Tracey Trigillo v. Donald Snyder ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 06-2578
T RACEY T RIGILLO ,
Plaintiff-Appellant,
v.
D ONALD N. SNYDER, G EORGE D ET ELLA,
W ALTER A. SMALL, et al.,
Defendants-Appellees.
A ppeal from the U nited States District Court
for the Central District of Illinois.
N o. 03 C 3241— Jeanne E. Scott, Judge.
A RGUED M AY 12, 2008—D ECIDED O CTOBER 31, 2008
Before R OVNER, E VANS, and W ILLIAMS, Circuit Judges.
E VANS, Circuit Judge. Tracy Trigillo, the manager of
procurement at the Illinois Department of Corrections,
disagreed with some of the department’s procurement
practices. She raised her concerns to her supervisors,
sought guidance from outside agencies, and even
reported what she thought was misconduct to the FBI.
But her disagreements with her supervisors proved
more enduring than her job—when her term of employ-
2 No. 06-2578
ment expired, the department declined to renew it. After
she was cut loose, Trigillo filed suit, claiming that she
was terminated in retaliation for her statements re-
garding the department’s purported misconduct. The
district court (Judge Jeanne E. Scott) granted summary
judgment to the various state defendants, and Trigillo
appeals that decision.
In 1999, the Department of Corrections created a new
“senior public service administrator” position dedicated
to procurement matters. To fill the position it brought
in Trigillo, who was working at the Illinois State Police.
At first, there was some disagreement over her exact title,
but the department eventually settled on calling her the
manager of procurement. According to her official job
description, Trigillo was to control the “purchasing,
contracts, real estate leasing, commodity and property
inventories” of the department. During her tenure, Trigillo
drafted a description of her responsibilities, which in-
cluded supervising the staff in the procurement section
an d o ve rseeing approxim ately 60,000 transac-
tions—everything from contracts securing health care
for inmates to purchase agreements for mailroom equip-
ment—that flowed through the department over the
course of a year. Trigillo’s job, which required a law
license, entailed ensuring that contracts were properly
bid and otherwise met the requirements of the then
newly enacted Illinois Procurement Code, 30 ILL. C OMP.
S TAT. 500/1-1 to /99-5, and other state and federal laws.
As part of her job, Trigillo advised department officials
about legal and regulatory issues and, for certain transac-
tions, she recommended which vendor should be
No. 06-2578 3
awarded a contract. She was also the department’s “pri-
mary liaison” with the Department of Central Manage-
ment Services (CMS), a separate state agency that
provides support to other entities regarding procure-
ment issues.
Trigillo felt early on that some of the Department of
Corrections’ practices were not compliant with the code
or the rules promulgated by CMS. She routinely com-
municated her concerns to her supervisors and to CMS
officials, but her efforts to change the department’s prac-
tices proved ineffective. Finally, in November 2000, she
drafted a report to CMS and the Illinois attorney
general, listing 13 concerns. According to its title, the
report was written in compliance with the procurement
code, which required state employees who suspect any
collusion (or other anticompetitive practices) to inform
the attorney general and (in most cases) the director of
CMS of their suspicions. See 30 ILL. C OMP. S TAT. 500/50-40.
In her report, Trigillo addressed many of the policy
disputes she had with her supervisors. She also reported
some potential misconduct within the department, in-
cluding the leaking of confidential information to
vendors during a bidding process. Trigillo, however,
explained that she was making no “criminal or other
accusations,” but rather she identified these potentially
“unfair or otherwise unwise” decisions so that CMS and
the attorney general could provide the department with
“guidance” going forward. A CMS official investigated
the report and testified in his deposition that most of the
issues raised by Trigillo did not merit intervention.
4 No. 06-2578
During her stint at the department, Trigillo also got
wind of what she considered even more nefarious miscon-
duct. In the spring of 2000, one of Trigillo’s staff members
told her that department officials rigged the bidding
process for a contract so a vendor connected to the gov-
ernor would come out on top. The evidence of the im-
proprieties was allegedly destroyed. This contract was
formed before Trigillo began working for the department,
but she did oversee its extension during her tenure. Trigillo
was alarmed by the allegation, and although she was not
convinced of its veracity, she reported the potential
misconduct to the FBI. Trigillo explained in her deposi-
tion that she made this report pursuant to her “duty as a
citizen,” as well as her “duty as chief of procurement.” An
FBI agent came to investigate the allegations the same
day that Trigillo made her report. Trigillo never told her
supervisors that she made the report to the FBI, and the
record does not reflect the result of this investigation.
