Wallscetti v. Lagges, Charles ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1059
Stephanie Wallscetti,
Plaintiff-Appellant,
v.
John Fox, Charles Lagges, Louis DeRose,
and Pamela Laraia,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 4166--Harry D. Leinenweber, Judge.
Argued June 8, 2001--Decided July 20, 2001
Before Flaum, Chief Judge, and Bauer and
Kanne, Circuit Judges.
Flaum, Chief Judge. Stephanie
Wallscetti appeals the district court’s
grant of summary judgment in favor of the
defendants on her claim for retaliation
in violation of her First Amendment
rights. For the reasons stated herein, we
affirm.
I. Background
Wallscetti began working for the Cook
County Department of Environmental
Control in October, 1993 in the
Demolition/Asbestos Division and
transferred to the Commercial Division in
May, 1994. Wallscetti’s immediate
supervisor in the Commercial Division was
Pamela Laraia, who reported to John Fox,
the manager of the Division. The person
above Fox was Louis DeRose, the Deputy
Director of Environmental Control, who
reported to Charles Lagges, the Director
of the Department. At the top of the
organization chart was Albert Pritchett,
the Chief Administrative Officer for Cook
County and Lagges’s boss.
The parties are unable to agree on most
of the remaining facts. Since the
defendants were awarded summary judgment,
we construe the evidence in the light
most favorable to the plaintiff. See
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
During her time with the County,
Wallscetti made a number of complaints.
The subject matter of some of these is
not well-documented in the record, but
the key one resulted after Wallscetti
observed that Fox and Laraia were
sometimes absent from their offices in
the afternoons. The plaintiff hired a
private investigator to tail Fox in
November or December of 1996. Apparently
based on information from the
investigator and her own observations,
Wallscetti concluded that Fox and Laraia
often stayed on Cook County’s clock while
engaging in personal business away from
the office. In February of 1997,
Wallscetti informed the comptroller of
Cook County of Fox’s and Laraia’s
frequent absences from work during the
day; she also complained to the Cook
County Equal Employment Opportunity
Officer, Claudette Giles, that she was
being harassed by Laraia and Fox for
engaging in whistleblowing activities.
Pritchett, who apparently learned of the
allegations from the comptroller,
informed Lagges of the plaintiff’s
charges. At around this point, Lagges
created a confidential file in which he
occasionally entered notes about his
dealings with the plaintiff and her
allegations against his subordinates. Fox
later learned of the allegations against
him and purportedly told Wallscetti that
her "days are numbered."
In March, Lagges scheduled a pre-
disciplinary hearing to discuss whether
Wallscetti had failed to follow the chain
of command in making her various
complaints and what repercussions would
result. At this meeting, Lagges asked
Wallscetti about whom she had provided
information to and also requested that
she give him any documentation that would
substantiate her charges against Fox.
Wallscetti refused to provide Lagges with
any of her evidence.
In mid-April, DeRose received a letter
stating that the Board of Ethics would be
investigating Fox, and Fox was notified
of this fact on May 5. Wallscetti was
apparently on medical leave from May 15
until June 23. However, she claims that
during this time Fox approached her and
said "My ass is covered; you will get
yours bitch." On July 17, she was
notified of a pre-disciplinary hearing
that would be held to address charges
that she had harassed Laraia, was
insubordinate, failed to perform her
duties properly, lied to supervisors, and
submitted false documents in connection
with an inspection she had performed. The
hearing was conducted, and on July 25,
DeRose submitted a memorandum summarizing
his findings to Lagges and recommending
that Wallscetti be discharged.
Importantly, in the Environmental Control
Department’s command structure, only
Lagges could terminate an employee;
Laraia, Fox, and DeRose could not. After
reviewing the report, Lagges fired the
plaintiff.
