Title Sanguigni v. Pittsburgh Board of Public Education
Date 1992
By Alito
Subject First Amendment\Freedom of Speech
Contents
Page 1
217 of 238 DOCUMENTS
PHYLLIS J. SANGUIGNI, Appellant v. PITTSBURGH BOARD OF PUBLIC EDUCATION, a municipal corporation and entity; WILLIAM FISHER, individually and in his capacity as Principal of Taylor Allderdice High School; RICHARD WALLACE, individually and in his capacity as Superintendent of the Pittsburgh Public Schools; LEE B. NICKLOS, individually and in her capacity as Director of Personnel of the Pittsburgh Board of Public Education; ANN BIHARY, individually and in her capacity as Vice Principal of Taylor Allderdice, Appellees
No. 91-3491
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
968 F.2d 393; 1992 U.S. App. LEXIS 15102
January 23, 1992, Argued
July 1, 1992, Filed
PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 90-01629)
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant teacher chal- lenged the judgement of the United States District Court for the Western District of Pennsylvania, which dismissed her complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. She filed a suit against appellees, school of- ficials in their individual and official capacities, the board of education, and its personnel director in her individ- ual and official capacities, alleging constitutional rights violations.
OVERVIEW: Appellant teacher wrote a paragraph in the faculty newsletter that made references to teachers being put under stress, having bad luck, and leaving the building with low esteem. She maintained that her lowered perfor- mance appraisals and removal from her coaching posi- tions were in retaliation for her criticisms in the newslet- ter. She filed suit against appellees, school officials in their individual and official capacities, the board of education, and its personnel director in her individual and official capacities, alleging violations of her freedom of speech and association rights under U.S. Const. amend. I and due process with regard to her removal from her coaching jobs, in addition to pendent state claims. The district court dismissed her complaint under Fed. R. Civ. 12(b)(6) for failure to state a claim. On appeal, the court affirmed the decision because her statements in the newsletter were not statements of public concern for which public employees
were protected under U.S. Const. amend. I. The court held appellant's rights of association were not violated, as she had not proven a property right for which due process was required before she was removed as a coach.
OUTCOME: The court affirmed because it held that ap- pellant teacher's statements in a faculty newsletter were not statements of public concern protected by the First Amendment. It held that her right to free association was not violated. It held that she had no right to due process or a protected property interest in her coaching positions, and that the district court's dismissal for failure to state a claim was proper.
LexisNexis(R) Headnotes
Civil Procedure > Pleading & Practice > Defenses, Objections & Demurrers > Failure to State a Cause of Action
Civil Procedure > Appeals > Standards of Review > De
Novo Review
HN1 In an appeal from a dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, the court's scope of review is plenary, and it must accept as true all facts alleged in the complaint and all reasonable inferences that can be drawn from them.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Public Employees' Speech
HN2 While holding that public employees enjoy sub- stantial free speech rights, it is nonetheless recognized that the state has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. In determining a public
968 F.2d 393, *; 1992 U.S. App. LEXIS 15102, **1
Page 2
employee's right to free speech, it is necessary to arrive at a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Public Employees' Speech
HN3 With respect to personnel actions, the rights under U.S. Const. amend. I are implicated only when a public employee's speech relates to matters of public concern. When employee expression cannot be fairly considered as relating to any matter of political, social, or other con- cern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the U.S. Const. amend. I. This rule reflects the fact that speech on matters of public concern is at the heart of the protection of U.S. Const. amend. I.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
HN4 Speech on public issues occupies the highest rung of the hierarchy of the values of U.S. Const. I, and is en- titled to special protection. In contrast, speech on matters of purely private concern is of less concern under U.S. Const. amend. I.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Public Employees' Speech
HN5 Speech related to broad social or policy issues is of public concern.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Public Employees' Speech
HN6 Complaints about racial discrimination constitute matters of public concern.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Public Employees' Speech
HN7 Statements can be of public concern if they involve speech that not only touches on broad social issues but also implicates the discharge of public responsibilities by an important government office, agency, or institution. Constitutional Law > Fundamental Freedoms > Freedom of Speech > Public Employees' Speech
HN8 A statement that is a public concern involves speech that relates primarily to the way in which a gov- ernment office was serving the public.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Public Employees' Speech
HN9 The fact that speech is addressed to public officials may indicate that the speech deals with a matter of pub- lic concern. However, the fact that speech clearly dealing
with a matter of public concern is not addressed to the public does not vitiate its protected status.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Public Employees' Speech
HN10 An opposite conclusion has been reached, that the speech is not of public concern, regarding speech related solely to mundane employment grievances. Constitutional Law > Procedural Due Process > Scope of Protection
HN11 The requirements of procedural due process ap- ply only to the deprivation of interests encompassed by U.S. Const. amend. XIV's protection of liberty and prop- erty. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.
