In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2680

Cynthia Myers,

Plaintiff-Appellant,

v.

Karen Hasara and Gail Danner,

Defendants-Appellees.



Appeal from the United States District Court
for the Central District of Illinois, Springfield Division.
No. 97 C 3295--Richard Mills, Judge.


Argued April 19, 2000--Decided September 5, 2000



      Before Harlington Wood, Jr., Kanne and Diane P. Wood,
Circuit Judges.

       Kanne, Circuit Judge. At the behest of its mayor,
the City of Springfield suspended health
inspector Cynthia Myers for comments she made
regarding an open-air produce market that
allegedly had been operating in violation of city
and state law. Myers considered the punishment a
violation of her constitutional rights and sued
the mayor and health department director under 42
U.S.C. sec. 1983. The district court granted the
defendants summary judgment on the merits and
also ruled that the defendants were entitled to
qualified immunity because the law regarding
discipline of public employees for exercising
their First Amendment rights was not clearly
established at the time of Myers’ suspension.
However, because the district court resolved
factual disputes in favor of the defendants, we
hold that summary judgment was not warranted in
this case. Furthermore, the standards concerning
a public employer’s authority to punish an
employee for exercising rights guaranteed under
the First Amendment were well established at the
time of the events in question, and therefore
qualified immunity was not justified. We reverse
the grant of summary judgment and remand for
trial.

I.   History
      Cynthia Myers worked as a supervisor and health
inspector in Springfield’s health inspection
program. In that role, she oversaw the food
inspection program, supervised five inspectors
and performed routine health inspections of
restaurants, markets and stores for compliance
with city and state health codes. Myers’ boss was
Steve Hall, the head of the Public Health
Department Environmental Division, who reported
to defendant Gail Danner, the acting head of the
Public Health Department. Danner reported to
Keith Haynes, the director of community services,
who reported directly to defendant Karen Hasara,
the Springfield mayor.

      Although several steps removed from the pinnacle
of Springfield power, Myers had some supervisory
duties in her job and was called on to
participate in making division decisions and
formulating policies. The Springfield health
department, in addition to enforcing its own
ordinances, had entered into an agreement with
the state to enforce the state’s health laws.
Furthermore, the city’s health ordinances were
required to be no less stringent than the
state’s.

      In 1995, a business called Parsons’ Produce
operated an open-air market in the parking lot of
a local department store. Parsons’ sold fruit and
vegetables under an agricultural commodity
permit, which permitted the sale of fresh
produce, but not packaged food products. The
restriction on selling packaged foods stems from
the increased risk of infestation and
contamination in an open-air market and the
recognition that the consumer typically knows to
inspect and wash fresh food, but may not do the
same with packaged products.

      Myers inspected Parsons’ Produce in 1995 and
found that it was selling packaged food products
in an open-air market in violation of state and
local laws. Of the six businesses operating under
an agricultural commodity permit in the city,
only Parsons’ sold packaged foods. Myers filed
her report with Danner and Hall, who visited
Parsons’ and confirmed Myers’ finding. Hall
voiced concerns to Danner and Haynes about
Parsons’, which led to a meeting with the state
health department, which then formally notified
Haynes that Parsons’ was in violation of state
health laws. The city’s legal department notified
Haynes that Parsons’ was in violation of city and
state health laws, and that the city ordinance
could not be amended to allow Parsons’ to
continue to operate as it was without losing
state funding for the program. At the same time,
Hall sent Haynes a memorandum encouraging the
enforcement action against Parsons’. Hasara took
office in 1995 and was informed of the situation
with Parsons’. Several other meetings took place
over the course of 1995, but no action was taken
against Parsons’ to stop it from selling packaged
food products. Parsons’ closed for the season in
the fall of 1995.