Trigillo was a term employee, and her term was up for
renewal in November 2001. Although her supervisors
consistently evaluated her performance as acceptable,
the department chose not to renew her term. In reaching
this decision, Trigillo’s supervisor questioned her
loyalty to the department, claimed that her interpreta-
tion and application of the procurement code was “over
zealous,” and noted that she was not “a team player.”
Suspecting that she was fired in retaliation for her
reports of departmental misconduct to CMS and the FBI,
Trigillo filed suit under 42 U.S.C. § 1983. The district
court, in a decision that predates Garcetti v. Ceballos, 547
No. 06-2578 5
U.S. 410 (2006), granted summary judgment in the defen-
dants’ favor. The court divided Trigillo’s speech into
three categories: (1) her routine communications with
her supervisors and CMS officials; (2) her report to the
attorney general and CMS made pursuant to the pro-
curement code; and (3) her report to the FBI. The court
concluded that Trigillo’s routine communications with
department and CMS officials were made pursuant to
her regular job duties, and not as a citizen speaking on
matters of public concern. The court went on to conclude
that her report to the attorney general and CMS raised
some issues of public concern—like the leaking of confi-
dential information during the bidding process—but it
ultimately concluded that Trigillo’s interest as a citizen
revealing such misconduct was outweighed by the depart-
ment’s interest in operating efficiently. The court noted
that the report was dominated by policy disputes and
concluded that the department was entitled to require
Trigillo to loyally espouse its positions. Lastly, while
the court held that Trigillo’s report to the FBI was pro-
tected speech, it concluded that Trigillo failed to present
evidence that her supervisors knew she had made the
report.
Shortly after summary judgment was granted, the
Supreme Court decided Garcetti, which reaffirmed that
the First Amendment “limits the ability of a public em-
ployer to leverage the employment relationship to
restrict, incidentally or intentionally, the liberties em-
ployees enjoy in their capacities as private citizens.” 547
U.S. at 419. However, the court emphasized that “when
public employees make statements pursuant to their
6 No. 06-2578
official duties, the employees are not speaking as citizens
for First Amendment purposes, and the Constitution
does not insulate their communications from employer
discipline.” Id. at 421.
Our task, then, is to determine whether Trigillo spoke
as a citizen whistle-blower or a public employee just
doing her job. See Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir.
2007) (Spiegla II). Trigillo concedes that some of her
speech—the routine e-mails, memoranda, and conversa-
tions she had with her supervisors and CMS officials—fell
within the scope of her official duties. But she maintains
that she made two statements that merit constitutional
protection: (1) the report she wrote and submitted to
the attorney general and the director of CMS pursuant to
the procurement code; and (2) the report she made to
the FBI.
Trigillo argues that both reports went beyond her
normal day-to-day duties and, therefore, they were en-
titled to protection under the First Amendment. But this
argument has already been rejected. Before Garcetti, we
held 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). But Garcetti required us to
abandon this proposition, and we have acknowledged
that the focus on an employee’s core job functions is too
narrow. Spiegla II, 481 F.3d at 966. Instead, Garcetti
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
No. 06-2578 7
general responsibilities. Vose v. Kliment, 506 F.3d 565, 570-
71 (7th Cir. 2007) (concluding that a police officer’s
report about misconduct in a different unit, while “above
and beyond his routine duties,” was still within his
official duties); Green v. Bd. of County Comm’rs, 472 F.3d 794,
800-01 (10th Cir. 2007) (concluding that speech was pursu-
ant to employee’s official duties, “even if not explicitly
required as part of her day-to-day job[.]”); Battle v. Bd. of
Regents for Ga., 468 F.3d 755, 761 n.6 (11th Cir. 2006) (“The
issue in Garcetti was whether a public employee was
speaking pursuant to an official duty, not whether that
duty was part of the employee’s everyday job functions.”).
But just as an employee’s official duties should not be
defined too narrowly, they should not be defined too
broadly. Garcetti, 547 U.S. at 424-25. The defendants
contend that Trigillo’s report to the attorney general
and CMS was made pursuant to her official duties
because she wrote it to comply with her statutory duty
to report anticompetitive practices. A statute or regula-
tion can help determine the scope of an employee’s
duties to the extent that it creates responsibilities for
that employee’s specific job. See Wilburn v. Robinson, 480
F.3d 1140, 1150-51 (D.C. Cir. 2007) (looking to statutory
definition of employee’s authority to define scope of her
duties). But that is not the case here. The Illinois Procure-
ment Code is broad, requiring vendors, bidders, contrac-
tors, and all state employees—from the frontline correc-
tional officer to the director of the department—to report
their suspicions of anticompetitive practices. 30 ILL. C OMP.
