Donald Olendzki v. Neil Rossi

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1340
DONALD OLENDZKI,
Plaintiff-Appellant,
v.
NEIL ROSSI, Assistant Warden of Jack-
sonville Correctional Center, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:08-cv-03196-RM-BGC — Richard Mills, Judge.
ARGUED DECEMBER 12, 2013 — DECIDED AUGUST 29, 2014
Before BAUER, CUDAHY, and POSNER, Circuit Judges.
BAUER, Circuit Judge. Donald Olendzki is a psychologist
at an Illinois state prison. After he was elected to his union’s
Executive Board, Olendzki began to advocate on behalf of his
fellow union members and to voice his concerns to the
management staff at the prison. Olendzki believes that this
advocacy led to hostile relationships with his superiors and
caused them to retaliate against him. So Olendzki sued six of
2 No. 12-1340
his superiors under 42 U.S.C. § 1983, claiming that they
retaliated against him for his union advocacy, a violation of his
First Amendment rights. The defendants moved for summary
judgment and the district court granted their motion. We
affirm.
I. BACKGROUND
Olendzki joined the Illinois Department of Corrections in
1989 as a psychologist in the healthcare unit at the Jacksonville
Correctional Center (“JCC”). He provided mental health
services to inmates and advised his superiors about how best
to operate the healthcare unit. His job duties also required him
to maintain health and safety standards and report unusual
incidents to his superiors.
Throughout his employment, Olendzki was also a member
of the American Federation of State, County, and Municipal
Employees (“the union”). In April 2004, Olendzki was elected
to the union’s Executive Board. Until this time, Olendzki
enjoyed an amicable working relationship with his superiors.
Olendzki took his appointment as a union official seriously.
He regularly attended labor management meetings and served
on the Health and Safety Committee (“HSC”), which held
separate meetings related to the union. At both types of union
meetings, Olendzki frequently raised ongoing complaints
common to him and other union members. For example,
Olendzki commented at both the labor management and the
HSC meetings that mentally ill inmates were creating a
“dangerous condition” for staff at JCC. In February 2008,
Olendzki voiced his concern that a “dangerous dental tool”
went missing and that the tool posed a safety risk to JCC staff.
No. 12-1340 3
Olendzki made comments similar in nature at these meetings
from April 2004 until January 2010, at which point Olendzki
took a voluntary medical leave of absence.
The six defendants in this case were all, at one time or
another, employed in a managerial role above Olendzki. Becky
Sudbrink was the Health Care Unit Administrator at JCC and
Olendzki’s direct supervisor from 2005 to November 2006;
Neil Rossi was the Assistant Warden of Programs at JCC and
Olendzki’s direct supervisor from November 2006 on; Terry
Polk became the Warden of JCC in December 2005; Jennifer
Stoudt succeeded Polk as the Warden in January 2008; Richard
Pillow was the Assistant Warden of Operations and was the
Acting Warden between Polk’s and Stoudt’s tenures; Richard
Orr1 was Deputy Director of the Illinois Department of Correc-
tions. We refer to the defendants collectively as JCC manage-
ment throughout this opinion, unless a specific actor is
important.
There is a voluminous record in this case because Olendzki
claims not only that the defendants retaliated against him for
the statements he made at the union meetings between 2004
and 2010, but also for statements he made concerning the
union during his workday. Olendzki expressed many of his
complaints directly to JCC management. Olendzki’s com-
plaints typically involved three main areas: JCC employees’
non-compliance with the collective bargaining agreement,
unfavorable work conditions, and JCC management’s labor
1
The district court dismissed all of Olendzki’s claims against Richard Orr.
Olendzki does not appeal the dismissal.
4 No. 12-1340
decisions. We provide only a few specific examples, for the
sake of brevity.
Olendzki believed that Sudbrink routinely ordered JCC
employees to complete work that was actually contracted to
the employees of a private company, a breach of the collective
bargaining agreement. He thought that as a union official, it
was his responsibility to ensure that the terms of the collective
bargaining agreement were followed by everyone employed
by the Illinois Department of Corrections. He persistently
voiced his concerns directly to Sudbrink. When Sudbrink did
not change her behavior, Olendzki spoke out about non-
compliance with the collective bargaining agreement at union
meetings. Warden Polk attended and participated in the union
meetings. Sometime in the fall of 2007, Olendzki accused
Warden Polk of not correcting Sudbrink’s routine violations of
the collective bargaining agreement. Olendzki’s accusation
angered Polk, but the two were able to meet privately and
discuss the matter further.
