Spiegla, Nancy v. Hull, Eddie ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2480
NANCY SPIEGLA,
Plaintiff-Appellant,
v.
MAJOR EDDIE HULL, Individually as an Employee
of Westville Correctional Facility; HERB NEWKIRK,
Individually as Superintendent of Westville
Correctional Facility; and BERNARD JOHNSON,
Individually as an Employee of Westville
Correctional Facility,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Indiana, Hammond Division.
No. 01 CV 0075—Allen Sharp, Judge.
____________
ARGUED JANUARY 14, 2004—DECIDED JUNE 14, 2004
____________
Before FLAUM, Chief Judge, and POSNER and DIANE P.
WOOD, Circuit Judges.
FLAUM, Chief Judge. Correctional officer Nancy Spiegla’s
shift schedule and post assignment were changed four days
after she had a conversation with the Assistant Superinten-
dent of Westville Correctional Facility (“Westville” or “the
facility”) in which she questioned a new vehicle search
2 No. 03-2480
policy and reported the suspicious behavior of two Westville
employees. In response to her schedule change and transfer,
Spiegla filed a 42 U.S.C. § 1983 suit against Major Eddie
Hull, Herb Newkirk, and Bernard Johnson (“the Defen-
dants”), officials and employees of Westville, alleging that
they unlawfully retaliated against her for exercising her
First Amendment rights. At the time relevant to the
complaint, Newkirk was the Superintendent, Johnson was
the Assistant Superintendent of Operations, and Hull was
Major of Westville. The district court granted the Defen-
dants’ motion for summary judgment on the bases that
Spiegla’s speech was not constitutionally protected and that
she was not reassigned because of her speech. Spiegla now
appeals the district court’s ruling. For the reasons stated
herein, we reverse the judgment of the district court and
remand the case for proceedings consistent with this
opinion.
I. Background
In 1985, Spiegla began her employment as a correctional
officer at Westville, a state prison in Westville, Indiana.
Between 1993 and 1999, Spiegla was transferred back and
forth between posts on the front and back gates of the fa-
cility and was responsible for searching persons and ve-
hicles entering the prison. During her years on gate duty,
Spiegla developed expertise in conducting vehicle searches,
particularly ones of large trucks. Spiegla’s competency
as a gate officer is undisputed. Defendant Newkirk even
presented her with Westville’s “Correctional Officer of the
Year” award just a few months before the transfer at issue
in this case occurred.
On Thursday, January 13, 2000, Spiegla was working on
the front gate under the direction of Sergeant Brian Moody.
While on duty, Spiegla observed Defendant Hull and
Captain Ernest Huff, while in a state-owned vehicle, enter
No. 03-2480 3
the staff and visitors’ parking lot located on the outside of
the facility and near the front gate. According to Spiegla,
the two men removed bags from their private vehicles,
placed the bags into the state-owned vehicle, and then
drove towards the front gate. Based on these observations,
Spiegla told Moody that she intended to search the state-
owned vehicle. Moody instructed Spiegla not to conduct the
search and informed her of a new exemption policy for
searches of state-owned vehicles. Whereas under the
previous policy all incoming vehicles were searched for
contraband, the new policy exempted state-owned vehicles
from being searched.
Apparently, this was not the first time that Hull and Huff
attracted the attention of gate security. Moody had previ-
ously witnessed the two men drive their vehicle into the
staff and visitors’ parking lot while they were conducting
“perimeter checks” (a security check that entails driving
around the facility to inspect the fence). Moreover, on
several recent occasions, Moody had attempted to search
vehicles occupied by Hull and Huff and on each occasion
they refused to consent to search before entering the
facility.1
Spielga explained in her deposition that after Moody told
her about the new policy, “I duly noted it in my log because
I was very upset over it because everybody has to go
through the shakedown procedure . . . .” When asked to
clarify her feelings, she responded, “I was just upset be-
cause I could not go out there and do my job.” Spiegla said
1
We accept the position throughout this opinion that Hull and
Huff ’s behavior was highly suspicious and consistent with con-
traband trafficking. For the purposes of this case, we are only
concerned with the suspicious appearance of their conduct. We
readily acknowledge that there is no indication that these two
individuals actually were engaged in smuggling contraband and
no charges were ever brought against them.
4 No. 03-2480
that she was not angry, but “[j]ust, you know, frustrated
type of thing. You know, just like, You got to be kidding?
That type of attitude.”
Later that day, Spiegla discussed Hull and Huff’s conduct
and the new search policy with the Assistant
Superintendent of Westville, John Schrader. Specifically,
Spielga asked him when the search orders changed and
whether he was aware that state vehicles were not to be
searched. Schrader responded that all vehicles were to be
“shaken down” and then he asked her why she asked.
Spiegla then told Schrader about her observations of Hull
and Huff and Moody’s instruction not to “shake them
down.” Schrader agreed that the two men should have been
“shook down” and assured Spiegla that he would bring the
matter to the attention of Superintendent Newkirk.
