Gazarkiewicz, John A v. Kingsford Heights IN

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2775
JOHN A. GAZARKIEWICZ,
Plaintiff-Appellant,
v.
TOWN OF KINGSFORD HEIGHTS,
INDIANA, KINGSFORD HEIGHTS
TOWN COUNCIL, HARRY MORRISON,
Individually and as Council President
of Town of Kingsford Heights, Indiana, et al.,
Defendants-Appellees.
__________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 02 C 150—Christopher A. Nuechterlein, Magistrate Judge.
__________
ARGUED DECEMBER 2, 2003—DECIDED MARCH 8, 2004
__________
Before RIPPLE, MANION and DIANE P. WOOD, Circuit
Judges.
RIPPLE, Circuit Judge. On November 28, 2001, the Town
Council for the Town of Kingsford Heights, Indiana, voted
to remove John A. Gazarkiewicz from his position as a
laborer in the Town’s Public Utilities Department. As a
2 No. 03-2775
result, on February 27, 2002, Mr. Gazarkiewicz initiated this
action in the United States District Court for the Northern
District of Indiana against the Town of Kingsford Heights
and its Town Council; the town council members, individu-
ally and in their official capacities; and Ralph Harmon,
individually and in his official capacity as Utilities Superin-
tendent of the Town (collectively “defendants”). Pursuant
to 42 U.S.C. § 1983, Counts I and V alleged that his dis-
charge violated his federal constitutional rights to free
speech and association under the First and Fourteenth
Amendments, and Counts III and IV alleged deprivation of
his rights to procedural and substantive due process under
the Fourteenth Amendment. Count II alleged that his
discharge also violated his free-speech rights under the
Indiana Constitution, and Count VI alleged the Town
refused to pay him vacation pay in violation of Indiana law.
In April of 2003, the parties filed cross-motions for
summary judgment. In an order dated May 27, 2003, the
district court disposed of all Mr. Gazarkiewicz’s claims in
favor of the defendants. A final judgment was entered on
May 28, 2003; Mr. Gazarkiewicz timely appealed. For the
reasons set forth in the following opinion, we affirm in part
and reverse in part the judgment of the district court, and
we remand the case for further proceedings consistent with
this opinion.
I
BACKGROUND
A. Facts
The Town of Kingsford Heights administers its business
through its five-person Town Council. Mr. Gazarkiewicz
was hired on or about May 13, 2001, by the Town to work in
No. 03-2775 3
its Public Utilities Department as a laborer. Also in 2001, the
Town hired Ralph Harmon as Superintendent of the Public
Utilities Department. Town employees levied numerous
complaints regarding Mr. Harmon’s performance, and this
dissatisfaction with Mr. Harmon was a source of dishar-
mony among town employees.
On October 31, 2001, the Council held a mandatory
meeting for all of the town employees. The purpose of the
meeting, according to various council members, was to
allow the employees to air their grievances. At the meeting,
the employees were told, apparently somewhat informally,
of a new “grievance procedure.” At the least, the employees
were told that any future complaints regarding a superior
were to be addressed in writing to that employee’s supervi-
sor, and any complaints regarding Mr. Harmon were to be
made to the Council in writing. See Appellees’ Br. at 4;
Williamson Dep. at 17. The parties dispute what the em-
ployees were told regarding speaking publicly about
grievances. Two council members, Frank Underwood and
Evelyn Ballinger, did not remember any discussion at the
meeting regarding public speech. See Underwood Dep. at
10; Ballinger Dep. at 17. Ms. Ballinger explained:
I can’t really say that we [the Council] ever told them
they couldn’t speak anything in public, but the common
consensus was “what was said in this room should stay
in this room.” You know, you don’t want all of your
business out in the street. So that’s basically it.
Ballinger Dep. at 17. A third council member, Kevin Wil-
liamson, explained that the employees were told that their
“public display” regarding Mr. Harmon’s and the Council’s
incompetence was “going to have to stop.” Williamson Dep.
at 17. The following addition to the employee handbook
occurred as a result of the meeting: “The superintendent
must be notified of the complaint by the council and the
4 No. 03-2775
superintendent will follow up with a written report of the
incident to each council member before the review.”
Earlier in October of 2001, Mr. Gazarkiewicz typed a flyer
written by Robert Reese, a citizen, but not an employee, of
the Town. The flyer, in its final form, read:
WAKE UP CALL
Is He Worth it, Are They Worth It?
I’m a homeowner in the Town of Kingsford Height’s
and have been for the past 11 years, recently our present
Utility Superintendent was suspended with pay for not
responding quickly about a hazardous spill involving a
leaky transformer.
After the property owners called the Environmental
Protection Agency “EPA”, the “EPA” in turn told them
to call hazmat, this caring Superintendent had the dirt
removed and it was tested negative for contamination,
shame, shame, shame for the delay.
This Superintendent in the short time of employment
here has had numerous complaints filed against him
from property owners, nothing done, some serious
enough to have him dismissed had it happened at
another corporation or factory, he even has had a
harassment complaint filed against him in the past from
another town employee, still nothing done.
Why would this town employ a person to sit at a desk
for 38K a year with no knowledge of utilities and not a
person who has 25 years of experience and certified in
every aspect of town utilities for roughly the same
amount?
Is this what our Government calls “PORK BARREL
SPENDING”?
No. 03-2775 5
Our current Town Council Board, which by the way
have been appointed by proxy, and not elected by the
people should consider what the town can and cannot
afford in these times of tradgic events, factory closings,
high fuel cost’s, and budget cuts nation wide to better
serve the people of Kingsford Height’s in a more
efficient way, and not to just please a few. I ask again to
the people of Kingsford Height’s, would you rather pay
for experienced personel, qualified personel, or inexpe-
rienced personel? These decisions made recently will
reflect on the decisions made come election day. GOD
BLESS AMERICA, GOD BLESS FREE ELECTIONS!
The flyer was signed “Concerned Resident.” It was posted
at a local grocery store approximately two-and-one-half
weeks after the October 31 meeting. The parties agree that
Mr. Gazarkiewicz was aware that Reese was going to
publish the flyer in some fashion, but Mr. Gazarkiewicz did
not assist in its posting.
