Opinion
No. 98-2074
February 19, 1999.
ORDER
This case involves multiple civil rights claims filed by Plaintiff, James Ahrenholz, against the Board of Trustees of the University of Illinois ("University"), and the above-named University officials in both their official and individual capacities. Plaintiff's employment with the University is scheduled to end on February 20, 1999. Plaintiff moved for the issuance of a preliminary injunction [#23] to preserve the status quo until trial, which is scheduled for November of this year. In response, Defendants filed an answer and a memorandum in opposition to the motion [#25 #26]. The court conducted an evidentiary hearing on the motion on February 9, 10, and 11, 1999. After considering the evidence presented at the hearing in light of the law governing preliminary injunctions, the court GRANTS the motion for a preliminary injunction.
FACTUAL BACKGROUND
The court heard the testimony of three witnesses: William McNamara, Director of Personnel of the College of Agriculture and the Cooperative Extension; Defendant Dennis Campion, Plaintiff's supervisor and Interim Director of Cooperative Extension Services ("CES"); and Plaintiff. The following facts are drawn from that testimony as well as the numerous exhibits presented at the hearing.
Plaintiff began working at the University in 1984, and eventually became the director of Region V of CES. CES is operated by the University, and runs the 4-H program, an informal educational program for young people. The University administers its extension program throughout the state with the help of seventy-five unit offices, each run by a unit leader. Plaintiff supervised one of the unit leaders, Deborah Simmons. In 1995, Simmons reported to Plaintiff that ten of the adult volunteers under her supervision were diverting 4-H funds for private use and misusing the 4-H emblem. Plaintiff in turn reported the misdeeds to Defendants, who determined that the volunteers had violated both state and federal laws. As a result, Simmons terminated the volunteers on October 13, 1995, with the approval of her superiors at the University and the University's legal counsel. However, the dismissed volunteers promptly complained, causing political problems, and were soon reinstated by Defendants.
After investigating the volunteers' complaints, Defendants decided to terminate Simmons as Unit Leader. Campion ordered Plaintiff to carry out this decision, citing evidence of Simmons' incompetence uncovered by the investigation. Plaintiff refused, stating that the reasons for removing Simmons were inadequate and a pretext for discrimination. Campion told Plaintiff that the decision was final and that "he needed to get on board or consider [his] options." On May 9, 1996, Defendants issued a notice of nonreappointment to Simmons, effectively terminating her employment as of May 20, 1997. Plaintiff wrote to Campion the following day, expressing his opinion that Simmons should not be terminated.
In a letter dated May 30, 1996, Campion discussed Plaintiff's position on Simmons' termination. He stated that Plaintiff's actions regarding Campion's decision to terminate Simmons "have put [Plaintiff] at crossroads with administration." He then informed Plaintiff that "[b]ased on your actions and a concern expressed for the handling of a separate Unit Leader situation, . . . merit pay increase will be difficult for FY97."
In a June 19, 1996 performance evaluation, Plaintiff was criticized for his actions on behalf of Simmons. On July 12, 1996, Plaintiff filed a whistle blower complaint with the Office of the Inspector General ("OIG") of the United States Department of Agriculture ("USDA"), which began its own investigation. In response to an August 8, 1996 letter from Plaintiff protesting Defendants' treatment of Simmons, Defendant Campion again instructed Plaintiff to carry out his directions regarding Simmons. On August 19, 1996, Plaintiff reemphasized his objections to Defendants' instructions to take action against Simmons in light of the pending OIG investigation. On August 21, 1996, Campion notified Plaintiff of his salary for the upcoming year, which did not reflect a raise. About two weeks later, Campion, at the direction of the other Defendants, changed Plaintiff's position from Regional Director of Region V to Regional Director at Large.
In July 1997, Plaintiff met with Campion for a performance evaluation. After expressing his frustration with the way Defendants were treating him as well as Simmons, Plaintiff walked out of the meeting before the evaluation was finished. Campion subsequently gave Plaintiff a negative performance evaluation. That following February, Defendants issued Plaintiff a notice of nonreappointment, effective February 20, 1999. Campion testified that Plaintiff's insubordination and poor work performance prompted that decision. Specifically, Campion pointed to Plaintiff's refusal to follow directions regarding Simmons, his failure to give adequate written performance evaluations to subordinates back in 1996, and the untimeliness and inadequacy of two assignments Campion had asked Plaintiff to finish during the previous year.
