David Kristofek v. Village of Orland Hills , 832 F.3d 785 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2919
DAVID KRISTOFEK,
Plaintiff-Appellant,
v.
VILLAGE OF ORLAND HILLS, a municipal corporation,
and THOMAS SCULLY, individually and in his official
capacity,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CV 7455 — Samuel Der-Yeghiayan, Judge.
____________________
ARGUED DECEMBER 4, 2015 — DECIDED AUGUST 11, 2016
____________________
Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. While working as a part-time po-
lice officer for the Village of Orland Hills, David Kristofek
cited and arrested a driver for several car-insurance-related
infractions. Following a flurry of phone calls between the
2 No. 14-2919
driver’s mother, several local politicians, and Thomas Scully,
the Village’s chief of police, the driver was released and the
citations against him were voided. Several months later,
Kristofek participated in a police training session that in-
volved two hypothetical instances of official police miscon-
duct. Based on these hypotheticals, Kristofek became con-
cerned that official misconduct may have occurred involving
the voided citations. After Kristofek shared this concern with
two other officers and with the FBI, Scully fired him.
Kristofek sued Scully and the Village, and the district
court granted their motion for summary judgment. On ap-
peal, Kristofek claims that the district court erred in holding
that his statements to his colleagues and the FBI about the
voided citations were not protected under the First Amend-
ment. We agree. Kristofek was speaking as a private citizen
about a matter of public concern, and his interest in speaking
outweighed Scully’s interest in promoting efficiency within
the department. Kristofek also claims that the district court
erroneously held that the Village was not liable for Scully’s
actions under Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978). But the district court correctly
rejected Kristofek’s Monell claim, since Scully did not possess
the requisite authority to unilaterally fire Kristofek or to set
departmental firing policy. So we reverse the district court’s
judgment relating to Kristofek’s First Amendment retaliation
claim against Scully, but affirm it as to Kristofek’s Monell
claim against the Village.
No. 14-2919 3
I. BACKGROUND
A. Arrest and Citations
In September 2010, the Village of Orland Hills, Illinois
(Village) hired Kristofek as a part-time probationary officer.
At the time, Kristofek was also working part time as an of-
ficer for the police department in Lemont, Illinois. While
working for the Village in November 2010, Kristofek ran the
license plate of a car that was being driven by Alonzo Mar-
shall (Alonzo), a young black man. Kristofek discovered that
the car’s registration was suspended due to a lack of insur-
ance and initiated a traffic stop. (The legality of this stop is
not at issue on appeal.) After Alonzo was unable to provide
proof of insurance, he was cited for driving with suspended
license plates and for failing to provide proof of insurance.
He was placed under arrest by Kristofek and transported to
a police station by two other officers—Joseph Johnston and
Ross Ricobene.
Between the commencement of the traffic stop and the
arrest, Alonzo called his mother, Carol Marshall (Carol).
Carol was working as a bus driver in neighboring Rich
Township, and had previously worked as a trustee in
Matteson, Illinois (which is located within Rich Township).
After Carol got off the phone with Alonzo, she called Timo-
thy Bradford, a friend who was a trustee for Rich Township,
and complained about Alonzo’s arrest. This led to a series of
phone calls between several area public officials.
Bradford called Village Mayor Kyle Hastings, who in
turn called Village Police Chief Thomas Scully. Hastings
gave Bradford’s phone number to Scully, who then spoke
with Bradford about Carol’s complaints. After getting off the
4 No. 14-2919
phone with Bradford, Scully called Deputy Police Chief Mi-
chael Blaha and briefly discussed the arrest. (The parties
dispute the content of the discussion.) After the call, Alonzo
was released, the citations were voided, and a letter was sent
to the County Clerk identifying the citations and advising
that they had been voided. Scully argues that this was done
to protect the officers and the Village from a potential law-
suit. Kristofek claims, however, that Blaha told him that the
incident involving Alonzo was not Kristofek’s fault and
“was above and beyond you and me.”
In February 2011, a handgun was discovered in the
backseat of Kristofek’s squad car after Kristofek had re-
turned the car to the station and gone off-duty. Kristofek
admitted that the gun was likely in the car when he returned
it and offered to resign. But Scully refused to accept the of-
fer, stating in an email, “DO NOT submit your resignation as
I will not accept it … . You’re a good police officer Dave and
we will learn from this experience.”
