Davis, Tonya v. Cook County ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1534
TONYA DAVIS,
Plaintiff-Appellant,
v.
COOK COUNTY and CYNTHIA PRZISLICKI,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 8218—Robert W. Gettleman, Judge.
____________
ARGUED SEPTEMBER 24, 2007—DECIDED JULY 16, 2008
____________
Before POSNER, FLAUM, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Tonya Davis is a registered nurse
assigned to the Emergency Room at John H. Stroger, Jr.,
Hospital of Cook County, Illinois (“Stroger”). Davis was
involved in a series of unpleasant incidents with hospital
personnel and expressed her resulting dismay in a memo-
randum. This prompted her supervisor, Cynthia Przislicki,
to ask Davis to submit to an evaluation of fitness for
duty. When Davis refused, Przislicki suspended her;
she was ultimately reinstated with back pay.
2 No. 06-1534
Not satisfied with that measure, Davis filed suit against
both Cook County (her employer) and Przislicki. Her
complaint alleged (1) that the defendants discriminated
against her on the basis of a perceived disability in vio-
lation of the Americans with Disabilities Act (ADA),
42 U.S.C. § 12101 et seq.; (2) that they violated her
First Amendment rights and so are liable to her under
42 U.S.C. § 1983; and (3) that they defamed her in viola-
tion of Illinois law. The district court awarded summary
judgment to the defendants on the two federal counts
and declined to exercise supplemental jurisdiction over
the state-law theory. Davis appeals only the grant of
summary judgment on her First Amendment theory
and the consequent dismissal of the state-law defama-
tion count. We affirm the judgment of the district court.
I
Within a six-month period (October 2003 to April 2004),
Davis had a number of run-ins with various hospital
employees, including a medical student, a doctor, and
the nursing coordinator. In the last of those, Nursing
Coordinator Clanton had instructed Davis to change a
patient’s bedsheet. Davis ignored the request, because
she was in the middle of doing patient assessments,
which she considered to be more important. (Later, a
technician changed the sheets.) Davis complained to
Przislicki that she felt harassed by Clanton. On April 5,
2004, Davis sent a memorandum entitled “Harassment”
to the Employee Assistance Counselor, copying several
hospital officials. In the memo, Davis alleged that she
had been “harassed, abused, called out of [sic] my name
and it’s gotten worse.” After evaluating the accounts of
participants in these occasionally heated encounters
No. 06-1534 3
with Davis and speaking with Davis in person, Przislicki
became concerned about Davis’s fitness for duty. With
advice from Dr. Robert Simon, the medical director of
the Emergency Room (and another recipient of the
April 5 memo), Przislicki concluded that Davis needed
to submit to a fitness-for-duty examination. Przislicki
explained to Dr. Patricia Kelleher, Stroger’s director of
employee health services, that there had been a notice-
able change for the worse in Davis’s behavior since Octo-
ber 2003. On May 3, Przislicki informed Davis that she
had to go to employee health services for the examination.
Davis got as far as meeting with Dr. Kelleher, but at that
point Davis refused to submit to the examination. The
human resources and employee health staff told her
that she had three options: she could go to her own doctor,
she could participate in the employee assistance program,
or she could submit to the fitness-for-duty examination.
Davis rejected everything and filed a union grievance.
Eventually, after several meetings, she received an apology,
she was allowed to return to work, and she was given back
pay for the three weeks of work she had missed. This
lawsuit followed.
Although Davis wanted to rely on her April 5 memo in
her response to the defendants’ motion for summary
judgment on her First Amendment claim, the district court
refused to take it into account because her complaint
referred only to statements she made in March 2004,
including one on March 24. Finding the information
provided by Davis on the March complaints “utterly
insufficient” to warrant constitutional protection, the
district court awarded summary judgment against
Davis on the First Amendment claim. Having disposed
of both of Davis’s federal claims on summary judgment,
the district court declined to exercise jurisdiction over
the state-law defamation claim.
4 No. 06-1534
II
In appealing the grant of summary judgment on the
First Amendment claim, Davis argues only that her
memo of April 5 qualified for First Amendment protec-
tion. Although Davis forfeited this argument by not
properly presenting this ground to the district court, Cook
County arguably waived the forfeiture by quoting from
the April 5 memo in the section of its brief arguing that
Davis’s complaints were not entitled to constitutional
protection. Waiver or forfeiture either way does not mat-
ter, however, because four months after the district court
issued its judgment, the Supreme Court decided Garcetti
v. Ceballos, 547 U.S. 410 (2006), and it is clear that
Davis cannot win under Garcetti’s standards.
Garcetti addressed the question whether a public em-
ployee (a deputy district attorney) could pursue a First
Amendment claim against his employer (the Los Angeles
County District Attorney’s Office) when he suffered
retaliation for speaking out about misrepresentations
contained in an affidavit supporting a search warrant. The
Court found it unnecessary to delve into the traditional
analysis established by Connick v. Myers, 461 U.S. 138, 147-
48 (1983), and Pickering v. Bd. of Educ., 391 U.S. 563,
568 (1968), for evaluating employee speech. Instead, it
asked a preliminary question: was the expression some-
thing done pursuant to the employee’s professional
duties? If so, then the First Amendment has no applica-
tion. As the Garcetti Court put it, summarizing its ruling,
“[o]ur precedents do not support the existence of a con-
stitutional cause of action behind every statement a
public employee makes in the course of doing his or
her job.” 547 U.S. at 426.
