United States District Court, N.D. Illinois, Eastern Division
December 15, 2005.
RICHEY A. HARE, SR., Plaintiff,
JOHN ZITEK, individually and in his official capacity as Chief of Police of the Stickney Police Department, THE VILLAGE OF STICKNEY POLICE DEPARTMENT, DONALD TABOR, individually and in his official capacity as President of the Village of Stickney, and THE VILLAGE OF STICKNEY, a municipal corporation, Defendants.
The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Richey Hare joined the Stickney Police Department in 1986. In
2002, he sued the department, as well as the Village of Stickney,
Stickney's Chief of Police (John Zitek), and Stickney's Mayor
(Donald Tabor), alleging that these defendants retaliated against
him because he uncovered and exposed corruption within the Police
Department and within the Village. Specifically, he claims that
the defendants harassed and intimidated him, going so far as to
attempt to trump up a sexual assault case against him, all in
violation of 42 U.S.C. § 1983, and in furtherance of a conspiracy
to violate 42 U.S.C. § 1983. The case is before the Court on a
motion for summary judgment filed by the defendants. Factual Background
A. Richey Hare, John Zitek & the Stickney Police Department
Richey Hare has served as a member of the Stickney Police
Department since 1986. (Hare Dep. 6/13/03 pp. 59, 70). He served
initially as an auxiliary or reserve police officer, was promoted
up through the ranks, and eventually attained the rank of
Lieutenant. (Hare Dep. 6/13/03 pp. 59, 70). In May of 1999, he
became "Commander" when the previous Commander died suddenly; the
Commander position, which is sometimes referred to as the "Chief
of Detectives" and was, at that time, second in command only to
the Chief, was created under John Zitek, who has served as
Stickney's Chief of Police since June 1993. (Hare Dep. 6/13/03
pp. 70-72; Zitek Dep. 6/23/04 pp. 5, 17, 27-28, 65-67;
Plaintiff's Exhibit 10 Rules and Regulations of Stickney Police
Department, Table of Organization).*fn1
Chief Zitek recommended that Mr. Hare be promoted to the
Commander post because, in his view, Mr. Hare was "a very good
officer," he was "competent" and "bright." (Zitek Deposition p.
68). Despite this endorsement, it is clear that there is no love lost between Chief Zitek and Mr. Hare. The parties agree that the
relationship between the two was, at least after Mr. Hare became
Commander, frosty. And both parties agree that, to the extent it
was intact at the time, the relationship between Mr. Hare and
Chief Zitek totally broke down on July 17, 2000.
B. The Heather Hanlon Incident
That day, Mr. Hare returned to work after a vacation and
learned that Heather Hanlon, a radio dispatcher who had been
hired by Chief Zitek in 1997, had forged his computer signature
to run a criminal background check through the National Crime
Information Center. (Hare Dep. 8/13/03 p. 198; Hanlon Dep. p. 8).
When Mr. Hare confirmed that Ms. Hanlon had used his name for a
criminal background check, he reported her conduct to Chief Zitek
and requested Ms. Hanlon's resignation, as well as a letter from
Ms. Hanlon stating that she used Mr. Hare's name to run a
background check without his authorization. (Hare Dep. 8/13/03
pp. 204-205). According to Mr. Hare, Chief Zitek initially agreed
with him. (Hare Dep. 8/13/03 p. 205). Mr. Hare then called Ms.
Hanlon at her house and asked for her letter of resignation,
which she brought to the Police Department within an hour. (Hare
Dep. pp. 205-207).
Mr. Hare then made a copy of Ms. Hanlon's letter and brought it
to Chief Zitek's office. (Hare Dep. 8/13/03 p. 211). At that time, Chief Zitek advised Mr. Hare that he had decided not to
fire Ms. Hanlon, but that he had decided instead to suspend her
for two months. (Hare Dep. 8/13/03 p. 212). Mr. Hare replied that
he already had her letter of resignation and that he was not
willing to accept any lesser punishment for her than that. (Hare
Dep. pp. 8/13/03 pp. 212-213). Mr. Hare maintained that if Ms.
Hanlon did not resign, the only other alternative would be to
prosecute her criminally, because her conduct constituted a
felony. (Hare Dep. 8/13/03 pp. 213-214). Mr. Hare and Chief Zitek
continued to argue about whether Mr. Hare would be able to bring
criminal charges. (Hare Dep. 8/13/03 214-217). Finally, according
to Mr. Hare's testimony, Chief Zitek stated that the only way Ms.
Hanlon was going to jail was if Chief Zitek went with her, and
Mr. Hare replied that if Chief Zitek would obstruct her arrest,
he would have to go to jail as well. (Hare Dep. 8/13/03 pp. 217,
223). Mr. Hare testified that, at that point, Chief Zitek said
that he was going to report Mr. Hare to the Mayor, and he stormed
out of the office. (Hare Dep. 8/13/03 p. 223). After Chief Zitek,
Mr. Hare left the police station. (Hare Dep. 8/13/03 pp.
223-224). Mr. Hare testified that both he and Chief Zitek were
speaking loudly during the conversation, with the door to Chief
Zitek's office open, so that many people could hear them arguing.
(Hare Dep. 8/13/03 p. 217-218). Up to the point where they both left the Chief's office, the
testimony of Mr. Hare and Chief Zitek is substantially the same.
Their testimony diverges substantially, however, about how the
events unfolded after that point.
According to Mr. Hare, after he left, Chief Zitek paged him and
ordered him to return to the station. (Hare Dep. 8/13/03 p. 290).
Mr. Hare went to Chief Zitek's office, where he found not only
Chief Zitek, but also Donald Tabor, who has served as the Mayor
of the Village of Stickney since 1999, and James Dolezal, who was
once Stickney's Chief of Police and who now serves as a Village
Trustee and the Chairman of the Board of Trustees' Police
Committee. (Hare Dep. 8/13/03 pp. 290-291; Tabor Dep. 7/23/04 pp.
14-15; Dolezal Dep. pp. 10-12, 14). Mr. Hare testified that, when
he walked into the office, Chief Zitek started screaming that he
was the Chief of Police, while Mr. Hare was nobody, and that if
Mr. Hare did not like how Chief Zitek ran his department, he
could leave. (Hare Dep. 8/13/03 pp. 292, 295-296). The meeting
then ended. (Hare Dep. 8/13/03 p. 296).
Chief Zitek's recollection of the conversation is different.
Chief Zitek testified that Mr. Hare threatened to arrest him,
that Mr. Hare was angry, proclaiming that he, not Chief Zitek,
should be the Chief of Police and that Chief Zitek was a Chicago
cop who did not belong at the Stickney Police Department. (Zitek Dep. 6/23/04 p. 137, 127-128). Chief Zitek testified that Mr.
Hare "lost it," and "went totally ape, totally nuts"; he
testified that Mr. Hare called him "all sorts of names," and told
him that he would use his connections with Trustee Dolezal to
remove the Chief from office and take over his job. (Zitek Dep.
6/23/04 pp. 127-128). Chief Zitek testified that Mr. Hare had
never spoken to him in this manner before. (Zitek Dep. 6/23/05 p.
133). Mr. Hare denies Chief Zitek's assertion about what happened
during the July 17 meeting. (Hare Dep. 4/28/04 pp. 222-223).
Trustee Dolezal, who confirmed that he was present during this
meeting, would seem to side with Mr. Hare: he testified that Mr.
Hare was respectful and used the word "sir" when referring to
Chief Zitek, and he testified that Mr. Hare never said he wanted
to be Chief or that he wanted to get rid of Chief Zitek. (Dolezal
Dep. pp. 46, 70-71). Mayor Tabor similarly confirmed that he was
present during this meeting, and he similarly testified that Mr.
Hare referred to Chief Zitek as "sir" throughout the encounter.
(Tabor Dep. 1/26/05 p. 27). On the other hand, Mayor Tabor also
testified that Mr. Hare told Chief Zitek that he was after Chief
Zitek's job. (Tabor Dep. 1/26/05 pp. 27).
Mr. Hare testified that, after the meeting, he returned to his office and spoke with the Mayor about certain improprieties
within the police department that he and some other police
officers were concerned about. (Hare Dep. 8/13/03 p. 299,
301-306). According to Mr. Hare, Mayor Tabor responded that he
would look into the issues, but that the incident involving
Heather Hanlon was over, that he would accept Ms. Hanlon's
resignation. (Hare Dep. 8/13/03 p. 306).
Mr. Hare testified that, after talking with Mayor Tabor both
about the Heather Hanlon incident and about his perceptions of
corruption in the department, he called an attorney who had
helped him out in the past to report the events that had just
transpired; he testified that he contacted the attorney because
he "knew that Chief Zitek was going to come after me for what had
just happened]." (Hare Dep. 8/18/03 p. 260).
C. Mr. Hare's Allegations of Corruption in Chief Zitek's
In their motion for summary judgment, the defendants focus
primarily on the Heather Hanlon incident. They argue that, to the
extent Mr. Hare was treated badly by Chief Zitek or by the
Village, that mistreatment was a result of animosity created
because of the Heather Hanlon incident. Mr. Hare argues
otherwise; in his view, the story begins not in July 2000 when
the Heather Hanlon incident occurred, but in May of 1999. According to Mr. Hare, this case really begins shortly after
Chief Zitek appointed him to the post of Commander. At that time,
Mr. Hare assumed, among other responsibilities, the
responsibility to maintain and control the police department's
evidence room. (Hare Dep. 6/13/03 pp. 73-74). In that capacity,
upon assuming the role of commander, Mr. Hare immediately
performed a preliminary audit of the room. (Hare Dep. 6/13/03 p.
78). At his deposition, Mr. Hare testified that he found
irregularities, such as unmarked evidence, evidence of a
suspicious nature, and lack of uniformity. (Hare Dep. 6/13/03 p.
