Ronald Forgue v. City of Chicago , 873 F.3d 962 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2857
RONALD FORGUE,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15-cv-08385 — Charles R. Norgle, Judge.
____________________
ARGUED SEPTEMBER 27, 2017 — DECIDED OCTOBER 17, 2017
____________________
Before WOOD, Chief Judge, and FLAUM and KANNE, Circuit
Judges.
FLAUM, Circuit Judge. From 1986 to 2015, Plaintiff Ronald
Forgue was an officer with the Chicago Police Department
(“CPD”). Forgue alleges that, from 2012 to 2015, he was har-
assed by fellow police officers for adhering to CPD policy and
procedure and for filing numerous internal complaints.
Forgue filed suit against the City of Chicago and over forty
2 No. 16-2857
individual officers under 42 U.S.C. § 1983 for First Amend-
ment retaliation, equal protection, civil conspiracy, and pro-
cedural due process, as well as related state law claims. The
district court granted defendants’ Rule 12(b)(6) motion to dis-
miss Forgue’s federal claims and declined to exercise supple-
mental jurisdiction over his state law claims. We affirm in part
and reverse in part.
I. Background
From 1986 to 2015, Ronald Forgue worked for the CPD in
several capacities, including for the Internal Affairs Division
(“IAD”), as an incident team Sergeant, as an Operations Lieu-
tenant, and as a Commanding Officer in the Alternate Re-
sponse Unit. Forgue officially retired on August 13, 2015 after
nearly thirty years of service.
Forgue alleges that, between 2012 and 2015, he was har-
assed “in retaliation against his leadership as a sergeant and
lieutenant because he followed proper procedure.” Forgue
cites several specific instances where he was wrongfully tar-
geted for adhering to CPD rules. In 2012, for example, Forgue
complained to his superiors that white officers were “spitting
tobacco in black families’ homes when on calls.” Forgue
claims that, in response, his superiors laughed at him and told
him to “not mess with his boys.”
Forgue also maintains that CPD harassed him by unlaw-
fully targeting his sons. Between June 2012 and January 2015,
Forgue’s three sons were stopped, arrested, handcuffed, or
detained a total of twenty-two times. According to Forgue, the
“majority of the reasons given for the stops and/or arrests
were false.” As examples: Forgue’s three sons were falsely la-
No. 16-2857 3
beled as gang members; in November 2012, two officers un-
lawfully seized one of Forgue’s sons, drove him around, and
interrogated him for two hours; and in August 2014, an officer
“grabbed [Forgue’s son] by the neck and beat[] [him] in front
of [his] house.” In response to this treatment, Forgue filed
complaints with his superiors.
Forgue also was allegedly targeted directly. On November
20, 2013, a poster falsely labeling Forgue’s picture with the
words “sex offender” was displayed and distributed at
Forgue’s police station. On March 24, 2014—the same day that
he reported to the IAD that a sergeant was improperly distrib-
uting a booking photo and rap sheet of his son—Forgue dis-
covered a fake Facebook account created under his name. The
Facebook page associated with the account displayed a pho-
tograph of Forgue labeled “IAD INFORMANT.” The creator
of the account (who falsely purported to be Forgue himself)
posted disparaging comments about Forgue as well as false
complaints on the official Facebook page for the Chicago
Mayor’s Office.
Moreover, Forgue claims he was passed over for several
promotions in favor of other officers who did not file com-
plaints, and on September 23, 2014, Forgue was assigned to
the less desirable Alternate Response Unit. According to
Forgue, the police union told him this transfer was because
“of the complaints he made to the [IPRA] and IAD.” Overall,
between May 2012 and September 2014, CPD officers filed
seven formal complaints against Forgue, allegedly for his
strict compliance with CPD policies.
Finally, upon his retirement from the CPD in 2015, Forgue
was denied a retirement identification card (“Retirement
4 No. 16-2857
Card” or “Card”). Pursuant to CPD policy, an officer who pro-
vides at least ten years of service and leaves the CPD in “good
standing” receives a Retirement Card. Although the good
standing determination is left to the discretion of the Police
Superintendent, Forgue’s complaint alleges that it was the
“policy and practice” of the CPD to issue a Card to all retiring
officers. There are several detriments to not receiving a Card.
