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Shefcik v. Village of Calumet Park

November 7, 2007

JOHN SHEFCIK, PLAINTIFF,
v.
VILLAGE OF CALUMET PARK AND MARK DAVIS, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Plaintiff John Shefcik, a Village of Calumet Park police officer, filed a three-count Complaint alleging reverse race discrimination and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and a First Amendment retaliation claim. See 42 U.S.C. § 1983. Defendants Village of Calumet Park and Calumet Park's Police Chief Mark Davis bring the present Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, the Court grants in part and denies in part Defendants' summary judgment motion. Specifically, the Court grants Defendants' motion as to Officer Shefcik's reverse race discrimination and retaliation claims, but denies Defendants' motion regarding Officer Shefcik's First Amendment retaliation claim in Count I of the Complaint.

BACKGROUND

I. Introduction

Officer John Shefcik, who is white, is a Calumet Park police officer. (R. 37-1, Defs.' Rule 56.1 Stmt. Facts ¶ 1.) Defendant Village of Calumet Park is a municipality organized under the laws of the State of Illinois. (Id. ¶ 2.) Since August 2002, Mark Davis, a black male, has been the Chief of the Police for Calumet Park. (Id. ¶ 3; R. 51-1, Pl.'s Rule 56.1 Stmt. Facts ¶ 2.) Assistant Chief Susan Rockett, who is white, came to Calumet Park in August 2002 as a Commander of Police. (Def.'s Stmt. Facts ¶ 5.) On November 15, 2004, Melvin Davis, who is black, was appointed Commander of Police. (Id.) Currently, there are between 21-22 full-time police officers with the Calumet Park Police Department. (Id.) There are four Sergeants within the police department, including Gregory Jones, John Rigoni, Gerald Corrigan, and Mark Groszek -- all of whom are white. (Id. ¶ 6.)

II. Manpower Reduction Issues

Prior to Chief Davis taking over in August 2002, between four and five officers worked each shift. (Id. ¶ 12.) On the weekends, seven to eight officers worked on the street. (Id.) When Chief Davis arrived, he determined that 30-40 poorly trained part-time police officers worked for Calumet Park. (Id.) Chief Davis believed that many of the part-time officers were unskilled in a number of areas and that those officers' mistakes cost Calumet Park money. (Id.) Chief Davis also believed that the full-time officers should perform the work instead of the part-time officers. (Id.)

In November 2002, Chief Davis reduced the number of officers to three per shift by eliminating the police department's reliance on part-time officers. (Id. ¶ 13.) Following the decrease in number of officers per shift, Officer Shefcik, as a union representative, began meeting with Chief Davis to address the manpower reduction and other issues. (Id.) Chief Davis explained to Officer Shefcik that the Village did not have enough calls for service to warrant the prior amount of officers on the road. (Id.; Pl.'s Stmt. Facts ¶ 9.)

III. Officer Shefcik's Union Grievances, Letters, & FOIA Requests

Prior to 2003, Officer Shefcik served as the secretary for the police union, and in January 2003, the union elected him president. (Defs.' Stmt. Facts ¶ 11; Pl.'s Stmt. Facts ¶ 1.) From January 2003 until March 2007, Officer Shefcik filed at least fifty grievances on behalf of himself and union members. (Defs.' Stmt. Facts ¶ 11.) In response to Defendants' summary judgment motion, Officer Shefcik identifies certain instances in which he claims that he spoke as a citizen of public concern in support of his First Amendment claim. Specifically, on January 3, 2003, April 11, 2003, April 20, 2004, and July 15, 2004, Officer Shefcik filed union grievances regarding manpower shortages on the different shifts. (Pl.'s Stmt. Facts ¶ 3; Defs.' Stmt.

Facts

¶¶ 15, 19.) Also, on April 11, 2003, July 15, 2004, and August 1, 2004, Officer Shefcik filed union grievances regarding similar manpower shortages, including claims that the Village was trying to avoid paying the police officers overtime. (Defs.' Stmt. Facts ¶ 19.)

In 2004, Officer Shefcik wrote a letter to Chief Davis addressing the safe amount of hours that police officers should work every day. (Id. ¶ 24; Pl.'s Stmt. Facts ¶ 4.) In January 2005, Officer Shefcik filed a Freedom of Information Act ("FOIA") request for information regarding a possible violation of Illinois' Open Meeting Act. (Pl.'s Stmt. Facts ¶ 5.) In June 2005, Officer Shefcik filed another FOIA request concerning Calumet Park's new lateral hiring procedure for the police department. (Id.; Defs.' Stmt. Facts ¶ 74.) In February 2006, Officer Shefcik and two other union officers sent a letter to Calumet Park's Village Manager Tom Griffin, Mayor Buster Porch, and Village Trustee Joe Dupar alleging that employees and union members had been subjected to a hostile work environment, among other complaints. (Defs.' Stmt. Facts ¶ 64; Pl.'s Stmt. Facts ¶ 6.) In March 2006, Officer Shefcik met with Dupar and Griffin regarding the issues raised in the February 2006 letter. (Defs.' Stmt. Facts. ¶ 75; Pl.'s Stmt. Facts ¶ 6.) In May 2006, Officer Shefcik made a FOIA request concerning police officers' salaries. (Defs.' Stmt. Facts ¶ 74.) Finally, in August 2006, Officer Shefcik filed a FOIA request regarding the alleged illegal use of 911 emergency funds. (Def.'s Stmt. Facts ¶ 74; Pl.'s Stmt. Facts ¶ 5.)

