The Seventh Circuit recently provided further direction to employers defending Section 1983 retaliation claims brought by employees seeking protection under the First Amendment and also clarified the burden of such an employee in proving such a claim.
Historically, it was held by courts that speech consistent with an employee’s general duties, but not part of her “core functions,” deserved constitutional protection. Spiegla v. Hull, 371 F.3d 928, 939 (7th Cir. 2004) (Spiegla I). However, this changed with the U.S. Supreme Court ruling in Garcetti v. Ceballos, 547 U.S. 410 (2006), which now requires a practical inquiry into whether an employee’s expression was made pursuant to her official obligations, including both her day-to-day duties and her more general responsibilities.
Recently, the Seventh Circuit upheld summary judgment in favor of an employer accused of firing an employee in retaliation for her reports of alleged employer misconduct. Trigillo v. Snyder, et al, No. 06-2578 (7th Circuit, October 31, 2008). Tracy Trigillo, a licensed Illinois attorney, was hired by the Illinois Department of Corrections to fill a newly-created “senior public service administrator position.” Though there was dispute over her actual title – Ms. Trigillo referred to herself as “State Purchasing Officer Designee,” a designation denied by her immediate supervisor - there was no dispute over her job duties and responsibilities. These included, but were not limited to, ensuring that departmental contracts were properly bid and otherwise met the requirements of the then newly enacted Illinois Procurement Code, 30 ILCS 500/1-1, et seq. Additionally, she was the department’s “primary liaison” with the Department of Central Management Services (CMS), a separate state agency that provides support to other entities regarding procurement procedures.
Early in her employment, Ms. Trigillo believed that the practices of her department were not in compliance with the rules promulgated by the CMS, and regularly took these concerns to her supervisors and CMS officials. When her communications failed to result in any change, she took pen to paper and drafted a “report” to CMS and the Illinois Attorney General detailing her suspicions of collusion (or other anticompetitive practices) within the department. Ms. Trigillo specifically stated in this report that she was not making “criminal or other accusations,” but was rather seeking guidance from the attorney general on how to proceed in light of the alleged misconduct.
Also during her employment, Ms. Trigillo was told by a staff member that department officials had rigged the bidding process for a contract so a vendor connected to the governor would prevail. Though the contract pre-existed her employment, Ms. Trigillo did oversee its extension during her tenure. She reported the potential misconduct to the FBI, pursuant – in her own words – to her “duty as a citizen,” as well as her “duty as chief of procurement.”
In a decision predating Garcetti, the district court granted summary judgment in favor of her employer, dividing Ms. Trigillo’s “speech” into three categories, with the following decision as to each: (1) her routine communications with supervisors and CMS officials were made pursuant to her job duties; (2) her report to the attorney general and CMS was made pursuant to the procurement code and may have raised some issues of public concern, but her interest as a citizen in reporting such misconduct was outweighed by her employer’s interest in operating efficiently, specifically concluding that the department was entitled to require Ms. Trigillo to loyally espouse its positions; and (3) though her report to the FBI was found to be protected speech, Ms. Trigillo failed to present evidence that her supervisors knew she made the report.
On appeal, and after Garcetti was decided, Ms. Trigillo argued that both her report to the attorney general and CMS officials as well as her report to the FBI went beyond her normal day-to-day duties and, therefore, she was entitled to protection under the First Amendment. The defendant argued that Ms. Trigillo was required by statute to report the alleged misconduct and, therefore, her “speech” was pursuant to her job duties and afforded her no such protection under the First Amendment.
In affirming the district court, the Seventh Circuit held that in order to determine what her actual duties entailed, they were required to look beyond statutes generally espousing her duties. In doing so, the court specifically turned to the reports under which Ms. Trigillo claimed protection – the report to the attorney general and CMS, as well as her report to the FBI. Finding that the AG/CMS report was tailored to seeking assurance that the Department of Corrections was proceeding appropriately, the court held that it fell squarely within her official job responsibilities.
As for the report to the FBI, while the court recognized that the report may have brought to light alleged improprieties of a public nature, her retaliation claim based on the FBI report failed for a much more simple reason. In this respect, because she was unable to provide any competent evidence that the decisionmaker who elected not to renew her employment contract knew that she was, in fact, the person who alerted the FBI, coupled with Ms. Trigillo’s admission that she never acknowledged that she was the one who made the report, the indispensable link between the report and her termination was missing. As she was unable to prove this essential prong of her retaliation claim, the Seventh Circuit upheld the decision of the district court.
For governmental employers, particularly where job duties and responsibilities are often murky, the decision of the Seventh Circuit furnishes a clearer roadmap of defense to Section 1983 claims brought by former employers claiming retaliation in violation of the First Amendment. Rather than rely upon often general and generic statutory duties imposed upon their employees, focus must also be concentrated on the specific aspects of their employment responsibilities and the motivation of their claimed speech in particular.
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Stacey McGlynn Atkins, an associate in our Chicago office, concentrates her practice in municipal liability litigation. Prior to joining Querrey & Harrow, she worked with a local litigation firm concentrating her efforts in litigation of municipal employment and labor matters, personal injury and professional negligence litigation.
Ms. Atkins actively practices in the Circuit Court of Cook County, the United States District Court for the Northern District of Illinois, the Nineteenth Judicial Circuit, Cook County Criminal Court and Domestic Relations, the Police Board, the Illinois Department of Human Rights and Illinois Human Rights Commission.
