Carmen Consolino v. Brian Towne ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 16-3681
CARMEN CONSOLINO,
Plaintiff-Appellant,
v.
BRIAN TOWNE, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:14-cv-05526 — John Z. Lee, Judge.
ARGUED SEPTEMBER 6, 2017 — DECIDED OCTOBER 2, 2017
Before WOOD, Chief Judge, and ROVNER and SYKES, Circuit
Judges.
ROVNER, Circuit Judge. Carmen Consolino, an employee of
the Cook County Sheriff’s Office, sued Sheriff Thomas Dart,
Chief of Staff Brian Towne and Compliance Officer Robert
Egan for retaliation based on speech, in violation of 42 U.S.C.
2 No. 16-3681
§ 1983. The district court granted summary judgment in favor
of the defendants and we affirm.
I.
Consolino works for the Sheriff’s Office as a correctional
officer at the Cook County Department of Corrections. He is
also a Marine Reservist who serves as a human intelligence
and counterintelligence specialist. Beginning in 1999,
Consolino was assigned to the Corrections Department’s Boot
Camp, an alternative sentencing program that offers military-
style structure, education, and counseling for non-violent
inmates. Consolino’s wife, Jennifer Trzos, also worked at the
Boot Camp, as an administrative assistant. Trzos filed a
Shakman complaint against the Sheriff’s Office that went to
arbitration in January 2012. Shakman refers to a series of
consent decrees entered in an Illinois case challenging govern-
ment employment practices based on political affiliation.
Named for Michael Shakman, the plaintiff in the original case,
Shakman consent decrees were entered in 1972 and 1983 that
govern claims related to patronage practices in city and county
government employment decisions. See O’Sullivan v. City of
Chicago, 396 F.3d 843, 847–51 (7th Cir. 2005) (explaining
generally the history of the Shakman consent decrees). Those
consent decrees preclude the city and county from, among
other things, conditioning employment decisions (including
hiring, firing, promotions, recalls from layoffs and transfers) on
any political affiliation or political activity, except in the case of
certain “exempt positions.” Bonnstetter v. City of Chicago, 811
F.3d 969, 971 (7th Cir. 2016). Trzos asserted in her Shakman
complaint that she had been transferred for political reasons.
No. 16-3681 3
Consolino testified on behalf of his wife at her Shakman
arbitration hearing, and the arbitrator ultimately denied her
claims. Around the same time that Consolino was testifying on
his wife’s behalf, he was also attempting to gain a two-year
assignment to the FBI’s Joint Terrorism Task Force. The
Sheriff’s Office sometimes assigns an employee to work with
the FBI. In those instances, the County continues to pay the
employee’s salary during the two-year term, and the employee
later returns with newly-acquired skills that are valuable to the
Sheriff’s Office. In the typical case, the FBI requests from the
Sheriff’s Office a list of candidates to serve on an FBI task force.
The FBI then conducts background checks in order to deter-
mine whether to accept any of the proposed employees.
Consolino disputes that there was a protocol at the Sheriff’s
Office requiring a request to come from the FBI, but that
dispute is immaterial to the outcome here.
Consolino learned from a friend at the FBI, Special Agent
Davis Christy, that an FBI task force position formerly filled by
a Sheriff’s Office employee was open. Christy was Consolino’s
“Officer in Charge” in the Marine Reserves and also a friend.
When Consolino expressed interest in the assignment, Christy
spoke to a supervisor at the FBI regarding the possibility of
Consolino joining the FBI task force. That supervisor, in turn,
told Ricardo Pagan, head of the FBI’s Human Intelligence
Branch in Chicago, that Consolino was approved by the
County and the Sheriff to join the task force. Based on that
mistaken belief, the FBI sent a letter to the Sheriff specifically
requesting that Consolino be assigned to the FBI’s task force.
Consolino, by virtue of his experience in the Marine Reserves,
4 No. 16-3681
possessed skills sought by the FBI and also held a security
clearance that made him an attractive candidate for the FBI.
The Sheriff’s Office took no action on the FBI’s letter, and
when Sheriff Dart visited the boot camp, Consolino took the
opportunity to ask Dart in person about the status of the FBI’s
request. Dart directed him to talk to his supervisor. Consolino
then contacted Egan to determine how to proceed. Egan spoke
to Joseph Ways, a Sheriff’s Office employee who formerly
worked at the FBI. Ways contacted Pagan, and it became
apparent during their conversation that Consolino had not
been pre-approved for the transfer by the Sheriff’s Office.
