Gschwind v. Heiden et al

Filing 122

WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 10/25/2011: For the reasons stated below, the court grants summary judgment as to all defendants 105 and dismisses this cause in its entirety.[For further details see order.] Notices mailed by Judicial staff.(jat, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Philip G. Reinhard

CASE NUMBER

08 C 50035

Sitting Judge if Other
than Assigned Judge

DATE

10/25/2011

Sean Gschwind vs. Linda Heiden, et al.

CASE
TITLE
DOCKET ENTRY TEXT:

For the reasons stated below, the court grants summary judgment as to all defendants and dismisses this cause
in its entirety.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT - OPINION
Plaintiff, Sean Gschwind, a non-tenured teacher, filed pro se an amended complaint against
defendants, Linda Heiden, the former principal at Harvard Junior High School (junior high), Frank Shields,
the assistant principal at the junior high, and the Board of Education of Harvard Community Unit School
District 50 (Board). The amended complaint alleges a claim for a violation of his free speech rights under the
First Amendment based on defendants taking retaliatory action against plaintiff (in the form of telling him his
contract would not be renewed) in response to his having signed a disorderly conduct complaint about a
student with the local police. All defendants have moved for summary judgment, asserting that plaintiff’s
signing of the complaint did not constitute protected speech, that Heiden and Shields are qualifiedly immune,
and that there was no policy, custom, or practice of the Board that resulted in a denial of plaintiff’s First
Amendment rights. Plaintiff has responded, and defendants have filed a reply.
Background
This case arose out of an assignment in plaintiff’s sixth grade mathematics class at the junior high.
On December 21, 2005, a student in the class who was about 12-13 years old sang the following song in class
as part of his assignment: “Woke up quick at about noon I stab Gschwind and he flew like a balloon I got to
get up cause to day began I have to my home work and get it done. I am gonna do my home work here I go
I’m gonna do my fractions and so so so.”
Plaintiff considered the reference to his being stabbed as a threat to his safety and reported it to
Heiden and Shields that day after school. He also told them during that meeting that he was considering
reporting the incident to the police because he was concerned for his safety.
The next day plaintiff met with the school liaison police officer and Heiden. Plaintiff told the officer
that he feared for his safety and asked if he should arm himself. After the officer explained why the song did
not constitute an assault or battery, but was possibly disorderly conduct, plaintiff stated he desired to make a
complaint for disorderly conduct.
On January 5, 2006, plaintiff again met with Heiden and Shields. Heiden advised plaintiff that she
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STATEMENT - OPINION
and the officer had met with the student’s parents earlier that day and that in her opinion the parents knew
more about the law than she or Shields and that the parents would attempt to dig up dirt on plaintiff if he were
to pursue a disorderly conduct complaint. During the meeting, Shields stated that the student said he would
behave, that plaintiff did not need to file the complaint, and that Shields did not want problems with the
student’s family.
On January 10, 2006, plaintiff signed a disorderly conduct complaint. The student was subsequently
charged as a juvenile.
On January 11, 2006, plaintiff met with Shields regarding his previous classroom performance
evaluation which had a rating of unsatisfactory. Plaintiff did not express any belief to Shields at that time, or
later when he submitted a written response to the evaluation, that the unsatisfactory rating was based on his
having signed the complaint.
On March 8, 2006, plaintiff met with Heiden. At that time, he received her evaluation of his teaching
performance which was also unsatisfactory. During another meeting with Heiden and Shields later that day,
Heiden advised plaintiff that she and Shields had concluded that plaintiff’s employment should not continue
beyond the end of the 2005-2006 school year. Heiden suggested that if plaintiff wanted to remain in
education it would be in his best interest to resign as opposed to being dismissed.
On March 16, 2006, after unsuccessfully attempting to get the superintendent to intervene in the
matter, plaintiff submitted his resignation. Plaintiff’s resignation was subsequently accepted by the Board.
Analysis
In considering a motion for summary judgment, a court must consider the evidence in the light most
favorable to the non-moving party. Gross v. Town of Cicero, Illinois, 619 F. 3d 697, 703 (7th Cir. 2010).
Summary judgment is appropriate when the evidence demonstrates that there is no genuine issue of material
fact and that the movant is entitled to judgment as a matter of law. Gross, 619 F. 3d at 703.
A public employee does not check his First Amendment rights at the workplace door. Gross, 619 F.
3d at 703. A public employee has a right, in certain circumstances, to speak as a citizen addressing matters of
public concern. Gross, 619 F. 3d at 703. Thus, the First Amendment prohibits the government from
retaliating against its employees for engaging in protected speech. Gross, 619 F. 3d at 703-04.
But a public employee’s free speech rights are not unfettered. Gross, 619 F. 3d at 704. A claim for
First Amendment retaliation involves a three-step inquiry: (1) whether the speech is constitutionally
protected; (2) whether the protected speech was the but-for cause of the employer’s action; and (3) whether
the employee suffered a deprivation as a result of the employer’s action. Gross, 619 F. 3d at 704.
The first question, whether the speech is protected, is one of law for the court. Gross, 619 F. 3d at
704. That inquiry boils down to whether the employee spoke in the capacity of a private citizen and on a
matter of public concern. Gross, 619 F. 3d at 704. Purely personal grievances do not qualify as matters of
public concern. Gross, 619 F. 3d at 704. On the other hand, the fact that an employee has a personal stake in
the subject matter of the speech does not necessarily remove the speech from the scope of public concern.
Gross, 619 F. 3d at 704. The court must look at the content, form, and context of the speech, with content
being most important, to determine if the employee sought to raise an issue of public concern or further only
some private interest. Gross, 619 F. 3d at 704.
In this case, the undisputed facts overwhelmingly demonstrate that plaintiff signed the complaint1
purely as a matter of private interest. While he makes a concerted effort after the fact to characterize the
signing of the complaint as a matter of public concern, it is evident that at the time he did so as a perceived
victim of a crime and out of concern for his own personal safety.
This is bolstered when the three factors of content, form, and context are evaluated. Clearly, the
content of the speech as embodied in the complaint was limited to a crime directed at plaintiff alone.
Additionally, the form of the speech, a juvenile complaint, indicates that the subject matter was focused on an
offense involving as its sole victim the plaintiff. Finally, the overall context in which the speech was made
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STATEMENT - OPINION
was a situation involving a student who engaged in conduct directed solely at plaintiff, and perceived by
plaintiff to be a criminal act against him. Considering all of these factors, especially the content of the
speech, the court concludes that the speech at issue involved a matter of purely private interest. Accordingly,
the speech was not protected, plaintiff has failed to satisfy the threshold requirement for his claim, and there
can be no First Amendment retaliation by defendants. Therefore, all defendants are entitled to summary
judgment on that basis.2
For the foregoing reasons, the court grants summary judgment as to all three defendants and dismisses
this cause in its entirety.
1. Plaintiff relies solely on the signing of the complaint as the operative speech for purposes of
his claim. While it may be arguable as to whether it is in fact “speech” in the context of the First
Amendment, defendants do not argue otherwise and the court will consider it as such.
2. Because plaintiff has not established a violation of a constitutional right as a matter of law,
both Heiden and Shields would also be entitled to qualified immunity without the need to decide
whether the right at issue was clearly established. See Atkins v. City of Chicago, 631 F. 3d 823,
838 (7th Cir. 2011). Nor is it necessary to reach the issue of whether there was a sufficient policy
or custom upon which to hold the Board liable.

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