McGreal, James T. v. Ostrov, Eric Dr. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3405
OFFICER JAMES T. MCGREAL,
Plaintiff-Appellant,
v.
ERIC OSTROV, Doctor, VILLAGE OF ALSIP,
KENNETH WOOD, Chief of the Alsip Police
Department, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 3958—Charles R. Norgle, Sr., Judge.
____________
ARGUED APRIL 16, 2003—DECIDED MAY 10, 2004
____________
Before POSNER, COFFEY and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. To hear Officer James McGreal
tell the story, something is rotten in the Village of Alsip.
After running against the mayor and losing by a narrow
margin, McGreal found himself the target of a campaign
to remove him from his long-held post as an Alsip police
officer. He sued the Village of Alsip, the town’s Chief of
Police, a police lieutenant, and a psychologist retained by
the Village to assess McGreal’s fitness for duty. The district
court granted summary judgment in favor of the defen-
dants, and McGreal appeals. We reverse and remand.
2 No. 02-3405
I.
We begin with the cast of characters. James McGreal
has been a police officer in the Village of Alsip since 1983.
The Alsip Chief of Police is Kenneth Wood, and Lt. David
Snooks is the department’s Field Operations Commander.
At the time this suit was filed, Arnold Andrews had been
the mayor of Alsip for twenty-four years. Both Wood and
Snooks remain in their posts subject to annual reappoint-
ment by Mayor Andrews. McGreal served in the department
without incident until he challenged Mayor Andrews in the
April 1997 mayoral election. After he lost the election to
Andrews by a slim 378 votes (the Village has 17,000
residents), McGreal found himself under unprecedented
scrutiny from his superiors. Ultimately, they attempted to
remove him from his post on the ground that he was unfit
for duty. The dispute over McGreal’s fitness to serve as a
police officer revolves around a number of incidents, fol-
lowed by a mental health examination. The events overlap
in time and we will describe them separately for clarity. We
explore the factual circumstances extensively because a full
review of the facts casts a pall of suspicion on the Village of
Alsip. On summary judgment, of course, we credit
McGreal’s version of the facts because he is the party
opposing judgment. We draw all reasonable inferences in
his favor. Myers v. Hasara, 226 F.3d 821, 825 (7th Cir.
2000).
A.
McGreal’s story begins two years before the election. He
was on routine patrol late one night in June 1995 when he
noticed a number of cars in the parking lot of the Alsip
Elk’s Club in apparent violation of the local closing time
ordinance. He entered the Club and found people concealing
video poker machines behind a folding wall. The machines
themselves are not illegal but using them to gamble is
No. 02-3405 3
prohibited. McGreal promptly fired off a memo to Lt.
Snooks about the incident, suggesting that a gambling
investigation might be in order. McGreal also mentioned
the matter to Sgt. Murray, the head of Alsip vice investi-
gations. Snooks passed the information on to Chief Wood,
who told Snooks he would “take care of it.” Despite that
promise, Wood did not order an investigation at that time.
As it turned out, the video poker machines were owned by a
company called “Vegas Amusements.” Approximately one
month after McGreal wrote the memo detailing his suspi-
cions, Vegas Amusements contributed money to the political
party controlled by Mayor Andrews. A few days after that,
the Mayor signed into law a variance permitting the Elk’s
Club to have eight video poker machines on the premises
rather than the three machines permitted at all other Alsip
establishments. At his deposition for this lawsuit, Mayor
Andrews could not recall either a company named Vegas
Amusements or having ever signed a variance permitting
an increased number of the poker machines at the Elk’s
Club.
A little more than two years later, in late August 1997
(several months after the mayoral election in which
McGreal challenged Andrews), McGreal once again found
himself at the Elk’s Club, this time attending a banquet for
his son’s Little League team. McGreal observed people
lining up to play the video poker machines, which he con-
sidered unusual if the machines were purely for entertain-
ment rather than gambling. On September 9, 1997,
McGreal wrote another memo, addressed this time to Chief
Wood, suggesting again the possibility that the machines
were being used for illegal gambling. McGreal cited as
evidence the unusual popularity of the machines and the
presence of reset switches on each machine, which would
facilitate gambling payoffs by keeping score for each user.
McGreal also noted that establishments with far fewer
poker machines had been investigated for gambling in
4 No. 02-3405
the past. McGreal also repeated rumors that in recent
years, compulsive gamblers had lost substantial sums on
the Elk’s Club machines. He noted a rumor that an Alsip
Village official was receiving a percentage of the revenue
produced by the video poker machines. McGreal concluded
that, although he placed no importance on unsubstantiated
rumors, it appeared to him that the possibility of gambling
at the Elk’s Club had been overlooked.
Lt. Snooks replied to McGreal’s memo by expressing
surprise that McGreal would put these rumors of payoffs in
writing and asking McGreal to provide “a more detailed
written explanation of these ‘rumors’ including . . . the
names of [the] elected officials.” R. 64, Snooks Attachment
B. McGreal responded immediately by identifying Mayor
Andrews as the elected official involved in the payoff rumor.
According to McGreal’s memo, an Alsip police sergeant was
the source of the rumor. Chief Wood subsequently consulted
with neighboring police chiefs to determine how to handle
these allegations. Ultimately, he requested that the Cook
County Sheriff’s Police investigate the charges of gambling
at the Elk’s Club. In October 1997, the Sheriff’s office set up
a sting operation and confirmed McGreal’s suspicions. The
video poker machines at the Elk’s Club were in fact being
used for gambling. Although Chief Wood claims he asked
the Sheriff’s police to also investigate whether Mayor
Andrews was receiving payoffs, there are no documents
memorializing such a request and the Sheriff’s office
conducted no investigation of the Mayor.
Nonetheless, in early November 1997, Chief Wood dis-
cussed with a member of the Illinois State Police Public
Integrity Task Force (“PITF”) an inquiry into the Mayor’s
possible involvement in gambling at the Elk’s Club. On
November 6, 1997, Wood formally requested a probe in
writing. A few days later, on November 10, the Mayor
caught wind of the investigation and called Chief Wood into
his office. According to Wood, the Mayor was visibly upset,
No. 02-3405 5
and at the end of the meeting he demanded that the Chief
resign by the end of the day or the Mayor would fire him.
Wood returned later in the day, accompanied by his lawyer,
to discuss the matter further. (At that time, Chief Wood
was two months shy of his fiftieth birthday, the date on
which certain of his employment benefits vested). At or
before this second meeting, Mayor Andrews learned that
McGreal was the person behind the call for an investigation
into the Mayor’s possible connections with Elk’s Club
gambling. Wood’s attorney explained to the Mayor that an
investigation was proper and justified under the circum-
stances. The Mayor was somewhat appeased by the lawyer’s
explanation, and took no further steps towards Wood’s
resignation. However, at this same meeting, the Mayor
mentioned to the chief that the “McGreal case” was going to
be investigated by Thomas McGuire, an attorney who
specializes in representing municipalities that are seeking
the termination of police officers.
The very first entry in McGuire’s billing records for the
Village of Alsip shows that on November 10, the day the
Mayor demanded Wood’s resignation, McGuire traveled
to Alsip for a four hour meeting with the Mayor. That
evening, at a Village Board meeting, Mayor Andrews an-
nounced that a “disgruntled police officer” who had been a
candidate against him had made serious allegations about
him. The Mayor told the Board he had authorized Chief
Wood to select an outside law enforcement agency to inves-
tigate “some of these fairy tale charges.” Of course, the
Chief had instigated the investigation before the Mayor
knew about it and thus the Mayor had not authorized the
investigation and in fact was quite angry about it. Wood
later testified that he did not tell the Mayor about the
investigation and would have preferred that the Mayor did
not know he was being investigated because it was never
appropriate for the subject of an undercover probe to know
that he was being investigated. PITF completed the inves-
6 No. 02-3405
tigation in March 1998 and informed Chief Wood that the
task force had concluded that the allegation of misconduct
by Mayor Andrews in connection with Elk’s Club gambling
was “unfounded.” R. 64, Wood Attachment G.
B.
On August 16, 1997, McGreal arrested Sean Taylor
for driving under the influence. Taylor is the son of a city
prosecutor in a neighboring town. When McGreal appeared
in court for Taylor’s initial court date on September 17,
he learned that the case had been rescheduled to August 27
without his knowledge. On checking with the court’s
computer system, McGreal learned that on August 27, two
of the citations he wrote for Taylor (driving under the in-
fluence and damage to property) had been stricken on the
motion of the Assistant State’s Attorney handling the case.
The third charge, driving with a blood alcohol content of
greater than .08, was continued to September 24. At that
time, Taylor pled guilty to that charge. McGreal wrote a
memo to his supervisors about this incident, explaining the
unusual disposition of the case and suggesting that further
inquiry was appropriate. McGreal believed that the manner
in which the case was handled was indicative of intentional
misconduct. Lt. Snooks replied to McGreal’s memo, indicat-
ing that he had met with Jim McCarter (of the State’s
Attorney’s office) and requested that he look into McGreal’s
allegations. Snooks reported that Taylor pled guilty to one
charge and received a sentence of eighteen months’ supervi-
sion. The other charges were stricken. Snooks concluded his
memo to McGreal with the statement that, “Mr. McCarter
believes and I concur that the actions of the involved
parties are properly explained and the handling of the case
was lawful and proper.” R. 64, McGreal Ex. 15. McGreal
remained suspicious about Taylor’s case because this was
the most lenient sentence he had ever seen for a DUI
No. 02-3405 7
conviction. In the absence of community service, the lowest
fine McGreal had ever seen for a drunk driving charge was
a $100 fine for the son of a state senator. Snooks later
admitted that his memo to McGreal contained errors and
omissions.
McGreal continued to investigate based on what he
learned from Snooks’ memo. He obtained a copy of the case
disposition from the Cook County Court Clerk’s compu-
terized system and saw that the sentence recorded there
was a one year period of supervision, $150 fine, a victim
impact panel, and required attendance at a remedial adult
safety education program (at a cost to the offender of ap-
proximately $1800). Because Lt. Snooks had previously told
McGreal that he had investigated the matter and concluded
that the sentence of eighteen months’ supervision was
appropriate, McGreal concluded that someone had changed
the sentence between the time he complained to his super-
visor and the time he checked the computer records himself.
He fired off a letter to the Judicial Inquiry Board, formally
requesting that the actions of the judge involved be investi-
gated. He pointed out that moving the case off of the normal
call schedule was irregular as was the dismissal of some of
the charges at an initial hearing. He relayed to the JIB that
he believed the sentence of eighteen months’ supervision for
driving with a blood alcohol content greater than .08 and
the appearance of a different sentence in the official record
after he complained to his supervisor were highly irregular
events deserving of further inquiry.
