Sullivan, Connie v. Ramirez, Robert ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4118
CONNIE SULLIVAN and MARY BLANCO,
Plaintiffs-Appellees,
v.
ROBERT RAMIREZ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01 C 1371—Joe Billy McDade, Chief Judge.
____________
ARGUED OCTOBER 27, 2003—DECIDED MARCH 3, 2004
____________
Before RIPPLE, DIANE P. WOOD and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. Connie Sullivan and Mary Blanco
brought this action against their employer, the Illinois
Department of Transportation (“IDOT”), and their super-
visor, Robert Ramirez, Chief of the IDOT Bureau of
Employee Services. Their complaint alleged violations of
their rights under the First Amendment, see 42 U.S.C. § 1983,
and violations of state law. The district court dismissed
IDOT on the ground that the Eleventh Amendment barred
the action against it. It granted Mr. Ramirez’s motion for
summary judgment on the state claims but denied summary
2 No. 02-4118
judgment based on qualified immunity with respect to the
First Amendment claims. Mr. Ramirez appeals this last
ruling. For the reasons set forth in the following opinion, we
reverse the judgment of the district court.
I
BACKGROUND
A. Facts
Connie Sullivan and Mary Blanco work for the IDOT
Bureau of Employee Services (“the Bureau”). Robert
Ramirez is the chief of the Bureau. The Bureau has two
sections, Support Services and Training and Education. Ms.
Sullivan is a management technician in the Training and
Education Section. At the time of the events giving rise to
this appeal, her immediate supervisor was Sandy Ferega,
who reported to Richard Cunningham, who reported to Mr.
Ramirez. Ms. Blanco is a budget administrator in the
Support Services Section. During the relevant time period,
1
her immediate supervisor was Doug Cunningham, who
reported to Ken Coburn, who reported to Mr. Ramirez.
Neither Ms. Sullivan nor Ms. Blanco had any timekeeping
responsibilities for the Bureau.
In January 1999, an anonymous letter was directed to the
Governor’s chief of staff, claiming abuse of time by Richard
2
Cunningham. Neither Ms. Sullivan nor Ms. Blanco sent the
1
Doug Cunningham is the son of Richard Cunningham.
2
Abuse of time refers to chronic tardiness, early departures and
long lunches. Bureau employees work from 8:00 a.m. to 4:30 p.m.
or from 8:30 a.m. to 5:00 p.m.
No. 02-4118 3
3
letter or know who sent the letter. The matter was referred
to the Illinois State Police in March of 1999, and they opened
an investigation. Prior to the arrival of the police investiga-
tors, Mr. Ramirez held two brief meetings, one for each
section of the Bureau. At those meetings, Mr. Ramirez told
employees about the investigation and instructed them to
cooperate with the police. He also told employees that he
was unhappy with the anonymous letter, that the Bureau
had an official timekeeper and that no one else was to keep
time. Mr. Ramirez announced that he would throw away
4
any more anonymous letters. Ms. Sullivan and Ms. Blanco
each attended the meeting for their section.
The police later interviewed employees of the Bureau,
including Ms. Sullivan and Ms. Blanco. During their
interviews, Ms. Sullivan and Ms. Blanco alleged that time
abuse was occurring. The police asked them for documenta-
tion of this time abuse, but they could not provide such
proof. The police ultimately concluded that the allegations
of time abuse against Richard Cunningham were unsub-
stantiated, but suggested implementing internal controls.
Mr. Ramirez then implemented a sign-in sheet that did not
include times and that not everyone signed.
After the police investigation, Ms. Sullivan and Ms.
Blanco recorded co-workers’ office time on state-issued
calendars. Both kept their calendars in a desk drawer, or in
3
At his deposition, Mr. Ramirez testified that he believed Ms.
Sullivan, Ms. Blanco or one of their friends wrote the letter and
that he told his supervisor of this belief. See R.45, Ramirez Dep.
at 96.