There is some disagreement regarding what happened next,
but, as before, it is not material to the outcome here. No one
disputes that, after his conversation with Pagan, Ways told
Egan that the FBI had rescinded its offer because Consolino
had failed to follow protocol. Egan then passed that message
along to Consolino.
Consolino, in turn, sent an email to Dart and Towne,
explaining that he had checked with the FBI and that the
request had not been rescinded. Consolino requested clarifica-
tion. When neither Dart nor Towne responded to that email,
Consolino filed a complaint against Ways and Egan with the
Office of Professional Review, a department within the Sher-
iff’s Office that investigates allegations of misconduct made
against Sheriff’s Office employees. Consolino alleged that the
Sheriff’s Office had failed to assign him to the FBI post because
he had testified against the Sheriff’s Office at his wife’s
Shakman hearing. Because Ways worked for the Office of
Professional Review and because Egan worked for the Compli-
ance Office, Consolino did not wish for either entity to conduct
No. 16-3681 5
an investigation into his allegations. A Cook County Assistant
State’s Attorney ultimately conducted the review and con-
cluded that Consolino’s complaint was not well-founded.
Seven months after filing his complaint against Ways and
Egan, and two months before the complaint was resolved
against him, Consolino was reassigned from the Boot Camp to
Division XI of the Cook County Jail.1
Consolino then filed suit against Dart, Towne and Egan,
alleging that they retaliated against him for engaging in speech
protected by the First Amendment. In particular, he asserted
that he was denied an opportunity to work on the FBI task
force because he testified in his wife’s Shakman hearing, and
that he was transferred out of Boot Camp to Division XI
because he filed a grievance with the Office of Professional
Review. The district court granted summary judgment in favor
of the defendants and Consolino appeals.
II.
We review the district court’s grant of summary judgment
de novo, examining the record in the light most favorable to
Consolino and construing all reasonable inferences from the
evidence in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Yahnke v. Kane County, Ill., 823 F.3d 1066, 1070
(7th Cir. 2016). Summary judgment is appropriate when there
1
According to the Sheriff’s Office website, Division XI, a part of the
County’s jail system, is “a state of the art 640,000 square foot, medium-
security facility. Consisting of [a] central core surrounded by four housing
PODS, Division XI can house 1,536 male detainees.” See
http://www.cookcountysheriff.org/doc/doc_DivisionsOfJail.html (last
visited October 2, 2017).
6 No. 16-3681
are no genuine disputes of material fact and the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Anderson, 477 U.S. at 256; Yahnke, 823 F.3d at 1070. To make out
a prima facie claim for a violation of First Amendment rights,
Consolino, a public employee, must present evidence that
(1) his speech was constitutionally protected; (2) he suffered a
deprivation likely to deter free speech; and (3) his speech was
at least a motivating factor in the employer's actions. Yahnke,
823 F.3d at 1070; Greene v. Doruff, 660 F.3d 975, 977–79 (7th Cir.
2011); Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004). “[I]n
proving a First Amendment claim, the initial burden is on the
plaintiff to demonstrate that his conduct was constitutionally
protected and that his conduct was a substantial or motivating
factor in the defendant's action against him. The burden then
shifts to the defendant to show that it would have taken the
same action even in the absence of the protected conduct.”
Yahnke, 823 F.3d at 1070–71 (citing Mt. Healthy City School Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
On appeal, Consolino contends that the court should have
found that the evidence was sufficient to demonstrate that his
testimony at his wife’s Shakman hearing was a motivating
factor in denying him the FBI post. He maintains that he
presented sufficient evidence to demonstrate that the defen-
dants were aware of his testimony. He argues that the court
should have struck Towne’s affidavit denying knowledge of
his Shakman testimony because it conflicted with his earlier
deposition testimony. Moreover, he asserts, the district court
drew an improper inference that the defendants lacked
knowledge of his testimony because he and his wife have
different last names. Finally, he contends that he presented
No. 16-3681 7
sufficient evidence supporting his claim that his transfer from
Boot Camp to Division XI was motivated by retaliation for the
grievance he filed with the Office of Professional Review.
For the claim of retaliation based on the Shakman testimony,
the district court rested its judgment in favor of the defendants
on its conclusion that Consolino lacked any evidence that Dart
or Towne knew about Consolino’s testimony, and on its
determination that there was no evidence that Egan was
personally involved in any decision to deny Consolino’s
assignment to the FBI task force. The court rejected Consolino’s
claim that the transfer from the Boot Camp to Division XI was
retaliatory because he failed to produce any evidence that any
of the defendants were personally involved in the transfer
decision.
