Benjamin R. Brooks, M.D., Mohammed Sanjak, and Jennifer Parnell v. University of Wisconsin Board of Regents, Thomas P. Sutula, and Gregory C. Zalesak ( 2005 )

TERENCE T. 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 (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 diseases. 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 disadvantaged 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 acquiring new patients for clinical trials because he was chronically 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.

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 operation 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, De-Luca 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 defendants, 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 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, — U.S. —, 125 S.Ct. 521, 523, 160 L.Ed.2d 410 (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, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994)). Thus, public employees do not have an unfettered right to express themselves’ on matters related to their jobs, and courts must give due weight to the government’s interest in efficient employment decisionmaking when evaluating retaliation claims. To establish First Amendment retaliation, a plaintiff must establish that the speech in question is constitutionally protected 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, 103 S.Ct. 1684, 75 L.Ed.2d 708 (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, 103 S.Ct. 1684. Moreover, “[t]he First Amendment is implicated when a public employee speaks as a citizen upon a matter of public concern, but not as an employee upon matters only of personal 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 employee 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, 88 S.Ct. 1731, 20 L.Ed.2d 811 (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 decisions 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 decisions. 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 demonstrate retaliation where a vague characterization of what was said was the only evidence of protected speech).

Moreover, even if the plaintiffs’ vague descriptions provided 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. Trustees 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 ultimately 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 adverse impact on patient care. But there is no evidence that 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 regarding Sutula’s involvement with NeuroGeno-meX. 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 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 refused 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 automatically “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 demonstrate (1) that the defendants deprived them of a property 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 correctly 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-diseiplinary 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.

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 evidence, and it would not have changed the outcome.

Accordingly, the judgment of the district COUrt ÍS AFFIRMED.