Roger Fairley v. Dennis Andrews ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3343
R OGER F AIRLEY and R ICHARD G ACKOWSKI,
Plaintiffs-Appellants,
v.
D ENNIS A NDREWS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 5207—Amy J. St. Eve, Judge.
A RGUED M AY 6, 2009—D ECIDED A UGUST 20, 2009
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
E ASTERBROOK, Chief Judge. Roger Fairley and Richard
Gackowski worked as guards at the Cook County Jail in
Chicago. After their peers threatened to kill them, they
quit and sued the other guards, complaint handlers, the
sheriff, and the County. (In saying that death threats were
made, and throughout the opinion, we present the evi-
dence in the light most favorable to plaintiffs. Defendants
deny many of plaintiffs’ principal contentions.)
2 No. 07-3343
Guards at the Jail regularly beat prisoners without
justification. The harm plaintiffs complain of, however,
is not the injuries suffered by prisoners but how other
guards reacted when plaintiffs opposed the maltreat-
ment. For example, in April 2000 Gackowski objected
when Fred Coffey struck inmate Brown. Gackowski
followed up with an internal complaint. Coffey and other
guards responded by taunting Gackowski, calling him a
“snitch” who “had no heart.”
Four months later a fight broke out in Special Incarcera-
tion Unit 2, which holds the Jail’s most dangerous in-
mates. After the prisoners had been subdued and
shackled, guards Evan Fermaint, Noberto Bercasio, and
Edward Byrne beat them. Fairley told them to stop.
Byrne snapped: “They want to hurt my officers. . . . [K]ill
‘em. They deserve to die.” Byrne later told Gackowski
(who had not seen the altercation) that he had twisted
and jumped on an inmate’s leg but couldn’t get the
bones to break. Byrne told Fairley not to file an incident
report. Bercasio and Fermaint tagged Fairley “inmate
lover.”
Though the Department of Corrections’ General Orders
require guards to report any misconduct by their peers,
plaintiffs say that this does not reflect reality; according
to them, the Jail’s real rule is a ban on reporting miscon-
duct—a “code of silence.” At the training academy,
instructors told cadets to stick together and “don’t say
any bad remarks about anybody.” This attitude
pervaded the Jail.
Tensions mounted when the inmates involved in the
incident in Special Incarceration Unit 2 filed suit. Fields
No. 07-3343 3
v. Byrne, No. 00 L 9339 (Cir. Ct. Cook County filed Aug. 16,
2000). Fairley and Gackowski told other guards that, if
subpoenaed, they would tell the truth about what they
had seen and heard. Fields’s lawyer sent an investigator
to Fairley’s home, but Fairley said he hadn’t seen any-
thing. Fairley informed his superiors about the visit.
They obtained a court order restricting Fields’s access to
guards and told the guards not to talk to anyone
about what happened.
Plaintiffs’ willingness to testify in Fields infuriated the
other guards. Bercasio and Fermaint forcefully “dry
humped” plaintiffs by grabbing them from behind and
simulating anal intercourse. Bercasio posted on the
Jail’s bulletin boards pornographic cartoons featuring
Gackowski. Supervisors repeatedly assigned plaintiffs
to Special Incarceration Unit 2 without adequate
supplies; other guards refused to let them out to use
the restroom. Byrne denied Fairley’s request for
paternity leave and refused to pay plaintiffs for overtime
they had worked. The taunts “inmate lover” and “social
worker” flew freely.
Gackowski submitted an internal-affairs complaint
about the bullying in August 2002, two years after Fields
was filed. In December Fields served a subpoena on
Fairley. Later that month inmate Lipscomb attacked
Fairley with a shank, cutting him on the wrist. Bercasio
remarked: “You see that, Fairley? You fuck with people,
that’s how you get stabbed.” (Plaintiffs do not allege that
guards furnished Lipscomb with the shank.) Internal
investigators dragged their heels. Ronald Prohaska told
4 No. 07-3343
Gackowski, “[I]f Fairley goes into court on this SI-2 case . . .
and tells the truth, he will fuck everyone involved. . . .
