Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
6-2-1995
Watters v Phila
Precedential or Non-Precedential:
Docket 94-1711
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 94-1711
RICHARD C. WATTERS,
Appellant
v.
CITY OF PHILADELPHIA;
W. WILSON GOODE, HONORABLE, Individually, and in his
capacity as Mayor of the City of Philadelphia;
WILLIE L. WILLIAMS, HONORABLE, Individually, and in his
capacity as Police Commissioner of the
Philadelphia Police Department;
DAVID H. PINGREE, HONORABLE, Individually, and in his
capacity as Managing Director of the City of Philadelphia
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 91-cv-00177)
Argued: February 28, 1995
Before: SLOVITER, Chief Judge,
NYGAARD and McKEE, Circuit Judges
(Filed June 2, l995 )
Geoffrey R. Johnson (Argued)
Richard A. Sprague
Joseph R. Podraza, Jr.
Sprague & Sprague
Philadelphia, PA 19103
Attorneys for Appellant
Alan C. Ostrow (Argued)
Deputy City Solicitor
Lek Domni
Michael F. Eichert
Chief Deputy City Solicitor, Appeals
City of Philadelphia
Law Department
Philadelphia, PA 19107-2996
Attorneys for Appellees
___________________
OPINION OF THE COURT
____________________
SLOVITER, Chief Judge
Richard C. Watters appeals the district court's order
under Rule 50(a) dismissing his action under 42 U.S.C. § 1983
against the City of Philadelphia, Police Commissioner Willie L.
Williams and Managing Director David Pingree (hereafter
collectively referred to as "the City") for denial of his First
Amendment right to freedom of speech. Watters' claim arose out
of his termination from employment as Manager of the Employee
Assistance Program (EAP) for the Philadelphia Police Department
following the publication of a newspaper article in which he was
quoted criticizing aspects of the EAP.
I.
FACTS AND PROCEDURAL HISTORY
In 1987 then-Police Commissioner Kevin Tucker solicited
Watters to leave his employment with the Princeton Medical Center
and to accept a position as Manager of the Employee Assistance
Program for the Philadelphia Police Department. The idea for a
coordinated EAP grew out of a study conducted by the Philadelphia
Police Study Task Force which Tucker had convened "to review all
aspects of the Philadelphia Police Department and to make
recommendations . . . for improvement in the way this vital
service is provided to the citizens of Philadelphia." App. at
30.
The Task Force's report, Philadelphia and Its Police:
Toward a New Partnership, issued in 1987, emphasized the
importance of providing stress management and psychological, drug
and alcohol counseling services to officers. The Task Force
found "significant barriers and limitations" in the existing
counseling programs and noted the lack of a "clear commitment" by
the Department to an employee assistance program, "the lack of a
comprehensive program for assisting employees with alcohol, drug
or psychological problems, and police employees' suspicions of
treatment programs, including fear of being dismissed,
disciplined or stigmatized." App. at 44. The Task Force
concluded that "procedures must be established that allow an
officer to be referred to treatment before the problem gets out
of hand [and that a] key to convincing employees that they can
get help is for the Department to ensure the confidentiality of
the program. . . ." App. at 44. The Task Force specifically
recommended hiring a "program coordinator with psychological
counseling training" and developing a formal employee assistance
policy. App. at 45.
Watters was charged in his appointment letter with
managing the EAP "as outlined in the recommendations of the
Philadelphia Police Study Task Force Report." App. at 123. The
defendants do not deny that pursuant to that charge Watters
upgraded and consolidated existing services, added educational
programs, and supervised the professional training of the
counselors. Again following the Task Force's recommendations, he
oversaw the formation of internal and external advisory
committees to draft an employee assistance policy. One draft
policy statement addressed issues of confidentiality and
specified the services the EAP would provide. App. at 51-52.
Another outlined a Traumatic Incident Management Program. App.
at 53-55.
The genesis of Watters' employment problems apparently
lay in his attempts to get formal and public acceptance of those
policy statements by the Police Commissioner. Watters submitted
the draft policy statements to Commissioner Tucker in 1988 for
his approval. Tucker told Watters orally to implement the
services. He testified that he approved the goals Watters had
set but that in light of his forthcoming retirement he deferred
decisions on a formal policy to his successor. Tucker resigned
in June 1988 and was succeeded by Commissioner W. Willie
Williams.
Watters then sought formal approval of the draft
policies from Williams but was again disappointed. Williams
testified that he told Watters that it might take up to eighteen
months to get consensus on the policy issues but that Watters had
the authority to do whatever was necessary in the meantime to run
the EAP. App. at 605-06.
According to Watters, the lack of official policies
caused problems in at least two areas -- one dealing with
maintaining confidentiality as to the identity of police officers
who sought counseling and the other dealing with reimbursement
for certain services referred to providers by the EAP rather than
by the City's workers' compensation program. Explaining the
reason for his concern about confidentiality, Watters testified,
"[O]ne of the counselors . . . made it clear that if a police
officer were to have revealed to him that he had a chemical
dependency problem, that he would Mirandize him, he would arrest
him." App. at 189. Defendants maintain that confidentiality was
protected unless an officer posed a danger to himself or others.