Without one, Forgue cannot carry a concealed firearm, pro-
cure benefits such as health insurance, or find other employ-
ment in law enforcement.
On September 23, 2015, Forgue filed a complaint against
the City of Chicago and forty-two City employees, including
the CPD Superintendent and CPD sergeants, lieutenants, and
officers. Forgue brought 42 U.S.C. § 1983 claims for First
Amendment retaliation, equal protection, civil conspiracy,
and procedural due process, as well as several related state
law claims. In response, defendants filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). The dis-
trict court granted defendants’ motion on Forgue’s federal
claims and declined supplemental jurisdiction over the re-
maining state law claims. This appeal followed.
II. Discussion
We review a district court’s grant of a Rule 12(b)(6) motion
to dismiss de novo. Kubiak v. City of Chicago, 810 F.3d 476, 480
(7th Cir. 2016). To survive a motion to dismiss, a plaintiff must
allege “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads fac-
tual content that allows the court to draw the reasonable in-
ference that the defendant is liable for the misconduct al-
No. 16-2857 5
leged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausi-
bility standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). In
reviewing a 12(b)(6) motion, “[w]e accept as true all of the
well-pleaded facts in the complaint and draw all reasonable
inferences in favor of the plaintiff.” Kubiak, 810 F.3d at 480–81.
A. First Amendment Retaliation Claim
“To establish a claim for retaliation in violation of the First
Amendment, a public employee first must prove that [his]
speech is constitutionally protected.” Id. at 481. A public em-
ployee’s speech is constitutionally protected only if it: (1) was
made as a private citizen; and (2) addressed a matter of public
concern. Id. If the employee fails to establish either of these
elements, “the employee has no First Amendment cause of ac-
tion based on his or her employer’s reaction to the speech.”
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). “The determina-
tion of whether speech is constitutionally protected is a ques-
tion of law.” Kubiak, 810 F.3d at 481.
Here, the district court held that Forgue spoke as a public
employee, not a private citizen, in filing his internal com-
plaints of police misconduct. We agree. “[W]hen public em-
ployees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their com-
munications from employer discipline.” Garcetti, 547 U.S. at
421. “Determining the official duties of a public employee re-
quires a practical inquiry into what duties the employee is ex-
pected to perform, and is not limited to the formal job descrip-
tion.” Kubiak, 810 F.3d at 481 (quoting Houskins v. Sheahan, 549
F.3d 480, 490 (7th Cir. 2008)).
6 No. 16-2857
Forgue contends that his complaints with the IAD and
IPRA about the CPD’s treatment of his sons are entitled to
First Amendment protection because they were made “as a
concerned citizen and father outside of his employment du-
ties.” He stresses that anyone mistreated by the police is free
to file complaints with the IAD. Forgue’s argument is unper-
suasive. We have held on several occasions that “a police of-
ficer’s duty to report official police misconduct is a basic part
of the job.” See Roake v. Forest Pres. Dist. of Cook Cty., 849 F.3d
342, 346 (7th Cir. 2017) (holding that a police officer spoke as
a public employee when he shared complaints “only with his
employer, and the complaints focused exclusively on official
misconduct by his fellow officers”); Kubiak, 810 F.3d at 481–82
(holding that a police officer’s internal complaints alleging
that a co-worker inappropriately yelled at her about a work-
related report were “made as a public employee and not as a
private citizen”); Vose v. Kliment, 506 F.3d 565, 571 (7th Cir.
2007) (holding that a police officer “was merely doing his job”
when he reported suspected police misconduct to his superi-
ors). Indeed, this conclusion makes sense because at bottom,
a police officer is “responsible for protecting the public from
harm.” Kubiak, 810 F.3d at 482.
Forgue argues his speech is distinct from cases like Kubiak.
First, he notes that his sons were detained or arrested “away
from the office.” In the context of police activity, however, this
fact is immaterial; officers perform the majority of their work
patrolling the streets.
Second, Forgue argues that his speech concerned the
safety of his sons rather than the terms of his police duties.