4
In 1997 or 1998, an anonymous letter had been sent to the
Deputy Director of Finance and Administration at IDOT alleging
abuse of time by Richard Cunningham, Ken Coburn and Mr.
Ramirez.
4 No. 02-4118
a purse, bag or case that they carried to work. Ms. Sullivan
made her notations during breaks, lunch or after work. Ms.
Blanco made her notations mostly over her lunch hour away
from the office. In her deposition, Ms. Sullivan testified that
she kept time because she wanted to protect herself if she
were accused of time abuse. She claimed that Mr. Ramirez
unfairly had allowed some to take late lunches or to arrive
late and that the police had implied that she should have
documentation. Ms. Blanco testified that she kept time
because she wanted to cover herself and because the state
police told her that any information on time abuse only
would have value if the times and dates were written down.
Both Ms. Sullivan and Ms. Blanco reported co-workers’
tardiness to their supervisors, Richard Cunningham and
Doug Cunningham, respectively.
After Ms. Sullivan and Ms. Blanco began keeping track of
co-workers’ time, other employees complained to Mr.
Ramirez and other supervisors that Ms. Sullivan and Ms.
Blanco’s activities created a hostile work environment.
One employee allegedly transferred because of it. Although
the record indicates that Ms. Sullivan and Ms. Blanco’s co-
workers knew the two were keeping time records, both Ms.
Sullivan and Ms. Blanco deny knowing that the other was
doing so.
As a result of rising tension, Ms. Blanco’s supervisor,
Doug Cunningham, spoke with Ms. Blanco about co-worker
relations. In January of 2000, Ms. Blanco, Mr. Ramirez and
Doug Cunningham met, and Mr. Ramirez told Ms. Blanco
that she should not be keeping other employees’ time.
Despite this meeting, Ms. Blanco continued tracking other
employees’ time.
On March 23, 2000, Ms. Sullivan took a message for
Richard Cunningham from a friend. The message was: “big
meeting, twelve noon tee off time at Long Bridge.” R.45 ¶
No. 02-4118 5
227. The message was meant as a joke. Later that day, based
on something overheard from Mr. Ramirez’s secretary, Ms.
Sullivan noted “Golf P.C.” for Mr. Ramirez and that he left
before noon. Id., Sullivan Dep. at 107. “P.C.” referred to
Panther Creek, a golf course.
On March 24, 2000, when Mr. Ramirez arrived at work,
his secretary informed him that she had heard that Ms.
Sullivan had called Panther Creek to see if Mr. Ramirez was
playing golf there. Mr. Ramirez attempted to verify the
5
source of this information but was not successful. Around
this time, Mr. Ramirez passed Ms. Sullivan and her su-
pervisor, Ferega, who had just gone on break. Mr. Ramirez
then confronted Ms. Sullivan, told her that she did not need
to check up on him and that he would be “tak[ing] care of”
her. Id., Sullivan Dep. at 111. After this confrontation, Ms.
Sullivan left work on sick time.
Mr. Ramirez then told someone to obtain Ms. Blanco and
Ms. Sullivan’s calendars. He received permission from the
labor relations unit to keep Ms. Blanco’s calendar as evi-
dence and to send Ms. Blanco home. He also told Richard
Cunningham that he had received direction from the IDOT
labor relations unit to send Ms. Sullivan home, but Ms.
Sullivan already had left sick.
Mr. Ramirez then called Ms. Blanco into his office, and she
admitted that the calendar and notations were hers. Mr.
Ramirez told her that she was suspended and would be
fired, and he instructed her to leave with her belongings.
After Ms. Blanco left his office, Mr. Ramirez again con-
fronted her at her cubicle and directed someone to call se-
curity to escort her from the building.
5
At her deposition, Ms. Sullivan denied calling Panther Creek.
See R.45, Sullivan Dep. at 112.