Either later that day or the following day, Schrader re-
counted his conversation with Spiegla at an executive staff
meeting attended by Schrader, Johnson, Hull, and Newkirk.
Johnson acknowledges that he was “pretty pissed” that
Spiegla’s concerns were raised at the meeting. Though
Johnson did not express his feelings at the meeting, he was
“mad at Spielga” because she did not follow her chain of
command.
The following Monday, January 17, 2000, four days after
her conversation with Schrader, Spiegla learned that she
was being transferred2 from the front gate. That morning,
Captain Hugh Vales called Spiegla at the front gate and
asked her what she had done wrong. When she responded
that she did not know what he was talking about, Captain
Vales informed her that she had been transferred and that
2
The Defendants contend that Spiegla was not transferred, but
rather reassigned, as she continued to remain a correctional offi-
cer. We recognize that Westville may make a technical distinction
between the two terms, but we will use “transfer” for simplicity’s
sake.
No. 03-2480 5
her shift schedule had been changed from five days on and
two days off (“5-2”) to the less desirable six days on and two
days off (“6-2”). Thereafter, Spiegla was assigned to various
non-gate perimeter postings that differed on a day-to-day
basis. At these postings, Spiegla had no opportunity to use
her vehicle searching expertise. Moreover, these were
mobility-intensive postings that were painful for Spiegla to
perform because of an osteoarthritic condition. As a result
of the physical hardships she faced at the perimeter posts,
Spiegla applied for the position of Teacher’s Assistant IV in
April 2000. In accepting this position, Spiegla suffered a
4½% reduction in pay. The following month, Spiegla’s pay
was further reduced.
The record does not reveal who precisely effectuated
Spiegla’s January 2000 transfer to a non-gate post. Though
none of the Defendants have admitted to effectuating the
transfer, all of them possessed authority to do so. However,
all the Defendants acknowledge involvement in the decision
effectuating Speigla’s change in shift.
In December 2001, Spiegla filed suit against the
Defendants under § 1983, alleging a deprivation of her
rights secured by the First and Fourteenth Amendments to
the United States Constitution. After the close of discovery,
the Defendants filed a motion for summary judgment. The
district court granted the Defendants’ motion determining
that the speech at issue was not addressed to a matter of
public concern and that Spiegla did not suffer an adverse
action as a result of her speech. Spiegla appeals that
decision, as well as the district court’s denial of her motion
to compel the production of documents.
II. Discussion
A. First Amendment Claim
We review de novo the district court’s grant of sum-
mary judgment. See Dunn v. City of Elgin, 347 F.3d
6 No. 03-2480
641, 645 (7th Cir. 2003). A grant of summary judgment is
appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). A gen-
uine issue of material fact “exists when ‘there is sufficient
evidence favoring the nonmoving party for a jury to return
a verdict for that party.’ ” Puckett v. Soo Line Ry. Co., 897
F.2d 1423, 1425 (7th Cir. 1990) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986)). On appellate review,
we review the facts and inferences in the light most favor-
able to the nonmoving party. See Haefling v. UPS, 169 F.3d
494, 497 (7th Cir. 1999). Summary judgment is inappropri-
ate when alternate inferences can be drawn from the
available evidence. See Hines v. British Steel Corp., 907
F.2d 726, 728 (7th Cir. 1990).
In evaluating a § 1983 claim for retaliation in violation of
First Amendment rights in the public employment context,
we apply a three-step analysis premised on the Supreme
Court’s decision in Mt. Healthy City School District Board
of Education v. Doyle, 429 U.S. 274 (1977). First, we must
determine whether the employee’s speech was constitution-
ally protected. 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. See
Sullivan v. Ramirez, 360 F.3d 692, 697 (7th Cir. 2004);
Vukadinovich v. Bd. of Sch. Trs., 278 F.3d 693, 699 (7th Cir.
2002); Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir.
1999).
1. Protected Speech
Public employees are entitled to free speech rights under
the First Amendment. See Pickering v. Bd. of Educ., 391
No. 03-2480 7
U.S. 563, 568 (1968). At the same time, the government
must have the ability to run efficiently as an employer. See
Sullivan, 360 F.3d at 697. To balance these interests, the
Supreme Court has held that the government may not
punish the speech of a public employee if it involves matters
of public concern unless the state can prove that the needs
of the government outweigh the speech rights of the
employee. This principle forms the basis of the two-part
inquiry known as the Connick-Pickering test that courts use
to determine whether speech is constitutionally protected.
Id.
a. Matter of Public Concern
First, under the Connick prong, we must decide whether
Spiegla spoke as a citizen on a matter of public concern
by considering the “content, form, and context of [the
contested] statement, as revealed by the whole record.”
Connick v. Myers, 461 U.S. 138, 147-48 (1983). Of these
three factors, the content of the speech is considered to be
the most important. See Gustafson v. Jones, 290 F.3d 895,
907 (7th Cir. 2002). Speech that serves a private or personal
interest, as opposed to a community one, does not satisfy
the standards for First Amendment protection.
