Beverly A. Azzaro v. County of Allegheny Tom Foerster, an Individual and Chairman, Allegheny County Commissioners and Wayne Fusaro, Beverly Azzaro

ROSENN, Circuit Judge,

dissenting in part.

I join in the majority opinion except as to Part III pertaining to the First Amendment issue. Although the evidence is tenuous, I agree that there are sufficient facts in dispute which, if the plaintiffs version is believed, could lead a reasonable factfinder to conclude that Allegheny County discharged her in retaliation for her accounts of harassment. Summary judgment on her Title VII claim, therefore, was inappropriate. Howev*982er, I do not agree with the majority that the evidence was sufficient to conclude that the plaintiffs speech was a matter of public concern and therefore protected by the First Amendment. Thus, I would affirm the grant of summary judgment on her § 1983 claim.

I do not regard the First Amendment to be of lesser importance than does the majority. I believe, however, that Azzaro’s conversation with Fox at a social party and her meeting with Sirabella for advice or assistance in connection with the potential termination of her position did not constitute matters of public concern that command First Amendment protection. I fear that the majority’s expansion of protected speech for public employees not only is contrary to the decisions of the Supreme Court and our sister courts, but has the dangerous effect of elevating personal and confidential conversation, which in form, content, and context is not of public concern, to the level of constitutionally protected speech. The consequence may seriously impede normal discourse and create management problems in the public workplace. I, therefore, respectfully dissent from Part III of the majority opinion.

I.

Not all speech is protected by the First Amendment and “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 v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). This is not to say that a public employee, like any citizen, may not have a legitimate interest in speech on public matters. But as Justice O’Connor recently observed in writing the plurality opinion for the Supreme Court of the United States, “even many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees.” Waters v. Churchill, 511 U.S. 661, 672, 114 S.Ct. 1878, 1886, 128 L.Ed.2d 686 (1994).

Justice O’Connor further noted that the Court has recognized that a government employer has a certain latitude in barring its employees from offensive utterances to the public and in curbing speech that creates disruption, disorder, or confusion among employees in the workplace. “Similarly, we have refrained from intervening in government employer decisions that are based on speech that is of entirely private concern.” Id. at 674, 114 S.Ct. at 1887. See also Connick v. Myers, 461 U.S. 138, 146-49, 103 S.Ct. 1684, 1689-91, 75 L.Ed.2d 708 (1983). And the presence of sexual content is not sufficient in itself to make private speech a matter of public concern.

In Pickering, the Supreme Court set forth a framework for analyzing a claim of a First Amendment violation brought by a public employee disciplined because of speech. The Court declared that employees had a First Amendment right to speak on issues of public concern. There, a teacher wrote a letter to a local newspaper in connection with a proposed tax increase by the school board in which he criticized past proposals to raise new revenue for the schools. He also criticized the priority of school sports, the neglect of the deteriorating physical condition of school buildings, and the insufficient appropriation for teachers’ salaries. Whether a school system requires additional funds and their alleged profligate use is a matter of legitimate concern for the community as a whole and “[o]n such a question free and open debate is vital to informed decisionmak-ing by the electorate____ Accordingly, it is essential that [teachers] be able to speak out freely on such questions without fear of retaliatory dismissal.” Pickering, 391 U.S. at 571-72, 88 S.Ct. at 1736.

II.

In explicating its earlier decision in Pickering and analyzing the specific problem then before it, the Court in Connick again considered the First Amendment right of an employee to freedom of speech and the State’s interest as an employer “in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. at 1735. In returning to the public employee-employer balancing problem raised earlier in Pickering, the Court recognized the First Amendment rights of public *983employees but at the same time demonstrated its concern for the public employer’s responsibility to manage efficiently its operations and fulfill its public obligations.. The Court noted that the reiteration in Pickering’s progeny of the right of a public employee to comment “as a citizen” upon matters of public concern at the same time reflects “the common-sense realization that government offices could not function if every employment decision became a constitutional matter.” Connick, 461 U.S. at 143, 103 S.Ct. at 1688 (footnote omitted).

