Carreon, Evelyn v. IL Dept Human Servic

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4117
EVELYN CARREON, R.N., NASSER DIAB,
R.N., AGNES HAYES, R.N., et al.,
Plaintiffs-Appellants,
v.
ILLINOIS DEPARTMENT OF HUMAN
SERVICES, HOWARD PETERS, former
Director of the IDHS, LINDA R. BAKER,
Director of the IDHS, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 00 C 5538—William T. Hart, Judge.
____________
ARGUED SEPTEMBER 24, 2004—DECIDED JANUARY 21, 2005
____________
Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,
Circuit Judges.
FLAUM, Chief Judge. Plaintiffs-appellants are seven cur-
rent and former employees of a mental health facility run
by the Illinois Department of Human Services (“IDHS”).
2 No. 03-4117
Plaintiffs allege that they were fired, suspended, or other-
wise reprimanded in retaliation for speaking out on matters
of public concern in violation of the First and Fourteenth
Amendments to the United States Constitution. Plaintiffs
filed this action under 42 U.S.C. § 1983 against the IDHS,
its secretary, and members of the hospital’s management.
The district court granted summary judgment in favor of all
defendants on all claims, and plaintiffs appealed. For the
reasons stated herein, we affirm.
I. Background
The Madden Mental Health Center (“Madden Center”) is
a mental health facility operated by the IDHS just west of
Chicago in Hines, Illinois. The Center is staffed twenty-four
hours per day, and many of its patients have difficult be-
havioral issues. Plaintiffs are three Madden Center nurses
(Evelyn Carreon, Ruth Loveless, and Ronald Simmons), three
former nurses (Nasser Diab, Agnes Hayes, and Joseph
Mungai), and one former housekeeper (Henry Taylor).
Plaintiffs filed this First Amendment retaliation suit under
§ 1983, naming as defendants the IDHS, IDHS secretary
Linda Baker, Madden Center hospital administrator Patricia
Madden, director of personnel and human resources Suzanne
Varso, and former Madden Center facilities director Ugo
Formigoni. Because most of plaintiffs’ claims rely upon a
common legal theory, we will first discuss the legal frame-
work applicable to that theory, and then apply the law to
the facts of each claim.
II. Discussion
Summary judgment is appropriate “if the pleadings, dep-
ositions, 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 the moving party
No. 03-4117 3
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). “In evaluating the district court’s decision, we ‘must
construe all facts in the light most favorable to the non-
moving party and draw all reasonable and justifiable infer-
ences in favor of that party.’ ” Morfin v. City of East Chicago,
349 F.3d 989, 996-97 (7th Cir. 2003) (quoting Conley v.
Village of Bedford Park, 215 F.3d 703, 708 (7th Cir. 2000)).
We review the district court’s grant of summary judgment
de novo. Id. at 996.
Plaintiffs allege that the IDHS and the Madden Center
management retaliated against them for exercising their
First Amendment rights. While the government enjoys
greater latitude in regulating the speech of its employees
than that of the general public, a citizen does not surrender
all First Amendment protection by accepting a job with a
governmental entity. Pickering v. Bd. of Educ. of Township
High Sch. Dist. 205, 391 U.S. 563, 568 (1968). A governmen-
tal employee may establish a prima facie case of First
Amendment retaliation by showing that the speech in ques-
tion: (i) is constitutionally protected; and (ii) “played a sub-
stantial or motivating factor” in the employer’s decision to
retaliate against the plaintiff. Gustafson v. Jones, 290 F.3d
895, 906 (7th Cir. 2002). If the plaintiff establishes these
elements, the burden shifts to the defendant to prove by a
preponderance of the evidence that it would have taken the
same action in the absence of the protected speech. Id.The court applies a two-part analysis to determine whether
the speech is constitutionally protected. Sullivan v. Ramirez,
360 F.3d 692, 698 (7th Cir. 2004); see also Connick v. Myers,
461 U.S. 138 (1983); Pickering, 391 U.S. at 568. First, the
speech is protected only if it addressed a matter of public
concern. Sullivan, 360 F.3d at 698. This depends upon “the
content, form, and context of [the speech] as revealed by the
whole record.” Id. (quoting Gustafson, 290 F.3d at 906-07).
