as to any alleged retaliation for his whistleblowing activities.
In considering this qualified immunity claim on summary judgment, the Court must examine all the undisputed evidence in the record. Rakovich, 850 F.2d at 1205. This examination includes information possessed by defendants. Anderson, 483 U.S. at 641, 107 S. Ct. at 3040. Therefore as to the first prong, the Court will assume, as supported by the demotions given to O'Connor, Roth and Zelkovich following their investigations, that defendants retaliated against O'Connor for his whistleblowing activities. At the same time, the record establishes extensive -- even comprehensive -- insubordination on O'Connor's part that is not connected to his first amendment activities, such as: his refusal to complete assignments from his supervisor, May; his failure to report back to Paaswell on the Art's investigation; his rude and insulting behavior towards May; and his refusal to meet with May to review his job performance. At almost every corner, May and Paaswell faced an employee whose tongue was laced with venom. The vitriolic tenor of O'Connor's remarks went beyond any reaction to the alleged retaliation that he faced. In the end however, O'Connor has set out a constitutional violation despite the existence of mixed motives.
The Court can now turn to part (2) of the approach and conduct the qualified immunity analysis. In this case, the facts have been fully developed and are therefore sufficient to decide the immunity question. The issue in this case is whether or not it was clear in 1987 that to fire an employee who had engaged in extensive whistleblowing activities but who was otherwise insubordinate and failed to complete his job duties violated the employee's constitutional rights. Both parties have missed the point here. In their brief, defendants have framed the issue this way: whether it was clearly established in 1987 that defendants struck an unlawful balance in responding to O'Connor's speech and insubordination. (Defendant's Brief at 14). This gloss of the issue is too general. See Rakovich, 850 F.2d at 1209 (test for immunity is whether the law was clear in relation to the specific facts confronting the public official when he or she acted). In response, O'Connor argues that defendants do not claim to have engaged in any balancing test when they discharged him. (Plaintiff's Response at 28). This, of course, ignores the objective nature of the second prong in the qualified immunity inquiry. See Elliott, 937 F.2d at 344. O'Connor also states that defendants deny taking any adverse action against him because of his speech and offer independent reasons for the adverse action. If this were the case, qualified immunity would not apply at all. See id. at 342-43.
To the contrary, defendants reprimanded O'Connor on at least one occasion because of his first amendment related activities. May and Paaswell placed O'Connor on probation in August 1987 for his refusal to move into the new office, a move that was delayed, as O'Connor made clear, because he insisted on answering a discovery request in this lawsuit from his old office and on CTA time. Because this alleged retaliation was related to O'Connor's first amendment interests, qualified immunity applies to this case.
The Court's characterization of the issue must now be compared to the body of law existing at the time of the alleged violation to determine if constitutional, statutory, or case law shows that the now specifically defined actions violated the clearly established law. Rakovich, 850 F.2d at 1209. O'Connor bears the burden of establishing the existence of the allegedly clearly established constitutional right. Id. Considering the facts of this case, the unlawfulness of the defendants' acts was not "apparent." Anderson, 483 U.S. at 640, 107 S. Ct. at 3039. Decisions regarding circumstances similar to this case, where whistleblowing is juxtaposed against major insubordination that is generally not related to the whistleblowing activity, are rare. The merits of O'Connor's first amendment claim depend on the balancing test articulated in Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), under which public employers may consider disruptive speech under some circumstances, but not all. Balancing tests, by their nature, make for difficult predictions regarding the outcome of all but the most obvious cases. See Rakovich, 850 F.2d at 1213 (the standard for constitutional rules involving a balancing of competing interests may be clearly established but the application can be so fact dependent that the law can rarely be considered clearly established).
Legal ambiguity in the wake of Pickering sets the stage for immunity in this case. See Elliott, 937 F.2d at 343 (citing Greenberg v. Kmetko, 922 F.2d 382 (7th Cir. 1991); Thulen v. Bausman, 930 F.2d 1209 (7th Cir. 1991)). Although the Supreme Court has been relatively concrete since the 1970's in establishing that the discharge of a public employee in violation of first amendment rights is improper, Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 413, 99 S. Ct. 693, 695-96, 58 L. Ed. 2d 619 (1979) (junior high school teacher's loss of job); Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 2697, 33 L. Ed. 2d 570 (1972) (college teacher's loss of job); Pickering, 391 U.S. at 571-72, 88 S. Ct. at 1736-37 (high school teacher's loss of job), the Court has not addressed a mixed motive case such as this one.