77). Mr. Hare also testified that, when he reported to Chief
Zitek that he found discrepancies, Chief Zitek laughed and told
Mr. Hare not to worry about it, that it was over, and that "it
lies with the dead man" presumably meaning the previous
Commander who had died and whose post Mr. Hare had assumed. (Hare
Dep. 6/13/03 p. 91). Mr. Hare testified that he wanted to bring
in the Illinois State Police for an independent audit, but that
Chief Zitek ordered him not to. (Hare Dep. 6/13/03 p. 99-100).
After Mr. Hare conducted his preliminary audit, he attended a
one week Property and Evidence Management course at the
Naperville Police Department. (Hare Dep. 6/13/03 p. 107;
Plaintiff's Exhibit 18, Evidence Room Discrepancies). Mr. Hare testified that, after the course, he again spoke with Chief Zitek
about bringing in an outside agency for an independent audit, an
idea Chief Zitek again shot down. (Hare Dep. 6/13/03 p. 111). Mr.
Hare testified that Chief Zitek repeated that the issue was over
and that it "lies with the dead man." (Hare Dep. 6/13/03 p.
110-111). Mr. Hare testified that he and Captain Elias, a fellow
officer, then conducted a complete audit and determined that:
evidence was in a state of disarray; some evidence was missing,
including a kilo of cocaine, some silver and gold coins, and
other money; a lot of evidence was unaccounted for; and they had
"no idea what half of the stuff was." (Hare Dep. 6/13/03 pp.
119-122). Various officers, including Sergeant Philippon, Jeffrey
Walik, and Joseph Kretch, testified that Mr. Hare and Captain
Elias discussed with them the missing evidence. (Philippon Dep.
p. 33; Walik Dep. p. 11; Kretch Dep. p. 196).
Chief Zitek's testimony, on the other hand, differs
substantially from Mr. Hare's on the point of the evidence
locker. In his deposition, Chief Zitek denied that he ever
refused Mr. Hare's request to bring in an outside agency. (Zitek
Dep. 6/23/04 p. 77). In fact, he testified that, after the final
audit, Mr. Hare reported to him that everything was perfect and
there was nothing wrong. (Zitek Dep. 6/23/04 p. 73).
Beyond the evidence locker irregularities, Mr. Hare also testified that he and fellow police officers suspected that
criminal activity was happening at the Police Department because
large amounts of money that previously went to the Treasurer's
Office were now going through Chief Zitek. (Hare Dep. 8/13/03 p.
288). The officers suspected that Chief Zitek misappropriated
money received by the Police Department through parking tickets,
bail postings, prostitution stings, etc. (Philippon Dep. p. 9;
Walik Dep. p. 7). In fact, officer Walik testified that, on
several occasions, he saw Chief Zitek open parking ticket
envelopes and remove the cash out of them, commenting that he
needed money to take his wife out for dinner. (Walik Dep. pp.
Mr. Hare also testified that he saw Chief Zitek open envelopes
containing money for parking violations, fines, and bonds, and
put the cash he took out of the envelopes into his desk drawer.
(Hare Dep. 8/13/03 pp. 246-247). Similarly, Dora Madsen, the
Village Treasurer, testified that, on several occasions, she
witnessed Chief Zitek take cash from parking ticket funds and put
it in his pockets. (Madsen Dep. p. 78).
The officers also testified that they were concerned that Chief
Zitek kept part of the money that the Village received for off
duty details performed by the police officers. Before Chief Zitek
changed the policy, police officers were paid by a check from the Village for working off duty details on special events.
(Hare Dep. 6/13/03 p. 186). Chief Zitek started the practice of
paying officers in cash. (Hare Dep. 6/13/03 p. 186). Chief Zitek
admitted that officers were sometimes paid in cash for their off
duty details; he also admitted that he did not know whether taxes
were withheld from officers who received such cash payments.
(Zitek Dep. 6/25/04 p. 282). Officer Figueroa testified that he
discovered that Chief Zitek received compensation for the Laramie
Fire Watch detail, where police officers watch the garbage dump,
even though he was not aware that Chief Zitek ever worked that
detail. (Figueroa Dep. p. 10-12, 16, 18). Mr. Hare testified
that, on at least two occasions, Chief Zitek endorsed checks
issued to the Village of Stickney as payments for off duty
details, ordered Mr. Hare to cash the checks at a bank, through a
personal friend of his, and then took the cash from the checks,
paying the officers who worked those events in cash. (Plaintiff's
Exhibit 20: Hare Cook County Grand Jury Testimony, pp. 24-31).
Mr. Hare testified that part of the cashed checks included
reimbursements to the Village for use of its squad cars, and that
the entire amount of the checks was supposed to be processed
through the Village. (Plaintiff's Exhibit 20: Hare Cook County
Grand Jury Testimony p. 30).
Mr. Hare, Officers Walik and Kretch, Sergeant Philippon and Captain Elias met several times to discuss their suspicions of
corruption at the Police Department. (Hare Dep. 8/13/03 p. 235).
Mr. Hare testified that he first met with an attorney to discuss
these suspicions as early as July 5, 2000. (Hare Dep. 8/13/03 p.
231). However, Mr. Hare also testified that, because Chief Zitek
instituted a policy prohibiting police officers from speaking
with Village officials, he did not report the alleged misconduct
to Mayor Tabor until July 17, 2000, after the altercation
involving the Heather Hanlon incident. (Hare Dep. 8/13/03 p.
The evidence shows that, even before the Heather Hanlon
incident, Mr. Hare met several times with other police officers
to discuss their suspicions of corruption at the Police
Department. (Hare Dep. 8/13/03 p. 253). The officers also shared
their suspicious with various attorneys. (Hare Dep. 8/13/03 p.
235). At the time, the officers were unsure what agency was the
appropriate body to investigate the alleged improprieties at the
Police Department. (Hare Dep. 8/13/03 p. 231).
D. The State's Attorney & The Grand Jury
On August 16, 2000, Mr. Hare and other members of the Stickney
Police Department namely, Sergeant Philippon, Officer Kretch
and Officer Walik finally met with the Cook County State's Attorney's Office ("SAO") to report their suspicions.
(Hare Dep. 8/13/05 p. 258; Philippon Dep. p. 8, 23; Kretch Dep.
p. 13). At the time, Chief Zitek was the main subject of the
officers' complaint. (Kretch Dep. p. 147; Philippon Dep. pp. 10,
Sometime around October of 2000, the SAO started a grand jury
investigation of the Police Department. (Stratton Dep. 11/19/03
p. 11). Karyn Stratton, a 19-year veteran with the Public
Integrity Unit, was assigned to the case. (Stratton Dep. 11/19/03
p. 7). Ms. Stratton testified that her investigation revealed
some evidence of Chief Zitek's misconduct to support the
officers' allegations. (Stratton Dep. 11/19/03 p. 61). As a
result of the grand jury investigation, Ms. Stratton uncovered
theft at the Police Department in excess of $200,000. (Stratton
Dep. p. 120). Ms. Stratton testified that the missing money
consisted of cash taken from bonds, police fines, prostitution
stings, etc. (Stratton Dep. p. 120). According to Ms. Stratton's
testimony, she did not indict Chief Zitek, because, even though
she believed he had stolen money from the department, given her
experience with the Village, the Village would hinder her
investigation, and she would ultimately be unable to prove Chief
Zitek's corruption and theft beyond a reasonable doubt. (Stratton
Dep. pp. 136-137). It is clear that, at some point, Chief Zitek and the other
Village officials learned about the SAO's investigation. But the
parties disagree on when they learned about it and when they
learned that Mr. Hare was involved with it. The defendants argue
that "there is no testimony or other evidence" that Chief Zitek
knew that Mr. Hare was one of the "whistleblowers." (Defendant's
SOF ¶ 118). Mr. Hare, on the other hand, points to certain
portions of deposition transcripts that suggest that Chief Zitek
knew, from the early stages of the SAO investigation, that Mr.
Hare was one of the "whistleblowers." (Plaintiff's Response to ¶
118 of Defendants' SOF).
For example, Mr. Hare testified that, on October 18, 2000, he
met with Trustee Dolezal and informed him about the SAO's
investigation of the Police Department. (Hare Dep. 4/28/04 pp.
213-214). Trustee Dolezal testified that, after his conversation
with Mr. Hare, he went to the Village Treasurer, Dora Madsen, and
informed her that the SAO was conducting an investigation, in
which she should cooperate, and that Chief Zitek was the target
of the investigation. (Dolezal Dep. p. 33). Trustee Dolezal also
testified that he might have reported to Mayor Tabor that Mr.
Hare had gone to the SAO. (Dolezal Dep. p. 65).
Additionally, when Ms. Stratton interviewed Ms. Madsen at the
Police Department in October 2000, Mayor Tabor and Chief Zitek told her that they had the right to know what the interview
was about. (Stratton Dep. 11/19/03 pp. 107-108). According to Ms.
Stratton, Chief Zitek told her that he knew about the
investigation, because one of his friends received a subpoena.
(Stratton Dep. 11/19/03 p. 107; 12/13/04 p. 83). Ms. Madsen
testified that, after Ms. Stratton interviewed her, Ms. Madsen
informed Mayor Tabor and the trustees at the Village what the
conversation was about. (Madsen Dep. p. 18).
Mayor Tabor, on the other hand, testified that, while he found
out about the investigation the day Ms. Stratton came to
interview Ms. Madsen, he learned about the nature of the
investigation only several months later, from Trustee Dolezal.
(Tabor Dep. 7/23/04 pp. 45, 48). Mayor Tabor also denies that he
asked Ms. Stratton anything about the investigation or the
individuals involved. (Tabor Dep. 7/23/04 pp. 47-48).
Mr. Hare testified that, on or about November 10, 2000, he
received a telephone call from Robert Rivkin, an attorney who was
working for the Village. (Hare Affidavit ¶ 13). Mr. Hare
testified that Mr. Rivkin told him that he was an attorney
retained by the Village regarding the corruption investigation,
and that he wanted to meet with Mr. Hare to learn the basis of
Mr. Hare's knowledge about the allegations of corruption. (Hare
Affidavit ¶ 14). Mr. Hare informed Mr. Rivkin about his grand jury testimony and the knowledge he had of corrupt practices.
