Schuler v. City of Boulder

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 7 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

CAROLINE G. SCHULER

Plaintiff-Appellee,

v.

CITY OF BOULDER, a Colorado
No. 98-1086
municipal corporation,

Defendant,

ALAN QUILLER and LINDA
KOTOWSKI,

Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 96-Z-2896)

Cathy Havener Greer, Ritsema & Lyon, P.C., Denver, Colorado ( and Malcom S. Mead, Hall
& Evans, L.L.C., Denver, Colorado, with her on the briefs), for Defendants-Appellants.

Ronald D. Jung, Jung & Assoc., P.C., Boulder, Colorado, for Plaintiff-Appellee.

Before BRORBY, HOLLOWAY and BRISCOE, Circuit Judges.

HOLLOWAY, Circuit Judge.

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 This controversy concerns a First Amendment claim of Plaintiff-Appellee Caroline

Schuler, inter alia, against her employer, the City of Boulder, Colorado, and two of her

superiors. A defense of qualified immunity asserted by these two individual defendants was

rejected below, and this appeal followed.

I

A

Schuler is a former employee of the City of Boulder, working full-time as a

“facilities service assistant” for the Parks and Recreation Department’s North Boulder

Recreation Center (NBRC). I App. (tab 1 at 1; tab 2 at 1). Schuler’s supervisor at the

NBRC was defendant Alan Quiller. NBRC’s manager, defendant Linda Kotowski, who

was the Recreation Superintendent for the Parks and Recreation Department, was

Quiller’s supervisor. I App. (tab 1 at 1).

In November 1994 Schuler became concerned whether a janitor at the NBRC was

spying on women from a crawlspace in the ceiling above the women’s locker room.

Schuler told Kotowski of her suspicions, III App. (tab A at 242-43), and Kotowski

informed the Boulder police and instructed Schuler not to discuss her suspicions with

anyone else, including Quiller.1 III App. (tab B at 143; tab C at 43). On December 15,

The record indicates that Quiller and the janitor were personal friends. III App. (tab
1

A at 302-03; tab J at 7).

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1994, Schuler telephoned the police, who came to the NBRC, investigated the scene and

detained the janitor on suspicion of third degree sexual assault. I App. (tab 3 at 5).

Charges were not filed against the janitor but the police continued an investigation. II

App. (tab 2 at 229).

Immediately following the incident, a committee was established to investigate the

matter and determine a course of action. I App. (tab 3 at 5). Quiller was made the

chairman of the committee. After conducting the investigation, the committee

recommended that the janitor not be terminated but be suspended without pay for two

weeks. I App. (tab 3 at 6). Quiller accepted the recommendation and suspended the

janitor.

During this time, NBRC employees were cautioned not to spread rumors about the

“peeping Tom” incident. III App. (tab F at 4). Schuler, who believed that the janitor

should have been terminated from his position, expressed her dissatisfaction in a seven

page memorandum to Kotowski. . II App. (tab at 421); III App. (tab J at 1-7). In

particular, Schuler voiced concern over Quiller’s objectiveness in handling the

investigation because of his personal friendship with the janitor. III App. (tab A at 302-

03; tab J at 7). Moreover, Schuler found inconsistencies between the Review

Committee’s report and the police report regarding the incident. III App. (tab J at 2).

Prior to the “peeping Tom” incident, Quiller had promoted Schuler to the position

of daytime facilities services assistant, which included the responsibilities of

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bookkeeping, payroll and charge-back duties for NBRC. Schuler did not begin her work

as daytime facilities service assistant until after the janitor’s arrest. When she started her

new position, she discovered that the bookkeeping duties had been given to a newly hired

evening facilities service assistant. Schuler viewed the removal of the duties as a “slap in

the face.” III App. (tab A at 44).