We always knew he was a weak link and when a weak
link can fuck everyone in the chain, then we have to
bury the weak link. It’s nothing personal. It’s just busi-
ness. . . . Just like with your complaint trying to fuck
fellow officers.”
Fearing further attacks, plaintiffs used all accrued leave
time and then quit on February 4, 2003. Fairley had given
his deposition in Fields a few weeks earlier; Gackowski
was deposed in mid-February. Both testified at trial. The
jury returned a defense verdict.
Fairley and Gackowski seek relief under 42 U.S.C. §1983.
They contend that defendants violated their speech
rights by assaulting and threatening them for reporting
abuse to Jail supervisors and for their willingness to
testify truthfully in Fields. They also contend some of the
defendants violated their rights by preventing their
complaints from moving up the chain of command.
Before reaching the merits we must address appellate
jurisdiction. Shortly before trial was to begin, the court
granted a motion to exclude all evidence of events
that took place before Fairley and Gackowski gave their
depositions. 2007 U.S. Dist. L EXIS 70539 (N.D. Ill. Sept. 24,
2007) (denying plaintiffs’ motion for reconsideration).
Plaintiffs call their theory “retaliation”—we’ll consider
later whether that’s a helpful word—and the district
judge believed that “retaliation” must follow protected
speech. Because effects can’t precede their causes, every-
thing before the depositions must be irrelevant. (The
No. 07-3343 5
district judge had already dismissed the claim alleging
punishment for filing internal complaints.) Plaintiffs
contested this decision but acknowledged that, given
the ruling, they could not prove their case, since the
assaults and threats all occurred before the depositions.
The judge responded: “[I]f you are still saying that you
concede that you cannot prove causation in your case
based on the Court’s rulings, then I will grant judgment
for the defendants on that issue, and you can take it
all up to the Seventh Circuit.”
Oddly, the court’s docket entry states that plaintiffs’
response to defendants’ motion for summary judgment
“is converted to a motion by Plaintiff [to] dismiss.” (A
docket entry is an improper substitute for a judgment.
Fed. R. Civ. P. 58 requires a document separate from the
statement of reasons supporting the relief granted in the
judgment.) Defendants seize on this language, arguing
that it shows that the court dismissed the case pursuant
to Fed. R. Civ. P. 41(a)(1) (voluntary dismissal by the
plaintiff). And defendants read cases such as Chavez v.
Illinois State Police, 251 F.3d 612 (7th Cir. 2001), to bar
appeals from actions terminated under Rule 41(a)(1).
Defendants are mistaken. The only prerequisites to
appellate jurisdiction are a final judgment and a timely
notice of appeal. 28 U.S.C. §1291. Whether a party con-
sented to that judgment (and which particular rule of civil
procedure the district court invoked) is irrelevant.
McMillian v. Sheraton Chicago Hotel & Towers, 567 F.3d
839 (7th Cir. 2009); Downey v. State Farm Fire & Casualty
Co., 266 F.3d 675 (7th Cir. 2001). The judgment here is
final and the notice timely, so we have jurisdiction.
6 No. 07-3343
That said, if plaintiffs consented to the entry of judg-
ment against them, we must affirm. Litigants aren’t
aggrieved when the judge does what they want. Nashville,
Chattanooga & St. Louis Ry. v. United States, 113 U.S. 261
(1885). Plaintiffs contend that they accepted dismissal as
inevitable only after the district court gutted their case.
This matches the district judge’s description. Cf. Katz v.
