United States District Court, C.D. Illinois, Urbana Division
December 6, 2005.
LANCE DILLON, Plaintiff,
STEVEN M. FERMON, Defendant.
The opinion of the court was delivered by: MICHAEL McCUSKEY, District Judge
This case is before the court for ruling on the Motion for
Summary Judgment (#15) filed by Defendant, Steven M. Fermon.
Following this court's careful review of the arguments of the
parties and the documents filed by the parties, Defendant's
Motion for Summary Judgment (#15) is DENIED. This case remains
scheduled for a final pretrial conference on December 28, 2005,
at 11:00 a.m. and for a jury trial on January 9, 2006, at 9:00
The following facts are based upon this court's review of the
statements of undisputed facts and the supporting documents
provided by both parties. This court notes that, at this stage of
the proceedings, the court must consider the evidence in the
light most favorable to the party opposing summary judgment.
See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
Plaintiff, Lance Dillon, has been employed as a sworn officer
with the Illinois State Police since November 4, 1984. Plaintiff
has held various positions with the Illinois State Police since
he was hired. In 1999, Plaintiff was a special agent with the
Vermilion County Metropolitan Enforcement Group (VMEG). In
December 1999, Plaintiff was transferred from VMEG to Zone 5 and
worked as an investigator. His direct supervisors while he worked
in Zone 5 were Mike Bernardini and Michale Callahan. In April 2000, Plaintiff attended a meeting at the VMEG office
regarding a case Plaintiff was involved in while he was working
with VMEG during the summer of 1999. The defendant, Terry R.
Hawthorne, was scheduled for sentencing in Warren County,
Indiana. Plaintiff testified during his deposition that Lou
Shanks, who was hired by Fermon and was then working with VMEG,
gave the prosecutor, John Larson, false information at the
meeting. Plaintiff testified that, after the meeting, he waited
around so he could talk to the prosecutor alone. He testified
that he did not feel comfortable talking at the meeting because
Sue Culp, who was the deputy director of VMEG at that time, was
present. Plaintiff was not able to speak to Larson that day
because Larson was in a meeting with Culp. Plaintiff testified
that he telephoned Larson the next morning and told Larson that
he did not agree with what Shanks had said at the meeting.
Plaintiff informed Larson that he was not going to provide the
same testimony. Plaintiff testified that he told Larson that "if
he didn't want us conflicting on the stand, don't call me." At
his deposition, Plaintiff provided the following explanation:
[A]ccording to Lou Shanks, the defendant always dealt
drugs in Indiana, he didn't deal in Illinois. That
was untrue. We'd already made two or three buys from
him in Danville. Shanks said that the defendant was
the one that set the deal up in Indiana, which was
untrue. We did that. The [confidential source] in the
case originally was a little uneasy about doing it in
Indiana because he said the guy's never done it in
Indiana before. But then Shanks went on to tell the
prosecutor like I say, he'd already pled guilty
before this meeting. This was going to be for his
sentencing hearing. And Shanks said that Hawthorne was a big dealer in Indiana,
specifically the Crawfordsville area, where we had no
information of that. Like I said, when he when he
came to sell us the drugs in Indiana, we were only
maybe two miles in Indiana. He was almost an hour and
a half late because he kept going past where the meet
spot was. He had no idea where he was at in Indiana.
Like I said, Shanks said it was the defendant's the
defendant was the one that set up the deal in
Indiana, not us, which was completely untrue.
Plaintiff stated that he told Larson, "I'm not going to testify
that he's a big dealer in Indiana. I'm not going to testify that
he was the one who set the deal up in Indiana because he wasn't."
Plaintiff has alleged that Shanks wanted the drug buy to occur in
Indiana due to the tougher penalties in that state for drug
dealing, as opposed to Vermilion County, Illinois.
Shanks testified at the sentencing hearing, but Larson did not
call Plaintiff to testify. Plaintiff did not attend the
sentencing hearing, but testified that he reviewed the transcript
of the hearing. Plaintiff testified that, in his opinion, Shanks
lied at the sentencing hearing.
