Volkman v. Randle et al
Filing
22
OPINION entered by Judge Sue E. Myerscough on 11/15/2011. SEE WRITTEN OPINION. For the reasons stated, Defendants' Motion for Summary Judgment (d/e 17) is GRANTED IN PART AND DENIED IN PART. Defendants Randle, Walker, and Stafford are entitled t o summary judgment on Count I, and all the Defendants are entitled to summary judgment on Count II. The official capacity claims against Defendants Hodge, Ryker and Hess are DISMISSED. Count I remains pending against Defendants Hodge, Ryker, and Hess in their individual capacities. This matter remains scheduled for a final pretrial conference on December 12, 2011 at 2:30 p.m. (DM, ilcd)
E-FILED
Tuesday, 15 November, 2011 03:18:18 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DWAYNE VOLKMAN,
Plaintiff,
v.
MICHAEL RANDLE, ROGER WALKER,
LEE RYKER, MARC HODGE, BRIAN
STAFFORD, and BARBARA HESS,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
No. 10-2132
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on the Motion for Summary
Judgment (d/e 17 ) filed by Defendants Michael Randle, Roger Walker,
Lee Ryker, Marc Hodge, Brian Stafford, and Barbara Hess.
Plaintiff Dwayne Volkman is employed by the Illinois Department
of Corrections (IDOC) as a Casework Supervisor at the Lawrence
Correctional Center. Plaintiff received a written reprimand purportedly
for failing to answer a question during an internal investigation. Plaintiff,
believing he was in fact retaliated against for speaking to the State’s
Attorney, brought suit against Defendants.
In his Complaint, Plaintiff alleged Defendants retaliated against
him for (1) his speech to the State’s Attorney (Count I); and (2) his
political affiliation (Count II). Plaintiff sued (1) Randle, the Director of
DOC, in his official capacity; (2) Walker, the former Director of DOC, in
his individual and official capacity; (3) Ryker, who at the relevant time
was the Warden of the Lawrence Correctional Center, in his individual
and official capacity; (4) Hodge, who at the relevant time was employed
as an Internal Affairs investigator and/or Assistant Warden of Operations
of the Lawrence Correctional Center, in his individual and official
capacity; (5) Stafford, who at the relevant time was employed as a
Sergeant or Lieutenant at Lawrence Correctional Center, in his individual
and official capacity; and (6) Hess, who at the relevant time was
employed as an Administrative Assistant 2 for DOC, in her individual
and official capacity.
In his Response to the Motion for Summary Judgment, Plaintiff
consents to the dismissal of Count II, the political affiliation claim, and
Page 2 of 41
agrees that Defendants Randle, Walker, and Stafford do not have the
requisite personal involvement to warrant liability. Therefore, this Court
will examine only Count I against Defendants Hodge, Ryker, and Hess.
Defendants have moved for summary judgment asserting that
Plaintiff’s speech was not constitutionally protected, Plaintiff did not
suffer a deprivation likely to deter speech, and Plaintiff failed to prove
that his speech was a “but-for” cause of the written reprimand.
Defendants also assert they are entitled to qualified immunity.
This Court finds that, for purposes of summary judgment, Plaintiff
has demonstrated that his speech to the State’s Attorney was
constitutionally protected, that Plaintiff suffered a deprivation likely to
deter speech, and that a question of fact remains whether Defendants
Hodge, Ryker, and Hess retaliated against Plaintiff due to his speech to
the State’s Attorney. This Court further finds that Defendants Hodge,
Ryker, and Hess are not entitled to qualified immunity.
Page 3 of 41
I. FACTS
A.
Investigation Regarding Officer Jody Burkhardt
On June 26, 2008, IDOC completed an investigation regarding
Officer Jody Burkhardt that revealed, among other things, that Officer
Burkhardt brought his personal cellular telephone into the Lawrence
Correctional Center and used it to make approximately twenty personal
phone calls. (Defendants’ Undisputed Fact 1). The results of Officer
Burkhardt’s investigation were forwarded to Defendant Ryker, the
Warden of the Lawrence Correctional Center at the time, and Lawrence
County State’s Attorney Patrick Hahn. (Defendants’ Undisputed Fact
2).
On June 30, 2008, the Lawrence County State’s Attorney filed
criminal charges against Officer Burkhardt. Those charges stated that:
. . . [O]n or about the 8th of May, 2008 the
offense of UNAUTHORIZED BRINGING OF
CONTRABAND INTO A PENAL INSTITUTION
BY AN EMPLOYEE was committed at Lawrence
Correctional Center . . . and that the undersigned
has just and reasonable grounds to believe that
Jody Burkhardt committed said offense in that he
then and there being an employee of a penal
Page 4 of 41
institution, knowingly and without authority of
any person designated or authorized to grant such
authority, brought an item of contraband, a
cellular telephone, into the Lawrence Correctional
Center, a penal institution.
Defendants concede that charges filed by the State’s Attorney on June
30, 2008, and the written content of those charges, were a matter of
public record. (Plaintiff’s Undisputed Fact 6).1
On July 3, 2008, a stop order was issued at Lawrence Correctional
Center that prohibited Officer Burkhardt from entering the prison.
(Defendant’s Undisputed Fact 4). Officer Burkhardt was also placed on
administrative leave. (Defendants’ Undisputed Fact 4). Officer Chad
Ray acted as a union representative for Officer Burkhardt on July 3,
2008, in connection with the stop order and lockout process.
(Defendants’ Undisputed Fact 5).
B.