Shortly after Lt. Snooks met with Jim McCarter, McGreal
appeared on another DUI matter before the judge who had
decided Taylor’s case. McGreal noticed that the judge’s
behavior towards him had changed. After filing his charge
with the JIB, he sent off a letter to the presiding judge,
suggesting that the judge involved had been informed of
McGreal’s intradepartmental complaint. He told the pre-
siding judge that the judge’s behavior during an October 15
8 No. 02-3405
court call was “prejudicial and radically different than
normal.” R. 64, McGreal Dep. Ex. 17; R. 64, McGreal Dep.,
Vol. III at 58. He suggested to the presiding judge that
the judge’s conduct toward him was a result of his filing a
request for inquiry into the Taylor case. He concluded by
explaining that he wished to inform the presiding judge of
the existence of a formal complaint with the JIB and the
change in behavior of the judge in question.
C.
On August 30, 1994, McGreal was on routine patrol on
the midnight shift when he spotted a car in the parking lot
of the Copacabana Bar (“the Copa”). Because the bar was
closed (it was 3 a.m.), McGreal stopped to investigate. The
driver of the car was John Hernandez, a man McGreal had
encountered in a hotel parking lot some six years earlier.
After the earlier meeting, McGreal had learned that
Hernandez was known to be involved in narcotics. McGreal
questioned Hernandez about his presence in the Copa
parking lot after hours, and Hernandez claimed he was a
part-owner of the establishment. This claim piqued
McGreal’s interest because ownership of a bar by a felon
violates both Illinois law and an Alsip ordinance.
McGreal was well-acquainted with the bar because the
police were called to the Copa more than twice as often as
they were called to any other liquor establishment in Alsip.
The Copa also had ties to the Mayor. The owner of record,
George Rusick, was a good friend of Mayor Andrews, and
the Mayor patronized the bar. Indeed, the Mayor appeared
in a local television advertisement for the Copa. Moreover,
the Mayor had been involved in a car accident as he was
exiting the Copa parking lot at 4:30 one morning. Rusick
drove Mayor Andrews away from the scene of the accident
before police arrived and later testified for him at trial. The
Mayor turned himself in to the Alsip police department the
No. 02-3405 9
afternoon after the accident, much too late to be given a
meaningful blood alcohol test. He was charged with leaving
the scene of an accident and failure to yield. The record
does not reveal how these charges were resolved.
After running into Hernandez in the Copa parking lot,
McGreal discussed the issue with Sgt. Murray and filed
a police report on the incident. Murray followed up by
interviewing Hernandez. Hernandez told Murray he had
worked for George Rusick and that, in lieu of payment for
his services, Rusick agreed to allow Hernandez into the
business as a part owner. Sgt. Murray drafted a two-page
handwritten police report on the matter documenting what
he believed was an illegal ownership situation at the Copa
based on his belief that Hernandez was a felon. Sgt. Murray
showed this report to McGreal. Murray’s report corrobo-
rated McGreal’s information. On the second page of his
report, Murray recommended that the liquor commissioner
initiate proceedings against the Copa. Perhaps coinciden-
tally, Mayor Andrews served as the town’s liquor commis-
sioner.
Normally, when an officer submits a report, a secre-
tary sends it to the official files. When Chief Wood read
Murray’s report, however, he gave the report back to
Murray and told him to “come back with a different con-
clusion” unless more evidence was uncovered. Murray then
spoke to Hernandez again and confirmed that Hernandez
performed work for Rusick in exchange for a promise of
an ownership interest in the business. Murray then sub-
mitted the report again. The first page of the new report
was identical to the first page of his earlier filing but the
second page now contained a different conclusion, that no
further action would be taken. The original second page was
later destroyed.
Approximately nine months later, McGreal asked Murray
about the investigation of the Copa. Murray replied that he
10 No. 02-3405
had not worked on the investigation because he had given
the matter to Chief Wood. McGreal then asked Chief Wood
about the investigation. Wood told him that Murray was
still working on it. McGreal then went to the records section
of the Department and requested the file for the case. The
official file contained McGreal’s report but neither version
of Sgt. Murray’s report. McGreal told the Chief about the
missing report and followed up with a memo requesting the
full contents of the file. As a result of this request, McGreal
received another copy of his own two-page report and a
third, one-page, typed report written by Murray that was
different from either of the first two reports. The new report
was not dated, but the case file number contained a hand-
written strikeover from “95” to “94.” To McGreal, this
suggested that the new report was created in 1995 when he
had raised the matter again. When McGreal approached
Murray about the new report, Murray asked him to “please
drop it.”
Some time around the Fall of 1996, Lt. Snooks directed
McGreal to search the liquor commission files for the name
of a doorman for the Copa for an unrelated underage
drinking case. As McGreal searched the files, he discovered
a copy of the revised, handwritten two-page document (the
one concluding that no further action would be taken).
McGreal made two copies of the report, placing one in his
evidence locker and delivering the other to Chief Wood,
pointing out that the report had been missing from the
official department files. McGreal also told Snooks in
November 1996 that he believed files were missing from the
official records. Everyone agrees this was a serious charge
because destroying police reports or removing them from
the official files violated the rules and regulations of the
department and also may have constituted a crime under
Illinois law. McGreal publicized the fact that documents
were missing from the files in the course of his campaign
against the Mayor. Discovery in this case corroborated
No. 02-3405 11
McGreal’s claims. The defendants produced a records
envelope with a startling notation written by Snooks:
Original sups from John Murray given to me by Chief
11/24/97 at 0920 as he never placed them into records
to prevent officer “digging.”
Snooks Dep., Ex 49.
D.
When McGreal learned that there would be no further
investigation of the Copa, he decided to appeal the Mayor’s
decision to renew the Copa’s liquor license. He also decided
to further investigate the ties between Hernandez and the
Copa on his own time and as a private citizen. He learned
from an acquaintance that Assistant Attorney General
Mary Sue Feldmeier might have information about
Hernandez and the Copa. McGreal called Feldmeier and
asked about Hernandez’s ties to the Copa. Although he in-
troduced himself as a police officer, he did not intend to
convey that he was conducting an official investigation and
he was unaware that Feldmeier had apparently misunder-
stood him and assumed his questions were presented in his
official capacity.
In response to his inquiry, she sent him a facsimile at the
Alsip Police Department of an Attorney General report. The
report stated that Hernandez’s girlfriend had acknowledged
that Hernandez gave the owner of the Copa $100,000 in
cash to become a part-owner of the business. The fax was
intercepted by Chief Wood, who called Feldmeier to investi-
gate whether McGreal had given her the impression that
his investigation was an official (rather than personal)
matter. After speaking to Feldmeier in March 1997, he
thought he might have cause to discipline McGreal, but
dropped the matter for a time. Feldmeier was not contacted
again until November or December of that year, after the
12 No. 02-3405
Mayor learned that McGreal had instigated an investiga-
tion into the Mayor’s ties to gambling at the Elk’s Club. At
that point, Snooks was investigating McGreal for any
possible wrong-doing that would justify his discharge.
E.
That brings us back to November 1997. Recall that
McGreal had opposed Andrews in the mayoral election
earlier that year, and the Mayor then learned that McGreal
had instigated an investigation into the Mayor’s possible
receipt of gambling kickbacks from the Elk’s Club. The
Mayor responded to this news first by threatening to fire
Chief Wood and then by hiring a lawyer who specialized in
discharging police officers. The Mayor first met with this
lawyer, Thomas McGuire, on November 10, 1997, the same
day he demanded the Chief’s resignation and announced to
the Village Board that he had authorized an investigation
into “fairy tale charges” brought by a “disgruntled” police
officer. Eleven days later, Wood ordered McGreal to appear
for an administrative interview. The topics for the interview
included McGreal’s investigation of the ownership of the
Copa, his inquiry into gambling at the Elk’s Club, his
handling of the Taylor DUI case, alleged sick time abuse in
1996 and 1997, alleged failure to properly utilize on-duty
time, and his handling of an ordinance violation at the
Copa. From November 21, 1997 through March 12, 1998,
Lt. Snooks interrogated McGreal repeatedly. After five
sessions of questioning totaling more than twelve hours, no
charges were brought against McGreal. Neither Wood nor
Snooks could conclude that McGreal had engaged in
misconduct that warranted discipline or termination.
Instead, about a week after the conclusion of these inter-
rogations, Chief Wood ordered McGreal to report to Dr. Eric
Ostrov, a psychologist (who also happens to be a lawyer), for
No. 02-3405 13
a psychological evaluation to assess McGreal’s fitness for
duty. Dr. Ostrov had provided expert testimony many times
over the years for clients of Thomas McGuire seeking to
terminate police officers. McGreal’s attorney asked why
McGreal was being psychologically evaluated and neither
Wood nor Snooks responded to the inquiry. McGreal was
ordered (under threat of termination) to sign a waiver of his
right to privacy, confidentiality and/or privilege with Dr.
Ostrov before submitting to the examination. When
McGreal signed the document, he noted that he was
waiving his rights “under duress.” McGreal subsequently
submitted to three sessions with Dr. Ostrov as well as a
number of psychological tests.
Dr. Ostrov wrote a 21-page evaluation of McGreal based
on his sessions with McGreal, the psychological tests, a
conversation with Lt. Snooks about McGreal and a conver-
sation with Thomas McGuire regarding McGreal. See R. 4,
Ex. H. The report recounts the incidents we have described
above including McGreal’s investigation into the ownership
of the Copa, his call to the Assistant Attorney General, his
charges about the missing police report, and his conduct
during the prosecution of the Taylor DUI. For reasons not
explained in the report, Dr. Ostrov apparently credited only
the versions of those stories presented by the defendants
and their lawyer. He then presented his diagnostic assess-
ment. This part of the report contained a great many details
of McGreal’s home life, especially regarding his relation-
ships with his three sons, his wife, and his parents and in-
laws. Dr. Ostrov also extensively reported on McGreal’s
version of the many incidents the department cited as
problematic. Dr. Ostrov’s “diagnostic impression” of
McGreal was that he displayed narcissistic, paranoid and
histrionic traits, not rising to the level of a personality
disorder, citing the Diagnostic and Statistical Manual IV.
In other words, McGreal suffered from no identifiable men-
tal illness. Dr. Ostrov concluded, however, that McGreal
14 No. 02-3405
had a “marked tendency to make inferences based on highly
tenuous evidence.” R. 4, Ex. H, at 19. We read this as a
charge that McGreal relied on hunches. (If McGreal’s
allegations prove true at trial, his hunches were remarkably
accurate.) Ostrov based this finding on the DUI matter, the
Elk’s Club investigation, the Copa ownership question and
the missing memo incident. He also concluded that McGreal
had limited insight into the possible disruptions that his
behavior caused. In sum, he stated:
Based on these results, it is my opinion, to a reasonable
degree of psychological certainty, that Officer McGreal
should be allowed to continue on full active duty only if
he is willing to undertake a course of psychotherapy
directed toward helping him gain insight into the
vagaries of his reasoning processes, their potential for
disruption in the police department and the community,
and the relationship to his own psychological needs and
functioning. I suggest a course of short-term cognitive
psychotherapy once a week for at least 50 minutes a
session for a period of time not to exceed three months.
