Myers, Cynthia v. Hasara, Karen

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2680

Cynthia Myers,

Plaintiff-Appellant,

v.

Karen Hasara and Gail Danner,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois, Springfield Division.

No. 97 C 3295--Richard Mills, Judge.

Argued April 19, 2000--Decided September 5, 2000

Before Harlington Wood, Jr., Kanne and Diane P. Wood,

Circuit Judges.

Kanne, Circuit Judge. At the behest of its mayor,

the City of Springfield suspended health

inspector Cynthia Myers for comments she made

regarding an open-air produce market that

allegedly had been operating in violation of city

and state law. Myers considered the punishment a

violation of her constitutional rights and sued

the mayor and health department director under 42

U.S.C. sec. 1983. The district court granted the

defendants summary judgment on the merits and

also ruled that the defendants were entitled to

qualified immunity because the law regarding

discipline of public employees for exercising

their First Amendment rights was not clearly

established at the time of Myers’ suspension.

However, because the district court resolved

factual disputes in favor of the defendants, we

hold that summary judgment was not warranted in

this case. Furthermore, the standards concerning

a public employer’s authority to punish an

employee for exercising rights guaranteed under

the First Amendment were well established at the

time of the events in question, and therefore

qualified immunity was not justified. We reverse

the grant of summary judgment and remand for

trial.

I. History

Cynthia Myers worked as a supervisor and health

inspector in Springfield’s health inspection

program. In that role, she oversaw the food

inspection program, supervised five inspectors

and performed routine health inspections of

restaurants, markets and stores for compliance

with city and state health codes. Myers’ boss was

Steve Hall, the head of the Public Health

Department Environmental Division, who reported

to defendant Gail Danner, the acting head of the

Public Health Department. Danner reported to

Keith Haynes, the director of community services,

who reported directly to defendant Karen Hasara,

the Springfield mayor.

Although several steps removed from the pinnacle

of Springfield power, Myers had some supervisory

duties in her job and was called on to

participate in making division decisions and

formulating policies. The Springfield health

department, in addition to enforcing its own

ordinances, had entered into an agreement with

the state to enforce the state’s health laws.

Furthermore, the city’s health ordinances were

required to be no less stringent than the

state’s.

In 1995, a business called Parsons’ Produce

operated an open-air market in the parking lot of

a local department store. Parsons’ sold fruit and

vegetables under an agricultural commodity

permit, which permitted the sale of fresh

produce, but not packaged food products. The

restriction on selling packaged foods stems from

the increased risk of infestation and

contamination in an open-air market and the

recognition that the consumer typically knows to

inspect and wash fresh food, but may not do the

same with packaged products.

Myers inspected Parsons’ Produce in 1995 and

found that it was selling packaged food products

in an open-air market in violation of state and

local laws. Of the six businesses operating under

an agricultural commodity permit in the city,

only Parsons’ sold packaged foods. Myers filed

her report with Danner and Hall, who visited

Parsons’ and confirmed Myers’ finding. Hall

voiced concerns to Danner and Haynes about

Parsons’, which led to a meeting with the state

health department, which then formally notified

Haynes that Parsons’ was in violation of state

health laws. The city’s legal department notified

Haynes that Parsons’ was in violation of city and

state health laws, and that the city ordinance

could not be amended to allow Parsons’ to

continue to operate as it was without losing

state funding for the program. At the same time,

Hall sent Haynes a memorandum encouraging the

enforcement action against Parsons’. Hasara took

office in 1995 and was informed of the situation

with Parsons’. Several other meetings took place

over the course of 1995, but no action was taken

against Parsons’ to stop it from selling packaged

food products. Parsons’ closed for the season in

the fall of 1995.

In 1996, Parsons’ reopened and expanded into a

second location at a local mall. Myers again

inspected its facility. Myers found that Parsons’

continued to sell packaged food products without

the proper license, and reported this finding to

Danner. Knowing that it was operating in

violation of the permit, Myers refused to act on

its application for a new agricultural commodity

permit. Hall supported Myers’ position and

refused to approve the permit application.

