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Land v. Kaupas

September 30, 2009

EARIN LAND PLAINTIFF,
v.
PAUL J. KAUPAS, JOHN MOSS, STEVEN MCGRATH, PATRICK MAHER, MARTIN NOWAK, DUANE DAVIS AND MICHAEL HOMBERG, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Defendants Paul J. Kaupas, John Moss, Steven McGrath, Patrick Maher, Martin Nowak, Duane Davis and Michael Homberg (collectively "the Defendants") move for summary judgment on Earin Land's Complaint (the "Complaint"), which seeks to hold the Defendants liable under 42 U.S.C. § 1983 for political retaliation in violation of the First Amendment to the U.S. Constitution. Defendants' motion is granted.

I. LEGAL STANDARD

Summary judgment is warranted where "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 judgment as a matter of law." Fed. R. Civ. P. 56(c); Brengettcy v. Horton, 423 F.3d 674, 680 (7th Cir. 2005). All facts, and any inferences to be drawn from them, must be viewed in the light most favorable to the non-moving party. Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008).

II. BACKGROUND*fn1

Land has worked for the Will County Sheriff's Office (the "Sheriff's Office") since 1989 and was promoted to the rank of sergeant in 2002 after Paul Kaupas was elected Sheriff of Will County, a position he still holds. Land actively supported Kaupas's run for Will County Sheriff in 2002 by, inter alia, attending campaign strategy meetings, parades, and fundraisers, distributing political signage, and selling fundraising tickets. On March 7, 2005 Land met with defendant Martin Nowak, the Undersheriff for Will County and Kaupas's campaign manager in 2002, and told him that he was leaving Sheriff Kaupas's campaign. In the course of the conversation Land also complained to Nowak about not being allowed to use a specific police vehicle, not getting a call from Kaupas after he had surgery (Kaupas's wife did call), and being transferred out of the canine unit despite "volunteering" for the transfer. Land alleges that he endured six separate incidents of retaliation as a result of this conversation with Nowak.

On May 2, 2005 Land placed his hand over the ear of a subordinate named Dan Patriquin and kissed his own hand as well as part of Patriquin's ear. Patriquin was upset by the incident and let many others on the force know as much. A month after the incident, Patriquin filed a formal sexual harassment complaint against Land. Defendant Duane Davis, Patriquin's "liaison officer" at the time, encouraged him to file the complaint after Patriquin made it known to Davis that he never wished to work with Land again. The complaint led to a formal investigation against Land conducted by defendant Steven McGrath, a sergeant in the Internal Affairs Unit of the Sheriff's Office. Land received a one-day suspension as a result of the investigation for "conduct unbecoming" but was not found to have violated the internal sexual harassment policy of the Sheriff's Office.

A second investigation ensued after statements obtained from various witnesses to the ear-kissing incident contradicted some of Land's statements during the first investigation. This time Land was charged with untruthfulness, failure to cooperate with an investigation and conduct unbecoming. Land admitted that some of his answers during the first investigation were less than forthright. Kaupas dropped the investigation and chose not to punish Land.

Land also alleges four other instances of retaliation. The facts relevant to those other incidents are set out in the analysis section below.

III. ANALYSIS

To make out a prima facie case of First Amendment retaliation Land must show 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 the Defendants' actions. See Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). Adverse employment actions or a series of petty harassments committed in retaliation for a person's political beliefs or affiliations are likely to deter free speech and therefore violate the First Amendment. See Pieczynski v. Duffy, 875 F.2d 1331, 1336 (7th Cir. 1989).

Defendants contend in their reply brief that Land has failed to establish that his speech was protected by the First Amendment because the discussion Land had with Marty Nowak (Kaupas's campaign manager) on March 7, 2005 was an attempt to "leverage [Land's] political support for personal gain." See Reply 2-3. This gloss on Land's conversation is not supported by the record when viewed in the light most favorable to Land. At this stage, a proper reading establishes that Land told Kaupas's campaign manager that he was leaving Kaupas's campaign. Notwithstanding the precise content of his conversation with Nowak, withdrawing support from a political candidate is protected conduct under the First Amendment. See Rutan v. Republican Party of Ill., 497 U.S. 62, 76 (1990) (retaliation "based on political affiliation or support [is] an impermissible infringement on the First Amendment rights of public employees"). The record reflects that Land withdrew from Kaupas's campaign, an action entitled to the protection of the First Amendment.

The Defendants appear not to contest whether the deprivations Land endured were likely to chill free expression, leaving the court to consider the crux of the parties' dispute: whether Land's withdrawal from Kaupas's campaign motivated the adverse actions he suffered. See Massey, 457 F.3d at 716. As an initial matter, Land must establish that his withdrawal from Kaupas's campaign was a substantial or motivating factor which lead to the adverse actions against him. See id.(citing Mt. Healthy City Sch. Dist. Bd. Of Educ., 429 U.S. 274, 287 (1977)). A motivating factor need not be the only factor or a but-for factor, and the evidence establishing it may be circumstantial. Id. Assuming Land makes this initial showing, Defendants must produce evidence that Land's protected conduct was not the but-for cause of the adverse actions. Id. Should Defendants meet this burden, Land would then be required to present evidence from which a reasonable jury could infer that the Defendants' proffered reasons for the adverse actions were pretextual. Id.

In his response brief Land presents what he characterizes as "bits and pieces" of circumstantial evidence to establish that his protected conduct was the motivating factor behind six allegedly adverse actions against him: (1) the filing of a sexual harassment complaint; (2) an internal affairs investigation which resulted from the sexual harassment complaint; (3) the propagation of false allegations; (4) the decision to deny Land a position in the traffic department in favor of another candidate; (5) not selecting ...


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