There is evidence in the record that existing departmental policy
required reporting any police officer who was using drugs. App.
at 181-82.
Watters also described difficulties with reimbursement
for an outside referral. He stated: "I received a letter from
the police department safety officer telling me that the police
department would not reimburse this employee for those services
because the employee assistance program did not have a mandate to
act in that capacity." App. at 214. According to Watters, some
officers viewed the EAP with mistrust and challenged him every
day with questions about its legitimacy. They told him that the
EAP was a "bogus program" because "without the authority
authorization [sic] of the policy statement, it was meaningless."
App. at 220.
Watters' dissatisfaction with managing the EAP without
the policy statements grew. He was concerned "[t]hat we were
operating in an unethical way. That we were viewed as having
some service that didn't exist. That I would be responsible or
liable for supervising or directing a program that wasn't
authorized to exist." App. at 219. In August 1989, Watters
wrote to Chief Deputy Solicitor Ralph J. Teti seeking guidance
about the legal and ethical difficulties he perceived in
providing the EAP services without a signed policy statement.
App. at 220-22.
In November 1989, because of his concerns over the lack
of formal Departmental policies, Watters decided to scale back
the EAP services to the level they were prior to his becoming the
EAP manager. App. at 228-29, 234-35. Watters testified that he
informed Commissioner Williams and Deputy Commissioner James
Clark of his decision. Clark instructed Watters to continue
providing the services but Watters responded that he could not
ethically do so. App. at 230-32. Shortly thereafter Watters
refused to provide referrals for outside counseling for the
family of a slain officer because he believed that, without a
clear policy mandate, the referral could interfere with the
family's receipt of workers' compensation benefits. App. at 232-
34. He was not disciplined for this refusal to provide referral
services. App. at 234.
In April 1990, a reporter for The Philadelphia Inquirer
approached Watters with questions about the EAP.1 On April 19,
1990 an article appeared in that newspaper under the headline
"Dispute puts counseling program for police in limbo." The
article states that "[the EAP] has ground to a virtual standstill
in the services it offers, stymied by an internal dispute over
the scope of its effort." The article continues, "According to
Dick Watters, the head of the Employee Assistance Program, the
turmoil has its roots in the way the program was set up--the
department, he said, never formally authorized counseling for
anything but alcohol problems" and "What has frustrated program
counselors, Watters said, is that authorization is crucial to
effective service. Without it, he said, there have been problems
of liability, difficulties in worker's compensation cases and
snafus in reimbursement for care referrals, all of which have
undercut the coordinated system of service envisioned by the task
1
. This was actually the second newspaper article for which
Watters was interviewed. On December 13, 1989 The Northeast
Times published an article in which Watters discussed the lack of
a policy statement. No discipline resulted from this interview.
force." The article continues, (quoting Watters): "'It's been a
charade from the start.'--so he decided to pull the plug to make
a point. 'I'm taking a risk. We're creating a crisis. The
program's not here. Somebody's got to make a decision.'" App.
at 56. Watters agreed at trial that in general the reporter
accurately paraphrased him, but noted that he did not say that he
"pulled the plug to make a point."
As soon as the article was published, Williams summoned
Watters to his office. Watters claims that Williams told him
that he should not have talked to the reporter and that he was an
abomination and unfit for public service. App. at 242-44. On
April 26, 1990, Watters was again summoned, and this time was
informed of his termination.
Williams testified that the April 19 article was his
first knowledge that the EAP services had been cut back, and that
at his meeting with Watters immediately thereafter he asked
whether and why he had reduced services and who had given him the
authority to do so. He testified that Watters admitted that he
had made the statement that he "pulled the plug" and said that he
had stopped providing crisis counseling and the morning
information meetings because he felt he lacked authority. It was
Williams' view that "[Watters] was obligated as a city employee
to provide those services." App. at 627.
Williams also discussed the article with Managing
Director David Pingree, who testified that Williams was concerned
that Watters had taken actions to hinder the operation of the EAP
but "I don't recall the Commissioner being concerned relative to
Mr. Watters speaking to the press." App. at 719. Pingree
suggested that Williams should look into whether services had
been reduced. Williams verified that some services had been
stopped and recommended firing Watters, which Pingree authorized.
Six months later, Williams issued two written policy statements.
One was entitled "Employee Assistance Program for Sworn Personnel
And Their Families," and was substantially similar to that
proposed by Watters. The other which mandated counseling for any
officer involved in a police shooting, also addressed issues
Watters had raised. App. at 633-35.
Watters filed his section 1983 suit against the City of
Philadelphia, Mayor W. Wilson Goode, Police Commissioner
Williams, and Managing Director Pingree claiming violations of
the due process and freedom of speech clauses of the United
States Constitution. The district court granted defendants'
motion for judgment as a matter of law after the close of
evidence at trial,2 holding that Watters' speech was not on a
matter of public concern and that the "speech activity
interfer[ed] with the Police Department's interests in promoting
the efficiency of the public services it performs through its
employees." App. at 756-58.
