In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3117

Cynthia Taylor and Rebecca Smith,

Plaintiffs-Appellants,

v.

Hamilton Carmouche, Margaret Felton,
and City of Gary, Indiana,

Defendants-Appellees.

Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:96 cv 504--Andrew P. Rodovich, Magistrate Judge.

Argued February 22, 2000--Decided May 24, 2000



  Before Coffey, Easterbrook, and Williams, Circuit
Judges.

  Easterbrook, Circuit Judge. After Hamilton
Carmouche was promoted to Corporation Counsel of
Gary, Indiana, he needed to appoint a City
Attorney, the No. 2 position. He chose Margaret
Felton, which caused an uproar among the
secretaries in the office. It was not just that
Felton is white, while Carmouche, most of the
other attorneys and staff, and most residents of
Gary are black. The problem was that people
thought that Felton would be a taskmaster--as she
turned out to be (for example, she had a time
clock installed). The next year was filled with
strife: staff members complained to Carmouche and
went over his head when he backed Felton.
Displeased with efforts to undermine his position
and that of his chosen second in command,
Carmouche disciplined several of the insurgents.
By the end of that year our two plaintiffs--
Cynthia Taylor, a lawyer in the office, and
Rebecca Smith, a secretary and paralegal--were
gone. Soon Carmouche and Felton followed them to
private life, as they had lost the confidence of
Mayor Barnes. He, too, was replaced before much
longer, having decided not to run for reelection
in 1995.
  Taylor was hired in June 1993, fresh from law
school, and last worked for the Law Department in
October 1994, when she took maternity leave. When
Taylor sought to return in December, Carmouche
demanded a medical clearance in light of Taylor’s
contention that she needed therapy three days a
week to address her inability to climb stairs--a
serious problem at the Law Department, located on
the fourth floor of a building whose elevator
does not go higher than the third floor. Taylor
did not respond for a month, and the physician’s
opinion she finally secured in January said that
she could not climb stairs or work more than four
hours a day. Carmouche told Taylor that she would
be welcome to come back when she could work full
time; instead she found other employment and sued
for wrongful discharge, contending that Carmouche
retaliated against her on account of her
complaints about his (and Felton’s) stewardship
of the Law Department. Claims under the Americans
with Disabilities Act, the Family Medical Leave
Act, and Title VII of the Civil Rights Act of
1964 have dropped by the wayside. In this court
Taylor’s sole contention, based on 42 U.S.C.
sec.1983, is that Carmouche violated her rights
under the first amendment by penalizing her for
speech about matters of public concern.

  Smith joined the Law Department in 1991 and was
satisfied with her situation until February 1994,
when Felton became City Attorney. Smith
complained in general terms to both Carmouche and
Mayor Barnes that Felton is a "racist," and Smith
perceives that she suffered as a result. Felton
issued Smith a written warning for taking too
much time for lunch and complained in writing to
Carmouche about Smith’s unwillingness to attend
a professional seminar. Felton delivered a verbal
warning for using profanity and failing to treat
others with respect. In July Felton spoiled a
surprise birthday party that Smith and other
secretaries had planned for a co-worker, telling
the object of the party to "call off the dogs."
When Smith paged Carmouche to return to the
office so that she could complain in writing
about Felton’s reference to the secretaries as
"dogs," Carmouche blew up and called Smith’s memo
"a piece of shit" and handed her a written order
(dated ten days earlier) suspending her for
failing to provide certain documents to the City
Council in a timely fashion. Smith appealed this
suspension to the City’s personnel committee,
where both she and Taylor testified that Smith
was being singled out for alleging that Felton is
a racist. Smith prevailed on this grievance but
soon was suspended again, and her additional
grievances were unsuccessful. (She does not
contend in this litigation that any of the
additional suspensions was unjustified. Nor does
she complain about the multiple written warnings
for tardiness and insubordination that were
placed in her file before Felton’s appointment.)
Smith quit in October 1994 and labels this a
constructive discharge.

