In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2480

NANCY SPIEGLA,

Plaintiff-Appellant,

v.

MAJOR EDDIE HULL, Individually as an Employee

of Westville Correctional Facility; HERB NEWKIRK,

Individually as Superintendent of Westville

Correctional Facility; and BERNARD JOHNSON,

Individually as an Employee of Westville

Correctional Facility,

Defendants-Appellees.

____________

Appeal from the United States District Court for

the Northern District of Indiana, Hammond Division.

No. 01 CV 0075—Allen Sharp, Judge.

____________

ARGUED JANUARY 14, 2004—DECIDED JUNE 14, 2004

____________

Before FLAUM, Chief Judge, and POSNER and DIANE P.

WOOD, Circuit Judges.

FLAUM, Chief Judge. Correctional officer Nancy Spiegla’s

shift schedule and post assignment were changed four days

after she had a conversation with the Assistant Superintendent of Westville Correctional Facility (“Westville” or “the

facility”) in which she questioned a new vehicle search
2 No. 03-2480

policy and reported the suspicious behavior of two Westville

employees. In response to her schedule change and transfer,

Spiegla filed a 42 U.S.C. § 1983 suit against Major Eddie

Hull, Herb Newkirk, and Bernard Johnson (“the Defendants”), officials and employees of Westville, alleging that

they unlawfully retaliated against her for exercising her

First Amendment rights. At the time relevant to the

complaint, Newkirk was the Superintendent, Johnson was

the Assistant Superintendent of Operations, and Hull was

Major of Westville. The district court granted the Defendants’ motion for summary judgment on the bases that

Spiegla’s speech was not constitutionally protected and that

she was not reassigned because of her speech. Spiegla now

appeals the district court’s ruling. For the reasons stated

herein, we reverse the judgment of the district court and

remand the case for proceedings consistent with this

opinion.

I. Background

In 1985, Spiegla began her employment as a correctional

officer at Westville, a state prison in Westville, Indiana.

Between 1993 and 1999, Spiegla was transferred back and

forth between posts on the front and back gates of the facility and was responsible for searching persons and vehicles entering the prison. During her years on gate duty,

Spiegla developed expertise in conducting vehicle searches,

particularly ones of large trucks. Spiegla’s competency

as a gate officer is undisputed. Defendant Newkirk even

presented her with Westville’s “Correctional Officer of the

Year” award just a few months before the transfer at issue

in this case occurred.

On Thursday, January 13, 2000, Spiegla was working on

the front gate under the direction of Sergeant Brian Moody.

While on duty, Spiegla observed Defendant Hull and

Captain Ernest Huff, while in a state-owned vehicle, enter
No. 03-2480 3

1 We accept the position throughout this opinion that Hull and

Huff’s behavior was highly suspicious and consistent with contraband trafficking. For the purposes of this case, we are only

concerned with the suspicious appearance of their conduct. We

readily acknowledge that there is no indication that these two

individuals actually were engaged in smuggling contraband and

no charges were ever brought against them.

the staff and visitors’ parking lot located on the outside of

the facility and near the front gate. According to Spiegla,

the two men removed bags from their private vehicles,

placed the bags into the state-owned vehicle, and then

drove towards the front gate. Based on these observations,

Spiegla told Moody that she intended to search the stateowned vehicle. Moody instructed Spiegla not to conduct the

search and informed her of a new exemption policy for

searches of state-owned vehicles. Whereas under the

previous policy all incoming vehicles were searched for

contraband, the new policy exempted state-owned vehicles

from being searched.

Apparently, this was not the first time that Hull and Huff

attracted the attention of gate security. Moody had previously witnessed the two men drive their vehicle into the

staff and visitors’ parking lot while they were conducting

“perimeter checks” (a security check that entails driving

around the facility to inspect the fence). Moreover, on

several recent occasions, Moody had attempted to search

vehicles occupied by Hull and Huff and on each occasion

they refused to consent to search before entering the

facility.1

Spielga explained in her deposition that after Moody told

her about the new policy, “I duly noted it in my log because

I was very upset over it because everybody has to go

through the shakedown procedure . . . .” When asked to

clarify her feelings, she responded, “I was just upset because I could not go out there and do my job.” Spiegla said
4 No. 03-2480

2 The Defendants contend that Spiegla was not transferred, but

rather reassigned, as she continued to remain a correctional officer. We recognize that Westville may make a technical distinction

between the two terms, but we will use “transfer” for simplicity’s

sake.

that she was not angry, but “[j]ust, you know, frustrated

type of thing. You know, just like, You got to be kidding?

That type of attitude.” 

Later that day, Spiegla discussed Hull and Huff’s conduct

and the new search policy with the Assistant

Superintendent of Westville, John Schrader. Specifically,

Spielga asked him when the search orders changed and

whether he was aware that state vehicles were not to be

searched. Schrader responded that all vehicles were to be

“shaken down” and then he asked her why she asked.