Of these considerations, content is the most important. Id.“The ‘public concern’ element must relate to a community
4 No. 03-4117
concern and is not satisfied by ‘merely a personal grievance
of interest only to the employee.’ ” Id. (quoting Gustafson,
290 F.3d at 907). “At bottom, we must decide whether the
speech is most accurately characterized as an employee
grievance, or as a matter of political, social, or other concern
to the community.” Cygan v. Wis. Dep’t of Corr., 388 F.3d
1092, 1099 (7th Cir. 2004).
Second, even if the employee spoke on a matter of public
concern, the government may “restrict the speech if it can
carry its burden of proving that the interest of the public
employee as a citizen in commenting on the matter is out-
weighed by the interest of the state, as employer, in pro-
moting effective and efficient public service.” Gustafson, 290
F.3d at 909. The court performs this balancing only if the
employee’s speech touches on a matter of public concern. San
Diego v. Roe, 125 S. Ct. 521, 525 (2004). Whether speech is
constitutionally protected under this two-part test is a
question of law for the court. Sullivan, 360 F.3d at 698, 701.
A. Evelyn Carreon
The Madden Center hospitalizes patients with mental
health problems, many of whom act violently. The patients
and staff are divided into several “pavilions.” In some in-
stances these divisions track the health needs and relative
dangerousness of the patients.
Evelyn Carreon was hired by the IDHS in 1983, and has
worked at the Madden Center as a supervising charge nurse
since February 1, 1994. In 1999, Carreon was assigned to
work in pavilion 2, caring for patients with mental, physical,
and emotional problems. In July of that year, the admin-
istration notified Carreon that it intended to transfer her to
an intensive care pavilion (“ICP”) then under construction.
The Madden Center planned to hospitalize its patients most
prone to commit violent acts in the ICP. Carreon had been
attacked by a patient in the past, and feared that the
No. 03-4117 5
transfer would subject her to an increased likelihood of sim-
ilar attacks. She lodged oral and written objections to the
transfer. Despite her protestations, on August 16, 1999, the
administration confirmed by letter that it would transfer
Carreon to the ICP that fall. The ICP never opened, how-
ever, and Carreon remained in her position at pavilion 2.
Sometime after being notified of the possible transfer to
the ICP, Carreon became involved in union activities, soli-
citing nurses to support the Teamsters Union rather than
the Illinois Nurses Association. In March or April of 2000,
Carreon attempted to meet with a union representative at
the Madden Center during her lunch hour. According to
Carreon, unidentified members of the “administration” ord-
ered the union representative to leave the premises.
In January of 2002, Carreon was advised again that she
would be transferred, this time from pavilion 2 to pavilion
7. A high proportion of patients in pavilion 7 suffer from de-
velopmental disabilities. Carreon viewed the assignment to
pavilion 7 as more dangerous than pavilion 2, and objected.
Perhaps because of her complaints, the transfer never oc-
curred, and Carreon continues to work in pavilion 2.
Carreon alleges that the defendants wielded the threat of
transfer to a more dangerous pavilion as punishment for her
speech. Carreon identifies two instances of speech that she
claims are protected: (i) her complaints about the 1999
transfer; and (ii) her advocacy in favor of the Teamsters
Union. Neither instance supports a claim of First Amend-
ment retaliation. Plaintiff’s objection to the 1999 transfer
raised a purely personal workplace grievance and is not
protected speech.1 Although Carreon’s union advocacy
1
Moreover, the Madden Center notified Carreon of the contem-
plated 1999 transfer before she complained or took an active role
with the Teamsters Union. Thus, it cannot logically constitute
(continued...)
6 No. 03-4117
might qualify as speech on a matter of public concern, there
is no evidence that any of the individual defendants knew
of her union involvement or played a part in ordering the
union representative to leave the Madden Center. Accord-
ingly, Carreon’s claim fails.