2
. On April 25, 1991 the district court had granted defendants'
motion to dismiss the due process claim and all claims against
Mayor Goode. Watters does not appeal those rulings.
We exercise plenary review of the district court's
grant of a motion for judgment as a matter of law. Walter v.
Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993). Such a
motion should be granted only if "viewing all the evidence which
has been tendered and should have been admitted in the light most
favorable to the party opposing the motion, no jury could decide
in that party's favor." Id. (citation and quotation omitted).
This court has an obligation to make an "'independent
constitutional judgment on the facts of the case'" as to whether
the speech involved is constitutionally protected. Connick v.
Myers, 461 U.S. 138, 150 n.10 (1983) (quoting Jacobellis v. Ohio,
378 U.S. 184, 190 (1964) (opinion of Brennan, J.)).
II.
DISCUSSION
The Supreme Court has remarked that it is essential
that public employees be able to speak out freely on questions of
public concern without fear of retaliatory dismissal. See
Pickering v. Board of Educ., 391 U.S. 563, 572 (1968). Judicial
vigilance is required to ensure that public employers do not use
their authority to silence discourse on matters of public concern
simply because they disagree with the content of the employee's
speech. See Rankin v. McPherson, 483 U.S. 378, 384 (1987).
Nonetheless, our precedents counsel that "the State has interests
as an employer in regulating the speech of its employees that
differ significantly from those it possesses in connection with
regulation of the speech of the citizenry in general."
Pickering, 391 U.S. at 568. Therefore, in determining whether
the speech of an employee deserves constitutional protection,
this court must strike "a balance between the interests 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." Id.
We analyze a public employee's claim of retaliation for
engaging in protected activity under a three-step process.
First, plaintiff must show that the activity in question was
protected. Holder v. City of Allentown, 987 F.2d 188, 194 (3d
Cir. 1993); Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir.
1983). To be protected the speech must be on a matter of public
concern, and the employee's interest in expression on this matter
must not be outweighed by any injury the speech could cause to
the interest of the state as an employer in promoting the
efficiency of the public services it performs through its
employees. Waters v. Churchill, 114 S. Ct. 1878, 1884 (1994)
(plurality opinion) (citing Connick, 461 U.S. at 142, and
Pickering, 391 U.S. at 568).
Second, plaintiff must show that the protected activity
was a substantial or motivating factor in the alleged retaliatory
action. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977). Finally, defendant may defeat plaintiff's
claim by demonstrating by a preponderance of the evidence that
the same action would have been taken even in the absence of the
protected conduct. Id.
In this case we need not reach the latter two steps.
The district court found that Watters had made a sufficient
showing that the speech was a substantial factor motivating the
termination to submit the question of the actual reason for
Watters' termination to the jury. App. at 754. The only
question before this court is the legal one of whether the
district court erred in its determination that Watters' speech
was not a matter of public concern and that it interfered with
the Police Department's efficient delivery of services. By
arguing that the speech was of no public interest or that it was
of "low public interest" and was outweighed by the City's
countervailing interest in requiring loyalty of Watters, the City
appears to concede, at least for purposes of this appeal, that
the speech was a motivating factor in Watters' termination.3
A.
Matter of Public Concern
3
. Whether the speech was a substantial factor in the
retaliatory action and whether Watters would have been fired
anyway remain issues in contention between the parties. See
Johnson v. Lincoln University, 776 F.2d 443, 454 (3d Cir. 1985)
("second and third questions . . . should be submitted to the
jury"); see also Zamboni v. Stamler, 847 F.2d 73, 79 n.6, 80 (3d
Cir.) ("these inquiries [whether a substantial or motivating
factor and whether same actions would have been taken regardless]
. . . are for the jury"), cert. denied, 488 U.S. 899 (1988).
The threshold issue is whether Watters' speech was on a
matter of public concern. Swineford v. Snyder County, 15 F.3d
1258, 1270 (3d Cir. 1994). An employee's speech addresses a
matter of public concern when it can be "fairly considered as
relating to any matter of political, social, or other concern to
the community." Holder, 987 F.2d at 195 (citing Connick, 461
U.S. at 146). Speech by a public employee "as a citizen upon
matters of public concern" is distinguished from speech by "an
employee upon matters of only personal interest" for which,
"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, 461 U.S. at 147. The
public concern inquiry is a legal one, to be determined by the
"content, form, and context of a given statement, as revealed by
the whole record." Id. at 147-48 & n.7.
Watters spoke to a reporter with The Philadelphia
Inquirer about the grave problems he perceived in operating the
EAP without a written policy statement. The content of Watters'
speech on its face appears to address a matter of significant
public concern. There is ample evidence in the record that the
existence of an effective EAP had been a matter of public
interest for some time. Former Commissioner Tucker testified
that he held a press conference to announce the release of the
Task Force's Report. App. at 586. Tucker also testified that an
effective EAP would be of economic benefit by decreasing
absenteeism and improving the quality of law enforcement. App.
at 448-49. Commissioner Williams concurred in the importance of
an effective EAP to the smooth functioning of the Police
Department.
