United States District Court, Northern District of Illinois, Eastern Division
April 30, 1999
ADA CARLISLE, PLAINTIFF,
RICHARD LOPRESTI, LIEUTENANT COOK COUNTY SHERIFF AND THOMAS WALSH, ASSISTANT CHIEF COOK COUNTY SHERIFF, DEFENDANTS.
The opinion of the court was delivered by: Castillo, United States District Judge.
MEMORANDUM OPINION AND ORDER
The plaintiff, Ada Carlisle, sued the defendants, Cook County Sheriff
Assistant Chief Thomas Walsh*fn1 and Cook County Sheriff Lieutenant
Richard Lopresti under 42 U.S.C. § 1983. Carlisle, who is African
American, alleges that Walsh and Lopresti violated her First Amendment
rights by retaliating against her for complaining of an allegedly
discriminatory assignment practice at the Cook County Sheriffs Office.
Currently before the Court is Defendants' motion for summary judgment.
For the reasons stated below, the motion is denied.
I. RELEVANT FACTS*fn2
From 1985 to the spring of 1996, Carlisle worked as a Deputy Sheriff at
the Harrison and Kedzie courthouse (the "Kedzie courthouse") (in
Chicago. (12(M)(3) at 1.) Carlisle's direct superior at the courthouse
was Lopresti, who, in turn, was supervised by Walsh. (12(M)(3) Ex. B at
18; 12(M)(3) at 4.) One of Lopresti's weekly responsibilities was
assigning deputies to each of the following posts at the Kedzie
courthouse: 1) courtroom security for Branch 43, the misdemeanor
courtroom; 2) courtroom security for Branch 44, the felony courtroom; and
3) front door security at the civilian entrance. (12(M)(3) at 6-8.)
In September 1995, an African — American judge (the "Judge") was
assigned to Branch 43. (12(M)(3) at 5; 12(N)(3)(b) at 1.) Shortly after
her arrival, the deputies began complaining about the Judge's demeanor
and slowness, which resulted in extended working hours. (12(M)(3) at
8-10.) Carlisle denies complaining about the Judge, and says she had no
preference for working with any particular judge. (12(M)(3) at 8.)
In November 1995, Cook County Chief Sheriff Carick informed Walsh and
Lopresti that the Judge had requested that deputies Charles Tate and
Charles Harp, both of whom are African American, be assigned to her
courtroom. (12(M)(3) at 5, 10; 12(M)(3) Ex. B, at 32-33.) As a result,
Lopresti stopped his previous practice of rotating deputies among the
three posts and primarily assigned Tate, Harp, and Carlisle to work with
the Judge in Branch 43. It is unclear why Carlisle was assigned to Branch
43 along with Tate and Harp, (see 12(M)(3) Ex. B at 33), but she
perceived the permanent assignments to be racially discriminatory. (12
(M)(3) at 11.)
On November 27, 1995, Carlisle wrote a memorandum to Walsh stating:
Male and Female deputies are rotated weekly from court
to court to security, but for the past three . . .
weeks myself, Harp and . . . Tate have remain[ed]
in Br[anch] # 43 and not rotated to other courts. On
several occasion[s] the white officers have
complain[ied] about working in [the Judge's] court 
room. . . . [the Judge] is [African American], none of
the white officers have been assigned to [the Judge's]
courtroom for the past [three] weeks [—] only
[African American] officers have been assigned there
[.] I asked [Lopresti] why I was not being rotated
like the white officers and he . . . [told] me "he was
following orders from Deputy Sheriff Patrick Hecker.
I, would like to know why I am not being rotated like
the white officers."