Officer Ray’s Communications with Correctional Employees
On July 3, 2008, Officer Ray approached Lawrence Correctional
Center employees, including Plaintiff, in a lunchroom and told them that
1
Defendants did not dispute this fact although they claimed that fact was immaterial. In
fact, Defendants asserted that the majority of Plaintiff’s additional facts were immaterial.
Page 5 of 41
Officer Burkhardt had been charged with a crime for the use of his cell
phone. (Defendants’ Undisputed Fact 6). Officer Ray also told the
employees, including Plaintiff, that he believed Officer Burkhardt had
only brought his cell phone into the prison on one occasion by accident,
that Officer Burkhardt had not allowed an inmate to use the phone, and
that staff should contact the State’s Attorney to encourage the charges to
be dropped. (Defendants’ Undisputed Fact 6). Officer Ray provided
staff with the State’s Attorney’s phone number. (Defendants’
Undisputed Fact 6). However, Officer Ray’s statement to Plaintiff and
the others in the dining room that Officer Burkhardt only brought his cell
phone into the facility on one occasion and that one time was accidental
was inaccurate. (Plaintiff’s Undisputed Fact 5).
C.
Plaintiff Contacts the State’s Attorney
Either on July 3, 2008, or within approximately two days, while off-
duty, Plaintiff contacted Lawrence County State’s Attorney Patrick
Hahn. (Defendants’ Undisputed Fact 8). When Plaintiff called the
State’s Attorney, he informed the State’s Attorney’s secretary and the
Page 6 of 41
State’s Attorney that he understood that Officer Burkhardt had been
arrested for bringing a personal cell phone into work. (Defendants
Undisputed Fact 9). Plaintiff then expressed his opinion that, if Officer
Burkhardt had let an inmate use his cell phone, the State’s Attorney
should do whatever he sees fit with the case, but that, if Officer
Burkhardt had not let an inmate use a cell phone, the case should be
handled through IDOC’s internal disciplinary process and not through
criminal charges. (Defendants’ Undisputed Fact 9).
Plaintiff testified he contacted the State’s Attorney’s office because
he:
believed [he] was standing up for fellow employees
that – that may at some point inadvertently walk
through the front door with their cell phone
clipped on their belt or in their pocket. I hated to
see a policy where someone just brought a cell
phone in and would be charged with a crime as
opposed to going through the disciplinary process.
That was my only thought whenever I called.
(Plaintiff’s Dep. pp. 33-34).2 Plaintiff also testified he contacted the
2
Plaintiff objected to Defendants’ statement of fact 10 regarding why Plaintiff contacted
the State’s Attorney’s office. Plaintiff asserted that Defendants “did not completely and
accurately summarize [Plaintiff’s] testimony.” Therefore, this Court only quotes Plaintiff’s
testimony which Plaintiff cited in his objection.
Page 7 of 41
State’s Attorney for two reasons–to offer his opinion and for future
situations where an employee may bring a cell phone to work. (Plaintiff’s
Dep. pp. 34-35). Plaintiff relied on the information that he had received
from Officer Ray when he contacted the State’s Attorney. (Defendants’
Undisputed Fact 11). After contacting the State’s Attorney, Plaintiff did
not contact any members of the media, newspapers, television reporters,
or write about the issue in any online forums. (Defendants’ Undisputed
Fact 12).
D.
IDOC Investigates Officer Ray
In July 2008, IDOC had, and continues to have, a policy requiring
employees at the Lawrence Correctional Center to respect the
confidentiality of records of internal investigations and personnel issues.
(Defendants’ Undisputed Fact 22, 23). Employees are prohibited from
disclosing any information related to internal investigations or personnel
issues, including the existence of an investigation or the identity of
employees under investigation, and are prohibited from disclosing
confidential or false information to the public. (Defendants’ Undisputed
Page 8 of 41
Fact 23).
Two Lawrence Correctional Center employees submitted incident
reports to Defendant Ryker about the incident with Officer Ray in the
lunchroom on July 3, 2008. (Defendants’ Undisputed Fact 13). In his
Affidavit, Defendant Ryker stated that he directed that Internal Affairs
investigate the incident reports to determine if Officer Ray disseminated
confidential or false information regarding Officer Burkhardt or
conducted himself in a manner unbecoming of a State employee.
(Defendants’s Undisputed Fact 14).3 Defendant Hodge, who was a
Lieutenant in Internal Affairs at the time, investigated the incident
reports regarding Officer Ray. (Defendants’ Undisputed Fact 15).
Officer Ray was the first person interviewed by Defendant Hodge
during the course of his investigation. (Plaintiff’s Undisputed Fact 7).
3
Plaintiff admitted that this statement accurately reflected Defendant Ryker’s affidavit
but asserted it was “hard . . . to believe” Defendant Ryker recalled why he requested the
investigation when, at his deposition, Defendant Ryker could hardly recall what Officer Ray was
accused of doing. This is not a proper basis on which to dispute the statement. See Tuszkiewicz
v. Allen-Bradley Co., Inc., 967 F.Supp. 1119 (E.D. Wis. 1997) (finding that a response to a
statement of undisputed fact pointing to evidence in the record that would call a witness’s
credibility into doubt but that does not call into doubt the particular factual assertion is not
sufficient for the court to find that a genuine issue of fact exists), aff’d 142 F.3d 440 (7th Cir.
1998) (unpublished). The statement in the affidavit does not contradict the deposition testimony.
Therefore, the statement of fact is deemed admitted.
