The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
AMENDED MEMORANDUM OPINION
This matter is before the court on Defendant Richard Casler's (Casler), Defendant Kenneth Fritz's (Fritz), and Defendant Village of Schaumburg's (Village) motion for summary judgment. For the reasons stated below, we grant the motion for summary judgment.
Plaintiff Gerald M. McLaughlin (McLaughlin) alleges that he was employed by the Village as a Professional Standards Manager in the Village's Office of Professional Standards (OPS). Casler was allegedly the Director of Police for the Village and Fritz was allegedly the Village Manager for the Village. McLaughlin alleges that Casler was McLaughlin's direct supervisor and that Fritz was McLaughlin's second-level supervisor. McLaughlin alleges that while he was employed for the Village it was his responsibility to investigate complaints made by private citizens against police officers in the Village. McLaughlin claims that in October 2005, Casler and Fritz proposed that the OPS should be expanded and reorganized to cover all Village employees. However, McLaughlin allegedly had reservations about the consequences of increasing the responsibilities of the OPS. McLaughlin alleges that he expressed these concerns to a Village Trustee (Trustee) and to the Chairman of the Board of Police and Fire Commissioners (Chairman). According to McLaughlin, Casler and Fritz questioned him extensively after they learned that McLaughlin had expressed his concerns about the OPS expansion to the Trustee and the Chairman. McLaughlin claims that on December 8, 2005, Casler informed McLaughlin that his employment was being terminated. Casler allegedly told McLaughlin that he was being fired for making Fritz and Casler "look bad" by expressing his concerns about the OPS expansion to the Trustee and the Chairman. (Compl. Par. 14). McLaughlin alleges that Fritz and Casler had the final authority to terminate McLaughlin and that they used that authority to terminate McLaughlin on behalf of the Village.
McLaughlin filed the instant action and includes claims brought under 42 U.S.C. § 1983 (Section 1983) against all Defendants alleging that Defendants terminated his employment in retaliation for his exercise of his First Amendment rights (Count I), Section 1983 claims against all Defendants alleging violations of his Due Process rights (Count II), a claim under Illinois state law alleging retaliatory discharge against the Village only (Count III), and claims under Illinois state law for tortious interference with prospective economic advantage brought against Casler and Fritz only (Count IV). Earlier, Defendants filed a partial motion for judgment on the pleadings with respect to the state law claims in Count III and Count IV, which the court granted on May 19, 2008. Defendants now bring the instant motion for summary judgment with respect to the remaining claims in Count I and Count II.
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "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 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).
I. First Amendment Retaliation Claims Against Casler and Fritz Defendants argue that Casler and Fritz are entitled to summary judgment on McLaughlin's First Amendment retaliation claims. A plaintiff can establish a prima facie case for retaliation under the First Amendment by "present[ing] evidence that:
(1) his speech was constitutionally protected, (2) he has suffered a deprivation likely to deter free speech, and (3) his speech was at least a motivating factor in the employer's action." Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). The second and third elements are not in dispute, but Defendants contend that the undisputed evidence shows that McLaughlin's speech was not protected under the First Amendment.
The Seventh Circuit applies the two-prong Connick-Pickering test for determining whether speech is protected by the First Amendment. Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir. 2007). Under the first prong of the Connick-Pickering test, the court asks "whether the employee spoke 'as a citizen on a matter of public concern.'" Id. (quoting in part Spiegla v. Hull, 371 F.3d 928, 939 (7th Cir. 2004)(Spiegla I)). If the employee was speaking as a citizen on matters of public concern, the second prong of the Connick-Pickering test"requires a balancing of the employee's interest 'as a citizen in commenting on the matter' against the public employer's interest 'as [an] employer  in promoting effective and efficient public service.'" Id. (quoting in part Spiegla I, 481 F.3d at 940). The Supreme Court, in Garcetti v. Hull, 547 U.S. 410 (2006), has further clarified that plaintiffs can only prevail on a First Amendment retaliation claim if they were speaking as citizens, not as employees, when they engaged in the speech in question. Id. at 421; Spiegla, 481 F.3d at 965. Thus, Garcetti effectively adds an additional hurdle for plaintiffs to show at the outset, regardless of the content of the speech in question, that the plaintiff was speaking as a citizen and not as a public employee. Spiegla, 481 F.3d at 965; see also Chaklos v. Stevens, 560 F.3d 705, 711-12 (7th Cir. 2009)(stating that Garcetti requires a threshold determination regarding whether the public employee spoke in his capacity as a private citizen or as an employee); Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir. 2008)(stating that "Garcetti . . . requires courts to first decide whether a plaintiff was speaking 'as a citizen' or as part of her public job, before asking whether the subject-matter of particular speech is a topic of public concern").