Id. Therefore, to determine whether Spiegla’s speech ad-
dressed a matter of public concern, “we must apply the
content, form, and context criteria, as set forth in Connick,
mindful that a personal grievance of interest only to the
employee does not qualify as a matter of public concern.”
Sullivan, 360 F.3d at 699.
The speech at issue in this case consists of Spiegla’s
statements to Assistant Superintendent Schrader regarding
(1) the state-owned vehicle search exemption policy and (2)
8 No. 03-2480
the behavior of Hull and Huff.3 Without doubt, issues of
prison security, public safety, and official corruption are
matters of concern to the community, particularly to one
hosting a correctional facility. An inmate in possession of a
weapon can pose a threat to prison employees, other
inmates, and the surrounding community itself. Here, the
concern is not merely hypothetical, as numerous articles
were featured in the South Bend Tribune and Indianapolis
Star detailing the serious problems at Westville concerning
contraband trafficking and official corruption. See, e.g.,
Editorial, Prison extortion claim demands close examina-
tion, South Bend Tribune, August 14, 2000, at A7; Matthew
S. Galbraith, Three investigators suspended at Westville,
South Bend Tribune, May 27, 1998, at B1; James A.
Gillaspy, Drug probe in prisons now focus on employees,
Indianapolis Star, July 11, 1993, at 1; Matthew S.
Galbraith, The Living Hell of Westville, South Bend Tri-
bune, October 31, 1993, at A5. While not dispositive of
whether speech relates to a matter of public concern, the
fact that the press takes interest in the matter is relevant
to the determination. See Gustafson, 290 F.3d at 907.
On the other hand, simply because speech relates to
prisons does not automatically render it a matter of public
concern. See, e.g., Button v. Kibby-Brown, 146 F.3d 526
(1998) (prison employee’s complaints regarding his super-
visor’s refusal to return donated educational materials not
a matter of public concern). Speech by a government em-
ployee relating to ordinary matters of internal operation
and lacking connection to “any matter of political, social, or
other concern to the community” is not entitled to First
3
Spiegla contends that she was also retaliated against for the
statements she made to Sergeant Moody. However, there is no
evidence in the record to suggest that any of the Defendants ac-
tually knew of her conversation with Moody. Accordingly, we will
focus our analysis on Spiegla’s conversation with Schrader.
No. 03-2480 9
Amendment protection. Connick, 461 U.S. 146. Connick
itself involved an assistant district attorney’s objections
to various policies and conditions in her office. The Supreme
Court determined that her complaints relating to intra-
office transfer policies, office morale, and grievance proce-
dures were “internal office affairs” and thereby not
entitled to First Amendment protection. Id. at 149. Clearly,
complaints of this sort relating to prison operations would
receive similar treatment. As we observed in Kuchenreuther
v. City of Milwaukee:
While speech addressing matters of police protec-
tion and public safety are matters of public concern, we
have cautioned that if every facet of internal operations
within a governmental agency were of public concern,
and therefore any employee complaint or comment upon
such matters constitutionally protected, no escape from
judicial oversight of every governmental activity down
to the smallest minutia would be possible.
221 F.3d 967, 974-975 (7th Cir. 2000) (internal quotations
and citations omitted).
However, the speech in this case is readily distinguish-
able from complaints concerning ordinary office policy and
can even be separated out from comments addressing prison
security and public safety matters in general. Not only did
Spiegla bring critical attention to a policy that had the
potential to compromise prison security, she reported the
suspicious conduct of two of her superiors who appeared to
be using that very policy to facilitate unlawful behavior.
Indiana considers the trafficking of contraband with a
prison inmate to be a Class A misdemeanor; and a felony if
a controlled substance or deadly weapon is involved. IND.
CODE ANN. § 35-44-3-9 (West 2004). Clearly, the smuggling
of contraband, if proven, would constitute “wrongdoing or
breach of public trust,” which the Court in Connick sug-
gested might qualify speech for protection. 461 U.S. at 148.
10 No. 03-2480
Unscrupulous public employees may find ways to exploit
the resources and opportunities available to them through
their offices. Perhaps the public’s best protection against
these few wayward individuals is the insider who is willing
to speak up and shed light on her colleagues’ improprieties.
Recognizing the “whistleblower’s” important role, our cases
have consistently held that speech alleging government
corruption and malfeasance is of public concern in
its substance. See Sullivan, 360 F.3d at 699 (notations of
chronic time abuse by co-workers matters of public con-
cern); Marshall v. Porter County Plan Comm’n, 32 F.3d
1215, 1219-20 (7th Cir. 1994) (allegations that co-worker
abused county time and funds and violated the state law
matters of public concern); Breuer v. Hart, 909 F.2d 1035,
1038 (7th Cir. 1990) (complaints that defendant stole
county property of public concern in their content); Ohse
v. Hughes, 816 F.2d 1144, 1151 (7th Cir. 1987) (allegations
of inappropriate taking of sick and vacation days and
misappropriation of public funds matters of public concern);
see also Eberhardt v. O’Malley, 17 F.3d 1023, 1027 (7th Cir.