Watters described the stress faced by police officers
and the role of an EAP:
Police officers were considered extremely important to
the city. They offered a very valuable service. They
were people who carry guns. They were people who had
an enormous responsibility. They were employees who
were under an enormous amount of stress, and the
discharge of their responsibilities required them to
have appropriate kinds of programs available to mediate
the stress and to help them deal with whatever problems
or personal problems they might have, given certainly
their status and their significance within the city
structure.
App. at 352.
It follows that the availability and provision of
counseling to a troubled police officer for addiction, stress and
related disorders, or traumatic incidents is precisely the kind
of issue that a citizen of Philadelphia is likely to find of the
utmost importance. Indeed, shortly after Watters assumed his
duties managing the EAP, he was interviewed by a representative
of a "community concern action group" who presented citizen fears
that police officers under stress and carrying guns were likely
to have some "serious accidents." Watters sought to allay those
fears by explaining the availability of counseling services for
officers. App. at 201.
Defendants do not deny that the existence of the EAP
itself is an issue of public concern. Instead, they seek to
distinguish that basic issue from the particular matter Watters
protested -- the absence of an official written policy statement
on certain troublesome and, in his view, unresolved aspects of
the EAP. However, because Watters' speech raised issues which
arguably went to the fundamental existence and efficacy of the
EAP, that speech cannot be narrowly characterized as only
concerning the "minute details" of program administration.
Watters sought to inform the public of his belief that "[t]he
policy statement would have provided some trust, a certain degree
of comfort, a different understanding of what the organization
was proposed to do to enable people to access the EAP without
fears of recrimination, without fear of having records used
against them in an investigation of some kind." App. at 192. If
officers did not use the services available, the stated purpose
of the program -- to improve the effective delivery of law
enforcement to the public -- would be undermined.
Watters' view as to the nexus between written policies
and the effectiveness of the EAP has support in the record. A
peer counselor for the Philadelphia Police Department, Sergeant
William Brennan, testified that formal policies are essential
within the Police Department because without them "[y]ou have no
real basis for acting." App. at 417. Counsel for the City
agreed at oral argument that it was unresolved whether written
policy authorization was required in order for outside referrals
by the EAP to be reimbursed.
We need not decide and do not take a position on the
question of whether a written policy statement was, in fact,
necessary to the effective operation of the EAP, as Watters
believed. For this purpose, it is sufficient for us to conclude,
that the content of the speech was related to the fundamental
existence of the EAP, a matter of public concern.
As such, Watters' speech differs from that at issue in
the two cases from other circuits relied on by defendants.4
Instead, it is comparable as a matter of law to speech by other
public employees criticizing their employers' policies or
practices which the Supreme Court or this court have found to
touch upon matters of public concern. See, e.g., Pickering, 391
U.S. at 566 (letter to the editor criticizing Board of
4
. In Gomez v. Texas Dep't of Mental Health & Mental
Retardation, 794 F.2d 1018 (5th Cir. 1986), the speech was that
of an employee at a state facility for the mentally ill who
informed an employee at a coordinate county facility of proposed
administrative changes which would have affected their jobs. The
court held that the speech was not of public concern because the
proposed reallocation of administrative burdens was not a matter
of interest in the community and the speech did not alert the
public to wrongdoing or credibly touch upon the adequacy of
patient care. Id. at 1021-22. In Phares v. Gustafsson, 856 F.2d
1003 (7th Cir. 1988), a medical records technician disagreed with
instructions from her supervisors on coding of medical records.
The court found that her speech was not on a matter of public
concern because its context and form indicated that it was speech
on a purely personal disagreement over the operation of her unit,
and the plaintiff was not trying to expose any wrongdoing or to
inform the public of any problems within the College of
Veterinary Medicine. Id. at 1008.
Education's allocation of school funds); Mt. Healthy, 429 U.S. at
282 (telephone call to a local radio station about memorandum on
teacher dress codes); Zamboni v. Stamler, 847 F.2d 73, 75 (3d
Cir.) (public criticism of proposed reorganization of
prosecutor's office), cert. denied, 488 U.S. 899 (1988); Johnson
v. Lincoln University, 776 F.2d 443, 452 (3d Cir. 1985) (letters
by university professor to accreditation body alleging low
academic standards in university); Czurlanis, 721 F.2d at 100-01
(speeches at Board of Chosen Freeholders meetings criticizing
practices of Division of Motor Vehicles); Monsanto v. Quinn, 674
F.2d 990, 996-97 (3d Cir. 1982) (letters to tax commissioner
criticizing management of tax division).
The defendants deny that Watters spoke on a matter of
public concern and argue that Watters is a disgruntled employee
seeking to turn internal office grievances into a cause celebre.
