## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 14 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

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

Appeal from the United States District Court

for the District of Colorado (D.C. No. 94-D-2408)*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. - 2 - Submitted on the briefs: * A. James Johnston and Jonathan B. Sprague of Post & Schell, P.C., Philadelphia, PA and John A. Brooks of Brooks & Brooks, Montrose, CO for Defendants - Appellants. Diane S. King and David C. Feola of King, Minnig, C lexton & 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 all egations 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 a fforded 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 admini strators’ claims of qualified immunity.- 3 - I Appellees Carol Paradis and Kathleen Ryan are regis tered nurses. Both worked in management roles at the Care Center In-Patient (“CCIP”) Unit of Montrose Memorial Hospital. After appellees resign ed 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 Er ickson, the hospital’s Administrator and Chief Executive Officer, violated their First Amendment rights. The two nurses’ complaint states that they were ret aliated against and ultimately constructively discharged after speaking to hospital administrators about appellant Doerer’s allegedly unethical and il legal conduct. According to appellees, Doerer pressured staff to shorten or len gthen patients’ stays based solely on the patients’ financial resources, engage d 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, Medic al Director Dr. Benson, Business Manager Christian, and Chief Financial Off icer White. None of these administrators remedied the situation. Appellants moved for partial summary judgment on ap pellees’ free speech claims. Contending that none of these claims invol ved issues of public concern,- 4 -

appellants asserted an entitlement to qualified imm unity. 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 malfea sance 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 The trial court rejected appellants’ motion for sum mary judgment because it found that the nurses’ factual allegations, if t rue, 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, “governme nt officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly e stablished statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982).1 The Connickpublic 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 (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 (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 multi-tiered test. - 5 - A Appellants contend that appellees’ allegations, eve n if substantiated by the evidence, do not comprise speech protected under th e First Amendment, and therefore appellants’ conduct cannot have violated appellees’ constitutional rights. To be protected, employee speech must invo lve a matter of public concern. Connick v. Myers , 461 U.S. 138, 146 (1983). 1 To determine whether speech is of public concern, a court must examine t he “content, form and context of a given statement, as revealed by the whole record.” Connick , 461 U.S. at 147-48. 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.- 6 -

Appellees claim that appellant Doerer based patient s’ treatment on their ability to pay, practiced medicine without a licens e, engaged in insurance fraud, subjected patients and staff to religious harassmen t, and sexually harassed staff. These are self-evidently matters of “political, soc ial, 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, int er alia, “waste, inefficiency, and favoritism” at public hospital touches on matte rs of public concern). We reject appellants’ contention that such allegati ons are better characterized as personal grievances. The two nurs es cannot reasonably be said to have had a purely personal interest in stopping appellant Doerer from basing patients’ length of stay on their financial resourc es, 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 discrimin ation are not properly characterized as personal grievance). Moreover, ap pellees made their statements to senior hospital managers such as the Administrat or and Chief Executive Officer, the Chief Financial Officer, the Medical D irector, and the Medical Director of the CCIP Unit, all of whom presumably h ad 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- 7 -

official empowered to investigate such charges, obv iously involves a matter of public concern.”) (quoting Rookard v. Health & Hosps. Corp. , 710 F.2d 41, 46 (2d Cir. 1983)). We also reject appellants’ argument that public emp loyees are not protected by the First Amendment unless they “go pu blic” 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 (1979) (noting that a public employee does not lose his First Amendment rights w hen 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 audien ce. B Appellants also assert that, even assuming appellee s’ speech was of public concern, the law at the time did not clearly establ ish the speech as such. We disagree. Given the state of the law when appellan ts 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 (1987) (“[A] constitutional right is clearly establ ished if the contours of the right2Paradis alleges she was constructively terminated in August 1995, Ryan in

May 1993. Schalkand Patrickwere decided in 1990 and 1992, respectively. - 8 - are sufficiently clear that a reasonable official w ould understand that what he is doing violates that right.”) (internal quotations o mitted). “Ordinarily, in order for the law to be clearly est ablished, there must be a Supreme Court or Tenth Circuit decision on point, o r the clearly established weight of authority from other courts must have fou nd 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’ spe ech. Both involve facts very similar to those present in this case and were deci ded prior to appellees’ alleged constructive termination. 2
Schalk concludes that a nurse at a public hospital who se nt 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 t hat 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- 9 -

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 q ualified 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 pr otection under the First Amendment. Accordingly, appellants may not invoke a qualified immunity defense. The denial of summary judgment is AFFIRMED.