 Carmouche was not pleased by Smith’s decision
to go over his head, or by Taylor’s criticism of
his management decisions, and let both of them
know it. Taylor, who had been working in a
detached office on the third floor (large enough
for one attorney and one secretary) to
accommodate her leg injury, was ordered back to
the fourth floor for closer supervision. She
appealed to Gary’s chief operating officer, who
told her to stay put. Taylor then went home and
was not present for a visit from Carmouche and
Felton, who suspended her for abandoning her job.
Taylor filed another grievance, sought medical
leave for the period of the suspension, and also
applied for maternity leave. When Felton
initially granted a shorter period of leave than
Taylor sought, she filed a grievance about that
decision too, this time with the City’s personnel
director. Taylor returned to work and filed a
workers’ compensation claim, asserting that all
time off had been attributable to an injury
sustained on the job, and filed yet another
grievance, this time asserting retaliation for
testifying at Smith’s grievance hearing. For the
first time, Taylor went outside the City’s
personnel hierarchy; she turned to the United
States Department of Labor, asserting in a letter
that she was the victim not only of retaliation
for speech but also of racial discrimination.
Meanwhile Taylor commenced her maternity leave,
which was to last until mid-December. Taylor
reported back to work on December 19, and her
answer to Carmouche’s question whether she was
able to work full time led to his request for a
physician’s evaluation--and what happened then we
have already described.

  Magistrate Judge Rodovich, presiding by consent
under 28 U.S.C. sec.636(c), granted judgment as
a matter of law to the City of Gary on the first
amendment claims at the close of plaintiffs’
case. Municipalities are not vicariously liable
in litigation under sec.1983. Monell v. New York
Department of Social Services, 436 U.S. 658
(1978). That Carmouche was a department head does
not affect application of the Monell principle.
Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992).
Unless the City had a policy of retaliating
against protected speech--and neither Taylor nor
Smith contends this--it cannot be liable. If
Carmouche or Felton retaliated against protected
speech, then they violated rather than
implemented Gary’s personnel policy, so the
sec.1983 claim against the City was rightly
dismissed.

  Evidence concerning plaintiffs’ remaining claims
showed that Felton alienated the secretaries by
insisting that they work harder, that the
secretaries perceived her as condescending, and
that Carmouche was touchy, insensitive, profane,
and in many other respects a poor manager. None
of these is a federal offense, however, and the
magistrate judge concluded that Smith, at least,
had nothing else to go on. After plaintiffs’ case
the magistrate judge granted judgment as a matter
of law against Smith (and in substantial measure
against Taylor), ruling that none of the events
within the City’s chain of command was speech
protected by the first amendment against
retaliation. All of the statements, protests, and
grievances were internal personnel matters,
dealing with the situations of the plaintiffs
rather than matters of general public concern,
the magistrate judge concluded. See Connick v.
Myers, 461 U.S. 138 (1983); Waters v. Churchill,
511 U.S. 661 (1994). The letter to the Department
of Labor, however, was not an internal affair,
and retaliation against Taylor for writing this
letter could support recovery, the court stated.
The jury returned a verdict in Taylor’s favor
against Carmouche on this theory, awarding a
total of $80,000 in damages: $14,000 for lost
wages and benefits, $6,000 for other loss, and
$60,000 as punitive damages. On all other
theories of liability (for example, Title VII and
the FMLA), the jury’s verdict was for defendants.

  After the verdict the court entered judgment as
a matter of law in Carmouche’s favor under Fed.
R. Civ. P. 50(b) (1)(C), and conditionally
awarded Carmouche a new trial in the event we
should disagree with this disposition. See Fed.
R. Civ. P. 50(c)(1). The magistrate judge
believed that the three-month lapse between
Taylor’s letter to the Department of Labor and
Carmouche’s decision not to allow Taylor to
return from leave was too great to support an
inference that the former precipitated the
latter. Given the rule that all evidence and
inferences must be taken in the light most
favorable to the verdict, this observation does
not permit the court to set aside the jury’s
conclusion. Taylor went on leave soon after
sending the letter, and Carmouche demanded
medical clearance the very day she returned. The
length of Taylor’s maternity leave cannot
preclude, as a matter of law, an inference that
Carmouche imposed a penalty for criticism.