The relevant inquiry, however, is whether the speech is made
pursuant to, not about, public employment. Like in Kubiak,
No. 16-2857 7
Forgue’s grievances were “intimately connected” with his job.
See id. Indeed, Forgue’s complaint specifically alleges that the
CPD’s retaliatory behavior was “due to [his] complaints to
IAD and due to [his] reputation as an officer who follows
[CPD] rules and regulations.” Forgue’s attempts to distin-
guish Kubiak are thus unavailing.
Moreover, as the district court stressed, Forgue’s speech
was required by CPD General Order G08-01-02, which man-
dates police officers “to notify their superiors when they ob-
serve instances of police misconduct.” Forgue v. City of Chicago,
No. 15-cv-08385, slip op. at *3 (N.D. Ill. June 15, 2016); see Chi-
cago Police Department General Order G08-01-02, http://di-
rectives.chicagopolice.org/directives/data/a7a57be2-
12ce5918-9f612-ce69-05188cb6d4da6c72.html (last visited Oct.
17, 2017) (“Members who have knowledge of circumstances
relating to misconduct will submit an individual written re-
port to a supervisor … .”). Additionally, the Rules of Conduct,
adopted by the CPD Police Board, state that police officers
must “report to the Department any violation of Rules and
Regulations or any other improper conduct which is contrary
to the policy, orders or directives of the Department.” Chicago
Police Department Rules and Regulations, Article V. Rules of
Conduct, Rule 22, https://www.cityofchi-
cago.org/dam/city/depts/cpb/PoliceDiscipline/RulesofCon-
duct.pdf (last visited Oct. 17, 2017). Thus, “part of Plaintiff’s
job requirements was to make the very complaints for which
Plaintiff alleges that he was retaliated against.” Forgue, No.
15–cv–08385, at *3–4. 1 As a result, it is clear that Forgue’s com-
plaints were made pursuant to his job responsibilities. The
1Forgue argues that general orders should not be relied upon in deter-
mining an officer’s job requirements for First Amendment purposes. We
8 No. 16-2857
district court, therefore, correctly concluded that Forgue
spoke as a public employee, not a private citizen. Thus,
Forgue’s speech is not entitled to First Amendment protec-
tion.
B. Equal Protection Class-of-One Claim
To state an equal protection claim on a class-of-one theory,
a plaintiff must allege that he has been “intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Engquist v. Or.
Dep’t of Agric., 553 U.S. 591, 601–02 (2008) (quoting Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Forgue asserts
that defendants violated his equal protection rights by filing
false complaints, discriminating against him in the conditions
of his employment (specifically, by denying him a Retirement
Card), and targeting his sons for no reason other than to har-
ass him. This theory fails. As the district court held, Forgue’s
theory of liability is categorically foreclosed by the Supreme
Court’s holding in Engquist.
In Engquist, the Court explicitly held that “a ‘class-of-one’
theory of equal protection has no place in the public employ-
ment context.” Id. at 594. In making this decision, the Court
considered the “traditional view of the core concern of the
have relied upon general orders on multiple occasions, however, to deter-
mine that a public employee was not speaking as a private citizen. See, e.g.,
Houskins, 549 F.3d at 491 (“[The public employee] was clearly expected to
report the incident under the General Orders [of the Cook County Depart-
ment of Corrections], and therefore she was speaking as part of her job as
an employee of the Sheriff, and not as a citizen.”); Swearnigen-El v. Cook
Cty. Sheriff’s Dept., 602 F.3d 852, 862 (7th Cir. 2010) (determining that a
correctional officer’s complaints to his supervisors “were made pursuant
to his duties” because a general order created a duty to report).
No. 16-2857 9
Equal Protection clause as a shield against arbitrary classifica-
tions.” Id. at 598. It stressed that, in acting as an employer, the
government’s actions “by their nature involve discretionary
decisionmaking based on a vast array of subjective, individu-
alized assessments.” Id. at 603. Thus, “[t]o treat employees dif-
ferently is not to classify them in a way that raises equal pro-
tection concerns, [but] [r]ather, it is simply to exercise the
broad discretion that typically characterizes the employer-
employee relationship.” Id. at 605. To allow a class-of-one
challenge in these circumstances “would undermine the very
discretion that such state officials are entrusted to exercise.”
