Wernsing v. Thompson

Decision Date09 September 2005
Docket NumberNo. 03-3956.,03-3956.
Citation423 F.3d 732
PartiesJenny WERNSING, Charles Bingaman and Troy Cannon, Plaintiffs-Appellees, v. Odell THOMPSON, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

J. Brian Heller (argued), Washington, IL, for Plaintiff-Appellee.

Erik G. Light, Office of the Attorney General, Chicago, IL, for Defendant-Appellant.

Richard J. Whitney (argued), Speir & Whitney, Carbondale, IL, for Intervenor-Appellee.

Before CUDAHY, EASTERBROOK and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

Three Internal Security Investigators in the Office of the Inspector General of the Illinois Department of Human Services brought suit under 42 U.S.C. § 1983, alleging that the Inspector General of Illinois had (1) imposed a prior restraint on their Constitutionally protected speech and (2) retaliated against them for exercising their First Amendment rights after they voiced concern over the Inspector General's rumored plans to make a key appointment. Plaintiffs requested both money damages and an injunction prohibiting further restrictions on their speech. Both sides moved for summary judgment. The district court ruled that (1) the plaintiffs' request for injunctive relief is moot, (2) the Inspector General's directive barring plaintiffs from speaking to any "external agent" without his permission constituted an impermissible prior restraint on speech, (3) questions of fact remained for trial as to whether plaintiffs had suffered retaliation for exercising their First Amendment rights and (4) the Inspector General is not entitled to qualified immunity as to either claim. The Inspector General now appeals, claiming that he is entitled to qualified immunity. We reverse and remand.


While this case presents several nuanced legal questions, the underlying facts are not disputed.1 The plaintiffs served as Internal Security Investigators II (ISI 2s) in the Office of the Inspector General (OIG) in the Illinois Department of Human Services (DHS) at all times relevant to this suit.2 The OIG is responsible for investigating reports of abuse and neglect of the mentally ill and developmentally disabled persons who receive DHS services. According to the job description, an ISI 2

performs highly responsible, sensitive, and confidential investigative work; conducts the gathering and analysis of relevant facts and data concerning abuse and neglect investigations; completes investigations by preparing reports, summarizing investigative activities and recommends conclusions to findings.


1. Conducts confidential, sensitive, and complex investigations concerning reports of abuse and neglect at State-operated facilities and community agencies: gathers data and evidence, conducts interviews, receives reports and analyzes relevant evidence concerning cases of abuse and neglect; ensures that case reports are comprehensive and accurate; takes initial statements from staff.

2. Prepares written investigative reports upon the completion of the investigative process consisting of a summary of actions taken, findings, preservations of evidence and recommendation for corrective action and/or case closure.

3. Maintains confidential files pertaining to cases under investigation; ensures the security of all pertinent information gathered during the investigatory process.

4. Recommends revisions to investigatory procedures and practices.

5. Serves as an expert witness and provides testimony in criminal and administrative hearings related to the conducting of or results of the investigation.

6. Performs other duties as required or assigned which are reasonably within the scope of the duties enumerated above.

(Doc. 38, Wernsing Dep. Exh. M8.) In the fall of 2000, the OIG was subdivided into four geographical Bureaus: the North (Chicago), the Metro (the area surrounding Chicago), the Central and the South. All ISI 2s report to a designated Team Leader, who reports to the appropriate Bureau Chief, who in turn reports to the Deputy Inspector General or the Inspector General.

Defendant Odell Thompson, Jr. became the Inspector General of the DHS on July 1, 2000. On or about November 27, 2000, Thompson received an e-mail from five employees in the OIG's Southern Bureau, including plaintiffs Wernsing, Bingaman and Cannon, which stated:

Several investigators in the Southern Bureau have some concerns we wish to discuss with you as soon as possible. These concerns are relative as to who we understand you are going to appoint as the Southern Bureau Chief. These concerns are very important and need your attention before any appointment is made.

