Gary Hicks v. Illinois Department of Corrections

109 F.4th 895

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 23, 2024
• Docket: 23-1091
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 23-1091 GARY HICKS, Plaintiff-Appellant, v.

ILLINOIS DEPARTMENT OF CORRECTIONS, ET AL., Defendants-Appellees. ____________________

Appeal from the United States District Court for the Central District of Illinois. No. 3:20-cv-03099 — Sue E. Myerscough, Judge. ____________________

ARGUED NOVEMBER 29, 2023 — DECIDED JULY 23, 2024 ____________________

Before RIPPLE, SCUDDER, and JACKSON-AKIWUMI, Circuit Judges. JACKSON-AKIWUMI, Circuit Judge. The Illinois Department of Corrections suspended corrections sergeant Gary Hicks for 10 days after an internal investigation into his Facebook posts—posts a news article described as “Islamophobic” and “offensive.” The internal investigation concluded that Hicks violated Department policies banning “conduct that is unbe- coming of a State employee or that may reflect unfavorably 2 No. 23-1091

on or impair operations of the Department.” Hicks sued the Department and various officials connected to the discipli- nary process under 42 U.S.C. § 1983, alleging a First Amend- ment retaliation claim and an as-applied Fourteenth Amend- ment challenge to the Department’s policies. The district court granted summary judgment in favor of the defendants on both claims, and Hicks appeals. We conclude that Hicks cannot sustain a First Amendment retaliation claim because the Department’s interest in manag- ing its affairs outweighs the interest Hicks had in posting the content. Nor can Hicks sustain an as-applied Fourteenth Amendment challenge because someone in his supervisory position would not have to guess that their actions may be “unbecoming of,” “reflect unfavorably on,” “or impair oper- ations of the Department.” We therefore affirm. I A. Factual Background On September 4, 2019, the Chicago Sun Times published an article accusing Illinois Department of Corrections em- ployees of posting “offensive” and “Islamophobic” content on Facebook. One post included statements like, “abortion is murder,” “homosexuality is sin,” and “Allah is not god.” An- other post listed “Things We Don’t See Jews Doing,” includ- ing “Flying Planes Into Buildings,” “Forcing Young Girls to Marry Old Men,” “Mutilating Female Genitalia,” “Trying to Dominate the World,” and “Trying to Destroy America.” A different post depicted a member of the United States House of Representatives, labeling her as “musslamic” and encour- aging her arrest. Another post included a prayer: “Dear Lord, if there must be a civil war or a government overthrow, please No. 23-1091 3

let it happen before I am dead or too old to fight in it. Amen.” The Department later learned of a fifth post that the news ar- ticle did not discuss. This post depicted a different United States Representative in a sombrero, referred to her surname as the “Mexican word of the day,” and encouraged her to leave “if [she] don’t like the USA.” The article identified Gary Hicks as the employee behind the first four posts described above. Indeed, at the time the article ran, Hicks maintained a Facebook profile. He made his profile publicly accessible; anyone could view its content. And on his profile, he listed his occupation as “Corrections Sergeant at Illinois Department of Corrections” and shared a photo of himself in Department uniform. Sometime before the Chicago Sun Times published the ar- ticle, a reporter contacted the Department’s public infor- mation officer to discuss the Facebook posts. The day after the article ran, Rob Jeffreys, Director of the Department, sent an email to all staff reminding them to follow the Department’s code of conduct while using social media. Jeffreys would later explain that he sent this email in response to his concern about litigation stemming from Department employees “posting things derogatory about the people we have in custody . . . . along the lines of religion, race, [and] sexuality.” At the time, an inmate named Tay Tay led a class of transgender inmates in a lawsuit against the Department for deliberate indiffer- ence to harassment and discrimination. The district court in the Tay litigation would later reference Facebook posts by De- partment employees other than Hicks when entering a pre- liminary injunction against the Department. The Tay court found the employees’ posts “reflect[ed] ignorance, sexism, and racism,” and that a “deep-seeded culture of ignorance, 4 No. 23-1091

