Opinion
Case No. 99 C 4166.
December 15, 2000.
Arthur R. Ehrlich, Law Offices of Gearld A. Goldman, Chicago, Il., Jonathan C. Goldman, Goldman Ehrlich, Chicago, Il., for Plaintiff.
Gina Elizabeth Brock, Cook County State's Attorney, Chicago Il., for Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff, Stephanie Walliscetti ("Walliscetti"), sues the Defendants, John Fox, Charges Lagges, Louis DeRose, and Pamela Laraia pursuant to 42 U.S.C. § 1983 for violation of the First Amendment. Specifically, she alleges that the Defendants retaliated against her for exercising her First Amendment rights. Before the Court is Defendants' motion for summary judgment.
BACKGROUND
The following facts are taken from the parties' Local Rule 56.1 statements of undisputed facts and are undisputed unless specially stated otherwise. Defendant Charles Lagges ("Lagges") is the Director of the Cook County Department of Environmental Control (the "County"), and he reports to Albert Pritchett, the Chief Administrative Officer of Cook County. Defendant Louis DeRose ("DeRose") is the Deputy Director of Environmental Control, and he reports directly to Lagges. Environmental Control is divided into various divisions that include the Engineering Division, the Commercial Division, and the Demolition/Asbestos Division. In June and July 1997, Defendant John Fox ("Fox") managed the Commercial Division, and he reported to DeRose. Defendant Pamela Laraia ("Laraia") was a supervisor in the Commercial Division, and she supervised several inspectors.
In October 1993, the County hired Stephanie Wallscetti, also known as Stephanie Siffuentes, as an inspector assigned to the Demolition/Asbestos Division, and she reported directly to Robert Roache. (Def. Stmt., ¶ 9.) On May 11, 1994, Wallscetti transferred to the Commercial Division, where she reported directly to Laraia, who reported to Fox. Wallscetti worked in the Commercial Division until she was terminated on July 25, 1997. (Def. Stmt., ¶ 59.) Wallscetti grieved her discharge pursuant to the collective bargaining agreement, and the hearing officer ultimately denied her grievance. (Def. Stmt., ¶ 60.)
Beyond these basic introductory facts, the parties disagree on almost everything else. In order to streamline the important facts in this fact heavy case, the factual section is divided into the following two main parts: Wallscetti's complaints and whistle blowing and Wallscetti's employment record at the County.
Walliscetti's Complaints and Whistle Blowing
During her time at the County, Wallscetti made several complaints about her supervisors. First, on August 3, 1995, Thomas Ferallo of Local 150 filed a grievance alleging that Roache, Wallscetti's immediate supervisor at that time, harassed Wallscetti and another employee. (Def. Stmt., ¶ 19.) After conducting an investigation of the allegations, Lagges gave Roache a formal disciplinary warning stating in part that while the evidence was circumstantial, it was enough to conclude that Roache made remarks that others considered offensive. (Def. Stmt., ¶ 19.)
On March 12, 1996, Wallscetti told Lagges she could "blow the lid off of the place." (Pltf. Stmt., ¶ 61.) In November or December of that year, Wallscetti hired a private investigator to place Fox under surveillance because she thought Fox was leaving work early and misusing county resources. (Def. Stmt., ¶ 24.) During a November 15, 1996 meeting with DeRose to discuss Wallscetti's recent unexcused absences, Wallscetti's union representative "brought forward allegations made by [Wallscetti] concerning possible incidents by employees in [the] office." (Def. Stmt., ¶ 26.) Lagges told her that she needed to put her specific allegations in writing. On December 2, 1996, Wallscetti sent Lagges a note stating that her direct supervisor, Laraia, harassed her by slamming the door in her face, but after conducting an investigation, Lagges found that there was insufficient evidence to uphold her harassment claim. (Def. Stmt., ¶ 29.)
On February 20, 1997, Claudette Giles, the Cook County Equal Opportunity Officer called Lagges about a complaint she received from Wallscetti. Lagges testified that Giles told him that Wallscetti had reported that Fox and Laraia were sexually harassing her. (Def. Stmt., ¶ 32.) Wallscetti, on the other hand, claims that she told Giles that Fox and Laraia were harassing her in retaliation for whistle blowing activities, not sexual harassment. (Wallscetti Resp. Def. Stmt., ¶ 32.) On February 28, 1997, Lagges received a telephone call from Pritchett who told him that Wallscetti had made complaints about Fox going home early from work and misusing county resources. Further, Wallscetti claims that toward the end of February, Fox approached her and told her that her "days are numbered." (Pltf. Stmt., ¶ 68.)
