who could decide Mrs. Martinez's professional duties and responsibilities. According to the complaint, Mr. Hooper could decide the hours Mrs. Martinez worked and determine the responsibilities of her job (such as mopping and cleaning). (Comp. PP 50-52). The complaint also alleges that Mr. Hopper was in a position to know that "the Park District [wouldn't] like it" if Mrs. Martinez brought charges against Mr. Gonzalez. (Comp. P 36). While it may ultimately be decided Mr. Hooper is not a final policymaker, it is premature at this stage to say that, under the facts alleged, his actions could in no way bind the municipality.
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 considered as "relating to any matter of political, social, or other concern to the community...." Connick v. Myers, 461 U.S. 138, 146, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983).
The Park District argues that Mrs. Martinez's filing of a complaint with the Office of Professional Responsibility was a purely personal grievance. This argument is belied, however, by the fact Mrs. Martinez registered her complaint on the very evening the incident of false arrest and excessive force occurred. Mrs. Martinez did not wait until she was threatened with a reduction of hours, a change of job responsibilities, or an antagonistic working environment to file her complaint. She did so immediately. Further, she filed the complaint with an organization, the Office of Professional Responsibility, that could not personally benefit her. Based on the timing of the complaint and its subject matter, police malfeasance, Mrs. Martinez has alleged facts sufficient to find her speech was a matter of "public concern."
Mr. Hooper argues that he is protected from individual liability based on the doctrine of qualified immunity. Qualified immunity shields government officials from liability as long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Here, the question to be determined on the alleged facts is whether a reasonable public official should have known that he or she could not retaliate against a subordinate employee for reporting a police officer to the Office of Professional Responsibility.
The Supreme Court held long ago a public employer may not retaliate against an employee who exercises her First Amendment speech rights. Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983); Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1961). Further, in the Seventh Circuit, it is well-established that matters concerning the police department and police protection are of public concern. Glass v. Dachel, 2 F.3d 733, 741 (1993); Auriemma v. Rice, 910 F.2d 1449, 1460 (7th Cir. 1990)(en banc). As noted above, the pleadings indicate the speech in question was a matter of public concern. A reasonable public official should know that retaliation against an employee who brings to light police malfeasance is improper. Accordingly, it is premature at this time to find Mr. Hooper is entitled to qualified immunity.
For the foregoing reasons, the Park District and Mr. Hooper's motion to dismiss Count IV of Mrs. Martinez's complaint is denied.
Elaine E. Bucklo
United States District Judge
Dated: November 5, 1997