Opinion
No. 1:03-cv-00943-SEB-VSS.
November 8, 2004
ENTRY GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant's Motion for Summary Judgment on Plaintiff's claims pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983. Mr. Clifford ("Clifford") brought this action for violation of his rights as protected by the First and Fourteenth Amendment against Defendants, the Ball State University Board of Trustees ("Trustees"), Donvil Buck in his individual and official capacity ("Mr. Buck"), Brenda Griffey ("Ms. Griffey") in her individual and official capacity, and Thomas Smith ("Mr. Smith") in his individual and official capacity (collectively "Defendants"). Defendants contend that Mr. Clifford's claim is not actionable because the speech of Plaintiff, Stephen T. Clifford ("Mr. Clifford"), was not protected by the First Amendment because it did not pertain to a matter of public concern and that the adverse employment action taken by Defendants against Plaintiff was motivated by legitimate enforcement of regularly applied employment policies. Further, Defendants assert that they are immune from suit pursuant to the Eleventh Amendment, their actions are entitled to qualified immunity, and that Ball State, as a part of the State of Indiana, is not a "person" subject to suit pursuant to 42 U.S.C. § 1983.
As we explain below, we GRANT Defendant's Motion for Summary Judgment on all counts.
Factual Background
At all relevant times, Mr. Clifford was employed by the University as a third-shift custodian in its Architecture Building. Aff. of Melissa Rubrecht at ¶ 4. Mr. Clifford reported to Mr. Buck, who was employed as Supervisor of Building Services, and who in turn reported to Ms. Griffey, who was and is the Superintendent of Building Services and Moving. Aff. of Thomas Smith at ¶ 4; Aff. of Donvil Buck at ¶ 4. Mr. Clifford and his fellow custodians are members of AFSCME Local 293 (the "Union"), and are subject to a collective bargaining agreement. Aff. of Melissa Rubrecht at ¶ 7.
Mr. Buck has since retired. Aff. of Donvil Buck at ¶ 2.
Between October 15, 2001, and October 18, 2001, four custodians at the Architecture Building filed a group labor grievance against Ball State. The grievance generally pertained to the employees' concerns of having to push a trash dumpster "through the ice and snow as well as the pouring rain" at the Architecture Building, and also "the lifting of heavy bags several feet in the air" in order to put the trash bags into the dumpster at the Architecture Building. Dep. of Stephen T. Clifford at 75-79; Aff. of Melissa Rubrecht at ¶ 34. Ball State dismissed the grievance during the third step of the grievance procedure and the Union did not pursue the grievance after that step. Id. at ¶ 35.
Subsequent to the grievance, and at Mr. Clifford's request, the Union filed a complaint with the Indiana Occupational Safety and Health Administration ("IOSHA") on or about December 11, 2001, alleging, "Employees are experiencing back and shoulder injuries due to lifting 30 to 40 pound bags of trash and throwing them into a dumpster." Dep. of Stephen T. Clifford at 31. In May 2002, IOSHA conducted an investigation pursuant to the complaint; however, it found only two minor, unrelated violations and declined to issue a citation. Aff. of Donvil Buck at ¶ 24; Aff. of Thomas Smith at ¶¶ 26-28.
The parties spend considerable time and effort disputing whether the IOSHA complaint was anonymous; however, since this fact is not material to our determination, we assume arguendo that the IOSHA complaint was not anonymous for the purpose of summary judgment.
On or about May 20, 2002, Mr. Clifford was terminated from his employment at Ball State. Aff. of Melissa Rubrecht at ¶ 33.
The parties vigorously dispute the merits of Mr. Clifford's employment history at Ball State, especially his use of vacation/sick time and his alleged absenteeism. The record is replete with evidence and testimony on these matters; however, we decline to include them here because they are not relevant to the resolution of the matter at hand.
Legal Analysis
I. Summary Judgment StandardOn a motion for summary judgment, the burden rests on the moving party, Defendants in this case, to demonstrate "that there is an absence of evidence to support the nonmoving party's case."Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her."Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994), (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex, 477 U.S. at 322-24; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52 (1986)).
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his or her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920. A plaintiff's self-serving statements, unsupported by specific concrete facts reflected in the record, cannot preclude summary judgment.Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001);Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993).