  What does preclude the inference is the absence
of any evidence that what Carmouche did was a
penalty. Gary requires all employees returning
from any health-related leave to provide medical
evidence of fitness for duty. Carmouche did no
more than enforce this rule. Whatever intentions
or hopes Carmouche may have harbored, enforcing
a policy applicable to all employees cannot
reasonably be described as a penalty for speech.
(No evidence of record implies that Carmouche
enforced the rule selectively.) To find a
penalty, therefore, Taylor would have to point to
the decision of January 1995, when Carmouche
declined to allow her to work part time. But
Taylor does not contend that the January 1995
decision was retaliation for her letter to the
Department of Labor.

  Although plaintiffs chastise the magistrate
judge for removing from the jury’s purview the
decision whether the remaining grievances and
protests dealt with matters of general public
concern, their status is a question of law rather
than fact, so the court rather than the jury is
the proper decisionmaker. Connick, 461 U.S. at
148 n.7. Our review is plenary, id. at 150 n.10,
and we agree with the magistrate judge’s
resolution. Three principal considerations
persuade us that the magistrate judge was right
in thinking these grievances covered by Connick.

  First, as in Connick, all of the questioned
speech took place within the employer’s personnel
hierarchy and concerned the management of the
labor force. Smith and Taylor complained about
Felton to Carmouche, and then to Carmouche’s
superiors. That Gary’s personnel committee
sometimes takes formal testimony rather than
resolving grievances in other ways does not turn
the subject from management to politics. In
Connick itself the Court concluded that some of
the speech concerned issues of public concern,
but it held that the speech as a whole must be
deemed work-related, in large measure because it
all occurred within the workplace and concerned
supervisory management styles--which is, in the
end, pretty much what Smith and Taylor were
complaining about.

  Second, as in Connick and Waters, Smith and
Taylor were protesting in their capacity as
employees, not in their capacity as citizens.
Their complaints related to their jobs. Taylor
believes that she rather than Felton should have
been promoted and that her leg injury should have
been accommodated by allowing her to continue
working on the third floor; Smith believes that
she should have been allowed to hold surprise
parties without interference, contends that her
belated document delivery was someone else’s
fault, and believes that her supervisors used too
much crude language. These are normal workplace
grievances, and statements made in an employment
setting about how the tasks should be carried out
are appropriate subjects for reaction by
management, without constitutional obstacles.
Wales v. Board of Education, 120 F.3d 82, 84-85
(7th Cir. 1997). None of the statements was
offered as a political view about what legal
policies the City of Gary should adopt, or even
as a view about the City’s organizational
structure. Smith and Taylor were not engaged in
a debate about whether it was desirable, say, for
Gary to hire racists; they contended, rather,
that race influenced what happened to them, on
the job. None of the defendants’ responses
affected political discourse. As Justice O’Connor
observed in Waters, 511 U.S. at 672-75 (some
internal citations omitted):

   [E]ven many of the most fundamental maxims
   of our First Amendment jurisprudence
   cannot reasonably be applied to speech by
   government employees. The First Amendment
   demands a tolerance of "verbal tumult,
   discord, and even offensive utterance," as
   "necessary side effects of . . . the
   process of open debate," Cohen v.
   California, 403 U.S. 15, 24-25 (1971). But
   we have never expressed doubt that a
   government employer may bar its employees
   from using Mr. Cohen’s offensive utterance
   to members of the public or to the people
   with whom they work. . . . [W]hen an
   employee counsels her co-workers to do
   their job in a way with which the public
   employer disagrees, her managers may tell
   her to stop, rather than relying on
   counterspeech. ... [T]hough a private
   person is perfectly free to uninhibitedly
   and robustly criticize a state governor’s
   legislative program, we have never
   suggested that the Constitution bars the
   governor from firing a high-ranking deputy
   for doing the same thing. Even something
   as close to the core of the First
   Amendment as participation in political
   campaigns may be prohibited to government
   employees. ...