1994) (remarking that “[t]he courts have had to separate
the not very socially valuable forms of speech from whistle-
blowing and other socially valuable expressive activities of
public employees,” in determining whether contested speech
addresses a matter of public concern).
Thus, Spiegla’s disclosure of potential malfeasance on the
part of Hull and Huff positions her speech, with respect to
its content, comfortably on the socially valuable side of the
constitutional line. We emphasize that Spiegla’s report was
not based on rumor or mere hunch. Nor was she tattling on
trivial office indiscretions. Rather, Spiegla’s speech ad-
dressed her direct observations of prison officials engaged
in activity consistent with contraband trafficking, a serious
violation of state law, at a facility with a history of prob-
lems with contraband.
No. 03-2480 11
A different case would be presented if Spiegla’s questions
about the search policy had not been followed by her dis-
closure of Hull and Huff’s suspicious conduct. There must
be a communicative element to speech that puts the listener
on alert that a matter of public concern is being raised.
Simply seeking clarification on the state of the search policy
would likely have been too disconnected from the contra-
band problem to have raised a matter of public concern.
However, when Spiegla’s questions about the policy are
considered in conjunction with her allegations of malfea-
sance, it becomes apparent that, in substance, she spoke on
a matter of public concern.
The form of Spiegla’s speech similarly supports a con-
clusion that she spoke on a matter of public concern.
Spiegla spoke voluntarily with Schrader and initiated the
conversation herself. Although it occurred in private, she
did not intend that the conversation would be kept confi-
dential. The fact that Spielga “communicated privately with
[her] superior[ ] does not make [her] speech less a matter of
public concern.” Delgado v. Jones, 282 F.3d 511, 518 (7th
Cir. 2002) (citing Givhan v. W. Line Consol. Sch. Dist., 439
U.S. 410 (1979) (extending First Amendment protection to
private as well as public expression)). Indeed, an employee
who attempts to follow internal mechanisms to resolve
important issues should not automatically be treated less
favorably than the individual who immediately turns to the
press or public forum. In this case, Schrader assured
Spielga that he would convey her concerns to Newkirk,
thereby serving as the conduit through which Spiegla
publicized her concerns to the individual with the power to
rectify the problems that she perceived.4
4
Spiegla eventually took her concerns public. See Corrections
officer blames prison staff for contraband, South Bend Tribune,
November 26, 2000, at D2.
12 No. 03-2480
Next we consider the context in which the speech arose.
At this stage we will consider Spiegla’s motive for speaking
as a relevant, though not dispositive, factor in determining
whether her speech addressed a matter of public concern.
Sullivan, 360 F.3d at 700. “Motive matters to the extent
that even speech on a subject that would otherwise be of
interest to the public will not be protected if the expression
addresses only the personal effect upon the employee.”
Gustafson, 290 F.3d at 908 (internal quotations and
citations omitted). But see Breuer, 909 F.2d at 1038-39 (ex-
plaining that a “finding that a speaker was motivated by
narrow self-interest . . . alone cannot disqualify a speaker
from protection. Wrongdoing may often be revealed to the
proper authorities only by those who have some personal
stake in exposing wrongdoing.”). In considering the context
of speech, “it is necessary to look at the point of the speech
in question: was it the employee’s point to bring wrongdoing
to light?” Kokkinis, 185 F.3d at 844 (internal quotations
omitted). The fact that an employee has a personal stake in
the subject matter of the speech does not necessarily
remove it from the scope of public concern. Cliff v. Bd. of
Sch. Comm’rs, 42 F.3d 403, 410 (7th Cir. 1994). The critical
determination is whether the individual was speaking
“more like a citizen or a disgruntled employee whose
statements are primarily of personal interest.” Colburn v.
Trustees of Ind. Univ., 973 F.2d 581, 585 (7th Cir. 1992).
The Defendants contend that Spiegla’s speech repre-
sented a wholly personal grievance. In support of their
position, the Defendants rely on a statement from Spiegla’s
deposition where she explained that she was upset about
the new search policy because it would make it “more
difficult to do my job.” Accepting the Defendants’ position
and finding that Spiegla’s speech involved merely personal
matters, the district court concluded that, “[Spiegla] voiced
her concern over the new policy because she was upset due
to the fact that she felt she was not able to do her job.” Dist.
Ct. Op. at 7.
