Sneed v. City Of Harvey
Filing
18
MEMORANDUM OPINION Signed by the Honorable John F. Grady on December 19, 2013. Mailed notice(cdh, )
11-6616.132-RSK
December 19, 2013
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANDRE SNEED,
)
)
Plaintiff,
)
)
v.
)
)
)
CITY OF HARVEY, a municipal
)
corporation, ERIC KELLOGG,
)
individually and as Mayor of the
)
City of Harvey, BETTIE LEWIS,
)
individually and as Corporation
)
Counsel, DENARD EAVES,
)
individually and as Chief of
)
Police, LAVANDUS KIRKWOOD,
)
individually and as Internal
)
Affairs Investigator, CAMERON
)
FORBES, individually and as
)
Commander of Patrol, SANDRA
)
ALVARADO, individually and as
)
Secretary to the Chief, and
)
MARCUS PATTERSON, individually and )
as Former Commander of Harvey
)
Police,
)
)
Defendants.
)
No. 11 C 6616
No. 11 C 7082
(Consolidated Cases)
MEMORANDUM OPINION
Before
judgment.
the
court
For
the
is
the
reasons
defendants’
explained
motion
below,
we
for
summary
grant
the
defendants’ motion in its entirety.
BACKGROUND
Pro se plaintiff Andre Sneed, a former City of Harvey police
officer, has filed a sprawling ten-count complaint against the City
of Harvey, its mayor, its corporation counsel, and various members
- 2 -
of its police department. Sneed’s contentious tenure at the Harvey
Police Department (“HPD”) began in May 2007 when he joined the
department and was assigned to its Special Operations Unit (“SPU”),
a division responsible for investigating gang and drug crimes.
(See Defs.’ Local Rule 56.1 Stmt. of Undisputed Material Facts
(“Defs.’ Stmt.”) ¶ 4.)1
HPD
police
officer
Sneed claims that in 2008 he and former
Archie
Stallworth
conducted
a
covert
investigation of an alleged drug trafficker named Carlos Vargas.
(See
id.)
Vargas
was
actually
an
undercover
FBI
agent
and
Stallworth was tried and convicted for agreeing to provide off-duty
security
for
transaction.
what
Stallworth
(See
id.
at
¶
believed
6);
see
to
also
be
a
large
United
drug
States
v.
Stallworth, 656 F.3d 721 (7th Cir. 2011) (affirming our denial of
Stallworth’s motion for a new trial).2
that
it
was
all
just
a
Stallworth argued at trial
misunderstanding.
He
was
actually
conducting his own sting of Vargas, and in support of that defense
he relied on a report that Sneed had submitted to Commander Michael
Neal in or around May 2008.
See Stallworth, 656 F.3d at 725.
1/
Sneed asks us to deny the defendants’ motion for summary judgment
because the defendants’ Rule 56.1 statement routinely and improperly recites
multiple facts within the same numbered paragraph. (See Sneed Resp. at 5-6.)
We agree with Sneed that some paragraphs violate Local Rule 56.1. (See, e.g.,
Defs.’ Stmt. ¶¶ 5-6, 13, 40, 52, 59, 63-64, 66.) On the other hand, denying the
defendants’ motion outright on that basis would only prolong an already lengthy
case.
If we suspect that Sneed has failed to respond to a particular fact
through oversight, we will construe his silence as a denial. So, Sneed will not
be prejudiced by the defendants’ violations of Local Rule 56.1.
2/
By coincidence, Sneed’s civil suit was randomly assigned to the same
judge that conducted Stallworth’s criminal trial.
- 3 -
Sneed
contends
that
the
report
was
“related”
to
the
Vargas
investigation, (see Pl.’s Resp. to Defs.’ Stmt. ¶ 5), but the
original report only generically described a drug-trafficking
investigation without disclosing Vargas’s role.
656
F.3d
at
connection
725.3
with
After
the
the
sting,
FBI
See Stallworth,
interviewed
Stallworth
Stallworth
prepared
a
in
two-page
memorandum describing his purported investigation and attached it
to Sneed’s report.
Id.
Sneed then logged the falsified report
into the HPD’s evidence room — contrary to department protocol —
and Stallworth later subpoenaed it to bolster his alibi. Id.
This
ruse was the basis for Stallworth’s conviction for falsifying a
police report to impede an investigation.
§ 1519.
Id.; see also 18 U.S.C.
Sneed was never charged with any crime and he was not
called to testify at Stallworth’s trial.
Sneed contends that he
would have offered to testify that Stallworth was innocent, but
defendant Denard Eaves — Harvey’s Chief of Police — told him to
“keep [his] mouth shut.”
(Defs.’ Stmt. ¶ 6.)4
After Stallworth
was arrested in November 2008, the HPD disbanded the SOU and
3/
Indeed, Neal testified at Stallworth’s trial that Sneed told him that
he did not want Neal to file the report. It sat in Neal’s desk for several
months until Sneed asked him to file it after Stallworth’s arrest.
4/
Stallworth sought a new trial based on Sneed’s allegation that Eaves
ordered him not to testify at Stallworth’s trial. We denied his motion. See
United States v. Stallworth, No. 08 CR 948, 2012 WL 5381259, *6 (N.D. Ill. Oct.
31, 2012); see also id. at *3 (Testimony by Sneed that he and Stallworth had been
working together on a sting operation directed at Vargas, that Stallworth's
two-page addition had been clipped to Sneed's initial report on or shortly after
the events of August 11, 2008, and that Eaves had threatened Sneed with dismissal
or suspension if he testified to that effect, would not have been credible and
therefore would not have had a possibility of resulting in an acquittal.”).
- 4 -
reassigned Sneed to another division.
(Id. at ¶ 7; see also Sneed
Dep., attached as Ex. B to Defs.’ Stmt., at 24 (stating that he was
transferred to the Patrol Division).)5
The parties appear to agree
that Sneed was placed on administrative leave shortly after his
reassignment.
The defendants contend that Sneed was placed on
leave pending an investigation of the SOU, but the evidence they
cite does not support that assertion.
(See Pl.’s Resp. to Def.’s
Stmt. ¶ 7.)6
Sneed believes he was placed on administrative leave
because
“[s]poke
he
out
about
subordinates [i.e., Stallworth].”
[Eaves]
not
supporting
his
(Sneed Dep. at 119-20; see also
id. at 107-08.)
It appears that Sneed returned to work very briefly — a few
weeks at most — before he was placed on medical leave in January
2009 for a shoulder injury he claimed he received after falling at
police headquarters.
(See Pl.’s Resp. to Defs.’ Stmt. ¶ 8; see
also Sneed Dep. at 155-56.)
Approximately four months later, on
April 21, 2009, Sneed’s psychiatrist Dr. Rian Rowles declared Sneed
unfit for duty because he was suffering Post-Traumatic Stress
5/
Sneed testified that he believed that two officers remained in the SOU,
but this was just speculation based upon the fact that they continued to report
to work in plain clothes. (See Sneed Dep. at 18-19, 27-28.)
6/
The defendants cite Eaves’s affidavit, but it does not mention Sneed’s
administrative leave. (See Defs.’ Stmt. ¶ 7; Eaves Aff., attached as Ex. C to
Defs.’ Stmt.)
And as Sneed points out, Eaves appeared to testify at his
deposition that he could not recall why Sneed was placed on administrative leave.
(See Eaves Dep., attached as Section 7 to Pl.’s Resp. to Defs.' Stmt., at 249.)
Sneed maintains that he was never told why he was placed on leave. (See Sneed
Dep. at 113-16.)
- 5 -
(See Defs.’ Stmt. ¶ 8.)7
Disorder (“PTSD”).
On April 1, 2010,
Sneed filed a “Charge of Discrimination” with the EEOC claiming
that the City of Harvey had denied him an unspecified “reasonable
accommodation.”
(See Defs.’ Stmt. ¶ 28; see also Charge of
Discrimination, dated Apr. 1, 2010, Supp. to Group Ex. N to Defs.’
Stmt.)8
In a letter dated April 21, 2010, Dr. Rowles reported that
Sneed had suffered “significant paranoia (psychotic episode)”
immediately after undergoing shoulder surgery in August 2009.
(Defs.’ Stmt. ¶ 9; see also Letter of Rowles, dated Apr. 21, 2010,
attached as part of Group Ex. N to Defs.’ Stmt., at 1.)
Rowles
“recommended a work restriction of desk duty and midnight shift”
because the “symptoms have not fully resolved.”
(See Defs.’ Stmt.
¶ 9.)
At that point, Sneed had been on medical leave for a full
year.
According to the defendants, Sneed remained on paid medical
leave because there were no midnight-shift, light-duty assignments
available at that time.
(Id.)
In an affidavit attached to his
response, Sneed contends that he observed two police officers with
light duty assignments — Henry Harris and Richard Jones — working
in the HPD’s radio room in addition to two regularly assigned
radio-room operators.
(See Sneed Aff., attached as Ex. Section 9
7/
Although the parties do not discuss the origins of Sneed’s PTSD in
their Rule 56.1 statements, Sneed apparently claims that it stems from his
involvement in multiple on-duty incidents involving gun fire.