Upon learning of the flyer, Mr. Harmon immediately
removed it and delivered it to the President of the Town
Council. On November 28, 2001, the Council considered the
flyer “incident.” The minutes from that meeting state:
Harry Morrison then read a letter from John
Gazarkiewicz dated 11/21/2001, regarding an apology.
The incident involved was discussed and it was the
concensus [sic] of all Town Council members that there
were major violations of the handbook concerning
insubordination and that some sort of action should be
taken. Disciplinary options were discussed. Following
discussion, the motion to terminate the employment of
John Gazarkiewicz for insubordination was made by
Frank Underwood, seconded by Evelyn Ballinger.
During further discussion, Mr. Gazarkiewicz stated that
the Town would be “hearing from his attorney” if he is
6 No. 03-2775
terminated. The motion carried 4-1, with Kevin William-
son opposed.
Some time after his employment ceased, Mr. Gazarkiewicz
made a demand for vacation pay. The Town denied this
demand because Mr. Gazarkiewicz had only worked for the
Town from June of 2001 to November of 2001, and it
interpreted Town of Kingsford Heights, Ind., Ordinance 2-
16-020 to require a year of continuous service, or employ-
ment past January 1, in order to make an employee eligible
for vacation pay.
B. District Court Proceedings
1. Procedural Due Process (Count III), Freedom of Asso-
ciation (Count V) & Defendant Harmon’s Liability
The district court first noted that Mr. Gazarkiewicz did
not respond to the defendants’ motion for summary judg-
ment on his procedural due process claim (Count III), his
freedom of association claim (Count V), and all claims
against Mr. Harmon in his individual and official capacities.
Accordingly, the court granted the defendants’ motion for
summary judgment on these issues. On this appeal, Mr.
Gazarkiewicz does not challenge this portion of the district
court’s holding.
2. Freedom of Speech (Count I)
Mr. Gazarkiewicz alleged that his First Amendment free-
speech rights were violated in two distinct ways. First, he
alleged that he was discharged in retaliation for his constitu-
tionally protected speech. Second, he alleged that the
“grievance procedure” established at the October 31, 2001
meeting constituted a prior restraint inconsistent with the
First Amendment. The district court began with Mr.
No. 03-2775 7
Gazarkiewicz’s First Amendment retaliation claim and held
that the claim failed all three prongs of the test set out in
Vukadinovich v. Board of School Trustees of North Newton
School Corp., 278 F.3d 693, 699 (7th Cir. 2002). As to the first
element, the court determined that Mr. Gazarkiewicz’s
1
speech was not protected because, although it commented
on a matter of public concern, the government’s interest in
efficiency as an employer outweighed Mr. Gazarkiewicz’s
interest in commenting on these matters. The court espe-
1
As a threshold matter, the district court rejected the defendants’
contention that Mr. Gazarkiewicz’s involvement with the flyer
did not constitute “speech” eligible for First Amendment
protection. See Fogarty v. Boles, 121 F.3d 886, 890 (3d Cir. 1997)
(explaining that “speech” is necessary to state a cognizable First
Amendment claim). The court explained that Mr. Gazarkiewicz,
“while not composing the flyer, played a significant role in its
publication. Further, [his] termination for insubordination was
triggered by his involvement with the flyer regardless of whether
Plaintiff composed the flyer or was merely Reese’s instrument in
drafting the document.” R.47 at 9. The defendants did not object
to this holding in their briefs to this court. In any event, we agree
with the district court that Mr. Gazarkiewicz’s participation in the
flyer was sufficient to trigger First Amendment protection. His
participation was not in the nature of a disinterested typist, but
as an aider and abetter. We also agree with the district court that
the defendants certainly perceived him as engaging in speech and
dealt with him on that basis. This is a far cry from a case in which
the plaintiff claims the speech did not actually occur or a case in
which the plaintiff disclaims any involvement in the speech. See
Barkoo v. Melby, 901 F.2d 613, 619 (7th Cir. 1990) (holding the
plaintiff’s First Amendment retaliation claim was not actionable
to the extent the plaintiff admitted the speech never actually
occurred); Fogarty, 121 F.3d at 886-91 (holding the plaintiff’s First
Amendment retaliation claim not actionable when the plaintiff’s
employer erroneously believed the plaintiff contacted the press).
8 No. 03-2775
cially was persuaded by the fact that the speech took place
at a time of disharmony among town employees.
The district court then held that, even assuming Mr.
Gazarkiewicz’s speech was protected, his claim failed the
second and third prongs of the retaliation analysis. These
prongs required Mr. Gazarkiewicz to produce evidence
showing that his discharge was motivated by his protected
activity and to rebut any neutral reason proffered by the
defendants for his discharge. See Vukadinovich, 278 F.3d at
699. The court stated that Mr. Gazarkiewicz offered no
evidence or analysis on either of these issues. Therefore,
under Northern District of Indiana Local Rule 56.1(b), the
court was required to accept the facts as provided by the
defendants on these issues. The court explained that the
defendants’ motion alleged that Mr. Gazarkiewicz was fired
due to a grudge he held against Mr. Harmon. Further, the
court held, “the record is replete with examples of Plaintiff’s
poor job performance, affording Defendants numerous
reasons to terminate Plaintiff apart from his speech.” R.47 at
15. Accepting these justifications as true, the court held that
Mr. Gazarkiewicz’s claim failed the second and third
elements of the retaliation test.
The district court next held that the grievance procedure
issued by the Town Council did not constitute an unconsti-
tutional prior restraint on employee speech. First, the court
explained, the grievance procedure was not a “total ban on
employee speech, merely a ban on unfounded criticism
outside the Town’s chain of command.” Id. at 20. Therefore,
“[b]ecause Plaintiff has given no evidence that a blanket
restriction on employee speech even existed,” his prior
restraint claim should fail on this ground alone. Id. at 21.
Second, the court held that, even assuming the grievance
procedure constituted a blanket ban, the Town’s interest in
preventing further employee disruption by restraining the
No. 03-2775 9
speech outweighed Mr. Gazarkiewicz’s interest in publicly
2
complaining about town management. Therefore, the court
held, Mr. Gazarkiewicz’s prior restraint claim must be
dismissed.
