Delgado, Octavio v. Jones, Arthur L. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1460
Octavio Delgado,
Plaintiff-Appellee,
v.
Police Chief Arthur Jones and
Deputy Chief Monica Ray,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 C 917--Lynn Adelman, Judge.
Argued September 5, 2001--Decided March 8, 2002
Before Cudahy, Rovner, and Diane P. Wood,
Circuit Judges.
Cudahy, Circuit Judge. Octavio Delgado
is a detective with the Milwaukee Police
Department who alleges that he was
transferred to a less desirable position
and denied vacation time in retaliation
for an investigation in which he
participated and a memorandum that he
wrote about alleged criminal activities
involving a close relative of an elected
official. This elected official is also
purported to be a close personal friend
of the Chief of Police, Arthur Jones, one
of the defendants. In turn, Deputy Chief
Monica Ray is alleged to have been
involved in the sequence of events
leading to the transfer. The district
court denied the defense of qualified
immunity. Under the Supreme Court’s
ruling in Behrens v. Pelletier, 516 U.S.
299, 306 (1996), a denial of a qualified
immunity defense is immediately
appealable under 28 U.S.C. sec. 1291. We
now affirm the decision of the district
court.
I.
Octavio Delgado is a 15-year veteran of
the Milwaukee Police Department (MPD). In
December of 1997, Delgado began working
in the department’s Vice Control Unit.
Thereafter, until his alleged retaliatory
transfer on May 18, 2000, Delgado had
been receiving satisfactory job
evaluations.
In April 2000, or thereabouts, Delgado
served as part of a drug entry team that
executed a search warrant at a suspected
drug house within the City of Milwaukee.
This police operation ultimately resulted
in the arrest of several persons. In May
of 2000, Delgado received a letter from
an individual arrested during the
execution of the April search warrant.
The letter claimed that the arrestee had
information about the buying and selling
of drugs by public school employees and
the patronage of a drug house by a close
relative of a public official as well as
knowledge of a drug dealer who lived with
a state employee. The letter also stated
that Chief of Police Jones was a close
personal friend of the public official
whose immediate relative was alleged to
have frequented the drug house. Delgado
then showed the letter to his supervising
lieutenant, who commented: "What district
do you want to be transferred to?"
According to the appellee’s brief, the
intended inference of the supervisor’s
comment was that investigations of
politically sensitive matters often
result in unfavorable treatment,
including unwanted transfers.
Delgado was subsequently ordered to
interview the author of the letter (the
former arrestee) in order to corroborate
the details of the letter. Delgado was
then instructed to write a "Matter of"
memorandum summarizing the contents of
the interview with the former arrestee
and to submit it to his lieutenant.
This memo ultimately moved up the chain
of command to Deputy Chief Ray, who
recommended that it be investigated by an
outside law enforcement agency. It is
unclear from the complaint whether Deputy
Chief Ray had the authority to make this
decision. Nevertheless, on May 18, 2000,
Chief Jones was notified of the "Matter of"
memorandum. In a meeting with Delgado’s
captain and Deputy Chief Ray, Chief Jones
ordered that the investigation stay
within the MPD and instructed Delgado’s
captain not to discuss the "Matter of"
memorandum with Delgado or anyone else.
The following day, Chief Jones issued an
order transferring one person, Delgado,
from the Vice Control Division to the
Criminal Investigations Bureau,
retroactive to the previous day,
Thursday, May 18. According to the
complaint, this transfer was a departure
from normal practice, since most
transfers occur on Fridays at the end of
a pay period and take effect the
following Sunday. Moreover, the unit
Delgado was transferred out of already
had several vacancies.
From May 18 until May 26 Delgado was on
vacation. During this period, the letter
writer was allegedly interrogated by
other MPD officers on the subject of his
earlier interview with Delgado. When
Delgado returned to work on the 26th, he
was ordered to undergo a urine drug test
and was informed that he was under
investigation by the MPD’s Internal
Affairs Division for his communication
with the letter writer, allegedly in
violation of a departmental rule.
