*1 nothing The district court ruled that meetings “that Beverly [for
record indicated A. AZZARO agendas prepared] which the were involved agenda any partic- discussion or items about litigation meetings
ular or that the were in ALLEGHENY; COUNTY OF Tom Foer anticipation litigation nor do the docu- ster, Chairman, an individual and Alle any legal opinions, ments disclose advice or gheny County Commissioners Instead, legal given.” or that advice was the Wayne Fusaro, “meetings court ruled that the were in the product safety meetings, legal
nature of Beverly Azzaro, Appellant. department meetings.” As our discussion clear, agendas prepared makes were No. 95-3253. anticipation litigation. agendas That the is, Appeals, United States Court of necessarily legal do include advice as a law, Third Circuit. provided, matter of irrelevant as we note above, they prepared anticipation were Argued Dec. 1995. Moreover, litigation. import, again it is of no law, meetings as matter of for Reargued En Banc Dec. 1996. agendas prepared which the were not April Thus, Decided legal department meetings. the dis- (a clearly trict part court erred function in error)
legal concluding agendas that the prepared anticipation
were not litiga- case,
tion. In this context which the
agendas change were discussed does not preparation.
reasons for their sum,
In product we conclude that the work
doctrine, 26(b)(3), protects as codified in Rule agendas discovery.
V. CONCLUSION foregoing, view of the the order of the
district court dated December 1996 will part
be reversed in and the case remanded to
the district deny court with directions to
discovery of stamped the documents 6680-82, 13882, 14236,
Bates numbers entirety, deny
21831 in their discovery and to
of the handwritten notations on the docu- stamped
ment
with Bates number 14241.
gation
prepared
protects
prepared
any previous
which the material was
material
liti-
present
litigation.
Jury
See In re Grand
Pro-
gation,
only previous litigation
related to the
ceedings,
policy, an Meanwhile, growing Hohman was con- bring the mat- harassment “should to sexual relationship cerned that his with Commis- of his or her ter the immediate attention deteriorating sioner Foerster was because report, Id. supervisor.” Following such longer sought input Foerster no his or ad- Opportunity Di- County Equal Employment meeting vice. Hohman scheduled a required “promptly investigate rector is December, Commissioner Foerster 1991 to *4 possible” confidential a manner as ... in as address concerns. invited his these Foerster report a to the Director of and to submit assistants, Kramer, executive Fusaro to and Id. It is thirty days. within Administration meeting, During attend. the course of the of Administration who autho- the Director problems Hohman stated that he “had with appropriate to “take corrective action.” rized people surrounding him- [Foerster] Id. with, Wayne self’ such as Fusaro. Hohman' report immediately meeting, the sex- at the Azzaro did testified that he said Fusaro harassment incident with to ual Wayne potentially ... has a sexual Fusaro However, daugh- tell her supervisor. she did coming against case him from harassment occurred, day it of the incident on the ters my employee who cannot office and a she told her husband friend the and employee given name has not because following day. husband She and her decided name, permission me to it occurred but report at that time not matter Commissioner, right upstairs office, in this pursue they that it further for fear could lose job daughters. for her over summer jobs. their App. Kramer 361-62. Both Foerster and finally did tell her In October Azzaro account, testifying a slightly offered different Fox, Tom the incident. supervisor, She possible lawsuit that Hohman mentioned brought the to Fox’s attention at first matter say did not that it con- Fusaro but Anita during Hill’s party, discussion allegations cerned of sexual harassment testimony at the Thomas confirma- Clarence any regarding the incident offer other details hearings. expressed Fox shock and However, tion alleged or the victim. both men report pur- Azzaro to the incident and urged case under oath in a related testified through proper channels. The sue it of sexual that Hohman accused Fusaro Monday, into following called her his of- he meeting. App. that 433.1 harassment at story, fice, repeat asked her and meeting taking place, Just this again pressed report once the incident incident to reported Azzaro the harassment Department Director of the Devel- Administration, Sal Director if opment, told her that Joe Hohman. He Sirabella, ultimately responsible the official it, report obliged he would be she did reports of harassment reviewing for sexual him not to do on his own. Azzaro asked so take. deciding action to what corrective him, so, my “I telling do ... seared for [am] do, him to When he what she wanted asked job job.” App. 163. my husband’s replied: “I don’t what to do. she know App. why That’s I’m here.” 146-47. Sira- Subsequently, Fox Hohman himself. told it alone allegedly replied, “[L]et’s leave doing, impressed upon Hohman that bella so he now____” testified App. 147. Azzaro telling him and that he was in confidence impermissibly discharges in retalia- their were case initiated other former That related Brimmeier, County Department employees Allegheny support anti- of Joe tion for their Development discharged when their prothonotary. See Carver Foerster candidate positions same were eliminated at the time as Foerster, (3d Cir.1996). 102 F.3d These other claimed that Azzaro’s. Kramer, keep Harry that she did not ask Sirabella to their Foerster’s other execu- According Accordingly, granted conversation tive assistant. Kovac confidential. to Sira- bella, however, permission appointed Chapman, his keep Azzaro asked him to John Employee another content of Relations their conversation confidential. Azzaro, Department, to Brusco. meeting Mr. assist who attended Sirabella, that thought also indicated he his February April Sometime between prefer wife told Sirabella that “she’d him to 1992, Chapman and Brusco list reviewed the keep App. it confidential.” 