(See Op. and
Award, In the matter of Arbitration between City of Harvey and Illinois Council
of Police, attached as Ex. H to Defs.’ Stmt., at 7 n.27.)
8/
Counsel for the defendants provided a copy of Sneed’s April 2010 EEOC
charge after the court notified him that it had been omitted from group exhibit
N.
- 6 -
to Pl.’s Resp. to Defs.’ Stmt., ¶ 2.)
According to Sneed, he
observed these officers at some unspecified time between May 2007
and October 2011.
He does not provide any other context for
(Id.)
his observations.
On April 23, 2010, while still on paid medical leave, Sneed
followed Eaves with a video camera to a bowling alley in Dolton,
Illinois.
(Defs.’ Stmt. ¶ 10.)
After Eaves drove away from the
bowling alley Sneed called the Dolton police, claiming that Eaves
was intoxicated.
(Id.)
Eaves was detained by a Dolton police
officer, escorted to the Dolton police station, and then released
without being charged.
(Id.)
Sneed standing outside.
As he exited the station, Eaves saw
(Id.)
Eaves admits calling Sneed a
“psycho” after learning that it was Sneed who had called the
police.
(Id.)
The defendants have included in their summary
judgment materials a memorandum that Sneed addressed to the HPD’s
Internal Affairs Department (“IAD”) describing the Dolton incident
and requesting an investigation.
(See Memo, dated Apr. 30, 2010,
attached as part of Group Ex. 1 to Aff. of Bettie Lewis (“Lewis
Aff.”), attached as Ex. G to Defs.’ Stmt.)
Sneed asked that the
investigation remain confidential because he feared retaliation “by
Chief Eaves . . . or someone acting under his authority.”
(Id.)
Sneed contends that in June 2010 an individual identified as
Detective Escalante refused to let him into police headquarters to
pick up his check stub.
(See Defs.’ Stmt. ¶ 36; see also Sneed
- 7 -
Dep. at 225-29.)
He alleges that defendant Marcus Patterson did
not allow him to file a sworn complaint against Escalante in
retaliation for the Dolton incident.
Around
this
same
time
Sneed
(See Defs.’ Stmt. ¶ 36.)
contacted
the
City
of
Harvey’s
corporation counsel, defendant Bettie Lewis, to complain about
misconduct by Eaves and other Harvey police officers.
(Id. at ¶
11; see also Aff. of Bettie Lewis (“Lewis Aff.”), attached as Ex.
G to Defs.’ Stmt., at Group Ex. 1 (correspondence indicating that
Sneed complained about Eaves to Lewis sometime before August
2010.).)
In response to Sneed’s allegations, Lewis retained
outside counsel to investigate.
(See Defs.’ Stmt. ¶ 12.)9
Citing
correspondence between the City’s outside counsel and Sneed’s
attorney, the defendants contend that Sneed refused to cooperate
with the investigation. (See id. at ¶¶ 11-12.) The correspondence
indicates that someone (presumably Sneed) had given the City
“various photographs depicting a number of compact discs (CDs)
purporting to obtain [sic] surveillance of various persons employed
by the City.”
(See Letter from J. Wilson to P. Walsh, dated Aug.
9, 2010, attached as part of Group Ex. 1 to Lewis Aff.), attached
as Ex. G to Defs.’ Stmt.)
The City’s attorney asked Sneed’s
attorney for unedited copies of the “surveillance material.” (Id.)
It is apparent from the materials that the defendants have filed
9/
The defendants contend that outside counsel independently investigated
Sneed’s claims. (See Defs.’ Stmt. ¶ 12.) Sneed believes that the attorney that
the City retained was not truly independent. (See Pl.’s Resp. to Defs.’ Stmt.
¶ 12.) The parties’ dispute is not material to Sneed’s claims in this case.
- 8 -
that we do not have all the relevant correspondence between the
parties.
that
From the letters that they have provided, we understand
Sneed’s
attorney
was
retained
primarily
(and
perhaps
exclusively) to represent Sneed in connection with claims arising
from the Dolton incident.
(See Letter from J. Wilson to P. Walsh,
dated Aug. 18, 2010, attached as part of Group Ex. 1 to Lewis Aff.;
Letter from P. Walsh to J. Wilson, dated Aug. 22, 2010, attached as
part of Group Ex. 1 to Lewis Aff.)
And he viewed counsel’s demands
for “surveillance material” to be beyond the legitimate scope of an
investigation of Eaves’s conduct.
(See Letter from P. Walsh to J.
Wilson, dated Aug. 22, 2010, at 1 (“Our dealings began under the
auspice of an investigation of Denard Eaves commissioned by the
City of Harvey but has devolved into an investigation of my
client.”).)
The City’s outside counsel reported to Lewis that he
was closing the investigation as “inconclusive,” citing Sneed’s
attorney’s failure to provide the requested surveillance materials.
(See Letter from J. Wilson to B. Lewis, dated Sept. 27, 2010,
attached as part of Group Ex. 1 to Lewis Aff.)
On September 3, 2010, Sneed filed another charge with the EEOC
renewing his failure-to-accommodate allegation and claiming that he
had been denied his uniform allowance and a union-negotiated pay
raise in retaliation for his previous charge.
28.)
(See Defs.’ Stmt. ¶
On December 6, 2010, Sneed sued the City of Harvey alleging
that he had been unfairly passed over for promotion in favor of
less qualified candidates.
(See id.; see also Compl., Sneed v.
- 9 -
City of Harvey, No. 20106004271 (Cir. Ct. Ill.), attached as part
of Group Ex. J to Defs.’ Stmt.)
Sneed contends that in January
2011 he reported to the IAD that HPD officers were improperly
performing,
and
simultaneously.
receiving
compensation
for,
multiple
(See Pl.’s Resp. to Defs.’ Mem. ¶ 11.)
jobs
He cites
a memorandum addressed to “Chief Denard Eaves/Internal Affairs
Division”
in
which
he
accused
unidentified
“Harvey
Police
Officials” of working security details for area schools during
times when they were supposed to be working for the department.
(See Memo addressed to Eaves/IAD, dated Jan. 21, 2011, attached as
part of Section 11 (Group Ex.) to Pl.’s Resp. to Defs.’ Stmt.)
He
also cites time records that he obtained in discovery in this case
that he says support his claim that one officer — Roy Wells —
purported to work in multiple locations simultaneously.
(See Time
Records, attached as part of Section 11 (Group Exhibit) to Pl.’s
Resp. to Defs.’ Stmt.)10
Sneed returned to active duty in March 2011.
Stmt. ¶ 13.)
work
with
(See Defs.’
He was assigned to HPD’s Patrol Division and asked to
another
responsibilities.
officer
(See id.)
to
become
familiar
with
his
new
Defendant Lavandus Kirkwood was
assigned to help Sneed, but his orientation ended after one day
because he accused Kirkwood of violating the officers’ collective
10/
Sneed’s unverified complaint — which he also cites — cannot be used to
defeat summary judgment. See Sparing v. Village of Olympia Fields, 266 F.3d 684,
692 (7th Cir. 2001) (“At summary judgment, Sparing had an obligation to come
forward with evidence to support his claim and could not merely rest on the
allegations in his complaint.”).
- 10 -
bargaining agreement (“CBA”). (Id.) The CBA provides that, before
being required to submit to a performance evaluation, the officer
must
be
given
the
opportunity
to
meet
with
an
“appropriate
supervisor” and to inspect the evaluation document.
(See CBA,
attached as part of Section 13 to Pl.’s Resp. to Defs.’ Stmt., §
7.3.)
The defendants admit that Kirkwood filled out evaluation
forms during Sneed’s “orientation,” but they contend that he did so
only because those forms provide a basic outline of patrol matters.
(See Defs.’ Stmt. ¶ 13.) Sneed contends that Kirkwood held himself
out to be Sneed’s “Field Training Officer” (“FTO”); the defendants
contend — without dispute — that he was not Sneed’s FTO.
(See id.)
The significance of the “FTO” designation is unclear, but it is
undisputed
that
employment status.
Kirkwood’s
ratings
did
not
affect
Sneed’s
(Id.)
On March 30, 2011, Sneed’s attorney filed a lawsuit on his
behalf against Eaves and others alleging constitutional violations
stemming from the Dolton incident.
(See Defs.’ Stmt. ¶ 11); see
also Sneed v. Fox, Case No. 11-CV-1923 (N.D. Ill.).
Shortly
thereafter, Sneed complained that he was receiving death threats at
his home, which he believed were instigated by Eaves in retaliation
for the Dolton incident.
(Defs.’ Stmt. ¶ 14; see also Internal
Memo from Sneed to Eaves, dated Mar. 29, 2011, attached as part of
Group Ex. N to Defs.’ Stmt.)
In a series of memoranda addressed to
individuals within and outside the HPD (including the Mayor of
- 11 -
Harvey, defendant Eric Kellogg), Sneed accused Eaves of corruption
and incompetence and demanded to be transferred outside department
headquarters for his protection.
