360 F.3d 692 (7th Cir. 2004), 02-4118, Sullivan v. Ramirez

Docket Nº:02-4118.
Citation:360 F.3d 692
Party Name:Connie SULLIVAN and Mary Blanco, Plaintiffs-Appellees, v. Robert RAMIREZ, Defendant-Appellant.
Case Date:March 03, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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360 F.3d 692 (7th Cir. 2004)

Connie SULLIVAN and Mary Blanco, Plaintiffs-Appellees,

v.

Robert RAMIREZ, Defendant-Appellant.

No. 02-4118.

United States Court of Appeals, Seventh Circuit

March 3, 2004

Argued Oct. 27, 2003.

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Mary L. Leahy (argued), Springfield, IL, for Plaintiffs-Appellees.

Mary E. Welsh (argued), Office of the Attorney General, Chicago, IL, for Defendant-Appellant.

Before RIPPLE, DIANE P. WOOD and EVANS, Circuit Judges.

RIPPLE, Circuit Judge.

Connie Sullivan and Mary Blanco brought this action against their employer, the Illinois Department of Transportation ("IDOT"), and their supervisor, Robert Ramirez, Chief of the IDOT Bureau of Employee Services. Their complaint alleged violations of their rights under the First Amendment, see 42 U.S.C. § 1983, and violations of state law. The district court dismissed IDOT on the ground that the Eleventh Amendment barred the action against it. It granted Mr. Ramirez's motion for summary judgment on the state claims but denied summary judgment based on qualified immunity with respect to the First Amendment claims. Mr. Ramirez appeals this last ruling. For the reasons set forth in the following opinion,

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we reverse the judgment of the district court.

I

BACKGROUND

A. Facts

Connie Sullivan and Mary Blanco work for the IDOT Bureau of Employee Services ("the Bureau"). Robert Ramirez is the chief of the Bureau. The Bureau has two sections, Support Services and Training and Education. Ms. Sullivan is a management technician in the Training and Education Section. At the time of the events giving rise to this appeal, her immediate supervisor was Sandy Ferega, who reported to Richard Cunningham, who reported to Mr. Ramirez. Ms. Blanco is a budget administrator in the Support Services Section. During the relevant time period, her immediate supervisor was Doug Cunningham,1 who reported to Ken Coburn, who reported to Mr. Ramirez. Neither Ms. Sullivan nor Ms. Blanco had any timekeeping responsibilities for the Bureau.

In January 1999, an anonymous letter was directed to the Governor's chief of staff, claiming abuse of time by Richard Cunningham.2 Neither Ms. Sullivan nor Ms. Blanco sent the letter or know who sent the letter.3 The matter was referred to the Illinois State Police in March of 1999, and they opened an investigation. Prior to the arrival of the police investigators, Mr. Ramirez held two brief meetings, one for each section of the Bureau. At those meetings, Mr. Ramirez told employees about the investigation and instructed them to cooperate with the police. He also told employees that he was unhappy with the anonymous letter, that the Bureau had an official timekeeper and that no one else was to keep time. Mr. Ramirez announced that he would throw away any more anonymous letters.4 Ms. Sullivan and Ms. Blanco each attended the meeting for their section.

The police later interviewed employees of the Bureau, including Ms. Sullivan and Ms. Blanco. During their interviews, Ms. Sullivan and Ms. Blanco alleged that time abuse was occurring. The police asked them for documentation of this time abuse, but they could not provide such proof. The police ultimately concluded that the allegations of time abuse against Richard Cunningham were unsubstantiated, but suggested implementing internal controls. Mr. Ramirez then implemented a sign-in sheet that did not include times and that not everyone signed.

After the police investigation, Ms. Sullivan and Ms. Blanco recorded co-workers' office time on state-issued calendars. Both kept their calendars in a desk drawer, or in a purse, bag or case that they carried to work. Ms. Sullivan made her notations during breaks, lunch or after work. Ms. Blanco made her notations mostly over her lunch hour away from the office. In her deposition, Ms. Sullivan testified that she kept time because she wanted

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to protect herself if she were accused of time abuse. She claimed that Mr. Ramirez unfairly had allowed some to take late lunches or to arrive late and that the police had implied that she should have documentation. Ms. Blanco testified that she kept time because she wanted to cover herself and because the state police told her that any information on time abuse only would have value if the times and dates were written down. Both Ms. Sullivan and Ms. Blanco reported co-workers' tardiness to their supervisors, Richard Cunningham and Doug Cunningham, respectively.