II. Analysis of Mr. Clifford's Claims
Defendants present three primary lines of defense to Mr. Clifford's claims: (A) Mr. Clifford's claims are barred by the Eleventh Amendment; (B) Mr. Clifford's claims do not satisfy the requirements for an actionable § 1983 claim based on retaliation for his exercise of First Amendment rights; and (C) the actions by Defendants are protected by qualified immunity. Although we resolve the first defense in Mr. Clifford's favor, we conclude that Defendants are entitled to summary judgment based on the second defense, and, therefore, we decline to address the third defense.
(A) Eleventh Amendment.
Defendants argue that because Ball State is a state university, Mr. Clifford's suit is barred by the Eleventh Amendment. Defs.' Reply Brief at 13-14. Mr. Clifford counters that since he is seeking only prospective relief, his claims are not barred. Pl.'s Resp. Brief at 4-5. The Seventh Circuit has held that Indiana state universities are state agencies for purposes of the Eleventh Amendment, and so would normally be barred by the Eleventh Amendment unless (so far as pertains to this case) the state has waived its Eleventh Amendment immunity from suit in federal court. Power v. Summers, 226 F.3d 815, 818 (7th Cir. 2000). However, "official-capacity suits against state officials that seek only injunctive relief are permitted by 42 U.S.C. § 1983." Id. (citations omitted). Accordingly, in light of Mr. Clifford's characterization of his claims, they are not barred by the Eleventh Amendment.
Plaintiff claims, "A review of [the] Complaint confirms that he seeks only prospective relief by way of his official capacity claims and that he properly plead this cause." Pl.'s Resp. Brief at 5. We do not think the claims in the Complaint are as clear as Mr. Clifford contends; however, for the purpose of summary judgment, we shall accept his assertion as true and assume that his claims against Defendants in their official capacity for retrospective relief, if any, have been waived.
Powers also resolves Defendants' contention that Ball State, as a part of the State of Indiana, is not a "person" subject to suit pursuant to 42 U.S.C. § 1983. Since Mr. Clifford is suing the individual defendants in their official capacity, and only seeking injunctive relief for those claims, his suit can proceed under § 1983.
(B) § 1983 claim for retaliation in violation of First Amendment Rights.
The Seventh Circuit has established a three-step evaluation for a § 1983 claim by a public employee for retaliation, in violation of First Amendment rights. In Sullivan v. Ramirez, the Seventh Circuit directed the courts to conduct the follow analysis:
First, the court must determine whether the employee's speech was constitutionally protected under the Connick-Pickering test. Second, the plaintiff must establish that the speech was a substantial or motivating factor in the retaliatory action. Third, the defendant has an opportunity to establish that the same action would have been taken in the absence of the employee's protected speech.360 F.3d 692, 697 (7th Cir. 2004) (citing Vukadinovich v. Bd. of Sch. Trs. of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir. 2002); Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999);Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002) (describing First Amendment retaliation claim as involving four elements but the same analysis); Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 970 (7th Cir. 2001) (noting only the first two elements)).
To determine whether Mr. Clifford's IOSHA complaint was constitutionally protected speech, we engage in the familiar two-part inquiry referred to as the Connick-Pickering test.Sullivan, 360 F.3d at 697-98 (citing Coady v. Steil, 187 F.3d 727, 731 (7th Cir. 1999); Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Ed. of Tp. High Sch., 391 U.S. 563 (1968)). Under Connick, in the first half of the test, we must determine whether Mr. Clifford's IOSHA complaint addressed a matter of public concern. If we conclude the IOSHA complaint involved such a concern, under the Pickering balancing test, we then must determine "whether the government's interest as an employer in providing effective and efficient services outweighs the employee's interest as a citizen in commenting upon the matter of public concern." Sullivan, 360 F.3d at 698 (citingCoady, 187 F.3d at 731). The determination of whether the speech is constitutionally protected is a question of law for the court. Id. (citing Kokkinis, 185 F.3d at 843).
(1) Speech as a Matter of Public Concern
Mr. Clifford argues that his IOSHA complaint was a matter of public concern because he was speaking "on behalf of others and in the interest of others" and because his speech "involved complaints that workplace injuries were being suffered by public employees as a result of Defendants' unlawful policies," and this "is a matter of public concern because taxpayer money is used not only to pay these individuals, but to compensate them for their injuries, with potential long-term financial and health implications." Pl.'s Resp. Brief at 5-6. Defendants respond that the IOSHA complaint was "nothing more than a work-place grievance, based purely on his dissatisfaction, and that of three colleagues, with the conditions of their employment." Def.'s Reply Brief at 2. In our considered judgment, Mr. Clifford's IOSHA complaint was not a matter of public concern.