   This does not, of course, show that the
   First Amendment should play no role in
   government employment decisions. Government
   employees are often in the best position
   to know what ails the agencies for which
   they work; public debate may gain much
   from their informed opinions. And a
   government employee, like any citizen, may
   have a strong, legitimate interest in
   speaking out on public matters. In many
   such situations the government may have to
   make a substantial showing that the speech
   is, in fact, likely to be disruptive
   before it may be punished. ...

   . . . [T]he extra power the government has
   in this area comes from the nature of the
   government’s mission as employer.
   Government agencies are charged by law
   with doing particular tasks. Agencies hire
   employees to help do those tasks as
   effectively and efficiently as possible.
   When someone who is paid a salary so that
   she will contribute to an agency’s
   effective operation begins to do or say
   things that detract from the agency’s
   effective operation, the government
   employer must have some power to restrain
   her. The reason the governor may, in the
   example given above, fire the deputy is
   not that this dismissal would somehow be
   narrowly tailored to a compelling
   government interest. It is that the
   governor and the governor’s staff have a
   job to do, and the governor justifiably
   feels that a quieter subordinate would
   allow them to do this job more
   effectively.

   The key to First Amendment analysis of
   government employment decisions, then, is
   this: The government’s interest in
   achieving its goals as effectively and
   efficiently as possible is elevated from a
   relatively subordinate interest when it
   acts as sovereign to a significant one
   when it acts as employer. The government
   cannot restrict the speech of the public
   at large just in the name of efficiency.
   But where the government is employing
   someone for the very purpose of
   effectively achieving its goals, such
   restrictions may well be appropriate.

Carmouche and Felton acted in their capacity as
supervisors of the Law Department rather than as
regulators of private speech, which under Waters
they may do without violating the first
amendment.

  Third, Smith and Taylor offered their assertion
that Felton is a "racist"--the only statement
that plaintiffs characterize as raising an issue
of public concern--as a proposition of fact
rather than of opinion, though it is principally
the latter that the first amendment protects.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40
(1974); Stevens v. Tillman, 855 F.2d 394, 398-402
(7th Cir. 1988). The statement at issue in Rankin
v. McPherson, 483 U.S. 378 (1987), an employee’s
wish that the President be assassinated, asserted
a political stance. But whether a given
supervisor is a racist, or practices racial
discrimination in the workplace, is a mundane
issue of fact, litigated every day in federal
court. "Felton is a racist" is defamatory, and a
person who makes an unsupported defamatory
statement may be penalized without offending the
first amendment. Whether that penalty is
delivered in a slander action, in a perjury
prosecution, in an award of attorneys’ fees for
making unsubstantiated allegations, or in the
workplace by a suspension, is immaterial to the
Constitution. What matters is that defamation of
a co-worker may be punished, and as we pointed
out in Feldman v. Ho, 171 F.3d 494, 497-98 (7th
Cir. 1999), whether a particular defamatory
statement is true or false is not a question of
constitutional moment, unless the target is a
"public figure," which Felton wasn’t. See also
Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-
23 (1990); In re Palmisano, 70 F.3d 483 (7th Cir.
1995). The Court held in Waters that so long as
the employer honestly and reasonably believes
that workplace speech is inappropriate or
disruptive, then the Constitution permits a
response whether the speech in question was true
or false, disruptive or not.

  Smith and Taylor pressed their grievances
through the machinery Gary provided to its
employees. Sometimes they won; sometimes they
lost. They were not entitled to take their losses
to federal court and ask a jury to second-guess,
in the name of the Constitution, the decisions of
the personnel hierarchy.

