dissenting.
I respectfully dissent. In my view, the district court clearly erred in holding that the appellees did not violate Germann’s federal constitutional rights by denying him promotion to the rank of battalion fire chief in the City of Kansas City.
First, the record is clear that Germann was an excellent employee, that he ranked number one on the promotion list for battalion chief, that he received high marks on every efficiency report, that he frequently served as acting battalion chief, and that, on each such occasion, he efficiently carried out the duties of that position. Second, the record supports Germann’s contention that he always cooperated with the fire chief in carrying out his duties as fire captain and acting battalion chief. Third, there is no record of any disciplinary actions against Germann at any time during his over twenty-two years employment with the Kansas City Fire Department. Germann’s only problem was that he was the president of the local union and vigorously represented the Union’s position with regard to the reorganization of work shifts. The Union and Germann, as its president, had every right to vigorously present its position on this reorganization.
There is absolutely' no evidence in the record to support the district court’s finding that the morale of the department would be damaged if Germann was appointed fire chief. That conclusion is entirely speculative and is not supported by either written exhibits or oral testimony. Instead, one could just as reasonably draw the conclusion that appointment of Germann as battalion chief would restore harmony to the department because he was obviously qualified and had represented the Union and its members so vigorously.
What we come down to then is that the fire chief refused to promote Germann because Germann had led the Union’s opposition to the departmental reorganization. The district court and this Court close their eyes to this fact and hinge their rulings on Waas’s testimony that he objected to the tone of Germann’s May 11, 1977, letter and found it to be personally insulting. In my view, this is unadulterated nonsense. Germann was acting as president of the Union when he sent the letter to the chief and was expressing his views in plain, albeit vigorous, language understandable to every working man. Such language is not uncommon in labor-management disputes. See Hickman v. Valley Local School District Board of Education, 619 F.2d 606, 609 (6th Cir.1980).
The majority opinion states that
*767[although we agree that the May 11 letter addressed a matter of public concern, we nonetheless must consider the tone of the letter. “When a government employee personally confronts his ... supervisor, the employing agency’s institutional efficiency may be threatened not only by the content of the employee’s message but also in the manner, time or place in which it is delivered.” Givhan v. Western Line Consolidated School District, 439 U.S. 410, 415 n. 4, 99 S.Ct. 693, 696 n. 4, 58 L.Ed.2d 619 (1979). [Footnote omitted.]
The quoted footnote from Givhan, however, limits consideration of time, place and manner to private expressions. Id. In the case of public expression, such as the May 11 letter, “it is generally the content of his statements that must be assessed to determine whether they in any way either impeded the teacher’s proper performance of his daily duties * * * or * * * interfered with the regular operation of the schools generally.” Givhan, 439 U.S. at 415 n. 4, 99 S.Ct. at 696 n. 4. In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1084, 75 L.Ed.2d 708 (1983), the Court considered the time, place and manner of the disputed communication only because it “touched upon matters of public concern in only a most limited sense[.]” Id. at 154, 103 S.Ct. at 1693-94. “We caution that a stronger showing may be necessary if the employee’s speech more substantially involved matters of public concern.” Id. at 152, 103 S.Ct. at 1693. Here, the May 11 letter was squarely addressed to a matter of public concern and the letter’s strong language is directly traceable to Germann’s representation of his Union on a hotly disputed and emotional issue. Neither the letter’s content or tone, to the extent relevant, justifies Germann’s nonpromotion.
The fireman of the Kansas City Fire Department will receive only one message from the majority’s opinion. That message is: “It does not matter how hard you work or how well you do on promotional exams; if you act as the voice of your fellow employees in matters of great concern to them, then your chances of promotion are nil.” The interests of the Kansas City Fire Department will not be well served by such an attitude.