Complaint about lead exposure isn’t protected speech

Monday, January 11, 2010

An Illinois State Police officer who complained about elevated levels of lead in his workplace has no First Amendment protection, a federal appeals court recently ruled. The court reasoned that the officer’s grievance, filed with his union, was private speech rather than speech on a matter of public concern.

Jimmy Bivens, an officer with the Illinois State Police, began working in October 2003 as the officer overseeing the firing range that provided gun training for officers. By all accounts, he did a good job at improving the facility and its operation.

However, in February 2004 Bivens began experiencing health problems that he thought might be caused by exposure to too much lead at the range. Subsequent tests in March 2004 proved Bivens correct, as his lead levels were highly elevated. He filed a grievance with his state police union about unsafe working conditions. Later in March, the range was closed for nine months.

Bivens continued suffering from health problems, leading him to file a workers’ compensation claim. After receiving some benefits but not as much as he wanted, he filed a lawsuit in federal court, alleging a First Amendment violation. He claimed that state police officials retaliated against him because of his grievance by disciplining him for no reason, disclosing confidential information about him and disseminating false information that he was faking his illness.

The defendants asked a federal court for summary judgment, contending that Bivens’ claim was ruled out by the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos. In that decision, the Court ruled that public employees have no First Amendment protection for speech made pursuant in the course of their official job duties. The defendants in Bivens’ suit claimed that his speech about the unsafe lead levels was job-related speech.

U.S. District Judge William Stiehl ruled in favor of the defendants, basing his decision on Garcetti. Stiehl determined that Bivens’s speech “was clearly related to and part of his official duties, and that he was speaking as a private citizen.”

Bivens appealed to the 7th U.S. Circuit Court of Appeals, which also ruled against him — though for a different reason — in a unanimous three-judge panel decision in Bivens v. Trent. Rather than relying on the Garcetti rationale, the 7th Circuit panel concluded in its Jan. 6 ruling that Bivens failed to show that his speech addressed a matter of public concern or importance. In order to establish a valid First Amendment claim, public employees must establish that their speech addresses matters of public interest rather than constituting merely a private grievance.

Courts look at the form, context and particular content of an employee’s speech to make this “public concern” determination. The panel first noted that the form of Bivens’ speech was a “union grievance that was entirely internal to the ISP [Illinois State Police].” With respect to context, the panel noted that “the grievance arose as a result of Bivens’s own illness and detailed his own exposure to environmental lead at the firing range.” With respect to content, the panel noted that the grievance “made no reference to potential safety issues for the public and did not even suggest that the lead levels were high enough to endanger the public during occasional use.”

The panel concluded: “Because Bivens’s internal grievance was on a matter of purely private interest, addressing only the effect of lead contamination on himself and his work environment, it did not raise a matter of public concern and is not protected by the First Amendment.”

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