. . . If he is unwilling to enlist in such treatment . . . I
would recommend . . . that he be found unfit for full
active duty due to his potential for undermining the
essential quasi-military hierarchical structure of the
police department, undermining the essential element
of morale in the police department, and undermining
the essential element of the police department’s having
good relationships with external agencies in the com-
munity.
R. 4, Ex. H at 20-21.
Dr. Ostrov forwarded his report to Chief Wood, who di-
rected McGreal to appear in his office for a meeting on June
9, 1998. McGreal appeared at the meeting with his attor-
ney. Along with Chief Wood, Lt. Snooks, Thomas McGuire
and Dr. Ostrov were also present. Dr. Ostrov reiterated his
No. 02-3405 15
conclusion that McGreal need not be removed from active
duty so long as he submitted to the prescribed cognitive
therapy. McGreal’s attorney said that McGreal was willing
to consider the therapy, but the meeting ended with Chief
Wood handing McGreal a memo placing him on paid sick
leave until further notice. McGreal’s attorney attempted to
clarify by letter what had happened at the meeting. He
noted that McGreal had offered to discuss therapy and that
the defendants had not responded. McGreal never received
a clarifying response from the department. Instead, on June
12, 1998, McGuire sent McGreal’s attorney a letter contain-
ing a two-part ultimatum. The letter provided that if
McGreal wished to have a second medical opinion on his
fitness for duty, he was required to submit a completed
report to Chief Wood within 17 days. Second, if the contents
of the second report did not negate the conclusions of the
first report, and if McGreal did not sign a “Proposed
Therapy Agreement” then Wood would initiate termination
proceedings against McGreal. Chief Wood and Lt. Snooks
later claimed not to have authorized McGuire’s letter, but
on summary judgment we construe the facts in favor of the
party opposing judgment, and McGuire claimed he did have
authority from his clients to send this letter. Three days
before the deadline for McGreal to sign off on the therapy
agreement, McGreal filed this lawsuit, alleging that the
defendants were retaliating against him for exercising his
First Amendment rights.
Approximately two weeks later, McGreal was served with
an “Administrative Complaint” filed by Chief Wood, seeking
McGreal’s termination on the basis of various acts of
misconduct. The charges were numerous and varied, and in
some cases quite vague. For example, the Complaint notes
that McGreal was “cautioned” during his employment about
his “lack of proper interaction with his fellow employees”
and that he had “not fully accept[ed] said caution.” R. 4, Ex.
G, ¶ 8. The Administrative Complaint also faults McGreal
16 No. 02-3405
for (1) commencing his own investigation into a felon’s
purported ownership interest in a liquor establishment; (2)
falsely accusing Chief Wood of mishandling the records of
the Alsip Police Department; (3) using in his campaign
against the Mayor information he received while on duty as
a police officer (regarding that felon’s ownership interest in
the bar); (4) conveying to Chief Wood, without proper
justification, the rumor that the Mayor was taking payoffs
from an Alsip establishment (presumably a reference to the
Elk’s Club); (5) alleging without proper justification that the
Taylor DUI had been improperly handled by the prosecutor;
(6) sending a letter to the JIB and the presiding judge of the
circuit court accusing a Cook County judge of treating him
inappropriately after he pointed out possible wrong-doing
by the prosecutor in the DUI case; (7) expressing, in the
administrative investigation interviews, that he had little
to no confidence in Chief Wood and Lt. Snooks because they
served at the pleasure of the Mayor; and (8) failing to agree
to enter into psychotherapy to correct “the vagaries of his
reasoning processes”. McGreal points out that during
Woods’ nine year tenure as Chief, only one other officer was
terminated, an officer who inappropriately fired his gun at
unarmed civilians. At the same time, the Department never
sought to terminate a third officer (we’ll call him Officer
Doe) who was reprimanded for consorting with a female
civilian in his squad car while on duty, being tardy repeat-
edly, kissing another officer’s wife at a party, verbally
abusing civilians with ethnic slurs, tanning at a salon while
on duty, falsely calling in sick, carrying a personal pager on
duty, driving in an unsafe manner on repeated occasions,
wearing an improper uniform, battering his domestic
partner and assaulting a police officer who tried to inter-
vene, threatening the life of his domestic partner and other
police officers with his gun in the course of this incident,
repeatedly attempting to break in to the home of a female
Department radio operator, using his official position as a
No. 02-3405 17
police officer to intimidate his girlfriend’s ex-husband, and
failing to attend alcohol counseling as required by the
Department.
Meanwhile, McGreal, apparently considered by the
Department to be far more dangerous than his violent and
abusive gun-wielding fellow officer, was barred from re-
turning to work from June 9 through October 6, 1998 on the
grounds that he had been declared psychologically unfit for
duty. He was forced to expend reserved sick days in order
to draw a salary during this lengthy absence. In July 1998,
Wood distributed a memo to all police department person-
nel barring McGreal from setting foot in the police station.
Wood also prohibited McGreal from attending court on his
pending cases while he was on leave. Snooks notified court
personnel of McGreal’s leave status, causing McGreal
further embarrassment. The Administrative Complaint was
eventually resolved by a settlement which preserved
McGreal’s right to pursue his claims in federal court.
McGreal was still employed as an Alsip police officer as of
the time of oral argument.
F.
McGreal filed a four-count complaint against Dr. Ostrov,
Chief Wood, Lt. Snooks and the Village of Alsip. Count I
alleged a deprivation of rights guaranteed under the First
Amendment by Snooks, Wood and the Village, in violation
of § 1983. Count II stated a claim of deprivation of speech
rights guaranteed by the Constitution of the State of
Illinois. Count III alleged a deprivation of property in vio-
lation of due process, where the property at issue was
McGreal’s interest in the sick time pay he was forced to use
in order to continue to receive his salary. Count IV, which
was filed under seal, alleged violation of the Mental Health
and Developmental Confidentiality Disabilities Act, 740
ILCS 110/1 et. seq., arising from the dissemination of Dr.
Ostrov’s report.
18 No. 02-3405
All of the defendants moved to dismiss Count IV on the
grounds that there was no therapeutic relationship between
McGreal and Dr. Ostrov, that McGreal signed a waiver of
his right to confidentiality, and that public policy favored
disclosure of mental health reports to a police officer’s
supervisors when a mental health evaluation for fitness for
duty has been ordered. The district court granted the
motion to dismiss, finding that Dr. Ostrov was acting not as
McGreal’s own psychiatrist1 but rather as a consultant to
the Village to evaluate McGreal’s fitness for duty. The court
found that although Dr. Ostrov was a therapist whose
services would otherwise come within the statutory provi-
sions, McGreal’s discussions with him were not subject to
the full constraints applicable to confidential communica-
tions under the act.
After discovery, the defendants moved for summary
judgment on the remaining counts. The court found that the
Village could not be held liable for the acts of the mayor or
agents of the police department because they were not
acting pursuant to a policy of retaliating against free
speech. Citing Monell v. Department of Social Servs. of City
of New York, 436 U.S. 658 (1978), the court reasoned that
the municipality could not be held liable even if an admit-
ted policymaker like the Mayor engaged in retaliation
against McGreal for engaging in free speech. The key,
according to the court, was whether the Village had a policy
of retaliating against free speech and McGreal had no
evidence of such a policy.
The court then considered the claims against Wood and
Snooks in their individual capacities. The court found that
Wood and Snooks were entitled to qualified immunity on
1
The district court was apparently under the misapprehension
that Dr. Ostrov is a psychiatrist. The undisputed record discloses
that he is a psychologist and an attorney.
No. 02-3405 19
two different grounds. First, the court engaged in a
Pickering balancing test, weighing McGreal’s right to speak
on matters of public interest against the department’s need
to protect against disruption in carrying out its work. See
Pickering v. Board of Educ. of Township High School Dist.
205, Will County, Illinois, 391 U.S. 563 (1968). The court
concluded that McGreal’s speech addressed matters of
public concern, namely, possible corruption in the police
department and by the Mayor. Balanced against McGreal’s
interest in making that corruption known (and the public’s
interest in hearing it), the court found that the police
department had a more substantial interest in efficiency,
loyalty, morale, public confidence in law enforcement and
protecting against actual and potential disruptions in the
department and with other city agencies. On balance, then,
the court found that Wood and Snooks were entitled to
qualified immunity for any actions they took against
McGreal because of his speech on these issues. In the
alternative, the court found that Wood and Snooks were
entitled to qualified immunity because the law surrounding
McGreal’s claim was not clearly established at the time of
these events. According to the district court, it was not clear
at the time of these events that the actions taken against
McGreal violated his First Amendment rights. The court
therefore granted judgment in favor of all of the defendants.
McGreal appeals.
II.
On appeal, McGreal contends that the court misapplied
the Pickering test. He points out that his alleged verbal
missteps are far over-shadowed by the speech and conduct
of the unnamed officer who misused his gun as well as his
words, an officer whom the department never sought to ter-
minate. McGreal argues that the disparate treatment
of Officer Doe demonstrates that the rationales offered
20 No. 02-3405
to justify McGreal’s treatment by the department are pre-
textual. McGreal maintains that the Village should be held
liable for the acts of the Mayor and the police chief, and
that his claim for violation of the Illinois Mental Health and
Developmental Disabilities Confidentiality Act should not
have been dismissed. He asks us to apply Circuit Rule 36 on
remand.
A.
We begin with McGreal’s § 1983 claim for retaliation in
violation of his First Amendment rights. There are four
elements to a First Amendment retaliation claim in the
employment context. Gustafson v. Jones, 290 F.3d 895, 906
(7th Cir. 2002). The appeal comes to us as the result of
summary judgment and, thus, our review is de novo and
McGreal need only demonstrate a genuine issue of material
fact as to each element. Myers, 226 F.3d at 825 (we review
de novo a grant of summary judgment as well as a district
court’s decision that a defendant is entitled to qualified
immunity). We construe all facts in a light most favorable
to McGreal, the party opposing summary judgment, and we
draw all reasonable inferences in his favor. Myers, 226 F.3d
at 825. In order to make out his First Amendment claim,
McGreal must first demonstrate that his speech was on a
matter of public concern. Second, he must show that his
speech played at least a substantial part in his employer’s
decision to take an adverse employment action against him.
If McGreal carries his burden on these two elements, the
defendants may prevail only if, third, they can prove that
the government’s interest as an employer in efficiently
providing government services outweighs McGreal’s First
Amendment interests, or if, fourth, they can prove that they
would have disciplined McGreal even in the absence of his
speech. Gustafson, 290 F.3d at 906. The defendants’ burden
in justifying the actions they took against an employee
No. 02-3405 21
varies depending upon the nature of the employee’s expres-
sion. Connick v. Myers, 461 U.S. 138, 149 (1983); Glass v.
Dachel, 2 F.3d 733, 744 (7th Cir. 1993) (Supreme Court
unanimously placed the burden on the State to demonstrate
a state interest that outweighs the employee’s First Amend-
ment rights).
1.
