In the
United States Court of Appeals
For the Seventh Circuit

No. 98-3158

Barbara J. Klein,

Plaintiff-Appellant,

v.

Sidney G. Perry, individually and as
Manager of the
Employee/Labor Relations Department of
the Human
Resources Administration, and Cheryl
Sullivan,
individually and as Secretary of the
Indiana Family
and Social Services Administration,

Defendants-Appellees.



Appeal from the United States District Court
for the Southern District of Indiana,
Indianapolis Division.
No. 96 C 819--Richard L. Young, Judge.


Submitted March 8, 2000--Decided June 8, 2000




  Before Fairchild, Manion, and Rovner,
Circuit Judges.


  Rovner, Circuit Judge. In 1996 Barbara
Klein filed this suit under 42 U.S.C.
sec. 1983, claiming that the defendants
suspended her from work for 30 days and
involuntarily transferred her from her
position with the Human Resources
Department of the Family and Social
Services Administration (FSSA) to a
position with the Division of Mental
Health in retaliation for her exercise of
her First Amendment right to freedom of
speech. The defendants countered by
arguing that Klein’s claim was precluded
by a prior decision of the Indiana State
Employees’ Appeals Commission (SEAC). The
district court agreed and granted the
defendants’ motion for summary judgment.
Klein appeals.
  As did the district court, we accord
preclusive effect to the SEAC’s factual
findings. Federal courts give preclusive
effect to the findings of state
administrative tribunals in subsequent
actions under sec. 1983. See University
of Tennessee v. Elliott, 478 U.S. 788,
799 (1986) ("[W]hen a state agency
’acting in a judicial capacity . . .
resolves disputed issues of fact properly
before it which the parties have had an
adequate opportunity to litigate,’
federal courts must give the agency’s
factfinding the same preclusive effect to
which it would be entitled in the State’s
courts.") (citation omitted); Crot v.
Byrne, 957 F.2d 394, 396 (7th Cir. 1992).
We believe the Indiana state courts would
find that an issue of fact litigated and
determined in an agency’s decision is
preclusive between the parties in a
subsequent action, even though a
different claim is involved. See Fruehauf
Corp. v. Review Bd. of the Indiana
Employment Security Div., 269 N.E. 2d
184, 189 (Ind. App. 1971); see also
Flowers v. Carson, 917 F. Supp. 614, 619
(S.D. Ind. 1996); Kelly v. Municipal Ct.
of Marion Co., 852 F. Supp. 724, 739
(S.D. Ind. 1994), aff’d 97 F.3d 902 (7th
Cir. 1996).


  Accordingly, the following statement of
facts summarizes the facts found by the
SEAC. Klein was employed as a personnel
officer in the Human Resources Section of
the FSSA. On or about September 25, 1995,
Klein received a telephone call from a
caseworker at the Marion County Division
of Family and Children (DFC) who alleged
some problems in the Child Protective
Services (CPS) division and expressed
fear of retaliation and dismissal if she
disclosed those problems. Klein and
fellow officer Fred Schute, who had been
hired only recently, met with and
interviewed the DFC caseworker, as well
as a former colleague of the caseworker
who had been dismissed from her
employment with DFC. Klein and Schute met
several times that week and reviewed many
documents that had been copied by the
caseworkers from the CPS division.


  Klein updated her supervisor Sidney
Perry, the Director of Employee/Labor
Relations for FSSA, on the
investigation’s progress on a daily,
almost hourly, basis. By Friday,
September 29, 1995, Perry had determined
that some expertise in CPS matters was
needed to review the records brought in
by the two complaining caseworkers. Perry
gave Klein the names of two investigators
whom he asked to be assigned to the case
and told her to call the Acting Director
of Marion County DFC to set up a meeting
that day with the two investigators to
officially review the records, files, and
documents. Upon examining staffing
reports, Klein discovered that the two
investigators whom Perry had designated
to review the documents were themselves
supervisors in the very same CPS division
of Marion County DFC. Thus, Klein
believed there was a conflict of interest
in having those investigators review the
documents that alleged wrongdoing by CPS
supervisors. Klein testified that she was
also concerned that Perry himself may
have had a conflict of interest because
he had previously advised Marion County
DFC to dismiss one of the complaining
caseworkers.