B. Kristofek’s Termination
In early April 2011, Kristofek participated in an online
training session through the Lemont Police Department. The
session included two Q&As instructing that official miscon-
duct occurs if a supervisor allows an arrestee in police cus-
tody at a station to leave, confiscates the related paperwork,
and declines to forward it to the County Clerk or the State’s
Attorney. Kristofek believed these hypotheticals to be simi-
lar to the incident involving Alonzo, and became concerned
that official misconduct had occurred for which he could be
punished. He consulted with an attorney and was advised to
bring the matter to the FBI’s attention. Kristofek also ex-
pressed his concerns to Johnston and Ricobene—the two of-
No. 14-2919 5
ficers who took Alonzo to the police station after he was ar-
rested—and asked them to help him report the matter to
outside law enforcement. After both officers rebuffed Kris-
tofek’s request, he contacted the FBI.
Ricobene informed Scully about Kristofek’s remarks,
prompting Scully to reach out to Johnston for corroboration.
(The parties dispute whether Scully was informed that Kris-
tofek had consulted with an attorney and that Kristofek be-
lieved the officers’ knowledge of the voided citations might
constitute official misconduct.) Scully then met with Village
Administrator John Daly to discuss Kristofek’s comments
and to recommend that Kristofek be fired. Daly agreed with
Scully’s recommendation but first wanted him to meet with
Kristofek and confirm the content of Kristofek’s statements.
Scully asked Kristofek to meet him in his office. Kristofek
described the online training scenarios he had viewed and
said that they suggested official misconduct had occurred in
connection with Alonzo’s voided citations. Kristofek claims
that he also told Scully that he had recently met with the FBI
to discuss the incident. (The FBI and U.S. Attorney’s Office
later investigated the matter and decided not to take action.)
After Kristofek declined Scully’s offer to submit a resigna-
tion letter, Scully fired him. In the ensuing days, Scully pre-
pared a “notice of termination” that stated Kristofek was be-
ing fired because he had “contacted several members of this
agency, telling them that the Chief of Police was a criminal
and was going to be indicted,” and had “accused the Village
of being corrupt.” The February handgun incident was not
referenced.
6 No. 14-2919
C. Legal Proceedings
Kristofek sued Scully and the Village, alleging that his
termination violated the First Amendment and Illinois state
law. The district court dismissed Kristofek’s First Amend-
ment claim and remanded the remaining claims to state
court. But we reversed, finding that Kristofek’s complaint
adequately pled that his speech related to a matter of public
concern (notwithstanding his apparent self-interested moti-
vation in avoiding potential punishment), and that Scully
possessed enough authority over hiring and firing to state
(albeit barely) a Monell claim. See generally Kristofek v. Vill. of
Orland Hills, 712 F.3d 979 (7th Cir. 2013) (“Kristofek I”).
On remand, the parties conducted discovery and filed
cross motions for summary judgment. The district court
granted the defendants’ motion and denied Kristofek’s mo-
tion. In doing so, the court rejected Kristofek’s claim against
Scully on several grounds: Kristofek had failed to speak on a
matter of public concern; the police department’s interests in
promoting efficient and effective public service outweighed
his interest in expressing his speech; his speech was made
with a reckless disregard for the truth; and his speech did
not cause his termination because Scully was not aware of
his contact with the FBI when Scully fired him. The court al-
so concluded that Scully was entitled to qualified immunity.
In addition, the court rejected Kristofek’s Monell claim
against the Village on the grounds that Kristofek’s constitu-
tional rights had not been violated, and that he had failed to
demonstrate that Scully had policymaking authority over
firing. This appeal followed.
No. 14-2919 7
II. ANALYSIS
We review the district court’s grant of summary judg-
ment de novo and construe all factual inferences in Kris-
tofek’s favor as “the party against whom the motion under
consideration is made.” Hess v. Reg-Ellen Mach. Tool Corp.,
423 F.3d 653, 658 (7th Cir. 2005) (citation omitted). Summary
judgment is appropriate only where there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); Alexander
v. Casino Queen, Inc., 739 F.3d 972, 978 (7th Cir. 2014).
A. District Court Improperly Rejected First Amend-
ment Retaliation Claim Against Scully
In order to prove a First Amendment retaliation claim, a
public employee must show: (1) his speech was constitution-
ally protected; (2) this speech was a cause of his employer’s
action; and (3) he suffered deprivation as a result. Wackett v.
City of Beaver Dam, Wis., 642 F.3d 578, 581 (7th Cir. 2011) (ci-
tation omitted). The parties do not dispute that Kristofek
suffered an adverse employment action and instead focus on
the first two factors. We conclude that the district court erred
in finding in Scully’s favor as to each factor on summary
judgment.
