Smock, Daniel L. v. Nolan, Samuel W. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1546
DANIEL L. SMOCK,
Plaintiff-Appellant,
v.
SAMUEL W. NOLAN, individually and
TERRANCE G. MCCANN, individually,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 00 C 1241—Michael M. Mihm, Judge.
____________
ARGUED NOVEMBER 5, 2003—DECIDED MARCH 16, 2004
____________
Before FLAUM, Chief Judge, and BAUER and WILLIAMS,
Circuit Judges.
BAUER, Circuit Judge. Plaintiff Smock brought this suit
claiming that he was wrongfully discharged as a result of
his First-Amendment-protected speech; that he had been
defamed by the defendants, and that the defendants in-
tentionally interfered with a contractual relationship. The
district court granted summary judgment against him. He
appealed. Because Smock has failed to create a genuine
issue of material fact, we affirm.
2 No. 03-1546
I. Background
On April 4, 1999 Daniel Smock became an Illinois State
Police cadet. This was not his first experience in law en-
forcement. Between 1996 and 1999, Smock served as an
auxiliary police officer for the City of Canton. In that capa-
city, Smock was on patrol with Lieutenant David Ayers one
September night in 1998. At some point, the Ayers/ Smock
patrol came across two other Canton City Police officers,
Sergeant Richards and Officer Graham, who were engaged
in a traffic stop. Ayers apparently noticed that Richards and
Graham were using their flashing yellow lights in conjunc-
tion with their mars lights—a violation of department
procedure. Over the radio, Ayers directed the other officers
to turn off their yellow lights.
Later that same night, Ayers and Smock again came
across Sergeant Richards and Officer Graham. The Rich-
ards/Graham patrol was engaged in another traffic stop
where they were using the yellow flashing lights in conjunc-
tion with the mars lights again. Ayers told the other officers
something like “don’t you guys get the clue [about using the
yellow lights?]” After being told that the Richards/Graham
patrol did not need assistance with the traffic stop, Ayers
and Smock drove away.
Sometime after this incident, Ayers had formal disciplin-
ary charges filed against him. One of those charges related
to whether Ayers had sworn at Richards during the second
traffic-stop incident. Smock testified that Ayers did not use
profanity or act in a degrading manner towards Richards or
Graham. Canton Police Lieutenant Dean Putman however,
claimed that Smock had said during an interview that he
did hear Ayers swear at Richards. This claim of a prior
inconsistent statement was ultimately reported to the
Illinois State Police, who initiated an investigation into the
matter.
No. 03-1546 3
Sergeant Eric Hall of the Illinois State Police Division of
Internal Investigations investigated the case against
Smock. After reviewing the transcripts of the disciplinary
hearing and conducting various interviews, Hall suggested
that Smock take a polygraph exam. Smock agreed.
On August 26, 1999, Smock submitted to a polygraph
examination conducted by defendant Terrance G. McCann
at the Illinois State Police Forensic Crime Laboratory.
McCann, who had been trained in the Reid approach to lie
detector scoring, has been a licenced polygraph examiner
since 1976. After scoring the exam, McCann determined
that Smock was untruthful when answering the relevant
questions.
The entire file, including the polygraph results, was sent
to Deputy Director Harold Nelson. Nelson reviewed the file
with an eye towards “integrity and truthfulness.” In the
words of the defendant’s brief, “Nelson considered it sig-
nificant that Putman and Richards had higher, more re-
sponsible positions and were attesting to and agreeing upon
the same allegation.” (Br. Defendants-Appellees at 13)
(internal brackets and quotation marks omitted.) Nelson
recommended that Smock be terminated—a decision he
says was partially based on the polygraph results, but one
he probably would have reached without the lie detector
result. Nelson’s boss, Director Nolan, accepted the recom-
mendation and fired Smock.
Smock later applied for a position with the Peoria County
Sheriff. That office conducted a pre-employment polygraph
examination in which Smock was asked about the facts and
circumstances surrounding his termination from the Illinois
State Police. That polygraph indicated truthfulness on the
matters that McCann’s exam indicated deception.