225. Sirabella of Department Development employees did not take action. request. accordance with Fusaro’s As so, did Brusco identified certain names as phoned That evening, Donna Brusco Azza- pro-Foerster alleg- or anti-Foerster. Azzaro spoken ro home. She had Fusaro about es the 1st of anti-Foerster names was the incident in Commissioner Foerster’s of- Indeed, target. “hit list” was a she fice. Brusco told Azzaro that Joe Hohman Chapman testified he had heard Fusaro had been in Commissioner Foerster’s office say on more than one occasion that Brimmei- day, “extremely up- that he had been supporters er against.” would be “retaliated set,” screaming and that he “was at Commis- App. Chapman 273. When and Brusco Wayne sioner Foerster that [Fusaro] was name, Chap- according reached Azzaro’s pervert.” App. 168. Brusco said that Fusa- man, said, going get Brusco “We’re ro had upset been too to tell her all the *5 App. bitch.” 279. details. why She then asked Azzaro she had gone day. Subsequent- to see Sirabella Meanwhile, in George March Braun ly, Fusaro asked Sirabella “three or four replaced Hohman as Director Depart- of the times” what the of purpose Azzaro’s visit had Development. ment of Braun the caused App. been. 172. Department Development of to enter into agreement Department with the federal of alleges Azzaro that she was fired in retalia- (HUD) Housing Development and Urban reporting tion for her of the Fusaro incident. required County which department the to Azzaro, According to this retaliation ini- spend permitted less than the amount on tiated began Fusaro and Brusco. Fusaro expenses years, administrative for three to by calling Kovac, Don who was the Director offset in- expenses excess administrative of Employee during Relations the relevant in prior years. pursued curred Braun this period responsible time and was for coordi- agreement response in to a HUD directive nating personnel activity County for all em- requiring department por- the to reduce the ployees. Kovac that suspect- Fusaro told he budget tion of its dedicated to administrative Department ed that Development, the of expenses by percent two or three to order worked, employees where Azzaro had on the funding. retain its federal While this same payroll disloyal to Commissioner federal had in place during directive been Foerster. He Kovac to asked allow Donna Hohman’s Depart- tenure as Director of the Brusco and member of Employ- another the ment Development, of Hohman had not tak- ee Department Relations to “review the en- steps en to address because he believed payroll Department tire Develop- of in. problem would correct itself over time. pick ment to people loyal out that were to loyal Foerster people and that were to Brim- proposal reorga- Braun also drafted to meier,” opponent. who was App. department by, Foerster’s nize the among things, other merging Because had Brusco worked for the eliminating several divisions and Department Development of Marketing Division, until she which Azzaro worked. Employee transferred to the Relations De- Under the heading “Positions to be Termi- partment request nated,” Fusaro’s the fall of proposal specifically named Azza- 1991, she Fox, was believed be familiar ro supervisor with the and Tom to whom she Department entire Development payroll incident, had reported first the harassment loyalties. people’s aware of along employees Fusaro told with two pensions whose Kovac that he compile already had authorization to had App. vested. 31. At the same time, the list from both Commissioner Foerster proposal hiring recommended nine summary granted judgment favor of de increasing the salaries new County Allegheny Azzaro et eight others. fendants. (W.D.Pa. 93-1589, al., slip op. at 19 No. Mar. proposal this Commis- Braun submitted 1995). Specifically, the court found “no office, approved it which sioner Foerster’s competent persons evidence that those in Salary passed it on Board. On reorganize [De volved the decision to 18,1992, Salary approved the Board June partment Development] were aware of the restructuring Department of of the proposed alleged prior the ap sexual harassment day told Development. following The Braun proval reorganization.” position would be eliminated Id. Azzaro that budgetary August reasons as of due disagree. We While it is true that Foer- job performance. to her No effort unrelated ster, Kramer, having and Braun have denied position find for Azzaro another made knowledge alleged sexual harassment County government. with the termination, prior to while there is 1993, Azzaro filed this suit September, Salary the members no evidence that Allegheny, against the Commis- Board than other Foerster such knowl- Foerster, Wayne Fusaro. Tom sioner action, edge at time of the Board’s retaliatory discharge alleges complaint The great district court’s conclusion overlooks Allegheny County in violation against and circumstantial evidence deal direct 2000e; all § asserts claim U.S.C. favoring position. Azzaro’s That evidence § in- under 42 1983 for defendants U.S.C. Foerster, support would inference fringement of Azzaro’s First Amendment Fusaro, Braun, Kramer, knowledge Pennsyl- alleges rights; and violations of incident harassment and Azzaro’s Act, 43 vania Human Relations Pa.Cons.Stat. her, reports, agreed “get” and that (d) 955(a), (e), County. against Allegheny § & provision reorganiza- included a minor summary joint filed motion for Defendants objective accomplish covertly, tion granted, judgment court which the district securing approval the routine of an unsus- *6 on the deciding the two federal claims merits Salary which cared about pecting Board declining supplemental juris- exercise nothing ap- than that had more Foerster plaintiffs diction over state-law claims. We reorganization and that it would plenary proved exercise review over district summary grant judgment. County money. court’s decision to save the Union Ins. Co. v. Bituminous Commercial First, showing produced