Firing Range Officer |Loses Retaliation Claim

(CN) - An Illinois officer's complaint that he got lead poisoning from the police firing range where he worked is not protected by the First Amendment, the 7th Circuit ruled, rejecting the officer's retaliation claim against his employer.

As a range officer for the Illinois State Police, Jimmy Bivens oversaw a firing range used to train officers. His job involved cleaning up and organizing the range, which looked like a "train derailment" when he arrived, he said. After working there several months, he began complaining of severe aches and tingling in his extremities. Doctors told him he had "highly elevated" levels of lead in his blood.

He complained about the lead contamination both directly to his supervisors and by filing a grievance with the state police union. The range was subsequently closed for a professional cleanup, garnering local media attention.

Bivens sought disability benefits, claiming the lead had caused other neurological problems. But two doctors determined that he could work, so long as he steered clear of lead exposure. One doctor said he thought Bivens was "simulating short-term memory deficits."

Based on these reports, the Illinois State Police terminated his benefits and ordered him back to work.

Bivens then filed a workers' compensation claim and, when that failed, a lawsuit. He accused his employer of retaliating against him for causing the range closure, which allegedly "embarrassed" the state police. He claimed his bosses docked his pay, forced him to use personal rather than sick leave, reassigned him to another position, harassed him and told co-workers that Bivens was faking his illness.

His employer moved to have the case dismissed, saying Bivens' complaints were not protected under the First Amendment. Cleaning the firing range was part of his job, the state police argued, and his complaint about lead levels was a private grievance.

The district court dismissed the case, and the Chicago-based appeals court affirmed. "[T]here is no indication that Bivens was attempting to bring an issue of wrongdoing or environmental safety to public light," Judge Daniel Manion wrote for the appellate panel. "Rather, the content, form, and context of the grievance demonstrate that it was filed for the sole purposes of securing his own medical treatment and ensuring he had a safe working environment."

As such, his grievances were not shielded by the Constitution, the court ruled.

"Because Bivens' internal grievance was on a matter of purely private interest, addressing only the effect of lead contamination on himself and his work environment," Manion wrote, "it did not raise a matter of public concern and is not protected by the First Amendment."

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