3. Substantive Due Process (Count IV)
The court next held that Mr. Gazarkiewicz’s substantive
due process claim was not actionable because he had failed
to show the defendants’ actions in discharging him were so
arbitrary and capricious as to “shock[] the conscience.” Id.
at 22 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 855
(1998)). The court further noted that the defendants had
provided several reasons for Mr. Gazarkiewicz’s termina-
tion, such as insubordination. This doomed his claim,
according to the court, because he failed to show that the
termination was “unjustifiable by any governmental inter-
est.” Id. at 23 (quoting Lewis, 523 U.S. at 849).
4. Vacation Pay (Count VI)
Finally, the district court dismissed Mr. Gazarkiewicz’s
state-law claim for vacation pay. The court noted that
Indiana law establishes that an employee is entitled to
vacation pay after termination only if he was otherwise
entitled to it under the employer’s policy at the time of his
termination. R.47 at 24-25 (discussing Damon Corp. v. Estes,
750 N.E.2d 891, 892-93 (Ind. Ct. App. 2001)). The court then
determined that, under Town of Kingsford Heights, Ind.,
Ordinance 2-16-020, Mr. Gazarkiewicz was not eligible for
2
Having found that Mr. Gazarkiewicz’s First Amendment
claims failed as a matter of law, the court also dismissed his state
free-speech claim under the Indiana Constitution.
10 No. 03-2775
vacation pay at the time of his discharge. Therefore, his
claim for vacation pay must fail.
II
DISCUSSION
A. Standard of Review
This court reviews a district court’s grant of a motion or
cross-motion for summary judgment de novo. See Allen v.
City of Chicago, 351 F.3d 306, 311 (7th Cir. 2003). 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 a judgment as a matter of law.” Fed. R. Civ. P.
56(c). In considering cross-motions for summary judgment,
we are obliged to view all facts and draw all reasonable
inferences in a light most favorable to the party against
whom the motion under consideration is made. See Allen,
351 F.3d at 311.
B. Freedom of Speech (Count I)
We first shall address Mr. Gazarkiewicz’s claim that he
was fired in retaliation for protected speech. The district
court determined that this claim failed as a matter of law.
We respectfully disagree and now hold that the record
establishes that Mr. Gazarkiewicz was fired in retaliation for
constitutionally protected speech in violation of the First
No. 03-2775 11
3
and Fourteenth Amendments and 42 U.S.C. § 1983.
A public employee retains First Amendment rights to free
speech, including the right to criticize his employer. See
Khuans v. Sch. Dist. 110, 123 F.3d 1010, 1016 (7th Cir. 1997)
(“Public criticism of a government employer’s policies can
be protected speech.”). However, that right is not absolute;
it must be weighed against the government’s need as an
employer to conduct its affairs effectively and efficiently. See
Waters v. Churchill, 511 U.S. 661, 675 (1994). We conduct a
three-part inquiry when faced with a claim that a public
employee has been improperly retaliated against due to the
exercise of his First Amendment rights:
1) Was [the plaintiff’s] speech constitutionally pro-
tected? 2) If so, were the defendants’ actions motivated
by his constitutionally protected speech? 3) If [the
plaintiff] can show that his constitutionally protected
speech was a substantial or motivating factor in his
termination, can the defendants show that they would
have taken the same action in the absence of his exercise
of his rights under the First Amendment? If [the plain-
tiff] can establish the first two prongs, the burden shifts
to the defendants to prove by a preponderance of the
evidence that [the plaintiff] would have been terminated
regardless of his protected speech. If the defendants
carry that burden, [the plaintiff] bears the burden of
persuasion to show that the defendants’ proffered
reasons were pretextual and that discrimination was the
real reason that the defendants fired him.
3
Because of this disposition, we need not reach Mr.
Gazarkiewicz’s contention that the “grievance procedure”
constituted a prior restraint inconsistent with the First Amend-
ment or his claim that his rights to substantive due process under
the Fourteenth Amendment were violated.
12 No. 03-2775
Vukadinovich v. Bd. of Sch. Trs. of N. Newton Sch. Corp., 278
F.3d 693, 699 (7th Cir. 2002) (citations omitted). In this case,
the record compels a holding that Mr. Gazarkiewicz’s
speech was protected and that his discharge was motivated
in substantial part by his protected speech.
1. Step 1: Constitutionally Protected Speech
“[D]etermining whether the plaintiff’s speech was consti-
tutionally protected . . . is a question of law for the court.”
Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999). The
Supreme Court’s decisions in Pickering v. Board of Education
of Township High School District 205, 391 U.S. 563 (1968), and
Connick v. Myers, 461 U.S. 138 (1983), establish a two-part
inquiry to determine if speech is constitutionally protected.
See generally Wainscott v. Henry, 315 F.3d 844, 848 (7th Cir.
2003). First, we must determine whether the employee
spoke as a citizen upon matters of public concern. See id. If
this hurdle is cleared, then we must balance “the employee’s
interest in commenting upon such matters and the em-
ployer’s interest in efficient public services.” Id.
a. Matters of Public Concern
Speech is a matter of public concern if it relates to any
matter of “political, social, or other concern to the commu-
nity.” Id. at 849 (internal quotation and citation omitted).
Conversely, speech is not a matter of public concern if it
involves a “personal grievance of interest only to the
employee.” Id. We conduct this inquiry through a consider-
ation of “the content, form, and context of [the speech] as
revealed by the whole record.” Connick, 461 U.S. at 147-48.
While due consideration must be given to all of these
factors, content is the most important. See Wainscott, 315
F.3d at 850.
No. 03-2775 13
This case presents a paradigmatic example of speech of a
public concern. The content of the flyer, which constitutes
Mr. Gazarkiewicz’s speech, highlights the mismanagement
of a town official, questions the Council’s decision to hire an
official with inadequate experience and asks whether his
salary is justified in light of the difficulties facing the Town.
As we recently said in Wainscott:
Whether the city is run in an efficient and effective
manner is clearly an important matter of public concern.
An employee’s ability to highlight the misuse of public
funds or breaches of public trust is a critical weapon in
the fight against government corruption and ineffi-
ciency. See, e.g., Propst v. Bitzer, 39 F.3d 148, 152 (7th Cir.