B. Nasser Diab
Nasser Diab began working as a nurse at the Madden
Center on September 13, 1994. The twenty-four-hour nurs-
ing care at the Center is staffed in three shifts. Diab was
assigned to work the 8:00 A.M. to 4:00 P.M. shift, working
hands-on with the Center’s patients. In 1997, Diab requested
that he be allowed to work from 9:00 A.M. until 5:00 P.M. so
that he could drive his daughter to school before coming to
work. He also offered to work through lunch to make up
missed time, and requested in the alternative that he be as-
signed to the night shift. These requests were denied, and
thereafter Diab was chronically late for work. For example,
between September 1, 1999 and September 20, 1999 Diab
arrived to work at least fifty-four minutes late on ten dif-
ferent days. He was tardy by fifty-eight minutes or more on
nine different occasions between September 22, 1999 and
October 3, 1999. Citing his lack of punctuality, the Madden
Center fired Diab effective January 27, 2000.2
1
(...continued)
retaliation.
2
Diab appealed the discharge to the Cook County Circuit Court,
which affirmed the decision. He did not raise a First Amendment
claim in that administrative review. The district court held that
Diab’s claim was therefore barred by res judicata. Defendants
have waived this argument on appeal. Accordingly, we assess the
merits of Diab’s claim.
No. 03-4117 7
Diab claims that he was discharged in retaliation for
speaking out on matters of public concern, not because of
his lack of punctuality. Plaintiff identifies six instances of
speech that he argues are constitutionally protected. First,
Diab cites a pair of conversations that he had with facilities
director Ugo Formigoni sometime in 1995 or 1996 regarding
patients, the work environment, and the theft of Diab’s car.
Diab gives only a vague account of these exchanges, does not
tell us with any certainty when they occurred, and fails to
explain why they might have motivated Formigoni to fire
him.
Second, in 1997, the Madden Center had previously fired
Diab. The reason for the discharge is not clear from the rec-
ord. Diab appealed the termination to the Illinois Civil
Service Commission, which overruled the decision and rein-
stated plaintiff with back pay. In January of 1998, Diab
filed a Title VII suit claiming that the IDHS had fired him
because of his national origin. The district court granted
summary judgment in favor of the IDHS. See Diab v. Ill.
Dep’t of Human Servs., 2003 WL 256887 (N.D. Ill. Feb. 5,
2003). Although his Title VII claim failed, Diab asserts that
the filing of the lawsuit itself constitutes protected speech.
Third, Diab points to a notation he made on a patient’s
chart reflecting the patient’s desire for additional education
and training. Fourth, Diab labels as protected speech a
disagreement he had with a co-worker where he admon-
ished the employee not to yell at a patient. Fifth, plaintiff
asserts that conversations he had with fellow union mem-
bers about fairness, safety, and efficiency in the workplace
qualify as speech on matters of public concern. Sixth, Diab
claims constitutional protection in conversations he had
with director of personnel and human resources Suzanne
Varso about his scheduling problems, patient well-being
and care, and the work environment. Diab does not describe
these discussions in any detail or identify when they took
place.
8 No. 03-4117
Diab’s claim fails because he has provided no evidence
that any of the identified instances of speech motivated
defendants to fire him. There is no indication that defen-
dants were aware of Diab’s Title VII lawsuit, the notation
he placed on the patient’s chart, his disagreement with a co-
worker, or his union activities. Although Diab also points to
two conversations with Formigoni and Varso, plaintiff’s
vague description of the timing and content of these ex-
changes supplies no reason to suspect that the speech led to
his termination.
In addition, much of Diab’s speech is plainly unprotected.
Diab’s notation on a medical chart and his admonishment
of a co-worker on one occasion not to yell at a patient ad-
dress purely internal workplace grievances. And while the
filing of a lawsuit may amount to protected speech, a “pub-
lic employee has no First Amendment claim unless the law-
suit involves a matter of public concern.” Zorzi v. County of
Putnam, 30 F.3d 885, 896 (7th Cir. 1994); see also Yatvin v.
Madison Metro. Sch. Dist., 840 F.2d 412, 419-20 (7th Cir.
1988). Diab’s lawsuit sought to redress only his personal
grievance, was not publicized, and was not designed to
encourage public debate. Plaintiff’s filing of that lawsuit,
therefore, is not protected speech.
Even if Diab could establish a prima facie case, it is clear
that defendants had an adequate nonretaliatory reason to
terminate him. Plaintiff concedes that he was habitually
late to work for a job where twenty-four-hour nursing care
is critical. The district court properly granted summary
judgment in favor of defendants on this claim.