Spiegla then told Schrader about her observations of Hull

and Huff and Moody’s instruction not to “shake them

down.” Schrader agreed that the two men should have been

“shook down” and assured Spiegla that he would bring the

matter to the attention of Superintendent Newkirk.

Either later that day or the following day, Schrader recounted his conversation with Spiegla at an executive staff

meeting attended by Schrader, Johnson, Hull, and Newkirk.

Johnson acknowledges that he was “pretty pissed” that

Spiegla’s concerns were raised at the meeting. Though

Johnson did not express his feelings at the meeting, he was

“mad at Spielga” because she did not follow her chain of

command. 

The following Monday, January 17, 2000, four days after

her conversation with Schrader, Spiegla learned that she

was being transferred2

 from the front gate. That morning,

Captain Hugh Vales called Spiegla at the front gate and

asked her what she had done wrong. When she responded

that she did not know what he was talking about, Captain

Vales informed her that she had been transferred and that
No. 03-2480 5

her shift schedule had been changed from five days on and

two days off (“5-2”) to the less desirable six days on and two

days off (“6-2”). Thereafter, Spiegla was assigned to various

non-gate perimeter postings that differed on a day-to-day

basis. At these postings, Spiegla had no opportunity to use

her vehicle searching expertise. Moreover, these were

mobility-intensive postings that were painful for Spiegla to

perform because of an osteoarthritic condition. As a result

of the physical hardships she faced at the perimeter posts,

Spiegla applied for the position of Teacher’s Assistant IV in

April 2000. In accepting this position, Spiegla suffered a

41⁄2% reduction in pay. The following month, Spiegla’s pay

was further reduced. 

The record does not reveal who precisely effectuated

Spiegla’s January 2000 transfer to a non-gate post. Though

none of the Defendants have admitted to effectuating the

transfer, all of them possessed authority to do so. However,

all the Defendants acknowledge involvement in the decision

effectuating Speigla’s change in shift. 

In December 2001, Spiegla filed suit against the

Defendants under § 1983, alleging a deprivation of her

rights secured by the First and Fourteenth Amendments to

the United States Constitution. After the close of discovery,

the Defendants filed a motion for summary judgment. The

district court granted the Defendants’ motion determining

that the speech at issue was not addressed to a matter of

public concern and that Spiegla did not suffer an adverse

action as a result of her speech. Spiegla appeals that

decision, as well as the district court’s denial of her motion

to compel the production of documents.

II. Discussion

A. First Amendment Claim

We review de novo the district court’s grant of summary judgment. See Dunn v. City of Elgin, 347 F.3d
6 No. 03-2480

641, 645 (7th Cir. 2003). A grant of summary judgment is

appropriate when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact “exists when ‘there is sufficient

evidence favoring the nonmoving party for a jury to return

a verdict for that party.’ ” Puckett v. Soo Line Ry. Co., 897

F.2d 1423, 1425 (7th Cir. 1990) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986)). On appellate review,

we review the facts and inferences in the light most favorable to the nonmoving party. See Haefling v. UPS, 169 F.3d

494, 497 (7th Cir. 1999). Summary judgment is inappropriate when alternate inferences can be drawn from the

available evidence. See Hines v. British Steel Corp., 907

F.2d 726, 728 (7th Cir. 1990).

In evaluating a § 1983 claim for retaliation in violation of

First Amendment rights in the public employment context,

we apply a three-step analysis premised on the Supreme

Court’s decision in Mt. Healthy City School District Board

of Education v. Doyle, 429 U.S. 274 (1977). First, we must

determine whether the employee’s speech was constitutionally protected. Second, the plaintiff must establish that the

speech was a substantial or motivating factor in the

retaliatory action. Third, the defendant has an opportunity

to establish that the same action would have been taken in

the absence of the employee’s protected speech. See

Sullivan v. Ramirez, 360 F.3d 692, 697 (7th Cir. 2004);

Vukadinovich v. Bd. of Sch. Trs., 278 F.3d 693, 699 (7th Cir.

2002); Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir.

1999).

1. Protected Speech

Public employees are entitled to free speech rights under

the First Amendment. See Pickering v. Bd. of Educ., 391
No. 03-2480 7

U.S. 563, 568 (1968). At the same time, the government

must have the ability to run efficiently as an employer. See

Sullivan, 360 F.3d at 697. To balance these interests, the

Supreme Court has held that the government may not

punish the speech of a public employee if it involves matters

of public concern unless the state can prove that the needs

of the government outweigh the speech rights of the

employee. This principle forms the basis of the two-part

inquiry known as the Connick-Pickering test that courts use

to determine whether speech is constitutionally protected.

Id.

a. Matter of Public Concern

First, under the Connick prong, we must decide whether

Spiegla spoke as a citizen on a matter of public concern

by considering the “content, form, and context of [the

contested] statement, as revealed by the whole record.”