6 No. 02-4118
A security officer escorted Ms. Blanco from the building
approximately thirty minutes later. Because it was break
time, there were fifty or sixty people in the lobby area
through which Ms. Blanco was escorted carrying her be-
longings in bags. After she was sent home, other employees
in the department allegedly told Doug Cunningham that
Ms. Blanco’s conduct had gone on too long and that the
disciplinary action was long overdue.
Ms. Sullivan came to work on Monday, March 27, and
was instructed to meet with Richard Cunningham and Mr.
Ramirez. At the meeting, Mr. Ramirez also suspended Ms.
Sullivan with pay. He told her to leave with her personal
belongings. Later in the week, Ms. Sullivan received a letter
from Mr. Ramirez instructing her to return to work on
Monday, April 3. Charges against Ms. Sullivan for insubor-
dination, misuse of state time and disrupting the work en-
vironment were later dropped.
Prior to Ms. Sullivan’s return, Mr. Ramirez called Ms.
Blanco and also instructed her to return to work. Ms.
Blanco’s paid suspension lasted one day and a half. After
she returned, she met with Doug Cunningham and Mr.
Ramirez, and Mr. Ramirez instructed her not to keep other
employees’ time. Ms. Blanco filed a written grievance in
regard to her suspension. In August 2000, she received a
written warning regarding her conduct. The grievance re-
mains open.
B. District Court Proceedings
The district court granted summary judgment to Mr.
Ramirez on the state claims but denied summary judgment
based on qualified immunity with respect to the First
Amendment claims. Applying the framework set forth in
Connick v. Myers, 461 U.S. 138 (1983), and Pickering v. Board
No. 02-4118 7
of Education, 391 U.S. 563 (1968), the court held that the
record-keeping constituted speech, that the speech qualified
as a matter of public concern and that the balancing re-
quired under Pickering presented a jury question. It also
ruled that a question of fact existed as to whether Mr.
Ramirez would have taken the same action in absence of
Ms. Sullivan and Ms. Blanco’s protected speech. Further-
more, the court determined that the law was clearly es-
tablished by 2000 that retaliation against an employee for
protected speech violated the First Amendment. Mr.
Ramirez timely appealed the district court’s denial of qual-
ified immunity.
II
DISCUSSION
A. Standard of Review
We review de novo the district court’s denial of summary
judgment on the ground of qualified immunity. See Knox
v. Smith, 342 F.3d 651, 656 (7th Cir. 2003). “Summary
judgment is appropriate when, viewing the evidence in the
light most favorable to the nonmoving party, there is no
genuine issue of material fact that must be decided by a
jury.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252-55 (1986)). All facts must be construed and all inferences
drawn in the light most favorable to the nonmoving party.
See Anderson, 477 U.S. at 255.
B. Qualified Immunity
Qualified immunity is a privilege that provides “ ‘an
immunity from suit rather than a mere defense to liability.’ ”
Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (quoting Mitchell
8 No. 02-4118
v. Forsyth, 472 U.S. 511, 526 (1985)). The defense “is de-
signed to protect government agents ‘from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a rea-
sonable person would have known.’ ” Knox, 342 F.3d at 657(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Analysis of a qualified immunity defense requires a twofold
inquiry. First, we must determine whether, taking the facts
in the light most favorable to the plaintiffs, the official
violated a constitutional right. See Saucier, 533 U.S. at 201.
Second, we must inquire whether the right was clearly
established in light of the specific context of the case. See id.
Ms. Sullivan and Ms. Blanco argue that this court should
not address many of Mr. Ramirez’s arguments regarding
their First Amendment claim because those arguments are
not properly before this court on an appeal from the denial
of qualified immunity. The Supreme Court clarified in
Saucier, however, that the initial inquiry into whether the
facts alleged constitute a violation of a constitutional right
is part of the qualified immunity analysis. The Court ex-
plained that one reason for such inquiry is to foster “the
law’s elaboration from case to case.” Saucier, 533 U.S. at 201.
Because this initial inquiry is an essential part of the quali-
fied immunity analysis, Ms. Sullivan and Ms. Blanco’s
ability to establish the elements of their First Amendment
6
claim is properly before this court.
