Houskins, Virgean v. Sheahan, Michael F. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 06-2283, 06-2549 and 06-2575
V IRGEAN H OUSKINS,
Plaintiff-Appellee,
v.
M ICHAEL F. S HEAHAN, Sheriff, The Sheriff of
Cook County, sued in his official capacity,
C OOK C OUNTY and D ONALD K EITH,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 6553—Milton I. Shadur, Judge.
A RGUED N OVEMBER 9, 2007—D ECIDED N OVEMBER 25, 2008
Before B AUER, M ANION and W ILLIAMS, Circuit Judges.
B AUER, Circuit Judge. Social worker Virgean Houskins
brought a civil rights action under 42 U.S.C. § 1983 against
her employer, then-Sheriff Michael Sheahan and Cook
County (collectively the “Sheriff”), alleging that she was
disciplined in retaliation for reporting a fight between
her and Correctional Officer Donald Keith. She further
alleged the Sheriff had a widespread custom or policy
2 Nos. 06-2283, 06-2549 and 06-2575
of retaliating against employees of the Cook County
Department of Corrections (“CCDOC”) who exercised
their right to free speech. Houskins also filed a claim
under Illinois state law for civil assault and battery
against Keith. A jury returned a verdict in favor of
Houskins, awarding damages against the Sheriff and Keith;
these appeals followed. For the reasons set forth in this
opinion, we affirm the judgment against Keith and
reverse the judgment against the Sheriff.
I. BACKGROUND
Beginning in 1990, Houskins was a social worker for
the Sheriff in the Department of Program Services at the
CCDOC. On the morning of September 17, 2001, Houskins
arrived at work and pulled into the parking lot of the
Cook County jail. The lot was full, and while she waited
for a parking space, Houskins chatted with co-worker
Regina Bowers, who was sitting in the car next to
Houskins. Keith pulled into the parking lot shortly there-
after. As Keith drove past her, Houskins thought Keith
was going to take the parking spot she had been waiting
for, and stated, “oh, mother fuck, no he won’t do this.”
Keith overheard Houskins through the open car windows.
Keith took the parking space and Houskins parked her
car in another space nearby. Both exited their cars and
approached one another. A verbal argument ended with
Keith striking Houskins in the face. Bowers was present
for the argument and saw Keith strike Houskins. Two
more correctional officers, Claude Lawrence and Dennis
Calderone, arrived on the scene moments after the inci-
dent, but neither witnessed Keith striking Houskins.
Nos. 06-2283, 06-2549 and 06-2575 3
According to Houskins, Lawrence came over and told
her to “shut the fuck up” and “nobody was going to lose
their job” over the incident; Calderone walked away
from the area.
After the altercation ended, Houskins reported for duty.
On the advice of two lieutenants, she filed a CCDOC
incident report in which she described the attack. Houskins
went to the emergency room at Cermak Health Services,
where doctors examined her, took x-rays, and ordered
her to apply cold packs to her right jaw and take Tylenol
for any pain.
Under the CCDOC General Orders, which set forth
policy, procedure, and requirements of conduct for
CCDOC employees, it was Houskins’s obligation to
report incidents of misconduct immediately to her super-
visor. So, after leaving Cermak, Houskins recounted the
incident to her supervisor, Patricia Tolbert, including her
use of foul language and Keith’s attack. Tolbert took
Houskins, along with Bowers, to the Internal Affairs
Division (“IAD”) to make a complaint against Keith,
Lawrence, and Calderone. Houskins gave her statement
to investigators, repeating the story about her use of
foul language, the argument, Keith’s attack, and Law-
rence’s and Calderone’s responses. IAD began the in-
vestigation shortly thereafter. The day after the incident,
Keith was de-deputized, or stripped of his duties as a
correctional officer, as a result of the complaint Houskins
filed against him.
On the same day she reported the incident to IAD,
Houskins went to the emergency room at the University
of Illinois at Chicago Hospital for head pain and later
4 Nos. 06-2283, 06-2549 and 06-2575
filed a police report, attempting to have Keith arrested
for assault and battery.1 According to Houskins, she also
contacted the Cook County State’s Attorney’s Office in
October and left a message for an assistant state’s attor-
ney regarding criminal charges being filed against
Keith, but no one returned her phone call and she did not
follow up.
On December 14, 2001, the IAD completed its investiga-
tion into the Houskins/Keith incident. IAD Investigator
Gregory Ernst found that the evidence was “inconclusive”
against Keith, Calderone, and Lawrence. However, Ernst
“sustained” the investigation into Houskins’s conduct,
finding that Houskins used obscene language in viola-
tion of General Order 3.8 § III D-1 of the CCDOC Ethics
and Standards of Conduct, which states that employees
must conduct themselves in a professional and ethical
manner, both on and off duty, and “[e]mployees will
refrain from the use of abusive or obscene language,
threats, and coercion.” On January 3, 2002, Tolbert re-
ceived Ernst’s report and recommended that Houskins
receive a three-day suspension.2
1
The police report indicated that Houskins “stated [that the
incident] would be handled internally by [the] county,” however
Houskins denied making this statement to police. Criminal
charges were never filed against Keith.
2
General Order 4.1 applies to internal investigations within
the CCDOC. Section III defines guidelines for “serious miscon-
duct” of CCDOC employees that warrants investigation and
disciplinary action, “[i]nclud[ing] misconduct while an em-
ployee is off duty/outside the institution . . .”. Section (G)(11)
(continued...)