Defendants argue that, based on the undisputed facts, McLaughlin was speaking as an employee when he engaged in the speech in question and, thus, cannot withstand the Garcetti threshold analysis. Defendants also argue that even if McLaughlin could show he was speaking as a private citizen when he engaged in the speech in question, he cannot survive either prong of the Connick-Pickering analysis since the undisputed facts show that his speech was not on a matter of public concern and the Village's interest in promoting an effective chain of command outweighed any personal interest McLaughlin may have had in speaking as a citizen. Finally, Defendants argue that, even if McLaughlin could show that he engaged in protected speech, Casler and Fritz would each be entitled to qualified immunity on McLaughlin's First Amendment retaliation claims since the contours of the law were not sufficiently defined at the time and Casler and Fritz cannot be said to have violated McLaughlin's clearly established constitutional rights.
A. Garcetti Threshold Inquiry
As indicated above, the first matter that must be resolved with respect to McLaughlin's First Amendment retaliation claims is whether McLaughlin was acting as a citizen when he engaged in the speech in question. Chaklos, 560 F.3d at 711-12. Courts employ a "practical inquiry into what duties the employee is expected to perform, and [such an inquiry] is not limited to the formal job description." Houskins, 549 F.3d at 490. Rather, "[t]he controlling factor in the Garcetti inquiry is whether the speech 'owes its existence to a public employee's professional responsibilities.'" Callahan v. Fermon, 526 F.3d 1040, 1044 (7th Cir. 2008)(quoting in part Garcetti, 547 U.S. at 421).
In this case, construing the facts in a light most favorable to McLaughlin, the particular speech in question consists of a telephone conversation McLaughlin had with the Chairman and an in-person conversation McLaughlin had with the Trustee. (SAF Par. 90-93, 95). Based on McLaughlin's own account of the conversations with the Chairman and the Trustee, both conversations were exclusively on the subject of the proposed expansion and reorganization of the OPS office, of which McLaughlin was the manager. (RSF Par. 30-31, 33-34, 47, 50-51).
According to McLaughlin's version of the events, McLaughlin supported the general concept of the proposed expansion and reorganization of the OPS, but also had certain concerns about the logistics of the proposal including concerns about the ability of the OPS to properly complete investigations, the resources that would be available to the OPS under the reorganization, and the physical relocation of the OPS. (SAF Par. 85, 87-88); (RSF Par. 28). McLaughlin agrees that, although the reorganization plan was not proposed by him, he was involved in the discussion about the logistics of the proposal, and he prepared a report on the matter at the request of his supervisors. (SAF Par. 82); (SF Ex. 2).
McLaughlin admits that sometime after preparing his memorandum and engaging in discussions with his supervisors about the proposed reorganization, McLaughlin decided to call the Chairman to discuss the matter. (RSF Par. 30).
McLaughlin concedes that he made the telephone call to the Chairman from his own office during working hours. (RSF Par. 30). McLaughlin admits that the reason he called the Chairman was because McLaughlin was a member of the Board on which the Chairman sat. (RSF Par. 31). McLaughlin admits that his purpose for calling the Chairman was to address certain concerns about the proposed reorganization of the OPS as well as concerns relating to his own job responsibilities such as "having a secure place for his confidential files . . . and being able to meet with individuals at off hours." (RSF Par. 33). McLaughlin admits that he later described his conversation with the Chairman in a written email stating "[a]s staff to the [Board], I felt a discussion as to the effect of [the proposed reorganization] might have on my [Board] obligations was in order." (RSF Par. 46; SF Ex. 2 at 95).
With respect to McLaughlin's conversation with the Trustee, McLaughlin admits that the conversation took place at the Village police department during working hours. (RSF Par. 37). While there is a dispute between the parties regarding who initiated the conversation, the parties agree that the subject of the conversation was once again the proposal to restructure the OPS and McLaughlin's reservations about the proposal. (RSF Par. 51). By his own account, McLaughlin brought up the need for the OPS to have adequate resources both for McLaughlin to perform his job as manager of the OPS and for the OPS as a whole to perform its necessary duties. (RSF Par. 51). McLaughlin admits that he later described his encounter with the Trustee in writing as an "impromptu 5 minute conversation ...