Azzaro evidence Cir.1988). (3d 851 F.2d Corp., Cos. meeting stated at a with Foer- that Hohman ster, Fusaro, that Fusaro sexu- and Kramer II. Development ally Department a harassed alleges Azzaro that the vio had him con- come see by discharging lated Title VII her retalia jobs daughters. with summer for her nection reports of sexual tion for her harassment. been in- As both Fusaro and Kramer had prima retaliatory To facie ease of establish husband formed of the incident with Azzaro’s firing Title in violation of VII the Civil resolving involved dis- been 2000e, § Rights Act U.S.C. Hohman’s statement sufficient to pute, (1) engaged plaintiff must establish that she finding Fusaro and Kramer support that (2) protected activity; in a she was dis Moreover, allegations. of Azzaro’s knew charged contemporaneously after or with person- were close since Fusaro and Kramer (3) link activity; and there was a causal that and since Foerster al of Foerster advisors firing. protected activity and the between the Hohman, meeting present at the with was Hasbro, Inc., Quiroga jury could find that it more reasonable case, (3d Cir.1991). In the district court too, Foerster, knew, not that probable than bring that Azzaro had failed to concluded meeting shortly day of the of the as any of a competent evidence causal forward thereafter, employee in that Azzaro was the allegations connection between sexual discharge, question. harassment therefore Fusaro, following testimony concerning Salary
There is further evidence that Foerster, proceedings: the authorization of Board thereafter prepared “hit list” to be and Azza- caused Q. Salary Who sits on the Board? list. ro’s name be included that There A. Three Commissioners and the Con- suggesting is no evidence reason for troller. reporting other Azzaro’s inclusion than her document, Q. looking From that do allegation to Fox the sexual harassment you any way telling have what vote Sirabella.2 Other evidence indicated that approve request? Braun’s Braun, team, a new member of the Foerster A. I would to check minutes to have frequently conferred with Fusaro and Kram- approved. sure I make that it was would during period er which the “hit list” it, against no reason vote because “reorganization” being pre- and the savings Salary note the annual net pared. Even if did not himself he know $39,000. Board was Fusaro, allegations against Azzaro’s a rea- Q. request Salary At the time juror Braun sonable could infer that knew presented, action Board there a list,” was for a “hit Azzaro some reason on among discussion the Commissioners and sought “get” and that he to aid the efforts concerning request, the Controller discharge including part Azzaro you recall? reorganization plan. his No, I A. do not. ‡ !}* if: & # # true, out, point It is as defendants implement these individuals could not Q. itself, Salary meeting At the Board reorganization plan To themselves. dis typically are there within discussions charge manner, Azzaro in this it was neces Salary meeting pros Board about the sary approval obtain Salary proposals cons of the that come to the Board. While there is no evidence that a Salary they just routinely Board or are majority voting of the Board’s members had approved? knowledge reports actual of Azzaro’s when any questions A. If there is [sic] reorganization, approved the this does Board, Salary they’re Salary asked at the preclude recovering Azzaro on her they’re meeting. Board Otherwise rou- generally Title VII retaliation claim. See approved. tinely Especially those re- Fischl, Bartholomew v. 782 F.2d quests Salary Boards that indicate (3d Cir.1986) (holding plaintiff may state savings money. deprivation claim of constitutional *7 App. 300-01. by city alleging mayor, power who was significant Also in the context of the causa- discharge less plaintiff, persuaded city to tion is apparent issue the fact that no one plaintiffs council to position). eliminate To history County else in the recent had grant public hold otherwise would be to offi way been terminated in the Azzaro was dis- against cials carte to blanche retaliate em charged. Although County frequent- the had ployees long formally as the is retaliation ly positions eliminated past, vacant in the by stamp” approval effectuated the “rubber preceding years once the fourteen of another agent. prohibi Title VII’s positions had it occupied by eliminated easily cannot tions be so evaded. jobs, Azzaro’s, incumbent —and those unlike from designated There evidence which a reasonable had been from the outset as tem- juror porary Moreover, could that it positions. Department conclude is a routine mat- Salary ter for the approve, had, Board to of Employee Relations as its director discussion, proposals testified, little or no pur- place” which every attempt “made to port County save money. During displaced to positions his in new for the deposition, gave County. App. case, Commissioner by Foerster 407. In Azzaro’s particular, 2. In disloyal there no in the evidence record Brimmeier and to therefore Foerster. placed that Azzaro was on the list because she supra See note 1. was, be, perceived was supporter a of Joe contrast, dispute flects material of fact on factu- made retain her two attempt was no notwithstanding reports al issues: whether were a moti- County employee, those aas vating discharge factor in the were hundreds unfilled decision fact that there time of her County positions available Azzaro and whether Azzaro would have been discharge. discharged for other reasons even in the reports. absence of those id. See
Additionally, Azzaro tendered evidence which it could be inferred from A. discharge given by Braun for her was
reason
and,
reorga-
pretextual
accordingly, that the
analysis
determining
Our
whether
plan
simply a cover for
illicit
nization
was
reports
Azzaro’s sexual harassment
were
in the
There is substantial evidence
motive.
by
protected
First
dictat
Amendment is
that, contrary
indicating
to the Coun-
record
by
Myers,
ed
461 U.S.
Connick
contention, budgetary constraints did not
ty’s
(1983).