The Seventh Circuit has explained, "The purpose of the `public concern' requirement is to distinguish grievances of an entirely personal character from statements of broader interest concerning one's job, rather than to fix the boundaries of the First Amendment." Smith v. Fruin, 28 F.3d 646, 651 n. 7 (7th Cir. 1994) (internal quotation omitted). The greater the potential social, as distinct from purely private, significance of the employee's speech, the less likely is the employer to be justified in seeking to punish or suppress it. Id. (citingEberhardt v. O'Malley, 17 F.3d 1023, 1026 (7th Cir. 1994)). We make the determination as to whether speech encompasses a public concern based on "the content, form, and context of a given statement as revealed by the whole record."Connick, 461 U.S. at 147-48. Of these factors, content is the most important. Smith, 28 F.3d at 651 (citing Yoggerst v. Hedges, 739 F.2d 293, 296 (7th Cir. 1984)). Our inquiry must necessarily take into account the point of the speech in question: "Was it the employee's point to bring wrongdoing to light? Or to raise other issues of public concern, because they are of public concern? Or was the point to further some purely private interest?" Id. (quoting Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir. 1985); additional citations omitted).
The Supreme Court has cautioned that "when 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 behavior." Connick, 461 U.S. at 147; see also Knapp v. Whitaker, 757 F.2d 827, 838 (7th Cir. 1985).
A thorough reading of the record indicates clearly that Mr. Clifford's IOSHA complaint was not a matter of public concern. The content of his IOSHA complaint involved the personal working conditions of Mr. Clifford and his coworkers and closely mirrored a similar accusation that they had raised through the Union grievance procedure. The primary motivation of both the Union grievance and the IOSHA complaint was to improve the working conditions of these individual employees, which was essentially a private motivation. Choosing to air their complaints through IOSHA instead of the Union grievance procedure did not change the private nature of the dispute or the motivation behind it. Moreover, the employees' purpose, otherwise personal in nature, does not take on a public import due simply to the "supposed popular interest in the way public institutions are run." Smith, 28 F.3d at 653 (quoting Ferrara v. Mills, 781 F.2d 1508, 1516 (11th Cir. 1986)). Under Seventh Circuit direction, where, as here, the speech and the underlying circumstances on the whole indicate that the employee was speaking as an individual employee pursuing personal interests, we are compelled to conclude as a matter of law that his speech was not protected by the First Amendment as speech on a matter of public concern.Id. (citing Connick, 461 U.S. at 147). Accordingly, we conclude that Defendants are entitled to summary judgment on all of Mr. Clifford's claims.
Mr. Clifford argues their IOSHA complaint was a public concern because it involved not only himself but also three other employees. This argument attempts to elevate the form of the speech over its substance, and the Seventh Circuit has specifically directed that this is not the appropriate method for evaluating whether speech involves a public concern. The Seventh Circuit explained that "[i]f a public employee speaks as a citizen on a matter of public concern, her speech is entitled to First Amendment protection whether she speaks as a lone individual or as the representative of many others, and whether she does so discreetly with her co-workers or in a more public fashion." Smith, 28 F.2d at 653. Conversely, a few individuals together raising a private concern does not transform their workplace complaint into a public concern.
Our conclusion is further guided by the "common sense realization that government offices could not function if every employment decision became a constitutional matter." Connick, 461 U.S. at 143.
(C) Questions not reached by the Court.
Because Mr. Clifford's IOSHA complaint essentially involved private interests and not matters of public concern, Defendants are entitled to summary judgment in their favor on this ground alone, and we need not reach the questions of whether the speech was a substantial or motivating factor in the retaliatory action; whether the Defendants would have taken the same action in the absence of the employee's protected speech; or whether the Defendants were entitled to qualified immunity. See Smith, 28 F.3d at 653.
Conclusion
For the reasons set forth above, we find that Mr. Clifford's IOSHA complaint did not involve a matter of public concern, was not protected speech under the First Amendment, and is therefore not actionable under § 1983. Accordingly, Defendant's Motion for Summary Judgment is GRANTED.