No. 03-2480 13
Although the language she uses in her deposition is am-
biguous, Spiegla’s testimony indeed supports the conclusion
that she was motivated, in part, by a self-interest when she
spoke with Schrader. Whether her frustration with the new
policy arose from her lost authority to conduct searches,
confusion about gate procedures, or simple disagreement
with the decision to alter the search routine, it seems
evident that Spiegla had at least some personal stake in
speaking with Schrader. However, we disagree with the
district court’s ruling that Spiegla’s motivations were
exclusively self-interested. Rather, the more compelling
interpretation is that Spiegla’s frustration with the new
policy primarily arose from her belief that it would make
keeping contraband out of the prison more difficult. As a
veteran employee, Spiegla was familiar with the serious
contraband trafficking and corruption problems plaguing
Westville.5 We accept Spiegla’s claim that she understood
her “job” in terms broader than the simple execution of
vehicle searches. Indeed, keeping contraband out of the
prison was a “job” that became more “difficult” under the
new search policy (as more vehicles would now enter
without inspection), while the physical execution of guard
duties in fact became easier (as fewer vehicles would need
to be searched). That Spiegla spoke in direct response to
observing Hull and Huff’s suspicious behavior further
supports the notion that she had a public motivation. If the
goal of her discussion with Schrader was simply to gather
information regarding post orders, she might not have made
a point of reporting the behavior of Hull and Huff. Against
this backdrop, we cannot conclude that Spiegla’s motiva-
tions for reporting the potentially unlawful conduct of
5
Contrary to the Defendants’ contention, it is not necessary for
Spiegla to have personally witnessed an incident of smuggling for
her to know that there was a contraband problem at the facility.
14 No. 03-2480
superiors to a high-level prison official were confined to
advancing primarily personal objectives.
Furthermore, the district court was misplaced in its
reliance on our decision in Gonzalez v. City of Chicago, 239
F.3d 939 (7th Cir. 2001) (determining that statements made
in a report were not protected speech because report writing
was part of the employee’s required duties). We explicitly
stated in Delgado v. Jones that “our holding in Gonzalez is
limited to the routine discharge of assigned functions,
where there is no suggestion of public motivation.” 282 F.3d
at 519. In Delgado, the Court determined that a police
detective’s memorandum containing information potentially
damaging to his superiors was protected speech. Id. at 520.
The Court emphasized that in contrast to the speech at
issue in Gonzalez, Delgado’s disclosures “went far beyond
some rote, routine discharge of an assigned duty” and he
had “considerable discretion about how he communicated
the information up the chain of command.” Id. at 519.
Similarly, Spiegla departed from the routine performance
of her assigned duties when she raised questions about the
search policy and the conduct of Hull and Huff. Spiegla’s job
function was to implement prison security policies, not to
question those policies or to report the suspicious activities
of her colleagues. The Defendants contend that a failure to
communicate her concerns would have been a dereliction of
Spiegla’s duty (a surprising position considering that the
Defendants also argue that the speech in question was
nothing more than an informational inquiry). As we said of
a similar argument raised in Delgado, “this argument . . .
sweeps much too broadly.” Id. While Spiegla’s actions may
have been consistent with her general duty as a correctional
officer to keep the facility secure, they were not part and
parcel of her core functions. Indeed, Spiegla exercised
discretionary choice when she decided to go outside her
chain of command and disclose her observations to
Schrader.
No. 03-2480 15
By focusing on the presence of a personal motivation and
the fact that Spiegla raised her concerns within the scope of
her employment, the district court improperly elevated
motivation to a litmus test and thereby undervalued the
important content of Spiegla’s speech. See Cliff, 42 F.3d at
410 (indicating that motive cannot become a litmus test
supplanting content in terms of overall importance). We
emphasize that the specificity and seriousness of the al-
legations against Hull and Huff are essential to our refusal
to categorize Spiegla’s speech as a personal dispute. If
we were to decide otherwise, public employees would be
chilled from reporting their similar suspicions of govern-
ment corruption and impropriety. Such a result would be
contrary to sound public policy. In sum, viewing the record
as a whole, the content, form, and context of Spiegla’s
speech lead us to the conclusion that she acted beyond her
employment capacity and spoke as a private citizen on a
matter of public concern when she brought the search policy
and Hull and Huff’s conduct to the attention of her supe-
rior.
b. Balancing of Interests
After determining that Spiegla’s speech addressed a
matter of public concern, we would ordinarily move to the
Pickering analysis and balance her interest as a citizen in
commenting on the matter against the state’s interest, as
employer, in promoting effective and efficient public service.
See Pickering, 391 U.S. at 568; Waters v. Churchill, 511
U.S. 661, 675 (1994). However, the Defendants did not
make Pickering-based arguments in their motion for sum-
mary judgment or in their reply brief on appeal. Addition-
ally, they contend that we need not address balancing as
the district court did not grant summary judgment on that
basis. While it is true that the district court did not engage
in a Pickering analysis, the Defendants’ position is some-
16 No. 03-2480
what complicated by a sentence in the district court’s order
reading in relevant part that “[t]he failure to satisfy either
prong of the Connick-Pickering test renders Spiegla’s
section 1983 claim meritless . . . .” Dist. Ct. Op. at 8-9.
