*1 Plaintiff-Appellee, v. RAHN, Rosemary INC., CENTER, Defendant-
DRAKE
Appellant. 92-4041, 93-3170.
Nos. Appeals, Court States
United Circuit.
Sixth 3, 1993.
Argued Dec. 8, Aug.
Decided briefed), (argued Torchia David G. OH, Cincinnati, plaintiff- Kraus, &
Tobías appellee. briefed), Ka- (argued and Brown Robert S. Brown, (briefed), Cum- Przywara
thryn K. OH, Cincinnati, Brown, for defen- mins & dant-appellant. NORRIS, Circuit
Before: KEITH ZATKOFF, Judge.* District Judges; and * designation. sitting Zatkoff, Michigan, United P. Lawrence The Honorable District Judge Eastern District States *2 408 ZATKOFF, Judge, District delivered the until the issue could fully be by briefed
opinion court, in which ALAN E. parties. Drake Center filed a motion for NORRIS, Judge, joined. KEITH, Circuit judgment law, as a matter of inor the alter- 415-16), Judge (pp. Circuit delivered a native, a trial, motion for a new as well as its separate dissenting opinion. opposition punitive damage award. The district court denied Drake Center’s mo-
ZATKOFF, Judge. District tion in entirety its judgment entered on punitive damages award. Drake Center Center, Defendant-appellant Drake Inc. (No. timely appealed 92-4041). Thereafter, (“Drake Center”) appeals several orders en- the district court judgment entered awarding tered the district court1 42 in this U.S.C. attorney Rahn in $56,- § fees the amount of plaintiff-appellee action where Rose- (“Rahn”) mary $3,059.59. 244.00 and Rahn costs prevailed amount of on her claim timely Center discharged appealed Drake Center judgment her in viola- this (No. 93-3170). tion of her First rights. Specifi- appeals Amendment were consolidat- cally, appeals the denial ed.2 of its
directed motion on verdict the issues of state protected action and speech; the denial of its B. judgment motion law, as a matter of or in alternative, motion for a new trial on the In provide order to a proper context within defenses; issue of its affirmative the award which to discuss Rahris claim that her First punitive Rahn; damages to separate three Amendment rights violated, were the follow- evidentiary rulings; and the award of attor- ing background required. is 1989, Prior to ney fees and Finding costs. that Rahn’s Daniel Drake Hospital (“DDMH”), Memorial First rights Amendment were not violated in a hospital pursuant established to Ohio Re- case, this we REVERSE the district court Chapter 339, vised Code was a public institu- judgment VACATE the entered in this tion owned operated by Hamilton Coun- action. We do not reach the merits of the ty, political subdivision of the State Ohio. other issues raised in this appeal. DDMH employed Rahn as a prac- licensed tical starting nurse February In
I. 1988,DDMH hired a administrator, new Earl (“Gilreath”), major institute A. changes necessary regain hospital’s accreditation and certification, Medicare Rahn brought § 1983 action claiming which were in January lost February discharged Center her violation of 1988, in the wake Harvey “Donald her First rights. Amendment After incident.”3 DDMH obtained its reaccredita- discovery, close of Drake Center filed a mo- tion and Medicare certification while Gilreath tion summary judgment which was de- was the administrator. nied. 1989, juryA returned a Rahn, verdict in favor of decided to cease awarding operating her compensatory damages, DDMH and as well to lease the facilities punitive damages. Judgment to a corporation was pursuant entered to O.R.C. on the compensatory damage portion § 140.45. Gilreath was instrumental orch- verdict, while the district court estrating reserved en- change. Drake Center is a try judgment punitive on the damages private nonprofit corporation, Ohio which parties 1. The consented to a final determination dispute otherwise attorney award of fees and Magistrate Judge United pursuant States costs. 636(c). § 28 U.S.C. Harvey 3. Donald was a former nurse's aide who killing patients admitted to at DDMH in 1987. appeal Drake Center’s attorney of the award of certification, Without its Medicare DDMH was fees and upon costs based their success in the not able to seriously patients admit ill appeal on the merits. Drake comprised Center does not majority of DDMH's admissions. According to the sched- 2, scheduled absence. June May 1989. On on created July 1989—for printed ule that was University of County and 1989, Hamilton August through period agreement into a written entered Cincinnati *3 day to work the scheduled was 1989—Rahn operation the continued for provided which day is 7:00 21, shift July 1989. on shift through a lease facilities DDMH On in the afternoon. morning to 3:30 in the forth and set Drake Center facilities to points 1989, two 21, was assessed Rahn July 3.1 and parties. Sections of the