Constitutional Law > Procedural Due Process > Scope of Protection
HN12 A property interest in state employment exists where an employee has a legitimate claim of entitlement to such employment under state law, policy, or custom. An employee, however, must have more than an abstract type of unilateral expectation.
Contracts Law > Types of Contracts
Constitutional Law > Procedural Due Process > Scope of Protection
HN13 Only two types of contracts have been found to be property protected by U.S. Const. XIV. The first is a con- tract that confers a protected status, such as a tenure con- tract providing for permanent employment. The second is a contract explicitly providing that it may be terminated only for cause.
COUNSEL: EDWARD A. OLDS, ESQ. (Argued), 1808
Law and Finance Building, Pittsburgh, PA 15219, Attorney for Appellant.
P. DANIEL ALTLAND, ESQ. (Argued), CLECKNER AND FEAREN, 31 North Second Street, Harrisburg, PA
17101, Attorneys for Appellees.
JUDGES: Before: STAPLETON, SCIRICA, and
ALITO, Circuit Judges OPINIONBY: ALITO OPINION: *395
OPINION OF THE COURT
ALITO, Circuit Judge:
Phyllis J. Sanguigni, a public high school teacher, filed
968 F.2d 393, *395; 1992 U.S. App. LEXIS 15102, **1
Page 3
this action against the school board and various school of- ficials, alleging that she had lost her coaching positions and had been penalized in other ways for publishing cer- tain statements in a faculty newsletter. She asserted First Amendment and due process claims, as well as pendent state claims. The district court dismissed her complaint for failure to state a claim. We hold that the statements in question do not pertain to matters of "public concern" un- der Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103
S. Ct. 1684 (1983), and related cases and that Sanguigni did not adequately allege that she had a property interest in her coaching positions. We therefore affirm.
I.
These are the **2 relevant facts that were alleged in the complaint. n1 Sanguigni is a tenured health and phys- ical education teacher at Taylor Allderdice High School in Pittsburgh. While at Taylor Allderdice, Sanguigni has coached various athletic teams and has been president of the Faculty Association, an organization of Taylor Allderdice staff members. According to Sanguigni's com- plaint, the Association "had been primarily a social group" but has "broadened its purpose and "has become respon- sive to professional problems facing the professional and non-professional staff." App. at 8a.
n1 Since this is HN1 an appeal from a dis- missal of a complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, our scope of review is plenary, and we must accept as true all facts alleged in the complaint and all reasonable inferences that can be drawn from them. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990).
The statements that form the basis of Sanguigni's complaint appear in an April 1989 edition **3 of the Association's newsletter, the "Faculty Update." A copy of this publication is appended as an exhibit to Sanguigni's complaint. Because we must assess "the content, form, and context" of Sanguigni's statements, Connick, 461 U.S. at 147-148, we must describe the newsletter in some de- tail.
The newsletter is a one and one-half page typewritten document, consisting of nine paragraphs. Paragraph one expresses sympathy for several staff members whose rel- atives had died. Paragraph two recounts that Mrs. Barbara Shuty had received the "extra effort button" and requests recommendations for future "extra effort button" recip- ients. Paragraph three, which contains the statements at issue in this case, reads as follows:
We offered a few months back a bit on
RETIREMENT WITH DIGNITY . . . it
seems we need to add another moral support pitch for all concerned. Believe us if you or any staff member needs support to make your day at ALLDERDICE, feel free to contact an officer of the ASSOCIATION . . . It again has been called to our attention staff members are being put under undue stress. There must be a way to CORRECT this situation. We can not understand why some fellow **4 teachers have had such bad luck this year and leave the building with such low esteem. We want you to know this issue is one of our prior- ities in making the difference this year at ALLDERDICE. If you can help us get to the bottom of the problem, PLEASE, PLEASE see us NOW. We want you to be a part of the good that exists here at ALLDERDICE. Maybe we can take the words of Thomas Jefferson and rephrase them for us now . .