C. Agnes Hayes
Agnes Hayes began working as a nurse at the Madden
Center’s intake unit in 1993. Her duties included interview-
ing and assessing new patients and searching them for con-
traband. Like Diab, Hayes had difficulty arriving to work on
No. 03-4117 9
time. She was orally reprimanded for tardiness in August and
November of 1999, and suspended in November of 1999 and
January of 2000 for her lack of punctuality. The Madden
Center fired her on May 26, 2000, citing her poor atten-
dance record.
Hayes admits that she was late repeatedly for work, but
argues that the true reason she was fired was because she
had spoken out on matters of public concern. Hayes asserts
that her protected speech includes: (i) complaining that the
air vents and window screens in the building were dirty; (ii)
reporting to the director of nursing that Hayes’s supervisor
was doing personal work on the clock; (iii) advising hospital
administrator Patricia Madden that the Center was wasting
its money by purchasing lab coats embroidered with the
names of ex-employees; (iv) telling Formigoni that her office
was too hot; and (v) discussing with Varso plaintiff’s
involvement with the union.
Hayes’s claim lacks merit. Complaints about air vents,
window screens, and office temperature do not address mat-
ters of public concern. Hayes’s reports about the lab coats
and her supervisor’s abuse of time might constitute pro-
tected speech under certain circumstances because they
implicate the misuse of public funds. See Propst v. Bitzer, 39
F.3d 148, 152 (7th Cir. 1994). But plaintiff does not describe
her supervisor’s behavior as so pervasive that it would
substantially impact the public fisc, and did not report the
practice to anyone outside the Madden Center. See Metzger
v. DaRosa, 367 F.3d 699, 702 (7th Cir. 2004). Nor has Hayes
alleged that the lab coat vendor was intentionally defraud-
ing the hospital. Again, plaintiff reported this problem only
internally. Under the circumstances, these complaints do
not touch upon matters of public concern.
While a debate about union activities might merit First
Amendment protection, there is no evidence that Hayes’s
conversations with Varso on this topic led to her termina-
10 No. 03-4117
tion. When Hayes advised Varso that she supported the
Teamsters Union, Varso responded, “[i]t’s your choice.” Hayes
later complained to Varso that her union grievances were
being processed slowly. Varso advised her to discuss the is-
sue with the union. Far from revealing a motive to fire
Hayes, Varso’s responses suggest that she did not care either
way about Hayes’s involvement in the union. Finally, Hayes’s
dismal attendance record justified her discharge.
D. Ruth Loveless and Ronald Simmons
The claims of Ruth Loveless and Ronald Simmons inter-
relate, and we discuss them together. Ruth Loveless super-
vises the nurses in pavilion 7, including Ronald Simmons.
In August of 1999, a patient attacked Simmons. Loveless,
Simmons, and Valarie Brown, a mental health technician,
together subdued the patient. Brown believed that Simmons
had used excessive force in restraining the patient and filed
a report to that effect. Prompted by the report, the director
of nursing questioned the three employees about the
incident. Simmons denied any wrongdoing. Loveless, who
had made no mention of Simmons’s conduct until questioned,
stated that Simmons had used a “strong hold” in subduing
the patient but did not apply excessive force.
Madden Center policy requires that any employee accused
of patient abuse, and any supervisor who fails to report
abuse alleged to have occurred in their presence, be auto-
matically reassigned to nonpatient duties pending an
investigation. Pursuant to this policy, both Simmons and
Loveless were transferred to administrative assignments.
In the months that followed, the Illinois State Police
investigated whether Simmons used excessive force. An
IDHS internal security investigator repeatedly contacted
Simmons to attempt to arrange for his interview by the
police. When Simmons stated that he would not meet with
the police outside the presence of his attorney, the IDHS
No. 03-4117 11
investigator advised him that he did not need an attorney
for the meeting. Simmons persisted, and eventually met
with the police with his attorney at his side.
The investigation found that Simmons had not used ex-
cessive force. But a supervisor believed that Simmons’s
refusal to meet with the police without his lawyer violated
Madden Center policy requiring that employees cooperate
with official investigations. Simmons received a three-day
suspension. Loveless was suspended for one day for the
stated reason of “failing to follow policy and procedure.” The
parties do not explain what policy or procedure Loveless is
alleged to have broken. Both Loveless and Simmons were
transferred back to patient care after serving their suspen-
sions.