III. questionnaire to draft and circulate decided in- among peers. questionnaire The retaliatory discharge to her In addition alia, what VII, quired respondents, inter against employer Title claim under they of named thought the trustworthiness retaliatory discharge claim Azzaro asserts superiors and the current state morale § all the defendants under inquired It defendants, also about whether alleges office. that the Specifically, she law, participate pressured ever been acting color state violated her under *8 political Myers was then dis- by campaigns. Amendment rights under the First dis- question- the charged her distribution of reports for charging for her her retaliation naire, First claimed violated her which she and Sirabella. We conclude that sum- Fox right speech. free judgment erroneously granted Amendment mary on this claim as well. analysis of began its The Connick Court Myers’ note: claim with an historical inquire first Azza-
We must
whether
century, the unchal-
pro
most
this
reports
Fox
were
For
of
ro’s
and Sirabella
dogma
public employee
by
lenged
This is
First Amendment.
tected
right
object
placed
City
no
to conditions
of
v.
Phil
had
question
law. See Watters
of
Cir.1995).
(3d
886,
employment
including
upon the terms of
adelphia, 55 F.3d
892
We
—
eon-
the exercise of
record
which restricted
then
whether the
re-
those
must
determine
rights.
controversy
superi-
stitutional
The classic formulation
other round of
Holmes,
ors,”
148,
position
1691, Myers’
of this
was that of Justice
at
id.
103 S.Ct. at
who,
sitting
Supreme
on the
questions
when
Judicial
about
trustworthiness
morale
Massachusetts,
po
Court
observed: “[A
communications in which the
not
com-
may
right
munity
significant
liceman]
a constitutional
By
would have a
interest.
politics,
contrast, however,
talk
but he has no
suggestion
constitutional
that there
right
policeman.”
to be
might
pressure
v.
superiors
in .the of-
McAuliffe
216,
Mayor
Bedford,
political
New
155 Mass.
participate
fice to
campaigns was
(1892).
220,
977
145,
thought
private
Connick,
to
a
103
at 1689. what she
be
conversa-
U.S. at
S.Ct.
461
“
tion,
they go
hope they
again,
‘If
for him
exchanges of information
It
the
of
is
value
him,’”
get
380,
Id. at
107
at 2894.
self-governance
to
S.Ct.
and ideas relevant
speech
“special pro-
reported
supervisor
This remark
to
public
to
entitles
concern
discharged.
she
While acknowl-
tection.”
edging
employee’s
might
opinion
the
Court, in
this reason that
the
It was for
understandably
regarded by
ill-
be
some as
delineating
rights
public
of
expressive
the
considered,
the Court concluded that her
employees,
to draw the line at
chose
“ ‘fairly
statement
could nevertheless be
public
concern. Silenc
related matters of
constituting speech
characterized
a
as
on
ing
public employee seeking
speak
on a
a
”
384,
public
matter
concern.’
at
107
of
Id.
public
deprives
of
a self-
matter
concern
Connick,
(quoting
at
461
at
S.Ct.
2897
U.S.
may
society
information that
be
governing
of
1689-90).
146, 103
S.Ct. at
As
Court
decision-making.
vital to informed
See Pick
explained:
571-72,
ering, 391
88 S.Ct.
1736-37
U.S.
context,
community
opinions
Considering
of
as
(depriving
teachers’
statement
requires,
plainly
that it
on how school funds should be allotted seri
Connick
discloses
public
is
dealt
a matter of
concern. The
ously
open
free and
debate and
hinders
intent
statement was
in the
of a
inconsistent with
of First Amend-
made
course
Watters,
ment);
(finding
addressing
policies
55
at 886
for-
conversation
of
police department employee’s state-
It came
mer
President’s administration.
on
employee
program
regarding
heels of a
bulletin
is
ments about
assistance
news
what
certainly
heightened
speech,
public
public
a matter of
public
concern
because
prob-
significant
learning
attempt
attention: an
on
life
interest
about
President____
might impair
operation
inappropriate
The
con
lems which
effective
program).
particularly
This can be a
troversial character
irrel
seri-
statement is
public
employees,
question
ous loss because
virtue
evant to the
whether it deals with
“[Djebate
public
with a
of their constant interactions
matter
uninhibited, robust,
office,
position
are
in the
to know
issues should be
often
best
wide-open,
may
and ...
include
ails that office. See Board
well
what
—
vehement, caustic,
Umbehr,
U.S.-,-,
unpleas
sometimes
Comm’rs v.
116
(1996).
2347,
government
2342,
antly sharp
governance top- on this communications a number of other lessons Connick teaches ic, context, place. in this and in this take form holding to applying are useful when its First, expressly point
This
is well
new situations.
Connick
illustrated
Su-
community’s
preme
subsequent
recognizes
that the
interest
Court’s
decision
Ran-
McPherson,
ideas
exchange
kin
of information and
U.S.
free
(1987).
There,
relating
concern is
tween
individual
members
Connick indicates that the
motive,
lic.
Private dissemination
information and
part
er’s
while often a relevant
of the
important
can
ideas
be as
effective self-
speech, is
dispositive
context of the
not
in
governance
Thus, if
speeches.
the
public
particular
determining whether a
statement
private
of a
com-
content
circumstances
public
Myers’
relates to a matter of
message
munication are such that the
con-
devising
distributing
motive for
veyed
process
would be relevant
the
questionnaire
proposed
was to defeat
self-governance if disseminated to the com-
Despite
underly-
transfer.
this same motive
munity,
public
that
communication
concern
ing
questions,
all of her
the Court
that
found
though
private
even
it occurred in a
public
some of
related to
them
matters
Connick,
148,
146,
context.