ANALYSIS
A "preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 117 S. Ct. 1865, 1867 (1997) (per curiam) (quoting 11A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2948 (2d ed. 1995)). An injunction is an equitable remedy warranted only when the plaintiff has no adequate remedy at law, such as monetary damages. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992). Initially, the plaintiff must show (1) a "`better than negligible' chance of succeeding on the merits," and (2) the inadequacy of legal remedies. Meridian Mut. Ins. Co. v. Meridian Ins. Group, Inc., 128 F.3d 1111, 1114-15 (7th Cir. 1997) (quoting International Kennel Club of Chicago, Inc. v. Mighty Star, Inc., 846 F.2d 1079 (7th Cir. 1988)). If the plaintiff satisfies both of these requirements, the district court proceeds to balance the harm the injunction would cause the defendant against the injury the plaintiff would suffer without the injunction. See Vencor, Inc. v. Webb, 33 F.3d 840, 845 (7th Cir. 1994). The court must also consider the public interest in granting or denying the motion. See Vencor, 33 F.3d at 845.
In this case, Plaintiff claims that Defendants violated his First Amendment rights by retaliating against him for voicing his opposition to Simmons' termination and for reporting Defendants' actions to the OIG. After carefully considering the evidence presented at the hearing, the court believes that Plaintiff has established a likelihood of success on the merits of this claim.
To establish a prima facie case of retaliation under the First Amendment, the plaintiff must show that he engaged in constitutionally protected speech, and that the employer retaliated against him because of that speech. Gorman v. Robinson, 977 F.2d 350, 354 (7th Cir. 1992). The plaintiff must show that the speech involved matters of public concern, and that his interest in reporting on those matters outweighed the state's interest in promoting efficiency of public services as performed through its employees.Gorman, 977 F.2d at 355; Marshall v. Porter County Plan Com'n, 32 F.3d 1215, 1219 (7th Cir. 1994), cert. denied, 518 U.S. 668, 675 (1996). Considered in this balance is the form, context, and, most importantly, content. Marshall, 32 F.3d at 1219. Motive also matters in that promoting a purely private interest is not protected, but motive is not itself dispositive. Marshall, 32 F.3d at 1219. In other words, "[a] personal aspect contained within the motive of the speaker does not necessarily remove the speech from the scope of public concern." Marshall, 32 F.3d at 1219. In sum, a public employee's speech is protected if: (1) it would be protected if spoken by a private citizen; (2) it concerns something more than a personal grievance; and (3) the employer cannot show a convincing reason to forbid the speech.Hulbert v. Wilhelm, 120 F.3d 648, 653 (7th Cir. 1997).
Unless the employee knowingly or recklessly made false statements, a public employer cannot dismiss an employee for speaking out on issues of public importance. Pickering v. Board of Education, 391 U.S. 563, 574 (1968). A suit brought in an attempt to correct allegedly unlawful practices by a public agency or public officials is a matter of public concern, as is the misuse of public office. Zorzi v. County of Putnam, 30 F.3d 885, 897 (7th Cir. 1994); Marshall, 32 F.3d at 1220. A public employee does not forfeit freedom of speech by expressing his views privately rather than publicly. Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 414 (1979). Likewise, using internal memoranda or telephone calls does not forfeit First Amendment rights. Hulbert, 120 F.3d at 654.
In this case, Plaintiff voiced his opposition to what he believed was an illegal and discriminatory personnel action by Defendants. He also reported these alleged violations to the OIG, which conducted its own investigation into the matter. In doing so, Plaintiff was attempting to correct a public agency's allegedly unlawful practices, and his speech therefore involved matters of public concern. Accordingly, Plaintiff's speech invokes the protections of the First Amendment.
Defendants can, however, avoid liability by showing that they would have issued the notice of nonreappointment even if Plaintiff had never engaged in the protected speech. Board of County Comm'rs v. Unbehr, 518 U.S. 668, 675 (1996). To that end, Defendants offered Campion's testimony that they issued the notice of nonreappointment because Plaintiff performed his job poorly. Resolution of this issue will ultimately turn on the credibility of the witnesses. Throughout the hearing, the court viewed carefully the manner and demeanor of each testifying witness, and found Plaintiff to be especially credible. The court further found that Campion was generally hesitant and cautious in his answers, particularly with regard to Plaintiff's job performance. Presented with the same testimony, the ultimate fact-finder in this case could reasonably conclude that Defendants' assertions that they terminated Plaintiff because he performed poorly are pretextual, and that they actually terminated him because he spoke out on behalf of Simmons. Accordingly, the court finds that Plaintiff has established a likelihood that he will ultimately succeed on the merits of this claim.