(Doc. 38, Wernsing Dep., Exh. 1.) Thompson received the e-mail but did not respond to it. On November 30, 2000, Thompson received another e-mail from the same five employees, stating in relevant part:

We contacted you on 11/27/00 asking that you meet with us and discuss our serious concerns over who we understand to be the tentative selection for Bureau Chief. We have not heard from you. We once again ask that you meet with us. We would like if at all possible to keep this matter in house out of respect for the chain of command and in keeping with respect for your position. However, if we are not afforded this opportunity we will feel compelled to air our concerns to the Secretary or those at the legislative level.

Again, Thompson did not respond to the request for a meeting and made no inquiries into the basis for the e-mail.

The concerns referenced in the two e-mails apparently stemmed from rumors that Thompson was going to appoint Ron Fuentes as Bureau Chief of the OIG Southern Bureau. Each of the plaintiffs had worked with Fuentes when he had previously served as Bureau Chief, and they had concerns about his ability to manage the Bureau effectively. Specifically, plaintiffs allege that Fuentes had presided over a large backlog of investigations which caused staffing shortages in the DHS and delays in OIG investigations, had misplaced OIG files which were later found in the trunk of his car, had worked short days and was on-site at the Bureau office only two days out of the week and was generally considered an incompetent and frustrating supervisor. (See Wernsing Br. at 12-14.) The backlog in investigations was particularly troubling since any delay in investigating cases of neglect or abuse could compromise the investigators' ability to gather information (since many of the victims have difficulty remembering what happened to them) or could render grievances against offending DHS employees time-barred under Illinois law.

Unaware of the specific concerns that lay behind the two e-mails, Thompson became concerned at the suggestion that the signatories might contact the Secretary of the DHS or individuals "at the legislative level." Thompson was apparently in the midst of reorganizing the OIG, and he feared that OIG employees might be trying to "sabotage" these efforts. On or about December 5, 2000, Thompson sent a letter to the five e-mail signatories that stated, in relevant part:

The Office of Inspector General staff are not authorized to communicate about Office of Inspector General policies or operations directly to the Secretary [head of the DHS], to the press, or to any external agent except with my prior knowledge and approval.

This directive was repeated in a second communication sent to all employees in the OIG in January, 2001. Thompson later testified that there was nothing other than the two e-mails from the plaintiffs that led him to issue the December 5 directive and that his concern was that he "didn't want to be sabotaged in some way" because he "just didn't know what their motives were." He admitted that he didn't make any effort to ascertain plaintiffs' motives in threatening to contact the Secretary of DHS or legislators. It is undisputed that the release of confidential information by OIG employees and contacts with the press were already governed by both statute and internal DHS rules.

Believing that these directives potentially barred her from speaking to anyone outside of the OIG, Wernsing asked her supervisor, Sandy Mott, if the directives applied to conversations she might have with her union representative, an attorney or her legislator. At Mott's suggestion, Wernsing telephoned Thompson on January 26, 2001, and Thompson "yelled" at her, telling her she was "walking down the road to getting fired" and accusing her of "playing games." That same day, Mott sent an e-mail to the Inspector General's Office relaying Wernsing's question. Sydney Roberts, who was then serving as the Deputy Inspector General at the time, responded to Mott's e-mail with two messages. The first read simply: "Your people really want to try me don't they." The second e-mail stated:

No one in the OIG is represented by a Union that is in any sort of contractual agreement with DHS. Thus we don't have to honor anything that their union representative requests unless it is consistent with the rights all employees are entitled to by state or federal law. In other words, they follow the direction of their union representative at their own peril.

With respect to the statements made to union personnel, the courts have said that employers may regulate the speech of certain employees in certain circumstances. Thus, they should know the law on this matter, before discussing OIG matters with outside individuals.

(Italics in original.) On February 7, 2001, Mott then e-mailed Wernsing the following response:

In answer to your question, Deputy I.G. Sydney Roberts indicated to me that no one in the OIG is represented by a Union that has a contractual agreement with DHS. Thus, we don't have to honor anything that their union representative requests unless it is consistent with the rights all employees are entitled to...

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