Janelle L. Weaver
CAPS 408 - Legal Aspects of Education
April 30, 2002

Introduction

Roy Bauer, a tenured professor, was granted a summary judgement in his 42 U.S.C. § 1983 case. Cedric Sampson, Chancellor of the South Orange County Community College District ("SOCCCD" or "the District"), appealed this grant of summary judgement contending that (1) the District's policy against workplace violence was facially constitutional; (2) the District's policy against workplace violence was constitutional as applied to Bauer; (3) the District's policy against racial discrimination or harassment was constitutional as applied to Bauer; and (4) Bauer was not entitled to attorney's fees, neither as awarded nor at all.

Facts and Procedural History

Bauer was a tenured professor at Irvine Valley College ("IVC"), one of the two campus of the District in California. Sampson was who oversaw IVC and was upset with writings and illustrations in "Dissent," which was a campus paper that was prepared and circulated by Bauer. Due to certain entries in this paper, Sampson wanted to discipline Bauer by ordering him to cease making and distributing the writings and illustrations. Sampson tried to force Bauer to undergo counseling.

In 1998, the writings and illustrations in question were distributed during a difficult time at the District. An independent team of investigators from an accrediting commission noted that the district had experienced turmoil over recent years. The commission attributed this turmoil to the financial troubles the county was experiencing and the Board of Trustees ("the Board"). They stated that the Board had increased involvement and it led to a lot of attrition within the administration. The Board had appointed Raghu Mathur as President for IVC, which seemed very controversial.

Bauer did not approve of Mathur's appointment and other actions taken by the Board. Thus, he wrote articles and created illustrations to voice his opinion on the matter. Four writings and two illustrations were considered in this case:

Writing 1: "I, for one, have etched the name of Sherry 'Realpolitik' Miller-White and others of her ilk on my permanent shit list, a two-ton slate of polished granite which I hope to someday drop in Raghu Mathur's head."
Writing 2: Commenting on a meeting of the Board, he said that "the very best people in the district (were there)" and, "In a room like that, no decent person could resist the urge to go postal."
Writing 3: A fantasy description of a funeral for a trustee at which the other trustees and President Mathur are asphyxiated by "a lurid gas emanating from the Great Man's gaping mouth."
Writing 4: Satirizing Mathur's policies by stating, "[W]e at Dissent announce the founding of the Milosevich-Mathur Academic Integrity Matrix. I couldn't think of a more annoying business ed sounding type word than 'matrix;' besides, it permits a satisfying acronym: MAIM."
Illustration 1: "Tales of the Backdoor Gooster." Illustrates a story of underhanded tactics used by Mathur in creating an "enemies list" and then beheading his enemies.
Illustration 2: "Quick the Downsizers are Coming Again!" with an article on micromanagement, discussing the anticipated downsizing. Shows three shrunken people assembling a rifle, with one pointing it outward.

Sampson responded to Bauer by letter, claiming that these writings and illustrations violated the District's policies on workplace violence and racial discrimination and harassment. Sampson "strongly urge[d]" Bauer to participate in an employee assistance program to deal with his anger, and told him he was expected to comply with the workplace violence and racial discrimination or harassment policies, and requested a meeting.

Sampson told Bauer that his literature violated these policies and that a negative entry was being placed in his file. There was a letter memorializing the meeting that stated that Bauer had to: (1) "avoid any form of discrimination against or harassment of SOCCCD employees as described in Board Policy 4000.5"; (2) "immediately cease all verbal threats and violent behavior overtones as required in Administration Regulation 4000.3"; and (3) "[s]chedule a minimum of two meetings with the employee assistance counselor provided by the District, or make similar arrangements with another counselor approved by the Vice Chancellor [of] Human Resources, and report, in writing, that you have met the counselor. The confirming letter will become part of the District's record and [Bauer's] personnel file." The letter stated that if Bauer failed to comply it "would be grounds for more severe discipline."

After this letter, Bauer brought the case to district court seeking declaratory and injunctive relief and damages based on four causes of action: (1) abridgement of his free speech rights, (2) abridgement of his right to petition, (3) abridgement of his right to equal protection, and (4) violations of the whistle-blower protections of California Labor Code. The district court granted Bauer injunctive relief, ordering Sampson (1) not to enforce the workplace violence and racial discrimination or harassment policies against Bauer and (2) to withdraw the directive for Bauer to undergo counseling. Bauer then received summary judgement from the district court for the free speech and right to petition abridgements. The claim based on equal protection was dismissed and the claim based on California labor law was denied. Sampson then appealed and Bauer filed to amend the judgement to include attorney's fees, which the court granted ($375 per hour, amounting to $125,000). Sampson appealed this as well.

Standards of Review

In the civil rights context, attorney's fees are reviewed for an abuse of discretion.

Analysis

I. Facial Challenge

Board Policy 4000.3 defined workplace violence as "verbal threats, violent behavior or physical conduct which interferes with the employee's safety in the workplace." Administrative Regulation 4000.3 states two definitions of "workplace violence": (a) Workplace violence is defined as verbal threats, violent behavior or physical conduct with employee's safety in the work place. (b) Workplace violence includes, but is not limited to, making written, physical, or visual contact with verbal threats or violent behavior overtones.

Sampson argued that the workplace violence policy did not reach constitutionally protected conduct because it only prohibited "threats" of violence. However the Regulation 4000.3 extended past "threats" to include violent "overtones." A substantial amount of "overtones" are not "threats." Therefore the court said that the workplace violence definition facially violated the First Amendment. Since the Board Policy 4000.3 and the Administrative Regulation 4000.3(1)(a) prohibited only verbal threats, these definitions were facially constitutional.

