Opinion
Cause No. IP99-1640-C-H/G
June 22, 2001
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Maryann Myles has sued her former supervisor, defendant Don Banning, a deputy commissioner of the Indiana Department of Workforce Development (IDWD). Myles alleges that Banning fired her for exercising her First Amendment free speech rights, and she seeks relief under 42 U.S.C. § 1983. Myles contends that Banning fired her because she disobeyed his directive not to release certain internal reports to the United States Department of Labor.
Defendant Banning has moved for summary judgment. Even viewing the evidence in the light reasonably most favorable to Myles, the speech she claims was protected was speech in the course of her employment and in direct violation of an order from her immediate supervisor. Although Myles disagreed with the order and contends she had an obligation to speak despite the order, she has not come forward with any evidence that Banning's order was illegal or otherwise wrongful. Myles' interest in her allegedly protected speech is therefore significantly outweighed by the IDWD's interest in providing efficient public service. Consequently, Myles' disclosures to the Department of Labor are not protected speech, and Banning's motion for summary judgment is granted.
Summary Judgment Standard Summary judgment under Fed.R.Civ.P. 56 is proper in cases where there are no genuine issues of material fact. Celotex Corp. v. Catratt, 477 U.S. 317, 322 (1986). A genuine issue exists if a reasonable trier of fact could decide the question in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact is one that might affect the outcome of the suit. Id. The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 322. In determining whether a genuine issue of material fact exists, the court must construe all evidence in the light reasonably most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Smith v. Severn, 129 F.3d 419, 425 (7th Cir. 1997).
Undisputed Facts
Plaintiff Maryann Myles began employment with the IDWD in February 1996 as the Director of Audit Resolution. She was hired as a "non-merit employee," meaning that her employment was at-will. Def. Ex. A. Her duties included monitoring the expenditures of several federal grant recipients and identifying and resolving potential disallowed costs. Independent firms conducted audits of grant recipients and provided them to Myles. Myles, in turn, provided the reports to others upon request. The U.S. Department of Labor and various State agencies routinely received reports from Myles on the auditing process. Myles was also responsible for supervising a staff of seven to eight employees who assisted her in her duties. Myles and her team comprised the Oversight Division of the IDWD.
Defendant Don Banning became deputy commissioner of the IDWD in July 1997. He was Myles' immediate supervisor and regularly received reports from Myles on the Oversight Division's activities. Banning fired Myles on February 5, 1999, to take effect on March 5, 1999. Def. Ex. T.
Myles alleges that Banning fired her because she refused to obey his directive not to release internal reports outside the IDWD. Myles has identified two such disclosures specifically. One, which Myles mentions only in passing, related to the School to Work grant. Pl. Ex. 1 at 106. The second, which occurred in November 1999, related to a potential disallowed cost by a recipient of a Clean Air Act grant.
Banning asserts that he fired Myles because of an ongoing conflict Myles was having with a member of her staff, Ann Burgess, and related unprofessional behavior. The existence of a conflict between Myles and Burgess is well documented. Def. Exs. D, E, F, H, I, J, Y, Z, AA, BB, CC, DD (letters and e-mails between Banning, Myles, and Burgess); Def. Ex. K (Myles' work improvement plan, which Banning instituted in response to the conflict); Def. Ex. G (police report in which Myles alleged that Burgess sent her a threatening letter). The official reason for Myles' discharge was "managerial differences." Def. Ex. T.
For purposes of deciding defendant's motion for summary judgment, however, the court accepts plaintiff's contention that she was fired because of the unauthorized communications with the Department of Labor. Additional facts are noted below as needed, keeping in mind the standard for summary judgment.
Discussion
Myles contends that Banning violated her First Amendment free speech rights by discharging her in retaliation for her communications to the United States Department of Labor. To prevail, Myles must prove (1) that her speech was protected by the First Amendment and (2) that her speech was the cause of her discharge. Board of County Comm'rs v. Umbehr, 518 U.S. 668, 675 (1996).