On March 7, 1997, Wallscetti sent a memo to Pritchett requesting a transfer to another division because of the "hostile environment" under which she was working. (Def. Stmt., ¶ 35.) During a meeting on March 10, 1997, Lagges requested that Wallscetti put her charges in writing and provide information about the incidents to him. (Def. Stmt., ¶ 39.) Wallscetti claims that Lagges asked her about the charges that she had made in front of Laraia, DeRose, and Fox. (Pltf. Stmt., ¶ 74.) On March 18, 1997, Walliscetti put her harassment complaint in writing. (Exh. RR)
On April 15, 1997, DeRose received on Lagges' behalf a letter from an investigator in the Cook County Board of Ethics, and Fox was notified on May 5, 1997 that the Board of Ethics was investigating his activities. Defendants claim that it was the first indication of any activity on the part of the Board of Ethics. (Def. Stmt., ¶ 45.) Wallscetti, however, claims that while this may have been the first written notice, they were previously aware of her charges. (Wallscetti Resp. Def. Stmt., ¶ 45.)
Wallscetti requested a leave of absence under the Family Medical Leave Act from May 15, 1997 until July 15, 1997, and the request was granted. (Def. Stmt., ¶ 46.) On May 20, 1997, which is while she was on leave, Wallscetti claims that Fox approached her and threatened her by saying "My ass is covered.; you will get yours bitch." (Pltf. Stmt., ¶ 69.) During this time Fox sent a letter to DeRose requesting that he reassign Wallscetti to another department during the pendency of the investigation into her allegations. (Def. Stmt., ¶ 47.) Wallscetti returned from her leave early on-June 23, 1997 and continued to work there until she was terminated on July 25, 1997. (Def. Stmt., ¶ 48.)
Wallscetti's Employment Record
Since the County hired Wallscetti in late 1993, she has received numerous reprimands and was disciplined by various supervisors many times. Wallscetti, however, denies engaging in any improper conduct and further denies receiving many of the written reprimands that are in her employment file. The Defendants allege the following infractions:
• On February 1, 1994 Lagges received a call from the health commissioner at one of Wallscetti's inspection sites who complained that Wallscetti had behaved unprofessionally. (Def. Stmt., ¶ 10.) Wallscetti disputes these allegations, and while no finding of misconduct on Wallscetti's part was made by her supervisors, she was instructed to apologize to the health commissioner. (Def. Stmt., ¶¶ 10-11; Wallscetti's Resp. to Def. Stmt., ¶ 10.)
• In March 1994, Roache gave Wallscetti a written disciplinary warning regarding her failure to follow department protocol during another inspection. (Exh. H)
• In May 1994, Roache sent a memo to Lagges recommending that Wallscetti be transferred to another department immediately because "her failure to follow her immediate supervisor's directives [was] beginning to have an adverse effect upon the other members of the section." (Def. Stmt., ¶ 13.) Wallscetti denies these allegations. (Wallscetti's Resp. to Def. Stmt., ¶ 13.)
• Also in May 1994, Roache reprimanded Wallscetti for the inappropriate manner in which she enrolled in a course, though Wallscetti denies any wrongdoing. (Def. Stmt., ¶¶ 14, 15; Wallscetti's Resp. Def. Stmt., ¶ 14.) Later that day, Lagges approved Wallscetti's request for a transfer to the Commercial Division effective May 11, 1994. (Def. Stmt., ¶ 17.)
• In March 1995, after Wallscetti had transferred to the Commercial Division, Fox claims he observed Wallscetti improperly completing inspection sheets and gave her a written disciplinary warning. (Def. Stmt., ¶ 18.) Wallscetti claims that her inspection sheets were properly filled out and that she did not even see Fox that day. Although Fox sent a copy of the written disciplinary form to Wallscetti, she asserts that she was never informed that she was disciplined for this problem and never saw the memo. (Wallscetti Resp. Def. Stmt., ¶ 18.)
