Ronnie B. Greer v. Debra H. Amesqua, Alan Seeger, Margaret MacMurray Byron Bishop, Lynn Hobbie, Mario Mendoza, the City of Madison Fire Department, the City of Madison, the City of Madison Police & Fire Commission and Wisconsin Municipal Mutual Insurance Company

Citations: 212 F.3d 358; 16 I.E.R. Cas. (BNA) 452; 2000 U.S. App. LEXIS 9155; 78 Empl. Prac. Dec. (CCH) 40,038Docket: 99-2767

Court: Court of Appeals for the Seventh Circuit; May 9, 2000; Federal Appellate Court

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Ronnie Greer, a former firefighter for the City of Madison, Wisconsin, was terminated from his position after publicly criticizing his boss, Debra Amesqua, and distributing a news release that accused her of favoritism towards homosexuals and promoting a radical agenda. Greer's termination led him to sue Amesqua, the fire department, and the City of Madison for violations of his due process, equal protection, and First Amendment rights. The district court granted summary judgment in favor of the defendants, a ruling that Greer appealed.

Greer's disciplinary history with the fire department was extensive and included reprimands for tardiness, insubordination, and conflicts with superiors. He had previously filed complaints regarding shaving inspections and publicly criticized Chief Earle Roberts, leading to a settlement of $18,500 for claims of employment retaliation. In 1996, he was reprimanded for unauthorized absences, faced disciplinary action for religious speech, and was suspended for misusing sick leave. His controversial pamphlet, which denounced homosexuality, resulted in a three-month suspension from Amesqua, who cited Greer's poor disciplinary record and warned that further infractions could lead to termination. The Board of Police and Fire Commissioners upheld the suspension, emphasizing Greer’s "uniquely abysmal" record and classifying his pamphleteering as workplace harassment.

The PFC expressed concerns about Greer's ongoing inability to adhere to civil conduct standards and doubted that disciplinary measures would change his behavior, although they were confident he would not face suspension again. Greer vehemently opposed the appointment of Amesqua, perceiving her as unqualified and attributing her hiring to affirmative action rather than merit. He publicly criticized her, questioning the legality of her appointment and alleging discrimination in her hiring process, which he voiced directly to the mayor of Madison. At her swearing-in ceremony, he protested with a placard against affirmative action. Greer has been openly critical of Amesqua over fifty times since her appointment, suggesting her character and leadership were compromised by her sexual orientation, identifying himself as an anti-homosexuality advocate. His views included comparisons of homosexuality to pedophilia, framing it as a character flaw detrimental to society.

Tensions escalated in late 1996 following a public incident involving Division Chief Holtz, who was recorded physically confronting a recruit. The firefighters' union called for her suspension, leading Amesqua to assign an investigation. The investigation concluded that Holtz's behavior was not unreasonable, resulting in her probation extension and mandatory leadership training. Greer, suspecting favoritism due to Holtz's sexual orientation, issued a press release condemning Amesqua's decision, framing it as an unjust reward for inappropriate conduct.

Training for Chief Holtz involves an advanced leadership class that is in high demand, evidenced by a waiting list. Chief Amesqua has proposed extending Holtz's probationary period by six months, a suggestion reportedly made by Holtz herself. Concerns are raised regarding a senior officer's physical and verbal assault on an employee, which Amesqua deemed "not unreasonable" and characterized her outburst as "professional." The author expresses disbelief that physical assault is justified for communication purposes, despite acknowledging that some physical contact may be necessary in firefighting.

The investigation into the incident was conducted by a subordinate of Amesqua, raising questions about potential bias and the integrity of the findings. The relationship between Amesqua and Holtz is noted, including their shared affiliation with "Women In Fire," an organization perceived as predominantly homosexual, leading to accusations of favoritism and a possible "good-ol-boy" system in a new guise. The author critiques the disparity in disciplinary actions within the department, highlighting that severe consequences were faced by others for comments or minor infractions, while physical assault was overlooked.

The author points out the inequity in treatment, questioning the rationale behind tolerating physical violence while punishing verbal expressions of dissent. The treatment of a male trainee, who was dismissed shortly before graduation, raises further suspicions. The local media reported on the situation, indicating a perception of misconduct by the fire chief related to these issues.

Ron Greer, a Madison firefighter, has publicly accused Fire Chief Debra Amesqua of favoritism toward Assistant Chief Marcia Holtz, alleging lax discipline regarding Holtz's use of excessive force during a training exercise. Greer suggests a conspiracy, labeling it as a "homosexual chief rewards homosexual chief for assault," although neither Amesqua nor Holtz has disclosed their sexual orientations. Greer, who is also a conservative pastor and known for his anti-gay stance, has protested Amesqua since her appointment in 1996 and is currently facing disciplinary actions for insubordination and distributing anti-gay literature at work. 