Loveless contends that both the assignment to nonpatient
duties and the one-day suspension amount to retaliation for
speaking out in defense of Simmons. The decision to assign
Loveless to nonpatient duties was predetermined by
Madden Center policy. Accordingly, it cannot support
Loveless’s claim because “enforcing a policy applicable to all
employees cannot reasonably be described as a penalty for
speech.” Taylor v. Carmouche, 214 F.3d 788, 792 (7th Cir.
2000). As for the suspension, neither party explains how it
relates to Loveless’s speech. Assuming arguendo that her
speech motivated the suspension, Loveless’s claim never-
theless fails because her account of Simmons’s conduct ad-
dressed a matter internal to the Madden Center’s operation.
Plaintiff did not attempt to publicize the event or press for
changes to the hospital’s policy on patient abuse. Because
the speech did not address a matter of public concern,
summary judgment was appropriate.
As for Simmons, we emphasize that neither his amended
complaint nor his appellate brief raise a Fifth Amendment,
Sixth Amendment, or procedural due process claim. Ac-
12 No. 03-4117
cordingly, we do not address these issues, but focus on the
sole theory raised by Simmons on appeal: that his three-day
suspension3 constitutes retaliation for the exercise of his
First Amendment rights. It is clear that plaintiff’s insis-
tence that his lawyer be present during the interview
motivated defendants to suspend him; this was the stated
reason. The question thus becomes whether plaintiff had a
First Amendment right to demand that his attorney ac-
company him in the interview room.
Simmons’s insistence on the presence of counsel impli-
cates the overlapping First Amendment rights of speech and
association. To the extent that the request for a lawyer, like
the filing of a lawsuit, see Zorzi, 30 F.3d at 896, constitutes
speech, Simmons can establish a retaliation claim only if the
speech addressed a matter of public concern. Id. Plaintiff
never sought a public debate or systemic changes on patient
abuse or Madden Center policies. The only apparent motive
for the request was Simmons’s desire to protect himself.
This purely personal interest does not constitute a matter
of public concern. See Cygan, 388 F.3d at 1099. Accordingly,
plaintiff’s speech retaliation claim fails.
The freedom of association embodied in the First
Amendment also protects Simmons’s right to meet with his
attorney. See United Mine Workers of Am., Dist. 12 v. Ill.
State Bar Assoc., 389 U.S. 217, 221-22 (1967); Bhd. of R.R.
Trainmen v. Va. State Bar, 377 U.S. 1, 8 (1964); NAACP v.
Button, 371 U.S. 415, 428-29 (1963). There is authority for
the proposition that a governmental employee’s right to as-
sociate with his lawyer extends to matters of private con-
cern. See Denius v. Dunlap, 209 F.3d 944, 954 (7th Cir. 2000)
(“[T]he right to obtain legal advice does not depend upon
3
Simmons challenges only the suspension, conceding that
defendants appropriately reassigned him to nonpatient duties
pending the outcome of the investigation.
No. 03-4117 13
the purpose for which the advice is sought.”). Simmons’s
First Amendment claim, to the extent that it is based on his
right of association, does not fail merely because he sought
legal representation on a matter of private concern. Id. But
accepting that a governmental employee’s right to associate
with his lawyer is not solely limited to meetings that
address matters of concern to the community, such freedom
of association does not necessarily imply an unconditional
right to meet with counsel in any governmental venue at any
time. See United States Postal Serv. v. Council of
Greenburgh Civic Assoc., 453 U.S. 114, 129 (1981) (“[T]he
First Amendment does not guarantee access to property
simply because it is owned or controlled by the govern-
ment.”).