Page 9 of 41
During the course of the interview, Officer Ray told Defendant Hodge
that he did ask some Lawrence County taxpayers employed at Lawrence
Correctional Center to contact the Lawrence County State’s Attorney
and tell him that the Burkhardt prosecution should be handled in-house.
(Plaintiff’s Undisputed Fact 8). Officer Ray advised the staff to do this if
they believed they should, and Officer Ray provided them with the
State’s Attorney’s office phone number. (Plaintiff’s Undisputed Fact 8).
As part of his investigation of Officer Ray, Defendant Hodge asked
four Lawrence Correctional Center employees who were interviewed—
Jon McDonald, Plaintiff, Vickie Goins, and Janet Emmons—whether
they contacted the State’s Attorney after speaking with Officer Ray on
July 3, 2008. (Defendants’ Undisputed Fact 16). Defendant Hodge
interviewed Plaintiff because Plaintiff was reported to have been present
in the lunchroom with Officer Ray on July 3, 2008. (Defendants’
Undisputed Fact 15).
Plaintiff refused to answer the question of whether he contacted
the State’s Attorney. (Undisputed Fact 17). McDonald, Goins, and
Page 10 of 41
Emmons all answered the question of whether they contacted the State’s
Attorney, with some reporting that they had contacted the State’s
Attorney and others reporting that they had not. (Defendants’
Undisputed Fact 19). No individual who was asked whether they
contacted the State’s Attorney was referred for discipline so long as the
question was answered. (Defendants’ Undisputed Fact 20).
Defendant Hodge claims that he was obligated to interview all
witnesses as part of his investigation. (Plaintiff’s Undisputed Fact 10).
Despite the fact that Hodge was supposed to interview all witnesses, he
did not interview Diana Shaffner or Robert Lovell. (Plaintiff’s
Undisputed Fact 11, 12).
E.
Facts Pertaining to Plaintiff’s Refusal to Answer the Question
In July 2008, IDOC had, and continues to have, a policy requiring
employees at the Lawrence Correctional Center to cooperate with any
investigation conducted by internal investigators or Internal Affairs.
(Defendants’ Undisputed Fact 21, 22). If an employee fails to cooperate
during an investigation, IDOC requires that the employee be disciplined.
Page 11 of 41
(Defendants’ Undisputed Fact 22).
According to Defendants, when Plaintiff refused to answer the
question of whether he contacted the State’s Attorney, Plaintiff did not
know the purpose of the investigation of Officer Ray, although he felt the
question was unreasonable. (Defendants’ Fact 18). Plaintiff asserts that
Defendants’ statement is not entirely correct, citing to Plaintiff’s
testimony. See Response to Defendants’ Fact 18. Plaintiff did testify
that, when he was interviewed by Defendant Hodge, he did not know
what the charges were against Officer Ray. (Plaintiff’s Deposition, p. 42;
Response to Defendants’ Fact 18). Plaintiff also testified, however, that
he asked Defendant Hodge if he was being personally investigated.
(Plaintiff’s Deposition p. 48). Defendant Hodge responded that it
“depended on how [Plaintiff] answered the question of whether or not
[Plaintiff] contacted the State’s Attorney.” (Plaintiff’s Deposition, p.
48). When Plaintiff asked Hodge what the charges were, Defendant
Hodge responded, “we’ll figure that out later.” (Plaintiff’s Deposition, p.
Page 12 of 41
48)4.
Defendant Hodge did not order Plaintiff to answer him when he
asked if Plaintiff had contacted the State’s Attorney. (Plaintiff’s
Undisputed Fact 15). According to Defendant Hodge, an employee who
is being questioned as part of an internal affairs investigation does not
have to answer a question that is not reasonably related to the
investigation. (Plaintiff’s Undisputed Fact 16).
Defendant Hodge believed it was against policy for an employee to
attempt to influence a state’s attorney’s decision on whether to
prosecute. (Plaintiff’s Undisputed Fact 2). Defendant Hodge testified
that if “Lawrence County residents contact the state’s attorney and they
did contact the state’s attorney then, obviously, if they’re verbalizing
their displeasure, then again, it goes back to the efforts of possible
persuasion of the courts.” (Plaintiff’s Undisputed Fact 13). Defendant
Hodge also testified that trying to have influence over the criminal justice
4
Defendant Hodge denied making those statements, but on summary judgment, this
Court must view the record in the light most favorable to Plaintiff. See Valance v. Wisel, 110
F.3d 1269, 1276 (7th Cir. 1997) (“Because we are required to view the summary judgment record
in the light most favorable to [the plaintiff], we accept his version of this disputed factual
question”).
Page 13 of 41
system was not IDOC’s responsibility. (Plaintiff’s Undisputed Fact 14).
F.
Discipline of Plaintiff
After Defendant Hodge finished his investigation of Officer Ray, he
was promoted. (Defendants’ Undisputed Fact 24). Consequently,
Lieutenant Brian Stafford wrote a Report of Investigation summarizing
Defendant Hodge’s investigation and concluding that Officer Ray and
Plaintiff had violated certain IDOC policies. (Defendants’ Undisputed
Fact 24).
Lieutenant Stafford then prepared a memorandum and packet
referring Plaintiff for an employee review hearing. (Defendants’
Undisputed Fact 25). The memorandum was submitted to Defendant
Ryker, who directed that Plaintiff be referred for an employee review
hearing. (Defendants’ Undisputed Fact 25). Employee review hearings
are required to be held when an employee is being considered for
discipline greater than an oral reprimand. (Defendants’ Undisputed Fact
27).