Regarding the working conditions at JCC, Olendzki
complained about the workplace environment of JCC employ-
ees, the location where he saw inmates, and the type of work
he did. For example, Olendzki told Sudbrink that two employ-
ees were working in a room which was not properly ventilated
and suggested that a microwave oven and a coffee machine in
that room be relocated. Olendzki also resisted Rossi’s decision
to move Olendzki’s office from the healthcare unit to a confer-
ence room that offered him less security protection; a few
months later, Rossi moved Olendzki’s office back into the
healthcare unit. He also griped about a new program called the
telepsychiatry program; he told Assistant Warden Pillow that
No. 12-1340 5
he would follow Pillow’s order to implement the new program
but would also file a grievance because he was assigned work
which was not within the scope of work that was to be per-
formed by state employees.
Olendzki also contested JCC management’s labor decisions.
For example, when he represented his co-worker Missy Utter
in a employee disciplinary meeting with Polk, Rossi, and
Sudbrink, he “pointed out that Sudbrink had taken Utter’s
final paycheck and, instead of delivering it to her, [Sudbrink]
returned it to the home office of Wexford in Pennsylvania.
[Olendzki] suggested that this was evidence of some vindic-
tiveness on behalf of Sudbrink toward Utter.” Needless to say,
Olendzki’s opinions did not always mesh with the opinions of
his superiors.
Olendzki asserts that his relationships with JCC manage-
ment deteriorated when he began advocating for the interests
of union members at work. On September 10, 2008, Olendzki
filed a lawsuit under 42 U.S.C. § 1983 against JCC manage-
ment. He contended that they violated his First Amendment
rights of free speech and association when they retaliated
against him for speaking out on behalf of union members. He
claimed that the following acts constituted retaliation: (1) Polk
requested, and Orr approved, that Olendzki be removed from
the NEMAT team2, a position Olendzki revered; (2) Stoudt
ordered him to meet with mentally ill inmates without guard
supervision in the same room; (3) Rossi’s relocations of his
2
The NEMAT team was a select group of employees who responded to
hostage crises at Illinois correctional facilities.
6 No. 12-1340
office were inconvenient; (4) Rossi increased his workload; (5)
Sudbrink filed a harassment claim against him; (6) Stoudt did
not provide a written justification to Olendzki’s request for
advance leave time, which resulted in the denial of the request;
and (7) Pillow revised institutional directives that affected
Olendzki’s job duties without Olendzki’s input. Olendzki,
however, was never fired, disciplined, or denied an employ-
ment opportunity.
JCC management raised numerous defenses in response to
Olendzki’s complaint and moved for summary judgment.
They argued that: (1) Olendzki’s claims before September 10,
2006, were barred by the two-year statute of limitations; (2)
Olendzki’s speech was made pursuant to his job duties, thus,
not entitled to First Amendment protection; (3) JCC manage-
ment’s actions could not be considered retaliatory; (4) Olendzki
failed to establish a nexus between his alleged protected speech
and the defendants’ alleged retaliation; (5) the defendants had
sufficient reasons to justify the alleged retaliation; and (6) the
defendants are entitled to qualified immunity.
After a thorough review of the record, the district court
granted JCC management’s summary judgment motion on all
claims. The court ruled that some of Olendzki’s retaliation
claims were time-barred, some of JCC management’s actions
were not severe enough to be considered retaliatory, and JCC
management was entitled to qualified immunity on Olendzki’s
remaining claims.
No. 12-1340 7
II. DISCUSSION
At the summary judgment stage of litigation, the court
construes all facts in favor of the nonmoving party, in this case
Olendzki. Springer v. Durflinger, 518 F.3d 479, 484–85 (7th Cir.
2008). However, it is proper for the court to grant a motion for
summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A party asserting that a fact is genuinely disputed must
support its assertion with particular materials in the record.
Fed. R. Civ. P. 56(c). “The court need consider only the cited
materials, but it may consider other materials in the record.”
Fed. R. Civ. P. 56(c)(3). We review the district court’s grant of
summary judgment de novo. Bivens v. Trent, 591 F.3d 555, 559
(7th Cir. 2010).
The First Amendment “was fashioned to assure unfettered
interchange of ideas for the bringing about of political and
social changes desired by the people.” Roth v. United States, 354
U.S. 476, 484 (1957). Public employees do not renounce
their First Amendment rights upon employment, however,
“the government’s countervailing interest in controlling the
operation of its workplace” limits the First Amendment’s
liberal protection. Lane v. Franks, 134 S. Ct. 2369, 2377 (2014)
(citing Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205 Will
County, 391 U.S. 563, 568 (1968)). When reviewing a public
employee’s speech, the court must first “determin[e] whether
the employee spoke as a citizen on a matter of public concern.
