Amendment. We review a grant of summary judgment
de novo. See Weicherding v. Riegel, 160 F.3d
1139, 1142 (7th Cir. 1998). Summary judgment is
proper when "the pleadings, depositions, answers
to interrogatories, and admissions on file,
together with the affidavits, if any, show that
there is no genuine issue as to any material fact
and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P.
56(c); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). In determining whether
a genuine issue of material fact exists, we
construe all facts in the light most favorable to
the non-moving party and draw all reasonable and
justifiable inferences in favor of that party.
See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
A. Due Process
The parties agree that Greer had a protected
property interest in his continued employment
with the Department, but Greer claims that the
Department terminated his employment without
granting him procedural due process under the
Fourteenth Amendment because (1) his
pretermination hearing was constitutionally
inadequate; (2) three of five PFC commissioners
were biased against him; and (3) the Department
rules under which he was prosecuted did not give
him prior notice of proscribed conduct.
1. Pretermination Hearing
Due process requires that the government
employer provide a pretermination hearing in
which the employee receives notice of the reasons
for the prospective termination and has the
opportunity to respond to the charges. See
Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 546 (1985). The hearing need not constitute
a full evidentiary hearing that definitively
resolves the propriety of the discharge, so long
as it serves as "an initial check against
mistaken decisions--essentially, a determination
of whether there are reasonable grounds to
believe that the charges against the employee are
true and support the proposed action." Id. at
545-46.
During his eight-day hearing before the PFC,
Greer was represented by counsel and had the
opportunity to hear the charges against him,
present evidence in his defense and confront
witnesses testifying against him. His hearing
satisfied the basic requirements of procedural
due process under Loudermill, and requiring more
before termination in this context "would intrude
to an unwarranted extent on the government’s
interest in quickly removing an unsatisfactory
employee." Id. at 546. The fact that Greer did
not have the opportunity to contest whether his
previous disciplinary reprimands were justified
does not detract from the adequacy of Greer’s PFC
hearing. Unlike the petitioners in Kaczmarczyk v.
INS, 933 F.2d 588, 596 (7th Cir. 1991), who
lacked the opportunity to rebut officially
noticed facts before the Board of Immigration
Appeals, Greer had ample previous opportunity to
rebut the factual findings underlying the past
charges against him when those disciplinary
actions were prosecuted. Greer concedes that he
received due process in connection with those
past offenses, and due process does not require
that the Department permit Greer to re-argue the
merits of his previous offenses each subsequent
time that he is charged with violating Department
rules. The employee is entitled only to notice
and a legitimate opportunity to respond before an
unbiased adjudicator. See Schacht v. Wisconsin
Dep’t of Corrections, 175 F.3d 497, 503 (7th Cir.
1999).
In addition, Greer complains that the PFC
excluded testimonial evidence which he claims
would prove that his charges against Amesqua were
true. Essentially, Greer insists that the PFC
pretermination hearing was insufficient because
he was barred from presenting all the evidence
that he felt was relevant, as he might at a
trial. However, as we have discussed, a
pretermination hearing need not be a "full
evidentiary hearing" to satisfy due process
concerns. See Loudermill, 470 U.S. at 545;
Staples v. City of Milwaukee, 142 F.3d 383, 387
(7th Cir. 1998). With respect to a First
Amendment retaliation claim, the relevant inquiry
is whether the employer had reasonable grounds to
believe that the employee had violated its rules
and that its interests as an employer outweighed
the employee’s free speech interests. See Waters
v. Churchill, 511 U.S. 661, 676 (1994). The PFC
needed only to ascertain a reasonable basis for
finding whether Greer had violated Department
rules, and "[o]nly procedures outside the range
of what a reasonable manager would use may be
condemned as unreasonable." Id. at 678. The PFC
hearing was quite sufficient under this standard,
and Greer enjoyed adequate opportunity to respond
to the charges against him.
2. Conflicts of Interest
At his PFC hearing, Greer moved for the recusal
of Commissioners Alan Seeger, Margaret MacMurray
and Byron Bishop, citing alleged conflicts of
interest from their participation in hiring
Amesqua and consequent involvement in a
discrimination suit filed against them by an
unsuccessful applicant for Amesqua’s position.
Greer claimed that the named commissioners
possessed "a clear personal, official, and
potential financial interest" in upholding
Amesqua’s decision to terminate Greer. A showing
that administrative adjudicators were biased
would establish a failing of procedural due
process, but mere participation in earlier
decisions that relate only tangentially to the
current adjudication does not constitute an
impermissible conflict of interest, unless the
employee can produce evidence that bias in fact
infected resolution of his case. See Hortonville
Joint Sch. Dist. No. 1 v. Hortonville Educ.
