Brooks, Benjamin v. Univ WI Regents ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3308
BENJAMIN R. BROOKS, M.D.,
MOHAMMED SANJAK, and
JENNIFER PARNELL,
Plaintiffs-Appellants,
v.
UNIVERSITY OF WISCONSIN BOARD
OF REGENTS, THOMAS P. SUTULA,
and GREGORY C. ZALESAK,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 C 125—John C. Shabaz, Judge.
____________
ARGUED JANUARY 13, 2005—DECIDED APRIL 28, 2005
____________
Before CUDAHY, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. This dispute arose after the
University of Wisconsin Medical School closed a clinic (and
a laboratory) devoted to the research and treatment of
Multiple Sclerosis (MS) and Amyotrophic Lateral Sclerosis
2 No. 04-3308
(ALS), also known as Lou Gehrig’s Disease. The plaintiffs,
the clinic’s founder and two employees, claim that the school
closed the clinic because they spoke out against certain
actions taken by the chairman of the neurology department.
They allege that the closing violated their First Amendment
and due process rights. A federal district court entered
summary judgment in favor of various defendants affiliated
with the school, prompting this appeal.
The Neurology Clinical Research Center (NCRC) focused
on developing cures for neurological ailments and symptom
management. Dr. Benjamin Brooks was the NCRC’s director
and founder and also served as director of the Motor
Performance Laboratory (MPL), which conducted muscle
strength tests on patients suffering from neurological dis-
eases. The NCRC was funded from research grants, while
the MPL operated via grants and clinical revenue.
Dr. Thomas Sutula is the chairman of the school’s
neurology department. In 2000, Sutula was named as a
defendant in a civil lawsuit. Later, in connection with this
lawsuit, Brooks refused to sign an in-house letter of support
sent by neurology department staff to the dean of the
medical school. In 2001, Brooks and NCRC administrator
Jennifer Parnell criticized Sutula’s plan to discontinue a
program funded by the Muscular Dystrophy Association
(MDA) which provided services for economically disadvan-
taged patients. In addition, they voiced concern to associate
dean Paul DeLuca about Sutula’s involvement with
NeuroGenomeX, a private venture that competed against
the school for grant money.
In January of 2002, Sutula prohibited Brooks from acquir-
ing new patients for clinical trials because he was chroni-
cally late in submitting dictations. In March of 2003, Brooks
met with DeLuca to discuss these restrictions, as well as
the clinics’ financial prospects and perceived attacks on his
staff.
No. 04-3308 3
In May of 2003, the neurology department decided to close
the MPL at the end of the year, citing financial reasons. In
July of 2003, Sutula decided to shift management of clinical
studies from the NCRC to another division within the
neurology department. Parnell was initially laid off because
the duties of the NCRC were being shifted elsewhere, but
she was later hired to work in the other division.
Despite initial plans to close the lab at the end of 2003,
the school shut the door a little earlier. In July, a former
MPL employee expressed concerns about the general oper-
ation of the lab. And in August, neurology department
administrator Gregory Zalesak discovered a student at the
MPL preparing to perform unsupervised tests on an ALS
patient. It was also learned that this student and others
had access to confidential patient files. As a result of these
unauthorized practices, DeLuca and senior vice-president
Carl Getto decided to close the MPL immediately. DeLuca
then created a committee to review the operations of the
MPL. That committee concluded that the MPL could only be
reopened if it were reorganized in accordance with the two
other clinical labs within the neurology department. Due to
the MPL’s demise, in December of 2003 the school laid off
associate professor Mohammed Sanjak. Brooks and Parnell
remain at the school.
In January of 2004, Brooks, Parnell, and Sanjak brought
this action in Dane County circuit court against Sutula,
Zalesak, and the University of Wisconsin Board of Regents.
The defendants removed the case to a federal district court
pursuant to 28 U.S.C. § 1446. After discovery, the district
court entered summary judgment in favor of the defen-
dants, concluding that the plaintiffs failed to establish that
they engaged in speech protected by the First Amendment
or that they were deprived of property interests to sustain
due process violations.