461
at
103
U.S.
concern and some
not.
If motive were
did
1689-90, 1690-91;
at
also
v.
S.Ct.
see
Givhan
dispositive,
inquiry
could
re-
Dist.,
Western Line
Sch.
U.S.
Consol.
439
finding
Myers’
in
sulted
either
all of
that
415-16,
410,
693, 696-97,
99 S.Ct.
58 L.Ed.2d
public
concern
or that
(1979) (“Neither
619
the [First] Amendment
none of it was. See also Rode v. Dellarci
nor
itself
our decisions indicate that [the]
(3d Cir.1988) (ex
1195,
prete, 845 F.2d
public
speech]
[of
freedom
is lost
plaining
merely
[is]
that “motivation
one fac
arranges
pri
to communicate
considered,
necessarily
tor to be
[and]
vately
employer
with his
rather
than to
controlling,
assessing
the character of the
public.”).
sprea.d his
before
views
employee’s speech”).
Second,
helpful
Connick contains
lessons
background,
With this
we now turn to an
concerning
subject
the kinds of
matter that
application
governing
of the
law to the facts
likely
public
are
concern. Racial
subject
of this case. The
matter of Azzaro’s
assignment
discrimination
of school
reports to
Fox
Sirabella was an incident
personnel,
subject
private
matter of the
sexual
by
harassment
assistant
Givhan,
communication in
439 U.S. at
Commissioner which occurred in the Com-
693-94,
at
by
S.Ct.
was characterized
during
missioner’s office
the course of an
inherently
Connick
as “a
Court
matter
made,
appointment Azzaro
capaci-
public concern.” 461
U.S.
148 n.
ty as
spouse
employee,
plead
of an
1691 n. 8. The
suggested
Court also
job.
her husband’s
The harassment was a
communication would be of
gender
form of
discrimination since
concern,
Fusaro
barring a form or context
de-
presumably would not have
behaved
process
tracted from value to
its
of self-
same
(1)
supplicant
manner
toward
male
governance, if it
indicated “that the Dis-
spouse
employee.
of a female
We believe
Attorney’s
trict
office
not discharging
its
discrimination,
this form of
practiced
when
governmental responsibilities in the investi-
exercising authority
those
gation
cases,”
prosecution
the name of
of criminal
official,
(2)
is as
brought
light
much matter
potential
“to
actual or
practiced
concern as racial discrimination
wrongdoing
un-
breach of
trust
on
part
der similar
Attorney]
circumstances. We
[the District
also believe
and others”
evaluating
per-
that would be relevant in
Azzaro’s communications to Fox
brought
of public
light
formance
Sirabella
actual wrongdoing
office or official. Id. at
1691;
part
exercising public
S.Ct. at
of one
authority
see also
Swineford
Snyder County Pennsylvania,
would be relevant
the electorate’s
(3d Cir.1994) (allegation
performance
evaluation
malfeasance
of the office of
speech “fall[ing]
reasons,
election officials is
an elected official.4 For these
we
squarely
public speech
within
core
delin-
conclude Azzaro’s communications should be
”).
eated Connick
regarded
as a matter of
un-
presented
situation,
are
express
We
thus
here
opinion
with a situation
no
on such
it would
public employee
complaint
in which a
has filed a
presumably
important
be less
to an evaluation of
about
isolated incident of what he or she
performance
office involved
perceived
inappropriate
to be
conduct on
than the
now
situation
before us.
part
non-supervisory
of a
co-worker.
we
While
*11
primarily
purpose
per-
was
to solve her own
something
their form or context de-
in
less
them,
process
to the
of
prived
problem,
of their value
fact that her
sonal
statement
self-governance.
process
of value to
of
would be
self-
speech public
governance does not make the
context,
form
we find noth-
Turning to
See,
Ford,
speech.
e.g., Morgan
concern
v.
significantly from the value
ing that detracts
Cir.1993).
(11th
750,
process
of F.3d
of these communications
deposition,
on her
it
self-governance. Based
a
speaking
The distinction between
as
citi-
say
complained reluc-
is
that Azzaro
fair to
then,
speaking
employee,
an
is
zen and
as
tantly, that her interest in each instance was
simply
way
describing
an alternative
of
husband,
job
that
her
saving
in
her
While,
inquiry
speaker’s
into
motive.
as
if the
might
that she
have been content
explained,
employee’s
may
an
we have
motive
only
protection
was
relief she
received
speech
relevant to whether
is on a matter
be
this,
discharge.
judgment,
But
in our
concern,
public
giving controlling signifi-
engaged in an
cause a citizen
would not
“primary
is
purpose”
cance to
inconsistent
of the Commissioner’s office
evaluation
in
disregard
complaint.
purpose
her
Assess- with the
Connick. Myers’
discount
.result
content, form,
context, including Az-
ing
pressure
asking
question
her
about
motivation, we conclude that Azzaro’s
zaro’s
participate
political campaigns
no dif-
was
Fox
were matters of
reports to
and Sirabella
asking
ques-
purpose
ferent than her
public concern.
questionnaire
office
tions
the same
about
general reputation of
conclusion,
morale and the
reaching
we have
this
con-
supervisors
that other courts
office
for trustworthiness. Her
sidered several distinctions
controlling on
appeals have
to be
found
purpose
respect
ques
"with
to each of these
speech
public employee’s
of whether
issue
clearly
gather
ammunition for
tions
“to
.
