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Sunday, January 10, 2010

Seventh Circuit Upholds Lower Court On Employee Speech Ruling

The Seventh Circuit has upheld a lower court ruling that a plaintiff state police officer's retailation complaint against his employer should be dismissed, but based not on the lower court's finding that the plaintiff's speech "was clearly related to and part of his official duties, and that he was not speaking as a private citizen," but that while his speech was of some public concern, his purpose in speaking was "consistent with the vindication of a personal interest, rather than a public concern."

To prevail on his ยง 1983 claim, Bivens must prove that (1) he engaged in constitutionally protected speech; (2) the defendants, as public officials, engaged in adverse conduct against him; and (3) the defendants were motivated, at least in part, by his protected speech. ... Like the district court--albeit for different reasons--we conclude that Bivens did not engage in constitutionally protected speech. Therefore, we need not consider whether Bivens can establish the other necessary elements, or whether the defendants are entitled to qualified immunity.

Although Bivens's employment with the ISP places certain limits on his freedom of speech, he does not lose all his First Amendment rights because of his public employment. Rather, his speech may, in some instances, be protected when he speaks "as a citizen addressing matters of public concern."... In Garcetti, the Supreme Court held that the First Amendment does not protect speech made by public employees when the speech is "pursuant to their official duties." .... This is because when employees speak pursuant to their official duties they are not speaking as citizens, regardless of whether the speech is about a matter of public concern. ...It is undisputed that Bivens was responsible for the safe operation of the firing range and consequently that he had a responsibility, as part of his job duties, to report his concerns about environmental lead contamination. Thus, under Garcetti, it is clear that the complaints about lead contamination that Bivens made directly up the chain of command to his supervisors are not protected by the First Amendment. Whether the same exact speech may be protected when made through a different, yet still entirely internal, channel is less clear. But because we conclude that the union grievance--the only speech even arguably protected here--did not raise a matter of public concern, we need not reach that issue here.

Even assuming that he was speaking through his grievance as a citizen, rather than a public employee, Bivens must still establish that his speech addressed a matter of public concern to prevail on his First Amendment retaliation claim. ...Whether a statement is a matter of public concern is a question of law for the court, and we answer this question by examining the "content, form, and context" of the statement. ...


Here, the subject matter of Bivens's grievance was potentially of interest to the public, especially those members of the public who used the firing range. But this does not end the inquiry. While the content of the speech is the most important factor, Gustafson v. Jones, 290 F.3d 895, 907 (7th Cir. 2002), "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," ... Rather, the motive of the speaker is a relevant, though not dispositive, factor because speech will not be protected if the only point of the speech was "to further some purely private interest." ... Thus, although the fact that the speaker was partly motivated by personal concerns does not necessarily mean the speech cannot also be a matter of public  concern, Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir. 2000), "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."

...
To resolve whether a personal grievance nonetheless raises to the level of public concern, "it is necessary to 'look at 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?' "...We have held, for example, that a teacher's complaint about class size and discipline did not raise a matter of public concern when her complaint was in response to criticism of her performance, the complaint addressed only issues in her own classroom, and she only requested a reduction in her own class sizes. ...And we have held that a police detective's complaint about pervasive violations of an anti-smoking ordinance did not rise to the level of a public concern where it was "focused . . . on the difficulties the speaker himself had experienced" and "made for purely personal reasons rather than a desire to air the merits of the issue." ...


The question, then, is whether the context, form, and particular content (as opposed to the subject matter) of the speech indicate that Bivens complained for the purely private purpose of resolving a workplace issue. The context and the form of Bivens's grievance are consistent with the vindication of a personal interest, rather than a public concern, and the content of the grievance--while touching a subject of potential interest to the public--does not convince us that his purpose was anything other than personal. First, regarding form, Bivens spoke in the form of a union grievance that was entirely internal to the ISP. Although the fact that the speech was entirely internal does not itself render the speech unprotected, ... this fact does suggest that the grievance was personal in nature. ... Second, regarding context, the grievance arose as a result of Bivens's own illness and detailed his own exposure to environmental lead at the firing range. Finally, regarding content, the grievance made no reference to potential safety issues for the public and did not even suggest that the lead levels were high enough to endanger the public during occasional use. Moreover, the only justification cited in the grievance was a provision of the collective bargaining agreement guaranteeing a safe working environment. Thus, even if the public would have been interested in lead contamination at the range, or would have benefitted from the remediation that Bivens requested, there is no indication that Bivens was attempting to bring an issue of wrongdoing or environmental safety to public light. Rather, the content, form, and context of the grievance demonstrate that it was filed for the sole purposes of securing his own medical treatment and ensuring he had a safe working environment.

That the public may have been interested in Bivens's grievance and may have benefitted from the resolution he requested does not raise the speech here to the level of public concern. Because Bivens's internal grievance was on a matter of purely private interest, addressing only the effect of lead contamination on himself and his work environment, it did not raise a matter of public concern and is not protected by the First Amendment.

The case is Bivens v. Trent.

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