C. First Amendment Claim
6
Even prior to Saucier v. Katz, 533 U.S. 194 (2001), this court had
stated that analysis of the elements of a First Amendment claim
“is appropriate for a qualified immunity interlocutory appeal
under Behrens v. Pelletier, 516 U.S. 299 (1996).” Coady v. Steil, 187
F.3d 727, 731 n.3 (7th Cir. 1999). Thus, it is clear that the elements
of Ms. Sullivan and Ms. Blanco’s First Amendment claim are
properly before this court for consideration at this time.
No. 02-4118 9
A public employee retains First Amendment rights to free
speech. See Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968);
see also Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d
964, 970 (7th Cir. 2001). At the same time, a public employee
does not possess unlimited rights of expression on matters
related to official responsibilities. See Vargas-Harrison, 272
F.3d at 971. The government also has a recognized need to
conduct its affairs effectively and efficiently. See id.; see also
Pickering, 391 U.S. at 568.
A § 1983 claim for retaliation in violation of First
Amendment rights in the public employment context in-
volves a three-step analysis. First, the court must determine
whether the employee’s speech was constitutionally pro-
tected under the Connick-Pickering test. Second, the plaintiff
must establish that the speech was a substantial or motivat-
ing factor in the retaliatory action. Third, the defendant has
an opportunity to establish that the same action would have
been taken in the absence of the employee’s protected
speech. See Vukadinovich v. Bd. of Sch. Trs. of N. Newton Sch.
Corp., 278 F.3d 693, 699 (7th Cir. 2002); Kokkinis v. Ivkovich,
185 F.3d 840, 843 (7th Cir. 1999); see also Gustafson v.
Jones, 290 F.3d 895, 906 (7th Cir. 2002) (describing First
Amendment retaliation claim as involving four elements but
the same analysis); Vargas-Harrison, 272 F.3d at 970 (noting
only the first two elements).
To determine whether speech is constitutionally protec-
ted, we engage in a familiar two-part inquiry traditionally
known as the Connick-Pickering test. See Coady v. Steil, 187
F.3d 727, 731 (7th Cir. 1999); see also Connick v. Myers, 461
U.S. 138 (1983); Pickering, 391 U.S. at 563. Under Connick, we
must determine whether the speech addressed a matter of
public concern. If the speech did involve such a concern,
under the Pickering balancing test, we then must determine
whether the government’s interest as an employer in
10 No. 02-4118
providing effective and efficient services outweighs the
employee’s interest as a citizen in commenting upon the
matter of public concern. See Coady, 187 F.3d at 731. The
determination of whether the speech is constitutionally
protected is a question of law for the court. See Kokkinis, 185
F.3d at 843.
1. Speech as a Matter of Public Concern
Mr. Ramirez contends, as an initial matter, that no
“speech” occurred. He submits that Ms. Sullivan and
Ms. Blanco’s notations on the privately kept calendars do
not constitute “speech.” As the district court noted, it is
without question that “speech” includes writings publicly
disclosed. See Gonzalez v. City of Chicago, 239 F.3d 939, 941-42
(7th Cir. 2001) (considering written reports “speech”);
Campbell v. Towse, 99 F.3d 820, 826-30 (7th Cir. 1996) (con-
sidering memorandum “speech”). Whether “speech” in-
cludes writings involuntarily disclosed is a closer question.