No. 06-1534 5
In an effort to avoid Garcetti, Davis asserts that “[a]t the
very least, whether [her] letter was written as part of her
duty as a nurse or as a citizen on a matter of public con-
cern is an issue for the jury to decide[.]” But she goes on
to admit that the subject of the letter was “the operation
of the ER,” and Davis’s concern that “the ER was
operating without any team-work and professionalism.”
Further, “[t]he inquiry into the protected status of speech
is one of law, not fact.” Connick, 461 U.S. at 148 n.7. Raising
a First Amendment claim, without more, does not guar-
antee that a jury is necessary.
In Sigsworth v. City of Aurora, 487 F.3d 506 (7th Cir.
2007), we found that a public employee had not stated
a claim because his allegations indicated that he was
merely doing what was expected of him as a member of
a police task force. Although Davis has not admitted
outright that her speech was also intimately connected
with her job, our examination of the record persuades
us that no rational trier of fact could find otherwise. Davis
does not contest Przislicki’s deposition testimony regarding
the job description of an ER registered nurse. According to
Przislicki, a registered nurse must “take care of the pa-
tients, expedite the patients through the system and act as
an advocate, working with physicians to give the best
possible care.”
Davis’s memo reflects the concern of a conscientious
nurse to ensure and contribute to the smooth functioning
of the ER and to advocate for the well-being of the
patients under her care. While drafting letters of com-
plaint may not be a core job function of a nurse, a “focus
on core job functions is too narrow after Garcetti, which
asked only whether an employee’s expressions were
made pursuant to official responsibilities.” Spiegla v.
6 No. 06-1534
Hull, 481 F.3d 961, 966 (7th Cir. 2007) (internal quotation
marks omitted). Davis’s memo discusses patient care,
advocates on behalf of patients (as well as herself and
similarly situated nurses), and details difficulties encoun-
tered in working with doctors. The issues she discusses
in the memo concern particular job responsibilities of a
registered nurse.
In an effort to show that the memo was not entirely a self-
serving list of personal grievances—in other words,
to show that the memo addressed a “matter of public
concern”—Davis notes that the memo “described how
another nurse was being taken away and Davis was
forced to take care of twelve patients all by herself with-
out any help. She also described the abuse that nurses
went through every day.” But, even if these problems in
the aggregate may add up to a broader picture about the
quality of health care at Stroger, Davis was still just de-
scribing the day-to-day job of a nurse. Under Garcetti, the
question whether speech is about a matter of public
concern does not come into play unless the court first
finds that the speech was made as a citizen rather than
as an employee doing her job. The speech upon which
Davis would like to found her case was made pursuant
to her duties as a public employee, and so it was not
constitutionally protected.
III
Davis also argues that the district court erred in dismiss-
ing her defamation claim. A district court’s decision to
decline to exercise supplemental jurisdiction over a
state claim once the federal claims have been dismissed
is reviewed for an abuse of discretion. Williams Elecs.
No. 06-1534 7
Games, Inc. v. Garrity, 479 F.3d 904, 906 (7th Cir. 2007).
“[T]he general rule is that, when all federal claims are
dismissed before trial, the district court should relinquish
jurisdiction over pendent state-law claims rather than
resolving them on the merits.” Wright v. Associated Ins.
Cos., 29 F.3d 1244, 1251 (7th Cir. 1994). Exceptions to that
rule of thumb exist (1) “when the statute of limitations
has run on the pendent claim, precluding the filing of a
separate suit in state court”; (2) “substantial judicial
resources have already been committed, so that sending
the case to another court will cause a substantial dupli-
cation of effort”; or (3) “when it is absolutely clear how
the pendent claims can be decided.” Id.Davis’s brief argues the merits of her defamation claim
instead of addressing these factors. We see no need to
delve into the merits, however. First, the statute of limita-
tions in Illinois for defamation claims is one year. 735 ILCS
5/13-201; Stobinske-Sawyer v. Village of Alsip, 188 F. Supp.
2d 915, 920 (N.D. Ill. 2002). Because the events here oc-
curred in 2004, the statute has run on Davis’s claim unless
a rule of tolling applies. As it happens, there is such a rule:
[if] the action is dismissed by a United States District
Court for lack of jurisdiction, . . . then, whether or not
the time limitation for bringing such action expires
during the pendency of such action, the plaintiff . . .
may commence a new action [in state court] within
one year or within the remaining period of limita-
tion, whichever is greater, after . . . the action is dis-
missed by a United States District Court for lack of
jurisdiction . . . .
735 ILCS 5/13-217. In all likelihood, this means that Davis
is not barred by the statute of limitations from filing her
defamation claim in state court. Second, the district
8 No. 06-1534
court disposed of the federal claims on summary judg-
ment, and so “substantial judicial resources” have not
yet been committed to the case. Finally, although Davis
asserts that she can make out a prima facie case of defama-
tion, she does not and cannot claim that it is “absolutely
clear” how this claim would be decided. Thus, the
court did not abuse its discretion in declining to exer-
cise jurisdiction over Davis’s defamation claim.
* * *
The judgment of the district court is AFFIRMED.
USCA-02-C-0072—7-16-08