Nos. 06-2283, 06-2549 and 06-2575 5
Ernst also submitted the results of his investigation
for command channel review—an additional review by the
Office of the Inspector General (“OIG”), which oversees
IAD’s investigations. Deputy Inspector Henry Barsch and
Inspector General Joseph Shaughnessy of the OIG re-
viewed the IAD’s investigation and Tolbert’s recommenda-
tion to suspend Houskins for three days. On January 25,
2002, OIG concurred with the findings and penalties
against Houskins, but reversed IAD’s findings with
regard to Keith and Calderone, concluding that, by the
preponderance of the evidence, (1) Keith struck Houskins
in the face, in violation of General Order 4.1 § III (A)(10)
and (A)(17),3 and (2) Calderone failed to take action
during the altercation, in violation of General Order 9.23
§ III(A)(8).4 OIG recommended a suspension of twenty-
nine days for Keith and three days for Calderone. OIG
2
(...continued)
states that when the IAD investigation is classified as “sus-
tained,” the divisional Superintendent/Unit Head may recom-
mend a) written reprimand; b) suspension; or c) severance
from duty.
3
General Order 4.1 § III(A) states “Guidelines for serious
misconduct include, but are not limited to . . . (10) [i]nmate,
employee or visitor abuse . . . (17) [e]ngag[ing] in any
conduct unbecoming an employee of the [CCDOC] which
tends to reflect discredit on the [CCDOC] or [the Sheriff].”
4
General Order 9.23 § III(A)(8) states, in pertinent part, that the
responsibilities of sergeants employed at CCDOC include
“provide fair and equitable supervision standards to person-
nel under their authority, and initiate corrective action when
applicable.”
6 Nos. 06-2283, 06-2549 and 06-2575
forwarded its findings up the chain of command channel
review to Executive Director Ernesto Velasco, and then to
Undersheriff Zelda Whitler; both concurred with the
findings and recommendations in early February 2002.
Houskins received a memo from Tolbert in July 2002,
notifying her of her suspension without pay from July 30
to August 1, 2002. Houskins served the three-day suspen-
sion; eventually Houskins and Keith initiated the
grievance process under their respective Union Collective
Bargaining Agreements. Keith’s suspension was ulti-
mately reduced to one day; Houskins’s suspension was
reduced to a written reprimand and she was reimbursed
for the three-day suspension.
On September 16, 2003, Houskins filed a complaint in
federal district court, alleging a First Amendment viola-
tion against Sheahan in his official capacity and against
Cook County. She claimed that (1) the Sheriff retaliated
against her in violation of her First Amendment rights,
because, as a direct result of her filing a complaint and
police report against Keith, she was charged with a viola-
tion of General Order 3.18 and suspended, and that Keith
was neither disciplined nor reprimanded for striking
Houskins; (2) a policy existed that officers in the CCDOC
abide by a “code of silence” when faced with testifying
against a fellow officer; this custom and policy also meant
that those employees who do not abide by this “code”
(such as Houskins) are subject to retaliatory actions; and
(3) Sheahan employs a policy of selective discipline that
exempts officers with “clout” from reprimands or disci-
pline for misconduct under the General Orders, but
those who lack influence are subject to retaliation.
Nos. 06-2283, 06-2549 and 06-2575 7
Houskins also alleged state law claims of assault and
battery against Keith.
A. District Court Proceedings—The Sheriff
On September 23, 2004, the Sheriff filed a motion for
summary judgment, arguing that it was entitled to judg-
ment as a matter of law because Houskins’s speech re-
garding the disciplinary process at the jail was not a
matter of public concern under the Connick-Pickering test.
The Sheriff also argued that no genuine issue of material
fact existed to prove that either the Sheriff had a policy or
practice of retaliating against employees who exercise
their right to free speech, or engaged in a policy of selective
discipline. The district court denied the motion on
October 4, 2004, without prejudice to its possible renewal
at trial as a Rule 50 motion. That same day, the final pre-
trial order was entered, in which the Sheriff did not
raise the issue of whether Houskins’s speech was constitu-
tionally protected.
At a status hearing on April 7, 2005, counsel for the
Sheriff alerted the court that it had not yet addressed the
issue of whether Houskins’s speech was constitutionally
protected. The court stated that it was unaware that
such an important question remained unanswered and
expressed its frustration that the final pre-trial order did
not contain any language identifying the contested issue.
The court held that the Sheriff had forfeited the argu-
ment because it had not raised the issue in the final pre-
trial order, and therefore it could not include it in
opening or closing statements, nor could it request a
jury instruction on the issue.
8 Nos. 06-2283, 06-2549 and 06-2575
The Sheriff filed a motion to reconsider on April 25,
2005, once again asking the court to make a determina-
tion as a matter of law as to whether Houskins’s speech
was constitutionally protected. The court denied the
motion to reconsider on June 16, 2005, finding that the
final pre-trial order did not properly identify the issue.
The court stated, “You know there is nothing to prevent,
for example, when an issue is to be identified, a final pre-
trial order gets amended on the party’s motion. They say,
‘Look. This is an item that we want to add.’ ” When counsel
for the Sheriff inquired whether they may still raise the
issue in a Rule 50 motion at the close of Houskins’s case,
the court ruled that the issue of whether the speech was
constitutionally protected had not been preserved.
The case went to trial and the following is a summary
of the facts pertinent to our analysis.
Houskins testified that she spoke out about the incident
almost every day to anyone that would listen, and that
after the incident, she saw Keith twice and both times
he told her that “nothing would happen” to him. She
stated that she was treated differently or ignored by
the correctional officers at the jail, and sometime in
2005, she saw Keith at work, and became so upset that she
told her supervisor that she “couldn’t take it” anymore.
She also testified about an incident in 1999, where she
observed a correctional officer beat up an inmate while
another officer watched, and she was not aware of the
officers reporting the incident. (Houskins could not
identify any of the officers by name.) Houskins also
testified to her belief that “a code of silence” existed
Nos. 06-2283, 06-2549 and 06-2575 9
within the Sheriff, because she had observed other
officers violate General Orders in the past, but no officer
fulfilled his or her duty to report incidents. According
to Houskins, profanity was used frequently by employees
at the jail without repercussion.