Connick v. Myers, 461 U.S. 138, 147-48 (1983). Of these

three factors, the content of the speech is considered to be

the most important. See Gustafson v. Jones, 290 F.3d 895,

907 (7th Cir. 2002). Speech that serves a private or personal

interest, as opposed to a community one, does not satisfy

the standards for First Amendment protection.

Id. Therefore, to determine whether Spiegla’s speech addressed a matter of public concern, “we must apply the

content, form, and context criteria, as set forth in Connick,

mindful that a personal grievance of interest only to the

employee does not qualify as a matter of public concern.”

Sullivan, 360 F.3d at 699.

The speech at issue in this case consists of Spiegla’s

statements to Assistant Superintendent Schrader regarding

(1) the state-owned vehicle search exemption policy and (2)
8 No. 03-2480

3 Spiegla contends that she was also retaliated against for the

statements she made to Sergeant Moody. However, there is no

evidence in the record to suggest that any of the Defendants actually knew of her conversation with Moody. Accordingly, we will

focus our analysis on Spiegla’s conversation with Schrader.

the behavior of Hull and Huff.3 Without doubt, issues of

prison security, public safety, and official corruption are

matters of concern to the community, particularly to one

hosting a correctional facility. An inmate in possession of a

weapon can pose a threat to prison employees, other

inmates, and the surrounding community itself. Here, the

concern is not merely hypothetical, as numerous articles

were featured in the South Bend Tribune and Indianapolis

Star detailing the serious problems at Westville concerning

contraband trafficking and official corruption. See, e.g.,

Editorial, Prison extortion claim demands close examination, South Bend Tribune, August 14, 2000, at A7; Matthew

S. Galbraith, Three investigators suspended at Westville,

South Bend Tribune, May 27, 1998, at B1; James A.

Gillaspy, Drug probe in prisons now focus on employees,

Indianapolis Star, July 11, 1993, at 1; Matthew S.

Galbraith, The Living Hell of Westville, South Bend Tribune, October 31, 1993, at A5. While not dispositive of

whether speech relates to a matter of public concern, the

fact that the press takes interest in the matter is relevant

to the determination. See Gustafson, 290 F.3d at 907.

On the other hand, simply because speech relates to

prisons does not automatically render it a matter of public

concern. See, e.g., Button v. Kibby-Brown, 146 F.3d 526

(1998) (prison employee’s complaints regarding his supervisor’s refusal to return donated educational materials not

a matter of public concern). Speech by a government employee relating to ordinary matters of internal operation

and lacking connection to “any matter of political, social, or

other concern to the community” is not entitled to First
No. 03-2480 9

Amendment protection. Connick, 461 U.S. 146. Connick

itself involved an assistant district attorney’s objections

to various policies and conditions in her office. The Supreme

Court determined that her complaints relating to intraoffice transfer policies, office morale, and grievance procedures were “internal office affairs” and thereby not

entitled to First Amendment protection. Id. at 149. Clearly,

complaints of this sort relating to prison operations would

receive similar treatment. As we observed in Kuchenreuther

v. City of Milwaukee:

While speech addressing matters of police protection and public safety are matters of public concern, we

have cautioned that if every facet of internal operations

within a governmental agency were of public concern,

and therefore any employee complaint or comment upon

such matters constitutionally protected, no escape from

judicial oversight of every governmental activity down

to the smallest minutia would be possible.

221 F.3d 967, 974-975 (7th Cir. 2000) (internal quotations

and citations omitted).

However, the speech in this case is readily distinguishable from complaints concerning ordinary office policy and

can even be separated out from comments addressing prison

security and public safety matters in general. Not only did

Spiegla bring critical attention to a policy that had the

potential to compromise prison security, she reported the

suspicious conduct of two of her superiors who appeared to

be using that very policy to facilitate unlawful behavior.

Indiana considers the trafficking of contraband with a

prison inmate to be a Class A misdemeanor; and a felony if

a controlled substance or deadly weapon is involved. IND.

CODE ANN. § 35-44-3-9 (West 2004). Clearly, the smuggling

of contraband, if proven, would constitute “wrongdoing or

breach of public trust,” which the Court in Connick suggested might qualify speech for protection. 461 U.S. at 148.
10 No. 03-2480

Unscrupulous public employees may find ways to exploit

the resources and opportunities available to them through

their offices. Perhaps the public’s best protection against

these few wayward individuals is the insider who is willing

to speak up and shed light on her colleagues’ improprieties.

Recognizing the “whistleblower’s” important role, our cases

have consistently held that speech alleging government

corruption and malfeasance is of public concern in

its substance. See Sullivan, 360 F.3d at 699 (notations of

chronic time abuse by co-workers matters of public concern); Marshall v. Porter County Plan Comm’n, 32 F.3d

1215, 1219-20 (7th Cir. 1994) (allegations that co-worker

abused county time and funds and violated the state law

matters of public concern); Breuer v. Hart, 909 F.2d 1035,

1038 (7th Cir. 1990) (complaints that defendant stole

county property of public concern in their content); Ohse

v. Hughes, 816 F.2d 1144, 1151 (7th Cir. 1987) (allegations

of inappropriate taking of sick and vacation days and

misappropriation of public funds matters of public concern);

see also Eberhardt v. O’Malley, 17 F.3d 1023, 1027 (7th Cir.