(Hare Affidavit ¶¶ 15-18). On November 28, Mr. Hare had a second
meeting with Mr. Rivkin at the Village Hall, where Mr. Rivkin
advised him that he had told Mayor Tabor and the Village Trustees
about Mr. Hare's allegations of corruption. (Hare Affidavit ¶¶
Donald Kreger, the main attorney for the Village of Stickney,
testified that Robert Rivkin was asked by Mayor Tabor on behalf
of the Village to conduct an investigation into allegations of
corrupt practices by Village personnel. (Kreger Affidavit ¶¶
2-3). Mr. Kreger also testified that Mr. Rivkin communicated the
results of his investigation to various Village officials.
(Kreger Affidavit ¶ 3).
Meanwhile, the subject of corruption at the Stickney Police
Department was picked up by a local newspaper. Susan Locander, a
freelance reporter, authored an article entitled Kreger:
Stickney Won't Punish the "Whistleblower" published on March 28,
2001. (Locander Dep. pp. 5-6, 30; Plaintiff's Exhibit 42 2
newspaper articles written by Ms. Locander about the Police
Department investigation). Ms. Locander testified that she
remembered Mayor Tabor saying that Mr. Rivkin told him about the
officers' concerns in October 2001. (Locander Dep. pp. 27, 30).
Ms. Locander also wrote in her article that the Village had
received anonymous tips about the identities of the whistleblowers around
the time the SAO investigation started. (Locander Dep. p. 33;
Plaintiff's Exhibit 42).
E. Mr. Hare's Allegations of Retaliation, Intimidation &
In his complaint, Mr. Hare asserts that he was a victim of
retaliation as a result of his speaking out to the SAO about his
suspicions of corruption at the Stickney Police Department.
(First Amended Complaint, ¶ 40). Some of the alleged acts of
retaliation include the Village's failure to provide him with
legal representation during grand jury proceedings, changes in
duties and responsibilities, the initiation of criminal charges
against Mr. Hare, the pursuit of the petition to revoke Mr.
Hare's firearm license, and the interference with the Stickney
Police Pension Board hearings and operations to prevent and later
to reverse Mr. Hare's line of duty disability. (First Amended
Complaint ¶ 42). The Court will discuss the details of these
Mr. Hare first claims that the Village retaliated against him
by failing to provide him with legal representation during the
grand jury testimony. On October 25, 2000, grand jury subpoenas
were issued for the testimony of Mr. Hare and several other
officers. (Plaintiff's exhibit 19 Cook County Grand Jury Subpoenas). Mr. Hare alleges that before their grand jury
testimony, the Village offered subpoenaed officers legal
representation, but that he unlike the others received no
such offer. (Plaintiff's memorandum in opposition to the motion
for summary judgment, p. 18). For example, Mayor Tabor called
Officer Fox to inform him that the Village would provide him with
a lawyer (Fox Dep. pp. 45-46); Chief Zitek called Mark Kozelka
and referred him to Mayor Tabor to discuss his legal
representation (Kozelka Dep. pp. 11, 13). Mr. Hare testified that
nobody from the Police Department called him or paged him after
the Department received his subpoena. (Hare Dep. 4/28/04 p. 126).
Mr. Hare also claims that his duties and responsibilities were
significantly changed after his grand jury testimony. Mr. Hare
testified that, on or about December 1, 2000, Chief Zitek
transferred him from the Detective Unit to the position of watch
commander and reassigned him to patrol duties. (Hare Affidavit ¶
11). Before the transfer, Mr. Hare worked regular shifts from 8
a.m. until 4 p.m., with weekends and holidays off and almost
unlimited overtime opportunities. (Hare Affidavit ¶¶ 8-9;
Plaintiff's Exhibit 14 Chief Zitek's memo assigning Mr. Hare to
the 8-4 shift Monday through Friday). Mr. Hare also testified
that, prior to December 1, 2000, he was provided with an unmarked, take-home police car, which he drove 24 hours a day;
and he also had a Police Department cell phone and pager. (Hare
Affidavit ¶ 10). According to Mr. Hare's testimony, before
December 1, 2000, he was in charge of the Evidence Technical
Unit, Latent Fingerprint Unit, K-9 Unit, Auxiliary Police Unit,
Police Department Evidence Locker and Crime Suppression Unit, as
well as the Badge Grand Program. (Hare Affidavit ¶ 8). Mr. Hare
testified that, on December 1, 2000, Chief Zitek took away the
unmarked car and stripped Mr. Hare off all of the above duties
and responsibilities. (Hare Affidavit ¶ 11). Instead, after
December 1, 2000, according to Mr. Hare's testimony, he worked
the 3 p.m. to 11 p.m. shift, with limited overtime opportunities.
(Hare Affidavit ¶ 11).
On or about January 18, 2001, Chief Zitek issued a memorandum,
which included changes in shifts and assignments for members of
the Police Department. (Plaintiff's Exhibit 34). Mayor Tabor
testified that Chief Zitek had the authority to make shift
changes. (Tabor Dep. 7/23/04 p. 126). As a result of the changes,
many officers filed grievances with the Union and the changes
were, for the most part, overruled. (Fox Dep. pp. 71-72; Kozelka
Dep. pp. 35-36; Kretch Dep. p. 230). The changes Chief Zitek made
to Mr. Hare's assignment were not overruled, despite Mr. Hare's
multiple requests to Chief Zitek on December 1, 2000, on January 24, 2001, and on January 26, 2001, for an explanation
as to why his shift was changed and for a transfer back to the
day shift. (Mr. Hare's letters: Plaintiff's Exhibits 33, 37, 38).
On January 29, 2001, Chief Zitek issued another memorandum,
stating that Mr. Hare's assignment to the 3-11 shift was
permanent. (Plaintiff's Exhibit 39).
Chief Zitek does not dispute that he changed Mr. Hare's duties,
but he testified that he did so because of the Heather Hanlon
incident on July 17, 2000. (Zitek Dep. 6/25/04 p. 440). Chief
Zitek also testified that, after the Heather Hanlon incident, he
wanted Mr. Hare as far away from him as possible, and that he
felt that he couldn't trust Mr. Hare. (Zitek Dep. 6/23/05pp. 143,
On April 10, 2001, after Mayor Tabor's political party won the
Village elections, Chief Zitek wrote a memorandum to Mayor Tabor
and the Board of Trustees, requesting that the rank of Commander
be eliminated, and that Mr. Hare be returned to his civil service
rank of Lieutenant. (Tabor Dep. 1/26/05 pp. 21; Plaintiff's
exhibit 40). In this memorandum, Chief Zitek explained his
request by referring to the argument he had with Mr. Hare in
July, 2000. (Plaintiff's exhibit 40). On April 19, 2001, Mr. Hare
wrote to Chief Zitek to clarify his duties, and in the letter, he
told Chief Zitek that he considered his change in job duties to be an act of retaliation. (Plaintiff's Exhibit 41).
Mr. Hare never received a response to this letter. (Zitek Dep.
6/25/04 p. 465).
Mr. Hare also alleges that Chief Zitek retaliated against him
by trying to force criminal charges against him as a result of a
comment Mr. Hare made during a victim interview at the police
station. (First Amended Complaint ¶¶ 30-35). On December 6, 2000,
Kim Koudelka came into the Stickney police station claiming that
she had been the victim of an assault. (Koudelka Dep. p. 10). Ms.
Koudelka stated that she managed to get away from her attacker
and drove to the police station, where she spoke with Mr. Hare.
(Koudelka Dep. p. 11). Police officers made a sketch of the
assailant based on her description, and then took photographs of
her injuries. (Ms. Koudelka Dep. p. 12). During the time the
photographs were taken, Mr. Hare was present in the room and
asked, jokingly, whether Ms. Koudelka would like some
wallet-sized photographs. (Koudelka Dep. pp. 13-14). Ms. Koudelka
testified that the comment made her angry, but that everything
made her angry at that time; she testified that the comment did
not make her uncomfortable. (Koudelka Dep. p. 14).
Theresa Sheputis, Ms. Koudelka's mother, saw Chief Zitek during
municipal elections in April, 2001, and asked him about the
investigation of her daughter's assault. (Sheputis Dep. pp. 8-10). Ms. Koudelka testified that, after the
conversation with her mother, Chief Zitek called her more than 20
times in an effort to get her to come to the police station.
(Koudelka Dep. p. 147). Ms. Koudelka testified that Chief Zitek
was asking her about the wallet size comment made by Mr. Hare and
characterizing it as "sexual harassment;" so she advised Mr. Hare
about it, and he referred her to Ms. Stratton. (Koudelka Dep. p.
According to Ms. Koudelka's testimony, she met with Ms.
Stratton and complained that Chief Zitek was upsetting her mother
with his calls, offering her daughter gifts, talking about her
apartment, her landlord and her children, and referring to her
sons' driving records. (Koudelka Dep. pp. 65, 193). Ms. Koudelka
testified that she believed Chief Zitek was trying to bribe and
threaten her in an effort to get her to file a sexual harassment
complaint against Mr. Hare. (Koudelka Dep. pp. 176, 193-194).
Chief Zitek admitted that he tried to contact Ms. Koudelka and
that he left several messages at her home and at her work, but he
denied talking to her, personally or on the phone. (Zitek Dep.
12/20/04 pp. 596-597). Ultimately Chief Zitek contacted the Cook
County Sheriff's Police in connection with Mr. Hare's wallet size
comment to Ms. Koudelka. (Zitek Dep. 12/20/04 pp. 555-556). Trustee Dolezal testified that, in his entire experience as a
Village Trustee, he had never seen any other instance where the
Cook County Sheriff's Police were called in to conduct an
internal affairs investigation for the Village of Stickney Police
Department. (Dolezal Dep. pp. 103-104). Detective Mallon was
assigned to the case on May 15, 2001. (Mallon Dep. p. 18). After
she completed the investigation, Detective Mallon concluded that
there was nothing sexual in nature about Mr. Hare's comment and
that Mr. Hare had not committed any crime. (Mallon Dep. p. 78).
