Campion Barrow & Associates, I v. City of Springfield Illinois ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1947
C AMPION, B ARROW & A SSOCIATES, INC., and
M ICHAEL A. C AMPION,
Plaintiffs-Appellants,
v.
C ITY OF S PRINGFIELD, ILLINOIS,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 06-3215—Jeanne E. Scott, Judge.
A RGUED S EPTEMBER 17, 2008—D ECIDED M ARCH 24, 2009
Before M ANION, W OOD , and W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. The firm of Campion, Barrow &
Associates, led by Dr. Michael Campion, provides psycho-
logical services to police and fire departments in the
central Illinois area. (We refer to both as Campion
unless the context requires otherwise.) For many years,
one of its clients was the City of Springfield. This case
arose when the City decided to terminate its relationship
2 No. 08-1947
with Campion and enter into a new agreement with
psychologist Dr. Paul Detrick. Campion believes that it
did so because of a newspaper article reporting his affilia-
tion with the Illinois Family Institute (“IFI”), an organiza-
tion with conservative views on such topics as marriage,
abortion, homosexuality, and stem cell research. After
losing his contract with the City, Campion sued it under
42 U.S.C. § 1983 and state law, asserting that the City
had violated his First Amendment right of freedom of
association, that it had retaliated against his exercise of
his First Amendment right of freedom of speech, and
that it had breached its contract with him. The district
court granted summary judgment in the City’s favor. We
conclude that it was correct to do so; while Campion’s
affiliation with IFI was indeed protected, he has not
come forward with enough admissible evidence to
support a finding that this affiliation or his speech
prompted the City’s action. We therefore affirm.
I
Campion began providing psychological screening
for the City’s police and fire departments in 1990. Over
the years, he performed these tasks under a series of
different contracts. The most recent of those became
effective on June 1, 2000. The 2000 contract expressly
stated that it “shall automatically renew itself each year
thereafter” unless either party provides notice of termina-
tion. The agreement also authorized payments from the
City to Campion up to a ceiling of $21,000. This did not
mean that Campion’s compensation was so limited,
No. 08-1947 3
however; it just meant that the City Council had to
modify the contract periodically to approve additional
payments. And indeed, the City Council regularly
passed ordinances authorizing greater payments to
Campion.
It is difficult to pinpoint the exact moment when the
parties’ relationship began to unravel, but some or all
of the following facts may have made a difference. On
April 1, 2003, Timothy Davlin became mayor of Spring-
field. Davlin thought that pre-employment psycho-
logical evaluations were a waste of time and money, and
he made no secret of his opinion. Nevertheless, after
Davlin asked for an opinion from a City attorney about
the necessity of the services, the attorney advised him
to continue with them, and Davlin did so.
So matters stood when, on August 24, 2004, the Illinois
Times, a Springfield newspaper, ran a column written by
reporter Dusty Rhodes entitled “Partial Disclosure.” The
story criticized Campion for failing to disclose on his
resume the fact that he had been on IFI’s board of directors
since 1999. Over the next two months, Rhodes wrote
two additional articles discussing Campion, his involve-
ment with IFI, and his work for the City. Shortly after
these articles appeared, Alderman Frank McNeil went
to Mayor Davlin and said “Hey, this guy’s got to go. He’s
out of touch with the mainstream. He has an absolute
right to his conservative views, and we have an absolute
right to change reviewers.” Most of the rest of Spring-
field’s ten aldermen did not recall seeing Rhodes’s
column before they were deposed in Campion’s lawsuit.
4 No. 08-1947
Moreover, Davlin had no recollection of either the
column or of McNeil’s statement (which, taking the facts
in the light most favorable to Campion, we assume
was uttered).
McNeil made further efforts to have Campion removed
from the City’s work. At one point, he recommended
possible providers to replace Campion. McNeil inferred
from Campion’s association with IFI that Campion held
extremely conservative views on a number of issues, and
he speculated that Campion’s personal views might
be affecting his decisionmaking process when he per-
formed psychological screenings for the City. Alderman
Edwards, who had formerly been chief of the City’s
Fire Department, shared Davlin’s skepticism about the
usefulness of the evaluation process. At one point, accord-
ing to one of Rhodes’s articles, Edwards commented “This
guy’s got no consistency. . . . The people I thought
would’ve been squashed, he passed. I’m just a novice
reading this, but if a guy had a beer, he was out.”
After the publication of Rhodes’s first article, in Decem-
ber 2004, the City Council approved an extension of the
Campion contract and additional payments. By Janu-
ary 2005, however, it was hunting for a new psychologist.
