Attorneys: Guolee, Terrence F.
A recent 7th Circuit Appellate Court Opinion should provide strong defenses to municipalities and county sheriff's offices against claims filed by correctional officers and other jail and prison employees alleging their civil rights were violated when they were either demoted or were not promoted following airing complaints about security at their particular jail or prison. The decision should also protect other governmental entities against job complaints being the basis for civil rights litigation in many future claims.
In Spiegla v. Hull, 481 F.3d 961 (7th Cir., March 30, 2007), Nancy Spiegla was employed as a state correctional officer at the Westville Correctional Facility in Indiana and filed a Section 1983 (42 U.S.C.S. § 1983) civil rights suit against defendants, the superintendent, assistant superintendent, and a senior corrections officer at the facility, alleging that she was retaliated against in violation of her First Amendment rights. Plaintiff alleged that she was transferred to another job in retaliation for reporting a possible security lapse at the facility.
In particular, on January 13, 2000, Spiegla was at her main-gate post alongside a Sergeant, her immediate supervisor, when she saw a jail Major and a Captain transfer bags from their private vehicles into the state-owned truck they were driving. When the two men approached the main gate in the truck, Spiegla intended to search their bags for possible contraband as part of the general search she performed on all vehicles entering the prison. However, when she got up to leave the guard house, the Sargeant dissuaded her from searching the truck, explaining that a recent change in prison policy exempted all state vehicles from search.
Spiegla had not heard of any change and believed the correct policy was to search all vehicles, no exceptions. Frustrated that she "could not go out there and do [her] job," Spiegla noted the apparent breach of prison policy in her log. Later that day, Spiegla recounted the incident to the Assistant Superintendent for the facility, who told her she should have searched the truck. The Assistant Superintendent also promised to refer the matter to the Superintendent, which he did at an executive staff meeting later that day or the next. At the meeting, the Superintendent asked the Assistant Superintendent, who allegedly was angry at the manner in which Spiegla's concerns were raised, to investigate the matter.
Four days later, Spiegla was reassigned from the main gate to the perimeter, a shift that involved walking around the prison's outer fence and delivering food to the towers. Upset over the transfer, Spiegla sued each of her supervisors with authority to transfer her, alleging she was transferred in retaliation for reporting the main gate incident. This report, she asserted, was protected speech under the First Amendment. However, the district court granted summary judgment for the defendants on the ground that Spiegla "was not speaking out as a citizen, but rather as an employee" and therefore had not engaged in protected speech.
In a prior appeal in the case, the 7th Circuit ruled that plaintiff Spiegla had engaged in protected speech by reporting the security lapse. Thereafter, a jury found that defendants illegally retaliated against plaintiff and awarded her $210,000 in damages.
While defendants' appeal was pending, the United States Supreme Court issued its decision in Garcetti, which held that the First Amendment does not protect statements made by public employees pursuant to their official duties. Garcetti v. Ceballos, 126 S.Ct. 1951, 1960, 164 L. Ed. 2d 689 (2006). Based on this, the 7th Circuit stated that, in light of Garcetti, it had to reexamine the prior ruling that it had entered in the case.
In the second appeal, the 7th Circuit stated that its "first inquiry" is the application of Garcetti to Spiegla's claim; if Spiegla was not speaking as a "citizen" as understood in Garcetti, her speech was not protected by the First Amendment as a matter of law. In particular, Garcetti made it clear that public employees have no cause of action for First Amendment retaliation unless they were disciplined for speaking as citizens about a matter of public concern. Garcetti, 126 S.Ct. at 1958, 1960.
When public employees make statements pursuant to their official duties, they are not speaking as citizens and "the Constitution does not insulate their communications from employer discipline." Id. at 1960. In other words, if Spiegla's statements regarding the security lapse were made pursuant to her official duties as a correctional officer, it was not protected speech and she had no claim for First Amendment retaliation.
In making this analysis, the 7th Circuit set out that the current test to apply on whether public-employee speech is protected is the two-part "Connick-Pickering test." First, courts must inquire whether the employee "spoke as a citizen on a matter of public concern." If not, the employee has no cause of action for First Amendment retaliation and there is no need to reach the second part of the test, which requires a balancing of the employee's interest "as a citizen in commenting on the matter" against the public employer's interest "as [an] employer in promoting effective and efficient public service." Id., citing Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L. Ed. 2d 811 (1968)); see Garcetti, 126 S.Ct. at 1960.
Comparatively, prior to Garcetti, the courts considered the "content, form, and context" of the employee's speech to determine whether the employee spoke as a citizen on a matter of public concern, with content being the most important factor. After Garcetti, however, the threshold inquiry is whether the employee was speaking as a citizen; only then should courts inquire into the content of the speech.
Based on this test and the record, the 7th Circuit concluded that Spiegla was speaking pursuant to her official duties - not as a citizen - when she reported the conduct of her superior officers and the actions of her Sargeant preventing her from conducting a search. As a correctional officer assigned to the main gate, the court noted that:
Spiegla's primary responsibility was to regulate and monitor the vehicle and foot traffic through the gate. This involved searching incoming vehicles and people for contraband, tasks for which she received specialized training. Written prison "post orders" dictated who and what were subject to search, and Spiegla's employment required her to faithfully follow those orders. As a correctional officer, she also had a more general responsibility to keep the facility secure and report any suspicious behavior by prison inmates, staff, or visitors to her superiors.