  Klein had a doctor’s appointment
scheduled for the afternoon of September
29, 1995, for which she had already been
given permission to leave work. Prior to
leaving for that appointment, Klein tried
to meet with Perry or his supervisor,
James Ladd, but learned that both were in
meetings. She then asked Schute to help
her carry her notes regarding the
investigation and the CPS caseworkers’
documents to the Office of the General
Counsel of FSSA, Rachel McGeever, for
safekeeping. McGeever is the person
designated to receive allegations of
ethical problems. But McGeever was not in
her office, nor was her Deputy General
Counsel, Marianne Wilson. Klein then
recognized another attorney walking in
the hallway and asked him if he had a
place where confidential documents could
be safeguarded. The attorney, William
Bogard, replied that he did and placed
the documents in his office while he
searched for the key to a locked file
cabinet. Klein left for her doctor’s
appointment, and Schute returned to his
office in Labor/ Employee Relations.


  Upon returning to his office, Schute saw
Perry and, recalling that Klein had been
looking for him earlier, told Perry the
location of the documents. Schute
accompanied Perry back to Bogard’s
office, where they retrieved the
documents. When Klein telephoned Schute
from her doctor’s office later that
afternoon and learned that the documents
had been brought back to the
Labor/Employee Relations office, she
instructed Schute to return the documents
to the Office of General Counsel. He did
so, and this time found McGeever back in
her office; he turned over the documents
to her and requested that she safeguard
them. Later that day, Perry learned that
the documents had been delivered to the
Office of General Counsel again, and for
a second time he retrieved them and took
them back to the Employee/Labor Relations
office.


  The next Monday, October 2, 1995, Klein
received written notice of a possible
disciplinary action charging her with
gross misconduct, insubordinate behavior,
disobeying an order, failure to follow
instructions, and interfering with the
completion of an investigation. The
notice stated that a pre-deprivation
hearing would be held at 2:30 that
afternoon. At the hearing, Klein
expressed her concerns about ethical
violations in the investigation and
explained her reasons for removing the
documents. After hearing Klein’s
explanation, the hearing officer imposed
a 30-day suspension without pay. Once
Klein had served the suspension, she was
transferred to the Division of Mental
Health at Perry’s instigation. Klein
filed a grievance challenging her
punishment, but this was denied. She
appealed the denial to the SEAC.


  Following an evidentiary hearing at
which Klein was represented by counsel,
the SEAC concluded that the disciplinary
actions against her were warranted. The
SEAC found that Klein did not explain to
Schute her concerns about potential
ethical dilemmas in allowing employees
from the CPS division of the Marion
County DFC to review the documents;
concerns that someone might destroy or
tamper with the documents; or concerns
about Perry’s involvement in the decision
to dismiss one of the caseworkers who
instigated the present complaint.


  The FSSA policy on ethics provides in
part that "[a]ll staff have a
responsibility to report perceived or
real ethical violations to a supervisor
or directly to the Ethics Commission."
According to the SEAC, Klein did not
report any real or perceived ethical
violations to her co-workers, her
supervisor, or the Ethics Commission.
Rather, Klein removed documents in an
ongoing investigation from the offices of
the Employee/Labor Relations Division to
prevent the employees from DFC from
having access to them. Klein then
instructed a co-worker to remove the
documents a second time. These actions
directly violated Perry’s order to allow
the two DFC supervisors to review the
documents. Klein did not prove the
urgency that induced her actions, nor
that this was the only method available
to alleviate her concerns. Thus, the SEAC
concluded that the FSSA had just cause to
suspend Klein for her actions.


  Klein then filed suit directly in
federal court under sec. 1983, alleging
that the defendants retaliated against
her for exercising her right to free
speech, and requesting damages and
injunctive relief. The defendants moved
for summary judgment. In granting the
defendants’ motion, the court
acknowledged its obligation to give
preclusive effect to the SEAC’s findings
of fact under Elliott. But the court also
observed that, because Klein did not
raise the First Amendment defense before
the SEAC, the agency’s conclusion that
Klein did not inform her co-workers of
her ethical concerns did not preclude the
district court from considering whether
she had engaged in protected speech.