harassment, and discrimination” existed within the Depart- ment. The media attention prompted Josh Cheek, a Department investigator, to begin an internal investigation into Hicks’s so- cial media posts. Investigator Cheek interviewed Hicks, who admitted to the posts and explained they reflected his per- sonal political and religious views. Hicks said his views never impacted his work with the Department. Investigator Cheek concluded that the social media posts violated the code of conduct. The code requires “employees to conduct themselves in a professional manner and, whether on duty or not, not engage in conduct unbecoming of a State employee or that may reflect unfavorably on or impair oper- ations of the Department.” Beyond summarizing the news ar- ticle and what Hicks said when interviewed, Investigator Cheek’s two-page final report did not say much. The report asserted that “the posts do reflect negatively on the [D]epart- ment as well as the [D]epartment[’]s overall mission” and charged Hicks with violating the Department’s code of con- duct. The Department informed Hicks of the charges. On October 15, 2019, the Department convened an Em- ployee Review Board Hearing to give Hicks an opportunity to respond to the report. At the hearing, the hearing officer read the charges and heard statements from Hicks, his Union Representative, and a Management Representative. Hicks of- fered no witnesses other than himself, saying he did not in- tend the posts to offend anyone. The hearing officer con- cluded Hicks violated the code of conduct and recommended a 10-day suspension. No. 23-1091 5

Both Jeffreys, the Department’s Director, and John Eilers, in a dual role as Chief of Operations and temporary Chief of Staff, approved the 10-day suspension, effective November 4 through November 14, 2019. This was the first and only time the Department disciplined Hicks during his 18 years of em- ployment. B. Procedural History Hicks sued the Department, Jeffreys, Eilers, and three other officials (collectively, “Defendants”), alleging violations of his First Amendment free speech rights and Fourteenth Amendment due process rights. The district court entered summary judgment for Defend- ants on both claims. The court held Hicks’s suspension did not violate the First Amendment because his posts were not on matters of public concern, he took deliberate steps to link himself and his posts to his government employment, and the Department’s interest as an employer outweighed his interest in speaking. Alternatively, the court held, qualified immunity shielded Defendants from the First Amendment challenge be- cause clearly established law does not provide the right to share such posts publicly while identifying oneself as a De- partment employee. The district court granted summary judgment to Defendants on the Fourteenth Amendment due process claim on qualified immunity grounds, explaining that the law does not clearly establish that the Department’s stand- ards were impermissibly vague as applied to Hicks’s Face- book activity. This appeal followed. 6 No. 23-1091

II Hicks raises several issues on appeal: (1) whether the De- partment violated his First Amendment rights by suspending him because of his Facebook posts; (2) whether the Depart- ment’s code of conduct violated the Fourteenth Amendment because it is impermissibly vague as applied to him; and (3) whether the individual Defendants are entitled to qualified immunity for any unconstitutional acts they may have com- mitted. We review these questions de novo, and must reverse the district court’s summary judgment decision if we decide that a reasonable jury could have rendered a verdict in favor of Hicks. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). We conclude that the First and Fourteenth Amendment claims are without merit. This also means we need not reach the qualified immunity question. A. First Amendment As a general matter, protecting the public’s interest in hav- ing citizens speak about and debate matters of public concern “lies at the heart of the First Amendment.” Lane v. Franks, 573 U.S. 228, 236 (2014). But to resolve this appeal, we must consider the First Amendment rights of a specific group: public employees. Public employees do not sign away their free speech rights when answering the call to public service; at the same time, public employees’ rights to free speech are not absolute. City of San Diego v. Roe, 543 U.S. 77, 80 (2004). In contrast to the government’s limited power to restrict the speech of private citizens, the government, as employer, has greater leeway to control the speech of its employees to ensure discipline and No. 23-1091 7

harmony in government operation. Waters v. Churchill, 511 U.S. 661, 671–72 (1994). The First Amendment requires us to strike “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the ef- ficiency of the public services it performs through its employ- ees.” Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968). The inquiry into whether a public employer’s personnel decision infringed upon an employee’s First Amendment rights involves several steps: “[P]ublic employees must pre- sent evidence that (1) their speech was constitutionally pro- tected; (2) they suffered a deprivation likely to deter free speech; and (3) their speech was at least a motivating factor in the employer’s actions.” Bless v. Cook Cnty. Sheriff’s Off., 9 F.4th 565, 571 (7th Cir. 2021). The parties do not dispute Hicks satisfies the second and third elements. They disagree about whether his Facebook posts were constitutionally protected, so we focus on this first element. To resolve the question of whether the First Amendment protects Hicks’s speech, we apply the two-step Connick/Pick- ering test. The first step asks whether the employee spoke “as a citizen upon matters of public concern,” as opposed to “as an employee upon matters only of personal interest.” Connick v. Myers, 461 U.S. 138, 147 (1983). The parties do not dispute that Hicks spoke as a citizen on matters of public concern. So, we can proceed to the second step. Step two involves a bal- ancing: It asks whether the employee’s interests in speaking on a matter of public concern outweigh the government’s 8 No. 23-1091