(See generally Group Ex. N to
Defs.’ Stmt. (containing seven such memoranda dated between March
28, 2011 and April 11, 2011); see also Memo re “Request for
Protection,” dated Mar. 28, 2011, at 2 (“I am in fear of my life
and in fear of being the victim of some internal plot by Chief
Eaves and Conspirators to either harm me or terminate me.”).)11
Sneed contends that in response to one such memorandum, defendant
officer Cameron Forbes ordered Sneed to accompany him to the HPD’s
Roll Call Room to meet with Commander Roy Wells.
(Defs.’ Stmt. ¶
15; see also Memo from Sneed to Forbes and Eaves, dated Apr. 2,
2011, attached as part of Group Ex. N to Defs.’ Stmt.)
Sneed
claims that he was “unlawfully confined” to the room when he
attempted to leave to call his union representative. (Defs.’ Stmt.
¶ 15.)
to
the
When Wells arrived, he told Sneed that he was not confined
Roll
Call
Room
and
that
Wells
would
speak
with
him
“momentarily.” (Id. at ¶ 16; see also Internal Memo, dated Apr. 2,
2011, attached as part of Group Ex. N to Defs.’ Stmt. (report
authored by Sneed stating that Wells told him “he was not confined
to the squad room nor did [he] have to remain in the squad room and
to allow Commander Wells a few minutes to get dressed and he would
11/
The parties have not cited evidence indicating when (or even if) the
defendants received these memoranda.
For purposes of this opinion, we will
assume that the defendants received Sneed’s memoranda on or around the dates
indicated therein.
- 12 -
speak with [Sneed] momentarily”) (all caps removed).)
Sneed later
submitted a FOIA request for any video footage that the security
camera in the Roll Call Room may have captured to prove his claim
that
he
was
wrongfully
detained.
(Defs.’
Stmt.
¶
16.)
Approximately a week after this incident in the Roll Call Room,
Sneed
complained
that
Eaves
and
other
HPD
officers
gave
preferential treatment to a well-connected person that Sneed had
arrested for a minor traffic violation.
(See Memo from Sneed to
Eaves, Lewis, Kellogg, and IAD, dated Apr. 11, 2011, attached as
part of Group Ex. N to Defs.’ Stmt., at 1 (accusing Eaves and
another officer of nepotism and corruption).) Sneed stated that he
believe that the incident was “another retaliatory act.”
(Id. at
2.)
On May 23, 2011, Sneed received a response to his FOIA request
informing
him
that
there
inoperable equipment.”
was
no
footage
(Defs.’ Stmt. ¶ 17.)
available
“due
to
Two days later, on
May 25, 2011, Sneed went to Forbes’s office immediately adjacent to
the Roll Call Room.
(Id. at ¶ 17.)
grievance form, which Forbes accepted.
He gave Forbes a union
(Id.)
But Forbes refused
to sign a receipt acknowledging that he had received the grievance.
(Id.)12
Sneed then walked to the adjacent office occupied by
Sergeant John Rizzi and, standing two or three feet from the
12/
The defendants contend that Sneed had prepared the receipt himself.
(See Defs.’ Stmt. ¶ 18.) Sneed contends that the receipt is part of the standard
grievance form. (See Pl.’s Resp. to Defs.’ Stmt. ¶ 18.)
- 13 -
threshold of the office, asked Rizzi to act as Sneed’s witness that
Forbes would not sign the receipt. (Id.) Meanwhile, Forbes exited
his office, passed Sneed without touching him, entered Rizzi’s
office, and then closed the door behind him.
(Id.)
A videotape of
the incident shows that Sneed stepped forward across the threshold
with his right arm held out, possibly to stop the door from
closing.
(See Surveillance Video, attached as Ex. M to Defs.’
Stmt., at approx. 3:14 p.m. to 3:15 p.m.)13 Sneed then makes a move
to walk away as the door closes behind him, not touching any part
of his body.
(Id.) He collects his belongings and leaves the Roll
Call Room without displaying any visible signs of pain or distress.
(Id.)
Sneed drafted a memorandum that same day addressed to
Sergeant Kevin Ramsey describing the incident:
Commander Forbes angrily and very very forcefully shoved
to [sic] door at [Sneed] intentionally attempting to
strike [Sneed] with it.
[Sneed] was able to put his
hands, arms, and body in a position to stop the door from
striking [him] in his facial area.
Commander Forbes
after realizing [Sneed] had blocked the door then without
provocation stormed back to the door from within Sgt.
Rizzi’s office and for the second time violently hurled
the door in [Sneed’s] direction and [he] was able to miss
getting hit by the door as it slammed extremely loud and
violently shaking the entire frame of the door . . . .
[Sneed] then sought medical treatment at both the McGrath
Clinic and Ingalls Hospital Emergency room for soreness
in surgically repaired left shoulder. [Sneed] was advised
that it is common to feel pain and soreness the next day
by taking the direct force of the door in hands, arms,
and shoulders in an effort to stop from being hit by it.
[Sneed will] pursue criminal charges against Commander
13/
The videotape does not show whether or not Sneed made contact with the
door as he reached across the threshold.
- 14 -
Forbes for intentionally striking him with the door and
attempting to do it again.
(See Internal Memo, dated May 25, 2011, attached as Employer’s Ex.
1 to Trans. of Arbitration Proceedings (“Arb. Trans.”), dated Sept.
14,
2013,
attached
as
Ex.
D
to
Defs.’
Stmt.;
see
also
“Employee/Supervisor First Report of Injury,” dated May 25, 2011,
attached as Ex. 4 to Arb. Trans. (stating that Forbes “attempted to
slam office door on me injuring surgically repaired shoulder”).)
Sneed later filed a police incident report accusing Forbes of
battery in which he claimed that he put “both of his hands up to
stop the door, as it began to close.”
(See Harvey Police Persons
Incident Report, attached as Ex. 2 to Arb. Trans.)
He also filed
a worker’s compensation claim stating that a “door was slammed shut
onto Petitioner’s outstretched arms.”
(See Worker’s Compensation
App., dated June 1, 2011, attached as Ex. 3 to Arb. Trans., at 1.)
The IAD opened an investigation of Sneed’s allegations and
assigned Kirkwood to conduct it.
(See Defs.’ Stmt. ¶ 21.)
Sneed
rebuffed Kirkwood’s attempts to interview him because (1) Sneed
wanted an attorney present; and (2) his thinking was impaired by
prescription medication.
(See id.; see also Pl.’s Resp. to Defs.’
Stmt. ¶ 21.) Based on the videotape, Kirkwood concluded that Sneed
had lied about the incident in his various reports and the HPD
scheduled
terminated.
a
hearing
to
determine
whether
(See Defs.’ Stmt. ¶ 23.)
Sneed
should
be
Three days before the
scheduled hearing, Sneed sent a letter to Lewis accusing her of
- 15 -
numerous legal and ethical violations and accusing Kirkwood of
bias.
(See Letter from Sneed to Lewis, dated Sept. 19, 2011,
attached as Ex. 2 to Lewis Aff.)
On September 21, 2011 — the day
before the scheduled hearing — Sneed filed an emergency motion in
this court alleging several procedural defects.
TRO, Dkt. 1.)
(See Emergency
We denied Sneed’s request to enjoin the hearing,
(see Minute Entry, dated Sept. 22, 2011, Dkt. 9), although it was
apparently rescheduled to October 10, 2011.
24.)
(See Defs.’ Stmt. ¶
The hearing resulted in Sneed’s termination on the stated
ground that he had falsified reports about his confrontation with
Forbes.
(See id.)
An arbitrator later upheld that decision,
concluding that “Sneed’s reports and allegations against Commander
Forbes
and
his
filing
of
workers’
compensation
contain
such
inaccurate and incorrect versions of what occurred, that, at a
minimum, [his] conduct certainly amounted to unbecoming conduct in
violation of the City’s rule.”
(Op. and Award, In the matter of
Arbitration between City of Harvey and Illinois Council of Police,
at 11.)
Sneed’s
ten-count
complaint
alleges:
(1)
failure-to-
accommodate and retaliation in violation of the Americans With
Disabilities Act (“ADA”) (Count I); (2) a § 1983 claim based upon
the same conduct underlying Sneed’s ADA claim (Count II); (3) a
Monell claim based upon an alleged practice of discriminating
against disabled police officers (Count III); (4) First Amendment
- 16 -
retaliation (Count IV); (5) state-law retaliatory discharge (Count
V); (6) a § 1985 claim alleging a conspiracy to deny Sneed equal
protection (Count VI); (7) a § 1983 claim alleging retaliatory
discharge
(Count
VII);
(8)
“Neglect
to
Prevent
Civil
Rights
Violation” (Count VIII); (9) assault and battery (Count IX); and
(10) indemnification (Count X).
The defendants have moved for
summary judgment on all of Sneed’s claims.14
DISCUSSION
A.
Legal Standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
In considering such a motion, the court construes the
evidence and all inferences that reasonably can be drawn therefrom
in the light most favorable to the nonmoving party.
See Pitasi v.
Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). “The court
need consider only the cited materials, but it may consider other
materials in the record.”
