Jimmy Bivens v. Larry Trent ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2256
JIMMY W. B IVENS,
Plaintiff-Appellant,
v.
L ARRY T RENT, JAY K EEVEN,
D IANE R OTTER, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 06 CV 00263—William Stiehl, Judge.
A RGUED S EPTEMBER 17, 2009—D ECIDED JANUARY 6, 2010
Before P OSNER, M ANION, and E VANS, Circuit Judges.
M ANION, Circuit Judge. Jimmy Bivens, an officer in the
Illinois State Police (“ISP”), discovered that he had
elevated levels of lead in his blood due to lead contamina-
tion at the indoor firing range where he was stationed.
He complained to his superiors, both directly and
through a union grievance, about the safety of the
working conditions. The firing range was immediately
2 No. 08-2256
analyzed and closed for environmental remediation.
After he was denied workers’ compensation benefits,
Bivens sued his supervisors in the ISP, Larry Trent,
Jay Keevan, Diane Rotter, Mark Beagles, and Roger
Hayes, under 42 U.S.C. § 1983, claiming that they
retaliated against him in violation of the First Amend-
ment because he complained about the conditions at the
firing range. The district court granted summary judg-
ment in favor of all of the defendants. Bivens appeals.
We affirm.
I.
In October 2003, Bivens was assigned to the position of
range officer for District 11 of the ISP. As range officer, he
oversaw all aspects of the range’s operation, including
qualifying individuals on firearms and keeping the
range clean and in good working order. The main
purpose of the range was to provide firearm training
and qualification testing to state police officers, but it
also served as a facility for other state police training
exercises and as a firing range for other police depart-
ments. Members of the general public also occasionally
used the range, including hunters to set their shotgun
sights and occasionally school children touring the facility.
By all accounts, Bivens did a great job of bringing order
and cleanliness to the range, which resembled a “train
derailment” when he arrived, and he received a
written commendation just a month after he started.
Within a few months, however, Bivens began to feel ill,
with severe headaches, aching hips, and numbness and
No. 08-2256 3
tingling in his extremities. By February 2004, Bivens was
concerned that his symptoms were caused by exposure
to lead at the firing range. He first asked for a blood test
through the firing range chain of command. When he did
not receive a response within a couple of weeks, Bivens
asked Master Sergeant Roger Hayes, his supervisor in
District 11, to arrange a blood test. During that conversa-
tion, Bivens expressed concern about the safety of the
facility. As a result of that conversation, and at Bivens’s
urging, Hayes sent a memorandum to Captain Jay
Keevan, the District Commander for District 11, recom-
mending that a lead test be arranged for Bivens. Keevan
suggested that Bivens be tested for lead exposure at the
county health department. After the health department
would not perform the test, Keevan authorized Bivens
to make his own arrangements, for which the ISP
would reimburse him.
Bivens had his blood tested and on March 15 learned
that his lead levels were “highly elevated.” He informed
Hayes of this that same day. On March 18, Bivens filed
a grievance with the state police union for a violation of
the safe working conditions provision of the collective
bargaining agreement. He detailed his symptoms, tests,
and previous complaints, and requested that the “range
be professionally analyzed, cleaned, and repaired in
such a manner as to render the facility safe of any health
hazard with the prospect of a re-occurrance [sic] minimal.”
On March 19, the lead levels at the range were evaluated
and found to be elevated. On March 23, the range was
closed for professional clean-up. The closure of the
4 No. 08-2256
range received local media attention. It did not open
again until November 2004.
In the meantime, Bivens’s medical concerns continued.
On March 23, he consulted Dr. Hogan, who performed a
neurological exam and re-tested the lead levels in his
blood. Dr. Hogan found no evidence of lead poisoning
but ordered that Bivens be limited to desk work until
the results of the lead test were received. After speaking
with one of Bivens’s supervisors, Dr. Hogan agreed that
Bivens could return to light-duty work and amended
his order accordingly. When the new lead test later
showed normal lead levels, Dr. Hogan released Bivens to
return to full work with the only restriction that he not
be exposed to lead. Bivens sought a second opinion
from Dr. Schrieber, a physician who had been recom-
mended by Bivens’s workers’ compensation attorney.
Dr. Schrieber recommended that Bivens not return to
work until April 19. Bivens returned on that day and
worked for one week, but continued to experience his
neurological symptoms and stopped working again a
week later. Because Bivens was absent from work due to
a medical condition and receiving disability benefits, the
ISP arranged for an independent examination of Bivens.