1. Kristofek’s Speech Was Protected
“For a public employee’s speech to be protected under
the First Amendment, the employee must show that (1) he
made the speech as a private citizen, (2) the speech ad-
dressed a matter of public concern, and (3) his interest in ex-
pressing that speech was not outweighed by the state’s in-
terests as an employer in promoting effective and efficient
public service.” Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir.
8 No. 14-2919
2013) (citation and internal quotation marks omitted). We
consider each of these factors in turn.
a. Speaking as Private Citizen
The Supreme Court has instructed that “when public
employees make statements pursuant to their official duties,
the employees are not speaking as citizens for First Amend-
ment purposes, and the Constitution does not insulate their
communications from employer discipline.” Garcetti v. Ce-
ballos, 547 U.S. 410, 421 (2006). However, that speech does
not lose protection simply because it “concerns” or is “ac-
quired by virtue of [the citizen’s] public employment.” Lane
v. Franks, 134 S. Ct. 2369, 2379 (2014). Rather, the speech itself
must “ordinarily [fall] within the scope of the [plaintiff]’s
duties.” Id. To determine the scope of a public employee’s
official duties, we look not only to the applicable job descrip-
tion but also to unwritten responsibilities that the employee
is expected to perform. E.g., Renkin v. Gregory, 541 F.3d 769,
773–74 (7th Cir. 2008); Vose v. Kliment, 506 F.3d 565, 570–71
(7th Cir. 2007). In addition, we must be especially careful in
concluding that employees have spoken pursuant to their
official duties when the speech concerns allegations of public
corruption. That’s because:
It would be antithetical to our jurisprudence to
conclude that the very kind of speech neces-
sary to prosecute corruption by public offi-
cials—speech by public employees regarding
information learned through their employ-
ment—may never form the basis for a First
Amendment retaliation claim. Such a rule
would place public employees who witness
corruption in an impossible position, torn be-
No. 14-2919 9
tween the obligation to testify truthfully and
the desire to avoid retaliation and keep their
jobs.
Lane, 134 S. Ct. at 2380; see also Waters v. Churchill, 511 U.S.
661, 674, (1994) (plurality opinion) (“Government employees
are often in the best position to know what ails the agencies
for which they work.”).
We find that Kristofek’s statements to Johnston, Rico-
bene, and the FBI were not made pursuant to his official du-
ties. According to Kristofek, his responsibilities as a part-
time police officer involved traffic enforcement and placing
calls for public service and officer back-up. The fact that
Kristofek’s statements bore some relation to the subject mat-
ter of his job is not dispositive. For the speech to lack consti-
tutional protection, it must constitute “‘government employ-
ees’ work product’ that has been ‘commissioned or created’
by the employer.” Chrzanowski v. Bianchi, 725 F.3d 734, 738
(7th Cir. 2013) (quoting Garcetti, 547 U.S. at 422). Here, Scully
points to no evidence demonstrating that Kristofek was re-
sponsible for pursuing or voiding citations, or for determin-
ing when and under what circumstances arrestees could be
released. Compare Renkin, 541 F.3d at 773 (concluding that
university professor who complained about university’s
proposed use of grant funds spoke as a public employee,
since administering the grant “aided in the fulfillment of his
acknowledged teaching and service responsibilities”), with
Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1123–24 (7th Cir.
2009) (concluding that officer’s statements concerning police
chief’s proposed staffing reductions at a union meeting were
made in his capacity as a union representative, not as a po-
lice officer).
10 No. 14-2919
Scully argues that Kristofek was “doing what was ex-
pected of him and what he was generally paid to do” when
he shared his concerns about the voided citations with John-
ston and Ricobene and with the FBI. In support, he cites
General Order 2.10, which instructs officers who believe they
have received “an unlawful, unjust, or improper order” to
submit a written report to the police chief. But Scully does
not claim that Kristofek received an order from Scully,
Blaha, or anyone else to void the citations and release
Alonzo. So Kristofek had no duty to report under General
Order 2.10. Compare Morales v. Jones, 494 F.3d 590, 597–98
(7th Cir. 2007) (finding that police officers’ statements to one
another and to an assistant district attorney about their su-
periors’ possible harboring of a fugitive were not made as
private citizens, since the officers had a duty to apprise one
another of information pertinent to ongoing investigations,
and to work with district attorneys to present criminal
charges), with Chaklos v. Stevens, 560 F.3d 705, 712 (7th Cir.
