                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                       OCT 14 1998
                   UNITED STATES COURT OF APPEALS
                                                                  PATRICK FISHER
                                                                            Clerk
                                 TENTH CIRCUIT



CAROL PARADIS and KATHLEEN
M. RYAN,

       Plaintiffs - Appellees,
v.

MONTROSE MEMORIAL
HOSPITAL, COUNTY OF
MONTROSE and QUORUM HEALTH
RESOURCES, INC., a Delaware
corporation doing business in
Colorado, formerly known as HCA
Management, Company, Inc.,
                                                    No. 97-1161
       Defendants,

 and

DENNIS DOERER, in his individual
capacity and in his capacity as
Program Director of the Care Center
In-Patient Unit of Montrose Memorial
Hospital and TYLER ERICKSON, in
his individual capacity and in his
capacity as Administrator of Montrose
Memorial Hospital,

       Defendants - Appellants.


                 Appeal from the United States District Court
                         for the District of Colorado
                            (D.C. No. 94-D-2408)
Submitted on the briefs: *

A. James Johnston and Jonathan B. Sprague of Post & Schell, P.C., Philadelphia,
PA and John A. Brooks of Brooks & Brooks, Montrose, CO for Defendants -
Appellants.

Diane S. King and David C. Feola of King, Minnig, Clexton & Feola, LLC,
Denver, CO for Plaintiffs - Appellees.


Before SEYMOUR, Chief Judge, LUCERO and MURPHY, Circuit Judges.


LUCERO, Circuit Judge.



             In this case, we inquire whether hospital staff allegations of fraud,

malfeasance, and discrimination by certain hospital administrators are of

sufficient public concern to be protected under the First Amendment. We also

determine whether the First Amendment protections afforded such speech were

clearly established at the time hospital administrators purportedly retaliated by

firing the staff concerned. Because we answer both questions affirmatively, we

uphold the district court’s rejection of the administrators’ claims of qualified

immunity.




      *
       At the parties’ request, the case is unanimously ordered submitted without oral
argument pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9.

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                                            I

          Appellees Carol Paradis and Kathleen Ryan are registered nurses. Both

worked in management roles at the Care Center In-Patient (“CCIP”) Unit of

Montrose Memorial Hospital. After appellees resigned from their positions, they

brought claims under 42 U.S.C. § 1983 alleging that appellants Dennis Doerer,

the Program Director of the CCIP unit, and Tyler Erickson, the hospital’s

Administrator and Chief Executive Officer, violated their First Amendment

rights.

          The two nurses’ complaint states that they were retaliated against and

ultimately constructively discharged after speaking to hospital administrators

about appellant Doerer’s allegedly unethical and illegal conduct. According to

appellees, Doerer pressured staff to shorten or lengthen patients’ stays based

solely on the patients’ financial resources, engaged in insurance fraud, practiced

medicine without a license, and discriminated based on sex and religion.

Appellees brought their allegations against Doerer to appellant Erickson and to

former CCIP Unit Medical Director Dr. Wilson, Medical Director Dr. Benson,

Business Manager Christian, and Chief Financial Officer White. None of these

administrators remedied the situation.

          Appellants moved for partial summary judgment on appellees’ free speech

claims. Contending that none of these claims involved issues of public concern,


                                           -3-
appellants asserted an entitlement to qualified immunity. The district court did

not accept this contention, finding instead that, at the time appellees brought their

allegations to the attention of hospital administrators, it was clearly established

that such speech was of public concern. Appellants bring an interlocutory appeal

of the denial of summary judgment. They insist that the district court erred

because allegations of health care fraud and malfeasance made to senior hospital

administrators do not constitute matters of public concern for purposes of First

Amendment analysis. In the alternative, appellants argue that the law protecting

such speech was not clearly established at the time appellees raised their

allegations. We exercise jurisdiction pursuant to 28 U.S.C. §1291, and affirm.

                                          II

      The trial court rejected appellants’ motion for summary judgment because

it found that the nurses’ factual allegations, if true, were sufficient to deny

appellants qualified immunity as a matter of law. We review that legal

determination de novo.   Walter v. Morton , 33 F.3d 1240, 1242 (10th Cir. 1994).

Under the doctrine of qualified immunity, “government officials performing

discretionary functions generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”        Harlow

v. Fitzgerald , 457 U.S. 800, 818 (1982).


                                         -4-
                                             A

       Appellants contend that appellees’ allegations, even if substantiated by the

evidence, do not comprise speech protected under the First Amendment, and

therefore appellants’ conduct cannot have violated appellees’ constitutional

rights. To be protected, employee speech must involve a matter of public

concern. Connick v. Myers , 461 U.S. 138, 146 (1983).           1
                                                                     To determine whether

speech is of public concern, a 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. The court should also consider whether the speech is directed at a public

issue or is merely an attempt to redress personal grievances.            Workman v. Jordan ,

32 F.3d 475, 483 (10th Cir. 1994). To be protected, speech must fairly relate to a

“matter of political, social or other concern to the community.”            Connick , 461

U.S. at 146.




