United States Court of Appeals, Tenth Circuit
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14 IER Cases 714, 98 CJ C.A.R. 5267
Carol PARADIS and Kathleen M. Ryan, Plaintiffs-Appellees,
v.
MONTROSE MEMORIAL HOSPITAL, County of Montrose
and Quorum
Health Resources, Inc., a Delaware corporation
doing business in Colorado, formerly
known as HCA Management,
Company, Inc., Defendants,
and
Dennis Doerer, in his individual capacity and in his
capacity as Program Director of the Care Center In-Patient
Unit of Montrose Memorial Hospital and Tyler Erickson, in
his individual capacity and in his capacity as Administrator
of Montrose Memorial Hospital, Defendants--Appellants.
No. 97-1161.
United States Court of Appeals,
Tenth Circuit.
Oct. 14, 1998.
Submitted on the briefs: *
A. James Johnston and Jonathan B. Sprague of Post & Schell, P.C.,
Philadelphia, PA, John A. Brooks of Brooks & Brooks, Montrose, CO for
Defendants-Appellants.
Diane S. King, David C. Feola of King, Minnig, Clexton & Feola, LLC,
Denver, CO for Plaintiffs-Appellees.
Before SEYMOUR, Chief Judge, LUCERO and MURPHY, Circuit
Judges.
LUCERO, Circuit Judge.
In this case, we inquire whether hospital staff allegations of fraud, malfeasance,
and discrimination by certain hospital administrators are of sufficient public
concern to be protected under the First Amendment. We also determine
whether the First Amendment protections afforded such speech were clearly
established at the time hospital administrators purportedly retaliated by firing
the staff concerned. Because we answer both questions affirmatively, we
uphold the district court's rejection of the administrators' claims of qualified
immunity.
* Appellees Carol Paradis and Kathleen Ryan are registered nurses. Both
worked in management roles at the Care Center In-Patient ("CCIP") Unit of
Montrose Memorial Hospital. After appellees resigned from their positions,
they brought claims under 42 U.S.C. 1983 alleging that appellants Dennis
Doerer, the Program Director of the CCIP unit, and Tyler Erickson, the
hospital's Administrator and Chief Executive Officer, violated their First
Amendment rights.
The two nurses' complaint states that they were retaliated against and ultimately
constructively discharged after speaking to hospital administrators about
appellant Doerer's allegedly unethical and illegal conduct. According to
appellees, Doerer pressured staff to shorten or lengthen patients' stays based
solely on the patients' financial resources, engaged in insurance fraud, practiced
medicine without a license, and discriminated based on sex and religion.
Appellees brought their allegations against Doerer to appellant Erickson and to
former CCIP Unit Medical Director Dr. Wilson, Medical Director Dr. Benson,
Business Manager Christian, and Chief Financial Officer White. None of these
administrators remedied the situation.
Appellants moved for partial summary judgment on appellees' free speech
claims. Contending that none of these claims involved issues of public concern,
appellants asserted an entitlement to qualified immunity. The district court did
not accept this contention, finding instead that, at the time appellees brought
their allegations to the attention of hospital administrators, it was clearly
established that such speech was of public concern. Appellants bring an
interlocutory appeal of the denial of summary judgment. They insist that the
district court erred because allegations of health care fraud and malfeasance
made to senior hospital administrators do not constitute matters of public
concern for purposes of First Amendment analysis. In the alternative,
appellants argue that the law protecting such speech was not clearly established
at the time appellees raised their allegations. We exercise jurisdiction pursuant
to 28 U.S.C. 1291, and affirm.
II
5
The trial court rejected appellants' motion for summary judgment because it
found that the nurses' factual allegations, if true, were sufficient to deny
appellants qualified immunity as a matter of law. We review that legal
determination de novo. Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir.1994).
Under the doctrine of qualified immunity, "government officials performing
discretionary functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known." Harlow
v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
* Appellants contend that appellees' allegations, even if substantiated by the
evidence, do not comprise speech protected under the First Amendment, and
therefore appellants' conduct cannot have violated appellees' constitutional
rights. To be protected, employee speech must involve a matter of public
concern. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708
(1983).1 To determine whether speech is of public concern, a court must
examine the "content, form and context of a given statement, as revealed by the
whole record." Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. The court should
also consider whether the speech is directed at a public issue or is merely an
attempt to redress personal grievances. Workman v. Jordan, 32 F.3d 475, 483
(10th Cir.1994). To be protected, speech must fairly relate to a "matter of
political, social or other concern to the community." Connick, 461 U.S. at 146,
103 S.Ct. 1684.
Appellees claim that appellant Doerer based patients' treatment on their ability
to pay, practiced medicine without a license, engaged in insurance fraud,
subjected patients and staff to religious harassment, and sexually harassed staff.
These are self-evidently matters of "political, social, or other concern to the
community." Id.; see also Schalk v. Gallemore, 906 F.2d 491, 495-96 (10th
Cir.1990) (holding that employee letter addressing, inter alia, "waste,
inefficiency, and favoritism" at public hospital touches on matters of public
concern).
