Opinion
NO. 4:02-CV-00140-SEB-WGH
May 7, 2004
ENTRY GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DISMISSING WITHOUT PREJUDICE PLAINTIFF'S STATE LAW CLAIMS
Plaintiff Timothy Probst filed suit under 42 U.S.C. § 1983 against his employer, the City of Aurora, and the following City of Aurora employees: Noel Houze, Bryan Fields, Holly Fields and Richard Ullrich. The individual defendants were sued in both their individual and official capacities. Plaintiff contends the defendants retaliated against him in violation of his First Amendment right to free speech. He also asserts two pendent state law claims for defamation and tortious interference with employment against Bryan Fields, Holly Fields and Waggoner, Irwin, Sheele Associates, a private investigation firm hired by the City. A third tort action for negligent investigation was also brought against Waggoner, Irwin, Sheele Associates.
This matter comes before the Court on Defendants City of Aurora and City employees' motion for summary judgment on all counts and Defendant Waggoner, Irwin, Sheele Associates' separate motion for summary judgment on the state law claims. We previously granted Waggoner, Irwin, Sheele Associates' motion for judgment on the pleadings on the negligent investigation count. See February 10, 2003 Entry Granting Motion for Judgment on the Pleadings. For the reasons given below, we now GRANT the Defendants City and City employees' motion for summary judgment on the federal claim andDISMISS without prejudice the pendent state law claims against both the City employees and Waggoner, Irwin, Sheele Associates.
Introduction
Former Aurora police sergeant Timothy Probst ("Officer Probst") has sued the City of Aurora, the former Chief of Police Noel Houze ("Chief Houze"), and two co-workers — police dispatcher Holly Fields ("Mrs. Fields") and Officer Bryan Fields ("Officer Fields") — under 42 U.S.C. § 1983 for violating his First Amendment right to free speech.
Section 1983 establishes civil liability for "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983.
Officer Probst alleges the defendants took adverse actions against him in violation of his First Amendment free speech right for expressing his reasonable suspicions that Officer Fields had been engaging in sex while on duty and had falsified an accident report. Defendants contend that Officer Probst's speech was not protected by the First Amendment, or in the alternative, his First Amendment interest was outweighed by the public interest in maintaining efficiency, loyalty and obedience within the ranks of the city's police department. Moreover, the individual defendants maintain that they, as government actors, are entitled to qualified immunity from civil liability for their alleged conduct towards Officer Probst.
Factual Background
This case can only be properly understood by taking note of the tangled web of employment grudges and grievances and rumors and gossip that serve as a backdrop for the events that underlie this lawsuit. The contentious working relationship between Officer Probst and Chief Houze dates to 1998, two years after Chief Houze was appointed to head the police department. Officer Probst was by then a fourteen-year veteran of the Aurora police force who had served as interim chief in 1995 and been appointed to serve as sergeant in 1996. In mid-1998, Officer Probst received three (3) reprimands from Chief Houze for neglect of duty and insubordination. Probst Dep. at 90; Ex. D2. Officer Probst's reaction to the letter of reprimand was to write to the mayor and Board of Works and "refuse" to accept the reprimand (indicating it was "totally absurd and inaccurate" and based upon the chief's grudge against him because he would not switch work shifts on an earlier date). He also requested an evidentiary hearing on the matter, with the presence of legal counsel. Ex. D3.
Chief Houze appointed Officer Probst on January 1, 1996 for a three-year term, ending December 31, 1999. The appointment was made in recognition of the plaintiff's "community service, contributions to good government and [. . .] willingness to serve [his] fellowmen." PL's Evidence, Ex. D1.
The plaintiff allegedly left in the middle of serving a search warrant because he had a haircut appointment, refused to switch from the day shift to the second shift on one occasion, and failed to provide the Chief with any emergency contact information while on his two-week vacation.
Later that year, Officer Probst filed a theft complaint against Chief Houze for improperly retaining longevity pay to which he was not entitled. By April 2000, the local newspaper reported on the "Aurora police seniority squabble" which described "increased friction" between the three most senior officers, Probst among them, and the Chief and less senior officers, including Bryan Fields, over the matter of shift assignments being awarded on the basis of personal favoritism rather than seniority. Ex. D10.