The court then noted that, later that day "while still in uniform and on duty at the main gate," Spiegla saw the Assistant Superintendent and explained to him that her Sargeant had stopped her from searching the truck of two "higher ups" she believed should have been searched. Spiegla recounted the incident to the Assistant Superintendent pursuant to her responsibility as a correctional officer to inform her superiors of a possible breach in prison search policy, especially one involving two senior prison officers. Based on this, the court held that she spoke as an employee, not a citizen, because ensuring compliance with prison security policy was part of what she was employed to do.
The court noted that in its prior decision it held that while Spiegla's statements were "consistent with her general duty as a correctional officer to keep the facility secure," they "were not part and parcel of her core function" to implement but not question prison security policies and that "she acted beyond her employment capacity and spoke as a private citizen on a matter of public concern." Nevertheless, this "focus on "core" job functions" is now too narrow after Garcetti, which asked only whether an "employee's expressions [were] made pursuant to official responsibilities." Garcetti, 126 S.Ct. at 1961. Based on this analysis, the 7th Circuit held that, because Spiegla reported the possible security breach to her superiors as part of her official responsibility as a correctional officer to keep the prison secure, her speech was not "citizen" speech protected by the First Amendment.
The court then noted that their revised holding is consistent with the early "post-Garcetti" precedent from other circuits. Comparing, Mills, 452 F.3d at 647-48 (police sergeant critical of her boss's personnel decision spoke as employee, not citizen), Hill v. Borough of Kutztown, 455 F.3d 225, 242 (3d. Cir. 2006) (borough manager who relayed worker complaints to borough council spoke as part of his duties as manager, not a citizen), and Freitag v. Ayers, 463 F.3d 838, 855 (9th Cir. 2006) (correctional officer did not speak as a citizen when she made internal reports to superiors about inmate sexual misconduct), with Fuerst v. Clarke, 454 F.3d 770, 774 (7th Cir. 2006) (deputy sheriff spoke as citizen because he made a public statement in his capacity as a union representative), and Freitag, 463 F.3d at 854 (correctional officer spoke as a citizen by sending letters to a state legislator and the state inspector general).
Additionally, the court noted that, while Spiegla's statements highlighted potential misconduct by prison officers, this does not change the fact that she was speaking pursuant to her official responsibilities, and not as a citizen "contributi[ng] to the civic discourse." Citing, Garcetti, 126 S.Ct. at 1960. The memo at issue in Garcetti also pointed to serious official misconduct - namely possible misrepresentations made by a deputy sheriff in a warrant affidavit. However, the assistant district attorney who wrote the application was responsible for supervising warrant applications; because this was one of "the tasks he was paid to perform," he "acted as a government employee" when he wrote the memo and his speech was not protected. Id.
Similarly, here, Spiegla "acted as a government employee" when she reported the possible misconduct. She did not make a public statement, discuss politics with a co-worker, write a letter to newspapers or legislators, or otherwise speak as a citizen.
Finally, while the court held the judgment entered in Spiegla's favor must be vacated, it did so apparently reluctantly by observing that the record and the jury's verdict substantiated that Spiegla "was punished for simply trying to follow the rules." On this, the court noted that Garcetti instructed that public employers should, "'as a matter of good judgment,' be 'receptive to constructive criticism offered by their employees.'" Citing, Garcetti, 126 S.Ct. at 1962 (quoting Connick, 461 U.S. at 149). That said, the court noted that its holding is "a straightforward application of the principle in Garcetti that there is not a "constitutional cause of action behind every statement a public employee makes in the course of doing his or her job." Id.
Previously, there have been many federal civil rights claims filed by public employees claiming they were retaliated based on concerns allegedly raised regarding conditions of their job, actions of co-employees or supervisors, or other varied complaints regarding governmental operations. Defense counsel have argued that the airing of these concerns, while commendable, should not rise to the level of a civil rights claim simply based on a claim that any adverse job action followed any documented grievance.
Indeed, in many cases it has appeared that governmental employees filed grievances as "proactive" actions in advance of feared demotions based on legitimate job performance issues. Moreover, governmental supervisors desiring to demote, transfer or otherwise control their subordinates for valid reasons, often avoid taking action based simply on the fear of being hit with a civil rights lawsuit based on a claim of retaliation - with the result being inaction and unsuitable employees maintaining government jobs.
Certainly, governmental employees retain strong protections against retaliation for their speech and association activities during non-work hours. As an example, this decision should not affect claims by employees alleging they faced job sanctions, hypothetically, for supporting a governmental supervisor's electoral opponent, involvement with union activities or other activities outside their work details. Moreover, employees may still resort to state "whistle-blower" protection statutes and protections negotiated by their unions into collective bargaining agreements for recovery. However, the benefit of this decision is that it should remove work-related grievances from the expensive and protracted theater of civil rights litigation.
Terrence Guolee is a shareholder in Querrey & Harrow's Municipal Liability and Commercial Litigation Practice Groups. His practice includes defense of catastrophic injury claims, insurance coverage claims, attorney billing disputes, municipal liability claims, defense of class action claims and claims involving insurance claims handling processes.
Mr. Guolee and several other attorneys in our firm represent many Illinois governmental entities, often as appointed "Special State's Attorneys," and have a proven track record of obtaining favorable results in a variety of civil rights claims involving excessive force, wrongful death, First, Fourth, Fifth, Sixth, and Fourteenth Amendment violations, false imprisonment and malicious prosecution.
Our experienced law enforcement attorneys also serve as counsel in consent decrees involving constitutional claims relating to corrections, represent numerous sheriff's departments and municipal law enforcement agencies in many types of litigation, and in negotiation and litigation involving diverse governmental issues such as reapportionment, employment, eminent domain, and premises liability claims.