We reject appellants' contention that such allegations are better characterized as
personal grievances. The two nurses cannot reasonably be said to have had a
purely personal interest in stopping appellant Doerer from basing patients'
length of stay on their financial resources, nor in stopping the religious
harassment of patients and staff and the sexual harassment of other staff. See
Patrick v. Miller, 953 F.2d 1240, 1247 (10th Cir.1992) (holding that employee's
statements made to protect colleague from discrimination are not properly
characterized as personal grievance). Moreover, appellees made their statements
to senior hospital managers such as the Administrator and Chief Executive
Officer, the Chief Financial Officer, the Medical Director, and the Medical
Director of the CCIP Unit, all of whom presumably had authority to take action
in response to the complaints. See Schalk, 906 F.2d at 495 ("An allegation of
corrupt and wasteful practices at a large municipal hospital, made to the city
official empowered to investigate such charges, obviously involves a matter of
public concern.") (quoting Rookard v. Health & Hosps. Corp., 710 F.2d 41, 46
(2d Cir.1983)).
9
We also reject appellants' argument that public employees are not protected by
the First Amendment unless they "go public" with their allegations or bring
them to the attention of a directorial board. See Givhan v. Western Line
Consolidated Sch. Dist., 439 U.S. 410, 415-16, 99 S.Ct. 693, 58 L.Ed.2d 619
(1979) (noting that a public employee does not lose his First Amendment rights
when he chooses to communicate privately with his employer rather than
spread his views before the public). It is true that in Schalk the plaintiff raised
her allegations to members of the hospital board, but Schalk 's determination
that her speech was of public concern is not contingent upon that specific
audience.
B
10
Appellants also assert that, even assuming appellees' speech was of public
concern, the law at the time did not clearly establish the speech as such. We
disagree. Given the state of the law when appellants allegedly retaliated against
appellees based on their speech, appellants should have known that appellees'
speech was of public concern. See Anderson v. Creighton, 483 U.S. 635, 640,
107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ("[A] constitutional right is clearly
established if the contours of the right are sufficiently clear that a reasonable
official would understand that what he is doing violates that right.") (internal
quotations omitted).
11
"Ordinarily, in order for the law to be clearly established, there must be a
Supreme Court or Tenth Circuit decision on point, or the clearly established
weight of authority from other courts must have found the law to be as the
plaintiff maintains." Medina v. City and County of Denver, 960 F.2d 1493,
1498 (10th Cir.1992). Schalk and Patrick control our conclusion that appellants
were on notice of the protected nature of appellees' speech. Both involve facts
very similar to those present in this case and were decided prior to appellees'
alleged constructive termination.2
12
Schalk concludes that a nurse at a public hospital who sent a letter to the
hospital board and to the City Council concerning, inter alia, waste,
inefficiency, and favoritism at the hospital engaged in speech of public
concern. Schalk, 906 F.2d at 495. While the Schalk court found that the
defendant was entitled to qualified immunity because the law on this issue was
not clearly established, id. at 499, that case clearly placed others on notice that
such speech involves matters of public concern. Cf. Melton v. City of
Oklahoma City, 879 F.2d 706, 729 n. 36 (10th Cir.1989) ("[T]o the extent that
courts in analogous (but not necessarily factually identical) cases have struck
the necessary [Pickering ] balance, government officials will be deemed "on
notice" that their actions will be measured according to clearly established law
and qualified immunity may not be available to them."), modified on other
grounds, 928 F.2d 920 (1991) (en banc). Patrick, 953 F.2d at 1242-43, 1247,
holds that an employee engages in public concern speech when informing the
city attorney of an intent to assist a subordinate with her race discrimination
claim, and when objecting at a meeting of the City Retirement Board to the
city's practice of using city retirement funds to balance the budget. Both of
these cases clearly established that appellees' speech was of public concern and
was entitled to protection under the First Amendment. Accordingly, appellants
may not invoke a qualified immunity defense.
13
The denial of summary judgment is AFFIRMED.
At the parties' request, the case is unanimously ordered submitted without oral
argument pursuant to Fed. R.App. P. 34(f) and 10th Cir. R. 34.1.9
The Connick public concern requirement is only one step in a multi-tiered
analysis applicable to claims that a public employer has terminated an
employee in violation of her First Amendment rights. The court must also
balance the interests of the employee in making the statement against the
employer's interest "in promoting the efficiency of the public services it
performs through its employees." Pickering v. Board of Educ., 391 U.S. 563,
568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Next, a plaintiff must show that the
speech was a motivating factor in her termination. Mount Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471
(1977). Finally, the employer can still prevail if it shows that it would have
made the same decision regardless of the protected speech. Id. Appellants argue
to us only that the district court erred in concluding that the speech was of
public concern. Consequently, we do not examine the remainder of this multitiered test
Paradis alleges she was constructively terminated in August 1995, Ryan in May
1993. Schalk and Patrick were decided in 1990 and 1992, respectively
