In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4200

Eric Michael,

Plaintiff-Appellant,

v.

St. Joseph County, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:99cv0495AS Allen Sharp, Judge.

Argued June 6, 2001--Decided August 3, 2001


  Before Fairchild, Bauer, and Posner,
Circuit Judges.

  Fairchild, Circuit Judge. Eric Michael,
a former employee of the St. Joseph
County Health Department (the
"Department"), brought this action
alleging that the Department and various
managers violated his First Amendment
rights by suspending him for publicly
criticizing the Department’s water-
quality policies. The district court
granted summary judgment in favor of the
defendants. We affirm.

  Michael began working for the Department
as a sanitarian in 1989. Eight years
later Michael’s supervisors began
receiving complaints from local
developers and other Department employees
about Michael’s negative attitude. On
July 17, 1997, local subdivision planner
John Linn sent a letter to Anthony
Patton, the Department’s director
ofenvironmental health, expressing
concern over Michael’s attitude:

Recently, while driving through a
residential subdivision site in Harris
Township, Eric Michaels, [sic] happened
to be at the site, so I stopped to have
a casual conversation with him. At the
conclusion of the discussion, I was
slightly disturbed by his negative
attitude and his personal antagonism
toward the policies of the Local and
State Health Departments with regard to
septic systems and water supply in St.
Joseph County.

If appropriate, you may wish to discuss
and clearly explain the policies, goals
and objectives of the Health Department
with Mr. Michaels [sic].

(R. 22 at 4.) The next day supervisor
Tony Mancuso directed Michael to return
boxes to storage but Michael refused.
Afterward, Michael submitted a written
grievance accusing Mancuso of being rude,
demeaning, arrogant and unprofessional.
On August 1, Mancuso wrote a letter to
George Plain, the Department’s health
officer, complaining about recurring acts
of insubordination by Michael. In the
letter, Mancuso referenced Michael’s
conversations with the public: "We do not
need employees, such as Eric, showing
disrespect for the whole department by
talking to outside contacts and telling
them he (Eric) thinks we (Anthony and
Tony) don’t know how to run a
department." (R. 23 at 4.) Plain
immediately referred Mancuso’s complaint
to Patton, who then prepared a memorandum
assailing Michael’s lack of
professionalism. On August 4, Plain
suspended Michael without pay and ordered
Robert Gonderman, the Department’s
attorney, to investigate past complaints
levied against Michael.

  After conducting an investigation,
Gonderman submitted a letter to Plain
detailing various disciplinary offenses
committed by Michael. On September 22,
Plain wrote Michael and apprised him of
the investigation. Plain informed Michael
that the Department would be conducting a
hearing to determine the need for further
disciplinary action. Plain’s letter
referred to Michael’s conversation with
Linn:
While conducting an inspection at Fox
Chase subdivision, Mr. Michael told Mr.
Linn, one of the subdivision professional
planners that he did not agree with the
way that the State Health Department and
the St. Joseph County Health department
[sic] were handling the sanitary system
of the subdivision and specifically that
the St. Joseph County health [sic]
Department does not do what it should do
with respect to handling subdivision
septic systems.
(R. 22 at 7.) On October 7, 1997, Michael
resigned.

  On August 4, 1999, Michael brought this
action in St. Joseph County Circuit
Court. Michael’s complaint alleged under
42 U.S.C. sec. 1983 that St. Joseph
County, Plain, Patton and Mancuso
violated his First Amendment rights by
suspending him in retaliation for his
ongoing public criticism of the
Department. Michael also alleged state
law claims for breach of contract and
promissory estoppel. Specifically, he
claimed that his suspension violated the
St. Joseph County Human Resources
Policies and Benefits Manual, which
allegedly forbids the Department from
penalizing employees for filing a
grievance against supervisors.

  The defendants removed the case pursuant
to 28 U.S.C. sec. 1446. After discovery
the district court granted summary
judgment in favor of the defendants. The
court concluded that Michael failed to
establish that his speech was protected
by the First Amendment and that the
defendants had a legitimate basis for
suspending his employment. The district
court also granted summary judgment in
favor of the defendants on Michael’s
estoppel claim, concluding that he did
not detrimentally rely on the county’s
manual.

  On appeal Michael argues that the
district court erred by granting summary
judgment for the defendants on his First
Amendment and promissory estoppel claims.
We review the grant of summary judgment
de novo. Vela v. Vill. of Sauk Vill., 218
F.3d 661, 664 (7th Cir. 2000). Summary
judgment is appropriate 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);
Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). Because the purpose of
summary judgment is to isolate and
dispose of factually unsupported claims,
Michael must respond to the defendants’
motion with evidence setting forth
specific facts showing that there is a
genuine issue for trial. See Fed. R. Civ.
P. 56(e); Albiero v. City of Kankakee,
246 F.3d 927, 932 (7th Cir. 2001). To
successfully oppose the defendants’
motion for summary judgment, Michael must
do more than raise a "metaphysical doubt"
as to the material facts, see Wolf v.
Northwest Ind. Symphony Soc’y, 250 F.3d
1136, 1141 (7th Cir. 2001) (citation and
quotation omitted), and instead must
present definite, competent evidence to
rebut the motion, see Albiero, 246 F.3d
at 932.