Assuming that the district court held in the alternative (as
opposed to misstating its holding), we conclude that sum-
mary judgment was inappropriate on a Pickering basis
given that the issue was not presented in the Defendants’
motion for summary judgment and that the district court
was silent on the basic underlying facts or legal reasoning
that supported its determination. See Schiller v. Moore,
30 F.3d 1281, 1284 (3d Cir. 1994) (finding summary
judgment inappropriate on the basis of the Pickering test
where district court’s opinion was silent as to reasoning it
employed and parties had not made strong showing as to
their relative interests); see also Roe v. City of San Diego,
356 F.3d 1108, 1122 (9th Cir. 2004) (remanding case for
further proceedings where district court did not reach
Pickering balancing phase). We note that as Pickering is a
question of law, it will be the responsibility of the district
court to balance the parties’ interests as revealed by the
record on the appropriate motion.
c. Qualified Immunity
In their motion before the district court, the Defendants
argued that they were entitled to summary judgment on the
basis of qualified immunity. The defense of qualified
immunity “is designed to protect government agents ‘from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’ ” Knox v.
Smith, 342 F.3d 651, 657 (7th Cir. 2003) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). However, because the
Pickering analysis is essential to the determination of
whether a constitutional violation occurred in this case, we
No. 03-2480 17
cannot now reach the issue of qualified immunity. See
Saucier v. Katz, 533 U.S. 194, 201 (2001) (holding that
before determining whether a right was clearly established,
courts must first determine whether, taking the facts in the
light most favorable to the plaintiff, the official violated a
constitutional right); see also Sullivan, 360 F.3d at 697.
2. Causation
Before discussing whether the evidence supports a causal
link between Spiegla’s speech and her transfer and schedule
change, we will briefly address the Defendants’ contention
that Spiegla did not suffer a sufficiently adverse employ-
ment action. The Defendants argue that Spiegla suffered no
harm since she had agreed in writing to be available for
assignment to any shift and that all of her assignments fell
under the broad category of “perimeter duty” (a duty
involving a variety of posts including gate security, escort-
ing prisoners between complexes, and “towers.”) However,
a § 1983 case does not require an adverse employment
action within the meaning of the antidiscrimination
statutes, such as Title VII of the Civil Rights Act of 1964.
See Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000).
Rather, “[a]ny deprivation . . . that is likely to deter the
exercise of free speech . . . is actionable.” Id. (citing Bart v.
Telford, 677 F.2d 622, 624 (7th Cir. 1982) (explaining that
minor harassment, including making fun of an employee for
bringing a birthday cake to the office, may be sufficient to
deter the exercise of First Amendment rights)). Certainly,
we cannot hold as a matter of law that transfer to a more
physically demanding and less skilled post and an unfavor-
able change in schedule—even though such actions may
18 No. 03-2480
have been permissible under the terms of her employ-
ment—are insufficient to deter the exercise of free speech.6
Turning to the motivating factor issue, Spiegla must es-
tablish a causal link between the contested speech and her
transfer and schedule change. See Mt. Healthy, 429 U.S. at
287. That is, she must establish by a preponderance of the
evidence that a motivating factor in the Defendants’ action
was retaliation. See Rakovich v. Wade, 850 F.2d 1180, 1189
(7th Cir. 1988) (en banc). “This [C]ourt has stated that,
in order to carry his or her [motivating factor] burden, the
plaintiff must show ‘had it not been for the violation, the
injury of which [s]he complains would not have occurred . . .
.’ ” Id. (citing Button v. Harden, 814 F.2d 382, 383 (7th Cir.
1987)); see also Galdikas v. Fagan, 342 F.3d 684, 696 (7th
Cir. 2003); Abrams v. Walker, 307 F.3d 650, 654 (7th Cir.
2002); O’Connor v. Chicago Transit Auth., 985 F.2d 1362,
1368 (7th Cir. 1993). As pointed out recently in Johnson v.
Kingston, 292 F. Supp. 2d 1146, 1155-56 (W.D. Wis. 2003),
this requirement creates an anomaly with the next step of
the Mt. Healthy burden-shifting analysis, which provides
that once the plaintiff has made her showing, the burden
shifts to the defendants to prove by a preponderance of the
evidence that they would have taken the same actions
regardless of the plaintiff’s protected conduct. See Mt.
Healthy, 429 U.S. at 287; see also Galdikas, 342 F.3d at 696
(if plaintiff meets burden of showing that challenged action
6
We do, however, reject Spiegla’s contention that the pay cut she
received after being assigned to the position of Teacher Assistant
IV is evidence of an adverse action. Although Spiegla may have
felt “forced” to apply for the position, the fact of the matter is that
the application was voluntary and no evidence suggests that any
of the Defendants compelled her to apply. Furthermore, the
additional reduction in pay Spiegla received after working in the
Teacher Assistant IV position for a month is too remote from her
speech to support a causal link.