1994); Conner v. Reinhard, 847 F.2d 384, 390-91 (7th Cir.
1988). We would be remiss not to protect an employee’s
ability to expose such things. In addition, most people
would likely have an interest in the possible incompe-
tence of public officials. “Speech that seeks to expose
improper operations of the government or questions the
integrity of governmental officials clearly concerns vital
public interests.” Conaway v. Smith, 853 F.2d 789, 797
(10th Cir. 1988). If the administration was truly running
the city in a highly inefficient manner, it would consti-
tute a “ ’breach of public trust’ which the Court in
Connick suggested might qualify for protection.” Breuer
v. Hart, 909 F.2d 1035, 1038 (7th Cir. 1990).
315 F.3d at 849. Furthermore, the flyer relates those ineffi-
ciencies to a matter at the core of our constitutional system:
democratic elections. See Zorzi v. County of Putnam, 30 F.3d
885, 896 (7th Cir. 1994) (“[P]olitical speech is clearly a matter
of public concern . . . .”). The flyer notes that the Town
Council was appointed and not publicly elected and warns
that, when the council members do come up for elections,
these decisions will be taken into account. To be sure, the
14 No. 03-2775
flyer was not written in the finest Shakespearian prose, and
it did not uncover publicly concealed secrets that would
shake the Town’s foundations. For good reason, however,
these are not prerequisites to First Amendment protection.
See Wainscott, 315 F.3d at 849 (noting that it is irrelevant, for
purposes of the First Amendment analysis, that the plaintiff
“did not apprise his audience of shocking revelations or
insightful analysis as to why the administration is incompe-
tent”); Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 194, 197 (7th
Cir. 1996) (explaining that matters of public concern do not
necessarily involve matters of “transcendent importance,
such as the origins of the universe or the merits of constitu-
tional monarchy”).
The defendants argue that, even if the content of Mr.
Gazarkiewicz’s speech does contain matters of “public
importance,” it is not a “matter of public concern” because
it was motivated by Mr. Gazarkiewicz’s personal interests.
See Kokkinis, 185 F.3d at 844 (holding that, even if speech
addresses a matter of “public importance,” it may neverthe-
less be deemed not of “public concern” if the point of the
speech was to “further some purely private interest”
(internal quotation and citation omitted)). This argument
faces a high evidentiary burden as we have emphasized that
speech of public importance is only transformed into a
matter of private concern when it is motivated solely by the
speaker’s personal interests. See Gustafson v. Jones, 290 F.3d
895, 908 (7th Cir. 2002) (emphasizing that speech is trans-
formed into a matter of private interest when it is “only
motivated by private concerns” and further explaining that
“even if [the police officers] were advancing some private
interests when they raised concerns about [the Field Deputy
Inspector’s] orders, their claim survives as long as they also
intended to bring to light what they believed to be the
negative law enforcement consequences of the new policy”).
No. 03-2775 15
The defendants characterize Mr. Gazarkiewicz’s involve-
ment with the flyer as merely an attempt to spread rumors
about Mr. Harmon and the Council, motivated by Mr.
Gazarkiewicz’s personal animus against Mr. Harmon and
the Council. The defendants claim that the two specific
incidents regarding Mr. Harmon that the flyer
discusses—the transformer leak and the sexual harassment
claim—already had been addressed at a public council
meeting and were found to be unsubstantiated by the
Council. At the outset, we note the inconsistency of the
defendants’ reasoning with basic First Amendment princi-
ples. The defendants’ reasoning implies that, because these
two incidents were publicly discussed, they do not need to
be brought further to the public’s attention. However,
employees that highlight publicly known inefficiencies in a
call for democratic change implicate First Amendment
values to the same extent as whistleblowers who expose
those inefficiencies in the first instance. See, e.g., New York
Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (discussing the
“profound national commitment to the principle that debate
on public issues should be uninhibited, robust, and
wide-open, and that it may well include vehement, caustic,
and sometimes unpleasantly sharp attacks on government
and public officials”). As to the validity of the two specific
claims against Mr. Harmon discussed in the flyer, “[a]
public employee is not required to prove the truth of his
speech in order to secure the protections of the First Amend-
ment.” Chappel v. Montgomery County Fire Prot. Dist. No. 1,
131 F.3d 564, 576 (6th Cir. 1997). Rather, speech of public
importance only loses its First Amendment protection if the
public employee knew it was false or made it in reckless
disregard of the truth. See Pickering, 391 U.S. at 574
(“[A]bsent proof of false statements knowingly or recklessly
made by him, a teacher’s exercise of his right to speak on
16 No. 03-2775
issues of public importance may not furnish the basis for his
dismissal from public employment.” (footnote omitted));
Brenner v. Brown, 36 F.3d 18, 20 (7th Cir. 1994) (“[A]n
employee’s speech is not protected where it is . . . made with
a reckless disregard for the truth, or is otherwise profane
and disparaging.”). In this case, the defendants, who carry
the burden on this issue, do not even attempt to prove Mr.
Gazarkiewicz participated in the flyer knowing the falsity of
the two claims against Mr. Harmon or in reckless disregard
of their truth. See Chappel, 131 F.3d at 576 (“[A]lthough
protection may not be available when a public employee
knowingly or recklessly makes false statements, it is the
defendants’ burden to establish that [the public employee]
knew or was recklessly indifferent to the fact that his speech
4
was false.”).
The content of the flyer, viewed as a whole, is about much
more than the two incidents related to Mr. Harmon on
which the defendants narrowly focus. See Taylor v.
Carmouche, 214 F.3d 788, 792 (7th Cir. 2000) (noting that a
court is required to view the speech as a whole in determin-
ing whether it addresses a matter of public concern). The
content of the flyer also goes well beyond matters of
personal interest to Mr. Gazarkiewicz as a town employee
and addresses matters that affect Mr. Gazarkiewicz as a
town citizen. See Wainscott, 315 F.3d at 850 (“Wainscott’s
expression did not concern the effect the city’s alleged
incompetence had upon him personally. . . . [O]ther than his
interest as a taxpayer, he had no personal or pecuniary
interest in the placement of dumpsters, or for that matter, in
4
The defendants did not make this claim either before the
district court or this court. Therefore, there was no occasion for
the district court to reach the issue, and there is no occasion for
this court to reach the issue.