Gerardi, 552 F.3d 558, 563 (7th Cir. 2009). Acknowledging
that a case is hopeless, given a prior ruling (which
the party believes to be unsound), is a far cry from aban-
doning the suit. McMillian and Downey hold that a party
who asks for a final judgment in order to appeal an ante-
cedent ruling is entitled to contest the merits of that issue
on appeal. Chavez illustrates this principle. After the
district court dismissed some of plaintiffs’ claims, they
requested the entry of judgment against them. We re-
viewed claims rejected by the court but refused to con-
sider claims that were still live when plaintiffs asked for
judgment. The rule is simple: if plaintiff loses on A and
abandons B in order to make the judgment final and
thus obtain immediate review, the court will consider A,
but B is lost forever. See also Pollution Control Industries
of America, Inc. v. Van Gundy, 979 F.2d 1271 (7th Cir. 1992).
On to the merits. Fairley and Gackowski present two
theories of recovery under the first amendment: first, that
defendants punished them for defying the code of silence
by reporting fellow guards’ misconduct; second, that
defendants bullied them to keep them from testifying in
Fields.
Garcetti v. Ceballos, 547 U.S. 410 (2006), holds that the
first amendment does not protect statements made as
No. 07-3343 7
part of one’s job. Ceballos, a deputy district attorney,
discovered what he believed were material misrepresenta-
tions in an affidavit that had been used to support a
search warrant. He wrote a memo to his superior sug-
gesting that the case be dismissed. When the supervisor
disagreed, Ceballos pressed his view. The supervisor
responded by transferring Ceballos to another office
and refusing to promote him; Ceballos sued. The ninth
circuit concluded that the first amendment applies to
speech that is part of a worker’s responsibilities. Ceballos v.
Garcetti, 361 F.3d 1168, 1174–75 (9th Cir. 2004). The Justices
reversed, holding that the first amendment does not
regulate the way in which a public employee’s job is
performed. The Constitution does not restrict a public
employer’s ability to manage the workplace, whether
the bureaucracy’s tasks entail speech or action.
The Jail’s General Orders thus pose a problem for plain-
tiffs’ first theory. Since the General Orders require
guards to report misconduct by their colleagues, the
guards’ reports are not part of the freedom of speech—
and how the sheriff responds is a question for statutes,
regulations, and wise management rather than the Con-
stitution. Ceballos reported that his co-workers had
likely broken the law; his superior thought that the
memo displayed bad judgment and acted accordingly.
See also Vose v. Kliment, 506 F.3d 565 (7th Cir. 2007). So
here, plaintiffs reported what they deemed illegal conduct
by co-workers, and that speech is not protected.
Plaintiffs try to avoid Garcetti by arguing that the Jail’s
actual rule is the opposite of what’s in the manual: a
8 No. 07-3343
guard must not report a co-worker’s misconduct. Since
they did not have an official duty to complain, Garcetti
is inapplicable, plaintiffs maintain. (Another reason
they advance this “code of silence” theory is to establish
that the Jail has an official policy of punishing guards
who speak out. See Monell v. New York Department of Social
Services, 436 U.S. 658 (1978). In response, the sheriff
has agreed to accept liability if any of the guards is
found liable; this does not affect analysis under Garcetti.)
Alaska v. EEOC, 564 F.3d 1062 (9th Cir. 2009) (en banc),
supports plaintiffs’ position. Lydia Jones, an aide to the
Governor of Alaska, asserted that she had been sexually
harassed at work. A second aide, Margaret Ward, corrobo-
rated the accusations in a workplace interview and press
conference. The governor fired both of them. The ninth
circuit held that Garcetti does not apply unless the em-
ployer has officially assigned to the employee a task of
making particular speech, requiring the worker to act
precisely as she did. Because Ward had not been com-
manded to file internal complaints or issue press
releases, her suit could go forward. Id. at 1070–71 & n.7.