After this incident, Danny Reed, who was director of VMEG at
that time, forwarded information to Callahan pertaining to
Plaintiff and the Warren County prosecutor. Plaintiff testified
that Reed's complaint was that Plaintiff called the prosecutor
and said that Shanks was going to make false statements. Callahan
investigated and determined that Plaintiff had done nothing
wrong. Fermon testified that he learned that Plaintiff gave
information about the Indiana court proceedings from Reed.
However, Fermon testified that he did not talk to Reed about it
when Reed was the head of VMEG and did not think he heard about
it until after Plaintiff was transferred. Plaintiff testified that Fermon knew about his telephone call to Larson through Reed.
At the time Plaintiff made his statements to Larson, Fermon was
Statewide Investigations Administrator for the Illinois State
Police. When Fermon held this position, he had an office in
Springfield and an office in the VMEG office in Danville.
It is undisputed that Fermon was close friends with Shanks and
Reed. Reed testified that he socializes with Fermon at least once
a week. Fermon testified that he had frequent contact with Reed
and probably talked to Reed a couple times a week when Reed was
the head of VMEG. Fermon testified that he has known Shanks since
1993 and, in addition to a professional relationship, he has a
social relationship with Shanks and considers him a friend.
It is undisputed that Plaintiff has a lengthy disciplinary
history. Plaintiff's disciplinary record began with a letter of
reprimand issued in 1987 and included a 60-day suspension issued
on January 23, 2001, and a 90-day suspension issued on November
8, 2001. Both of these suspensions were imposed for various
misconduct, including being untruthful during an administrative
interview and providing false information. However, the record
shows that Bernardini gave Plaintiff a high rating on his
evaluation around July 2001. Edie Casella, who was the director
of Zone 5 from January 2001 to November 2001, testified that she
had no concerns about Plaintiff's job performance and felt that
Bernardini's ratings of Plaintiff were fair. In addition,
Callahan testified that he felt Plaintiff was a very professional
police officer who did good, thorough work. Callahan stated that
he had no problem assigning sensitive cases to Plaintiff.
In 2001, Ronald Haring, a retired state police officer who had
a contract to perform background investigations for the state
police, conducted a background investigation of Shanks. At that
time, Shanks had applied for a position with the Illinois State
Police as Financial Crimes Investigator. During Haring's investigation, Plaintiff spoke to
Haring and confirmed information regarding Shanks providing false
testimony during the sentencing hearing in Indiana. Because of
this and other negative information regarding Shanks, Haring
recommended that Shanks not be hired for the position. Haring was
also critical of the fact that Shanks had been hired to work for
VMEG with no background investigation. It is undisputed that
Fermon hired Shanks into the VMEG position. On September 28,
2001, Fermon sent an e-mail to Rick Karhliker of the Illinois
State Police and stated that he would like to have the
opportunity to serve as a reference for Shanks and further stated
that he was concerned that Haring had placed credence to
statements and possibly allegations made by Plaintiff and Mark
Christoff. Christoff was Hawthorne's attorney in the Indiana
In November 2001, Fermon became the director of Zone 5. Fermon
testified that, at the time he was assigned to Zone 5, he was
"operating on a belief that [Plaintiff] had provided information
unfavorable to Mr. Shanks to Mr. Haring during his background
investigation." Daniel W. Kent was the Deputy Director of
Operations for the Illinois State Police from January 25, 1999,
to December 31, 2002. Kent and Fermon are friends. In his
affidavit, Kent stated that he spoke to Fermon in November 2001
about the conduct and untruthfulness of Plaintiff in
administrative reviews and Illinois State Merit Board
proceedings. Kent stated that he advised Fermon that he had
concerns about the credibility of Plaintiff and his continued
assignment in investigations. Kent stated that he advised Fermon
to document his concerns about Plaintiff "as it related to his
investigative assignments, untruthfulness, and lack of
credibility and forward any recommendations to me for review."
