Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 CV 2373-William J. Hibbler, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge
Before ROVNER, EVANS, and WILLIAMS, Circuit Judges.
In 2001, nepotism was alive and well in the Village of South Chicago Heights. Its small municipal government employed at least six members of its mayor's extended family, and several of his friends and campaign supporters. When Sandra Valentino allegedly discovered that the Village was paying several of these employees for hours that they did not actually work, she discussed the situation with the future head of Citizens Against Corruption, William Bramanti. Bramanti sent a letter to the citizens of the Village detailing this alleged ghost payrolling and otherwise criticizing Mayor David Owen. Coincidentally, the next business day, Village Administrator Paul Petersen surreptitiously searched Valentino's desk and discovered that she had been photocopying the office's employee sign-in sheets. Later that day, on the say-so of Mayor Owen, Petersen terminated Valentino's employment.
Valentino brought claims against Owen, Petersen, and the Village for First Amendment retaliation in violation of 42 U.S.C. § 1983 and for retaliatory discharge under Illinois law. Although the district court found that Valentino had stated a prima facie case for retaliation, it granted summary judgment for Defendants because it concluded that they had put forth a lawful, plausible reason for terminating Valentino, which she could not prove was pretextual. The district court also found that the Village was immune to Valentino's Illinois tort claim under section 2-201 of the Illinois Tort Immunity Act.
We agree with the district court that Valentino was speaking on a matter of public concern and that she stated a prima facie case for retaliation. However, we find that she has proffered sufficient evidence to cast serious doubt on the legitimacy of Defendants' stated reason for terminating her, such that a reasonable jury could conclude that it was a mere pretext for firing her for speaking out against the purported ghost payrolling. Further, we find that the district court erred in applying section 2-201 of the Illinois Tort Immunity Act because it failed to consider that in order to be immune under this section, the alleged unlawful act must be a "policy decision." For these reasons, we reverse the district court's grant of summary judgment to Defendants.
Sandra Valentino began working as a part-time secretary in the Village of South Chicago Heights' building department in 1989. From 1995 until 1997, she worked under William P. Bramanti, a building inspector with the Village. In 1997, the Village transferred her to the water department, where she performed various administrative tasks.
In November 2001, the Village hired Joe Minotti as a water inspector. Minotti allegedly told Valentino that he was hired because he was a "vote getter" for Defendant Mayor David Owen and an active supporter of his campaign for office. Valentino also allegedly observed that Minotti failed to send certain citizens appropriate water bills, failed to shut off their water in a timely manner, and fraudulently handled the purchase of his new home. After Valentino presented Minotti with a list of those water accounts that she believed he improperly handled, and complained about his actions to Mayor Owen, several Village Trustees, and Defendant Paul Petersen, Village Administrator, both Minotti and Valentino received reprimands.
Her concern about Minotti, whom the Village hired without prior public works experience, caused Valentino to become skeptical of the Village's, or, more specifically, Mayor Owen's, hiring practices. Valentino notes that the Village employs several of Mayor Owen's friends and relatives, including Eric Faoro, Owen's son-in-law; Erika and Yvette Owen, Owen's daughters and Petersen's nieces; Scott Owen, Owen's son and Petersen's nephew; Sally Marrufo, and Ron Diederich. Valentino became suspicious that Mayor Owen sanctioned the "ghost payrolling" of these persons-that is, Valentino believed that the Village paid them salaries for hours that they did not actually work. Valentino noticed that several of these employees were rarely in the office but still received weekly paychecks. She communicated her concerns to Bramanti, who had quit in late 2001 or early 2002 because of conflicts with Owen. In these conversations, Valentino expressed her negative view of the nepotism in the Village's hiring practices.
After Valentino shared her suspicions with Bramanti, he submitted a series of requests pursuant to the Freedom of Information Act, looking to obtain copies of the time cards and sign-in sheets for Owen's associates and relatives. Petersen initially denied Bramanti's requests. On February 3, 2003, the same day that Petersen sent a letter to Bramanti denying his requests, Mayor Owen told another employee, Rose Bautista, that "[Valentino] is going to get her butt canned," ostensibly because of her relationship with Bramanti.*fn1 Several days later, Mayor Owen overruled Petersen and released certain time records to Bramanti.
In the meantime, starting in February 2003, Valentino began to make copies of the daily sign-in sheets, in part to verify her suspicions regarding ghost payrolling and in part to determine if the Village was unfairly docking her pay when she was tardy, while not docking the pay of other Village employees. These sign-in sheets were left on the office counter, and employees, when they arrived at and left from the office, were supposed to sign in and out. Valentino communicated her observations regarding these sign-in sheets to Bramanti.
On February 28, 2003, when he did not receive a full response to his FOIA requests and learned of Valentino's observations regarding ghost payrolling, Bramanti, through his organization, Citizens Against Corruption, sent a letter to the citizens of the Village accusing Owen of ghost payrolling his relatives and of various other indiscretions.
On March 3, 2003, the next business day after he sent this letter, and days after he submitted another FOIA request to the Village, Valentino arrived at her desk and found Petersen waiting for her. Before Valentino's arrival, Petersen had searched her desk and found copies of the employee sign-in sheets. Petersen consulted with Owen, who instructed Petersen to ask the Village's legal counsel if Owen could fire Valentino because she copied these sign-in sheets. Counsel told Petersen that copying the sign-in sheets was ...