Yet Garcetti is not limited to tasks officially assigned to
an employee. Ceballos himself did not have a duty to
make the report, or include the accusations, that got
him into trouble; communicating with his superiors was
simply within the general ambit of his job. The Justices
have distinguished between public and private speech
by asking about the employer’s real rules and expecta-
tions, not just official requirements contained in a
manual or formal directive. Garcetti, 547 U.S. at 424–25. See
No. 07-3343 9
also Alaska, 564 F.3d at 1074–76 (O’Scannlain, J., dissent-
ing). See also Riley v. Blagojevich, 425 F.3d 357 (7th Cir.
2005) (explaining why written job descriptions are
not conclusive for identifying policy-making or discre-
tionary jobs for which politics are an appropriate con-
sideration).
Garcetti applies to job requirements that limit, as well as
those that require, speech. Suppose the Jail put a guard
in charge of maintaining a bulletin board, instructing
him to post only materials that relate to workplace
safety. If the guard puts up something on a different
topic, or fails to put up anything, the management may
discipline the guard without encountering an objection
under the first amendment. See Guardian Industries Corp.
v. NLRB, 49 F.3d 317, 319–20 (7th Cir. 1995); cf. Mayer v.
Monroe County Community School Corp., 474 F.3d 477
(7th Cir. 2007) (school may discipline teacher for con-
ducting an anti-war demonstration during class time).
And Garcetti can’t be limited to “good” workplace
requirements, as the ninth circuit supposed in Alaska.
Ceballos was fired for reporting conduct that he
believed was illegal. The Justices did not praise the
district attorney’s response; they held instead that state
law rather than the federal Constitution determines
whether a public work force is being well managed. If an
employer has instructed the workers to keep their
mouths shut during working hours on questions related
to performance of their (and co-workers’) jobs, the first
amendment does not prevent the employer from
enforcing that requirement. Whistle-blower protection
10 No. 07-3343
statutes or labor law might provide a remedy (particularly
if an employee is punished for reporting illegal acts), but
the Constitution does not.
The purported code of silence is a ban on filing com-
plaints about guard-on-inmate violence. Such a policy
might be foolish; it might expose the County to other
lawsuits; but it does not offend the first amendment,
because what one guard says about another through
the grievance system is part of the job, and the employer
can discipline a guard for poor performance of work-
related tasks. See Mayer, 474 F.3d at 479. Compare
Garcetti with Rankin v. McPherson, 483 U.S. 378 (1987), and
Givhan v. Western Line Consolidated School District, 439
U.S. 410 (1979). We disapprove Alaska v. EEOC to the
extent that decision rests on a belief that Garcetti applies
only to speech expressly commanded by an employer.
See also Winder v. Erste, 566 F.3d 209 (D.C. Cir. 2009);
Haynes v. Circleville, 474 F.3d 357 (6th Cir. 2007); Thomas
v. Blanchard, 548 F.3d 1317 (10th Cir. 2008); Abdur-Rahman
v. Walker, 567 F.3d 1278 (11th Cir. 2009).
Bercasio, Fermaint, and the other guards are not plain-
tiffs’ employer, however. Whether Garcetti protects
their actions is a novel question. To recover under the
first amendment, a plaintiff must prove, among other
things, both that his speech was “protected” and that the
government’s (more accurately, a given state actor’s)
justification for curtailing the speech was inadequate.
Garcetti appears to address the first question, but its
reasoning focuses on the justification of a particular
defendant: the government employer. Thus it is conceiv-
No. 07-3343 11
able that the Court might hold the same speech “not
protected” vis-à-vis the employer, but “protected” vis-à-vis
co-workers.
This case illustrates the importance of properly charac-
terizing Garcetti’s holding. If plaintiffs’ speech is categori-
cally not protected, any state actor can punish plaintiffs
in any way he wishes without incurring liability under
the first amendment. But if the Justices instead dealt
with the justification of a particular state actor, the acts
of one defendant (the sheriff) might be justified, while
the acts of others (fellow guards) might not, for guards
cannot assert the same interest in maintaining smooth
operations as the Jail’s administrators. Imagine that Cook
County’s in-house counsel, furious about the snitching,
beat up Fairley after work. Why should the County’s
need for flexibility in running its Jail insulate the actions
of all state actors? Though we have treated Garcetti as
dealing with the question whether speech is protected,
see, e.g., Chaklos v. Stevens, 560 F.3d 705, 711–12 (7th Cir.
