Sandra Valentino v. Village of South Chicago Heigh ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 06-3882
S ANDRA L. V ALENTINO,
Plaintiff-Appellant,
v.
V ILLAGE OF S OUTH C HICAGO H EIGHTS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CV 2373—William J. Hibbler, Judge.
A RGUED M AY 12, 2008—D ECIDED JULY 30, 2009
Before R OVNER, E VANS, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. In 2001, nepotism was alive
and well in the Village of South Chicago Heights. Its small
municipal government employed at least six members of
its mayor’s extended family, and several of his friends and
campaign supporters. When Sandra Valentino allegedly
discovered that the Village was paying several of these
employees for hours that they did not actually work, she
2 No. 06-3882
discussed the situation with the future head of Citizens
Against Corruption, William Bramanti. Bramanti sent a
letter to the citizens of the Village detailing this alleged
ghost payrolling and otherwise criticizing Mayor David
Owen. Coincidentally, the next business day, Village
Administrator Paul Petersen surreptitiously searched
Valentino’s desk and discovered that she had been photo-
copying the office’s employee sign-in sheets. Later that
day, on the say-so of Mayor Owen, Petersen terminated
Valentino’s employment.
Valentino brought claims against Owen, Petersen, and
the Village for First Amendment retaliation in violation
of 42 U.S.C. § 1983 and for retaliatory discharge under
Illinois law. Although the district court found that
Valentino had stated a prima facie case for retaliation, it
granted summary judgment for Defendants because it
concluded that they had put forth a lawful, plausible
reason for terminating Valentino, which she could not
prove was pretextual. The district court also found that
the Village was immune to Valentino’s Illinois tort claim
under section 2-201 of the Illinois Tort Immunity Act.
We agree with the district court that Valentino was
speaking on a matter of public concern and that she
stated a prima facie case for retaliation. However, we
find that she has proffered sufficient evidence to cast
serious doubt on the legitimacy of Defendants’ stated
reason for terminating her, such that a reasonable jury
could conclude that it was a mere pretext for firing her
for speaking out against the purported ghost payrolling.
Further, we find that the district court erred in applying
No. 06-3882 3
section 2-201 of the Illinois Tort Immunity Act because
it failed to consider that in order to be immune under
this section, the alleged unlawful act must be a “policy
decision.” For these reasons, we reverse the district
court’s grant of summary judgment to Defendants.
I. BACKGROUND
Sandra Valentino began working as a part-time
secretary in the Village of South Chicago Heights’
building department in 1989. From 1995 until 1997, she
worked under William P. Bramanti, a building inspector
with the Village. In 1997, the Village transferred her to
the water department, where she performed various ad-
ministrative tasks.
In November 2001, the Village hired Joe Minotti as a
water inspector. Minotti allegedly told Valentino that he
was hired because he was a “vote getter” for Defendant
Mayor David Owen and an active supporter of his cam-
paign for office. Valentino also allegedly observed that
Minotti failed to send certain citizens appropriate
water bills, failed to shut off their water in a timely man-
ner, and fraudulently handled the purchase of his new
home. After Valentino presented Minotti with a list of
those water accounts that she believed he improperly
handled, and complained about his actions to Mayor
Owen, several Village Trustees, and Defendant Paul
Petersen, Village Administrator, both Minotti and
Valentino received reprimands.
Her concern about Minotti, whom the Village hired
without prior public works experience, caused Valentino
4 No. 06-3882
to become skeptical of the Village’s, or, more specifically,
Mayor Owen’s, hiring practices. Valentino notes that the
Village employs several of Mayor Owen’s friends and
relatives, including Eric Faoro, Owen’s son-in-law; Erika
and Yvette Owen, Owen’s daughters and Petersen’s
nieces; Scott Owen, Owen’s son and Petersen’s nephew;
Sally Marrufo, and Ron Diederich. Valentino became
suspicious that Mayor Owen sanctioned the “ghost
payrolling” of these persons—that is, Valentino believed
that the Village paid them salaries for hours that they
did not actually work. Valentino noticed that several of
these employees were rarely in the office but still received
weekly paychecks. She communicated her concerns to
Bramanti, who had quit in late 2001 or early 2002 because
of conflicts with Owen. In these conversations, Valentino
expressed her negative view of the nepotism in the Vil-
lage’s hiring practices.
After Valentino shared her suspicions with Bramanti,
he submitted a series of requests pursuant to the
Freedom of Information Act, looking to obtain copies of
the time cards and sign-in sheets for Owen’s associates
and relatives. Petersen initially denied Bramanti’s re-
quests. On February 3, 2003, the same day that Petersen
sent a letter to Bramanti denying his requests, Mayor
Owen told another employee, Rose Bautista, that
“[Valentino] is going to get her butt canned,” ostensibly
because of her relationship with Bramanti.1 Several days
1
Although there is no direct evidence that Owen or Petersen
knew that Valentino was communicating with Bramanti
(continued...)