Fed. R. Civ. P. 56(c)(3).
judgment should be denied if the dispute is ‘genuine’:
“Summary
‘if the
evidence is such that a reasonable jury could return a verdict for
14/
On April 30, 2013, Sneed filed a motion to compel certain discovery
responses without noticing the motion for hearing. The defendants responded to
the motion with a memorandum indicating that they had provided everything that
Sneed sought in his motion. When we heard the defendants’ motion for summary
judgment on June 5, 2013, Sneed did not mention his motion to compel or the
defendants’ response. Accordingly, Sneed’s motion to compel [80] is denied as
moot.
- 17 -
the nonmoving party.’”
Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d
1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
The court will enter summary
judgment against a party who does not “come forward with evidence
that would reasonably permit the finder of fact to find in [its]
favor on a material question.” McGrath v. Gillis, 44 F.3d 567, 569
(7th Cir. 1995).15
B.
Sneed’s ADA Claims
1.
Failure to Accommodate (Count I)
The ADA requires employers to make “reasonable accommodations
to the known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant or
employee,
unless
[the
employer]
can
demonstrate
that
the
accommodation would impose an undue hardship on the operation of
the business of [the employer].” 42 U.S.C. § 12112(b)(5)(A).
“In
order to establish a prima facie case of failure to accommodate
under the ADA, a plaintiff must show that: (1) she is a qualified
individual with a disability; (2) the employer was aware of her
disability; and (3) the employer failed to reasonably accommodate
the disability.” Cloe v. City of Indianapolis, 712 F.3d 1171, 1176
(7th Cir. 2013) (citation and internal quotation marks omitted).16
15/
The defendants served Sneed with a plain-language summary of these
requirements pursuant to Local Rule 56.2 (“Notice to Pro Se Litigants Opposing
Summary Judgment”).
16/
We will assume for purposes of this discussion that Sneed's PTSD
rendered him “disabled” as the ADA defines that term.
- 18 -
“An employer may be obligated to reassign a disabled employee, but
only to vacant positions; an employer is not required to ‘bump’
other employees to create a vacancy so as to be able to reassign
the disabled employee.
‘new’
position
Airlines,
Nor is an employer obligated to create a
for
Inc.,
the
disabled
95
F.3d
492,
499
employee.”
(7th
Gile
Cir.
1996).
v.
United
Sneed’s
psychiatrist “recommended a work restriction of desk duty and
midnight shift” because Sneed was still exhibiting paranoia after
the “psychotic episode” he experienced after shoulder surgery.
It
is undisputed that only one position satisfied those two criteria:
a late-night shift in the HPD’s Radio Room.
59.)
(See Defs.’ Stmt. ¶
Steven Porter, the individual responsible for making light-
duty assignments in 2010, states that the Radio Room was fullystaffed at that time.
Defs.’ Stmt.)
(See Porter Aff., attached as Ex. I to
Sneed concedes that the Radio Room is operated by
two “regularly assigned” dispatchers, but states that he saw
additional officers working in the Radio Room at some point between
May 2007 and October 2011.
(See Sneed Aff. ¶ 2.)17
Sneed’s
assertion — which we accept as true for purposes of the defendants’
motion
17/
—
suggests
a
possible
avenue
for
investigation,
but
The defendants contend that Sneed’s affidavit contradicts his
deposition testimony. (See Defs.’ Reply at 13-14.) The defendants’ attorney
asked Sneed if he knew whether defendant Patterson had approved any light-duty
assignments. (See Sneed Dep. at 223-224.) Sneed said “no.” (Id. at 225.) The
fact that Sneed could not identify any instance where Patterson approved an
accommodation does not contradict his testimony that on two occasions he saw more
than two officers working in the Radio Room.
- 19 -
discovery has closed.
By itself, this evidence is too vague and
general to create a material dispute of fact.
We do not know
anything about the circumstances surrounding those assignments.
Sneed devotes only one paragraph of his response brief to his
failure-to-accommodate claim and does not cite any relevant legal
authorities. (See Pl.’s Resp. at 12.)
We conclude that the
defendants are entitled to summary judgment on Sneed’s reasonableaccommodation claim.
2.
ADA Discrimination & Retaliation (Count I)
The ADA protects disabled plaintiffs from discrimination and
from retaliation for asserting their ADA rights.
Dickerson v.
Board of Trustees of Community College Dist. No. 522, 657 F.3d 595,
600-01 (7th Cir. 2011).
A disabled plaintiff — and we will again
assume that Sneed was disabled within the meaning of the ADA — can
prove disability discrimination and retaliation using either a
direct or indirect method of proof.
Id.
Under the direct method,
the plaintiff must offer evidence that his or her disability, or
protected ADA activity, caused an adverse employment action.
at 601.
Id.
Under the indirect method, the plaintiff must “establish
a prima facie case of discrimination by showing that (1) he is
disabled under the ADA [or in the case of retaliation, engaged in
protected
ADA
activity];
(2)
he
was
meeting
his
employer’s
legitimate employment expectations; (3) he suffered an adverse
employment action; and (4) similarly situated employees without a
- 20 -
disability were treated more favorably.”
Id. at 601-02.18
The
burden then shifts to the defendant to articulate a legitimate,
non-discriminatory (or non-retaliatory) reason for the adverse
action.
See id. at 601
If the defendant meets this burden, the
plaintiff must then demonstrate that the defendant’s proffered
reason was pretextual.
See id.
Sneed cites a litany of employment actions that he believes
were discriminatory and/or retaliatory.
In an effort to pare down
his claims, we will first determine which of those actions can
support a claim for discrimination and/or retaliation.
a.
Whether Sneed Suffered Actionable Adverse Employment
Actions.
“An adverse employment action must be ‘materially’ adverse to
be actionable, meaning more than a mere inconvenience or an
alteration of job responsibilities.”
Kersting v. Wal-Mart Stores,
Inc., 250 F.3d 1109, 1115 (7th Cir. 2001) (citations and internal
quotation marks omitted).
Sneed contends that while he was on
medical leave defendant Sandra Alvarado denied him a uniform
allowance, denied him a union-negotiated pay raise, and somehow
interfered with one payroll direct deposit.
Facts ¶ 30.)
(See Defs.’ Stmt. of
Sneed admits that these issues were corrected once
they were brought to Alvarado’s attention.
(See Pl.’s Resp. to
Defs.’ Stmt. ¶ 30; see also Alvarado Aff., attached as Ex. F to
18/
We will again assume that Sneed is disabled.
(See supra n. 14.)
- 21 -
Defs.’ Stmt., ¶ 3.)
He also contends that Alvarado prevented him
from participating in a department-wide survey intended to measure
officer morale.
(See Defs.’ Stmt. ¶ 30.)
Alvarado states that in
June 2010 she distributed the surveys to officers during the first
and second shifts only — Sneed was on medical leave at that time.
(See Alavarado Aff. ¶ 4.)
Furthermore, the survey was abandoned
after HPD officers released a petition stating that they had no
confidence in Eaves.
(See id. (“Due to the petition, it was
determined that completing the survey would be an exercise in
futility.”).)
Sneed quibbles with Alvarado’s affidavit.
Pl.’s Resp. to Defs.’ Stmt. ¶ 62.)
(See
But Sneed’s inability to
participate in an abandoned survey on officer morale is trivial.
See Kersting, 240 F.3d at 1115 (“[N]ot everything that makes an
employee unhappy is an actionable adverse action. Otherwise, minor
and even trivial employment actions that an ... employee did not
like would form the basis of a discrimination suit.”) (citation and
internal quotation marks omitted).
Similarly, Kirkwood’s March
2011 evaluation is not actionable because it is undisputed that it
did not result in any “tangible job consequence.”
Id. at 1118
(statements warning the plaintiff not to discuss his discrimination
claim at work were not actionable).
The same goes for Sneed’s
claim that Eaves undermined a motorist arrest that Sneed made in
April 2011. (See Defs.’ Stmt. ¶ 31.)
- 22 -
Sneed
also
contends
that
detective in 2009 and 2010.
consequence,” but
Eaves
(See id.)
denied
him
promotion to
This is a “tangible job
Sneed’s claim is procedurally barred.
“As a
general rule, a Title VII plaintiff cannot bring claims in a
lawsuit that were not included in her EEOC charge.”
Cheek v.
Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.
2007); see also 42 U.S.C. 12117(a) (ADA provision incorporating
Title VII’s exhaustion requirement).
The test for determining
whether an EEOC charge encompasses the claims in a complaint is
liberal: “all Title VII [and ADA] claims set forth in a complaint
are
cognizable
that
are
like
or
reasonably
related
to
the
allegations of the charge and growing out of such allegations.”
Id.
But “the EEOC charge and the complaint must, at minimum,
describe the same conduct and implicate the same individuals.” Id.
at 501.
Sneed’s April 2010 charge was based solely on his claim
that he did not receive a reasonable accommodation.
His September
2010 EEOC charge implicated Eaves, but it did not mention or allude
to being passed over for promotion to detective.
Cf. id. at 502
(EEOC claim alleging that the plaintiff was required to pay certain
insurance premiums, and male colleagues were not, did not encompass
a claim for discriminatory sales-route assignments).