Affirmed



  Williams, Circuit Judge, dissenting. I
respectfully dissent. While I agree with the
majority’s resolution of Cynthia Taylor’s claim
relating to her reinstatement after her medical
leave, I disagree with the majority’s resolution
of the plaintiffs’ other claims. Specifically, I
am not persuaded that the magistrate judge
correctly ruled that the plaintiffs’ protests
within the City of Gary’s chain of command did
not deal with matters of public concern.

  As I read the record, the plaintiffs’ protests
were an effort to challenge racism in the City’s
Law Department. In a variety of forums and on
several occasions they raised their concerns
about racism on the part of both Margaret Felton
and Hamilton Carmouche. Most significantly, they
went directly to both the City’s Mayor and Deputy
Mayor in their effort to speak out. And, there is
no indication in the record that their protests
were restricted to their individual concerns;
rather, it appears that they were speaking out on
behalf of the entire office. In light of these
facts, I cannot conclude that the plaintiffs’
protests regarding racism in the City’s Law
Department were simple workplace grievances that
do not address matters of public concern. See
generally Marshall v. Allen, 984 F.2d 787, 795-96
(7th Cir. 1993); Tindal v. Montgomery County
Comm’n, 32 F.3d 1535, 1539-40 (11th Cir. 1994).
Assuming it is not related entirely to a private
dispute between the plaintiff and defendant,
racism in a public agency is inherently a matter
of public concern. See Connick v. Myers, 461 U.S.
138, 148 n.8 (1983) (noting that racial
discrimination is a matter inherently of public
concern).

  Moreover, that the plaintiffs’ protests were
communicated within the City’s chain of command
does not strike me as a particularly strong
reason to deem their protests matters of private
concern. The plaintiffs’ should not be penalized
for taking advantage of internal procedures for
raising their concerns, instead of running to the
press the first chance they had. See Givhan v.
Western Line Consol. Sch. Dist., 439 U.S. 410,
413-14 (1979) (expressing one’s views privately
rather than publicly does not forfeit the first
amendment protections afforded a government
employee); Hulbert v. Wilhelm, 120 F.3d 648, 654
(7th Cir. 1997) (noting that the plaintiff-
employee was, if anything, to be commended for
attempting to go through established internal
channels).

  As for the majority’s suggestion that the
plaintiffs’ protests about racism in the Law
Department were defamatory and therefore are not
entitled to constitutional protection, I think
the majority collapses two distinct areas of
first amendment law. One area regards the
limitations placed on a government when it acts
in its sovereign capacity to penalize or
authorize penalties for defamation. The other
addresses the limitations placed on a government
when it acts in its capacity as an employer to
discipline one of its employees based on that
employee’s speech. In light of the distinct
situations that must be addressed, quite
different standards apply in these two areas.
Whether defamation may be punished depends on
whether the subject of the defamatory statement
is a public official, public figure, or private
figure, whether the defamatory statement involves
a matter of public concern, and whether the
defamatory statement is a proposition of fact.
See generally Milkovich v. Lorain Journal Co.,
497 U.S. 1 (1990); Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749 (1985)
(plurality opinion). Moreover, truth is an
absolute defense. Whether a government employee
may be disciplined for his or her speech depends
on whether the speech addresses a matter of
public concern and whether the government’s
interest in efficiency outweighs the employee’s
interest in speaking out. See generally Connick
v. Myers, supra; Pickering v. Board of Education,
391 U.S. 563 (1968). Truth is not a defense.
Collapsing these distinct standards confuses the
issues presented by this case. Contrast Waters v.
Churchill, 511 U.S. 661, 671-75 (1994) (plurality
opinion) (making a point of distinguishing the
sorts of the first amendment restrictions placed
on a government in its sovereign capacity and
those placed on a government in its capacity as
an employer). In fact, as this case is plainly
governed by the law regarding employee speech,
there is no need to discuss the law of defamation
at all.