No. 06-3882 5
later, Mayor Owen overruled Petersen and released
certain time records to Bramanti.
In the meantime, starting in February 2003, Valentino
began to make copies of the daily sign-in sheets, in part to
verify her suspicions regarding ghost payrolling and in
part to determine if the Village was unfairly docking
her pay when she was tardy, while not docking the pay
of other Village employees. These sign-in sheets were
left on the office counter, and employees, when they
arrived at and left from the office, were supposed to
sign in and out. Valentino communicated her observa-
tions regarding these sign-in sheets to Bramanti.
On February 28, 2003, when he did not receive a full
response to his FOIA requests and learned of Valentino’s
observations regarding ghost payrolling, Bramanti,
through his organization, Citizens Against Corruption,
sent a letter to the citizens of the Village accusing Owen
of ghost payrolling his relatives and of various other
indiscretions.
On March 3, 2003, the next business day after he sent
this letter, and days after he submitted another FOIA
request to the Village, Valentino arrived at her desk and
(...continued)
regarding ghost payrolling, it is undisputed that they knew
that both Bramanti and Valentino were concerned about
employment practices at the Village and that they were
friends. Moreover, Petersen testified that he told Sally Marrufo
not to talk to Valentino because she would pass informa-
tion along to Bramanti.
6 No. 06-3882
found Petersen waiting for her. Before Valentino’s
arrival, Petersen had searched her desk and found copies
of the employee sign-in sheets. Petersen consulted with
Owen, who instructed Petersen to ask the Village’s legal
counsel if Owen could fire Valentino because she
copied these sign-in sheets. Counsel told Petersen that
copying the sign-in sheets was a lawful reason to
terminate Valentino, and Petersen terminated her on
March 3, 2003, after fourteen years of service to the Village.
Valentino (and Bramanti, who is not a party to this
appeal) filed this section 1983 action, claiming that Owen,
Petersen, and the Village retaliated against her for exer-
cising her First Amendment rights and speaking out
against Defendants’ practices of nepotism and alleged
ghost payrolling. The district court granted summary
judgment for Defendants, and Valentino now appeals.
II. ANALYSIS
A. Valentino Has Satisfied All the Necessary Require-
ments to Reach Trial on Her Retaliation Claim
In order to establish a prima facie case of unlawful
First Amendment retaliation, a public employee must
establish that: (1) she engaged in constitutionally pro-
tected speech; (2) she suffered a deprivation likely to deter
her from exercising her First Amendment rights; and
(3) her speech was a motivating factor in her employer’s
adverse action. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.
2006). If a plaintiff establishes a prima facie case, the
burden shifts to the employer to demonstrate that it
No. 06-3882 7
would have taken the same action in the absence of the
protected speech. Id. at 717. If the employer carries this
burden, the plaintiff may still reach trial by producing
sufficient evidence to allow a reasonable fact finder
to determine that the employer’s reasons were merely
a pretext for firing the employee, at least in part, for exer-
cising her First Amendment rights. Id. We review
de novo the district court’s grant of summary judgment
to Defendants based on its finding that a plaintiff failed
to proffer sufficient evidence of pretext. Id. at 716.
1. Valentino Established a Prima Facie Case of Retali-
ation
There is no dispute that Defendants, in firing Valentino,
caused her to suffer an adverse action likely to chill her
freedom of speech. The only questions for us to resolve
in determining whether Valentino has stated a prima
facie case for retaliation is whether she engaged in con-
stitutionally protected speech and whether a reason-
able fact finder could determine that her speech was a
motivating factor behind her termination.
Valentino, as a public employee, does not relinquish
all First Amendment rights merely because she works
for the government. Brooks v. Univ. of Wisc. Bd. of Regents,
406 F.3d 476, 479 (7th Cir. 2005). That said, she does not
have an unfettered right to express herself on all matters
related to her public employment. Id. Instead, she has a
protected right, in certain circumstances, to speak as a
citizen addressing matters of public concern. Garcetti v.
8 No. 06-3882
Ceballos, 547 U.S. 410, 416-17 (2006). When “public em-
ployees make statements pursuant to their official duties,
the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not
insulate their communications from employer disci-
pline.” Id. at 421. In order for us to find that Valentino
engaged in constitutionally protected speech, we must
determine that she spoke in the capacity of a private
citizen and spoke on a matter of public concern. Renken
v. Gregory, 541 F.3d 769, 773 (7th Cir. 2008).