. "the care of human life and happiness and NOT THEIR DESTRUCTION the first and only legitimate object of good government" .
. . good teaching, good education, good con- ferences???
App. at 10a.
Paragraph four lists the March bingo winners and dis- cusses plans for the upcoming "April showers bingo." Paragraph five admonishes staff members to submit their menu selections for the June faculty *396 luncheon and to join the PTA. Paragraph six congratulates Mr. Joe Foytick for winning employee-of--the-month hon- ors. Paragraph seven advises any employees considering retirement to notify an Association officer so that the Association can "make the employee's last day special." Paragraph eight discusses nominations for Association officers, and paragraph nine thanks the Sunshine **5 Committee. The newsletter is signed by Sanguigni and three others.
Sanguigni's complaint alleged that she had written paragraph three, which was quoted above, "to state her opposition to the pattern of harassment, oppression and retaliation that exists in the school, and encourage the or- ganization of opposition to and collective action against such unlawful conduct." The complaint charged that in re- cent years faculty morale has been poor because Principal William Fisher, assisted by Vice Principal Ann Bihary, has made false retaliatory accusations of misconduct against any teacher who criticized Fisher. The complaint alleged that Fisher's conduct is condoned and encour- aged by the Pittsburgh Board of Education, its superin- tendent, Richard Wallace, and its director of personnel, Lee Nicklos.
968 F.2d 393, *396; 1992 U.S. App. LEXIS 15102, **5
Page 4
The complaint alleged that Fisher and Bihary "un- derstood the statements in the newsletter as criticisms of them" and that they immediately attacked Sanguigni in retaliation. According to the complaint, Fisher, with Wallace's encouragement, gave Sanguigni unsatisfactory ratings for her performance as basketball and softball coach during the 1988-1989 school year and eventually removed her from her **6 coaching positions. The complaint further charged that Fisher and Bihary contin- uously harassed and threatened Sanguigni, causing her much stress and anxiety. Moreover, Sanguigni alleged, Fisher gave her a "satisfactory/below average" rating for her teaching performance during the 1989-1990 school year and appeared bent on causing her to quit or be fired from her teaching position. Sanguigni stated that she com- plained about this unfair treatment to Nicklos but that Nicklos ignored her evidence.
Sanguigni filed this action in the district court against the Pittsburgh Board of Education, Fisher, Wallace, Nicklos, and Bihary, alleging that the defendants had vio- lated her rights to freedom of speech, freedom of associ- ation, and due process. She also asserted various pendent state claims. As previously noted, the district court dis- missed the action pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The district court held that un- der Connick v. Myers, supra, Sanguigni's statements were not a matter of public concern and were therefore not protected by the First Amendment. The could also held that there had been no violation of Sanguigni's due pro- cess rights **7 because she had no property right in her coaching position. Sanguigni appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
A. We turn first to Sanguigni's claim that the defen- dants violated her right to freedom of speech by penalizing her for statements made in the newsletter. Of course, the day has long since passed when individuals surrendered their right to freedom of speech by accepting public em- ployment. See Connick, 461 U.S. at 143-44; Pickering v Board of Education, 391 U.S. 563, 568, 20 L. Ed. 2d 811,
88 S. Ct. 1731 (1968). Today, public employees enjoy substantial free speech rights, as the Supreme Court's de- cision in Rankin v. McPherson, 483 U.S. 378, 97 L. Ed. 2d
315, 107 S. Ct. 2891 (1987), strikingly illustrates. There, the Court held that the First Amendment prohibited the firing of an employee of a county constable's office for saying to a co-worker during a private conversation in the workplace that if another attempt was made to assassinate President Reagan, "I hope they get him."
HN2 While holding that public employees enjoy substantial free speech rights, the Supreme Court has nevertheless recognized that "the State has interests as
an employer in regulating **8 the speech of its em- ployees that differ significantly from those it possesses
*397 in connection with regulation of the speech of the citizenry in general." Pickering, 391 U.S. at 568. The Court has therefore held that, in determining a public em- ployee's right to free speech, it is necessary "to arrive at a balance between the interests of the employee, as a cit- izen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id.