No. 03-2775 17
the management of the city as a whole.”); cf. Wallscetti v.
Fox, 258 F.3d 662, 667 (7th Cir. 2001) (holding speech
addressed only matters of personal interest when “[t]he
content of Wallscetti’s complaints shows that she was
complaining only about Fox and Laraia’s [her supervisors]
hostility toward her personally, rather than more generally
about her supervisors’ effect on the morale of the office as a
whole or some other issue of broader importance”). Further-
more, the additional two factors we are compelled to
consider—the form and context of the speech—do not
support the conclusion that Mr. Gazarkiewicz was merely
rumor-spreading out of personal animus. That the speech
came in the form of a flyer signed “Concerned Resident,”
was developed in conjunction with a town resident and
non-employee of the Town and was posted at a local
grocery store lends credence to the view that the speech was
motivated by public concerns. Cf. Wallscetti, 258 F.3d at 667
(“The form of Wallscetti’s speech, contacting her supervi-
sors’ internal superiors rather than attempting to bring the
harassment into view of those outside the County’s admin-
istrative structure, further supports finding that her com-
plaints are not protected.”).
A fair reading of the record does reveal that Mr.
Gazarkiewicz did not think highly of Mr. Harmon or of the
Council, and we do not ignore the possibility that his
participation in the flyer was motivated in part by that
distaste. However, as we recently explained, “to use the
nature of this relationship as the basis for the conclusion
that this was a statement of personal interest is highly
tenuous. An employee’s speech on matters that might
otherwise be protected cannot lose protection solely as a
result of a history of animosity.” Wainscott, 315 F.3d at 850.
In sum, therefore, we agree with the district court that Mr.
Gazarkiewicz’s speech addressed matters of public concern
and was not motivated solely by personal interests.
18 No. 03-2775
b. Balancing of Interests
Even if an employee’s speech addresses matters of public
concern, it may be punished by the employer if the em-
ployer “can carry its burden of proving that the interest of
the public employee as a citizen in commenting on the
matter is outweighed by the interest of the [government], as
employer, in promoting effective and efficient public
service.” Gustafson, 290 F.3d at 909. This court has set forth
seven interrelated elements for consideration in our balanc-
ing:
(1) whether the speech would create problems in
maintaining discipline or harmony among co-workers;
(2) whether the employment relationship is one in
which personal loyalty and confidence are necessary; (3)
whether the speech impeded the employee’s ability to
perform her responsibilities; (4) the time, place and
manner of the speech; (5) the context in which the
underlying dispute arose; (6) whether the matter was
one on which debate was vital to informed
decisionmaking; and (7) whether the speaker should be
regarded as a member of the general public.
Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir. 2000). Upon
consideration of these factors in relation to the record before
us, we must disagree with the district court’s determination
that the interest of the community in the orderly processes
of government as employer outweighed the right of Mr.
Gazarkiewicz to collaborate with his fellow citizen in stating
his views on matters of public concern.
Mr. Gazarkiewicz was a laborer in the Town’s Public
Utilities Department. His position is not one in which
“personal confidence and loyalty are necessary,” and there
is no evidence that his speech affected, much less “im-
peded,” his “ability to perform [his] responsibilities.” Id.
No. 03-2775 19
Moreover, when Mr. Gazarkiewicz participated in the
speech, he was acting as “a member of the general public”
in a “time, place and manner” implicating less employment-
related concerns. Id. As alluded to earlier, he was collaborat-
ing with a fellow citizen and non-employee of the Town
regarding matters which ran more to his interests as a town
taxpayer than his interests as a town employee. Further, Mr.
Gazarkiewicz’s part of the collaboration in forming the flyer
took place on his own time and away from work premises,
and, when the flyer was actually posted, it was done so off
work premises at a local grocery store. See Connick, 461 U.S.
at 153 & n.13 (explaining the fact that the employee “exer-
cised her rights to speech at the office supports Connick’s
fears that the functioning of his office was endangered” and
further noting that “[e]mployee speech which transpires
entirely on the employee’s own time, and in nonwork areas
of the office, bring different factors into the Pickering
calculus”). In sum, Mr. Gazarkiewicz was speaking more
from the perspective of a town citizen, in his free time, off
work premises and, as we held in the previous section, on
matters of quintessential public importance. Taken together,
these factors dictate that Mr. Gazarkiewicz’s speech interest
was strong, and “[t]he stronger the employee’s interest in
speaking, the more substantial a showing the [government]
must make to justify its restriction of that speech.”
Gustafson, 290 F.3d at 909.
The defendants have produced no evidence that Mr.
Gazarkiewicz’s speech actually disrupted town affairs. Of
course, the defendants are not required to produce actual
evidence of disruption to prevail. The Supreme Court has
instructed that we give “substantial weight to government
employers’ reasonable predictions of disruption,” and that
we are to look at the facts “as the employer reasonably found
them to be,” and not as the employee claims they occurred.
20 No. 03-2775
Waters v. Churchill, 511 U.S. 661, 673, 677 (1994). However,
to be “reasonable,” that prediction must be supported with
an evidentiary foundation and be more than mere specula-
tion. See Wainscott, 315 F.3d at 851.
The defendants’ prediction of disruption in this case is
supported too thinly to be deemed anything other than
speculation. The defendants contend that they were forced
to curtail public criticism of the Council and Mr. Harmon,
such as Mr. Gazarkiewicz’s, in order to bring under control
the disharmony among town employees that was affecting
the Town’s administration of business. This general dishar-
mony continuously is noted in the defendants’ argument,
but it is detailed insufficiently in the record for us to
conclude its potential to disrupt town affairs. The record in
no way quantifies that disharmony, and more importantly,
it contains not a single instance of how town administration
was disrupted due to this disharmony. The defendants rely
heavily, as did the district court, on council member Frank
Underwood’s testimony that “ever since I took seat we’ve
been dealing over half of our issues were from employees.”