Defendants argue that Valentino did not direct her
speech at the public, but rather privately confided in
Bramanti because her main concern was the docking of
her pay, rather than ghost payrolling, which is arguably
a matter of public concern. True, speech that addresses
“a private or personal interest, as opposed to a com-
munity one, does not satisfy the standards for First
Amendment protection.” Spiegla v. Hull, 371 F.3d 928, 935
(7th Cir. 2004). However, we must look at the content of
the speech as a whole, Gazarkiewicz v. Town of Kingsford
Heights, Ind., 359 F.3d 933, 942-43 (7th Cir. 2004), when
determining if it addresses a matter of public concern. In
making this argument, Defendants confuse their stated
reason for firing Valentino (photocopying of the sign-in
sheets) with her speech as a whole. Valentino admits
that she photocopied the employee sign-in sheets in part
because she was privately concerned with the docking
of her pay. However, she communicated the information
on these sheets to Bramanti, and, more importantly,
discussed her suspicions regarding the issue of ghost
payrolling with Bramanti long before she began copying
them.
No. 06-3882 9
Whether a statement rises to the level of public concern
is a question of law, and in answering this question we
look to the “content, form, and context” of the statement.
Connick v. Myers, 461 U.S. 138, 147-48, 148 n.7 (1983). Then
we balance “the interests of the [employee], as a citizen,
in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the
efficiency of the public services it performs through
its employees.” Schad v. Jones, 415 F.3d 671, 674 (7th Cir.
2005) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568
(1968)).
It is by now well-established that speech protesting
government waste addresses a matter of public concern
and is therefore entitled to constitutional protection. See,
e.g., Wainscott v. Henry, 315 F.3d 844, 849 (7th Cir. 2003)
(“An employee’s ability to highlight the misuse of
public funds or breaches of public trust is a critical
weapon in the fight against government corruption and
inefficiency.”); see also Miller v. Jones, 444 F.3d 929, 935
(7th Cir. 2006); Brooks, 406 F.3d at 484 (finding that gov-
ernment corruption is a quintessential matter of public
concern). Ghost payrolling—paying public employees
with taxpayer dollars for hours that they do not work—is
a prime example of such waste. Here, although Valentino
might have been personally concerned that the Village
was docking her pay, her comments to Bramanti
strongly implicate the public concerns of government
corruption and waste caused by ghost-payrolling. Her
speech need not be directed at supervisors or at a large
contingent of the public to be protected. It is enough
that she spoke on a matter of public concern to Bramanti,
10 No. 06-3882
a member of the public. Moreover, although we
consider the motive of the speaker as part of the “context”
in which the speech was made, see Miller, 444 F.3d at
937, “we have emphasized that speech of public impor-
tance is only transformed into a matter of private
concern when it is motivated solely by the speaker’s
personal interests.” Gazarkiewicz, 359 F.3d at 941-42 (em-
phasis added); see also Breuer v. Hart, 909 F.2d 1035, 1039
(7th Cir. 1990) (“[T]he fact that these serious allega-
tions arose in the context of what began as a personal
dispute does not in itself disqualify from protection all
speech on the topics arising from that dispute”). Given
that Defendants do not make an argument that their
efficiency concerns outweigh the public concern raised
by Valentino, we find that she has adequately shown
that she engaged in constitutionally protected speech.
The next question is whether Valentino proffered suffi-
cient circumstantial evidence to show that her protected
speech was a motivating factor in Defendants’ decision
to terminate her employment. See Massey, 457 F.3d at 717.
Valentino relies on her open complaints about her pay
being docked vis-à-vis Owen’s relatives, her relation-
ship with Bramanti, and the suspicious timing of her
firing to show that a reasonable jury could infer that
Defendants fired her because she complained about
ghost payrolling. Defendants retort that because Owen
and Petersen, the persons who made the final firing
decision, allegedly did not know that Valentino com-
municated with Bramanti regarding ghost payrolling, a
jury cannot possibly infer that they fired her in retaliation
for this communication. As the district court aptly noted,
No. 06-3882 11
it would be rare for a plaintiff to have smoking gun
evidence that a defendant knew of her protected speech
or for a defendant to admit such knowledge. Here, there
is no direct evidence that either Owen or Petersen knew
that Valentino was communicating with Bramanti. How-
ever, they knew that Valentino and Bramanti had a long-
standing personal relationship, that Bramanti was sub-
mitting FOIA requests for certain employees’ time
sheets, and that Valentino was examining the office’s
master time sheets. Further, Petersen told at least one
employee to stop talking with Valentino because she
was passing information to Bramanti. In addition, the
timing of Valentino’s termination occurred just one
business day after Bramanti released a letter to the
public regarding ghost payrolling in the Village, and
shortly after his series of FOIA requests. See id. (“Circum-
stantial proof, such as the timing of events or the
disparate treatment of similar individuals, may be suf-
ficient to establish the defendant’s retaliatory motive.”);
Culver v. Gorman & Co., 416 F.3d 540, 545-46 (7th Cir. 2005);
Holland v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1314-15
(7th Cir. 1989). Although suspicious timing in and of
itself is usually insufficient to create a triable issue, Stone
v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644
(7th Cir. 2002), the suspicious timing in this case com-
bined with Defendants’ knowledge of Valentino’s rela-
tionship with Bramanti, Petersen’s surreptitious search of
her desk, and the timing of Owen’s purported statement
that she “is going to get her butt canned” is enough
circumstantial evidence upon which a jury could conclude
that Defendants terminated her, at least in part, because
12 No. 06-3882
she spoke out against the Village’s supposed ghost
payrolling.