If the answer is no, the employee has no First Amendment
cause of action based on his or her employer’s reaction to the
speech. If the answer is yes, then the possibility of a First
8 No. 12-1340
Amendment claim arises.” Garcetti v. Ceballos, 547 U.S. 410, 418
(citations omitted). If the court finds that the employee spoke
as a citizen on a matter of public concern, then the court must
strike “a balance between the interests of [the public employee]
in commenting upon matters of public concern and the interest
of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees.” Pickering,
391 U.S. at 568.
Accordingly, we must first determine whether Olendzki
spoke as a citizen on a matter of public concern; if we find that
he did not, he cannot prevail. Olendzki argues that every time
he spoke out about matters that involved the union, he acted
in his capacity as a union official, and was speaking as a citizen
for First Amendment purposes.
The Garcetti Court created the hard rule that “when public
employees make statements pursuant to their official duties,
the employees are not speaking as citizens for First Amend-
ment purposes, and the Constitution does not insulate their
communications from employer discipline.” 547 U.S. at 421.
The distinction is important because “while the First Amend-
ment invests public employees with certain rights, it does not
empower them to ‘constitutionalize the employee grievance.’”
Id. at 420 (quoting Connick v. Myers, 461 U.S. 138, 154 (1983)).
Our circuit has consistently held that when a public
employee speaks in his capacity as a union official, his speech
is not within the purview of his “official duties.” See, e.g., Fuerst
v. Clarke, 454 F.3d 770, 774 (7th Cir. 2006) (the First Amend-
ment protected a union president’s public criticism of an
elected politician because he spoke in his capacity as a union
No. 12-1340 9
representative, not as a public employee); Nagle v. Village of
Calumet Park, 554 F.3d 1106, 1124 (7th Cir. 2009) (a union
officer’s statements at a labor management meeting were made
in his capacity as a union representative, not pursuant to his
official duties); Graber v. Clarke, Case No. 13-2165, 2014 WL
4058976, at *5 (7th Cir. Aug. 18, 2014) (when the union presi-
dent directed the union vice president to follow a formal
grievance process and speak to management on behalf of
union members the vice president spoke as a citizen, not as a
public employee). However, a union official’s communication
is not per se protected by the First Amendment and communi-
cation that the union does not sanction is not insulated from
employer discipline. Id. at *7 (a union vice president’s com-
ments to a co-worker in passing were not entitled to First
Amendment protection).
When making a factual assertion, “it is counsel’s responsi-
bility to point it out” in the record. Rabin v. Flynn, 725 F.3d 628,
635 (7th Cir. 2013). However, neither in the briefs nor at oral
argument, did Olendzki’s counsel point out or quote any
particular statements that Olendzki made in his capacity as
a union official. In Olendzki’s brief, counsel quoted statements
that JCC management said to Olendzki, but never quoted
anything that Olendzki said himself. Instead, we rely on
Olendzki’s Declaration submitted in opposition to
JCC management’s motion for summary judgment to search
for any instances when Olendzki spoke as a citizen for First
Amendment purposes.
We find that Olendzki’s representation of union member
Missy Utter during the disciplinary meeting qualifies as an
activity sanctioned by the union and falls outside the purview
10 No. 12-1340
of his official duties as a psychologist. Thus, Olendzki acted in
his capacity as a union official, not a public employee, in this
context. However, Olendzki’s statements during the disciplin-
ary meeting were clearly an employee grievance, speech that
the First Amendment does not protect. Garcetti, 547 U.S. at 420.
It is clear from the record that Olendzki functioned outside
of Garcetti strictures and spoke as a citizen in two other forums,
the HSC meetings and the labor management meetings.
Regular attendance at these meetings was a condition of his
appointment as a union official and these forums were
sanctioned by the union as a venue to allow Olendzki to voice
concerns on behalf of its members. Therefore, his statements
during these meetings may be entitled to First Amendment
protection. Having identified the instances when Olendzki
spoke as a citizen, we then turn to whether his speech during
the union meetings addressed a matter of public concern.
Olendzki argues that his speech touched upon a matter of
public concern anytime the subject matter involved safety and
sanitation issues at JCC, non-compliance with the union’s
collective bargaining agreement, and inadequate security for
JCC employees. We find Olendzki’s argument unpersuasive.
To establish that his speech is protected by the First
Amendment, Olendzki still needs to establish that he spoke on
a matter of public concern—a topic related to “political, social,
or other concern to the community.” Connick, 461 U.S. at 146.