On the same day, Delgado also received
a second letter from the same arrestee
providing additional information on
potential drug dealers. Delgado forwarded
this letter to his former lieutenant in
the Vice Squad Unit. The following day,
Delgado asked both his former lieutenant
and a captain in the Vice Squad Unit why
he had been transferred, and he was
advised that Chief Jones had forbidden
any communication by these supervisors
with Delgado.
Finally, Delgado claims that in the
succeeding weeks and months, his pre-
approved vacation schedule was
unilaterally truncated or cancelled in
accordance with rules that were not being
applied to his fellow officers. Again,
according to the complaint, Delgado had
been receiving good performance
evaluations. In addition, the MPD has a
rule prohibiting the use of transfers as
a form of discipline.
On a motion for a judgment on the
pleadings, pursuant to Fed. R. Civ. P.
12(c) and 12(h)(2), the district court
denied the appellants’ request that they
be accorded the defense of qualified
immunity.
II.
This case presents two issues on appeal:
(1) whether both Chief Jones and Deputy
Chief Ray are entitled to qualified
immunity because, within the specific
context of this case, a reasonable
official would not have concluded that
Detective Delgado had a First Amendment
right to free speech; and (2) whether
Deputy Chief Ray, who forwarded Detective
Delgado’s "Matter of" memorandum to Chief
Jones, is also entitled to qualified
immunity because her role in any alleged
retaliation was entirely ancillary and
administrative in nature. A motion for a
judgment on the pleadings under Fed. R.
Civ. P. 12(c), like a motion for failure
to state a claim under Fed. R. Civ. P.
12(b)(6), should not be granted "unless
it appears beyond doubt that the
plaintiff cannot prove any facts that
would support his claim for relief."
Gustafson v. Jones, 117 F.3d 1015, 1017
(7th Cir. 1997) (quoting Frey v. Bank
One, 91 F.3d 45, 46 (7th Cir. 1996)). In
evaluating the motion, we view the
allegations of the complaint in the light
most favorable to the nonmoving party.
See id. The standard of review in
determining the validity of a qualified
immunity defense and the underlying
interpretation of the First Amendment is
de novo, with the courts’ accepting all
well-pleaded factual allegations as true,
and making all permissible inferences in
the plaintiff’s favor. See id. at 1017-
18.
As a threshold matter, the Supreme
Court’s jurisprudence on qualified
immunity requires that this issue be
resolved at the earliest stages of
litigation. In Harlow v. Fitzgerald, 457
U.S. 800 (1982), the Supreme Court
limited the inquiry for qualified
immunity to an objective reasonableness
standard in order to facilitate judgment
as a matter of law and concluded that
"[u]ntil this threshold immunity question
is resolved, discovery should not be
permitted." Id. at 818-19./1 Therefore,
in order for a plaintiff to successfully
defeat a qualified immunity defense, two
conditions must be satisfied: (1) the
complaint must adequately allege facts
that, if true, would constitute a
violation of a constitutional right; (2)
the case law must be "clearly
established" at the time of the alleged
violation, so that a reasonable public
official would have know that his conduct
was unlawful. Id./2
In Siegert v. Gilley, 500 U.S. 226(1991), the Court observed that a
decision "of this purely legal question
permits courts expeditiously to weed out
suits which fail the test without
requiring a defendant who rightly claims
qualified immunity to engage in expensive
and time-consuming preparation to defend
the suit on the merits." Id. at 232. One
of the intended effects of the qualified
immunity defense is "to spare a defendant
not only unwarranted liability, but
unwarranted demands customarily imposed
upon those defending a long drawn out
lawsuit." Id. The policy that underlies
this judicially created doctrine is that
meritless and insubstantial lawsuits can
distract officials from their public
duties, inhibit the exercise of
independent judgment and discretion and
ultimately discourage highly qualified
citizens from entering public service.
See Harlow, 457 U.S. at 814 (discussing
the "social costs" that flow from
lawsuits against innocent public
officials); see also Donovan v. City of
Milwaukee, 17 F.3d 944, 947 (7th Cir.
1994) (observing that "few individuals
will enter public service if such service
entails the risk of personal liability
for one’s official decisions").