Even if the
claim was not barred, we agree with the defendants that there is no
evidence supporting Sneed’s allegation that he was not promoted for
a discriminatory or retaliatory reason.
Sneed spent virtually all
- 23 -
of 2009 and 2010 on medical leave.
to
believe
that
he
was
entitled
He has not suggested any reason
to
a
promotion
despite
not
performing any work during the relevant time period, or cited
evidence that any similarly situated employee was promoted to
detective.
The defendants also argue that any claim based upon Sneed’s
termination is untimely. At a hearing before this court on June 6,
2012, defense counsel pointed out that Sneed had a pending EEOC
charge stemming from his termination.
(See Trans. of Proceedings,
dated June 6, 2012, attached as Ex. L to Defs.’ Stmt., at 22-24.)
Counsel suggested that Sneed request a right-to-sue notice so that
he could challenge his termination in this lawsuit.
(Id.)
The
parties appear to agree that Sneed received a right-to-sue notice
on August 16, 2012.
(See Defs.’ Mem. at 13-14; Pl.’s Resp. at 10;
Defs.’ Reply at 3.) The defendants contend that Sneed’s failure to
amend his complaint within 90 days after receiving the notice bars
his ADA claim for wrongful termination.
14); see also
(See Defs.’ Mem. at 13-
42 U.S.C.A. § 2000e-5(f)(1).
Sneed’s amended
complaint does challenge his termination, but on First Amendment
(not disability discrimination or ADA-retaliation) grounds.
Am. Compl. ¶¶ 127-139.)
(See
Neither party has cited a case with
similar facts, nor has either side thoroughly analyzed the issue.
Under the circumstances, we decline to dismiss Sneed’s claim as
untimely.
- 24 -
b.
Whether Sneed’s
Retaliatory
Termination
Was
Discriminatory
or
Sneed has not clearly indicated what method of proof — direct
or indirect — he has elected.
So, we will analyze his claims under
both methods.
(1)
Direct Method.
Sneed can establish a causal link between his disability
and/or his EEOC charges and his termination using either direct or
circumstantial evidence.
See Dickerson, 657 F.3d at 601.
“Direct
evidence requires an admission by the decision maker that his or
her actions were based upon the prohibited animus.” Id.
not cited any direct evidence supporting his claim.
Sneed has
“The type of
circumstantial evidence that a plaintiff may produce to survive
summary judgment includes: (1) suspicious timing; (2) ambiguous
statements or behavior towards other employees in the protected
group; (3) evidence, statistical or otherwise, that similarly
situated employees outside of the protected group systematically
receive better treatment; and (4) evidence that the employer
offered a pretextual reason for an adverse employment action.”
Dickerson, 657 F.3d at 601.
Sneed filed his September 2010 EEOC
charge
months
approximately
seven
before
the
IAD
began
its
investigation, and the investigation was initiated at Sneed’s
request.
So, there is nothing suspicious about the timing of the
investigation or his termination.
Sneed has not cited, nor are we
aware of, any “ambiguous statements or behavior” that might lead a
- 25 -
jury to reasonably question the defendants’ real motives.
Eaves
admits that he called Sneed a “psycho” in April 2010, but he made
this stray comment more than a year before the investigation into
the Forbes incident.
See Petts v. Rockledge Furniture, LLC, 534
F.3d 715, 722 (7th Cir. 2008) (“[I]solated comments that are no
more than ‘stray remarks' in the workplace are insufficient to
establish
that
a
particular
decision
was
motivated
by
discriminatory animus.”) (citation and internal quotation marks
omitted).
Sneed
argues
that
“numerous”
employees received more favorable treatment.
similarly
situated
(Pl.’s Resp. at 11.)
He specifically identifies — albeit obliquely — only two:
and Kirkwood.
(Id.)
Eaves
According to Sneed, Eaves is a similarly
situated employee because he drove his car while intoxicated in
April 2010.
There is no evidence that Eaves was ever charged with
drunk driving, much less convicted.
And even if he had been
convicted, Sneed’s on-duty misconduct and abuse of the HPD’s
grievance process is not substantially similar to an instance of
off-duty misconduct.
See Crawford v. Indiana Harbor Belt R. Co.,
461 F.3d 844, 846 (7th Cir. 2006) (“[M]embers of the comparison
group must be comparable to the plaintiff in all material respects
. . . .”) (emphasis in original). Sneed accuses Kirkwood of “lying
to [a] Cook County Circuit Judge . . . .”
(Pl.’s Resp. at 11.)
This appears to refer to Sneed’s allegation that Kirkwood committed
perjury in his divorce proceeding.
(See Am. Compl. ¶ 78; see also
- 26 -
Sneed Dep. at 157-60 (stating his belief that court records show
that Kirkwood falsely stated in their divorce proceeding that he
did not know his wife’s whereabouts).)
First, Sneed has not cited
any admissible evidence substantiating his claim about Kirkwood’s
conduct.
Second, like his accusations against Eaves, Kirkwood’s
alleged perjury in his divorce proceeding is not substantially
similar
to
Sneed’s
demonstrably
false
accusations
of
battery
against a fellow police officer.
We reject Sneed’s argument that the stated reasons for the
investigation culminating in his termination were pretextual. (See
Pl.’s Resp. at 11.)
“Pretext means a dishonest explanation, a lie
rather than an oddity or an error.”
Bodenstab v. County of Cook,
569 F.3d 651, 657 (7th Cir. 2009).
To establish pretext, Sneed
must “identify such weaknesses, implausibilities, inconsistencies,
or contradictions in the [defendants’] asserted reason that a
reasonable person could find [it] unworthy of credence.”
Coleman
v. Donahoe, 667 F.3d 835, 853 (7th Cir. 2012) (citation and
internal
quotation
marks
omitted).
Sneed
quibbles
with
the
defendants’ assertion that he was “never struck by the door.” (See
Pl.’s Resp. to Defs.’ Stmt. ¶ 23.)
Although the door is not
visible at first in the videotape, (see supra n. 13), one could
infer that Sneed touched it with the outstretched fingers of his
right hand to prevent it from closing.
slam the door “on” Sneed.
But Forbes clearly did not
(Cf. Internal Memo, dated May 25, 2011
- 27 -
(“Commander Forbes angrily and very very forcefully shoved to [sic]
door at [Sneed] intentionally attempting to strike [Sneed] with it.
[Sneed] was able to put his hands, arms, and body in a position to
stop the door from striking [him] in his facial area.).)
The ease
with which Sneed appears to stop the door (if that is what he did),
and the fact that he displays no physical discomfort immediately
after the event, is inconsistent with his allegation that the door
was not “very, very forcefully shoved.”
And in any event, Sneed
caused whatever minor physical contact there may have been — he
stepped forward and reached out across the threshold.
Sneed filed
a false police report accusing a fellow police officer of battery,
and then attempted to obtain worker’s compensation for injuries
allegedly caused by the phantom attack. Sneed contends that Forbes
and Rizzi gave inconsistent accounts of what happened,19 but those
inconsistencies are immaterial.
The videotape clearly contradicts
Sneed’s version of events and proves that his reports were false.
Sneed argues that HPD’s failure to obtain a videotape expert shows
that his pre-termination hearing was a sham.
At most this fact
might suggest that the defendants had made an error, not that they
19/
Sneed points out that Rizzi told Kirkwood during his investigation that
Forbes attempted to close the door twice. (See Pl.’s Resp. to Defs.’ Stmt. ¶ 55;
see also Audio Recording of Rizzi Interview, filed with the court on April 23,
2013 (Dkt. 96).) At the arbitration hearing Rizzi testified that Forbes shut the
door only once. (See Arb. Trans. at 43-44, 55-56.) Rizzi may have changed his
testimony to corroborate Forbes, who consistently maintained that he closed the
The arbitrator’s failure to address the
door only once.
(See id. at 17.)
inconsistency is puzzling (Sneed speculates that the arbitrator did not review
the recordings of Rizzi’s and Forbes’s interviews). But Rizzi’s and Forbes’s
credibility on the number of times the door was closed is irrelevant to the
question of whether Sneed lied about the occurrence.
- 28 -
lied
about
the
true
reasons
Bodenstab, 569 F.3d at 657.
for
Sneed’s
termination.
Cf.
In any event, Sneed has not explained
why he thinks the videotape is unreliable or requires expert
examination. Sneed also argues that the defendants “could not have
honestly believed [he] fabricated his account of the incident when
the medical professional determined he was indeed injured.” (Pl.’s
Resp. at 11.)
Even assuming that Sneed was injured on May 25,
2010, the video shows that he deliberately put himself in harm’s
way.
The stated basis for Sneed’s termination is plausible and
consistent in all material respects.
(2) Indirect Method
The defendants also contend that Sneed cannot establish a
prima facie case of retaliation because he was not meeting his
employer’s
legitimate
employment
expectations.
This
element
overlaps with the issue of pretext,20 and as we just discussed, a
jury could not reasonably conclude that the stated reason for
Sneed’s termination was pretextual.
Nor has Sneed cited evidence
that similarly situated employees were treated more favorably.
