Callahan, Michale v. Fermon, Steven ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-4313, 05-4335, 06-1055 & 06-1098
MICHALE CALLAHAN,
Plaintiff-Appellee,
v.
STEVEN M. FERMON and
DIANE CARPER,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Central District of Illinois.
No. 03 C 2167—Harold A. Baker, Judge.
____________
ARGUED JANUARY 10, 2008—DECIDED MAY 20, 2008
____________
Before EASTERBROOK, Chief Judge, and RIPPLE and
ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Michale Callahan, a former lieu-
tenant with the Illinois State Police, was transferred after
making statements at a meeting about a cold case and
after making official complaints about his superior offi-
cers. In bringing this action under 42 U.S.C. § 1983
against several of his superiors, he claims that he was
transferred in retaliation for speech that is protected by
the First Amendment. The jury found that two of the
2 Nos. 05-4313, 05-4335, 06-1055 & 06-1098
defendants, Diane Carper and Steven Fermon, had retali-
ated against him on the basis of his protected speech and
awarded him compensatory and punitive damages. The
defendants appealed. While this appeal was pending, the
Supreme Court decided Garcetti v. Ceballos, 547 U.S. 410
(2006), which held that the First Amendment does not
protect a public employee’s statements made as part of
his official duties. In light of Garcetti, we hold that the
First Amendment does not insulate Mr. Callahan’s state-
ments from employer discipline. Accordingly, the judg-
ment in his favor is reversed, and the case is remanded
with instructions to enter judgment for the defendants.
I
BACKGROUND
A.
Michale Callahan was a lieutenant in Zone V of the
Illinois State Police (“ISP”). His captain, the head of
Zone V, was Steven Fermon. Cpt. Fermon reported to
Diane Carper, the commander of several zones including
Zone V. Mr. Callahan, Cpt. Fermon and Cdr. Carper all
worked in the Department of Operations, the branch of
the ISP that contains the patrol and investigative func-
tions. A second branch of the ISP, the Department of
Internal Investigation (“DII”), investigates all com-
plaints about misconduct by governmental employees,
including complaints brought by citizens and com-
plaints about employees not within the ISP itself.
In the spring of 2000, a private investigator sent a
letter to the ISP asking it to review the 1986 murder of
Dyke and Karen Rhoads. Mr. Callahan was assigned to
Nos. 05-4313, 05-4335, 06-1055 & 06-1098 3
review the matter and to take appropriate action. His
examination concluded that there were significant prob-
lems with the convictions of Herbert Whitlock and
Randy Steidl, the men serving life sentences for the crime.
Through his initial investigation, Mr. Callahan became
suspicious that Robert Morgan, a person of interest in the
initial Rhoads’ investigation who never had been charged,
actually might have committed the murders. At the time
Mr. Callahan was reviewing the file, Morgan was under
investigation by federal authorities for possible drug
trafficking and money laundering. Mr. Callahan also
learned that Morgan had made significant donations to
the political campaigns of both the Illinois Attorney
General and the Governor. After Mr. Callahan relayed
this information to Cdr. Carper, she ordered him not to
continue investigating the Rhoads’ murder, but she told
him that he could continue to investigate Morgan’s possi-
ble ongoing illegal activities.
In January 2003, the Deputy Governor called Mr.
Callahan at his home and explained that the Governor
was considering a grant of clemency for Steidl and
Whitlock. He solicited Mr. Callahan’s opinion as to
whether they were guilty or innocent. Mr. Callahan
said that he needed to talk to ISP before he responded. He
then called Cpt. Fermon and Cdr. Carper. Cdr. Carper
reported the information to her superior, who arranged
a meeting at the ISP Academy for the next day in order
to discuss the Governor’s inquiry. At the all-day meeting,
Cpt. Fermon and Mr. Callahan made presentations regard-
ing the convictions of Steidl and Whitlock. They also
discussed Morgan’s possible criminal activity. Mr.
Callahan stated that he thought Steidl and Whitlock were
not guilty; he also provided a computer-generated assess-
4 Nos. 05-4313, 05-4335, 06-1055 & 06-1098
ment of the homicide that indicated that the two could
not have committed the murder.
The relationship between Cpt. Fermon and Mr. Callahan
always had been strained, but, in 2003, Mr. Callahan
became suspicious that Cpt. Fermon was compromising
deliberately the investigation of Morgan. He also began
to suspect that Cpt. Fermon might have connections to
organized crime. Mr. Callahan discussed his concerns
with friends on the task force and former ISP officers. He
also began a surreptitious investigation of Cpt. Fermon. In
April 2003, Mr. Callahan lodged a complaint with the DII
in which he claimed that Cpt. Fermon possibly was in-
volved in misconduct relating to organized crime, and
that he possibly had interfered with a federal criminal
investigation. He also told DII that Cdr. Carper had
ordered him not to pursue the Rhoads’ investigation
because it was too politically sensitive. Several weeks
later he made a second complaint to the DII with sub-
stance almost identical to the first. After reviewing the
complaints, the DII decided to take no action on them.