2. Valentino Has Presented Sufficient Evidence
From Which A Jury Could Infer that Defendants’
Stated Reason for Terminating Her Employment
Was Pretextual
Defendants contend that Valentino’s “theft” of the office
sign-in sheets was their true motivation for firing her.
Defendants claim they were worried that such “theft”
could lower office morale, foster identify theft, constitute
an invasion of the Village’s employees’ privacy, or have
other deleterious effects. The district court, finding that
“Valentino has produced no evidence that the Village’s
concern about employee privacy was pretextual,” granted
Defendants’ motion for summary judgment. In doing so,
the district court suffered the misapprehension that a
plaintiff necessarily must proffer different or additional
evidence to rebut pretext from that she used to estab-
lish her prima facie case. This is not so. Often, the same
evidence used to establish the prima facie case is suf-
ficient to allow a jury to determine that a defendant’s
stated reason for terminating a plaintiff was a mere front
for an ulterior, unlawful motive. See, e.g., McGreal v.
Ostrov, 368 F.3d 657, 681 (7th Cir. 2004) (citing Glass v.
Dachel, 2 F.3d 733, 743-44 (7th Cir. 1993)) (finding defen-
dant’s post hoc explanation of employee’s termination
“too fishy” to allow summary judgment); Holland,
883 F.2d at 1313 (holding that plaintiff may reach trial
No. 06-3882 13
by showing, through circumstantial evidence, that em-
ployer’s articulated reason for its action was not worthy
of credence and was thus pretextual); Collin v. Illinois,
830 F.2d 692, 705 (7th Cir. 1987) (same).
Here, there are several factors that a jury may examine
in deciding not to give credence to Defendants’ stated
reason for firing Valentino. Valentino did not “steal” the
sign-in sheets. She did not remove them from the
Village’s office. She simply photocopied them and
stored them in her desk. We fail to see how this behavior
differs from Valentino simply writing down the times
that each employee clocks in and out. Any argument
pertaining to the privacy of the information on these
sheets is specious at best. The sign-in sheets were
publicly displayed in the office, and the Village enacted
the sign-in policy to create transparency in the arrival
and departure times of the Village’s employees. Moreover,
the Village had already publicly released some of the
information on these sign-in sheets when it partially
granted Bramanti’s FOIA requests. Given that these times
were available for all to see, a jury may be hard pressed
to find any substantial privacy concerns implicated in
Valentino’s copying of them. With regards to Defendants’
professed fear that Valentino was committing “identity
theft,” unless the employees were required to sign into
work using their social security and credit card numbers,
we fail to see any evidence that even remotely supports
this belief.
These factors, combined with the fact that Petersen
singled out Valentino’s desk to be searched after hours,
14 No. 06-3882
make the Village’s explanation “too fishy”, or, put another
way, “too convenient,” to allow summary judgment in
Defendants’ favor. It seems unlikely that Petersen would
randomly decide to search only Valentino’s desk and
terminate her shortly thereafter, coincidentally, on the
same day that Bramanti’s latest letter was released. See
McGreal, 368 F.3d at 681 (“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 De-
partment.”). This is especially true because Valentino’s
termination occurred without warning after nearly
fifteen years of uninterrupted service. See Spiegla, 371
F.3d at 943 (“Taken together, the closely related sequence
of events, Spiegla’s long and uninterrupted tenure, and
Johnson’s anger with Spiegla demonstrate that Spiegla’s
speech was a motivating factor in the decisions to
transfer her and to change her shift.”).