2009) (finding that public employees who complained about
anti-competitive practices were speaking as private citizens,
in part, because their complaints were not submitted to the
state attorney general or chief procurement officer as di-
rected by state statute). So Kristofek was speaking as a citi-
zen to Johnston, Ricobene, and the FBI.
b. Speaking About Matters of Public Concern
For speech to be constitutionally protected it must also
involve a matter of “public concern.” City of San Diego, Cal. v.
Roe, 543 U.S. 77, 83 (2004) (per curiam). “Speech deals with
matters of public concern when it can be fairly considered as
relating to any matter of political, social, or other concern to
the community, or when it is a subject of legitimate news in-
No. 14-2919 11
terest; that is, a subject of general interest and of value and
concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453
(2011) (citations and internal quotation marks omitted).
When undertaking public-concern inquiries, we examine the
“content, form, and context” of the statements at issue. Craig
v. Rich Twp. High Sch. Dist. 277, 736 F.3d 1110, 1115–16 (7th
Cir. 2013) (quoting Connick v. Myers, 461 U.S. 138, 147–48
(1983)). While none of the three factors is dispositive, content
is the most important. Milwaukee Deputy Sheriff’s Ass’n v.
Clarke, 574 F.3d 370, 377 (7th Cir. 2009).
The content of Kristofek’s statements—that Alonzo’s cita-
tions were voided and that he was released solely on ac-
count of political favoritism—clearly involves a matter of
public concern. See, e.g., Miller v. Jones, 444 F.3d 929, 936 (7th
Cir. 2006) (“Our cases have consistently held that speech al-
leging government malfeasance addresses matters of public
concern in its substance.”); cf. Garcetti, 547 U.S. at 425 (“Ex-
posing governmental inefficiency and misconduct is a mat-
ter of considerable significance.”). In addition, Kristofek’s
statements to Johnston and Ricobene that he was consider-
ing contacting outside law enforcement are also protected.
See Belk v. Town of Manaqua, 858 F.2d 1258, 1262–63 (7th Cir.
1988) (concluding that municipal employee’s threat to file a
grievance revealing that two municipal positions were being
unlawfully held by a single individual involved a matter of
public concern); cf. Kristofek I, 712 F.3d at 984 (“Any reasona-
ble person would understand that a report to the FBI could
potentially result in widespread changes to police practices
in Orland Hills.”).
The form and context of Kristofek’s statements also
demonstrate that the statements touched upon a matter of
12 No. 14-2919
public concern. We “look at the point of the speech in ques-
tion” and ask whether it was “the employee’s point to bring
wrongdoing to light” or to “raise other issues of public con-
cern, because they are of public concern.” Kokkinis v. Ivkovich,
185 F.3d 840, 844 (7th Cir 1999) (citation and internal quota-
tion marks omitted). We have repeatedly observed that al-
though “a statement born of pure personal interest does not
constitute a public concern, a mere personal aspect of the
speaker’s motivation will not defeat the entire speech.” Mil-
ler, 444 F.3d at 937; cf. Marshall v. Porter Cnty. Plan Comm’n,
32 F.3d 1215, 1219 (7th Cir. 1994) (observing that “[i]t is often
the case that those who speak out are also involved in per-
sonal disputes with employers and other employees”). We
previously held that Kristofek’s complaint adequately pled
that his speech involved a matter of public concern. Kristofek
I, 712 F.3d at 984–86. But because that decision rested solely
on the pleadings, we must revisit the issue in light of the
record as a whole. Gustafson v. Jones, 290 F.3d 895, 907 (7th
Cir. 2002) (“Gustafson II”).
By reaching out first to Johnston and Ricobene, and then
to the FBI, Kristofek “explicitly and formally sought to alert
a greater audience of the possible harm at issue.” Miller, 444
F.3d at 937 (finding protected speech where police officer
complained about police chief’s actions to several separate
entities including civilian oversight board). The fact that
Kristofek’s pre-FBI statements were made privately and sep-
arately to two fellow officers, by itself, does not affect their
protected status. As noted above, Kristofek informed them
that he believed official misconduct may have occurred in-
volving the voided citations and that he was considering re-
porting the matter to an outside law-enforcement agency.
This “created a ‘communicative element’ putting the listen-
No. 14-2919 13
er[s] on notice that a matter of public concern [was] being
raised.” Miller, 444 F.3d at 936; see also Spiegla v. Hull, 371
F.3d 928, 937 (7th Cir. 2004) (holding that employee who ini-
tiated a private conversation with a superior about alleged
misconduct involving other employees spoke about a matter
of public concern, in part, because the employee “did not in-
tend that the conversation would be kept confidential”).