obligations being absent policy for attendance under the Hamilton that provided agreement 3.2 had notice. Costa proper work from without to efforts use its best agree to County would to delivered following notice written levy” in the Hospital “Drake pass the p.m. 4:00 approximately at by courier Rahn eventually passed) (which was Spring, 21, July 1989: on proceeds annually transfer and and subject to the lease advise letter is to Center of this purpose to Drake Hamilton three between agreement you have accumulated operating you that July on Drake Center.4 unscheduled absence County points and for an [sic], being without 19, and absent president appointed was Gilreath 21, ab- Unscheduled July 1989. notice on Officer. Executive and Chief Drake Center call can being without absent sences and Costa, Drake assigned to Michael care. delivering patient problem cause a Re- Human President Vice Center’s employees that this reason It is for deci- personnel sources, for all responsibility points three accumulate who orientation firing disciplining, and hiring, sions, including You employment terminated. will have and medical staff except the employees, orientation Center’s of Drake were advised directly to the President reporting officers 10, July 1989. on guideline applied for Rahn Trustees. Board of or the Director me Please advise practical licensed position of obtained extenuating circumstances Nursing any 1, July effective Drake Center with nurse terminated you not be should for which 1989. guide- orientation Center’s Drake under 1,1989, estab- Drake Center July Effective but, than no later possible as soon lines period orientation month a three lished 22, July 1989. noon on including former all employees, its all of 22, Center, July Drake Rahn informed Center’s employees hired. DDMH had she aware that 1989, not that was she “employees that Policy provided Orientation 21,1989. July On to work on been scheduled (as specified points three accumulate who discussed, via Rahn July Costa employment have guide) will the attendance again appear. Rahn failure telephone, her the terms Under terminated.” she was that not aware that she was stated with Policy, employees Attendance Center’s responded that work Costa scheduled to as- day are for one absence an unscheduled to check responsibility it was Rahn’s employees do point. When sessed one schedule. they absence,5 are proper notice such give At- section points. The two assessed a letter 26,1989, directed July Costa On No No Show Policy “Absent titled following tendance state- Rahn, included which report an ab- “a that failure states Call” ments: shall be shift entire scheduled for the sence 21, July gave for the you The reason the disci- under issue as a serious dealt you you know didn’t absence, was policy.” plinary The schedule work]. [to were scheduled 17, 12, July you July worked posted 1989, one was assessed July Rahn On indicated, you realize you un- As an policy for the attendance point under give employee requires that the Proper notice also en- County 4. Hamilton scheduled before the agreement on one hour operating notice least the lease and tered into 2, 1989, providing that effective shift. June County lease the DDMH would Center. facilities to yon responsible knowing your are However, most recent bond issue. Mr. guidelines schedule.... The orientation Gilreath and his assistant Michael Brad- that an indicate in orientation strong ford’s arm and closed door tactics in (3) points, who receives three will be termi- operation at this time employment nated. Your is therefore ter- exposed glare must be of sunshine. minated. gathered Mr. Gilreath has people “his” in the personal administration to attain his
C. desires for the direction hospital, voting polls sup- historically Rahn worked at has served the *4 porting levy County the tax for the needs of long- then Hamilton residents need of County operated term levy DDMH. rehabilitation and Contrary care. to passed. July long-standing appeared purpose County On 1989 an article of the hospital, newspaper quoting a local Gilreath say- say, Gilreath as has been heard to $100,000,000 “I’ll he intended to move 75% use that of Drake Cen- bond issue mon- patients ey ter’s years to over the next any way five facilities. Sometime I want Further, publication article, said, after the to.” group of this a he has “I’ve a built as the wall University known “Committee to Maintain between the and of Cincinnati (“the Improve Committee”) Hospital” Drake and Hospital they Drake only will be — sending group patients formed. The employ- of and consisted residents ees, members, County patients, patients’ family Hospital.” He has and intimated he local citizens. Rahn Chairperson complete was the will maintain control over Drake the along help Committee. with the carefully of his selected henchmen. July 18, 1989,
