Sullivan, Connie v. Ramirez, Robert

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