Danner, however, acting on the directions of her

superiors, approved the permit and informed Myers

that she did not need to take any further action

regarding Parsons’. The defendants claim that

they gave Myers a clear directive to have no

further involvement with Parsons’, but Myers

disputes this factual contention.

Hasara, Danner and Haynes met with state health

officials in May 1996 and discussed the Parsons’

permit situation. Hasara believed Parsons’ was

not violating the law and voiced support for

Parsons’. State health officials disagreed, but

allowed that it was a local matter and said the

state health department would not interfere.

Hasara instructed Danner and Haynes to allow

Parsons’ to operate as it had before. Myers had

no other involvement with the permit issue, but

responded to two complaints--one in May, the

other in July--regarding Parsons’. Parsons’

complained to Haynes that Myers was harassing it.

Haynes investigated, but found no evidence to

support the complaint.

Later in May, the local newspaper published an

article concerning Parsons’ and the health

inspections, reporting that the market continued

to operate in violation of city and state health

codes. On May 30, while inspecting a restaurant

at the mall where Parsons’ operated one of its

markets, Myers and another health inspector met

with an assistant manager of the mall. Myers

asked the manager whether he had seen the

newspaper article, to which he responded that he

had. In response to the manager’s questions,

Myers said that Parsons’ was in violation of its

permit and the city had decided to take no action

against it. The mall manager was concerned about

the mall’s potential liability for health dangers

caused by one of its tenants, and Myers indicated

that she thought landlords could be held liable

for the actions of their tenants.

Jeff Parsons, the owner of Parsons’ Produce,

soon found out about Myers’ conversation with the

mall manager, and complained to the mayor’s

office. Hasara wanted to fire Myers for

expressing views contradictory to the city’s

policy on the issue, but Danner, Haynes and the

city personnel director felt that termination was

unwarranted. Hall also objected to disciplinary

action against Myers. Instead, Myers was charged

with failing to obey a reasonable directive and

a hearing was held on the charge, at which Danner

presided. On June 21, 1996, Myers was suspended

for five days. No other action was taken against

her.

Myers filed a two-count complaint against Hasara

and Danner, alleging deprivations of her First

and Fourteenth Amendment rights. After discovery,

the defendants moved for summary judgment on the

grounds that Myers’ comments to the mall manager

did not involve a matter of public concern, the

city’s interest in effective health inspection

administration outweighed Myers’ First Amendment

rights and, in any event, Danner and Hasara were

entitled to qualified immunity. The district

court, applying the test for public-employee

speech established in Pickering v. Board of

Education, 391 U.S. 563 (1968), agreed on all

three grounds and granted the defendants summary

judgment. This appeal followed.

II. Analysis

We review de novo a grant of summary judgment,

see Weicherding v. Riegel, 160 F.3d 1139, 1142

(7th Cir. 1998), as well as a district court’s

decision that a defendant is entitled to

qualified immunity. See Forman v. Richmond Police

Dep’t, 104 F.3d 950, 956-57 (7th Cir. 1997).

Summary judgment is proper when "the pleadings,

depositions, answers to interrogatories, and

admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to

any material fact and that the moving party is

entitled to a judgment as a matter of law." Fed.

R. Civ. P. 56(c); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986). In

determining whether a genuine issue of material

fact exists, we construe all facts in the light

most favorable to the non-moving party and draw

all reasonable and justifiable inferences in

favor of that party. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).

A. Pickering Balancing

In her complaint, Myers alleged that she had a

protected First Amendment right to make the

comments she did to the mall manager regarding

Parsons’ permit situation and the city’s policy

of not enforcing the relevant ordinance. The

Supreme Court has long held that a public

employee maintains a First Amendment right to

speak out on matters of public concern even

though she works for the government. See

Pickering, 391 U.S. at 568; see also Connick v.