      In 1996, Parsons’ reopened and expanded into a
second location at a local mall. Myers again
inspected its facility. Myers found that Parsons’
continued to sell packaged food products without
the proper license, and reported this finding to
Danner. Knowing that it was operating in
violation of the permit, Myers refused to act on
its application for a new agricultural commodity
permit. Hall supported Myers’ position and
refused to approve the permit application.
Danner, however, acting on the directions of her
superiors, approved the permit and informed Myers
that she did not need to take any further action
regarding Parsons’. The defendants claim that
they gave Myers a clear directive to have no
further involvement with Parsons’, but Myers
disputes this factual contention.

      Hasara, Danner and Haynes met with state health
officials in May 1996 and discussed the Parsons’
permit situation. Hasara believed Parsons’ was
not violating the law and voiced support for
Parsons’. State health officials disagreed, but
allowed that it was a local matter and said the
state health department would not interfere.
Hasara instructed Danner and Haynes to allow
Parsons’ to operate as it had before. Myers had
no other involvement with the permit issue, but
responded to two complaints--one in May, the
other in July--regarding Parsons’. Parsons’
complained to Haynes that Myers was harassing it.
Haynes investigated, but found no evidence to
support the complaint.

      Later in May, the local newspaper published an
article concerning Parsons’ and the health
inspections, reporting that the market continued
to operate in violation of city and state health
codes. On May 30, while inspecting a restaurant
at the mall where Parsons’ operated one of its
markets, Myers and another health inspector met
with an assistant manager of the mall. Myers
asked the manager whether he had seen the
newspaper article, to which he responded that he
had. In response to the manager’s questions,
Myers said that Parsons’ was in violation of its
permit and the city had decided to take no action
against it. The mall manager was concerned about
the mall’s potential liability for health dangers
caused by one of its tenants, and Myers indicated
that she thought landlords could be held liable
for the actions of their tenants.
      Jeff Parsons, the owner of Parsons’ Produce,
soon found out about Myers’ conversation with the
mall manager, and complained to the mayor’s
office. Hasara wanted to fire Myers for
expressing views contradictory to the city’s
policy on the issue, but Danner, Haynes and the
city personnel director felt that termination was
unwarranted. Hall also objected to disciplinary
action against Myers. Instead, Myers was charged
with failing to obey a reasonable directive and
a hearing was held on the charge, at which Danner
presided. On June 21, 1996, Myers was suspended
for five days. No other action was taken against
her.

      Myers filed a two-count complaint against Hasara
and Danner, alleging deprivations of her First
and Fourteenth Amendment rights. After discovery,
the defendants moved for summary judgment on the
grounds that Myers’ comments to the mall manager
did not involve a matter of public concern, the
city’s interest in effective health inspection
administration outweighed Myers’ First Amendment
rights and, in any event, Danner and Hasara were
entitled to qualified immunity. The district
court, applying the test for public-employee
speech established in Pickering v. Board of
Education, 391 U.S. 563 (1968), agreed on all
three grounds and granted the defendants summary
judgment. This appeal followed.

II.    Analysis

      We review de novo a grant of summary judgment,
see Weicherding v. Riegel, 160 F.3d 1139, 1142
(7th Cir. 1998), as well as a district court’s
decision that a defendant is entitled to
qualified immunity. See Forman v. Richmond Police
Dep’t, 104 F.3d 950, 956-57 (7th Cir. 1997).
Summary judgment is proper when "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 a judgment as a matter of law." Fed.
R. Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). In
determining whether a genuine issue of material
fact exists, we construe all facts in the light
most favorable to the non-moving party and draw
all reasonable and justifiable inferences in
favor of that party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).

A.    Pickering Balancing

      In her complaint, Myers alleged that she had a
protected First Amendment right to make the
comments she did to the mall manager regarding
Parsons’ permit situation and the city’s policy
of not enforcing the relevant ordinance. The
Supreme Court has long held that a public
employee maintains a First Amendment right to
speak out on matters of public concern even
though she works for the government. See
Pickering, 391 U.S. at 568; see also Connick v.
Myers, 461 U.S. 138, 142 (1983). A public
employee can be punished for exercising that
right only if the facts of the case, as
reasonably known to the employer, indicate that
the employer’s interest in promoting efficiency
of public services outweighs the employee’s
interest in free speech. See Waters v. Churchill,
511 U.S. 661, 668 (1994); Pickering, 391 U.S. at
568. Courts after Pickering have engaged in a
two-part analysis to determine whether the
"interests of the [employee], as a citizen, in
commenting upon matters of public concern"
outweighed the "interest of the State, as an
employer, in promoting the efficiency of the
public services it performs through its
employees." Id.