On January 18, 2002, Fermon sent a memo to Diane Carper, who
was Region 3 Commander at that time. Carper was Fermon's direct supervisor. In his memo,
Fermon recommended that Plaintiff be transferred to a patrol
position. Fermon testified that he and Reed prepared the memo. In
the memo, Fermon stated that, following his assignment as Zone 5
Commander, he was required to coordinate and schedule Plaintiff's
90-day suspension. He stated that, subsequently, he reviewed
Plaintiff's personnel file. Fermon stated that, during his review
of the three Department of Internal Investigations (DII)
investigative findings, he noted that recurring in each case was
a finding that Plaintiff was untruthful to supervisors and DII
investigators. Fermon stated that he found Plaintiff's continued
pattern of untruthfulness was a matter of considerable concern
and "has seriously damaged his ability to provide unquestioned
credible testimony in the courts." Fermon noted that, based upon
the case of Giglio v. United States, 405 U.S. 150 (1972), the
findings regarding Plaintiff's untruthfulness may have to be
disclosed as potential impeachment evidence if Plaintiff was
going to be a witness at trial.
Shortly after she received Fermon's memo, Carper went to Utah
on assignment during the winter Olympics. Richard Karpawicz
filled in for Carper as Region 3 Commander while she was in Utah.
Carper testified that she told Karpawicz that there needed to be
additional research done before action was taken on Fermon's
recommendation. Karpawicz testified that Carper told him that she
would handle the matter when she returned from the Olympics.
Carper testified that the issue of Plaintiff's transfer should
appropriately have gone through the chain of command, which, at
that time, was Fermon to Carper to Carper's supervisor, Andre
Parker, and then to Kent. However, Karpawicz testified that he
was instructed by Kent to process the reassignment of Plaintiff.
Callahan testified that Fermon told him that he wanted to get
Plaintiff's transfer done while Carper was gone. Callahan also
testified that they had a lot of inexperienced investigators at
that time and, in his opinion, Plaintiff's experience as an investigator was very much
needed. On February 5, 2002, Karpawicz sent a memo to Kent and
stated that he concurred with Fermon's recommendation that
Plaintiff be reassigned to a patrol position. In his affidavit,
Kent stated that he then recommended Plaintiff's reassignment to
the Director of the Illinois State Police. Kent stated that,
prior to this recommendation, he was not informed of any
allegations that Plaintiff had made that Shanks had testified or
intended to testify untruthfully. Kent stated that Plaintiff was
reassigned to District 10 patrol effective March 1, 2002.
On February 20, 2002, a memo was issued from Carper to
Plaintiff which stated that he would be reassigned to patrol
effective March 1, 2002. Karpawicz testified that he actually
wrote the memo but put Carper's name on it. Carper testified that
she was concerned that her name was on the memo and she was not a
part of the decision to reassign Plaintiff. On February 21, 2002,
Fermon sent an e-mail to Kent which stated that the e-mail was
"Re: Dillon." The e-mail stated, "I could kiss you . . . . . but
I will not, thanks so much!" At his deposition, Fermon testified
that he could not remember this e-mail but stated that he was
pleased that Plaintiff was reassigned to patrol. Plaintiff
testified that Fermon informed him that he was being transferred
and refused to give Plaintiff any explanation for the transfer.
At some point, Haring complained about Fermon. Haring reported
that, during his background investigation of Shanks, he was
"questioned and intimidated" by Fermon. Haring also questioned
why Shanks was hired for the position as Financial Crimes
Investigator when Haring's background investigation revealed he
was not suitable for employment with the Illinois State Police.
Freddie Outlaw was one of the officers assigned to investigate
Haring's allegations. Outlaw spoke to Fermon on October 22, 2002
about Haring's complaint. Outlaw testified that Fermon was "obviously upset" when he spoke about Plaintiff and stated, "you
could tell that he was upset about things that [Plaintiff] may or
may not have said and this was his opportunity to voice his
opinion on what he thought about [Plaintiff's] accusations."