The squabble ignited a series of letters to the newspaper from Officer Probst and Mrs. Houze, the Chief's wife, on this topic and others. Probst Dep. at 90-98; Houze Dep. at 37-68; Exhibit D10. A final incident occurred on April 13, 2000 when the Chief discovered a timekeeping lapse by Officer Probst which resulted in a five-day suspension on May 2, 2000. Ex. D12. In addition, Officer Fields claims his rapport with Officer Probst began to deteriorate around Thanksgiving 1999 when he informed the plaintiff he"wasn't going to play games with him and others against the administration." Pl.'s Ev., Ex. H (Bryan Fields Dep. at 17). There is no evidence to support an inference that Officer Probst did not get along with either Holly Fields or Mayor Ullrich prior to the events underlying this lawsuit
On the same day Officer Probst received his first five-day suspension — May 2, 2000 — he also voiced his "reasonable suspicions" of police misconduct to Chief Houze, such suspicions as form the basis of his avowedly constitutionally protected speech. Officer Probst's suspicions emanated, he admits, from co-worker gossip and rumors. Officer Probst first learned of these rumors that his fellow officer and subordinate, Bryan Fields, was having an extramarital affair with an exotic dancer (Celeste Woods) from another police department employee, Dina Houze. Pl.'s Ev., Ex. C, Probst Dep. 64. There were apparently other sources (e.g., an unidentified man at the Shell gasoline station) of this information to Officer Probst. Plaintiff testified that he had also heard another station-house tale regarding Bryan Fields having sex while on duty from a former Aurora part-time police dispatcher, Kevin Turner. As he explained, "[. . .] it's a small town and it was just conversation, that you hear the name all the time, Bryan Fields and Celeste Woods." Id.
Dina Houze is not related to Chief Noel Houze.
Turner claims to have been present during an incident in 1998 when he and another officer in the radio room heard what they believed to be a woman's moans being broadcast from a police radio, later traced to Bryan Fields. Pl.'s Ev., Ex. G, Turner Dep. 13-14.
On the night of April 29, 2000, Officer Probst spotted Officer Fields' police cruiser parked at the dancer's apartment which, he testified, gave credence to all the swirling rumors and gossip. Id. at 71. Because Officer Probst knew that Officer Fields was off-duty at that hour and did not have permission to take the cruiser home, he suspected "immoral conduct" and felt duty-bound to investigate by virtue of his supervisory rank over Officer Fields. Id. at 66. His investigation never resulted in Officer Probst's seeing Officer Fields and Ms. Woods together, and he never asked Officer Fields outright whether the rumors about him were true. Id. at 67, 69.
According to Officer Probst, "[A] police officer, if he takes an oath and is on duty shouldn't be having sex in a police car [. . .] That's ghost employment. He's getting paid. He's supposed to uphold the law and protect citizens." Pl's Ev., Ex. C, p. 68.
Early on May 2, 2000, Ms. Woods was involved in a two-car accident for which Officer Fields was the reporting officer. When Officer Probst learned of this, he viewed Officer Fields' assignment as something more than mere coincidence in view of what he had come to believe about the two. More specifically, Officer Probst suspected Officer Fields had altered or falsified the accident report to cover up a pre-dawn rendezvous he had had with Ms. Woods. Later that day, Officer Probst reported his suspicions to Chief of Police Noel Houze, telling him about the April 29th sighting of Fields' cruiser at Ms. Woods' home and about the accident report made earlier that day which he thought did not "look right." Id. at 72, 73, 86; Pl's Ev. Ex. D, Houze Dep. 77-81. Chief Houze told Officer Probst that if Probst saw the police car again at that address and did not want to investigate the situation himself, he should contact him and he would "try to do it." Houze Dep. 78-80. Chief Houze did not conduct an independent investigation. Id. at 87, 92. Thereafter, Probst, by happenstance, encountered Claudell Lewis — the man who had allegedly hit Ms. Woods' car when it was stopped in the middle of the road in the early morning hours on May 2nd which incident generated the accident report — and inquired of him about the accident; what he heard from Lewis apparently bolstered his suspicions about Officer Fields. Probst. Dep. 74.