Therefore, the Connick Court in determining that most of Myers’ questionnaire could not be fairly characterized as constituting speech on a matter of public concern stated:

When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.

Id. at 146, 103 S.Ct. at 1690.

This court also has previously noted that speech is a matter of public concern when it fairly can be considered as relating to any matter of political, social or other concern to the community. Swineford v. Snyder County, 15 F.3d 1258, 1270-71 (3d Cir.1994); Holder v. City of Allentown, 987 F.2d 188, 195 (3d Cir.1993). In some situations, speech pertaining to sexual harassment may be a matter of community concern and thus implicate the First Amendment. In other situations, it may be simply a matter of private concern. See David v. City & County of Denver, 101 F.3d 1344, 1357 (10th Cir.1996).

This case bears a similarity to Saulpaugh v. Monroe Community Hosp., 4 F.3d 134 (2d Cir.1993). There, a public hospital employee sued her employer under Title VII and alleged a First Amendment claim under § 1983, as well as state law claims. The plaintiff testified that immediately after she was hired her supervisor sexually harassed her, including making threats of discharge, and ultimately terminated her for resisting his proposals. The district court found the employer liable under Title VII based on sexual harassment and retaliatory discharge but dismissed the First Amendment claim because plaintiffs complaints were personal in nature and generally did not implicate matters of public concern. They did not involve a debate on issues of sex discrimination, and her suit did not seek “‘relief against pervasive or systemic misconduct by a public agency or public officials,’ ” nor was her suit “ ‘part of an overall effort ... to correct allegedly unlawful practices' or bring them to public attention.’ ” Id. at 143 (quoting Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412, 420 (7th Cir.1988)).

The majority concludes that Azzaro’s conversations with Fox and Sirabella constituted protected speech under the First Amendment. I believe that a careful analysis of the form, content and context of these two conversations concerning a single incident will show that these conversations did not involve matters of public concern. In fact, the entire record shows a pervasive desire by Azzaro not to “go public,” and although she claims she initially discussed the incident at times with her friends, it was always with an attitude of entre nous. The form of her communications with both Fox and Sirabella were not in the nature of complaints or formal reports, either oral or written.

The context of Azzaro’s communications with her supervisor, Tom Fox, was at a private party at the home of a friend who was not a county employee. As to the content, they were discussing the Anita Hill hearings, and Azzaro told of her alleged incident with Fusaro to defend her position with respect to Hill. The time was four months after the alleged Fusaro incident. The timing, the social setting, the content, and the context of this conversation were unequivocally personal and social. Moreover, when Fox attempted to convince Azzaro to take the matter up with her supervisor, she refused. Concerned with the potential danger to her job, she continued to refuse until Fox, against her wishes, reported the incident.

As for her conversation with Sal Sirabella, the Director of Administration, Azzaro acknowledges that this conversation also was of a personal nature. She did not communicate *984with Sirabella to complain or officially report the alleged harassment. Rather, she approached him several months after the alleged incident to seek personal advice on how to avoid losing her job.

In neither Azzaro’s conversation with Fox or with Sirabella was there any debate or even implication concerning sexual policies or practices in the Allegheny County Department of Development where she was employed. She did not complain of any personal or systemic misconduct by her department or officials in her department. Although the majority describes her conversations with Fox and Sirabella as “reports,” she made no complaints whatsoever to Fox or even Sira-bella, either written or oral, nor did she submit any formal written statement to Fox or any other supervisor in her department.

In context, it is apparent that Azzaro’s statements were only tangentially about her alleged experience with Fusaro, and in no way focused on harassment as a matter of public concern. Uppermost in her mind was her concern for her job. Her speech utterly lacked political content, the protection of which was foremost in the minds of the framers of the First Amendment, or any element of social advocacy. The First Amendment was designed by its framers “ ‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ ” Connick, 461 U.S. at 145, 103 S.Ct. at 1689 (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308-09, 1 L.Ed.2d 1498 (1957)).

