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MARTINEZ v. GONZALEZ

November 5, 1997

RENEE HENDERSON MARTINEZ, Plaintiff,
v.
JESSE GONZALEZ, ROBERT HOOPER, and the CHICAGO PARK DISTRICT, a municipal corporation, Defendants.



The opinion of the court was delivered by: BUCKLO

 The plaintiff, Renee Henderson Martinez, filed a four count complaint under 42 U.S.C. § 1983, against the defendants, Jesse Gonzalez, Robert Hooper, and the Chicago Park District. Mr. Hooper and the Chicago Park District move to dismiss Count IV of the complaint, which charges the defendants with retaliating against Mrs. Martinez after she exercised her First Amendment rights. *fn1" For the following reasons, the motion is denied.

 Background

 On March 21, 1996, the Chicago Park District sponsored a gym show at Rowan Park. Mrs. Martinez, a recreational leader with the Park District, alleges she was told by Mr. Hooper, a Park Supervisor of Recreation, to ask children playing on the gym equipment to get off the equipment so the show could start. Mr. Gonzalez, an off-duty police officer employed by the Chicago Police Department, apparently took exception to Mrs. Martinez's request that his child cease playing on the gym equipment. According to Mrs. Martinez, Mr. Gonzalez arrested her in the crowded gymnasium, handcuffed her, took her to Mr. Hooper's office, and detained her in handcuffs for a substantial period of time until she apologized for her actions.

 According to Mrs. Martinez, after the gym show Mr. Hooper told her she should not bring charges against Mr. Gonzalez because "the Park District won't like it." (Comp. P 37). Not heeding Mr. Hooper's warning, Mrs. Martinez registered a complaint with the Chicago Police Department's Office of Professional Responsibility later that night. The next day, while Mrs. Martinez filled out a incident report with the Park District, Mr. Hooper again suggested that it might not be a good idea to pursue charges.

 Mrs. Martinez alleges that, after she filed her complaint, Mr. Gonzalez began calling Mr. Hooper. Further, after the incident in the gym, false rumors began to spread that she had been arrested for physically abusing a child. Mrs. Martinez asked Mr. Hooper to write letters that would clear up these rumors, but Mr. Hooper refused. According to Mrs. Martinez, as a result of the gym incident, attendance in her classes fell dramatically. Mr. Hooper threatened Mrs. Martinez with a cut back in hours due to the decrease in the attendance of her classes. Mr. Hooper also told Mrs. Martinez that, since she did not have any classes, she would have to do any cleaning that needed to be done. Mrs. Martinez claims that due to the antagonistic attitude of Mr. Hooper and the adverse working conditions she was enduring, she reluctantly resigned her position as recreational leader with the Chicago Park District.

 Municipal Liability

 There are three instances under 42 U.S.C. § 1983 in which a municipality may be held liable for violating the civil rights of a person: (1) there was an express policy that, when enforced, caused a constitutional violation; (2) there was a widespread practice that, although not expressly authorized, was so permanent and well settled as to constitute a custom or usage with the force of law; or (3) the alleged constitutional injury was caused by a person with final policymaking authority. Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 734-35 (7th Cir. 1994)(citations omitted). Mrs. Martinez alleges her complaint falls into the third category of municipal liability.

 Municipal liability attaches where "a deliberate choice to follow a course of actions is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur v. Cincinnati, 475 U.S. 469, 483-84, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986). The identification of final policymakers is a question of state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 124, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988). The Chicago Park District argues that Mr. Hooper's actions are not those of a final policymaker. According to the Chicago Park District, only actions by the seven members of its Board of Commissioners can bind the Park District.

 First Amendment Retaliation

 To make out a claim for First Amendment retaliation, a public employee must establish: (1) "an adverse employment action motivated by the exercise of [the] right to free speech," and (2) that the speech was of "a matter of public concern." DeGuiseppe v. Village of Bellwood, 68 F.3d 187, 191 (7th Cir. 1995) (citations omitted). The Park District and Mr. Hooper argue Mrs. Martinez's complaint does not meet either prong of the retaliation test.

 Mrs. Martinez need not show she was terminated to prove an adverse employment action. Id. at 192. "Lesser retaliation such as demotions, diminished responsibilities, or false accusations all may suffice." Id. Mrs. Martinez alleges that, after she filed a complaint with the Office of Professional Responsibility and an incident report with the Park District, Mr. Gonzalez started calling Mr. Hooper. (Comp. P 53). Mrs. Martinez was soon threatened with a cut in work hours and was told she would have to start doing any cleaning that needed to be done. (Comp. PP 50, 52). Mrs. Martinez also claims Mr. Hooper falsely accused her of failing to report to work on a day that she called in sick. (Comp. P 51). While Mr. Hooper claims that Mrs. Martinez's reduction in hours was due to a decline in class attendance, it is possible that had Mr. Hooper acted by writing letters to quash rumors of child abuse, class attendance would never have fallen. (Comp. PP 43-45). Based on the totality of the complaint, Mrs. Martinez has alleged facts that would indicate that, after exercising her right to free speech, she suffered adverse employment actions.

 The Park District also claims Mrs. Martinez's speech was not on a matter of public concern. As the Seventh Circuit has noted, "when the Supreme Court in its cases establishing and bounding rights of public employees to exercise free speech limited those rights to speech on matters of 'public concern,' they did not mean matters of transcendent importance, such as the origins of the universe or the merits of constitutional monarchy; they meant matters in which the public might be interested, as distinct from wholly personal grievances...." Dishnow v. School Dist. of Rib Lake, 77 F.3d 194, 197 (7th Cir. 1996). In short, the expression of free speech must be fairly ...


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