Another allegation of retaliation against Mr. Hare involves
Chief Zitek's application to revoke Mr. Hare's firearm license.
In the fall of 2001, over a year after the July 17, 2000,
altercation between Chief Zitek and Mr. Hare, Chief Zitek asked
the Illinois State Police Fire Arms Owners Identification Unit to
revoke Mr. Hare's Owner's Identification Card. (Zitek Dep.
12/20/04 p. 629-630). Chief Zitek requested this revocation after
reading Mr. Hare's disability hearing transcript. (Zitek Dep. p.
628). Chief Zitek admitted that he had never before made such a
request, but he testified that he felt compelled to do so with
respect to Mr. Hare, because he felt Mr. Hare was a danger to
him, given the incident of July 17, 2000, and given that Chief Zitek thought that Mr. Hare lied about him during the pension
hearing. (Zitek Dep. 12/20/04 pp. 631, 636-637).
Mr. Hare also claims that, as a part of the retaliation, the
Village tried to interfere in his disability hearings. (First
Amended Complaint, ¶ 42). On August 6, 2001, Mr. Hare filed his
application for a disability pension with the Stickney Police
Pension Board, seeking a duty-related disability. (Plaintiff's
Exhibit 46). During Mr. Hare's pension hearings, the Village
asked to participate in the hearing before the Pension Board,
which was apparently unprecedented. (Tabor Dep. 1/26/05 pp.
58-59; Dolezal Dep. pp. 96-97). The Pension Board denied the
Village's request, and awarded Mr. Hare a line of duty disability
pension. (Board Transcript p. 19; Plaintiff's Exhibit 46
Decision and Order, p. 8). It is unclear who exactly in the
Village made the decision to intervene and why, as there is no
evidence that the Village Board took any official action on this
issue. (Tabor Dep. 1/26/05 p. 53).
After Mr. Hare was awarded his line of duty disability, he
alleges that the Village interfered in the next Pension Board
elections to ensure that the Pension Board was under the
Village's control in order to reverse Mr. Hare's pension award.
(First Amended Complaint, ¶ 42; Plaintiff's memorandum in
opposition of the motion for summary judgment). Several former members of the Pension Board testified that, until Mr. Hare's
pension hearing, no Village official had ever played a role in
conducting the Pension Board elections. (Stromski Dep. p. 10;
Philippon Dep. p. 32). Even though the Pension Board would
usually run elections and do the paperwork, in April, 2002, the
first elections since Mr. Hare was awarded disability, the
Village ran the elections. (Kretch Dep. pp. 225-226).
First, Trustee Dolezal asked Penelope Gibas, who was unhappy
with Mr. Hare's disability award, to run for the Pension Board.
(Gibas Dep. pp. 40-41, 87). Village trustees went to the homes of
individuals entitled to vote in the elections to campaign for Ms.
Gibas. (Dolezal Dep. pp. 88-89). Diane Barrett, Ms. Gibas's
sister-in-law, was appointed to the Stickney Police Pension Board
by Mayor Tabor. (Barrett Dep. pp. 7-8). Ms. Barrett testified
that a Village Trustee, not a member of the Pension Board, helped
her through the elections procedures and drafted documents for
her on Village stationary. (Barrett Dep. pp. 19, 21-22, 25-26).
Ms. Gibas testified that she does not know who prepared the
ballot with her name on it, but she received her pension election
ballot from Trustee Dolezal. (Gibas Dep. pp. 43-44, 46).
Next, several police officers testified that the Deputy Chief
and Commander at the time distributed the election ballots and
required the officers to sign the ballots in front of them. (Sladetz Dep. p. 23; Walik Dep. p. 41; Kretch Dep. p. 227).
According to one of the Board members, most of the individuals
present at the ballot opening were the Village representatives:
Mayor Tabor, Ms. Barrett, who was sworn into her position at the
beginning of the process by Mayor Tabor, the Village Clerk, the
Village attorney, candidate Gibas, and Mr. Kadolph, a Pension
Board trustee. (Kadolph Dep. pp. 41-42). While Ms. Gibas denies
that she was present at the vote counting, Mr. Kadolph testified
that Ms. Gibas opened the ballots. (Gibas Dep. p. 55; Kadolph
Dep. p. 73-74). Mayor Tabor also denies being present at the
meeting. (Tabor Dep. 1/26/05 p. 52).
Finally, when the newly elected Pension Board met for the first
time on May 20, 2002, Ms. Barrett made a motion to go into
Executive Session to discuss pending litigation against Mr. Hare.
(Barrett Dep. pp. 40-41). Peter Felice, the Village prosecutor,
was present during this discussion, although no Pension Board
trustee or Village official seems to know why he was there.
(Dolezal Dep. pp. 99-100; Gibas Dep. pp. 67-70; Barrett Dep. p.
F. Allegations of Retaliation Against Other Police Officers
Mr. Hare also argues that he was not the only officer who
suffered retaliation as a result of his grand jury testimony. For example, several officers who participated in the SAO
investigation or testified in front of the grand jury passed the
Sergeant Exam, but were not promoted. (See Plaintiff's Exhibit
51, 52). Some officers also testified that, during an oral
portion of their Sergeant test, the examiners did not ask them
any questions, which they found to be unusual. (Kozelka Dep. pp.
39-40; Fox Dep. p. 5, 90).
Additionally, several officers testified that Chief Zitek
treated them differently after the SAO investigation. For
instance, Officer Joe Kretch was one of the initial officers who
went to the SAO in August 2000 to complain about corruption.
(Kretch Dep. p. 13). Officer Kozelka testified that Chief Zitek
asked him to file false accusations against Officer Kretch and
became angry when officer Kozelka refused to do it. (Kozelka Dep.
pp. 60-63). Officer Jeff Walik was also one of the officers who
went to the SAO in 2000. (Hare Dep. 8/13/03 p. 288, Philippon
Dep. p. 7, Kretch Dep. p. 13). Officer Walik testified that
Commander Wiseman started writing him up under the order from
Chief Zitek after Officer Walik cooperated with the SAO. (Walik
Dep. pp. 24, 28). Officer Walik also testified that Chief Zitek
forced an individual to file a complaint against Officer Walik
for theft, and even though this person later found his money and
apologized, the incident was never cleared from Officer Walik's record. (Walik Dep. pp. 64-65). Officer Walik testified
that prior to being labeled as a "whistleblower" he had never
been reprimanded. (Walik Dep. p. 66).
Officer Page, who was also among the original "whistleblowers,"
was terminated in May 2001. (Zitek Dep. 12/20/04 at 513,
Plaintiff's Exhibit 21). Officer Page testified that Trustee
Dolezal told him that he was labeled as one of the
"whistleblowers," and that Mayor Tabor told him that his
termination was a board decision. (Page Affidavit ¶¶ 448-462,
466). Chief Zitek testified that he fired Officer Page, because
he did not work enough hours. (Zitek Dep. 12/20/04 p. 513).
Procedural History of the Case
Mr. Hare filed his original complaint on June 4, 2002. By
consent of the parties, the case was transferred first to
Magistrate Judge Bobrick, and, upon his retirement, to this
Court. On October 28, 2002, Judge Bobrick entered an order
dismissing some of the original parties from the complaint. On
January, 22, 2003, Judge Bobrick denied a motion to dismiss the
remaining defendants. On March 10, 2005, Mr. Hare filed his First
Amended Complaint, which adds Donald Tabor as a defendant and
adds an allegation that Chief Zitek and Mayor Tabor conspired to
violate Mr. Hare's First Amendment rights. The First Amended Complaint contains two counts and asserts
that the defendants retaliated against Mr. Hare and conspired to
retaliate against him, because he testified about alleged
corruption at the Police Department before the Cook County grand
jury. On June 20, 2005, all defendants jointly moved for summary
judgment on all counts.
In their motion, the defendants argue that Mr. Hare's speech
did not involve matters of public concern; that the changes in
Mr. Hare's duties and responsibilities did not amount to an
adverse action; and that any action Mr. Hare might have perceived
as adverse was the result of the July 17, 2000, argument between
Mr. Hare and Chief Zitek. The defendants also argue that there is
no legal basis for holding the Village liable, because there is
no custom or practice of retaliation against employees, and
because Chief Zitek and Mayor Tabor do not have the final
policymaking authority. Finally, the defendants contend that Mr.
Hare failed to offer sufficient evidence to support a conspiracy
On September 1, 2005, Plaintiff filed his response, arguing
that, in fact, the record evidence establishes that his speech
was constitutionally protected and that it was the motivating
factor for the retaliation that followed. Mr. Hare also contends
that the changes in his job duties, and the harassment he suffered at the hands of the Village amount to adverse actions.
Finally, Mr. Hare argues that municipal liability is appropriate
here, because Chief Zitek and Mayor Tabor had final policy making
authority, and because, their protestations to the contrary
notwithstanding, the Village does have a widespread custom of
retaliation against individuals who expose improprieties in the
The defendants were given an opportunity to file a reply brief.
In fact, the defendants asked this Court for an extension to file
the brief, and the Court granted the extension. Nevertheless,
they never filed a reply. Instead, they filed three motions to
Before the Court are the defendants' motion for summary
judgment, and defendants' three motions to strike. The Court will
consider the latter first, as those motions may determine what
evidence is and is not available for consideration on summary
A. Defendants' Motions to Strike
Before turning to the question of whether summary judgment is
appropriate in this case, the Court must address defendants'
motions to strike. The defendants have moved to strike Mr. Hare's
affidavit on the ground that parts of the affidavit contradict Mr. Hare's prior testimony and contain some conclusory
assertions; they have moved to strike Mr. Hare's responses to
their statement of facts, arguing that some responses to the
statements are not concise, and that some responses contain
improper arguments adding immaterial facts or do not properly
cite to the record; and they have moved to strike Mr. Hare's
statement of additional facts on the ground that the statements
are not concise and that they do not contain additional facts and
are immaterial. The Court will consider each motion in turn
1. Defendants' Motion to Strike Mr. Hare's Affidavit
The defendants first argue that this Court should strike Mr.