This is not to say that it is impossible for Defendants
to have been motivated, in part, by Valentino’s photo-
copying of the sign-in sheets when they decided to termi-
nate her employment. However, as we have stated before,
a retaliatory animus need not be the sole motive behind
a termination decision for a plaintiff to have an
actionable claim. Id. at 942. Rather, it need be only one
factor in the employer’s decision. Id. (“[A] motivating
factor does not amount to a but-for factor or to the
only factor, but is rather a factor that motivated the de-
fendant’s actions.”). Since Valentino has shown that a
No. 06-3882 15
reasonable jury could find that an improper purpose was
a motivating factor in her termination, the burden shifts
to Defendants “to prove by a preponderance of the evi-
dence that the same actions would have occurred in the
absence of the protected conduct.” Id. at 943 (citing
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977)). Here, Defendants have failed to meet that
burden. Aside from showing that Defendants’ proffered
reason is specious at best, the evidence establishing
Valentino’s prima facie case is substantial enough to
allow a jury to infer that Defendants’ assertion that they
fired Valentino for “theft” of the sign-in sheets was
mere pretext. Given that the evidence Valentino has
offered established a prima facie case of retaliation, and
is enough to rebut Defendants’ proffered reason for
terminating her, we reverse the districts court’s grant of
summary judgment to Defendants.
B. Valentino’s Monell Claim May Proceed to Trial
Because the Evidence Indicates That Mayor Owen
Was a Policymaker for the Village Regarding Hir-
ing/Firing Decisions
A municipality, such as the Village, may be liable for a
section 1983 violation if, among other things: (1) it has a
permanent and well-settled municipal custom or prac-
tice that, although not authorized by official law or
policy, was the moving force behind the plaintiff’s consti-
tutional injury; or (2) an individual with final policy-
making authority for the municipality (on the subject
in question) caused the constitutional deprivation. Monell
16 No. 06-3882
v. City of New York, 436 U.S. 658, 690 (1978); Simmons v.
Chicago Bd. of Educ., 289 F.3d 488, 494 (7th Cir. 2002).
Monell liability is not a form of respondeat superior;
instead, a municipality can only be held liable “when
execution of [its] policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury that
the government as an entity is responsible for under
section 1983.” Monell, 463 U.S. at 694. Here, Valentino
seeks redress under both of the aforementioned theories.
As to the first theory, the district court correctly con-
cluded that Valentino could not show that the Village
had a custom or practice of sanctioning retaliation in
violation of the First Amendment. Valentino alleges
that Mayor Owen had denied benefits or otherwise at-
tempted to quash the speech of former political
opponents and their associates.2 “If the same problem
has arisen many times and the municipality has
acquiesced in the outcome, it is possible (though not
necessary) to infer there is a policy at work.” Lewis v. City
of Chicago, 496 F.3d 645, 656 (7th Cir. 2007) (quoting Phelan
v. Cook County, 463 F.3d 773, 789 (7th Cir. 2006) (quoting
2
Among other things, Valentino alleges that Owen and/or
Petersen: (1) denied a political opponent, Joe Kudra, insurance
benefits; (2) denied a supporter of Kudra, Rosario DelGroso,
“pickup of debris that would otherwise normally take place”;
(3) sent a letter to Valentino’s stepfather, demanding that he
pay $3.25 or have his water shut off; and (4) threatened to
fire George Ellis unless he moved out of the house of one of
Owen’s political rivals.
No. 06-3882 17
Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005))).
Valentino has failed to establish that the Village has
condoned a continual practice of terminating employees
who speak out against Mayor Owen or his political allies.
Valentino does not contend that any of these alleged
instances of retaliation ever resulted in a meritorious
lawsuit or settlement. Further, she does not provide
tangible evidence of what exactly these persons’ “speech”
consisted of or whether it was constitutionally pro-
tected. She also fails to adequately delineate how
Owen’s response to these persons’ speech was designed
to quell their First Amendment expression. In short,
although Valentino presents evidence of possible retalia-
tion against others, she does not show how these separate
incidents weave together into a cognizable Village pol-
icy. She fails to “introduce evidence demonstrating that the
unlawful practice was so pervasive that acquiescence on
the part of policymakers was apparent and amounted to a
policy decision.” Phelan, 463 F.3d at 790.
Valentino’s second theory, that Owen was the official
policymaker for the Village on issues involving hiring
and firing, merits further scrutiny. It is well-established
that when a particular course of action is directed by
those who set municipal policy, the municipality is respon-
sible under section 1983, even if the action in question
is undertaken only once. Pembaur v. City of Cincinnati, 475
U.S. 469, 480-81 (1986). Valentino contends that because
Owen made the ultimate decision to fire her, Monell
liability should apply. But just because Owen is the
decisionmaker on hiring/firing decisions for the Village
government does not necessarily make him the
18 No. 06-3882
policymaker on those issues. “The fact that a particular
official—even a policymaking official—has discretion
in the exercise of particular functions does not, without
more, give rise to municipal liability based on an
exercise of that discretion.” Id. at 481-82. Rather, such an
official also must be responsible for establishing final
government policy on a particular issue. Id. at 482-83(finding that prosecutor who had authority to make
final decision about warrantless entry into home was a
policymaker for municipality). The determination of
whether a person has policymaking authority is a
question of state law, and is to be decided by the court.
