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noting that the law is well-settled that the Fourteenth Amendment prohibits public employers from engaging in racial discrimination and citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731-32, and Erwin v. Daley, 92 F.3d 521, 525 (7th Cir. 1996)
Summary of this case from Boyd v. Illinois State PoliceOpinion
Cause No. IP 99-1521-CH/G
November 16, 2000
ENTRY ON MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiff Brian Nanavaty is a former deputy chief of police with the Indianapolis Police Department, and he remains employed with the department. He has sued the City of Indianapolis and several former city officials on a variety of claims relating to his employment with the city. Defendants have moved for judgment on the pleadings. As explained below, defendants' motion is granted with respect to Nanavaty's due process claims under the Fourteenth Amendment but denied in all other respects.
After filing an answer, defendants filed a motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. The standard for such a motion is the same as on a motion to dismiss for failure to state a claim under Rule 12(b)(6). In deciding a motion for judgment on the pleadings, a court must accept as true the complaint's well-pleaded factual allegations and draw all reasonable inferences in plaintiff's favor. Chakonas v. City of Chicago, 42 F.3d 1132, 1134 (7th Cir. 1994). Under the liberal notice pleading standard in federal civil actions, moreover, the plaintiff is entitled to the benefit not only of his allegations but of any other possible facts that are not inconsistent with his allegations. Thus, in responding to a motion for judgment on the pleadings, a plaintiff may posit facts in his brief and, so long as they are not inconsistent with his complaint, the court must assume they are true for purposes of deciding the motion. See, e.g., Trevino v. Union Pacific Railroad, 916 F.2d 1230, 1239 (7th Cir. 1990).
The defendants are entitled to dismissal of a claim only if it appears beyond doubt that plaintiff would not be entitled to relief under any set of facts that might be proven within the scope of the complaint's allegations. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Chaney v. Suburban Bus Div. of Regional Transp. Auth., 52 F.3d 623, 626-27 (7th Cir. 1995). Nevertheless, a plaintiff may still plead himself out of court if the complaint includes allegations that show he cannot possibly be entitled to the relief he seeks. See, e.g., Jefferson v. Ambroz, 90 F.3d 1291, 1296-97 (7th Cir. 1996); Warzon v. Drew, 60 F.3d 1234, 1240 (7th Cir. 1995).
In light of some of defendants' arguments, it also bears pointing out that the plaintiff is not required to spell out in a complaint the factual and evidentiary bases for his claims for relief. In a claim for national origin discrimination under Title VII of the Civil Rights Act, for example, apart from certain jurisdictional matters, a complaint is sufficient if it alleges "plaintiff's employer denied him a promotion because of his national origin." Defendants' motion raises a host of issues which are best dealt with separately and in order.
Defendants' motion was filed by a lawyer whose appearance has since been withdrawn.
1. Title VII Statute of Limitations: A plaintiff in a Title VII case in Indiana (which has a state agency that accepts discrimination complaints) must file an administrative charge of discrimination within 300 days of the act of discrimination. See 42 U.S.C. § 2000e-5(e). Nanavaty filed his first administrative charge of discrimination on March 4, 1999, so actions taken on or after May 8, 1998, are actionable in this case. Nanavaty bases his Title VII discrimination and retaliation claims on allegations including that he was denied a promotion and otherwise treated unfairly in late 1998 and 1999. The 300-day limit therefore does not entitle defendants to judgment on Nanavaty's Title VII claims. (The 300-day limit also is not an absolute limit on admissible evidence. Both employee and employer may support their cases with evidence of events outside the time period that is actually actionable.)
2. "Prima facie case" under Title VII: Defendants' motion asserts that plaintiff "failed to allege a prima facie case of intentional discrimination by the defendants and cannot satisfy the McDonnell Douglas test," citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). This aspect of defendants' motion is utterly without merit. A plaintiff is not required to plead the elements of the McDonnell Douglas test in his complaint. See Conley, 355 U.S. at 47 (federal rules "do not require a claimant to set out in detail the facts upon which he bases his claim"). A plain and short statement that the employer took some adverse action (such as denial of a promotion) because of plaintiff's race, national origin, sex, or religion will suffice. Defendants' motion along these lines is, as plaintiff accurately describes it, a motion for summary judgment masquerading as a motion for judgment on the pleadings, but without evidence or discovery.