Houskins’s co-workers Susie Richardson, Regina
Bowers, and Lester Hampton, Jr. took the stand at trial.
Richardson testified that Houskins had complained
when Tolbert gave her a three-day suspension. Richardson
stated that Houskins made it known to everybody in her
department, including Tolbert, that she was not happy
with Tolbert’s decision to discipline her. Richardson
also stated that she too had been subjected to retaliatory
acts from her supervisors, most recently two weeks
before she testified in the current case.
Regina Bowers stated she talked to Houskins about the
incident every day. Lester Hampton, Jr. testified that
Houskins told him the investigation would not be con-
ducted in a fair and objective manner. Hampton also
testified that profanity is part of the culture at the jail, and
that the majority of employees use profanity on a daily
basis without facing discipline.
Investigator Ernst and Deputy Inspector General Barsch
testified about the results of their respective investiga-
tions. Houskins presented evidence, through Barsch, that
OIG maintains a case management system, or “database”
that was developed to track investigations by IAD and the
outcomes of these investigations. The database kept
information such as the name of the accuser, the date the
case was received, an investigation number, the nature of
10 Nos. 06-2283, 06-2549 and 06-2575
the claim (e.g., verbal abuse), and the outcome of the
investigation (e.g., whether the findings were sustained,
inconclusive, exonerated or unfounded), within the time
frame of 1996 to 2003. Houskins used the database to
show that out of more than 2000 investigations, only
twelve employees were charged with verbal abuse, and
that the only two employees actually disciplined for that
offense (one of whom was Houskins) were not officers.
Tolbert testified that when she made the decision to
suspend Houskins for three days, she did not base her
decision on the fact that Houskins had filed an internal
complaint about the incident. Tolbert stated that she
based her decision on Houskins’s past problems with
supervisors, use of unprofessional language on the job (all
of which had been pointed out to Houskins in the past),
and finally, her concern that Houskins’s language had
escalated to the point where someone had been injured.
Tolbert denied that Velasco told her what discipline
to impose on Houskins.
Throughout the trial, counsel for the Sheriff objected to
most of the evidence concerning Houskins’s conversa-
tions with co-workers about the Sheriff’s investigation of
the incident. The court stated that it was aware of the
problem regarding the public concern issue, and although
it had “knocked out a lot of these cases on precisely [the
issue of whether speech was a matter of public concern] . . .
the problem is that this case got generated and presente[d]
in a different way, and [the court could not] undo that.”
Twice during the trial, outside of the presence of the jury,
the court sua sponte raised the speech issue while com-
Nos. 06-2283, 06-2549 and 06-2575 11
menting on how Houskins would be able to prove policy
or practice to establish municipal liability. The court stated,
“[t]he kind of things [pattern or policy] that we are talking
about now would assist enormously a defendant, for
example, in connection with seeking a dispositive
motion on grounds that it failed to meet the first step of
the analysis [related to protected speech].” Another time,
the court stated that it was “troubled” by Houskins’s
presentation and considered releasing the jury to “deal
with this thing as a legal matter.”
At the conclusion of Houskins’s case, the Sheriff moved
for judgment as a matter of law, which the court took
under advisement. At the close of evidence, the Sheriff
stated that “we have our Rule 50 motion of course, and
we will be doing that,” to which the court replied,
“of course.”
On March 3, 2006, the jury returned a verdict against the
Sheriff for $240,000 in compensatory damages, and the
court entered judgment on the verdict on March 8, 2006.
The Sheriff filed a post-judgment renewal of its motion
to enter judgment as a matter of law under Rule 50(b),
arguing that Houskins failed to prove policy, custom or
practice.5 In denying the motion, the court noted that the
Sheriff had failed to renew its Rule 50 motion at the
5
At oral argument, the Sheriff stated that the issue of whether
Houskins’s speech was constitutionally protected was not
included in its renewed post-judgment motion because the
court told the Sheriff before trial not to include the issue in
a Rule 50 motion, due to its failure to preserve it in the final pre-
trial order.
12 Nos. 06-2283, 06-2549 and 06-2575
close of evidence, and deferred to Houskins’s response to
the Rule 50(b) motion for the substance of his ruling. The
Sheriff and Keith filed these timely appeals.
II. DISCUSSION
A. The Sheriff
On appeal, the Sheriff argues that the Houskins’s speech
was not a matter of public concern under Garcetti v.
Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006),
because Houskins was a public employee speaking pursu-
ant to official job duties, and therefore the speech was not
protected under the First Amendment. The Sheriff main-
tains that the issue of whether speech is protected is a
matter of law that the district court failed to address, and
therefore the court erred in denying its motion for sum-
mary judgment. The Sheriff also argues that the jury
verdict imposing municipal liability under Monell cannot
stand, where no final policymaking official caused
Houskins’s alleged injury, and the jury did not have a
legally sufficient evidentiary basis to conclude that
Houskins’s alleged constitutional injury resulted from
widespread customs within the Sheriff’s Department.
Before we reach the Sheriff’s arguments, we must clear
a few procedural hurdles. The Sheriff requests that we
review the district court’s denial of its motion for sum-
mary judgment; Houskins responds that the denial of
this motion is unreviewable on appeal. Further, Houskins
believes that the Sheriff has waived the issue of whether
Houskins’s speech was constitutionally protected, because
Nos. 06-2283, 06-2549 and 06-2575 13
the Sheriff’s renewed Rule 50(b) motion—the final decision
creating jurisdiction for this appeal—only preserved
the issue of whether there was sufficient evidence of a
practice or custom of retaliation to send the issue to the
jury, and the Sheriff failed to move for judgment as a
matter of law on the issue of constitutionally protected
speech.
