Opinion
99 C 5103
April 26, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Gerardo D. Gonzalez ("Gonzalez") filed a two-count Second Amended Complaint against his former employer, City of Chicago (the "City"), two of his supervisors, Sergeant Hanson [sic] ("Hansen") and Lieutenant Sullivan ("Sullivan"), and the Chief of Police of the City of Chicago, Terry Hilliard [sic] ("Hillard"), (collectively "Defendants"), alleging retaliation for exercising his rights under the First Amendment in violation of 42 U.S.C. § 1983 (Count I) and retaliatory discharge in violation of Illinois law (Count II). Defendants have all now moved to dismiss the Second Amended Complaint in its entirety pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the Court grants Defendants' motions.
BACKGROUND
The complaint alleges the following facts which, for the purposes of ruling on this motion, are taken as true. Hishon v. Kemp Spalding, 467 U.S. 69, 73(1984). Gonzalez was employed by the City of Chicago Police Department ("CPD") as an Investigator in the Office of Professional Standards ("OPS") from approximately January 1, 1991 until June 26, 1998, and as a sworn Police Officer on probation from June 29, 1998 until he was discharged on April 14, 1999. Gonzalez alleges that Defendants terminated him based on two poor evaluations which were in retaliation for investigation reports he authored during his tenure at OPS.
As an OPS investigator, Gonzalez investigated over eight hundred complaints against other members of the CPD. One of his duties was to write reports at the conclusion of the investigations. These reports dealt with police brutality and other forms of police misconduct. He wrote fifty to one hundred such reports each month. Gonzalez was also responsible for attending and summarizing the "Round Tables," the panel meetings to evaluate the complaints and investigation reports. Many of these investigations led to the dismissal or suspension of police officers.
In June of 1998, Gonzalez resigned from the OPS and was sworn in as a sworn officer of the CPD. He graduated from the police academy and was assigned to the 18th District on November 18, 1999. By the time Gonzalez was assigned there, officers in the 18th District were already familiar with him. Gonzalez had investigated nine of the officers who were working at the 18th District at that time.
Gonzalez was met with great hostility at the 18th District because of his previous job of reporting police misconduct. Gonzalez reported the hostility to his superior officers, who took no action and allowed the hostility to increase. During his initial ten weeks of field training, Gonzalez received two negative reports "predicated upon falsified subjective information . . . and motivated by retaliation for [Gonzalez's speech] . . . while employed by OPS." (Compl. ¶ 32.) On March 29, 1999, as a result of these reports, Gonzalez was suspended pending termination proceedings. Gonzalez was eventually terminated on April 14, 1999.
Gonzalez's Second Amended Complaint alleges two counts: (1) retaliation for exercising his rights under the First Amendment in violation of 42 U.S.C. § 1983 ("§ 1983"); and (2) retaliatory discharge in violation of Illinois law. Defendants have now filed the present motions seeking to dismiss both of Gonzalez's claims. Among other things, Hillard and the City argue that the claims against Hillard, sued only in his official capacity, are redundant of the claims against the City and should therefore be dismissed. In his response to Defendants' motions, Gonzalez has agreed to voluntarily withdraw both of his claims against Hillard. Accordingly, only the claims against the City, Hansen and Sullivan remain for the purposes of this motion.
DISCUSSION
When considering a motion to dismiss, a court must view the complaint's allegations in the light most favorable to the plaintiff, and all well-pleaded facts in the complaint must be accepted as true. Wilson v. Formigoni, 42 F.3d 1060, 1062 (7th Cir. 1994). Dismissal is proper only if it appears beyond a doubt that a plaintiff can prove no set of facts in support of a claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46(1957). To withstand a motion to dismiss, a complaint must allege facts which sufficiently set forth the essential elements of the cause of action. Gray v. County of Dane, 854 F.2d 179, 182 (7th Cir. 1988).