The right of access depends upon whether the forum at
issue is: (i) a traditional public forum; (ii) a forum made
public by designation; or (iii) a nonpublic forum. Perry
Educ. Assoc. v. Perry Local Educators’ Ass’n, 460 U.S. 37,
45-46 (1983). Traditional public forums are “places which by
long tradition or by government fiat have been devoted to
assembly and debate.” Id. at 45. This category includes
“streets and parks which ‘have immemorially been held in
trust for the use of the public, and, time out of mind, have
been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions.’ ” Id. (quo-
ting Hague v. CIO, 307 U.S. 496, 515 (1939)). The govern-
ment may impose content-based regulation of speech in a
traditional public forum only if it shows “that its regulation
is necessary to serve a compelling state interest and it is
narrowly drawn to achieve that end.” Id. The state may also
enforce content-neutral time, place, and manner regulations
that “are narrowly tailored to serve a significant govern-
ment interest, and leave open ample alternative channels
of communication.” Id.A forum made public by designation “consists of public
property which the state has opened for use by the public as
14 No. 03-4117
a place for expressive activity.” Id. “The government does
not create a public forum by inaction or by permitting
limited discourse, but only by intentionally opening a non-
traditional forum for public discourse.” Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 803 (1985).
“Although a state is not required to indefinitely retain the
open character of the facility, as long as it does so it is
bound by the same standards as apply in a traditional
public forum.” Perry, 460 U.S. at 46.
Nonpublic forums include “[p]ublic property which is not
by tradition or designation a forum for public communica-
tion.” Id. “In addition to time, place, and manner regula-
tions, the state may reserve [a nonpublic] forum for its
intended purposes, communicative or otherwise, as long as
the regulation of speech is reasonable and not an effort to
suppress expression merely because public officials oppose
the speaker’s view.” Id. “Implicit in the concept of the non-
public forum is the right to make distinctions in access on
the basis of subject matter and speaker identity.” Id. at 49.
We define the forum at issue by focusing on the access
sought by, but denied to, the speaker.4 Cornelius, 473 U.S.
at 801. There is no suggestion that the Madden Center tried
to prevent plaintiff from meeting with his lawyer on his
own time, or sought to interview Simmons before he had a
chance to confer with counsel. Nor has plaintiff presented
4
A typical question in a First Amendment right of access case is
whether the government can be compelled to grant admission to
a given forum. See, e.g., Perry, 460 U.S. at 41. Because Simmons’s
attorney was ultimately permitted to attend the meeting, the ques-
tion in this case is not whether defendants can be required to
grant access, but whether defendants unlawfully retaliated against
plaintiff for demanding access guaranteed to him by the
Constitution. Under these circumstances, we will define the forum
as the place where defendants believed it was inappropriate for
plaintiff ’s attorney to be in attendance.
No. 03-4117 15
evidence that defendants demanded that he reveal privi-
leged communications, cf. Denius, 209 F.3d at 955, or sanc-
tioned him for filing this lawsuit. Rather, what defendants
found objectionable was plaintiff’s insistence that he bring
his lawyer with him to the interview. Accordingly, the
relevant forum is the interview room.5
It is clear that a room used to interview a person sus-
pected of committing a crime is not a public forum. See First
Def. Legal Aid v. City of Chicago, 319 F.3d 967, 971 (7th
Cir. 2003) (police interrogation rooms not public forums);
see also Ukrainian-Amer. Bar Assoc., Inc. v. Baker, 893 F.2d
1374, 1381 (D.C. Cir. 1990) (INS interview rooms not public
forums). This case is no exception. The police interview was
conducted in private with attendance limited to a handful
of people. The meeting focused on the discrete question of
whether Simmons used excessive force in subduing the
patient. A free and open debate among members of the
public would have been plainly inconsistent with the pur-
pose of the meeting. “We will not . . . infer that the govern-
ment intended to create a public forum when the nature of
the property is inconsistent with expressive activity.”
Cornelius, 473 U.S. at 803.
Because the interview room was a nonpublic forum, the
defendants were free to exclude Simmons’s attorney on any
viewpoint-neutral basis reasonably related to the purpose
served by the forum. Cornelius, 473 U.S. at 806. The appar-
ent motive for keeping plaintiff’s lawyer out of the inter-
view room was the belief that he would obstruct the inves-
5
The record does not disclose whether the interview took place
at the Madden Center or a police station. But the purpose of the
meeting and its private nature would have been the same in either
building. Accordingly, the exact physical location of the meeting
does not affect our First Amendment analysis. We express no view
on whether areas outside an interview room, either at the Madden
Center or a police station, are public forums.
16 No. 03-4117
tigation. This does not constitute viewpoint discrimination.