1.   Matters of Public Concern

      In Hulbert v. Wilhelm, 120 F.3d 648, 653 (7th
Cir. 1997), we re-stated the Pickering analysis
as a three-part inquiry, although still
addressing the core concern identified in
Pickering. We held that the first part of
Pickering sought to determine (1) whether the
speech would be protected if uttered by a private
citizen and (2) whether the speech was more than
an unprotected "personal employee grievance."
Hulbert, 120 F.3d at 653. If so, then we would
consider the speech to meet the test for speech
by a citizen on a matter of public concern. See
id. A number of factors are relevant to this
analysis including the content, form and context
of the remarks, see Connick, 461 U.S. at 147-48,
and whether the remarks can fairly be
characterized as relating to issues of
"political, social, or other concern to the
community." Id. at 146.

      The district court held that the subject of
Myers’ comments was not a matter of public
concern. We disagree. It is important to good
government that public employees be free to
expose misdeeds and illegality in their
departments. Protecting such employees from
unhappy government officials lies at the heart of
the Pickering cases, and at the core of the First
Amendment. For example, in Marshall v. Porter
County Plan Commission, 32 F.3d 1215, 1218 (7th
Cir. 1994), the plaintiff, an employee in the
building inspector’s office, told the county
planning commission that required inspections
were not being done and provided a list showing
that half of the required inspections had not
been performed. The commission took no action,
but later fired her in part because of her
complaints regarding the building inspections. We
held that the activities about which the
plaintiff complained "were the type that result
in the misuse of public funds and trust. These
were not employment disputes or criticisms of the
way that only [plaintiff’s] job was affected."
Id. at 1219-20. As a matter of law, we found
these comments to be about matters of public
concern. Id. at 1220.

      Myers’ comments to the mall manager are
analogous. The city had a duty to enforce both
its own and the state’s food-inspection laws.
There is no doubt that the inspection laws were
valid and routinely enforced and that Parsons’
practice of carrying packaged food products
violated its permit. For whatever reason, the
mayor and department head had decided not to
enforce the law against Parsons’ despite the
city’s duty to do so. Food-inspection rules, even
ones that do not threaten cataclysmic harm, serve
to protect the public health from risks of
contamination. Like the plaintiff in Marshall,
Myers found it objectionable that her department
would refuse to enforce the law. The content of
her comments to the mall manager involved a
matter of public concern.

      Following Hulbert, we find that Myers’ criticism
of the city for turning a blind eye to a known
permit violation and potential health risk would
have been protected if uttered by a private
citizen and was more than a personal employee
grievance. In fact, it bore no relation to the
gripes about office policies, scheduling and
personnel decisions like those at issue in
Connick, where the Court held that such employee
grievances were not matters of public concern.
461 U.S. at 148. The district court, examining
the "content" of Myers’ remarks, found that
because she focused on Parsons’ licensing
problem, she was concerned not with a public
health hazard but with her own dispute with her
supervisors. Myers v. Hasara, 51 F.Supp.2d 919,
926-27 (C.D. Ill. 1999). We disagree.
Whistleblowing does not need to be limited to
systemic charges of corruption to qualify as a
matter of public concern. A specific violation of
a law that creates a risk to public health,
safety or good governance likewise is a matter of
public concern. Myers knew of one such violation
and reported it to an obviously concerned party
who she knew would take action on it. The fact
that "her exact language is directed specifically
at Parsons’," Myers, 51 F.Supp.2d at 927, made
sense considering that she perceived it to be a
public health risk.
      Furthermore, a "personal aspect contained within
the motive of the speaker does not necessarily
remove the speech from the scope of public
concern." Marshall, 32 F.3d at 1219. Myers’
disgust or frustration about the city’s decision
to ignore a health-code violation does not mean
that her complaint was not a public concern.
While the speaker’s motivation is relevant to the
Pickering analysis, it is not necessarily
dispositive, see Gregorich v. Lund, 54 F.3d 410,
415 (7th Cir. 1995); Colburn v. Trustees of
Indiana Univ., 973 F.2d 581, 587 (7th Cir. 1992),
and does not transform Myers’ remarks into
matters of private concern in this case. We
disagree with the district court that she spoke
"more as a disgruntled employee" or that her
remarks in some way were a personnel grievance.
We hold that the speech for which Myers was
disciplined related to a matter of public
concern, precluding summary judgment for the
defendants on this issue.