Ass’n, 426 U.S. 482, 493 (1976). Greer must
overcome a strong presumption of "honesty and
integrity" in assessing whether the adjudicators
were impartial. See Withrow v. Larkin, 421 U.S.
35, 47 (1975); Vukadinovich v. Board of Sch.
Trustees of Mich. City Area Schs., 978 F.2d 403,
411-12 (7th Cir. 1992).
Greer failed to adduce any evidence of personal
bias or animosity against him on the part of
Seeger, MacMurray or Bishop, and it is difficult
even to identify the conflict of interest that
Greer suspects here. Greer’s case had no bearing
on the discrimination suit brought against the
Department and the commissioners because that
suit did not involve Greer in any way or touch
upon any of the same underlying factual
circumstances. Greer guesses that adjudging
against him would permit the commissioners to
present a united front with Amesqua and would
therefore bolster their credibility in the
discrimination suit. We are not sure why Greer
thinks this to be the case, but without any
substantiating evidence of bias, this confused
possibility does not constitute an impermissible
conflict of interest.
3. Void for Vagueness
Greer also argues that the Department rules
under which he was terminated violated his due
process rights because they were void for
vagueness and failed to give him adequate prior
notice of workplace rules./2 Although a
government regulation is void for vagueness if
people of common intelligence must necessarily
guess at its meaning and differ as to its
application, see Grayned v. City of Rockford, 408
U.S. 104, 108-09 (1972), the government acting in
the role of employer enjoys much more latitude in
crafting reasonable work regulations for its
employees. For example, a government employer
"may, consistently with the First Amendment,
prohibit its employees from being ’rude to
customers,’ a standard almost certainly too vague
when applied to the public at large." Waters, 511
U.S. at 673; see also Arnett v. Kennedy, 416 U.S.
134, 158-62 (1974). The Department need not have
adopted "a quasi-criminal code" in establishing
employment regulations. See Keen v. Penson, 970
F.2d 252, 259 (7th Cir. 1992); see also Brown v.
City of Trenton, 867 F.2d 318, 325 (6th Cir.
1989). Department rules gave fair warning to
employees in instructing them to "conduct
themselves so as not to bring the Department into
disrepute" (Rule 51); "treat their superiors with
respect [and] conform to the rules and
regulations of the Department" (Rule 18);
"conform to and promptly and cheerfully obey all
laws, ordinances, rules, regulations, and orders"
(Rule 39); "not [to] harass co-employees because
of their sexual orientation" (Rule 65); and not
to "engage in harassment on the basis of race,
sex, religion, color, age, disability, national
origin or sexual orientation." (APM 3-5).
Although written in general language, these rules
in the employment setting sufficiently define a
range of inappropriate conduct which a reasonable
employee would understand to satisfy due process
and convey adequate warning that Greer’s news
release would result in discipline.
Greer points to purportedly uneven punishment
under Department rules as sapping them of fair
notice of prohibited conduct. Even ignoring the
fact that most of the cited instances of
unpunished insubordination occurred under the
previous Chief Earle Roberts, none of the other
Department critics made comparably instigative
accusations or possessed comparably poor
disciplinary records. Greer’s strongest example
illustrates this point: The Capital Times
reported in 1992 that firefighter Art Cuccia
called Chief Roberts a "spineless, gutless, self-
centered S.O.B." The Department punished Cuccia
with a letter of discipline but added no further
penalties. When asked about the disparity between
the punishments received by Cuccia and Greer,
Amesqua answered that Cuccia had a spotless
disciplinary record before the incident and
evinced genuine contrition by affirming his
"utmost respect" for Roberts and explaining that
his comment was a misquotation of a response to
a journalist’s question. In contrast, Greer had
widely distributed an inflammatory news release
criticizing the Department, possessed an
opprobrious disciplinary record and had been
disciplined under Department rules many times
before. Amesqua had cautioned him that future
misconduct would lead to a more serious penalty,
and the PFC had specifically warned him that it
"will not suspend him again." Blame for any
failure to foresee severe punishment for his news
release fell on Greer alone.
B. Equal Protection
To state a prima facie claim under the Equal
Protection Clause of the Fourteenth Amendment, a
plaintiff must demonstrate that (1) he is
otherwise similarly situated to members of the
unprotected class; (2) he was treated differently
from members of the unprotected class; and (3)
the defendant acted with discriminatory intent.
See Johnson v. City of Fort Wayne, 91 F.3d 922,
944-45 (7th Cir. 1996). Greer complains that the
Department violated the Equal Protection Clause
by treating him, as a male heterosexual,
differently from female homosexual employees who
likewise have criticized the Department--namely
Holtz and Amesqua.