On the prepared Committee a release to distribute to University the Mr. Gilreath and his assistant Michael Cincinnati, the Administrators Hamilton perceive Bradford the “New Drake” as a Gilreath, County, and the media. Rahn de- Hospital” “Private which subject is not to typed press the livered release at DDMH at scrutiny the of citizens of County Hamilton approximately p.m. July 3:30 1989.6 just $20,000,000 who have voted in per a The press release reads as follows: year bond years. for the next five question is, Today, Rosemary Rahn, did the citizens for a chairman vote of a private country-club facility like including Hospital lavishly
committee Drake Staff Members, landscaped expensive Hospital Patients, flowers after Fami- Mr. previously Gilreath had Hospital lies Drake ordered all Patients and Citi- existing plantings County, zens Hamilton removed for the front of announced the hospital his a facility provide formation of or long- a to preserve committee to term existing resources, therapy and human care for needy the more maintain the fa- citizens cility County? of Hamilton encourage improvement and at the “County Hospital.” approval Was the voters’ of the Bond Harvey The Donald incident and subse- Levy a purge mandate to all the existing quent discreditation hospital staff and patients at Hospital. WE Medicare and Medicaid authorities has left HOPE NOTH! hospital disarray. Adding fuel to This hopes Committee for clarification the fire of confusion and discontent has and the reasons for actions in following appointment been County Hamilton areas: Commissioners of Earl Gilreath resolve problem (1) discreditation spear- and to New work rules which have caused passing head the of the most recent bond widespread discontent hospital give due, issue. To the “Devil” his Mr. staff has high created a absentee- ism, attained the possibly reereditation developing patient endan- Hospital and passing germent situation. Rahn was scheduled to work on discharged Rahn finding that pub- (2) administration Failure points accumulated she had not because for the long range goals and the short lish Policy, but for Rahn the Attendance under complete disregard hospital and rights Amendment exercising her First staff, patients input that the release. citizens relatives to make. might have (3) the actions disclose Failure II. Coun- new Hamilton
philosophies of appeal, this purpose of this For the corporation Cincinnati ty University — pres that state action will assume Court hospital. operate formed plain of whether The determination ent. (4) specific information to have A desire exercising her tiff has been terminated pa- budget desired staffing, about two-step right requires First Amendment by provided administration mix tient v. Commonwealth process. Williams and hon- generalities glittering instead (6th Cir. Kentucky, 24 1534-35 F.3d slogans. meaningless eycoated, 1994). inquiry is whether “The threshold (5) benefits The desecration *5 cites as the basis [plaintiff] speech counseling without funds retirement and may fairly discharge be and her removal making changes. prior the staff a constituting speech on characterized as widespread again created This move has (quot Id. at 1534 public of concern.” matter hospital staff. discontent McPherson, U.S. 483 part in v. ing Rankin of Gil- examples of indiscretions Specific 2891, 2897, 315 378, 384, 107 L.Ed.2d 97 S.Ct. in an exhibit are listed group and his reath omitted). (1987)) (internal quotation marks release. to this attached 138, 146, Myers, U.S. v. 461 also Connick See informa- has made this The Committee 1689-90, 1684, L.Ed.2d 708 75 103 S.Ct. Hospital the new Drake tion available (1983). address plaintiff’s speech a Whether Wenz, Directors, Thomas Mr. of Board of question is a concern public a matter of es Administrator, Dr. Jo- County Hamilton law, this Court. requiring novo review de University Steger, President seph A. (6th McDowell, 725, 733 v. 848 F.2d Barnes Harrison, Cincinnati, Dr. Donald C. of and Cir.1988). ad speech did not plaintiffs If a Vice-President, University of Cin- Senior concern, no further public dress Center. cinnati Medical necessary. Id. inquiry is immedi- calling an is The Committee employee’s However, of any part if an among the Com- meeting open ate discharge, contributes speech, which offi- missioners, University of Cincinnati - concern, the public of Administrators, to matters and relates cials, Hospital balancing of interests a must conduct County, Drake court of the Citizens v. Board Pickering in as set forth Hospital Patients test Staff, Drake Hospital of 1731, 563, 20 Education, 88 S.Ct. 391 U.S. set forth discuss matters Relations to and Rankin, (1968). at 483 U.S. See L.Ed.2d 811 along operat- with the press release in the Connick, 2897; 461 U.S. 384, 107 S.Ct. at statistics, patient goals budget and ing court, as 149-50, at 1691-92. 