• Also on March 12, 1996, Wallscetti was reprimanded and advised to be more professional in dealing with the public. (Def. Stmt., ¶ 20.) Although Wallscetti's signature appears on the written disciplinary form, Wallscetti denies the allegations and asserts that she never saw the form. (Wallscetti's Resp. Def. Stmt., ¶ 20.)
• On September 13, 1996, Fox received a complaint regarding Wallscetti's behavior at an inspection site, (Def. Stmt., ¶ 21), but Wallscetti denies any wrongdoing. (Wallscetti's Resp. Def. Stmt., ¶ 21.)
• On October 30, 1996, Fox requested that DeRose schedule a disciplinary hearing to discuss possible infractions including excessive milage vouchers, poor time management, and inappropriate telephone calls to her supervisor. (Def. Stmt., ¶ 22) Wallscetti denies the truth of the allegations. (Wallscetti's Resp. to Def. Stmt., ¶ 22.)
• Wallscetti was reprimanded again on November 21, 1996 for insubordination and unexcused absences, (Def. Stmt., ¶ 25), though she denies any wrongdoing and that she was reprimanded. (Wallscetti's Resp. Def. Stmt., ¶ 25.)
• On January 23, 1997, Wallscetti was reprimanded for unauthorized use of the county's fax machine and for misrepresenting herself as an employee of the Illinois EPA, though Wallscetti denies the allegations. (Def. Stmt., ¶ 30.)
• On February 5, 1997, Laraia wrote to Fox requesting that Wallscetti report directly to him because she could no longer take Wallscetti's harassment. (Def. Stmt., ¶ 31.)
• On March 7, 1997, Lagges scheduled a predisciplinary hearing to discuss whether Wallscetti had followed the chain of command. (Def. Stmt., ¶ 36.) The meeting was held on March 10, 1997, but the parties dispute what happened at the meeting. The meeting was ultimately stopped because the union said the time had expired to hold a meeting on those charges.
• On March 10, 1997, Wallscetti's supervisor Laraia claims that Wallscetti threatened her and her son, and Laraia documented the incident in a memorandum. (Def. Stmt., ¶ 40.) Wallscetti denies "making any statement to Laraia that could have been reasonably construed as a threat." (Wallscetti Resp. Def. Stmt., ¶ 40.) Wallscetti claims that Laraia made these accusations just a few hours after Fox, DeRose, Lagges, and Laraia learned that she had make complaints about the department and ten days after Pritchett told Lagges to investigate Fox. (Pltf. Stmt. 62.)
• On April 7, 1997, in response to a memorandum that Wallscetti sent directly to Lagges, Fox wrote a memorandum to Wallscetti stating that he would "appreciate it if [she] would please follow the chain of command and address [her] correspondence to [her] supervisor, manager, and assistant director before going directly to [the] director." He further states that "[i]t is almost impossible to conduct daily business when [Wallscetti] continuously go[es] over our heads to the Director." (Def. Stmt., ¶ 44.)
• On July 17, 1997, after Wallscetti returned from her leave of absence, she was notified that a predisciplinary hearing would be held to address charges that Wallscetti intimidated and harassed Laraia in her car, was insubordinate, failed to perform her duties properly, lied to a supervisor, and submitted false and misleading documents in connection with an inspection. (Def. Stmt., ¶ 49.) Wallscetti denies the truth of these allegations. (Wallscetti Resp. Def. Stmt., ¶ 49.) The hearing was conducted, and on July 25, 1997 DeRose sent a memo to Lagges summarizing the findings he made and recommending that Wallscetti be discharged. (Def. Stmt., ¶ 57.)
In this Court's oral ruling on Defendants' motion to dismiss on October 7, 1999, the Court ruled that based upon the statute of limitations, only violations which occurred after June 23, 1997 will be considered. In that ruling the Court also held that the Defendants could not be sued in their official capacity.
DISCUSSION
To establish a § 1983 claim based on the First Amendment, a plaintiff must demonstrate that (1) her conduct was constitutionally protected and (2) her conduct was a substantial factor or motivating factor in the defendant's challenged actions. Thomsen v. Romeis, 198 F.3d 1022, 1027 (7th Cir. 2000), citing Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 0.5. 274 287 (1977). The plaintiff cannot prevail unless she establishes that the defendants would not have taken the challenged actions "but for" the constitutionally protected conduct. Id. If the plaintiff meets her burden the burden shifts, and the defendants must show by a preponderance of the evidence that they would have taken the same action even in the absence of the protected conduct. Id.; Garrett v. Barnes, 961 F.2d 629, 632 (7th Cir. 1992). A plaintiff cannot prevail on a retaliatory discharge claim if the decision to terminate her "would have been reasonable even in the absence of the protected conduct." Thomsen, 198 F.3d at 1028.