Here, our review of the district court’s
denial of the qualified immunity defense
must focus on two issues: (1) Did the
defendants’ alleged conduct amount to a
violation of Delgado’s First Amendment
rights? (2) Was this conduct clearly
established as a violation of the
Constitution at the time of the alleged
violation?
A.
For a First Amendment retaliation claim
to survive a judgment on the pleadings,
we have held that "the facts alleged in
the complaint must show that (1) the
speech in which the plaintiffs engaged
was constitutionally protected under the
circumstances, and (2) the defendants
retaliated against them because of it."
Gustafson, 117 F.3d at 1018 (citing
Caldwell v. City of Elwood, 959 F.2d 670,
672 (7th Cir. 1992)). Moreover, in the
context of a qualified immunity defense,
"The plaintiff bears the burden of
establishing the existence of a clearly
established constitutional right."
Donovan, 17 F.3d at 951-52 (citing
Radovich v. Wade, 850 F.2d 1180, 1209
(7th Cir. 1988) (en banc)).
The Supreme Court has held that the
speech of a government employee warrants
First Amendment protection if that speech
"addresses a matter of public concern."
Connick v. Myers, 461 U.S. 138, 147
(1982)./3 Whether the employee’s speech
falls under the rubric of public concern
must be determined "by the content, form,
and context of a given statement, as
revealed by the record as a whole." Id.
at 147-48. Of these three factors, this
court has determined that the content of
the speech is the most important. See
Campbell v. Towse, 99 F.3d 820, 827 (7th
Cir. 1996); Glass v. Dachel, 2 F.3d 733,
740 (7th Cir. 1993).
The Supreme Court’s First Amendment
jurisprudence also requires that a court,
in determining the nature of a public
employee’s speech, seek "a balance
between the interests of the [employee],
as a citizen, in commenting upon matters
of public concern and the interest of the
State, as an employer, in promoting the
efficiency of public service." Connick,
461 U.S. at 142 (quoting Pickering v.
Board of Education, 391 U.S. 563, 568
(1968)). However, this inquiry, which is
commonly know as the Pickering balancing
test, can seldom be done on the basis of
the pleadings alone. See Gustafson, 117
F.3d at 1019 (noting that "it would be a
rare case indeed where the pleadings as a
whole would permit judgment as a matter
of law on this point, unless the
plaintiff was relying on speech that is
wholly unprotected by the First Amendment
or the defendant’s justifications were
frivolous"); Jefferson v. Ambroz, 90 F.3d
1291, 1296-97 (7th Cir. 1996) (ruling for
the defendant because the plaintiff
included in his complaint facts that
established that the defendant would
prevail under the Pickering balancing
test). In most cases, application of the
Pickering balancing test will be possible
only after the parties have had an oppor
tunity to conduct discovery. Gustafson,
117 F.3d at 1019. However, even at an
early stage of litigation, a First
Amendment retaliation claim can sometimes
be resolved on the public concern test on
the basis of the three Connick factors of
content, form and context of the disputed
speech.
In terms of content, this court has
determined that police protection and
public safety are generally a matter of
public concern. See Auriemma v. Rice, 910
F.2d 1449, 1460 (7th Cir. 1990) (en banc)
("It would be difficult to find a matter
of greater public concern in a large
metropolitan area than police protection
and public safety."); Glass, 2 F.3d at
741 ("Obviously, speech that focuses on
police departments (and ultimately police
protection and public safety) involve
matters of great public concern."). Here,
Delgado’s complaint alleges that a former
arrestee sent him a letter that contains
information about criminal drug activity.
The letter alleges that a close relative
of an elected official had been
frequenting a drug house, and that Chief
Jones was a close personal friend of this
elected official. A subsequent interview
with the arrestee corroborated the claims
of the letter. All of this information
was contained in the "Matter of"
memorandum. For this reason, Delgado’s
captain provided a copy of this
memorandum to Deputy Chief Ray with a
recommendation that an investigation be
conducted by an outside law enforcement
agency.
Thereafter, Delgado has alleged specific
instances of retaliation, including an
unsolicited job transfer and restrictions
on his enjoyment of vacation that
occurred immediately after the Chief
received the "Matter of" memorandum.
