Metzger, Linette A. v. Darosa, Timothy ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3093 & 01-3300
LINETTE METZGER,
Plaintiff-Appellee, Cross-Appellant,
v.
TIMOTHY DAROSA, et al.,
Defendants-Appellants, Cross-Appellees,
and
TERRANCE GAINER and STATE OF ILLINOIS
DEPARTMENT OF STATE POLICE,
Defendants-Cross-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 98-3297—Jeanne E. Scott, Judge.
____________
ARGUED JANUARY 21, 2003—DECIDED MAY 10, 2004
____________
Before POSNER, KANNE, and DIANE P. WOOD, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Linette Metzger, an
employee of the Illinois State Police, filed a six-count com-
2 Nos. 01-3093 & 01-3300
plaint against her employer and several individual defen-
dants alleging, among other things, that her First
Amendment rights had been violated by certain retaliatory
acts (Count V) and that the defendants had violated her
rights under the Illinois Whistle Blower statute, 20 ILCS
415/19c.1 (Count VI). The district court granted the de-
fendants’ motion for summary judgment with respect to
Count V. A jury then found in favor of Metzger and against
defendants Timothy DaRosa (Deputy Director of the
Division of Administration), Betsy Wasmer-Ryherd (former
head of the Information Services Bureau), and Gene P.
Marlin (First Deputy Director of the State Police) on
Metzger’s state whistle-blower claim under Count VI and
awarded her $138,379 in damages. The defendants ap-
pealed the jury verdict, arguing that the district court erred
in finding an implied private right of action under Section
19c.1 for a whistleblower who allegedly suffers an adverse
job action when she exposes wrongdoing within a state
agency. Metzger cross-appealed the district court’s order
granting the defendants’ motion for summary judgment on
Count V of her complaint.
Recognizing that the proper interpretation of Section
19c.1 raised several issues of first impression, we certified
the following questions to the Supreme Court of Illinois:
1. Does Section 19c.1 of the Illinois Personnel Code, 20
ILCS 415/19c.1, create an implied private right of
action?
2. If there is an implied private right of action under
Section 19c.1, is that action limited to one against the
employer (i.e., the State of Illinois), or may it also be
brought against individual employees (i.e., supervisors,
managers, or others who retaliate against the whistle-
blower)?
Metzger v. DaRosa, Nos. 01-3093 & 01-3300 (7th Cir. Mar.
18, 2003). The court reached only the first question, holding
Nos. 01-3093 & 01-3300 3
that 20 ILCS 415/19c.1 does not create an implied private
right of action. Metzger v. DaRosa, 2004 WL 335025, at *1
(Ill. 2004). On March 19, 2004, the Illinois Supreme Court
issued its mandate in this case, and the parties subse-
quently filed statements with this court pursuant to Circuit
Rule 52(b). With the benefit of the Illinois decision, we are
now in a position to dispose of the issues presented by this
appeal. In light of the Illinois Supreme Court’s holding that
Section 19c.1 does not create an implied private right of
action, we reverse both the jury’s verdict in favor of Metzger
on Count VI and the district court’s denial of the individual
defendants’ post-trial motion for judgment as a matter of
law on Metzger’s state whistle-blower claim.
The only question that remains arises from Metzger’s
cross-appeal from the district court’s decision granting
summary judgment to the defendants on her First
Amendment claims. As this issue was fully explored in the
original briefs and oral argument in this case, it too is ready
for decision. We summarize the pertinent facts in the light
most favorable to Metzger, as required on our de novo
review from an adverse decision on a summary judgment
motion. See Epps v. Creditnet, Inc., 320 F.3d 756, 758 (7th
Cir. 2003).
In 1996, Metzger told Wasmer-Ryherd, her supervisor in
the Information Services Bureau, that two of her co-workers
were taking time off from work without using benefit time.
More than a year later, she made the same complaint to
Wasmer-Ryherd’s superior, Thomas Yokely, unaware that
Wasmer-Ryherd had already addressed the matter infor-
mally. Metzger sent an e-mail to Wasmer-Ryherd telling the
latter about her report to Yokely. This e-mail had the
unfortunate effect of leading Wasmer-Ryherd to think that
the Division of Internal Investigations (DII) had opened an
investigation into Wasmer-Ryherd’s own conduct. Wasmer-
Ryherd then reviewed the time records for the entire
department and, in doing so, discovered that Metzger
4 Nos. 01-3093 & 01-3300
herself was often 30 minutes late for work. Wasmer-Ryherd
also suspected that Metzger was rummaging through office
files and co-workers’ desks after hours. She then took
several actions, including reporting Metzger’s timekeeping
violations to DII, revoking her 24-hour access to the
building, and requesting that Metzger be involuntarily
transferred out of her unit.