“Whether an employee’s speech addresses a matter of public
concern must be determined by the content, form, and context
of a given statement.” Connick, 461 U.S. at 147–48. “[S]imply
because speech relates to prisons does not automatically render
No. 12-1340 11
it a matter of public concern,” Spiegla v. Hull, 371 F.3d 928, 936
(7th Cir. 2004) (Spiegla I). “[S]ubject matter alone does not
convey constitutional protection.” Nagle, 554 F.3d at 1123. “We
must instead delve deeper into the precise content, form, and
context of speech that admittedly may be of some interest to
the public.” Cliff v. Bd. of Sch. Comm’rs of City of Indianapolis, 42
F.3d 403, 410 (7th Cir. 1994) (emphasis added).
In Nagle, the plaintiff, a police officer and union vice
president, sued his superiors and co-workers claiming that
they retaliated against him after he spoke out at a labor
meeting. 554 F.3d at 1111. We held that the plaintiff acted
outside his official duties during a labor management meeting
when he made statements about the police manpower
necessary to keep the community safe. Id. at 1123. We denied
him relief, however, because it was unclear from the record
whether any of the plaintiff’s statements were constitutionally
protected speech. Id. at 1124. We explained that the plaintiff’s
statements could have qualified as a matter of public concern
but that he failed to “identify any specific statements that were
made at the meeting.” Id. at 1123. Therefore, summary judg-
ment in favor of the defendants was appropriate. Id. Our
decision in Nagle forecloses Olendzki’s claim that he engaged
in constitutionally protected speech.
Here, we have scoured the record but found nothing to
identify Olendzki’s precise statements at the relevant HSC and
labor management meetings. Olendzki noted that the HSC had
minutes prepared for each of its meetings. However, the only
meeting minutes Olendzki provided were from a single
HSC meeting on October 14, 2009. And, Olendzki does not
claim that he made any constitutionally protected statements
12 No. 12-1340
in that meeting. It is peculiar that, despite the availability of the
meeting minutes, Olendzki did not provide any for the HSC
meetings at issue. Olendzki did not provide minutes or
identify specific statements he made at any of the labor
management meetings either. Throughout Olendzki’s declara-
tion he only describes the subject matter of his speech; the
context is apparent, but he does not include its precise content
or form.
Without Olendzki’s identification of his precise statements,
the court has no way to know what he actually said. While it is
possible that his statements warrant protection, it is also
possible that his speech simply addressed his job duties, were
general grievances, raised only his own private interests, or
were fighting words—none of which are entitled to First
Amendment protection. Many of the matters Olendzki raised
at the union meetings, like his concern about the dangers
presented by mentally ill patients or the missing dental tool,
appear to fall squarely within his job duty to operate the
healthcare unit as the prison’s psychologist. Olendzki also
spoke out about the collective bargaining agreement at the
meetings, such as repeating requests to bargain over the
implementation of the telepsychiatry program; these state-
ments appear to be general grievances or they only affect
Olendzki personally. At the summary judgment stage of a
proceeding, a plaintiff must “put up or shut up” and “show
what evidence [he] has that would convince a trier of fact to
accept [his] version of events.” Steen v. Myers, 486 F.3d 1017,
1022 (7th Cir. 2007). Olendzki failed to include enough evi-
dence to convince a trier of fact that his comments at the union
meetings addressed a matter of public concern.
No. 12-1340 13
The remainder of the record is filled with instances when
Olendzki spoke as an employee. A public employee’s com-
plaints “made directly up the chain of command to his supervi-
sors are not protected under the First Amendment.” Bivens, 591
F.3d at 560. Olendzki’s complaints to JCC management about
the collective bargaining agreement, work conditions, and
labor decisions were nothing more than employee grievances
not entitled to First Amendment protection. “If every facet of
internal operations within a government agency were of public
concern, and therefore any employee complaint or comment on
such matters constitutionally protected, no escape from judicial
oversight of every governmental activity down to the smallest
minutia would be possible.” Kuchenreuther v. City of Milwaukee,
221 F.3d 967, 974 (7th Cir. 2000).
Because Olendzki did not establish that he engaged in
constitutionally protected speech, we do not reach the addi-
tional elements needed to prove a prima facie case. Further-
more, we need not address JCC management’s qualified
immunity defense.
III. CONCLUSION
In summary, the evidence in the record is insufficient to
allow a jury to find in favor of Olendzki. He did not establish
that the First Amendment protected his speech. Therefore, the
defendants are entitled to judgment as a matter of law. We
AFFIRM.