Moreover, Chief Jones decided to ignore
the recommendation that an outside agency
conduct the investigation; he ordered
Delgado’s supervisors not to discuss
Delgado’s memorandum with anyone. In
addition, the supervisors were allegedly
ordered not to discuss the transfer
decision with Delgado.
Certainly, a communication by a law
enforcement officer that contains
information essential to a complete and
objective investigation of serious
criminal activity is "content" that
implicates public concern. Moreover, the
Connick factors of form and context,
which can be clarified by an examination
of an employee’s motivation, also support
Delgado’s claim. In Linnhart v.
Glatfelter, 771 F.2d 1004 (7th Cir.
1985), an acting police chief of a
municipality claimed that his various
behind-the-scene activities, which were
designed to secure him the chief’s
position on a permanent basis, were
protected speech under the First
Amendment. In rejecting the plaintiff’s
claim, we stated that an inquiry under
Connick "requires us to look to the point
of the speech in question: was it the
employee’s point to bring wrongdoing to
light? Or was the point to further some
purely private interest?" Id. at 1010(emphasis in original). In Linnhart, the
plaintiff had engaged in
conversationsdesigned to persuade his
principal rival to apply for a different
position within the municipal government.
We determined that the political or
social content of the acting chief’s
speech was not sufficient to overcome the
obvious self-interested context in which
these conversations occurred.
As in Linnhart, the inquiry into
motivation relates to both the form and
the context of Delgado’s speech. Here,
there are absolutely no facts in the
pleadings suggesting that Delgado’s
communications, both in conversations
with his supervisors and in his "Matter of"
memorandum, would somehow benefit him
personally. Quite to the contrary, after
informing his lieutenant of the content
of the arrestee’s letter, Delgado was
asked, "What district do you want to be
transferred to?" Drawing all inferences
in favor of Delgado, as we must at this
stage of the litigation, this comment
could certainly support the inference
that employees who bring to light
politically sensitive or embarrassing
allegations about their superiors are
often subject to unwanted job transfers.
Although the manner in which Delgado per
formed his police work was apparently
designed to bring on an appropriate
investigation (and thus suggests a matter
of public concern), there is no
suggestion that Delgado also furthered
some personal, private interest. Also,
the fact that Delgado communicated
privately with his superiors does not
make his speech less a matter of public
concern. Givhan v. Western Line Consol.
Sch. Dist., 439 U.S. 410, 415-16 (1979)
("Neither the [First] Amendment itself
nor our decisions indicate that this
freedom is lost to the public employee
who arranges to communicate privately
with his employer rather than to spread
his views before the public.").
In arguing that Delgado’s actions did
not involve a matter of public concern,
the defendants rely on Gonzalez v. City
of Chicago, 239 F.3d 939 (7th Cir. 2001),
for the proposition that communications
that are part of an employee’s regular
job duties are not matters of public
concern. In Gonzalez, a newly recruited
police officer, who formerly served as a
civilian employee of the Chicago Police
Department’s Office of Professional
Standards, was discharged shortly after
completing his police academy training.
Gonzalez claimed that poor job
evaluations he had received were based on
false information that was furnished to
retaliate against him for several
negative reports he had authored about
police officers who were now his co-
workers. In finding that Gonzalez’s
earlier work activities did not
constitute protected speech under the
First Amendment, this Court emphasized
that Gonzalez was "clearly acting
entirely in an employment capacity when
he made those reports," id. at 941(emphasis added), and that he "could have
been fired had he not produced the
reports," id. at 942 (emphasis added).
The defendants argue that under
Milwaukee Ordinances 105-125 and 105-126,
Delgado was duty-bound to report all
violations of city ordinances to the
Chief of Police and to arrest all persons
found to have violated any law or
ordinance. This argument, however, sweeps
much too broadly. On the facts of this
complaint, Delgado had information about
criminal activity that potentially
involved an immediate relative of an
elected official, who also happened to be
a close personal friend of Chief Jones.
Fully divulging this information to his
superiors may have been consistent with
his obligations as a police officer in
seeking an independent and objective
investigation. And it was hardly in his
personal interest to antagonize the
Chief. See Linnhart, 771 F.2d at 1010.