Shanks was ultimately terminated by the Illinois State Police in
On February 19, 2004, Plaintiff filed his Complaint (#1)
against Fermon. Plaintiff alleged that Fermon retaliated against
him for his efforts at speaking out on matters of public concern
and violated his rights as protected under the First and
Fourteenth Amendments to the United States Constitution.
Plaintiff brought his action under 42 U.S.C. § 1983. As noted,
Fermon has filed a Motion for Summary Judgment (#15). The Motion
is fully briefed and ready for ruling.
I. SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Schad v. Jones, 415 F.3d 671, 673 (7th Cir.
2005). In ruling on a motion for summary judgment, a district
court has one task and one task only: to decide, based upon the
evidence of record, whether there is any material dispute of fact
that requires a trial. Waldridge v. American Hoechst Corp.,
24 F.3d 918, 920 (7th Cir. 1994). "A genuine issue for trial
exists only when a reasonable jury could find for the party
opposing the motion based on the record as a whole." Michas v.
Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th
Cir. 2000), quoting Pipitone v. United States, 180 F.3d 859,
861 (7th Cir. 1999). In making this determination, the
inferences to be drawn from the underlying facts must be viewed in the light most favorable to
the party opposing summary judgment. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 158-59 (1970); see also Carreon v. Ill.
Dept. of Human Servs., 395 F.3d 786, 790 (7th Cir. 2005).
"Summary judgment is inappropriate when alternate inferences can
be drawn from available evidence." Spiegla v. Hull,
371 F.3d 928, 935 (7th Cir. 2004), citing Hines v. British Steel
Corp., 907 F.2d 726, 728 (7th Cir. 1990). The burden of
establishing that no genuine issue of material fact exists rests
with the movant. Jakubiec v. Cities Serv. Co., 844 F.2d 470,
473 (7th Cir. 1988).
II. PLAINTIFF'S CLAIM
In his Complaint (#1), Plaintiff alleged that Fermon retaliated
against him for his efforts at speaking out on matters of public
concern and violated his rights as protected under the First and
Fourteenth Amendments to the United States Constitution. It is
undisputed that the telephone conversation between Plaintiff and
Larson, the Warren County, Indiana, prosecutor, is the alleged
protected speech that forms the basis of Plaintiff's claims.
A plaintiff establishes a prima facie case of First Amendment
retaliation by showing: (1) his speech was constitutionally
protected; and (2) it was a "substantial or motivating factor" in
the employer's decision to retaliate against the plaintiff.
Carreon, 395 F.3d at 791. If the plaintiff establishes these
elements, the burden shifts to the defendant to prove that the
same action would have been taken in the absence of the protected
speech. See Carreon, 395 F.3d at 791.
Fermon first argues that Plaintiff's speech is not protected by
the First Amendment. In determining whether a government
employee's speech is constitutionally protected, a court must
apply the two-step Connick-Pickering test. Schad v. Jones,
415 F.3d 671, 674 (7th Cir. 2005), citing Connick v. Myers,
461 U.S. 138 (1983); Pickering v. Bd. of Educ. of Twp. High Sch.
Dist. 205, 391 U.S. 563 (1968). Whether speech is constitutionally protected
under this two-part test is a question of law for the court.
Carreon, 395 F.3d at 791.
First, under Connick, the court must determine whether the
plaintiff spoke "as a citizen upon matters of public concern."
Schad, 415 F.3d at 674, quoting Connick, 461 U.S. at 147.