3. Retaliation under Title VII: Defendants contend plaintiff has failed to state a claim for retaliation under Title VII because no adverse employment action was taken against him. Plaintiff has alleged he was denied a promotion to retaliate against him for his protected activity of complaining about national origin discrimination. That allegation states a claim for retaliation. See Ellerth v. Burlington Industries, 524 U.S. 742, 761 (1998) (denial of promotion is a "tangible employment action" for purposes of harassment claim under Title VII); Spearman v. Ford Motor Co., No. 99-3538, ___ F.3d ___, 2000 WL 1646288 (7th Cir. Nov. 3, 2000) (citing Ellerth; failure to promote is an adverse employment action that supports a Title VII retaliation claim).
4. 42 U.S.C. § 1981: Citing Patterson v. McLean Credit Union, 491 U.S. 164 (1989), defendants argue that plaintiff has failed to allege a claim under 42 U.S.C. § 1981. The Second Amended Complaint does not appear to assert any claim under § 1981, so the court will not dwell on the ways in which the 1991 amendments to § 1981 effectively superseded some aspects of the Supreme Court's decision in Patterson.
5. Due Process Claims: Plaintiff has abandoned his claims for deprivation of liberty or property without due process of law. See Pl. Br. at 1 n. 1. Defendants' motion will be granted on those claims.
6. First Amendment Claim — Merits: Plaintiff alleges not only national origin discrimination but also a violation of his free speech rights. Plaintiff alleges that Chief of Police Michael Zunk punished him (by denying promotions) for having spoken publicly to reporters about a probe of corruption allegations in the Indianapolis Police Department. Plaintiff's claim must be evaluated under the line of cases beginning with Pickering v. Board of Education, 391 U.S. 563, 568 (1968), and followed in Connick v. Myers, 461 U.S. 138, 142 (1983). Under Pickering, Connick, and the cases following them, a public employee may not be the subject of a material, adverse employment action based on his speech on a matter of public concern, so long as the employee's First Amendment interests are not outweighed by any injury that the employee's speech might inflict on the government's interest in promoting the efficiency of its public services. In short, if a public employee is punished for public speech, the decision-maker must balance the employee's free speech rights against the public employer's interests.
Defendants argue that the court should apply this test and undertake this balancing of interests on the pleadings. The court does not understand how a senior police officer's comments to the press about a corruption probe of his department would not be a matter of public concern for purposes of the Pickering test. (Perhaps there might be exceptions to this general rule, but the court could not possibly decide on the pleadings that such an exception exists and applies in this case.) See Campbell v. Towse, 99 F.3d 820, 827-28 (7th Cir. 1996) (senior police official's letter criticizing chief's community policing program was speech on matter of public concern); Glass v. Dachel, 2 F.3d 733, 741 (7th Cir. 1993) (police officer's statement that superior officer had stolen property from evidence room addressed matter of public concern); see generally Myers v. Hasara, 226 F.3d 821, 826-27 (7th Cir. 2000) (health inspector's public comment about open-air market operating in violation of law was protected speech: "Whistleblowing does not need to be limited to systemic charges of corruption to qualify as a matter of public concern.").
As for the balance between the employer's and employee's interests, defendants have cited a number of relevant cases, but none in which this balancing was undertaken at such a preliminary stage of the case, on the bare complaint, without evidence. See Gustafson v. Jones, 117 F.3d 1015, 1019 (7th Cir. 1997) ("it would be a rare case indeed where the pleadings as a whole would permit judgment as a matter of law on this point, unless the plaintiff was relying on speech that is wholly unprotected by the First Amendment or the defendant's justifications were frivolous. Normally, application of the Pickering balancing test will be possible only after the parties have had an opportunity to conduct some discovery.").
Defendants' motion relies on a number of factual assertions and arguments based upon those assertions that simply cannot be considered fairly on a motion for judgment on the pleadings. For example: "Here, Nanavaty did not voice any views. He merely made it known that he was a step ahead of the corruption task force. This divulges Department business regarding an ongoing investigation, but does not publicly criticize the Department or express Nanavaty's views regarding the Department or the ongoing probe." Def. Br. at 19. This simply is not the stuff of judgment on the pleadings.