Although in
public
is
controversy
supe
with her
another round of
in the factor
instance we find relevance
each
at
riors.” 461 U.S.
103 S.Ct.
courts,
by
respect-
we
upon
relied
our sister
Nevertheless,
regarding
question
pres
controlling
fully
give
decline
those factors
campaign
about matter
sure
significance.
because,
taking into
public
even
suggested
has
between
A distinction
been
context, it
impor
its form and
account
employee
by
public
“as an
speech uttered
society
self-governing
to a
that
tant
speech uttered
employee” and
free,
employees
express
themselves
See, e.g.,
v.
employee “as a citizen.”5
David
explained:
it. As the
about
Court
Denver,
City
101 F.3d
[Tjhere is
interest in this-
a demonstrated
(10th Cir.1996) (stating that
distinc-
this
country
government
service should
inquiry”
deciding
is
fundamental
tion
“the
depend
performance
upon meritorious
matter of
whether
involves
than
Given this
political
rather
service.
concern).
speaks
An
as
“em-
history,
apparent
it
we believe
said,
ployee,”
"primary purpose
is
when
assistant district attor-
issue of whether
herself, and
a “citi-
to secure relief for
political
neys
to work in
pressured
are
only
primary purpose
is to
zen”
when
campaigns is a matter
interest
systemic
id. at
bring
reform. See
about
view,
community
upon which it is essential
employee’s
if the
1356. Under
context,
origin
S.Ct. at 1690. In
apparent
is the
461 U.S.
however,
5. The
of this distinction
following language from Connick:
we
was intended
believe this sentence
public employee
“matters of
concern”
only
We
contrast
hold
when
upon
speaks
only
personal
not as a citizen
matters
and riot
“matters
interest”
concern,
employee upon
subjec-
but instead as
mat-
suggest
based on the
a critical distinction
interest,
personal
the most
ters
absent
point
employee.
out
As we
tive
motivation
circumstances, a
unusual
federal court
text,
interpretation
is inconsistent
latter
appropriate
in which to review the
forum
holding in
case.
with the
personnel
wisdom of a
public
decision taken
allegedly
agency
to the em-
reaction
ployee’s behavior.
speak
speak
be able to
out
free to
on such
See
matters.
Green
free-
Auth.,
ly
retaliatory
Philadelphia Housing
without
dismissal
105 F.3d
fear of
*12
(3d Cir.1997); Watters,
895;
885
55 F.3d at
Id,
added)
149, 103
(emphasis
1691
Versarge Township
Jersey,
v.
Clinton New
omitted).
(citations
(3d Cir.1993).
984 F.2d
1366
Balanced
suggested
A
distinction
been
related
has
government’s
these interests is the
employee
in
situations which the
is
between
employer
promoting
in
interest as an
the
seeking
bring
information to the attention
efficiency
performs through
it
of the services
public
employee
in
and those which the
Watters,
employees.
its
I.
system requires
school
additional funds and
alleged
their
profligate
is a
use
matter
speech
protected by
Not all
the First
legitimate
community
concern for the
aas
Amendment and “the
has
State
interests as
question
whole and “[o]n such a
free
employer
regulating
speech
in
of its
open
is vital
debate
to informed decisionmak-
significantly
that differ
from those
electorate____
ing by
Accordingly,
it is
possesses
regulation
in connection with
essential
speak
that [teachers] be able to
out
speech
citizenry
general.”
of the
freely
questions
on such
without fear of retal-
Pickering
Educ.,
563,
v. Board
391 U.S.
iatory
Pickering,
dismissal.”
391
at
568,
1731, 1734,
U.S.
88 S.Ct.
legitimate II. in speech public interest mat- ters. But as Justice recently O’Connor ob- explicating In its earlier decision in Picker- writing opinion served in plurality for the ing analyzing specific problem then Supreme States, Court the United “even it, again before the Court in Connick consid- many of most fundamental maxims of our right ered the First Amendment of an em- First jurisprudence Amendment cannot rea- ployee to freedom of and the State’s sonably applied government employer interest “in promoting as employees.” Churchill, Waters v. 511 U.S. efficiency public performs services it 661, 672, 114 S.Ct. 128 L.Ed.2d through employees.” Pickering, its 391 U.S. (1994). 686 at at returning 1735. In
Justice O’Connor public further employee-employer noted balancing problem recognized government Court has that a recog- em- raised Pickering, earlier the Court ployer has in barring a certain latitude its nized First rights public Amendment retaliatory discharge sexual harassment and at time demonstrat- the same employees but public employer’s re- for the but dismissed the First Amendment claim its concern ed efficiently opera- manage its plaintiffs complaints personal sponsibility because obligations.. public The generally implicate fulfill its did not tions and nature and the reiteration They noted Picker- did Court matters of concern. not employ- right progeny of the ing’s involve a debate on issues sex discrimina- upon matters of tion, comment “as a citizen” ee to and her suit did seek “‘relief same time reflects “the public concern systemic against pervasive or misconduct ” government realization that officials,’ common-sense public agency nor was “ every employ- if function offices could ‘part of an overall ... suit effort mat- decision became constitutional ment allegedly practices' bring correct unlawful ” Connick, U.S. at 103 S.Ct. at ter.” (quot- Id. them to attention.’ omitted). (footnote Dist., ing Yatvin Madison Metro. Sch. (7th Cir.1988)). 