Dr. David Peeples examined Bivens on May 10, and
concluded that the neurological examination was normal
and opined that Bivens could carry out any work so long
as it did not involve lead exposure. Bivens still did not
feel well, however, and Dr. Schrieber continued to opine
that Bivens was suffering from cerebral deficits. In re-
sponse, the ISP asked Bivens to visit a psychiatrist for
an independent evaluation of his cerebral deficits.
No. 08-2256 5
Bivens was initially reluctant, but in late December 2004
he was examined by psychiatrist Dr. William Stillings.
Dr. Stillings found no evidence of the disorders described
by Dr. Schrieber and opined that Bivens was “simulating
short-term memory deficits.” Just as Dr. Peeples had
found eight months earlier, Dr. Stillings concluded that
Bivens was able to work without restrictions, as long as
he was not exposed to excessive levels of lead. After
Dr. Stillings’s diagnosis, the ISP terminated Bivens’s
disability benefits and ordered him to return to work on
January 21, 2005. Further, based on Dr. Peeples’s and
Dr. Stillings’s medical findings and because the
defendants were concerned that Bivens was faking his
illness, the ISP did not allow Bivens to use his earned sick
time to reduce his hours to cope with his illness and
instead required him to use his personal time. After his
personal time ran out, he only was paid for the hours
he actually worked.
Bivens then filed a workers’ compensation claim. He
claimed that his illness was causally related to the lead
exposure and that the medical services he received were
reasonable and necessary, and challenged the amount
of compensation he received for temporary total dis-
ability. On July 28, an arbitrator from the Illinois Workers’
Compensation Commission held a hearing regarding
Bivens’s workers’ compensation claims. On August 25, the
arbitrator filed his decision with the Commission. The
arbitrator was not persuaded by the opinions of
Dr. Schreiber regarding Bivens’s neurological damage
and instead credited the lack of findings in the exams of
Drs. Hogan, Peeples, and Stillings. The arbitrator did,
6 No. 08-2256
however, find that Bivens was injured by exposure to
high lead levels and that he was totally disabled from
March 15, 2004 until May 28, 2004. He also found that
Bivens’s medical expenses were reasonable, necessary,
and related. Bivens filed a timely petition for review
with the Commission, but the Commission affirmed the
arbitrator’s decision with only minor modifications.
Bivens next filed this action under 42 U.S.C. § 1983against Larry Trent, Jay Keevan, Diane Rotter, Mark
Beagles, and Roger Hayes, his supervisors at the ISP.
He alleged that the defendants, while acting pursuant to
their duties with the ISP, violated his First Amendment
rights by retaliating against him because his grievance
about lead levels at the range forced them to close the
range for nearly nine months and caused the ISP public
embarrassment. The alleged retaliation against Bivens
included subjecting him to different workplace rules
than his co-workers, disciplining him without justifica-
tion by “docking his pay” (i.e., paying him only for
hours worked when his personal leave ran out), refusing
to allow him to use his earned benefit time by
forcing him to use personal rather than earned sick leave,
reassigning him to a different position, harassment,
disclosure of confidential information, and dissemination
of false information (that he was faking his illness) to co-
workers.
The defendants moved for summary judgment on
several grounds. First, they argued that the Supreme
Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006),
foreclosed First Amendment protection for Bivens’s
No. 08-2256 7
grievance about lead levels because the cleanliness and
safety of the range were part of his official job duties.
Second, they argued that if, and to the extent that, Garcetti
did not foreclose Bivens’s grievance, his speech would
still not be protected because it was an entirely private
grievance, unconcerned with any possible public
concern that might attach to the same situation. Third,
they argued that Bivens presented no evidence of a
nexus between the allegedly protected speech and the
alleged retaliation.1 The district court granted the
motion for summary judgment, holding that Bivens’s
speech was not protected by the First Amendment
because it “was clearly related to and part of his official
duties, and that he was not speaking as a private citizen.”
The court did not reach the other arguments raised by
the defendants. Bivens appeals.
II.
On appeal, Bivens argues that the district court erred in
granting summary judgment to the defendants because
it committed legal error in determining that his speech
was not protected by the First Amendment. We review
the district court’s grant of summary judgment de novo.
