The opinion of the court was delivered by: Bua, District Judge.
Before the Court is defendant's motion to dismiss plaintiff's
amended complaint under § 1983 and the First and Fourteenth
Amendments to the United States Constitution. For the reasons
stated herein, defendant's motion to dismiss is granted.
Plaintiff Glen Lehpamer is a police officer currently employed
by the Village of Downers Grove Police Department. Defendant
Stanley D. Troyer is the Chief of the Downers Grove Police
Department. Since 1978, plaintiff has been subject to various
evaluations by the police department. Plaintiff has spoken out
against some poor evaluations, which were eventually upgraded.
Plaintiff was suspended on July 17 and 18, 1982, in connection
with an alleged shouting match with one of his supervisors
relating to plaintiff's police performance. The suspension was
subsequently reversed by the Downers Grove village manager.
In addition, plaintiff alleges that, due to the suspension's
reversal, the defendant referred the plaintiff for psychological
testing which resulted in a report dated August 2, 1982. Further
psychological testing and evaluations were conducted on the
plaintiff. However, plaintiff does not allege that these
evaluations were used to discontinue the plaintiff in testing for
sergeant's promotions. Plaintiff alleges only that the
psychological testing was "prejudicial."
Plaintiff also alleges that he was denied light duty police
assignments, necessitated by an off-duty related incident,
because he had spoken out against his poor evaluations. In
support of this allegation, he states that he informed his
supervisors of back pain which prevented him from driving a squad
car, but that his supervisors would not assign him to other duty.
However, plaintiff does not allege that any light duty
assignments were available, even though he states that it was the
custom and practice of the police department to assign light duty
to persons with off-duty injuries.
Finally, plaintiff alleges that he took a written examination
for promotion to sergeant, but he did not get the promotion. The
examination was allegedly graded "in-house" and not by an outside
testing center. Therefore, plaintiff concludes that he was denied
his sergeant's promotion on the basis of defendant's bias and
prejudice toward him for speaking out against poor evaluations
and in defense of his performance as a police officer.
From these allegations, plaintiff sets forth four grounds for
denial of his civil rights: (1) violation of his First Amendment
right to speak out regarding personnel practices; (2) violation
of the due process clause of the Fourteenth Amendment; (3)
violation of the liberty interest clause of the Fourteenth
Amendment; and (4) violation of the equal protection clause of
the Fourteenth Amendment.
A complaint should not be dismissed unless it appears beyond
doubt that plaintiff could prove no set of facts which would
entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78
S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). As a corollary to this
rule, a district court must take all well-pleaded facts in
plaintiff's complaint as true.
1. Violation of First Amendment Rights
Defendant counters that there is no duty to provide plaintiff
with light duty work and there was also none available. Regarding
the psychological testing, defendant avers generally that acts in
retaliation for an employee's comments do not violate or curtail
the employee's First Amendment rights where his comments relate
to purely personal matters, such as job evaluations and
assignments. Finally, defendant argues that the sergeant's
promotional examination is not of the type which is open to bias
and prejudice in the grading process.
It is well established that an employee cannot be disciplined
consistently with the due process clause in retaliation for the
exercise of his First Amendment rights. Altman v. Hurst,
734 F.2d 1240, 1243 (7th Cir. 1984); see also Perry v. Sindermann,
408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972).
The Supreme Court, in Connick v. Myers, 461 U.S. 138, 103 S.Ct.
1684, 75 L.Ed.2d 708 (1983), recently announced a test to
determine when the First Amendment protects the speech of public
employees. It held there "that when a public employee speaks not
as a citizen upon matters only of public concern, but instead as
an employee upon matters only of personal interest, absent the
most unusual circumstances, a federal court is ...