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.
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.
¶¶ 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.)
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)).
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.
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, ...