The court is barred, however, from drawing any strong conclusions from the fact that protected speech might have preceded an adverse employment decision. Thomsen, 198 F.3d at 1027; Wright v. Illinois Dept. of Children Family Servs., 40 F.3d 1492, 1500 (7th Cir. 1994). The "mere fact that protected speech precedes an employment decision does not create the inference that the speech motivated the employment decision." O'Connor v. Chicago Transit Authority, 985 F.2d 1362, 1368 (7th Cir. 1993).
Only speech that addresses an issue of public concern is entitled to First Amendment protection. See Connick v. Myers, 461 U.S. 138, 146 (1983). To determine whether Wallscetti's speech addressed a matter of public concern, the court must consider the content, form, and context of the speech as revealed by the record, with content being the most important factor. Button v. Kibby-Brown, 146 F.3d 526, 529 (7th Cir. 1998). The motive behind the speech is relevant, though not dispositive, because speech that promotes a purely private interest is not protected. Id. The court must therefore examine whether the point of the speech was to bring the wrongdoing to light and to raise other issues of public concern or whether it was to further some purely private interest. As the Supreme Court explained in Connick,
[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.461 U.S. at 147.
In the instant case, Wallscetti made several different complaints about her supervisors while she was employed at the County. First, Defendants concede that Wallscetti's complaints regarding Fox misusing county resources, which Pritchett told Lagges about on February 28, 1997 and which was made to the Board of Ethics on March 25, 1997, addresses issues of public concern. (Def. Reply at 4.) Second, although Wallscetti's brief contains allegations that Laraia was also misusing county resources, there is no evidence in the record that Wallscetti ever made any complaints about Laraia.
Third, Wallscetti alleged that she was being harassed by Fox and Laraia. On February 20, 1997, Lagges testified that he was notified that Wallscetti made a sexual harassment claim. Wallscetti states that she made a claim that she was being harassed in retaliation for whistle blowing and did not make a sexual harassment claim. At that time, the record indicates that Wallscetti had made several complaints that could be the subject for retaliation: she complained that Roache was harassing her in August 1995, her union representative said during a meeting that she had complaints about incidents in the office, and Wallscetti complained that Laraia had slammed the door in her face in December 1996.
The content of Wallscetti's speech, here, her complaints that her supervisors were harassing her, does not reveal that she was attempting to bring a wrongdoing to public light, but was instead an effort to air her own personal employment issues. See Cliff v. Board of School Commissioners, 42 F.3d 403, 409 (1995). Thus, the Court finds that this speech falls outside the protection of the First Amendment.
Faced with this summary judgment motion, Wallscetti had to produce sufficient evidence from which a jury could reasonably discern a link between her protected speech, here her allegation that Fox was misusing County resources, and the decision to discharge her. Roberts v. Broski, 186 F.3d 990, 995 (7th Cir. 1999). While there are almost no facts that these parties actually agree upon, not all of the disagreements and denials are material or are they supported by admissible evidence in the record. What is evident from the briefs filed for this motion is that they contain a large dose of speculation, innuendo, and conjecture along with allegations of blackmail, threats, door slamming and car chases. It is also clear that Defendants knew about Wallscetti's protected speech at the time of her discharge and that she was terminated several months after the protected speech. While the court may not draw any strong conclusions based on the fact that the protected speech preceded her termination, see O'Connor, 985 F.2d at 1362, there are issues regarding the Defendants' intent, motives, and credibility which makes this issue not suitable for summary judgment. While the Court finds that many of Wallscetti's arguments to support her argument that her termination was motivated by her whistle blowing are without merit, she does point to some evidence, like threats by Fox that "[m]y ass is covered; you will get yours," that would allow a jury to find that her whistle blowing was a motivating factor in her termination.