Id.; Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737
(1989); Kujawski v. Bd. of Comm’rs of Bartholomew County,
Ind., 183 F.3d 734, 737 (7th Cir. 1999). Our inquiry is not
whether an official is a policymaker on all matters for
the municipality, but whether he is a policymaker “in a
particular area, or on a particular issue”; here, the
relevant question is whether Mayor Owen is a policy-
maker on personnel decisions. Kujawski, 183 F.3d at 738
(citing McMillian v. Monroe County, 520 U.S. 781, 785
(1997)). Officials with final decisionmaking authority are
deemed policymakers for Monell purposes, and we need
to look to state law to determine the scope of such author-
ity. See Pembaur, 475 U.S. at 480; City of St. Louis v.
Praprotnik, 485 U.S. 112, 134 (1988); Jett, 491 U.S. at 737.
Helpful in determining whether an official is a final
decisionmaker is an inquiry into: (1) whether the official
is constrained by policies of other officials or legislative
bodies; (2) whether the official’s decision on the issue
in question is subject to meaningful review; and
No. 06-3882 19
(3) “whether the policy decision purportedly made by
the official is within the realm of the official’s grant of
authority.” Randle v. City of Aurora, 69 F.3d 441, 448 (10th
Cir. 1995) (citing Praprotnik, 485 U.S. at 127). Also helpful
is an examination of not only “positive law, including
ordinances, rules and regulations, but also the relevant
customs and practices having the force of law.” Mandel v.
Doe, 888 F.2d 783, 793 (11th Cir. 1989) (finding that
custom dictated that physician’s assistant, and not super-
vising doctor, had final policymaking authority with
respect to medical decisions made at road prison) (citing
Jett, 491 U.S. at 722); Kujawski, 183 F.3d at 737 (“Customary
practices having the force of law may be considered
as proof of delegation.”).
It is clear that Mayor Owen is a decisionmaker with
regards to personnel decisions within the Village. He has
placed at least five of his family members and several
friends on the Village payroll. Owen, admittedly, had
the final say-so regarding the termination of Valentino.
Moreover, several Village ordinances indicate that
Mayor Owen makes personnel decisions regarding Village
employees. For example, Section 2-117 states: “The village
administrator shall not be responsible for the hiring,
firing, discipline, conducting of employment-related
hearings or other personnel matters, unless otherwise
specified herein or as lawfully instructed by the village
president 3 or board of trustees” (emphasis added). Section
2-115(3) states that the Village Administration has
3
It appears as though the terms “president” and “mayor” are
used interchangeably.
20 No. 06-3882
the power to: “Make recommendations to the village
president regarding hiring, discipline, and discharge of
employees . . . ,” indicating that the Owen, as mayor or
village president, has the ability to make personnel dis-
charge decisions (emphasis added).
However, just because Owen makes personnel decisions
does not necessarily mean that he is the final decisionmaker
on such matters such that he can be considered a
policymaker for the Village in this area. It is a
“well-established principle that the mere unreviewed
discretion to make hiring and firing decisions does not
amount to policymaking authority. There must be a
delegation of authority to set policy for hiring and
firing, not a delegation of only the final authority to hire
and fire.” Kujawski, 183 F.3d at 739 (citing Venters v. City of
Delphi, 123 F.3d 956, 966 (7th Cir. 1997)); Radic v. Chicago
Transit Auth., 73 F.3d 159, 161 (7th Cir. 1996); Auriemma v.
Rice, 957 F.2d 397, 401 (7th Cir. 1992). The Village argues
that the Board of Trustees, and not Owen, is the final
decisionmaker because it says the Board sets personnel
policy and reviews termination decisions, whereas Owen
merely has discretion to carry out the policy set by the
Board. See Partee v. Metropolitan Sch. Dist. of Washington
Twp., 954 F.2d 454, 462 (7th Cir. 1992) (holding that
where school board had final say-so on personnel
matters, principal of school was not policymaker for
municipality).