We begin with whether McGreal’s speech touched on
matters of public concern. “Whether a government employ-
ee’s speech addresses a matter of public concern depends
upon ‘the content, form, and context [of the speech] as
revealed by the whole record.’ ” Gustafson, 290 F.3d at 906-
07 (quoting Connick, 461 U.S. at 147-48). McGreal’s com-
ments included his complaint to the Judicial Inquiry Board
about the handling of the Taylor DUI, his statements in the
mayoral campaign and in other fora about missing police
reports, his repetition of rumors that the Mayor was on the
take at the Elk’s Club, that illegal gambling was going on
at the Elk’s Club, and that a felon had an ownership
interest in the Copa. The defendants only weakly question
whether these remarks touched on matters of public
concern. See Connick, 461 U.S. at 148 (statements not a
matter of public concern where employee was not seeking
to inform the public that government agency was not
discharging its responsibilities and was not bringing to light
actual or potential wrongdoing or breach of the public trust
on the part of another public official); Glass, 2 F.3d at 741(“matters of public concern do include speech aimed at
uncovering wrongdoing or breaches of the public trust”).
Rather they argue that, on balance, the department’s
interest in effectively and efficiently delivering law enforce-
ment services outweighed McGreal’s right to publicly
comment on these matters. The defendants also argue that
McGreal’s statements are not entitled to First Amendment
22 No. 02-3405
protection because they were false and made recklessly. We
have remarked that a suggestion that statements were
made with reckless indifference to their accuracy is not
normally relevant to the question whether the issue was a
matter of public concern. See Gustafson, 290 F.3d at 908.
The defendants’ theory, presumably, is that false charges of
corruption would not really touch on matters of public
concern. All of the statements that form the basis for
McGreal’s retaliation claim involved charges of wrong-doing
by public officials and therefore easily meet the element of
touching on matters of public concern unless the defendants
can demonstrate that McGreal’s statements were false and
recklessly made. See Delgado v. Jones, 282 F.3d 511, 517-18
(7th Cir. 2002) (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).
We believe there are genuine issues of material fact both
as to the truth of the statements and as to whether the
defendants genuinely believed the statements were false
when they took action against McGreal for making the
statements. For example, McGreal’s complaint to the
Judicial Inquiry Board was based in large part on misinfor-
mation provided to him by Lt. Snooks, who concedes he
gave McGreal incorrect information. At the time Lt. Snooks
provided this incorrect and incomplete information, he was
aware that McGreal was already suspicious about the
unusual handling of the Taylor DUI. Yet, as far as we can
tell from the record, Lt. Snooks was never disciplined for
giving false information in the first place. The department
can hardly be heard to complain now about the falsity of
information in McGreal’s JIB complaint when McGreal’s
supervisor was admittedly the source of the misinformation.
Moreover, the substance of McGreal’s missives was that the
judge involved began treating McGreal differently after he
questioned the handling of the Taylor DUI, and that the
No. 02-3405 23
sentence was surreptitiously changed after McGreal
complained. The defendants provide no evidence on the
truth of McGreal’s allegation that the judge treated him
differently after he began investigating the handling of the
Taylor DUI, and for summary judgment purposes we will
assume both that this allegation was true and that the
department had no reason to think it was false. The
department was also aware that, from McGreal’s perspec-
tive (because of the incorrect and incomplete information
provided by Lt. Snooks), Taylor’s sentence was changed
after McGreal began looking into the matter. Although this
may not have been literally true (we see no evidence in the
record that would definitively answer the question), from
McGreal’s perspective, in reliance on reports from the very
people who now accuse him of lying, this charge was true.
On summary judgment, we cannot find that McGreal’s
JIB complaint or his letter to the presiding judge contained
falsehoods or that the department honestly believed
McGreal was lying in making these charges.
McGreal’s suspicions about gambling at the Elk’s Club
turned out to be true. After McGreal pressed the issue and
forced an investigation, the Sheriff’s office confirmed that
the video poker machines at the Elk’s Club were being used
for gambling. As for McGreal’s repetition of the rumor that
a Village official was receiving payoffs from Elk’s Club
gambling, he identified the Mayor as the subject of the
rumor only when ordered to do so and only to his com-
manding officer. Whether he had heard such a rumor is
contested and we will credit his version of events for
summary judgment purposes. Thus, we will assume that he
did hear such a rumor. McGreal expressed no opinion as to
the truth of the rumor itself. Forwarding that information
to his commanding officer led to an investigation that
appears to have exonerated the Mayor. One would think
that (1) given the campaign contribution from the company
owning the machines and (2) given the Mayor’s preferential
treatment of that company, not to mention (3) the delays in
24 No. 02-3405
investigating the gambling charge and (4) the later confir-
mation that the machines were in fact used for gambling,
the Mayor would have been relieved to be cleared of the
bribery rumors. There is certainly no question that a charge
of bribery involving a Village official touched on matters of
public concern. The Mayor himself thought the matter
worthy of mention at a Village Board meeting. And there
was arguably enough smoke in the rumor for McGreal to
repeat the charge to his commanding officer in an effort to
force the department to check for fire.
The last two statements by McGreal are somewhat re-
lated. McGreal reported to his superiors and to the press
that a felon had an ownership interest in the Copa. He later
charged that documents relating to the investigation of this
matter had been altered and removed from the official
police files. We will begin with the charge that a felon held
an ownership interest in the Copa. McGreal first heard this
from the felon himself in the parking lot of the establish-
ment in question. He passed the information on to Sgt.
Murray who questioned the alleged owner further and
initially came to the conclusion that McGreal’s suspicions
were correct. Only after an order from Chief Wood to obtain
more evidence or come to a different conclusion did Murray
change his assessment. Later information from the Attor-
ney General’s office further supported McGreal’s charge
that a felon had an ownership interest in the Copa. Thus,
we will assume at this stage of the litigation that McGreal
was accurately reporting conduct that is illegal under state
and local law, and that his employer was well aware of this.
Next is McGreal’s charge that documents were missing
from the official police files relating to the investigation of
whether a felon owned part of the Copa in violation of state
and local law. Again, the record demonstrates that files
were in fact missing from the official record. First, McGreal
himself checked the file and could not find the original
memo shown to him by Sgt. Murray. McGreal later found a
No. 02-3405 25
copy of the revised handwritten memo in another filing area
and a third typewritten document was provided to him after
he reported that a document was missing. This third
document was different from the one he knew had been
submitted by Sgt. Murray. Discovery later turned up a
veritable smoking gun in the form of an envelope marked
“Original sups from John Murray given to me by Chief
11/24/97 at 0920 as he never placed them into records to
prevent officer ‘digging.’ ” The defendants do not deny that
a charge of altering or destroying official police files touches
on matters of public concern. Everyone seems to agree that
intentionally destroying or removing records from the
official file constitutes a crime. The envelope demonstrates
that the department knew files were not where they should
be and that Wood and Snooks therefore knew McGreal was
telling the truth when he made the charge. McGreal thus
has enough evidence to demonstrate that his statements
touched on matters of public concern, were arguably true
and were worthy of First Amendment protection.
2.
We turn next to the second element of McGreal’s First
Amendment claim, whether his speech played at least a
substantial part in his employer’s decision to take an ad-
verse employment action against him. The defendants do
not seriously contest that McGreal’s accusations played a
substantial role in their decision to seek his termination.
We need look only as far as the psychological evaluation
and the administrative charge filed against McGreal to
confirm that McGreal’s speech played a significant role
in the department’s determination to fire him. The
Administrative Complaint faults McGreal for, among other
things: (1) falsely accusing Chief Wood of mishandling the
records of the Alsip police department; (2) campaigning
against the Mayor with information obtained while on duty
26 No. 02-3405
as a police officer (regarding a felon’s ownership interest in
the Copa); (3) conveying to Chief Wood the rumor that the
Mayor was taking payoffs to overlook gambling at the Elk’s
Club; and (4) alleging to the JIB and the presiding judge
that the Taylor DUI had been handled improperly. These
same statements served as the department’s alleged
justification for sending McGreal to Dr. Ostrov for a fitness-
for-duty evaluation. We will consider separately the fourth
element of McGreal’s First Amendment claim, the defen-
dants’ argument that they would have sought to terminate
McGreal even in the absence of his statements. But
McGreal has demonstrated a genuine issue of material fact
on the issue of whether his speech played a substantial role
in the defendants’ decision to take adverse action against
him.
3.
That brings us to the heart of the First Amendment
analysis, the Pickering balancing. Pickering, 391 U.S. at
574. Even if a government employee’s speech is on a matter
of public concern, the government employer is entitled to
restrict that speech if it can prove that the interest of the
employee as a citizen in commenting on the matter is
outweighed by the interest of the government employer in
promoting effective and efficient public service. Gustafson,
290 F.3d at 909. A Pickering analysis is a highly fact-
specific inquiry into a number of related factors:
(1) whether the speech would create problems in main-
taining discipline or harmony among co-workers; (2)
whether the employment relationship is one in which
personal loyalty and confidence are necessary; (3)
whether the speech impeded the employee’s ability to
perform her responsibilities; (4) the time, place, and
manner of the speech; (5) the context within which the
underlying dispute arose; (6) whether the matter was
No. 02-3405 27
one on which debate was vital to informed decision-
making; and (7) whether the speaker should be re-
garded as a member of the general public.
Gustafson, 290 F.3d at 909. Before analyzing these factors
and the pertinent case law, we turn momentarily to a dis-
pute between the parties over our standard of review on the
Pickering issue.
McGreal argues for de novo review, generally because the
case comes to us on summary judgment, and specifically
because we have held that we review de novo the district
court’s application of the Pickering test. See Bonds v.
Milwaukee County, 207 F.3d 969, 979 (7th Cir. 2000), cert.
denied, 531 U.S. 944 (2000). The defendants cite Gustafson
for the proposition that, although our review of the court’s
legal conclusions is de novo, we review the record as a
whole, and we will accept the district court’s conclusions of
historical fact unless they are clearly erroneous. Gustafson,
290 F.3d at 906. The Supreme Court reminds us that “[t]he
inquiry into the protected status of speech is one of law, not
fact.” Connick, 461 U.S. at 148 n.7. These statements of the
standard do not actually conflict. Both parties agree that we
review the ultimate conclusion de novo. They disagree only
on the meaning of “historical fact” in this context. According
to the defendants, we must defer to the district court’s
“findings of historical fact” that (1) Wood and Snooks were
of the opinion that McGreal’s speech had the potential to
disrupt the police department and its relationships with
other law enforcement agencies, prosecutors and the courts;
(2) Wood and Snooks had legitimate concerns that
McGreal’s conduct could upset the mission of the police
department. McGreal maintains these are hotly contested
material facts that must be decided by a jury. McGreal is
correct that we will reverse a grant of summary judgment
when a material issue of fact is in dispute as to whether the
employer’s reasons for disciplining an employee involved
promoting the efficient and effective operation of a govern-
28 No. 02-3405
ment agency. See Glass, 2 F.3d at 736. See also Delgado,
282 F.3d at 517 (the Pickering balancing test can seldom be
done on the pleadings alone and in most cases will be
possible only after the parties have had an opportunity to
conduct discovery). The record here reveals many good
reasons to doubt the sincerity of Wood’s and Snooks’s
opinions, concerns and state of mind. We will completely
delineate those reasons shortly but in the meantime note a
few factors giving rise to a genuine issue of material fact.
