Brian Roake v. Forest Preserve District of C, et al
Filed opinion of the court by Judge Manion. AFFIRMED. Diane P. Wood, Chief Judge; Daniel A. Manion, Circuit Judge and Ann Claire Williams, Circuit Judge. [6819628-1]  [16-2976]
United States Court of Appeals
For the Seventh Circuit
FOREST PRESERVE DISTRICT OF COOK COUNTY, et al.,
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15‐cv‐08949 — Harry D. Leinenweber, Judge.
ARGUED JANUARY 5, 2017 — DECIDED FEBRUARY 17, 2017
Before WOOD, Chief Judge, and MANION and WILLIAMS, Cir‐
MANION, Circuit Judge. Brian Roake, a former police officer
for the Forest Preserve District of Cook County, was ostensi‐
bly disciplined for drinking alcohol at work. He responded
with this lawsuit under 42 U.S.C. § 1983, alleging unlawful
retaliation under the First Amendment. He also asserted a
Fourteenth Amendment due process claim based on reputa‐
tional harm. The district court dismissed Roake’s action under
Rule 12(b)(6) for failure to state a plausible claim to relief. We
Plaintiff Brian Roake was a police officer for the Forest Pre‐
serve District of Cook County, Illinois. His troubles began on
December 31, 2013, when he brought some champagne to a
Forest Preserve police station to celebrate the New Year.
Roake says that he was off duty at the time and that he got
permission from a sergeant (who was present at the celebra‐
tion) to bring the champagne. Roake and others drank the
champagne at the station.
In January 2014, the department initiated disciplinary pro‐
ceedings against Roake for his participation in the New Year’s
Eve gathering. When Roake was interviewed about the inci‐
dent, the interviewing officer assured him that he would not
lose his job but “might be suspended for one or two days at
the most.”1 On February 7, 2014, the disciplinary proceedings
culminated in what Roake calls a “pre‐disciplinary/pre‐termi‐
nation hearing.” Roake alleges that the hearing officers “up‐
held the charges” against him, though he does not say what
the charges were. At that point, Roake says he saw the “hand‐
writing on the wall” and so resigned his job. He also states,
with no supporting facts, that he “would have been termi‐
nated” if he had not resigned.
1 This is consistent with Roake’s allegation that the other employees
involved in the New Year’s celebration generally received only a written
reprimand or a one‐day suspension. Only one employee—apparently the
sergeant who gave Roake permission to bring the alcohol—was termi‐
Roake claims that his employer used his involvement in
the New Year’s Eve party as a mere pretext for disciplining
him. The real reason he was disciplined, according to Roake,
was because he had previously reported to his employer two
instances of official misconduct within the police department.
First, in October 2013, he reported that a fellow officer had
engaged in racial profiling. Roake mentioned the matter again
during his disciplinary proceedings in January 2014, when he
complained that it wasn’t fair that he was being investigated
while the officer who engaged in racial profiling was not.
Roake’s second report, made around February 6, 2014, in‐
volved a fellow officer whom Roake believed had been un‐
justly disciplined. Earlier that month, the officer had con‐
tacted Roake about a woman and children who were in the
Forest Preserves after hours in below‐freezing weather. Roake
responded that the officers were “mandated reporters” to the
Department of Children and Family Services (DCFS), so the
officer called DCFS to report the situation. The officer was
later written up in connection with the incident,2 and Roake
complained to his employer that the write‐up was unlawful.
After resigning in February 2014, Roake applied for jobs
in other police departments. He alleges that officials of the
Forest Preserve department told certain prospective employ‐
ers that he had consumed alcohol while on duty and was not
welcome to reapply there. Roake claims that this damaged his
professional reputation and made it more difficult for him to
2 Roake alternately alleges that the officer was disciplined for report‐
ing to DCFS and “for contacting Roake.”