(12(N)(3)(b) Ex. F.) After writing this memorandum, and while Carlisle,
Harp, and Tate remained assigned primarily to Branch 43, Carlisle states
that she confronted Walsh on at least two occasions regarding the
matter. On the first occasion, Carlisle claims that she told Walsh that
she felt he and Lopresti were discriminating against the African —
American sheriffs. (12(N)(3)(b) at 2.) Walsh allegedly replied, "That's
the way you look at it but that's the way it's going to be." (12
(N)(3)(b) at 2.) Carlisle later told Walsh and Lopresti that, "We are in
the courtroom by oursel[ves]. Most times we don't get a break. They
wouldn't send the white sheriffs in to give us a break. They wouldn't
even come into the courtroom." (12(N)(3)(b) at 2; 12(M)(3) Ex. A at
63.) Walsh testified that he may have discussed Carlisle's allegations
with Lopresti, but no internal investigation was conducted and, in the
end, he decided not to change the assignments.*fn3 (12(M)(3) Ex. C, at
On January 18, 1996, Carlisle filed a written charge of race
discrimination with the Equal Employment Opportunity Commission
("EEOC"), (12(M)(3) at 2), alleging that the courtroom assignments had
been segregated since November 1995. (See 12(N)(3)(b) Ex. F.) Although
Lopresti recalls receiving a telephone call from a woman investigating
the charge, possibly Ms. Gloria Mayfield ("Mayfield"), (see 12(N)(3)(b)
at 27-33), the record does not definitively reveal when he and Walsh
first learned of Carlisle's EEOC charge.*fn4
In January 1996, the Judge was transferred from the courthouse and
Lopresti resumed rotation of the post assignments. (12(M)(3) at 5, 10.)
In July 1996, Carlisle says that Mayfield called and informed her that an
attorney for the Cook County Sheriff wanted to offer an apology for
Walsh's and Lopresti's conduct, and a promise that, the conduct would not
be repeated. (12(N)(3)(b) Ex. F at 1.) Carlisle says she rejected the
offered apology. (12(N)(3)(b) Ex. F at 1.) Sometime that month, Carlisle
was suspended for three days without pay, causing her to lose
approximately $345.00 in wages. (12(M)(3) at 14-15.) In addition, three
days after she says she rejected the offered apology, Carlisle received
written notification that she was being transferred from the Kedzie
courthouse to a court located at 1340 S. Michigan Avenue in Chicago
("Michigan Ave. courthouse"). (12(N)(3)(b) at 2.) The Michigan Ave.
courthouse is three or four miles farther away from Carlisle's house than
the Kedzie courthouse, making it inconvenient for her to get to work. (12
(M)(3) at 15.) Carlisle worked at the Michigan Ave. courthouse for three
months before her request to return to the Kedzie courthouse was
granted. (Id. at 14.)
The parties dispute the reasons why Carlisle was suspended and
transferred. Carlisle asserts that Walsh and Lopresti
were retaliating against her for her complaints to them and to the EEOC
about the assignment practice. In support of her position, Carlisle
relies upon the close temporal connection between her refusal to accept
the Sheriffs Office's apology and her suspension and transfer. (12
(N)(3)(b) at 2.) She also points to Lopresti's testimony that, for the
most part, a deputy is only detailed from one location to another when
that deputy is "having a problem working at that facility." While
Carlisle denies Lopresti's charge, Lopresti documented Carlisle's
shortcomings in a July 3, 1996 memorandum to Walsh recommending that
Carlisle be temporarily transferred.*fn5 (12(N)(3)(b) at 5.) As the
basis for Carlisle's transfer, Walsh and Lopresti argue that Carlisle was
often tardy to work, she was the cause of several written complaints, and
others believed her to have poor work habits in general. (12(M)(3) at
12-13; 12(M)(3) Ex. I-J; 12(N)(3)(b) Ex. E.) However, of Carlisle's 46
incidents of tardiness between January 1991, and April 1996, she was late
by 15 or fewer minutes in 25; also, only one incident occurred in 1996,
and only six occurred in 1995. (12(M)(3) at 12-13; 12(M)(3) Ex. I). A
deputy can be up to 15 minutes late to work without being considered
tardy unless it is a chronic problem; and, although Lopresti
characterized Carlisle as being habitually tardy, he never filed a
separate written complaint or counseled her about that conduct. (1-2
(N)(3)(b) at 3.) Additionally, of Carlisle's ten behavioral incidents
between September 1993, and July 1996, three occurred in 1996 and one
occurred in 1995. (12(M)(3) at 13; 12(M)(3) Ex. J.).
More significantly, Lopresti's memorandum revealed that Carlisle's
transfer was motivated, at least in part, by her complaints. (12
(N)(3)(b) Ex.E at el.) Lopresti wrote: "[Carlisle] is currently in a
grievance against R/LT. regarding false accusations of improper
disciplinary procedure and racism, which accusations she has also used in
the past" as part of his basis for concluding that she should be
temporarily detailed to another courthouse. (12(N)(3)(b) Ex. E at 1.)