Myers, 461 U.S. 138, 142 (1983). A public

employee can be punished for exercising that

right only if the facts of the case, as

reasonably known to the employer, indicate that

the employer’s interest in promoting efficiency

of public services outweighs the employee’s

interest in free speech. See Waters v. Churchill,

511 U.S. 661, 668 (1994); Pickering, 391 U.S. at

568. Courts after Pickering have engaged in a

two-part analysis to determine whether the

"interests of the [employee], as a citizen, in

commenting upon matters of public concern"

outweighed the "interest of the State, as an

employer, in promoting the efficiency of the

public services it performs through its

employees." Id.

1. Matters of Public Concern

In Hulbert v. Wilhelm, 120 F.3d 648, 653 (7th

Cir. 1997), we re-stated the Pickering analysis

as a three-part inquiry, although still

addressing the core concern identified in

Pickering. We held that the first part of

Pickering sought to determine (1) whether the

speech would be protected if uttered by a private

citizen and (2) whether the speech was more than

an unprotected "personal employee grievance."

Hulbert, 120 F.3d at 653. If so, then we would

consider the speech to meet the test for speech

by a citizen on a matter of public concern. See

id. A number of factors are relevant to this

analysis including the content, form and context

of the remarks, see Connick, 461 U.S. at 147-48,

and whether the remarks can fairly be

characterized as relating to issues of

"political, social, or other concern to the

community." Id. at 146.

The district court held that the subject of

Myers’ comments was not a matter of public

concern. We disagree. It is important to good

government that public employees be free to

expose misdeeds and illegality in their

departments. Protecting such employees from

unhappy government officials lies at the heart of

the Pickering cases, and at the core of the First

Amendment. For example, in Marshall v. Porter

County Plan Commission, 32 F.3d 1215, 1218 (7th

Cir. 1994), the plaintiff, an employee in the

building inspector’s office, told the county

planning commission that required inspections

were not being done and provided a list showing

that half of the required inspections had not

been performed. The commission took no action,

but later fired her in part because of her

complaints regarding the building inspections. We

held that the activities about which the

plaintiff complained "were the type that result

in the misuse of public funds and trust. These

were not employment disputes or criticisms of the

way that only [plaintiff’s] job was affected."

Id. at 1219-20. As a matter of law, we found

these comments to be about matters of public

concern. Id. at 1220.

Myers’ comments to the mall manager are

analogous. The city had a duty to enforce both

its own and the state’s food-inspection laws.

There is no doubt that the inspection laws were

valid and routinely enforced and that Parsons’

practice of carrying packaged food products

violated its permit. For whatever reason, the

mayor and department head had decided not to

enforce the law against Parsons’ despite the

city’s duty to do so. Food-inspection rules, even

ones that do not threaten cataclysmic harm, serve

to protect the public health from risks of

contamination. Like the plaintiff in Marshall,

Myers found it objectionable that her department

would refuse to enforce the law. The content of

her comments to the mall manager involved a

matter of public concern.

Following Hulbert, we find that Myers’ criticism

of the city for turning a blind eye to a known

permit violation and potential health risk would

have been protected if uttered by a private

citizen and was more than a personal employee

grievance. In fact, it bore no relation to the

gripes about office policies, scheduling and

personnel decisions like those at issue in

Connick, where the Court held that such employee

grievances were not matters of public concern.

461 U.S. at 148. The district court, examining

the "content" of Myers’ remarks, found that

because she focused on Parsons’ licensing

problem, she was concerned not with a public

health hazard but with her own dispute with her

supervisors. Myers v. Hasara, 51 F.Supp.2d 919,

926-27 (C.D. Ill. 1999). We disagree.

Whistleblowing does not need to be limited to

systemic charges of corruption to qualify as a

matter of public concern. A specific violation of

a law that creates a risk to public health,

safety or good governance likewise is a matter of

public concern. Myers knew of one such violation

and reported it to an obviously concerned party

who she knew would take action on it. The fact

that "her exact language is directed specifically

at Parsons’," Myers, 51 F.Supp.2d at 927, made

sense considering that she perceived it to be a

public health risk.