Azzaro’s speech added nothing to improve the administration of the government of Allegheny County. Her speech made no effort to improve working conditions for her fellow employees, nor did it attempt to evaluate the performance of her department or the county. The Court in Connick rejected most of Myer’s questionnaire as not being an expression of public import in evaluating her employer’s performance as an elected prosecutor, noting:

Myers did not seek to inform the public that the District Attorney’s Office was not discharging its governmental responsibilities in the investigation and prosecution of criminal eases. Nor did Myers seek to bring to light actual or potential wrongdoing or breach of public trust on the part of Connick and others____ While discipline and morale in the workplace are related to an agency’s efficient performance of its duties, the focus of Myer’s questions is not to evaluate the performance of the office but to gather ammunition for another round of controversy with her superiors.

Id. at 148, 103 S.Ct. at 1690-91. The purpose of Azzaro’s speech, her general conduct with her employer, and her legal action concerned only herself and keeping, as she testified, her job. She had no intention to make her communications with Fox or Sirabella public. Even if they had been released to the public, they would have revealed only an alleged single incident on the part of a single co-worker to sexually harass her.

The content of Azzaro’s conversations with Fox and Sirabella made no effort to personally complain or publicly expose wrongful practices and objectionable policies on the part of her department or county officials. For over a year after the incident, she intermittently talked to her friends about the alleged Fusa-ro incident but deliberately avoided going public. She testified that she spoke to her personal friends:

I told it just to get it out. I mean I was carrying it around all the time, and it was like a release when I told someone.

Azzaro Dep. at 114. However, she had no intention of publicizing the harassment, nor of warning other women of the danger of harassment. In fact, when one friend recommended that Azzaro file a complaint with the EEOC, she refused. Azzaro Dep. at 113. In content, in form and in context, the two conversations pertained to a private matter.

As in Callaway v. Hafeman, 832 F.2d 414 (7th Cir.1987), the plaintiffs conversations were limited to “oral statements intended to be purely confidential,” and were not for public information or debate. Id. at 417. She was not attempting to speak out as a citizen concerned with conditions or problems confronting Allegheny County; “instead, she spoke as an employee attempting to resolve her private dilemma,” id., even when she *985spoke to Sirabella and when she conversed with her friends.

In applying the law to the facts of this ease, the majority asserts that the alleged Fusaro incident was a form of “gender discrimination” which “when practiced by those exercising authority in the name of a public official, is as much a matter of public concern as racial discrimination practiced under similar circumstances.” Maj. op. at 978. But the issue before us is neither Fusaro’s alleged behavior nor any gender discrimination by the County. The issue is whether, in addition to her Title VII claim for a retaliatory discharge, Azzaro has a First Amendment claim against the County based on her conversations with Fox and Sirabella.

Proceeding with its analysis, the majority speculatively infers that:

Azzaro’s communications to Fox and Sira-bella brought to light actual wrongdoing on the part of one exercising public authority that would be relevant to the electorate’s evaluation of the performance of the office of an elected official.

Maj. op. at 978. However, Azzaro’s conversations with Fox and Sirabella were intended for their ears only, and not the electorate. The record is also silent with respect to any knowledge on the part of the public of these conversations until, presumably, this lawsuit was filed. Additionally, there is no basis whatsoever for the majority’s highly speculative conclusion that these two confidential conversations pertaining to Fusaro would be relevant to the electorate’s evaluation of the performance of Commissioner Foerster’s office.

Recognizing the private nature of Azzaro’s conversations, the majority cites Givhan v. Western Line Consol. Sch. Dist., 489 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979), and Connick, 461 U.S. at 146, 148, 103 S.Ct. at 1689-90, 1690-91, for the proposition that if the content of a private communication would be relevant to the process of self-governance if disseminated to the community, the communication is nonetheless public concern speech even though it occurred in a private context. Maj. op. at 977. This is correct if the content and circumstances involve a matter of public concern. However, private communication rather than public may be a factor for consideration in determining whether the content of the conversation is of public concern. Here, not only were the communications private and confidential, but the content personal. Moreover, as previously stated above, Azzaro made it clear that the conversations were not intended for public dissemination or for action by her employer. Therefore, they could have no relevance to any community evaluation of county government and their content could not be a matter of public concern because they related only to a single incident of personal behavior of a single fellow employee, not to the performance of any elected official.