The plaintiff’s work record is the
strongest source of contention between
the two sides. By the time she was
terminated, the defendants claim that
Wallscetti had racked up a long list of
reprimands for not performing her duties
properly, insubordination, and even
threatening Laraia and her family. Some
of the reprimands for inadequate job
performance were issued when the
plaintiff was in the Demolition/Asbestos
Division or otherwise well before the
latter part of 1996. However, the
plaintiff avers that she did not commit
any of the alleged infractions. She also
claims that she never saw a large number
of these reprimands until shortly before
she was discharged, arguing that the
defendants were creating a paper trail so
that she could be fired. She supports
this theory with the deposition of
another employee, Buvan Nathan, who
claims that DeRose and Fox asked him in
the summer of 1997 to let them reprimand
him for filling out inspection sheets
improperly so management would not appear
to be singling out Wallscetti. Nathan
states that DeRose told him the reprimand
would be removed after Wallscetti was
fired.
Wallscetti filed suit against the
defendants in this appeal in both their
individual and official capacities and
the Cook County Department of
Environmental Control, alleging primarily
that the defendants retaliated against
her for exercising her First Amendment
rights by harassment, creating false
reprimands, and eventually terminating
her. The district court dismissed the
claims against Cook County and the
remaining defendants in their official
capacities. It also ruled that only
violations that occurred after June 23,
1997 would be considered because of the
statute of limitations, effectively
limiting Wallscetti’s retaliation claim
to her termination. The plaintiff has not
challenged these orders on appeal. The
defendants then moved for summary
judgment. The district court found that
only Wallscetti’s information about Fox’s
failure to work while on county time
constituted protected speech,/1 that a
reasonable jury could have found that a
motivating factor for Wallscetti’s
termination was this speech, but that she
would have been fired anyway. Thus, the
court granted summary judgment to the
defendants.
II. Discussion
We review the district court’s grant of
summary judgment de novo, drawing all
reasonable inferences in favor of the
non-moving party. Johnson v. University
of Wisconsin-Eau Claire, 70 F.3d 469, 477
(7th Cir. 1995). In order to prevail on a
First Amendment retaliation claim, the
plaintiff’s speech must be
constitutionally protected and have been
a motivating or substantial factor in the
defendants’ actions. Kokkinis v.
Ivkovich, 185 F.3d 840, 843 (7th Cir.
1999).
A. Constitutionally Protected Speech
Wallscetti argues that all instances of
her speech, including her various
complaints about harassment by Laraia and
Fox, are constitutionally protected. The
defendants concede that the plaintiff’s
statements about Fox’s leaving the office
early and misusing county time are
shielded by the First Amendment. However,
they contend that the district court
correctly found that Wallscetti’s various
other complaints about her supervisors
are unprotected.
Speech by public employees is protected
by the First Amendment if: (1) it
addresses an issue of public concern; and
(2) the employee’s interest in speaking
outweighs the interest of the state in
efficiently providing services. Id. at
843-44. The parties argue over only the
first part of this test, without
discussing the second. To determine
whether speech is on an issue of public
concern, we examine factors such as
content, form, context, and motivation,
with content being the most important.
Button v. Kibby-Brown, 146 F.3d 526, 529
(7th Cir. 1998).
These determinants indicate that
Wallscetti’s reports of harassment are
not protected. The content of
Wallscetti’s complaints shows that she
was complaining only about Fox and
Laraia’s hostility toward her personally,
rather than more generally about her
supervisors’ effect on the morale of the
office as a whole or some other issue of
broader importance. Generally, speech
relating to only the effect an employer’s
action has on the speaker is not shielded
by the First Amendment, since it rarely
involves a matter of public concern. See
id. at 529-30; Cliff v. Board of Sch.
Comm’rs of City of Indianapolis, 42 F.3d
403, 410-11 (7th Cir. 1994). The form of
Wallscetti’s speech, contacting her
supervisors’ internal superiors rather
than attempting to bring the harassment
into view of those outside the County’s
administrative structure, further
supports finding that her complaints are
not protected./2 See Taylor v.
Carmouche, 214 F.3d 788, 792 (7th Cir.
2000); Wales v. Board of Educ. of
Community Unit Sch. Dist. 300, 120 F.3d
82, 84 (7th Cir. 1997). The fact that the
complaints were made during the course of
an apparently long-running dispute with
her immediate supervisors, the context of
and apparent motivation for her speech,
also indicates that the speech was not
directed toward airing a matter of public
concern. See Button, 146 F.3d at 530-31.