On appeal, the plaintiffs argue that the district court
erred by entering summary judgment for the defendants on
4 No. 04-3308
their First Amendment and due process claims. We review
this decision de novo and may affirm it for any reason
supported by the record. Cygan v. Wis. Dep’t of Corrs., 388
F.3d 1092, 1098 (7th Cir. 2004).
We first consider the plaintiffs’ First Amendment claims.
They allege that the defendants shut down the research
clinics in retaliation for their speaking out against Sutula.
“A government employee does not relinquish all First
Amendment rights otherwise enjoyed by citizens just by
reason of his or her employment.” City of San Diego v. Roe,
125 S. Ct. 521, 523 (2004). Nevertheless, the government as
an employer has an interest in conducting its operations as
effectively as possible. Cygan, 388 F.3d at 1098 (citing
Waters v. Churchill, 511 U.S. 661, 675 (1994)). Thus, public
employees do not have an unfettered right to express them-
selves on matters related to their jobs, and courts must give
due weight to the government’s interest in efficient employ-
ment decisionmaking when evaluating retaliation claims.
To establish First Amendment retaliation, a plaintiff must
establish that the speech in question is constitutionally pro-
tected and that it was a substantial, or motivating, factor in
the employer’s retaliatory actions. E.g., Carreon v. Ill. Dep’t
of Human Servs., 395 F.3d 786, 791 (7th Cir. 2005). If the
plaintiff establishes these elements, the burden shifts to the
government to prove that it would have taken the same
action in the absence of the protected speech.
Courts apply a two-step analysis to determine whether
speech is constitutionally protected. First, we must decide
whether the plaintiffs engaged in speech that addressed a
matter of public concern. Connick v. Myers, 461 U.S. 138,
143 (1983). In making this determination, Connick directs
us to examine the content, form, and context of a statement
as revealed by the entire record. 461 U.S. at 147-48. More-
over, “[t]he First Amendment is implicated when a public
employee speaks as a citizen upon a matter of public con-
cern, but not as an employee upon matters only of personal
No. 04-3308 5
interest.” Michael v. St. Joseph County, 259 F.3d 842, 846
(7th Cir. 2001) (citing Myers v. Hasara, 226 F.3d 821, 826
(7th Cir. 2000)). Thus, we must evaluate whether the
plaintiffs’ speech is most accurately characterized as em-
ployee grievances or as a community concern. See Carreon,
395 F.3d at 791; Cygan, 388 F.3d at 1099. Second, if the
plaintiffs spoke on matters of public concern, we must then
balance their interest in expression against the school’s
interest in promoting effective and efficient public service.
See Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
The district court only reached the first step, concluding
that the plaintiffs failed to establish that they engaged in
protected speech. The plaintiffs identify several instances
of speech which they claim are constitutionally protected.
Brooks cites his failure to sign the letter of support for
Sutula. Brooks and Parnell cite their criticism of Sutula’s
relationship with NeuroGenomeX and of the school’s deci-
sions to end the MDA grant program, to restrict Brooks
from obtaining new grants, and to shut down the MPL. And
finally, Sanjak claims that he was laid off because he
criticized the school’s closings of the MPL and NCRC.
The district court concluded that none of these cited
instances touched on a matter of public concern. We agree,
though it could have entered summary judgment in favor of
the defendants for other reasons. One fundamental problem
is that the plaintiffs failed to provide specifics regarding
what they said. Instead, they gave only vague descriptions
of their speech. We know that they engaged in criticism and
“opposed,” “expressed concern,” “addressed,” and “spoke out
against” various school decisions. But what exactly did they
say? Did they specifically discuss issues of importance to
the public? We cannot tell, which is fatal to their claims
arising from their criticism of Sutula and of school deci-
sions. There is simply not enough evidence in the record to
determine whether they spoke out about matters of public
concern. See Michael, 259 F.3d at 846-47 (plaintiff failed to
6 No. 04-3308
demonstrate retaliation where a vague characterization of
what was said was the only evidence of protected speech).