103 S.Ct. hospital. whether issue of part of the ultimate the Chair- may Questions be directed to to: required protected, is speech is Rahn, Ms. Rahn man, at.... Rosemary release present attempt will the [em- the interests “balance between Gil- to Administrator Hospital at Drake upon citizen, commenting in ployee], as a 18,1989, and today, p.m. at 4:30 reath the interest public concern matters resignation the Administrator’s ask for promoting in State, employer, as an capable new, positive progressive, a per- public services efficiency Administrator, original). (emphasis Pickering employees.” its through forms Education, U.S. 391 v. Board television appeared on local also Rahn 1734-35, 811 1731, L.Ed.2d 20 88 S.Ct. night. program evening news station’s 138, U.S. (1968); Myers, 461 v. Rahn, Connick jury a verdict favor returned A 412 140, 1684, 1686-87, 103 S.Ct. 75 L.Ed.2d DDMH purely public when it was institu- (1983). balancing necessary
708
This
is
levy passed,
tion. After the
corpo-
order to accommodate the dual role of the
ration,
Center,
manage
was formed to
public employer
provider
public
as a
by plaintiffs
DDMH. As stated
counsel dur-
government entity oper
services and as a
arguments,
Center,
oral
pri-
ating under the constraints of the First
entity,
vate
never would have come into exis-
hand, public
Amendment. On the one
em
levy being
tence without
the tax
passed.
ployers
employers,
are
concerned with the And
going
spend
now Gilreath was
efficient
operations;
function of their
re
taxpayers’ money any
wanted,
way he
every personnel
view
made
decision
necessarily
in the best
interest
could,
public employer
run,
long
in the
addition,
taxpayers.
Rahn contends be-
hamper
performance
func
cause the
“patient
release addressed
hand,
tions. On the other
“the threat of
endangerment” that it addressed a matter of
public employment
dismissal from
...
is
a public concern.
potent
inhibiting speech.”
means
Pick
McDowell,
This
Court
Barnes v.
848
574,
ering,
matters concern. 461 addition, In “patient the reference to endan- U.S. at 103 at S.Ct. 1691. germent” not does make this a matter of complete public
The in appeal record this concern under the facts in this case. press that only reveals the release The patient does not touch mention of endangerment in upon public press matters of concern. The crux of the release is located in following the argument public Rahn’s is that pre paragraph: the was “New work rules which have with a help support sented widespread caused discontent the hos- trial, argued At press balancing Center even if the operating hospi- its test interest in the upon public touched release concern outweighed making tal Rahn's interest in the discharged above, that Drake Center Rahn due to the jury statement. As noted the found that points accumulation of 3 under discharged Attendance the Rahn because of the Thus, Policy. argue press Center did not at the release and not because she had accumu- level, appeal, trial or on Pickering points that under the Policy. lated 3 under the Attendance
413 concern, initiated the public because Rahn high a absentee has created pital staff endanger media. patient contact the ism, developing a with possibly focus of comment The situation.” ment Moreover, not case where the this is a from endangerment arising patient not on is “uncovered” a fraud be public employee has dollars; rather, the of tax misapplication the Solo taxpayers. on the committed Cf. discontent employees’ on the is focus Royal Twp., F.2d mon v. Oak patient to a might lead rules which work new Cir.1988) (“This (6th that Court has held “nothing is This endangerment situation. corruption is a mat disclosing public speech quintessen example[ ] [an] than more public interest and therefore deserves ter of management has acted beef: employee tial omitted) (citations protection.”) constitutional Barnes, F.2d 735.8 at incompetently.” added). relationship between (emphasis The press release did conclusion that The Cincinnati, University County, public also concern upon matters not touch subject of various Center was that the statement changed by fact press newspaper before the release articles that local release or made was addition, that fact Gil- was issued. In Ma Rahn. station television interviewed sought 75% the beds reath to make (6th F.2d 609 Village tulin Lodi newspaper disclosed an earlier also was Cir.1988), that held statements this Court Therefore, press release did not article. print which were by public employee made any The public corruption. “disclose” deserving First newspaper ined were of