Metzger claimed that these actions amounted to unlawful
retaliation for her speech about timekeeping abuses, which
she claims is a matter of public concern. This court recently
had occasion to outline the elements of such a claim:
A § 1983 claim for retaliation in violation of First
Amendment rights in the public employment context
involves a three-step analysis. First, the court must
determine whether the employee’s speech was constitu-
tionally protected under the Connick-Pickering test.
Second, the plaintiff must establish that the speech was
a substantial or motivating factor in the retaliatory
action. Third, the defendant has an opportunity to
establish that the same action would have been taken
in the absence of the employee’s protected speech.
Sullivan v. Ramirez, 360 F.3d 692, 697 (7th Cir. 2004).
Metzger’s claim fails at the first step, in that her speech did
not address a matter of public concern under Connick v.
Myers, 461 U.S. 138 (1983), and thus was not constitution-
ally protected.
“Whether a government employee’s speech addresses a
matter of public concern depends upon ‘the content, form,
and context of [the speech] as revealed by the whole record.’
”
Gustafson v. Jones, 290 F.3d 895, 906-07 (7th Cir. 2002)
(quoting Connick, 461 U.S. at 147-48). While “complaints
containing documentation of time abuse have been held to
address a matter of a public concern,” Sullivan, 360 F.3d at
699, Metzger’s reports to Wasmer-Ryherd and Yokely did
not describe “[c]hronic time abuse by public employees
Nos. 01-3093 & 01-3300 5
implicat[ing] the misuse of taxpayer funds,” id. Further-
more, the context of Metzger’s reports undermines any
suggestion that her speech was of public concern. To the
contrary, Metzger indicated that she reported the time-
keeping violations to protect herself from potential accusa-
tions that she had ignored or acquiesced in the violations,
particularly because she handled personnel matters,
including tracking benefit time.
An employee’s motivation is a “relevant, but not dis-
positive, factor” in determining whether speech addresses
a matter of public concern. Id. at 700. Yet, “where consider-
ations of motive and context indicate that an employee’s
speech raised a topic of general societal interest merely
for personal reasons rather than a desire to air the merits
of the issue, or for the sole purpose of bolster[ing] [her] own
position in a private personnel dispute with [her] superiors,
these factors militate against the conclusion that the
employee’s speech is entitled to First Amendment protec-
tion.” Campbell v. Towse, 99 F.3d 820, 827 (7th Cir. 1996)
(internal citations and quotation marks omitted); see also
Colburn v. Trs. of Ind. Univ., 973 F.2d 581, 587 (7th Cir.
1992) (“[W]here the overriding reason for the speech is the
concerns of a few individuals whose careers may be on the
line, the speech looks much more like an internal personal
dispute than an effort to make the public aware of wrongdo-
ing.”). Metzger provides no evidence that the point of her
speech was to raise a matter of public concern, rather than
to further her purely private interests. See Callaway v.
Hafeman, 832 F.2d 414, 417 (7th Cir. 1987). Because we
hold that Metzger’s speech did not address a matter of
public concern, we need not decide whether, under
Pickering v. Board of Education, 391 U.S. 563 (1968), the
government’s interest as an employer in providing effective
and efficient services outweighed Metzger’s interest as a
citizen in commenting upon the matter of public concern.
See Cliff v. Bd. of Sch. Comm’rs, 42 F.3d 403, 409 (7th Cir.
6 Nos. 01-3093 & 01-3300
1994) (“[W]e need not undertake to balance the respective
interests of the speaker and the State unless the speaker
first establishes that her speech addressed a matter of
public concern.”).
We therefore AFFIRM the district court’s decision to grant
the defendants’ motion for summary judgment with respect
to Metzger’s First Amendment retaliation claim; REVERSE
the jury’s verdict in favor of Metzger on her state whistle-
blower claim under 20 ILCS 415/19c.1; and REVERSE the
district court’s order denying defendants Wasmer-Ryherd,
DaRosa, and Marlin’s motion for judgment as a matter of
law on Metzger’s state whistle-blower claim.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-10-04