Following Greer's press release, which mischaracterizes a firefighter organization and questions the motives of the two women, Amesqua instructed Assistant Chief Carl Saxe to investigate. Saxe’s report recommended Greer's termination for bringing disrepute to the department, despite finding no violation of truthfulness rules, as Greer genuinely believed his claims were accurate. Amesqua supported Saxe's findings and cited Greer's conduct as intolerable, equating it to "spitting in the Department's face." Formal charges were filed with the Police and Fire Commission (PFC), and a hearing took place where Greer was represented by counsel and allowed to present his defense.

Amesqua testified that Greer was terminated due to his blatant insubordination, particularly for publicizing unsubstantiated allegations to the media. In making the termination decision, Amesqua reviewed the news release, Saxe's report, and Greer's personnel and disciplinary records, concluding that Greer's history was worse than any other employee’s. She also denied publicly identifying as homosexual and noted numerous complaints about Greer from the public and firefighters, although she could not specify how many related to the news release. Greer attempted to introduce evidence challenging his disciplinary record and sought the recusal of several commissioners due to potential conflicts of interest related to an unrelated discrimination suit. The PFC denied both motions. 

On July 31, 1998, the PFC found just cause for Greer's termination under relevant laws. Greer subsequently filed a lawsuit on August 5, 1998, under 42 U.S.C. § 1983 against Amesqua, the PFC commissioners, the City of Madison, the Department, and the City's insurer, alleging violations of his First Amendment, due process, and equal protection rights. He waived his right to appeal the PFC ruling to state court, and both parties filed cross motions for summary judgment. The district court granted summary judgment for the defendants on all claims on June 21, 1999, leading to Greer's appeal.

The court's analysis confirmed that Greer had a protected property interest in his job but argued that the termination violated his due process rights, citing an inadequate pretermination hearing, bias among commissioners, and lack of notice regarding the rules he was accused of violating. Due process mandates a pretermination hearing where an employee is informed of the reasons for termination and allowed to respond, but it does not require a full evidentiary hearing.

During an eight-day hearing before the Personnel Fairness Commission (PFC), Greer was represented by counsel, allowing him to hear the charges, present evidence, and confront witnesses. This process met the procedural due process requirements set forth in Loudermill, with no need for additional procedures that could unduly hinder the government's ability to terminate an unsatisfactory employee. Despite Greer's inability to contest the justification of prior disciplinary actions, this did not undermine the adequacy of the PFC hearing. Unlike the petitioners in Kaczmarczyk v. INS, who lacked the opportunity to rebut certain facts, Greer had previously contested the underlying facts of his past offenses and acknowledged receiving due process at that time. Due process does not mandate re-arguing past offenses during new charges.

Greer also argued that the PFC's exclusion of certain testimonial evidence limited his defense, asserting that he should have been allowed to present all relevant evidence akin to a trial. However, it was clarified that a pretermination hearing is not required to be a full evidentiary hearing to fulfill due process standards. For a First Amendment retaliation claim, the key consideration is whether the employer had reasonable grounds to suspect rule violations, balancing this against the employee's free speech rights. The PFC adequately assessed whether Greer violated departmental rules, adhering to reasonable management standards.

Additionally, Greer sought the recusal of three commissioners due to alleged conflicts of interest related to their past involvement in hiring decisions and a discrimination lawsuit. While bias among adjudicators can violate due process, mere prior involvement does not constitute a conflict unless evidence of actual bias is presented. Greer faces a strong presumption of the commissioners' honesty and integrity in their decision-making.

Greer did not present evidence of personal bias from Seeger, MacMurray, or Bishop, making it challenging to identify any alleged conflict of interest. His case was unrelated to the discrimination lawsuit against the Department and commissioners, which did not involve him or the same factual issues. Greer speculated that a ruling against him would unify the commissioners with Amesqua, enhancing their credibility in the discrimination case; however, this conjecture lacked supporting evidence and did not demonstrate a conflict of interest.

Additionally, Greer contended that the Department's rules leading to his termination were void for vagueness, infringing on his due process rights by failing to provide adequate notice of workplace expectations. While regulations can be deemed vague if they leave individuals guessing about their meanings, the government, as an employer, has greater leeway in establishing reasonable workplace rules. Examples cited from case law illustrate that general conduct standards can be appropriate in an employment context. The Department's rules provided sufficient guidance on acceptable behavior, indicating that Greer's actions, particularly his news release, could lead to disciplinary action.

Greer further argued that uneven punishment within the Department undermined the clarity of its rules. However, many cited instances of unpunished insubordination occurred under a prior chief, and the individuals involved did not have comparable disciplinary records or make similarly provocative statements. The case of firefighter Art Cuccia exemplified this; he received a lesser penalty for an offensive remark due to his previously clean record and expression of remorse, while Greer, with a history of disciplinary issues and a provocative news release, had been warned about the consequences of further misconduct. Ultimately, any failure to anticipate severe punishment for his actions was attributed to Greer himself.