But we think Delgado had considerable
discretion about how he communicated the
information up the chain of command. His
disclosure went far beyond some rote,
routine discharge of an assigned duty, as
in Gonzalez. Our holding in Gonzalez is
limited to routine discharge of assigned
functions, where there is no suggestion
of public motivation. In the case now
before the court, Delgado’s
communications with his superiors were
designed not only to convey information
of possible crimes, but also additional
facts that were relevant to the manner
and scope of any subsequent
investigation. Effective police work
would be hopelessly compromised if police
officers could be retaliated against for
communicating factual details (e.g., a
supervisor’s relationship to a criminal
suspect) that bear on the department’s
ability to conduct an objective
investigation. The fact that a police
officer’s job responsibilities may in
some measure overlap with motivations of
a well-meaning citizen does not change
this analysis.
In contrast, Gonzalez addresses a
different scenario where the effective
discharge of a public employee’s routine
duties touches on a matter of public
concern--arguably a very broad category.
In order to prevent every adverse employ
ment decision from claiming the shield of
First Amendment protection, Gonzalez
requires some type of speech or
expression that, in addition to
objectively promoting or protecting a
matter of public concern, is also a
product of some independent discretion or
judgment. 239 F.3d at 941 (noting that
Gonzalez would have stated a claim had
his employers asked him to rewrite his
reports so as not to expose police
corruption and he nevertheless undertook
efforts to accurately communicate his
findings). But the dichotomy between
routine and discretionary functions is
not quite the same as the distinction
between public or private motive
discussed in Linnhart. The latter
distinction has broader application.
We must weigh the interests of the
public employee in speaking upon matters
of public concern against the State’s
interest in furthering efficient public
service, as required under the Pickering
balancing test. Gonzalez essentially
represents a categorical judgment for the
employer insofar as a public agency
cannot efficiently carry out its
functions if the faithful discharge of
routine tasks could become grounds for
challenging virtually any personnel
decision. See Connick, 461 U.S. at 149
("To presume that all matters which
transpire within a government office are
of public concern would mean that
virtually every remark . . . would plant
the seed of a constitutional case.").
Gonzalez clarified that "we are not
’establishing a per se rule exempting
statements made in the course of official
duties from the protection of the First Amendment.’"
239 F.3d at 942 (quoting Koch v. City of
Hutchinson, 847 F.2d 1436 (10th Cir.
1988)). The broad sweep of the
defendants’ argument is essentially
calling for such a per se rule, which
this court rejected in Gonzalez.
Delgado has alleged sufficient facts to
establish that his speech is
constitutionally protected and that the
defendants retaliated against him because
of it. Therefore, his complaint states a
valid First Amendment retaliation claim.
B.
After establishing that the plaintiff
has adequately alleged a violation of a
constitutional right, the second level of
inquiry in a qualified immunity analysis
involves whether the law was "clearly
established" at the time of the alleged
violation. Here, the defendants have no
valid argument. In Gustafson, this court
observed, "It has been well established
for many years in this Circuit that a
public employer may not retaliate against
an employee who exercises his First
Amendment speech rights, including in
particular retaliation through a transfer
to a less desirable position." 117 F.3d
at 1020./4 Although the defendants
argue that Gonzalez somehow altered the
First Amendment landscape in this
Circuit, the alleged retaliation against
Delgado occurred about eight months
before our decision in Gonzalez,
eliminating any possibility of reliance.
The defendants’ only response to this
argument is that the Eleventh Circuit had
issued an opinion in Morris v. Crow, 142
F.3d 1379 (11th Cir. 1998), which seems
to have announced a rule similar to
Gonzalez. In Morris, an officer in the
Polk County Sheriff’s Office in Florida
filed an accident report on a high speed
collision that involved a fellow officer.
In a lawsuit that followed, Morris gave
deposition testimony about the accident
that was damaging to his employer. After
several months, the lawsuit was settled
and Morris was then suspended and fired.
The Eleventh Circuit concluded that
Morris’ report "was generated in the
normal course of his duties as an
accident investigator. The report
discussed only his investigation and
reconstruction of a single accident." Id.
at 1382. The subsequent deposition in a
civil lawsuit also was determined to have
no constitutional import. Id. at 1383.