It does not matter that Kristofek was motivated, at least
in part, by self-interest. It is undisputed that Kristofek was
concerned about being punished somehow if the details sur-
rounding the voided citations came to light. But as noted
above, he did not merely express to Johnston and Ricobene
his concerns about being punished. He also took clear steps
to alert outside law enforcement that official misconduct
may have occurred and encouraged others to do so. See Kris-
tofek I, 712 F.3d at 986 (“[I]f an objective of the speech was
also to bring about change with public ramifications extend-
ing beyond the personal, then the speech does involve a mat-
ter of public concern.”).
Critically, the record does not suggest that a reporter, in-
vestigator, or anyone else was inquiring into the matter
which might have alerted Kristofek that potential punish-
ment was eminent. Moreover, Kristofek did not rush to alert
others about his concerns immediately after the training ses-
sion concluded; rather, approximately two weeks passed be-
fore he contacted the FBI, thus indicating that self-
preservation was not the sole motivating force. See Marshall,
32 F.3d at 1219 (holding that employee’s complaints about
failure to perform required building inspections were consti-
tutionally protected, since the employee’s charges “were
communicated as office concerns, not as concerns that affect-
14 No. 14-2919
ed only [plaintiff]”); see also Kristofek I, 712 F.3d at 986 (em-
phasizing the importance of “distinguish[ing] between the
secret intent of the speaker and the objective of the speech”).
c. Pickering Balancing Favors Kristofek
In order for Kristofek’s speech to be constitutionally pro-
tected, he must show that his interest, “as a citizen, in com-
menting upon matters of public concern” outweighs the po-
lice department’s interest, “as an employer, in promoting the
efficiency of the public services it performs through its em-
ployees.” Pickering v. Board of Education, 391 U.S. 563, 568
(1968). We consider the following factors in balancing an
employee’s free-speech interests against an employer’s man-
agement interests:
(1) whether the speech would create problems
in maintaining discipline or harmony among
co-workers; (2) whether the employment rela-
tionship is one in which personal loyalty and
confidence are necessary; (3) whether the
speech impeded the employee’s ability to per-
form her responsibilities; (4) the time, place
and manner of the speech; (5) the context in
which the underlying dispute arose; (6) wheth-
er the matter was one on which debate was vi-
tal to informed decisionmaking; and (7)
whether the speaker should be regarded as a
member of the general public.
Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir. 2000); see also
Graber v. Clarke, 763 F.3d 888, 896 (7th Cir. 2014) (noting that
the seven factors need not all be addressed in turn). With re-
spect to the first two factors, the disruptive nature of an em-
No. 14-2919 15
ployee’s speech is so important in the context of law en-
forcement that a government employer is allowed to consid-
er both the actual and the potential disruptiveness. Lalowski
v. City of Des Plaines, 789 F.3d 784, 791–92 (7th Cir. 2015)
(quoting Kokkinis, 185 F.3d at 846) (internal quotation marks
omitted). Nevertheless, when a public employee’s speech
has touched upon a matter of “strong public concern,” the
government employer typically must “offer particularly
convincing reasons to suppress it.” Gustafson v. Jones, 117
F.3d 1015, 1019 (7th Cir. 1997) (“Gustafson I”).
Scully makes no reference to Kristofek’s conversation
with the FBI when discussing Pickering balancing, so we
treat this issue as waived. While Scully focuses solely on
Kristofek’s statements to Ricobene and Johnston, he does not
claim that these statements actually undermined department
efficiency. Nor could he, since he testified in a deposition
that he was unaware of “any concrete way that anything that
David Kristofek said interfered with the actual operations of
[Scully’s] police department.” Instead, Scully argues that the
police department’s interests trumped Kristofek’s because
Kristofek’s statements “ha[d] the potential to undermine
Scully’s ability to maintain discipline and authority.” We
disagree.
For one, Scully makes no effort to explain precisely how
Kristofek’s statements were potentially disruptive. See Gus-
tafson II, 290 F.3d at 910 (“First Amendment rights cannot be
trampled based on hypothetical concerns that a governmen-
tal employer never expressed.”). In addition, the record indi-
cates that Kristofek’s statements to Johnston and Ricobene
were measured and succinct, and that Kristofek had no
plans to speak with anyone else in the department or the
16 No. 14-2919
public. Compare Graber, 763 F.3d at 896 (finding that officer’s
interests outweighed police department’s, in part, because
his statements were “brief” and “calm” and because the oth-
er officers present “testified that [plaintiff] did not interfere
with their staffing duties”), with Kokkinis, 185 F.3d at 846
(concluding that police department’s interests outweighed
officer’s, where officer’s televised statements “caused em-
barrassment to his superiors and co-workers, who “believed
that his appearance cast a negative light on the department
and made the department look like a ‘bunch of clowns’ in
the eyes of the surrounding communities”).
