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April 30, 2002


The opinion of the court was delivered by: Moran, Senior District Judge.


Plaintiff Sheila Zinnermon brings this action against the City of Chicago (City) alleging retaliatory discharge and violation of her First Amendment right of free speech. The City has moved to dismiss the claims against it. For the following reasons, the City's motion is granted in part and denied in part.


The facts of this case are taken from plaintiffs complaint. Plaintiff worked as a police officer with the Chicago Police Department (C.P.D.) on probation from December 13, 1999 through December 13, 2000. On July 21, 2000, plaintiff reported to her superior officer an incident in which she witnessed her partner and another officer use excessive force against an arrestee. As instructed by her superior, plaintiff filled out and filed a written report regarding the incident. A few weeks later plaintiff was accused of making a false report, and on August 14, 2000, she was interrogated by the Office of Professional Standards. Plaintiff answered questions under duress and was told that any admissions or statements she made could be used as a basis for her discharge.

In a letter postmarked December 14, 2000, plaintiff was informed that her employment was terminated as of the close of business on December 12, 2000, one day prior to the date she would have completed her probationary period. Had plaintiff remained in her position past at period, she would have been afforded all the rights and benefits of a contracted police officer, including representation by the Fraternal Order of Police. Plaintiff filed this suit in September, 2001, alleging that her discharge occurred as retaliation for her report of her fellow officers.


In deciding a Fed.R.Civ.P. 12(b)(6) motion to dismiss, we accept as true all wellpleaded factual allegations of the complaint, drawing all reasonable inferences in plaintiffs favor. Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir. 1992). A claim survives if relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). While a complaint does not need to specify the correct legal theory to withstand a Rule 12(b)(6) motion, the complaint must allege all elements of a cause of action necessary for recovery. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986).

Federal Claim

Plaintiff brings her constitutional claim under 42 U.S.C. § 1983. To properly state a section 1983 claim against a municipality, plaintiff must allege a constitutional deprivation caused by a governmental policy, practice or custom. Monell v. Dept. of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To properly claim a constitutional deprivation, plaintiff must identify speech that is protected by the First Amendment. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). As a public employee, plaintiffs speech is protected if she speaks as a citizen upon matters of public concern. Id. at 147, 103 S.Ct. 1684. Whether plaintiffs speech addresses a matter of public concern is determined by the content, form, and context of her alleged statements. Id.

It is well settled that police brutality and misconduct are matters of public concern. Delgado v. Jones, 282 F.3d 511, 519 (7th Cir. 2002); Gonzalez v. City of Chicago, 239 F.3d 939, 941 (7th Cir. 2001); Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001). A police department employee's report of police brutality and misconduct comes under the protection of the First Amendment if it is a product of some independent discretion or judgment. Delgado at 519; Branton at 743; Pietrusiak v. Kammerer, 1999 WL 1068468 *12 (N.D.Ill. 1999). The City relies on Gonzalez to support its contention that plaintiffs report is not protected by the First Amendment since she was under a duty as a police officer to report misconduct. The plaintiff in Gonzalez was an employee of the police department's Office of Professional Standards, however, and as such his daily routine involved creating routine official reports that required opinions on police misconduct and, reporting misconduct, was a mere discharge of his employment duties. Id.

Here we have a plaintiff who was under a general duty as a police officer to report misconduct to her superiors. It does not appear, however, that it was a routine task of plaintiffs job to make these reports. Under the facts alleged, plaintiff had to come forward and report what she had witnessed, in direct conflict with a de facto department policy of remaining silent. This act of reporting, while generally required of all officers, did involve independent discretion and judgment. Until we know more about the day-to-day routine of plaintiffs former position, we cannot say as a matter of law that plaintiff has failed to identify speech protected by the First Amendment. The other elements of this First Amendment retaliation claim are sufficiently alleged and it should go forward.

State Claim

Plaintiff has also alleged retaliatory discharge, a state tort claim, against the City. The City claims immunity from this claim. A local government unit may be liable in tort, but the Illinois legislature has conditioned potential liability by enacting the Local Governmental and Governmental Employees Tort Immunity Act ("the Act"), 745 ILCS 10/1-101. The City seeks shelter under section 2-201 of the Act: ". . . a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." 745 ILCS 10/2-201. While section 2-201 refers to a public employee, local governments may also be sh ...

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