In Givhan, the school district dismissed the plaintiff, a black junior high school English teacher, who sought reinstatement on the ground, inter alia, that her dismissal infringed her right of free speech under the First and Fourteenth Amendments. The district court found that the primary reason for her. dismissal “was her criticism of the policies and practices of the school district, especially the school to which she was assigned to teach.” Id. at 413, 99 S.Ct. at 695. Neither the Supreme Court nor the district court had difficulty in concluding that the content of the speech by Givhan focused on “the policies and practices of the school district.” Azzaro’s conversations only described Fusaro’s conduct — a single incident — and had no reference whatsoever to policies, practices, or any wrongdoing of Allegheny County or its agencies. The content in Givhan indisputably was of public concern; Azzaro’s content was not.

Givhan’s communications to her superior, though private in nature, in no way limited their dissemination to the public. Azzaro did; she insisted on confidentiality. As the court recently iterated in Waters, 511 U.S. at 674, 114 S.Ct. at 1887, “we have refrained from intervening in government employer decisions that are based on speech that is of entirely private concern.” Azzaro’s conversations were entirely of private concern.

Thus, in David v. City & County of Denver, 101 F.3d 1344 (10th Cir.1996), also a Title VII and § 1983 suit against county *986officials charging sexual harassment' and retaliatory discharge for exercising the right of free speech, the district court held that the plaintiffs complaints about sexual harassment did not address matters of public concern. On appeal, the Court of Appeals distinguished between speech pertaining to a public agency’s discharge of its governmental responsibilities and speech relating to internal personnel disputes and working conditions. It also considered the motive of the speaker to ascertain whether the speech was calculated to redress personal grievances, and therefore spoken as an employee, or to address a broader public concern, and therefore spoken as a citizen. David, 101 F.Bd at 1355. The court concluded that plaintiffs complaints to her supervisors and her letter focused “on the conditions of her own employment” and in neither her EEOC complaints nor her letter to the City Attorney did she allege other employees had been subjected to harassment or that harassment or retaliation had interfered with the department’s performance of its governmental responsibilities. Id. at 1356.

Likewise, in Morgan v. Ford, 6 F.3d 750, 754 (11th Cir.1993), the plaintiff left her job with the Georgia Department of Corrections because her supervisor subjected her to sexual harassment in the workplace. The Court of Appeals in this case also affirmed the district court’s grant of summary judgment for the supervisors. Plaintiff did not relate her complaints to the public or attempt to involve the public. Her “speech was driven by her own entirely rational self-interest in improving the conditions of her employment. Her complaints about Ford’s behavior, as serious as they were, centered around her private matters.... As an employee grievance, Morgan’s speech was not a matter of public concern.” 6 F.3d at 755.

III.

I fear that the majority’s extension today of the constitutional protection of free speech goes far beyond what the framers of the First Amendment envisioned. It will add to the manifold complications already existing in administering all types of government, especially sectors of government with a large number of employees as has Allegheny County, and enlarge needlessly its cost by the threat of mischievous litigation. We should not become entangled in every employment dispute merely because there are allegations of suppression of free speech. Callaway, 832 F.2d at 416. Azzaro has not produced sufficient evidence from which one can reasonably conclude that, in form, content, or context, her speech was a matter of any public concern.1 Therefore, I respectfully dissent on the First Amendment issue.

. Because Azzaro has not shown that her conversations with Fox and Sirabella were matters of public concern, I do not deem it necessary to conduct a balancing of interests as required by Pickering and Connick, by weighing Azzaro's interest when speaking about a matter of public concern as against the government’s interest in the efficient conduct of its operations and the effective services it performs.