Mr. Ramirez notes that little authority exists to estab-
lish that private notes involuntarily exposed constitute
“speech.” The Fifth Circuit has assumed, without deciding,
that such notes constitute “speech.” See Terrell v. Univ. of
Texas Sys. Police, 792 F.2d 1360, 1362 (5th Cir. 1986). In
Terrell, a university police officer kept private notes criti-
cizing his supervisor. Id. at 1361. Photocopies of these notes
were anonymously given to the supervisor, and the officer
was soon fired. Id. The court declined to decide whether “an
employee’s personal notebook or diary can be considered
first amendment ‘speech’ ” when “the contents come to light
completely without the employee’s knowledge or consent,”
but it did evaluate the officer’s claim. Id. at 1362. At least
two district courts also have entertained First Amendment
No. 02-4118 11
retaliation claims on the basis of involuntarily disclosed
writings. In Verri v. Nanna, 972 F. Supp. 773 (S.D.N.Y. 1997),
a police officer’s diary was involuntarily transferred to the
chief of police, who retained the diary for some time. Id. at
782. The officer then brought suit for retaliation on First
Amendment grounds, among other claims, asserting that
the chief placed deficiency notes in his file based on the
content of the diary. Id. at 783. In addressing the diary
entries, the court cited Terrell on the matter of “speech” and
continued in the analysis to consider whether the content
warranted constitutional protection. Id. at 785. Similarly, in
Connor v. Clinton County Prison, 963 F. Supp. 442 (M.D. Pa.
1997), the district court held that “speech” did occur after a
supervisor found and read an employee’s private log
because the contents were then communicated, even though
involuntarily. Id. at 446.
We believe that Ms. Sullivan and Ms. Blanco’s private
notations in their calendars constituted “speech.” The record
indicates that the content of Ms. Sullivan and Ms. Blanco’s
notations was known to the office community. Other
employees complained to the supervisors about it. Mr.
Ramirez confiscated the calendars before meeting with Ms.
Sullivan or Ms. Blanco, which indicates that he already was
aware of their content. Furthermore, Mr. Ramirez did in fact
review the calendars. Given the specific facts of this case, we
conclude that the content of Ms. Sullivan and Ms. Blanco’s
private notes was communicated and that “speech” oc-
7
curred.
7
The 1999 letter which led to the police investigation is clearly
“speech” for purposes of First Amendment analysis. Neither Ms.
Sullivan nor Ms. Blanco claim responsibility for that letter,
however; thus it cannot form the basis of their claim.
12 No. 02-4118
“Whether a government employee’s speech addresses a
matter of public concern depends upon ‘the content, form,
and context of [the speech] as revealed by the whole record.’”
Gustafson, 290 F.3d at 906-07 (quoting Connick, 461 U.S. at
147-48). Content is the most important factor. See id. at 907.
The “public concern” element must relate to a community
concern and is not satisfied by “merely a personal grievance
of interest only to the employee.” Id. Therefore, to determine
whether Ms. Sullivan and Ms. Blanco’s speech addressed a
matter of public concern, we must apply the content, form
and context criteria, as set forth in Connick, mindful that a
personal grievance of interest only to the employee does not
qualify as a matter of public concern.
The content of Ms. Sullivan and Ms. Blanco’s speech
consisted of notations related to the comings and goings
of their co-workers. The notes contained initials or names
of certain employees, corresponding departure or arrival
times and some notes regarding their whereabouts or
reasons for absence. Complaints about personnel matters
generally do not address a matter of public concern. See
Wallscetti v. Fox, 258 F.3d 662, 667 (7th Cir. 2001); see also
Connick, 461 U.S. at 148 (determining that speech regarding
confidence in supervisors, office morale and the need for
a grievance committee were outgrowths of a personnel
dispute and did not address a matter of public concern).