In October 2015, Roake filed this § 1983 action against the
Forest Preserve District of Cook County and several officers
who were involved in the disciplinary proceedings against
him. He claims that the defendants violated the First Amend‐
ment by disciplining him in retaliation for reporting police
misconduct. He also claims that the defendants violated his
Fourteenth Amendment due process rights by tarnishing his
reputation among prospective employers. The district court
concluded that Roake failed to state a plausible claim for relief
and granted the defendants’ motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6).3 Roake appeals.
We review the grant of a motion to dismiss de novo, con‐
struing all well‐pleaded facts in the light most favorable to the
nonmoving party. Huri v. Office of the Chief Judge of the Circuit
Ct. of Cook Cty., 804 F.3d 826, 829 (7th Cir. 2015). To survive a
motion to dismiss, the complaint must “state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the plain‐
tiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the mis‐
conduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A. First Amendment Retaliation Claim
To prevail on a First Amendment retaliation claim, a plain‐
tiff must show that the government took an adverse action
against him because he engaged in constitutionally protected
speech. George v. Walker, 535 F.3d 535, 538 (7th Cir. 2008). A
3 Roake also brought a state‐law claim under the Illinois Whistle‐
blower Act, but that claim is not before us on appeal.
public employee’s speech is constitutionally protected only
when he speaks “as a citizen” on matters of public concern.
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). A public employee
does not speak “as a citizen” when he speaks “pursuant to
[his] official duties.” Id. at 421. Thus, public employees have
no cause of action under the First Amendment when they are
disciplined for speaking pursuant to their official duties, even
if the speech is on a matter of public concern. Spiegla v. Hull,
481 F.3d 961, 965 (7th Cir. 2007) (“Garcetti made clear that pub‐
lic employees speaking ‘pursuant to their official duties’ are
speaking as employees, not citizens, and thus are not pro‐
tected by the First Amendment regardless of the content of
their speech.”). The “determination of whether speech is con‐
stitutionally protected is a question of law.” Kubiak v. City of
Chic., 810 F.3d 476, 481 (7th Cir. 2016).
Roake alleges that the defendants retaliated against him
for complaining about racial profiling and unlawful discipli‐
nary action within the police force. But Roake has not plausi‐
bly alleged that he made these complaints as a citizen rather
than as a public employee speaking pursuant to his official
duties. On the contrary, Roake shared the complaints only
with his employer, and the complaints focused exclusively on
official misconduct by his fellow officers. As we have previ‐
ously recognized, a police officer’s duty to report official po‐
lice misconduct is a basic part of the job. See, e.g., id. at 481–
82 (rejecting an “overly narrow” description of police job du‐
ties and concluding that officer’s reports of police misconduct
were closely connected with the broad professional duty to
protect the public from harm); Vose v. Kliment, 506 F.3d 565,
571 (7th Cir. 2007) (police officer was “merely doing his job,”
and thus not engaged in protected speech, when he reported
suspected misconduct by his fellow officers); see also Hous‐
kins v. Sheahan, 549 F.3d 480, 491 (7th Cir. 2008) (public em‐
ployee’s “internal complaint” about official misconduct was
“an obvious form of speech made pursuant to official duties
under the Garcetti standard”); Spiegla, 481 F.3d at 967 (no pro‐
tected speech where correctional officer internally reported
official misconduct but “did not make a public statement, dis‐
cuss politics with a coworker, write a letter to newspapers or
legislators, or otherwise speak as a citizen”). Cf. Kristofek v.
Vill. of Orland Hills, 832 F.3d 785 (7th Cir. 2016) (finding pro‐
tected speech where part‐time officer reported official mis‐
conduct both to his fellow officers and to an outside agency,
and where the reported misconduct extended beyond the po‐
lice department and included higher‐level political corrup‐
tion in the mayor’s office).
