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Callahan v. Fermon

May 20, 2008

MICHALE CALLAHAN, PLAINTIFF-APPELLEE,
v.
STEVEN M. FERMON AND DIANE CARPER, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Central District of Illinois. No. 03 C 2167-Harold A. Baker, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED JANUARY 10, 2008

Before EASTERBROOK, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

Michale Callahan, a former lieutenant with the Illinois State Police, was transferred after making statements at a meeting about a cold case and after making official complaints about his superior officers. In bringing this action under 42 U.S.C. § 1983 against several of his superiors, he claims that he was transferred in retaliation for speech that is protected by the First Amendment. The jury found that two of the defendants, Diane Carper and Steven Fermon, had retaliated against him on the basis of his protected speech and awarded him compensatory and punitive damages. The defendants appealed. While this appeal was pending, the Supreme Court decided Garcetti v. Ceballos, 547 U.S. 410 (2006), which held that the First Amendment does not protect a public employee's statements made as part of his official duties. In light of Garcetti, we hold that the First Amendment does not insulate Mr. Callahan's statements from employer discipline. Accordingly, the judgment in his favor is reversed, and the case is remanded with instructions to enter judgment for the defendants.

I. BACKGROUND

A.

Michale Callahan was a lieutenant in Zone V of the Illinois State Police ("ISP"). His captain, the head of Zone V, was Steven Fermon. Cpt. Fermon reported to Diane Carper, the commander of several zones including Zone V. Mr. Callahan, Cpt. Fermon and Cdr. Carper all worked in the Department of Operations, the branch of the ISP that contains the patrol and investigative functions. A second branch of the ISP, the Department of Internal Investigation ("DII"), investigates all complaints about misconduct by governmental employees, including complaints brought by citizens and complaints about employees not within the ISP itself.

In the spring of 2000, a private investigator sent a letter to the ISP asking it to review the 1986 murder of Dyke and Karen Rhoads. Mr. Callahan was assigned to review the matter and to take appropriate action. His examination concluded that there were significant problems with the convictions of Herbert Whitlock and Randy Steidl, the men serving life sentences for the crime.

Through his initial investigation, Mr. Callahan became suspicious that Robert Morgan, a person of interest in the initial Rhoads' investigation who never had been charged, actually might have committed the murders. At the time Mr. Callahan was reviewing the file, Morgan was under investigation by federal authorities for possible drug trafficking and money laundering. Mr. Callahan also learned that Morgan had made significant donations to the political campaigns of both the Illinois Attorney General and the Governor. After Mr. Callahan relayed this information to Cdr. Carper, she ordered him not to continue investigating the Rhoads' murder, but she told him that he could continue to investigate Morgan's possible ongoing illegal activities.

In January 2003, the Deputy Governor called Mr. Callahan at his home and explained that the Governor was considering a grant of clemency for Steidl and Whitlock. He solicited Mr. Callahan's opinion as to whether they were guilty or innocent. Mr. Callahan said that he needed to talk to ISP before he responded. He then called Cpt. Fermon and Cdr. Carper. Cdr. Carper reported the information to her superior, who arranged a meeting at the ISP Academy for the next day in order to discuss the Governor's inquiry. At the all-day meeting, Cpt. Fermon and Mr. Callahan made presentations regarding the convictions of Steidl and Whitlock. They also discussed Morgan's possible criminal activity. Mr. Callahan stated that he thought Steidl and Whitlock were not guilty; he also provided a computer-generated assessment of the homicide that indicated that the two could not have committed the murder.

The relationship between Cpt. Fermon and Mr. Callahan always had been strained, but, in 2003, Mr. Callahan became suspicious that Cpt. Fermon was compromising deliberately the investigation of Morgan. He also began to suspect that Cpt. Fermon might have connections to organized crime. Mr. Callahan discussed his concerns with friends on the task force and former ISP officers. He also began a surreptitious investigation of Cpt. Fermon. In April 2003, Mr. Callahan lodged a complaint with the DII in which he claimed that Cpt. Fermon possibly was involved in misconduct relating to organized crime, and that he possibly had interfered with a federal criminal investigation. He also told DII that Cdr. Carper had ordered him not to pursue the Rhoads' investigation because it was too politically sensitive. Several weeks later he made a second complaint to the DII with substance almost identical to the first. After reviewing the complaints, the DII decided to take no action on them.

The hostility between Mr. Callahan and Cpt. Fermon made Zone V a difficult workplace. Between late 2002 and April 2003, the ISP's Equal Employment Opportunity Office ("EEOO") investigated a hostile-work-environment complaint related to that stress in Zone V. Around the same time that Mr. Callahan filed his DII complaints regarding Cpt. Fermon and Cdr. Carper, the EEOO reported to ISP's upper command that the hostility between Mr. Callahan and Cpt. Fermon was sufficiently serious to warrant action. Cdr. Carper and her superiors met to discuss the problem and determined that they would recommend transferring both Cpt. Fermon and Mr. Callahan out of Zone V. On June 16, that recommendation was given effect; Mr. Callahan was transferred to the patrol lieutenant position in another district.

B.

On September 23, 2003, Mr. Callahan filed a complaint in the district court. He alleged that he had been transferred laterally because of his statements at the ISP Academy meeting and because of the complaints that he had made to the DII in April and May of 2003. At trial, a jury found in favor of Mr. Callahan as to his claims against Cdr. Carper and Cpt. Fermon and awarded him $210,000 in compensatory damages. The jury additionally awarded him $276,700 in punitive damages against Cpt. Fermon and $195,600 in punitive damages against Cdr. Carper. The district court allowed the verdict and compensatory damages to ...


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