See First Def. Legal Aid, 319 F.3d at 972 (“[B]y admitting
public prosecutors who urge witnesses to cooperate, the city
does not oblige itself to give ‘equal time’ to private attorneys
who are likely to urge witnesses to clam up.”). There is no
evidence that defendants sought to deprive Simmons of the
benefit of his counsel’s views—plaintiff had ample time to
confer with his attorney before and after the interview.
Accordingly, the freedom of association guaranteed by the
First Amendment (as opposed to rights secured by the Fifth
Amendment, Sixth Amendment, or Due Process Clause) did
not confer upon Simmons the unconditional right to bring
counsel to an internal investigational interview with the
police. Because plaintiff has not established that he en-
gaged in conduct protected by his rights of speech or asso-
ciation, his claim fails.
E. Joseph Mungai
Joseph Mungai began work for the Madden Center as a
nurse in 1994. Although Mungai has been disciplined sev-
eral times by the Center, this appeal focuses solely on a trans-
fer within the hospital in 2000. On February 17, 2000, a pa-
tient threatened to kill Mungai. The patient was restrained
before he could physically harm Mungai, but plaintiff was
emotionally shaken by the incident. Mungai left work with-
out finishing his shift and called in sick the next day. Upon
his return to work following a long weekend, Mungai was
threatened again by the same patient. Mungai immediately
left work. The next day, plaintiff called in sick and advised
his supervisor that he would not return to work until either
he or the patient was transferred to a different pavilion. The
Madden Center granted Mungai’s request and transferred
him to a new pavilion the following day. Mungai believes the
new pavilion is even more dangerous than his previous
assignment.
No. 03-4117 17
Mungai argues that the Madden Center punished him for
speaking up by granting the request, but assigning him to
an even less desirable position. In essence, Mungai claims
that the defendants are teaching him to be careful what he
wishes for, and that this violates the First Amendment.
Assuming that we could characterize the transfer as retal-
iation, rather than as an attempt to accommodate Mungai’s
request, plaintiff’s claim would fail. Mungai did not publicly
air the issue or advocate for systematic changes in hospital
policy. While plaintiff’s safety is important to him, under
these circumstances it is not a matter of public concern.
Summary judgment on this claim was appropriate.
F. Henry Taylor
Henry Taylor was hired as a housekeeper at the Madden
Center on May 26, 1992. Like Diab and Hayes, Taylor fre-
quently showed up late for work. Each of Taylor’s perfor-
mance evaluations from 1993 through 1999 states that
plaintiff had a problem with tardiness. Between October
1999 and the end of March 2000, Taylor was late for work
twenty-six times, and had eleven unexcused or unreported
absences. The Madden Center fired Taylor effective June 7,
2000, citing his abuse of time. Taylor does not challenge
defendants’ account of his attendance.
Taylor was afforded an administrative hearing prior to
being fired. He requested and was granted union represen-
tation at the hearing. Before the district court, Taylor argued
that the true reason for his termination was because he had
asked for union representation at his pretermination
hearing. On appeal, Taylor gives no coherent account of his
First Amendment claim. His brief states that he was “active
in asserting his union rights,” but does not explain whether
this refers to plaintiff’s request for union representation. The
brief does not describe the content of the speech, its context,
whether defendants were aware of it, or how it could have
motivated defendants to fire Taylor. Accordingly, Taylor has
18 No. 03-4117
forfeited the claim. See United States v. Berkowitz, 927 F.2d
1376, 1384 (7th Cir. 1991) (holding that “perfunctory and
undeveloped arguments that are unsupported by pertinent
authority” are forfeited on appeal). Were we to reach the
merits, it is clear that defendants had sufficient reason to
fire Taylor unrelated to any protected speech.
G. Interrelated Nature of Plaintiffs’ Claims
At oral argument, plaintiffs’ counsel argued that the
district court erred by refusing to account for the interre-
lated nature of plaintiffs’ claims. Counsel asserted that the
court mistakenly analyzed each claim in isolation, failing to
recognize the significance of the overarching pattern ap-
parent when one views plaintiffs’ claims collectively. This
argument does not appear in plaintiffs’ appellate brief, and
we will not consider it. See Szczesny v. Ashcroft, 358 F.3d
464, 465 (7th Cir. 2004).
III. Conclusion
Plaintiffs’ First Amendment retaliation claims fail as a
matter of law. Accordingly, we AFFIRM.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-21-05