Whether the First Amendment protects the speech at issue is a question of law. Connick v. Myers, 461 U.S. 138, 148 n. 7 (1983).
The Supreme Court announced the test for determining whether a public employee's termination for allegedly protected speech violated the First Amendment in Pickering v. Board of Education, 391 U.S. 563 (1968), and the Court elaborated upon the test in Connick v. Myers. First, the speech must address a matter of "public concern." Connick, 461 U.S. at 146. Second, the employee's interest in the speech must outweigh the government's interest "in promoting the efficiency of the public services it performs." Id. at 142, quoting Pickering, 391 U.S. at 568.
I. Speech Addressing A Matter of Public Concern
Not all speech within a government office addresses matters of public concern. Connick, 461 U.S. at 149. Whether a public employee's speech addresses a matter of public concern is determined by the content, form, and context of the speech. Id. at 147-48. In the Seventh Circuit, the content of the speech is ordinarily considered most important. Cliff v. Board of School Comm'rs of City of Indianapolis, 42 F.3d 403, 409 (1994). To qualify as speech on a matter of public concern, the speech must relate to a "matter of political, social, or other concern to the community." Connick, 461 U.S. at 146. Speech on matters of public concern means speech on "matters in which the public might be interested, as distinct from wholly personal grievances . . . and casual chit-chat." Dishnow v. School Dist. of Rib Lake, 77 F.3d 194, 197 (7th Cir. 1996) (holding that guidance counselor spoke on matter of public concern when he informed media about school board's alleged violation of open-meetings law and wrote articles for local newspaper on such topics as the sharing of household tasks by working couples).
Content of the speech is not considered in a vacuum. Marshall v. Allen, 984 F.2d 787, 795 (7th Cir. 1993) (cautioning courts not to examine solely the content of the speech). In the rubric of this line of cases, speech "on a topic of public import" is a necessary but not sufficient condition for the speech to qualify as addressing a matter of public concern. See, e.g., Smith v. Fruin, 28 F.3d 646, 651 (7th Cir. 1994) (discussed below). The "form of the employee's remarks, along with the underlying circumstances, including the employee's reasons for speaking, remain essential to this determination." Id. at 651; see also Wright v. Illinois Dept. of Children Family Services, 40 F.3d 1492, 1501 (7th Cir. 1994) (absent consideration of motivation for and form of speech, "every employment dispute involving a public agency could be considered a matter of public concern"). The Seventh Circuit has said that the "public concern" inquiry must take into account "the point of the speech in question: was it the employee's point to bring wrongdoing to light? Or to raise other issues of public concern, because they are of public concern? Or was the point to further some purely private interest?" Fruin, 28 F.3d at 651 (emphasis in original) (internal quotations omitted).
"If the speech concerns a subject of public interest but the expression addresses only the personal effect upon the employee, then as a matter of law the speech is not of public concern." Marshall v. Porter County Plan Comm'n, 32 F.3d 1215, 1219 (7th Cir. 1994). Thus, in Smith v. Fruin, the Seventh Circuit held that a public employee's complaints about second-hand smoke in the workplace did not constitute speech on a matter of public concern where the employee's motive for speaking was "entirely personal," in other words, "on his own behalf and in his own interest." 28 F.3d at 651. The court explained:
We have no doubt that the issue of second-hand smoke was a matter of widespread public interest . . .; it certainly remains the subject of considerable public debate today. But the fact that an employee speaks up on a topic that may be deemed one of public import does not automatically render his remarks on that subject protected.
Id.
Myles' speech in question clearly addressed a matter of public concern. The content of her speech, the identification of potential disallowed costs by federal grant recipients, addressed a topic of public interest and of sufficiently general political, social, and economic concern to the community. In addition, the form and context of the speech, a routine report to the United States Department of Labor delivered within the scope of Myles' duties as Director of Audit Resolution in a public agency, indicate that Myles' speech was more than a mere personal grievance. In fact, Myles' private interest in the speech was negligible. Although she did have a private grievance with Banning regarding her disclosures, the disclosures themselves did not relate to her dispute with Banning. Because Myles' communication to the Department of Labor addressed a matter of public concern, the court must next weigh Myles' interest in her speech against the IDWD's interest in promoting the efficiency of its public services. Connick, 461 U.S. at 146, 149.