However, as in Gonzalez, the Eleventh
Circuit in Morris also expressed concern
that routine public duties should not be
elevated to a protected status under the
First Amendment, lest every remark by a
government employee "plant the seed of a
constitutional case." 142 F.2d at 1382
(quoting Connick, 461 U.S. at 149).
Although concerns of efficiency may
require a safe harbor for personnel
decisions that are made against the
backdrop of an employee’s routine job
duties, this category is narrow and
cannot be permitted to swallow the First
Amendment. No doubt government efficiency
can be equally compromised if government
supervisors can freely pursue retaliation
for speech that is politically sensitive
or embarrassing.
In the case now before the court,
Delgado was singled out by the former
arrestee and given information on alleged
criminal activity. Once this information
was reduced to the "Matter of"
memorandum, it was forwarded by Delgado’s
captain to Deputy Chief Ray with a
recommendation that any subsequent
investigation be performed by an outside
law enforcement agency. Such a situation
is certainly not routine. Moreover,
because the subject of Delgado’s
communication was highly relevant to an
independent and objective investigation
of criminal activity and was not
motivated by the personal interests of
Delgado--in short, it was a matter of
public concern--a public official
knowledgeable about relevant case law
could not have reasonably believed that
he was free to retaliate by ordering an
unwanted transfer to a less desirable job
or by the manipulation of Delgado’s
vacation schedule.
III.
Since Chief Jones allegedly ordered the
unwanted job transfer and the change in
Delgado’s vacation schedule, the defense
of qualified immunity must fail as
applied to him. Deputy Chief Ray,
however, asserts that she is entitled to
qualified immunity because her only role
in this alleged sequence of events was to
forward the "Matter of" memorandum to
Chief Jones.
A judgment on the pleading, like a
motion to dismiss, should not be granted
"unless ’it is clear that no relief could
be granted under any set of facts that
could be proved consistent with the allegations.’"
Cushing v. City of Chicago, 3 F.3d 1156,
1159 (7th Cir. 1993) (quoting Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984));
see also Gustafson, 117 F.3d at 1017(stating that in response to a motion
under Rule 12(c), a court should not
dismiss a claim "unless it appears beyond
doubt that the plaintiff cannot prove any
facts that would support his claim for
relief"). At this early stage in the
litigation, we have insufficient facts to
conclude that Deputy Chief Ray played no
part in any retaliation against Delgado.
Therefore, the defense of qualified immu
nity must also fail with respect to
Deputy Chief Ray.
We AFFIRM the decision of the district
court and remand for further proceedings
on the First Amendment retaliation claim.
FOOTNOTES
/1 A qualified immunity analysis can be conducted on
the facts alleged in the plaintiff’s complaint,
though many qualified immunity determinations are
made in the context of summary judgment, where
materials outside the pleadings may be consid-
ered. Obviously, discovery may occur if a defen-
dant does not raise the qualified immunity de-
fense.
/2 The Harlow court also noted that in extraordinary
circumstances, a defense of qualified immunity
can be sustained if the official "can prove that
he neither knew nor should have known of the
relevant legal standard. . . . But again, the
defense would turn primarily on objective fac-
tors." 457 U.S. at 819. This nuance has no
application here.
/3 The Supreme Court in Connick suggested the
possibility that speech might also be protected
under the First Amendment "even if not touching
upon a matter of public concern." 461 U.S. at
147. However, the Court failed to specifically
articulate what type of speech would fall into
such a category. Similarly, this court restricts
its analysis to the issue of what constitutes a
public concern.
/4 Under Harlow, a court determines whether the law
was "clearly established" at the time of the
alleged violation; thereafter, an official’s
conduct can be measured against a standard of
"objective reasonableness." 457 U.S. at 818. "If
the law was clearly established, the immunity
defense should fail, since a reasonably competent
official should know the law governing his con-
duct." Id. at 818-19. Although this fact has no
legal significance under the objective standard
prescribed by Harlow, it is at a minimum ironic
that Chief Jones was a defendant in Gustafson, a
precedent which further settled the law in this
Circuit on First Amendment retaliation claims.