 The court first concluded that Klein had
not engaged in "speech" as contemplated
by the First Amendment. According to the
SEAC’s findings, Klein had not
communicated her concerns in either
verbal or written form to any of her co-
workers or the members of the Ethics
Commission. The court explicitly rejected
Klein’s argument that the gesture of
handing documents over to the Ethics
Commission for safekeeping expressed
Klein’s ethical concerns about the
matter. Under Texas v. Johnson, 491 U.S.
397, 404 (1989), the court explained,
there was no evidence that Klein intended
her conduct to convey a message, nor were
there facts suggesting that others who
witnessed her conduct inferred such a
message. The court then opined that, even
assuming that Klein’s removal of the
files was protected expression, the state
nonetheless could constitutionally
regulate this expression because the
restrictions were narrowly drawn and
furthered a substantial governmental
interest under Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 294
(1984). Finally the court determined that
Klein’s claim that she was retaliated
against for "voicing ethical concerns to
fellow employees" was estopped by the
SEAC’s finding that she did not inform
her co-workers of her concerns.


  We are concerned that the district court
was not as thorough as it should have
been in evaluating Klein’s claim. The
court’s entire First Amendment analysis
runs little more than one page, cites
only two cases, and glosses over the
communicative nature of Klein’s actions.
Although the court appropriately cited
Texas v. Johnson, which outlines the test
for determining when conduct rises to the
level of "speech" under the First
Amendment, the court did not analyze
Klein’s circumstances under that test.
Instead the court held in conclusory
fashion that Klein had not shown any
evidence of communicative intent or
effect. This unsupported conclusion is
insufficient to permit this court to
engage in meaningful review. The court
must consider all aspects of her actions.
Here, she did not merely transfer files
from one office to another for
safekeeping. She purposefully moved the
files out of the Labor/Employee Relations
office and into the office of McGeever,
the person designated to receive
allegations of ethical problems. The
choice of that destination may express a
concern with ethics just as an employee
sending a file to the FBI or U.S.
Attorney’s Office may be seen as
expressing a concern over criminal
activity in her office. Additionally,
although not argued by Klein’s counsel
before the district court, we note that
Klein clearly did engage in protected
speech at the time she stated her case
before the hearing officer. It was only
after testifying before the hearing
officer (and Perry) that Klein suffered
the adverse employment actions she
challenges here. Perhaps the nature of
Klein’s speech at the pre-deprivation
hearing would be a fruitful avenue of
inquiry to explore upon remand and at the
least it may assist in interpreting the
nature of her conduct.


  Moreover, the case that the district
court cited to analyze the state’s
punishment of employee speech is not on
point. The case relied on by the district
court, Clark, dealt with time, place and
manner restrictions on the use of a
public forum, not with protected speech
by public employees. Surprisingly, the
court here did not cite any of the cases
specifically addressing protections for
speech by public employees. See, e.g.,
Pickering v. Bd. of Education, 391 U.S.
563 (1968); Connick v. Meyers, 461 U.S.
138 (1983); Wright v. Illinois Dep’t of
Children & Family Servs., 40 F.3d 1492
(7th Cir. 1994). We do not have
sufficient facts to determine the outcome
of the Pickering test at this time.
Accordingly, we remand this case with
instructions to the district court to
further consider whether Klein engaged in
activity that the First Amendment
jurisprudence considers speech. Should
the court determine that she did engage
in speech, then it must consider under
the Pickering line of cases whether that
speech was protected by the First
Amendment. Finally, we observe that both
Klein and the district court surely will
benefit from having appointed counsel
represent Klein on remand.


  The judgment of the district court is
VACATED and this case is REMANDED for
further proceedings consistent with this
opinion.




  MANION, Circuit Judge, dissenting. While
I agree with my colleagues that our
review of this case could be enhanced by
a further statement from the district
court of its reasons for granting summary
judgment, this case can be decided as it
stands on at least two grounds
established on the present record.