the facts. was aware because, part, protection Amendment a conse story and as covered media for Rahn During argument, oral counsel statement touched employee’s quence corruption exposing Rahn was stated that Id. concern. upon a matter landscaping contracts were because although Court reasoned Matulin The to the Administrator’s wife. awarded may personal stake have a release, however, not mention this. did interview, “finding substance merely stated that new press release strengthened by the ... concern is at the landscaping had been done atten not solicit the plaintiff did fact money well questioned whether this media, responded simply tion of the but linking any of spent. is no evidence There *7 controversy.” existing regarding questions an corruption at Drake Cen- allegations to the Matulin, plaintiff in who was the Unlike Id. noted: As the Barms Court ter. not and did herself newspaper contacted may justi- Thompson have been While interview, press Rahn issued the the initiate of the section his beliefs that his fied in attempt to in an obtain to the media release Program not re- Enterprises did Business exposure when she delivered media budget, that enough operating of the ceive in the afternoon DDMH a 24-hour Program had should have the circumstances, the fact that a these Under one he instituted repair deadline before reported the station issuance television local propriety wisdom and the and that that on its local news press of the release practic- Program’s purchasing the that some change the conclusion not does night, presented no evi- he questionable, upon a es was not touch matter press release did the Quinn, tax-collecting operations. Id. at 991. 674 F.2d division’s relies on Monsanto 8. Rahn touched the letters Circuit held that (3rd Cir.1982) position The Third support that of her concern, they public because upon matters endangerment patient is matter possible inefficiency. corruption exposed Monsanto, however, easily public concern. distinguishable the instant significantly from hand, Here, press did release on the other the Monsanto, employee of tax appeal. In an the ad- any being committed. fraud not disclose Virgin dition, let- Islands wrote several press speculated of the that the new division release the possible patient At least one might head of tax division. endan- the create a ters work rules employees press release did not germent stated several the letters that situation. endangerment situation exist- attempted govern- patient the to defraud division had state that tax Therefore, Rahn's present filing em- moment. tax returns. The ed at the fraudulent ment change this does problems reliance on Monsanto in the ployee claimed that these Court’s conclusion. impairing the effectiveness were division linking any charges specific staffing, dence these to cor- information about the bud- ruption Program. in the Bureau or in the get patient provided by and desired mix the Consequently, having instead addressed glittering generali- administration instead of concern, public Thompson’s a matter of honeycoated, meaningless slogans.” ties and complaints appear nothing to be more than Again, employees’ this statement reflects the examples quintessential employee “of the dissatisfaction with the new administration management incompetent- beef: has acted upon and does not touch ly.” Finally, concern. the fifth area the Commit- (citation omitted) sought (emphasis tee clarification on “[t]he Id. at 734 add- desecra- ed).9 employee tion of benefits and retirement counseling prior funds without with the staff Barnes, press As was the case the re- making changes. again This move has accurately lease before this Court is most widespread created among discontent the employee grievance characterized as an con- hospital staff.” fifth area underscores cerning policy. internal office This is best press conclusion that this release relates by examining illustrated the five areas on employees’ matters of the interest at sought which the Committee clarification. Drake Center and does not relate to matters The first area was “New work rules which concern. The overall tone of the widespread have caused discontent press five areas of interest release hospital high staff which has created a absenteeism, press employee reveal release is an possibly developing patient grievance, press couched in a endangerment release from situation.” There is no tena- argument the “Committee.” anything ble that this is else be- employee grievance sides an with the new Moreover, press release characterized administration. The second area addressed “the devil” and asked for his “[fjailure publish of the administration to new, resignation progressive, positive “and a long range goals the short hospi- for the capable [to Administrator