The accident report indicated that Ms. Woods stopped suddenly because she saw a deer bounding across the road and Claudell Lewis rear-ended her car. Probst. Dep. 72. Officer Probst asked Claudell Lewis whether he had seen a deer and Claudell Lewis told him he had not. Id. at 74. Officer Probst stated that usually accidents caused by deer involve one vehicle rather than two.
Two and a half months later, on the night of July 25, 2000, police dispatcher, Mrs. Fields, and Officer Probst were working together on the 11:00 p.m. to 7:00 a.m. shift at the police station. Plaintiff used this opportunity to speak to Mrs. Fields about her husband, Officer Fields, because another co-worker had apparently told Probst that Mrs. Fields had been inquiring about Probst's "checking into" the relationship between her husband and Ms. Woods. Each party recalls a different version of the conversation, but for purposes of this motion, we credit the plaintiff's view. Officer Probst imparted to Mrs. Fields the information he had previously reported to Chief Houze, namely, the "inappropriate" late-night sighting of Officer Fields' police cruiser at the home of Ms. Woods and the "out-of-place" accident investigation conducted by Officer Fields involving Ms. Woods. Probst Dep. 76-81.
Three days later, Officer Probst and Mrs. Fields encountered one another when the plaintiff came into the station and picked up a note from Officer Fields that read: "Tim, get your own life and stay out of mine!!!! P.S. There are medications on the market that might help." Pl.'s Ev., Ex. H. According to Mrs. Fields, and undisputed by the plaintiff, Officer Probst reacted angrily to the note and repeated his accusations that her husband was having an on-duty sexual affair with Ms. Woods. Mrs. Fields was upset by this exchange and called in sick the next day to avoid having to go to work. Def.'s Ev., Holly Fields' Dep. 33. That same day, Mrs. Fields submitted a formal, written complaint to Chief Houze in which she accused Officer Probst of creating "an extremely hostile environment" for her at work by relentlessly prying into her personal life and patting and rubbing her back while making sexual comments relating to her husband. Pl.s' Ev., Ex. D. Officer Fields also submitted a formal, written complaint to Chief Houze in which he accused Officer Probst of making maliciously-motivated false statements about him that resulted in personal trouble for him as well as a hostile working environment within the Aurora police department. Id., Ex. D.
These complaints prompted Chief Houze to hire an outside investigator, Waggoner, Irwin, Scheele Associates ("WISA") on August 4, 2000, to conduct an internal, independent investigation of the allegations of work-place harassment by Officer Probst. On September 27, 2000, WISA filed a report — the propriety of which is questioned by the plaintiff for WISA's failure to follow his recommendation to interview Kevin Turner — in which it recommended a five-day suspension of Officer Probst. Pl.'s Ev. in Supp. of Opp'n to WISA Mot. for Summ. J., Ex. 2. On October 4, 2000. Chief Houze suspended Officer Probst for five days without pay. Pl.'s Ev., Ex. D. The day after the suspension period ended, Officer Probst did not return to work and informed the department he would be taking an indefinite sick leave. Unsure when Officer Probst would be returning to work, Chief Houze consulted Mayor Ullrich about appointing a new sergeant. Houze Dep. at 133. Although not actively on the police force between October 2000 and February 2001, Officer Probst continued to collect evidence against Officer Fields by getting affidavits from Turner (in October 2000) as well as Ms. Woods (in February 2001). Pl.'s Ev. in Opp'n of WISA Mot. for Summ. J., Probst Aff. He turned over the Woods and Turner affidavits to the county prosecutor and Mayor Ullrich in February 2001. The prosecutor responded by convening a Grand Jury and appointing a special prosecutor. The Grand Jury heard testimony but did not indict Officer Fields. Probst Dep. at 114-15. The Mayor responded by letter, urging Officer Probst to follow Chief Houze's orders and cease all unauthorized investigations. In fact, he reminded Officer Probst that as of March 2, 2001, he had exhausted all paid and unpaid leave provided by the City and might be jeopardizing his continued employment for failing to honor Chief Houze's order. PL's Ev., Ex. D/28. Officer Probst officially separated from his employment in March 2001 when he was approved for a medical disability pension. PL's Ev., Ex. A, ¶ 2.