Defendants assert that Plaintiff was referred for an employee review
Page 14 of 41
hearing because he did not answer the question of whether he contacted
the State’s Attorney during the investigation of Officer Ray.
(Defendant’s Fact 26). Although Plaintiff attempted to refute this fact
on the basis that a jury could find that this “justification was a pretext for
retaliation,” Plaintiff also testified he was referred to the employee review
board for not answering the question of whether or not he had called the
State’s Attorney. (Plaintiff’s Deposition, p. 48).
On September 24, 2008, Plaintiff’s review hearing was held.
(Defendants’ Undisputed Fact 28). Defendant Hess, an Administrative
Assistant II located at the Robinson Correctional Center, traveled to
Lawrence Correctional Center to serve as a hearing officer for the hearing.
(Defendants’ Undisputed Fact 28).
On October 8, 2008, Defendant Hess issued a written decision
finding that Plaintiff’s refusal to answer the question of whether he
contacted the State’s Attorney during the investigation of Officer Ray
violated IDOC’s policy requiring cooperation during investigations.
(Defendants’ Undisputed Fact 29). While Defendants assert that
Page 15 of 41
Defendant Hess recommended Plaintiff receive a five-day suspension
(Defendants’ Fact 29), Plaintiff asserts that Defendant Hess asked
Defendant Ryker for a recommendation before the hearing and that
Defendant Ryker recommended a five-day suspension.5 See Response to
Fact 29).
On November 7, 2008, Walker, the Director of the IDOC at the
time, ordered that Plaintiff receive a written reprimand instead of a fiveday suspension. (Defendants’ Undisputed Fact 31). Plaintiff never
served any suspension related to his refusal to cooperate. (Defendants’
Undisputed Fact 32).
Plaintiff filed a grievance regarding his discipline. (Defendants’
Undisputed Fact 33). The grievance was resolved through an agreement
that the written reprimand would be removed from Plaintiff’s personnel
file after one year if there were no further similar incidents. (Defendants’
Undisputed Fact 33).
5
The parties dispute the proper interpretation of Defendant Ryker’s testimony because he
did not say when Hess asked him for his recommendation. Therefore, this Court views
Defendant Ryker’s testimony in the light most favorable to Plaintiff. See Domka v. Portage
County, Wis., 523 F.3d 776, 782 (7th Cir. 2008) (on a motion for summary judgment, ambiguities
must be resolved in the light most favorable to the non-movant).
Page 16 of 41
Defendants assert that Defendants Hodge, Ryker, and Hess never
knew whether Plaintiff called the State’s Attorney and what, if anything,
Plaintiff said to the State’s Attorney. (Defendants’ Fact 34). Plaintiff
disputes this, citing evidence that Defendant Hodge spoke with State’s
Attorney Hahn, who told Hodge that individuals from the correctional
facility had been calling him about the Burkhardt prosecution.
(Response to Fact 34).
II. JURISDICTION AND VENUE
This Court has subject matter jurisdiction because Plaintiff’s claims
are based on federal law. See 28 U.S.C. § 1331 (“The district courts shall
have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States”). Venue is proper
because all of the Defendants reside in Illinois and one of the
Defendants, Roger Walker, resides in Macon County. See 28 U.S.C. §
1391(b) (a civil action where jurisdiction is not founded solely on
diversity of citizenship may be brought in a judicial district where any
defendant resides, if all defendants reside in the same State). This case
Page 17 of 41
was originally brought in the Urbana Division but transferred to the
Springfield Division in September 2011.
III. LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of
law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also,
Fed.R.Civ.P. 56(c). A moving party must show that no reasonable factfinder could return a verdict for the non-moving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254 (1986); Gleason v. Mesirow Fin.,
Inc., 118 F.3d 1134, 1139 (7th Cir. 1997). Facts must be viewed in the
light most favorable to the non-moving party, and all reasonable
inferences must be drawn for the non-movant. See Trentadue v.
Redmon, 619 F.3d 648, 652 (7th Cir. 2010).
IV. ANALYSIS
Page 18 of 41
A claim for First Amendment retaliation under § 1983 involves a
three-step inquiry: (1) whether the employee’s speech was
constitutionally protected; (2) whether the employee suffered a
deprivation because of the employer’s action; and (3) whether the
protected speech was a but-for cause of the employer’s action. Kodish v.
Oakbrook Terrace Fire Protection Dist., 604 F.3d 490, 501 (7th Cir.
2010), (noting the United States “Supreme Court recently clarified that
unless a federal statute provides otherwise, the plaintiff bears the burden
of demonstrating but-for causation in suits brought under federal law”),
citing Gross v. FBL Fin. Serv., Inc., 129 S. Ct. 2343, 2351 (2009); see
also Greene v. Doruff,
F.3d
, 2011 WL 4839162 (7th Cir. 2011)
(clarifying the causation issue in First Amendment cases).
A.
Questions of Fact Remain Regarding Defendants’ Personal
Involvement
Defendants argue (1) Defendant Hodge was not personally
involved in the alleged deprivation because he merely investigated
incident reports regarding another employee and asked Plaintiff questions
during the investigation; (2) Defendant Ryker only recommended
Page 19 of 41
discipline and was not involved in the alleged deprivation; and (3)
Defendant Hess merely served as a hearing officer and recommended, but
did not impose, discipline on Plaintiff.
Plaintiff responds that (1) Defendant Hodge was responsible for the
investigation and made incriminating statements to Plaintiff; (2)
Defendant Ryker pushed for a five-day suspension and told Defendant
Hess that he recommended a five-day suspension; and (3) Defendant
Hess was the person responsible for the predisciplinary hearing and “did
what Ryker instructed her to do.”
