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June 14, 1991


The opinion of the court was delivered by: Richard Mills, District Judge:


The First Amendment and public employees.

Does the First Amendment mean that the state, as an employer, must sit idly by while a public employee, motivated by jealousy and a difference of professional opinion, acts to undermine his supervisor and his employer?


Verdict is directed in favor of Defendants.

This court is aware, of course, that a verdict should be directed only if the evidence, when viewed in the light most favorable to the nonmovant, fails to provide a basis upon which a jury could reasonably find for the nonmovant. Birdsell v. Board of Fire and Police Comm'rs, 854 F.2d 204, 206 (7th Cir. 1988) (citing Van Houdnos v. Evans, 807 F.2d 648, 650 (7th Cir. 1986); Benson v. Allphin, 786 F.2d 268, 279 (7th Cir.), cert. denied, 479 U.S. 848, 107 S.Ct. 172, 93 L.Ed.2d 109 (1986)).*fn1 All disputed issues of material fact, including questions of witness credibility, are to be resolved in favor of the nonmovant. Birdsell, 854 F.2d at 206 (citing Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1213 (7th Cir. 1985)). Therefore, our summary of the facts purposefully stresses the evidence that would support a resolution of disputed issues in Plaintiff's favor.


Tony Marquez graduated from high school in New Jersey and was trained in medical services while serving in the U.S. Air Force in Vietnam. He was hired by the Illinois Department of Public Health in 1971 and was involved in the establishment of trauma services centers.

Marquez rose quite rapidly for a man whose formal education stopped at high school, and by 1977 he occupied the position of Chief of Program Operations. In that capacity, he was responsible for ambulance service licensure and EMS system compliance.

In 1986, the position of Division Chief was once more vacant and Plaintiff reapplied. This time the position went to Ms. Stein-Spencer, a registered nurse with a master's degree, who had served as a nurse coordinator for a hospital in northern Illinois.

Until the fall of 1989, the Division Chief reported to the Associate Director of Health Services, Mrs. Shirley Randolph, who had held the position of Associate Director since 1979. The position of Associate Director reported to the Director, the position then held by Dr. Turnock.

Marquez was disappointed that he did not get the position of Division Chief and handled his disappointment in less than a professional manner. He complained to others that Ms. Stein-Spencer was "not qualified." Not surprisingly, the relationship between Ms. Stein-Spencer and Plaintiff was difficult.

Plaintiff's February, 1987 performance appraisal stated Plaintiff "moderately accomplishes" his job duties. Plaintiff filed a grievance over the evaluation. During the grievance process, Plaintiff described his supervisor, Ms. Stein-Spencer, as biased, vindictive and malicious. Referring to his supervisor's criticism of his leadership, Marquez commented that it was "the proverbial pot and kettle." Similar accusations were made by Plaintiff at the second level of the grievance process. The grievance responses of Mrs. Randolph and the personnel division noted that Plaintiff's comments exhibited that Plaintiff had a poor attitude toward his supervisors.

During the following month, Marquez was suspended for a day without pay for failing to follow written directives from his supervisor. The written directive at issue required EMS Staff to get approval from Ms. Stein-Spencer to attend State EMS Advisory Counsel meetings, which normally occurred during work hours.

On March 5, 1987, Plaintiff called in sick with a toothache. At 11:00 a.m. that day, Plaintiff attended an Emergency Medical Services Counsel meeting in Springfield, though he had not obtained prior approval. When asked about his attendance at the meeting, Plaintiff stated that his toothache was better and he decided to return to work by attending the EMS Counsel meeting.

Plaintiff grieved the suspension and sent Dr. Turnock a memorandum, dated March 23, 1987, protesting the action and asking "How long will the Department of Public Health allow a vindictive supervisor to randomly violate the rights of an employee?" Plaintiff also suggested an investigation into this "increasingly intolerable situation."

Between June, 1986 and August, 1988, Plaintiff was involved in the investigation of a number of ambulance services. Also involved in these investigations were the Department's Regional EMS Coordinators and the Project Medical Directors. Under the Emergency Medical Services Systems Act, Ill.Rev.Stat., ch. 111 1/2 ¶ 5513(e), the Project Medical Director is a physician who continually monitors and supervises the EMS services at a local level.

The tension between Marquez and his supervisor, Ms. Stein-Spencer, spilled over into the handling of these investigations. Plaintiff found potential violations during his investigations of several ambulance services and recommended that those ambulance services be suspended. Ms. Stein-Spencer instructed Plaintiff to forward his findings to the local Project Medical Director. At a meeting held July 21, 1987, Plaintiff disagreed with advising the Project Medical Director of his findings on the basis that certain allegations implicated the EMS System as part of the problem. Mrs. Randolph and Mr. Brey, the Department of Public Health liaison to the Illinois State Police, agreed with Ms. Stein-Spencer. Plaintiff admitted that he became argumentative.

The culmination of the clash between Plaintiff and his supervisor over how violations should be handled came in the course of an investigation into Arrow Ambulance Service in Champaign, Illinois. The first investigation into Arrow began in May, 1987 after Dr. Cleve Trimble, Trauma Services Director at Burnham Hospital, and Dr. Gary Roth, Project Medical Director for the local EMS System met with Ms. Stein-Spencer. The investigation was initially assigned to Bill Boswell, the Regional EMS Coordinator, but Plaintiff was allowed to join the investigation. After reviewing the records, Plaintiff alleged certain violations and recommended that Ed Piraino, lead paramedic and former owner of Arrow, be suspended and that the EMS System be cited. Ms. Stein-Spencer directed Plaintiff to forward his findings to the Project Medical Director.

Dr. Joseph Danna, who had replaced Dr. Roth as Project Medical Director, reviewed Plaintiff's findings and submitted a detailed corrective action plan. That plan was accepted by Ms. Stein-Spencer and Plaintiff. Dr. Danna placed Piraino on probation, rather than suspension.

In September and October of 1987, new allegations against Arrow surfaced. Dr. Danna looked into these allegations and suspended Ed Piraino. A second investigation was begun in late October. As before, the investigation was initially assigned to Bill Boswell, but Plaintiff was allowed to join the investigation. Plaintiff again alleged certain violations and recommended that Arrow be suspended and the EMS System further reviewed. Ms. Stein-Spencer directed Plaintiff to inform Dr. Danna of his findings. In response to those findings, Dr. Danna prepared a second corrective action plan in December, 1987 which Plaintiff conceded was a good plan. Arrow was not suspended.

Marquez described the atmosphere that existed in the Spring of 1988 in the Champaign/Urbana hospital community as very competitive and admitted that he knew there were "Hospital Wars" going on at that time. In Champaign/Urbana, both Carle Hospital and Burnham Hospital were attempting to become "Resource Hospitals" under their own EMS System, and to be designated as Level I Trauma Centers.*fn2

In April, 1988, Dr. Cleve Trimble, the Trauma Services Director at Burnham Hospital, contacted Plaintiff at home about a new complaint against Arrow. Dr. Trimble also contacted Ms. Stein-Spencer about the new complaint. At that time, Arrow was owned by Carle Hospital and was listed as Carle ...

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