We begin with Consolino’s contention that he produced
sufficient evidence that his Shakman testimony was a motivat-
ing factor in denying him the FBI task force assignment. In
order to demonstrate that a defendant was motivated to
retaliate based on protected speech, the plaintiff must first
produce evidence that the defendant knew about the protected
speech. See Morfin v. City of East Chicago, 349 F.3d 989, 1005 (7th
Cir. 2003) (protected conduct cannot be proven to motivate
retaliation if there is no evidence that the defendants knew of
the protected activity). Dart and Towne both denied any
knowledge that Consolino had testified at his wife’s arbitra-
tion. Consolino’s sole support for the proposition that Sheriff
Dart knew about his Shakman testimony is Consolino’s own
affidavit. In the affidavit, Consolino baldly declared that, “A
reasonable person would expect that the Sheriff would know
the cases in which he has been accused of a Shackman [sic]
8 No. 16-3681
violation. Such an accusation is not an everyday occurrence.
Furthermore, Dart had knowledge because I emailed him,
telling him (Ex. 8).” R. 87, at 9. We will address the email in a
moment, but the affidavit itself presented no evidence regard-
ing Dart’s knowledge. Consolino cites no evidence in the
record to support how often Shakman complaints are filed
against the Sheriff, or whether the Sheriff is generally informed
about such complaints or was specifically informed in this
case. The affidavit presents nothing more than sheer specula-
tion, and speculation is not enough to create a genuine issue of
fact for the purposes of summary judgment. Harper v. C.R.
England, Inc., 687 F.3d 297, 306 (7th Cir. 2012) (inferences that
are supported only by speculation or conjecture will not defeat
a summary judgment motion).
The email that Consolino mentioned in his affidavit is a
memo that he sent to Towne and Dart asking for clarification
regarding the FBI’s request to have him assigned to the Joint
Terrorism Task Force. In the memo, Consolino stated that the
FBI hand-delivered to the Sheriff a request to have Consolino
detailed to the task force, and that the FBI had asked him on
numerous occasions about the delay in the assignment. He
explained that he had contacted Egan “to ascertain if there was
any violation of … the Shakman Decree that may be holding
up the process.” R. 87, at 157. After checking into the situation,
he asserted, Egan told him that the FBI had rescinded its
request. Consolino explained that he then contacted an
individual at the FBI, who told him that the organization had
not rescinded the request. Consolino closed the memo by
asking for “official clarification” regarding whether he would
be detailed to the FBI, and if not, the basis for the denial.
No. 16-3681 9
Nothing in the emailed memo referred to Trzos’s Shakman
arbitration or Consolino’s testimony at that arbitration. At
most, Consolino inquired whether the Shakman decree was
holding up his own assignment to the FBI task force. No
reasonable inference can be drawn from this memo that Dart
or Towne were aware that Consolino testified at his wife’s
Shakman hearing.
Consolino also contends that the court should not have
credited Towne’s statement that he was not aware of
Consolino’s Shakman testimony. The court should have stricken
Towne’s summary judgment affidavit, Consolino argues,
because it was contrary to Towne’s earlier deposition testi-
mony. The only part of Towne’s affidavit on which the court
relied was Towne’s denial of any knowledge about Consolino’s
testimony at the Shakman hearing. But that denial is not
inconsistent with any part of Towne’s depostion testimony and
so the district court was correct to credit the affidavit. See
Castro v. DeVry University, Inc., 786 F.3d 559, 572 (7th Cir. 2015)
(an affidavit can be excluded as a sham only where the witness
has given clear answers to unambiguous questions which
negate the existence of any genuine issue of material fact).
In response to Towne’s denial of any knowledge about the
Shakman testimony, Consolino again cites his own speculation
that Towne must have known because of his position in the
office, and because of Consolino’s email to Dart and Towne
asking for clarification. As explained above, however, specula-
tion will not defeat a summary judgment motion, and there is
no mention of Consolino’s Shakman testimony in the email
10 No. 16-3681
requesting confirmation. Consolino also cites Towne’s resume2
and a document that purportedly shows that Towne was
second in command at the Sheriff’s Office. The document is a
printout of a page from the Sheriff’s Office website that lists
administrative staff, including an Executive Director and Chief
of Staff, as well as other employees. Although this document
could be construed as evidence that the Chief of Staff was
second or third in command at the Sheriff’s Office, it is not
evidence that the Chief of Staff was aware of an employee’s
testimony at his wife’s arbitration.3 In fact, the document states
that the Department of Corrections employs approximately
3,500 sworn and civilian staff members, which would seem to
2
Towne’s resume does not appear in the record at the citation provided in
Consolino’s brief. Instead, there is a single page containing two lines. The
first reads, “Exhibit 55,” and the second states, “Brian Towne’s publicly
posted resume.” Consolino also provides in his brief an internet address for
Towne’s resume but the link is no longer active. Consolino cites the resume
for the proposition that Towne, the Sheriff’s Chief of Staff, was second in
command at the Sheriff’s office. But that fact does not give rise to a
reasonable inference that Towne was aware of Consolino’s testimony at his
wife’s arbitration.