The hostility between Mr. Callahan and Cpt. Fermon
made Zone V a difficult workplace. Between late 2002 and
April 2003, the ISP’s Equal Employment Opportunity
Office (“EEOO”) investigated a hostile-work-environ-
ment complaint related to that stress in Zone V. Around
the same time that Mr. Callahan filed his DII complaints
regarding Cpt. Fermon and Cdr. Carper, the EEOO re-
ported to ISP’s upper command that the hostility be-
tween Mr. Callahan and Cpt. Fermon was sufficiently
serious to warrant action. Cdr. Carper and her superiors
met to discuss the problem and determined that they
would recommend transferring both Cpt. Fermon and
Mr. Callahan out of Zone V. On June 16, that recommenda-
Nos. 05-4313, 05-4335, 06-1055 & 06-1098 5
tion was given effect; Mr. Callahan was transferred to
the patrol lieutenant position in another district.
B.
On September 23, 2003, Mr. Callahan filed a complaint
in the district court. He alleged that he had been trans-
ferred laterally because of his statements at the ISP Acad-
emy meeting and because of the complaints that he had
made to the DII in April and May of 2003. At trial, a
jury found in favor of Mr. Callahan as to his claims
against Cdr. Carper and Cpt. Fermon and awarded him
$210,000 in compensatory damages. The jury additionally
awarded him $276,700 in punitive damages against Cpt.
Fermon and $195,600 in punitive damages against Cdr.
Carper. The district court allowed the verdict and com-
pensatory damages to stand, but it ordered the punitive
damages reduced to $100,000 against Cpt. Fermon and
$50,000 against Cdr. Carper.1 Cpt. Fermon and Cdr. Carper
appealed.
II
DISCUSSION
The First Amendment, as made applicable to the states
through the Fourteenth Amendment, see Ben’s Bar, Inc. v.
Village of Somerset, 316 F.3d 702, 707 (7th Cir. 2003), pro-
1
Although Mr. Callahan requested that the court grant him
injunctive relief that would restore him to his position in
Zone V, the district court did not grant such relief, and Mr.
Callahan has not brought the matter to this court by a cross
appeal.
6 Nos. 05-4313, 05-4335, 06-1055 & 06-1098
tects, under certain circumstances, a public employee’s
right to speak as a citizen about matters of public con-
cern. See Garcetti, 547 U.S. at 420-21. An employer may
not retaliate against an employee for engaging in pro-
tected speech. Massey v. Johnson, 457 F.3d 711, 716 (7th
Cir. 2006). Under the traditional pre-Garcetti two-step
test, a public employee’s speech received constitutional
protection if the employee could establish that (1) he
spoke as a citizen on matters of public concern, and
(2) his interest as a citizen in commenting upon matters
of public concern outweighed the interest of the State as
an employer in promoting the efficiency of the public
services it performs through its employees. Sigsworth v.
City of Aurora, 487 F.3d 506, 509 (7th Cir. 2007). Applying
this test, the jury determined that Mr. Callahan’s
speech was protected by the First Amendment.
Since the jury’s decision, however, the Supreme Court
has provided further guidance as to when a public em-
ployee can be considered, for First Amendment pur-
poses, to be speaking as a citizen. In Garcetti, the Court held
that “when public employees make statements pursuant
to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Con-
stitution does not insulate their communications from
employer discipline.” 547 U.S. at 421 (emphasis added).
Garcetti was decided while this case was still open on di-
rect review, and therefore that decision must be given
effect in this case.2 See Spiegla v. Hull, 481 F.3d 961, 965
2
Mr. Callahan contends that Cdr. Carper and Cpt. Fermon
forfeited their Garcetti argument by failing to raise it in the
district court. See Spiegla v. Hull, 481 F.3d 961, 964 (7th Cir. 2007).
(continued...)
Nos. 05-4313, 05-4335, 06-1055 & 06-1098 7
(7th Cir. 2007).