Moreover, even if the plaintiffs’ vague descriptions pro-
vided enough clues as to what was said, we agree with the
district court that the cited instances of speech did not
address matters of public concern. The plaintiffs’ ongoing
dispute with the school was nothing more than an internal
personal squabble—the evidence does not suggest that the
point of their speech was to raise a matter of public concern
rather than to advance their purely private interests. See
Metzger v. DaRosa, 367 F.3d 699, 702-03 (7th Cir. 2004); 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
wrongdoing.”). Certainly the public has an interest in
treating ALS and MS. But the plaintiffs’ objections did not
so much center on patient welfare as on the internal
operations of the clinics, more specifically, Brooks’ ability to
operate as he saw fit and the plaintiffs’ roles within the
clinics. Basically, Brooks objected to the school’s decisions
to undermine his control over research and export the MPL
and NCRC functions elsewhere. This is a classic personnel
struggle—infighting for control of a department—which is
not a matter of public concern.
Our colleague’s dissenting view is well-taken but ulti-
mately unpersuasive. In his view, the plaintiffs’ speech
centered on the availability of medical care for patients. But
the evidence in the record suggests that patient welfare was
a mere afterthought. Indeed, the only concrete evidence
that the plaintiffs were concerned with patient welfare was
a February 2003 e-mail in which Brooks demanded a
meeting with DeLuca. In that e-mail, Brooks expressed
concerns that the clinical restrictions would have an ad-
verse impact on patient care. But there is no evidence that
No. 04-3308 7
patient welfare was ever discussed at the subsequent March
meeting, or at any other point in this dispute. Moreover,
there is no evidence in the record that the decision to close
the labs had any impact whatsoever on patient care. Rather,
the tenor of the plaintiffs’ concerns centered on how the
department should operate, not over the treatment of
patients.
The dissent also believes that the plaintiffs’ concern over
Sutula’s involvement with NeuroGenomeX touched on a
matter of public concern under Propst v. Bitzer, 39 F.3d 148(7th Cir. 1994). The facts in Propst are similar, but the case
is distinguishable. In Propst, the “public concern” component
was not at issue—it was agreed that the plaintiffs’ (two
laboratory faculty members) allegations that a director
misdirected funds touched on a matter of public concern.
Here, the “public concern” component is disputed, and for
good reason, as the evidence is a far cry from that in Propst.
All we have here is evidence that Brooks and Parnell
expressed concern over a potential conflict of interest re-
garding Sutula’s involvement with NeuroGenomeX. Unlike
Propst, there was never a specific allegation of misconduct
or misusing funds. The dissent says the plaintiffs “accused
Sutula of improperly cutting off the MCL’s funding in favor
of a private venture in which he had a personal financial
stake.” But that is a mere inference—there is nothing in the
record establishing that the plaintiffs made such an
allegation.
At heart, this case involved a power struggle over how the
department should be run. Because the plaintiffs submitted
little more than vague characterizations of their resistance
to department reorganization, with little to no evidence of
specific commentary on matters of public concern, we
believe summary judgment was appropriate.
This leaves only Brooks’ refusal to sign the support letter.
But even if this constitutes “speech” under the First
8 No. 04-3308
Amendment, which the parties assume, the plaintiffs do not
demonstrate that the lawsuit or Brooks’ defiance implicated
a matter of public concern. All plaintiffs say is that he re-
fused to sign off in support of Sutula in a civil lawsuit. But
take it from us, not every civil lawsuit involves a matter of
public concern. The plaintiffs failed to explain how the
litigation impacted the public. The dissent concludes that
Brooks’ refusal to sign off is per se protected speech because
of Sutula’s position as a top administrator of a public
university. Therefore, so the argument goes, the suit auto-
matically “bore on issues of official misconduct.” But we
know of no authority for the proposition that every lawsuit
involving a department head triggers public interest. Indeed,
there is no evidence that the underlying suit involved official
misconduct. Rather, the suit arose from the school’s failure
to follow through on a job offer to a potential associate
professor. The plaintiffs offer no basis for concluding that
this suit implicated a public concern.