In making this determination, the court examines "the content,
form, and context of a given statement, as revealed by the whole
record." Schad, 415 F.3d at 674, quoting Connick,
461 U.S. at 147-48. "Of these considerations, content is most important."
Carreon, 395 F.3d at 791. "The `public concern' element must
relate to a community concern and is not satisfied by `merely a
personal grievance of interest only to the employee.'" Carreon,
395 F.3d at 791, quoting Sullivan v. Ramirez, 360 F.3d 692,
699 (7th Cir. 2004). Second, under Pickering, the court
must balance "the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public
services it performs through its employees." Schad,
415 F.3d at 674, quoting Pickering, 391 U.S. at 568.
Fermon argues that Plaintiff's deposition revealed that, when
Plaintiff made his statements to Larson, he "was neither
disclosing potential perjury, nor attempting to rectify that
perjury." Fermon contends that Plaintiff's speech was a "routine
strategic discussion" with a prosecutor. He argues that, in fact,
"plaintiff's speech was designed to prevent the untruthfulness of
the speech from coming to light, by suggesting to the prosecutor
that he not call plaintiff as a witness." Fermon asserts that
"[a]ny attempt by plaintiff to hide the perjury of a fellow
police employee is not speech by a citizen on a matter of public
concern." In response, Plaintiff argues that Fermon's argument
completely distorts both the factual record and relevant legal
authority. Plaintiff contends that the case law establishes that
charges of wrongdoing by public officials is a matter that
clearly touches on matters of public concern, citing McGreal v. Ostrov,
368 F.3d 657, 679 (7th Cir. 2004). Plaintiff contends that, in
his communication with Larson, he was not pointing out a routine
matter but rather was advising a prosecutor that another law
enforcement officer was not telling the truth about an important
The Seventh Circuit has stated that "our cases have
consistently held that speech alleging government corruption and
malfeasance is of public concern in its substance." Schad,
415 F.3d at 675, quoting Spiegla, 371 F.3d at 937 (collecting
cases). As the court stated in Spiegla:
Unscrupulous public employees may find ways to
exploit the resources and opportunities available to
them through their offices. Perhaps the public's best
protection against these few wayward individuals is
the insider who is willing to speak up and shed light
on [his] colleagues' improprieties.
Spiegla, 371 F.3d at 937. However, "[s]peech that serves a
private or personal interest, as opposed to a community one, does
not satisfy the standards for First Amendment protection."
Spiegla, 371 F.3d at 935. In considering the context of speech,
"it is necessary to look at the point of the speech in question:
was it the employee's point to bring wrongdoing to light?"
Spiegla, 371 F.3d at 938, quoting Kokkinis v. Ivkovich,
185 F.3d 840
, 844 (7th Cir. 1999).
The speech at issue in this case consists of Plaintiff's
statement to Larson, the Warren County, Indiana, prosecutor, that
the testimony Shanks intended to give at the sentencing of Terry
Hawthorne was false. Plaintiff testified at his deposition that
he also told Larson that he would testify differently and
specifically told Larson that "I'm not going to testify that he's
a big dealer in Indiana. I'm not going to testify that he was the
one who set the deal up in Indiana because he wasn't." Fermon has focused solely on one part of Plaintiff's
testimony, that he told Larson that Larson should not call him to
testify if Larson did not want conflicting testimony. However, in
reviewing the record as a whole, it is clear that Plaintiff was
concerned when Shanks gave false information to Larson at the
meeting at the VMEG office. Plaintiff telephoned Larson the next
morning to let him know that Shanks' version of events was false
and that he would testify to a different version of events.
Plaintiff later spoke to Haring during Haring's background
investigation of Shanks and confirmed that Shanks provided false
testimony. This court concludes that this is evidence that
Plaintiff continued to be concerned about Shanks' conduct. This
court concludes that Plaintiff's statement to Larson that Larson
should not call him if Larson did not want conflicting testimony
cannot be interpreted, in light of the whole record, as an
attempt by Plaintiff to foster the presentation of false
testimony by Shanks. This court concludes that, through this
speech, Plaintiff was bringing to light an impropriety by Shanks,
a public employee. This court notes that there is nothing in the
record to show that Plaintiff was speaking to serve a private or
personal interest. Based upon the relevant case law and the
content of Plaintiff's speech, as revealed by the whole record,
this court concludes that Plaintiff spoke on a matter of public
concern. The content of the speech touched on a matter of concern
to the community, false testimony by a police officer at a
sentencing hearing. Therefore, this court does not agree with
Fermon that he is entitled to summary judgment based upon the
As far as the second prong of the analysis, the Pickering
test, courts consider seven factors: (1) whether the statement
would create problems in maintaining discipline or harmony among
co-workers; (2) whether the employment relationship is one in
which personal loyalty and confidence are necessary; (3) whether
the speech impeded the employee's ability to perform his daily responsibilities; (4) the time, place, and manner of the speech;
(5) the context in which the underlying dispute arose; (6)
whether the matter was one on which debate was vital to the
informed decisionmaking; and (7) whether the speaker should be
regarded as a member of the general public. Vargas-Harrison v.