On January 10, 1995, Quiller called Schuler into his office and verbally berated her

for approximately an hour. II App. (tab 1 at 159-60). Quiller told Schuler that he believed

he could no longer work with Schuler and suggested she find another job. Schuler left the

meeting in tears, III App. (tab A at 230-31; tab F at 3), and on January 13, 1995,

submitted a complaint form, through her union representative, against Quiller. III App.

(tab A at 324).

At a farewell party for a colleague, Schuler discussed with other NBRC employees

the “peeping Tom” incident. II App. (tab 1 at 408). Following the party, on January 24,

1995, Schuler received a written reprimand, I App. (tab 1 at 23), while the others who

participated in the discussion were not reprimanded. III App. (tab F at 5). Schuler

contacted an attorney, who contacted Boulder’s City Attorney’s Office on April 7, 1995.

Following the communication between Schuler’s counsel and the City Attorney’s Office,

the written reprimand was withdrawn from Schuler’s personnel file. III App. (tab A at

437-38).

On March 1, 1995, Kotowski met with Schuler regarding the “peeping Tom”

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incident. Kotowski told Schuler not to discuss the incident with others but to write a

memorandum outlining Schuler’s views about the committee’s findings. Schuler

submitted the memorandum on March 13, 1995. III App. (tab J at 1). Schuler met with

Kotowski and Quiller two days later to discuss Schuler’s scheduled performance review.

III App. (tab A at 347). Schuler received poor marks. III App. (tab K at 5-10). Her

review was also the lowest of any facilities services assistant within the previous five

years.2 Other employees who saw Schuler’s review believed that her evaluation

contained false and negative statements regarding Schuler’s job performance. III App.

(tab H at 4). Schuler filed a grievance to have the evaluation removed from her personnel

file. III App. (tab M at 1).

On May 25, 1995, a local television station conducted an investigation of the

“peeping Tom” incident. III App. (tab A at 74). The station interviewed Schuler and

attempted to interview the janitor. The same day as the television interview, Kotowski

notified Schuler that Schuler was to be transferred to a different recreation center

effective June 5, 1995. I App. (tab 2 at 9). The transfer did not affect Schuler’s title,

compensation or duties. I App. (tab 1 at 62, 122). However, Schuler stated she did not

want to leave her position. III App. (tab A at 481). Moreover, the involuntary transfer

appeared to be contrary to city policy for filling such vacancies. III App. (tab E at 14-15).

Schuler’s score was lower than the janitor’s score covering the two weeks he was
2

suspended for the “peeping Tom” incident. III App. (tab B at 402).

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 On June 23, 1995, Schuler filed a grievance to protest the involuntary transfer. I

App. (tab 1 at 10; tab 2 at 10). During Schuler’s last day at NBRC, Quiller called Schuler

into his office, III App. (tab B at 405) and, with another NBRC employee present,

verbally chastised her. III App. (tab A at 129; tab C at 114). Schuler was then transferred

to the East Boulder Recreation Center (EBRC). Schuler stayed with EBRC at that point

but then resigned in August 1996.

B

In November 1996, Schuler filed the instant suit against the City of Boulder,

Quiller and Kotowski, alleging unconstitutional retaliation against her in violation of her

First Amendment rights, wrongful discharge, violation of rights under the Colorado

Constitution and breach of express and implied contracts. In May 1997, a motion for

summary judgment was filed by Quiller and Kotowski, asserting qualified immunity, inter

alia. As noted below, the district judge dismissed the claim for constructive discharge

and certain contract claims but denied the motion with respect to the First Amendment

claim, rejecting the qualified immunity defense.

The judge said the question before her was whether Schuler had a First Amendment

right to make certain statements critical of Schuler’s government employer, the City of

Boulder, and two of her supervisors and whether that right was clearly established at the time

defendants took purported adverse employment actions against Schuler. The judge stated

that:

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 Now what we do have and what will withstand summary
judgment scrutiny is the first claim. The question is whether she
had a First Amendment right to make the statements she did, and
whether those are protected and whether those rights
outweighed defendants’ interest in keeping an even or
productive office environment, and they do. First Amendment
rights are important. It appears to the Court that there is no-- on
the first claim--no qualified immunity defense. It certainly has
been known for a long time, and it is well established that
employees can speak out and exercise First Amendment rights
and cannot have discriminatory actions taken against them
because of this, so as far as the first claim is concerned, the first
claim stands . . .

