In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2953

PAUL K. OGDEN,

Plaintiff-Appellant,

v.

JAMES ATTERHOLT, CAROL J. MIHALIK,

and the INDIANA DEPARTMENT OF INSURANCE,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division. 

No. 1:08-cv-00369-JMS-DFH—Jane E. Magnus-Stinson, Magistrate Judge.

ARGUED APRIL 13, 2010—DECIDED MAY 18, 2010

Before WILLIAMS, SYKES, and TINDER, Circuit Judges.

SYKES, Circuit Judge. Oral argument has narrowed this

appeal to a single issue: Did the Commissioner of the

Indiana Department of Insurance and his Chief Deputy

violate Paul Ogden’s free-speech rights when they

required him to resign as manager of the Department’s

Title Insurance Division? Ogden was forced out of his

position after writing a memo to the Commissioner
2 No. 09-2953

criticizing the performance of his Chief Deputy and

asking that the Title Insurance Division be removed from

her control. He then sued the Commissioner, the Chief

Deputy, and the Department of Insurance claiming that

his memo was protected speech and his forced

resignation violated his rights underthe First Amendment.

The district court entered summary judgment for

the defendants and Ogden appealed.

We affirm. Ogden’s complaints about the Deputy

Commissioner and his request for a departmental

reorganization were made in the performance of his

professional duties as manager of the Title Insurance

Division. Because he was speaking as a governmental

employee and not a citizen when he wrote the memo,

under Garcetti v. Ceballos, 547 U.S. 410 (2006), the

protections of the First Amendment are not implicated. 

I. Background

In November 2006 Paul Ogden was hired as the

manager of the newly created Title Insurance Division

in the Indiana Department of Insurance. The Title

Insurance Division was nestled within the Department’s

Consumer Protection Unit, headed up by Chief Deputy

Commissioner Carol Mihalik. James Atterholt was the

Commissioner of Insurance and in that capacity was

responsible for the entire Department of Insurance. After

taking the reins of the Title Insurance Division, Ogden

very quickly began to resent Mihalik’s management style;

he thought she was emotionally erratic, forgetful, and
No. 09-2953 3

too easily distracted by trivial matters. He began working

around Mihalik by reporting directly to Atterholt on at

least some Division matters, a practice which Ogden claims

Atterholt encouraged.

On September 14, 2007, Ogden informed Atterholt that

he was planning to submit a formal request that the

Title Insurance Division be removed from the Consumer

Protection Unit; Ogden and Atterholt had apparently

discussed this possibility previously. That same day

Ogden met with representatives of the State Personnel

Division to file a formal complaint against Mihalik. In

particular, Ogden claimed that Mihalik (1) flouted

Personnel Division regulations on hiring; (2) misused

funds directed for the Title Insurance Division; and

(3) fostered a hostile work environment. The Personnel

Division informed Ogden that an investigation would be

opened and that he should gather any relevant

information.

Three days later Ogden wrote a lengthy memorandum

to Atterholt, which Ogden described as a “formal request

to have the Title Insurance Division removed from

the Consumer Protection Unit.” In the memo Ogden

outlined 35 reasons in support of his reorganization

request. Virtually all of these reasons involved allegations

that Mihalik was incompetent or corrupt. Ogden’s

memo repeats many of the allegations he made three

days earlier to the Personnel Division, but, importantly,

the memo never references that formal complaint or

asks that Mihalik be disciplined in any way. One of

Ogden’s final bullet points in the memo states: “If we at the
4 No. 09-2953

Title Division are required to continue under Ms.

Mihalik’s supervision, the short term impact will be a

marked decline in morale and productivity of the Division.

The long term impact will be that employees of the

Division will leave and the Division may have to be

disbanded.”

A few hours after Atterholt received Ogden’s memo,

he summoned Ogden to a meeting. Mihalik was present

with Atterholt at this meeting, and Ogden was informed

that he had two choices: he could either resign or be

fired. Ogden was told that he had been “out of line,” but no

other explanation for the resign-or-be-fired order was

offered. Ogden was given no opportunity to defend

himself against the charge that his memo had been “out

of line.” He chose resignation over termination and signed

a “voluntary” resignation letter so that he could keep

his accrued vacation time and avoid being placed on

Indiana’s “do not hire” list. 

Ogden then sued Atterholt, Mihalik, and the Department

of Insurance in Indiana state court, raising a host of

state claims (including “whistle-blowing,” unjust

termination, and intentional infliction of emotional

distress), as well as a claim under 42 U.S.C. § 1983 for

violation of his First Amendment right to free speech. He

also asserted a due-process claim, the precise nature of

which has been the source of a fair amount of confusion

during this litigation and requires further comment. 