As a police officer, Roake had a duty to protect the public
from harm, including harm resulting from illegal activity by
law enforcement. So when Roake internally reported that his
fellow officers were abusing the public trust by acting illegally
on the job, he was speaking as a public employee pursuant to
his official responsibilities, and not “as a citizen contributing
to the civic discourse.” Spiegla, 481 F.3d at 967 (internal marks
omitted). Consequently, even assuming Roake was disci‐
plined in retaliation for his speech, he has failed to state a
plausible claim under the First Amendment because he has
not shown that his speech was constitutionally protected. The
district court properly dismissed Roake’s First Amendment
retaliation claim under Rule 12(b)(6).
B. Fourteenth Amendment Due Process Claim
To prevail on a procedural due process claim under the
Fourteenth Amendment, a plaintiff must show that the gov‐
ernment “‘deprived him of a constitutionally protected liberty
or property interest without due process of law.’” Hinkle v.
White, 793 F.3d 764, 767 (7th Cir. 2015). Mere injury to reputa‐
tion, even if it seriously impairs one’s future employment pro‐
spects, is not a constitutionally protected liberty or property
interest under the due process clause. Id.; Willan v. Columbia
Cty., 280 F.3d 1160, 1163 (7th Cir. 2002). Instead, to state a due
process claim based on reputational harm, a plaintiff must
show that the government distinctly altered his legal status in
addition to tarnishing his good name. Hinkle, 793 F.3d at 768;
Santana v. Cook Cty. Bd. of Review, 679 F.3d 614, 621 (7th Cir.
2012) (explaining that defamatory statements are actionable
under the Fourteenth Amendment only if they “‘alter or ex‐
tinguish a right or status previously recognized by state
law’”). Hence, we conduct a “‘stigma‐plus’ analysis to deter‐
mine whether there was an ‘injury to reputation along with a
change in legal status.’” Hinkle, 793 F.3d at 768.
Roake alleges that the defendants sullied his reputation
among prospective employers by reporting that he drank on
the job and was not eligible for rehire. In addition to alleging
injury to his reputation, however, Roake has not plausibly al‐
leged that the defendants did anything to alter his legal status.
Roake counters that the defendants did change his legal status
by effectively removing him from the police force. Specifi‐
cally, he argues that he was constructively terminated when
certain “charges” were upheld at his disciplinary hearing in
Roake’s pleadings do not support this argument. Roake
plainly states that he resigned his position, and he alleges no
facts suggesting that the defendants constructively termi‐
nated his employment or otherwise changed his legal rights
or status in any way.4 See Lifton v. Bd. of Educ. of City of Chic.,
416 F.3d 571, 578 (7th Cir. 2005) (explaining that constructive
discharge for due process purposes is “limited to egregious
cases” and “occurs when an employee resigns because work‐
ing conditions are so intolerable that a reasonable employee
would feel compelled to quit”); see also Witte v. Wis. Dep’t of
Corr., 434 F.3d 1031, 1035–36 (7th Cir. 2006), partially over‐
ruled on other grounds by Hill v. Tangherlini, 724 F.3d 965 (7th
Cir. 2013) (“Working conditions for constructive discharge
must be even more egregious than those that would support
a finding of a hostile work environment.”).
In short, even assuming the defendants spoke about Roake
in a way that impaired his future employment prospects,
Roake has not plausibly alleged a due process violation be‐
cause he has not shown that he was deprived of a liberty or
property interest requiring the protections of due process.
The district court properly dismissed Roake’s Fourteenth
Amendment due process claim under Rule 12(b)(6).
Roake failed to state a plausible claim to relief under the
First and Fourteenth Amendments. He did not show that he
4 Roake’s conclusory and hypothetical assertion that he “would have
been terminated” had he not resigned is pure conjecture; it is not a well‐
pleaded factual allegation entitled to a presumption of truth on a motion
to dismiss. See Iqbal, 556 U.S. at 680–81; McCauley v. City of Chic., 671 F.3d
611, 616 (7th Cir. 2011).
was disciplined for engaging in constitutionally protected
speech, or that he was deprived of a constitutionally protected
liberty or property interest without due process. The district
court properly dismissed Roake’s action, and we AFFIRM.
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