Hare's affidavit for two reasons: (1) the affidavit contradicts
Mr. Hare's prior testimony, and (2) the affidavit contains
conclusory assertions. Rule 56(e) of the Federal Rules of Civil
Procedure requires that affidavits filed in opposition to a
motion for summary judgment be based "on personal knowledge,"
setting forth "such facts as would be admissible in evidence,"
and showing "that the affiant is competent to testify to the
matters stated therein." (Fed.R.Civ.P. 56(e)). A party
opposing a motion for summary judgment cannot create "sham"
issues of fact by filing affidavits that contradict prior deposition testimony. Ineichen v. Ameritech, 410 F.3d 956, 963
(7th Cir. 2005).
The defendants first contend that, in his affidavit Mr. Hare
contradicted his prior deposition testimony by listing his
suspicions of corrupt activities, in which Chief Zitek was
allegedly involved. The defendants, in particular, point to ¶ 16
of the affidavit, in which Mr. Hare stated:
I advised Mr. Rivkin our concerns were that Chief
Zitek was either stealing or skimming Village money.
That he was running an unlicensed security company
and details out of Police Department. That he was
utilizing Village and police equipment for these
security details and we did not think the Village
was being properly reimbursed for those services and
the use of the Village's equipment.
(Hare Affidavit, ¶ 16 (emphasis added)). The defendants compare
this statement with several parts of Mr. Hare's deposition, where
he admitted that he did not really know whether Chief Zitek was
involved in criminal activity (Hare Dep. 8/13/03 p. 276), or that
he did not know that Chief Zitek benefitted from the security
details (Hare Dep. 4/28/04 pp. 72-73). Not knowing something as
a fact would not necessarily preclude Mr. Hare from having
concerns or from thinking that the fact was actually true.
Moreover, a significant amount of Mr. Hare's deposition
testimony, as stated in the fact section, actually expresses Mr.
Hare's concerns about the way Chief Zitek operated security details and handled the Village funds.
The defendants also point to another isolated and general
statement made by Mr. Hare during his Pension Board Hearing
that his job duties were "done" and the entire detective unit was
completely disbanded "within a very short period of time" after
the Heather Hanlon incident. (Defendants' exhibit 5: Hare's
transcript of Police Pension Board Hearing, pp. 57-58.) The
defendants consider this testimony contradictory to Mr. Hare's
testimony in his affidavit that his job duties were not changed
until December of 2000. (See Hare Affidavit ¶¶ 8-11;
defendants's motion to strike plaintiff's affidavit p. 3).
First, Mr. Hare's statement does not give the exact date when
his duties were changed, therefore, it does not necessarily
contradict his affidavit. Second, during the same Pension Board
hearing, only a few pages further in the transcript from the
section highlighted by the defendants, Mr. Hare stated that his
shifts and job duties changed in December 2000, after his grand
jury testimony, which is consistent with what he said in his
affidavit. (Defendants' exhibit 5: Hare's transcript of Police
Pension Board Hearing, pp. 60-63).
Next, the defendants argue that Mr. Hare's affidavit should be
stricken, because it contains conclusory statements. Under Rule
56(e), affidavits filed in opposition to a motion for summary judgment must be based on personal knowledge. (
Fed.R.Civ.P. 56(e)). Personal knowledge may consist of opinions and
inferences. Drake v. Minnesota Mining and Manufacturing
Company, 134 F.3d 878, 887 (7th Cir. 1988). However, a party
opposing a motion for summary judgment cannot defeat the motion
by filing an affidavit "with conclusory assertions, unsupported
by specific facts". Thomas v. Christ Hospital and Medical
Center, 328 F.3d 890, 894 (7th Cir. 2003).
The defendants point specifically to three statements made by
Mr. Hare in his affidavit as conclusory: that a village attorney
interviewed him about "allegations of corrupt practices," that
Mr. Hare and other individuals were "whistleblowers" and that Mr.
Hare used the word "retaliation."
The defendants want to strike Mr. Hare's statement that Village
attorney Rivkin interviewed him about "allegations of corrupt
practices." This statement, however, refers to Mr. Hare's
allegations of corrupt practices, and offers no conclusion as
to whether the Village was actually engaged in those practices.
Additionally, further parts of the affidavit offer specific
instances of practices Mr. Hare considered corrupt. Therefore,
this statement is not conclusory.
Next, the defendants take issue with Mr. Hare's use of the word
"whistleblowers." Black's Law Dictionary defines the word "whistleblower" as "an employee who reports employer wrongdoing
to a governmental or law-enforcement agency." (Black's Law
Dictionary, 8th ed.). Since Mr. Hare testified in the same
paragraph about his testimony in front of the grand jury about
his suspicions of wrongdoings at the Police Department, the word
"whistleblower" in this context is simply descriptive and not
Finally, the defendants object to Mr. Hare's use of the word
"retaliation" in his affidavit as conclusory. Again, the
defendants take the word out of context. Mr. Hare's statement is
that he was unsure as to whether he disclosed the names of other
whistleblowers to Mr. Rivkin, "because of fear for their safety
from retaliation or reprisal due to Police Department rules and
regulations." (Plaintiff's exhibit 3: Hare Affidavit ¶ 15). Mr.
Hare does not offer a conclusion that the Village retaliated
against him, he describes his concerns about revealing the
identity of other officers that testified in front of the grand
jury. He supports this concern with the subsequent statement that
the Police Department had a policy, which prohibited police
officers from speaking to Village Officials without consent from
the Chief of Police. (Hare Affidavit ¶ 15). The statement is not
conclusory, and it is supported by specific facts. In short, the Court disagrees with the defendants' contention
that Mr. Hare's affidavit contradicts his previous testimony and
that it contains conclusory statements unsupported by specific
facts. Accordingly, the Court denies defendants' motion to strike
Mr. Hare's affidavit.
2. Defendants' Motion to Strike Plaintiff's Responses to their
Statement of Facts
Next, the defendants move to strike Mr. Hare's responses to the
defendants' Statement of Material Facts ("SOF"). Defendants offer
several reasons for the motion: (1) Mr. Hare's responses include
improper arguments, (2) Mr. Hare's responses are nonresponsive,
and (3) Mr. Hare's responses improperly cite to the record.
Under Local Rule 56.1(b), a party opposing a motion for summary
judgment shall file a concise response to the movant's statement,
which should include "a response to each numbered paragraph in
the moving party's statement," including "specific references to
the affidavits, parts of the record, and other supporting
materials relied upon." (L.R. 56.1(b) (3) (A)). Failure to comply
with the Local Rule may result in the paragraphs with inadequate
responses being deemed admitted. Michas v. Health Cost Controls
of Illinois, Inc., 209 F.3d 687, 689 (7th Cir. 2000). The Court agrees with the defendants that certain statements in
Mr. Hare's response to the defendants' SOF are indeed
argumentative and non-responsive, and the Court will, therefore,
strike the responses to ¶¶ 16, 38, 57, 58, 67, 74, 81, 120, 143,
163, 194, 203, 206, 242, and 251, and will consider those
statements admitted to the extent they are supported by the
record. The Court notes, however, that some of the defendants'
statements similarly violate Local Rule 56.1 (b) (3) (A), such as
¶¶ 111, and 175, and the Court will not strike Mr. Hare's
responses to those paragraphs.
The defendants' argument that the citations to the record are
improper are based mostly on the fact that instead of referencing
each sentence, Mr. Hare, in many instances, provided support for
several sentences at the end of the response. Since Mr. Hare did
cite to the record, the Court sees no reason to punish him for a
stylistic error by striking the majority of his responses. To the
extent that the defendants complain that Mr. Hare's responses are
not supported by any citation to the record, the defendants
identify one such response ¶ 16, and this response has
already been stricken on other grounds.
Finally, to the extent that the defendants ask this Court to
strike all paragraphs that include citations to Mr. Hare's affidavit, the Court has addressed the motion to strike the
The Court notes that the defendants' SOF is hardly an example
of a perfect adhesion to Local Rule 56.1. The SOF contains
several improper conclusory sentences without citations to any
part of the record, such as "although there was extensive written
and oral discovery, there is no evidence to support Hare's
allegations of retaliation" (Defendants' SOF ¶ 111); and "to the
extent Hare's allegations pertains to Heather Hanlon, the radio
dispatcher who resigned as a result of the incident described in
Section II (C) above, there is no evidence to support such
allegations" (Defendants' SOF ¶ 175). Such statements belong in
the memorandum in support of the motion, not in the statement of
3. Defendants' Motion to Strike Mr. Hare's Statement of
The defendants' final motion seeks to strike Mr. Hare's
statement of additional facts on the grounds that the statements
are neither concise nor relevant, and that they lack proper
citations. Under Local Rule 56.1, a party opposing a motion for
summary judgment may file a statement "of any additional facts
that require the denial of summary judgment." L.R. 56.1 (3) (B).
Several judges in this district have pointed out that motions to strike additional statements of facts, while permissible, are
often unnecessary, because a party has a chance to dispute the
statement in a reply, and because statements unsupported by facts
will be disregarded. Hanania v. Loren-Maltese,
319 F.Supp.2d 814, 819 (N.D.Ill. 2004); Fenje v. Feld, 301 F.Supp.2d 781, 789
(N.D.Ill. 2003); Newsome v. James, 2000 WL 528475 at *3 (N.D.
Ill. 2000). The defendants, however, chose not to file a reply
brief, but rather challenge Mr. Hare's statements and responses,
therefore, the Court must rule on their motion.
The defendants first argue that the statements offered by Mr.
Hare in his SOF are not concise. The Court disagrees. The
majority of Mr. Hare's statements are three lines or less.
The defendants next ask this Court to strike almost 700 of Mr.
Hare's 887 statements on the ground that they are irrelevant.