2009); Renken v. Gregory, 541 F.3d 769, 773–75 (7th Cir.
2008), we have never considered how it applies to a non-
employer.
Unfortunately for Fairley and Gackowski, their
Monell argument—that the Jail has a policy forbidding
complaints about guards who abuse inmates—links the
guards’ fates to the sheriff’s. If a code of silence is the rule,
then the guards were merely enforcing the Jail’s policy.
Although the guards’ conduct might have been tortious
or even criminal, see 720 ILCS 5/32-4 (witness tampering),
plaintiffs do not want tort damages. They have framed
12 No. 07-3343
their case in a way that can yield one of only two results:
either everyone is liable under the first amendment or
no one is liable. Since the first amendment does not
support a claim against the sheriff, all defendants win.
Fairley and Gackowski might have contended that the
General Orders, rather than an unwritten code of silence,
were the official rule. As this argument would go, some
guards set out to violate the Orders by punishing
anyone who informs on another guard. The Jail’s employ-
ment policies would be out of the picture, and we would
have to decide whether Garcetti shields non-employer
state actors who try to subvert the employer’s policies. But
plaintiffs argue only the inverse—that the Jail’s policy
is silence, and that guards enforce this through threats
condoned, if not commanded, by management—so this
theory is off the table. We reserve the question how
Garcetti applies to punishments meted out by non-em-
ployers. (We emphasize that we express no opinion on
the legality of defendants’ conduct. We merely reject the
argument that prohibiting guards from complaining
to supervisors violates the first amendment.)
Plaintiffs’ second theory is that they were bullied and
threatened in order to deter them from testifying in
Fields. This claim falls outside Garcetti. The Jail likely
requires guards to testify on its behalf and pays them
for time at court. Testifying against the Jail might not be
part of the job, but that doesn’t matter. Even if offering
(adverse) testimony is a job duty, courts rather than
employers are entitled to supervise the process. A govern-
ment cannot tell its employees what to say in court, see
No. 07-3343 13
18 U.S.C. §1512, nor can it prevent them from testifying
against it.
Defendants’ only contention is that no one “retaliated”
against plaintiffs for testifying, because the insults, as-
saults, and threats all preceded plaintiffs’ depositions in
Fields. This misapprehends the nature of plaintiffs’ claim.
The Constitution prevents governmental actors from
forbidding, or penalizing, speech that is protected under
the first amendment. Penalties that follow speech are
forbidden. This includes, but certainly is not limited to,
reactions to what has already been said. E.g., Milwaukee
Deputy Sheriff’s Association v. Clarke, No. 08-3298 (7th Cir.
July 21, 2009); Crue v. Aiken, 370 F.3d 668 (7th Cir. 2004);
Ridpath v. Marshall University, 447 F.3d 292, 319–20 (4th
Cir. 2006). (Of course, the sanction or threat must be
serious enough to deter an ordinary person from speak-
ing. Bart v. Telford, 677 F.2d 622 (7th Cir. 1982).) But threats
of penalties also are forbidden. That’s why it can be
misleading to speak of “retaliation” as the basis of a suit.
The word implies that threats don’t matter, and the district
court here was misled.
Threatening penalties for future speech goes by
the name “prior restraint,” and a prior restraint is the
quintessential first-amendment violation. Nebraska Press
Association v. Stuart, 427 U.S. 539, 559 (1976) (judicial gag
order); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,
552–53 (1975) (executive censorship). Indeed, for a time
it appeared that prior restraints were the only actions
forbidden by the first amendment. See Schenck v. United
States, 249 U.S. 47 (1919). Later cases have held that penal-
14 No. 07-3343
ties for completed speech also violate the Constitution,
but this development does not suggest that only post-
speech penalties now matter.