Scully contends, in conclusory fashion, that Kristofek’s
allegations were “baseless” and “unsubstantiated.” But Kris-
tofek need not “prove the truth of his speech in order to se-
cure the protections of the First Amendment.” Gazarkiewicz
v. Town of Kingsford Heights, Ind., 359 F.3d 933, 942 (7th Cir.
2004) (quoting Chappel v. Montgomery Cnty. Fire Prot. Dist.
No. 1, 131 F.3d 564, 576 (6th Cir. 1997)). “Rather, speech of
public importance only loses its First Amendment protection
if the public employee knew it was false or made it in reck-
less disregard of the truth.” Id.
Scully has failed to meet this high bar. He ignores the ob-
vious similarities between the events surrounding the void-
ed citations and the Q&A’s from the online training session.
He also ignores the fact that before Kristofek spoke with
Johnston and Ricobene, Kristofek consulted with an attorney
who suggested that he contact the FBI. To be sure, the FBI
and U.S. Attorney’s Office ultimately declined to take action
after completing their investigation. However, the investiga-
tion report does not indicate that Kristofek’s factual recita-
tion to FBI officials was flawed, or that his concerns were
No. 14-2919 17
wholly lacking in merit. Moreover, while Johnston and
Ricobene declined to assist Kristofek in reaching out to the
FBI, there is no indication that they told Kristofek that his
suspicions were based on misinformation or would cause
problems within the department.
We recognize that a police department employee could
pose a serious threat to department discipline and harmony
if he openly and repetitively claimed that top-ranking de-
partment officials have been complicit in political corrup-
tion—particularly if such claims had little-to-no grounds for
support. But this is not such a case. Kristofek’s belief that of-
ficial misconduct may have occurred within the highest
ranks of the police department represented a matter of
strong public concern, and one that was communicated dis-
creetly to the FBI and to two coworkers who were involved
with the matter. His interest in making this speech was par-
amount.
2. Factual Dispute Exists Regarding Causation
Although we find that Kristofek’s speech was constitu-
tionally protected, his retaliation claim cannot survive unless
he can show that his First Amendment protected speech
caused his termination. On appeal, Scully does not contend
that the statements to Johnston and Ricobene were unrelated
to his termination, so we treat this issue as waived. Instead,
Scully argues that his communication with the FBI was not a
cause of his termination. We find, however, that a genuine
factual dispute precludes summary judgment in Scully’s fa-
vor on what is admittedly a very close issue.
Parts of the record suggest that Kristofek’s communica-
tion with the FBI did not play a role in his firing. Perhaps
18 No. 14-2919
most notably, Scully informed Kristofek in an inter-office
memo that he was being terminated based on statements he
had made to “several members of this agency.” In addition,
Scully testified that according to Johnston and Ricobene,
Kristofek had not told them that he (Kristofek) had spoken
with anyone outside the department, including attorneys,
about the matter.
Other parts of the record, however, suggest that Kris-
tofek’s communication with the FBI was a motivating factor.
For one, Scully may have known that Kristofek had consult-
ed with an attorney, and that Kristofek was considering
reaching out to an outside law-enforcement agency. In his
depositions, Kristofek testified that he told both Johnston
and Ricobene that they could be implicated in the purported
official misconduct, and asked them if they would be willing
to report anything they knew. He also testified that he told
Ricobene that his brother-in-law had done work with the At-
torney General’s office, and that he might contact him.
This all is critical because it is undisputed that both Rico-
bene and Johnston informed Scully about the substance of
their communications with Kristofek. Indeed, in an interof-
fice memo to Scully, Johnston noted that Kristofek said “he
consulted with an attorney if he could get charged for any of
the members of the police administration voiding a valid ar-
rest,” and that “it would not hurt to ask the ASA”—
presumably an Assistant State’s Attorney—about the issue.
In addition, Kristofek claims that shortly before terminating
him, Scully asked if he had contacted the FBI and that Kris-
tofek responded that he had. So Scully’s termination deci-
sion could have been based on a belief that Kristofek was ei-
ther considering or had decided to contact the FBI. Cf. Belk,
No. 14-2919 19
858 F.2d at 1264 (reversing grant of summary judgment in
government employer’s favor when employee had alleged
that she was fired in retaliation for threatening to file griev-
ance, and remanding for determination as to whether threat
was motivating factor in her termination).
