Button v. Kibby-Brown

• Decision Date: 26 June 1998
• Docket Number: No. 97-2832,KIBBY-BROWN and S,97-2832
• Citation: 146 F.3d 526
• Parties: 73 Empl. Prac. Dec. P 45,432 Phillip BUTTON, Plaintiff-Appellant, v. Sandrateven L. McEvers, * Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 526

146 F.3d 526

73 Empl. Prac. Dec. P 45,432

Phillip BUTTON, Plaintiff-Appellant, v. Sandra KIBBY-BROWN and Steven L. McEvers, ^* Defendants-Appellees No. 97-2832.

United States Court of Appeals Seventh Circuit.

Argued March 31, 1998.

Decided June 26, 1998.

James P. Baker, Springfield, IL, Mark S. Demorest (argued), Hainer, Demorest & Berman, Troy, MI, for Plaintiff-Appellant.

Jerald S. Post (argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.

Before POSNER, Chief Judge, and CUMMINGS and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Phillip Button brought a claim under 42 U.S.C. § 1983, alleging that defendants Sandra Kibby-Brown and Steven McEvers violated his rights under the First Amendment. At the close of trial, the district court granted Kibby-Brown's and McEvers' motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a). Button appeals this decision; we affirm.

I. HISTORY

The Illinois Department of Corrections has employed Reverend Phillip Button as a chaplain at the Jacksonville Correction Center ("the Center") in Jacksonville, Illinois, since 1984. Defendant Sandra Kibby-Brown is employed as the Assistant Warden of Programs at the Center and is Button's immediate supervisor. Defendant Steven McEvers is the Warden at the Center and is Kibby-Brown's supervisor. Marjorie Brown is the Deputy Director of Community Services and is outside Button's chain of command.

Button's job duties include counseling inmates and visiting inmates in the segregation unit daily. In October 1991, Button met inmate Michael Shannon. Shannon is a "circuit rider," an inmate who is permanently held in segregation and frequently transferred from one prison facility to another. Button visited Shannon often and counseled him on religion. During these visits, Button discovered that Shannon was illiterate.

Shannon had access to a television set and learned of the Hooked on Phonics educational program. Shannon requested that he be allowed to use these materials to assist him in learning to read. Kibby-Brown and Button discussed Shannon's request and decided that Button would contact the publisher of Hooked on Phonics, Gateway Educational Products, Ltd., to ask them to donate the materials. Button subsequently called Gateway and wrote a follow-up letter. In response, Gateway donated the program and asked that it be given a progress report on inmates using the materials. A second letter offered direction to Button on the use of the program and asked that he track Shannon's progress for the first 30 to 90 days of use.

Meanwhile, Kibby-Brown asked Warden McEvers whether Button could teach Shannon to read using the donated Hooked on Phonics materials. McEvers denied this request, suggesting that an educator would be a more appropriate choice. Kibby-Brown communicated this decision to Button, who expressed his displeasure at this outcome.

Thereafter, Button and Deputy Director Brown attended a meeting together. After the close of the meeting Button asked Brown if he could speak to her privately. Button testified that he told Brown that he had received materials for use with inmate Shannon and that Shannon was not going to be allowed to use them. Under these circumstances, Button thought the materials should be returned to Gateway. Brown testified that she did not remember the details of the conversation, but generally she remembered that Button had wanted to help an inmate in segregation, that his request had been denied, and that he wanted her opinion on the subject.

After this conversation with Button, Brown called Kibby-Brown. Although Brown testified that she did not remember the exact conversation, she remembered that she called concerning an inmate in segregation and educational materials. Kibby-Brown testified to the content of the conversation: Brown wanted to know whether she would reconsider allowing Button to tutor Shannon. Kibby-Brown related that Warden McEvers had made the decision to use an educator and therefore Brown should direct her query to him. Brown did not contact McEvers.

Approximately two weeks later, Shannon received the Hooked on Phonics materials, and an educator was assigned to tutor Shannon. At the time of trial, Shannon still had the Hooked on Phonics materials.