1994) (remarking that “[t]he courts have had to separate

the not very socially valuable forms of speech from whistleblowing and other socially valuable expressive activities of

public employees,” in determining whether contested speech

addresses a matter of public concern). 

Thus, Spiegla’s disclosure of potential malfeasance on the

part of Hull and Huff positions her speech, with respect to

its content, comfortably on the socially valuable side of the

constitutional line. We emphasize that Spiegla’s report was

not based on rumor or mere hunch. Nor was she tattling on

trivial office indiscretions. Rather, Spiegla’s speech addressed her direct observations of prison officials engaged

in activity consistent with contraband trafficking, a serious

violation of state law, at a facility with a history of problems with contraband.
No. 03-2480 11

4 Spiegla eventually took her concerns public. See Corrections

officer blames prison staff for contraband, South Bend Tribune,

November 26, 2000, at D2.

A different case would be presented if Spiegla’s questions

about the search policy had not been followed by her disclosure of Hull and Huff’s suspicious conduct. There must

be a communicative element to speech that puts the listener

on alert that a matter of public concern is being raised.

Simply seeking clarification on the state of the search policy

would likely have been too disconnected from the contraband problem to have raised a matter of public concern.

However, when Spiegla’s questions about the policy are

considered in conjunction with her allegations of malfeasance, it becomes apparent that, in substance, she spoke on

a matter of public concern. 

The form of Spiegla’s speech similarly supports a conclusion that she spoke on a matter of public concern.

Spiegla spoke voluntarily with Schrader and initiated the

conversation herself. Although it occurred in private, she

did not intend that the conversation would be kept confidential. The fact that Spielga “communicated privately with

[her] superior[ ] does not make [her] speech less a matter of

public concern.” Delgado v. Jones, 282 F.3d 511, 518 (7th

Cir. 2002) (citing Givhan v. W. Line Consol. Sch. Dist., 439

U.S. 410 (1979) (extending First Amendment protection to

private as well as public expression)). Indeed, an employee

who attempts to follow internal mechanisms to resolve

important issues should not automatically be treated less

favorably than the individual who immediately turns to the

press or public forum. In this case, Schrader assured

Spielga that he would convey her concerns to Newkirk,

thereby serving as the conduit through which Spiegla

publicized her concerns to the individual with the power to

rectify the problems that she perceived.4
12 No. 03-2480

Next we consider the context in which the speech arose.

At this stage we will consider Spiegla’s motive for speaking

as a relevant, though not dispositive, factor in determining

whether her speech addressed a matter of public concern.

Sullivan, 360 F.3d at 700. “Motive matters to the extent

that even speech on a subject that would otherwise be of

interest to the public will not be protected if the expression

addresses only the personal effect upon the employee.”

Gustafson, 290 F.3d at 908 (internal quotations and

citations omitted). But see Breuer, 909 F.2d at 1038-39 (explaining that a “finding that a speaker was motivated by

narrow self-interest . . . alone cannot disqualify a speaker

from protection. Wrongdoing may often be revealed to the

proper authorities only by those who have some personal

stake in exposing wrongdoing.”). In considering the context

of speech, “it is necessary to look at the point of the speech

in question: was it the employee’s point to bring wrongdoing

to light?” Kokkinis, 185 F.3d at 844 (internal quotations

omitted). The fact that an employee has a personal stake in

the subject matter of the speech does not necessarily

remove it from the scope of public concern. Cliff v. Bd. of

Sch. Comm’rs, 42 F.3d 403, 410 (7th Cir. 1994). The critical

determination is whether the individual was 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).

The Defendants contend that Spiegla’s speech represented a wholly personal grievance. In support of their

position, the Defendants rely on a statement from Spiegla’s

deposition where she explained that she was upset about

the new search policy because it would make it “more

difficult to do my job.” Accepting the Defendants’ position

and finding that Spiegla’s speech involved merely personal

matters, the district court concluded that, “[Spiegla] voiced

her concern over the new policy because she was upset due

to the fact that she felt she was not able to do her job.” Dist.

Ct. Op. at 7. 
No. 03-2480 13

5 Contrary to the Defendants’ contention, it is not necessary for

Spiegla to have personally witnessed an incident of smuggling for

her to know that there was a contraband problem at the facility.