I App. (tab 12, p. 6). An unpublished written order granting in part and denying in part the

motion for summary judgment with respect to Schuler’s First Amendment rights was entered

on February 19, 1998. I App. (tab 11). The claim for constructive discharge and certain

contract claims were dismissed.

Quiller and Kotowski filed the instant appeal challenging the district court’s order

which denied their qualified immunity defense and held that their actions taken against

Schuler violated clearly established constitutional rights of Schuler. As we explain below,

this appeal turns, however, on whether the defendants’ actions as alleged by Schuler

amounted to unconstitutional retaliatory infringements on Schuler’s First Amendment rights.

Schuler’s right to speak out in criticism of defendants’ actions is not the real area of dispute

here. We have jurisdiction of the appeal pursuant to 28 U.S.C. § 1291 under the collateral

order doctrine, Mitchell v. Forsyth, 472 U.S. 511 (1985), and affirm.

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 II

A

The central issue before us is whether the allegedly retaliatory actions of

defendants Quiller and Kotowski violated plaintiff Schuler’s clearly established First

Amendment rights. The critical time frame begins in January 1995 when Quiller

suspended the janitor for two weeks without pay. I App. (tab 1 at 20). Shortly thereafter

Quiller called Schuler into his office and had an angry discussion with Schuler. Then on

January 20 at a party for city employees, Schuler discussed the “peeping Tom” incident

and questioned the response that had been made to the incident. On January 24,

Kotowski gave a reprimand verbally to Schuler and a written memorandum to Schuler

cautioning that “any further breaches of confidentiality will be addressed by further

discipline.” I App. (tab 1 at 23). Thus it is the early part of 1995 on which we must

focus to determine what was “clearly established” in the constitutional decisions on the

First Amendment rights of a party such as Schuler.

For some years before this critical time period it had been settled that a State could

not condition public employment on a basis that infringes the employee’s protected

interest in freedom of expression. Connick v. Myers, 461 U.S. 138, 142 (1983);

Pickering v. Board of Education, 391 U. S. 563, 568 (1968). The protected freedom of

expression of public employees includes their interests as citizens “in commenting upon

matters of public concern.” The defendants do not raise any question under the Pickering

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balancing test by which the employee’s right to speak on matters of public concern is

balanced against the government employer’s interest in efficiency. Pickering, 391 U.S. at

568; Summary of Argument, Appellant’s Opening Brief at 8-9. We are satisfied that

Schuler’s speech meets the “public concern” test. See Prager v. LaFaver, 1999 WL

390859 *1, *4 (10th Cir. 1999)(“‘Speech which discloses any evidence of corruption,

impropriety, or other malfeasance on the part of [public] officials, in terms of content,

clearly concerns matter of public import.’”)(quoting Conaway v. Smith, 853 F.2d 789,

796 (10th Cir. 1988)).

Instead of contending that matters of public concern were not touched upon by

Schuler’s criticisms of the defendants’ handling of the “peeping Tom” incident,

defendants argue that their alleged retaliatory actions against Schuler were not sufficiently

onerous to rise to the level of clearly established constitutional violations of Schuler’s

First Amendment rights. Appellants’ Opening Brief at 8-9. Defendants maintain that it

was unclear in 1995 and remains unclear today whether the alleged conduct they took

against Schuler rose to the level of a constitutional violation. Id. We disagree.

B

While the defendants say the district judge applied an incorrect standard in finding

what law was clearly established, we perceive no uncertainty on this question. We have

said that a right is “clearly established” when “the contours of the right [are] sufficiently

clear that a reasonable official would understand that what he is doing violates that right.”