Samuelson v. LaPorte Cmty. Sch. Corp., 526 F.3d 1046,
1051 (7th Cir. 2008). The district court granted summary
1
The defendants also argued that even if Bivens’s speech was
protected and even if he had shown enough evidence to save
his retaliation claim, they were entitled to summary judgment
under the doctrine of qualified immunity.
8 No. 08-2256
judgment based solely on its conclusion that Garcetti
precluded First Amendment protection because Bivens
spoke pursuant to his job responsibilities. However, we
may affirm the judgment on any basis that appears in
the record. Id.To prevail on his § 1983 claim, Bivens must prove that
(1) he engaged in constitutionally protected speech; (2) the
defendants, as public officials, engaged in adverse
conduct against him; and (3) the defendants were moti-
vated, at least in part, by his protected speech. Springer v.
Durflinger, 518 F.3d 479, 483 (7th Cir. 2008). Like the
district court—albeit for different reasons—we conclude
that Bivens did not engage in constitutionally protected
speech. Therefore, we need not consider whether
Bivens can establish the other necessary elements,2
2
We bypass the other elements in part because they were not
addressed by the district court and were only superficially
briefed by the parties. But based on our review of the record and
the arguments that Bivens presented here and at the district
court, we think it very unlikely that Bivens could prove that
his union grievance motivated the allegedly retaliatory
conduct in this case. All of the defendants’ conduct, beginning
with the termination of workers’ compensation benefits three-
and-a-half months after the union grievance, was ostensibly
part of an ongoing dispute over the existence and severity of
Bivens’s illness. The only evidence that Bivens offers that his
union grievance was a motivating factor for defendants’
conduct—other than the unsupported assertion that the defen-
dants were “undoubtedly embarrassed” by the media attention
to the lead contamination at the range—is the fact that the
(continued...)
No. 08-2256 9
or whether the defendants are entitled to qualified im-
munity.
Although Bivens’s employment with the ISP places
certain limits on his freedom of speech, he does not lose
all his First Amendment rights because of his public
employment. Rather, his speech may, in some instances,
be protected when he speaks “as a citizen addressing
matters of public concern.” Garcetti, 547 U.S. at 417. In
Garcetti, the Supreme Court held that the First Amend-
ment does not protect speech made by public employees
when the speech is “pursuant to their official duties.” 547
U.S. at 421. This is because when employees speak pursu-
ant to their official duties they are not speaking as
citizens, regardless of whether the speech is about a
matter of public concern. Id.; see also Spiegla v. Hull, 481
F.3d 961, 965 (7th Cir. 2007) (“After Garcetti . . . public
employees speaking ‘pursuant to their official duties’ are
speaking as employees, not citizens, and thus are not
protected by the First Amendment regardless of the
content of their speech.”). It is undisputed that Bivens
was responsible for the safe operation of the firing
range and consequently that he had a responsibility,
as part of his job duties, to report his concerns about
environmental lead contamination. Thus, under Garcetti,
2
(...continued)
conduct occurred after his grievance. But “suspicious timing
alone rarely is sufficient to create a triable issue,” Tomanovich
v. City of Indianapolis, 457 F.3d 656, 665 (7th Cir. 2006), and we
see no evidence to suggest that the timing here was even
suspicious, much less sufficient to create a triable issue.
10 No. 08-2256
it is clear that the complaints about lead contamination
that Bivens made directly up the chain of command to
his supervisors are not protected by the First Amend-
ment. Whether the same exact speech may be protected
when made through a different, yet still entirely internal,
channel is less clear. But because we conclude that
the union grievance—the only speech even arguably
protected here—did not raise a matter of public
concern, we need not reach that issue here.
Even assuming that he was speaking through his griev-
ance as a citizen, rather than a public employee, Bivens
must still establish that his speech addressed a matter
of public concern to prevail on his First Amendment
retaliation claim. Connick v. Myers, 461 U.S. 138, 147 (1983);
Pickering v. Bd. of Ed. Of Twp. High Sch. Dist. 205, Will
County, 391 U.S. 563, 568 (1968); Chaklos v. Stevens, 560
F.3d 705, 712 (7th Cir. 2009). Whether a statement is a
matter of public concern is a question of law for the
court, and we answer this question by examining the
“content, form, and context” of the statement. Connick, 461
U.S. at 147-48 & n.10; Chaklos, 560 F.3d at 712.
