contamination from insects, rodents, molds, dust, and mildew because
Parsons' was selling these retail food items from, a tent. After
conducting her inspection, Myers met with Hall, Danner, and. Haynes to
discuss her findings.
In early May 1995, Haynes, Danner, Hall, Myers, and Shirley Bohm, an
employee of the Illinois Department of Public Health, conducted an
on-site inspection of Parsons'. After conducting this inspection, Bohm
advised Haynes that Parsons' was violating the State's health
regulations. In a letter sent to Haynes dated May 11, 1995, Bohm expanded
on her conclusion by explaining that Parsons' did, not meet the
definition of a temporary retail food store because it had operated at a
fixed location for more than 14 days and that it did not qualify as a
roadside Market because it sold such pre-packaged products as jars of
honey, jams, and jellies. Therefore, Bohm opined that Parsons' had to
comply with all of the requirements of a retail food store and that
Parsons' was not doing so.
In addition, after the inspection, Haynes asked for and received a
memorandum from Springfield assistant corporation counsel Janis Von
Qualon and a memorandum from Hall regarding Parsons'. In her memorandum
dated May 22, 1995, Von Qualon advised Haynes that at least three reasons
existed why abandonment of the State's health code and adoption of
different regulations for vendors such as Parsons' was irrational.
First, it would require a new code of regulations to be drafted. Second,
the City's health inspectors would have to be educated regarding the
changes and trained to enforce the new provisions. Third, and most
importantly, the City would lose its state certification and the funding
which accompanies it. Likewise, in his memorandum dated May 19, 1995,
Hall informed Haynes that Parsons' did not meet the applicable State and
City health regulations and suggested that Parsons' be limited to selling
agricultural commodities consistent with its agricultural commodities
After receiving this information, Haynes informed Mayor Hasara that he
was of the opinion that serious health code violations existed at
Parsons'. Mayor Hasara then met with Mark Schmidt, who was the assistant
director of the Illinois Department of Public Health, in order to obtain
advice on how to proceed on the Parsons' issue. Although the City's
department of public health continued to review issues surrounding
Parsons' licensing, neither the Mayor's office nor, the City's department
of public health took any further action against Parsons' after May
1995, other than enforcing regulations regarding food handling and
preparation. In October 1995, Parsons' closed for the season.
In March 1996, Parsons' again opened for business inside a tent located
at the J.C. Penny's parking lot. Myers inspected Parsons', and on March
20, 1996, she wrote a memorandum to Danner in which she informed Danner
that she could not approve Parsons' building permit because' it did not
meet the Illinois Department of Public Health's: minimum requirements. In
addition, Myers advised Danner that she was declining to either approve
or disapprove Parsons' agricultural commodities license application
because Parsons' met the definition of a retail food store, not an
agricultural commodities facility. Myers opined that Parsons' should be
required to apply for a retail food license, although she acknowledged
that Parsons' would not qualify for such a license. In response, Danner
informed Myers that she had previously approved Parsons' agricultural
commodities license and that Myers did not need to take any further
action regarding Parsons'*fn3 Accordingly, Parsons'
continued to operate as it had in 1995 under an agricultural commodities
On May 23, 1996, Parsons' filed a second application for an
agricultural commodities license to be used at a second facility operated
at the White Oaks Mall's parking lot. That same day, Mayor Hasara,
Haynes, and Danner met with Mark Schmidt and Dave King of the Illinois
Department of Public Health to discuss Parsons'. At that meeting, Mark
Schmidt guaranteed Mayor Hasara that the City would not lose its State
funding if the City continued to allow Parsons' to operate as it had been
under an agricultural commodities license. Moreover, Mark Schmidt and
King advised Mayor Hasara, Haynes, and Danner that the Illinois
Department of Public Health would not intervene in the Parsons' matter;
rather, the Department would consider the issue to be a local concern.
Accordingly, Mayor Hasara, Haynes, and Danner decided that the City
would not take any action against Parsons' regarding its ability to sell
retail food products under its agricultural commodities license. On May
24, 1996, Mayor Hasara and Danner approved Parsons' application for an
agricultural commodities license for its White Oaks Mall facility.
Although the City allowed Parsons' to sell retail food products under an
agricultural commodities license, Mayor Hasara instructed Haynes and
Danner to ensure that Parsons' remedied all other existing code
violations. Danner informed Myers and Hall that if any problems or issues
arose regarding Parsons' which they felt uncomfortable handling, then she
would address those problems herself and would keep them informed.