2.   The City’s Interest

      The district court found that the city’s
interest in "promoting efficient and effective
public service outweighed Plaintiff’s right to
express herself." Myers, 51 F.Supp.2d at 928.
However, in doing so, the district court resolved
disputed issues of material fact in the
defendant’s favor, thereby rendering summary
judgment improper. To answer the second part of
the Pickering test, we have identified seven
factors to consider. See Kokkinis v. Ivkovich,
185 F.3d 840, 845 (7th Cir. 1999); Wright v.
Illinois Dep’t of Children & Fam. Servs., 40 F.3d
1492, 1502 (7th Cir. 1994). Among those relevant
to the summary judgment in this case are whether
the speech created disharmony in the workplace
and whether the employment relationship requires
personal loyalty and confidence. See id. Both of
these factors were influenced by the question of
whether Myers had been given a clear directive
not to discuss the issue further.

      The district court disregarded this question
rather than resolve it in Myers’ favor. In the
district court’s opinion, the issue was
irrelevant because Hasara reasonably believed
that Myers had been given the order. We disagree.
Myers was suspended for violating a superior’s
order, an offense that undoubtedly raises a
legitimate governmental interest. However, the
parties dispute whether Myers was given this
order. If she was not, then her remarks to the
mall manager were not in violation of a clear
directive, and the governmental interest in
having employees follow orders and accurately
portray the agency’s policies was not implicated.
Therefore, this issue goes to the heart of Myers’
complaint and should have been resolved in her
favor for purposes of summary judgment.

      The district court further found that Myers’
actions created disharmony because city officials
disagreed about how or whether she should be
punished. Myers, 51 F.Supp.2d at 928. This
analysis treats the "disharmony" factor in a
Pickering claim in a way that could prevent
plaintiffs from ever prevailing. The disharmony
that undermines the government interest in
efficient and effective service stems from the
content of the speech itself, such as by
undermining public confidence in the agency or
contradicting the agency’s public message. We
would imagine that in most Pickering claims,
government officials debated the proper
punishment for the speaker. This cannot be the
source of the relevant disruption or disharmony
since it would weigh against every plaintiff.
Just as disharmony was present when the superiors
discussed Myers’ punishment, it would have been
absent had they not sought to punish her.
      Another factor to consider in balancing the
government’s interest is whether the time, place
or manner of the employee’s speech disrupted the
government’s provision of services. See Coady v.
Steal, 187 F.3d 727, 731 (7th Cir. 1999); Wright,
40 F.3d 1502. This analysis questions whether the
employee could have aired her concerns at a
better time or in a better way and created
unnecessary confusion or turmoil by expressing
herself in the way she did. Cf. Khuans v. School
Dist. 110, 123 F.3d 1010, 1017 (7th Cir. 1997)
(holding that teacher’s complaints disrupted
daily routine of school); Breuer v. Hart, 909
F.2d 1035, 1040 (7th Cir. 1990) (explaining that
complaint was filed in an appropriate manner,
even though it legitimately addressed a matter of
public concern).