They contend that he spoke merely "as an employee dissatisfied
with the scope and timing of one aspect of a voluntary police
department program because his superiors would not agree with him
initially, and did not agree with him as soon as he wanted them
to." Appellees' Brief at 17. They rely on the Supreme Court's
cautionary statement that the "First Amendment does not require a
public office to be run as a roundtable for employees complaints
over internal office affairs." Connick, 461 U.S. at 149.
In Connick, the speech in question was that of an
Assistant District Attorney who circulated a questionnaire
soliciting the views of her coworkers on office transfer
policies, office morale, the need for a grievance committee,
their level of confidence in their supervisors, and whether they
felt pressured to work in political campaigns. The Court held
that only the last question spoke to a matter of public concern,
and that the others were merely extensions of the employee's
dispute with her superiors over her opposition to being
transferred. Id. at 140-49. The questionnaire, "if released to
the public, would [have] convey[ed] no information at all other
than the fact that a single employee is upset with the status
quo." Id. at 148. Myers did not "seek to inform the public that
the District Attorney's Office was not discharging its
governmental responsibilities" or "seek to bring to light actual
or potential wrongdoing or breach of the public trust." Id. at
148. Cf. Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410
(1979) (holding that even private communication to supervisors of
complaints alleging discriminatory policies and practices
entitled to constitutional protection).
The content, form and context of Watters' speech differ
greatly. Watters' speech was not confined to the day-to-day
minutiae of administering a bureaucratic program, as defendants
allege. Rather Watters' speech linked his concerns over the lack
of a formal policy to fundamental problems going to the heart of
the administration of counseling services for police officers.
Although Watters also may have had some personal
motivation for speaking, his speech was not merely an extension
of his individual grievances. It had been solicited by a
newspaper reporter presumably because the problems it alleged
about Police Department administration touched upon issues of
"political, social, or other" concern to the community. See Rode
v. Dellarciprete, 845 F.2d 1195, 1201-02 (3d Cir. 1988) (clerk-
typist who spoke to newspaper reporter about racial animus and
retaliation in state police department was "disgruntled employee"
but speech was nonetheless on matter of public concern); Zamboni,
847 F.2d at 77-78 (detective who was motivated to criticize
reorganization of prosecutor's office in part because it was
adverse to him still spoke on matter of public concern). But see
Versarge v. Clinton, 984 F.2d 1359, 1365 (3d Cir. 1993) (fact
that expelled member of volunteer fire department was motivated
by "personal grudge" weighed against finding that he spoke on
matter of public concern).
We also attribute some relevance to publication of the
interview in a newspaper of general circulation. See Rode, 845
F.2d at 1202; see also Monsanto, 674 F.2d at 997 (holding that
speech was matter of public concern supported by fact that issues
deemed important enough to be subject of two radio broadcasts).
The focus of the article went beyond the personal gripe of one
employee, instead putting Watters' statements within the context
of reporting on other problems facing the Department. Its lead
was: "As if the Police Department didn't have enough problems,
crisis has come to its crisis counselors." App. at 56. It ties
Watters' tenure as the EAP Manager to the program itself: "The
program's director--hired with much fanfare at the urging of the
Philadelphia Police Study Task Force in 1987--has been told by
the police commissioner that there is no money to continue
funding his job. And the Police Department wants to revamp the
program, possibly by farming out services to a private counseling
agency." It referred as well to interviews with Commissioner
Williams and president of Lodge 5, Fraternal Order of Police,
Richard Costello.
The district court too narrowly defined the scope of
the public concern doctrine. Surely the citizens of Philadelphia
have an interest in knowing if a program set up to provide
counseling services to police officers is beset with problems of
the magnitude of which Watters, the manager of that program,
described. We conclude that the public had a significant
interest in learning about problems which may have impaired the
effective functioning of the EAP and which, in turn, could have
affected the delivery of police services, and that therefore the
speech was on a matter of public concern.
B.
Balancing of Interests
Our conclusion that Watters' speech was on a matter of
public concern does not alone determine that the speech was
protected by the First Amendment. We must weigh the interests on
behalf of the speech against the interest of the City as an
employer "in promoting the efficiency of the public services it
performs through its employees." Rankin, 483 U.S. at 388
(quoting Pickering, 391 U.S. at 568). The Government bears the
burden to justify a discharge, and that burden "varies depending
upon the nature of the employee's expression." Connick, 461 U.S.
at 150; see also United States v. National Treasury Employees'
Union, 115 S. Ct. 1003, 1021 (1995) (O'Connor, J., concurring in
the judgment and dissenting in part) ("As the magnitude of
intrusion on employees' interests rises, so does the Government's
burden of justification."). "[T]he balancing test articulated in
Pickering is truly a balancing test, with office disruption or
breached confidences being only weights on the scales." Zamboni,
847 F.2d at 79 (citation and quotation omitted).
On Watters' side of the balance is his interest in
engaging in the speech as well as the public's interest in "free
and unhindered debate" on an issue of public importance, see
Versarge, 984 F.2d at 1366, a "core value of the Free Speech
Clause of the First Amendment." See Pickering, 391 U.S. at 573.