Furthermore, a "personal aspect contained within

the motive of the speaker does not necessarily

remove the speech from the scope of public

concern." Marshall, 32 F.3d at 1219. Myers’

disgust or frustration about the city’s decision

to ignore a health-code violation does not mean

that her complaint was not a public concern.

While the speaker’s motivation is relevant to the

Pickering analysis, it is not necessarily

dispositive, see Gregorich v. Lund, 54 F.3d 410,

415 (7th Cir. 1995); Colburn v. Trustees of

Indiana Univ., 973 F.2d 581, 587 (7th Cir. 1992),

and does not transform Myers’ remarks into

matters of private concern in this case. We

disagree with the district court that she spoke

"more as a disgruntled employee" or that her

remarks in some way were a personnel grievance.

We hold that the speech for which Myers was

disciplined related to a matter of public

concern, precluding summary judgment for the

defendants on this issue.

2. The City’s Interest

The district court found that the city’s

interest in "promoting efficient and effective

public service outweighed Plaintiff’s right to

express herself." Myers, 51 F.Supp.2d at 928.

However, in doing so, the district court resolved

disputed issues of material fact in the

defendant’s favor, thereby rendering summary

judgment improper. To answer the second part of

the Pickering test, we have identified seven

factors to consider. See Kokkinis v. Ivkovich,

185 F.3d 840, 845 (7th Cir. 1999); Wright v.

Illinois Dep’t of Children & Fam. Servs., 40 F.3d

1492, 1502 (7th Cir. 1994). Among those relevant

to the summary judgment in this case are whether

the speech created disharmony in the workplace

and whether the employment relationship requires

personal loyalty and confidence. See id. Both of

these factors were influenced by the question of

whether Myers had been given a clear directive

not to discuss the issue further.

The district court disregarded this question

rather than resolve it in Myers’ favor. In the

district court’s opinion, the issue was

irrelevant because Hasara reasonably believed

that Myers had been given the order. We disagree.

Myers was suspended for violating a superior’s

order, an offense that undoubtedly raises a

legitimate governmental interest. However, the

parties dispute whether Myers was given this

order. If she was not, then her remarks to the

mall manager were not in violation of a clear

directive, and the governmental interest in

having employees follow orders and accurately

portray the agency’s policies was not implicated.

Therefore, this issue goes to the heart of Myers’

complaint and should have been resolved in her

favor for purposes of summary judgment.

The district court further found that Myers’

actions created disharmony because city officials

disagreed about how or whether she should be

punished. Myers, 51 F.Supp.2d at 928. This

analysis treats the "disharmony" factor in a

Pickering claim in a way that could prevent

plaintiffs from ever prevailing. The disharmony

that undermines the government interest in

efficient and effective service stems from the

content of the speech itself, such as by

undermining public confidence in the agency or

contradicting the agency’s public message. We

would imagine that in most Pickering claims,

government officials debated the proper

punishment for the speaker. This cannot be the

source of the relevant disruption or disharmony

since it would weigh against every plaintiff.

Just as disharmony was present when the superiors

discussed Myers’ punishment, it would have been

absent had they not sought to punish her.

Another factor to consider in balancing the

government’s interest is whether the time, place

or manner of the employee’s speech disrupted the

government’s provision of services. See Coady v.

Steal, 187 F.3d 727, 731 (7th Cir. 1999); Wright,

40 F.3d 1502. This analysis questions whether the

employee could have aired her concerns at a

better time or in a better way and created

unnecessary confusion or turmoil by expressing

herself in the way she did. Cf. Khuans v. School

Dist. 110, 123 F.3d 1010, 1017 (7th Cir. 1997)

(holding that teacher’s complaints disrupted

daily routine of school); Breuer v. Hart, 909

F.2d 1035, 1040 (7th Cir. 1990) (explaining that

complaint was filed in an appropriate manner,

even though it legitimately addressed a matter of

public concern).