  Michael argues that he had a protected
First Amendment right to criticize the
Department’s water-quality policies.
Michael claims that his comments to Linn
regarding the Department’s water policies
constitute public speech that is
protected by the First Amendment.
Government employees do not relinquish
their First Amendment right to freedom of
speech as a condition of public
employment. See Pickering v. Bd. of
Educ., 391 U.S. 563, 568 (1968); Connick
v. Myers, 461 U.S. 138, 142 (1983); Myers
v. Hasara, 226 F.3d 821, 825-26 (7th Cir.
2000). We must analyze Michael’s claim
under a two-step test. First we determine
whether he engaged in speech as a citizen
on a matter of public concern. See
Gonzalez v. City of Chicago, 239 F.3d
939, 940-41 (7th Cir. 2001) (citing
Connick, 461 U.S. at 147). The First
Amendment is implicated when a public
employee speaks as a citizen upon a
matter of public concern, but not as an
employee upon matters only of personal
interest. See Myers, 226 F.3d at 826. We
evaluate whether an employee’s speech
addresses a matter of public concern by
examining the content, form, and context
of the speech. See Snider v. Belvidere
Township, 216 F.3d 616, 620 (7th Cir.
2000). The second step under
Pickering/Connick is a balancing test. If
Michael engaged in speech that is a
matter of public concern, we must then
balance Michael’s interest in expression
against the Department’s interest in
promoting efficient public service. See
id. We do not reach this balancing test,
however, unless Michael establishes that
he engaged in protected speech. See id.

  Michael argues that the district court
erred in granting summary judgment in
favor of the defendants on his First
Amendment claim because it misconstrued
the facts. Specifically, he refers to the
district court’s statement that Michael’s
First Amendment claim is based on a
letter that he wrote to Linn criticizing
the Department. Michael, however, did not
write a letter to Linn; rather it was
Linn who wrote a letter expressing
concern over critical comments made to
him by Michael. Though this statement by
the court was incorrect, we may affirm
its grant of summary judgment on any
ground supported by the record. See
Lawson v. CSX Transp., Inc., 245 F.3d
916, 929 (7th Cir. 2001).

  We conclude that the district court
reached the right outcome regarding
Michael’s First Amendment claim because
Michael failed to set forth evidence that
he engaged in protected speech. Indeed,
there is no evidence in the record
definitively establishing what he said to
Linn. The only evidence Michael relies on
is Linn’s July 17 letter, which vaguely
characterizes Michael’s comments, and
Mancuso’s letter to Plain regarding
Michael’s attitude. Linn’s letter,
however, reveals only that Michael
exhibited a negative attitude and
personal antagonism toward the
Department’s septic system and water
supply policies. The letter does not
recite what was said and does not reveal
the circumstances surrounding the
comments. What did he say? What specific
Department policies were discussed?
Though we need not know the precise words
he used to express himself, see Jefferson
v. Ambroz, 90 F.3d 1291, 1296-97 (7th
Cir. 1996), the record sheds no light on
even the gist of his comments. In
addition to a lack of evidence relating
to content, we are similarly in the dark
regarding the context of his speech. Was
his criticism part of his job duties--
relevant in determining whether he made
protected comments as a "citizen," or
merely unprotected comments made pursuant
to his regular job responsibilities? See
Gonzalez, 239 F.3d at 941. What are his
job duties? Was Michael responding to
Linn’s questions or was he engaged in
unsolicited soliloquy within Linn’s
earshot? Similarly, Mancuso’s letter
fails to demonstrate that Michael spoke
as a citizen on a matter of public
concern. Mancuso merely complained that
Michael had told outside contacts that
Mancuso and Plain did not know how to run
the Department. The letter does not
specifically refer to any matter of
public interest, but instead is centered
upon personnel matters and the operation
of the Department (and thus outside the
scope of the First Amendment). We simply
do not have sufficient evidence in the
record to determine whether Michael spoke
about a matter of public concern, or
whether he spoke as a citizen or as an
employee. Because Michael failed to
demonstrate that he engaged in protected
speech, his First Amendment claim must
fail.

  Michael’s promissory estoppel claim also
fails for the same reason--he did not
present evidence that he relied on the
benefits manual to create a genuine issue
for trial. Indiana law recognizes two
basic forms of employment: (1) employment
for a definite or ascertainable term; and
(2) employment-at-will. Orr v.
Westminster Vill. N., Inc., 689 N.E.2d
712, 717 (Ind. 1997). At-will employment
is presumptively terminable at any time,
with or without cause, by either party.
Id. An employee, however, may invoke the
doctrine of promissory estoppel to rebut
the presumption that employment is at-
will and thus require the employer to
justify the adverse employment action.
Id. at 718. A claim for promissory
estoppel has three elements: (1) the
employer made a promise to the employee;
(2) the employee relied on that promise
to his detriment; and (3) the promise
otherwise fits within the Restatement
test for promissory estoppel. Id.

  Michael argues that the Department
suspended him from his job because he
filed a grievance against Mancuso,
claiming this violated the St. Joseph
County Human Resources Policies and
Benefits Manual, which forbids the
Department from retaliating against
employees who file grievances. The record
contains no evidence, however, to support
his claim that he relied on the manual in
deciding to file his grievance. Though
Michael testified that he attended a
meeting in which the Department reviewed
the manual with employees, there is no
evidence that the grievance procedure was
discussed at that meeting. Michael did
not present any evidence that he even
read the provision in the manual relating
to the grievance procedure, let alone
that he relied on that provision in
writing his letter complaining about
Mancuso. As a result, the district court
correctly entered summary judgment in
favor of the defendants on Michael’s
promissory estoppel claim.

  Accordingly, the judgment of the
district court is AFFIRMED.