Carlisle testified that when she asked Walsh and Lopresti why she was
being suspended and transferred, both responded that they did not
know — despite the existence of Lopresti's memorandum. (12(M)(3)
Ex. A at 118-119.)
As for Carlisle's suspension, Walsh and Lopresti deny that her
complaints played any role in her suspension, explaining that Carlisle
was suspended because of an argument between her and Lopresti in April
1996. (12(M)(3) at 14.) Following the argument, Lopresti filed a Summary
Punishment Action Request ("SPAR") against Carlisle, claiming that she
violated Sheriffs Office rules and recommending a three-day suspension
without pay. (12(M)(3) at 14-15; 12(M)(3) Ex. J at 27-28.) Carlisle
denies Lopresti's SPAR allegations. (12(N)(3)(b) at 2.)
The parties agree that Lopresti was responsible for Carlisle's
suspension, (12(M)(3) Ex. A at 112-19; 12(M)(3) Ex. B at 10-12), but
they disagree as to who was responsible for her transfer, (compare (12
(M)(8) at 14 with 12(N)(3)(a) at 4, and 12(N)(3)(b) at 4-5 with 12(M)
at 8). Carlisle asserts that it was Walsh and Lopresti, but they both
deny making the decision. (See 12(N)(3)(b) at 5; 12(M) at 8.) It is
clear that Lopresti first recommended the transfer in his July 3, 1996
memorandum to Walsh. (See 12(N)(3)(b) Ex. E.) Lopresti testified in his
deposition, however, that someone above him in the chain of command (whom
he cannot recall, but possibly Walsh) asked him to write a memorandum
after reviewing Carlisle's current performance and disciplinary record.
(12(M)(3) Ex. B at 17-25.) Walsh's deposition testimony indicates that
Carick made the decision after receiving Lopresti's recommendation, which
Walsh approved. (12(M)(3) Ex. C at 18-20; 12(N)(3)(b) at 6; 12(M)(3)
Ex. B at 18.)
On April 10, 1997, the EEOC issued a right to sue letter to Carlisle.
(12(M)(3) at 2.) On December 29, 1997, Carlisle filed this action, which
Walsh and Lopresti now seek to resolve through summary judgment.
II. STANDARDS OF LAW
Summary judgment is proper only if the record shows that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine
issue for trial exists when "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The Court must view all evidence in a light most favorable to the
nonmoving party, and draw all inferences in that party's favor. Mangren
Research & Dev. Corp. v. National Chem. Co., 87 F.3d 937, 941 (7th Cir.
1996). However, if the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted. Liberty Lobby,
477 U.S. at 249-250, 106 S.Ct. 2505; Griffin v. Air Line Pilots Ass'n
Int'l, 32 F.3d 1079, 1084 (7th Cir. 1994). In determining whether a
genuine issue of material fact exists, the Court "must view the evidence
presented through the prism of the substantive evidentiary burden."
Liberty Lobby, 477 U.S. at 254, 106 S.Ct. 2505. Credibility
determinations, weighing evidence, and drawing reasonable inferences are
jury functions, not those of a judge deciding a motion for summary
judgment. Id. at 255, 106 S.Ct. 2505.
Carlisle claims that Walsh and Lopresti suspended and transferred her
in retaliation for her complaints to them and to the EEOC, thus violating
her First Amendment right to free speech under 42 U.S.C. § 1983.
Walsh and Lopresti attack every aspect of Carlisle's claim. First, they
contend that her speech is not constitutionally protected and, even if it
is, her interest in that speech is outweighed by the government's
interest in promoting the efficiency of the public service it performs.
Next, they assert that Carlisle's speech was not the motivating factor
for her suspension or transfer, but rather that her behavior and
her performance brought about those actions. Finally, Walsh and Lopresti
argue that, even if they did violate Carlisle's constitutional rights,
they are entitled to qualified immunity in their individual capacities.
The Court will address each argument in turn.