After Ms. Sullivan and Ms. Blanco began keeping track of co-workers' time, other employees complained to Mr. Ramirez and other supervisors that Ms. Sullivan and Ms. Blanco's activities created a hostile work environment. One employee allegedly transferred because of it. Although the record indicates that Ms. Sullivan and Ms. Blanco's co-workers knew the two were keeping time records, both Ms. Sullivan and Ms. Blanco deny knowing that the other was doing so.

As a result of rising tension, Ms. Blanco's supervisor, Doug Cunningham, spoke with Ms. Blanco about co-worker relations. In January of 2000, Ms. Blanco, Mr. Ramirez and Doug Cunningham met, and Mr. Ramirez told Ms. Blanco that she should not be keeping other employees' time. Despite this meeting, Ms. Blanco continued tracking other employees' time.

On March 23, 2000, Ms. Sullivan took a message for Richard Cunningham from a friend. The message was: "big meeting, twelve noon tee off time at Long Bridge." R.45 ¶ 227. The message was meant as a joke. Later that day, based on something overheard from Mr. Ramirez's secretary, Ms. Sullivan noted "Golf P.C." for Mr. Ramirez and that he left before noon. Id., Sullivan Dep. at 107. "P.C." referred to Panther Creek, a golf course.

On March 24, 2000, when Mr. Ramirez arrived at work, his secretary informed him that she had heard that Ms. Sullivan had called Panther Creek to see if Mr. Ramirez was playing golf there. Mr. Ramirez attempted to verify the source of this information but was not successful.5 Around this time, Mr. Ramirez passed Ms. Sullivan and her supervisor, Ferega, who had just gone on break. Mr. Ramirez then confronted Ms. Sullivan, told her that she did not need to check up on him and that he would be "tak[ing] care of" her. Id., Sullivan Dep. at 111. After this confrontation, Ms. Sullivan left work on sick time.

Mr. Ramirez then told someone to obtain Ms. Blanco and Ms. Sullivan's calendars. He received permission from the labor relations unit to keep Ms. Blanco's calendar as evidence and to send Ms. Blanco home. He also told Richard Cunningham that he had received direction from the IDOT labor relations unit to send Ms. Sullivan home, but Ms. Sullivan already had left sick.

Mr. Ramirez then called Ms. Blanco into his office, and she admitted that the calendar and notations were hers. Mr. Ramirez told her that she was suspended and would be fired, and he instructed her to leave with her belongings. After Ms. Blanco left his office, Mr. Ramirez again confronted her at her cubicle and directed someone to call security to escort her from the building.

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A security officer escorted Ms. Blanco from the building approximately thirty minutes later. Because it was break time, there were fifty or sixty people in the lobby area through which Ms. Blanco was escorted carrying her belongings in bags. After she was sent home, other employees in the department allegedly told Doug Cunningham that Ms. Blanco's conduct had gone on too long and that the disciplinary action was long overdue.

Ms. Sullivan came to work on Monday, March 27, and was instructed to meet with Richard Cunningham and Mr. Ramirez. At the meeting, Mr. Ramirez also suspended Ms. Sullivan with pay. He told her to leave with her personal belongings. Later in the week, Ms. Sullivan received a letter from Mr. Ramirez instructing her to return to work on Monday, April 3. Charges against Ms. Sullivan for insubordination, misuse of state time and disrupting the work environment were later dropped.

Prior to Ms. Sullivan's return, Mr. Ramirez called Ms. Blanco and also instructed her to return to work. Ms. Blanco's paid suspension lasted one day and a half. After she returned, she met with Doug Cunningham and Mr. Ramirez, and Mr. Ramirez instructed her not to keep other employees' time. Ms. Blanco filed a written grievance in regard to her suspension. In August 2000, she received a written warning regarding her conduct. The grievance remains open.

B. District Court Proceedings

The district court granted summary judgment to Mr. Ramirez on the state claims but denied summary judgment based on qualified immunity with respect to the First Amendment claims. Applying the framework set forth in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the court held that the record-keeping constituted speech, that the speech qualified as a matter of public concern and that the balancing required under Pickering presented a jury question. It also ruled that a question of fact existed as to whether Mr...

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