Generally after a trial on the merits, we will not review
the district court’s earlier denial of a motion for sum-
mary judgment that is based on the sufficiency of the
evidence. Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714,
718-19 (7th Cir. 2003). In Chemetall, we held that we follow
this rule because a denial of summary judgment is a
prediction that the evidence will be sufficient to support a
verdict in favor of the nonmovant. Id. at 718. Once the
trial has taken place, our focus is on the evidence
actually admitted and not on the earlier summary judg-
ment record. “After trial, the merits should be judged in
relation to the fully-developed record emerging from that
trial [and] [w]e will not at that point step back in time to
determine whether a different judgment may have been
warranted on the record at summary judgment.” Id. at 718-
19 (citing Watson v. Amedco Steel, Inc., 29 F.3d 274, 278 (7th
Cir. 1994)). Therefore, in order to preserve for appeal a
challenge to the sufficiency of the evidence, the chal-
lenge must be raised in a Rule 50(a) motion for judg-
ment as a matter of law before the case is submitted to
the jury. Chemtall, 320 F.3d at 719.
However, when, as in this case, the court’s denial of
summary judgment is not based on the adequacy of the
evidence, the justification does not apply. Id. (reviewing
14 Nos. 06-2283, 06-2549 and 06-2575
a district court’s denial of a motion for summary judg-
ment, notwithstanding the party’s failure to raise it in a
motion for judgment as a matter of law at trial, where
the motion raised legal issues other than the sufficiency
of the evidence); see also Fuesting v. Zimmer, 448 F.3d 936,
941 (7th Cir. 2006) (noting that if there are errors at trial
duly objected to, that deal with matters other than suffi-
ciency of the evidence, they may be raised on appeal even
though there had not been either a renewed motion
for judgment as a matter of law or a motion for a
new trial) (citing 9A CHARLES ALAN WRIGHT AND
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCE-
DURE § 2540 (2d ed. 1995)). While we owe deference to
the jury’s resolution of the contested factual issues, the
determination of whether speech is constitutionally
protected is a question of law for the court. Connick v.
Myers, 461 U.S. 138, 150 n. 10, 103 S. Ct. 1684, 75 L. Ed. 2d 708
(1983); Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir. 2007)
(Spiegla II) (inquiry into protected status of speech is a
matter of law, not of fact) (citing Connick, 461 U.S. at 148
n. 7, 103 S. Ct. 1684). Further, including the issue of law
in a Rule 50 motion would defeat its purpose, which is to
challenge the sufficiency of the evidence rather than the
propriety of questions of law. See Winters v. Fru-Con Inc.,
498 F.3d 734, 745-46 (7th Cir. 2007) (“Under Rule 50, a
court should grant judgment as a matter of law when a
party has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury
to find for that party on that issue.”). By raising the legal
issue in its motion for summary judgment, as well as by
subsequent motions and objections throughout trial, the
Sheriff sufficiently preserved the issue for our review.
Nos. 06-2283, 06-2549 and 06-2575 15
Houskins also argues that the Sheriff failed to raise
the issue in the final pre-trial order, thus barring our
review. Nothing in the Federal Rules of Civil Procedure,
however, tells attorneys that, in order to preserve issues
for appeal, they must insert into the final pre-trial order
contentions that have already been rejected by the judge.
Calderon v. Witvoet, 999 F.2d 1101, 1108 (7th Cir. 1993)
(holding that defendants did not waive a statute of limita-
tions defense by failing to include it in a pre-trial order
because the district court had already ruled against the
defendants on that issue in their answer to the com-
plaint and in their opposition to the plaintiffs’ motion
for summary judgment). We therefore hold that the Sher-
iff’s failure to include the issue of protected speech in
the final pre-trial order is not fatal to its claims on appeal.
The issue of whether Houskins’s speech was constitution-
ally protected is a matter of law that the district court
failed to address, and the issue was sufficiently raised
in the Sheriff’s motion for summary judgment. We now
turn to the merits.
1. The Garcetti Issue
“[T]he First Amendment protects a public employee’s
right, in certain circumstances, to speak as a citizen ad-
dressing matters of public concern.” Morales v. Jones, 494
F.3d 590, 595 (7th Cir. 2006). A § 1983 claim that alleges a
defendant retaliated in response to a plaintiff’s proper
exercise of her First Amendment rights must satisfy a
three-step test in order to survive summary judgment.
Phelan v. Cook County, 463 F.3d 773, 790 (7th Cir. 2006). The
16 Nos. 06-2283, 06-2549 and 06-2575
first step is assessing whether the plaintiff’s speech is
constitutionally protected. Id. Next, the court must assess
whether the plaintiff has demonstrated that the alleged
retaliatory activity was motivated by the constitutionally-
protected speech. Id. Finally, if the plaintiff satisfies the
first two steps, the court must assess whether the defen-
dant has demonstrated that it would have taken the
same action irrespective of the plaintiff’s speech. Id.
In order to determine the first step, courts usually
referred to the Connick-Pickering test—whether the em-
ployee spoke as a citizen on a matter of public concern,
and if so, her interest as a citizen in commenting on the
matter of public concern outweighed the State’s interest
in promoting effective and efficient public service. Spiegla
II, 481 F.3d at 965. The Supreme Court in Garcetti pro-
vided further guidance as to when a public employee can
be considered, for First Amendment purposes, to be
speaking as a citizen. 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 Constitution does not
insulate their communications from employer discipline.”
Garcetti, 547 U.S. at 421, 126 S. Ct. 1951 (emphasis added).
Therefore, Garcetti (issued after the district court pro-
ceedings ended in this case) requires courts to first decide
whether a plaintiff was speaking “as a citizen” or as part
of her public job, before asking whether the subject-matter
of particular speech is a topic of public concern. Mills v.