A. Is Carlisle's speech protected by the Constitution?
Carlisle's speech consists of two written complaints — the
memorandum she wrote to Walsh on November 27, 1995 and the EEOC charge
that was later forwarded to the Cook County Sheriffs Office — and
several verbal complaints made directly to Walsh and Lopresti. The
inquiry into the protected status of speech is a matter of law, not of
fact. Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 75
L.Ed.2d 708 (1983). The law in this area is clear: the Constitution
protects a public employee's speech if it "is a matter of public concern,
and the employee's interest in expressing herself . . . [is not]
outweighed by any injury the speech could cause to `the interest of the
State.'" Waters v. Churchill, 511 U.S. 661, 668, 114 S.Ct. 1878, 128
L.Ed.2d 686 (1994) (quoting Pickering v. Board of Educ., 391 U.S. 563,
572-574, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). The Seventh Circuit
adopted the following test for determining whether speech satisfies the
criteria announced in Pickering: 1) the speech would be protected if
uttered by a private citizen; 2) it concerns something more than a
personal employee grievance; and 3) the employer has not shown a
convincing reason to forbid the speech. See Hulbert v. Wilhelm,
120 F.3d 648, 6Z3 (7th Cir. 1997).
1. Would Carlisle's speech be protected if uttered by a
Initially, we find that Carlisle's speech would be protected if uttered
by a private citizen. It is well established that speech alleging a
racially discriminatory employment practice is inherently a matter of
public concern. See Connick, 461 U.S. at 148 n. 8, 103 S.Ct. 1684
(distinguishing Connick from Givhan v. Western Line Consol. Sch. Dist.,
439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979), which involved speech
about racial discrimination, "a matter inherently of public concern");
Little v. Illinois Dep't of Revenue, 907 F. Supp. 280, 285 (N.D.Ill.
1995). Simply put, employment discrimination of any kind is a matter of
public concern. See Pollard v. City of Chicago, 643 F. Supp. 1244, 1249
(N.D.Ill. 1986) (speech identifying potentially actionable discrimination
by government employees constitutes a matter of public concern). This
interest is only heightened when the potential discrimination involves a
law enforcement officer who assists the judicial branch.
2. Did Carlisle's speech concern something more than a
personal employee grievance?
Similarly, we find that Carlisle's speech concerned something more than
a personal employee grievance. Connick establishes that, if a public
employee speaks "upon matters only of personal interest," the expression
of that speech and any alleged retaliation against the speaker is not a
matter appropriately reviewed by federal courts. 461 U.S. at 147, 103
S.Ct. 1684 (emphasis added); see also Marshall v. Allen, 984 F.2d 787
795 (7th Cir. 1993). While it is true that at least one of Carlisle's
complaints referred to the unpleasant conditions in the Judge's
courtroom, the undisputed facts establish that the overriding reason for
her speech was not her personal interest in being assigned elsewhere, but
the discriminatory nature of the post assignments. See Hartman v. Board
of Trustees of Community College Dist. No. 508, 4 F.3d 465
, 471 (7th
Cir. 1993) (citing Colburn v. Trustees of Ind. Univ., 973 F.2d 581
(7th Cir. 1992)). Indeed, Carlisle denies that she had any preference for
working with a particular judge or in a particular courtroom and Walsh
and Lopresti presented no evidence
that she asked to be transferred out of the Judge's courtroom
In challenging Carlisle's ability to show her speech was protected,
Walsh and Lopresti argue that because Carlisle "was not attempting a
public airing of an alleged breach of the public trust," her complaints
must have been of a purely personal nature. This argument is simply
wrong: Carlisle went public with her complaints in January of 1996 when
she filed a charge with the EEOC. Even if Carlisle had not filed such a
charge, the Supreme Court has held that a public employee's right to free
speech is not lost when she arranges to communicate privately with her
employer rather than to spread her views on the evening news, which
Lopresti and Walsh could not possibly prefer. See Givhan, 439 U.S. at
413, 99 S.Ct. 693. Therefore, Carlisle has satisfied the second element
of the Pickering test.
3. Have Walsh and Lopresti shown a convincing reason to
forbid Carlisle's speech?