I. Count I — First Amendment Retaliation
Initially, we note that Gonzalez has few legitimate challenges to his discharge because at-will public employees can be discharged for any reason or for no reason at all. Rankin v. McPherson, 483 U.S. 378, 383-84(1987); Tolmie v. United Parcel Service, Inc., 930 F.2d 579, 580 (7th Cir. 1991). However, Gonzalez is entitled to reinstatement if he was discharged on a basis that infringes his constitutionally-protected freedom of expression. Rankin, 483 U.S. at 383-84. Thus, the issue which the Court must decide is whether Gonzalez's first amendment rights were violated because he was discharged for writing investigation reports on complaints of police misconduct as an OPS investigator.
In order for Gonzalez to prevail in his § 1983 claim, Gonzalez must prove that his employment was wrongfully terminated because he exercised his constitutionally-protected right of free speech. See Connick v. Myers, 461 U.S. 138, 141(1983). A public employee's speech is protected by the First Amendment only if: (1) it touches upon a matter of public concern, and (2) the employee's interest in expressing himself on this matter outweighs any injury the speech could cause to the employer's interest in promoting effective and efficient public service. Connick, 461 U.S. at 142; Pickering v. Board of Educ., 391 U.S. 563, 568(1968). The Supreme Court has stated explicitly that "[t]he repeated emphasis in Pickering on the right of a public employee `as a citizen in commenting upon matters of public concern,' was not accidental." Connick, 461 U.S. at 143 (emphasis added) (quoting Pickering v. Board of Educ., 391 U.S. 563(1968)). Rather, the Court explained, "[t]his language, reiterated in all of Pickering's progeny reflects . . . the common sense realization that government offices could not function if every employment decisions became a constitutional matter." Id. Unfortunately, "the government employer's dismissal of the worker may not be fair, but ordinary dismissals . . . are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable." Id. at 146 (citations omitted).
The Court must first determine whether Gonzalez's reports rise to the level of speech which touches on a matter of public concern. Speech on an issue which is of interest to the public is not necessarily speech which touches on a matter of public concern. Colburn v. Trustees of Indiana University, 973 F.2d 581, 586 (7th Cir. 1992). Rather, whether an employee's speech addresses a matter of public concern is determined by the content, form and context of a given statement. Connick, 461 U.S. at 146-47. Content is the most important of these factors. Smith v. Fruin, 28 F.3d 646, 651 (7th Cir. 1994). However, the underlying circumstances as well as the speaker's motivation and choice of forum are also important considerations. Barkoo v. Melby, 901 F.2d 613, 618 (7th Cir. 1990); Smith, 28 F.3d at 651 (citations omitted). The Seventh Circuit has emphasized that, in determining whether speech is of public concern, the inquiry must take into account the importance of the point of the speech in question: "[w]as it the employee's point to bring wrongdoing to light? or to raise other issues of public concern? or was the point to further some purely private interest?" Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir. 1985). Although motive is not dispositive, it is a factor which can serve to clarify the `central point' of an employee's speech and determine whether his speech was performed as a concerned citizen.Campbell v. Towse, 99 F.3d 820, 827 (7th Cir. 1996).
Furthermore, this Circuit has "attached some significance to the fact that a public employee's complaints about a subject within the scope of her job responsibilities is not acting simply as a member of the general public." Wright v. Illinois Dep't of Children Family Services, 40 F.3d 1492, 1501 (7th Cir. 1994) (citing Marquez v. Turnock, 967 F.2d 1175, 1177 (7th Cir. 1992); Egger v. Phillips, 710 F.2d 292, 316-18 (7th Cir. 1983) (en banc) (1983)).
The most factually similar case in this Circuit is Youker v. Shoenenberger, 22 F.3d 163 (7th Cir. 1994). That case involved a deputy tax assessor whose job "included safeguarding against fraudulent homestead exemptions." Id. at 165. When the plaintiff became aware of a tax violation in a town nearby, he wrote a letter alerting that town's tax assessor. Id. He sent the letter on official letterhead and stamped with his supervisor's signature. Id. The district court held that the plaintiff's letter did not constitute speech addressing a matter of public concern. Youker v. Shoenenberger, No. 91 C 0737, 1992 WL 86187, at *3 (N.D. Ill. April 22, 1992) ("Since Youker's letter is not speech by a citizen, but rather by an employee in the course of his employment, his "speech" does not fall within First Amendment protection.").