No. 03-2480 19
would not have occurred “but for” the constitutionally
protected conduct, “the burden shifts to the defendant, who
must show by a preponderance of the evidence that he
would have taken the same actions even in the absence of
the protected conduct.”). Logically, if the plaintiff shows by
a preponderance of the evidence that had it not been for the
protected activity her injury would not have occurred, it
would not be possible for the defendant to then prove by a
preponderance of the evidence that the injury would have
occurred regardless of the protected activity. This approach
requires the plaintiff to carry so much of the burden that
nothing remains to shift to the defendant to prove.
Therefore, we disavow the requirement that a plaintiff
alleging First Amendment retaliation has the burden of
proving but-for causation as recited in the following cases:
Galdikas, 342 F.3d at 696; Abrams, 307 F.3d at 654; Love
v. City of Chicago Bd. of Educ., 241 F.3d 564, 569 (7th Cir.
2001); Thomsen v. Romeis, 198 F.3d 1022, 1027 (7th Cir.
2000); Johnson v. Univ. of Wis.-Eau-Claire, 70 F.3d 469,
482 (7th Cir. 1995); O’Connor, 985 F.2d at 1368; Rakovich,
850 F.2d at 1190; Button, 814 F.2d at 383.7 The relevant
burden language used in these cases is inconsistent with
the majority of Seventh Circuit cases discussing First
Amendment retaliation claims8 and contrary to the rule
7
This opinion has been circulated among all judges of this Court
in regular and active service in accordance with Seventh Circuit
Rule 40(e). No judge favored a rehearing en banc on the question
of whether to retract any suggestion in earlier decisions that the
plaintiff in a First Amendment retaliation case must establish
but-for causation.
8
Indeed, the majority of Seventh Circuit cases discussing First
Amendment retaliation claims do not characterize the motivating
factor requirement as a but-for test. See, e.g., Smith v. Dunn, No.
03-2777, 2004 WL 1049131, at *3 (7th Cir. May 11, 2004);
McGreal v. Ostrov, No. 02-3405, 2004 WL 1041520, at *10 (7th
(continued...)
20 No. 03-2480
applied in the other eleven regional circuits.9 Accordingly,
8
(...continued)
Cir. May 10, 2004); Williams v. Seniff, 342 F.3d 774, 782 (7th Cir.
2003); Nieves v. Bd. of Educ., 297 F.3d 690, 693 (7th Cir. 2002);
Vukadinovich v. Bd. of Sch. Trs., 278 F.3d 693, 699 (7th Cir.
2002); Horwitz v. Bd. of Educ., 260 F.3d 602, 618 (7th Cir. 2001);
Pugh v. City of Attica, 259 F.3d 619, 630 (7th Cir. 2001); Klunk v.
County of Joseph, 170 F.3d 772, 775 (7th Cir. 1999); Gooden v.
Neal, 17 F.3d 925, 928 (7th Cir. 1994); Fleming v. County of Kane,
898 F.2d 553, 558 (7th Cir. 1990); Conner v. Reinhard, 847 F.2d
384, 393 (7th Cir. 1988); McClure v. Cywinski, 686 F.2d 541, 545
(7th Cir. 1982).
9
No other circuit requires plaintiffs to show but-for causation
in order to satisfy their burden. See Guilloty Perez v. Pierluisi, 339
F.3d 43, 56 n.11 (1st Cir. 2003) (explaining that First Amendment
plaintiff ’s burden of proving motivation under Mt. Healthy test is
more substantial than the burden of producing prima facie
evidence in a Title VII case, but not requiring plaintiff to show
but-for causation); Coogan v. Smyers, 134 F.3d 479, 484 (2d Cir.
1998) (substantial or motivating factor burden not defined as a
but-for test); Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 795
(3d Cir. 2000) (“Where a reasonable inference can be drawn that
an employee’s speech was at least one factor considered by an
employer in deciding whether to take action against the employee,
the question of whether the speech was a motivating factor in that
determination is best left to the jury.”); Wagner v. Wheeler, 13
F.3d 86, 90-91 (4th Cir. 1993) (not requiring plaintiff to show but-
for causation); Brady v. Fort Bend County, 145 F.3d 691, 710-11
(5th Cir. 1998) (burden shifts if plaintiff proves that her speech
activities were a substantial consideration that influenced
defendant’s decision not to rehire); Sowards v. Loudon County,
203 F.3d 426, 433-35 (6th Cir. 2000) (requiring but-for causation
to be shown by the defendant, but not the plaintiff); Taylor v.
Cochran, 830 F.2d 900, 903 (8th Cir. 1987) (same); Allen v. Iranon,
283 F.3d 1070, 1076 (9th Cir. 2003) (same); Copp v. Unified Sch.
Dist., 882 F.2d 1547, 1553-54 (10th Cir. 1989) (same); Leonard v.
Columbus, 705 F.2d 1299, 1303-04 (11th Cir. 1983) (same); Clark
(continued...)
No. 03-2480 21
we follow the approach delineated in the majority of our
cases, adopted in our sister circuits, and compelled by Mt.
