(2) that someone in the office received a call from the paper
on August 17; the person called knew nothing about the incident
and had to call Plaintiff to find out what happened after
learning that Plaintiff had talked to the paper on August 12;
(3) that Plaintiff's statements violated a departmental
directive allowing only the Director of the Department, the
Department's Director of Communications (DOC), and designated
Public Information Officers (PIOs) to speak for the Department;
(4) that Plaintiff's statements also violated a provision
that allows other employees to answer media requests for
immediate information if "it is strictly a factual inquiry" and
requiring the employee to inform the DOC or a PIO of the
(5) that Plaintiff's statements violated a part of the
directive making certain information on internal workings
The conclusion of the memorandum instructed Marquez that:
"From now on, you are to refrain from speaking to any news
people on any EMS issue."
In August, 1988, Dr. Turnock transferred Marquez out of the
EMS Division on a six-month special assignment on injury
control issues. Plaintiff called Dr. Turnock at home on August
24, 1988 regarding the special assignment. Dr. Turnock told
Plaintiff he was getting the assignment so that Ms.
Stein-Spencer could do her job and because there was a
departmental need he could fill. Marquez testified that Dr.
Turnock asked him to "hang up while we're still friendly."
In September, 1988, Ms. Stein-Spencer and Mrs. Randolph
completed their plan to reorganize the EMS Division. This plan
included the elimination of the Chief of Program Operations
position. In February, 1989, Plaintiff accepted a permanent
position in injury control, his former position having been
For a government employee to succeed on a First Amendment
claim against his employer, he must show (1) that the speech
was constitutionally protected under the circumstances, and (2)
that the employer retaliated against the employee for that
speech. See Barkoo v. Melby, 901 F.2d 613, 617 (7th Cir. 1990).
See also, Knapp v. Whitaker, 757 F.2d 827, 845 (7th Cir. 1985),
cert. denied, 474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29 (1985).
As the Supreme Court stated in Connick v. Myers, where the
expression is not on a matter of public concern, "government
officials should enjoy wide latitude in managing their offices,
without intrusive oversight by the judiciary in the name of the
First Amendment." Connick, 461 U.S. 138, 146, 103 S.Ct. 1684,
1690, 75 L.Ed.2d 708 (1983). The Supreme Court held in that
case that "absent the most unusual circumstances, a federal
court is not the appropriate forum in which to review the
wisdom of a personnel decision taken by a public agency
allegedly in reaction to the employee's behavior." Connick, 461
U.S. at 147, 103 S.Ct. at 1690.
In Connick, an employee, disgruntled about the fact she was
to be transferred, designed a questionnaire and passed it out
to fellow employees. The Court stated that "Whether an
employee's speech addresses a matter of public concern must be
determined by the content, form, and context of a given
statement, as revealed by the whole record." Connick, 461 U.S.
at 147-48, 103 S.Ct. at 1690. The Court held that most of her
speech related to her personal grievance and did not involve
matters of public concern. Her actions reflected her
"dissatisfaction . . . and an attempt to turn that displeasure
into a cause celebre." Connick, 461 U.S. at 147, 103 S.Ct. at
1690. Further, the Court noted that the Plaintiff was not
seeking to inform the public that the office in which she
worked was not discharging its governmental responsibilities or
that her supervisor or others were involved in wrongdoing or
breaching the public trust. Connick, 461 U.S. at 148, 103 S.Ct.
at 1690. One question, however, having to do with pressure to
work on political campaigns did, in a limited fashion, touch on
a matter of public concern. That question was sufficient to
bring into play the balancing test set forth
in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct.
1731, 20 L.Ed.2d 811 (1968). Given the unlimited circumstances
where a public employee's statement on an issue of public
concern could clash with the employer's interest in running its
office, the Supreme Court declined "to attempt to lay down a
general standard against which all such statements may be
judged." Pickering, 391 U.S. at 569, 88 S.Ct. at 1735. Under
Pickering, "the State's burden in justifying a particular
discharge varies depending upon the nature of the employee's
expression." Connick, 461 U.S. 138, 150, 103 S.Ct. 1684, 1692.
In Connick, the Supreme Court, applying the balancing test,
noted that the employee's speech touched on matters of public
concern only in a "most limited sense" and that speech was
"most accurately characterized as an employee grievance
concerning internal office policy." The limited First Amendment
interest involved did not require the employer to "tolerate
action he reasonably believed would disrupt the office,
undermine his authority, and destroy close working
relationships." Connick, 461 U.S. 138, 154, 103 S.Ct. 1684,
1694. Therefore the employee's discharge did not offend the
An employee does not relinquish his First Amendment rights
when he goes to work for the government, but he implicitly
agrees that his rights to speech can be balanced against the
government's interest in running an efficient office. See
Breuer v. Hart, 909 F.2d 1035 (7th Cir. 1990). The threshold
inquiry is whether the government employee's statements or
actions involved an issue of public concern, so that
Defendant's actions may be "`subject to judicial review' under
the First Amendment." Breuer, 909 F.2d 1035, 1037 (citing
Connick v. Myers, 461 U.S. 138, 146-47, 103 S.Ct. 1684, 1690,
75 L.Ed.2d 708 (1983)). If so, then the employee's interest "as
a citizen, in commenting upon matters of public concern" must
be balanced against the State's interest, as an employer, in an
efficient workplace. Breuer, 909 F.2d 1035, 1037 (citing
Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731,
1734, 20 L.Ed.2d 811 (1968)). "Though these inquiries require
predicate factual determinations, they are questions of law."
Breuer, 909 F.2d 1035, 1037 (citations omitted).
The emphasis in Pickering on the public employee's right "as a
citizen, in commenting upon matters of public concern" is
significant. That emphasis reflects the historical development
of the rights of public employees as well as "the common-sense
realization that government offices could not function if every
employment decision became a constitutional matter." Connick v.
Myers, 461 U.S. at 143, 103 S.Ct. at 1688.
The Seventh Circuit has refused to extend First Amendment
protection where the speech's "subject matter related to the
`internal operations within a government agency' that [the
Seventh Circuit suggested in Berg v. Hunter, 854 F.2d 238, 242
(7th Cir. 1988)] were not matters of public concern." Barkoo v.
Melby, 901 F.2d 613, 620 (7th Cir. 1990).
Where the employee's speech hinders or threatens to hinder
the efficiency of the operation or agency, the employee's
termination does not offend the First Amendment. Berg v.
Hunter, 854 F.2d 238 (7th Cir. 1988) (citing Connick v. Myers,
461 U.S. 138, 152, 103 S.Ct. 1684, 1692, 75 L.Ed.2d 708
(1983)). The employer is not required to wait until working
relationships disintegrate when immediate action might prevent
such disintegration. Breuer, 909 F.2d 1035, 1040.
In this case, Plaintiff had three major conflicts with his
supervisor. First, they disagreed on whether noncompliance with
regulations should result in a summary suspension or in
probation combined with a plan for corrective actions. Second,
they disagreed on whether investigations of ambulance services
should be directed centrally, by the Chief of Program
Operations, or locally, by the Regional EMS Coordinator and the
Project Medical Director. Third — and most important — they
disagreed on who should make the final decisions. Although
Plaintiff claimed to recognize
that Ms. Stein-Spencer, as Division Chief, had "the ultimate
responsibility and authority to dictate the manner in which
[they enforced] the EMS Act and attendant rules," Plaintiff
protested to Ms. Stein-Spencer, to Mrs. Randolph, to the legal
department, to Dr. Turnock, and to the press, when his
recommendations as to how the Act and rules should be enforced
were not followed.
An application of the controlling legal principles makes it
clear that a directed verdict must be entered in favor of the
Defendants in this case.
As stated in Pickering and emphasized in Connick, the First
Amendment protects the right of a public employee as a citizen,
not as an employee, to speak on matters of public concern.
Marquez's most disruptive act of "speech" involved the
memorandum he wrote to his supervisor, Division Chief Leslee
Stein-Spencer, with a copy to her supervisor, Associate
Director Mrs. Randolph. This memorandum was clearly written as
an employee of the Department of Public Health — not as a
citizen. Plaintiff's surreptitious supplying of a copy of this
memorandum to Dr. Trimble and his granting of permission to a
newsperson to use the memo does not change the fact that he
wrote it as an employee.
Plaintiff's statements to the Belleville News-Democrat that
appeared in the August 16, 1988 edition were also made as an
employee, rather than as a citizen. Indeed, the paper
identifies him as "Anthony Marquez of the Illinois Department
of Public Health's emergency medical services." And when
Plaintiff attended a meeting he had been directed not to attend
without his supervisor's permission, after calling in sick that
morning, he later claimed that he had felt better and decided
to return to work by attending the meeting. Therefore, based on
Plaintiff's own characterization, it must be concluded that he
attended the meeting as an employee, rather than as a citizen.
Even if Plaintiff had spoken as a citizen, rather than as an
employee, most of his speech would not have been protected.
This case is somewhat similar to Connick. As in Connick,
Plaintiff was not seeking to inform the public of some
wrongdoing or a breach of the public trust. Most of Plaintiff's
speech was motivated by personal dissatisfaction and his desire
to turn his dissatisfaction into a cause celebre. Plaintiff's
dissatisfaction stemmed from the fact that his investigative
responsibilities were being lessened and that his
recommendations weren't followed. And Plaintiff's frustrations
that the Division wasn't run his way was consistent with his
attitude that he was better qualified to be Division Chief than
Ms. Stein-Spencer. Connick stated that whether speech addresses
a matter of public concern is based on "the content, form, and
context of a given statement as revealed by the record as a
whole." Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. The
content of most of Plaintiff's speech involved internal office
decisions. The form and context of Plaintiff's protests
evidenced tactlessness, poor judgment, insubordination and
To the extent that Plaintiff's speech touched, albeit
tangentially, on the quality of emergency medical health care,
that is an area of public concern. If Plaintiff's speech had
been as a citizen, rather than as an employee, that would
require application of the Pickering balancing test. That test
involves balancing the employee's interest "as a citizen, in
commenting upon matters of public concern" against the State's
interest, as an employer, in an efficient workplace. Breuer,
909 F.2d 1035, 1037 (citing Pickering v. Board of Educ.,
391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)).
In this case, Plaintiff's speech touched on a matter of
public concern only in a "most limited sense." And here,
Plaintiff's actions did not merely threaten to disrupt the
efficiency of the office — Plaintiff's actions created an
"intolerable situation." The disruption of the office was so
extreme that one reason the Director stated for Plaintiff's
transfer was to allow his supervisor to do her job. Plaintiff's
accusations of his
supervisor describe his own actions — biased, vindictive and
So even if Marquez had spoken as a citizen, his limited First
Amendment interest would not have required the Department of
Public Health to tolerate the disruption of the office, the
undermining of the authority of his superiors, and the
destruction of working relationships that Marquez inflicted on
Ergo, Defendants' motion for a directed verdict is ALLOWED.