The Seventh Circuit affirmed this decision on slightly different grounds. Youker, 22 F.3d at 166 ("[T]he speech in the present case is not protected because it was not speech as a citizen because Youker represented, without authority, that it was Assessor Shoenenberger's official speech."). The court placed considerable weight on plaintiff's misrepresentations. Nevertheless, the court held that "because Youker was an employee of the Milton Assessor's office, and, when acting in that capacity, identifying fraud in homestead exemptions was part of his responsibilities, the letter represented not his personal opinion (speech) but the opinion of the Milton Assessor's Office . . . [and t]here is simply no evidence that Youker was speaking `as a citizen' on a matter of public concern." Id. at 166-67 (quoting Connick, 461 U.S. at 143).
In the present case, Gonzalez contends that the speech embodied in the reports he wrote as an OPS investigator merit first amendment protection. Applying the factors created by the Supreme Court in Connick, this Court finds that Gonzalez's investigation reports do not constitute speech which touches on a matter of public concern.
The content of the speech, police misconduct, is certainly one of interest to the public. However, this is simply not enough. Gonzalez's reports were drafted in the course of his everyday duties as an OPS investigator. Although not dispositive, this Court, much like the court in Youker, applies substantial emphasis on the fact that these reports were created in the scope of his ordinary job responsibilities. This fact lends support for the conclusion that Gonzalez was not acting as a "concerned citizen" or "member of the general public," but merely as an employee.
Additionally, the reports were routine internal reports. Gonzalez does not allege that he ever published or circulated these reports beyond the internal channels required of him — another indication that Gonzalez was not acting as a private citizen attempting to unveil misconduct in the CPD. Finally, the only motive for the reports evident from the complaint is Gonzalez's interest in doing his job. The interest in keeping his job is clearly a private interest which also cuts against Gonzalez's argument that his speech touched on public concern. Taken cumulatively these facts show that Gonzalez's speech lacked the content, form and context required of speech which touches on public concern for the purposes of first amendment protection.
Only once a plaintiff demonstrates speech touching on public concern must a court address the question of whether the interest in the speech is outweighed by the government's interest in regulating the speech. See board of County Commissioners, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, 679(1996). As this Court finds that Gonzalez's speech did not touch on a matter of public concern, it is not necessary to conduct a balancing test to determine whether Gonzalez's interest is outweighed by the Defendants' interests. Accordingly, Defendants' motions to dismiss with respect to Count I are granted. II. Count II — Retaliatory Discharge
Defendants also argue that they are entitled to qualified immunity. Because this Court finds that there was no first amendment violation, this Court need not address this alternative argument.
In Count II of his Second Amended Complaint, Gonzalez asserts a claim for retaliatory discharge under Illinois law. Having granted Defendants' motions to dismiss Gonzalez's § 1983 claim, there is no longer a federal claim pending before this Court. Thus, this Court, in its discretion, declines to accept supplemental jurisdiction over Gonzalez's state law claim of retaliatory discharge. See. e.g., Vukadinovich v. Board of Sch. Trustees, 978 F.2d 403, 415 (7th Cir. 1992) ("It is well established that if federal claims are dismissed before trial, the federal district courts should generally dismiss the state law claims as well."); Vakharia v. Swedish Covenant Hosp., 987 F. Supp. 633, 643 (N.D. Ill. 1997) ("Ordinarily, if a court rules against a plaintiff on all federal claims short of trial the pendent state law claims are dismissed without prejudice."), aff'd, 190 F.3d 799 (7th Cir. 1999). Accordingly, the Court dismisses Count II without prejudice.
CONCLUSION
For the reasons set forth above, the Court grants Defendants' motions to dismiss. Gonzalez's 42 U.S.C. § 1983 claim (Count I) is dismissed with prejudice. Gonzalez's state law retaliatory discharge claim (Count II) is dismissed without prejudice.
ENTER: