Kelvin Lett v. City of Chicago ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1463
KELVIN LETT,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cv-4993 — John Robert Blakey, Judge.
____________________
ARGUED DECEMBER 4, 2019 — DECIDED JANUARY 6, 2020
____________________
Before MANION, KANNE, and BARRETT, Circuit Judges.
BARRETT, Circuit Judge. Kelvin Lett was an investigator in
the Chicago municipal office that reviews allegations of police
misconduct. In that role, Lett helped prepare an investigative
report about a police shooting. Lett’s supervisor directed him
to write in the report that police officers had planted a gun on
the victim of the shooting, but Lett did not believe that the
evidence supported that finding and refused. After he faced
disciplinary consequences as a result, Lett sued his
2 No. 19-1463
supervisors and the City of Chicago for retaliating against
him in violation of the First Amendment. The district court
dismissed all of Lett’s claims, and Lett now appeals, insisting
that his refusal to alter the report constitutes protected citizen
speech. But as the district court recognized, Davis v. City of
Chicago, 889 F.3d 842 (7th Cir. 2018), squarely forecloses this
argument. Because Lett spoke pursuant to his official duties
and not as a private citizen when he refused to alter the report,
the First Amendment does not apply.
I.
This case comes to us on a motion to dismiss, so we take
the allegations in Lett’s complaint as true. Kubiak v. City of Chi-
cago, 810 F.3d 476, 479 (7th Cir. 2016).
Lett worked as an investigator for Chicago’s Civilian Of-
fice of Police Accountability (formerly known as the Inde-
pendent Police Review Authority), a municipal office tasked
with reviewing allegations of police misconduct. In 2016, Lett
was working on an investigation into police involvement in a
particular civilian shooting. The office’s Chief Administrator,
Sharon Fairley, directed Lett to include in the report a finding
that police officers had planted a gun on the victim of the
shooting. Lett refused because he did not believe that the ev-
idence supported that finding.
Lett raised his concerns with Fairley’s deputy, who in turn
shared them with Fairley. Not long after that, Lett was re-
moved from his investigative team, then removed from inves-
tigative work altogether, and ultimately assigned to janitorial
duties. Fairley then opened an internal investigation into Lett
for disclosing confidential information. The internal investi-
gation concluded that Lett had violated the office’s
No. 19-1463 3
confidentiality policy, and Fairley ordered that Lett be fired.
Convinced that the internal investigation was a hit job, Lett
initiated a grievance through his union. The grievance arbi-
trator, siding with Lett, ordered the office both to reinstate
him with backpay and to expunge his record. But when Lett
returned to his office, Fairley immediately placed him on ad-
ministrative leave with pay. Lett was assigned on paper to the
Chicago Police Department’s FOIA office, but in reality he
was not allowed to return to work.
Lett sued his supervisors, as well as the City of Chicago.
Count 1, brought against all individual defendants under 42
U.S.C. § 1983, alleged that the supervisors had retaliated
against Lett for his refusal to write false information in his re-
port, in violation of his First Amendment rights. Count 2 as-
serted Monell liability under § 1983 for the City and for Fairley
in her official capacity based on the supervisors’ actions.1 Be-
cause it concluded that Lett had acted as a public employee
rather than as a private citizen when he refused to alter the
investigative report, the district court dismissed these claims
with prejudice under FED. R. CIV. P. 12(b)(6).
II.
For a public employee to prove retaliation in violation of
the First Amendment, he must first establish that his speech
was constitutionally protected. Swetlik v. Crawford, 738 F.3d
818, 825 (7th Cir. 2013). Although the First Amendment offers
public employees some protection, “it does not empower
them to ‘constitutionalize the employee grievance.’” Garcetti
1Lett asserted two additional federal claims that he has abandoned
on appeal, as well as supplemental state-law claims that the district court
dismissed without prejudice.
4 No. 19-1463
v. Ceballos, 547 U.S. 410, 420 (2006) (citation omitted). A public
employee’s speech is therefore only protected if (1) he spoke
as a private citizen rather than in his capacity as a public em-
ployee; (2) he spoke on a matter of public concern; and (3) his
interest in expressing the speech is “not outweighed by the
state’s interests as an employer in ‘promoting effective and
efficient public service.’” Swetlik, 738 F.3d at 825 (citation
omitted). This appeal concerns the first element: whether Lett
spoke as a private citizen when he refused to amend the in-
vestigative report.