(See supra.) So, Sneed’s ADA discrimination and retaliation claims
fail under the indirect method as well.
20/
See Everroad v. Scott Truck Systems, Inc., 604 F.3d 471, 477 (7th Cir.
2010) ("In some cases . . . the issue of satisfactory performance and the
question of pretext overlap."); Bodenstab, 569 F.3d at 657 ("While the question
of pretext arises only after a plaintiff has established a prima facie case of
discrimination
and
the
employer
has
countered
with
a
legitimate
non-discriminatory reason for the adverse action, we can skip over the initial
burden-shifting of the indirect method and focus on the question of pretext.").
- 29 -
3.
Sneed’s § 1983 Claim “Via” the ADA (Count II) and Monell
Claim (Count III)
In Count II, Sneed seeks damages under § 1983 for the City of
Harvey’s alleged “custom, policy and practice [of] discriminat[ing]
against police officers with disabilities and those that filed
charges with the EEOC.”
(Am. Compl. ¶ 111.)
He has also filed a
separate claim, expressly based on Monell v. Dep’t of Soc. Servs.
of City of N.Y., 436 U.S. 658 (1978), alleging the same custom,
policy, and practice (Count III). (See id. at ¶ 114.)21 It appears
that most courts in this district have held that a plaintiff cannot
recover damages under § 1983 for ADA violations.
See Torrence v.
Advanced Home Care, Inc., No. 08–CV–2821, 2009 WL 1444448, *7-8
(N.D. Ill. May 21, 2009) (collecting cases).
We need not reach
that issue because Sneed has not shown that any of the individual
defendants, or anyone else affiliated with the City of Harvey,
violated his rights under the ADA.
basis
to
impose
municipal
(See supra.)
liability
violations can support a § 1983 claim.
even
So, there is no
assuming
that
ADA
See, e.g., Sallenger v.
City of Springfield, Ill., 630 F.3d 499, 505 (7th Cir. 2010)
(“[B]ecause there is no underlying constitutional violation, the
City cannot be liable under Monell.”).
The City of Harvey is
entitled to summary judgment on Counts II and III of Sneed’s
amended complaint.
21/
The distinction between these two claims is unclear.
- 30 -
C.
First Amendment Retaliation (Count IV)
In order to be found liable for a constitutional violation
under § 1983, the plaintiff must show that the defendant caused or
participated in the violation.
Sheik-Abdi v. McClellan, 37 F.3d
1240, 1248 (7th Cir. 1994) (“Section 1983 creates a cause of action
based upon personal liability and predicated upon fault; thus,
liability does not attach unless the individual defendant caused or
participated in a constitutional deprivation.”).
Sneed has sued
Kellogg because, as the Mayor of Harvey, he must have approved or
allowed the constitutional violations that Sneed alleges.
(See
Defs.’ Stmt. ¶ 33.) He accuses Bettie Lewis of influencing Eaves’s
decision to place Sneed on administrative leave in 2008 and to fire
him
in
2011.
But
he
does
not
cite
any
evidence
of
her
participation beyond the fact that she was corporation counsel,
therefore she must have participated in Eaves’s actions.
These
contentions are insufficient to support § 1983 liability.
We
conclude that Kellogg and Lewis are entitled to summary judgment on
Sneed’s First Amendment retaliation claim.
With respect to the other defendants, there is at least some
evidence (sometimes tenuous) that they participated in some action
that
Sneed
considers
retaliatory.
To
prevail
on
his
First
Amendment retaliation claims against any of these defendants, Sneed
must show that: “(1) his speech was constitutionally protected; (2)
he has suffered a deprivation likely to deter free speech; and (3)
- 31 -
his speech was at least a motivating factor in the employer’s
actions.”
Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir.
2012). As a threshold matter, we can eliminate any claims based on
of retaliation that occurred more than two years before Sneed filed
his original complaint on November 28, 2011. See Licari v. City of
Chicago, 298 F.3d 664, 667-68 (7th Cir. 2002) (“A two year statute
of limitations applies to section 1983 claims in Illinois.”).22
1.
Constitutionally Protected Speech
We apply a two-part test to determine whether a public
employee’s speech is protected. See Spiegla v. Hull, 481 F.3d 961,
965 (7th Cir. 2007).
First, we ask whether the employee “spoke as
a citizen on a matter of public concern.”
internal quotation marks omitted).
Id. (citation and
If so, we go on to balance the
employee’s interest in speaking against the employer’s interest “in
promoting effective and efficient public service.”
a.
Id.
Whether Sneed Spoke as a Citizen
The defendants argue that Sneed engaged in at least some of
his allegedly protected speech as an employee, not as a citizen.
(See Defs.’ Mem. at 21-23.)
In Garcetti v. Ceballos, 547 U.S. 410
(2006), a deputy district attorney challenged the accuracy of an
affidavit used to obtain a search warrant.
Id. at 414.
He told
his supervisors about his concerns and recommended that they
22/
This includes any claim based upon Sneed’s administrative leave in
December 2008.
- 32 -
dismiss the underlying criminal case.
Id.
The plaintiff’s
statements upset his superiors and allegedly led to a series of
retaliatory employment actions.
Id. at 414-15.
The Supreme Court
concluded that the plaintiff’s complaints to his supervisors were
not entitled to First Amendment protection because he made them
pursuant to his official duties as a prosecutor.
Id. at 421.
other words, he was speaking as an employee, not as a citizen.
In
Id.
“Garcetti requires a practical inquiry into whether an employee’s
expression was made pursuant to her official obligations, including
both her day-to-day duties and her more general responsibilities.”
Trigillo v. Snyder, 547 F.3d 826, 829 (7th Cir. 2008).
plaintiff
in
Garcetti
“spoke
as
a
prosecutor
The
fulfilling
a
responsibility to advise his supervisor about how best to proceed
with a pending case.”
Garcetti, 547 U.S. at 421.
Similarly, the
plaintiff in Spiegla spoke as an employee “when she reported []
possible misconduct to her superior and sought clarification of a
security policy she felt may have been breached.” See Spiegla, 481
F.3d at 967; see also Wackett v. City of Beaver Dam, Wis., 642 F.3d
578, 581-82 (7th Cir. 2011) (agency supervisor spoke in an official
capacity at agency board meetings); Ogden v. Atterholt, 606 F.3d
355, 358-60 (7th Cir. 2010) (employee was acting in an official
capacity when he drafted an internal memorandum formally requesting
that his supervisor reorganize his department).
- 33 -
Some of Sneed’s speech clearly fell outside the scope of his
official duties.
Sneed was not acting as a police officer when he
filed lawsuits and EEOC complaints against the city.
Also, we
think it is apparent that Sneed was acting as a citizen when he
notified individuals outside the HPD of alleged corruption within
the department.
accusing
Eaves
For example, Sneed’s March 28, 2011 memorandum
of
corruption
has
a
long
list
of
purported
recipients, including Mayor Kellogg, Corporation Counsel Bettie
Lewis, “Deputy Attorney General for Criminal Justice” Mike Hood,
and “States Attorney Office of Special Prosecutions” ASA Lynn
McCarthy.
(See Memo addressed to Kellogg et al., dated Mar. 28,
2011, attached as part of Group Ex. N to Defs.’s Stmt.)
The
memorandum purports to attach “approximately 50 pages of documents
that were made available to [Sneed] from an anonymous unknown
source
that
[he
was]
turning
over
to
the
City
of
Harvey
[illustrating] past practices of unlawful behavior and disciplinary
history of the highest ranking person with the Harvey Police
Department [Eaves].”
(Id.)23
He also claimed to be “aware of some
alleged extrinsic fraud committed by Eaves in lawsuits in which he
was deposed under oath.”
(Id.)
Sneed’s April 11, 2011 memorandum
accusing Eaves of “nepotism” and “corruption” is similar.
(See
Memo from Sneed to Eaves, Lewis, Kellogg, and IAD, dated Apr. 11,
23/
The copy of Sneed’s memorandum that the parties have provided to the
court does not include these exhibits.
- 34 -
2011,
at
1.)
Sneed
was
purporting
to
blow
the
whistle
on
misconduct and corruption in the HPD and he notified Harvey’s mayor
and state prosecuting authorities.
We conclude that he was
speaking as a citizen.
Sneed made other complaints to his immediate superiors, or
else through established channels for airing grievances within the
HPD.
This is some evidence that Sneed was speaking as an employee
and not as a citizen.
Spiegla, 481 F.3d at 967.
See, e.g., Ogden, 606 F.3d at 358-60;
But Sneed is an unusual case.
He took
it upon himself to investigate and publicize misconduct within the
HPD, performing some of these activities during his extended
medical leave of absence. (See, e.g., Memo addressed to Eaves/IAD,
dated Jan. 21, 2011 (accusing HPD officers of impermissibly working
multiple jobs simultaneously).) In a somewhat analogous situation,
our Court of Appeals held that a police officer was acting as an
employee when he investigated and reported misconduct outside his
own unit.
See Vose v. Kliment, 506 F.3d 565, 570 (7th Cir. 2008).
But the Vose Court emphasized the plaintiff’s role as a supervisor.