We review de novo whether Mr. Callahan’s state-
ments qualify for protection under the standard articu-
lated in Garcetti. See id. After Garcetti, when determin-
ing whether a public employee spoke as a citizen,
the operative question is whether he made his state-
ments pursuant to his official duties. Id. This inquiry is a
practical one. Garcetti, 547 U.S. at 424. Notably, the
Court rejected “the suggestion that employers can re-
strict employees’ rights by creating excessively broad
job descriptions.” Id. “Formal job descriptions often bear
little resemblance to the duties an employee actually is
expected to perform, and the listing of a given task in an
employee’s written job description is neither necessary
nor sufficient to demonstrate that conducting the task is
within the scope of the employee’s professional duties
for First Amendment purposes.” Id. at 424-25. Addi-
tionally, the location and audience of the employee’s
speech are not dispositive; speech may be protected even
if it is made by an employee at his place of work to his
2
(...continued)
We cannot accept this argument. Cdr. Carper and Cpt. Fermon
moved for summary judgment on the basis that Mr. Callahan’s
speech was not constitutionally protected “because the
speech was a part of his routine duties.” R.28 at 24-25; see
also R.39 at 7 (rejecting the defendants’ argument that
“Callahan’s speech was not protected because he was per-
forming routine job duties as a police officer”). This court
has held that a defendant’s motion for summary judgment on a
Garcetti-type ground “was sufficient to preserve the issue
for appellate review.” Spiegla, 481 F.3d at 964. Therefore, Cdr.
Carper and Cpt. Fermon did not forfeit their Garcetti argu-
ment. See id.
8 Nos. 05-4313, 05-4335, 06-1055 & 06-1098
coworkers. Id. at 420. Neither is the subject matter of the
speech dispositive; the “First Amendment protects
some expressions related to the speaker’s job.” Id. at
421. The controlling factor in the Garcetti inquiry is
whether the speech “owes its existence to a public em-
ployee’s professional responsibilities.” Id.
With Garcetti in mind, we turn to Mr. Callahan’s
claims of First Amendment retaliation. The jury con-
sidered two instances of speech in determining that
Mr. Callahan had spoken as a citizen: (1) he contended
at the ISP Academy meeting that Steidl and Whitlock
should be granted clemency; (2) he made two com-
plaints about Cpt. Fermon and Cdr. Carper to the DII.
We shall consider each in turn.
Based on the record as a whole, we conclude that
Mr. Callahan was speaking pursuant to his official
duties—not as a citizen—when he spoke at the Academy
meeting. Lieutenants in the ISP routinely are required
to attend meetings and to exchange information about
investigations. Here, Mr. Callahan was ordered by his
superiors to attend the meeting during normal business
hours. At the meeting, he advised his employer about
the results of his investigation, which he had been or-
dered to conduct as a public employee with the ISP. He
did not speak as a citizen when he attended the meeting;
he went to work and performed the tasks that he was
paid to perform. See Garcetti, 547 U.S. at 422. Like the
plaintiff in Sigsworth, Mr. Callahan’s “speech was part
of the tasks he was employed to perform.” 487 F.3d at 511.
Therefore, “he spoke not as a citizen but as a public
employee, and that speech is not entitled to protection
by the First Amendment.” Id.
Nos. 05-4313, 05-4335, 06-1055 & 06-1098 9
We also conclude that Mr. Callahan spoke pursuant to
his official duties when he twice complained to the DII
about Cpt. Fermon and Cdr. Carper. Mr. Callahan stated
to his employer’s investigative branch his concern that
Cpt. Fermon, a captain in the ISP, was involved in unlaw-
ful activity and had impeded a criminal investigation.
He also alleged that Cdr. Carper had been involved
in misconduct by refusing to investigate a crime for
political reasons. Mr. Callahan conceded in his deposi-
tion testimony and in closing arguments at trial that the
ISP rules of conduct require all ISP officers to report
misconduct of fellow employees to the DII. That require-
ment was part of his official responsibility as a police
lieutenant. See Garcetti, 547 U.S. at 424; Spiegla, 481 F.3d
at 966. That Mr. Callahan’s “statements highlighted
potential misconduct by [ISP] officers does not change
the fact that [he] was speaking pursuant to [his] official
responsibilities, not as a citizen contributing to the civic
discourse.” Spiegla, 481 F.3d at 967 (quotation marks
omitted) (final alteration omitted); see also Morales v.
Jones, 494 F.3d 590, 598 (7th Cir. 2007), cert. denied, 128
S. Ct. 931 (2008).
Mr. Callahan did not speak as a citizen at the Academy
meeting or when he filed two complaints with the DII
because his statements were required by his actual
duties as a lieutenant in the ISP. Spiegla, 481 F.3d at 969;
see also Garcetti, 547 U.S. at 424. He therefore has no
claim for First Amendment retaliation under section 1983,
and the judgment entered in his favor must be reversed.3
Spiegla, 481 F.3d at 966.
3
As a result of this disposition we need not address the
remainder of the appellants’ arguments.
10 Nos. 05-4313, 05-4335, 06-1055 & 06-1098
Conclusion
Accordingly, the judgment of the district court is re-
versed, and the case is remanded to the district court
with instructions to enter judgment for the defendants.
The defendants may recover their costs in this court.
REVERSED and REMANDED
USCA-02-C-0072—5-20-08