HN3 With respect to personnel actions, the Court has held that First Amendment rights are implicated only when a public employee's speech relates to matters of pub- lic concern. "When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, with- out intrusive oversight by the judiciary in the name of the First Amendment." Connick v. Myers, 461 U.S. at 146. This rule reflects the fact that speech on matters of public concern is "at the heart of the First Amendment's **9 protection." First National Bank of Boston v. Bellotti, 435
U.S. 765, 776, 55 L. Ed. 2d 707, 98 S. Ct. 1407 (1978). See also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759, 86 L. Ed. 2d 593, 105 S. Ct. 2939
(1985) (plurality). As the Court explained in Connick, 461
U.S. at 145 (citations omitted):
The First Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and so- cial changes desired by the people." . . .
"Speech concerning public affairs is more than self-expression; it is the essence of self- government." . . . Accordingly, the Court has frequently reaffirmed that HN4 speech on public issues occupies the "'highest rung of the hierarchy of First Amendment values,'" and is entitled to special protection.
"In contrast, speech on matters of purely private concern is of less First Amendment concern." Dun & Bradstreet, Inc., 472 U.S. at 759 (plurality opinion). See also Connick,
461 U.S. at 146-47. Accordingly, we must determine whether Sanguigni's statements in this case related to a matter of public concern.
B. The Supreme Court and this court have decided nu- merous cases that **10 elucidate the meaning of speech by public employees that relates to matters of public con- cern. We will not attempt to distill from these decisions a precise definition of a matter of "public concern." Nor
968 F.2d 393, *397; 1992 U.S. App. LEXIS 15102, **10
Page 5
will we attempt to provide an exhaustive catalog of the types of statements that may fall within that rubric. We believe, however, that the cases thus far decided by the Supreme Court and by this court may be categorized as follows.
Several cases hold that HN5 speech related to broad social or policy issues is of public concern. For exam- ple, in Rankin, 483 U.S. at 386-87, the Supreme Court seemingly reasoned that the employee's remark regarding the desirability of assassinating President Reagan consti- tuted a comment, albeit an "inappropriate" or "contro- versial" one, as the Court put it, on "the policies of the President's administration." In addition, decisions have held that HN6 complaints about racial discrimination constituted matters of public concern. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 58 L. Ed. 2d 619, 99 S. Ct. 693 (1979); Rode v. Dellarciprete,
845 F.2d 1195 (3d Cir. 1988). n2 See Connick, 461 U.S. at 148 n.8. **11
n2 In Rode, we found the allegations in that case -- concerning discrimination by the Pennsylvania State Police -- to be of particular pub- lic importance because "of the prior protracted his- tory of litigation against the state police charging it with racial animus in its employment practices . .
. and the hearings conducted by the state legisla- ture to determine the extent of racial discrimination in the state police . . . ." Rode, 845 F.2d at 1201-
1202.
Several cases finding HN7 statements to be of public concern involved speech that not only touched on broad social issues but also implicated the discharge of public re- sponsibilities by an important government office, agency, or institution. In Connick, in *398 which a disgrun- tled assistant district attorney circulated a questionnaire to her colleagues, the Court held that one question in the circular -- whether assistant district attorneys felt pressed to work on certain political campaigns -- related to a mat- ter of public concern. The Court **12 observed (461
U.S. at 149) that such pressure would be contrary to the Constitution and to a demonstrated public interest "that government service should depend upon meritorious per- formance rather than political service." Thus, the question at issue related to the broad issue of political patronage and had obvious implications with respect to the effective functioning of the district attorney's office. Other cases involving speech that shared such dual characteristics in- clude Pickering v. Board of Education, supra (teacher sent letter to a newspaper criticizing school's allocation of funds between educational and athletic programs); O'Donnell v. Yanchulis, 875 F.2d 1059 (3d Cir. 1989)
(chief of police told local television station that town- ship supervisors pressured police to "fix" citations); and Johnson v. Lincoln University, 776 F.2d 443 (3d Cir. 1985)
(professor at historically black university commented on alleged lowering of academic standards and the effect on blacks). n3
n3 In Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct.