  First, because the First Amendment
protects the exchange of ideas and not
simple actions, Klein was required to
create a genuine issue as to whether
moving files between offices was
expressive conduct. Smith v. Goguen, 415
U.S. 566, 586 (1974) (the First Amendment
"applies to speech and not to conduct
without substantial communicative intent
and impact."). Courts have held that a
variety of acts constitute expressive
conduct--from burning draft cards and
flags to wearing armbands--but there
appears to be no precedent that says
moving files from one room to another
constitutes expressive conduct. Of
course, the test does not depend solely
on the type of action involved, but on
the intent of the actor and the
likelihood that others will perceive the
message which inheres in the action.
Texas v. Johnson, 491 U.S. 397, 404
(1989) ("In deciding whether particular
conduct possesses sufficient
communicative elements to bring the First
Amendment into play, we have asked
whether an intent to convey a
particularized message was present, and
whether the likelihood was great that the
message would be understood by those who
viewed it."). Klein concedes in her
appellate brief that her intent in moving
the documents was not expressive, but
rather protective--she was afraid that
the files would be destroyed. App. Br. at
10. And unlike wearing an armband or
burning a flag, it seems unlikely that
anyone who saw Klein and Schute carrying
files--an act which regularly occurs in
most office settings--would have
perceived this conduct as conveying any
message, much less a statement addressing
matters of public concern. This brings us
to Klein’s next hurdle.


  Even if we assume that moving files can
be expressive conduct, Klein was then
required to show that there was a genuine
issue concerning whether: (1) the speech
addressed a matter of public concern; and
(2) any First Amendment interests in the
matter were not outweighed by the state’s
interests in promoting the efficiency of
its public services. Pickering v. Board
of Educ., 391 U.S. 563 (1968); Bonds v.
Milwaukee County, 207 F.3d 969, 979 (7th
Cir. 2000). Assuming further that Klein’s
conduct addressed a matter of public
concern rather than her own interests,
she didn’t make the showing as required
at the summary judgment stage that this
interest is greater than the Social
Services Administration’s need to have
the files available for examination by
investigators and its need for
efficiency, discipline, and harmony in
the work environment. See Kokkinis v.
Ivkovich, 185 F.3d 840, 845 (7th Cir.
1999).


  Although Klein is pro se on appeal, she
was represented by counsel before the
district court. Thus she had adequate
opportunity to make her case by
presenting facts showing that what
appeared to be rather routine conduct was
instead protected speech involving
matters of public concern. No doubt had
she presented the same bundle of files to
the offices of the FBI or the U.S.
Attorney, a full explanation of reasons
would be necessary before acceptance by
either agency. Because Klein failed to
create genuine issues as to whether her
actions were expressive conduct or
whether her interests outweighed those of
the state, and because either defect is
fatal to her case, summary judgment was
proper.


 That being said, although the case will
be remanded for further proceedings, it
is not necessary that the district court
appoint counsel on remand. Civil
litigants have neither a constitutional
nor statutory right to appointed counsel.
Zarnes v. Rhodes, 64 F.3d 285, 288 (7th
Cir. 1995). While 28 U.S.C. sec.
1915(e)(1) permits district courts to
assign counsel to the indigent, Klein
does not claim indigence, making section
1915(e)(1) inapplicable. As to other
bases for appointing counsel, those are
left to the sound discretion of the trial
court, and we should not invade this
domain lightly. Id. Furthermore, before
the district court can exercise its
discretion to appoint counsel, it should
consider whether: (1) the litigant seeks
an appointment of counsel; (2) the
litigant made a reasonable attempt to
again secure private counsel; (3) other
measures short of appointing counsel are
appropriate; (4) the case is so difficult
that it merits such an appointment; and
(5) an appointment of counsel would
provide a substantial benefit to the
court or the parties. Luttrell v. Nickel,
129 F.3d 933, 936 (7th Cir. 1997); Donald
v. Cook County Sheriff’s Dept., 95 F.3d
548, 554 n.1 (7th Cir. 1996); Zarnes, 64
F.3d at 288. The record does not indicate
that any of these factors compels the
appointment of counsel in this case.
Rather, from Klein’s pro se brief we see
that she is cognizant of the applicable
cases and the relevant facts, and her
case fails simply because she has no
claim, and not because of some
shortcoming in the litigation process. As
noted, before the district court Klein
was represented by two attorneys. And the
mere fact that Klein’s case could not
withstand a motion for summary judgment
should not call into question their
competence. But even if there were a
legitimate reason for appointing counsel,
I would leave that decision entirely to
the sound discretion of the district
court.