Although the language she uses in her deposition is ambiguous, Spiegla’s testimony indeed supports the conclusion

that she was motivated, in part, by a self-interest when she

spoke with Schrader. Whether her frustration with the new

policy arose from her lost authority to conduct searches,

confusion about gate procedures, or simple disagreement

with the decision to alter the search routine, it seems

evident that Spiegla had at least some personal stake in

speaking with Schrader. However, we disagree with the

district court’s ruling that Spiegla’s motivations were

exclusively self-interested. Rather, the more compelling

interpretation is that Spiegla’s frustration with the new

policy primarily arose from her belief that it would make

keeping contraband out of the prison more difficult. As a

veteran employee, Spiegla was familiar with the serious

contraband trafficking and corruption problems plaguing

Westville.5

 We accept Spiegla’s claim that she understood

her “job” in terms broader than the simple execution of

vehicle searches. Indeed, keeping contraband out of the

prison was a “job” that became more “difficult” under the

new search policy (as more vehicles would now enter

without inspection), while the physical execution of guard

duties in fact became easier (as fewer vehicles would need

to be searched). That Spiegla spoke in direct response to

observing Hull and Huff’s suspicious behavior further

supports the notion that she had a public motivation. If the

goal of her discussion with Schrader was simply to gather

information regarding post orders, she might not have made

a point of reporting the behavior of Hull and Huff. Against

this backdrop, we cannot conclude that Spiegla’s motivations for reporting the potentially unlawful conduct of
14 No. 03-2480

superiors to a high-level prison official were confined to

advancing primarily personal objectives.

Furthermore, the district court was misplaced in its

reliance on our decision in Gonzalez v. City of Chicago, 239

F.3d 939 (7th Cir. 2001) (determining that statements made

in a report were not protected speech because report writing

was part of the employee’s required duties). We explicitly

stated in Delgado v. Jones that “our holding in Gonzalez is

limited to the routine discharge of assigned functions,

where there is no suggestion of public motivation.” 282 F.3d

at 519. In Delgado, the Court determined that a police

detective’s memorandum containing information potentially

damaging to his superiors was protected speech. Id. at 520.

The Court emphasized that in contrast to the speech at

issue in Gonzalez, Delgado’s disclosures “went far beyond

some rote, routine discharge of an assigned duty” and he

had “considerable discretion about how he communicated

the information up the chain of command.” Id. at 519.

Similarly, Spiegla departed from the routine performance

of her assigned duties when she raised questions about the

search policy and the conduct of Hull and Huff. Spiegla’s job

function was to implement prison security policies, not to

question those policies or to report the suspicious activities

of her colleagues. The Defendants contend that a failure to

communicate her concerns would have been a dereliction of

Spiegla’s duty (a surprising position considering that the

Defendants also argue that the speech in question was

nothing more than an informational inquiry). As we said of

a similar argument raised in Delgado, “this argument . . .

sweeps much too broadly.” Id. While Spiegla’s actions may

have been consistent with her general duty as a correctional

officer to keep the facility secure, they were not part and

parcel of her core functions. Indeed, Spiegla exercised

discretionary choice when she decided to go outside her

chain of command and disclose her observations to

Schrader.
No. 03-2480 15

By focusing on the presence of a personal motivation and

the fact that Spiegla raised her concerns within the scope of

her employment, the district court improperly elevated

motivation to a litmus test and thereby undervalued the

important content of Spiegla’s speech. See Cliff, 42 F.3d at

410 (indicating that motive cannot become a litmus test

supplanting content in terms of overall importance). We

emphasize that the specificity and seriousness of the allegations against Hull and Huff are essential to our refusal

to categorize Spiegla’s speech as a personal dispute. If

we were to decide otherwise, public employees would be

chilled from reporting their similar suspicions of government corruption and impropriety. Such a result would be

contrary to sound public policy. In sum, viewing the record

as a whole, the content, form, and context of Spiegla’s

speech lead us to the conclusion that she acted beyond her

employment capacity and spoke as a private citizen on a

matter of public concern when she brought the search policy

and Hull and Huff’s conduct to the attention of her superior.

b. Balancing of Interests 

After determining that Spiegla’s speech addressed a

matter of public concern, we would ordinarily move to the

Pickering analysis and balance her interest as a citizen in

commenting on the matter against the state’s interest, as

employer, in promoting effective and efficient public service.

See Pickering, 391 U.S. at 568; Waters v. Churchill, 511

U.S. 661, 675 (1994). However, the Defendants did not

make Pickering-based arguments in their motion for summary judgment or in their reply brief on appeal. Additionally, they contend that we need not address balancing as

the district court did not grant summary judgment on that

basis. While it is true that the district court did not engage

in a Pickering analysis, the Defendants’ position is some-
16 No. 03-2480

what complicated by a sentence in the district court’s order

reading in relevant part that “[t]he failure to satisfy either

prong of the Connick-Pickering test renders Spiegla’s

section 1983 claim meritless . . . .” Dist. Ct. Op. at 8-9.