568 (1977), a teacher telephoned a radio station and revealed the substance of a memorandum writ- ten by the principal to various teachers relating to teacher dress and appearance. This memorandum was "apparently prompted by the view of some in the administration that there was relationship be- tween teacher appearance and public support for bond issues" ( Id. at 282). The Court held that the teacher's speech was constitutionally protected. Because the Court provided little explanation for this holding, the Court's precise reason for view- ing this speech as a matter of public concern is not clear. The speech may, however, be viewed either as related to a social or political issue (teacher dress codes or efforts to influence voters) or to the effec- tiveness of the school. See also footnote 2, supra
(discussing Rode v. Dellarciprete, supra).
**13
Some decisions in which HN8 statements were found to be a public concern involved speech that related primarily to the way in which a government office was serving the public. For example, in Czurlanis v. Albanese,
721 F.2d 98 (3d Cir. 1983), a county employee appeared at a meeting of the county's governing body, criticized the county and state governments for practices "that he con- sidered inefficient, wasteful, and possibly fraudulent and, in some cases, made suggestions for correcting the prob- lems." Holding that these statements related to matters of public concern, we wrote ( id. at 104):
Unlike the plaintiff in Connick, Czurlanis spoke as a concerned citizen and taxpayer and not as an aggrieved employee. He protested the waste of taxpayer money and alleged serious deficiencies in record keep- ing. . . . Information concerning the function- ing of a segment of the County government is of considerable public importance . . .
We also noted that "he raised these matters before the .
. . body with legislative power and investigative power germane thereto." See also Perry v. Sindermann, 408 U.S.
968 F.2d 393, *398; 1992 U.S. App. LEXIS 15102, **13
Page 6
593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972) (college pro- fessor's **14 legislative testimony and other statements critical of the Board of Regents may be constitutionally protected).
Finally, one of our decisions, Zamboni v. Stamler, 847
F.2d 73 (3d Cir.), cert. denied, 488 U.S. 899, 102 L. Ed. 2d
233, 109 S. Ct. 245 (1988), the case that Sanguigni finds
"most analogous" to her own, n4 involved speech that was of public concern because it formed part of official pro- ceedings concerning important alleged improprieties by a government office. In that case, a detective in a county prosecutor's office criticized certain aspects of the opera- tions of the office, particularly a reorganization plan that adversely affected him. He also wrote to the state civil ser- vice commission and sued in state court, contending that the reorganization plan violated state civil service laws. In holding that these criticisms were matters of public con- cern, we found it relevant that the detective had directed his comments "to the appropriate officials who were in a position to redress" the challenged *399 actions n5 and that "in all of these expressions he referred to the policy issue as well as to his personal complaint." 847 F.2d at
78.
n4 Appellant's Brief at 10.
**15
n5 We see no inconsistency between our re- liance in Czurlanis and Zamboni on the official context in which the statements were made and the Supreme Court's holdings in Rankin, 483 U.S. at
386 n.11, and Givhan, 439 U.S. 410, 58 L. Ed. 2d
619, 99 S. Ct. 693, that private remarks may re- late to matters of public concern. HN9 The fact that speech was addressed to public officials may indicate that the speech dealt with a matter of pub- lic concern. However, the fact that speech clearly dealing with a matter of public concern was not ad- dressed to the public does not vitiate its protected status.
While all the statements described above were found to involve matters of public concern, HN10 an oppo- site conclusion has been reached regarding speech re- lated solely to mundane employment grievances. Thus, in Connick, all of the questions on the questionnaire ex- cept the one related to political campaigns -- questions regarding office transfer policy, office morale, the need for a grievance committee, and the employees' level of confidence in supervisors -- were found not to be of pub- lic concern. The **16 Court elaborated (461 U.S. at
148):
Myers the dissatisfied employee did not seek to inform the public that the District Attorney's Office was not discharging its governmental responsibilities in the inves- tigation and prosecution of criminal cases. Nor did Myers seek to bring to light actual or potential wrongdoing or breach of pub- lic trust on the part of Connick and others. Indeed, the questionnaire, if released to the public, would convey no information at all other than the fact that a single employee is upset with the status quo. While discipline and morale in the workplace are related to an agency's efficient performance of its duties, the focus of Myers' questions is not to eval- uate the performance of the office but rather to gather ammunition for another round of controversy with her superiors.