Underwood Dep. at 7. This statement, and other similar
5
statements we have located in the record, merely supports
that the council members had to work harder to address
employee concerns; it is insufficient evidence to allow us to
5
See Underwood Dep. at 21 (“[E]ver since I’ve been on the board
we’ve been dealing with employee issues over—I mean every
meeting, and we were getting nowhere.”); Underwood Dep. at 22
(noting that the Council had to deal with “accusations” against
Mr. Harmon “day in, day out”); Willis Dep. at 15 (“I know there
was a lot of turmoil. . . . [W]hen I first got back out there and I
just wanted very much to see that curbed and to try it to be a
functioning group, you know, instead of a divisive bunch, that’s
what was happening. It was just a lot of talk and, you know,
stuff, and we didn’t need that.”).
No. 03-2775 21
leap to the conclusion that public speech like Mr.
Gazarkiewicz’s was reasonably likely to cause the Town’s
functioning to be disrupted. We are not unsympathetic to
the importance of workplace harmony and of the need for
an employer such as the government to be proactive in
solving workplace problems. As we recently said, “[a]
government employer need not ‘allow events to unfold to
the extent that the disruption of the office and the destruc-
tion of working relationships is manifest before taking
action.’ ” Greer, 212 F.3d at 372 (quoting Connick, 461 U.S. at
152). However, all workplaces contain some disharmony,
and dissatisfaction with superiors is not uncommon. If a
general claim of disharmony could be used by a govern-
ment to insulate itself from public criticism by its employ-
ees, the First Amendment’s guarantee that “[e]mployees of
governmental entities generally should be able to complain
or criticize” in order to promote governmental efficiency
would be empty. Wainscott, 315 F.3d at 852; see also Hulbert
v. Wilhelm, 120 F.3d 648, 655 (7th Cir. 1997) (“Connick
reiterated Pickering’s rule that the mere incantation of the
phrase ‘internal harmony in the workplace’ is not enough to
carry the day . . . .”). There must be a sufficient evidentiary
basis from which we reasonably can conclude that the
morale problem, if festered by the public criticism, would
cause a serious disruption in municipal services in this area
of town governance. That danger, moreover, must be
sufficiently severe and imminent to override Mr.
Gazarkiewicz’s substantial interest in speech. The record
simply will not support that conclusion. Therefore, we must
hold that the defendants’ speculative interests in efficiency
are outweighed by Mr. Gazarkiewicz’s right to collaborate
with a fellow citizen to speak on matters of public concern.
22 No. 03-2775
2. Steps 2 & 3: Protected Speech as a Substantial or
Motivating Factor in the Discharge
Having determined that Mr. Gazarkiewicz’s speech was
protected, we now must consider whether his protected
speech was the motivation for his termination. Our case law
establishes a road map to guide this fact-specific inquiry.
First, Mr. Gazarkiewicz bears the burden of showing that
his speech was “a substantial or motivating factor in his
termination.” Vukadinovich, 278 F.3d at 699. If he meets that
burden, the defendants then must establish “by a prepon-
derance of the evidence that [Mr. Gazarkiewicz] would have
been terminated regardless of his protected speech.” Id.
Finally, if the defendants carry that burden, Mr.
Gazarkiewicz “bears the burden of persuasion to show that
the defendants’ proffered reasons were pretextual and that
discrimination was the real reason that the defendants fired
him.” Id.
The record in this case makes clear that Mr.
Gazarkiewicz’s speech was “a substantial or motivating
factor in his termination.” Id. The minutes from the Novem-
ber 28, 2001 council meeting in which Mr. Gazarkiewicz was
fired, standing alone, make this abundantly clear:
Harry Morrison then read a letter from John
Gazarkiewicz dated 11/21/2001, regarding an apology.
The incident involved was discussed and it was the
concensus [sic] of all Town Council members that there
were major violations of the handbook concerning
insubordination and that some sort of action should be
taken. Disciplinary options were discussed. Following
discussion, the motion to terminate the employment of
John Gazarkiewicz for insubordination was made by
Frank Underwood, seconded by Evelyn Ballinger.
During further discussion, Mr. Gazarkiewicz stated that
the Town would be “hearing from his attorney” if he is
terminated. The motion carried 4-1, with Kevin William-
No. 03-2775 23
son opposed.
We give these meeting minutes substantial weight; they are
contemporaneous, official notations regarding council
action. See Brademas v. St. Joseph County Comm’rs, 621 N.E.2d
1133, 1137 (Ind. Ct. App. 1993) (“Boards and commissions
speak or act officially only through the minutes and records
made at duly organized meetings.”). Furthermore, they are
more reliable than post hoc justifications given by the
council members in deposition testimony once they are
aware they are being sued. Cf. Highway J Citizens Group v.
Mineta, 349 F.3d 938, 958 (7th Cir. 2003) (“The purpose of
confining judicial review to the administrative record is to
ensure that agencies adequately evaluate their proposed
course of action before they act and do not simply attempt to
justify rash, uniformed actions through post hoc rationaliza-
tions once they are aware they are being sued” (internal
quotations and citations omitted)).
The burden now shifts to the defendants “to prove by a
preponderance of the evidence that [Mr. Gazarkiewicz]
would have been terminated regardless of his protected
speech.” Vukadinovich, 278 F.3d at 699. The defendants
6
argue, and the district court found, that Mr. Gazarkiewicz
6
The district court held: “Plaintiff’s motion failed to address”
this portion of the First Amendment analysis; therefore, “[u]nder
N.D.L.R. 56.1(b) this Court accordingly accepts the facts as
provided by Defendants on these matters.” R.47 at 15 n.3. At the
time of the district court’s disposition, the Northern District of
Indiana’s Local Rule 56.1(b) stated: “[T]he court will assume that
the facts as claimed and supported by admissible evidence by the
moving party are admitted to exist without controversy, except
to the extent that such facts are controverted in the ‘Statement of
Genuine Issues’ filed.” Mr. Gazarkiewicz’s summary judgment
(continued...)
24 No. 03-2775
was fired for insubordination and/or for his poor work
performance. As to insubordination, we find ample record
evidence to support the proposition that Mr. Gazarkiewicz
was fired for “insubordination.” Indeed, the meeting
minutes cite “insubordination” as the reason for his dis-
charge. However, the minutes, as well as the deposition
7
testimony, make clear that Mr. Gazarkiewicz’s speech—the
6
(...continued)
memorandum does not have a section specifically addressing the
last two prongs of the retaliation analysis. However, Mr.