For example, a great deal of time passed between McGreal’s
statements and the defendants’ determination that there
was a “potential” for disruption. Indeed, so much time had
passed that a reasonable jury could find that their stated
fear of “potential” disruption was pretextual because Wood
and Snooks surely knew by then that any danger of disrup-
tion had passed. In other words, when the disruption failed
to materialize, they could not justify disciplining McGreal
by reaching back in time to predict “potential” disruption
that they knew in fact had not occurred. Other reasons to
doubt their sincerity include the timing of the hiring of
Thomas McGuire and the decision to require McGreal to
submit to a psychological evaluation when he showed no
signs of mental illness or instability.
Given the state of the dispute over this material fact, we
will apply de novo review. Characterizing the district court’s
conclusions on the state of mind of Snooks and Wood as
“findings of historical facts” is quite a stretch. It is rarely
appropriate on summary judgment for a district court to
make a finding on state of mind. Alexander v. Wisconsin
Dept. of Health & Family Serv., 263 F.3d 673, 681 (7th Cir.
2001) (cases involving questions of intent and credibility are
inappropriate for summary judgment); Stumph v. Thomas
& Skinner, Inc., 770 F.2d 93, 97 (7th Cir.1985) (“ ’Summary
judgment is notoriously inappropriate for determination of
claims in which issues of intent, good faith and other
subjective feelings play dominant roles.’ ”) (quoting Pfizer,
No. 02-3405 29
Inc. v. International Rectifier Corp., 538 F.2d 180, 185 (8th
Cir.1976), cert. denied, 429 U.S. 1040 (1977)). When the
issue is contested, as it is here, the plaintiff is entitled to
have the finder of fact decide the issue, perhaps with a
special verdict form that the court can then use to apply the
Pickering factors to the particular facts of the case. “Histor-
ical facts” do not include subjective, contested issues about
state of mind. “Pickering balancing is not an exercise in
judicial speculation. While it is true that in some cases the
undisputed facts on summary judgment permit the resolu-
tion of a claim without a trial, that means only that the
Pickering elements are assessed in light of a record free
from material factual disputes.” Gustafson, 290 F.3d at 909.
Thus, there is no reason on this disputed record to defer to
these so-called findings.
That brings us squarely to the seven factors of the
Pickering test. Recall that the three statements in dispute
are McGreal’s complaint to the JIB about the handling of
the Taylor DUI, McGreal’s statements to Wood and Snooks
that reports were missing from the official files, and
McGreal’s accusation of corruption against the Mayor. For
the JIB complaint, the defendants contend that McGreal’s
statement had a potential negative impact on the
Department’s image as well as the Department’s relation-
ship with judges and prosecutors. They maintain that
McGreal’s credibility with these other agencies was com-
promised and the close working relationships between these
entities “could have been seriously undermined” if Wood
had not stepped in and minimized the damage. They argue
that the JIB complaint also caused Wood to lose confidence
in McGreal.
As for McGreal’s accusations about missing reports, the
defendants argue that McGreal made the statements to
promote his own self-interest in his political campaign
against the Mayor. In doing so, he challenged the integrity
of the entire police department, according to the defendants,
30 No. 02-3405
and diminished the Department’s ability to efficiently
deliver law enforcement services. McGreal’s repetition of a
rumor that the Mayor was on the take had the potential for
disruption in the entire Department, defendants explain,
because in addition to accusing the Mayor, McGreal implied
that the Department was looking the other way when it
came to enforcing the law against the Copa. Also, this
incident caused Chief Wood to lose confidence in McGreal.
The defendants largely rest their case, then, on the poten-
tial for disruption in the Department and with outside
agencies, and the Chief’s loss of confidence in McGreal as a
result of these statements. They rely heavily on our deci-
sions in Kokkinis and Jefferson, one a police officer case and
the other involving a probation officer, as analogous cases
requiring affirmance here. See Kokkinis v. Ivkovich, 185
F.3d 840 (7th Cir. 1999); Jefferson v. Ambroz, 90 F.3d 1291(7th Cir. 1996). We turn to these cases to aid our analysis.
Kokkinis, a patrol officer, appeared on a local television
news program in a report on another officer’s charges of sex
discrimination in the police department. Wearing a ski
mask and speaking in an electronically disguised voice,
Kokkinis told a reporter that people would be in “utter
shock” if they knew what was going on in the police depart-
ment. When the reporter asked why, Kokkinis replied that
everyone was afraid of the police chief’s vindictiveness, and
that if anyone dared to question one of the chief’s decisions,
that person’s life would be “made miserable.” Kokkinis did
not directly comment on the other officer’s charge of sex
discrimination and admittedly had no specific knowledge
related to the officer’s charge. Kokkinis later admitted he
was the masked speaker on the news report. At first, the
chief suspended him for five days, ostensibly for violating
department rules by appearing on television without first
notifying the chief. The Board of Fire and Police Commis-
sioners reversed the suspension but Kokkinis’s problems
with the department continued. A strange series of events
No. 02-3405 31
(Kokkinis accidentally shot himself, his fellow officers
learned he was keeping a diary of his interactions with
them, problems developed between Kokkinis and his
supervisor, and Kokkinis began taking prescription medica-
tion for stress) led the chief to order Kokkinis to undergo
psychological testing. The evaluation resulted in a finding
that Kokkinis was not fit for regular duty, and the chief
reassigned him to administrative duties in the station.
Kokkinis, 185 F.3d at 841-43.
Applying the Pickering balancing test, we found that the
defendants were entitled to summary judgment. The
defendant police chief and police department presented
uncontested evidence that the chief believed Kokkinis’s
statements to be untrue, that he felt the remarks reflected
negatively on the department as a whole, that he had been
embarrassed by phone calls after the broadcast, and that he
was concerned the broadcast would negatively affect officer
morale. Other ranking officers concurred in these state-
ments. Kokkinis did not challenge the sincerity of the chief’s
beliefs. Rather, he argued that reliance on potential disrup-
tion in the police department was insufficient to tip the
Pickering balance in the defendant’s favor. We held that
potential disruption of working relationships caused by the
officer’s speech was a legitimate factor for the government
employer to consider. Citing Connick, we noted that when
close working relationships are essential to fulfilling public
responsibilities, deference to the employer’s judgment was
appropriate, especially in the context of a law enforcement
setting. Kokkinis, 185 F.3d at 845-46. We noted that a
public employer is not required to wait until working
relationships are actually damaged if immediate action
might prevent the harm from occurring. Id. 185 F.3d at 845.
Finally, we were careful to distinguish the situation in
which employees were reporting illegal conduct by supervi-
sors and airing grievances in a manner calculated to resolve
the problem without jeopardizing the government function.
Id. 185 F.3d at 846 n.3.
32 No. 02-3405
In Jefferson, a probation officer repeatedly called into a
radio program and identified himself as a local gang
member. Using this assumed identity, the officer publicly
criticized the police department and the judicial circuit. At
times, his calls to the station caused him to be late to work.
He made one call from his desk at work. When his employer
suspected he was the mysterious caller, he denied any
involvement. His employer suspended him, explaining that
Jefferson had misrepresented himself on the radio program,
had denied he was the caller, had lied about the reason for
his tardiness, and had impugned the integrity of the police
department and the local judiciary. A newspaper editorial
criticized Jefferson for putting a “problematic chill on
relations between the police and the court agency” for which
Jefferson worked. Jefferson, 90 F.3d at 1294. After a
hearing regarding Jefferson’s conduct, his employer termi-
nated him, finding that he had violated the trust of his
immediate supervisors, grievously damaged the probations
department’s relationship with the police department, and
compromised the probation department’s relationship with
the local courts. 90 F.3d at 1295.
Jefferson sued his employer, complaining that he was
terminated in violation of his First Amendment rights. In
applying the Pickering test, we first found that Jefferson’s
statements on the radio were clearly of public concern
because they were a critique of the local police department
and court system. We noted the seven factors that we would
consider in determining whether Jefferson’s speech out-
weighed his employer’s interest in promoting the efficiency
of its judicial system (the branch of government that
employed Jefferson). Jefferson, 90 F.3d at 1297. Applying
those factors, we found that loyalty and confidence were
critical to a probation officer’s job, and that Jefferson’s
employer reasonably believed his statements potentially
damaged the probation office’s public image and its rela-
tionship with other law enforcement agencies. 90 F.3d at
1297.
No. 02-3405 33
Neither Kokkinis nor Jefferson requires judgment for the
defendants. McGreal does not dispute whether potential
disruption is a legitimate factor in the Pickering balance.
He merely disputes, as a factual matter, whether his
employer genuinely feared potential disruption to the
Department’s operations. In both Kokkinis and Jefferson,
there was no evidence that the employers did not genuinely
believe the employees’s statements were extremely damag-
ing to agencies involved and to their relationships with
other government entities. In contrast, McGreal presents
evidence that his employers were aware that his statements
were actually or arguably true and that his employers had
no legitimate claim to a fear of potential disruption. For
example, the Chief knew records were missing from the
official files because the evidence shows the Chief is the
person who removed them. McGreal’s claims about gam-
bling at the Elk’s Club also proved to be true after he
pressed the point and the Sheriff’s office confirmed his well-
founded suspicions. As for his statement that the Mayor
might have been receiving payoffs related to the Elk’s Club
gambling, McGreal never presented this statement as true
but, when under orders to do so, accurately reported that he
heard the rumor from another officer and thought it worthy
of investigation in light of the delays in investigating the
Elk’s Club after his initial report.
These statements were not only true, they were also part
of McGreal’s duties as an officer to bring to light. Effective
police work would be hopelessly compromised if supervisors
could retaliate against police officers for communicating
factual details that bear on the department’s ability to
conduct an objective investigation. Delagdo, 282 F.3d at
519. “The fact that a police officer’s job responsibilities may
in some measure overlap with motivations of a well-mean-
ing citizen does not change this analysis.” Id. “[S]peech that
accurately exposes official impropriety or corruption may
certainly be described as highly critical of the officials it
34 No. 02-3405
targets, yet it has generally been accorded the greatest level
of First Amendment protection.” Jefferson, 90 F.3d at 1298(Rovner, J., concurring). See also Glass, 2 F.3d at 741(matters of public concern include speech aimed at uncover-
ing wrongdoing or breaches of the public trust). The interest
of the employee in speaking out to uncover government
malfeasance has often been held to outweigh the interest of
the employer in maintaining harmony in the workplace.