To establish a prima facie Equal Protection Clause claim under the Fourteenth Amendment, a plaintiff must show that: (1) they are similarly situated to members of an unprotected class, (2) they were treated differently from those members, and (3) the defendant acted with discriminatory intent. Greer alleges that the Department discriminated against him as a male heterosexual compared to female homosexual employees, Holtz and Amesqua, who criticized the Department without facing termination. However, Greer has an undisputed record of gross insubordination, requiring him to demonstrate that similarly situated insubordinate workers were treated more favorably. He fails to do so, as Holtz and Amesqua did not share his poor disciplinary history or engage in similarly vituperative attacks. Greer's claims lack evidence of prejudice against him, and the precedent set in Vukadinovich emphasizes the need for evidence of purposeful bias for an equal protection claim to succeed. Consequently, Greer's equal protection claim is deemed unsubstantiated.

Regarding First Amendment retaliation, Greer contends that his termination for issuing a news release violated his rights. The Department's justification for his termination rests on whether his speech pertained to a matter of public concern and if his First Amendment interests outweighed any potential harm to the Department's operational efficiency. While the PFC found Greer's speech relevant to public concern, it determined that the Department's interests as an employer prevailed. The district court concurred, affirming the PFC's decision to terminate Greer. The current review of this matter will be conducted de novo, reflecting on the balance between Greer's rights and the Department's interests.

Greer's speech, assessed under the Pickering balancing test, was determined to concern a matter of public interest, specifically addressing favoritism within the Department and lenient disciplinary actions against Marcia Holtz. The central issue of whether public officials operate ethically is recognized as a public concern. Despite the personal nature of some of Greer's comments about Amesqua, this does not exclude the speech from being deemed of public concern, as Greer's primary motivation was to expose perceived wrongdoing related to favoritism towards lesbian firefighters. 

The second prong of the Pickering test requires balancing Greer's interest in commenting on public matters against the State's interest in maintaining efficient public service. Factors for this assessment include potential disruptions to workplace discipline, the necessity of personal loyalty in the employment relationship, the impact of the speech on job performance, and the context of the speech. 

Although public employees can question favoritism, the manner of protest is crucial. Greer failed to address his concerns through internal channels or with relevant parties, instead opting to publicize his allegations through a news release that caused embarrassment to the Department. His actions were based on speculation without sufficient evidence, contributing little substantive information to the public discourse beyond his unverified claims.

Greer's case under the Pickering standard is weakened by his failure to follow proper procedures and his decision to publicly accuse Department leadership of misconduct through mass media, rather than addressing his concerns through appropriate channels. His accusations targeted Amesqua, labeling her as a lesbian with a "radical agenda," and he also publicly identified both Amesqua and Holtz as homosexuals, despite their lack of public acknowledgment of their sexual orientation. Greer's actions led to a damaging newspaper headline, "Greer says fire chief plays gay games," and he had a history of public criticism against the Department, including a recent suspension for distributing anti-homosexual literature.

The Department's rationale for disciplining Greer is supported by concerns over maintaining workplace order and public trust. Given Greer's previous disciplinary issues and his well-known role as a critic, his news release posed a credible threat to operational integrity and morale. The Department argued that allowing Greer's speech to go unpunished would undermine Amesqua's authority and potentially incite discord within the ranks. Legal precedents indicate that a government employer does not need to wait for actual workplace disruption to act, as the potential for disruption is sufficient grounds for disciplinary measures. The prompt action taken by Amesqua following Greer's news release was deemed necessary to reassert authority and prevent further discord within the Department.

Greer contends that the truthfulness and sincerity of his allegations against Amesqua are crucial, but acknowledges that truth does not serve as an absolute defense in Pickering balancing. The Department abandoned charges under Rules 47 and 50, as Saxe determined Greer genuinely believed his claims and did not violate honesty rules. However, the PFC found Greer guilty of insubordination, harassment, and damaging the Department's reputation. Greer maintains that his assertion about Amesqua favoring Holtz was either true or sincerely believed, which he argues should weigh heavily in his favor under Pickering. 

It is established that recklessly false statements by public employees lack First Amendment protection, and Greer incorrectly infers that factual truth guarantees absolute protection. Employers are not required to demonstrate that an employee's statements are false before imposing discipline. The Pickering framework applies only to speech that is true or believed to be true, as recklessly false speech is unprotected. The court referenced Wright, noting that a public employee has a strong interest in truthful testimony under oath, a circumstance not applicable to Greer's news release, which does not qualify as sworn testimony. 

Despite assuming Greer's news release was not recklessly false, the court concluded that the Department was justified in terminating him based on Pickering analysis. Ultimately, the court affirmed summary judgment for the defendants on all of Greer's claims. Additionally, Greer's argument regarding the unconstitutionality of the rules was waived due to failure to raise it before the district court.