The third and final question the Court must answer in determining
whether Carlisle's speech is constitutionally protected is whether the
employer has shown a convincing reason to forbid the speech. The Court
holds that it has, not. The Seventh Circuit has summarized the State's
legitimate interest in forbidding speech:
Under Pickering, the public employer's burden in
attempting to justify the discharge of an employee for
activities and statements involving matters of public
concern depends on various factors . . . 1) the need
to maintain discipline or harmony among co-workers; 2)
the need for confidentiality; 3) the need to curtail
conduct which impedes the employee's proper and
competent performance of [her] daily duties; or 4) the
need to encourage a close and personal relationship
between the employee and [her] superiors, where that
relationship calls for loyalty and confidence.
Breuer v. Hart, 909 F.2d 1035
, 1039-40 (7th Cir. 1990). Walsh and
Lopresti do not argue that Carlisle's speech interfered with any of the
Sheriffs Department's legitimate interests. Instead, Walsh and Lopresti
state that the "discretion utilized in the assignment of security
personnel should be given great deference," and that the racially
discriminatory practice was not occurring — a factual matter which
is simply not relevant to this inquiry.
The undisputed material facts indicate that Carlisle's speech did not
cause even a ripple of excitement or disruption within the Department.
Walsh recalls that he may have discussed Carlisle's complaints with
Lopresti, but that no internal investigation was ever conducted. Also,
the assignment procedure that Carlisle hoped to stop continued throughout
the remainder of the Judge's term at the courthouse. Furthermore, there
is no evidence that Carlisle attempted to enlist the support of her
fellow African — American deputies against Walsh and Lopresti or
that her speech impeded her from properly or competently performing her
In conclusion, after applying the undisputed facts to the
well-established law, the Court finds that Carlisle's speech is
constitutionally protected because it would be protected if uttered by a
private citizen, it concerned something more than a personal employee
grievance, and Walsh and Lopresti have not shown a convincing reason to
permissibly forbid Carlisle's speech.
B. Did Walsh and Lopresti Violate Carlisle's First Amendment
Having found Carlisle's speech to be constitutionally protected, the
Court must determine whether Walsh and Lopresti violated Carlisle's First
Amendment rights. To prevail under § 1983, Carlisle must show that
Walsh and Lopresti deprived her of her First Amendment rights, that they
intentionally caused this deprivation, and that they acted under the
color of state law. See Hulbert, 120 F.3d at 654 (citing Gregorich v.
Lund, 54 F.3d 410, 413
(7th Cir. 1995); and Rakovich v. Wade, 850 F.2d 1180
, 1189 (7th Cir.
1988)). Defendants concede the third element, arguing only that they took
no action to deprive Carlisle of her constitutional rights, intentionally
or otherwise. Carlisle insists that she suffered adverse employment
actions, intentionally undertaken by Defendants to chill her
constitutional right to free speech.
1. Did Carlisle suffer an adverse employment action?
When an adverse employment action is likely to chill the exercise of
constitutionally protected speech, it is actionable under § 1983.
Pickering, 391 U.S. at 574, 88 S.Ct. 1731. Walsh and Lopresti argue that
Carlisle's suspension and transfer did not amount to adverse employment
actions. The record clearly indicates, however, that Carlisle's three-day
suspension without pay cost her $345.00 in wages. Carlisle also argues
that her three-month transfer to the Michigan Ave. courthouse caused her
inconvenience in getting to and from work.
Seventh Circuit caselaw demonstrates that unpaid suspensions and
unwanted transfers are sufficient to chill the speech of an employee in
Carlisle's position. See Gustafson v. Jones, 117 F.3d 1015, 1021 (7th
Cir. 1997) ("It has been well established for many years in this Circuit
that a public employer may not retaliate against an employee who
exercises his First Amendment speech rights, including in particular
retaliation through a transfer to a less desirable position."); Knapp v.
Whitaker, 757 F.2d 827, 843-44 (7th Cir. 1985)); Berndt v. Jacobi,
781 F. Supp. 553, 558 n. 4 (N.D.Ill. 1991) ("the court finds irrelevant
the fact that Berndt did not actually lose his job but was `merely'
suspended instead") (citing Altman v. Hurst, 734 F.2d 1240, 1243 (7th
Cir. 1984) (rejecting a First Amendment claim where the plaintiff had
neither been "fired nor suspended" for his allegedly protected speech)
(emphasis added)). Thus, the Court finds that Carlisle's suspension and
unwanted job transfer constitute adverse employment actions. We now turn
to whether Walsh and Lopresti brought about those actions in retaliation
for Carlisle's speech.