Jefferson, 90 F.3d at 1298 (collecting cases). The key is
whether the employer was acting on the facts as the
employer reasonably found them to be. Jefferson, 90 F.3d at
1297. Here, McGreal has raised a genuine issue as to the
sincerity and reasonableness of his employer’s belief that he
was lying and the sincerity and reasonableness of his
employer’s conclusion that his statements were potentially
disruptive to the police department. We have already found
material issues of fact relating to the sincerity of the
defendants’ belief that McGreal was making false state-
ments. We turn to the sincerity of their belief that
McGreal’s statements posed potential for disruption to
Department operations.
We note first that the department was far more concerned
with McGreal’s statements than it was with the actions of
Officer Doe, who engaged in dangerous and criminal
behavior. Officer Doe’s actions directly affected the Depart-
ment because he threatened his fellow officers with his
service revolver and also repeatedly tried to break into the
home of a female Department employee, among other
things. The extreme nature of Officer Doe’s actions coupled
with the Department’s failure to take action against him
cast doubt on the sincerity of the Department’s explanation
for disciplining McGreal. The Department claims it sought
to discipline McGreal because of the disruptive effect of his
statements on Department operations. The Department’s
only explanation for turning a blind eye to Officer Doe’s
conduct is that he is an alcoholic. That fact, of course, does
No. 02-3405 35
not change the disruptive effect of Doe’s behavior on the
Department and does not explain why the Department
never required a mental health evaluation for Doe, who was
actually exhibiting signs of mental illness. McGreal, on the
other hand, exhibited no signs of mental illness but merely
said things that embarrassed the Mayor and forced the
Department to engage in appropriate investigations. This
raises a genuine issue as to whether the Department was
actually acting out of a fear of potential disruption rather
than out of displeasure with the content of McGreal’s
statements. See Glass, 2 F.3d at 742 (because the First
Amendment interests in speaking out on matters of public
concern are real and important, “the State’s asserted
interests must likewise be real and important.”).
McGreal raises another compelling fact pointing us to the
same conclusion. A considerable amount of time passed
between the time McGreal made the offending statements
and the time the Department determined there was a
“potential for disruption.” Indeed, so much time had passed
that any potential disruption would have materialized by
the time the Department took action against McGreal. The
Department took no action against McGreal until November
11, 1997, when the Mayor learned McGreal had instigated
an investigation into whether the Mayor was taking payoffs
to look the other way on Elk’s Club gambling. On that day,
the Village hired an employment lawyer specializing in the
discharge of police officers. An extensive administrative
review process followed and the Village failed to find a
legitimate reason to discipline McGreal. Only then did the
Village decide that he was showing signs of mental illness
and they sent him to Dr. Ostrov in March 1998. In June
1998, a full seven months after McGreal’s statements first
got him into hot water with the Mayor, the Village suddenly
decided that McGreal suffered from “vagaries of his reason-
ing process” which were potentially disruptive to Depart-
ment operations. The seven month delay from the last-
36 No. 02-3405
occurring offending speech to the suspension provided a
huge window for the potential disruption to materialize.
But the defendants proffered no conclusive evidence that
McGreal’s speech or actions caused any disruptions to police
operations between November 1997 and June 1998. The
Department, as we discussed earlier, may not reach back in
time to November 1997 (and earlier dates) to justify the
June 1998 suspension by citing “potential disruption.” In
Gustafson, another police department case, four months
passed without any evidence of ill effect from the officers’
offending speech before they were transferred to another
unit. Gustafson, 290 F.3d at 911. We held that when
substantial time has passed without incident, “it naturally
becomes more difficult for an employer to satisfy its burden
of proving that punishment on the basis of anticipated
disruption was reasonable.” Id. “Mere assertions of general-
ized potential for disruption are in any event insufficient.”
Id. On summary judgment, when we are drawing all
reasonable inferences in favor of the party opposing sum-
mary judgment, the Village’s post hoc explanation sounds
too fishy to support judgment. See Glass, 2 F.2d at 743-44
(where sincerity of employer’s belief that police officer’s
speech would disrupt harmony and morale in department
was in dispute, summary judgment is inappropriate). The
timing of these events provides a genuine issue of fact
regarding the true reason for the Department’s actions
against McGreal. The timing demonstrates an extreme
displeasure with the content of McGreal’s statements just
as easily as it indicates a concern for potential disruption in
the Department. See Coady v. Steil, 187 F.3d 727, 732 (7th
Cir. 1999) (Pickering balance seeks to ensure that public
employers do not use authority over employees to silence
discourse, not because it hampers public function but
simply because supervisors disagree with the content of the
employee’s speech). Only a trial can determine the true
reason the defendants decided to place McGreal on leave.
No. 02-3405 37
In considering the other six factors, we think there are
genuine issues of fact that further preclude judgment. For
example, the parties would have quite different views of
whether McGreal’s speech interfered with his daily job
responsibilities. McGreal has a legitimate argument to
make about his speech being necessary to the fulfillment of
his duties as a police officer, but the Village may be able to
make a compelling case demonstrating that these state-
ments interfered with McGreal’s daily responsibilities. As
for the time, place and manner in which the remarks arose,
some comments were made publicly, some were made
privately and under orders to disclose the information, and
some were made as part of a political campaign. For some
of the remarks, construing the facts in McGreal’s favor, he
will be able to demonstrate that his statements were vital
to informed decision-making. For example, his charges of
public corruption were very relevant to decisions to investi-
gate possible crimes and were also relevant to Village
elections involving one of the subjects of his speech, the
Mayor. See Connick, 461 U.S. at 145 (quoting Garrison v.
Louisiana, 379 U.S. 64, 74-75 (1964)) (“ ‘[S]peech concerning
public affairs is more than self-expression; it is the essence
of self-government.’ ”). The employer bears the burden of
justifying a particular disciplinary action, and a stronger
showing may be necessary when an employee’s speech more
substantially involves matters of public concern. Connick,
461 U.S. at 150-52; Gustafson, 290 F.3d at 909.
As for whether McGreal should be regarded as a member
of the general public, he may well be able to show that for
some of the remarks, he was speaking as a member of the
general public. A genuine issue of fact exists as to whether
he was speaking as a private citizen or as a police officer on
at least one occasion, when he called the Attorney General’s
office to seek more information about the ownership of the
Copa. In short, there are far too many open questions for a
court to conduct the Pickering balancing at this stage of the
38 No. 02-3405
proceedings. A judge or jury must decide what the facts are
before a court may determine whether, on balance, the
government’s interest as an employer in efficiently provid-
ing government services outweighs McGreal’s First Amend-
ment interests.
Finally, we address the fourth element of a First Amend-
ment claim, whether the employer would have disciplined
McGreal even in the absence of his speech. Much of the
defendants’ argument on this point overlaps with the
factors in the Pickering balancing test and, as we have
noted, there are many open factual disputes. The Village,
after all, originally explained McGreal’s suspension as
necessary in light of his refusal to undergo cognitive
therapy, a highly suspect explanation in light of the timing
of the suspension and the favorable treatment given to
Officer Doe, who had engaged in highly dangerous and
disruptive behavior that was actually indicative of mental
illness. See Gordon v. United Airlines, Inc., 246 F.3d 878,
887-88 (7th Cir. 2001) (employer’s disparate treatment of
similarly situated employees created question of fact
regarding employer’s proffered reason for discipline of
employee). Under the circumstances, the district court
should not have entered judgment in favor of the defen-
dants.
B.
Wood and Snooks also argued that they were entitled to
qualified immunity for their actions against McGreal.
Because we are reversing and remanding on the basis of the
Pickering balancing, we must address this issue. McGreal
maintains that qualified immunity is unavailable on this
record because if his version of the facts is credited, Wood
and Snooks pursued an “unabashed campaign to get rid of
him” in order to punish him for engaging in protected
expression on matters of public concern. The defendants
No. 02-3405 39
contend that they were not on notice that their conduct was
unlawful and that they reasonably believed that McGreal
was telling lies and falsehoods rather than engaging in
protected speech. As we have already discussed, there are
genuine issues of material fact regarding the sincerity of
the defendants’ beliefs. See Glass, 2 F.3d at 745 (when a
material issue of fact remains as to the reason for defen-
dant’s discipline of plaintiff, neither qualified immunity nor
ultimate liability may be decided on summary judgment).
We will therefore turn to the issue of whether the defen-
dants were on notice that they would be infringing
McGreal’s First Amendment rights by their actions.
The initial inquiry in determining qualified immunity is
whether the facts, taken in the light most favorable to the
party asserting the injury, show that the defendant’s
conduct violated a constitutional right. Saucier v. Katz, 533
U.S. 194, 201 (2001). That question is easily answered here
because McGreal alleges that Wood and Snooks suspended
him from duty as punishment for speaking out on matters
of public concern. The First Amendment protects public
employees from termination because of their speech on
matters of public concern. Board of County Commissioners,
Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 675
(1996).
The next issue is whether the right in question was
clearly established at the time of the violation. Saucier, 533
U.S. at 201. This inquiry is to be undertaken in light of the
specific context of the case and not as a broad general
proposition. Id. To demonstrate that the law was clearly
established, the plaintiff may point to closely analogous
cases demonstrating that the conduct is unlawful or
demonstrate that the violation is so obvious that a reason-
able state actor would know that what he is doing violates
the Constitution. Morrell v. Mock, 270 F.3d 1090, 1100 (7th
Cir. 2001), cert. denied, 537 U.S. 812 (2002). Officials may
still be on notice that their conduct violates established law
40 No. 02-3405
even in novel factual circumstances, however. Hope v.
Pelzer, 536 U.S. 730, 741 (2002). The Supreme Court has
rejected a requirement that previous cases be “fundamen-
tally similar” before officials can be held to know their
conduct was unlawful. Hope, 536 U.S. at 741. The salient
question is not whether there is a prior case on all fours
with the current claim but whether the state of the law at
the relevant time gave the defendants fair warning that
their treatment of the plaintiff was unconstitutional. Hope,
536 U.S. at 741; Gregorich v. Lund, 54 F.3d 410, 415 (7th
Cir. 1995).
In Gustafson, we analyzed the state of the law as of 1993
in the context of Pickering and Connick, the same context
we face here for conduct occurring in 1997 and 1998. We
stated:
[T]he issue is whether any employer could have thought
it was entitled to punish an employee for speech on a
matter of public concern where the speech caused no
actual disruption of any kind for four months, and
where the employer neither articulates a belief that the
speech has the potential to be disruptive in the future,
nor has evidence to support the reasonableness of such
a belief. We need look no further than Connick to know
that the answer to that question is no. The law to that
extent was clearly established[.]
290 F.3d at 913. See also Delgado, 282 F.3d at 520 (finding
it has been well-established for many years that a public
employer may not retaliate against an employee who
exercises his First Amendment speech rights); Myers, 226
F.3d at 829 (“It was, therefore, clear in June 1996 that
government employees had a First Amendment right to
speak on matters of public concern that must be weighed
against the employer’s right to punish insubordination.”).