II. "As Applied" Analysis

Sampson's letter to Bauer directed him to avoid discrimination or harassment of employees under Board Policy 4000.5 and to cease verbal threats and violent behavior overtones (Administrative Regulation 4000.3). It was unconstitutional for Sampson to attempt to forbid expression with violent overtones that fell short of being a "true threat." However, regulating "true threats" is facially constitutional. Bauer conceded that the discrimination and harassment regulation were facially constitutional. The court then considered whether or not the prohibitions on racial discrimination or harassment and violent threats were applied constitutionally.

Sampson based the racial discrimination or harassment charge on Bauer's use of "Mr. Goo" in referring to Mathur. Bauer claimed that the name was simply a play on the similarity between Mathur's first name, Raghu, and the cartoon, Mr. Magoo. Sampson based his workplace violence charge on the verbal threats and violent overtones used by Bauer.

The court agreed with the district court's analysis that the policies were unconstitutionally applied to Bauer because the publications focused directly on issues of public interest and importance. It also agreed that the statements Bauer made were not "true threats" and that the employer rights were not impermissibly burdened by Bauer's expression.

A. Protected Expression

Expression involving matters of public concern has First Amendment protection. Speech or expressive conduct involves a matter of public concern when it can be considered as relating to a matter of political, social, or other concern to the community. Sampson conceded that Bauer's expression dealt with public concern, but should have lost its protected status because it constituted "true threats" or the District's interests as an employer in regulation the expression outweighed Bauer's First Amendment rights as an employee.

B. "True Threat" Analysis

United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990) stated that "[a]lleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners." The court agreed with the district court's holding that although, they were not "true threats," Bauer's writings contained violent content.

Sampson alleged that Bauer: (1) have verbal run-ins with his supervisor and other District employees more sympathetic to the administration; (2) told his supervisor, "You and Mathur are going down"; (3) told a co-worker, "Your day has come," after the co-worker mocked a friend; and (4) referred to Mathur and an African-American Trustee as "the dark side." Sampson stated that Bauer had not been physically abusive or violent, nor did he base his disciplinary action on these statements, but on the writings in "Dissent."

These statements still did not make Bauer's writings into "true threats." The court agreed with the district court that there was no way a reader would have deduced that the writings were "true threats."

C. The District's Interests as an Employer

A public employee must show that his or her statements are constitutionally protected. Once a plaintiff shows his or her statements were of public concern and that they were a substantial motivating factor for the disciplinary action taken, the burden shifts to the defendant to show that legitimate administrative interests outweigh the First Amendment rights of the plaintiff.

Sampson conceded on appeal that Bauer's expression was a matter of public concern and that the expression was a substantial factor in causing the disciplinary action upon which Bauer's suit was based. The question remained of whether the District's interests outweighed Bauer's First Amendment rights.

Pickering's balancing analysis was used to determine the answer to this question. It was based on five factors: (1) whether the employee's speech disrupted harmony among co-workers; (2) whether the relationship between the employee and the employer was a close working relationship with frequent contact which required trust and respect in order to be successful; (3) whether the employee's speech interfered with performance of his duties; (4) whether the employee's speech was directed to the public or the media or to a governmental colleague; and (5) whether the employee's statements were ultimately determined to be false.

The court concluded that the District's interests as an employer do not outweigh Bauer's First Amendment rights. (1) Bauer's expression was not the source of disharmony on IVC's campus. (2) It was not necessary that Bauer and the administration enjoy a close working relationship requiring trust and respect. (3) Sampson had not shown that Bauer's speech had a negative impact on Bauer's teaching or other responsibilities. (4) "Dissent" was distributed exclusively to the District community. (5) Bauer's expression was opinion, not factual assertions that could be proven false.

III. Attorney's Fees

Sampson challenged the entitlement fees and the amount awarded by the district court to Bauer.

A. "Special Circumstances"

Plaintiffs ordinarily recover attorney's fees unless special circumstances render the award unjust. The two-prong test for determining special circumstances includes (1) whether allowing attorney's fees would further the purposes of § 1988 and (2) whether the balance of the equities favors or disfavors the denial of fees.

Sampson argued that there were three "special circumstances": (1) this was a case of first impression, so the public benefited from full litigation; (2) Bauer could have found a lawyer without the fee award inducement because of the beneficial publicity generate by the case; and (3) Sampson litigated in good faith. The court stated that all three arguments did not constitute special circumstance.

The court agreed with the district court in ruling that the case did not present "special circumstances" justifying a decision not to award attorney's fees to Bauer.

B. Hourly Rate

Sampson argued that the hourly rate the district court determined for the attorney ($375 per hour) was excessive. The court stated that the district court did not abuse discretion in this matter.

C. Number of Hours

Sampson argued that because Bauer filed five claims and only received relief from the district court for two, his suit was only 40% successful. This statement was said to be not material by the court.

Sampson also argued about the calculation of hours, but supplied no evidence that the hours were overbilled. Bauer's attorney agreed to a voluntary 20-hour reduction before the district court addressed the issue.

Conclusion

The court decided that the district court correctly ruled that the Administrative Regulation 4000.3(1)(b) was unconstitutional on its face because it prohibited speech with violent "overtones" that fell short of being threatening. The district court erred, however, in holding that the entire workplace violence policy was facially unconstitutional since both Board Policy 4000.3 and Administrative Regulation 4000.3(1)(a) passed facial analysis.

The district court correctly ruled that the Board's policies on racial discrimination or harassment and workplace violence were unconstitutional as applied to Bauer. The district court did not abuse its discretion in any part of the attorney fees decision.

AFFIRMED IN PART; REVERSED IN PART. Appellee was awarded costs on appeal.