Id. at 603.
Forgue argues that Engquist does not apply because
“[t]here was no rational reason” for officers to make meritless
stops, detentions, and arrests of his sons. Like Forgue, how-
ever, the plaintiff in Engquist similarly argued that she was
fired for “arbitrary, vindictive, and malicious reasons.” Id. at
595. In rejecting this claim, the Court did not conclude that the
defendants acted reasonably; it instead created a per se rule
that public employees may not bring class-of-one claims
against their public employers.
Forgue further contends that Engquist does not bar his
claim because the complaint is directed not just at the City, but
also individual defendant officers. This argument fails. In
Engquist, the plaintiff sued not only the Department of Agri-
culture, but also individual employees. Id. at 594. By exten-
sion, our cases applying Engquist have interpreted it to bar
class-of-one claims about “disputes related to a public em-
ployee’s interactions with superiors or co-workers.” Avila v.
Pappas, 591 F.3d 552, 554 (7th Cir. 2010) (emphasis added); see
also Gross v. Town of Cicero, Ill., 619 F.3d 697, 701, 703 (7th Cir.
10 No. 16-2857
2010) (barring a town employee’s class-of-one claim against
the town and individual town officials).
Finally, Forgue maintains that Engquist does not apply be-
cause the actions of the defendant police officers “fall[] out-
side [the] individualized and subjective determinations inher-
ent in the public employment context” that were the basis of
the Engquist decision. Determinations as to the conditions of
Forgue’s employment, however—including whether to issue
him a Retirement Card—are precisely the kind of discretion-
ary decisions that, under Engquist, cannot underlie a class-of-
one claim. Moreover, even Forgue’s allegations that CPD of-
ficers targeted his sons ultimately stem from actions Forgue
took at work pursuant to his official police duties (filing com-
plaints against fellow officers and strictly following CPD
rules and procedure). 2
In short, and as we have previously made clear, Engquist
held that “disputes related to a public employee’s interactions
with superiors or co-workers never may be litigated as class-
of-one claims under the equal protection clause.” Avila, 591
F.3d at 554; see also O’Gorman v. City of Chicago, 777 F.3d 885,
892 (7th Cir. 2015) (“[T]he Supreme Court has held that class-
of-one claims are inapplicable to situations of public employ-
ment … .”); Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 895
(7th Cir. 2012) (en banc) (opinion of Posner, J.) (“The specific
question in Engquist was whether public employees should be
2 Forgue cites to several cases to support his contention that Engquist does
not apply. See, e.g., Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir. 2012);
Ivy v. Powers, No 08-cv-3826, 2009 WL 230542 (N.D. Ill. Jan. 30, 2009); Craft
v. Flagg, No. 06-cv-1451, 2008 WL 1883337 (N.D. Ill. Apr. 24, 2008). These
cases are not helpful because each involved a private individual suing a
public entity, not a public employee suing his employer.
No. 16-2857 11
allowed to bring class-of-one suits against their employers;
the Court held they could not.”). Thus, the district court cor-
rectly determined that Engquist precludes Forgue’s equal pro-
tection class-of-one claim.
C. Procedural Due Process Claim
The Due Process Clause of the Fourteenth Amendment
prohibits states from “depriv[ing] any person of life, liberty,
or property, without due process of law.” U.S. Const. amend.
XIV, § 1. “To state a claim for a procedural due process viola-
tion, a plaintiff must demonstrate (1) a cognizable property
interest; (2) a deprivation of that property interest; and (3) a
denial of due process.” Manistee Apts., LLC v. City of Chicago,
844 F.3d 630, 633 (7th Cir. 2016). The district court dismissed
Forgue’s due process claim on the ground that Forgue failed
to plead plausible facts suggesting that he possessed a cog-
nizable property interest in receiving a Retirement Card. We
disagree.
