Nancy Spiegla v. Edwad Hull, Individually and as an exmployee of Westville Correction Facility, et al.

This First Amendment retaliation
case is before us for the second time. In the first
appeal, we held that Indiana State Correctional Officer
Nancy Spiegla engaged in protected speech by reporting
a possible security lapse to an assistant superintendent
at the Westville Correctional Facility where she worked. On remand, a jury found that the defendants - Westville's
superintendent, assistant superintendent, and a senior
corrections officer - retaliated against her on the basis of
this protected speech and awarded her $210,000 in damages.
The defendants appealed, and after briefing
was completed, the Supreme Court decided Garcetti v.
Ceballos, 126 S. Ct. 1951, 1960 (2006), holding that the
First Amendment does not protect statements made
pursuant to a public employee's official duties because
that employee is not speaking as a "citizen" but as an
employee. Because our first holding addressed the degree
of First Amendment protection afforded public employees
under then-existing case law, we must now reexamine
its soundness in light of Garcetti.

The speech at issue here is a complaint Spiegla made
about having been prevented by her immediate supervisor
from investigating a possible security breach while she
was on duty and stationed at the prison's main gate.
Spiegla noted the incident in her log and later that same
day reported it to an assistant superintendent. In bringing
the possible security lapse to his attention, Spiegla
was speaking not as a citizen but as a correctional officer
charged with the duty to ensure the prison's safety and
security. Accordingly, the First Amendment does not
insulate her statements from employer discipline, and
the judgment in her favor must be vacated.

I. Background

From 1985 to 2000, Nancy Spiegla was employed as a
state correctional officer at the Westville Correctional
Facility in Indiana. From 1993 to 2000, Spiegla worked
essentially the same post at the prison's main gate on a 5-2
schedule (five days on, two off). Working the main gate
involved controlling the traffic in and out of the prison, as
well as searching the vehicles of visitors and employees for contraband. By all accounts Spiegla was an outstanding
employee throughout her tenure at the prison.

On January 13, 2000, Spiegla was at her main-gate post
alongside Sergeant Brian Moody, her immediate supervisor,
when something in the parking lot caught her attention.
She saw Major Eddie Hull and Captain Ernest Huff
transfer bags from their private vehicles into the stateowned
truck they were driving. When the two men approached
the main gate in the truck, Spiegla intended to
search their bags for possible contraband as part of the
general search she performed on all vehicles entering the
prison.1 But when she got up to leave the guard house,
Moody dissuaded her from searching the truck, explaining
that a recent change in prison policy exempted all state
vehicles from search. Spiegla had not heard of any
change and believed the correct policy was to search all
vehicles, no exceptions. Frustrated that she "could not go
out there and do [her] job," Spiegla noted the apparent
breach of prison policy in her log.

Later that day, Spiegla recounted the incident to Assistant
Superintendent John Schrader, who told her she
should have searched Hull and Huff's truck. Schrader
also promised to refer the matter to Superintendent
Herbert Newkirk, which he did at an executive staff
meeting later that day or the next. At the meeting
Newkirk asked Assistant Superintendent Bernard Johnson
(who was angry at the manner in which Spiegla's concerns
were raised) to investigate the matter.

Four days later Spiegla was reassigned from the main
gate to the perimeter, a 6-2 shift that involved walking
around the prison's outer fence and delivering food to the towers. Upset over the transfer, Spiegla brought this
action under 42 U.S.C. § 1983 against Johnson, Hull, and
Newkirk, all of whom had authority to transfer her. She
claimed she was transferred in retaliation for reporting
the main gate incident to Schrader; these statements, she
asserted, were protected speech under the First Amendment.
The district court granted summary judgment for
the defendants on the ground that Spiegla "was not
speaking out as a citizen, but rather as an employee" and
therefore had not engaged in protected speech.

On appeal we reversed and remanded, holding in part
that the First Amendment did protect her statements to
Schrader. Spiegla v. Hull, 371 F.3d 928, 939 (7th Cir.
2004) ("Spiegla I") (concluding that Spiegla "spoke as a
private citizen on a matter of public concern"). The case
ultimately went to trial on the remaining issues of
fact - namely, causation and whether the defendants
would have taken the same action in the absence of the
protected speech. See Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274 (1977). The jury found for
Spiegla and awarded her $210,000 in damages.

The defendants appealed, asserting a number of trial
errors. But after briefing was completed, the Supreme
Court issued its decision in Garcetti, clarifying the threshold
legal inquiry in First Amendment retaliation claims
in the public employment context. The defendants requested
a supplemental briefing schedule in light of
Garcetti. We granted their request and ordered the
parties to submit supplemental memoranda discussing
the effect of Garcetti on this appeal.

* * *

Whether public-employee speech is protected is determined
by reference to the two-part Connick-Pickering test.
Spiegla I, 371 F.3d at 935. First, we inquire whether the
employee "spoke as a citizen on a matter of public concern."
Id. (citing Connick, 461 U.S. at 138). If not, the
employee has no cause of action for First Amendment
retaliation and there is no need to reach the second part
of the test, which requires a balancing of the employee's
interest "as a citizen in commenting on the matter" against
the public employer's interest "as [an] employer[ ] in
promoting effective and efficient public service." Id. at 940
(citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968));
see Garcetti, 126 S. Ct. at 1960. Prior to Garcetti, we
considered the "content, form, and context" of the employee's
speech to determine whether the employee spoke
as a citizen on a matter of public concern, with content
being the most important factor. Spiegla I, 371 F.3d at
935 (quoting Connick, 461 U.S. at 147-48); Gustafson v.
Jones, 290 F.3d 895, 907 (7th Cir. 2002).