See id. (“As a supervisor of the narcotics unit, it can hardly be
said that Vose did not have a duty to make sure his unit’s
investigations were not compromised by some outside influence, or
that Vose did not have a duty to coordinate his unit’s work with
other related units in the police department.”).
As far as we can
tell from the record, Sneed was a rank-and-file patrol officer
- 35 -
without any supervisory authority.
11
C
4601,
2012
WL
1985822,
See McGarry v. McClellan, No.
*4
(N.D.
Ill.
June
4,
2012)
(distinguishing cases where the plaintiff exercised supervisory
authority over the matters that he or she criticized or complained
about).
Sneed also served numerous FOIA requests on the HPD.
The
content and timing of those requests are not entirely clear, but
they do indicate that Sneed was acting outside of his general
responsibilities as a patrol officer.
In response to leading
questions, Sneed stated that he reported misconduct in order to
fulfill his duties as a police officer.
(See Defs.’ Stmt. ¶ 61.)
But we do not believe that Sneed’s idiosyncratic beliefs about the
scope of his duties are determinative.
Cf. Vose, 506 F.3d at 569
(“Determining the official duties of a public employee requires a
practical inquiry into what duties the employee is expected to
perform . . . .”) (emphasis added).
We conclude that Sneed spoke
as a citizen when he reported alleged misconduct to Eaves, the IAD,
and others within the police department.
b. Whether Sneed Spoke Out on a Matter of Public Concern
To support his claim for retaliation, Sneed must also identify
speech involving a matter of public concern.
Kristofek v. Village
of Orland Hills, 712 F.3d 979, 984 (7th Cir. 2013) (citation and
internal
quotation
marks
omitted).
We
conclude
that
Sneed
addressed a matter of public concern in his memoranda accusing
Eaves and others of misconduct and corruption. (See Memo addressed
- 36 -
to Eaves/IAD, dated Jan. 21, 2011; Memo addressed to Kellogg et
al., dated Mar. 28, 2011; Memo addressed to Kellogg et al., dated
Apr. 11, 2011); see also Spiegla v. Hull, 371 F.3d 928, 937 (7th
Cir. 2004) (“Recognizing the ‘whistleblower’s’ important role, our
cases
have
consistently
held
that
speech
alleging
government
corruption and malfeasance is of public concern in its substance.”)
(overruled in part by Garcetti as recognized in Spiegla, 481 F.3d
at 965-67) (collecting cases).
A lawsuit may also be a form of
protected speech, see Zorzi v. County of Putnam, 30 F.3d 885, 896
(7th Cir. 1994), but “not every legal gesture — not every legal
pleading — is protected by the First Amendment.” Yatvin v. Madison
Metropolitan School Dist., 840 F.2d 412, 419 (7th Cir. 1988).
Sneed’s April 2010 EEOC charge, which was based upon the HPD’s
failure to make a reasonable accommodation, affected only him. See
Kristofek, 712 F.3d at 986 (“[I]f the objective of the speech — as
determined by content, form, and context — is simply to further a
purely personalized grievance, then the speech does not involve a
matter of public concern.”).
Sneed’s September 2010 EEOC charge
couches his personal grievances in more general terms.
(See EEOC
Charge, dated Sept. 3, 2010, at 2 (referring to the “city’s current
policy and practice of discriminating against disabled officers”).)
But it only describes a series of minor incidents and insults that
Sneed perceived to be retaliation for his initial April 2010 EEOC
charge.
(See id. (stating that he: did not receive his uniform
- 37 -
allowance; did not receive his paycheck on time; was denied
opportunity to participate in the officer morale survey; and was
prevented from accessing the police department’s “rear offices”).)24
The state-court lawsuit that Sneed filed in January 2011 is
similar: he alleges that he was passed over for promotion in favor
of less qualified candidates. (See Compl., Sneed v. City of Harvey,
No. 20106004271.)
This is a purely private concern.
Sneed’s
federal lawsuit, Sneed v. Fox, 11-C-1923, is a somewhat closer
call.
arrested
In his complaint, Sneed
for
reporting
Eaves’s
alleged that he was falsely
dangerous
behavior.
Police
corruption is generally a matter of public concern, but that does
not necessarily mean that Sneed’s complaint is protected by the
First Amendment.
See Smith v. Fruin, 28 F.3d 646, 651 (7th Cir.
1994) (“[T]he fact that an employee speaks up on a topic that may
be deemed one of public import does not automatically render his
remarks on that subject protected.”). The incident that formed the
basis for Sneed’s lawsuit affected only him, and he sought relief
only for himself. (See, e.g., Compl., Sneed v. Fox, Case No. 11-C1923 (N.D. Ill.), Dkt. 1, ¶ 46 (“[A]s a result of FOX and EAVES’
wrongful
seizure,
SNEED
suffered
severe
exacerbation
of
his
Post-Traumatic Stress Disorder and severe emotional distress.”).)
Moreover, he filed the lawsuit almost a year after the incident,
24/
Sneed’s internal complaints about the same conduct are likewise not
entitled to First Amendment protection.
- 38 -
which bolsters our conclusion that he was not acting from a desire
to expose police corruption.
See Gray v. Lacke, 885 F.2d 399, 411
(7th Cir. 1989) (“[O]ur court has repeatedly held that we must look
to the point of the speech to see if the plaintiff addressed a
matter of public or private concern.”).
We conclude that Sneed’s
complaint in Fox is not entitled to First Amendment protection.
Pickering Balancing
c.
Ordinarily, we would now proceed to balance Sneed’s rights
against the government’s interest in “promoting the efficiency of
the public services it performs through its employees.”
Pickering
v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d
811 (1968).
This is a complex and nuanced issue that neither side
has addressed.
We will assume for the sake of this decision that
Sneed’s interests in speaking out on those matters we have held to
have
been
of
public
concern
trumped
the
City’s
interest
in
promoting efficiency.
2.
Whether Sneed Suffered a Deprivation Likely to Deter Free
Speech
“[A] § 1983 case does not require an adverse employment action
within the meaning of the antidiscrimination statutes, such as
Title VII of the Civil Rights Act of 1964.”
941.
Spiegla, 371 F.3d at
Indeed, a campaign of minor harassment may suffice.
e.g., Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).
See,
The test
is whether a person of “ordinary firmness” would be deterred from
exercising his or her First Amendment rights.
See id. at 625.
- 39 -
Sneed has identified several possible deprivations: (1) Kirkwood’s
patrol-officer evaluation; (2) Sneed’s “false arrest” on April 23,
2011; (3) the death threats he claims that he received after filing
his lawsuit against Eaves; and (4) the investigation culminating in
his termination.
We conclude that the first two incidents are too
trivial to support a claim for retaliation. See Massey v. Johnson,
457 F.3d 711, 721 (7th Cir. 2006) (alleged harassment too trivial
to survive summary judgment).
A single evaluation, without any
tangible job consequences or other evidence suggesting that the
experience was distressing,25 would not deter a person of ordinary
firmness from exercising his or her First Amendment rights. As for
Sneed’s false-arrest allegation, his own complaint demonstrates
that the incident was trivial.
Forbes told Sneed to sit and wait
for Commander Wells, who then appeared and told Sneed that he was
free
to
go
momentarily.
as
he
liked
and
that
Wells
would
be
with
him
(See Internal Memo, dated Apr. 2, 2011); see also
Bart, 677 F.2d at 625 (“It would trivialize the First Amendment to
hold that harassment for exercising the right of free speech was
always actionable no matter how unlikely to deter a person of
ordinary firmness from that exercise.”).26
These minor incidents
25/
Sneed has not cited any evidence suggesting that Kirkwood was unfairly
critical, or even that the evaluation was especially negative.
26/
The claim also fails because Sneed has not explained why Kirkwood and
Forbes — who at that point had not been implicated in any of Sneed’s complaints
— would have been motivated to retaliate against him. See Massey, 457 F.3d at
721 (“Ms. Mills also alleges that her supervisor assigned her additional tasks,
told her to increase her productivity and, on one occasion, reprimanded her for
failing to order certain supplies. Yet, these instances of ‘harassment,’ even if
- 40 -
became the subject of formal complaints, and later a federal
lawsuit alleging constitutional violations, only because of Sneed’s
litigiousness. Cf. Bart, 677 F.2d at 625 (alleged deprivations are
evaluated according to an objective standard).
With respect to
the death threats, Sneed merely speculates that they were made by,
or ordered by, Eaves.
judgment.
This is insufficient to defeat summary
See McDonald v. Village of Winnetka, 371 F.3d 992, 1001
(7th Cir. 2004) (“Inferences that are supported by only speculation
or
conjecture
will
not
defeat
a
summary
judgment
motion.”).
However, employment termination is a deprivation likely to deter
speech, see, e.g., Hobgood v. Illinois Gaming Bd., 731 F.3d 635,
643 (7th Cir. 2013), so we will move on to the next stage of the
inquiry.
3.
Whether Sneed’s Speech was at Least a Motivating Factor
in the Decision to Investigate and Terminate Sneed
With respect to causation, Sneed’s First Amendment retaliation
claim largely mirrors his ADA retaliation claim.
