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Bivens v. Trent

January 6, 2010

JIMMY W. BIVENS, PLAINTIFF-APPELLANT,
v.
LARRY TRENT, JAY KEEVEN, DIANE ROTTER, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Illinois. No. 06 CV 00263-William Stiehl, Judge.

The opinion of the court was delivered by: Manion, Circuit Judge

ARGUED SEPTEMBER 17, 2009

Before POSNER, MANION, and EVANS, Circuit Judges.

Jimmy Bivens, an officer in the Illinois State Police ("ISP"), discovered that he had elevated levels of lead in his blood due to lead contamination at the indoor firing range where he was stationed. He complained to his superiors, both directly and through a union grievance, about the safety of the working conditions. The firing range was immediately analyzed and closed for environmental remediation. After he was denied workers' compensation benefits, Bivens sued his supervisors in the ISP, Larry Trent, Jay Keevan, Diane Rotter, Mark Beagles, and Roger Hayes, under 42 U.S.C. § 1983, claiming that they retaliated against him in violation of the First Amendment because he complained about the conditions at the firing range. The district court granted summary judgment in favor of all of the defendants. Bivens appeals. We affirm.

I.

In October 2003, Bivens was assigned to the position of range officer for District 11 of the ISP. As range officer, he oversaw all aspects of the range's operation, including qualifying individuals on firearms and keeping the range clean and in good working order. The main purpose of the range was to provide firearm training and qualification testing to state police officers, but it also served as a facility for other state police training exercises and as a firing range for other police departments. Members of the general public also occasionally used the range, including hunters to set their shotgun sights and occasionally school children touring the facility.

By all accounts, Bivens did a great job of bringing order and cleanliness to the range, which resembled a "train derailment" when he arrived, and he received a written commendation just a month after he started. Within a few months, however, Bivens began to feel ill, with severe headaches, aching hips, and numbness and tingling in his extremities. By February 2004, Bivens was concerned that his symptoms were caused by exposure to lead at the firing range. He first asked for a blood test through the firing range chain of command. When he did not receive a response within a couple of weeks, Bivens asked Master Sergeant Roger Hayes, his supervisor in District 11, to arrange a blood test. During that conversation, Bivens expressed concern about the safety of the facility. As a result of that conversation, and at Bivens's urging, Hayes sent a memorandum to Captain Jay Keevan, the District Commander for District 11, recom-mending that a lead test be arranged for Bivens. Keevan suggested that Bivens be tested for lead exposure at the county health department. After the health department would not perform the test, Keevan authorized Bivens to make his own arrangements, for which the ISP would reimburse him.

Bivens had his blood tested and on March 15 learned that his lead levels were "highly elevated." He informed Hayes of this that same day. On March 18, Bivens filed a grievance with the state police union for a violation of the safe working conditions provision of the collective bargaining agreement. He detailed his symptoms, tests, and previous complaints, and requested that the "range be professionally analyzed, cleaned, and repaired in such a manner as to render the facility safe of any health hazard with the prospect of a re-occurrance [sic] minimal." On March 19, the lead levels at the range were evaluated and found to be elevated. On March 23, the range was closed for professional clean-up. The closure of the range received local media attention. It did not open again until November 2004.

In the meantime, Bivens's medical concerns continued. On March 23, he consulted Dr. Hogan, who performed a neurological exam and re-tested the lead levels in his blood. Dr. Hogan found no evidence of lead poisoning but ordered that Bivens be limited to desk work until the results of the lead test were received. After speaking with one of Bivens's supervisors, Dr. Hogan agreed that Bivens could return to light-duty work and amended his order accordingly. When the new lead test later showed normal lead levels, Dr. Hogan released Bivens to return to full work with the only restriction that he not be exposed to lead. Bivens sought a second opinion from Dr. Schrieber, a physician who had been recommended by Bivens's workers' compensation attorney. Dr. Schrieber recommended that Bivens not return to work until April 19. Bivens returned on that day and worked for one week, but continued to experience his neurological symptoms and stopped working again a week later. Because Bivens was absent from work due to a medical condition and receiving disability benefits, the ISP arranged for an independent examination of Bivens. Dr. David Peeples examined Bivens on May 10, and concluded that the neurological examination was normal and opined that Bivens could carry out any work so long as it did not involve lead exposure. Bivens still did not feel well, however, and Dr. Schrieber continued to opine that Bivens was suffering from cerebral deficits. In response, the ISP asked Bivens to visit a psychiatrist for an independent evaluation of his cerebral deficits.

Bivens was initially reluctant, but in late December 2004 he was examined by psychiatrist Dr. William Stillings. Dr. Stillings found no evidence of the disorders described by Dr. Schrieber and opined that Bivens was "simulating short-term memory deficits." Just as Dr. Peeples had found eight months earlier, Dr. Stillings concluded that Bivens was able to work without restrictions, as long as he was not exposed to excessive levels of lead. After Dr. Stillings's diagnosis, the ISP terminated Bivens's disability benefits and ordered him to return to work on January 21, 2005. Further, based on Dr. Peeples's and Dr. Stillings's medical findings and because the defendants were concerned that Bivens was faking his illness, the ISP did not allow Bivens to use his earned sick time to reduce his hours to cope with his illness and instead required him to use his personal time. After his personal time ran out, he only was paid for the hours he actually worked.

Bivens then filed a workers' compensation claim. He claimed that his illness was causally related to the lead exposure and that the medical services he received were reasonable and necessary, and challenged the amount of compensation he received for temporary total disability. On July 28, an arbitrator from the Illinois Workers' Compensation Commission held a hearing regarding Bivens's workers' compensation claims. On August 25, the arbitrator filed his decision with the Commission. The arbitrator was not persuaded by the opinions of Dr. Schreiber regarding Bivens's neurological damage and instead credited the lack of findings in the exams of Drs. Hogan, Peeples, and Stillings. The arbitrator did, however, find that Bivens was injured by exposure to high lead levels and that he was totally disabled from March 15, 2004 until May 28, 2004. He also found that Bivens's medical expenses were reasonable, necessary, and related. Bivens filed a timely petition for review with the Commission, but the Commission affirmed the arbitrator's decision with only minor modifications.

Bivens next filed this action under 42 U.S.C. § 1983 against Larry Trent, Jay Keevan, Diane Rotter, Mark Beagles, and Roger Hayes, his supervisors at the ISP. He alleged that the defendants, while acting pursuant to their duties with the ISP, violated his First Amendment rights by retaliating against him because his grievance about lead levels at the range forced them to close the range for nearly nine months and caused the ISP public embarrassment. The alleged retaliation against Bivens included subjecting him to different workplace rules than his co-workers, disciplining him without justification by "docking his pay" (i.e., paying him only for hours worked when his personal leave ran out), refusing to allow him to use his earned benefit time by forcing him to use personal rather than earned sick leave, reassigning him to a different position, harassment, disclosure of confidential information, and dissemination of false information (that he was faking his illness) to co-workers.

The defendants moved for summary judgment on several grounds. First, they argued that the Supreme Court's decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), foreclosed First Amendment protection for Bivens's grievance about lead levels because the cleanliness and safety of the range were part of his official job duties. Second, they argued that if, and to the extent that, Garcetti did not foreclose Bivens's grievance, his speech would still not be protected because it was an entirely private grievance, unconcerned with any possible public concern that might attach to the same situation. Third, they argued that Bivens presented no evidence of a nexus between the allegedly protected speech and the alleged retaliation.*fn1 The district court granted the motion for summary judgment, holding that Bivens's speech was not protected by the First ...


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