After Garcetti, however, the threshold inquiry is whether
the employee was speaking as a citizen; only then do
we inquire into the content of the speech. Mills v. City of
Evansville, 452 F.3d 646, 647-48 (7th Cir. 2006). Garcetti
made clear that public employees speaking "pursuant to
their official duties" are speaking as employees, not
citizens, and thus are not protected by the First Amendment
regardless of the content of their speech. See
Garcetti, 126 S. Ct. at 1959-60. Consequently, the operative
question now is whether Spiegla made her statements to Assistant Superintendent Schrader pursuant to her
official duties as a correctional officer.

Based on the record as a whole, we conclude that Spiegla
was speaking pursuant to her official duties - not as a
citizen - when she told Schrader about the conduct of Hull
and Huff, and about Moody's action in preventing her
from conducting a search. As a correctional officer assigned
to the main gate, Spiegla's primary responsibility
was to regulate and monitor the vehicle and foot traffic
through the gate. This involved searching incoming
vehicles and people for contraband, tasks for which she
received specialized training. Written prison "post orders"
dictated who and what were subject to search, and
Spiegla's employment required her to faithfully follow
those orders. As a correctional officer, she also had a more
general responsibility to keep the facility secure and
report any suspicious behavior by prison inmates, staff,
or visitors to her superiors.

Spiegla became suspicious when she saw Hull and Huff
transfer bags to their state truck from their private cars.
As they approached the gate, she got up to discharge her
official duty - search the truck (as she did all vehicles) and
"make sure there was nothing in those bags." When her
immediate supervisor, Sergeant Moody, told her not to
search the truck, she disagreed based on her understanding
that "regardless of who you are, you are to be
searched." Upset that she "could not go out there and do
[her] job," Spiegla noted the incident in her log.

Later that day while still in uniform and on duty at
the main gate, Spiegla saw Assistant Superintendent
Schrader and explained to him that Moody stopped her
from searching the truck of two "higher ups" she believed
should have been searched. Spiegla recounted the incident
to Schrader pursuant to her responsibility as a
correctional officer to inform her superiors of a possible breach in prison search policy, especially one involving two
senior prison officers. In doing so she spoke as an employee,
not a citizen, because ensuring compliance with
prison security policy was part of what she was employed
to do. See Garcetti, 126 S. Ct. at 1960.

We acknowledged in Spiegla I that Spiegla's statements
were "consistent with her general duty as a correctional
officer to keep the facility secure." 371 F.3d at
939. We went on to conclude, however, that because they
"were not part and parcel of her core function[ ]" to
implement but not question prison security policies, "she
acted beyond her employment capacity and spoke as a
private citizen on a matter of public concern." Id. This
focus on "core" job functions is too narrow after Garcetti,
which asked only whether an "employee's expressions
[were] made pursuant to official responsibilities." Garcetti,
126 S. Ct. at 1961. Because Spiegla reported the possible
security breach to Schrader as part of her official responsibility
as a correctional officer to keep the prison secure,
her speech was not "citizen" speech protected by the
First Amendment. This holding is consistent with the
early post-Garcetti precedent in this and other circuits.
Compare Mills, 452 F.3d at 647-48 (police sergeant critical
of her boss's personnel decision spoke as employee, not
citizen), Hill v. Borough of Kutztown, 455 F.3d 225, 242
(3d. Cir. 2006) (borough manager who relayed worker
complaints to borough council spoke as part of his duties
as manager, not a citizen), and Freitag v. Ayers, 463 F.3d
838, 855 (9th Cir. 2006) (correctional officer did not speak
as a citizen when she made internal reports to superiors
about inmate sexual misconduct), with Fuerst v. Clarke,
454 F.3d 770, 774 (7th Cir. 2006) (deputy sheriff spoke
as citizen because he made a public statement in his
capacity as a union representative), and Freitag, 463 F.3d
at 854 (correctional officer spoke as a citizen by sending letters to a state legislator and the state inspector general).

That Spiegla's statements highlighted potential misconduct
by prison officers does not change the fact that she
was speaking pursuant to her official responsibilities, not
as a citizen "contributi[ng] to the civic discourse." Garcetti,
126 S. Ct. at 1960. The memo at issue in Garcetti also
pointed to serious official misconduct - possible misrepresentations
made by a deputy sheriff in a warrant affidavit.
But the assistant district attorney who wrote it was
responsible for supervising warrant applications; because
this was one of "the tasks he was paid to perform," he
"acted as a government employee" when he wrote the
memo and his speech was not protected. Id.

Similarly here, Spiegla "acted as a government employee"
when she reported the possible misconduct to her
superior and sought clarification of a security policy she
felt may have been breached. She did not make a public
statement, discuss politics with a coworker, write a letter
to newspapers or legislators, or otherwise speak as a
citizen. See id. at 1960, 1961 (listing examples of prototypical
protected speech by public employees). Because
Spiegla did not speak as a citizen under the standard
articulated in Garcetti, she has no claim for First Amendment
retaliation under § 1983.