Otherwise, Parsons' was going to continue to operate under the status
On May 30, 1996, while acting in her official capacity as a
representative of the City's department of public health, Myers inspected
the "Mandarin Express" which was a restaurant located at the White Oaks
Mall.*fn5 While at the mall, Myers visited its manager, John Schmidt.
During her conversation with John Schmidt, Myers asked him whether he had
read the newspaper article regarding Parsons' Produce*fn6. Schmidt
acknowledged reading the article and began asking her questions about
The specifics of the conversation which ensued are somewhat disputed.
Myers asserts that in response to Schmidt's questioning, she informed him
that Parsons' did not meet the requirements for securing a retail food
service license, that Parsons' possessed an agricultural commodities
license, that Parsons' was in conflict with the applicable health
regulations, and that the City was' not going to take any action against
Parsons'. Myers claims that in response to a comment by Schmidt
regarding potential liability if a consumer were to sue Parsons', she
informed him that, from her experience, a property owner is usually
included in such a lawsuit. Myers argues that at all times during her
conversation with Schmidt, she was merely attempting to truthfully answer
his questions and was relaying the City's official policy regarding
Mayor Hasara and Danner assert that Myers told Schmidt that Parsons'
was not in compliance with the applicable health regulations because it
did not have a retail food service license. Furthermore, Mayor Hasara and
Danner claim that Myers told Schmidt that the regulations at issue were
not going to be changed and that the mall would be held liable if anyone
were injured as a result of buying' retail food items from Parsons'.
Mayor Hasara and Danner argue that Myers' comments to Schmidt were in
direct conflict with the City's official position regarding Parsons'.
Schmidt informed Myers that based upon their conversation, he was going
to take action against Parsons' because it was the mall owner's policy
that all tenants were to comply with all federal, state, and local laws
in order to keep their lease.
On May 31, 1996, Brian McFadden, Mayor Hasara's chief of staff,
received a letter from Jeff Parsons, the owner of Parsons' Produce. The
It has been brought to my attention by White Oaks
General Manager, Mr. David Faulkner that Cindy Myers,
from City Health department made a visit to mall
office on May 30, 1996. Miss Myers stated to mall
management that Parsons Produce was operating on mall
property without a City Health permit and that White
Oaks Mall would be held responsible for any problems
that may occur. Frankly I'm very upset that this City
Health inspector would go to. such lengths trying to
intimidate myself and the people we do business with.
We run a clean, respectable business and would like to
continue operating in Springfield.
After receiving this letter and becoming aware that Myers spoke to John
Schmidt about Parsons', Mayor Hasara wanted Myers terminated because she
believed that Myers' comments would interfere with the running of the
City's department of public health and because she believed that the
comments resulted in confusion and frustration on the part of the mall's
management as to how to deal with, Parsons'. Although Haynes agreed that
Myers should be. disciplined, he believed that anything more than a few
days suspension would be too severe given Myers' work record.
On June 13, 1996, Myers was given a pre-disciplinary hearing*fn7. On
June 21, 1996, Myers was suspended for five days. Her written notice of
suspension indicated that the reason for her suspension was for violating
civil service rule 48(e): failure to obey a reasonable directive. Myers'
comments to John Schmidt formed the sole basis for her suspension:
Accordingly, Myers has filed the instant suit against Mayor Hasara and
Gail Danner, alleging that her suspension violated her First Amendment
right to free speech and her rights under 42 U.S.C. § 1983.
II. STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) provides that summary judgment
"shall be rendered forthwith if 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 judgment as a matter of law."
Fed.R.Civ.Pro. 56(c); see Ruiz-Rivera v. Moyer, 70 F.3d 498, 500-01 (7th
Cir. 1995). The moving party has the burden of providing proper
documentary evidence to show the absence of a genuine issue of material
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). A genuine issue of material fact exists when "there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for
that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In determining whether a genuine issue of material fact exists, the
Court must consider the evidence in the light most favorable to the
nonmoving party. Adickes v. S.H. Kress & Co., 398 UPS. 144, 90 S.Ct.
1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden,
the opposing party must come forward with specific evidence, not mere
allegations or denials of the pleadings, which demonstrates that there is
a genuine issue for trial. Howland v. Kilquist, 833 F.2d 639 (7th Cir.
In November 1997, Defendants filed a motion to dismiss Plaintiff's
Complaint arguing that she had failed to state a cause of action upon
which relief could be granted. Fed.R.Civ.Pro. 12(b)(6). Specifically,
Defendants asserted: (1) that Plaintiff was not speaking on an issue of
public concern, (2) that the City's interest as employer in promoting
efficient and effective public service outweighed Plaintiff's right to
express herself, and (3) that they were protected from liability in this
suit by the doctrine of qualified immunity. The Court's initial reaction
to Defendants's motion was that it should be allowed.