“Liability under § 1983 must be premised on personal involvement
in the deprivation of the constitutional right, not vicarious liability.”
Payne for Hicks v. Churchich, 161 F.3d 1030, 1042 n. 15 (7th Cir.
1998); Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) (“An
individual cannot be held liable in a § 1983 action unless he caused or
participated in an alleged constitutional deprivation”) (emphasis in
original). However, a defendant need not directly participate in the
violation if: (1) he “acts or fails to act with a deliberate and reckless
Page 20 of 41
disregard of [the] plaintiff’s constitutional rights”; or (2) “the conduct
causing the constitutional deprivation occurs at [his] direction or with
[his] knowledge and consent.” Rascon v. Hardiman, 803 F.2d 269, 274
(7th Cir. 1986); see also Conner v. Reinhard, 847 F.2d 384, 397 (7th Cir.
1988) (“The requisite causal connection is satisfied if the defendant set
in motion a series of events that the defendant knew or should
reasonably have known would cause others to deprive the plaintiff of her
constitutional rights”). Personal involvement is a question of fact.
Williams v. Smith, 781 F.2d 319, 323 (2nd Cir. 1986).
The facts presented here, taken in the light most favorable to
Plaintiff, suggest Defendants Hodge, Hess, and Ryker all have the
requisite involvement to potentially subject them to liability.
B.
Official Capacity Claims are Barred by the Eleventh Amendment
Defendants argue that Defendants are named in their official
capacities but that Plaintiff seeks no relief from an ongoing violation of
federal law. Therefore, Defendants assert the claims against them in their
official capacity are barred by the Eleventh Amendment. Plaintiff does
Page 21 of 41
not address this issue in his response to the Motion for Summary
Judgment.
A suit against a state official in his official capacity is a suit against
the State. Power v. Summers, 226 F.3d 815, 818 (7th Cir. 2000). A suit
against the State, or state official in his official capacity, is barred by the
Eleventh Amendment unless: (1) Congress has abrogated the State’s
immunity from suit, (2) a State has waived its immunity and consented
to suit, or (3) the suit is one for prospective injunctive relief pursuant to
Ex Parte Young, 209 U.S. 123, 159-60 (1908). Sonnleitner v. York, 304
F.3d 704, 717 (7th Cir. 2002). None of these exceptions apply.
Therefore, the official capacity claims are dismissed.
C.
The Parties Dispute the Speech That is the Basis of the Suit
The parties dispute the speech for which Plaintiff clams he was
retaliated. Defendants assert that Plaintiff claims he was retaliated
against for not answering the question of whether he contacted the
State’s Attorney. Defendants point to Plaintiff’s deposition testimony,
wherein Plaintiff testified that the speech for which he was retaliated
Page 22 of 41
against was the statement to Defendant Hodge that Plaintiff would not
answer the question of whether he contacted the State’s Attorney.
In his response to the Motion for Summary Judgment, Plaintiff
asserts that he engaged in protected speech when he spoke with the
State’s Attorney, that the question about whether he spoke to the State’s
Attorney infringed on his First Amendment rights, that the question was
not relevant to the investigation, and that the discipline imposed resulted
from the exercise of his First Amendment rights.
Plaintiff has pursued a consistent theory. In his Complaint, he
asserted that he spoke to the State’s Attorney as a citizen and that his
speech did not impede IDOC operations. (Cmplt. ¶¶ 18, 19).
He
further alleged that as a result of his speech, he suffered retaliation.
(Cmplt. ¶ 20). While Plaintiff did testify at his deposition that the
speech for which he was retaliated against was the refusal to answer the
question, that refusal was directly tied to the speech to the State’s
Attorney. This Court will analyze Plaintiff’s claim under Plaintiff’s
asserted theory.
Page 23 of 41
D.
For Purposes of Summary Judgment, Plaintiff’s Speech Was
Constitutionally Protected
This Court employs a two-part inquiry to determine whether a
public employee has a First Amendment right: (1) whether the plaintiff
spoke as a citizen on a matter of public concern, and (2) if so, whether
the “relevant government entity had an adequate justification for treating
the employee differently from any other member of the general public.”
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (holding that “the First
Amendment does not prohibit managerial discipline based on an
employee’s expressions made pursuant to official responsibilities”).
These two factors are questions of law. Hensley v. Jasper Police Dept.,
163 F.Supp.2d 1006, 1012 (S.D. Ind. 2001).
1.
Whether Plaintiff Spoke as a Citizen on a Matter of Public
Concern
To determine whether Plaintiff engaged in constitutionally
protected speech, this Court must determine that he spoke in the
capacity of a private citizen and spoke on a matter of public concern.
Valentino v. Village of South Chicago Heights, 575 F.3d 664, 671 (7th
Page 24 of 41
Cir. 2009). When determining whether an employee spoke as a citizen,
this Court examines “whether he made his statements pursuant to his
official duties.” Callahan v. Fermon, 526 F.3d 1040, 1044 (7th Cir.
2008); Garcetti, 547 U.S. at 421 (court must determine whether the
speech “owes its existence to a public employee’s professional
responsibilities”).
Here, Plaintiff spoke to the State’s Attorney to give his opinion
regarding the charges brought against Officer Burkhardt. Nothing in the
record shows that taking such action was a duty of Plaintiff’s job or a
task Plaintiff was expected to perform. The Court finds Plaintiff spoke as
a citizen when he spoke to the State’s Attorney. See, e.g., Bourque v.