A defendant municipality in Kujawski sought refuge
from Monell liability under the same theory. 183 F.3d at
739. There, a plaintiff sued a municipality claiming that
No. 06-3882 21
it was liable under Monell for the actions of the municipal-
ity’s Chief Probation Officer, who fired the plaintiff from
his job as a probation officer after he complained about
some of the office’s policies. Id. We recognized the fact
that our precedent had established that unreviewed
discretion to make employment decisions does not rise
to the level of policymaking authority, but nonetheless
found that summary judgment was inappropriate
because a fact issue remained regarding whether
the municipality’s board had delegated policymaking
authority on the office’s personnel decisions to the Chief
Probation Officer. Id. at 740. Key in our reasoning was
that the plaintiff provided evidence that: (1) the board did
not review the Chief’s personnel decisions; and (2) the
Chief was completely in charge of the probation depart-
ment. Id. We concluded that the evidence “permits the
reasonable inference that the Commissioners delegated
to Officer Parker the authority to make employment
policy decisions with respect to community corrections
employees” and remanded the matter for trial on plain-
tiff’s Monell claim. Id.Kujawski shares several important similarities, and
several important differences, with this case. Unlike here,
in Kujawski, because it was unambiguous that: (1) the
community corrections advisory board “may establish
personnel policies” for the probation department; (2) any
terminated probation officer had a right to a grievance
hearing in front of the county board of commissioners;
and (3) the county judges had the authority to hire proba-
tion officers, we found that there was a question of fact
regarding whether the Chief’s decisions were reviewed
or constrained in such a way that he was not actually
22 No. 06-3882
the final decisionmaker on personnel decisions for the
county’s probation office. Id. at 738-39. In other words,
several concrete hiring/firing policy mechanisms existed
that were in the hands of various quasi-legislative
bodies and not in the hands of the Chief Probation
Officer, which could have had an impact on who was the
actual final decisionmaker on personnel matters. See id.Therefore, to the extent that the evidence indicated that
the Chief had unfettered discretion to hire and fire em-
ployees on his whim and that his decisions were not
meaningfully constrained or reviewed, we found it neces-
sary to remand for a factual determination of whether
these legislative bodies had in fact delegated their
policy making authority to the Chief, thus subjecting the
municipality to the possibility of Monell liability. Id. at 740.
Not so here. Defendants do not point to any laws,
statutes, or ordinances which place policy setting
authority in the hands of the Village’s board of trustees.
To the contrary, all the evidence suggests that Mayor
Owen had the unfettered discretion to hire and fire whom-
ever he pleased. Indeed, he hired several of his relatives
and fired Valentino and others without as much as a
whisper from the board of trustees. Given that the Village
has a population of only a few thousand people and is
run by a small government, a legislative framework for
personnel decisions may not actually exist, and Defen-
dants have not provided evidence of any. Rather, the
evidence suggests that as head of the government, Mayor
Owen may hire or fire whomever he wants in the
routine course of business. Therefore, in this case, unlike
in Kujawski, given that there is no presumption of
policymaking authority in the hands of any quasi-legisla-
No. 06-3882 23
tive body, it is unnecessary for there to be any factual
inquiry into whether that body delegated its authority
to Mayor Owen. To the contrary, given Mayor Owen’s
preference to hire his relatives and campaign supporters
to government jobs, it appears to be a Village cus-
tom/practice to allow Owen to set whatever hiring/firing
criteria he sees fit.
As in Kujawski, Defendants cannot point to any edicts
from the board of trustees that in any way govern the
manner in which Mayor Owen may make his hiring or
firing decisions. Nor do they point to any instances in
which the board provided any meaningful oversight of
Mayor Owen’s decisionmaking process or meaningfully
reviewed his termination decisions. Instead, all the evi-
dence indicates that Mayor Owen, either personally or by
his own delegation, makes the personnel decisions for
his office. Therefore, it is clear to us that Mayor Owen is
the de facto policymaker for the Village with regard to
personnel decisions in his office. Given this, we reverse
the district court’s decision on Valentino’s Monell claim
and find that Valentino has shown that Owen is a
final policymaker for the Village, such that the Village
may be held liable if the jury finds that Mayor Owen
and Village Administrator Petersen retaliated against her
in violation of her First Amendment rights.
C. The Illinois Tort Immunity Act Does Not Immunize
Defendants Against Valentino’s Retaliatory Dis-
charge Claim
Valentino also alleges that the Village is liable under the
Illinois tort of retaliatory discharge based on her
24 No. 06-3882
unlawful termination. In Illinois, to recover for retaliatory
discharge, a plaintiff must show that he was discharged
“in retaliation for his activities, and that the discharge be
in contravention of a clearly mandated public policy.”