The plaintiffs also challenge the district court’s entry of
summary judgment in favor of the defendants on their
procedural due process claims. To prevail, they must dem-
onstrate (1) that the defendants deprived them of a prop-
erty interest and (2) that the deprivation occurred without
due process of law. E.g., Hudson v. City of Chicago, 374
F.3d 554, 559 (7th Cir. 2004). Here, the district court cor-
rectly concluded that Brooks and Parnell failed to establish
protected property interests. Brooks did not show that he
had a property interest in the continued operation of the
MPL, while Parnell did not establish that her new position
constituted a demotion under Wis. Stat. § 230.34. And finally,
Sanjak did not establish that he was denied adequate process
in connection with being laid off; instead, he complained
that he was not given a pre-disciplinary proceeding prior to
the closing of the MPL. But like Brooks, Sanjak did not
have a property interest in the ongoing operation of the
MPL.
No. 04-3308 9
One final note. The plaintiffs complain that the district
court erred by striking portions of affidavits and various
exhibits submitted in opposition to the defendants’ summary
judgment request. But we have examined the stricken evi-
dence, and it would not have changed the outcome.
Accordingly, the judgment of the district court is
AFFIRMED.
CUDAHY, Circuit Judge, dissenting in part. Although the
defendants may very well prevail at some later stage of the
analysis (including at the Pickering balance between the
government’s interest as employer and the employee’s inter-
est as citizen), the plaintiffs’ issues here are matters of
concern to a public that relies for its health care on the
proper functioning of this public medical school. If these
public questions can be cast as mere office complaints, the
First Amendment will shrink accordingly, and speech that
ought to be protected will be diminished. The Connick pub-
lic concern inquiry, on which this lawsuit was cut short, is
preliminary to striking the Pickering balance and merely
addresses the discrete question whether this protest, viewed
in its own light, touched upon matters of concern to the
public.1
1
Of course, the majority has framed the basic First Amendment
retaliation test correctly: In order “[t]o determine whether speech
is constitutionally protected, we engage in a familiar two-part
inquiry traditionally known as the Connick-Pickering test.”
Sullivan v. Ramirez, 360 F.3d 692, 697 (7th Cir. 2004) (citing
Coady v. Steil, 187 F.3d 727, 731 (7th Cir. 1999); Connick v. Myers,
(continued...)
10 No. 04-3308
We have previously concluded that “[i]n broad general
terms, of course, educational improvement and fiscal re-
sponsibility in public schools clearly are matters of public
concern.” Klug v. Chicago School Reform Bd. of Trustees,
197 F.3d 853, 858 (7th Cir. 1999). This is especially so where
some malfeasance or misuse of school funds is at issue. See
Propst v. Bitzer, 39 F.3d 148, 152 (7th Cir. 1994) cert. denied,
514 U.S. 1036 (1995) (holding that allegations of malfea-
sance and mismanagement in a university research lab
touched upon matters of public concern); Berg v. Hunter, 854
F.2d 238, 243 (7th Cir. 1988) (holding that intramural ath-
letic coordinator’s accusation that school official had misrep-
resented the extent of school salary increases during a period
of budget deficits touches on matters of public concern.).
Of course, finances need not even be the subject when
charges of official misconduct in school affairs ought to be
of concern to the public. We have held that speech involving
other serious misconduct by school officials will fill the bill,
including speech alleging academic misconduct by faculty
members, Feldman v. Ho, 171 F.3d 494, 496 (7th Cir. 1999),
inappropriate sexual requests made by faculty members to
students, Webb v. Board of Trustees of Ball State University,
167 F.3d 1146, 1150 (7th Cir. 1999), and potential child
abuse by a teacher, Cromley v. Board of Education of
Lockport Township High School District 205, 17 F.3d 1059,
1067 (7th Cir. 1994).
1
(...continued)
461 U.S. 138 (1983); Pickering v. Bd. of Education, 391 U.S. 563(1968)). “Under Connick, we must determine whether the speech
addressed a matter of public concern. If the speech did involve
such a concern, under the Pickering balancing test, we then must
determine whether the government’s interest as an employer in
providing effective and efficient services outweighs the employee’s
interest as a citizen in commenting upon the matter of public
concern.” Id. at 698. “The determination of whether the speech is
constitutionally protected is a question of law for the court.” Id..