      The district court applied this factor in the
defendants’ favor because it found that Myers
expressed her concerns to a limited audience that
could not change city policy but could render
economic harm to Parsons’. However, the fact that
she spoke to a limited audience was not
particularly disruptive to the government. In
fact, her actions seemed discreet, in that she
could have chosen far more disruptive forums,
such as writing a letter to the local newspaper
or appearing at a city council meeting. By Myers’
action, the mall management and Parsons’ may have
complained to the city about the permit problem,
but this seems a very limited form of disruption.
Also, the district court noted that the mall
manager believed Myers’ comments were motivated
by frustration with the city. This latter
conclusion merely speaks to Myers’ intent and is
irrelevant to whether Myers chose the appropriate
time, place and manner for her remarks. Assuming
that Myers chose this forum, rather than had it
chosen for her by the mall manager, it seems to
be the least disruptive forum she could have
picked. In addition, there were several factual
questions regarding the conversation Myers had
with the mall manager that the district court
resolved against Myers, rather than in her favor
as required on a summary judgment motion.

B.   Qualified Immunity

      Finally, the district court found that Hasara
and Danner were entitled to qualified immunity.
A government official is entitled to immunity
from suit when performing discretionary functions
unless the district court determines that (1) the
plaintiff alleged a constitutional injury, and
(2) the legal standards applicable to the injury
were clearly established at the time. See Harlow
v. Fitzgerald, 457 U.S. 800, 815 (1982); Rakovich
v. Wade, 850 F.2d 1180, 1210 (7th Cir. 1988). The
district court held that Myers failed to allege
a constitutional injury and dismissed the suit on
the basis of qualified immunity. Because we
reverse the grant of summary judgment on the
ground that Myers successfully raised a question
of material fact regarding her First Amendment
claim, we likewise reverse the court’s finding
that she failed to meet the burden of pleading a
constitutional injury.

      The district court further found that Hasara
suspended Myers because she "had disobeyed a
directive in violation of civil service rule
48(e)." In the district court’s view, the
constitutional standards regarding a government
employer’s right to discipline an employee for
engaging in protected speech in disregard of a
supervisor’s direct order were not clearly
established in 1996. However, several cases in
this Circuit prior to 1996 discussed in detail
the balancing of interests between a government
employer’s right to require obedience,
confidentiality and silence against an employee’s
First Amendment right to speak on matters of
public concern. See, e.g., Conner v. Reinhard,
847 F.2d 384, 390-91 (7th Cir. 1988); O’Brien v.
Town of Caledonia, 748 F.2d 403, 406-07 (7th Cir.
1984); Hanneman v. Breier, 528 F.2d 750, 754 (7th
Cir. 1976). For instance, O’Brien involved police
department regulations that prohibited all public
criticism of the department and required police
officers to keep all department business
confidential. 748 F.2d at 405. We held that
Pickering demanded the department weigh the
police officer’s individual right to speak on
matters of public concern against the
department’s valid right to enforce the
challenged rules before disciplining an officer
for violating those rules. Id. at 406-07. Other
cases have similarly required Pickering analysis
even though the stated reason for an employee’s
discipline was insubordination rather than the
content of the employee’s speech. See generally
Dishnow v. School Dist. of Rib Lake, 77 F.3d 194
(7th Cir. 1996); Warzon v. Drew, 60 F.3d 1234
(7th Cir. 1995). It was, therefore, clear in June
1996 that government employees had a First
Amendment right to speak on matters of public
concern that must be weighed against the
employer’s right to punish insubordination.
Hasara and Danner cannot claim not to have known
that disciplining Myers under these circumstances
would not implicate her right to free speech.

III.   Conclusion

      We hold that as a matter of law, Myers’
comments regarding the city’s decision not to
enforce its health-code permit regulations
focused on matters of public concern, and that
because questions of material fact remain,
summary judgment was inappropriate. This decision
does not decide the merits of the factual issues
one way or the other, but leaves factual
determinations to a jury or a bench trial.
Finally, Hasara and Danner were not entitled to
qualified immunity. We therefore Reverse the
district court’s grant of summary judgment and
Remand the case for further proceedings.