In addition, other parts of the record suggest that Scully
communicated his termination decision to Kristofek only af-
ter Kristofek referenced his FBI communications. Kristofek
testified that Scully had asked him whether he had reported
the issue with the FBI, that he had said yes, and that Scully
fired him later in the meeting. (In his deposition, Scully
could not recall whether he had asked Kristofek at their ter-
mination meeting if Kristofek had contacted any outside
agencies such as the FBI.) Given the fact that Daly had
agreed with Scully’s termination recommendation subject to
corroboration from Kristofek, a factfinder could conclude
that Scully’s final decision to fire Kristofek was based, at
least in part, on the fact that Kristofek had actually contacted
the FBI.
3. Scully Not Entitled to Qualified Immunity
Scully argues that even if he violated Kristofek’s constitu-
tional right to speak out about possible political corruption,
he is nevertheless entitled to qualified immunity. “In deter-
mining qualified immunity at the summary judgment stage,
the court asks two questions: (1) whether the facts, taken in
the light most favorable to the plaintiff, make out a violation
of a constitutional right, and (2) whether that constitutional
right was clearly established at the time of the alleged viola-
tion.” Hobgood v. Ill. Gaming Bd., 731 F.3d 635, 648 (7th Cir.
2013) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
20 No. 14-2919
We have “long recognized that an employer may not re-
taliate against an employee for expressing his views about
matters of public concern.” Gorman v. Robinson, 977 F.2d 350,
355 (7th Cir. 1992). However, we typically conduct qualified-
immunity inquiries by focusing on the “specific context in
the case,” rather than on a “broad general proposition.”
McGreal v. Ostrov, 368 F.3d 657, 683 (7th Cir. 2004). Never-
theless, “general statements of the law are not inherently in-
capable of giving fair and clear warning, and in [certain] in-
stances a general constitutional rule already identified in the
decisional law may apply with obvious clarity to the specific
conduct in question.” Hope v. Pelzer, 536 U.S. 730, 741 (2002)
(citation omitted).
As discussed above, Kristofek has adequately demon-
strated that Scully terminated him in retaliation for speaking
out about potential political corruption involving senior offi-
cials within the police department. In addition, it was clearly
established at the time of Scully’s actions that the First
Amendment prohibited retaliating against a public employ-
ee because he had spoken with colleagues and with the FBI
about public corruption. See, e.g., Hobgood, 731 F.3d at 648
(observing that it was clearly established that “the First
Amendment prohibited … terminating a public employee
because he had helped another employee pursue a lawsuit
aimed at uncovering and proving public corruption”); Valen-
tino v. Vill. of S. Chi. Heights, 575 F.3d 664, 678 (7th Cir. 2009)
(“Terminating a government employee for speaking out
against corruption in her workplace is surely contrary to
clearly mandated public policy (the intersection of the First
Amendment and the public’s right not to be defrauded by its
government) … .”); Spiegla, 371 F.3d at 937 (holding that em-
ployee who initiated a private conversation with a superior
No. 14-2919 21
about alleged misconduct involving other employees spoke
on a matter of public concern); Gorman, 977 F.2d at 356
(holding that government officials were not entitled to quali-
fied immunity on claim that employee was fired in retalia-
tion for contacting FBI about crimes by other public employ-
ees). So Scully is not entitled to qualified immunity on Kris-
tofek’s First Amendment retaliation claim.
B. Monell Claim Against Village Fails
Under Monell, a municipality like the Village may be lia-
ble under § 1983 for constitutional violations caused by “(1)
an express municipal policy; (2) a widespread, though un-
written, custom or practice; or (3) a decision by a municipal
agent with ‘final policymaking authority.’” Darchak v. City of
Chi. Bd. of Educ., 580 F.3d 622, 629 (7th Cir. 2009). Only the
third approach is at issue here.