Ogden advanced his § 1983 claim in Count VII of his

complaint, which alleged a free-speech violation but

said nothing of due process. Ogden’s due-process
No. 09-2953 5

In accordance with the provisions of 28 U.S.C. § 636(c) and

1

Rule 73 of the Federal Rules of Civil Procedure, the parties

consented to have a magistrate judge conduct all proceedings in

the case.

allegations were lodged exclusively in Count VIII of

his complaint, but that count is not entirely clear as

to whether the due-process claim sounds in state

or federal law (or both). In relevant part, Count VIII

states: “The due process provided to Ogden falls short

of meeting even the reduced standard required for

at will employees under Indiana law, the Governor’s

Executive Order, and the Indiana and Federal

Constitutions.” But Count VIII makes no mention of § 1983.

The defendants removed the case to federal court,

observing in their notice of removal that Ogden

was bringing both a First Amendment claim and

a federal due-process claim under § 1983. The magistrate

judge assigned to handle this case apparently read Ogden’s

complaint in the same way during the course of the

proceedings below. So when the magistrate judge ruled on 1

the defendants’ motion for summary judgment, she

addressed two questions: whether Atterholt and

Mihalik had violated either Ogden’s free-speech rights

or his due-process rights under the Federal Constitution.

The judge granted summary judgment for the defendants

on both grounds and remanded the remaining state claims

back to the Indiana court.

Ogden then filed this appeal. Based on the proceedings

in the district court, his appeal initially appeared to
6 No. 09-2953

encompass federal free-speech and due-process issues. But

in his reply brief, and again at oral argument, Ogden

told us that his due-process claim arose exclusively

under Indiana law. Accordingly, the only issue for us

is whether the magistrate judge properly granted

summary judgment for the defendants on Ogden’s First

Amendment claim.

II. Discussion 

We review a grant of summary judgment de

novo, construing all facts in the light most favorable to

Ogden and drawing all reasonable inferences in his favor.

Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010).

To establish a prima facie case that his First Amendment

free-speech rights were violated, Ogden must first

show that he engaged in constitutionally protected speech

and that this speech was a motivating factor in

his dismissal. Valentino v. Vill. of S. Chi. Heights, 575 F.3d

664, 670 (7th Cir. 2009).

The Supreme Court’s decision in Garcetti governs the

analysis of whether Ogden’s memo is constitutionally

protected speech. The Supreme Court reiterated in

Garcetti that public employers, like private employers,

are permitted to exercise a significant degree of control

over their employees’ words and actions. 547 U.S. at 418-

19. Nonetheless, public employees remain citizens, and

as such “[t]he First Amendment limits the ability

of a public employer to leverage the employment

relationship to restrict, incidentally or intentionally,
No. 09-2953 7

the liberties employees enjoy in their capacities as

private citizens.” Id. at 419. Accordingly, “[s]o long

as employees are speaking as citizens about matters

of public concern, they must face only those speech

restrictions that are necessary for their employers to

operate efficiently and effectively.” Id. But the Court

held that “when public employees make statements

pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes, and

the Constitution does not insulate their communications

from employer discipline.” Id. at 421. As the Court

explained: “Underlying our cases has been the premise

that while the First Amendment invests public

employees with certain rights, it does not empower them

to constitutionalize the employee grievance.” Id. at 420

(quotation marks omitted).

Ogden wrote his memo to Atterholt in his capacity as

the manager of the Title Insurance Division and pursuant

to his official duties in that position—not as a private

citizen. The stated purpose of the memo was to serve

as a “formal request [to the Commissioner] to have the

Title Insurance Division removed from the Consumer

Protection Unit and to operate as a direct report

or under a different Chief Deputy.” In other words,

Ogden was attempting to convince his ultimate

superior, Commissioner Atterholt, that his immediate

supervisor, Deputy Commissioner Mihalik, was unfit

to oversee his division. To be sure, Ogden made many

wide-ranging allegations in the five-page memo, but all

of them were directed toward substantiating his
8 No. 09-2953

proposal that the Title Insurance Division be relocated

within the Department of Insurance.

The memo speaks for itself. It was an effort to

establish—rightly or wrongly—that Mihalik was incapable

of properly supervising the Title Insurance Division,

which Ogden was charged with directly administering.

Ogden pulled no punches and listed 35 separate reasons

why he thought Mihalik was unfit to exercise

supervisory control over the Division. For instance, he

stated that “Ms. Mihalik regularly displays erratic

personal behavior that manifests itself in wide mood

swings, forgetfulness, insecurity, and an inability to

focus on tasks.” Ogden also asserted that “Ms. Mihalik

has caused and continues to cause numerous problems

throughout the Department. Complaints about her

behavior, from low level clerical staff to Chief Deputies, are

an everyday feature of working at the Department of

Insurance.” The litany of grievances continued in this vein.

Nor was Ogden shy about connecting the dots for

Atterholt. At one point he proclaimed that “the future

success of the Title Insurance Division will be impossible

under Ms. Mihalik’s supervision.” Ogden also warned

that “[i]f we at the Title Division are required to continue

under Ms. Mihalik’s supervision, the short term impact

will be a marked decline in morale and productivity of

the Division. The long term impact will be that employees

of the Division will leave and the Division may have to be

disbanded.” 