The district court applied this factor in the

defendants’ favor because it found that Myers

expressed her concerns to a limited audience that

could not change city policy but could render

economic harm to Parsons’. However, the fact that

she spoke to a limited audience was not

particularly disruptive to the government. In

fact, her actions seemed discreet, in that she

could have chosen far more disruptive forums,

such as writing a letter to the local newspaper

or appearing at a city council meeting. By Myers’

action, the mall management and Parsons’ may have

complained to the city about the permit problem,

but this seems a very limited form of disruption.

Also, the district court noted that the mall

manager believed Myers’ comments were motivated

by frustration with the city. This latter

conclusion merely speaks to Myers’ intent and is

irrelevant to whether Myers chose the appropriate

time, place and manner for her remarks. Assuming

that Myers chose this forum, rather than had it

chosen for her by the mall manager, it seems to

be the least disruptive forum she could have

picked. In addition, there were several factual

questions regarding the conversation Myers had

with the mall manager that the district court

resolved against Myers, rather than in her favor

as required on a summary judgment motion.

B. Qualified Immunity

Finally, the district court found that Hasara

and Danner were entitled to qualified immunity.

A government official is entitled to immunity

from suit when performing discretionary functions

unless the district court determines that (1) the

plaintiff alleged a constitutional injury, and

(2) the legal standards applicable to the injury

were clearly established at the time. See Harlow

v. Fitzgerald, 457 U.S. 800, 815 (1982); Rakovich

v. Wade, 850 F.2d 1180, 1210 (7th Cir. 1988). The

district court held that Myers failed to allege

a constitutional injury and dismissed the suit on

the basis of qualified immunity. Because we

reverse the grant of summary judgment on the

ground that Myers successfully raised a question

of material fact regarding her First Amendment

claim, we likewise reverse the court’s finding

that she failed to meet the burden of pleading a

constitutional injury.

The district court further found that Hasara

suspended Myers because she "had disobeyed a

directive in violation of civil service rule

48(e)." In the district court’s view, the

constitutional standards regarding a government

employer’s right to discipline an employee for

engaging in protected speech in disregard of a

supervisor’s direct order were not clearly

established in 1996. However, several cases in

this Circuit prior to 1996 discussed in detail

the balancing of interests between a government

employer’s right to require obedience,

confidentiality and silence against an employee’s

First Amendment right to speak on matters of

public concern. See, e.g., Conner v. Reinhard,

847 F.2d 384, 390-91 (7th Cir. 1988); O’Brien v.

Town of Caledonia, 748 F.2d 403, 406-07 (7th Cir.

1984); Hanneman v. Breier, 528 F.2d 750, 754 (7th

Cir. 1976). For instance, O’Brien involved police

department regulations that prohibited all public

criticism of the department and required police

officers to keep all department business

confidential. 748 F.2d at 405. We held that

Pickering demanded the department weigh the

police officer’s individual right to speak on

matters of public concern against the

department’s valid right to enforce the

challenged rules before disciplining an officer

for violating those rules. Id. at 406-07. Other

cases have similarly required Pickering analysis

even though the stated reason for an employee’s

discipline was insubordination rather than the

content of the employee’s speech. See generally

Dishnow v. School Dist. of Rib Lake, 77 F.3d 194

(7th Cir. 1996); Warzon v. Drew, 60 F.3d 1234

(7th Cir. 1995). It was, therefore, clear in June

1996 that government employees had a First

Amendment right to speak on matters of public

concern that must be weighed against the

employer’s right to punish insubordination.

Hasara and Danner cannot claim not to have known

that disciplining Myers under these circumstances

would not implicate her right to free speech.

III. Conclusion

We hold that as a matter of law, Myers’

comments regarding the city’s decision not to

enforce its health-code permit regulations

focused on matters of public concern, and that

because questions of material fact remain,

summary judgment was inappropriate. This decision

does not decide the merits of the factual issues

one way or the other, but leaves factual

determinations to a jury or a bench trial.

Finally, Hasara and Danner were not entitled to

qualified immunity. We therefore Reverse the

district court’s grant of summary judgment and

Remand the case for further proceedings.