That search led to Detrick, who charged less per applicant
than Campion. On May 17, 2005, the Council passed
Ordinance 344-05-05 (“Detrick ordinance”) on an emer-
gency basis; that ordinance authorized the execution of
a contract with Detrick for the provision of the City’s
psychological testing services. The use of the emergency
procedure eliminated the need for two readings of the
No. 08-1947 5
ordinance at two separate council meetings, but it also
imposed a requirement of a supermajority of eight of the
ten alderman for passage. In fact, the vote was
unanimous to enter into the Detrick contract. Most alder-
men stated under oath that they did not know why
the City was changing psychologists, and that the
choice was up to the mayor. Every alderman except
McNeil stated that Campion’s personal views and
political associations were not a factor in their decision
to vote for the Detrick ordinance.
After the passage of the Detrick ordinance, the City
began referring all applicants to Detrick for testing. It
did not give Campion 30 days’ written notice that his
contract was terminated. What it did instead was to
pass an additional ordinance authorizing additional
payments to Campion for services previously rendered.
After that, Campion filed this action, initially against
each individual alderman and the mayor, as well as the
City, asserting his First Amendment and breach of con-
tract theories. The district court dismissed the claims
against the individual defendants, leaving only the
claim against the City at this point; Campion has not
challenged that action on appeal. On the City’s motion
for summary judgment, the district court held that, while
Campion’s speech was protected, he had failed to demon-
strate that his protected activity was a motivating factor
in the City’s decision to terminate his contract. In addi-
tion, the court held, it was the City Council that had
final policymaking authority with respect to the decision
to enter into the Detrick contract, and Campion failed to
show that a significant bloc of aldermen were motivated
6 No. 08-1947
by Campion’s protected speech or associations. Campion
contests all of those findings on appeal. The court declined
to exercise supplemental jurisdiction over Campion’s
contract claim.
II
In order to prevail on his § 1983 claim, Campion
must prove (1) that he was engaged in constitutionally
protected speech or associations, and (2) that his pro-
tected speech was a motivating factor behind the City’s
decision to terminate his contract in favor of Detrick.
If he can point to evidence supporting both of those
propositions, the City would then be entitled to show
that it would have taken the same action even in the
absence of Campion’s exercise of his First Amendment
rights. Samuelson v. LaPorte Community School Corp., 526
F.3d 1046, 1053 (7th Cir. 2008); Spiegla v. Hull, 371 F.3d
928, 942 (7th Cir. 2004) (plaintiff has the burden of proof
on the question whether protected activity was a motivat-
ing factor for defendant’s retaliatory action). Here, the
City concedes that Campion’s speech and associations
were constitutionally protected. The only question
is therefore whether Campion has produced enough
evidence to require a trial on the question whether
his protected activity was a factor that motivated the
City’s decision on the contract.
Campion detects three errors in the district court’s
approach to his case: first, he argues that it erred in con-
cluding that the City Council, rather than Mayor Davlin,
had final policymaking authority over the choice of
No. 08-1947 7
contractor; second, he argues that he did present enough
evidence to survive summary judgment; and finally,
he finds fault in the district court’s implicit legal con-
clusion that he could prevail only if a significant bloc of
aldermen were motivated by his protected activity. We
address these points in turn.
1. Final policymaking authority. Campion is trying to
hold the City itself liable for the loss of his contract, which
he is entitled to do under Monell v. New York City Dept. of
Social Servs., 436 U.S. 658 (1978). But, as the Supreme Court
recently reiterated in the analogous context of a case
raising an Equal Protection challenge, “[a] plaintiff
stating a similar claim via § 1983 for violation of the
Equal Protection Clause by a school district or other
municipal entity must show that the harassment was
the result of municipal custom, policy, or practice.”
Fitzgerald v. Barnstable School Comm., 129 S.Ct. 788, 797
(2009). One way that municipal custom, policy, or prac-
tice can be shown is by demonstrating a “deliberate
choice to follow a course of action . . . from among various
alternatives by the official or officials responsible for
establishing final policy, with respect to the subject
matter in question.” Pembaur v. City of Cincinnati, 475 U.S.
469 (1986). See also Gernetzke v. Kenosha Unified Sch. Dist.
No. 1, 274 F.3d 464, 469 (7th Cir. 2001). A person’s status
as a final policymaker for the purposes of § 1983 is a
question of state or local law. Kujawski v. Bd. of Comm’rs,
183 F.3d 734, 737 (7th Cir. 1999).
In order to satisfy these standards, Campion is forced
to rely on a convoluted argument. It was not the City
8 No. 08-1947
Council alone that had final policymaking authority, he
suggests; instead, it was a combination of Mayor
Davlin and the Council. He contends that Davlin first
selected a replacement provider (Detrick); next, the
Council, acting in concert with him, enacted the ordi-
nance authorizing the funding for the Detrick contract;
and finally, the mayor had to sign the ordinance and
contract. This shows, Campion believes, that the
Council and Davlin jointly exercised final policymaking
authority. The City has a simpler view: it asserts that
the Council alone had the final policymaking authority,
because under local law, only the Council could
authorize the agreement to switch psychologists.