The court must next address the question of irreparable harm. Generally, to justify the issuance of a preliminary injunction, the plaintiff must show that he will be irreparably harmed without one. However, once he establishes a likelihood that his First Amendment rights have been violated, he is entitled to a presumption of irreparable harm. Elrod v. Burns, 509 F.2d 1133, 1136 (7th Cir. 1975), aff'd sub nom. Burns v. Elrod, 427 U.S. 347, 373 (1976) (stating that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."). In Shondell v. McDermott, 775 F.2d 859 (7th Cir. 1985), the Seventh Circuit interpreted Elrod as waiving the need to prove irreparable harm in preliminary injunction cases brought for violations of the First Amendment. The court recognized that "the balancing of equities that is undertaken in a conventional equity case is out of place in dealing with rights so important as the modern Supreme Court considers the rights of expression to be."Shondell, 775 F.2d at 869. See also Chicago Area Military Project v. City of Chicago, 508 F.2d 921, 926 (7th Cir. 1975),cert. denied, 421 U.S. 992 (1975) (finding that where defendants threatened plaintiffs with arrest if they persisted in asserting their First Amendment rights, chilling effect constituted irreparable injury); Greer v. Amesqua, 22 F. Supp.2d 916, 925 (W.D. Wisc. 1998) (finding that plaintiff who showed probability of success on his First Amendment claim is entitled to a presumption that he has been harmed irreparably). Thus, by establishing a likelihood of success on the merits of his First Amendment claim, Plaintiff has also satisfied the requirement of irreparable harm.
Once irreparable injury is found, the court must next consider the public interest. As the Seventh Circuit has noted, "some consideration of this factor is implicit in addressing the likelihood of success on the merits" in a First Amendment case. O'Brien v. Town of Caledonia, 748 F.2d 403, 408 (7th Cir. 1984). The public has an interest in preserving constitutional rights, as well as in encouraging free flow of information regarding the operation of its public agencies.O'Brien, 748 F.2d at 408. This case involves alleged retaliation against someone contributing to that flow of information. Specifically, Plaintiff opposed Defendant's allegedly improper retaliation against one of Plaintiff's subordinates for her part in revealing the misuse of funds by 4-H volunteers. The very nature of this dispute implicates the public interest, which therefore favors an injunction. See O'Brien, 748 F.2d at 408.
Finally, the court must balance the relative harms facing each party if the injunction is issued or not. At the evidentiary hearing, Campion testified that Defendants first considered terminating Plaintiff in August 1996. Although Defendants changed Plaintiff's position from Regional Director of Region V to Regional Director at Large in September 1996, they waited to issue a notice of nonreappointment until February 1998, after certain administrative matters before the USDA had been resolved. This matter is set for trial less than a year from now, in November 1999, and, for now, Plaintiff's position remains open. Thus, it does not appear that Defendants will suffer great harm in holding Plaintiff's termination in abeyance pending a trial on the merits. On the other hand, Plaintiff will be harmed if the injunction is denied and he loses his job. In addition, refusing to issue the preliminary injunction may contribute to the chilling effect that Defendants' alleged actions may have on the exercise of First Amendment rights. Accordingly, the court finds that this factor weighs in favor of the Plaintiff.
The court therefore grants the motion for a preliminary injunction, and must now turn to the question of a bond. Rule 65 of the Federal Rules of Civil Procedure, which governs preliminary injunctions, states that "[n]o . . . preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. . . ." Fed.R.Civ.Proc. 65(c). The rule mandates the posting of security, but also anticipates the exercise of discretion in determining the amount of the bond to be posted. See American Hosp. Supply Corp. v. Hospital Prod. Ltd., 780 F.2d 589, 597 (7th Cir. 1986); Coyne-Delany Co., Inc. v. Capital Dev. Bd., 717 F.2d 385, 391 (7th Cir. 1983).
Plaintiff has moved for approval of a bond without surety in the amount of $60,000, which he submits reflects the amount Defendants must expend on his salary and benefits to employ him until trial. The court agrees that $60,000 is adequate security in this case, and will therefore order bond in that amount. In addition, Plaintiff requests that this bond be issued without surety, asserting that he has sufficient assets to repay Defendants this amount if the injunction is later determined to have been wrongfully issued. He does not, however, specify what those assets are or how much they are worth. Thus, the court declines to issue the bond without surety, but will allow Plaintiff ten days to post the bond with surety.
CONCLUSION
Plaintiff's motion for a preliminary injunction is GRANTED. Defendants are enjoined from terminating Plaintiff's employment as Regional Director at Large for CES during pendency of this action. Plaintiff has ten days from the entry of this order to post a bond in the amount of $60,000 with the Clerk of the Court.