7. Equal Protection and First Amendment — Qualified Immunity: Defendants also assert they are entitled to judgment on the pleadings as to claims of individual liability under 42 U.S.C. § 1983 on plaintiff's First Amendment and equal protection claims. The issue on qualified immunity is whether a reasonable official in the individual defendant's situation would have understood that his actions were violating the plaintiff's rights. A plaintiff ordinarily needs to show that the law was well established at the time in question that the defendant's actions were unconstitutional. A frequent battleground is over the level of generality or specificity of the legal rules in question. See, e.g., Denius v. Dunlap, 209 F.3d 944, 950 (7th Cir. 2000); Rakovich v. Wade, 850 F.2d 1180, 1209-10 (7th Cir. 1988) ( en banc). "Because there is an almost infinite variety of factual scenarios that may be brought into the courtroom, a plaintiff need not point to cases that are identical to the presently alleged constitutional violation. However, `the contours of the right must have been established so that the unlawfulness of the defendant's conduct would have been apparent in light of existing law.'" Denius, 209 F.3d at 950, quoting Cleveland-Perdue v. Brutsche, 881 F.2d 427, 430 (7th Cir. 1989).
Defendants are not entitled to qualified immunity on the equal protection claim. If plaintiff can establish intentional discrimination based on his national origin or race, there would be no basis for qualified immunity. The law is as well-established as imaginable that the Fourteenth Amendment prohibits public employers from engaging in such discrimination. See, e.g., Jett v. Dallas Indep. Sch. District, 491 U.S. 701, 731-32 (1989); Erwin v. Daley, 92 F.3d 521, 525 (7th Cir. 1996).
Qualified immunity on the free speech claim poses a different question. One can argue that, at least where the constitutional standard in question involves a balancing test like the second prong of the Pickering and Connick test, the law is virtually never "well-established" as to what is prohibited in any particular situation. See, e.g., Dahm v. Flynn, 60 F.3d 253, 260 (7th Cir. 1994) (Easterbrook, J., dissenting in part on denial of qualified immunity) ( Pickering's call for "`balancing' does not establish anything `clearly,' or at all.").
Nevertheless, in a series of cases the Seventh Circuit has rejected qualified immunity defenses to Pickering claims, at least where one or more available versions of the facts would establish a sufficiently clear violation that a reasonable public official should have realized his or her actions violated the First Amendment. See, e.g., Myers, 226 F.3d at 829 (disputed issues of fact required reversal of grant of qualified immunity on summary judgment where health inspector was fired for stating publicly that open-air produce market was violating law); Coady v. Steil, 187 F.3d 727, 732-34 (7th Cir. 1999) (affirming denial of qualified immunity at summary judgment stage where facts were disputed as to whether firefighter plaintiff was "on duty" when engaged in partisan political speech); Hulbert v. Wilhelm, 120 F.3d 648, 655 (7th Cir. 1997) (affirming denial of qualified immunity where employer penalized employee for reporting an environmental problem to state agency and initiating an investigation of office billing practices); Dahm v. Flynn, 60 F.3d at 258-59 (qualified immunity not justified on summary judgment, at least as to all forms of adverse action, where lottery director retaliated against personnel director who gave testimony critical of director before legislative committee).
In applying the second prong of the Pickering test, in which the court must balance the employee's and the public's interest in the speech against the employer's interest in avoiding disruption in the workplace, a number of factors must be considered. These include: (1) whether the speech would create problems in maintaining discipline or harmony among co-workers; (2) whether the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded employee's ability to perform his or her responsibilities; (4) time, place, and manner of the speech; (5) the context in which underlying dispute arose; (6) whether the matter was one on which debate was vital to informed decisionmaking; and (7) whether the speaker should be regarded as member of general public. E.g., Bonds v. Milwaukee County, 207 F.3d 969, 981 (7th Cir. 2000).
Except in the most clear-cut cases, this multi-factor test cannot be applied on the pleadings (although it may be susceptible to summary judgment). See Gustafson, 117 F.3d at 1019 (judgment on the pleadings on Pickering claim likely to be appropriate only in "a rare case"); cf. Bonds, 207 F.3d at 981-82 (affirming judgment for defense on second prong of Pickering test after bench trial); Campbell, 99 F.3d at 829-30 (affirming summary judgment for defendant where senior police official was suspended after publicly criticizing chief's community policing program; "individuals who work in the highest echelons of the command of a police department must be assured of the loyalty of their immediate subordinates, as these subordinates are entrusted with carrying out their orders, at times under the most trying conditions").
Conclusion
Defendants' motion for judgment on the pleadings is granted with respect to plaintiffs' claims for denial of due process of law but denied in all other respects. The court will hold a scheduling conference on Thursday, December 14, 2000, at 4:00 p.m. in Room 330, U.S. Courthouse, to establish a schedule to bring this case to resolution. Counsel shall confer on scheduling issues no later than December 12, 2000.
So ordered.