Town of Hampton, 2007 WL 1575250, at*7 (D.N.H. 2007) (finding
that the police officer who was the victim of a crime spoke as a citizen on
a matter of public concern when he voiced his opinion about how assault
charges should have been handled).
In deciding whether a statement is a matter of public concern, a
court must examine the “content, form, and context of a given statement,
Page 25 of 41
as revealed by the whole record.” See Pickering v. Board Of Educ. of
Township High Sch. Dist. 205, 391 U.S. 563, 568 (1968). Of these
factors, content is the most important. See Yoggerst v. Hedges, 739 F.2d
293, 296 (7th Cir. 1994). The Court may also consider the choice of
forum and motivation for speaking. Cygan v. Wisconsin Dept. of
Corrections, 388 F.3d 1092, 1099 (7th Cir. 2004).
A statement is a matter of public concern if it can be “fairly
considered as relating to any matter of political, social or other concern to
the community.” Connick v. Myers, 461 U.S. 138, 146 (1983). This
Court considers whether the speech is more like an employee grievance or
a subject of general interest and value to the public. Doyle v. Chief Judge
of Tenth Judicial Circuit, 2007 WL 2572387, at *6 (C.D. Ill. 2007).
Defendants argue that Plaintiff’s speech to the State’s Attorney was
not speech on a matter of public concern but, rather, Plaintiff discussing
his opinion regarding internal personnel matters. While Defendants
concede that the subject of whether criminal charges should be pursued
could be of general concern to the public, Defendants argue Plaintiff’s
Page 26 of 41
speech focused on the import of the criminal charges to IDOC
employees. In contrast, Plaintiff asserts he spoke to a public official
about how the public official was performing his duties.
This Court finds that the content and context of Plaintiff’s speech
related to Plaintiff’s opinion of the State’s Attorney’s handling of a
criminal matter. Plaintiff spoke directly to the State’s Attorney and
expressed his opinion. Moreover, Plaintiff did not speak to the State’s
Attorney about a matter that solely affected Plaintiff. See, e.g.,
McKenzie v. Milwaukee Co., 381 F.3d 619, 626 (7th Cir. 2004) (“The
speech must relate to a community concern rather than ‘merely a
personal grievance of interest only to the employee,’ and so complaints
about personnel matters generally are not constitutionally protected”),
quoting Sullivan v. Ramirez, 360 F.3d 692, 699 (7th Cir. 2004). The
context and the form of Plaintiff’s speech is consistent with an expression
on a matter of public concern rather than vindication of a personal
interest. Bivens v. Trent, 591 F.3d 555, 561 (7th Cir. 2010) (involving
an internal grievance on a matter of purely private interest that only
Page 27 of 41
addressed the effect on the plaintiff and his own work environment).
Moreover, taking the facts in the light most favorable to Plaintiff,
Plaintiff’s motive was to comment on criminal charges. Even if part of
Plaintiff’s motive was directed toward himself and other correctional
officers who may, in the future, accidentally bring a cell phone into the
facility, this fact would not mean that the speech cannot also be a matter
of public concern. See Bivens v. Trent, 591 F.3d 555, 561 (7th Cir.
2010) (“fact that the speaker was partially motivated by personal
concerns does not necessarily mean the speech cannot also be a matter of
public concern”). This Court finds that the overriding reason for the
speech was not related to Plaintiff’s personal interests as an employee.
cf. Hartman v. Board of Trustees of Community College Dist. No. 508,
Cook County, Ill., 4 F.3d 471-72 (7th Cir. 1993) (concluding the
plaintiff’s speech related predominately to her personal interest).
Therefore, Plaintiff spoke on a matter of public concern. See, e.g.,
Bourque v. Town of Hampton, 2007 WL 1575250, at *7 (D.N.H. 2007)
(“plaintiff’s opinion about how the 2003 assault charges should have
Page 28 of 41
been handled was an expression about a matter of public concern”);
Wiseman v. Schultz, 2004 WL 783084, *3 (N.D. Ill. 2004) (finding the
plaintiff stated a claim for First Amendment retaliation; the plaintiff’s
statements to the State’s Attorney were designed to shed light on
wrongdoing within the police department and constituted speech in a
public forum).
2.
Defendants Failed to Address the Balancing Test in the
Context of Plaintiff’s Speech to the State’s Attorney
Having found that Plaintiff spoke as a citizen on a matter of public
concern, the Court must next “balance the interest of [the plaintiff], as a
citizen, in commenting upon matters of public concern and the State’s
interest, as an employer, in promoting the efficiency of the public service
it performs.” Pickering, 391 U.S. at 568. The Court considers seven
factors when conducting this balancing test:
(1) whether the speech would create problems in
maintaining discipline or harmony among coworkers; (2) whether the employment relationship
is one in which personal loyalty and confidence are
necessary; (3) whether the speech impeded the
employee's ability to perform [his] responsibilities;
(4) the time, place, and manner of the speech; (5)
Page 29 of 41
the context within which the underlying dispute
arose; (6) whether the matter was one on which
debate was vital to informed decision-making; and
(7) whether the speaker should be regarded as a
member of the general public.
Gustafson v. Jones, 290 F.3d 895, 909 (7th Cir. 2002). When assessing
this balance, “[t]he initial, and often determinative, question is whether
the speech interferes with the employee’s work or with the efficient and
successful operation of the office.” See Knapp v. Whitaker, 757 F.2d
827, 842 (7th Cir. 1985).
Here, Defendants focused solely on Plaintiff’s failure to answer the
question during the investigation and provided no argument on why
IDOC’s interest outweighed Plaintiff’s interest in speaking. As the
movant, Defendants bear the burden of showing they are entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56(a); Kolpak v. Bel, 619
F.Supp. 359, 363 (N.D. Ill. 1985). Therefore, for purposes of summary
judgment, this Court finds that Plaintiff’s interest in speaking
outweighed IDOC’s interest in restricting that speech.
E.
The Deprivation Was Likely to Deter Free Speech
Page 30 of 41
Defendants assert that Plaintiff did not suffer any deprivation that
would deter free speech. According to Defendants, the written reprimand
that would be withdrawn from Plaintiff’s personnel file was a minor
deprivation that was not likely to deter free speech.
In the § 1983 context, an adverse employment action is an action
that is “sufficiently adverse to deter the exercise of the individual’s right
to free speech.” Hutchins v. Clarke,
F.3d
, 2011 WL 5027236,
at *6 (7th Cir. 2011). A reprimand can constitute a deprivation. See
Glass v. Dachel, 2 F.3d 733, 741 (7th Cir. 1993) (“If a reprimand letter
addresses constitutionally protected speech, the plaintiff can establish an
infringement of constitutional rights because of its deterrent effect”).
F.
Questions of Fact Remain Whether Plaintiff’s Speech was the ButFor Cause of his Reprimand
In Greene v. Doruff,
F.3d
, 2011 WL 4839162 (7th Cir.
2011), the Seventh Circuit clarified what a Plaintiff must show for
causation in a First Amendment case. The Greene court held that a
plaintiff, to satisfy his burden of production on the issue of causation,
must show that “a violation of his rights was a sufficient condition of the
Page 31 of 41
harm for which he seeks redress; he need not show it was a necessary
condition.” Id. at
, 2011 WL 4839162, at *4, citing Mt. Healthy City
School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-86 (1977). If the
plaintiff satisfies that burden, the defendant may “rebut with evidence
that the plaintiff’s exercise of his constitutional rights though a sufficient
condition was not a necessary condition” of the harm. Greene,
at
F.2d
, 2011 WL 4839162, at *4. That is, the defendant must show
that the disciplinary action would have occurred anyway. Id.; see also
Zellner v. Herrick, 639 F.3d 371, 378 (7th Cir. 2011) (further providing
that if the defendant satisfies his burden, the plaintiff must demonstrate
that the proffered reason was pretextual and that retaliatory animus was
the real reason for the action).
Defendants have come forward with evidence that the reprimand
would have occurred anyway. IDOC policy requires that employees
cooperate with an investigation, and the failure to cooperate requires an
employee be disciplined. Defendants assert that Plaintiff was disciplined
for failing to cooperate with an investigation when he refused to answer
Page 32 of 41
the question of whether he spoke to the State’s Attorney. Plaintiff even
admits, in his Response to the Motion for Summary Judgment, that such
justification–if true–would be a legitimate, nonretailiatory justification for
the discipline. See Response pp. 24, 32. Therefore, Plaintiff must present
some evidence from which a jury could find that the proffered reason was
pretextual.
Plaintiff can show pretext either (1) directly, with evidence showing
that “retaliation was the most likely motive for terminating him,” or (2)
indirectly, by showing that Defendants’ “proffered justifications were not
worthy of credence.” Vukadinovich v. Board of School Trustees of
North Newton School Corp., 278 F.3d 693, 699-700 (2002). To show
that the proffered justification was not worthy of credence, Plaintiff must
show Defendants’ justification had no basis in fact, was not the real
reason for the reprimand, or was insufficient to warrant the reprimand.
Id. at 700.
Defendants argue that Plaintiff cannot establish that his speech was
a but-for cause of the alleged retaliation. Defendants claim the other
Page 33 of 41
employees who answered the question of whether they contacted the
State’s Attorney were not disciplined regardless of how they answered the
question. According to Defendants, this shows that Plaintiff was
disciplined for his refusal to cooperate, not for any speech made to the
State’s Attorney. Defendants also argue that because Plaintiff did not
answer the question, they did not know whether Plaintiff contacted the
State’s Attorney or what, if anything, Plaintiff said to the State’s
Attorney.
This Court first notes that Plaintiff has not pointed to any evidence
that Defendants Ryker or Hess knew whether Plaintiff spoke to the
State’s Attorney or what he might have said. Defendants Ryker and Hess
both denied having any knowledge. See Wackett v. City of Beaver Dam,
Wis., 642 F.3d 578, 583 (7th Cir. 2011) (finding that the plaintiff could
not establish causation because he could not show that any of the
defendants knew of his purportedly protected speech). In his response to
the Motion for Summary Judgment, Plaintiff pointed to evidence that
Defendant Hodge spoke to State’s Attorney Hahn, who told Defendant
Page 34 of 41
Hodge that employees from the correctional facility had called about the
Burkhardt charges. A reasonable inference can be drawn that Defendant
Hodge learned that Plaintiff contacted the State’s Attorney and learned
what Plaintiff told him. A reasonable inference can also be drawn that
Defendants Hess and Ryker also knew, or suspected, that Plaintiff had
spoken to the State’s Attorney.
On the issue of pretext, Plaintiff points to a number of pieces of
circumstantial evidence from which, according to Plaintiff, a jury could
conclude that Plaintiff was retaliated against because of his speech to the
State’s Attorney: (1) Defendant Hodge testified that he believed it
violated IDOC policy for Plaintiff to speak to the State’s Attorney; (2) it
was unnecessary to interview Plaintiff or Officer Ray because Officer
Ray’s lack of disclosure of confidential information was obvious, given
that the information he had was inaccurate; (3) it was unnecessary to
interview Plaintiff because Officer Ray admitted he spoke to the State’s
Attorney and encouraged others to do so; (4) Hodge told Plaintiff that
whether Plaintiff was under investigation depended on whether Plaintiff
Page 35 of 41
spoke to the State’s Attorney and when asked what the charges would be,
Hodge responded, “[W]e’ll figure that out later”; (5) Defendants failed to
follow proper policies and procedures; specifically, Defendant Hodge did
not interview all witnesses and Defendant Ryker told Hess what he
wanted her to recommend before the predisciplinary hearing ever
occurred. In addition, Defendant Hodge testified that an employee who
is being questioned as part of an Internal Affairs investigation does not
have to answer a question that is not reasonably related to the
investigation.
This case is unusual in that the protected speech is tied to the
question Plaintiff did not answer. Had Plaintiff been reprimanded for
failing to answer a question unrelated to his protected speech, his
protected speech would clearly not be the but-for cause of the reprimand.
Here, however, the very question asked went to Plaintiff’s purportedly
protected conduct. An inference can be drawn from the evidence
Plaintiff presented that the true reason for the reprimand was not
Plaintiff’s failure to tell Defendants whether he spoke to the State’s
Page 36 of 41
Attorney but Plaintiff’s action in speaking to the State’s Attorney.
Taking the evidence in the light most favorable to Plaintiff and
drawing all reasonable inferences in favor of Plaintiff, a reasonable jury
could find that Plaintiff was reprimanded for speaking to the State’s
Attorney and not for failing to answer the question during the
investigation.
G.
Defendants are Not Entitled to Qualified Immunity on this Record
Qualified immunity protects governmental actors “from liability for
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity balances the interest of holding “public officials
accountable when they exercise power irresponsibly” with the interest in
shielding officials from “liability when they perform their duties
reasonably.” Pearson v. Callhan, 555 U.S. 223, 231 (2009).
“[Q]ualified immunity provides ‘ample room for mistaken judgments’
and protects government officers except for the ‘plainly incompetent and
Page 37 of 41
those who knowingly violate the law.’” Saffell v. Crews, 183 F.3d 655,
658 (7th Cir. 1999), quoting Hunter v. Bryant, 502 U.S. 224, 229
(1991).
To determine whether defendants are entitled to qualified
immunity, a court must determine: (1) “whether the facts alleged show
that the [defendant’s] conduct violated the plaintiff's constitutional
rights” and (2) “whether the right was clearly established in light of the
specific context of the case so that a reasonable official would have
understood that his conduct would violate the right.” Patterson v. Burns,
670 F.Supp.2d 837, 847 (S.D. Ind. 2009), citing Saucier v. Katz, 533
U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. 223. The
Court may, in its discretion, address the second prong of the test first.
Pearson, 555 U.S. at 242.
Questions of fact remain whether Defendants’ conduct violated
Plaintiff’s constitutional rights. On the second prong of qualified
immunity, this Court finds that in 2008, the law was clearly established
that a reasonable person would have known that an employee’s
Page 38 of 41
communications with a State’s Attorney about pending criminal charges
would be entitled to constitutional protection. It is clearly established
that “members of the public have a right of access to criminal proceedings
secured by the First Amendment.” Tennessee v. Lane, 541 U.S. 509, 523
(2004). This would include commenting on how criminal charges are
handled. See Bourque, 2007 WL 1575250, at *7 (finding that the
plaintiff’s opinion on how assault charges should be handled was a matter
of public concern and noting it was well-settled that members of the
public have a right of access to criminal proceedings).
Moreover, more than 40 years have passed since Pickering was
decided, and courts have consistently held that the First Amendment
protects employees from being retaliated against for exercising their right
to speech. As noted above, Defendants provided no justification for why
they would have been entitled to reprimand Plaintiff for speaking to the
State’s Attorney on a matter of public concern (of course, Defendants
likely did not provide such justification because Defendants contend that
they did not reprimand Plaintiff for speaking to the State’s Attorney).
Page 39 of 41
Given the fact-intensive nature of the Pickering balancing test6, and
Defendants’ failure to adequately address it, this Court cannot find
Defendants are entitled to qualified immunity at this time. See, e.g.,
Rohr v. Nehls, 2006 WL 2927657, at *8 (E.D. Wis. 2006) (noting that
the “fact-intensive nature of the Pickering balance often muddies the
contours of what constitutes established law”); Glass, 2 F.3d at 745
(noting that because a question of material fact remained regarding why
the defendants’ reprimanded the plaintiff, qualified immunity could not
be decided).
V. CONCLUSION
For the reasons stated, Defendants’ Motion for Summary Judgment
(d/e 17) is GRANTED IN PART AND DENIED IN PART. Defendants
Randle, Walker, and Stafford are entitled to summary judgment on
Count I, and all the Defendants are entitled to summary judgment on
Count II. The official capacity claims against Defendants Hodge, Ryker
and Hess are DISMISSED. Count I remains pending against Defendants
6
This Court notes, however, that the issue is ultimately a question of law.
Page 40 of 41
Hodge, Ryker, and Hess in their individual capacities. This matter
remains scheduled for a final pretrial conference on December 12, 2011
at 2:30 p.m.
ENTER: November 15, 2011
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 41 of 41
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?