II. Pickering Balancing Test
Under the undisputed facts, Myles' speech fails this second prong of the Pickering analysis, which requires that the public employee's and public employer's interests be weighed against one another. The Seventh Circuit has identified a number of factors relevant to this determination, including:
(1) whether the statement would create problems in maintaining discipline by immediate supervisors or harmony among co-workers; (2) whether the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee's ability to perform her daily responsibilities; (4) the time, place, and manner of the speech; (5) the context in which the underlying dispute arose; (6) whether the matter was one on which debate was vital to informed decisionmaking; and (7) whether the speaker should be regarded as a member of the general public.
Jefferson v. Ambroz, 90 F.3d 1291, 1297 (7th Cir. 1996). Of these factors, the last, whether the speaker should be regarded as a member of the general public, is the most significant in the present case.
Another way to frame this question is to ask whether the employee was speaking as an employee or as a citizen. See Khuans v. School Dist. 110, 123 F.3d 1010, 1017 (7th Cir. 1997) ("as a member of the general public" means "as opposed to an employee"); Wright, 40 F.3d at 1501, 1053 (contrasting "acting simply as a member of the general public" with speaking within the scope of one's job responsibilities).
The Youker court addressed the as-an-employee/as-a-citizen distinction
When a public employee is speaking as an employee, her interest in the speech is weaker than when she speaks as a citizen. She is speaking not for herself but for her employer. This may be true even though the speech addresses a matter of public concern and even though the speech is not actually authorized by the employer. Thus, in Youker v. Schoenenberger, the Seventh Circuit found that an unauthorized letter by an employee acting in the course of his employment was unprotected because it "represented not his personal opinion (speech) but the opinion of [his employer]." 22 F.3d 163, 166 (7th Cir. 1994). Youker was an employee of the town Assessor's office. He sent a letter to the Assessor of another township identifying (incorrectly) supposed fraud in the latter's jurisdiction. Although identifying fraud was part of Youker's responsibilities, the court described Youker's act as "overzealous" because the affairs of other townships were not his business. Id. at 165. Nevertheless, the court found that Youker's speech was in the course of his employment and therefore unprotected. Id. at 165-67.
at the initial stage of determining whether Youker's unauthorized speech was a matter of public concern, and the court concluded that the fact that Youker was speaking as an employee meant that his speech did not address a matter of public concern. See Youker, 22 F.3d at 166-67. In other cases involving speech unauthorized or even prohibited by the employer, the Seventh Circuit has "commonly found speech by public employees spoken pursuant to their employment duties to constitute speech on a public concern." Bonds v. Milwaukee County, 207 F.3d 969, 980 (7th Cir. 2000), but the court has considered the unauthorized or prohibited character of the employment-related speech as part of second prong of the Pickering analysis. See Bonds, 207 F.3d at 980 (affirming judgment after court trial); Wright v. Illinois Dep't of Children Family Services, 40 F.3d 1492, 1503 (7th Cir. 1994) (affirming in relevant part summary judgment for employer). The different analyses may reflect some awkwardness in applying the Pickering analysis to speech that (a) relates to the employee's duties but which (b) was contrary to the employer's policies or other instructions. Regardless of the prong chosen for the analysis, the result is the same when a public employee is fired for unauthorized speech as an employee about matters within her purview, and when there is no evidence that the employer's instructions barring the speech were illegal or otherwise wrongful.
The present case is analogous. Myles was responsible for identifying potential disallowed costs by recipients of federal grants and for providing certain information to the federal Department of Labor and other agencies regarding her findings. Banning directed Myles not to release internal reports outside of the IDWD. Pl. Ex. 1 at 99-106 (deposition of Myles). She nevertheless released at least two such internal reports to the Department of Labor because she believed she was required to do so, ethically and legally. Pl. Ex. 1 at 102-03. Myles testified that she did not discriminate between internal and external reports, and that she complied with all of the Department of Labor's requests for information despite Banning's directive. Pl. Ex. 1 at 103.