Among the statements that the defendants would like stricken as
irrelevant are statements regarding Mr. Hare's appointment as
Commander and his duties in that position (Plaintiff's SOF ¶¶
47-50); statements that indicate that Trustee Dolezal informed
Mayor Tabor about Mr. Hare's involvement in the SAO investigation
in October 2000 (Plaintiff's SOF ¶¶ 216-219); and statements
about the Heather Hanlon incident (Plaintiff's SOF ¶¶ 133-163),
just to name a few. As should be clear from the Court's
recitations of the facts above, these statements are relevant to
both Mr. Hare's complaint and to the defendants' motion for summary judgment. For
example, statements about Mr. Hare's duties as a Commander after
his appointment are relevant to determine whether Mr. Hare
suffered any adverse employment action. Statements about Trustee
Dolezal's conversation with Mayor Tabor in October 2000 about Mr.
Hare's participation in the SAO investigation are relevant to the
defendants' claims that the Mayor and Chief Zitek did not know
about Mr. Hare's participation in the investigation until much
later. Finally, statements about the Heather Hanlon incident are
relevant to the defendants' argument that any adverse action that
Mr. Hare might have suffered was a result of the argument between
Mr. Hare and Chief Zitek about this incident.
Next, the defendants argue that many of the statements should
be stricken because they are improperly cited. By way of example,
the defendants seek to strike ¶ 76, which reads as follows:
When Hare reported the discrepancies in the evidence
room to Chief Zitek, Chief Zitek told him "don't
worry about it, it lies with the dead man." Zitek
laughed and said "don't worry about it, it's over,
don't worry about it." (Hare Dep. Tr. 6/13/03 p. 91)
Page 91 of Mr. Hare's transcript taken on June 13, 2003,
contains the following exchange:
Q. When you first reported the discrepancies that you
were finding while the preliminary audit was taking place to Chief Zitek, what did he tell
A. Don't worry about it, it lies with the deadman.
Q. Did he say anything else?
A. Don't worry about it.
Q. Did he say anything else other than that it lies
with the deadman, don't worry about it and laugh?
A. It's over, don't worry about it.
As is readily apparent, Mr. Hare's statement does contain a
citation to the record and an accurate one at that. The
defendants' failed to persuade the Court that Mr. Hare's
statements of facts should be stricken, and the motion is,
B. Defendants' Motion for Summary Judgment
Having determined which evidence should be considered and which
should be stricken, the Court now turns to the defendants' motion
for summary judgment. Summary judgment is appropriate where
pleadings and supporting documents show that "there is no genuine
issue as to any material facts and that the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P. 56
(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Whether a genuine issue of material facts exists is determined by
the governing substantive law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In making this determination, the Court
views the facts and draws all reasonable inferences "in the light most favorable to the non-moving party." Shank v. William
R. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999). In a summary
judgment proceeding, courts do not make credibility
determinations or choose between competing inferences. Sarsha v.
Sears, Roebuck & Co., 3 F.3d 1035, 1041 (7th Cir. 1993).
The moving party initially bears the burden of showing that,
based on the record, no genuine issue of material fact exists.
Celotex, 477 U.S. at 323. The moving party can discharge this
burden by pointing out to the district court "that there is an
absence of evidence to support the nonmoving party's case." Id.
at 325. If the moving party sustains its burden, the party
opposing the motion "must set forth specific facts showing that
there is a genuine issue for trial." Anderson, 477 U.S. at 248.
To survive a motion for summary judgment, the non-moving party
must show more than a "metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co, v. Zenith Radio Corp.,
475 U.S. 574, 596 (1986). The non-moving party must also present
sufficient evidence to support each element on which it will bear
the burden of proof at trial. Celotex, 477 U.S. at 322. Simply
relying "upon the mere allegations or denials of the adverse
party's pleading" would not constitute sufficient evidence.
Anderson, 477 U.S. at 248. 1. Mr. Hare's Retaliation Claim
In his complaint, Mr. Hare alleges that the defendants
retaliated against him for exercising his First Amendment right
and speaking out about alleged corruption at the Police
Department. The Seventh Circuit has instructed that the First
Amendment retaliation claims must be analyzed under a three part
test. Cygan v. Wisconsin Dept. of Corrections, 388 F.3d 1092,
1098 (7th Cir. 2004). First, the plaintiff must show that his
speech was constitutionally protected. Id. This inquiry is
based on the Connick-Pickering test. Id. at 1099-1100.
Second, the plaintiff must show that he suffered an adverse
employment action and that his speech was "a substantial or
motivating factor" for that action. Id. at 1098. Finally, if
the plaintiff satisfies the first two elements, the defendants
have an opportunity to show that the plaintiff would have been
subject to the same action even in the absence of his exercise of
the protected speech. Id.
The defendants have argued that Mr. Hare's claim falls short on
all three parts of the test: they argue that this speech was not
constitutionally protected, that any mistreatment he suffered was
a result of the Heather Hanlon incident and not a result of his
whistleblowing, and that, given the Heather Hanlon incident, he would have suffered the same mistreatment even if he had not
testified before the grand jury.
a. Was Mr. Hare's Speech Constitutionally Protected?
The Court must first determine whether Mr. Hare's speech was
constitutionally protected. This determination is made under the
two-step Connick-Pickering test, which requires the Court to
consider whether the speech in question addresses matters of
public concern, and, if it does, whether the government's
interest as an employer outweighs the employee's interest in
commenting upon the matter of public concern. Wernsing v.
Thompson, 423 F.3d 732, 750-51 (7th Cir. 2005). Whether the
speech is constitutionally protected is a question of law to be
decided by the Court. Kokkinis v. Ivkovich, 185 F.3d 840, 843
(7th Cir. 1999).
To decide whether speech touches on matters of public concern
the Supreme Court in Connick v. Myers examined the content,
form, and context of the speech. 461 U.S. 138, 147-148 (1983).
The content of the speech is most important. Delgado v.
Jones, 282 F.3d 511, 517 (2002). However, context too is
important in terms of whether the speech was maliciously made and
promoted purely personal interests of the speaker. Button v.
Kibby-Brown, 146 F.3d 526, 529 (7th Cir. 1998). The Seventh Circuit has explained that the "public concern"
element is satisfied when the plaintiff shows that his speech
related to "matters of political, social, or other concern to the
community" rather than a personal grievance of an employee.
Anderer v. Jones, 385 F.3d 1043, 1053 (7th Cir. 2004). Speech
that focuses on police departments is generally considered a
matter of public concern. Delgado, 282 F.3d at 517. Speech
alleging government corruption is also of public concern. Schad
v. Jones, 415 F3d. 671, 675 (7th Cir. 2005).
To satisfy the Connick-Pickering test, the plaintiff must
speak as a citizen about the matters of public concern, and not
as an employee about internal disagreements with the employer.
Connick, 461 U.S. at 147. For example, when an Assistant
District Attorney circulated a survey to determine her
co-workers' opinions about the office transfer policies, level of
confidence in the supervisors, and pressure to work in political
campaigns, the Supreme Court concluded that this speech was not
constitutionally protected. Id. at 140-141, 148. The Court
stated that this speech did not seek to "bring to public light
actual or potential wrongdoing or breach of public trust," but at
best expressed one employee's dissatisfaction with internal
policies. Id. at 148. On the other hand, where police officers publicized the order
of their Field Deputy Inspector preventing follow-up
investigations without his permission, a substantial departure
from the previous department protocol, the Seventh Circuit
decided that it would "require some metal gymnastics" to find
that the officers' speech did not touch on matters of public
concern. Gustafson v. Jones, 290 F.3d 895, 900, 902, 907 (7th
Cir. 2002). Similarly, the Seventh Circuit has found that speech
touches on matters of public concern when it exposes misconduct
by government officials. See, e.g., Spiegla v. Hull,
371 F.3d 928, 936-937 (7th Cir. 2004); Sullivan v. Ramirez,
360 F.3d 692, 693, 699 (7th Cir. 2004); Breuer v. Hart, 909 F.2d 1035,
1039 (7th Cir. 1990).
Mr. Hare's grand jury testimony concerned his suspicions that a
Stickney Police Department official was engaged in corrupt
practices and that he misappropriated money belonging to the
Village. Mr. Hare suspected that Chief Zitek misappropriated cash
from bond postings and parking tickets, received compensation for
work he did not perform, and manipulated articles from the
evidence locker. Unlike the speech at issue in Connick, Mr.
Hare's speech did seek to bring to light potential wrongdoings of
a public official. It was not simply a complaint about internal
department policies; it concerned allegations that a public official was stealing and misusing money that belonged
to the Village. If true, Mr. Hare's allegations would surely
prove that Chief Zitek breached the public trust and violated the
law. And in fact, the SAO investigation that sprang from the
information provided by Mr. Hare and his fellow police officers
uncovered the misappropriation of over $200,000.
The defendants apparently concede that Mr. Hare's speech
touched upon matters of public concern. Yet they contend that Mr.
Hare's speech was maliciously and falsely made, with an eye
towards promoting only Mr. Hare's personal interests in getting
revenge against Chief Zitek for not firing Mr. Hanlon, and in
getting Chief Zitek removed from his position so that Mr. Hare
could become the next Chief of Police. The evidence in the
record, however, does not support this contention.
The defendants argue that, because Chief Zitek was not indicted
as a result of Mr. Hare's grand jury testimony, Mr. Hare's
statements must have been malicious lies. This argument is not
only illogical, it is unsupported in the record. There is ample
evidence presented that Mr. Hare and other Stickney Police
Department officers witnessed what they believed to be unlawful
acts by Chief Zitek. Even Ms. Stratton, the SAO prosecutor in
charge of the investigation, testified that she believed that
Chief Zitek committed unlawful acts. The defendants also argue that Mr. Hare testified in front of
the grand jury in retaliation for the Heather Hanlon incident,
and as a means of ousting Chief Zitek from the position of Chief.
But Mr. Hare and the other officers involved in bringing the
corruption to light all testified that they met to discuss their
suspicions of corruption on numerous occasions before the
Heather Hanlon incident. And the record shows that Mr. Hare
discussed his concerns and suspicions with an attorney though
not a State's Attorney before the Heather Hanlon incident
occurred. Additionally, there is no evidence in the record that
Mr. Hare would have become the next Chief of Police if Chief
Zitek had been removed.