IV. Alleged Retaliatory Conduct

Officer Shefcik points to several instances of alleged retaliatory conduct that he relies upon to establish his First Amendment retaliation claim. This conduct includes: (1) his December 12, 2004, one-day suspension; (2) the denial of a tactical supervisor position in February 2005; (3) the denial of commercial vehicle training in April 2006; (4) Defendants' failure to select him for the Criminal Intelligence Division ("CID") unit in September 2005; (5) the denial of overtime work in September 2004; (6) his October 2005 three-day suspension for improper evidence handling; (7) his February 2006 assignment to strip mall detail; and (8) the denial of a promotion to investigator in March 2006. (Defs.' Stmt. Facts ¶¶ 34, 40, 43, 48, 49, 52, 66; Pl.'s Stmt. Facts ¶¶ 26, 36.)

V. EEOC Charges

On November 14, 2005, Officer Shefcik filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging reverse race discrimination. (Defs.' Stmt. Facts ¶ 56; R. 61-1, EEOC Charge 210-2006-01030). Officer Shefcik specifically charged that the Calumet Park Police Department subjected him to different terms and conditions of employment and denied him training and promotions based on his race. (Id.) On March 10, 2006, Officer Shefcik filed a Supplemental Charge of Discrimination alleging race discrimination and retaliation. (Defs.' Stmt. Facts ¶ 73; R. 61-1, EEOC Charge 440-2006-02656.) In his Supplemental EEOC Charge, Officer Shefcik asserted that since he filed his EEOC Charge in November 2005, the Calumet Park Police Department denied him two promotions and overtime pay. (Id.) The EEOC issued Officer Shefcik's Notice of Rights letter on July 18, 2006. (R. 1-1, Compl. ¶ 7; R. 61-1, EEOC Letter.)

SUMMARY JUDGMENT STANDARD

Summary judgment is proper when "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). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed. 2d 202 (1986). In determining summary judgment motions, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 127 S.Ct. 1769, 1776 (2007). The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). After "a properly supported motion for summary judgment is made, the adverse party 'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, 477 U.S. at 255 (quoting Fed R. Civ. P. 56(e)).

ANALYSIS

I. First Amendment Retaliation Claim

The First Amendment protects freedom of speech and expressive conduct and generally prevents the government from proscribing such activities. RAV v. City of St. Paul, Minn., 505 U.S. 377, 382, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992). "The Supreme Court has made clear that public employees do not surrender all of their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Morales v. Jones, 494 F.3d 590, 595 (7th Cir. 2007). "In such circumstances, an employer may not retaliate against an employee for engaging in protected speech." Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 509 (7th Cir. 2007).

To establish a prima facie case of First Amendment retaliation, Officer Shefcik must set forth evidence that: (1) his speech was constitutionally protected, (2) he suffered a deprivation likely to deter free speech, and (3) his speech was a motivating factor in the employer's action. See Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). If Officer Shefcik establishes a prima facie First Amendment retaliation claim, Defendants may rebut Officer Shefcik's claim by establishing that they would have taken the same actions in the absence of Officer Shefcik's protected speech. See Ashman v. Barrows, 438 F.3d 781, 784 (7th Cir. 2006). The Court first turns to whether Officer Shefcik's speech is constitutionally protected.

A. Garcetti v. Ceballos

The Supreme Court has recently narrowed the standard of protected speech in the context of government employees, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, ___U.S. ___, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006). "Garcetti requires that before analyzing whether an employee's speech is of public concern, a court must determine whether the employee was speaking 'as a citizen' or, by contrast, pursuant to his duties as a public employee." Sigsworth, 487 F.3d at 509-10; see also Vose v. Kliment, ___ F.3d ___, 2007 WL 3120091, at *4 (7th Cir. Oct. 26, 2007)(whether speech is a matter of public concern no longer the initial inquiry in First Amendment retaliation claims); Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir. 2007) ("Garcetti made clear that public employees speaking 'pursuant to their official duties' are speaking as employees, not citizens, and thus are not protected by the First Amendment regardless of the content of their speech.").