City of Evansville, Indiana, 452 F.3d 646, 648 (7th Cir. 2006)
(citing Garcetti, 547 U.S. at 421, 126 S. Ct. 1951). Determining
the official duties of a public employee requires a practical
inquiry into what duties the employee is expected to
Nos. 06-2283, 06-2549 and 06-2575 17
perform, and is not limited to the formal job description.
Vose v. Kliment, 506 F.3d 565, 569 (7th Cir. 2007) (citing
Garcetti, 547 U.S. at 425; 126 S. Ct. 1951). While “[t]he fact
that an employee has a personal stake in the subject
matter of the speech does not necessarily remove the
speech from the scope of public concern,” Phelan, 463
F.3d at 791 (quoting Button v. Kibby-Brown, 146 F.3d 526,
529 (7th Cir. 1998)), the “public concern” element must
relate to a community concern and is not satisfied by
“merely a personal grievance of interest only to the em-
ployee.” Sullivan Ramirez, 360 F.3d 692, 699 (7th Cir. 2004)
(citation omitted). We review de novo whether Houskins’s
statements qualify for protection under Garcetti. Callahan
v. Fermon, 526 F.3d 1040, 1044 (7th Cir. 2008).
Like the defendant in Spiegla II, the Sheriff did not have
the benefit of making a proper Garcetti argument, in that
the motion was filed two years before Garcetti. See Spiegla
II, 481 F.3d at 964. The Sheriff did, however, make a
Garcetti-type argument in their motion for summary
judgment, arguing that, under Connick and Pickering,
Houskins’s “statement/conduct and CCDOC’s response
are not a matter of public concern; rather it is a matter
of employer housekeeping matters,” and “while Plaintiff’s
grievances are of a private concern and important to her;
however, they are not of a public concern which invoke
the protections of the First Amendment.” We find this
sufficient to preserve the issue and consider the
Sheriff’s argument that Houskins’s speech was not pro-
tected under the First Amendment because it was made
pursuant to her official duties as an employee of the
Sheriff.
18 Nos. 06-2283, 06-2549 and 06-2575
Houskins’s complaint sets forth two different
instances in which she attempted to speak out on matters
of public concern and was subsequently disciplined by
the Sheriff as a direct result of that speech. Houskins
complained that as a direct result of the internal com-
plaint and the police report she filed against Keith, she
was charged with a violation of the General Orders.
We first address the internal complaint made by
Houskins, which we conclude is an obvious form of speech
m ad e p urs ua nt to official duties under the
Garcetti standard; it would require mental gymnastics to
see it otherwise. “Restricting speech that owes its
existence to a public employee’s professional responsibili-
ties does not infringe any liberties the employee might
have enjoyed as a private citizen. It simply reflects the
exercise of employer control over what the employer
itself has commissioned or created.” Garcetti, 547 U.S. at
421-22, 126 S. Ct. 1951; see e.g., Sigsworth v. City of Aurora,
Illinois, 487 F.3d 506, 510-11 (7th Cir. 2007) (finding that a
detective’s report on suspicions of misconduct within
the police department were made within his capacity as
an investigator and a task force member, and therefore
he did not speak as a citizen on a matter of public con-
cern); Spiegla II, 481 F.3d at 965-66 (finding that a plain-
tiff’s report of fellow officers’ suspicious activity was
made pursuant to the plaintiff’s responsibility as a
prison correctional officer to inform her superiors of a
possible breach in prison search policy); Mills, 452 F.3d
at 648 (holding that a police sergeant’s vocal criticisms
about her boss’s personnel decision were made in her
capacity as a public employee contributing to the forma-
Nos. 06-2283, 06-2549 and 06-2575 19
tion and execution of official policy). Almost immediately
after the incident in the parking lot, Houskins filed the
complaint with IAD, fulfilling her responsibility as a
CCDOC employee to report incidents of misconduct
immediately to her supervisor, pursuant to the General
Orders.6 Houskins was clearly expected to report the
incident under the General Orders, and therefore she
was speaking as part of her job as an employee of the
Sheriff, and not as a citizen. See id. As such, she does not
enjoy First Amendment protection of that speech.
We turn now to the police report. As we mentioned
earlier, the critical inquiry under Garcetti is whether
Houskins engaged in the relevant speech pursuant to
her official duties. Houskins’s statements to the police
were not made pursuant to her job, as the report was not
generated in the normal course of her duties and most
likely was similar to reports filed by citizens every day.
See Garcetti, 547 U.S. at 422, 126 S. Ct. 1951(citing Pickering
v. Board of Ed. of Township High School Dist. 205, Will Cty.,
391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)); see also
Frietag v. Ayers, 468 F.3d 528, 545 (9th Cir. 2006) (emphasiz-
6
General Order 3.8 § III (G) states that “[i]t shall be the respon-
sibility of every employee to immediately report to their
divisional Superintendent/Unit Head and the department
Internal Investigations Unit verbally and in writing, any fact or
situation which may give rise to or be construed as corrupt,
illegal or unethical behavior and/or possible conflict of interest.
This shall include, but not be limited to, reporting anything
which could impair the employee’s performance of their
duties in a fair and impartial manner.”
20 Nos. 06-2283, 06-2549 and 06-2575
ing that the “right to complain both to an elected public
official and to an independent state agency is guaranteed
to any citizen in a democratic society regardless of his
status as a public employee.”).
Houskins was not, however, speaking about matters
of public concern. Speech that serves a private or personal
interest, as opposed to a public one, does not satisfy the
standards for First Amendment protections. Boyce v.