Where an employee has an "undisputed record of
gross insubordination," as Greer does, the
employee must show that another grossly
insubordinate worker was treated better than him
to defeat the presumption that his comparatively
harsher punishment was attributable to his poor
disciplinary history. See O’Connor v. Chicago
Transit Auth., 985 F.2d 1362, 1371 (7th Cir.
1993). Greer claims that Holtz and Amesqua
publicly criticized the Department and were not
terminated, but neither had comparably dismal
disciplinary records nor made comparably
vituperative attacks. According to Department
records, Greer had the worst disciplinary record
in recent memory, and his public diatribe was an
incendiary attack on the Department defying
repeated warnings and sanctions in the past.
Greer has failed to show himself to be similarly
situated with Amesqua, Holtz and other members of
the unprotected class treated better than him.
Moreover, Greer presents no evidence of
prejudice against him. Greer invites an inference
of bias based on the disparate treatment given to
his news release compared with Department
criticism by Holtz, Amesqua and another female
firefighter that went unpunished. Similarly in
Vukadinovich, the plaintiff argued that his
employer had violated the Equal Protection Clause
because he was "singled out" from his co-workers
and punished for his alcohol-related problems
while his similarly situated co-workers were not.
We refused to engage in a review of all the
employer’s personnel decisions absent some
evidence of "purposeful or invidious prejudice"
by the employer. See Vukadinovich, 978 F.2d at
414. Greer fails to produce such evidence of
prejudice underlying the allegedly disparate
treatment that he received, and his equal
protection claim likewise fails.
C. First Amendment Retaliation
Lastly, Greer claims that the Department
violated his First Amendment rights under the
balancing test of Pickering v. Board of Education
of Township High School District, 391 U.S. 563
(1968), by terminating him based on his news
release. While it is undisputed that the
Department fired Greer because of his news
release, the Department violated Greer’s rights
under the First Amendment only if Greer can
establish that (1) his speech addressed a matter
of public concern and (2) his First Amendment
interest in that speech outweighed any injury
that the speech might cause to the government’s
interest in promoting the efficiency of the
public services it performs through its
employees. See Waters, 511 U.S. at 668;
Pickering, 391 U.S. at 568. The PFC ruled that
Greer’s speech addressed a matter of public
concern but decided that the Department’s
interests as an employer outweighed Greer’s First
Amendment interests. Without deciding whether
Greer’s speech addressed a matter of public
concern, the district court agreed that the
Department’s interests outweighed Greer’s First
Amendment interests and affirmed the PFC’s
decision to discharge Greer. We now address this
question de novo. See Wright v. Illinois Dep’t of
Children & Fam. Servs., 40 F.3d 1492, 1499-1500
(7th Cir. 1994). Under Pickering balancing, we
assess Greer’s speech as the Department
reasonably believed it to be, after adequate
investigation, when making the decision to
terminate Greer. See Waters, 511 U.S. at 676.
As the PFC correctly ruled, Greer’s speech
regarded a matter of public concern. Looking to
"the content, form, and context" of Greer’s news
release, Connick v. Myers, 461 U.S. 138, 147-48
(1983), we agree that the news release primarily
addressed the issue of favoritism within the
Department and the lenient disciplinary action
taken against Marcia Holtz. Whether public
officials are operating the government ethically
and legally is a quintessential issue of public
concern. See Lickiss v. Drexler, 141 F.3d 1220,
1222 (7th Cir. 1998); Knapp v. Whitaker, 757 F.2d
827, 840 (7th Cir. 1985); see also Walter v.
Morton, 33 F.3d 1240, 1243 (10th Cir. 1994).
Although Greer’s news release was replete with
personal jibes at Amesqua and Greer nursed an
ongoing disrespect for Amesqua, "[a] personal
aspect contained within the motive of the speaker
does not necessarily remove the speech from the
scope of public concern." See Marshall v. Porter
County Plan Comm’n, 32 F.3d 1215, 1219 (7th Cir.