We do not exclude the possibility that the kind of power-
sharing arrangement that Campion postulates might
exist in some circumstances, either de jure or de facto. But
Campion has not brought forward any evidence that
would permit a finding that this was the way Spring-
field was handling its psychological testing contract.
First, the law is against him. Under Illinois law, only
the City Council could authorize the agreement to
change the contract from one provider to another. See 65
ILCS 5/8-1-7(a); Springfield Municipal Code §§ 31.05, 31.11,
38.35, and 38.44. Any contract over the amount of
$15,000 must be approved by the City Council. Springfield
Municipal Code § 38.35. Notably, Mayor Davlin did not
act unilaterally when he set about changing the contract
from Campion to Detrick. Instead, he sought the City
Council’s consent, implying that he did not have the
ability to act by himself. Campion responds that the
Detrick contract was not complete until Davlin signed it,
No. 08-1947 9
but even that is not quite accurate. Under the municipal
code, if the mayor refuses to sign an ordinance (effectively
vetoing it), the ordinance can be passed again by two-
thirds of all aldermen holding office. After that vote
(which was exceeded here, incidentally), the new rule or,
as here, testing arrangement, takes effect.
Campion introduced no evidence tending to show that
this was not the real process followed by the Council,
either in this particular case or as a rule. He thus cannot
prevail on the theory that there was an established munici-
pal custom giving the mayor the de facto power to
handle matters like this unilaterally or to impose his
wishes on the Council and use it as a rubber stamp.
2. Insufficiency of evidence. Campion also complains that
the district court erred when it concluded that he “failed
to present evidence that Campion’s protected activity
was a motivating factor for the City Council’s decision
to switch psychologists.” He relies on eight factual asser-
tions, which, in his view, support a reasonable inference
in his favor. Those assertions are as follows:
• Timing of decision to change contracts in relation to
the publication of the Rhodes articles;
• Tumultuous political climate after the City learned of
Campion’s affiliation with IFI;
• Statements made by Davlin, McNeil, Edwards, and
Alderman Strom;
• Evidence indicating that aldermen capitulated to
McNeil’s and Davlin’s unlawful motives;
10 No. 08-1947
• Use of the emergency mechanism to pass the ordi-
nance authorizing the Detrick contract;
• Contradictions in Davlin’s testimony about his knowl-
edge of Campion’s IFI activities;
• Replacement of Campion with Detrick, who is out-of-
state and has less experience; and
• Contradictions in testimony of various aldermen
about their reasons for replacing Campion.
There are a host of problems with these supposed
items of evidence; we touch on only the most important
of them. First, there is no evidence in the record
indicating that all of the aldermen and Mayor Davlin
actually knew about the Rhodes article at the time they
acted to pass the Detrick ordinance. To the contrary, the
evidence suggests that all but a few were unaware of it.
Davlin testified that he did not recall either the article
or Alderman McNeil’s statement to him about it; other
aldermen testified that they had not read the article and
that they did not know about Campion’s association
with IFI when they voted to change psychologists. Cam-
pion suggests that everyone is lying, but his suspicions
alone are not enough to defeat summary judgment. See,
e.g., Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008).
For the same reasons, there is nothing to suggest that
the aldermen were capitulating to the preferences of a
vocal minority. Campion argues that while not all alder-
men were motivated by unlawful retaliation in the deci-
sion to approve the Detrick ordinance, the aldermen
“understood and capitulated to the unlawful motivation
No. 08-1947 11
of others.” This means that Campion’s theory is that all of
the aldermen were consciously willing to acquiesce in
the unlawful intent. But Campion’s evidence shows
instead that most of the aldermen knew nothing about
Campion’s IFI association or the Rhodes article when
they voted on the Detrick ordinance. Notably, Campion
does not make the argument that the aldermen merely
functioned as the “cat’s paw” of those with identifiable
retaliatory motive. His failure to develop that point is
fatal. If, hypothetically, he had wanted to urge that the
Council was functioning as the Mayor’s cat’s paw, then
he would have to contend with the evidence showing
that the Mayor’s hostility to Campion’s testing arrange-
ment significantly predated the first Rhodes article. (The
evidence, taken in the light most favorable to Campion,
may also show that the Mayor knew about McNeil’s
bias, but there is nothing to suggest that the Mayor shared
that view—indeed, Mayor Davlin himself testified that he
did not remember McNeil’s comments.) If instead Cam-
pion wanted to urge that the Council was capitulating
to Alderman McNeil (the most outspoken critic of Cam-
pion’s IFI affiliation), and him alone, he would need
some evidence indicating that both the Mayor and the
rest of the Council knew about McNeil’s views, or habitu-
ally rubber-stamped whatever McNeil wanted. None of
that evidence is in the record. This is therefore not a case
in which the evidence could support a finding that X
(the Council) relied on Y’s (the Mayor’s or McNeil’s)
intent, making it permissible to base municipal liability
on Y’s discriminatory animus.