Horton v. Miller Chem. Co., Inc., 776 F.2d 1351, 1355 (7th
Cir. 1985) (quoting Palmateer v. Int’l Harvester Co., 421
N.E.2d 876, 881 (Ill. 1981)) (holding that there is no
precise definition of public policy and that “concerns
what is right and just and what affects the citizens of the
State collectively”). Terminating a government employee
for speaking out against corruption in her workplace
is surely contrary to clearly mandated public policy
(the intersection of the First Amendment and the public’s
right not to be defrauded by its government); the Village
does not contend otherwise. Nor does the Village assert
that she cannot state a prima facie case for this tort (other
than the same arguments it raises against her section 1983
claim). Cf. Fellhauer v. City of Geneva, 568 N.E.2d 870, 877
(Ill. 1991) (recognizing that this tort is to be construed
narrowly, but noting that it may be viable in speaking
against municipal corruption).
Instead, the Village contends that section 2-201 of the
Illinois Tort Immunity Act exempts Owen and Petersen
from liability, thus negating the claim against the Village.
This section provides that “a public employee serving in
a position involving the determination of policy or the
exercise of discretion is not liable for an injury resulting
from his act or omission in determining policy when acting
in the exercise of such discretion even though abused.”
745 ILCS 10/2-201 (emphasis added). The Village essen-
tially reasons, and the district relies on the fact, that
No. 06-3882 25
section 2-201, “together with section 2-109 (745 ILCS
10/2-109 (‘a local public entity is not liable for an injury
resulting from an act or omission of its employee
where the employee is not liable’)), provides both public
employees and the public employer with immunity
against allegations that challenge discretionary policy
determinations.” Murray v. Chicago Youth Ctr., 864
N.E.2d 176, 185-86 (Ill. 2007) (citations omitted).4
The Village is not immune under the Act, however,
because, in order to receive immunity under section 2-201,
the municipal official must have been making a “policy
decision” when committing the alleged retaliatory act.
Section 2-201 immunizes an individual defendant only
to the extent that the action he is being sued for
involves both the making of a policy choice and the
exercise of discretion. Van Meter v. Darien Park Dist., 799
N.E.2d 273, 285 (Ill. 2003) (“[O]ur cases have made clear
that there is a distinction between situations involving
the making of a policy choice and the exercise of discre-
tion. Municipal defendants are required to establish
both of these elements in order to invoke immunity
4
The Illinois Supreme Court, in Smith v. Waukegan Park Dist.,
896 N.E.2d 232, 236-37 (Ill. 2008), called into doubt a municipal-
ity’s ability to combine sections 2-201 and 2-109 to extend im-
munity from a municipal official to the municipality itself.
It reasoned that where the municipality is the pertinent actor
that performed the alleged retaliatory action, section 2-109
is not implicated. We need not delve into this line of rea-
soning, however, because we determine that section 2-201
does not immunize the Village.
26 No. 06-3882
under section 2-201.”) (citations omitted). The Illinois
Supreme Court has defined “ ‘discretionary’ actions to
be those ‘unique to a particular public office.’ ” Id. at 286(citations omitted). It also has “held that decisions re-
quiring a governmental entity to balance competing
interests and to make a judgment call as to what solution
will best serve those interests are ‘policy decisions’
within the meaning of section 2-201.” Id. (citations omit-
ted). Last, we note that “because the Tort Immunity Act
is in derogation of the common law, it must be strictly
construed against the public entities involved.” Id. (citing
Zimmerman v. Vill. of Skokie, 697 N.E.2d 699, 707 (Ill. 1998)
(quoting Aikens v. Morris, 583 N.E.2d 487 (Ill. 1991))).
Defendants’ attempt to argue that Owen’s decision to
fire Valentino was a “policy decision” is futile. The
Village argues in one breath that Owen’s series of hirings
and firings for the Village do not mean that he is a
policymaker, and in another breath that his decision to
fire Valentino was a policy decision. As discussed above,
its first argument is without merit as it applies to the
facts of this case. The second argument fails as well.
Here, Owen’s one-time decision to fire one employee,
Valentino, does not amount to a “judgment call between
competing interests.” In fact, we are at a loss to identify
any competing interests at all. Rather, Owen either
made a one-time decision to fire Valentino because she
copied the sign-in sheets or because she spoke out
against the Village’s practice of ghost payrolling, or some
combination thereof. The Village offers no evidence that
it had a policy against copying the sign-in sheets either
before or after Valentino’s termination. Even if such a
No. 06-3882 27
policy did exist, we cannot see how the decision to
create it might involve competing interests and judg-
ment calls that would meet the Illinois courts’ definition
of a “policy decision”. See id. Therefore, the decision to
fire Valentino does not amount to a policy decision as
defined by the Illinois courts. So, the Village is not
entitled to immunity under section 2-201.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is R EVERSED and this matter is R EMANDED on all
counts against all Defendants.
7-30-09