1994). Greer’s central motivation was exposing
what he considered wrongdoing by declaring that
the Department’s handling of the Holtz-Cato
incident reflected illegitimate favoritism by
Amesqua for lesbian firefighters. His criticisms
of the Department went far beyond complaints
regarding his individual employment situation and
were not motivated primarily by purely personal
grievances. See, e.g., Kokkinis v. Ivkovich, 185
F.3d 840, 844 (7th Cir. 1999); Smith v. Fruin, 28
F.3d 646, 653 (7th Cir. 1994); Swank v. Smart,
898 F.2d 1247, 1251 (7th Cir. 1990).
However, the second prong of the Pickering test
instructs that we also must balance "the interest
of the [employee], as a citizen, in commenting
upon matters of public concern and the interest
of the State, as an employer, in promoting the
efficiency of the public services it performs
through its employees." See Pickering, 391 U.S.
at 567-68. Factors to consider in applying
Pickering balancing include (1) whether the
speech would create problems in maintaining
discipline or harmony among co-workers; (2)
whether the employment relationship is one in
which personal loyalty and confidence are
necessary; (3) whether the speech impeded the
employee’s ability to perform her
responsibilities; (4) the time, place and manner
of the speech; (5) the context in which the
underlying dispute arose; (6) whether the matter
was one on which debate was vital to informed
decisionmaking; and (7) whether the speaker
should be regarded as a member of the general
public. See Kokkinis, 185 F.3d at 845; Wright, 40
F.3d at 1502.
Although it is often proper for public
employees to raise questions about favoritism or
improper investigation of disciplinary incidents,
the manner and means of the employee’s
protestation are key considerations in balancing
the employer’s and employee’s interests under
Pickering. See Wright, 40 F.3d at 1503; Hulbert
v. Wilhelm, 120 F.3d 648, 654 (7th Cir. 1997);
Patkus v. Sangamon-Cass Consortium, 769 F.2d
1251, 1259 (7th Cir. 1985). Greer never
approached Amesqua or Holtz regarding the Holtz-
Cato incident, and did not pursue internal
avenues for questioning the Department’s
investigation. Instead, unwilling to let the
firefighters’ union address the matter and
ignorant of specifics about Spohn’s
investigation, Greer fired off his news release
to local media, causing considerable public
embarrassment to the Department. Without inside
knowledge about the Holtz-Cato incident or the
ensuing investigation, Greer speculated that
Amesqua and Spohn "glossed over" workplace
violence because Amesqua was illegitimately
biased in favor of homosexuals. The publicity and
sensationalism of Greer’s news release belied the
fact that it imparted little new information
about the Holtz-Cato incident to the public
discourse other than Greer’s unsubstantiated
suspicions. Greer’s posture under Pickering would
be stronger if he "had followed authorized
procedures, appealed to more appropriate
authorities, or perhaps shown a wilful lack of
investigation on the part of [his] superiors."
Wright, 40 F.3d at 1504; see also Hulbert, 120
F.3d at 654. Despite his claim that he was
innocently "just asking questions," Greer instead
circulated his naked accusations to mass media
outlets for broad public consumption and intended
to indict the integrity of the Department’s
leadership publicly.
Moreover, the Department’s interests in
disciplining Greer and maintaining order were
quite substantial. In a fax distributed to the
major newspapers in Madison, Greer had publicly
excoriated Amesqua as a lesbian harboring
"radical agendas" and announced both Amesqua and
Holtz to be "homosexual women" despite the fact
that neither had publicly declared their sexual
orientation (Greer protests irrelevantly that
both had not concealed their homosexuality at
work). His harangue led directly to the
publication of a front-page newspaper story
headlined, "Greer says fire chief plays gay
games." Furthermore, Greer had a well-established
history of publicly criticizing the Department
over policy disagreements. Greer had just been
suspended three months for distributing anti-
homosexuality literature at work, and the PFC had
warned him to cease his campaign against Amesqua.
As a firefighter known within the community as an
outspoken Department critic, Greer likely
anticipated and intended the damaging effect of
his news release. The Department reasonably felt
that Greer’s speech, if left unpunished,
particularly in light of his disciplinary
history, would disrupt the operation of the
Department by degrading the Department’s standing
with the public, undermining Amesqua’s authority
and inciting disharmony within Department ranks.
See Campbell v. Towse, 99 F.3d 820, 830 (7th Cir.
1996); Marshall, 32 F.3d at 1221; Brown, 867 F.2d
at 322. As Amesqua declared in her charge letter,
Greer’s news release was "the equivalent to
spitting in the Department’s face." Analyzing
analogous factual circumstances in Kokkinis, we
held that Pickering balancing favored the
government when a police officer with a poor
disciplinary record leveled sensationalistic
charges of impropriety at the police chief during
a television news interview. Kokkinis, 185 F.3d
at 846. Likewise, the Department’s interests as
an employer in government efficiency and
workplace morale outweigh Greer’s First Amendment
interests here.