No. 04-3308 11
Even in the absence of affirmative misconduct, speech on
general matters of school policy can implicate matters of
public concern, so long as they affect the public. Speech in
this category may include contacting student athletes to
persuade them that the school mascot degrades minority
groups, Crue v. Aiken, 370 F.3d 668, 678 (7th Cir. 2004),
providing information to the media about the school board’s
alleged violation of a local open-meetings law, Dishnow v.
School District of Rib Lake, 77 F.3d 194, 197 (7th Cir.
1996), writing a memorandum criticizing school grading
policy, Hesse v. Board of Education of Township High School
District No. 211, 848 F.2d 748, 751-52 (7th Cir. 1988), and
giving a speech to the school board concerning inequitable
mileage allowances for school coaches, the extent of the
school’s liability insurance and school grievance procedures,
Knapp v. Whitaker, 757 F.2d 827, 840-42 (7th Cir.) cert.
denied, 474 U.S. 803 (1985).
Plaintiffs’ speech here clearly relates to a matter of public
concern. First, plaintiffs’ refusal to sign the petition in
support of defendant Sutula is expressive activity protected
by the First Amendment,2 and since the petition concerned
a lawsuit against Sutula—a top administrator of a public
university medical school—it bore on issues of official
misconduct. But even setting aside plaintiff Brooks’ refusal
to sign the petition, it is undisputed that plaintiffs also
expressed specific concerns, in meetings with medical school
administrators between 2001 and 2003, over cuts in the
2
The Supreme Court has previously held that the First
Amendment protects one’s right to refrain from speaking no less
than one’s right to engage in proactive expressive conduct. See
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)
(holding that an individual’s right to abstain from reciting the
Pledge of Allegiance is protected by the First Amendment). A
citizen’s prerogative to remain silent on an issue of public concern
presumptively comes within the ambit of the First Amendment.
12 No. 04-3308
MPL’s funding and Sutula’s alleged personal financial
interests in a private venture that competes with the MPL
for grant money.3
In February, 2003, Brooks demanded a meeting with
Paul DeLuca, Associate Dean for Research and Graduate
Studies,4 to address what he perceived to be unwarranted
attacks on his clinical research and the resulting adverse
effects on patient care. Brooks, together with plaintiff
Parnell, met with DeLuca on March 20, 2003, and he spoke
with DeLuca about the restrictions on his funding, the per-
ceived attacks against his research by Chairman Sutula and
the financial prospects of the NCRC and the MPL. There is
also evidence that he raised concerns about Sutula’s
involvement in NeuroGenomeX, a private venture which
competed with the NCRC and MPL for funding, though this
point is disputed. At the meeting, Brooks also gave DeLuca
a power point presentation which contained information on
NeuroGenomeX, and DeLuca subsequently forwarded the
presentation to Sutula. The day after this meeting, DeLuca
3
Both this court and the Supreme Court have held that speech
does not lose its protected character simply because it is expressed
privately. See Connick, 461 U.S. at 146 (“First Amendment
protection applies when a public employee arranges to communi-
cate privately with his employer rather than to express his views
publicly.”); Arnett v. Kennedy, 416 U.S. 134 (1974) (“Speech is still
speech—and still protected—even if it is made privately.”);
Marquez v. Turnock, 967 F.2d 1175, 1178 (7th Cir. 1992). (“Nor
should it make any difference that most of Marquez’s statements
were made to other persons within the Department, rather than
to the general public.”).
4
This court has indicated that where, as here, plaintiff ’s “com-
munication was directed to individuals with significant influence
in the Department,” this fact suggests that plaintiff did “seek to
bring to light actual or potential wrongdoings or breach of public
trust.” Marquez, 967 F.2d at 1178 (quotation omitted).
No. 04-3308 13
e-mailed Sutula to describe Parnell’s objections to the actions
taken against Brooks’ research team and to inform Sutula
that Brooks had complained to the Dean about restriction
on his grant privileges. In the e-mail, DeLuca recommended
conducting a full investigation of these issues and suggested
that he and Sutula might need legal representation in the
upcoming fight over the research strictures.