Gazarkiewicz specifically stated in his “Statement of Material
Facts,” which we construe to be the same as the “Statement of
Genuine Issues” contemplated by N.D. Ind. Local R. 56.1(b), that
his “employment was terminated for alleged insubordination
because he did not follow th[e] directive.” Plaintiff’s Rule 56.1(b)
Statement ¶ 3. It continues: “The charge of insubordination was
based on his willful assistance to another Town resident in the
preparation and dissemination of a Flier critical of the Superin-
tendent and the Council.” Id. ¶ 4. He supported these contentions
with multiple citations to the record. Moreover, the district court
had before it the minutes from the November 28, 2001 meeting,
as well as the other circumstantial evidence, which, taken
together, conclusively establishes that Mr. Gazarkiewicz was
fired, in substantial part, due to the flyer. Indeed, the district
court noted earlier in its opinion that Mr. Gazarkiewicz’s
“termination for insubordination was triggered by his involve-
ment with the flyer regardless of whether Plaintiff composed the
flyer or was merely Reese’s instrument in drafting the docu-
ment.” R.47 at 9.
7
For example, the defendants rely on the testimony of council
member Harry Morrison. A critical portion of his testimony
reads:
Q:—is that what you’re saying? What do you see as the
(continued...)
No. 03-2775 25
flyer—was a major part of that “insubordination.” The
defendants attempt to cast his insubordination as less about
the flyer and more about a “bad attitude” or a “grudge”
against Mr. Harmon. However, much of the testimony they
rely on again equates a “bad attitude” with Mr.
Gazarkiewicz’s protected speech. See, e.g., Underwood Dep.
at 21 (“[T]his happened roughly about one to two weeks
right after that meeting. And I—I made up my mind that,
you know, John Gazarkiewicz should be terminated . . . to
me it was like defiance, like he didn’t want to cooperate.”).
Other parts of the testimony on which the defendants rely
equates a “bad attitude” with Mr. Gazarkiewicz’s unobjec-
7
(...continued)
insubordination?
A: He didn’t follow the chain of command. There was a
complaint that he had which should have been aired out at
the meeting.
Q: And the complaint being the issues that are in the flyer?
A: Right . . . .
Morrison Dep. at 23-24. We note that the form or manner of Mr.
Gazarkiewicz’s speech—posting a flyer at a local grocery store
without going through the internal structure—is just as much a
part of his protected “speech” as the content of that “speech.”
That is why we conduct the inquiry into whether speech ad-
dresses a matter of public concern with a consideration of the
“content, form, and context of [the speech], as revealed by the
whole record.” Connick v. Myers, 461 U.S. 138, 147-48
(1983)(emphasis added). That is also why, when balancing the
parties’ respective interests, we take account of the “context” and
“time, place and manner” of the speech. Greer v. Amesqua, 212
F.3d 358, 371 (7th Cir. 2000). Therefore, to the extent Mr.
Gazarkiewicz was fired for not just the content but also the form
and manner of his speech, he still was fired for his constitution-
ally protected speech.
26 No. 03-2775
tionable posture of standing on his rights at the council
meeting in which he was fired and not being sufficiently
apologetic for his protected speech. See Morrison Dep. at 24
(noting that he met with Mr. Gazarkiewicz personally and
Mr. Gazarkiewicz stated that he didn’t have a problem with
the Council but “acted like he still had issues with Mr.
Harmon and all”). To the extent the defendants imply that
prior instances of bad attitude led to his firing, their eviden-
tiary support of such prior instances is not strong. Regard-
less, the record as a whole leads to the unmistakable
conclusion that the “insubordination” for which Mr.
Gazarkiewicz was fired relates primarily to the flyer
“incident”; any concerns of a prior “bad attitude” were
8
secondary. See Ballinger Dep. at 25.
As to poor job performance, we agree with the district
court that the instances of poor job performance in the
record “afford[ed] Defendants numerous reasons to termi-
nate Plaintiff apart from his speech.” R.47 at 15 (citing
Gazarkiewicz Dep. at 17; Harmon Dep. at 33, 35; Willis Dep.
at 13). However, the question is not whether Mr.
8
To support this argument, the defendants advance the conten-
tion that “[i]n his deposition, Gazarkiewicz claims that the Town
Council had not even read the flyer at the time they decided to
terminate his employment. [citing Gazarkiewicz Dep. at 42]. The
contents of the flyer were not even at issue.” Appellees’ Br. at 19.
Mr. Gazarkiewicz’s testimony actually states that “at the meet-
ing” the council members “[t]alked about the letter, [but] they
never read it though, all they read was the apology one.”
Gazarkiewicz Dep. at 42. Further, the meeting minutes and other
deposition testimony conclusively reveal that the Council was
aware of the flyer’s contents, and the manner of its posting, and
were acting on the flyer at the meeting in which Mr.
Gazarkiewicz was fired. See Harmon Dep. at 27 (“I sent a copy [of
the flyer] to the council. The council all received a copy of it.”).
No. 03-2775 27
Gazarkiewicz could have been discharged for his job perfor-
mance, but it is whether he was in fact discharged for his job
performance. The issue is one of causation, not of hypotheti-
cal justification. See Vukadinovich, 278 F.3d at 699. The
overwhelming weight of the evidence supports the determi-
nation that Mr. Gazarkiewicz’s termination had very little to
do with job performance and everything to do with his
speech. The minutes, which, again, we accord great weight,
are silent regarding his job performance. The deposition
testimony also does not advance the defendants’ position;
one council member said she cannot remember being
informed of any of Mr. Gazarkiewicz’s prior poor work
conduct. See Ballinger Dep. at 25. Finally, we cannot ignore
that Mr. Gazarkiewicz’s discharge took place contemporane-
ously with his speech, not any instances of poor job perfor-
mance.
