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
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
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
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
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
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
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
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
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
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 ...