An official with decisionmaking responsibilities on firing
matters is not always a policymaker under Monell; the offi-
cial must possess “final decisionmaking authority.” Valenti-
no, 575 F.3d at 675–76. And this authority must concern set-
ting policy for hiring and firing, not merely the act of hiring
or firing itself. Kujawski v. Bd. of Comm’rs of Bartholomew
Cnty., 183 F.3d 734, 739 (7th Cir. 1999). With an eye toward
the applicable state statutes, rules, and regulations as well as
the relevant customs and practices, we inquire into: “(1)
whether the official is constrained by policies of other offi-
cials or legislative bodies; (2) whether the official’s decision
on the issue in question is subject to meaningful review; and
(3) ‘whether the policy decision purportedly made by the
official is within the realm of the official’s grant of authori-
ty.’” Valentino, 575 F.3d at 676 (quoting Randle v. City of Auro-
ra, 69 F.3d 441, 448 (10th Cir. 1995)); see also Vodak v. City of
22 No. 14-2919
Chi., 639 F.3d 738, 748 (7th Cir. 2011) (asking whether the de-
cisionmaker “was at the apex of authority for the action in
question” (citation and internal quotation marks omitted)).
Here, Scully lacked the requisite independent authority
to fire officers. As a part-time Village police offer, Kristofek
was subject to a one-year probationary period that was to
end in September 2012—approximately five months after he
was fired. See ORLAND HILLS, ILL., CODE § 35.019(A). Alt-
hough Village Code permitted Scully to fire officers within
this probationary period, the power to do so was subject to
the Village Administrator’s consent. See id. § 35.019(C) (“If at
any time during the probationary period, the supervisor or
department head, with the concurrence of the Administrator,
determines that the service of the employee has been unsat-
isfactory, the employee may be separated from service with-
out the right to appeal.” (emphasis added)); id. § 35.019(D)
(“During or at the end of the probationary period, the em-
ployee may be dismissed at any time by the department
head with the approval of the Village Administrator … .” (em-
phasis added)). 1
The decision to terminate Kristofek’s employment was
made in accordance with § 35.019. It is uncontested that
Scully and Daly (the Village Administrator) met to discuss
Kristofek shortly before he was terminated. Scully testified
that he “recommended” that Kristofek be terminated, and
that Daly agreed (assuming Kristofek subsequently con-
firmed his official-misconduct statements). Daly not only
1The Village Code occasionally uses “Administrator” in place of
“Village Administration.” Neither the Code itself nor the parties’ briefs
suggest that this difference is relevant.
No. 14-2919 23
confirmed this account, but also testified that he had “al-
ways” been advised about employee terminations before
they occurred. In addition, shortly after he terminated Kris-
tofek in person, Scully sent a memo to Daly confirming that
the termination had occurred. Such an action appears to us
unnecessary if Scully had actually had the final say. So Kris-
tofek has failed to show that a genuine factual issue exists
regarding Scully’s ability to unilaterally fire police officers.
Kristofek argues that even if Scully needed Daly’s ap-
proval to terminate Kristofek, Daly consented “with full
knowledge Scully was terminating Kristofek for his speech
regarding corruption.” Monell liability, he claims, would at-
tach on this basis alone. Kristofek may be referencing the
“ratification” theory, under which a plaintiff “must allege
that a municipal official with final policymaking authority
approved the subordinate’s decision and the basis for it.”
Darchak, 580 F.3d at 630 (quoting Baskin v. City of Des Plaines,
138 F.3d 701, 705 (7th Cir. 1998)) (internal quotation mark
omitted). Even if we assume Daly believed that Kristofek
should have been fired in retaliation for his speech, the rati-
fication theory does not help Kristofek.
As a threshold matter, Kristofek does not state or even
imply that Daly possessed final authority to set firing policy.
So the ratification theory fails on that ground alone. Instead,
Kristofek contends that Scully possessed this authority. But
that claim lacks support under Illinois law. The Village po-
lice department’s policies and procedures manual directs the
police chief to “plan, organize, staff, direct, and control the
personnel and resources of the Department.” The references
to “staff[ing]” and to “control[ling] the personnel,” accord-
ing to Kristofek, demonstrate that Scully possessed policy-
24 No. 14-2919
making authority regarding officer firing. But this overlooks
the fact that the Village Board is tasked with approving the
policies and procedures by which police officers were
bound. ORLAND HILLS, ILL., CODE § 32.067 (“All personnel of
the Village Police Department, both sworn and non-sworn,
are bound by the rules and regulations, and policy and pro-
cedures manual as promulgated by the Police Department
and approved by the Village Board.” (emphasis added)). So,
while Scully may have exercised authority over the enforce-
ment of the policies and procedures the Village Board ap-
proved—particularly if they did not involve hiring and fir-
ing—he did not possess final authority over policy creation.
III. CONCLUSION
The judgment of the district court is AFFIRMED in part,
REVERSED in part, and REMANDED for further proceedings
consistent with this opinion. In addition, we will direct that
the matter be reassigned to a different district judge pursu-
ant to Circuit Rule 36.