WISA interviewed the parties and co-workers and concluded that Officer Probst had created an intimidating and offensive work environment, neglected to follow employer policies with regard to properly reporting and investigating perceived employee misconduct, engaged in gossip and made false claims about employees and the activity of the department, compromised an accident investigation, and made statements that adversely affected the public's trust in the police department. WISA Report, p. 3.
According to Officer Probst, he was suffering from insomnia, high blood pressure and shortness of breath. Probst. Depo. at 55-57.
Officer Probst's fixed-term appointment had expired on December 31, 1999, approximately nine months earlier; the delay in making a decision on Probst's reappointment was not explained to us. On November 29, 2000, Probst was returned to the rank of patrol officer, the last permanent rank he held before sergeant Id.; see also, Ex. 22. The reduction in rank was not accompanied by a reduction in pay.
On February 23, 2001, Probst wrote to Sally Blankenship, the Dearborn County prosecutor, urging her to initiate a criminal investigation of Officer Fields. He also wrote that Officer Fields and Mrs. Fields should be fired and Chief Houze should resign.
Officer Probst maintains that as a result of reporting his suspicions of police misconduct to Chief Houze, he wrongfully endured retaliatory actions for the exercise of his constitutional right to speak freely on matters of public concern. The retaliatory actions include the Fields' allegedly defamatory complaints about him to Chief Houze, the allegedly defamatory WISA report recommending suspension from police duty, the undeserved unpaid five-day suspension, the refusal of the Mayor to reverse the suspension decision and, ultimately, Probst's demotion from sergeant to patrol officer.
Legal Analysis
I. Summary Judgment Standard.The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
On a motion for summary judgment, the burden rests with the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920.
II. Section 1983 Standard.
To state a claim for retaliation in violation of the First Amendment, a public employee must establish the following three elements: (1) his speech was constitutionally protected as defined by the Connick-Pickering standard; (2) the defendants took an adverse employment action against him that was motivated by the public speech; and (3) the defendants would not have taken the adverse action in the absence of his exercise of protected speech.
If the plaintiff can establish the first two elements, the burden shifts to the defendants to prove by a preponderance of the evidence that the adverse action would have been taken regardless of his protected speech. If the defendants carry that burden, Plaintiff bears the burden of persuasion to show that the defendants' proffered reasons were a pretext for retaliation and that the exercise of protected speech was the real reason the defendants fired him. Gazarkiewicz v. Town of Kingsford Heights, 359 F.3d 933, 948 (7th Cir. 2004); Vukadinovich v. Bd. of Sch. Trs. of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir. 2002); Neff v. Hmurovich, 261 F. Supp.2d 1026, 1041 (S.D. Ind. 2003) (Barker, J.).
We note that all the individual defendants are being sued in their official and personal capacities. Pl.'s Am. Compl. ¶ 9. Defendant contends correctly, and Plaintiff acquiesces, that official capacity claims against the City employees are essentially claims against the City. Kentucky v. Graham, 473 U.S. 159 (1985); Rascon v. Hardiman, 803 F.2d 269 (7th Cir. 1986). This leads us to regard the official capacity claims against the individual defendants as redundant; insofar as they acted in their "official" capacities, they are the City of Aurora, already named in the lawsuit. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-91 (1978); Gustafson v. Jones, 117 F.3d 1015, 1021-1022 (7th Cir. 1997). Accordingly, the Section 1983 claims against the individual defendants in their official capacities are dismissed. Myles v. City of Indianapolis, 213 F. Supp.2d 962, 967 (S.D. Ind. 2002) (Barker, J.).
This leaves us to consider the alleged liability of the City of Aurora to Officer Probst before turning to the discussion of the various individual liabilties. A municipality violates the Constitution when it has an unconstitutional custom or policy. A "custom" or "policy" may take one of three forms: (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a "custom or usage" with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policy-making authority. McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995); Tanners Creek Properties, LLC v. Tremain, 2003 WL 22284569, *4 (S.D.Ind. 2003) (Barker, J.)