“Property interests are not created by the Constitution,
‘they are created and their dimensions are defined by existing
rules or understandings that stem from an independent
source such as state law.’” Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 538 (1985) (quoting Board of Regents v. Roth, 408
U.S. 564, 577 (1972)). Therefore, property interests can be cre-
ated by “contracts with public entities.” O’Gorman, 777 F.3d
at 890 (quoting Ulichny v. Merton Cmty. Sch. Dist., 249 F.3d 686,
700 (7th Cir. 2001)). Such interests “are not limited by a few
rigid, technical forms.” Perry v. Sindermann, 408 U.S. 593, 601
(1972). Instead, “‘property’ denotes a broad range of interests
that are secured by ‘existing rules or understandings.’” Id.
(quoting Roth, 408 U.S. at 577). Indeed, “[a] person’s interest
in a benefit is a ‘property’ interest for due process purposes if
12 No. 16-2857
there are such rules or mutually explicit understandings that
support his claim of entitlement to the benefit and that he may
invoke at a hearing.” Id. (emphasis added).
To be sure, an individual must have more than “an ab-
stract need or desire” or “unilateral expectation” to possess a
cognizable entitlement. Roth, 408 U.S. at 577. Crucially, how-
ever, an entitlement need not be codified in writing; a “de
facto” unwritten or implied policy is sufficient to create an en-
titlement and protectable property interest. Sindermann, 408
U.S. at 600–02 (holding, in the context of university employ-
ment, that “there may be an unwritten ‘common law’ in a par-
ticular university that certain employees shall have the equiv-
alent of tenure”); see also Hermes v. Hein, 742 F.2d 350, 354–55
(7th Cir. 1984) (“A property interest in promotion need not
arise out of a contract or statute, but may be based on a de facto
promotional program.”); Vail v. Bd. of Educ. of Paris Union Sch.
Dist. No. 95, 706 F.2d 1435, 1437 (7th Cir. 1983) aff’d by equally
divided Court, 466 U.S. 377 (1984). This sort of “common law”
property interest can be established through unwritten “mu-
tually explicit understandings” or “legitimate and reasonable
reliance on a promise from the government.” Hannon v. Turn-
age, 892 F.2d 653, 658 (7th Cir. 1990); see also Vail, 706 F.2d at
1440 (“Legitimate and reasonable reliance on a promise from
the state can be the source of property rights protected under
the Due Process Clause … .”).
Forgue contends that he has a cognizable property interest
in receiving a Retirement Card, and that his right to that ben-
efit was deprived without due process. According to CPD
policy, a retired employee receives a Card if he retires in good
standing. It is undisputed that the determination as to
whether an officer retires in good standing is at the discretion
No. 16-2857 13
of the CPD Superintendent. This does not mean, however,
that such discretion can be arbitrary or totally unfettered. In-
deed, Forgue alleges in his complaint that it was “the policy
and practice” of the CPD and the Superintendent to issue
Cards to police officers. Making all reasonable inferences in
favor of Forgue—as we must when considering a 12(b)(6) mo-
tion to dismiss—Forgue pleads a plausible claim that the CPD
has an unwritten, de facto custom to grant virtually all retiring
employees a Card. Thus, Forgue sufficiently alleges that he
has a legitimate entitlement and cognizable property interest
in receiving a Retirement Card. We must therefore reverse the
district court’s decision to dismiss Forgue’s procedural due
process claim.
D. Conspiracy Claim
Finally, Forgue claims that defendants entered into a con-
spiracy to violate his First Amendment and equal protection
rights. Because Forgue failed to state a plausible claim of relief
under these theories, the district court properly dismissed his
conspiracy claim. 3
III. Conclusion
For the foregoing reasons, we AFFIRM in part and REVERSE
and REMAND in part in accordance with this opinion.
3 It cannot be fairly said that Forgue’s conspiracy claim incorporates his
procedural due process claim. For one, the conspiracy count makes ex-
plicit reference to the First Amendment and equal protection claims, but
does not mention the procedural due process claim. Moreover, although
the conspiracy count lists explicit acts taken in furtherance of the pur-
ported conspiracy, it makes no reference to Forgue’s Retirement Card, the
sole subject of his procedural due process claim.