Ogden’s memo reflects exactly the sort of localized

employment-related speech Garcetti held was not entitled
No. 09-2953 9

to First Amendment protection. Ogden’s request to have

the Title Insurance Division transferred plainly falls

within the scope of his official responsibilities as manager

of the Division, and Ogden concedes as much. He insists,

however, that his memo must be viewed as more than

a reorganization request; he maintains that it was also a

complaint about Mihalik’s improper—and possibly

unethical—behavior, which he argues is a matter of general

public concern. For instance, he points to one of the

35 complaints he lodged against Mihalik: that she

improperly directed funds intended for the Title Insurance

Division to other pursuits. His memo also asserted that

Mihalik repeatedly flouted state personnel rules in the

hiring of employees.

Ogden thus suggests that we divorce the

reorganization request from the charges of official

misconduct—particularly the allegation that Mihalik

misused Division funds. His argument is that although

the reorganization request was made in the course of

his official responsibilities, the reporting of the misuse

of funds was not. He notes that Mihalik confirmed in

her deposition that Ogden’s official job description did

not task him with the responsibility of monitoring

the (mis)management of the Title Insurance Division

Fund. These particular misconduct allegations, Ogden

maintains, reflect the concerns of a private citizen rather

than a public employee. For support he cites Valentino v.

Village of South Chicago Heights, 575 F.3d at 671-72; we held

there that “[i]t is by now well-established that speech

protesting government waste addresses a matter of public
10 No. 09-2953

concern and is therefore entitled to constitutional

protection.”

Ogden’s strained attempt to recast his memo as an

exercise in whistle-blowing is unpersuasive. Ogden

explicitly described his memo as a “formal request to

have the Title Insurance Division removed from the

Consumer Protection Unit and to operate as a direct

report or under a different Chief Deputy.” The specific

“whistle-blowing” allegations that Ogden now relies on

to fit himself within Garcetti’s requirement of privatecitizen speech were part and parcel of the rationale

he offered “in support of this request” for departmental

reorganization. That is, everything in the memo was

calculated to achieve the stated objective of removing

the Title Insurance Division from the Consumer

Protection Unit. It is true that three days before

sending his memo, Ogden met with officials in the

State Personnel Division in order to file a formal

complaint regarding Mihalik’s alleged hiring violations

and misuse of the title insurance fund. But his memo

neither references the disciplinary complaint against

Mihalik nor recommends that she be disciplined

or reprimanded in any other way. His memo was an

official request by a division manager, acting in that

capacity, asking for a departmental reorganization—no

more, no less. “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.” Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir.
No. 09-2953 11

In arguing that at least portions of his memo must be consid- 2

ered protected speech, Ogden focuses on Mihalik’s tacit admission that some of the accusations leveled in the memo involved

areas outside Ogden’s stated job description. While a formal job

description may be of some use in discerning when a public

employee is speaking pursuant to his official duties, it is hardly

dispositive. An employee’s “official responsibilities” can easily

extend well beyond “core” job functions. See Spiegla, 481 F.3d

at 966. The “official responsibility” inquiry requires a more

commonsense, contextual analysis of the role the public employee assumed in making the speech at issue in the case. See

Garcetti, 547 U.S. at 424-45.

2007) (quotation marks omitted). Ogden’s memo was the

act of a public employee acting as a public employee, not

a concerned citizen.2

Finally, Valentino is of no help to Ogden. The municipal

employee in Valentino confided in a member of the public

about her concerns that the local mayor was rewarding

friends and family with suspect jobs in her department.

We held that this speech—which led to a FOIA request

and a complaint from a public-interest group—was

constitutionally protected. 575 F.3d at 671-72. Ogden’s

situation is completely different. His memo was an

internal, formal request to his ultimate supervisor asking

that his department be reorganized. It did not purport

to expose or remedy injustices of public importance; its

aim was to persuade Atterholt that Mihalik was an

unsuitable supervisor of Ogden’s division and convince

him to remove the division from her control. Accordingly,
12 No. 09-2953

Ogden’s speech was not constitutionally protected, and

summary judgment dismissing the First Amendment

claim was appropriate.

We are left with one final housekeeping item. On appeal

Ogden has expressed a concern that the magistrate judge’s

resolution of the due-process claim in favor of the

defendants might foreclose litigation of that claim in

the Indiana courts. As we have noted, Ogden clarified

in his reply brief and at oral argument that his dueprocess claim is based entirely on state law; as such, once

the federal free-speech claim was resolved against him,

the due-process claim should have been included in the

order remanding the state claims to the Indiana court.

The magistrate judge should not have taken up and

resolved the due-process claim as if it arose under

federal law—though it was understandable why she

did so given the confusion in the pleadings. That claim

now returns to state court along with Ogden’s other state

claims.

With this clarification, the judgment of the district court

is AFFIRMED.

5-18-10