interest in promoting effective and efficient public services. 1 Pickering, 391 U.S. at 568. But before diving into step two (Pickering balancing), we address a point of law. The parties cite Harnishfeger v. United States, 943 F.3d 1105 (7th Cir. 2019), for the proposition that we can take an alternate route to Pickering balancing. Harnish- feger explained that a court can arrive at balancing not only if an employee speaks as a citizen on a matter of public concern as required by Connick, but also if an employee shows that his speech was neither at work nor about work and the employee did not take deliberate steps linking himself and his speech to his employer. Harnishfeger, 943 F.3d at 1113–14. Harnishfeger stated that this “different path to Pickering [balancing] is avail- able under United States v. National Treasury Employees Union, 513 U.S. 454 (1995) (“NTEU”).” Harnishfeger, 943 F.3d at 1113. NTEU explained, however, that NTEU applies to ex ante blan- ket restrictions on speech, whereas Connick applies to “post hoc analys[es]” of “isolated disciplinary actions” “taken in re- sponse to actual speech,” which is what Hicks challenges in

1 Because it is a balancing test, the stronger the showing that the

speech touched on a matter of public concern, the greater the burden on the government to show that its interests should prevail. See Craig v. Rich Twp. High Sch. Dist. 227, 736 F.3d 1110, 1111–21 (7th Cir. 2013). Hicks ar- gues that his posts were “entitled to the highest rung of First Amendment protection” because, on appeal, he has explained the posts’ political and religious underpinnings. Defendants argue his Facebook posts “touched upon matters of public concern in only a most limited sense,” if at all. But we do not consider the NPR, New York Times, and Newsweek articles that Hicks cites on appeal because Hicks failed to call the district court’s attention to these facts. And it would not matter if we labeled his free speech interests as substantial or limited: As discussed below, the govern- ment’s interests are weighty enough to outweigh his right to speak freely either way. No. 23-1091 9

this case. NTEU, 513 U.S. at 467–68, 475 n.21. Nonetheless, we could not walk the alternative path Harnishfeger sets out even if we tried: Hicks did take deliberate steps linking himself and his speech to the Department, as evidenced by his decision to include his occupation and a photo of himself in Department uniform on his publicly accessible Facebook page. Because this aspect of the Harnishfeger formulation is not met, this case does not qualify to proceed to Pickering balancing via the Harnishfeger framework, though it can via Connick (which, again, asks only if an employee speaks as a citizen on a matter of public concern). And even if we could take the Harnishfeger route, we—like the Harnishfeger court—arrive at the same place: Pickering balancing. Let’s return to the task of applying the Connick/Pickering test to the facts before us. Again, step two requires a balanc- ing: do the employee’s interests in speaking on a matter of public concern outweigh the government’s interest in pro- moting effective and efficient public services? This second part of the test contemplates a fact-specific inquiry into sev- eral interrelated factors: (1) whether the speech would create problems in maintaining discipline or harmony among co-workers; (2) whether the employment rela- tionship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee’s ability to per- form her responsibilities; (4) the time, place and manner of the speech; (5) the context in which the underlying dispute arose; (6) whether the matter was one on which debate was vital to in- formed decisionmaking; and (7) whether the 10 No. 23-1091