As previously recognized, "[t]he public has a significant
interest in encouraging legitimate whistleblowing so that it may
receive and evaluate information concerning the alleged abuses of
. . . public officials." O'Donnell v. Yanchulis, 875 F.2d 1059,
1062 (3d Cir. 1989).
Weighed on the other side is the government employer's
interest in "the effective and efficient fulfillment of its
responsibilities to the public." Connick, 461 U.S. at 150. As
explained recently in the plurality opinion of the Supreme Court
in Waters v. Churchill, 114 S. Ct. 1878, 1886 (1994), the
government "has a freer hand in regulating the speech of its
employees than it has in regulating the speech of the public at
large[,]" but that hand is not uncontrolled.
In Waters, the Supreme Court's most recent discussion
of this issue, the Court considered whether the Connick test
should be applied on the basis of what the government employer
reasonably thought the employee said or what the trier of fact
ultimately determines was said. In that case, unlike here, there
was a factual dispute as to what was said5 in a conversation
5
. Only a few phrases in The Philadelphia Inquirer article may
have been incorrectly attributed to Watters. For example, the
article describes how "[f]or more than three months, the program
has stopped the informal counseling it offered routinely to
officers involved in shootings--and has cut back counseling in
virtually every area but alcohol abuse." App. at 56. Watters
denied having said exactly these words but testified at trial "I
told him that the service were cut back to the ones that I had
proposed and that had never been authorized and to the services
that existed before I inherited the counseling unit, and that the
alcohol counseling unit continued to exist." App. at 353.
Watters does not deny saying most of what was in the article.
between two nurses during a dinner break. The employer acted on
the basis of information that the disciplined employee had said
"unkind and inappropriate negative things" about her supervisor;
the employee contended she had merely criticized certain hospital
policies because she believed they were impeding nursing care.
Id. at 1882-83.
In an opinion authored by Justice O'Connor, the Waters
plurality, speaking on this issue for a majority of the Court,
id. at 1893 (Souter, J., concurring), held that the courts should
"look to the facts as the employer reasonably found them to be."
Id. at 1889. The Court then applied the Pickering balance and
decided that, in either event, the speech was unprotected because
whatever First Amendment value it might have had was outweighed
by the disruption factor. Id. at 1890-91.
We must consider the effect of Waters on our prior
standard for evaluating the disruption factor relevant in the
Pickering balance.6 In earlier cases, we required the government
employer to show "actual disruption." See Zamboni, 847 F.2d at
78 (citing American Postal Workers Union v. United States Postal
Service, 830 F.2d 294, 303 & n.12 (D.C. Cir. 1987)). In doing
so, we relied on the language in Pickering that the speech in
question was "neither shown nor can be presumed to have in any
6
. In Feldman v. Philadelphia Hous. Auth., 43 F.3d 823 (3d Cir.
1994), decided after Waters, although there was evidence of some
actual disruption, we held it did not justify plaintiff's firing
because it was outweighed by the public interest in retaining
someone whose job was to expose corruption. Id. at 830-31.
way either impeded the teacher's proper performance or to have
interfered with the regular operation of the schools generally."
See Zamboni, 847 F.2d at 79 (quoting Pickering, 391 U.S. at 572-
73).
In Waters, however, the Court decided that "the
potential disruptiveness of the speech as reported was enough to
outweigh whatever First Amendment value it might have had." 114
S. Ct. at 1890. Justice O'Connor explained that because a
government employee, like any citizen, may have a strong,
legitimate interest in speaking out on public matters, the
government employer may have to "make a substantial showing that
the speech is, in fact, likely to be disruptive before it may be
punished." Id. at 1887 (emphasis added). We believe that after
Waters, it is no longer essential to show actual disruption,
although such evidence would obviously be highly relevant. See
Jeffries v. Harleston, No. 93-7876, 1995 U.S. App. LEXIS 7639, at
*10 (2d Cir. April 4, 1995) (Waters overturns strict actual
interference test).
The Court's finding of likely disruptiveness in Waters
was based on the employer's evidence that a potential employee
may have been discouraged in working for a department in the
hospital, the disciplined employee's complaints threatened to
undermine management's authority, and the employee's own
statement that it "wasn't possible" to "wipe the slate clean"
between her and her supervisor. 114 S. Ct. at 1890-91. In
Rankin, the Supreme Court listed as factors relevant to
evaluating the disruption contention "whether the statement
impairs discipline by superiors or harmony among co-workers, has
a detrimental impact on close working relationships for which
personal loyalty and confidence are necessary, or impedes the
performance of the speaker's duties or interferes with the
regular operation of the enterprise." 483 U.S. at 388 (citing
Pickering, 391 U.S. at 570-73).
The district court in this case did not review or
analyze any of these factors. Instead, in its brief discussion
of this side of the Pickering balance7 the court concluded that
7
. The court's entire discussion of disruptiveness in its oral
opinion is as follows:
Mr. Watters' statements in the press describe
a crisis, and Mr. Watters has testified that
at least there was a crisis within the Police
Department administration.