Garcetti v. Ceballos supplies the test for distinguishing em-
ployee and citizen speech. Under Garcetti, the key question is
whether the employee makes the relevant speech “pursuant
to [his] official duties.” 547 U.S. at 421. In other words, we ask
whether the speech “owes its existence to a public employee’s
professional responsibilities.” Id. If it does, then the employee
speaks in his capacity as an employee rather than a private
citizen and his speech is not protected.
We applied Garcetti’s test to similar facts in Davis v. City of
Chicago, 889 F.3d 842 (7th Cir. 2018). Lorenzo Davis was also
an investigator in the Civilian Office of Police Accountability,
and, like Lett, he alleged retaliation for his refusal to amend
investigative reports. Each report contained a summary of the
allegations of police misconduct and a finding on whether
each allegation of misconduct was “sustained,” “not sus-
tained,” “exonerated,” or “unfounded.” According to Davis,
the Chief Administrator at the time directed him to change
“sustained” findings and to alter his reports to reflect more
favorably on police officers. Id. at 844. Because it was part of
Davis’s professional responsibilities to revise his reports at
the direction of his supervisors, we concluded that he made
No. 19-1463 5
his refusal “pursuant to his official duties.” Id. at 845 (altera-
tion and citation omitted). In making that determination, we
rejected Davis’s argument that drafting inaccurate or mislead-
ing reports could not have been part of his job duties. Id. We
explained that “the fact that an employee may have good rea-
sons to refuse an order, does ‘not necessarily mean the em-
ployee has a cause of action under the First Amendment when
he contravenes that order.’” Id. at 845–46 (citation omitted).
The First Amendment therefore did not protect Davis’s
speech.
Lett’s case bears more than a passing resemblance to the
facts in Davis. Lett held the same job as Davis and alleges re-
taliation for the same activity: refusing to alter an investiga-
tive report that he was assigned to prepare. Just as in Davis,
Lett would have had neither occasion nor reason to refuse the
request if not for his job. In the language of Garcetti, Lett’s re-
fusal to amend the report was “speech that owe[d] its exist-
ence” to his professional responsibilities. 547 U.S. at 421. And
while Lett contends that altering a report to include unsup-
ported findings was necessarily outside his official job duties,
Davis squarely forecloses that argument. As in Davis, the fact
that Lett may have had a good reason to refuse to amend the
report does not grant him a First Amendment cause of action.
See Davis, 889 F.3d at 845–46.
Lett nevertheless argues that Davis is distinguishable. He
asserts that Davis was asked to alter his conclusions, whereas
Lett was asked to lie about matters of fact—a distinction not
mentioned by the majority opinion in Davis but emphasized
in a concurrence. Id. at 846 (Hamilton, J., concurring). Try as
he might, however, Lett cannot characterize his speech as re-
laying facts rather than conclusions. Fairley told Lett to add
6 No. 19-1463
the finding that a gun was planted on the shooting victim. It
is true that someone who personally observed the police han-
dle the victim’s gun could know as a matter of fact whether
the gun was planted or whether the victim carried it. But Lett
never alleged that he or any of his superiors personally ob-
served the events in the report. Instead, Lett was tasked with
analyzing the evidence before him. Without the benefit of per-
sonal observation, a finding that the gun was or was not
planted was necessarily a conclusion drawn based on infer-
ences. Lett’s case is thus on all fours with Davis.
Lett’s concern about his First Amendment right not to lie
in sworn testimony is similarly misplaced. A public em-
ployee’s truthful sworn testimony made outside the scope of
his official duties is citizen speech. Lane v. Franks, 134 S. Ct.
2369, 2379 (2014). Lett argues that we should expand Lane be-
yond sworn trial testimony to include his investigative report
because it is likely that the report will be used in litigation. We
need not address this argument, though, because Fairley did
not ask Lett to add lies to the report—only conclusions with
which Lett disagreed. And as we have already explained, the
First Amendment does not protect Lett’s refusal to amend the
investigative report.
***
The district court properly dismissed Lett’s claims against
his supervisors and the City of Chicago, and we AFFIRM its
judgment.