For the purposes of this litigation, Smock retained
Charles Honts, Ph.D. (Honts) for his expert opinion
about the polygraph examinations. Honts, a Professor of
4 No. 03-1546
Psychology at Boise State University, challenged
McCann’s conclusion on two separate grounds. First, he
rescored McCann’s examination using the University of
Utah scoring system. In doing this he found, in the words of
Smock’s brief, “gross discrepancies from standard numerical
scoring practice.” (Brief of Appellant-Plaintiff at 16.) By
adding the individual scores of the four relevant questions,
which McCann concedes is an appropriate method of
scoring, Honts came up with +10 whereas McCann’s score
of the same exam was -24.1 Second, Honts conducted a
scientific study of McCann’s scoring system, i.e., the Reid
approach, and found it lacking. He claimed that McCann’s
exam was therefore, biased toward a finding of deception.
McCann’s exam, when scored using the University of Utah
system, showed Smock’s truthfulness.
Finally, Smock points to a portion of McCann’s deposition
as the evidence most damning to the defendants. McCann
claimed that he neither inadvertently nor negligently mis-
scored Smock’s polygraph examination. According to Smock,
the only reasonable inference which flows from such an
“admission” is that McCann intentionally mis-scored the
exam.
In the Order granting summary judgment, the district
court assumed that Smock’s testimony at the disciplinary
hearing was protected speech under the First Amendment.
To sustain his claims, the district court said, Smock was
required to create a genuine issue of material fact as to
whether McCann intentionally lowered Smock’s score. The
court did not find sufficient evidence in the record to create
such a genuine issue of material fact.
1
Positive numbers tend to show truthful responses whereas,
negative numbers tend to show deception. If a resulting score is
close to zero, -1 or +2 for instance, the result is deemed inconclu-
sive.
No. 03-1546 5
II. Discussion
We review the district court’s grant of defendant’s motion
for summary judgment de novo and consider all evidence in
the light most favorable to the non-moving party. Summary
judgment is proper when there is no genuine issue of
material fact and the moving party is entitled to judgment
as a matter of law. FED. R. CIV. P. 56(c). Speculation and
conjecture are insufficient to defeat a motion for summary
judgment. McCoy v. Harrison, 341 F.3d 600, 604 (7th Cir.
2003).
A. 42 U.S.C. § 1983 Claim
To prevail on his section 1983 claim, Smock must show
that the speech in question is protected under the Connick2
test and that this speech was a motivating or substantial
factor in the decision to terminate him. Mt. Healthy City
Bd. Of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Wright v.
Illinois Dep’t of Children and Family Servs., 40 F.3d 1492,
1507 (7th Cir. 1994). If he can make such a showing, the
burden shifts to the employer to show, by a preponderance
of the evidence, that the employee would have been termi-
nated absent the protected speech. Id.
We assume, without deciding, that Smock’s testimony
at the disciplinary hearing was protected speech. Therefore,
we move to the second element which addresses the ques-
tion of whether Smock’s protected speech was the motivat-
ing factor for his termination.
Whether Smock was fired as a result of his protected
speech really turns on the question of whether McCann
intentionally mis-scored Smock’s exam to provide ammu-
nition for the termination. If McCann did not intentionally
2
Connick v. Meyers, 461 U.S. 138 (1983).
6 No. 03-1546
mis-score the exam, then Smock’s claim dies for one of two
reasons: (1) Smock lied and therefore, his speech is not
protected, Wright, 40 F.3d at 1505, or (2) the investigation
was reasonable and therefore, not actionable under Waters,
Waters v. Churchill, 511 U.S. 661, 679 (1994) (stating that
the Court has “never held that it is a violation of the
Constitution for a government employer to discharge an
employee based on substantively incorrect information”).
So, we turn to the evidence of record to see if Smock pro-
vided enough to create a genuine issue of fact as to whether
or not McCann intentionally mis-scored Smock’s polygraph
charts.
Smock claims two portions of the record support his
allegation that McCann intentionally mis-scored his test
results. First, he points to Honts’ opinion that McCann’s
examination was biased towards a finding of deception.
Despite this bias, says Honts, Smock’s chart from the
McCann exam shows truthfulness. Second, Smock notes
that McCann disavowed any negligence or inadvertence in
scoring the exam. Smock argues that the only reasonable
inference left is that McCann intentionally mis-scored the
exam. While we follow the logic of Smock’s argument, we
find it unpersuasive.