       1
           The Connick public concern requirement is only one step in a multi-tiered
analysis applicable to claims that a public employer has terminated an employee in
violation of her First Amendment rights. The court must also balance the interests of the
employee in making the statement against the employer’s interest “in promoting the
efficiency of the public services it performs through its employees.” Pickering v. Board
of Educ., 391 U.S. 563, 568 (1968). Next, a plaintiff must show that the speech was a
motivating factor in her termination. Mount Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977). Finally, the employer can still prevail if it shows that it
would have made the same decision regardless of the protected speech. Id. Appellants
argue to us only that the district court erred in concluding that the speech was of public
concern. Consequently, we do not examine the remainder of this multi-tiered test.

                                            -5-
       Appellees claim that appellant Doerer based patients’ treatment on their

ability to pay, practiced medicine without a license, engaged in insurance fraud,

subjected patients and staff to religious harassment, and sexually harassed staff.

These are self-evidently matters of “political, social, or other concern to the

community.” Id. ; see also Schalk v. Gallemore , 906 F.2d 491, 495-96 (10th Cir.

1990) (holding that employee letter addressing, inter alia, “waste, inefficiency,

and favoritism” at public hospital touches on matters of public concern).

       We reject appellants’ contention that such allegations are better

characterized as personal grievances. The two nurses cannot reasonably be said

to have had a purely personal interest in stopping appellant Doerer from basing

patients’ length of stay on their financial resources, nor in stopping the religious

harassment of patients and staff and the sexual harassment of other staff.   See

Patrick v. Miller , 953 F.2d 1240, 1247 (10th Cir. 1992) (holding that employee’s

statements made to protect colleague from discrimination are not properly

characterized as personal grievance). Moreover, appellees made their statements

to senior hospital managers such as the Administrator and Chief Executive

Officer, the Chief Financial Officer, the Medical Director, and the Medical

Director of the CCIP Unit, all of whom presumably had authority to take action

in response to the complaints.    See Schalk , 906 F.2d at 495 (“An allegation of

corrupt and wasteful practices at a large municipal hospital, made to the city


                                           -6-
official empowered to investigate such charges, obviously involves a matter of

public concern.”) (quoting        Rookard v. Health & Hosps. Corp.   , 710 F.2d 41, 46

(2d Cir. 1983)).

       We also reject appellants’ argument that public employees are not

protected by the First Amendment unless they “go public” with their allegations

or bring them to the attention of a directorial board.     See Givhan v. Western Line

Consolidated Sch. Dist. , 439 U.S. 410, 415-16 (1979) (noting that a public

employee does not lose his First Amendment rights when he chooses to

communicate privately with his employer rather than spread his views before the

public). It is true that in    Schalk the plaintiff raised her allegations to members of

the hospital board, but       Schalk ’s determination that her speech was of public

concern is not contingent upon that specific audience.

                                               B

       Appellants also assert that, even assuming appellees’ speech was of public

concern, the law at the time did not clearly establish the speech as such. We

disagree. Given the state of the law when appellants allegedly retaliated against

appellees based on their speech, appellants should have known that appellees’

speech was of public concern.         See Anderson v. Creighton , 483 U.S. 635, 640

(1987) (“[A] constitutional right is clearly established if the contours of the right




                                              -7-
are sufficiently clear that a reasonable official would understand that what he is

doing violates that right.”) (internal quotations omitted).

       “Ordinarily, in order for the law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.”    Medina v. City and County of Denver     , 960 F.2d 1493, 1498

(10th Cir. 1992).    Schalk and Patrick control our conclusion that appellants were

on notice of the protected nature of appellees’ speech. Both involve facts very

similar to those present in this case and were decided prior to appellees’ alleged

constructive termination.    2



       Schalk concludes that a nurse at a public hospital who sent a letter to the

hospital board and to the City Council concerning, inter alia, waste, inefficiency,

and favoritism at the hospital engaged in speech of public concern.        Schalk , 906

F.2d at 495. While the      Schalk court found that the defendant was entitled to

qualified immunity because the law on this issue was not clearly established,       id.

at 499, that case clearly placed others on notice that such speech involves matters

of public concern.      Cf. Melton v. City of Oklahoma City    , 879 F.2d 706, 729 n.36

(10th Cir. 1989) (“[T]o the extent that courts in analogous (but not necessarily



       2
         Paradis alleges she was constructively terminated in August 1995, Ryan in
May 1993. Schalk and Patrick were decided in 1990 and 1992, respectively.

                                            -8-
factually identical) cases have struck the necessary [   Pickering ] balance,

government officials will be deemed “on notice” that their actions will be

measured according to clearly established law and qualified immunity may not be

available to them.”), modified on other grounds , 928 F.2d 920 (1991) (en banc).

Patrick , 953 F.2d at 1242-43, 1247, holds that an employee engages in public

concern speech when informing the city attorney of an intent to assist a

subordinate with her race discrimination claim, and when objecting at a meeting

of the City Retirement Board to the city’s practice of using city retirement funds

to balance the budget. Both of these cases clearly established that appellees’

speech was of public concern and was entitled to protection under the First

Amendment. Accordingly, appellants may not invoke a qualified immunity

defense.

       The denial of summary judgment is AFFIRMED.




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