S TAT. 500/50-40. The statute does identify certain em-
ployees—such as a “State purchasing officer,” or an
8 No. 06-2578
“elected official”—who must make such reports, but
Trigillo’s position is not included in the list.1 Id. Her
statutory obligation to report stems not from her job as
manager of procurement, but from the fact that she, like
thousands of others, received her paycheck from the
state of Illinois. Such a broadly applicable legal duty says
little about Trigillo’s duties as the manager of procure-
ment. To define Trigillo’s official duties, we must do more
than look to general statutes. Our task is a practical one
that requires a close look at the statements made by
Trigillo and the expectations and responsibilities that
came with her job.
To that end, we turn to Trigillo’s report to the Illinois
attorney general and the director of CMS. In that report,
while Trigillo did flag potential misconduct within the
Department of Corrections, she began by stating that
she was making no “criminal or other accusations.”
Instead, by contacting these outside agencies, she sought
1
There is some dispute regarding Trigillo’s title at the depart-
ment. Trigillo occasionally identified herself as the “State
Purchasing Officer Designee,” and the procurement code
specifically requires the designee to report her suspicions of
anticompetitive practices. 30 I LL . C OMP . S TAT . 500/50-40. But
according to Trigillo’s official job description, she was the
manager of procurement, and her supervisor, who was the
state purchasing officer, testified during his deposition that he
never authorized Trigillo to act generally as his designee. At
this stage, we construe the facts in the light most favorable
to Trigillo, see Healy v. City of Chicago, 450 F.3d 732, 738 (7th
Cir. 2006), and analyze her claim according to her official title
of manager of procurement.
No. 06-2578 9
“formal guidance” regarding certain procurement
matters, aiming to achieve, as she put it, a “better knowl-
edge and understanding of the Procurement processes.” As
the manager of procurement, it was Trigillo’s job to
ensure that the many transactions that went through the
department were properly bid and otherwise met the
requirements of the Illinois Procurement Code and other
applicable laws. Trigillo’s report—written on department
letterhead and signed by her as “Chief of Procure-
ment”—sought assurance that the Department of Cor-
rections was proceeding appropriately, and thus falls
squarely within her official job responsibilities. At the
end of the report she even offered her resources as the
manager of procurement, including access to the depart-
ment’s records and the assistance of her staff in any
investigation. Because the report was a means to fulfill
Trigillo’s obligation to oversee the department’s procure-
ment transactions, it is not protected by the First Amend-
ment.
Finally, we consider Trigillo’s claim that her term of
employment was not renewed in retaliation for her re-
porting to the FBI that a contract (the “Comguard Con-
tract”), approved before she joined the department, may
have been issued because someone rigged the bidding
process. Trigillo (and several others) heard about the
alleged improprieties in the Comguard Contract from a
staffer named Dave Dankoski. At her deposition, Trigillo
explained why she reported the matter to the FBI:
Well, a duty as a citizen, a duty as chief of procure-
ment, you know, as lawyers we’re supposed to be
keepers of the state’s coffers. So I felt I had several
10 No. 06-2578
duties. But I also didn’t want to lose my law license
over continuing a contract that maybe should or
shouldn’t have been done. And I had no way of know-
ing whether it should or not. I wasn’t there originally.
I don’t know if anything Dave Dankoski said was
true or false. Better to put it into proper hands and
let them look at it and see.
It may well be that reporting Dankoski’s “tip” to the FBI
without investigation on Trigillo’s part to see if there
was any truth to it was an act of questionable judg-
ment.2 But we need not get into that because her retalia-
tion claim based on the report to the FBI fails for a more
basic reason: Trigillo presented no competent evidence
that the decisionmaker (the department’s director) who
elected not to renew her for another term knew (or even
thought) that she was the person who called in the FBI. In
fact, Trigillo admitted that she never acknowledged
that she made the report. With this indispensable link
clearly missing, the district court was correct when it
entered summary judgment for the defendants on this
claim.
For these reasons, the judgment of the district court
is A FFIRMED.
2
Interestingly, the FBI agent who quickly responded and
turned the office upside down by removing boxes from
Dankoski’s office was someone Trigillo had known “since they
were kids.”
10-31-08