Because of this evidence, we must conclude that the
defendants have not met their burden of proving “by a
preponderance of the evidence that [Mr. Gazarkiewicz]
would have been terminated regardless of his protected
speech.” Vukadinovich, 278 F.3d at 699. Even if they had, the
same evidence discussed above would compel us to con-
clude that Mr. Gazarkiewicz had met his burden of showing
that the “defendants’ proffered reasons were pretextual.” Id.
Mr. Gazarkiewicz collaborated with his fellow citizen in
producing a flyer that constituted constitutionally protected
speech. He was then fired for that speech. Because his First
Amendment rights were violated, we must reverse the
judgment of the district court on Mr. Gazarkiewicz’s First
Amendment retaliation claim.
28 No. 03-2775
C. Vacation Pay (Count VI)
The only other question that requires our disposition on
this appeal concerns Mr. Gazarkiewicz’s claim for vacation
pay, which he alleges he earned during his employment but
which the Town refused to pay to him after his discharge.
The district court determined that Mr. Gazarkiewicz was not
entitled to vacation pay. We agree.
Recent Indiana cases interpreting Ind. Code § 22-2-5-1,
9
Indiana’s “Wage Payment Statute,” clarify that an em-
ployee is entitled to vacation pay upon termination only if
his right to vacation pay had vested at the time of his
termination. See Indiana Heart Assocs., P.C. v. Bahamonde, 714
9
The Indiana Court of Appeals court recently explained:
Indiana Code § 22-2-5-1, sometimes referred to as the Wage
Payment Statute, contains three distinct regulations: “(1)
employee’s wages must be paid in money; (2) if requested,
employers must pay employees semi-monthly or bi-weekly;
and (3) employees, upon separation from employment, must be
paid the amount due them at their next and usual payday (unless
their whereabouts are unknown).” Huff v. Biomet, Inc., 654
N.E.2d 830, 835 (Ind. Ct. App. 1995) (footnote omitted,
emphasis added).
Indiana Heart Assocs., P.C. v. Bahamonde, 714 N.E.2d 309, 311-12
(Ind. Ct. App. 1999); see also Ind. Code § 22-2-4-4 (“Every corpora-
tion, limited liability company, company, association, firm, or
person who shall fail for ten (10) days after demand of payment
has been made to pay employees for their labor, in conformity
with the provisions of this chapter, shall be liable to such
employee for the full value of his labor, to which shall be added
a penalty of one dollar ($1) for each succeeding day, not exceed-
ing double the amount of wages due, and a reasonable attorney’s
fee, to be recovered in a civil action and collectable without
relief.”).
No. 03-2775 29
N.E.2d 309, 311-12 (Ind. Ct. App. 1999). These cases further
make clear that the right to vacation pay vests upon labor in
absence of an employer policy, but if the employer has a
policy, that policy governs when an employee’s right vests.
For example, in Damon Corp. v. Estes, 750 N.E.2d 891 (Ind.
Ct. App. 2001), the court noted that the corporation’s policy
stated that “an employee does not earn vacation pay each
year until his/her anniversary date” and concluded “[the
plaintiff] was therefore not entitled to his vacation pay from
Damon at his termination some three months prior to his
anniversary date.” Id. at 893 (citation and footnote omitted);
see also Indiana Heart Assocs., 714 N.E.2d at 311-12 (“An
employee’s right to vacation pay under the [Wage Payment
Statute] is not absolute. Rather, an employee is entitled to
her accrued vacation pay at the time of termination ‘pro-
vided no agreement or published policy exist[s] to the
contrary.’ ” (quoting Die & Mold, Inc. v. Western, 448 N.E.2d
44, 48 (Ind. Ct. App. 1983))); id. at 312-13 (“[I]n denying an
employee accrued vacation pay to which the employee would
otherwise be entitled on grounds that a written policy so
provides, the employer has the burden of showing a
violation of the policy.” (emphasis added)).
Under Town of Kingsford Heights, Ind., Ordinance 2-16-
020, Mr. Gazarkiewicz was not entitled to vacation pay at
the time of his termination. The Ordinance explains:
Vacation Time: All full-time personnel are eligible
for paid vacation time according to the following
schedule:
One full year of continuous service Five (5) days
Three full years of continuous service Ten (10) days
Ten full years of continuous service Fifteen (15) days
The hiring date is used for determining eligibility.
All vacations must be taken within the applicable
30 No. 03-2775
calendar year and cannot be accrued.
If a full-time employee does not have one complete
year of service completed as of January 1st of any given
year, (s)he will be eligible for one paid vacation day for
each ten (10) weeks of employment completed. These
vacation days can be used after his/her anniversary
date and must be used before the end of the applicable
calendar year and cannot be accrued.
Mr. Gazarkiewicz was hired on or about May 13, 2001, and
fired on November 28, 2001. Thus, at the time of his dis-
charge, he had not performed a year of continuous service
from the date of his hire nor had he worked past January 1.
Mr. Gazarkiewicz argues that this Ordinance merely
purports to govern vacation time that an employee may
take, and is silent on vacation pay; therefore, the background
rule that an employee earns vacation pay upon his labor
applies. However, a more natural reading of that Ordinance
is that it is intended to cover both. Mr. Gazarkiewicz’s
suggested vacation time versus vacation pay distinction is
illogical for the purposes for which he is advancing it: Why
would an employee be eligible for vacation pay when he is
not eligible for “paid vacation time”? See Veprinsky v. Fluor
Daniel, Inc., 87 F.3d 881, 888 (7th Cir. 1996) (explaining that
statutes should be construed so as to avoid absurd results).
In sum, we hold that, at the time of his discharge, Mr.
Gazarkiewicz was not entitled to vacation pay, and there-
fore, his state-law claim for vacation pay must fail.
No. 03-2775 31
Conclusion
For the foregoing reasons, we reverse the district court’s
grant of summary judgment in favor of the defendants on
Mr. Gazarkiewicz’s First Amendment retaliation claim. The
district court shall enter summary judgment in Mr.
Gazarkiewicz’s favor on this claim. We affirm the district
court’s judgment on Mr. Gazarkiewicz’s state-law vacation
pay claim. We remand for proceedings consistent with this
opinion. Mr. Gazarkiewicz may recover his costs in this
court.
AFFIRMED IN PART; REVERSED
and REMANDED IN PART
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-8-04