Furthermore, this record reveals nothing untoward
about the use of the emergency procedure for passing
12 No. 08-1947
the Detrick ordinance. Although that procedure does
permit the Council to dispense with multiple readings of
the draft, it also demands a supermajority for passage.
Campion introduced no evidence indicating that the
Council reserved its emergency procedure for an
entirely different kind of bill; for all the record shows,
use of the procedure might have been routine. And finally,
the timing of the Council’s action is too weak a reed to
support Campion’s case. As we have noted before, “the
fact that a plaintiff’s protected speech may precede an
adverse employment decision alone does not establish
causation.” Mullin v. Gettinger, 450 F.3d 280, 285 (7th
Cir. 2006).
We review the district court’s evaluation of the
evidence for purposes of summary judgment de novo.
Having done so, we are satisfied that the court correctly
assessed the record before it.
3. Significant bloc analysis. This part of Campion’s chal-
lenge focuses on the following passage from the district
court’s opinion:
The face of the 2005 [Detrick] Ordinance does not
show any discriminatory or retaliatory motivation.
The Plaintiffs, therefore, must produce other evidence
to show that Campion’s protected activity was a
motivating factor for a significant bloc of the mem-
bers of the Council, and the probable complicity of
the remaining members of the Council who sup-
ported the decision.
The focus on the views of a “significant bloc” was wrong
as a matter of law, in Campion’s view, and he sees this
alleged error as important enough to warrant reversal.
No. 08-1947 13
Here, Campion touches on an important subject: how
are we to understand the way in which multi-member
bodies arrive at their collective decisions? Social choice
theory, launched by Kenneth Arrow’s leading book, Social
Choice and Individual Values (2d. ed. 1963), has a great
deal to say about this. See, e.g., Tom Ginsburg, Ways of
Criticizing Public Choice: The Uses of Empiricism and
Theory in Legal Scholarship, 2002 U. ILL. L. R EV. 1139; Cheryl
D. Block, Truth and Probability—Ironies in the Evolution of
Social Choice Theory, 76 W ASH . U. L. Q. 975 (1998). See also
Frank H. Easterbrook, Ways of Criticizing the Court,
95 H ARV . L. R EV. 802 (1982), applying public choice
theory to the Supreme Court’s decisionmaking processes.
In Scott-Harris v. City of Fall River, 134 F.3d 427 (1st Cir.
1997), a First Circuit decision on which the district court
relied, the court of appeals found that the plaintiff failed
to introduce enough evidence to support municipal
liability in part because her proof showed that only two
out of nine members of a city council harbored an unlaw-
ful motive. Id. at 439. The court criticized the plaintiff for
failing to depose the other seven council members. The
Supreme Court, however, reversed the First Circuit’s
decision in Bogan v. Scott-Harris, 523 U.S. 44 (1998), on the
ground that the legislators were absolutely immune from
any suit based on their actions in voting for a particular
ordinance. Id. at 55-56. This, in our view, cautions
sharply against any kind of reliance on “significant bloc”
analysis or its like. As Campion rightly argues, what
matters are the motives of the legislative body as a whole,
not the idiosyncratic views of each legislator. (But that, of
course, throws one right back into the complexities of
public choice theory.)
14 No. 08-1947
Interesting though these questions are, we do not need
to spend more time on them. The district court’s reference
to a “significant bloc” was just one of many points it
made along the way to its ruling in the City’s favor. We
are not bound by that court’s characterization of the
evidence. The fact remains that Campion failed to intro-
duce anything affirmatively indicating that the auth-
orized decisionmaker—the City Council—was retaliating
against him either because of his speech, or because of his
association with IFI. The record showed instead that
Campion was charging $375 per psychological evaluation,
while Detrick was willing to perform the same work for
$175 per applicant for pre-employment evaluations and
$350 for fitness-for-duty evaluations. Although Campion
may have been in the business longer, Detrick testified
that he had been conducting these evaluations since
approximately 1990, and that he had about 30 clients, all
police departments or municipalities. The City renewed
Campion’s contract in December 2004, four months after
the initial Rhodes article was published; the change in
psychologists did not happen until the following May.
In the face of that evidence, Campion bore a substantial
burden to point to something else that might have indi-
cated unlawful action. He has failed to do so.
We therefore A FFIRM the judgment of the district court
in favor of the City of Springfield.
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