2 Ill. surgeons get go-ahead to pursue free-speech claim

Tuesday, July 31, 2012

For public employees wanting to exercise their First Amendment rights, Illinois, Indiana and Wisconsin are pretty good places to work.

In many other parts of the country, courts have interpreted the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos to allow public employers great latitude in disciplining or firing employees who speak out about issues relating to their employment. However, in Illinois, Indiana and Wisconsin — the states that comprise the 7th U.S. Circuit — courts have interpreted Garcetti more narrowly, allowing public employees to both participate in public debate and retain their jobs.

The most recent example of this trend is Judge Gary Feinerman’s decision in Johnson v. County of Cook On July 16, Feinerman, a U.S. district court judge in Chicago, decided in Johnson that two physicians could proceed to trial on their claims that Cook County fired them after they advocated against looming budget cuts. In doing so, Feinerman relied on several 7th Circuit precedents limiting Garcetti’s impact.

In Johnson, two orthopedic surgeons then employed at Provident Hospital by the Cook County Bureau of Health protested in 2006 and 2007 against a $100 million budget reduction proposal. As part of the proposal, orthopedic surgical services were to be moved from Provident to another facility.

Of the two surgeons, Dr. Vietta Johnson was the more vocal. The chair of Provident’s orthopedic surgery department, Johnson spoke out against the cuts at a large community meeting, in rallies outside the hospital, on a local radio show, during meetings with Operation PUSH and during a Cook County board meeting.

The other surgeon, Dr. Daniel Ivankovich, spoke only to the Chicago Tribune, which was reporting on Provident’s Medicaid and Medicare billing practices. Obviously critical of these practices, Ivankovich was quoted as saying, “Give me a social worker and someone to help with the paperwork, and I could generate millions of dollars from Medicaid and Medicare a year.”

In February 2007, the Cook County board approved the budget proposal. Dr. Robert Simon, the interim bureau chief who had developed the plan, then began deciding which physicians would be terminated. According to Johnson and Ivankovich, Simon subjected them to special scrutiny and refused them interviews afforded other physicians. Simon terminated Johnson and Ivankovich on April 13, 2007.

The doctors then sued Simon and Cook County, asserting, among other claims, that Simon unlawfully retaliated against them for exercising their First Amendment rights. Simon and the county moved for summary judgment on all of the physicians’ claims. Feinerman denied that motion in regard to the First Amendment and some of the other claims, finding that Johnson and Ivankovich had presented enough evidence to proceed to trial.

In analyzing the First Amendment claim, Feinerman cited a string of 7th Circuit opinions interpreting Garcetti. Under these decisions — which include Kidwell v. Eisenhauer (2012), Wackett v. City of Beaver Dam (2011), Ogden v. Atterholt (2010), Valentino v. Village of S. Chicago Heights (2009), Milwaukee Deputy Sheriff’s Ass’n v. Clarke (2009), Matrisciano v. Randle (2009), Chaklos v. Stevens (2009) and Renken v. Gregory (2008) — a public employee can prevail on a First Amendment retaliation claim if he or she can show that the speech was constitutionally protected, the employee suffered a deprivation likely to deter free speech and the employer’s action was at least partly motivated by the speech.

For the purposes of their summary judgment motion, Simon and the county did not contest that the physicians had produced evidence of deprivation and motivation. Instead, the defendants argued that the physicians’ speech was not constitutionally protected because the doctors were speaking as public employees rather than as private citizens and because their speech was not about a matter of public concern.

Feinerman rejected these arguments and held that the physicians had offered evidence that, if believed at trial, would be sufficient to establish that their speech was protected.

In concluding that the physicians could prove they were speaking as private citizens, Feinerman relied on the facts that they were neither employed in policymaking positions nor on duty when they spoke and that their job responsibilities did not expressly include advocating funding for their department.

“[T]he only connection between Plaintiffs’ speech and their employment was that they knew of the potential effects of the budget cuts through their positions at Cook County,” Feinerman wrote. “These connections are not enough to render their speech non-private.”

As to whether the speech was of public concern, Simon and the county would have been hard-pressed to argue that the budget cuts were only of private concern. Recognizing this, they instead argued that the speech was not of public concern to Johnson and Ivankovich because the doctors were concerned only about saving their jobs.

Feinerman was not persuaded, quoting Chaklos in holding that “speech of public importance is only transformed into a matter of private concern when it is motivated solely by the speaker’s personal interests.” In this case, Feinerman said, ample evidence existed that Johnson’s speech was motivated by the impact the budget cuts would have on the community and that Ivankovich’s speech was motivated by his concerns about inefficient billing practices.

Had Johnson arisen in some other jurisdictions, it would not have been a surprise if a court reading Garcetti expansively held that the physicians were speaking as public employees and not as private citizens, thus placing their speech outside the First Amendment’s protection. Courts in the 7th Circuit, however, have consistently read Garcetti narrowly and, in the process, have protected public employees’ free-speech rights.

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