There is no evidence that supports the premise that
McCann intentionally mis-scored Smock’s exam. Plaintiff
claims his inference argument creates a genuine issue of
material fact. While the logic of the argument is superfi-
cially attractive, its lack of factual support makes such a
finding decidedly unattractive. There is simply no probative
evidence going to show that McCann did in fact intention-
ally mis-score the exam.
Smock presented no evidence that McCann had any
interest in Smock’s termination or that McCann used a
different method of scoring Smock’s exam than he would
have used in scoring any other exam. He has shown no
No. 03-1546 7
evidence that the outcome of the polygraph examination
was predetermined. Instead, Smock points to the “suspi-
cious circumstances surrounding the entire investigation.”
(Brief of Appellant-Plaintiff at 27.) As an example of these
“suspicious circumstances,” Smock claims that the issue of
whether he lied while testifying at a disciplinary hearing is
not material to his qualifications to be a police officer. So,
the investigation itself shows some ulterior motive. These
circumstances are hardly suspicious. Obviously, a police
employer has a very real interest in the truthful character
of its police-officer employees.
Similarly, Honts’ opinion does not support Smock’s
contention that McCann intentionally mis-scored the poly-
graph charts. Honts’ report states, “[i]t is my opinion that
the McCann Examination represents a polygraph exami-
nation conducted to minimum acceptable standards of the
polygraph profession.” (App. 6, pp. 5-6.) Furthermore, he
noted that the Reid Approach, the method used by McCann,
has been criticized and, in the words of Smock’s brief to this
court, “Honts conducted a scientific study of the reliability
of the Reid approach and found it lacking.” Honts explicitly
refused to opine whether McCann intentionally or uninten-
tionally mis-scored the exam. At best, Honts’ opinion casts
some doubt on the reliability of the Reid method of poly-
graph examination.
B. State Law Claims
1. Defamation
To prevail on a state law claim for defamation a plaintiff
must show that: (1) the defendant made a false statement
about the plaintiff, (2) there was an unprivileged publica-
tion of the defamatory statement to a third party by the
defendant, and (3) the plaintiff has suffered damages.
Gibson v. Philip Morris, Inc., 685 N.E.2d 638, 643 (Ill. App.
Ct. 1997). Because McCann had a duty to report the results
8 No. 03-1546
of the polygraph examination to his Illinois State Police
superiors, the communication is protected by a qualified
privilege. Kuwik v. Starmark Star Mktg. and Admin., Inc.,
619 N.E.2d 129, 134 (1993). Smock concedes that McCann
is covered by the qualified privilege.
In general terms, overcoming the qualified privilege
requires a showing that the defendant “either intentionally
published the material while knowing the matter was false,
or displayed a reckless disregard as to the matter’s false-
ness.” Id, at 133. Specifically, Smock must show the very
same thing he had to show for the federal claim above: that
McCann intentionally mis-scored the polygraph exam. The
lesser showing of “reckless disregard” to the truth of the
matter might be shown by presenting evidence that
McCann has serious doubts about the accuracy of the
polygraph score but no such evidence is present.
So Smock’s state law claim of defamation meets the same
fate as his federal claim. There is no evidence to support the
claim of intentional mis-scoring, nor is there evidence which
tends to show that McCann acted with reckless disregard as
to the accuracy of his polygraph results. We affirm the
district court’s disposition of Smock’s defamation claim.
2. Intentional Interference with a Contractual Relation-
ship
In order to prevail on a state claim for intentional in-
terference with a contractual relationship, the plaintiff
must show that: (1) there was an enforceable contract, (2)
the defendant was aware of that contract, (3) the defendant
intentionally and unjustifiably induced a breach of the
contract, (4) breach resulted from the defendant’s wrongful
conduct, and (5) the plaintiff has been damaged. HPI Health
Care Serv., Inc. v. Vernon Hospital, Inc., 545 N.E.2d 672,
676 (1989). Again, Smock must produce some evidence
showing that McCann intentionally mis-scored his poly-
No. 03-1546 9
graph exam. Smock has failed to show such an intention
and therefore, this claim fails too.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-16-04