The evidence does suggest that the Heather Hanlon incident may
have been the final straw that compelled Mr. Hare to contact the
SAO. However, even if Mr. Hare had some personal interest in
coming forward with the information, such personal interest is
not dispositive. The Seventh Circuit has held that an employee's
"personal stake in the subject matter of the speech does not
necessarily remove the speech from the scope of public concern."
Button, 146 F.3d at 529. It often happens that the employees
who have some personal stake in exposing wrongdoings of public
officers are the only ones who bring these wrongdoings to the
attention of appropriate authorities. Breuer, 909 F.2d at 1039. The speech is unprotected only when it is motivated purely by
private interests and addresses only the personal affect of the
misconduct on the employee. Marshall v. Porter County Plan
Commission, 32 F.3d 1215, 1219 (7th Cir. 1994).
The record indicates that, while the Heather Hanlon incident
may have been related to Mr. Hare's decision to contact the SAO,
it was not the determinative factor. Mr. Hare and his fellow
officers had been discussing how to proceed with their suspicions
of corruption before the incident. The allegations concerned
Chief Zitek's conduct that had no personal affect on Mr. Hare,
because there is no evidence that Mr. Hare personally benefitted
from exposing misappropriations of public funds. At the same
time, Mr. Hare's testimony in front of the grand jury served a
significant public purpose it helped expose more than $200,000
of misappropriated public funds. Even if Mr. Hare's speech was
partially motivated by his disagreement with Chief Zitek over the
Heather Hanlon incident, this private motivation is outweighed by
the public nature of the speech and the significant interest of
the community in discovering wrongdoings by public officials.
Therefore, Mr. Hare has demonstrated that his speech touched on
matters of public concern and was not motivated by purely private
interests. Having determined that Mr. Hare's speech touched on matters of
public concern, the Court must next address the second part of
the Connick-Pickering test and balance the interest of the
employee to engage in the speech against the interest of the
government as an employer. Sullivan, 360 F.3d at 698. To decide
whether the need for speech outweighs the government's interest,
the Court will consider (1) the government's need to maintain
discipline and harmony at the work place, (2) the need for
confidentiality, (3) the need to prevent conduct that interferes
with employees' performance, and (4) the need to encourage
loyalty, confidence and a close relationship between employees
and superiors. Breuer, 909 F.2d at 1040-1041. The more
important the matters of public concern, the stronger the showing
of the government interest must be to prevent disclosure of such
matters. Connick, 461 U.S. at 152.
In this case, Mr. Hare's speech involved a subject of
significant public concern the suspected misappropriations of
Village funds by Village officials. The defendants must,
therefore, present evidence of a very strong municipality
interest to outweigh the need for the speech.
The defendants argue that, because Mr. Hare met with other
officers and Ms. Stratton before testifying in front of the grand
jury, this somehow "disrupted the order and discipline of the Police Department." They also argue that Mr. Hare's conduct
distracted him from his professional duties and deprived the
Village of his full services and attention. But the defendants do
not point to any evidence in the record to show that the work of
the Police Department was in any way disrupted or that Mr. Hare
was distracted or performed his duties inadequately. Other than
the altercation between Mr. Hare and Chief Zitek over the Heather
Hanlon incident, which happened several months before the grand
jury testimony, there is nothing in the record to suggest that
there was a breakdown of discipline. There is also nothing in the
record to suggest that Mr. Hare acted insubordinately at any time
after the Heather Hanlon incident. Additionally, because the
issues involved concern matters of corruption and
misappropriation of funds, the municipality can have no interest
in keeping this information confidential.
The defendants also argue that the Village's interest prevails
in this case because Mr. Hare's statements were erroneous, if not
malicious. The Seventh Circuit has held that an employer has a
strong interest in preventing erroneous statements, and an even
stronger interest in preventing deliberate falsehoods. Wright v.
Illinois Department of Children and Family Services,
40 F.3d 1492, 1505 (7th Cir. 1994). However, the truth of the statements
influences the balancing test only to the extent that the employer took action to prevent
the speech at issue because it reasonably believed at the time
that the speech was untrue and potentially damaging to the work
place. McGreal v. Ostrov, 368 F.3d 657, 677 (7th Cir. 2004).
The defendants, however, do not claim that they believed Mr.
Hare's speech was untrue; in fact, they argue that Village
officials did not even know about Mr. Hare's participation in the
SAO investigation until much later in the process. So, even if
Mr. Hare's statements were erroneous, that fact would have no
bearing on the balancing test, because, according to the
defendants, they did not know about the speech.
Additionally, as discussed above, the record contains no
evidence that Mr. Hare had maliciously manufactured allegations
about his suspicions of Chief Zitek's conduct. On the contrary,
Mr. Hare was only one of several officers who believed that Chief
Zitek engaged in unlawful activity, and Ms. Stratton, an SAO
prosecutor, testified that she found Mr. Hare's testimony to be
When balancing the interests of the employee and the government
employer, the Court must also consider whether the employee
addressed his concerns through appropriate channels. Wright,
40 F.3d at 1503. The Seventh Circuit has held that, where employees
exercise their speech through media channels, the employer's interests may outweigh the need for speech if the
speech prevents the employer from effectively carrying out its
responsibilities. See e.g., Wright, 40 F.3d 1492 at 1497 (having
lost in the internal policy battle on awarding a particular
visitation policy to a father potentially involved in satanic
rituals, the employee tried to subvert her supervisors' decision
in the media and in court); Kokkinis, 185 F.3d at 841-843
(police officer stated on television that the public would be
shocked by what was going on at the police department because of
the police chief's vindictiveness); Jefferson v. Ambroz,
90 F.3d 1291, 1294 (7th Cir. 1996) (a probation officer
misrepresented himself on the radio as a gang member to criticize
the police department and the judicial district, making the calls
to the radio station from home during work hours or from work).
Mr. Hare did nothing that would have endangered the effective
functioning of the Police Department. He did not go to the media;
rather, he first contacted an attorney with whom he had a
relationship, and then he took his concerns to the SAO's Public
Integrity Unit, an appropriate agency to handle the corruption
Finally, the Seventh Circuit has noted that a district court
can decide the Connick-Pickering question before trial only
when the evidence in the record is clear and undisputed.
McGreal, 368 F.3d at 677. With respect to the facts relevant to
this issue, that is the case here. Although the parties clearly disagree
about many facts, there is no dispute that Mr. Hare's "speech"
involved an important matter of public concern namely,
corruption at the police department. And the record is clear
that, even if his speech was partially motivated by his private
interests, Mr. Hare spoke about corruption as a citizen of the
Village, and not as a disgruntled employee. Under the balancing
test, there is no evidence in the record that Mr. Hare's
testimony disrupted the functions or discipline of the Police
Department, or that his speech in any way interfered with Mr.
Hare's ability to perform his duties. Rather, the record shows
that Mr. Hare "spoke" in good faith and that he pursued his
allegations through the appropriate channels. In sum and in
short, the Court finds that Mr. Hare's speech was
b. Did Mr. Hare Suffer an Adverse Employment Action Because of
Having determined that Mr. Hare's speech is constitutionally
protected, the Court must next consider whether Mr. Hare suffered
an adverse employment action, and, if he did, whether that action
was a consequence of his speech. The defendants argue first that
Mr. Hare suffered no adverse employment action. They also argue
that, to the extent Chief Zitek's conduct caused Mr. Hare to suffer such an action, that conduct was motivated by personal
animosity and not by Mr. Hare's cooperation with the SAO.
Adverse employment action may include "a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits." Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Given
this definition, it is clear that Mr. Hare did, in fact, suffer
one or more adverse employment actions: he was reassigned from
the Detective Unit to a Patrolling Unit, he was removed from his
position of authority over several departments, his work shifts
were changed to less desirable shifts, involving fewer
opportunities for overtime pay, his work car and pager were taken
away, and the Village took steps to reverse Mr. Hare's line of
duty disability by interfering in the Pension Board proceedings
and manipulating the Pension Board elections. Additionally, the
record suggests that Chief Zitek started an unwarranted criminal
investigation against Mr. Hare and sent requests to revoke Mr.
Hare's firearm license. A reasonable jury could easily conclude
that some or all of these events amounted to an adverse
But suffering the action is not enough; Mr. Hare must also show
that his speech was a motivating factor for the adverse employment action he suffered. He may do so by showing that the
speech was "a consideration present in defendant's mind that
pushed the defendant to act." Hasan v. U.S. Dept. of Labor,
400 F.3d 1001, 1006 (7th Cir. 2005). The defendants argue that Mr.
Hare's cooperation with the SAO and his testimony in front of the
grand jury was not a motivating factor in the actions that Mr.
Hare alleges to be adverse. In fact, they argue that there is no
evidence that Chief Zitek was even aware of Mr. Hare's part in
the SAO investigation. But the record contains evidence that
For example, Mr. Hare testified that he told Trustee Dolezal
about the SAO investigation in October 2000, and Trustee Dolezal
allegedly shared this information with Mayor Tabor. (Hare Dep.
4/28/04 pp. 213-214; Dolezal Dep. p. 33). Ms. Stratton testified
that she encountered Chief Zitek and Mayor Tabor during her
interview with Ms. Madsen in October 2000, and that they made it
clear to her that they knew about the investigation. (Stratton
Dep. 11/19/03 pp. 107-108). Additionally, Mr. Hare testified that
Mr. Rivkin, the Village attorney, interviewed him at the early
stages of the investigation, and Mr. Hare told him everything he
knew about the investigation. (Hare Affidavit ¶¶ 13-18). Given
that Mr. Rivkin worked for Mayor Tabor, and given the seemingly
close relationship between Mayor Tabor and Chief Zitek, it would be easy to infer that the information Mr. Hare
passed on to Mr. Rivkin may eventually have reached Chief Zitek.
Additionally, although the defendants have posited that Mr.