However, complaints containing documentation of time
abuse have been held to address a matter of a public con-
cern. See Marshall v. Porter County Plan Comm’n, 32 F.3d
1215, 1219-20 (7th Cir. 1994) (holding that the district
court properly found as a matter of law that the plaintiff
was speaking on matters of public concern when she
documented a co-worker’s abuse of county time, abuse of
county funds and failures to conduct required building
inspections and communicated those documented concerns
to a supervising board); Breuer v. Hart, 909 F.2d 1035, 1038
No. 02-4118 13
(7th Cir. 1990) (holding that allegations of favoritism,
stolen property and receipt of pay for work not performed,
communicated to state prosecutorial authorities, constituted
matters of public concern); Ohse v. Hughes, 816 F.2d 1144,
1150-51 (7th Cir. 1987) (holding that allegations of alcohol
consumption during business hours, the falsifying of mile-
age charges, the inappropriate taking of sick and vacation
days, the misappropriation of public funds and the act of
sleeping on the job, communicated to judges, county board
members and the state’s attorney’s office constituted matters
of public concern), vacated and remanded, 485 U.S. 902,
reinstated in relevant part, 863 F.2d 22 (7th Cir. 1988). Chronic
time abuse by public employees implicates the misuse of
taxpayer funds. The content factor therefore weighs in favor
of a determination that the speech addressed a matter of
public concern.
As to form, the speech consisted of notes made in state-
provided calendars privately kept. Those notes were not
published voluntarily by Ms. Sullivan or Ms. Blanco and
only were read by others after Mr. Ramirez confiscated the
calendars. Those cases involving involuntarily communi-
cated speech have held such a factor to weigh against a
determination that the speech involved a matter of public
concern. See Terrell, 792 F.2d at 1362-63 (“[The plaintiff]
made no effort to communicate the contents of the notebook
to the public, and the evidence does not suggest that he
would have had any occasion to do so.”); Verri, 972 F. Supp.
at 786 (“By writing in his diary, [the plaintiff] did not intend
to speak on a matter of public concern; he desired and
expected no audience.”); Connor, 963 F. Supp. at 450 (“The
form is a log which was not voluntarily disclosed, so that no
communication can be said to have been made until its
discovery.”). Yet, as we have noted earlier, the plaintiffs
made known the existence of these “private” notes. Their
existence was, simply put, a prop for additional discourse.
14 No. 02-4118
The third consideration under Connick is the context
in which the speech arose. Ms. Sullivan and Ms. Blanco
testified that they kept the notes to protect themselves.
Largely on this basis, Mr. Ramirez argues that the notes
merely concerned a personnel matter and that they are not
entitled to constitutional protection as a matter of public
concern. The motive of Ms. Sullivan and Ms. Blanco is a
relevant, but not dispositive, factor in considering whether
their speech addresses a matter of public concern. See
Marshall, 32 F.3d at 1219; see also Gustafson, 290 F.3d at 908(“[W]hile speech that is only motivated by private concerns
may not be protected, ‘[a] personal aspect contained within
the motive of the speaker does not necessarily remove the
speech from the scope of public concern.’ ” (quoting Greer v.
Amesqua, 212 F.3d 358, 371 (7th Cir. 2000) (quoting Marshall,
32 F.3d at 1219))).
However, Ms. Sullivan and Ms. Blanco testified to an
additional reason for keeping track of co-workers’ time:
the possibility of a future investigation into time abuse. In
considering context, “it is necessary to look at the point of
the speech in question: was it the employee’s point to bring
wrongdoing to light?” Kokkinis, 185 F.3d at 844 (internal
quotations and citations omitted). Ms. Sullivan and Ms.
Blanco made their notations in the aftermath of an investi-
gation by the Illinois State Police of possible time abuse in
the Bureau. Both Ms. Sullivan and Ms. Blanco testified that
they kept the notations as evidence for any future investiga-
tions of time abuse, and Ms. Blanco testified that the police
told her information on time abuse was only valuable if
supported by documentation. Abuse of time by government
workers constitutes wrongdoing. See Marshall, 32 F.3d at
1219-20 (noting that co-worker’s partisan activities at work,
excessive mileage reimbursement requests and failures to
perform building inspections “were the type that result in
the misuse of public funds and trust”). Given these circum-
No. 02-4118 15
stances, it may be said fairly that the point of Ms. Sullivan
and Ms. Blanco’s speech was, in significant part, to bring
wrongdoing to light.
Considering, as a whole, the content, form and context of
Ms. Sullivan and Ms. Blanco’s speech, there is sufficient
reason to conclude that the speech addresses a matter of
public concern.