Like Youker's letter, Myles' disclosures to the Department of Labor might be characterized as "overzealous." Nevertheless, like Youker's speech, Myles' disclosures occurred in the course of her employment. As such, they represented not her own opinion but that of the IDWD. Consequently, her interest in the speech is significantly weaker than it would have been if she had been speaking as an ordinary citizen.
Not only is the employee's interest weaker when speaking as an employee, but the government's interest in responding to such speech is stronger as well.
In Bonds v. Milwaukee County, the Seventh Circuit reasoned: "When public employees offer their opinions in roles as representatives or employees of the government, the government's interest as an employer is greater than if the speech comes divorced from the employment context, and the second prong of Pickering should honor that enhanced interest." 207 F.3d 969, 980 (7th Cir. 2000) (holding that county employee's interest in speech on a matter of public concern was outweighed by the county's interest where speech was partially in the course of his employment). Similarly, in Gonzalez v. City of Chicago, the court stated: "Speech which is made in all respects as part of the employee's job duties is generally not the protected expression of the public employee." 239 F.3d 939, 942 (7th Cir. 2001). This is the case even where the speech addresses matters of public concern. Id. at 941. (The subject of the speech in Gonzalez, police misconduct, was "certainly a matter of public concern.") Were the law otherwise, virtually all governmental correspondence would receive heightened constitutional protection, "since nearly all communications by government employees in the course of their employment are, by definition, matters of public concern." Youker v. Schoenenberger, 1992 WL 86187 at *3 (N.D.Ill. Apr. 22, 1992).
In Gonzalez, the plaintiff was fired from his job as an officer for the Chicago Police Department. Gonzalez had previously worked as a civilian investigator for the Chicago Police Department's Office of Professional Standards. He alleged that he was fired in retaliation for his filing certain evaluation reports in his earlier (and often thankless) job. The Seventh Circuit found that the speech in question was a matter of public concern but noted that Gonzalez's speech consisted of "reports on his investigations as required by his employer," which were "created in the scope of [his] ordinary job responsibilities." Gonzalez, 239 F.3d at 941 (internal quotations omitted). The court explained:
Gonzalez may well have been motivated in part as a good citizen when he accepted the employment duties of reporting police misconduct. Nevertheless, he was clearly acting entirely in an employment capacity when he made those reports. The form of his speech (routine official reports), the content of the speech (required opinions on misconduct), and the context (pursuant to duties of the job), all indicate that Gonzalez [was speaking as an employee].
Id.
The present case is comparable. Like Gonzalez, Myles was clearly speaking as an a employee when she communicated with the Department of Labor, even if she was doing so contrary to her supervisor's instructions. Gonzalez's speech was mandated in his capacity as an OPS investigator. . . . A failure to carry out this particular speech — writing accurate reports of assigned investigations — would be a dereliction of Gonzalez's employment duties. Indeed, Gonzalez's attorney conceded at oral argument that Gonzalez could have been fired had he not produced the reports. Gonzalez, 239 F.3d at 941-42. Likewise, Myles' duties included providing information to the Department of Labor. Myles herself contends that by releasing internal reports "she was doing her job." Am. Cplt. ¶ 11.
Consequently, the fact that she may have been motivated in part by "good citizen" considerations is not material.
Myles relies on the following language in Gonzalez:
If Gonzalez were writing reports of police misconduct, and his supervisors told him to rewrite the reports so as not to disclose police corruption, Gonzalez would have a First Amendment right to expose the police cover-up to the public. But in that circumstance, Gonzalez would be acting beyond his employment capacity. Instead of simply performing his job of writing truthful, internal reports, he would be speaking as a citizen on a matter of public concern — a police cover-up.239 F.3d at 941. Myles contends that the present case parallels the hypothetical situation described in Gonzalez, but they are distinct. The hypothetical disclosure related to a police "cover-up," presumably a demonstrably wrong and illegal act. By making such a disclosure, the hypothetical employee would have been "acting beyond his employment capacity." Id.