Andrew, 510 F.3d 1333, 1344 (11th Cir. 2007) (“The relevant
inquiry is not whether the public would be interested
in the topic of the speech at issue but rather is whether
the purpose of the plaintiff’s speech was to raise issues of
public concern.”) (internal quotations and citation omit-
ted). The police report was nothing more than Houskins’s
personal grievance against Keith in order to have him
arrested for striking her. She reported the incident in the
police report as a simple “battery” and she related to an
officer that Keith struck her in the face and then left the
scene. Houskins’s statements in the report were tied to
a personal employment dispute; there is nothing in the
record to indicate that Houskins’s purpose in filing the
police report was to bring to light any wrongdoing by
the Sheriff, e.g., to raise public awareness about the safety
of the employees within the CCDOC or to uncover a
policy of selective discipline or clout within the CCDOC.
See Connick, 461 U.S. at 148, 103 S. Ct. 1684 (emphasizing
that statements not a matter of public concern where
employee was not seeking to inform the public that
government agency was not discharging its responsibil-
ities and was not bringing to light actual or potential
wrongdoing or breach of the public trust on the part of
Nos. 06-2283, 06-2549 and 06-2575 21
another public official); Glass v. Dachel, 2 F.3d 733, 741 (7th
Cir. 1993) (noting that “matters of public concern do
include speech aimed at uncovering wrongdoing or
breaches of the public trust”).
Because we are reviewing the denial of summary judg-
ment, we need not consider Houskins’s theory (that
emerged throughout the trial) that she was allegedly
retaliated against for conversing with her co-workers;
nevertheless, we briefly address the contention. Houskins
does not lose her right to speak as a citizen simply because
she initiated the conversations at work or because they
related to the subject matter of her employment. “Many
citizens do much of their talking inside their respective
workplaces, and it would not serve the goal of treating
public employees like ‘any member of the general public,’
to hold that all speech within the office is automatically
exposed to restriction.” Garcetti, 547 U.S. at 420-21, 126
S. Ct. 1951 (internal citation omitted). However, “we have
cautioned that if every facet of internal operations within
a governmental agency were of public concern, and
therefore any employee complaint or comment upon
such matters constitutionally protected, no escape from
judicial oversight of every governmental activity down to
the smallest minutia would be possible.” Kuchenreuther
v. City of Milwaukee, 221 F.3d 967, 974-75 (7th Cir. 2000).
Once again, Houskins’s statements to her co-workers ad-
dressed personal matters—her dissatisfaction with the
22 Nos. 06-2283, 06-2549 and 06-2575
investigation.7 See e.g., Connick, 461 U.S. at 149, 103 S. Ct.
1684 (holding that an assistant district attorney’s com-
plaints relating to intra-office policies, office morale, and
grievance procedures were “internal office affairs,” not
speech on matters of public concern, and thereby it was
not entitled to First Amendment protection).
After careful review of the summary judgment record,
we find that Houskins’s speech was not protected by the
First Amendment and the Sheriff was entitled to a judg-
ment as a matter of law under Fed. R. Civ. P. 56(c). Accord-
ingly, we hold that the Sheriff did not violate Houskins’s
constitutional rights, and the court erred in denying the
Sheriff’s motion for summary judgment.8
7
Even if we reviewed the evidence after a denial of a motion for
judgment as a matter of law, the record is devoid of any
evidence that the Sheriff retaliated against Houskins for her
conversations with co-workers. Indeed, Richardson’s testimony
indicated that Houskins complained about her three-day
suspension, therefore her suspension could not be a direct
result of those conversations. Further, there was not a scintilla
of evidence that her other complaints to co-workers about
the manner of the investigation were even acknowledged or
heard by her superiors at CCDOC.
8
Houskins raised the issue during oral argument that our
review of the denial of summary judgment would prejudice her,
because she did not have the opportunity to file a response to
the motion before the court denied it without prejudice. How-
ever we cannot think of any conceivable way that Houskins
could have presented evidence to refute the fact that her
(continued...)
Nos. 06-2283, 06-2549 and 06-2575 23
2. Monell
The Sheriff also challenges the district court’s denial of
its Rule 50(b) motion, arguing that no final policymaking
official caused Houskins’s alleged injury and there was
insufficient evidence to conclude that the Sheriff had a
policy of retaliating against protected speech. We review a
district court’s denial of judgment as a matter of law de
novo. Filipovich v. K & R Express Sys., Inc., 391 F.3d 859, 863
(7th Cir. 2004). “Our job is to assure that the jury had a
legally sufficient evidentiary basis for its verdict.” Id.
“Unlike our review of a summary judgment motion,
however, review of a Rule 50 motion proceeds on the
basis of the evidence the jury actually had before it. We
will overturn a jury verdict only if, after reviewing the
evidence, it is clear that the plaintiff failed to present
enough evidence to support her claim.” Id.
“While a municipality is not vicariously liable under
§ 1983 for the acts of its employees, a constitutional
deprivation may be attributable to a municipality ‘when
execution of a government’s policy or custom . . . inflicts
the injury.’ ” Montano v. City of Chicago, 535 F.3d 558, 570
(7th Cir. 2008) (citing Monell, 436 U.S. at 694, 98 S. Ct. 2018,
and Schlessinger v. Salimes, 100 F.3d 519, 522 (7th Cir. 1996));
Eversole v. Steele, 59 F.3d 710, 715 (7th Cir. 1995)
(“[M]unicipalities are answerable only for their own
decisions and policies; they are not vicariously liable for
8
(...continued)
speech, as alleged in the complaint, was not protected under
the First Amendment.
24 Nos. 06-2283, 06-2549 and 06-2575
the constitutional torts of their agents.”). “A local govern-
ment unit’s unconstitutional policy or custom can be
shown by: (1) an express policy causing the loss when
enforced; (2) a widespread practice constituting a ‘custom
or usage’ causing the loss; or (3) a person with final
policymaking authority causing the loss.” Walker v.
Sheahan, 526 F.3d 973, 977 (7th Cir. 2008).
