County Employee's Report of Misconduct is a Requirement of Her Job and Therefore Not Protected Speech Under Garcetti
HOUSKINS v. SHEAHAN (November 25, 2008)
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Virgean Houskins was an employee of the Cook County Department of Corrections. One September morning in 2001, she found herself sitting in her car in the parking lot of her place of employment, waiting for a parking space to open up. Correctional Officer Keith entered the lot and took what Houskins believed was her space. Houskins uttered some profanities about Keith (which he heard) and proceeded to park in another space. A verbal confrontation between the two ended with Keith striking Houskins in the face. Correctional Officer Calderone arrived a few moments later but did nothing. Houskins reported to work, filed an incident report, and also reported the incident to her supervisor, Tolbert. Tolbert took Houskins and Bowers to the Internal Affairs Division (“IAD”) to make out a complaint. Houskins also filed a police report. The IAD dismissed the charges against Keith and Calderone as not conclusive but upheld an obscene language charge against Houskins. Upon further department review, the finding against Houskins was upheld but the dismissal of the complaint against Keith and Calderone was reversed. Houskins filed a complaint pursuant to 42 U.S.C. § 1983 against the Sheriff and Cook County, alleging a) that the Sheriff retaliated against her for filing the complaints and charges against Keith, b) that a “code of silence” policy existed for correctional officers and those who violated it were subject to retaliation, and c) that the Sheriff employed a disciplinary system in which certain officers with clout were exempted from discipline. Houskins also brought pendant state court claims of assault and battery against Keith. At trial, the jury returned a verdict against the Sheriff and Keith. It awarded $240,000 against the Sheriff and $10,000 in compensatory and $50,000 in punitive damages against Keith. The Sheriff and Keith appeal.
In their opinion, Judges Bauer, Manion and Williams affirmed the judgment and damages award with respect to Keith and reversed and remanded with respect to the Sheriff. The Court first addressed two preliminary procedural issues. Houskins argued that the Sheriff could not appeal a denial of summary judgment after a jury verdict and also that the Sheriff waived the argument by not raising it in the final pre-trial order. The Court noted that while denials of summary judgments motions based on the sufficiency of the evidence are generally not reviewable, the Sheriff’s motion raised a question of law – whether Houskins’ speech was constitutionally protected – and was therefore appealable. The Court also held that the failure to raise it in the final pre-trial order did not constitute a waiver. On the merits of the speech issue, the Court looked to the Supreme Court’s Garcetti decision. Garcetti requires a court first to decide whether a plaintiff is speaking as a private citizen on a matter of public interest. Houskins complained of retaliation for two different instances of speech – her internal complaint and her police report. The Court concluded that her internal complaint was not protected speech. She was required to report misconduct as part of her official job responsibilities. With respect to the police report, the Court concluded that it was not part of her job responsibilities but that she was speaking about a matter of purely personal interest. Her purpose in filing the police report was not to air a grievance about conditions at the jail or her safety as an employee. The Court found that Houskins’ speech was not constitutionally protected and that the lower court therefore erred in denying the Sheriff’s motion for summary judgment. The Court added that Houskins’ Monell claims that the Sheriff had a policy of retaliation and selective discipline had to fail as well. A Monell claim cannot stand where the alleged official policy did not result in a constitutional violation.
With respect to the jury’s verdict for Houskins on her claims of assault and battery against Keith, the Court rejected each of Keith’s arguments on appeal. It held that a) the district court properly asserted supplemental jurisdiction over the state law claims since they pertained to the same set of circumstances alleged in the federal claim, b) the district court did not abuse its discretion in denying a separate trial for Keith, c) the judge’s comments to Keith’s counsel did not indicate bias, and d) the award of punitive damages was not excessive. The Court affirmed the judgment against Keith.
Robert Powers was employed by the State of Illinois in 2002 as Deputy Director of the Department of Central Management Services. Powers is alleged to have been part of a scheme to help certain state employees keep their jobs. The employees had been appointed to their jobs for four-year terms. During those terms, they could not be fired but for cause. Instead of allowing their terms to expire shortly after the election of a new governor and risk being replaced, these employees voluntarily resigned before the election. They were then reappointed to new four-year terms. Powers signed the personnel forms that were necessary for the scheme to succeed. Powers did not have the authority to sign the forms and did so knowing that the Director would not. In October of 2002, Powers took a new job as Executive Secretary of the Civil Service Commission (“Commission”). The role of the Commission is to hear appeals of state employees regarding discharges and discipline, modify personnel rules, and investigate personnel violations. Powers’ role as Executive Secretary included drafting rules and regulations, making recommendations regarding resolution of disputes, and interpreting the Personnel Code, among others. When a new governor took office in January of 2003, he began an investigation into the late appointments. The governor’s office concluded that Powers was involved in the scheme and referred its findings to the Commission. The Commission suspended Powers and authorized its Chairman to conduct a hearing. The Chairman was authorized to fire Powers if he did not produce exculpatory evidence at the hearing. The Chairman notified Powers of his rights and held a hearing. The Chairman recommended that Powers be fired – and he was. Powers received a post-deprivation hearing before an ALJ. The ALJ concluded that the firing was warranted. Powers brought suit under 42 U.S.C. § 1983. He alleged that his firing was a deprivation of his right to association because it was on account of his party affiliation. He also alleged a lack of pre-deprivation procedural due process. The defendants conceded, for purposes of summary judgment, that Powers was fired because he was a Republican. The district court granted summary judgment to all defendants. Powers appeals.