Although Greer protests that his news release
did not ignite actual disruption in his
workplace, an employer need not establish actual
disruption before disciplining an employee when
the threat of future disruption is obvious. See
Waters, 511 U.S. 673. After learning of Greer’s
news release, Amesqua promptly disciplined Greer
to reestablish her authority and stave off
workplace dissension potentially flowing from
Greer’s conduct. Greer’s news release threatened
to undercut Amesqua’s authority and disrupt the
Department, just as the police officer’s
accusations in Kokkinis potentially "undermined
the Chief’s ability to maintain authority and
discipline within the police department."
Kokkinis, 185 F.3d at 846 (quoting Khuans v.
School Dist. 110, 123 F.3d 1010, 1017 (7th Cir.
1997)). A government employer need not "allow
events to unfold to the extent that the
disruption of the office and the destruction of
working relationships is manifest before taking
action," Connick, 461 U.S. at 152, and we grant
"substantial weight to government employers’
reasonable predictions of disruption." Waters,
511 U.S. at 673; see also Weicherding, 160 F.3d
at 1143 (explaining that the defendant "need not
wait until a riot breaks out before acting to
quell a dangerous situation"); Breuer v. Hart,
909 F.2d 1035, 1040 (7th Cir. 1990) ("The public
employer is not required to wait until those
working relationships actually disintegrate if
immediate action might prevent such
disintegration."). The potential disruption that
Greer’s news release could have caused to the
Department’s operations if Greer had not been
terminated is clear.
Greer expostulates at length that the "veracity"
and "sincerity" of his statements bear critical
weight, but truth is not an absolute defense
under Pickering balancing. Indeed, the Department
dropped its charges under Rules 47 and 50 because
Saxe concluded that Greer believed the truth of
his charges and did not violate the rules
requiring honesty and prohibiting false
reporting; the PFC instead found that Greer had
violated Department rules against
insubordination, harassment and bringing the
Department into disrepute. Nonetheless, Greer
claims his allegation that Amesqua had illegally
favored Holtz was true, or at worst a sincerely
held belief, and thus carried decisive weight
under Pickering.
Recklessly false statements by a public employee
enjoy no First Amendment protection, see Brenner
v. Brown, 36 F.3d 18, 20 (7th Cir. 1994), and
from this principle Greer wrongly extrapolates
that speech which is factually true therefore
must be absolutely protected. However, we have
never held that an employer must prove the
falsehood of the employee’s statement before
disciplining the employee based on that speech.
In fact, Pickering would be senseless if speech
sincerely believed to be true was absolutely
protected. Pickering balancing only applies to
speech that is true or believed to be true,
because recklessly false speech is unprotected by
the First Amendment. In Wright, which Greer cites
for support, we noted that a public employee
"summoned to give sworn testimony . . . has a
compelling interest in testifying truthfully and
the government employer can have an offsetting
interest in preventing her from doing so only in
the rarest of cases." Wright, 40 F.3d at 1505.
The point is that an employee has an enhanced
interest in telling the truth when sworn to do so
before "an official government adjudicatory or
fact-finding body," and his employer’s interest
is unlikely to counterprevail. Id. Greer’s news
release did not constitute adjudicatory testimony
under penalty of perjury and enjoys no special
protection under Wright. Like the PFC, we have
assumed that Greer’s news release was not
recklessly false and nonetheless hold that the
Department was justified in terminating him under
Pickering.
III. Conclusion
For the foregoing reasons, we AFFIRM summary
judgment for the defendants on all Greer’s
claims.
/1 Rule 18: Members shall be efficient and capable
in the service and must not neglect their duty.
They shall hold themselves in readiness, at all
times, to answer the calls and obey the orders of
their superior officers. They shall treat their
superiors with respect. . . . They shall conform
to the rules and regulations of the Department,
observe the laws and ordinances, and render their
services to the city with zeal, courage and
discretion and fidelity.
Rule 39: Members must conform to and promptly
and cheerfully obey all laws, ordinances, rules,
regulations, and orders, whether general, special
or verbal, when emanating from due authority.
Rule 51: Officers and members shall at all
times conduct themselves so as not to bring the
Department in disrepute.
Rule 65: Employees shall not harass co-
employees because of their sexual orientation
either by the use of derogatory verbal or written
comments, graphic materials, gestures or conduct
. . . .
APM 3-5: Any employee who shall engage in
harassment on the basis of race, sex, religion,
color, age, disability, national origin or sexual
orientation . . . is guilty of misconduct and
shall be subject to remedial action, which may
include the imposition of discipline up to and
including discharge.
/2 Greer also argued on appeal that the rules were
unconstitutionally overbroad, but that claim is
waived because he failed to raise that claim
before the district court. See United States v.
Payne, 102 F.3d 289, 293 (7th Cir. 1996).