Defendants assert the City is not liable to Plaintiff because there is an absence of evidence that the City had a custom, practice or policy which caused the deprivation of his rights. We agree; Officer Probst offers conclusory statements that the City was "deliberately indifferent" to his rights because "it had every reason to believe that Plaintiff's concerns were well founded." PL's Opp'n Br. at 26. This, in the absence of more detailed evidence of policy, practice or custom, is insufficient to establish the City's liability.
The plaintiff asserts a second basis for the City's liability: the failure of the Board of Works — the final arbiter on employment matters — to allow a hearing on Plaintiff's appeal of his five-day suspension. On October 12, 2000, Mayor Ullrich, acting on behalf of the Board of Works, informed Plaintiff that the Board of Works had reviewed his suspension without pay, elected to exercise its statutory discretion and not hold a hearing on his appeal and, finally, decided to uphold the suspension. PL's Ev., Ex. J. According to Ind. Code 36-8-3-4.1(b), the Board has the discretion to hold a hearing to review a reprimand or five-day, unpaid suspension of a member of the paid police force. Without additional evidence of the Board of Works' custom, practice or policy of denying reviews, there is no foundation for Plaintiff's Section 1983 claim against the City.
We now turn to the claims asserted against the City employee defendants in their individual capacities.
III. First Amendment Issue.
We begin by acknowledging that public-sector employees do not give up their free speech rights simply because they work for the government.See, e.g., Connick v. Myers, 461 U.S. 138 (1983). Whether a public employee's speech is constitutionally protected is a two-part question of law to be resolved by the court. Kokkinis, 185 F.3d at 834-44; Kujawaski v. Bd. of Comm'rs of Bartholomew County Corr. Dep't, 104 F. Supp.2d 1027, 1030 (S.D. Ind. 2000) (Barker, C.J.). An employee's speech is protected if it concerns a public issue and the employee's interest in the speech outweighs the state's interest in promoting the efficiency of its public services. Connick, 461 U.S. at 142; Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). We pay close attention to cases which arise in the context of public employment, but the Seventh Circuit has cautioned that courts are not to become entangled in every employment dispute merely because allegations involving free speech arise. Callawav v. Hafeman, 832 F.2d 414, 416 (7th Cir. 1987).
A. Speech on a Matter of "Public Concern. "
It is troublesome to our analysis that the parties in their briefs have focused on completely different incidents of speech by Officer Probst. The defendants base their legal analysis exclusively on the July 25th conversation between Officer Probst and Mrs. Fields in which the topic of discussion was primarily her husband's marital infidelity. In contrast, Plaintiff argues that the constitutionally protected speech occurred two and one-half months earlier in his report to Chief Houze on May 2. Plaintiff's version reflects the allegations in his amended complaint which claim, "[A]fter learning that Plaintiff had reported Bryan Fields' suspected misconduct to Defendant Houze, Defendants Holly Fields and Bryan Fields submitted false complaints regarding Plaintiff to Defendant Houze [. . .]." Am. Compl. ¶ 14. Plaintiff clearly alleges that his initial report to Chief Houze was the catalyst for the adverse actions against him. That said, we are hard-pressed to understand Plaintiff's claim that he was treated adversely by either Chief Houze or Officer and Mrs. Fields if the July 25 conversation is omitted from the analysis. The allegedly false complaints by the Fields came on the heels of the July 25 conversation and the subsequent suspension reflected Chief Houze's acceptance of the recommendation of WISA, the independent investigator hired to follow up on the allegations against Officer Probst for his words and conduct towards Mrs. Fields on July 25, 2000.
We think a fair assessment of the plaintiff's claim requires us to consider all of the plaintiff's speech on the topic of police misconduct from May 2 and thereafter, including July 25, in order to determine whether the punishment imposed on Probst was for his constitutionally-protected speech. It is the plaintiff's responsibility to establish the link between his First Amendment activity and the employer-imposed discipline, namely, the unpaid five-day suspension followed by a demotion from sergeant to patrol officer. See e.g.,O'Connor v. Chicago Transit Authority, 985 F.2d 1362, 1368-1371 (7th Cir. 1993) (upholding summary judgment for defendants on the ground that the plaintiff had failed to link his First Amendment activity to his suspension and termination); Wright v. Illinois Dept. of Children Family Services, 40 F.3d 1492, 1500 (7th Cir. 1994). We recount again the evidence with this legal analysis in mind.