2. Were Walsh and Lopresti responsible for the adverse
Although not specifically raised by Walsh and Lopresti, the record
indicates some discrepancy over who transferred Carlisle to the Michigan
Ave. courthouse. Reading the facts in the light most favorable to
Carlisle, the Court finds a genuine issue as to whether Walsh and
Lopresti caused Carlisle to be transferred. Walsh and Lopresti both deny
making the decision to transfer Carlisle, blaming Carick instead.
However, Lopresti's memorandum recommending Carlisle's transfer casts
doubt upon Defendants' denials. Additionally, although Walsh may tint
have made the final decision to transfer Carlisle, he certainly approved
the transfer before pushing it up the chain of command to Carick. A
reasonable juror presented with these facts could find that Walsh and
Lopresti were responsible for Carlisle's unwanted employment transfer.
3. Was the Defendants' decision to suspend and transfer
Carlisle related to Carlisle's complaints to them and
The Court turns now to the final question: whether Carlisle's speech
was a substantial or motivating factor in Defendants' decision to suspend
her and later transfer her to the Michigan Ave. courthouse. See Mt.
Healthy Rd. of Education v. Doyle, 429 U.S. 274
, 287, 97 S.Ct. 568, 50
L.Ed.2d 471 (1977); Garrett v. Barnes, 961 F.2d 629
, 632 (7th Cir.
1992). Carlisle bears the burden of establishing this element by a
preponderance of the evidence, and, until she does, the defendants need
not show a legitimate reason for the adverse action. Roberts v. Broski,
979 F. Supp. 746, 752 (N.D.Ill. 1997) (citing Mt. Healthy, 429 U.S. at
287, 97 S.Ct. 568; Cromley v. Board of Educ. of Lockport
High Sch. Dist., 17 F.3d 1059
, 1068 (7th Cir. 1994)). "The mere fact that
protected speech precedes an employment decision does not create the
inference that the speech motivated the employment decision." O'Connor
v. Chicago Transit Auth., 985 F.2d 1362
, 1368 (7th Cir. 1993). Thus, the
fact that Carlisle's speech preceded Walsh and Lopresti's decision to
suspend and transfer her does not end our inquiry. Rather, there must be
some form of evidence linking the speech to the adverse employment
actions; "mere speculation" will not suffice. Rakovick 850 F.2d at 1191.
Carlisle's suspension and transfer can be linked to her protected
speech in three ways. First, her suspension and transfer were ordered
during the same time-period, that the EEOC was conducting its
investigation into her charge of discrimination. Walsh and Lopresti were
likely informed of Carlisle's charge during this period. Next, Carlisle's
transfer was ordered just three days after she says she rejected an offer
of an apology for the discriminatory policy. Finally, Lopresti
specifically listed Carlisle's protected speech in his July 3, 1996
memorandum as one of his reasons for recommending her transfer:
"[Carlisle] is currently in a grievance against R/LT. regarding false
accusations of improper disciplinary procedure and racism, which
accusations she has also used in the past." This language directly links
Carlisle's speech to the adverse employment actions taken against her.
Walsh and Lopresti argue that they suspended Carlisle because of her
argument with Lopresti in April 1996. Although Lopresti filed a SPAR
against Carlisle in April 1996 recommending a suspension, her actual
suspension did not take effect until three months later in the midst of
the EEOC investigation, raising questions as to its true purpose. Walsh
and Lopresti argue that Carlisle was transferred because she demonstrated
poor work habits and negative interactions with others at the courthouse.
They cite her tardiness and the her coworkers' negative assessments of
Carlisle's performance. Although the record substantiates a claim that
Carlisle was not an ideal employee, only a fraction of the instances
Walsh and, Lopresti rely on to justify her transfer occurred in 1995 and
1996. Additionally, over half of Carlisle's tardy arrivals were within
the permissible time limit of 15 minutes or less. Also telling is the
fact that Lopresti did not counsel Carlisle for any of these perceived
problems and he did not formally address her "habitual tardiness" before
recommending the transfer. Finally, if Carlisle's adverse employment
actions did result from her allegedly poor behavior and performance, and
if Walsh and Lopresti were the, ones to recommend that action on those
bases, it is incongruous that they would refuse to disclose that
information to Carlisle at the time the action was taken.