speaker should be regarded as a member of the general public. Bonds v. Milwaukee Cnty., 207 F.3d 969, 981 (7th Cir. 2000). We cannot “merely count how many factors line up on each side—one factor of great weight may offset several which lean slightly in the other direction.” Volkman v. Ryker, 736 F.3d 1084, 1092 (7th Cir. 2013). In balancing these interests, we must also consider the “nature of the employer-employee relationship in the para- military context of a correctional center.” Id. Law enforcement agencies tasked with protecting and maintaining correctional centers function as “paramilitary organizations” charged with maintaining public safety and order. Id. (citation omit- ted). As a result, they receive more latitude in their discipline decisions and personnel regulations than an ordinary govern- ment employer. Id. “In such contexts, we afford considerable deference to the government employer’s assessment of the risks that employee speech creates.” Id. (cleaned); Lalowski v. City of Des Plaines, 789 F.3d 784, 793 (7th Cir. 2015) (“We have recognized that there is a particularly urgent need for close teamwork among those involved in the high stakes’ field of law enforcement. Speech that might not interfere with work in an environment less dependent on order, discipline, and esprit de corps could be debilitating to a police force.” (cleaned)). A government employer need not prove that the em- ployee’s speech actually disrupted efficiency; rather, the em- ployer’s burden is to show “‘the potential disruptiveness’ of the employee’s speech.” Lalowski, 789 F.3d at 792–93 (citations omitted). The employer is not required to wait until opera- tions actually disintegrate if immediate action might prevent No. 23-1091 11

such disintegration. Id.; Connick, 461 U.S. at 152 (“[W]e do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.”); Waters, 511 U.S. at 673 (plurality opinion) (granting “substan- tial weight to government employers’ reasonable predictions of disruption”). We conclude that the Department’s interest in efficiency and preventing disruption outweighed any interest Hicks had in sharing the five posts on his Facebook profile. First, Hicks’s Facebook activity had the potential to inter- fere with Department operations, discipline, and relation- ships, for three reasons. One, by espousing disparaging views about groups that may be present in the prison or staff popu- lation, Hicks “positioned himself in opposition to the goals of his employer.” Lalowski, 789 F.3d at 791. This is because the Department must police the populations Hicks targeted and it might employ members of the same populations to do the policing. Even if members of these populations had not yet learned of his posts, “the potential for disruption is readily apparent.” Id. at 791–92. Two, the adverse public exposure prompted by the news article threatened to erode community trust and impair its operations. Indeed, the article referred to the posts as “offensive” and “Islamophobic,” and the article— and therefore the posts—remains publicly available to this day. Three, the Department has a reasonable, well-founded concern about legal exposure from derogatory social media posts by employees. Recall that the Department was already defending a lawsuit on this front and the court in that case concluded the derogatory social media posts reflected the 12 No. 23-1091

severity and pervasiveness of the Department’s hostility to- ward transgender inmates. Hicks argues that this first factor—the potential to inter- fere with Department operations, discipline, and relation- ships—favors him and, if we conclude otherwise, we green- light what he asserts are post hoc justifications by the Depart- ment for the disciplinary decision. We disagree. The record shows that, contrary to Hicks’s assertion, the news article caused the Department’s concern about negative public expo- sure. The article set several events in motion, including Jef- freys’s email reminding staff to observe the code of conduct while using social media, and the internal investigation that resulted in a report explaining that Hicks’s posts (nearly all of which featured in the article) “reflect negatively on the [D]epartment.” Also contrary to Hicks’s assertion, the Depart- ment did not need to experience actual disruption before dis- ciplining him. The potential for disruption was enough. See id. at 792–93. Nor do we find persuasive Hicks’s contention that the Facebook posts were not “inherently” or “terribly of- fensive.” “[C]ourts look to the facts as the employer reasona- bly found them to be,” not as viewed by the employee, a court, or a jury. Waters, 511 U.S. at 677 (emphasis omitted). The record leaves us with no doubt that the Department rea- sonably found the posts harmed its reputation and threatened its operations. We therefore accord substantial weight to the Department’s interest in preventing Hicks from causing fur- ther disruption. Second, the employment relationship between Hicks and the Department required loyalty and confidence. Hicks’s prayer to participate in a government overthrow and dispar- aging populations to which staff members may belong No. 23-1091 13