Racine Unified Sch. Dist., 272 F.3d 964, 971 n. 2 (7th Cir.
2001), citing Kokkinis, 185 F.3d at 845.
This court agrees with Plaintiff that, in his Memorandum,
Fermon has not analyzed any of the Pickering factors. Fermon
has only argued that, under these facts, Plaintiff's interest in
speaking is entitled to no weight. Fermon again argues that the
only interest advanced by Plaintiff's speech was the interest in
securing a conviction or sentence notwithstanding the truth. In
short, Fermon is advancing the same argument he made when
discussing the first, Connick, prong of the analysis, an
argument this court has rejected. Accordingly, this court
concludes that Fermon has failed to make a Pickering-based
argument. This court therefore concludes that it cannot reach the
Pickering balancing phase and that Fermon has not shown that he
is entitled to summary judgment on this basis. See Spiegla,
371 F.3d at 940.
Fermon next argues that he is entitled to summary judgment
because Plaintiff cannot establish the second part of his prima
facie case, that his speech was a "motivating factor" in the
decision to reassign him to patrol. Fermon argues that Plaintiff
has no admissible evidence to show that he was reassigned because
of his speech. Fermon contends that the evidence shows that
Fermon did not know about Plaintiff's statements to Larson prior
to Plaintiff's reassignment and that Plaintiff was reassigned
because of his abysmal disciplinary record, which included
numerous instances where Plaintiff was found to have been
untruthful during an administrative interview and was found to
have provided false information. Plaintiff argues in response that there is evidence in this
case from which a jury could conclude that Fermon knew about
Plaintiff's statements to Larson prior to the reassignment
decision and that the statements were a motivating factor in the
decision to reassign him. This court agrees.
In order to prevail on his First Amendment retaliation claim,
Plaintiff must establish a causal link between the between the
protected speech and his reassignment to a patrol position. See
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977); Spiegla, 371 F.3d at 941. That is, he must
establish by a preponderance of the evidence that a motivating
factor in Fermon's action was retaliation. See Spiegla,
371 F.3d at 941. The Seventh Circuit has recently stated:
[W]e follow the approach delineated in the majority
of our cases, adopted in our sister circuits, and
compelled by Mt. Healthy itself, i.e., a plaintiff
alleging First Amendment retaliation must prove by a
preponderance of the evidence that his or her
protected activity was a motivating factor in the
defendant's retaliatory action. To clarify, a
motivating factor does not amount to a but-for factor
or to the only factor, but is rather a factor that
motivated the defendant's actions.
Spiegla, 371 F.3d at 942 (emphasis added).
First of all, Fermon's testimony regarding when he learned
about Plaintiff's statements to Larson was fairly equivocal. He
testified that he learned from Reed that Plaintiff gave
information but did not think he knew about Plaintiff's
statements prior to the decision to reassign Plaintiff. However,
the evidence indicates that Reed knew about the statements close
to the time they were made and complained about Plaintiff's
conduct, resulting in an investigation by Callahan. It is
undisputed that Fermon and Reed are close friends and the
evidence shows that they had frequent contact with each other at that time. This court concludes that a
jury could find that Fermon learned about Plaintiff's statements
from Reed long before the reassignment decision was made. In any
case, Fermon's September 28, 2001, e-mail regarding statements
about Shanks made by Plaintiff and Christoff, Hawthorne's
attorney, is evidence from which a jury could conclude that
Fermon knew about Plaintiff statements at least as of September
28, 2001. This court concludes that the evidence regarding
Haring's investigation of Shanks, and Fermon's response to the
investigation, is some evidence that Fermon knew of Plaintiff's
speech to Larson accusing Shanks of making false statements.