Reading these facts in the light most favorable to Carlisle, the Court
concludes that a reasonable jury could place substantial weight on the
timing of Carlisle's suspension and transfer, her account of the rejected
apology, and Lopresti's mention of Carlisle's speech in his memorandum to
Walsh. A reasonable jury could also look skeptically upon Lopresti's act
of probing back through Carlisle's record five years in order to justify
her transfer, particularly since he did not counsel or discipline her for
the perceived problems earlier. In sum, a reasonable juror could agree
with Carlisle's argument that the reasons given by Walsh and Lopresti for
her suspension and transfer were pretextual and, hence, not explained to
her at the time the action was taken. Thus, a genuine issue of material
fact exists as to the question of whether Walsh and Lopresti suspended
and transferred Carlisle in retaliation for her protected speech.
In conclusion, the Court finds that Carlisle's suspension and unwanted
transfer to the Michigan Ave. courthouse constitute adverse employment
actions under § 1983 and that a genuine issue of material fact
exists as to whether Walsh and Lopresti brought about her transfer and
suspension to retaliate against her protected speech. Having reached this
conclusion, however, we must still consider whether Walsh and Lopresti
are entitled to qualified immunity.
C. Are Walsh and Lopresti entitled to qualified immunity?
In determining whether Walsh and Lopresti are entitled to qualified
immunity, the Court must ask whether the right they are accused of
violating was sufficiently particularized that reasonable persons in
their positions would have known that their conduct was probably
unlawful. See Hulbert, 120 F.3d at 655 (citing Erwin v. Daley, 92 F.3d 521,
525 (7th Cir. 1996) (finding that the qualified immunity inquiry "focuses
on the objective legal reasonableness of the action, not the state of
mind or good faith of the officials")). For the reasons set forth below,
we conclude that a public employee's right not to be suspended and
transferred in retaliation for her allegations of a racially
discriminatory assignment practice was well established in 1996.
Indeed, Connick, Little, and Pollard; which established that speech
alleging a racially discriminatory employment practice is a matter of
public concern, were all decided before 1996. See Connick, 461 U.S. at 148
n. 8, 103 S.Ct. 1684; Little, 907 F. Supp. at 285; Pollard, 643 F. Supp.
at 1249. Likewise, it was clear in 1996 that if the overriding reason for
an employee's speech is a matter of inherent interest to the public, her
speech concerned more than a personal employee grievance. See Marshall,
984 F.2d at 795; Hartman, 4 F.3d at 471; Colburn, 973 F.2d at 586. The
permissible circumstances in which Walsh and Lopresti could have forbidden
Carlisle's speech were also clear in 1996. See Breuer, 909 F.2d at
1039-1040 (listing circumstances where the employee's speech interferes
with her ability to do her job or the general harmony of the workplace).
Thus, at the time Carlisle complained about the alleged racially
discriminatory assignment practice at the courthouse, Walsh and Lopresti
should have known her speech on that matter was constitutionally
Additionally, Walsh and Lopresti should have known in 1996 that an
unpaid suspension and unwanted transfer were sufficiently adverse to
chill Carlisle's protected speech. See McGill, 602 F.2d at 780 (finding
an unwanted transfer to be retaliatory); Altman, 734 F.2d at 1243
(rejecting a First Amendment claim where the plaintiff had neither been
"fired nor suspended" for his allegedly protected speech) (emphasis
added). And, finally, if Carlisle's speech was a substantial or
motivating factor in Defendants' decision to suspend and transfer her, it
was clear in 1996 that taking such adverse action violated Carlisle's
First Amendment rights. See Garrett, 961 F.2d at 632.
In conclusion, the Court finds no genuine issue of a material fact as
to whether Walsh Lopresti are entitled to immunity; they are not.
The Court denies Walsh and Lopresti's summary judgment motion (19-1)
because genuine issues of material fact exist that need to be resolved at
trial. The parties should immediately exhaust all remaining settlement
possibilities for this litigation. If this case cannot be settled, a Final
Pretrial Order which fully conforms to this opinion*fn6 should be filed
with the Court on or before June 1, 1999. A status hearing will be held
on May 27, 1999 at 9:30 a.m.
for the express purpose of setting a firm trial date.