On May 2, 2000, Officer Probst reported to Chief Houze that he had recently seen Bryan Fields' police car parked at the home of Celeste Wood from which he formed a reasonable belief that they were having an affair, perhaps even having sex while Fields was on duty. In addition, Officer Probst believed that Fields had submitted a questionable accident report involving Ms. Woods. Officer Probst admitted to Chief Houze that he had not personally witnessed the two together, but others had. Probst Dep. 86; Houze Dep. 72. Chief Houze told Officer Probst that if the squad car were spotted at Ms. Woods' home again, Probst should either investigate it or call him and he would go "find out what was going on." Houze Dep. 78-80. Officer Probst believed such conduct was inappropriate and unbecoming of an officer who is sworn to uphold the law and protect citizens. Probst Dep. 68.
Probst's perceptions inform our determination of whether his speech was on a matter of public or private concern: do his concerns reflect those of ordinary citizens regarding the proper operation of a police department? To reach our determination, we take into account the "content, form and context" of the statements as revealed by the whole record. Caruso v. De Luca, 81 F.3d 666, 670 (7th Cir. 1996) (citingConnick, 461 U.S. at 147-148); Breuer v. Hart, 909 F.2d 1035 (7th Cir. 1990). The content of the plaintiff's private conversation with Chief Houze on May 2nd was to disclose possible "wrongdoing," to wit, another officer's having sex on duty and falsifying official reports. However aggrieved Probst may have been personally by Officer Field's suspected conduct, it was reasonable to voice his concerns to Chief Houze on what is clearly a matter of public concern. However, no employer discipline resulted from this conversation. Officer Probst offers no evidence that he was treated differently after making his report on May 2nd; much to his dismay and apparent consternation, Chief Houze did not treat Officer Fields differently either. The first instance of employer discipline against Probst, the suspension, occurred months later, after the Fields filed their respective complaints against Officer Probst, which prompted Chief Houze to hire WISA to investigate. According to the plaintiff, the first instance of any adverse action was the filing of "false complaints" of harassment against him by the Fields following the July 25th conversation. Thus, we turn our analysis to the content and context of that speech incident.
In determining whether matters of public concern are implicated by the speech of a public employee, the speaker's motive alone is relevant but not dispositive. The bulk of the cases in the Seventh Circuit take into account "the point of the speech in question" by asking whether the employee's point in speaking was to bring wrongdoing to light or to further some purely private interest. Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir. 1985); see also, e.g.; Colburn v. Trustees of Indiana Univ., 973 F.2d 581, 585-86 (7th Cir. 1992); Barkoo v. Melby, 901 F.2d 613, 618 (7th Cir. 1990); Vukadinovich, 853 F.2d at 1389-91: Hesse v. Board of Education of Township High School Dist. No. 211, 848 F.2d 748, 752 (7th Cir. 1988), cert. denied, 489 U.S. 1015 (1989); Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir. 1987); Smith v. Fruin, 28 F.3d 646, 651 (7th Cir. 1994); but see Belk v. Town of Minocqua, 858 F.2d 1258, 1263-64 (7th Cir. 1988) (if content of speech is of public concern, employee's personal motivation to speak does not defeat finding that speech is protected).
We are not persuaded that the statements about Officer Fields, when made to Holly Fields, wife of the alleged philanderer, during the course of their work duties on the night shift relating almost exclusively to her husband's infidelities, rise to the level of public concern. What motivated Officer Probst to make those remarks to the aggrieved listener, who likely was powerless to change her husband's alleged conduct and was most assuredly powerless to affect personnel matters in the police department?, we ask. In this context, Officer Probst's speech disclosing his reasonable suspicions of police misconduct ceases to serve any public purpose, which removes it from constitutional protections; similarly, such private speech does not insulate the speaker from retaliatory, adverse actions (i.e., the Fields' complaints, regardless of their veracity) that flow from its exercise. In any event, co-worker complaints are not employer discipline and thus occur outside the reach of Section 1983. Plaintiffs failure to establish that his speech pertained to a matter of public concern and thus was deserving of constitutional protections as well as his failure to link his otherwise protected First Amendment activity to his employer's suspension and subsequent demotion defeats his claim for relief on this basis.
