Benjamin R. Brooks, M.D., Mohammed Sanjak, and Jennifer Parnell v. University of Wisconsin Board of Regents, Thomas P. Sutula, and Gregory C. Zalesak

406 F.3d 476
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 14, 2005
Docket04-3308
StatusPublished
Cited by22 cases

This text of 406 F.3d 476 (Benjamin R. Brooks, M.D., Mohammed Sanjak, and Jennifer Parnell v. University of Wisconsin Board of Regents, Thomas P. Sutula, and Gregory C. Zalesak) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benjamin R. Brooks, M.D., Mohammed Sanjak, and Jennifer Parnell v. University of Wisconsin Board of Regents, Thomas P. Sutula, and Gregory C. Zalesak, 406 F.3d 476 (7th Cir. 2005).

Opinions

TERENCE T. EVANS, Circuit Judge.

This dispute arose after the University of Wisconsin Medical School closed a clinic (and a laboratory) devoted to the research and treatment of Multiple Sclerosis (MS) and Amyotrophic Lateral Sclerosis (ALS), also known as Lou Gehrig’s Disease. The plaintiffs, the clinic’s founder and two employees, claim that the school closed the clinic because they spoke out against certain actions taken by the chairman of the neurology department. They allege that the closing violated their First Amendment and due process rights. A federal district court entered summary judgment in favor of various defendants affiliated with the school, prompting this appeal.

The Neurology Clinical Research Center (NCRC) focused on developing cures for neurological ailments and symptom management. Dr. Benjamin Brooks was the NCRC’s director and founder and also [478]*478served as director of the Motor Performance, Laboratory (MPL), which conducted muscle strength tests on patients suffering from neurological diseases. The NCRC was funded from research grants, while the MPL operated via grants and clinical revenue.

Dr. Thomas Sutula is the chairman of the school’s neurology department. In 2000, Sutula was named as a defendant in a civil lawsuit. Later, in connection with this lawsuit, Brooks refused to sign an in-house letter of support sent by neurology department staff to the dean of the medical school. In 2001, Brooks and NCRC administrator Jennifer Parnell criticized Sutula’s plan to discontinue a program funded by the Muscular Dystrophy Association (MDA) which provided services for economically disadvantaged patients. In addition, they voiced concern to associate dean Paul DeLuca about Sutula’s involvement with NeuroGenomeX, a private venture that competed against the school for grant money.

In January of 2002, Sutula prohibited Brooks from acquiring new patients for clinical trials because he was chronically late in submitting dictations. In March of 2003, Brooks met with DeLuca to discuss these restrictions, as well as the clinics’ financial prospects and perceived attacks on his staff.

In May of 2003, the neurology department decided to close the MPL at the end of the year, citing financial reasons. In July of 2003, Sutula decided to shift management of clinical studies from the NCRC to another division within the neurology department. Parnell was initially laid off because the duties of the NCRC were being shifted elsewhere, but she was later hired to work in the other division.

Despite initial plans to close the lab at the end of 2003, the school shut the door a little earlier. In July, a former MPL employee expressed concerns about the general operation of the lab. And in August, neurology department administrator Gregory Zalesak discovered a student at the MPL preparing to perform unsupervised tests on an ALS patient. It was also learned that this student and others had access to confidential patient files. As a result of these unauthorized practices, De-Luca and senior vice-president Carl Getto decided to close the MPL immediately. DeLuca then created a committee to review the operations of the MPL. That committee concluded that the MPL could only be reopened if it were reorganized in accordance with the two other clinical labs within the neurology department. Due to the MPL’s demise, in December of 2003 the school laid off associate professor Mohammed Sanjak. Brooks and Parnell remain at the school.

In January of 2004, Brooks, Parnell, and Sanjak brought this action in Dane County circuit court against Sutula, Zalesak, and the University of Wisconsin Board of Regents. The defendants removed the case to a federal district court pursuant to 28 U.S.C. § 1446. After discovery, the district court entered summary judgment in favor of the defendants, concluding that the plaintiffs failed to establish that they engaged in speech protected by the First Amendment or that they were deprived of property interests to sustain due process violations.

On appeal, the plaintiffs argue that the district court erred by entering summary judgment for the defendants on their First Amendment and due process claims. We review this decision de novo and may affirm it for any reason supported by the record. Cygan v. Wis. Dep’t of Corrs., 388 F.3d 1092, 1098 (7th Cir.2004).

We first consider the plaintiffs’ First Amendment claims. They allege [479]*479that the defendants shut down the research clinics in retaliation for their speaking out against Sutula. “A government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment.” City of San Diego v. Roe, — U.S. —, 125 S.Ct. 521, 523, 160 L.Ed.2d 410 (2004). Nevertheless, the government as an employer has an interest in conducting its operations as effectively as possible. Cygan, 388 F.3d at 1098 (citing Waters v. Churchill, 511 U.S. 661, 675, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994)). Thus, public employees do not have an unfettered right to express themselves’ on matters related to their jobs, and courts must give due weight to the government’s interest in efficient employment decisionmaking when evaluating retaliation claims. To establish First Amendment retaliation, a plaintiff must establish that the speech in question is constitutionally protected and that it was a substantial, or motivating, factor in the employer’s retaliatory actions. E.g., Carreon v. Ill. Dep’t of Human Servs., 395 F.3d 786, 791 (7th Cir;2005). If the plaintiff establishes these elements, the burden shifts to the government to prove that it would have taken the same action in the absence of the protected speech.

Courts apply a two-step analysis to determine whether speech is constitutionally protected. First, we must decide whether the plaintiffs engaged in speech that addressed a matter of public concern. Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). In making this determination, Connick directs us to examine the content,' form, and context of a statement as revealed by the entire record. 461 U.S. at 147-48, 103 S.Ct. 1684. Moreover, “[t]he First Amendment is implicated when a public employee speaks as a citizen upon a matter of public concern, but not as an employee upon matters only of personal interest.” Michael v. St. Joseph County, 259 F.3d 842, 846 (7th Cir.2001) (citing Myers v. Hasara, 226 F.3d 821, 826 (7th Cir.2000)). Thus, we must evaluate whether the plaintiffs’ speech is most accurately characterized as employee grievances or as a community concern. See Carreon, 395 F.3d at 791; Cygan, 388 F.3d at 1099. Second, if the plaintiffs spoke on matters of public concern, we must then balance their interest in expression against the school’s interest in promoting effective and efficient public service. See Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

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Bluebook (online)
406 F.3d 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamin-r-brooks-md-mohammed-sanjak-and-jennifer-parnell-v-ca7-2005.