Both McEvers and Kibby-Brown were angry with Button for going outside the chain of command to discuss the decision regarding the reading materials. Button alleges that McEvers and Kibby-Brown retaliated against him for his conversation with Brown by giving him poor performance reviews, written reprimands, and by discarding his application for a part-time secondary position with the State of Illinois. Button alleges that since these acts were in retaliation for exercise of his First Amendment rights, he deserves damages pursuant to 42 U.S.C. § 1983.

At the close of trial, defendants moved for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a), which the district court granted. The court found that Button had not established that his conversation with Brown involved a matter of public concern, and therefore it was not protected by the First Amendment. Button appeals this decision. ¹

II. ANALYSIS

A. Standard of Review

Fed.R.Civ.P. 50(a) provides:

If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

The district court granted defendants' Fed. R. Civ. P. 50(a) motion because it found Button's speech to Brown was not protected under the First Amendment. "Whether a public employee's speech has protected status presents a question of law determined in the first instance by the trial judge, whose decision we review de novo." Wright v. Illinois Dept. of Children & Family Servs., 40 F.3d 1492, 1499-1500 (7th Cir.1994); see also Hammond Group, Ltd. v. Spalding & Evenflo Cos., Inc., 69 F.3d 845, 848 (7th Cir.1995); Continental Bank v. Modansky, 997 F.2d 309, 312 (7th Cir.1993). We consider the evidence in the light most favorable to the nonmoving party and will reverse the district court's judgment only if enough evidence exists to sustain a verdict in favor of the nonmoving party. See Hammond Group, 69 F.3d at 848; Continental Bank, 997 F.2d at 312.

B. Button's § 1983 Claim

1.

Button claims that McEvers and Kibby-Brown retaliated against him for exercising his First Amendment rights in violation of 42 U.S.C. § 1983. To establish a First Amendment retaliation claim, Button must show "(1) that speech [he] engaged in was constitutionally protected under the circumstances, ... and (2) that defendants retaliated against [him] because of that speech." Gorman v. Robinson, 977 F.2d 350, 354 (7th Cir.1992) (quotations omitted).

The threshold question in assessing whether Button's speech is constitutionally protected is whether it addressed a matter of public concern. See Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). If so, we must then address whether Button's interest in his expression is "outweighed by any injury the speech could cause to the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Waters v. Churchill, 511 U.S. 661, 668, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (quotations omitted); see also Pickering v. Board of Educ. of Township High Sch. Dist., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). We need not engage in this balancing act in the present case, however, because Button has not established that his speech addressed a matter of public concern.

To determine whether Button's speech addressed a matter of public concern, we consider "the content, form, and context ... as revealed by the whole record." Connick, 461 U.S. at 147-48. Our cases establish that of these three factors, content is the most important. See Marshall v. Porter County Plan Comm'n, 32 F.3d 1215, 1219 (7th Cir.1994); Belk v. Town of Minocqua, 858 F.2d 1258, 1264 (7th Cir.1988).

We will also inquire about the speaker's motive in making the statements at issue. See Marshall, 32 F.3d at 1219. The motive behind an employee's statements is a relevant, although not a dispositive, consideration. See id.; Cliff v. Board of Sch. Comm'rs of Indianapolis, 42 F.3d 403, 409 (7th Cir.1994). "Motive may play some part in determining whether the speech is of public concern because speech that promotes a purely private interest is not protected." Marshall, 32 F.3d at 1219. We therefore examine "the point of the speech in question; was it the employee's point to bring the 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?" Cliff, 42 F.3d at 410 (quotations omitted). The fact that an employee has a personal stake in the subject matter of the speech does not necessarily remove the speech from the scope of public concern, however. See id. On the other hand, "the fact that an employee speaks up on a topic that may be deemed one of public import does not automatically render his remarks on that subject protected." Smith v. Fruin, 28 F.3d 646, 651 (7th Cir.1994). Indeed, we held that speech lacks the public concern element if it "concerns a subject of public interest but the expression addresses only the personal effect upon the employee." Marshall, 32 F.3d at 1219. We must therefore determine whether the speaker is speaking "more like a citizen or a disgruntled employee whose statements are primarily of personal interest." Colburn v. Trustees of Ind. Univ., 973 F.2d 581, 585 (7th Cir.1992).

Where...