Neverthless, the Court denied Defendants' motion, in part, based upon
Gustafson v. Jones, 117 F.3d 1015, 1019 (7th Cir. 1997), wherein the
United States Court of Appeals for the Seventh Circuit stated:
it would be a rare case indeed where the pleadings as
a whole would permit judgment as a matter of law on
this point, unless the plaintiff was relying on speech
that is wholly unprotected by the First Amendment or
the defendant's justifications were frivolous.
Normally, application of the Pickering balancing test
will be possible only after the parties have had an
opportunity to conduct some discovery.
Id. The parties have now conducted discovery, and Defendants have moved
for summary judgment. Defendants argue that the facts revealed during
discovery establish that they are entitled to summary judgment for the
same three reasons which they raised in their motion to dismiss.
Plaintiff argues that the facts revealed during discovery establish that
she was speaking on an issue of public concern, that her right to free
speech outweighed Defendants' interests, and that Defendants are not
immune from liability based upon the doctrine of qualified immunity. At a
minimum, Plaintiff claims that a genuine issue of material fact exists
which precludes the Court from entering summary judgment against her.
Having come full circle, the Court will now allow Defendants' motion
for summary judgment.
A. PUBLIC CONCERN
To determine whether an individual's First Amendment right to free
speech has been infringed upon, the Court must invoke the Pickering
balancing test. Pickering v. Rd. of Educ. of Township High Sch. Dist.
205, Will County, Illinois, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811
(1968). This test is applied on a case-by-case basis. Id. at 569, 88
S.Ct. 1731. Essentially, the Pickering balancing test establishes that "a
public employee's speech is constitutionally protected if it would be
protected if uttered by a private citizen, it relates to a matter of
public concern, and the public employer has not shown a convincing reason
for forbidding the speech."*fn8
Hulbert v. Wilhelm, 120 F.3d 648, 650 (7th Cir. 1997); Waters v.
Churchill, 511 U.S. 661, 668, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994);
Brown v. Disciplinary Comm. of Edgerton Volunteer Fire Dep't, 97 F.3d 969,
972 (7th Cir. 1996); Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 194, 197
(7th Cir. 1996).
The factors which the Court must consider when determining whether a
public employee's statements address a matter of public concern is the
statement's content, form, and context, with the statement's content
being the most important factor. Khuans v. Sch. Dist. 110, 123 F.3d 1010,
1014-15 (7th Cir. 1997); Connick v. Myers, 461 U.S. 138, 147-48, 103
S.Ct. 1684, 75 L.Ed.2d 708 (1983); Smith v. Fruin, 28 F.3d 646, 651 (7th
Cir. 1994). In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d
708 (1983), the United States Supreme Court stressed the importance of
the requirement that a public employee's speech involve a matter of
The repeated emphasis in Pickering on the right of a
public employee "as a citizen in commenting upon
matters of public concern," was not accidental. This
language . . . reflects both the historical evolvement
of the rights of public employees, and the
common-sense realization that government offices could
not function if every employment decision became a
[W]hen a public employee speaks not as a citizen
upon matters of public concern, but instead as an
employee upon matters only of personal interest,
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
Id. at 147, 103 S.Ct. 1684. Thus, speech on a matter of public concern is
"speech relating to any matter of political, social, or other concern to
the community." Khuans, 123 F.3d at 1014-15; Connick, 461 U.S. at 146,
103 S.Ct. 1684. In short, the Court must determine whether Plaintiff was
speaking "more like a citizen or a disgruntled employee whose statements
are primarily of personal interest." Colburn v. Trustees of Indiana
Univ., 973 F.2d 581,585 (7th Cir. 1992).
Plaintiff argues that her speech is protected by the First Amendment
because she spoke out as a private citizen regarding a matter which
concerned the public's health and safety. Specifically, Plaintiff asserts
that her speech was a result of her fear that a member of the public
would be harmed based upon Parsons' failure to comply with the State's
and City's health regulations.
However, the Court believes that when Plaintiff had her conversation
with John Schmidt, she spoke more as a disgruntled employee than as' a
private citizen and that her speech did not address a matter of public
concern. Therefore, the Court finds that Plaintiff's speech is not
entitled to protection under the First Amendment.