3
Consolino also cites a memorandum to Towne from the commander of
the General Investigations Section requesting that nineteen detective-level
vacancies be filled. Consolino contends that this is evidence that Towne was
involved in approving transfers. We do not doubt that Towne, as Chief of
Staff, was involved in personnel decisions involving large numbers of
employees, but the question here is whether Towne was aware that
Consolino testified at his wife’s Shakman arbitration. Towne’s involvement
in generally authorizing the filling of nineteen vacancies provides no
reasonable inferences regarding Towne’s knowledge of Consolino’s
Shakman testimony.
No. 16-3681 11
make it less likely that the Chief of Staff would be aware of the
identity of witnesses at arbitration hearings, much less the
content of their testimony. Consolino also cites evidence that
Towne was annoyed with him for talking to the Sheriff directly
during his visit to the Boot Camp, but again, this evidence
lacks any link to Consolino’s testimony at his wife’s Shakman
hearing.4
That leaves Egan, whom Consolino claims should have
remedied the situation once he became aware that Consolino
was being denied the FBI transfer because of his testimony at
the Shakman arbitration (which, of course, presumes that the
testimony was the motivation behind the decision). But the
record shows only that Egan discussed Consolino’s request
with Ways, that Ways spoke to the FBI, that Ways then told
Egan that the offer had been rescinded by the FBI, and that
Egan conveyed that message to Consolino. Consolino subse-
quently filed a complaint with the Office of Professional
Review and specifically requested that Egan not be involved in
the investigation. None of this indicates that Egan had any
involvement in a decision to deny Consolino an assignment to
the FBI task force. On the contrary, as the district court con-
4
We also reject Consolino’s suggestion that the court drew an improper
inference against Consolino based on his wife having a different last name.
Rather, the court noted that Consolino produced no documents or internal
memoranda mentioning the arbitration that could have put Dart or Towne
on notice of the hearing. The court further remarked that, even if such a
document existed, Consolino’s wife has a different last name and a
document related to her alone would not have put the reader on notice that
Consolino was involved in any way. This was simply an appropriate refusal
to draw an inference based on speculation in favor of Consolino.
12 No. 16-3681
cluded, the evidence indicates that Egan was not in a position
to do anything for Consolino once he conveyed the message
that the FBI had rescinded the offer. See Matz v. Klotka, 769 F.3d
517, 528 (7th Cir. 2014) (a damages suit under section 1983
requires that a defendant be personally involved in the alleged
constitutional deprivation). Without any personal involvement,
Egan cannot be held liable under section 1983.
Consolino’s only remaining claim is that the defendants
transferred him from the Boot Camp to Division XI in retalia-
tion for filing a complaint with the Office of Professional
Review. The district court granted judgment in favor of the
defendants on this claim after concluding that Consolino
lacked any evidence that any of the defendants were person-
ally involved in the decision to transfer him. Consolino
“concedes that his evidence as to the transfer to Division XI is
not the strongest.” Plaintiff’s Opening Brief, at 24. He cites no
evidence that any of the defendants were personally involved
in the decision to transfer him to Division XI.5 Because
Consolino did not demonstrate that the defendants were
5
Nor does he cite any evidence that the job in Division XI was inferior to
his position at the Boot Camp. He does not assert that he was demoted, or
paid less or that his work duties changed in any significant manner. In
general, an employment action meets the standard for retaliation if it is
materially adverse in the sense that it well might dissuade a reasonable
worker from engaging in protected conduct. Burlington Northern & Sante Fe
Railway Co. v. White, 548 U.S. 53, 68 (2006). Consolino has supplied no
evidence that the lateral transfer from one division of the county jail to
another met this standard.
No. 16-3681 13
personally involved in the decision to transfer him, the district
court correctly granted judgment in favor of the defendants.
AFFIRMED.