Therefore, while the evidence is jumbled and messy, the Court finds that a reasonable jury, after wading through all of the evidence, could determine that Wallscetti's protected speech was a substantial factor or motivating factor in the decision to terminate her. The Court cannot say on the record as it currently stands that as a matter of law Wallscetti has no chance of prevailing on this element.
Assuming arguendo that Wallscetti did demonstrate that her protected conduct was a motivating factor in the Defendants' decision to terminate her, she cannot prevail on her retaliatory discharge claim if the decision to terminate her would have been reasonable even in the absence of the protected conduct. Thomsen, 198 F.3d at 1028, citing Mt. Healthy, 429 U.S. at 287. If Wallscetti proved that her protected conduct was a motivating factor, the burden shifts to the Defendants to demonstrate that she would have been terminated in the absence of the protected conduct. Wallscetti could be "fired for a good reason or for no reason at all, as long as [she] was not fired because of [her] constitutionally protected activities." Garrett, 961 F.2d at 633.
Defendants argue that Wallscetti would have been fired anyway, and they cite a long list of customer complaints, altercations, incidents of insubordination, reprimands, and disciplinary actions. Importantly, many of these infractions occurred long before any of the protected speech at issue even occurred. Defendants' stated reasons for ultimately discharging Wallscetti were that she harassed her supervisor, Laraia, while she was driving her car, that she refused to investigate a citizen's complaint and then was rude to the citizen, that she made misstatements and omissions in a report of an inspection site, and that she refused to provide her supervisors with information and documents. Fox did not attend the disciplinary meeting regarding these infractions, nor is there any evidence that he was responsible for the discipline for these infractions. At this time Fox had already asked DeRose, who in turn informed Lagges, that Wallscetti should be transferred out of Fox's department during the pendency of her charges against him. Importantly, although Wallscetti argues that Fox was involved in the decision to terminate her and prepared prior "false reprimands," see Pltf. Brief at 14, there is no evidence in the record to support her contentions. One of the reprimands that Wallscetti points to occurred two years before Wallscetti was terminated. (Def. Stmt. ¶ 18.) The second occurred nine months before she was terminated, before Wallscetti hired the private investigator, and before there is any evidence that she had made a complaint about Fox misusing county resources. (Def. Stmt. ¶ 22.) She does not point to any evidence that he was involved in any of the reprimands that supported her termination.
In response to these reasons for her termination, Wallscetti argues, based solely on her own affidavit for this summary judgment motion, that none of the stated reasons are true and that she simply did not do the things that Defendants accuse her of doing. In fact, Wallscetti denies doing the conduct involved for every single reprimand and discipline that she received over a period of several years, and the only evidence that she offers is her own affidavit.
It is not enough, however, for Wallscetti to come forward with her own unsupported recitation of the events; she must present "specific facts showing that there is a genuine issue for trial." Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1139 (7th Cir. 1997). Her own statements, assessment, and perception of her job performance are insufficient to create factual disputes sufficient to defeat summary judgment. See Densi v. Dominick's Finer Foods, 99 F.3d 860, 865 (7th Cir. 1996). See also Slowiak v. Land O' Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993) ("[s]elf-serving affidavits without factual support in the record will not defeat a motion for summary judgment.") She has failed to present evidence that she would not have been terminated in the absence of the protected conduct. See Thomsen, 198 F.3d at 1029 (affirming summary judgment where plaintiff failed to meet burden that he would not have been terminated in the absence of the protected conduct); Cromley v. Board of Education of Lockport Township High School Dist. 205, 17 F.3d 1059, 1069 (7th Cir. 1994) (finding that even assuming that plaintiff demonstrated that the protected speech was a substantial factor in the employment decision, she did not demonstrate that the decision would have been different without the protected conduct.) Furthermore, Lagges had no obligation to transfer Wallscetti to another department instead of terminating her, even though she says another department would have taken her. The Court will not second guess Lagges' decision not to do so since this Court is not a super-personnel department that weighs the prudence of employment decisions. Thomsen, 198 F.3d at 1029, citing Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1139 (7th Cir. 1997).
Therefore, the Court finds that Wallscetti has not pointed to any evidence in the record that would allow a reasonable jury to find that even without her whistle blowing, she would not have been terminated. Summary judgment is, therefore, appropriate.
CONCLUSION
Therefore, for the foregoing reasons, Defendants' motion for summary judgment is granted.
IT IS SO ORDERED.