conflict with the Department’s expectation of loyalty from employees, which is especially important in a paramilitary context. This factor favors Defendants, too. Third, Hicks’s posts conflicted with his responsibilities as a supervisor. “Supervisors are tasked with enforcing rules and regulations.” Volkman, 736 F.3d at 1092. When a supervi- sor expresses interest in participating in a government over- throw, he undermines the staff and inmates’ respect for rules and chain-of-command. Id. And because the posts support the conclusion that Hicks is not an impartial decisionmaker, staff and inmates may grow wary of working with him or follow- ing his orders. See, e.g., Craig, 736 F.3d at 1113 (explaining fe- male students would be especially reluctant to seek counsel- ing services from a public employee who wrote a book ex- pressing sexist views). Alternatively, his role as a supervisor may encourage supervisees to carry bias further down the chain of command. See Weicherding v. Riegel, 160 F.3d 1139, 1143 (7th Cir. 1998) (concluding, in a case concerning tele- vised support of the Ku Klux Klan, that “[the plaintiff’s] posi- tion as sergeant, an intermediate management position at [the prison], [] weighs in favor of the defendants, because manag- ers set an example for the subordinate employees”). We need not second-guess the Department’s conclusion that the exam- ple Hicks set through his conduct as a supervisor jeopardized effective operations. This conflict between Hicks’s managerial position and his Facebook activity also weighs in the Depart- ment’s favor. Fourth, the time, place, and manner of the speech do not help Hicks. Although Hicks posted the content in question while off duty, his activity did not constitute, as he argues, “private” messages: he set his Facebook profile such that 14 No. 23-1091

anyone could view the five posts, and any member of the pub- lic or Department could have come across them. Further, even assuming—we think generously—that Hicks meant to com- municate something of value to public discourse, the deroga- tory language and images Hicks used did more than neces- sary to contribute to the conversation. Lalowski, 789 F.3d at 792 (noting the manner of the employee’s speech weighed against the employee because “[h]is words and deeds were abusive and degrading,” “going far beyond what was necessary to communicate his displeasure with [the protesters’] meth- ods”). This factor also goes to the Department. Finally, visitors to Facebook could not regard Hicks as a member of the general public when he posted the content at issue here. He made sure of that by listing his position as a corrections sergeant, listing the Department as his employer, and posting a photo of himself in uniform. These things made it easy to identify Hicks as a Department employee—just as the news reporter did—and created the risk that someone would associate his posts with the Department. Id. at 793 (con- cluding the plaintiff did not speak as a member of the public because he represented himself as an off-duty police officer and “made sure demonstrators remembered him as a police officer”); see Coady v. Steil, 187 F.3d 727, 733 (7th Cir. 1999) (finding that an off-duty firefighter who displayed a political sign on his car was not “speaking as a firefighter” because “there was apparently nothing on [his] car which identified him as a firefighter”). This factor further tips the scale in the Department’s favor. In sum, even if we assume the posts contributed to in- formed debate, we conclude the Department’s interest in workplace efficiency and preventing disruption outweighed No. 23-1091 15

any interest Hicks had in commenting as he did. Having con- cluded that the Connick/Pickering test favors the Department, we hold that the district court properly granted summary judgment in favor of the Defendants on the First Amendment retaliation claim. B. Fourteenth Amendment We now turn to Hicks’s as-applied Fourteenth Amend- ment challenge to the Department’s code of conduct. “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). But regu- lations “are not automatically invalidated as vague simply be- cause difficulty is found in determining whether certain mar- ginal offenses fall within their language.” United States v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32 (1963). The question whether a regulation is unconstitutionally vague is determined by whether it is crafted with sufficient clarity to “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned, 408 U.S. at 108. Unlike laws applicable to the general public, “the govern- ment acting in the role of employer enjoys much more latitude in crafting reasonable work regulations for its employees.” Greer v. Amesqua, 212 F.3d 358, 369 (7th Cir. 2000). Thus, a code of conduct for public employees is impermissibly vague only if it fails to “convey adequate warning” to “reasonable em- ployee[s]” as to a “sufficiently define[d] [ ] range of inappro- priate conduct” that may result in discipline. Id. Hicks cannot credibly assert that the code of conduct is im- permissibly vague as applied to his social media activity. His Facebook posts so contradict his role as a corrections sergeant 16 No. 23-1091

that no reasonable officer could claim confusion about the code of conduct’s application. It is one thing to participate in controversial public discussions about politics, religion, race, culture and sexuality; it is another to use derogatory language and stereotypes about the very populations an officer is tasked with safeguarding and supervising. And the code of conduct provides more than adequate warning to a reasona- ble employee charged with protecting the public that posting language suggesting joyful anticipation of a government overthrow or civil war is “unbecoming” of the employee and “may reflect unfavorably” on the Department. Because the code of conduct is not unconstitutionally vague as applied to a supervising officer who posts the con- tent at issue here, we affirm the district court’s judgment on the Fourteenth Amendment due process claim. III For these reasons, the judgment of the district court is AFFIRMED.