Assuming that the district court held in the alternative (as

opposed to misstating its holding), we conclude that summary judgment was inappropriate on a Pickering basis

given that the issue was not presented in the Defendants’

motion for summary judgment and that the district court

was silent on the basic underlying facts or legal reasoning

that supported its determination. See Schiller v. Moore,

30 F.3d 1281, 1284 (3d Cir. 1994) (finding summary

judgment inappropriate on the basis of the Pickering test

where district court’s opinion was silent as to reasoning it

employed and parties had not made strong showing as to

their relative interests); see also Roe v. City of San Diego,

356 F.3d 1108, 1122 (9th Cir. 2004) (remanding case for

further proceedings where district court did not reach

Pickering balancing phase). We note that as Pickering is a

question of law, it will be the responsibility of the district

court to balance the parties’ interests as revealed by the

record on the appropriate motion.

c. Qualified Immunity 

In their motion before the district court, the Defendants

argued that they were entitled to summary judgment on the

basis of qualified immunity. The defense of qualified

immunity “is designed to protect government agents ‘from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’ ” Knox v.

Smith, 342 F.3d 651, 657 (7th Cir. 2003) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). However, because the

Pickering analysis is essential to the determination of

whether a constitutional violation occurred in this case, we
No. 03-2480 17

cannot now reach the issue of qualified immunity. See

Saucier v. Katz, 533 U.S. 194, 201 (2001) (holding that

before determining whether a right was clearly established,

courts must first determine whether, taking the facts in the

light most favorable to the plaintiff, the official violated a

constitutional right); see also Sullivan, 360 F.3d at 697.

2. Causation

Before discussing whether the evidence supports a causal

link between Spiegla’s speech and her transfer and schedule

change, we will briefly address the Defendants’ contention

that Spiegla did not suffer a sufficiently adverse employment action. The Defendants argue that Spiegla suffered no

harm since she had agreed in writing to be available for

assignment to any shift and that all of her assignments fell

under the broad category of “perimeter duty” (a duty

involving a variety of posts including gate security, escorting prisoners between complexes, and “towers.”) However,

a § 1983 case does not require an adverse employment

action within the meaning of the antidiscrimination

statutes, such as Title VII of the Civil Rights Act of 1964.

See Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000).

Rather, “[a]ny deprivation . . . that is likely to deter the

exercise of free speech . . . is actionable.” Id. (citing Bart v.

Telford, 677 F.2d 622, 624 (7th Cir. 1982) (explaining that

minor harassment, including making fun of an employee for

bringing a birthday cake to the office, may be sufficient to

deter the exercise of First Amendment rights)). Certainly,

we cannot hold as a matter of law that transfer to a more

physically demanding and less skilled post and an unfavorable change in schedule—even though such actions may
18 No. 03-2480

6 We do, however, reject Spiegla’s contention that the pay cut she

received after being assigned to the position of Teacher Assistant

IV is evidence of an adverse action. Although Spiegla may have

felt “forced” to apply for the position, the fact of the matter is that

the application was voluntary and no evidence suggests that any

of the Defendants compelled her to apply. Furthermore, the

additional reduction in pay Spiegla received after working in the

Teacher Assistant IV position for a month is too remote from her

speech to support a causal link.

have been permissible under the terms of her employment—are insufficient to deter the exercise of free speech.6

Turning to the motivating factor issue, Spiegla must establish a causal link between the contested speech and her

transfer and schedule change. See Mt. Healthy, 429 U.S. at

287. That is, she must establish by a preponderance of the

evidence that a motivating factor in the Defendants’ action

was retaliation. See Rakovich v. Wade, 850 F.2d 1180, 1189

(7th Cir. 1988) (en banc). “This [C]ourt has stated that,

in order to carry his or her [motivating factor] burden, the

plaintiff must show ‘had it not been for the violation, the

injury of which [s]he complains would not have occurred . . .

.’ ” Id. (citing Button v. Harden, 814 F.2d 382, 383 (7th Cir.

1987)); see also Galdikas v. Fagan, 342 F.3d 684, 696 (7th

Cir. 2003); Abrams v. Walker, 307 F.3d 650, 654 (7th Cir.

2002); O’Connor v. Chicago Transit Auth., 985 F.2d 1362,

1368 (7th Cir. 1993). As pointed out recently in Johnson v.

Kingston, 292 F.Supp. 2d 1146, 1155-56 (W.D. Wis. 2003),

this requirement creates an anomaly with the next step of

the Mt. Healthy burden-shifting analysis, which provides

that once the plaintiff has made her showing, the burden

shifts to the defendants to prove by a preponderance of the

evidence that they would have taken the same actions

regardless of the plaintiff’s protected conduct. See Mt.

Healthy, 429 U.S. at 287; see also Galdikas, 342 F.3d at 696

(if plaintiff meets burden of showing that challenged action
No. 03-2480 19

7 This opinion has been circulated among all judges of this Court

in regular and active service in accordance with Seventh Circuit

Rule 40(e). No judge favored a rehearing en banc on the question

of whether to retract any suggestion in earlier decisions that the

plaintiff in a First Amendment retaliation case must establish

but-for causation.