The posture of the appeal in Gustafson was post-trial and
the jury had resolved the issues of the credibility of the
No. 02-3405 41
police department’s explanation for its discipline against its
officers. Here we are at the summary judgment stage of the
proceedings, and McGreal need only raise genuine issues of
material fact as to these issues. As we explained above, he
may well be able to show that neither Wood nor Snooks
sincerely believed his speech caused any actual or potential
disruption, especially in light of the lengthy delay between
McGreal’s statements and his suspension. The state of the
law in 1997 and 1998 was clear; employers could not
suspend workers as punishment for disagreeable speech on
matters of public concern unless they truly believed that,
under the Pickering balancing test, their interest in effi-
cient delivery of government services outweighed the
employee’s right to speak. See Delgado, 282 F.3d at 520(“government efficiency can be equally compromised if
government supervisors can freely pursue retaliation for
speech that is politically sensitive or embarrassing”). At
this stage of the proceedings, because the sincerity of their
belief and the true cause of the suspension are at issue,
Wood and Snooks are not entitled to judgment on the issue
of qualified immunity.
C.
The Village of Alsip contends it may not be held liable for
the acts of Mayor Andrews, Chief Wood or Lt. Snooks
unless McGreal can meet the standards for municipal
liability set by the Supreme Court in Monell v. Department
of Social Servs. of the City of New York, 436 U.S. 658 (1978).
In general, liability for a Section 1983 claim may not be
imposed on a city on a theory of respondeat superior.
McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir.
1995); Baxter by Baxter v. Vigo County School Corp. 26 F.3d
728, 734 (7th Cir. 1994) (superceded by statute on unrelated
point). Rather, “it is when the execution of a government’s
policy or custom, whether made by lawmakers or by those
42 No. 02-3405
whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity
is responsible under § 1983.” Monell, 436 U.S. at 694;
Baxter, 26 F.3d at 734. Both sides agree that there are
three sets of circumstances in which a municipality can be
said to have violated the civil rights of a person because of
its policy:
(1) an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice
that, although not authorized by written law or express
municipal policy, is so permanent and well settled as to
constitute a “custom or usage” with the force of law; or
(3) an allegation that the constitutional injury was
caused by a person with final policymaking authority.
McTigue, 60 F.3d at 382; Baxter, 26 F.3d at 734-35.
McGreal relies entirely on the third scenario to make his
case against the Village of Alsip.
McGreal points to the following admissions made by the
defendants in response to requests to admit as dispositive
of the issue:
In initiating the process to terminate Officer McGreal,
Chief Wood was acting as a municipal policymaker with
final policymaking authority in that regard.
In seeking to force Officer McGreal to undergo psycho-
logical counseling, Chief Wood was the municipal
policymaker with final policymaking authority in that
regard.
Appellant’s Br. at 49. In support of these admissions,
McGreal cites to his Local Rule 56.1 Statement, ¶ 121,
which in turn supposedly cites to Plaintiff’s First Set of
Requests to Admit, ¶¶ 43 and 45. He cites to a portion of
Snooks’ deposition as well. The defendants contend that
McGreal’s assertion that the Village admitted Wood was a
final policymaker in his dealings with McGreal is “a
No. 02-3405 43
complete misrepresentation of the record.” Response Br. at
38. According to the defendants, they admitted only that
Wood was the final decision-maker, not the final
policymaker, in the decision to initiate termination proceed-
ings against McGreal. In support, the defendants cite to
Defendant’s Responses to First Requests to Admit at ¶ 45.
Both of the parties have done this Court a disservice with
their sloppy briefing on this very important issue. First,
when we turn to R. 53, which contains Plaintiff’s Local Rule
56.1 Statement, the page containing the cited paragraph,
¶ 121, is missing from both the official record and from the
copy provided by Plaintiff as an appendix to his brief on
appeal. Second, upon reviewing the Defendants’ Responses
to Plaintiff’s First Requests to Admit, Exhibit G to R. 100,
the actual responses do not fully support either party’s
characterization of the record. Here, instead is what the
elusive answers actually state:
43. In initiating the process to terminate Officer
McGreal, Chief Wood was acting as a municipal
policymaker with final policymaking authority in that
regard.
RESPONSE Admit.
45. In seeking to force Officer McGreal to undergo
psychological counseling, Chief Wood was the final
policymaker with final policymaking authority in that
regard.
RESPONSE Deny.
R. 100, Ex. G., ¶¶ 43 and 45.2 Third, and equally frustrat-
ing, is the absence from the record of that portion of Snooks’
deposition on which McGreal also relies.
2
The plaintiff concedes in his reply brief that the defendants
admitted only Request 43 in discovery but maintains that this
admission alone is sufficient to establish municipal liability.
44 No. 02-3405
In the end, the record tells a conflicted tale. McGreal at
first incorrectly reported that the defendants admitted ¶ 45
of the First Requests to Admit. The Village incorrectly
characterized its admission regarding Chief Wood as
applying only to “decision-making” rather than
“policymaking.” The Village clearly admitted Wood was a
policymaker in some regards but denied it in others. Nor
can the Village claim that McGreal has completely misrep-
resented the record because he has accurately reported at
least one part of the admission. We will hold the Village to
its admission regarding Chief Wood and turn to the cases to
consider whether this admission is adequate to generate a
genuine issue of material fact under the standard set by
Monell and its progeny.
“It is true that a single act or decision of a final
policymaker can establish municipal policy.” Baxter, 26 F.3d
at 735; Pembaur v. City of Cincinnati, 475 U.S. 469, 480
(1986). As a corollary of this point, the plaintiff must first
allege that a defendant is a final policymaker. Baxter, 26
F.3d at 735. Only then can a court proceed to the next
question of whether the single act or single decision of that
defendant constituted municipal policy. Id. Here, of course,
the plaintiff not only alleged that one of the defendants was
the final policymaker in regard to the act in question, but
the defendants actually admitted that this was the case.
The defendants conceded that Chief Wood was acting as a
municipal policymaker with final policymaking authority in
regards to initiating termination proceedings against
McGreal.
[A] government frequently chooses a course of action
tailored to a particular situation and not intended to
control decisions in later situations. If the decision to
adopt that particular course of action is properly made
by that government’s authorized decisionmakers, it
surely represents an act of official government “policy”
as that term is commonly understood. More impor-
No. 02-3405 45
tantly, where action is taken by those who establish
governmental policy, the municipality is equally re-
sponsible whether that action is to be taken only once
or to be taken repeatedly.
Pembaur, 475 U.S. at 481. Under this standard, Wood’s
initiation of termination proceedings against McGreal in
retaliation for McGreal’s public speech is an act attributable
to the municipality because the municipality has conceded
that Wood was acting as a municipal policymaker in that
respect.
Normally we look to state law to determine whether a
§ 1983 defendant is the kind of decision-maker with final
authority whose actions can subject a municipality to
liability. Radic v. Chicago Transit Authority, 73 F.3d 159,
161 (7th Cir. 1996), cert. denied, 517 U.S. 1247 (1996);
Abbott v. Village of Winthrop Harbor, 205 F.3d 976, 982
(7th Cir. 2000). Despite their admission, the defendants in
the instant case now claim that a police chief cannot be a
final policymaker as a matter of Illinois law. They rely on
Auriemma v. Rice, 957 F.2d 397, 399-400 (7th Cir. 1992)
and Horwitz v. Board of Educ. of Avoca School Dist. No. 37,
260 F.3d 602, 619 (7th Cir. 2001), for the proposition that,
under Illinois law, neither a police chief nor a village
president are final policymakers. Neither case supports that
proposition.
Auriemma involved a charge of race discrimination in the
Chicago police department. The Municipal Code of Chicago
expressly bans racial discrimination in the police depart-
ment and grants the chief of police authority only to
administer the department in a manner consistent with the
city ordinances, state law and police board rules and
regulations. We held therefore that a decision by the chief
of police to discriminate on the basis of race would thwart
rather than implement the will of the City. Because the
chief was not the final policymaker under City ordinances,
the City could not be held liable for his actions. 957 F.2d at46 No. 02-3405
399-401. Here, of course, we are not dealing with the City
of Chicago but rather the Village of Alsip which operates
under its own codes and procedures. The Village’s policies
and ordinances are not part of the record except for the
defendants’ concession that the police chief acted as a
municipal policymaker with final policymaking authority
when he sought to terminate McGreal. Auriemma does not
aid the Village’s argument.
Horwitz does not help the Village either. The plaintiff
there sought to hold a local school board (a subdivision of a
municipality) liable for a discriminatory act by the presi-
dent of the board, a school principal and the district
superintendent. The court noted an absence of even “bare
allegations” from which to string together an argument that
the individual defendants enjoyed final policymaking
authority. Looking to state law, nothing in the Illinois
School Code allowed an inference that any of these individ-
uals had final policymaking authority. 260 F.3d at 619. It
should go without saying that the Illinois School Code does
not control the policy of the Alsip police department, so we
are again perplexed by the defendants’ reliance on this case.
In any case, Alsip’s admission distinguishes McGreal’s case
from Horwitz. In light of the defendants’ admission, Alsip
is not entitled to summary judgment on the issue of munici-
pal liability. See also, Kujawski v. Board of Commissioners
of Bartholomew County, Indiana, 183 F.3d 734, 739 (7th
Cir. 1999).
D.
Snooks argues separately that he is entitled to summary
judgment because of the dearth of evidence on his role in
the events at issue. According to the defendants, at most
Snooks followed the orders of his superiors in any actions
he took regarding McGreal, and cannot be held personally
liable for any harm McGreal suffered as a result. At this
No. 02-3405 47
stage of the litigation, we believe there is enough evidence
of personal involvement by Snooks to keep him in the case.
For example, he was the person who gave McGreal incorrect
information about the disposition of the Taylor DUI, who
demanded that McGreal name the public official allegedly
taking bribes in a gambling cover-up, and who noted on a
file jacket that original copies of police reports were re-
moved to prevent “officer digging.” Yet he is also the person
who interrogated McGreal about potential wrong-doing in
each of these events, even though he knew he had misled
McGreal about the Taylor case, knew that McGreal named
names only when ordered to do so, and knew that McGreal
was telling the truth about missing police reports. A jury
could infer that Snooks was deeply involved in the retalia-
tion against McGreal. It would be premature to grant
judgment in favor of Snooks.
E.
The final count at issue is McGreal’s Illinois statutory
claim under the Mental Health and Developmental Disabili-
ties Confidentiality Act (“Confidentiality Act”). See 740
ILCS 110/1 et seq. Chief Wood ordered McGreal to undergo
an evaluation by Dr. Ostrov, a psychologist hired by the
Alsip police department. At their first meeting, Dr. Ostrov
presented McGreal with a form titled “Consent for Evalua-
tion.” When McGreal balked at signing the consent, Dr.
Ostrov called Snooks who then ordered McGreal to sign the
form. McGreal signed the form with the notation “signed
under order of Lt. Snooks and under duress.” R. 21. The
consent form, in its entirety, provided:
I, Ofcr. James McGreal, agree and understand that Dr.