The crisis described by Mr. Watters here in court, and
in the article, would clearly support a finding and
does clearly support the Court's finding that the
speech activity interferes with the Police Department's
interests in promoting the efficiency of the public
services it performs through its employees.
Certainly it is established that there is a crisis.
Mr. Watters set out to describe that crisis. And
certainly so that all prongs of the requirements to be
protected, First Amendment activity cannot be met.
It is my view that there is no First Amendment
protection in the context of -- for the activity in
this case.
To create a crisis, then to report it for the purpose
of taking the issue public in order to get certain
the speech was disruptive by focusing on Watters' use of the word
"crisis" in the article and in his testimony.8 However, the
crisis to which Watters referred was one in the EAP, not one
resulting from his speaking out.
Disruption caused by actions independent of the speech
at issue cannot be equated with disruption caused by the speech
itself. In Monsanto, reviewing a record similarly lacking
evidence of disruption caused by the speech activities of an
employee who sent letters critical of the management of the Tax
Division of the Virgin Islands Department of Finance, we found it
significant that "[w]hile there was ample testimony establishing
disharmony and discontent among the employees . . . there is only
meager evidence establishing that this disharmony and discontent
was specifically caused by [the] letter writing activities. . . .
[M]uch of the discontent appears to have been the result of the
very problems in the Tax Division to which [the] letters were
(..continued)
administrative orders and procedures is not protected
conduct as I understand protected conduct.
App. at 757-58.
8
. Similarly, although the City also contends that Watters
admitted his policy proposals created a "crisis," nothing in the
Watters' testimony cited by the City can be construed as
attributing any crisis to The Philadelphia Inquirer article.
See, e.g., App. at 361 ("The reasons for my not wanting to report
to the first deputy commissioner created very much of a crisis
trying to interface the employee assistance program connected
with other departments within the organization and outside of the
organization, with the city health service.").
directed." 674 F.2d at 999. To the extent there might have been
"disharmony or discontent" in the Police Department over the
functioning of the EAP there is no evidence in the record
suggesting that it was a result of Watters' speech rather than of
the very problems to which Watters' speech was directed.
The City now seeks to justify the termination of
Watters on a basis not relied on by the district court. It
contends that Watters was a "policymaker" and, as such, enjoyed a
necessarily close working relationship with the Commissioner who
had the right to expect personal loyalty and confidence in
return. Certainly there are some positions in public employment
"in which the need for confidentiality is so great that even
completely correct public statements might furnish a permissible
ground for dismissal" or "in which the relationship between
superior and subordinate is of such a personal and intimate
nature that certain forms of public criticism of the superior by
the subordinate would seriously undermine the effectiveness of
the working relationship." Pickering, 391 U.S. at 570 n.3. On
the other hand, merely saying that the relationship will be
undermined does not make it so.
The paradigmatic case in which this court concluded
that the close working relationship between employee and
supervisor made public criticism by the employee disruptive as a
matter of law is Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir.
1976), cert. denied, 431 U.S. 937 (1977). In that case, we
upheld the dismissal of an action based on the firing of the
First Assistant District Attorney following an article in The
Philadelphia Inquirer in which he sharply disputed the veracity
of public statements made by the District Attorney. We reasoned
that the comments had been an "irreparable breach of confidence,"
and noted that "we could not expect a district attorney to run an
efficient office if his first assistant were free to impugn his
integrity in public." Id. at 565. However, we reached that
conclusion based on evidence that the First Assistant District
Attorney functioned as a virtual alter ego to the District
Attorney. He assisted the District Attorney in formulating
policy, administered the office on a daily basis, kept the
District Attorney informed about the performance of various
units, and acted as the District Attorney when the latter was
unavailable. Id. at 562. See also Propst v. Bitzer, 39 F.3d
148, 153 (7th Cir. 1994) (ample corroboration in record of
defendant's claim that speech highly disruptive of close working
relationships requiring loyalty and confidence), cert. denied,
115 S. Ct. 1400 (1995).
There was no evidence submitted by the City that
Watters' relationship with Commissioner Williams was comparable
to the "close working relationship" between the District Attorney
and his First Assistant. The City does not contend that Watters
and Williams interacted on setting policy on the wide range of
issues faced by the Department, and indeed the EAP appears to
have been a relatively discrete operation within the Police
Department. See Swineford, 15 F.3d at 1272-73 ("Proximity within
an organizational hierarchy is a significant factor in the
employer's demonstration that a public employee's speech had a
detrimental impact on a necessarily close working
relationship."); Zamboni, 847 F.2d at 79 (court must determine
"whether [plaintiff's] functional role in the prosecutor's office
was of such proximity to [his employer] that his speech destroyed
'a needed close working relationship'").
Watters enjoyed neither the level of authority nor the
degree of responsibility exercised by the First Assistant
District Attorney in Sprague, and he was further removed in the
chain of command, subordinate both to the Police Commissioner and
to the First Deputy Commissioner. Watters was required to abide
by the orders of his superiors. He needed their approval to
operate the EAP and, according to his own testimony, was unable
to make independent policy judgments. See Rankin, 483 U.S. at
390 ("The burden of caution employees bear with respect to the
words they speak will vary with the extent of authority and
public accountability the employee's role entails.").