Healthy itself, i.e., a plaintiff alleging First Amendment
retaliation must prove by a preponderance of the evidence
that his or her protected activity was a motivating factor in
the defendant’s retaliatory action. To clarify, a motivating
factor does not amount to a but-for factor or to the only
factor, but is rather a factor that motivated the defendant’s
actions. As we said in Klunk v. County of St. Joseph, “[i]f
the speech addresses a matter of public concern, the
employee must show that the protected speech caused, or at
least played a substantial part in, the employer’s decision”
to take adverse employment action against the plaintiff. 170
F.3d 772, 775 (7th Cir. 1999). Once the plaintiff proves that
an improper purpose was a motivating factor, the burden
shifts to the defendant, as mandated by Mt. Healthy, to
prove by a preponderance of the evidence that the same
actions would have occurred in the absence of the protected
conduct.
In this case, Spiegla readily satisfies her burden. She has
demonstrated by a preponderance of the evidence that her
comments to Schrader were a substantial or motivating
factor in her transfer and shift change. “It is settled in this
Circuit that, ‘a plaintiff may establish . . . a causal link
between protected expression and adverse action through
evidence that the [adverse action] took place on the heels of
9
(...continued)
v. Library of Congress, 750 F.2d 89, 101 n.25 (D.C. Cir. 1984)
(plaintiff only need to show substantial factor, not only factor).
But see Ezekwo v. NYC Health & Hosp. Corp., 940 F.2d 775, 780
(2d Cir. 1991) (standalone Second Circuit case requiring plaintiff
to “establish . . . that the speech played a substantial part in the
employer’s adverse employment action; i.e., that the adverse
action would not have occurred but for the employee’s protected
actions.”).
22 No. 03-2480
protected activity.’ ” Adusumilli v. City of Chicago, 164 F.3d
353, 363 (7th Cir. 1998) (quoting Dey v. Colt Const. & Dev.
Co., 28 F.3d 1446, 1458 (7th Cir. 1994)).10 Not only did just
four days (including the weekend) elapse between Spiegla’s
conversation with Schrader and her transfer and schedule
change, it came after seven years of uninterrupted postings
on the prison gates. See Collins v. Illinois, 830 F.2d 692,
704-05 (7th Cir. 1987) (plaintiff’s uninterrupted two-year
tenure shows causal connection). Moreover, Johnson
admitted that he was “pretty pissed” that Spiegla’s com-
ments were raised at the executive staff meeting and he
said that he was “mad at Ms. Spiegla.” Taken together, the
closely related sequence of events, Spielga’s long and
uninterrupted tenure, and Johnson’s anger with Spiegla
demonstrate that Spiegla’s speech was a motivating factor
in the decisions to transfer her and to change her shift.
Moreover, we are unpersuaded by the Defendants’ con-
tentions that they would have taken the same action in
absence of Spiegla’s protected speech. The Defendants
argue that Spiegla’s removal from the front gates resulted
from normal variance in officers’ post assignments. This
argument is undermined by Spiegla’s seven years of con-
tinuous assignments to gate posts. As for the shift change,
the Defendants point to evidence in the record showing that
in 2000 a number of positions were converted from (5-2)
schedules to (6-2) schedules to reduce the amount of over-
time the facility paid. While it is undisputed that these
conversions occurred, the record does not compel a con-
clusion that Spiegla’s schedule change was part of this
reorganization. A document produced by the Defendants
entitled, “TRANSFERS EFFECTIVE MAY 21, 2000” lists
10
Adusumilli and Dey are Title VII cases, but, in this Circuit “the
causation analysis for a § 1983 retaliation claim tracks the cau-
sation analysis for a Title VII retaliation claim.” Johnson v. Univ.
of Wis.-Eau-Claire, 70 F.3d 469, 482 (7th Cir. 1995).
No. 03-2480 23
the names of sixteen employees who were indeed trans-
ferred from (5-2) groups. However, as is made apparent by
the document’s title, these transfers took place over four
months after Spiegla’s schedule had been switched. As the
Defendants have not presented evidence identifying any
other individual who underwent a shift conversion around
the same time that Spiegla did, we cannot conclude by a
preponderance of the evidence that she was not subjected to
isolated treatment.
B. Motion to Compel
Lastly, we consider Spiegla’s claim that the district court
improperly denied her motion to compel the production of
documents. We conclude there is no basis to overturn the
district court’s decision. Trial courts have broad discretion
over discovery matters and we review a district court’s
pretrial discovery rulings for an abuse of discretion. Rennie
v. Dalton, 3 F.3d 1100, 1110 (7th Cir. 1993). Spiegla’s ar-
gument that the district court’s decision should be reversed
is premised on her discovery of relevant documents through
other channels (her union) that the Defendants should have
had copies of but did not turn over. However, obtaining
unproduced documents, by itself, does not demonstrate that
the district court abused its discretion in denying motions
to compel or that it erroneously limited discovery.
III. Conclusion
The judgment of the lower court is REVERSED and we
REMAND the case for proceedings consistent with this
opinion.
24 No. 03-2480
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-14-04