2. Pickering Balancing
Even though Ms. Sullivan and Ms. Blanco’s speech
qualifies as a matter of public concern under Connick, their
speech interest still must be balanced against their em-
ployer’s interest under Pickering for the final determination
of whether their speech warrants constitutional protection.
See Pickering, 391 U.S. at 568. Ms. Sullivan and Ms. Blanco’s
speech interests do not prevail under this balancing test.
In examining this issue, the district court stated that the
Pickering balancing presented a jury question. Pickering
balancing, however, is a matter of law. See Coady, 187 F.3d
at 731 n.3. The district court therefore erred when it failed to
make a determination as to whether, on the facts alleged,
Ms. Sullivan and Ms. Blanco’s speech was constitutionally
protected under Pickering.
Several factors, among others, are helpful in a Pickering
analysis. Those factors include:
(1) whether the speech would create problems in main-
taining 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 un-
16 No. 02-4118
derlying 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, 212 F.3d at 371. Among these factors, however, the
importance of the context in which the speech takes place is
always entitled to significant weight. Recognizing that
importance, we believe that Ms. Sullivan and Ms. Blanco’s
speech was not constitutionally protected.
We first examine the effect of the speech on work-
place discipline and harmony. Neither Ms. Sullivan nor
Ms. Blanco had any responsibility to keep time for other
employees. The timekeeping directly contravened Mr.
Ramirez’s express instructions at the section meetings
before the April 1999 police investigation. Mr. Ramirez
also personally directed Ms. Blanco to stop tracking other
employees’ time because of problems with co-worker rela-
tions. Although both Ms. Sullivan and Ms. Blanco explain
that they made their notations on their own time, their
observations of co-workers’ arrivals and departures were
made throughout the work day. The record contains addi-
tional evidence of the disruptiveness of Ms. Sullivan and
Ms. Blanco’s speech. Employees complained to Mr. Ramirez
and other supervisors about Ms. Sullivan and Ms. Blanco’s
note-keeping. One employee allegedly transferred because
of it. The record indicates that employees believed the note-
keeping was harmful to workplace morale. We conclude,
from these circumstances, that Ms. Sullivan and Ms.
Blanco’s timekeeping created problems in maintaining
discipline and co-worker harmony.
Additionally, a government employer may consider “the
potential disruptiveness” of the speech. Kokkinis, 185 F.3d at
845 (internal citations and quotations omitted). We have
No. 02-4118 17
recognized previously that “[a] government employer need
not ‘allow events to unfold to the extent that the disruption
of the office and the destruction of working relationships is
manifest before taking action.’ ” Greer, 212 F.3d at 372(quoting Connick, 461 U.S. at 152). Similarly, “ ‘[t]he public
employer is not required to wait until those working rela-
tionships actually disintegrate if immediate action might
prevent such disintegration.’ ” Kokkinis, 185 F.3d at 845(quoting Breuer v. Hart, 909 F.2d 1035, 1040 (7th Cir. 1990)).
We believe evidence of potential disruption also exists here.
Ms. Sullivan and Ms. Blanco were not privy to other employ-
ees’ work schedules or requests for leave. They merely
tracked work behavior they found aberrant without any
knowledge as to whether that behavior was consistent with
the individual employee’s time requirements or leave
requests. Such activity certainly has the potential to cause
co-worker distrust and the deterioration of working rela-
tionships. See Kokkinis, 185 F.3d at 845-46 (holding that evi-
dence on the record as to workplace disharmony, disruption
and deteriorating co-worker relations, which resulted from
the plaintiff’s TV appearance criticizing the police depart-
ment and the chief’s policies “amply support[ed]”
a Pickering balancing in favor of the employer’s interest
in an efficient workplace); see also Greer, 212 F.3d at 372(upholding Pickering balancing in favor of the employer
given the potential for speech to “disrupt the operation of
the Department by degrading the Department’s standing
with the public, undermining [the chief’s] authority and
inciting disharmony within Department ranks”); cf.