Furthermore, nothing Watters was reported to have said
"impugn[ed] the integrity" of his superiors. See Roseman v.
Indiana Univ. of Pa., 520 F.2d 1364, 1368 (3d Cir. 1975), cert.
denied, 424 U.S. 921 (1976) (significant if speaker "called into
question the integrity of the person immediately in charge of
running a department"). The Philadelphia Inquirer article
conveys a straightforward difference of opinion over
implementation of an important Police Department program. The
City has never claimed any disruption from the appearance of
similar comments by Watters in the earlier article in The
Northeast Times. Nor is there evidence that Watters engaged in
the type of complaining and negative criticism of his superiors
within the workplace that the Supreme Court found likely to
disrupt working relationships in Waters. 114 S. Ct. at 1890-91.9
Finally, defendants argue that because of its public
safety role, a Police Department has a significantly greater
interest in regulating the speech of its employees than do other
public employers. See Shands v. City of Kennett, 993 F.2d 1337,
1344 (8th Cir. 1993), cert. denied, 114 S. Ct. 880 (1994);
Gasparinetti v. Kerr, 568 F.2d 311, 315-16 (3d Cir. 1977), cert.
denied, 436 U.S. 903 (1978). However, Watters was a civilian
employee and defendants have not shown why his speech was likely
to interfere materially with Department morale or public
confidence. See Rankin, 483 U.S. at 388-92 (civilian clerical
employee's comment about assassination attempt on President held
protected conduct); Zamboni, 847 F.2d at 78-79 (applying
9
. We note that there are no allegations that Watters' speech
was knowingly or recklessly false or that his speech was
motivated by animus. Different considerations obtain in such a
case. See Pickering v. Board of Educ., 391 U.S. 563, 574 (1968);
Swineford v. Snyder County, 15 F.3d 1258, 1272 (3d Cir. 1994);
Czurlanis v. Albanese, 721 F.2d 98, 106 (3d Cir. 1983).
identical disruption standard for evaluating speech of detective
in prosecutor's office as any other public employee); Rode, 845
F.2d at 1202 (comments in newspaper interview by civilian
clerical employee of state police department describing racial
animus held protected conduct).
In any event, "policemen, like teachers and lawyers,
are not relegated to a watered-down version of constitutional
rights." Garrity v. New Jersey, 385 U.S. 493, 500 (1967). This
court and others have recognized that "freedom of speech is not
traded for an officer's badge." Biggs v. Village of Dupo, 892
F.2d 1298, 1303 (7th Cir. 1990); see also O'Donnell, 875 F.2d at
1062. Thus we hold that the City did not make the requisite
substantial showing that Watters' speech was "in fact, likely to
be disruptive," Waters, 114 S. Ct. at 1887, and therefore there
was no basis for the district court to hold that Watters' speech
disrupted the proper functioning of the Police Department.
In our opinion in O'Donnell, we set forth the
appropriate procedure for this court to follow when the facts on
record relevant to the application of the Pickering balancing
test are undisputed. We stated there,
when considering the protected status of speech, an
appellate court must, in any event, make an independent
constitutional judgment on the facts of the case.
Connick, 461 U.S. at 150 n. 10, 103 S. Ct. at 1692 n.
10, 75 L. Ed. 2d 708 (1983); Czurlanis, 721 F.2d at
102. Because the undisputed facts in this record
dictate only one result, viz., that, on balance,
O'Donnell's speech here was protected by the first
amendment, we feel obligated to make that
determination. We emphasize, however, that our ruling
is based on the undisputed record before us on the
issues resolved.
875 F.2d at 1062.
In light of our conclusions that Watters' speech was on
a matter of public concern, and that the City has not met its
burden to show that the interest in the speech was outweighed by
the interests of the City, the outcome of the Pickering balance
is clear, and the district court erred in holding that the speech
was not protected by the First Amendment.
It does not follow that this mandates a holding that
Watters is entitled to judgment. There remain disputed issues as
to the reason for his termination. Although the City did not
contest on appeal that Watters was fired for his speech, there
was some testimony that might allow a jury to find that he was
terminated for insubordination because of his actions in
unilaterally cutting back certain services provided by the EAP.10
See Mt. Healthy, 429 U.S. at 287 (1977). Therefore, we rest our
decision on the protected status of the speech, the only issue
decided by the district court, and express no opinion as to any
issue remaining in the district court.
III.
CONCLUSION
10
. At trial Commissioner Williams testified, "I felt that his
employment as a -- continued employment in the City of
Philadelphia was not appropriate at this time because of the
gross negligence he had now indicated by stopping doing those
programs." App. at 629.
For the foregoing reasons, we will reverse the district
court's order granting judgment in favor of defendants pursuant
to Rule 50(a) and remand to the district court for proceedings
consistent with this opinion.