be named].” complete tal disregard input and a for the language supports This also the conclusion staff, hospital patients and relatives that this actually quin- release was County might and citizens of Hamilton have employee tessential disgruntled beef from Again, key to make.” here is the lack of employees. input goals from the staff on the hospital. always It can be claimed that Thus, despite Rahn’s assertion to the con- might input the citizens wish to have some release, trary, while from the Com- goals institution. In almost mittee, did not address the interest of non- every public employee brought case under employees respect improving DDMH. Amendment, First could Rather, Rahn spoke for herself and other *8 public might contend that the wish to air employees through Finally, the Committee. goals any public their views on the of institu- the mere fact that the Committee was seek- tion. ing open meeting County an with “the Com- missioners, “[fjailure University officials, of Cincinnati third area addressed the to Administrators, Hospital Drake disclose the philosophies the actions and of Citizens the County, Staff, of Hamilton County University Hospital new Hamilton Drake of Cincin- — corporation Hospital operate nati Patients and hospi- formed to the Relations” does case, change tal In not the [Drake Center].” this this state- outcome this case. In accurately case, ment any public employee is most almost public characterized as the the employees complaining about the new can assert admin- that he or she wishes an changes open meeting istration and the governmental agency the work rules. with the The fourth area dealt with “[a] desire to have and the community citizens of the local to best, press ing 9. The district corruption. court held that the release press Gilreath with At the fairly support could charges be read to spending conclusion that release Gilreath with not mon- charged corruption. ey it respect landscap- For the in a wise fashion with to the text, reasons set hospital. forth in the this Court that finds This does not constitute a press Barnes, fairly the charg- public release cannot be read as matter of supra. concern. See
415
Hospital. Af-
provided funds for Drake
Thus,
very
not
this is
the issues.
discuss
levy
passed,
corpo-
ter the
determining
this is
whether
relevant
Hospi-
manage
to
ration was formed
concern.
public
of
matter
directly addressed
speech
Rahn’s
tal.
press re-
Thus,
finds that the
Court
this
of tax
use
dollars
Center’s
Gilreath’s
public
of
upon a matter
not touch
did
lease
manage
hospital.
the
deserving
concern,
not
of
therefore was
notes,
majority
speech
the fact that
As the
protection.
First Amendment
expenditures
government
and effi
concerns
III.
automatically qualify speech
ciency
does
addressing
public
of
concern.
matter
district
the
Accordingly, we REVERSE
McDowell,
725,
F.2d
Barnes v.
848
733
in See
judgment entered
the
and VACATE
court
(6th
denied,
1007,
Cir.1988), cert.
488 U.S.
action.
(1989).
789,
Circuit discussed availability quality, and cost of health
“the important most and de-
care are Healthcare, issues of our time.” U.S.
bated Philadelphia,
Inc. v. Blue Cross Greater (3rd Cir.1990). 898 F.2d 917-19 provision pay-
The debate over the of and squarely falls
ment for health care within the protec-
heart of the First Amendment. Its
tion should extend to the debate on health reform, at
care even where occurs a local
level, as in the instant case. intent, form,
Viewing the and context of speech
Rahn’s as revealed rec- whole
ord, speech I would conclude the was a mat- concern, therefore, of public
ter entitled protection. SERVICES,
TATA CONSULTANCY
A TATA DIVISION OF SONS
LTD., Plaintiff-Appellant, INTERNATIONAL, INC.,
SYSTEMS d/b/a Syntel, Inc., al., et Defendants-
Appellees.
No. 92-1767. Appeals,
United States Court of
Sixth Circuit.
Argued April Aug.
Decided surance, Symposium, Policy 1984); 2. See also (July Law and 69 Iowa L.Rev. 1351 David Rationing: Lauter, Health Care Models and Accountabili- Challenged Clinton on Cost Health Care 1992); ty, (May 140 U.Pa.L.Rev. 1505 Susan Times, 8, 1994, A17; Employers, April L.A. at Powley, Caring Elizabeth the Nation —Current Seib, Right Gerald F. Clinton's Choice: or Left Reform, Issues in Care Health 1992); Vand.L.Rev. Care?, Journal, 24, 1993, Health Wall Street Nov. (May Wing, Symposium, Kenneth R. A18; Fritz, Cautiously Sara U.S. Awaits Clin- Policy Legal American Health in the 1980’s: The Times, Program, Sept. ton Health L.A. *10 Containment, Implications Health Care Cost Al; Sullivan, Joseph Program F. Health Care (1986); Case W.Res.L.Rev. 608 Charles D. Wel- Endorsed, Times, New York Nov. at B6 ler, Symposium, "Free Choice" as Restraint of col. 1. Delivery Trade in American Health Care and In-