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Horstkoetter v. Department of Public Safety, 159 F.3d 1265, 1278 (10th Cir. 1998)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The plaintiff need not show

that the very action in question was previously held unlawful, but she must demonstrate

that there is a Supreme Court or Tenth Circuit decision on point, or that the clearly

established weight of authority from other courts is the law, as the plaintiff maintains.

Horstkoetter, 159 F.3d at 1278. We require some, but not identical, correspondence

between the cases cited and the factual situation in the case at hand. Id.

Plaintiff relies on Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). There

the Court determined that a government employer’s conduct in retaliation against the

exercise of a protected right may be actionable when it involves promotion, transfer,

recall after layoff, and hiring decisions, although not amounting to termination of

employment or the substantial equivalent of dismissal. Id. at 75. The employer’s actions

which were challenged were decisions based on party affiliation or support. The Court

held:

We therefore determine that promotions, transfers, and
recalls after layoffs based on political affiliation or support
are an impermissible infringement on the First Amendment
rights of public employees.

Id. at 75.

We are satisfied that this court’s application of the protective principles from

Rutan had clearly established the contours of First Amendment rights so as to cover

plaintiff Schuler’s actions as of the critical time frame in 1995 for this case. In Dill v.

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City of Edmond, 155 F.3d 1193, 1204-05 (10th Cir. 1998), we decided that in June 1992,

the protected nature of a police officer’s First Amendment rights was such that when he

spoke out about the existence of exculpatory evidence concerning a murder case, he was

protected from retaliatory actions in transferring him from a detective position to patrol

officer. In Dill, we cited Rutan and Wren v. Spurlock, 798 F.2d 1313, 1318 (10th Cir.

1986), and held that in June 1992, the law was clearly established so as to defeat a

qualified immunity defense there.

We further noted in Dill that Rutan had made clear that there were deprivations

less harsh than dismissal which nevertheless violated a public employee’s rights under the

First Amendment. Dill, 155 F.3d at 1205. In Morfin v. Albuquerque Public Schools, 906

F.2d 1434 (10th Cir. 1990), the plaintiffs were school teachers who filed a grievance

against the school’s principal and made complaints concerning the principal to one

defendant, the principal’s supervisor. The plaintiffs were subjected to substantial

harassment and abuse, one being transferred to another school and another not having her

contract renewed. We held that such conduct on the part of the defendants violated the

plaintiffs’ protected First Amendment right of free speech. Id. at 1437-38. We rejected

the defendants’ apparent position that “only adverse employment decisions, such as

termination, suspension, or transfer, in retaliation for constitutionally protected speech are

illegal. Actions short of an actual or constructive employment decision can in certain

circumstances violate the First Amendment.” Id. at 1437, n. 3.

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 In the instant case the record shows that defendants retaliated against plaintiff

Schuler by:

(1) removing job duties from Schuler, “specifically payroll which is important
to get accurate.” III App. (tab A at 43-45);

(2) giving Schuler a written “reprimand,” dated January 24, 1995 referring to
Schuler’s talking about the incident at NBRC with several other staff
members. I App. (tab 1 at 23);

(3) giving Schuler a low score on her performance evaluation, below that
received by the janitor while he was suspended. III App. (tab K at 5-10);
and

(4) involuntarily transferring Schuler to another facility, the East Boulder
Recreation Center, although with the same title and responsibilities. I App.
(tab. 1 at 62); III App. (tab A at 528-29).3

We are convinced that under the holding of Rutan, and our precedents which we

have analyzed, it was clearly established as of 1995 that the defendants’ alleged conduct

in retaliation for Schuler’s protected speech was actionable. Hence the district judge

properly rejected the qualified immunity defense and properly denied the defendants’

motion for summary judgment on Schuler’s First Amendment claim. Accordingly her

order denying summary judgment is AFFIRMED.

3
The fact that Schuler subsequently enjoyed her new position does not defeat her First
Amendment claim for the action taken against her earlier. At the time the defendants
transferred Schuler, she did not want to be moved to the new facility.

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