However, as we found above, Houskins failed to estab-
lish that she was deprived of a constitutional right, where
her speech was not constitutionally protected; therefore
her claims that the Sheriff has a policy of retaliation and
selective discipline fail.9 See King v. East St. Louis School
Dist. 189, 496 F.3d 812, 817 (7th Cir. 2007) (“It is well
established that there can be no municipal liability based
on an official policy under Monell if the policy did not
result in a violation of [a plaintiff’s] constitutional rights”);
Alexander v. City of South Bend, 433 F.3d 550, 557 (7th Cir.
2006) (finding that a municipality defendant cannot be
liable under Monell for a policy or custom of inadequately
training and supervising its police officers, unless the
defendant violated a constitutional guarantee); Aguilera
v. Baca, 510 F.3d 1161, 1167, 1174 (9th Cir. 2007) (noting
9
We also note that Houskins failed to present sufficient
evidence that the Sheriff retaliated against her for using profan-
ity, when Keith was in fact disciplined for his actions on that
day. Shortly after Houskins filed a complaint against him,
Keith was de-deputized. While initially Keith was not repri-
manded for the incident in the parking lot, a command-channel
review of the investigation decided Keith was responsible
and suspended him for 29 days.
Nos. 06-2283, 06-2549 and 06-2575 25
that if no constitutional violation occurred, the court need
not consider qualified immunity or a claim brought
pursuant to Monell); Wilson v. Morgan, 477 F.3d 326, 340
(6th Cir. 2007) (noting that if a jury found no constitu-
tional violation by individual defendants, a county could
not have been found liable under Monell for an allegedly
unconstitutional custom or policy); Segal v. City of New
York, 459 F.3d 207, 219 (2d Cir. 2006) (“[B]ecause the
district court properly found no underlying constitutional
violation, its decision not to address the municipal defen-
dants’ liability under Monell was entirely correct.”) (citing
Monell, 436 U.S. at 694, 98 S. Ct. 2018 (involving a policy
that was “the moving force of the constitutional violation”)
and City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103
L. Ed. 2d 412 (1989) (involving a failure to train municipal
employees that led to the constitutional injury)); Hannah
v. City of Overland, Mo., 795 F.2d 1385, 1392 n.5 (8th Cir.
1986) (“[S]ince the jury found no constitutional violations,
we need not decide whether the actions taken by . . . police
officers were pursuant to official municipal policy or
custom, as required under Monell . . . in order to impose
liability on a municipality.”).
B. Keith
Counts II and III of Houskins’s complaint sought dam-
ages from Keith for assault and battery. At the April 11,
2005 status hearing, Keith moved to sever his case from
the Sheriff’s; the district court denied the motion. The
court also denied Keith’s second motion to sever on May 2,
2005, stating that Keith had forfeited the issue by failing
26 Nos. 06-2283, 06-2549 and 06-2575
to object to the final pre-trial order, and that any exhibits
relevant to Houskins’s claims against the Sheriff and not
Keith would be subject to limiting instructions to the
jury. At trial, Keith testified on his own behalf, stating that
he did not hit Houskins because he does not “disrespect
women,” and that Houskins was in fact the instigator. The
jury believed differently and found him liable on both
counts. Houskins was awarded $10,000 in compensatory
damages and $50,000 in punitive damages against Keith.
On March 13, 2006, Keith filed a motion to set aside the
verdict or to grant a new trial, which was denied by the
district court on May 12, 2006.
On appeal, Keith argues that (1) the district court erred
in exercising supplemental jurisdiction over the state law
assault and battery claims against him; (2) the district
court erred by denying Keith’s motion to sever the trial;
(3) the district court judge made comments throughout the
trial that denied him a fair trial; and (4) the punitive
damage award of $50,000 was excessive. We shall briefly
address each argument in turn, but before doing so, we
note that Keith failed to preserve other arguments for
appeal. Keith complains that the jury instructions were
erroneous, however he failed to challenge the instruc-
tions below, which constitutes waiver of that challenge
and precludes appellate review. Chestnut v. Hall, 284
F.3d 816, 819-20 (7th Cir. 2002) (emphasizing that Federal
Rule of Civil Procedure 51 “requires not only that objec-
tions to jury instructions be made in a timely fashion
and on the record, but also with sufficient specificity to
apprise the district court of the legal and factual basis
for any perceived defect” and “unlike in a criminal trial,
Nos. 06-2283, 06-2549 and 06-2575 27
there is no plain error analysis in a civil trial.”). In addition,
Keith challenges statements made during Houskins’s
closing argument, arguing that the comments erroneously
tainted him with the Sheriff’s wrongdoing, and thus
prevented him from receiving a fair trial. However,
again, Keith has waived this argument because he failed
to object these statements at the time they were made, thus
failing to preserve the argument on appeal. See Soltys v.
Costello, 520 F.3d 737, 745 (7th Cir. 2008).
We now turn to Keith’s challenge that the district court
erred in asserting supplemental jurisdiction under 28
U.S.C. § 1367 over the state assault and battery claims
against him, because there was no connection between
those state claims and the federal claim against the
Sheriff under § 1983. We review a district court’s supple-
mental jurisdiction ruling under 28 U.S.C. § 1367(a) de novo.
Groce v. Eli Lilly & Co., 193 F.3d 496, 499 (7th Cir. 1999).
Article III jurisdiction under § 1367(a) must be examined
even if raised for the first time on appeal, as opposed to
the discretionary exercise of supplemental jurisdiction by
the court under § 1367(c), which is waived if not raised
in the district court. See International College of Surgeons v.
City of Chicago,153 F.3d 356, 366 (7th Cir. 1998).