Hare's mistreatment can be explained by the animosity created by
the Heather Hanlon incident, the record evidence does not support
that theory. For example, although Chief Zitek testified that he
changed Mr. Hare's shift and duties immediately after the Heather
Hanlon incident on July 17, 2000, Mr. Hare's testimony in front
of the Police Department Pension Board, Chief Zitek's memoranda,
and Mr. Hare's letters to Chief Zitek regarding his shift changes
indicate that the changes actually did not occur until December
2000, almost five months after the Heather Hanlon incident, but
only a short period of time after Mr. Hare's testimony in front
of the grand jury. Similarly, Chief Zitek did not request Mr.
Hare's removal from the Commander position until 2001, and he did
not seek to have Mr. Hare's license terminated until 2001. While
the temporal link between the grand jury testimony may not be
dispositive, Smith v. Dunn, 368 F.3d 705, 709 (7th Cir. 2004),
it does tend to undermine the defendants' arguments on this
And there is more. For example, after his shifts were changed,
Mr. Hare wrote several letters to Chief Zitek asking to be
returned to his regular shift and stating that he would assume
that Chief Zitek was retaliating against him for his grand jury testimony unless he received a different response. (Mr. Hare's
letters: Plaintiff's Exhibits 33, 37, 38, 41). Chief Zitek never
replied to these letters. Officer Kretch testified, that after
the grand jury testimony, Sergeant Wiseman told him that "shifts
are going to change and heads are going to roll," which Officer
Kertch understood to mean that Chief Zitek was going to make
these changes. (Kretch Dep. pp. 58-59). Additionally, David
Schmidt, an independent contractor for the Village and a friend
of Mr. Hare, testified that, after questioning Mr. Schmidt about
his knowledge of the SAO investigation, the Chief and the Mayor
told him, in November 2000, that, if he knew what was good for
him, he would stop associating with Mr. Hare. (Schmidt, Dep. pp.
Although a jury could accept Chief Zitek's contention that he
changed Mr. Hare's duties and took these other actions because of
the Heather Hanlon incident in July 2000, it could just as easily
find that the Chief took these steps because of Mr. Hare's
involvement in the SAO investigation in late 2000.
The defendants also argue that there is no indication that
Mayor Tabor took any adverse action against Mr. Hare. However,
evidence in the record suggests that Mayor Tabor was the person
who arranged for legal representation for officers who testified
in front of the grand jury, and that he offered such representation to everyone but Mr. Hare. Additionally, given his
status as Mayor, a jury could reasonably conclude that Mayor
Tabor authorized, or at least knew about and went along with, the
Village attorney's conduct in the Pension Board hearing, and that
he may have had a hand in recruiting the new candidates for the
Pension Board elections to reconsider Mr. Hare's duty disability
Under these facts, a reasonable jury could conclude that Mr.
Hare did, in fact, suffer one or more adverse employment actions
at the defendants' hands, and that the defendants took such
action because of Mr. Hare's cooperation with the SAO and his
testimony in front of the grand jury.
C. Would the Defendants Have Taken the Same Action Absent Mr.
Hare's Exercise of Speech?
In the final step of the First Amendment retaliation analysis,
the Court considers whether the defendants can demonstrate that
they would have taken the same action absent the protected
speech. With respect to this element, the defendants argue only
that any action suffered by Mr. Hare was the result of the
Heather Hanlon incident, and, as such, the action would have been
taken even if Mr. Hare had not participated in the corruption
investigation. They argue that, because of the Heather Hanlon
incident, Chief Zitek had the power to file formal disciplinary charges against Mr. Hare, and that as an "act of
kindness," Chief Zitek opted instead to change Mr. Hare's shift,
so that he could avoid having to interact with him.
Although the defendants' argument is perhaps plausible, their
story is somewhat problematic because of the timing of the
events. The defendants do not explain, for example, why Chief
Zitek would have waited almost five months after the incident to
reassign Mr. Hare and remove his work car and pager, and more
than a year after the incident to request termination of Mr.
Hare's firearm license. Nor do they explain why the Chief started
an unwarranted criminal investigation against Mr. Hare. Nor do
they explain the Village's failure to provide legal
representation to Mr. Hare during his grand jury testimony or the
Village's attempts to interfere with the Pension Board
proceedings and elections.
In sum, based on the evidence, a reasonable jury could conclude
that the alleged adverse employment actions were not connected
with the Heather Hanlon incident, and that the defendants would
not have taken the same actions had Mr. Hare not cooperated with
the SAO and had he not testified before the grand jury.
2. Mr. Hare's Municipal Liability Claim
The defendants argue that, even if Mr. Hare can establish a prima facie case for retaliation, he still fails to show that
the Village is liable. The Village of Stickney can be held liable
for violations of § 1983 only if it is the municipality's policy
or custom that caused the injury. Monell v. New York Department
of Social Services, 436 U.S. 658, 690-691 (1978). There are
three ways to establish municipal policy: (1) an "express policy"
that causes a constitutional deprivation; (2) a widespread
practice that constitutes a "custom or usage;" or (3) a
constitutional injury cause or ratified by a person with final
decision making authority. Simmons v. Chicago Bd. of Educ.,
289 F.3d 488, 494 (7th Cir. 2002). Mr. Hare claims that the Village
is liable under the second and third prongs of the test, while
the defendants contend that the evidence in the record is
insufficient to support either.
a. Widespread Practice of Retaliation
Mr. Hare first argues that he sustained his burden under
Monell, because he presented sufficient evidence that the
Village had a widespread practice of retaliation against
"whistleblowers." The widespread practice must be so well settled
as to constitute custom or usage with the force of law." St.
Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Random acts or
isolated incidents are insufficient to establish a widespread
practice. Gable v. City of Chicago, 296 F.3d 531, 538 (7th Cir. 2002). A series of violations must be presented to establish a
widespread practice. Palmer v. Marion County, 327 F.3d 588, 596
(7th Cir. 2003). For example, there is no widespread practice of
erroneous information, where out of 181,911 vehicles towed to a
certain lot over the period of four years, only three car owners
were falsely informed that their vehicles were not on the lot.
In an effort to show that the Village's retaliation was
inflicted consistent with the Village's widespread practice of
retaliation, Mr. Hare has presented testimony from numerous
Stickney Police officers, who cooperated with the SAO. These
officers all testified that they were passed over for promotions,
reprimanded, or terminated as a result of their cooperation. This
testimony is sufficient to establish a series of violations and
create a factual dispute on the issue of whether the Village had
a widespread practice of retaliation against those who spoke
against the alleged Village corruption.
b. Injury Caused by Final Decisionmakers
Mr. Hare has also argues that Chief Zitek and Mayor Tabor had
final decision making authority and used it to retaliate against
him. To prove this element of his municipal liability claim Mr.
Hare must show that the decision to adopt a particular course of
action, which caused his injury, was made by the government's officers who "possess final authority to establish
municipal policy with respect to the action ordered." Pembaur v.
City of Cincinnati, 475 U.S. 469, 481 (1986). It does not matter
what form of the action the final authority uses, it can be an
ordinance, a regulation, an executive policy, or an executive
act. Gernetzke v. Kenosha Unified School District,
274 F.3d 464, 468 (7th Cir. 2001). What matters is whether the actor, the
decisionmaker, "was at the apex of authority for the act in
question." Id. To determine whether a person possesses final
authority for § 1983 purposes, courts look to the local law, as
well as custom or usage having the force of law. Cornfield v.
Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1325 (7th
The Rules and Regulations of the Stickney Police Department
authorize the Chief of Police to "manage and control all matters
pertaining to the Police Department" and to "promulgate all Rules
and Regulations and orders of the Department." (Plaintiff's
Exhibit 10 Rules and Regulations of Stickney Police Department:
Chief of Police). Chief Zitek, as well as Mayor Tabor and Trustee
Dolezal, admitted that the Chief had the authority to reassign
Mr. Hare and change his duties or shifts without consulting the
Village Board. Similarly, Chief Zitek could and did make the
decision to start a criminal investigation against Mr. Hare in regards to Ms. Koudelka without authorization from
the Village Board. Therefore, there is sufficient evidence in the
record to show that Chief Zitek had final decision making
authority with respect to at least some of the alleged
3. Mr. Hare's Conspiracy claim
Count 2 of Mr. Hare's complaint alleges conspiracy to violate
his First Amendment rights. To establish a prima facie case for
his civil conspiracy claim, Mr. Hare must show "(1) an express or
implied agreement among defendants to deprive plaintiff of his or
her constitutional rights and (2) actual deprivations of those
rights in the form of overt acts in furtherance of the
agreement." Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir.
The defendants seek summary judgment on this claim, arguing
that the record contains no evidence of any agreement express
or implied; they also argue that Mr. Hare was not deprived of any
right. Not surprisingly, Mr. Hare disagrees.
As evidence of an agreement, Mr. Hare has offered the testimony
of Ms. Stratton. Ms. Stratton testified that, when she went to
interview Ms. Madsen, she was confronted by both Mayor Tabor and
Chief Zitek, who pushed for information and told her that they
knew about the investigation and demanded that they had the right to know what she was doing. Mr. Hare also points to the
fact that both defendants were present together at other meetings
at which the issue was discussed.
Beyond this, the record also suggests that both defendants knew
the identities of the officers who were cooperating with the SAO
at the early stages of the investigation. And both Chief Zitek
and Mayor Tabor contacted police officers who were to testify
before the grand jury to offer them the assistance of the Village
attorney, yet neither defendant contacted Mr. Hare. Additionally,
some evidence suggests that Chief Zitek pursued further actions
against Mr. Hare right after Mayor Tabor was re-elected to his
position. A reasonable jury, based on these facts, could find
that Chief Zitek and Mayor Tabor had an agreement, express or
implied, to take adverse employment actions against Mr. Hare
because of his cooperation with the SAO. Indeed, as discussed
above, Mr. Hare presented sufficient evidence showing that he
suffered an adverse employment action and he has presented
sufficient evidence that Chief Zitek and Mayor Tabor caused that
For the reasons stated above, the Court denies defendants'
motions to strike Mr. Hare's affidavit [#104] and Mr. Hare's
additional statements of facts [#102], grants in part the defendants' motion to strike Mr. Hare's responses to the
defendants' statement of facts [#103], and denies the defendants'
motion for summary judgment [#85].
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