Eric Ostrov has been asked by Alsip PD to evaluate my
fitness for duty as a to [sic] Alsip PO. I understand that
Alsip PD will pay for this evaluation and that they will
receive a report based on this evaluation that will
48 No. 02-3405
include an opinion about my fitness for duty and
evidence to back that opinion. I understand Dr. Ostrov
is not my psychotherapist and that what I say to him or
communicate to him is not confidential. I understand
that if Dr. Ostrov is called upon to testify regarding this
evaluation, if appropriate, he will do so. I understand I
have a right not to cooperate with this process but that
if I do not do so, that fact will be communicated to Alsip
PD. I further understand that since Alsip PD is the
client of FPA, all data and the report resulting from
this evaluation belongs to them. Accordingly, I waive
any right I may have to know test results, interpreta-
tions made, and access to the original data from which
final judgments have been made.
R. 21.3 McGreal signed the consent, noting the duress, and
Ostrov served as a witness to his signature.
Dr. Ostrov then interviewed McGreal over the course of
three sessions. Ostrov had already been briefed by Wood,
Snooks and the Village attorney in preparation for the
evaluation. Ostrov eventually produced a 21-page report
summarizing his findings on McGreal based on his three
sessions with McGreal and his briefings from Wood, Snooks
and the Village attorney. The report, as we described
earlier, contained a great deal of personal information
about McGreal’s family life, some of it very sensitive. Ostrov
produced the report to Wood, Snooks and the Village
attorney, neglecting to label the report “confidential.” After
this law suit was filed, Wood forwarded the report to
McGreal’s colleagues at the F.O.P., ostensibly in response
to a grievance filed by McGreal. McGreal objected to the
3
We have omitted the letterhead for Forensic Psychology
Associates (“FPA”), Dr. Ostrov’s firm. We have also omitted
certain irrelevant strikeouts and misplaced punctuation for ease
of reading.
No. 02-3405 49
disclosure of the report, questioning the validity of his
consent and also the scope of the information disclosed in
the report. The defendants moved to dismiss McGreal’s
claim for breach of the Mental Health Confidentiality Act,
and the court granted the motion. The court found that
McGreal was not a “recipient” of mental health services as
that term is defined by the Confidentiality Act because he
met with Ostrov only to facilitate Alsip’s ability to evaluate
McGreal’s fitness for duty. On appeal, McGreal contends
that he is a “recipient” under the plain language of the
statute, that his consent was invalid and in any case was
later withdrawn, and that the disclosure far exceeded what
was necessary to determine his fitness for duty. The
defendants maintain that McGreal was not a recipient of
mental health services, that his consent vitiates any claim
he has regarding disclosure of information obtained by
Ostrov, and that public policy requires an exception be
made in the case of police officers being tested for fitness for
duty.
The Confidentiality Act prohibits disclosure of mental
health records and communications except as provided by
the Act. 740 ILCS 110/3(a). The records covered by the
Confidentiality Act include “any record kept by a therapist
or by an agency in the course of providing mental health . . .
service to a recipient concerning the recipient and the
services provided.” 740 ILCS 110/2. Mental health services
include but are not limited to “examination, diagnosis,
evaluation, treatment, training, pharmaceuticals, aftercare,
habilitation or rehabilitation.” 740 ILCS 110/2. A recipient
is a person who is receiving or has received mental health
services. 740 ILCS 110/2. The term “therapist” includes
psychologists, among others. 740 ILCS 110/2. Under the
straightforward terms of the Act, Dr. Ostrov, who is a
psychologist, qualifies as a therapist; his examination,
evaluation and diagnosis of McGreal constitute mental
health services; McGreal is a recipient under the plain
language; and Ostrov’s resulting report is a covered record.
50 No. 02-3405
The Confidentiality Act contains no disclosure exception for
police departments performing mental health examinations
to determine fitness for duty. It does allow for disclosure on
consent, but the consent form used here does not meet the
standards set forth by Illinois law. See 740 ILCS 110/5(b)
(listing what is required for valid consent).
The Illinois Supreme Court notes that the “Confidential-
ity Act is carefully drawn to maintain the confidentiality of
mental health records except in the specific circumstances
explicitly enumerated.” Norskog v. Pfiel, 755 N.E.2d 1, 9
(Ill. 2001) (quoting Sassali v. Rockford Memorial Hospital,
693 N.E.2d 1287 (Ill. App. 2d Dist.1998)).
In each instance where disclosure is allowed under the
Act, the legislature has been careful to restrict disclo-
sure to that which is necessary to accomplish a particu-
lar purpose. Exceptions to the Act are narrowly crafted.
When viewed as whole, the Act constitutes a “strong
statement” by the General Assembly about the impor-
tance of keeping mental health records confidential.
That a high value is placed on privacy is evidenced by
the fact that the privilege afforded a recipient of mental
health treatment continues even after the recipient’s
death.
Norskog, 755 N.E.2d at 10 (internal citations omitted). The
Court also noted that it was in the public interest to
zealously guard against erosion of the confidentiality
provision. Id. Therefore, “anyone seeking the nonconsensual
release of mental health information faces a formidable
challenge and must show that disclosure is authorized by
the Act.” Id.Consent to disclose, as we have noted, is one of the
exceptions to strict confidentiality under the Act. “Section
5 of the Act makes it clear that a recipient may consent to
disclosure of information for a limited purpose and that any
agency or person who obtains confidential and privileged
No. 02-3405 51
information may not redisclose the information without the
recipient’s specific consent.” Norskog, 755 N.E.2d at 14. The
release of information for a limited purpose under the
consent provision does not operate as a general waiver of
the confidentiality privilege. Id. The Court in Norskog
strictly construed the statutory exceptions to confidentiality
and refused to recognize a “fundamental fairness” exception
under the circumstances of that case. Norskog, 755 N.E.2d
at 14-18.
In tension with the Illinois Supreme Court’s ruling is
Sangirardi v. Village of Stickney, 793 N.E.2d 787 (Ill. App.
1st Dist. 2003). Sangirardi was discharged from his duties
as a Stickney police officer when he refused to obey an order
requiring him to consent to the release of the results of a
mental health “fitness for duty” exam. The chief of police
had ordered the fitness exam based on reports from a
detective, a citizen, a police officer and a sergeant complain-
ing about Sangirardi’s conduct. Sangirardi, 793 N.E.2d at
798. Sangirardi first resisted the exam and then refused to
allow the release of the results to the police chief. After he
was fired for insubordination, he brought an administrative
action challenging his discharge. The Village Board of Fire
and Police Commissioners found that the police chief had
reasonable cause to order the fitness exam and that there
was a strong public interest in the department assuring
that officers have the psychological stability to perform
their duties as police officers. 793 N.E.2d at 794. The Board
upheld the discharge and Sangirardi appealed through the
Illinois courts.
The Court of Appeals noted that, under Illinois law, a
police chief has the authority to order an officer to submit
to a fitness exam:
The authority to order fitness exams is justified by the
unique, almost paramilitary nature of police depart-
ments and the critical importance of police officers to
public health and safety. By necessary implication, the
52 No. 02-3405
police department must have access to the ultimate
fitness determination of such exams in order to deter-
mine whether officers are capable of performing their
duties.
Sangirardi, 793 N.E.2d at 798. See also Haynes v. Police
Board of the City of Chicago, 688 N.E.2d 794, 797-98
(Ill. App. 1st Dist. 1997) (police officer’s refusal to obey
a direct order was not justified by his mistaken belief that
he should not have to take a psychological examination);
Conte v. Horcher, 365 N.E.2d 567, 568-69 (Ill. App. 1st Dist.
1977) (police chief has the power to order a psychiatric
examination of a police officer to determine whether the
officer is able to perform the duties required for the job and
to assure the effective performance of the department). The
court found that the chief’s order that Sangirardi submit to
a fitness exam was based on multiple complaints about the
officer’s conduct. As such, it was a reasonable order. 793
N.E.2d at 798. Because the order to take the exam was
reasonable, then logically, the police chief was entitled to
view the results of the exam. Id. The court distinguished a
number of confidentiality cases on the ground that none
involved the disclosure of officers’ fitness exams to their
superiors. Ultimately, the court ruled, the recipient’s
expectation of privacy is dispositive in determining the
disclosure of mental health information. 793 N.E.2d at 799.
The court rejected Sangirardi’s claim that he retained an
expectation of privacy because he refused to sign the
consent form. The court found that, as a police officer,
Sangirardi had no reasonable expectation that the results
of his fitness exam would be kept confidential from the
police chief because “fitness exams are part and parcel of
the process officers must undergo in order to be hired and
retained.” The court ruled that the Act was not applicable
to the facts presented, where the police chief’s testimony
and order established that he did not compel the release of
Sangirardi’s mental health records, but only the ultimate
fitness for duty recommendation. 793 N.E.2d at 799.
No. 02-3405 53
We believe this ruling is in tension with the Illinois
Supreme Court’s holding in Norskog, which allows for
disclosures only under the narrow exceptions defined by the
statute, but we need not resolve that tension here.4 The
crux of McGreal’s complaint is that the department had no
valid reason to order him to submit to the fitness exam in
the first place. He maintains they were simply trying to
manufacture a reason to fire him in retaliation for his
exercise of his First Amendment rights. Even under
Sangirardi the department would not be entitled to require
a mental health exam for this purpose. Moreover, under
Sangirardi, the defendants were not entitled to disclosure
of anything other than the fitness for duty determination.
They were not entitled under any Illinois law to force the
disclosure of the intimate and irrelevant details of
McGreal’s home life. Finally, McGreal claims that dissemi-
nation of the report was broader than necessary to deter-
mine his fitness for duty and also that the defendants
republished the information without his further consent as
required by the Confidentiality Act. Under these circum-
stances, McGreal is entitled to have a jury hear his claim
and determine whether the defendants reasonably ordered
the exam and whether the disclosure and republication
4
We note that the Court of Appeals could have served the
competing public policy interests in maintaining mental health
confidentiality and ensuring a mentally fit police force by simply
requiring the use of the consent form detailed in the statute at
740 ILCS 110/5. For example, if the officer disobeyed a reasonable
order to submit to a mental health exam and refused to sign a
valid consent to the disclosure necessary to determine fitness for
duty, then the police department would be justified in discharging
the officer. An officer could choose not to consent to disclosure but
could not, in that instance, retain his position as a police officer.
Use of the consent provision would ensure that all parties were
aware of their rights and duties under Illinois law and would not
require an exception outside the statutory scheme.
54 No. 02-3405
exceeded the scope necessary to determine fitness for duty.
Such a claim would be consistent with both Norskog and
Sangirardi. We therefore reverse the district court’s
judgment in favor of the defendants on the Confidentiality
Act claim and remand for a trial on the merits.
III.
In summary, we find that the district court erroneously
granted summary judgment in favor of the defendants on
McGreal’s First Amendment claim and on his Confidential-
ity Act claim. We reverse that judgment and remand for a
trial on these claims consistent with this opinion. Circuit
Rule 36 shall apply on remand.
REVERSED AND REMANDED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-10-04