This court also agrees with Plaintiff that a jury could
conclude from the evidence that Plaintiff's statements were a
motivating factor in Fermon's decision to seek the reassignment
of Plaintiff to a patrol position. The evidence shows that Fermon
reacted strongly to Haring's background investigation of his
close friend, Shanks. Haring complained that, during the
investigation, Fermon "questioned and intimidated" him. The
evidence also shows that Fermon knew that Plaintiff spoke to
Haring during his investigation and that Haring was aware of
allegations that Shanks provided false testimony during the
Indiana sentencing. Outlaw testified that Fermon was upset about
the information Plaintiff provided.
Fermon had no authority over Plaintiff until he became the
director of Zone 5 in November 2001. Fermon admitted that, at
that time, he was "operating on a belief that [Plaintiff] had
provided information unfavorable to Mr. Shanks to Mr. Haring
during his background investigation." Almost immediately, Fermon
and his friend, Kent, began having discussions about reassigning
Plaintiff. Shortly thereafter, in January 2002, Fermon wrote his
memo to Carper recommending that Plaintiff be transferred to a
patrol position. Carper determined that additional research was
necessary prior to acting on Fermon's recommendation. Instead of waiting for
Carper's return from Utah, Kent instructed her replacement,
Karpawicz, to process the reassignment of Plaintiff. Callahan
testified that Fermon told him that he wanted to get Plaintiff's
transfer done while Carper was gone. This disregard for the chain
of command is somewhat suspicious. While Fermon argues that the
chain of command can properly be avoided where a superior
officer, such as Kent, makes a specific request, this court
concludes that no adequate explanation has been provided for
avoiding the chain of command in this situation. The evidence
also shows that, after the reassignment was accomplished, Fermon
sent a memo to Kent thanking him. In addition, Fermon refused to
give Plaintiff a reason for his transfer. It seems that if
Plaintiff's disciplinary record was the reason, Fermon would have
told him that. Considering the evidence in the light most
favorable to Plaintiff, as this court must at this stage of the
proceedings, this court concludes that a jury could find that
Plaintiff's statements were a motivating factor in Fermon's
decision to seek the reassignment of Plaintiff to patrol. This
court further agrees with Plaintiff that Fermon has not argued
that he has met his burden to show that the same action would
have been taken in the absence of the protected speech.
For the reasons stated, this court concludes that there is a
genuine issue of material fact regarding whether Fermon knew of
Plaintiff's speech prior to the decision to reassign him to
patrol and regarding whether Plaintiff's speech was a motivating
factor in Fermon's decision to seek Plaintiff's reassignment to
patrol. Therefore, Fermon is not entitled to summary judgment on
Fermon also argues that he is entitled to summary judgment
based upon qualified immunity. The defense of qualified immunity
"is designed to protect government agents `from liability for
civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.'" Spiegla, 371 F.3d at 940,
quoting Knox v. Smith, 342 F.3d 651, 657 (7th Cir. 2003)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
However, this court notes that it has found that Plaintiff spoke
on a matter of public concern and that this court could not
conduct a Pickering analysis because Fermon did not present any
argument regarding the Pickering factors. Without addressing
the Pickering factors, this court cannot conclude that
Plaintiff's First Amendment rights were violated a prerequisite
to determining whether the right was clearly established.
"[B]ecause the Pickering analysis is essential to the
determination of whether a constitutional violation occurred in
this case," this court cannot reach the issue of qualified
immunity on summary judgment. See Spiegla,
371 F.3d at 940.*fn1 This court will address the issue of qualified
immunity at the conclusion of the trial, based upon all of the
IT IS THEREFORE ORDERED THAT:
(1) Defendant's Motion for Summary Judgment (#15) is DENIED.
(2) This case remains scheduled for a final pretrial conference
on December 28, 2005, at 11:00 a.m. and for jury trial on January
9, 2006, at 9:00 a.m.
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