In the present case, Myles' disclosure to the Department of Labor related to potential disallowed costs claimed by federal grant recipients.
Communications on such topics were part and parcel of Myles' ordinary employment duties. Most important, even if Myles' disclosure had related to Banning's order not to release internal reports outside the agency, Myles has offered no evidence that such an order was actually illegal or otherwise wrongful. In the absence of such evidence, the government employer's interest in providing efficient and effective services (which requires that employees follow orders) outweighs the employee's interest in the speech where the employee is speaking in the course of her employment.
This principle was demonstrated in Wright v. Illinois Department of Children Family Services, where the Seventh Circuit held that a public employee's speech that violated the policies of the employer was unprotected even though it addressed a matter of public concern. 40 F.3d at 1503-04. The speech at issue in Wright was a report filed with the juvenile court by an investigator for the Department of Children and Family Services. As in the present case, it was the plaintiff's job to file such reports. Id. at 1503. However, the plaintiff filed the report without prior supervisory approval in violation of the agency's policies, just as Myles delivered her report to the Department of Labor in violation of what she claims was her supervisor's directive. In both cases, the plaintiffs had lost what were essentially intra-departmental policy arguments and then refused to comply with the decisions of their respective supervisors.
In a passage directly applicable here, the Seventh Circuit compared Wright's "unilateral decision to submit a report to the court" to a junior prosecutor's decision to undercut the legal position adopted in his employer's — the government's — brief by filing a separate, personal brief confessing error. In both circumstances, the relevant departmental decisionmakers have a responsibility to use their judgment in choosing an official position to represent and defend to the court, and may reasonably expect that their judgment will not be sideswiped by an independent submission to the court by a subordinate who fought and lost the internal policy battle but still hopes to win the war. In discharging their important duties, state agencies rely upon unified chains of command through which disparate sources of information may be filtered and evaluated in the process of reaching and executing difficult, and often controversial, decisions. Vigorous debates within the agency, even at the eleventh-hour, are to be expected, but at a certain point the department's position must be set firmly if the department is to function. Agency decisionmakers may then punish thirteenth-hour efforts to undermine their authority and disrupt the functioning of their offices by subordinates seeking to undercut final decisions with which they disagree. Id. at 1504 (emphasis added); see also Youker, 22 F.3d at 166 (affirming summary judgment for employer who fired employee for speech pursuant to employment duties that contravened office policy requiring prior authorization). Cf. Myers v. Hasara, 226 F.3d 821, 827 (7th Cir. 2000) (reversing summary judgment because of genuine factual issue over whether employee's allegedly protected speech actually violated superior's order).
In applying the Pickering balancing test, the Seventh Circuit has also considered the effect of the speech on the ability of supervisors to maintain discipline, the harmony of the workplace, the confidence of supervisors in the speaker, and the ability of the agency to present a consistent public message and guard confidential information. Jefferson, 90 F.3d at 1297; Glass v. Dachel, 2 F.3d 733, 742 (7th Cir. 1993). Accepting Myles' version of events, her speech violated a clear directive from an immediate supervisor. That speech therefore undermined all of these interests and thus undermined the government's interest in efficient and effective service. Because her speech was in the course of her employment, the undisputed facts show that her interest in that speech is significantly outweighed by the IDWD's interest in providing efficient services.
Consequently, Myles' disclosures to the Department of Labor are not protected speech.
Having established that Myles' speech was unprotected, the court need not proceed with the rest of the analysis or analyze the reasons for Myles' discharge. Connick, 461 U.S. at 146. The Court in Connick stated that, where the employee's speech does not pass the Pickering analysis, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable. Id. Even when all the evidence is considered in the light most favorable to the plaintiff, no genuine issues of material fact remain to be resolved.
Conclusion
For the foregoing reasons, defendant's motion for summary judgment is granted, and final judgment for defendant shall be entered accordingly.
So ordered.