412, 420 Therefore, determin- Connick Court Myers’ ing questionnaire that most of could majority concludes Azzaro’s con- The fairly constituting characterized not be versations with Fox and Sirabella constituted concern stated: speech on matter protected under First Amend- expression be fair- cannot When analysis ment. careful believe ly relating to matter considered as form, content and context of these two con- social, concern to the political, or other concerning single versations incident will government community, officials should show that these conversations did not involve enjoy managing their of- latitude wide fact, the entire matters fices, oversight by intrusive without *15 pervasive record shows a desire Azzaro judiciary the name of the First Amend- “go public,” although not to and she claims ment. initially she discussed the incident times 146, 103 at 1690. Id. S.Ct. friends, always an her it with atti- with was previously also noted that This court has tude entre nous. The form of her commu- of a matter of concern when it speech is nications with both Fox Sirabella were fairly relating any to can be considered as complaints of or formal not in the nature political, other concern to matter of social or reports, either or written. oral Snyder community. v. Coun Swineford of Azzaro’s communications The context (3d 1258, Cir.1994); ty, 15 F.3d 1270-71 Fox, supervisor, pri- at a with her Tom Allentown, City F.2d Holder v. 987 party vate at the home of friend Cir.1993). (3d situations, speech In some 195 content, county employee. As not a to may be a pertaining to sexual harassment they discussing hearings, Anita Hill were impli community matter of thus alleged her incident with and Azzaro told of In situa cate the First Amendment. other respect position Fusaro to defend her with tions, may private simply a matter of Hill. The time was four months after City & concern. See David timing, alleged Fusaro incident. The (10th Cir.1996). Denver, F.3d content, setting, social the context similarity Saulpaugh This case bears a unequivocally person- this conversation (2d Community Hosp., v. Monroe Moreover, attempt- when al and social. Fox Cir.1993). There, hospital employee up take the matter ed to convince Azzaro to employer her under Title VII and al- sued supervisor, with her she refused. Concerned First claim under leged a Amendment job, potential danger her she with the § well law claims. The as state Fox, her continued to refuse until immediately after plaintiff testified she wishes, reported the incident. sexually supervisor was hired her harassed Sirabella,
her, discharge, with including making As for her conversation Sal threats Administration, ac- ultimately Azzaro resisting her for the Director of terminated knowledges also was of proposals. court found conversation his The district personal nature. She did not communicate employer liable under Title VII based on complain officially report bring wrongdo- light potential with Sirabella to or or actual Rather, alleged ap- harassment. she or ing part breach of trust on the others____ proached him months after the al- several discipline Connick and While leged personal on how incident to seek advice workplace and morale in the are related to job. losing to avoid her agency’s performance efficient of its duties, Myer’s questions the focus of In with neither Azzaro’s conversation Fox performance to evaluate the of the office any or with Sirabella there debate or gather but ammunition for another implication concerning even policies sexual or of controversy superiors. round with her practices Allegheny County Depart- in the ment of Development where she was em- pur- Id. at at 1690-91. The ployed. any complain person- She did not general pose speech, Azzaro’s her conduct systemic department al or misconduct her employer, legal her with her action con- department. Although or officials her only keeping, cerned herself and as she testi- majority describes her conversations with fied, job. her no She had intention to make “reports,” Fox and Sirabella as made she no her communications Fox or Sirabella complaints to Fox whatsoever or even Sira- public. Even if had been released to bella, oral, either written or did nor she public, they would revealed any submit formal written to Fox statement alleged single part single incident of a any or supervisor department. other in her sexually harass co-worker her. context, apparent it is that Azzaro’s The content of Azzaro’s conversations with only tangentially statements were about her Fox and Sirabella no effort personal- made alleged Fusaro, experience with no ly complain expose publicly wrongful or prac- way focused on harassment as a matter of objectionable policies tices and part on the Uppermost in her mind was department county officials. For over job. speech utterly concern for her Her incident, year intermittently after the she content, political lacked protection alleged talked to her friends about the Fusa- which was foremost the minds of the fram- deliberately ro incident but going avoided Amendment, ers of First element public. She spoke testified that she advocacy. social The First Amendment “ personal friends: *16 designed by its framers ‘to assure un- interchange fettered of bringing ideas for the just get I told it out. to it mean I was political about of changes social desired time, carrying it around all the and it was ” Connick, by people.’ the at U.S. a like release when I told someone. (quoting S.Ct. at 1689 Roth v. United However, Dep. Azzaro at 114. no she had States, 476, 484, 354 U.S. 77 S.Ct. of publicizing harassment, intention the nor 1308-09, 1 (1957)). L.Ed.2d 1498 warning of danger other women of the of improve Azzaro’s nothing added to fact, harassment. In one when friend recom- the of government administration the of Alle- complaint that mended Azzaro the file with gheny County. Her no made effort EEOC, she Dep. refused. Azzaro at In improve working to conditions her for fellow content, context, form and the two employees, attempt nor did to evaluate the pertained private conversations to a matter. performance department of her or the coun- ty. rejected The Court in Connick most of Hafeman, Callaway As in Myer’s questionnaire being expres- as not (7th Cir.1987), plaintiffs conversations of import sion in evaluating her em- were limited to “oral to statements intended performance ployer’s prosecu- as an elected confidential,” purely be and were for not tor, noting: public information debate. Id. at 417.