(See infra.)
Sneed can prove his claim using either a direct or indirect method.
See Hobgood, 679 F.3d at 965.
earlier
in
this
opinion,
But for the reasons we explained
Sneed
cannot
establish
prohibited
retaliation under either method. The instances of protected speech
that
we
have
identified
occurred
closer
in
time
to
Sneed’s
sufficient to deter free expression, were at the hands of Ms. Mills’ immediate
supervisor, who was not criticized in her letters and had no reason to retaliate
against her.”).
- 41 -
termination than his protected ADA activity. (Compare Defs.’ Stmt.
¶ 28 (Sneed filed his second EEOC charge in September 2010); with
Group Ex. N. to Defs.’ Stmt. (memoranda created in or around March
2011 complaining about corruption in the HPD).) Nevertheless, more
time elapsed than is usually considered suspicious.
See Kidwell,
679 F.3d at 967. Even if the timing of the investigation supported
a stronger inference of retaliation, Sneed’s false accusations
against Forbes were a “significant intervening event.”
See id.
(“[W]here a significant intervening event separates an employee’s
protected activity from the adverse employment action he receives,
a
suspicious-timing
argument
will
not
prevail.”)
brackets, and internal quotation marks omitted).
(citation,
The fact that
Sneed spoke out about matters of public concern did not “immunize”
him from the consequences of his own workplace misconduct.
Id.
Sneed has not identified any similarly situated employees to
establish a prima facie case of retaliation using the indirect
method.
(See supra.)
And even if he could make out a prima facie
case, he cannot show that the proffered reason for his termination
was pretextual.
(See supra.)
In sum, we conclude that all
defendants are entitled to summary judgment on Sneed’s claim for
First Amendment retaliation.
D.
Retaliatory Discharge (Count V)
“To prove a common law claim of retaliatory discharge, an
employee must demonstrate that (1) the employer discharged the
- 42 -
employee, (2) in retaliation for the employee’s activities, and (3)
that the discharge violates a clear mandate of public policy.”
Nelson v. Levy Home Entertainment, LLC, No. 10 C 3954, 2012 WL
403974,
*4
(N.D.
Ill.
Feb.
quotation marks omitted).
8,
2012)
(citation
and
internal
As we previously held with respect to
his ADA and First-Amendment retaliation claims, Sneed cannot show
that he was fired for any reason other than his own misconduct.
See Hartlein v. Illinois Power Co., 601 N.E.2d 720, 728 (Ill. 1992)
(“The element of causation is not met if the employer has a valid
basis, which is not pretextual, for discharging the employee.”).
The defendants are entitled to summary judgment on Sneed’s claim
for common law retaliatory discharge.
E.
Equal Protection (Count VI)
Sneed has alleged a “class of one” equal protection claim
challenging his termination.
(See Am. Compl. ¶¶ 142-43.)
To
prevail on this claim, he must show that he “has been intentionally
treated differently from others similarly situated and that there
is no rational basis for the difference in treatment.”
D.B. ex
rel. Kurtis B. v. Kopp, 725 F.3d 681, 685 (7th Cir. 2013) (citation
and internal quotation marks omitted).
But the Supreme Court has
declined to apply the doctrine in cases involving public employment
given the inherent discretion that characterizes the employeremployee
relationship.
See
Engquist
v.
Oregon
Dept.
of
Agriculture, 553 U.S. 591, 604-605 (2008); see also id. at 609
- 43 -
(“[R]atifying a class-of-one theory of equal protection in the
context of public employment would impermissibly ‘constitutionalize
the employee grievance.’”) (quoting Connick v. Myers, 461 U.S. 138,
154 (1983)).
Applying Engquist, the defendants are entitled to
summary judgment on Sneed’s class-of-one equal protection claim.
Even if Engquist did not bar Sneed’s claim, he could not establish
the elements of a class-of-one claim.
He has not cited any
evidence indicating that the defendants treated similarly-situated
employees differently.
Moreover, his response to the defendants’
motion for summary judgment barely mentions his equal-protection
claim.
(See Pl.’s Resp. at 13 (“Sneed was terminated [] as a
pretext and summary judgmen[t] cannot be granted as material
disputed facts exist for the Class of One Equal Protection, Due
process
claim,
conspiracy
claim,
assault
and
battery.”)
(capitalization in original).)
Although Sneed is representing
himself,
to
he
is
still
required
develop
arguments for denying summary judgment.
and
support
legal
See, e.g., Anderson v.
Hardman, 241 F.3d 544, 545 (7th Cir. 2001).
By failing to do so,
he has waived any legal argument he might have raised.
F.
“Deprivation of Civil Rights” (Count VII)
As we understand Count VII, Sneed has attempted to allege a
procedural due process violation against the defendants based upon
perceived procedural defects with his pre-termination hearing.
- 44 -
(See Am. Compl. ¶¶ 149-53.)27
In the course of his investigation,
Kirkwood reviewed the videotape of the Forbes incident, interviewed
Forbes and Rizzi, and attempted to interview Sneed twice.
Sneed
was given a full and fair opportunity to state his case at the pretermination hearing, and his termination was later upheld by an
arbitrator. Sneed had an attorney present for both hearings. (See
infra.) He received all the process he was due. Moreover, like his
equal-protection claim, Sneed’s response to the defendants’ motion
only mentions his procedural due process claim in passing.
(See
Pl.’s Mem. at 13.) We conclude that the defendants are entitled to
summary judgment on Count VII.
G.
“Action for Neglect to Prevent Civil Rights Violation” (Count
VIII)
In Count VIII, Sneed alleges that the defendants had the
“power
to
prevent
or
aid
in
preventing”
Sneed’s
retaliatory
discharge and “neglected or refused to do so.” (Am. Compl. ¶¶ 15657.)
It is unclear what this claim adds to Sneed’s other § 1983
claims.
Sneed
In any event, for the reasons we have already explained,
has
27/
not
established
any
constitutionally
prohibited
Besides the defendants that Sneed claims were involved (directly or
indirectly) in his pre-termination hearing, he has also named Patterson and
Alvarado as defendants to this claim. It is unclear from the complaint what role
these defendants are supposed to have played in the hearing, and Sneed has not
cited any evidence indicating that these defendants were somehow involved in a
constitutional violation. Therefore, Patterson and Alvarado are entitled to
summary judgment on that basis. See Sheik-Abdi, 37 F.3d at 1248. Even if Sneed
had cited some evidence supporting a due-process claim against these defendants,
they would still be entitled to summary judgment for the reasons we are about to
discuss.
- 45 -
retaliation.
The defendants are entitled to summary judgment on
Count VIII.
H.
Assault & Battery (Count IX)
Count IX is a claim against the City of Harvey for damages
allegedly caused when the door “struck” Sneed.
163-66.)
(See Am. Compl. ¶¶
The defendants argue that this claim is barred because
the Illinois Workers Compensation Act (“IWCA”) preempts claims
against employers for intentional torts committed by co-workers.
(See Defs.’ Mem. at 31.)
“The IWCA is an employee’s exclusive
remedy for ‘accidental’ injuries arising out of and in the course
of employment.”
McPherson v. City of Waukegan, 379 F.3d 430, 442
(7th Cir. 2004).
Injuries caused by intentional torts are deemed
“accidental,” see id., therefore the IWCA preempts Sneed’s claim
for assault and battery.
Sneed does not address the defendants’
preemption argument, waiving any point that he might have raised.
Cf. McPherson, 379 F.3d at 442-43 n.8 (listing exceptions to IWCA
preemption, none of which appear to apply on the face of Sneed’s
claims).
Even if Sneed’s assault and battery claims were not
preempted, he cannot establish the elements of either tort.
See
Cohen v. Smith, 648 N.E.2d 329, 332 (Ill. Ct. App. 1995) (“[A]n
actor commits a battery if: ‘(a) he acts intending to cause a
harmful or offensive contact with the person of the other or a
- 46 -
third person, or an imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or
indirectly results.”) (quoting Rest. (Second) Torts § 13 (1965));
McNeil v. Carter, 742 N.E.2d 1277, 1281 (Ill. Ct. App. 2001) (“A
claim of assault must include an allegation of a reasonable
apprehension of an imminent battery.”).
Assuming that the door
touched Sneed’s outstretched hand, it did so because Sneed reached
across the threshold in an apparent effort to stop it.
Because
Sneed deliberately caused whatever physical contact occurred, he
cannot establish that he did not consent to the contact.
Cf.
Cohen, 648 N.E.2d at 332 (“Liability for battery emphasizes the
plaintiff’s lack of consent to the touching.”).
For the same
reason, Sneed could not have had a reasonable apprehension of
battery.
If he had not deliberately moved forward, the door could
not have touched him.
The defendants are entitled to summary
judgment on Count IX.28
CONCLUSION
The defendants’ motion for summary judgment [86] is granted in
its entirety. Sneed’s motion to compel [80] is denied as moot.
DATE:
December 19, 2013
ENTER:
___________________________________________
John F. Grady, United States District Judge
28/
The Count X claim for indemnification is rendered moot by the summary
judgment on all other counts.
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