The word “retaliation” has the potential, realized here,
to divert attention from the rule that both threats
designed to deter future speech and penalties for past
speech are forbidden. “Retaliation” as a legal theory
comes from employment-discrimination suits. See, e.g., 31
U.S.C. §3730(h); 42 U.S.C. §12203. We have borrowed
the word in cases where an employer punishes an em-
ployee on account of speech. E.g., Chaklos, 560 F.3d at 711.
Using one word for two kinds of claim has the potential
to confuse. Cf. Krolnik v. Prudential Insurance Co. of America,
570 F.3d 841 (7th Cir. 2009). Because only a subset of
viable first-amendment claims involves retaliatory dis-
charge, it is generally best to avoid the word.
The first amendment protects speakers from threats of
punishment that are designed to discourage future
speech. Fairley and Gackowski can recover from any
defendants who made such threats—though there are
two additional requirements.
One is proof of causation. Plaintiffs must show that their
potential testimony, not their internal complaints, caused
the assaults and threats. This means but-for causation. See
Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009);
Mt. Healthy Board of Education v. Doyle, 429 U.S. 274 (1977).
Some decisions (Matrisciano v. Randle, 569 F.3d 723 (7th Cir.
2009), is the latest) say that a plaintiff just needs to show
that his speech was a motivating factor in defendant’s
No. 07-3343 15
decision. These decisions do not survive Gross, which
holds that, unless a statute (such as the Civil Rights Act
of 1991) provides otherwise, demonstrating but-for causa-
tion is part of the plaintiff’s burden in all suits under
federal law. The record has evidence from which a rea-
sonable jury could find causation; no more is necessary
at this stage, but the instructions at trial must reflect the
holding of Gross.
The second requirement is proof of damages. The
largest item will be lost income, if plaintiffs can establish
that the threats caused them to quit. Cf. Pennsylvania State
Police v. Suders, 542 U.S. 129 (2004). Lesser threats, defama-
tion, and battery (the dry humping) also can lead to
damages, if these are the sort of harms that would cause
a reasonable person to keep quiet. Bart, 677 F.2d at 625.
But because Garcetti covers the intra-Jail complaints,
actions that occurred before the altercation in Special
Incarceration Unit 2, such as the taunting that followed
Gackowski’s defense of inmate Brown, are not an appro-
priate source of damages.
One final observation. Plaintiffs pleaded a conspiracy
claim under 42 U.S.C. §1985(3), but it’s superfluous. The
function of §1985(3) is to permit recovery from a private
actor who has conspired with state actors. See Dennis v.
Sparks, 449 U.S. 24 (1980); Adickes v. S.H. Kress & Co., 398
U.S. 144 (1970). All defendants are state actors, so a
§1985(3) claim does not add anything except needless
complexity. Plaintiffs appear to think that the §1985(3)
claim expands the scope of admissible evidence. But Fed.
R. Evid. 801(d)(2)(E) (statement of coconspirator is not
16 No. 07-3343
hearsay) applies whether or not the defendants are for-
mally charged with a conspiracy. The rule making one
conspirator’s statements admissible against another
rests on a theory of agency, not on the allegations in the
complaint. If plaintiffs can show that the defendants
acted in concert, then Rule 801(d)(2)(E) will apply. And
the judge, not the jury, makes this decision. See Fed. R.
Evid. 104(a); United States v. Martinez de Ortiz, 907 F.2d 629
(7th Cir. 1990) (en banc).
The judgment is affirmed to the extent that the district
court dismissed plaintiffs’ “code of silence” claim and
the conspiracy claim. To the extent that it dismissed the
prior-restraint claim, the judgment is reversed, and the
case is remanded for further proceedings consistent
with this opinion.
8-20-09