Myers
did not seek to inform the
attempting
speak
She was not
to
out as
that
Attorney’s
the District
Office
not
problems
citizen concerned with conditions or
governmental
discharging
responsibili-
its
confronting Allegheny County; “instead, she
investigation
ties in
prosecution
spoke
of
as an
attempting to resolve
Myers
id.,
criminal
Nor
dilemma,”
eases.
did
seek to
private
her
even when she
public may
than
communication rather
be
when she conversed
spoke
Sirabella
determining
factor
for consideration in
her friends.
with
the content of
conversation is of
whether
to the facts of this
In
the law
applying
Here,
only
not
public concern.
were the
alleged
ease,
majority
that
asserts
confidential,
private
communications
but
“gender
dis-
was a form
Fusaro incident
Moreover,
personal.
previ-
the content
as
practiced by those
crimination” which “when
above,
ously
Azzaro
clear
stated
made it
that
authority
of a
exercising
in the name
pub-
were not intended for
conversations
official,
much
a matter
employ-
lic
or for action
dissemination
simi-
practiced under
as racial discrimination
Therefore, they could
no relevance
er.
op.
Maj.
978. But
circumstances.”
lar
community
county
any
gov-
evaluation
neither Fusaro’s al-
the issue before us is
their
ernment and
content could
be
leged
any gender
nor
discrimination
behavior
relat-
matter of
concern because
whether,
County.
The issue is
only
single
personal
ed
to a
incident of
be-
Title
claim a retaliato-
to her
VII
addition
employee,
single
havior
fellow
a First Amendment
ry discharge, Azzaro has
performance
any
elected official.
County
her con-
against the
based on
claim
Fox and
versations with
Sirabella.
Givhan,
the school district dismissed
analysis,
majority
Proceeding with
its
plaintiff,
junior high
school En-
black
infers that:
speculatively
teacher,
glish
sought
on
reinstatement
to Fox and Sira-
Azzaro’s communications
alia,
ground,
inter
her dismissal
wrongdoing
brought
light
actual
bella
infringed
right
of free
under the
part
exercising
authority
of one
First
The
and Fourteenth Amendments.
to the electorate’s
would
relevant
the primary
district
found that
reason
court
performance
of the office
evaluation
dismissal “was
criticism the
her.
official.
elected
district,
practices
policies and
school
However,
op.
Maj.
at 978.
Azzaro’s conver-
especially the school which she
as-
signed
Fox
were intended
at 695.
sations with
and Sirabella
to teach.” Id.
99 S.Ct.
only,
Supreme
and not the electorate.
Court
the district
for their ears
Neither the
nor
respect
difficulty
concluding
is also
The record
silent
court had
part
public of
speech by
these
focused on
knowledge on
content of the
Givhan
until,
policies
this lawsuit
school dis-
presumably,
practices
conversations
“the
Additionally,
no
there is
basis
Azzaro’s
described
was filed.
trict.”
conversations
majority’s highly specula-
single
for the
incident —and
whatsoever
Fusaro’s conduct —a
policies,
tive
these two confidential had
conclusion
no reference whatsoever
pertaining
any wrongdoing
Allegheny
practices,
Fusaro would be
conversations
agencies.
evaluation of the
content
relevant to the electorate’s
or its
The
*17
concern;
performance
indisputably
Foerster’s of-
was of
Givhan
Commissioner
fice.
content was not.
Azzaro’s
private
nature of Azzaro’s
Recognizing
superior,
communications to her
Givhan’s
conversations,
majority
cites Givhan v.
nature,
way
in
though
in
no
limited
private
Dist., 489 U.S.
Line Consol. Sch.
Western
Azzaro
public.
to the
their dissemination
(1979),
693,
410,
L.Ed.2d 619
99 S.Ct.
58
did;
confidentiality. As the
insisted on
she
146,
Connick,
148,
focused the conditions of her own em-
ployment” and in neither her EEOC com-
plaints City nor Attorney her letter to the allege
did she other had been
subjected to harassment or that harassment depart- retaliation had interfered with the performance of governmental
ment’s its re- Beryl BRAY, Appellant, sponsibilities. Id. at 1356. v. Likewise, Ford, Morgan 6 F.3d (11th MARRIOTT HOTELS Cir.1993), Marriott plaintiff job left her a/k/a Corp. Corp., Marriott Hotel Georgia Department Mar- a/k/a/ of Corrections Inc., Resorts, riott Hotels and John Doe supervisor subjected because her her to sex- Corp. # and XYZ # 1-5 1-5. ual workplace. in the The Court harassment of Appeals in this case also affirmed the 95-5662. No. grant summary district court’s judgment supervisors. for the Plaintiff United Court of Appeals, did not States relate complaints attempt Third Circuit. public. “speech involve Her was driven Argued Oct. 1996. entirely her own rational self-interest in April improving Decided employment. conditions of her complaints behavior, Her about Ford’s were,
serious as centered around her
private employee griev- matters.... As an
ance, Morgan’s speech was not matter of
public concern.”
III. majority’s fear that the today extension protection constitutional of free 1. Because Azzaro speaking has shown that her conver- terest when about a matter of sations Fox and Sirabella were matters of government’s concern as interest in concern, necessary I do not deem it operations the efficient conduct of its and the balancing required conduct interests as performs. effective services it Connick, Pickering weighing Azzaro's in-