8 Indeed, the majority of Seventh Circuit cases discussing First

Amendment retaliation claims do not characterize the motivating

factor requirement as a but-for test. See, e.g., Smith v. Dunn, No.

03-2777, 2004 WL 1049131, at *3 (7th Cir. May 11, 2004);

McGreal v. Ostrov, No. 02-3405, 2004 WL 1041520, at *10 (7th

(continued...)

would not have occurred “but for” the constitutionally

protected conduct, “the burden shifts to the defendant, who

must show by a preponderance of the evidence that he

would have taken the same actions even in the absence of

the protected conduct.”). Logically, if the plaintiff shows by

a preponderance of the evidence that had it not been for the

protected activity her injury would not have occurred, it

would not be possible for the defendant to then prove by a

preponderance of the evidence that the injury would have

occurred regardless of the protected activity. This approach

requires the plaintiff to carry so much of the burden that

nothing remains to shift to the defendant to prove. 

Therefore, we disavow the requirement that a plaintiff

alleging First Amendment retaliation has the burden of

proving but-for causation as recited in the following cases:

Galdikas, 342 F.3d at 696; Abrams, 307 F.3d at 654; Love

v. City of Chicago Bd. of Educ., 241 F.3d 564, 569 (7th Cir.

2001); Thomsen v. Romeis, 198 F.3d 1022, 1027 (7th Cir.

2000); Johnson v. Univ. of Wis.-Eau-Claire, 70 F.3d 469,

482 (7th Cir. 1995); O’Connor, 985 F.2d at 1368; Rakovich,

850 F.2d at 1190; Button, 814 F.2d at 383.7

 The relevant

burden language used in these cases is inconsistent with

the majority of Seventh Circuit cases discussing First

Amendment retaliation claims8

 and contrary to the rule
20 No. 03-2480

8 (...continued)

Cir. May 10, 2004); Williams v. Seniff, 342 F.3d 774, 782 (7th Cir.

2003); Nieves v. Bd. of Educ., 297 F.3d 690, 693 (7th Cir. 2002);

Vukadinovich v. Bd. of Sch. Trs., 278 F.3d 693, 699 (7th Cir.

2002); Horwitz v. Bd. of Educ., 260 F.3d 602, 618 (7th Cir. 2001);

Pugh v. City of Attica, 259 F.3d 619, 630 (7th Cir. 2001); Klunk v.

County of Joseph, 170 F.3d 772, 775 (7th Cir. 1999); Gooden v.

Neal, 17 F.3d 925, 928 (7th Cir. 1994); Fleming v. County of Kane,

898 F.2d 553, 558 (7th Cir. 1990); Conner v. Reinhard, 847 F.2d

384, 393 (7th Cir. 1988); McClure v. Cywinski, 686 F.2d 541, 545

(7th Cir. 1982).

9 No other circuit requires plaintiffs to show but-for causation

in order to satisfy their burden. See Guilloty Perez v. Pierluisi, 339

F.3d 43, 56 n.11 (1st Cir. 2003) (explaining that First Amendment

plaintiff’s burden of proving motivation under Mt. Healthy test is

more substantial than the burden of producing prima facie

evidence in a Title VII case, but not requiring plaintiff to show

but-for causation); Coogan v. Smyers, 134 F.3d 479, 484 (2d Cir.

1998) (substantial or motivating factor burden not defined as a

but-for test); Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 795

(3d Cir. 2000) (“Where a reasonable inference can be drawn that

an employee’s speech was at least one factor considered by an

employer in deciding whether to take action against the employee,

the question of whether the speech was a motivating factor in that

determination is best left to the jury.”); Wagner v. Wheeler, 13

F.3d 86, 90-91 (4th Cir. 1993) (not requiring plaintiff to show butfor causation); Brady v. Fort Bend County, 145 F.3d 691, 710-11

(5th Cir. 1998) (burden shifts if plaintiff proves that her speech

activities were a substantial consideration that influenced

defendant’s decision not to rehire); Sowards v. Loudon County,

203 F.3d 426, 433-35 (6th Cir. 2000) (requiring but-for causation

to be shown by the defendant, but not the plaintiff); Taylor v.

Cochran, 830 F.2d 900, 903 (8th Cir. 1987) (same); Allen v. Iranon,

283 F.3d 1070, 1076 (9th Cir. 2003) (same); Copp v. Unified Sch.

Dist., 882 F.2d 1547, 1553-54 (10th Cir. 1989) (same); Leonard v.

Columbus, 705 F.2d 1299, 1303-04 (11th Cir. 1983) (same); Clark

(continued...)

applied in the other eleven regional circuits.9 Accordingly,
No. 03-2480 21

9 (...continued)

v. Library of Congress, 750 F.2d 89, 101 n.25 (D.C. Cir. 1984)

(plaintiff only need to show substantial factor, not only factor).