A district court has supplemental jurisdiction over the
state claims against Keith pursuant to § 1367(a) “so long as
they ‘derive from a common nucleus of operative fact’ with
the original federal claims.” Wisconsin v. Ho-Chunk
Nation, 512 F.3d 921, 936 (7th Cir. 2008). A loose factual
connection is generally sufficient. Baer v. First Options of
Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995). Keith
28 Nos. 06-2283, 06-2549 and 06-2575
contends that Houskins’s claim against Keith is a
“factually discrete argument over a parking space which
resulted in [Houskins’s] claim for personal injuries.” The
state claims brought by Houskins pertained to the same
set of circumstances at issue in the federal claim. The crux
of Houskins’s federal claim was that she was disciplined
in retaliation for filing a grievance and police report
against Keith, stemming from Keith’s assault on her in
the parking lot, which was the crux of the state law claim.
Moreover, in order to decide whether the Sheriff’s
internal investigation was legitimate, the jury needed to
consider Keith’s assault on Houskins and the subse-
quent discipline of both Keith and Houskins. The district
court properly asserted supplemental jurisdiction.
Next, Keith argues that under Fed. R. Civ. P. 42(b), the
court erred in denying the motion to sever his trial from
the Sheriff. Keith believes that he was subjected to sub-
stantial prejudice, when it was alleged during trial that
Keith was intimately connected with the Sheriff’s policy
through “clout” or “influence.” Keith questions whether
the jury punished Keith for the assault and battery or for
his alleged association with an unproven ability to influ-
ence the Sheriff not to punish him for the assault and
battery. Houskins’s brief fails to respond to this argument.
The ultimate decision to order a separate trial under
Rule 42(b) is at the court’s discretion and will be over-
turned only upon a clear showing of abuse. Housman v.
United States Aviation Underwriters, 171 F.3d 1117, 1121
(7th Cir. 1999). Rule 42(b) provides for separate trials
where the efficiency of a consolidated trial is outweighed
Nos. 06-2283, 06-2549 and 06-2575 29
by its potential prejudice to the litigants. The court must
balance considerations of convenience, economy, expedi-
tion, and prejudice, depending on the peculiar facts and
circumstances of each case.
We cannot say that the district court abused its discretion
in finding that Keith’s motion was “empty of merit”;
clearly there was an overlap in the facts, evidence, and
witnesses required for Houskins’s claims against Keith
and the Sheriff. Further, the court gave limiting instruc-
tions to the jury, stating “[the jury] should be aware that
[it] ha[s] to give separate consideration to each claim and
to each party in the case. There are two defendants, but it
doesn’t follow that if one is liable the other is also liable . . .
[y]ou look at each one.” Later, the court reminded the
jury that “[e]ach defendant . . . must be considered sepa-
rately.” The Supreme Court has noted that our trial system
“relies upon the ability of a jury to follow instructions.”
Opper v. United States, 348 U.S. 84, 95, 75 S. Ct. 158, 99
L. Ed. 101 (1954). In the end, Keith has failed to demon-
strate any prejudice.
Keith also maintains that comments made by the
district court judge denied him a fair trial. Specifically,
Keith argues that the judge overruled objections by his
counsel in a sarcastic manner in the presence of the jury,
and he believes the jury was biased toward Houskins as
a result of the judge’s comments. We have considered all
of the judge’s statements that Keith has mentioned on
appeal, and find any argument of bias to be without merit.
The judge’s admonitions to Keith’s counsel about his
method of questioning on cross-examination, as well as
30 Nos. 06-2283, 06-2549 and 06-2575
his improper objections, were within his mandate as a
federal trial judge. Even if the comments were made with
obvious frustration in front of the jury, they “do not
indicate any bias against [Keith], but a legitimate
concern for the manner and mode of the presentation of
evidence.” M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d
1404, 1409 (7th Cir. 1991); Fed. R. Evid. 403, 611.
Finally, Keith appeals the jury’s award of punitive
damages, claiming the district court erred by refusing to
reduce the $50,000 punitive damage award against Keith
or grant a new trial on the issue of damages. Keith ad-
vances many new arguments regarding the punitive
damage award on appeal, however we only address the
arguments he raised below. See Belom v. National Futures
Ass’n, 284 F.3d 795, 799 (7th Cir. 2002). We review the
district court’s decision not to grant a remittitur or a new
trial on damages for an abuse of discretion. Farfaras v.
Citizens Bank and Trust of Chicago, 433 F.3d 558, 566 (7th
Cir. 2006). While “it is inevitable that the specific
amount of punitive damages awarded whether by a judge
or by a jury will be arbitrary . . . [t]he proper judicial
function is to police a range, not a point.” Mathias v. Accor
Economy Lodging, Inc., 347 F.3d 672, 678 (7th Cir. 2003). The
gist of Keith’s argument in the district court was that the
damages were excessive in light of the evidence, and the
jury may have been confused as to how to assess the
damages in light of the fact that Houskins asked the
jury for $5,000 in damages for the battery. The district
court did not abuse its discretion in finding that Keith’s
challenge to the award was essentially that the jury
should have believed his testimony over Houskins’s and
Nos. 06-2283, 06-2549 and 06-2575 31
the other witnesses that testified against Keith. In addition,
“the jury is entitled to disregard the amount of damages
requested by a party, especially when evidence is intro-
duced from which jurors could draw their own conclu-
sions.” Carter v. Chicago Police Officers, 165 F.3d 1071,
1082 (7th Cir. 1998).
III. CONCLUSION
For the foregoing reasons, we A FFIRM the judgment and
award against Keith. The issue of whether Houskins’s
speech was constitutionally protected was a matter of
law that the district court failed to address, and because
we find that Houskins was speaking as an employee of
the Sheriff and about personal grievances, we conclude
that the district court erred in denying the Sheriff’s motion
for summary judgment. We also find that Houskins’s
Monell claim necessarily fails because Houskins’s con-
stitutional rights were not violated. Accordingly,
the judgment of the district court against the Sheriff is
R EVERSED, and the case is R EMANDED to the district court
with instructions to enter judgment for the Sheriff.
11-25-08