Gustafson, 290 F.3d at 911 (holding that mere assertion of a
generalized potential for disruption was insufficient to
support Pickering balancing in the employer’s favor).
We previously have noted that “the manner and means of
the employee’s protestation are key considerations in
balancing the employer’s and employee’s interests under
18 No. 02-4118
Pickering.” Greer, 212 F.3d at 371. Although Ms. Sullivan and
Ms. Blanco kept the notes to themselves, secreting them in
their purse, bag, case or desk, and made their notations
away from the office, the record also indicates that both
made no secret of their monitoring activity. This evidence
weighs against the free speech interests of Ms. Sullivan and
Ms. Blanco.
Finally, we consider the context in which the speech arose.
See Kokkinis, 185 F.3d at 846. Ms. Sullivan and Ms. Blanco’s
speech occurred in the wake of an investigation into an
anonymous letter alleging time abuse which was found to
be unsubstantiated. One employee indicated that this was
a “difficult time” for the Bureau given the state police
investigation. R.45, D. Cunningham Dep. at 40. Given the
tension created by the prior, unsubstantiated and anony-
mous allegation of time abuse, we believe that the Bureau
had a substantial interest in promoting workplace harmony.
Our consideration of workplace disruption within the
Bureau, the manner and means of Ms. Sullivan and Ms.
Blanco’s speech and the context in which that speech arose
leads us to conclude that the state’s interest as an employer
in promoting the efficient performance of public services
outweighed Ms. Sullivan and Ms. Blanco’s interests as
citizens in speaking on the issue of possible time abuse
in the Bureau in the manner they chose. Specifically, Mr.
Ramirez’s interest in terminating a cause of workplace
conflict outweighed Ms. Sullivan and Ms. Blanco’s interest
in monitoring their co-workers’ time by noting their arrivals
and departures.
Nothing we say here is intended, of course, to suggest that
state government employees are not protected by the First
Amendment (and often by state statute) when they report
illegalities in the workplace to appropriate authority. Such
No. 02-4118 19
activity must be undertaken, however, in a manner that
does not disrupt legitimate management efforts to maintain
an office’s focus on its mission. Here, the office in question
had established a uniform system of timekeeping, and the
head of the office had directed that other employees were
not to supplement—or supplant— this official record-
keeping. Nevertheless, the plaintiffs took it on themselves
not only to keep such extensive records but to make it clear
to other employees that they were keeping such records in
order to enforce their own views on appropriate manage-
ment practice. It is this gratuitous assumption of an unoffi-
cial managerial role—despite the decision of management
that such activity would be disruptive—that renders their
action beyond constitutional protection.
Having concluded that Ms. Sullivan and Ms. Blanco’s
claim does not survive the Pickering balancing test, we
need not consider whether speech was a substantial or mo-
tivating factor in a retaliatory action or whether the action
would have been taken absent the speech. See Vukadinovich
v. Bd. of Sch. Trs. of N. Newton Sch. Corp., 278 F.3d 693,
699 (7th Cir. 2002) (setting out the elements of a First
Amendment public employment retaliation claim). Neither
must we consider whether the law was clearly established
under the second prong of the qualified immunity analysis
because we conclude that the facts as alleged do not estab-
lish a First Amendment violation. See Saucier v. Katz, 533
U.S. 194, 201 (2001) (“If no constitutional right would have
been violated were the allegations established, there is no
necessity for further inquiries concerning qualified immu-
nity.”).
Conclusion
Mr. Ramirez is entitled to qualified immunity on Ms.
Sullivan and Ms. Blanco’s First Amendment claims under 42
U.S.C. § 1983. As a matter of law, Ms. Sullivan and
20 No. 02-4118
Ms. Blanco’s note-keeping is not constitutionally protected
speech under the Pickering balancing test. For this reason,
the judgment of the district court is reversed.
REVERSED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-3-04