In making this determination, the Court is cognizant of the fact that
speech does not have to be broadcast to the world In order to receive the
First Amendment's protection. Givhan v. W Line Consol. Sch. Dist., 439
U.S. 410, 415-16, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979). The Court is also
aware that while Plaintiff's motive for the speech is a relevant factor
to consider, it is not the dispositive consideration. Gregorich v. Lund
54 F.3d 410, 415 (7th Cir. 1995); Cliff v. Rd. of Sch. Comm'rs of the
City of Indianapolis, Indiana 42 F.3d 403, 409 (7th Cir. 1994). Simply
because a public employee has a
personal interest in the speech does not ipso facto mean that his remarks
constitute a matter of private, rather than public, concern. Fruin, 28
F.3d at 653. "Many public employees who speak out about conduct within
their places of employment have some interest in the institution of
change, and this by itself would not prevent their speech from being
constitutionally protected." Colburn, 973 F.2d at 587; Bremer v. Hart,
909 F.2d 1035, 1039 (7th Cir. 1990).
Although one could draw the inference that Plaintiff was concerned
about the public's health and safety when she spoke to John Schmidt, her
exact language is directed specifically at Parsons'. According to her
statement of undisputed facts, Plaintiff advised Schmidt that Parsons'
had an agricultural license, that it could not meet the qualifications
for a retail sales license, that it was in violation of certain health
regulations, and that the City planned to take no action against it to
rectify those violations. At no time did Plaintiff represent to Schmidt
that Parsons' violations jeopardized the public's health, safety, or
well-being. On the contrary, the content of Plaintiff's speech centered
upon Parsons' licensing, its compliance with the health code, the City's
response, and the impact upon the mall.
Likewise, the context and form of Plaintiff's speech indicate that she
was not speaking as a private citizen. First, "[i]n speaking on this
issue, [Plaintiff] did not act simply as a member of the general public;
it was h[er] job to investigate such violations and make recommendations
as to the appropriate response." Marquez v. Turnock, 967 F.2d 1175, 1178
(7th Cir. 1992). Second, Plaintiff was not speaking in a public forum or
to a general audience; rather, her conversation was limited to one
person. See Wales v. Rd. of Educ. of Community Unit Sch. Dist. 300,
120 F.3d 82, 84 (7th Cir. 1997) (holding that "[a]lthough the first
amendment is not limited to speech that is broadcast to the world . . .
an employee's decision to deliver the message in private supports an
inference that the real concern is the employment relation. . . ."
Third, Plaintiff steered her conversation to the issue of Parsons'
licensing (or at least raised the issue), indicating her desire to make
her personal opinions, rather than the City's official policy, known to
Schmidt. Finally, although Myers denies that her conversation was the
result of any personal animus towards Parsons' or the City's policy
regarding it, John Schmidt testified that it appeared to him that Myers'
statements regarding Parsons' was a result of her frustration regarding
the City's policy allowing it to operate under an agricultural
commodities license. See Button v. Kibby-Brown, 146 F.3d 526, 529 (7th
Cir. 1998) (holding that although the speaker's motive is not
dispositive, it is a relevant factor); see also Marshall v. Porter County
Plan Comm'n, 32 F.3d 1215, 1219 (7th Cir. 1994) (same).
Although none of these factors are individually determinative, the
Court believes that the content, form, and context of Plaintiff's
conversation with John Schmidt establish that her speech did not address
a matter of public concern and, therefore, does not deserve First
B. BALANCING OF INTERESTS
Even if the Court were to characterize Plaintiff's speech as being the
result of her concern for the public's health and safety, Defendants
would still be entitled to summary judgment because their interest as a
public employer in promoting efficient and effective public service
outweighed Plaintiff's right to express herself on the Parsons' matter.
Khuans, 123 F.3d at 1014. All courts have recognized that the weighing of
an individual's interest in free speech against the government's interest
in efficient and effective public service is a difficult task. Connick
461 U.S. at 150, 103 S.Ct. 1684. However, this balancing "is necessary to
ensure that public employers do not use authority over
employees to silence discourse, not because it hampers public functions
but simply because superiors disagree with the content of employees'
speech." Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 97
L.Ed.2d 315 (1987). The Seventh Circuit has held that
[t]o determine whether the government's interest in
providing services efficiently outweighs the
employee's free speech rights, [a court should]
consider: (1) whether the statement would create
problems in maintaining discipline by immediate
supervisors 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
daily responsibilities; (4) the time, place, and
manner of the speech; (5) the context in which the
underlying dispute arose; (6) whether the matter was
one on which debate was vital to informed
decision-making; and (7) whether the speaker should be
regarded as a member of the general public.
Khuans 123 F.3d at 1015; Caruso v. De Luca, 81 F.3d 666, 670 (7th Cir.
1996); Wright v. Illinois Dep't of Children & Family Servs.,