O'Connor has identified one Seventh Circuit case which he argues clearly established that the actions of the defendant in this case were unlawful prior to 1987. See Bart v. Telford, 677 F.2d 622 (7th Cir. 1982). In Bart, a city employee who worked for the mayor claimed that the mayor and his subordinates retaliated against her after her unsuccessful electoral bid to become the mayor. Id at 624. The harassment campaign included such things as holding her up to ridicule for bringing a birthday cake to the office on the occasion of the birthday of another employee, even though such festivities were common place in the office. Id. In recognizing the first amendment claim, the court stated that "we cannot say as a matter of law that the exercise of First Amendment rights by public employees cannot be deterred by subjecting employees who exercise them to harassment and ridicule through selective enforcement of work rules." Id. at 625.
The Bart case has little application to the present case except for the most general proposition that harassment for exercising the right to free speech is actionable. Like the first amendment itself, the discussion in Bart would have given little direction to O'Connor's supervisors in confronting the problem they had with O'Connor. See Greenberg, 922 F.2d at 383-84. Bart did not involve extensive and documented insubordination on the part of the employee, or an employee who refused to complete job-related tasks. Both of these factors make the outcome of the Pickering balancing test more unpredictable in this case.
This is not a case like Auriemma v. Rice, 910 F.2d 1449 (7th Cir. 1990) (en banc), where the defendant gave the plaintiff all the ammunition necessary to avoid summary judgment on qualified immunity. See Elliott, 937 F.2d at 345. In that case, after demoting white police officers and promoting black officers over them, the chief of police denied having an affirmative action plan, which supported an inference that the chief had an improper intent and was not confused by the perplexing state of the law concerning affirmative action.
Auriemma, 910 F.2d at 1451. An objective supervisor looking at the law in 1987 as it related to O'Connor's position would have been confused, and unlike the police chief in Auriemma, the defendants in this case have not advanced a claim to the contrary.
The state of the law on mixed-motive firings, like transfers, was in 1987 sufficiently ambiguous to support immunity and remains so today. See Elliott, 937 F.2d at 346; Rakovich, 850 F.2d at 1213. This is particularly the case where the employee has engaged in consistent insubordination and routinely failed to perform his job duties. Therefore, the Court holds that defendants are entitled to qualified immunity on the first amendment claim.
B. Equal Protection
As to O'Connor's equal protection claim, defendants argue that his claim must fail because he has presented no evidence that he was treated differently from similarly situated African-Americans or non-whistleblowing employees. An essential element of recovery under § 1983 is a demonstration of a constitutionally protected right. In order to establish a prima facie case of discrimination violative of the equal protection clause, O'connor must demonstrate that he was treated differently from other similarly situated employees. Sims v. Mulcahy, 902 F.2d 524, 538 (7th Cir. 1990). This he has not done. Although much of the complaint is devoted to detailing the poor treatment he received by reason of his membership in a particular group or class, neither the complaint nor his subsequent filings establish that non-whistleblowing employees or African-American employees in comparable positions were treated any differently than O'Connor. This elementary defect in the pleading dooms it to failure.
In response to the defendant's motion for summary judgment, O'Connor states that a number of white employees received the same kind of mistreatment as him. (Plaintiff's Response at 29). He claims that "Lorene Murray, John Powers, Kevin Stankovich, Dr. McNabola, Jon Roth, Peter Zelkovich, [and] John Billis" all were mistreated at the CTA. He goes on to state that "at least 47 white employees" filed proceedings alleging that they were harassed. These claims were not supported by the record, except perhaps as they relate to Roth and Zelkovich.
As the Court was about to issue the opinion in this case, O'Connor filed a motion for leave to file parts of a trial transcript from McNabola v. Chicago Transit Authority, No. 88 C 6811. These transcripts include an assertion by a former Board member, John Hoellen, regarding the grievances filed by 47 white employees. (Plaintiff's Supplement, Exhibit B at 425). Other testimony in the transcripts relates to Hughes and the work environment in the Law Department.
The testimony relating to the 47 grievances is not helpful because even assuming these employees were harassed, the plaintiff has still failed to show that other similarly situated employees were treated differently. The evidence regarding Hughes has little value absent a showing that the employees in her department -- mostly lawyers -- were similarly situated to O'Connor. At best this evidence shows that the CTA treated some white employees poorly. It does not show that African-American employees or non-whistleblowing employees were treated differently. For these reasons O'Connor's equal protection claim must fail.
Because it was not clearly established in 1987 -- and indeed not to this day -- that an employer could not fire an employee who in addition to being a whistleblower was insubordinate and ineffectual in his job, defendants are entitled to qualified immunity on the plaintiff's first amendment claim. The equal protection claim fails because the plaintiff has failed to show that he was treated differently from other similarly situated employees. For these reasons, the Court grants the motion for summary judgment in favor of defendants.