OGDEN V. ATTERHOLT (MAY 18, 2010)

In late 2006, Paul Ogden was hired as the manager of the Title Insurance Division of the Indiana Department of Insurance. He reported to Carol Mihalik, the head of the Consumer Protection Unit. Mihalik in turn reported to James Atterholt, the Commissioner. From early on, Ogden was critical of Mihalik. He even managed to avoid her and report directly to Atterholt on some of his projects. In September 2007, Ogden took two separate steps related to Mihalik. First, he filed a formal complaint with the State Personnel Division, complaining that Mihalik did not follow hiring regulations, misused funds, and fostered a hostile work environment. A few days later, he delivered a memorandum to Atterholt requesting that his division be removed from the Mihalik’s Unit. Almost all of the reasons in support of his request referred to Mihalik’s incompetence or dishonesty. Many of them repeated items from his formal complaint. He did not refer to his formal complaint, however, nor did the memorandum suggest the need for any discipline. A few hours after receiving the memorandum, Atterholt summoned Ogden to his office and gave him an opportunity to resign or be fired. Ogden resigned -- but then sued the Department, Atterholt, and Mihalik. He claimed a violation of his First Amendment rights under § 1983. Magistrate Judge Magnus-Stinson (S.D. Ind.) granted summary judgment to the defendants. Ogden appeals.

In their opinion, Judges Williams, Sykes, and Tinder affirmed. The only First Amendment issue addressed by the Court was whether Ogden's speech was constitutionally protected. Relying on the Supreme Court's decision in Garcetti, the Court held that it was not. Garcetti tells us that public employees' speech is not constitutionally protected when the statements are made "pursuant to their official duties." Here, the Court concluded that the memorandum was simply a request for departmental reorganization – a request which fell squarely within the scope of his official duties. Although many of the reasons given alleged incompetence and dishonesty on the part of his superior, they were all made in support of this effort to convince Atterholt of the need to reorganize.