Here, Defendants argue that Officer Shefcik's speech is not protected by the First Amendment because it concerned the working conditions within the Calumet Park Police Department, and thus was made pursuant to Officer Shefcik's official work duties. Officer Shefcik, on the other hand, contends that his speech is protected because it involved his union activities, which included filing collective grievances, writing letters and attending meetings, and making FOIA requests on behalf of the union. As such, Officer Shefcik contends that his union activities are not part of what he is "employed to do." See Garcetti, 126 S.Ct. at 1960.

Indeed, in a post-Garcetti case, the Seventh Circuit has concluded that a deputy sheriff's "comments that precipitated the adverse action taken against him were made in his capacity as a union representative, rather than in the course of his employment as a deputy sheriff," and thus "the Supreme Court's recent decision in Garcetti v. Ceballos, ___U.S. ___, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), is inapposite." Fuerst v. Clarke, 454 F.3d 770, 774 (7th Cir. 2006). In other words, a public employee who makes a statement in his capacity as a union representative is speaking as a citizen, not as an employee. See Spiegla, 481 F.3d at 966 (citing Fuerst, 454 F.3d at 774).

As discussed in detail below, Officer Shefcik's union grievances, certain FOIA requests, and letters to Chief Davis and Village of Calumet officials were made on behalf of the union, and thus Garcetti does not bar the Court from determining whether such speech is protected by the First Amendment. The Court thus turns to whether Officer Shefcik's speech in his capacity as a union representative is a matter of public concern under the balancing test first stated in Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.E.2d 811 (1968) and later clarified by Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

B. Connick-Pickering

"Under the Connick- Pickering test, a public employee can establish that his speech is constitutionally protected if (1) the employee spoke as a citizen on matters of public concern, and (2) the interest of the employee as a citizen in commenting upon matters of public concern outweighs the interest of the State as an employer in promoting the efficiency of the public services it performs through its employees." Sigsworth, 487 F.3d at 509. To determine whether a public employee "spoke as a citizen on a matter of public concern," the Court examines "the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48; see also Spiegla, 481 F.3d at 965. "In evaluating these factors, we look to whether the government employee sought to 'bring to light actual or potential wrongdoing or breach of public trust.'" Miller v. Jones, 444 F.3d 929, 935 (7th Cir. 2006) (quoting Connick, 461 U.S. at 148). Accordingly, the Connick public concern element must relate to a matter of "political, social, or other concern to the community." Id. (quoting Connick, 461 U.S. at 146). On the other hand, "when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Connick, 461 U.S. at 147. Whether a public employee's speech is protected by the First Amendment is a question of law. See Miller, 444 F.3d at 935; see also Connick, 461 U.S. at 148 n.7 ("inquiry into the protected status of speech is one of law, not fact.").

1. Matter of Public Concern

Officer Shefcik argues that his union grievances, letters, meeting with Village officials, and FOIA requests are a matter of public concern because they addressed police manpower reductions on certain shifts in Calumet Park, as well as officer and public safety. Defendants, however, contend that Officer Shefcik's complaints only concern internal work grievances. The Court thus turns to the content, context, and form of Officer Shefcik's union grievances, letters, meeting, and FOIA requests to determine if Officer Shefcik's statements constitute a matter of public concern. See Connick, 461 U.S. at 147-48.

Officer Shefcik's grievances on behalf of the union include the following: On January 3, 2003, Officer Shefcik filed a grievance on behalf of the union concerning the afternoon shift on January 2, 2003, in which only two officers were assigned because this scheduling posed "a serious safety issue to the two officers scheduled." (R. 37-1, Ex. 1, Shefcik Dep., Ex. 2.) On April 11, 2003, Officer Shefcik filed a grievance concerning the April 6, 2003, evening shift because four officers were not on duty. (Ex. 3.) Also on April 11, 2003, Officer Shefcik filed a grievance because officers were not given overtime pay. (Ex. 4.) On April 20, 2004, Officer Shefcik filed a grievance about the April 19, 2004, evening shift at which three officers were assigned. (Ex. 7.) On July 15, 2004, Officer Shefcik filed another grievance concerning dates in June and July 2004 in which he stated that the Village was trying to avoid overtime pay by reducing the number of officers per shift and thus placing "the officers safety in jeopardy." (Ex. 8.) Officer Shefcik filed another grievance on July 15, 2004, in which he asserted that the Village was trying to avoid paying the officers overtime on July 12, 2004, by scheduling three officers per shift. (Ex. 9.) On August 1, 2004, Officer Shefcik filed a similar grievance about the Village's alleged avoidance of overtime pay. (Ex. 10.)