In sum, these complaints of harassment
were more in the nature of a private
personnel dispute rather than an issue in
which the public at large would be
genuinely interested. Id. at 530; see
also Berger v. Battaglia, 779 F.2d 992,
998-99 (4th Cir. 1985). Therefore, we
conclude that the district court
correctly found that none of Wallscetti’s
speech except for her allegations about
Fox leaving the office early is
constitutionally protected.
B. Causation
The next question is whether
Wallscetti’s reports to the Board of
Ethics on Fox’s misuse of county time and
resources was a motivating factor in her
termination. One key fact in evaluating
this issue is that Lagges alone fired the
plaintiff, and he was the only one of the
individual defendants named in this suit
with the power to do so. Thus, with an
exception discussed below, in order to
create a triable issue on whether her
protected statements were a motivating
factor in her discharge, Wallscetti must
produce sufficient evidence for a
reasonable factfinder to decide that
Lagges harbored a retaliatory intent. See
Willis v. Marion County Auditor’s Office,
118 F.3d 542, 546 (7th Cir. 1997); see
also Wallace v. SMC Pneumatics, Inc., 103
F.3d 1394, 1400 (7th Cir. 1997).
Considering all of the record evidence
recounted below in the aggregate, as of
course we must on a summary judgment
motion, see Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587
(1986), whether Wallscetti has satisfied
this burden is a somewhat close question.
Nevertheless, we conclude that she has
not.
Wallscetti claims that Lagges’s own
statements, most of which are contained
in the file he began in February, 1997,
are sufficient to provide the link
between her protected conduct and
discharge, but we find otherwise. Lagges
did say that he desired relief from the
plaintiff’s "constant allegations."
However, this statement appears to be
directed primarily towards Wallscetti’s
claims of harassment of by Fox and
Laraia, which are not a matter of First
Amendment concern as described above, and
various other grievances, which
Wallscetti does not argue are protected,
rather than the plaintiff’s information
about Fox’s failure to perform his
duties. The use of "constant" reinforces
this conclusion, since the protected
speech about Fox was only one of the
apparently frequent complaints that
Wallscetti made to various officials such
as Pritchett and Giles.
Lagges also said that he was "stressed"
by the Board of Ethics’ investigation of
Fox. However, the context of this
statement shows that Lagges was annoyed
by what he felt were repetitive and
duplicative requests from the Board of
Ethics for documents, which were
disrupting the work of the office. Any
animus in Lagges’s comment was directed
at what he believed to be an inefficient
investigation by the Board of Ethics
rather than at Wallscetti.
The plaintiff further argues that
Lagges’s questioning of her at the March,
1997 pre-disciplinary hearing to
determine if she had spoken to federal or
state authorities besides those in the
Cook County hierarchy supports an
inference that he intended to retaliate
against her. However, such an inference
is too tenuous to be reasonable; Lagges
did not threaten to discipline Wallscetti
for her speech about Fox but simply asked
her to whom she had given information.
Moreover, Lagges’s concerns at this
meeting were to investigate Wallscetti’s
circumvention of the chain of command and
her refusal to provide any documentation
for her charges against Fox to Lagges.
Lagges had a strong and legitimate
interest in determining whether Fox or
any of his other subordinates had engaged
in malfeasance, and his questions were
aimed at finding a way to obtain this
information.
Wallscetti also points to an April 10,
1997 entry in Lagges’s confidential file.
This entry mostly discusses Lagges’s
unwillingness to grant Wallscetti a
transfer until she provided him with
supporting evidence for her allegations
against Fox. The end of the note states
that "if the charges are proven baseless,
she may be disciplined or discharged,"
which Wallscetti believes aids her case.
However, this sentence provides little
support for an inference of retaliation.