Here, the subject matter of Bivens’s grievance was
potentially of interest to the public, especially those
members of the public who used the firing range. But
this does not end the inquiry. While the content of the
speech is the most important factor, Gustafson v. Jones, 290
F.3d 895, 907 (7th Cir. 2002), “the fact that an employee
speaks up on a topic that may be deemed one of public
import does not automatically render [his] remarks on
that subject protected,” Cliff v. Bd. of Sch. Comm’rs of City
No. 08-2256 11
of Indianapolis, 42 F.3d 403, 410 (7th Cir. 1994). Rather,
the motive of the speaker is a relevant, though not
dispositive, factor because speech will not be protected if
the only point of the speech was “to further some
purely private interest.” Kokkinis v. Ivkovich, 185 F.3d 840,
844 (7th Cir. 1999). Thus, although the fact that the
speaker was partly motivated by personal concerns
does not necessarily mean the speech cannot also be a
matter of public concern, Greer v. Amesqua, 212 F.3d 358,
371 (7th Cir. 2000), “if the speech concerns a subject of
public interest, but the expression addresses only the
personal effect upon the employee, then as a matter of law
the speech is not of public concern.” Marshall v. Porter
County Plan Comm’n, 32 F.3d 1215, 1219 (7th Cir. 1994)
(citing Smith v. Fruin, 28 F.3d 646 (7th Cir. 1994)).
To resolve whether a personal grievance nonetheless
raises to the level of public concern, “it is necessary to
‘look at the point of the speech in question: was it the
employee’s point to bring wrongdoing to light? Or to
raise other issues of public concern, because they are of
public concern? Or was the point to further some purely
private interest?’ ” Kokkinis, 185 F.3d at 844 (quoting
Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir. 1987)). We
have held, for example, that a teacher’s complaint about
class size and discipline did not raise a matter of public
concern when her complaint was in response to criticism
of her performance, the complaint addressed only
issues in her own classroom, and she only requested a
reduction in her own class sizes. Cliff, 42 F.3d at 411. And
we have held that a police detective’s complaints
about pervasive violations of an anti-smoking ordinance
12 No. 08-2256
did not rise to the level of a public concern where it was
“focused . . . on the difficulties the speaker himself
had experienced” and “made for purely personal reasons
rather than a desire to air the merits of the issue.” Smith,
28 F.3d at 652.
The question, then, is whether the context, form, and
particular content (as opposed to the subject matter) of the
speech indicate that Bivens complained for the purely
private purpose of resolving a workplace issue. The
context and the form of Bivens’s grievance are consistent
with the vindication of a personal interest, rather than
a public concern, and the content of the griev-
ance—while touching a subject of potential interest to the
public—does not convince us that his purpose was any-
thing other than personal. First, regarding form, Bivens
spoke in the form of a union grievance that was entirely
internal to the ISP. Although the fact that the speech
was entirely internal does not itself render the speech
unprotected, see Givhan v. Western Line Consolidated
School District, 439 U.S. 410, 415-16 (1979), this fact does
suggest that the grievance was personal in nature. See
Cliff, 42 F.3d at 411; Smith, 28 F.3d at 652. Second,
regarding context, the grievance arose as a result of
Bivens’s own illness and detailed his own exposure to
environmental lead at the firing range. Finally, regarding
content, the grievance made no reference to potential
safety issues for the public and did not even suggest
that the lead levels were high enough to endanger
the public during occasional use. Moreover, the only
justification cited in the grievance was a provision of the
collective bargaining agreement guaranteeing a safe
working environment. Thus, even if the public would
No. 08-2256 13
have been interested in lead contamination at the range,
or would have benefitted from the remediation that
Bivens requested, there is no indication that Bivens was
attempting to bring an issue of wrongdoing or environ-
mental safety to public light. Rather, the content, form,
and context of the grievance demonstrate that it was
filed for the sole purposes of securing his own medical
treatment and ensuring he had a safe working environ-
ment.
That the public may have been interested in Bivens’s
grievance and may have benefitted from the resolution he
requested does not raise the speech here to the level of
public concern. Because Bivens’s internal grievance was
on a matter of purely private interest, addressing only
the effect of lead contamination on himself and his
work environment, it did not raise a matter of public
concern and is not protected by the First Amendment.
III.
For the foregoing reasons, we A FFIRM the district court’s
grant of summary judgment.
1-6-10