As later restrictions on the MPL and NCRC were im-
plemented, plaintiff Sanjak filed a formal grievance with
the University opposing the closure of the MPL. Plaintiff
Parnell also asserted that in the spring or summer of 2003
she went public by speaking to television reporter Tony
Galle on multiple occasions regarding the administration’s
attacks on the MPL and the NCRC, and plaintiffs allege
that DeLuca held a press conference with the local news
media to address these issues. These communications re-
move any question about the public character of the dispute.
We need go no farther than Propst v. Bitzer, 39 F.3d 148(7th Cir.) cert. denied 514 U.S. 1036 (1995), to find a case
very close to this one. There two university researchers al-
leged to university officials that the director of their labor-
atory had “diverted university resources to benefit himself
and private companies that he controlled, and that he had
failed to document various expenditures as required under
university regulations.” Id. at 150. Our court determined
that these allegations related to matter of public concern,
explaining that “[a]long with other courts, we have recog-
nized the importance of an employee’s interest in pointing
out a misuse of public funds or other breach of public
trust . . . . [s]peech that seeks to expose improper operations
of the government or questions the integrity of governmen-
tal officials clearly concerns vital public interests.” Id. at
152 (internal citations and quotation marks omitted). The
allegations advanced by the plaintiffs in Propst are very
similar to those made by Brooks, Parnell and Sanjak in the
instant case—they accused Sutula of improperly cutting off
14 No. 04-3308
the MCL’s funding in favor of a private venture in which he
has a personal financial stake. The claim here is a classic
accusation of malfeasance and abuse of public trust like the
one addressed in Propst.
The fact that the plaintiffs have a personal interest in
preserving a substantial treatment facility for patients with
neurological diseases (the MPL) and in an important
neurological research and patient care program (the NCRC),
is not a basis to deny that the maintenance of these facili-
ties and programs are matters of clear concern to the public.
A personal motive reinforcing a plea to preserve medical
research and treatment activities that serve patients and
contribute research at a publicly-supported medical school
detracts nothing from the public character of these activi-
ties. See Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir.
2000) (“[a] personal aspect contained within the motive of
the speaker does not necessarily remove the speech from
the scope of public concern.”) (quotation marks omitted).
And the issue here is whether these programs and activities
are for the most part to be put out of existence not, as the
majority suggests, whether they will simply not continue
under the control of the plaintiffs.
In these respects, this case brings sharply to mind
Pickering v. Board of Education, 391 U.S. 563 (1968), the
very font of First Amendment law involving protests of
public employees affecting matters of their employment. In
Pickering, a teacher in a public high school protested against
the re-allocation of public funds from academic programs,
where the teacher was apparently involved, to athletic
activities, where he was not. Obviously, the teacher had a
personal interest in the allocation of funds, but this did not
detract from the public importance of his protest.
In sum, plaintiffs’ allegations bear a striking resemblance
to those deemed to be of public concern in Propst, supra, and
they certainly relate to issues that might directly impact
No. 04-3308 15
the taxpaying public—i.e., conflicts of interest and misman-
agement in the administration of a public university med-
ical center involving the level of public funding available for
certain types of medical research and the availability of
medical care for certain neurological disorders. Alleged
conflicts of interest and cuts in funding for medical research
and patient care at a publicly funded medical school are, to
quote Connick, matters “of interest to the community upon
which it is essential that public employees be able to speak
out freely without fear of retaliatory dismissal.” 461 U.S. at
149. “Whether public officials are operating the government
ethically and legally is a quintessential issue of public
concern.” Greer v. Amesqua, 212 F.3d at 371.
As indicated, this lawsuit may well fail at a later stage of
analysis when the inquiry focuses on whether the actions of
the defendants were justified in the face of the plaintiffs’
protest. But the subject of the protest—the conduct of
research and patient care at the medical school of a public
university—is surely a matter of public concern, as well as
a matter of personal concern to the plaintiffs.
I therefore respectfully dissent.
16 No. 04-3308
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-28-05