First, Wallscetti has not provided any
evidence to show that Lagges eventually
concluded that her complaints were
"baseless." Thus, any assertion that he
disciplined her for the reason stated in
the entry is speculative. Second, the
fact that the plaintiff still had not
provided Lagges any of the information
about Fox and the overall context of the
entry illustrates his doubts about
whether she had any evidence to support
her charges. If the plaintiff’s
allegations against Fox were in fact
"baseless" in the sense that she did not
have any supporting evidence and the
claims were untrue, which is to say that
her charges were recklessly false, then
she could have been disciplined without
violating the First Amendment. See
Brenner v. Brown, 36 F.3d 18, 20 (7th
Cir. 1994) (per curiam). Lagges’s legally
accurate statement to this effect
provides little support for the inference
that he would have punished Wallscetti if
in fact her allegations against Fox did
have an evidentiary basis.
Moving on from statements by Lagges,
Wallscetti also relies on what she
contends is the relatively short period
of time between her protected conduct and
termination. Lagges apparently learned of
Wallscetti’s claim that Fox was misusing
county time in either February or March
of 1997, and Wallscetti was fired at the
end of July. Thus, the length of time
between the protected speech and the
adverse employment action is at least
four months, which, without more, is too
long to support a reasonable inference of
causation. See Filipovic v. K & R Express
Sys., Inc., 176 F.3d 390, 399 (7th Cir.
1999); Hughes v. Derwinski, 967 F.2d
1168, 1174-75 (7th Cir. 1992).
The plaintiff’s last pieces of evidence
are the threats by Fox that her "days are
numbered" and "you will get yours," which
she argues clearly show a retaliatory
intent. The district court also
specifically relied upon these statements
in determining that Wallscetti had raised
a triable issue as to whether retaliation
was a motivating factor in the
plaintiff’s discharge. However,
"[s]tatements by subordinates normally
are not probative of an intent to
retaliate by the decisionmaker." Willis,
118 F.3d at 546. One exception to this
general principle is where the
decisionmaker relies on information
provided by a subordinate with
retaliatory animus. Id. at 547-48. In
this case, Wallscetti has failed to
provide any specific facts to support a
claim that Lagges relied on Fox’s
opinions in deciding to fire the
plaintiff, and thus evidence of Fox’s
animus cannot be imputed to Lagges. See
Oates v. Discovery Zone, 116 F.3d 1161,
1172-73 (7th Cir. 1997).
III. Conclusion
Applying the multi-factor test to
determine whether speech is of public
concern, we find that Wallscetti’s
complaints of personally being harassed
by her supervisors is not. The plaintiff
is unable to raise a triable question as
to whether her allegations about Fox’s
misuse of county time and resources,
which the defendants concede is protected
speech, motivated her discharge.
Therefore, the district court’s grant of
summary judgment is Affirmed.
FOOTNOTES
/1 The district court found no record evidence that
Wallscetti complained about Laraia, even though
the plaintiff claimed to have gathered informa-
tion indicating that Laraia was not performing
her duties.
/2 In her reply brief, Wallscetti notes that Lagges
asked her whether she had contacted agencies or
persons outside of the Department at the March,
1997 pre-disciplinary hearing, apparently to
suggest that she did make her complaints public.
However, Lagges’s questioning whether she had
transmitted her allegations to others does not
establish that she in fact did so. Wallscetti, as
the plaintiff, bears the burden of proving that
her speech was of public concern, Klunk v. County
of St. Joseph, 170 F.3d 772, 775 (7th Cir. 1999),
and, as the non-moving party, must come forward
with specific facts to demonstrate a genuine
issue for trial, Fed.R.Civ.P. 56(e). Here, the
only record evidence is that Wallscetti com-
plained to persons within the Cook County hierar-
chy. If the plaintiff had contacted outside
agencies, she could have stated so in her affida-
vit.
A similar analysis and conclusion applies to
Wallscetti’s claim that she complained about
Laraia as well as Fox. In an attempt to establish
this supposed fact, Wallscetti relies on her
collection of information about Laraia, Lagges’s
notes indicating that the plaintiff threatened to
"get" Laraia, and Lagges’s questioning of the
plaintiff about whether she had complained to
outside agencies about Laraia. However, none of
these pieces of evidence provide significant
support for Wallscetti’s claim that she actually
complained about Laraia. If Wallscetti had in
fact notified others of Laraia’s alleged wrongdo-
ing, she could have averred this fact directly
through her affidavit.