B. Balancing the Interests of Employee and Employer.
We now address briefly the second part of the Connick-Pickering test: whether the employee's interest in the speech outweighs the state's interest in promoting the efficiency of its public services. Plaintiff does not prevail in this analysis either, as we explain below.
The Seventh Circuit gives considerable deference to the judgment of police departments in assessing their employee's speech. See, Kokkinis, 185 F.3d at 845 (holding that deference to the employer's judgment regarding the disruptive nature of an employee's speech is especially important in the context of law enforcement); Breuer, 909 F.2d 1035 (7th Cir. 1990) (holding that the interests of the sheriff in running a small, tightly knit police department were more substantial than the [plaintiffs's] interest in exposing the practice of favoritism in the department); Nanavaty v. City of Indianapolis, 2001 WL 1781924 (S.D. Ind. 2001).
Moreover, a public employer is entitled to consider the "potential disruptiveness of the speech" and is not required to wait until those working relationships actually disintegrate if immediate action might prevent such disintegration." Breuer, 909 F.2d at 1040; Caruso, 81 F.3d at 670-671.
When reviewed in this light, we cannot fault Chief Houze or the City of Aurora for concluding that Officer Probst's contributions to spreading the rumors about Officer Fields to co-workers and community members created problems of management and morale in the Aurora police department. In speaking to Holly Fields at a time when she and the plaintiff were the only two people on duty during the night shift on July 25, Officer Probst's remarks not only distracted her from her official responsibilities but created an awkwardness between them thereafter, as evidenced by Mrs. Fields calling in sick and not reporting to work the day after the July 28th incident involving her husband's angry note. In addition, Probst created ongoing tensions between himself and one of his fellow officers, a situation that is particularly corrosive where confidence in and loyalty to colleagues are essential components of an effective police department's ability to function successfully. Other difficulties likely were created by Probst's speech which weighed in favor of the employer's decision to discipline Probst immediately after the July 25th incident (i.e., the involvement of the Mayor and the County Prosecutor). Whether it was through patient forbearance or the need to wait for the results of the WISA investigation or some other less worthy reason (e.g., neglect), discipline of Probst did not occur until October 4, 2000. Even so, we find no constitutional basis to question these judgments or these actions by Plaintiff's supervisors.
Plaintiff also alleges that the decision to suspend him was misguided because it was based on a flawed investigation by WISA, and this causes Mayor Ullrich to be individually liable to him for not overturning the wrongful decision to suspend him. Probst Dep. at 101. As discussed above, Mayor Ullrich acted in concert with the rest of the Board of Works when it upheld Officer Probst's five-day suspension without the benefit of a hearing, and this was upon an exercise of statutory discretion. No evidence has been presented to demonstrate any individual retaliatory conduct on the Mayor's part. Moreover, Plaintiff, again fails to establish the requisite link between his First Amendment activity and the allegedly retaliatory action. Because the WISA investigation was initiated in response to the July 25th conversation, which speech we have held to involve private rather than public concerns and thus not constitutionally protected, there is no viable Section 1983 claim against the mayor in his individual capacity.
Having determined that Plaintiff has not successfully established liability under Section 1983 against the named defendants, the only remaining causes of action involve state claims of defamation and tortious interference with employment against the Fields and WISA, which we will leave to be litigated in state court.
These rulings moot Defendants' claim of qualified immunity which we therefore do not address in this entry.
Conclusion
For the reasons stated above, we hold that Officer Probst has presented legally insufficient evidence to establish a violation of his First Amendment right to free speech, under 42 U.S.C. § 1983, by the City of Aurora, Chief of Police, the Mayor and/or Holly and Bryan Fields. Accordingly, we GRANT Defendants' motion for summary judgment with respect to the plaintiffs Section 1983 claim and DISMISS without prejudice the pendent state law claims against Holly Fields, Byran Fields and WISA.
It is so ORDERED.