But see Ezekwo v. NYC Health & Hosp. Corp., 940 F.2d 775, 780

(2d Cir. 1991) (standalone Second Circuit case requiring plaintiff

to “establish . . . that the speech played a substantial part in the

employer’s adverse employment action; i.e., that the adverse

action would not have occurred but for the employee’s protected

actions.”).

we follow the approach delineated in the majority of our

cases, adopted in our sister circuits, and compelled by Mt.

Healthy itself, i.e., a plaintiff alleging First Amendment

retaliation must prove by a preponderance of the evidence

that his or her protected activity was a motivating factor in

the defendant’s retaliatory action. To clarify, a motivating

factor does not amount to a but-for factor or to the only

factor, but is rather a factor that motivated the defendant’s

actions. As we said in Klunk v. County of St. Joseph, “[i]f

the speech addresses a matter of public concern, the

employee must show that the protected speech caused, or at

least played a substantial part in, the employer’s decision”

to take adverse employment action against the plaintiff. 170

F.3d 772, 775 (7th Cir. 1999). Once the plaintiff proves that

an improper purpose was a motivating factor, the burden

shifts to the defendant, as mandated by Mt. Healthy, to

prove by a preponderance of the evidence that the same

actions would have occurred in the absence of the protected

conduct. 

In this case, Spiegla readily satisfies her burden. She has

demonstrated by a preponderance of the evidence that her

comments to Schrader were a substantial or motivating

factor in her transfer and shift change. “It is settled in this

Circuit that, ‘a plaintiff may establish . . . a causal link

between protected expression and adverse action through

evidence that the [adverse action] took place on the heels of
22 No. 03-2480

10 Adusumilli and Dey are Title VII cases, but, in this Circuit “the

causation analysis for a § 1983 retaliation claim tracks the causation analysis for a Title VII retaliation claim.” Johnson v. Univ.

of Wis.-Eau-Claire, 70 F.3d 469, 482 (7th Cir. 1995).

protected activity.’ ” Adusumilli v. City of Chicago, 164 F.3d

353, 363 (7th Cir. 1998) (quoting Dey v. Colt Const. & Dev.

Co., 28 F.3d 1446, 1458 (7th Cir. 1994)).10 Not only did just

four days (including the weekend) elapse between Spiegla’s

conversation with Schrader and her transfer and schedule

change, it came after seven years of uninterrupted postings

on the prison gates. See Collins v. Illinois, 830 F.2d 692,

704-05 (7th Cir. 1987) (plaintiff’s uninterrupted two-year

tenure shows causal connection). Moreover, Johnson

admitted that he was “pretty pissed” that Spiegla’s comments were raised at the executive staff meeting and he

said that he was “mad at Ms. Spiegla.” Taken together, the

closely related sequence of events, Spielga’s long and

uninterrupted tenure, and Johnson’s anger with Spiegla

demonstrate that Spiegla’s speech was a motivating factor

in the decisions to transfer her and to change her shift. 

Moreover, we are unpersuaded by the Defendants’ contentions that they would have taken the same action in

absence of Spiegla’s protected speech. The Defendants

argue that Spiegla’s removal from the front gates resulted

from normal variance in officers’ post assignments. This

argument is undermined by Spiegla’s seven years of continuous assignments to gate posts. As for the shift change,

the Defendants point to evidence in the record showing that

in 2000 a number of positions were converted from (5-2)

schedules to (6-2) schedules to reduce the amount of overtime the facility paid. While it is undisputed that these

conversions occurred, the record does not compel a conclusion that Spiegla’s schedule change was part of this

reorganization. A document produced by the Defendants

entitled, “TRANSFERS EFFECTIVE MAY 21, 2000” lists
No. 03-2480 23

the names of sixteen employees who were indeed transferred from (5-2) groups. However, as is made apparent by

the document’s title, these transfers took place over four

months after Spiegla’s schedule had been switched. As the

Defendants have not presented evidence identifying any

other individual who underwent a shift conversion around

the same time that Spiegla did, we cannot conclude by a

preponderance of the evidence that she was not subjected to

isolated treatment.

B. Motion to Compel 

Lastly, we consider Spiegla’s claim that the district court

improperly denied her motion to compel the production of

documents. We conclude there is no basis to overturn the

district court’s decision. Trial courts have broad discretion

over discovery matters and we review a district court’s

pretrial discovery rulings for an abuse of discretion. Rennie

v. Dalton, 3 F.3d 1100, 1110 (7th Cir. 1993). Spiegla’s argument that the district court’s decision should be reversed

is premised on her discovery of relevant documents through

other channels (her union) that the Defendants should have

had copies of but did not turn over. However, obtaining

unproduced documents, by itself, does not demonstrate that

the district court abused its discretion in denying motions

to compel or that it erroneously limited discovery.

III. Conclusion

The judgment of the lower court is REVERSED and we

REMAND the case for proceedings consistent with this

opinion.
24 No. 03-2480

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-14-04