Somewhat similarly, in Gaj v. United States Postal Service, 800 F.2d 64, 67 (3d Cir. 1986), we held that an employee's complaints about safety matters and work- ing conditions did not relate to matters of public concern because the complaints were not made to protect the in- terests of other employees but only to protect the interests of the complaining **17 employee himself.
C. In light of these precedents, we are convinced that Sanguigni's statements in the present case did not relate to a matter of public concern. Sanguigni did not com- ment on any broad social or policy issue. Nor did she comment on how the Taylor Allderdice School was dis- charging its educational responsibilities or how the school authorities were spending the taxpayers' money. And un- like the employee in Zamboni, her comments were not made as part of judicial or administrative proceedings; she did not raise any "policy issue"; and her newsletter did not allege any violations of laws. Rather, her state- ments focused solely on employee morale, and we see no meaningful distinction between these statements and those found unprotected in Connick. In Connick, 461 U.S. at 148, as we have noted, the Supreme Court observed that
"the questionnaire, if released to the public, would con- vey no information at all other than the fact that a single employee is upset with the status quo." Here likewise, the newsletter, if circulated to the public, would convey little, if any, information other than that some faculty members were "being put under undue stress," **18 had expe- rienced "bad luck," and had left the building with "low esteem."
We also find the "context" of Sanguigni's statements to be significant. See Connick, 461 U.S. 138 at 147-48,
968 F.2d 393, *399; 1992 U.S. App. LEXIS 15102, **18
Page 7
75 L. Ed. 2d 708, 103 S. Ct. 1684 . As previously noted, Sanguigni's comments appeared in a faculty newsletter otherwise devoted exclusively to topics such as extra ef- fort buttons, the "April showers bingo," the faculty lunch menu, the employee-of--the-month award, and the work of the Sunshine Committee. n6
n6 It is conceivable that a statement on a matter of great public concern might appear in such a pub- lication but the context in which a statement appears is nevertheless relevant in assessing its character.
*400
In sum, we hold that Sanguigni's statements did not relate to matters of public concern. Accordingly, the dis- trict court properly dismissed her free speech claim.
III.
Sanguigni argues that the defendants also violated her right to freedom of association, since statements in the newsletter were intended to organize faculty opposition to the school administration. **19
Sanguigni's free association claim touches on an issue on which the circuits are in disagreement. The Sixth and Seventh Circuits have held that the analysis set forth in Connick applies to both freedom of speech and freedom of association claims. See Griffin v. Thomas, 929 F.2d
1210, 1212-1214 (7th Cir. 1991); Boals v. Gray, 775 F.2d
686, 691-693 (6th Cir. 1985). These courts have noted that "although Connick did not specifically refer to asso- ciational rights in drawing the distinction between speech on matters of public concern and matters of private con- cern, Connick acknowledged that the governing prece- dent, Pickering, was rooted in cases dealing with speech and associational rights." Griffin, 929 F.2d at 1213; Boals,
775 F.2d at 692. See Connick v. Myers, 461 U.S. 138, 144-
145, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). The Seventh Circuit has also noted that although the First Amendment separately guarantees the right to freedom of speech and to petition the government, these rights "are related and usu- ally subject to the same constitutional analysis." Wayte v. United States, 470 U.S. 598, 610, 84 L. Ed. 2d 547, 105 S. Ct. 1524 n.11 (1985). **20 See also McDonald v. Smith,
472 U.S. 479, 86 L. Ed. 2d 384, 105 S. Ct. 2787 (1985). By contrast, the Eleventh Circuit has held that Connick does not apply to First Amendment associational claims, stating that such a restriction would overturn established precedent and "exact a substantial toll upon first amend- ment liberties." Hatcher v. Board of Public Education & Orphanage, 809 F.2d 1546, 1558 (11th Cir. 1987),
Sanguigni relies on our decision in Labov v. Lalley, 809
F.2d 220 (3d Cir. 1987). In that case, a deputy sheriff
alleged that various personnel actions were taken against him after he attempted to organize a collective bargaining unit and after he gave testimony before a grand jury in- vestigating possible criminal conduct by a former sheriff. This court held that the deputy sheriff had stated a claim under Section 1983, explaining only that "efforts of public employees to associate together for the purpose of collec- tive bargaining involve associational interests which the first amendment protects from hostile state action." Labov,
809 F.2d at 222. The court never mentioned Connick ei- ther with respect to the associational **21 claim or the free speech claim and, in fact, did not address the free speech claim at all. Because the Labov decision does not make clear whether the court found that Connick does not apply in associational cases or that Connick applies but that the speech at issue was a matter of public concern, we do not believe that the Labov decision is controlling here.