In his 2004 letter to Chief Davis, Officer Shefcik, on behalf of the union, addressed issues of seniority, shifts, the safe amount of hours the officers worked per day, and his discussions with the union regarding these topics. (Ex. 11.) Officer Shefcik's February 2006 letter -- also on behalf of the union -- to the Village of Calumet officials included allegations of a racially hostile work environment,*fn1 as well as claims that an "administrator" used profanity, the administration bullied employees, they had a lack of labor management meetings to address grievances, citizens in the community were concerned about the "decline of the Police Department," and pending EEOC charges and federal employment lawsuits, among other related complaints. (Ex. 34.) In March 2006, Officer Shefcik and the co-authors of the February 2006 letter met with Village officials regarding the letter. (Defs.' Stmt. Facts ¶ 75.)

In January 2005, Officer Shefcik, as the union president, filed a FOIA request for information regarding a possible abuse of the Illinois Open Meetings Act concerning a Police Board and Fire Commissioners' meetings. (Pl.'s Stmt. Facts ¶ 5.) Specifically, Officer Shefcik requested the minutes of the Board of Police and Fire Commissioner's meeting of January 17, 2005. (R. 62-1, Rule 56.1 Ex.) In June 2005, Officer Shefcik filed a second FOIA request regarding the Village's lateral hiring procedure for the police department. (Id.) In May 2006, Officer Shefcik, as the union president, sent a letter to the Mayor of Calumet Park requesting a list of all current police officers covered by the union contract and their salaries. (Defs.' Stmt. Facts ¶ 74; R. 62-1 Rule 56.1 Ex.) Finally, in August 2006 Officer Shefcik filed a FOIA request regarding the alleged illegal use of 911 emergency funds.*fn2 (Id.)

Taking the facts in a light most favorable to Officer Shefcik -- as the Court is required to do at this procedural posture -- although some of the content of Officer Shefcik's grievances and FOIA requests may be characterized as internal office affairs, other complaints and queries focus on community concerns, such as police officer safety, public safety, and a possible abuse of the Illinois Open Meetings Act concerning a Police Board and Fire Commissioners' meeting. See Carreon v. Illinois Dep't of Human Servs., 395 F.3d 786, 791 (7th Cir. 2005) (citation omitted); see also Phelan v. Cook County, 463 F.3d 773, 791 (7th Cir. 2006) ("fact that an employee has a personal stake in the subject matter of the speech does not necessarily remove the speech from the scope of public concern"). Indeed, the Seventh Circuit has recognized that there are few matters "of greater public concern in a large metropolitan area than police protection and public safety." Gustafson v. Jones, 290 F.3d 895, 907 (7th Cir. 2002) (quoting Auriemma v. Rice, 910 F.2d 1449, 1460 (7th Cir. 1990) (en banc)).

More specifically, some of Officer Shefcik's statements to his supervisors and Village officials raised the issue of the police officers' safety, including his July 2003 and July 2004 union grievances, his 2004 letter to Chief Davis, his 2006 letter to the Village officials, and his March 2006 meeting with Village officials, as well as his other union grievances about the allocation of the police officers. See Barth v. Village of Mokena, No. 03 C 6677, 2006 WL 862673, at *28 (N.D. Ill. Mar. 31, 2006) (issues of police officer safety matter of public concern); Mills v. City of Evansville, No. 03 C 0183, 2005 WL 1939917, at *4 (S.D. Ind. June, 28, 2005) ("allocation of police officers also affects public safety") (Tinder, J.). Indeed, if a police officer's safety is at issue, the police officer's ability to assist the needs of the community are also jeopardized. See Richter v. Village of Oak Brook, No. 01 C 3842, 2003 WL 22169763, at *12 (N.D. Ill. Sept. 19, 2003). In addition, Officer Shefcik's FOIA request regarding the alleged abuse of the Illinois Open Meetings Act is also a matter of public concern because it pertains to public policy. See Gerwin v. Livingston County Bd., 345 Ill.App.3d 352, 359, 802 N.E.2d 410, 280 Ill.Dec. 485 (Ill.App.Ct. 2003) (purpose of the Open Meetings Act is to prohibit secret deliberations by public bodies).

On the other hand, Officer Shefcik's speech concerning the police officers' overtime pay, officer seniority, whether the administration bullied police officers, an administrator's use of profanity, the administration's lateral hiring procedure, and police officers' salaries are not matters of public concern. Instead, this speech concerns internal police office affairs. See Miller, 444 F.3d at 935.

After reviewing the content, context, and form of Officer Shefcik's complaints on behalf of the union -- in the context of the record as a whole -- Officer Shefcik was speaking out on a matter of public concern. See Connick, 461 U.S. at 147-48. As such, the Court turns to the next element of the Connick-Pickering test -- whether "the interest of the employee as a citizen in commenting upon matters of public concern outweighs the interest of the State as an employer in promoting the ...


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