In any event, we do not find it necessary to confront the issue whether Connick generally applies to claims involv- ing the freedom of association. We hold only that Connick governs Sanguigni's freedom of association claim because that claim is based on speech that does not implicate as- sociational rights to any significantly greater degree than the employee speech at issue in Connick. The employee in Connick circulated a questionnaire to her colleagues in an apparent effort to elicit their support for her position with respect to the office's transfer police, its handling of grievances, and other matters. See 461 U.S. at 141. Here, Sanguigni asserts that her statements in the newsletter were intended to gather opposition to the school admin- istration. Because we believe that both **22 cases im- plicate associational rights in essentially the same way and to the same degree, we apply the Connick analysis to Sanguigni's freedom of association claim. We therefore affirm the district court's dismissal of that claim on the ground that it did not involve a matter of public concern.
*401 IV.
Finally, Sanguigni argues that the defendants violated her Fourteenth Amendment rights by removing her from her coaching positions without procedural due process. The district court dismissed this claim on the ground that Sanguigni had no property interest in the coaching po- sitions. We agree with the result reached by the district court.
As the Supreme Court has noted (Board of Regents v. Roth), 408 U.S. 564, 569-570, 33 L.Ed.2d 548, 92 S.Ct.
2701 (1972)):
HN11
The requirements of procedural due process
968 F.2d 393, *401; 1992 U.S. App. LEXIS 15102, **22
Page 8
apply only to the deprivation of interests en- compassed by the Fourteenth Amendment's protection of liberty and property. When pro- tected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.
HN12 A property interest in state employment exists where an employee has a legitimate claim of entitlement
**23 to such employment under state law, policy, or custom. An employee, however, must have more than an abstract type of unilateral expectation. Id. at 577-578; Unger v. National Residents Matching Program, 928 F.2d
1392, 1397 (3d Cir. 1991); Bradley v. Pittsburgh Board of Education, 913 F.2d 1064, 1078 (3d Cir. 1990); Stana v. School Dist. of the City of Pittsburgh, 775 F.2d 122, 126
(3d Cir. 1985).
In her complaint, Sanguigni alleged only that "she had a property or liberty interest in the coaching job arising under the Collective Bargaining Agreement and (sic) the Federation of Teachers and the Pittsburgh Board of Public Education and the past practices of the School District." App. at 16a. We do not believe this allegation states a legit- imate claim of entitlement to continued employment as a coach. In Unger v. National Residents Matching Program,
928 F.2d 1392, 1399 (3d Cir. 1991), we noted HN13 that
only two types of contracts have been found to be prop- erty protected by the Fourteenth Amendment. The first is a contract that confers a protected status, such as a tenure contract providing **24 for permanent employ- ment. The second is a contract explicitly providing that it may be terminated only for cause. Sanguigni's collective bargaining agreement does not fall into either of these categories. She has not alleged that under the agreement she had tenure as a coach or that the contract provided for dismissals from such a position only for cause.
In addition to relying on the collective bargaining agreement, Sanguigni alleged that she had a property in- terest in the coaching positions as a result of "the past practices of the School District." However, this conclu- sory allegation without more is plainly insufficient to sat- isfy our requirement that claims of this nature be pled with some specificity. See Colburn v. Upper Darby Township,
838 F.2d 663, 666 (3d Cir. 1988), cert. denied, 489 U.S.
1065, 103 L. Ed. 2d 808, 109 S. Ct. 1338 (1989). We there- fore affirm the district court's dismissal of Sanguigni's due process claim. See also Lagos v. Modesto City Schools Dist., 843 F.2d 347 (9th Cir.), cert. denied, 488 U.S. 926,
102 L. Ed. 2d 328, 109 S. Ct. 309 (1988). **25 V.
For the reasons stated above, we affirm the judgment of the district court.
Contents
Prev
Next
Last
