The opinion of the court was delivered by: Murphy, District Judge
This matter came before the Court on February 22, 2010, for a hearing on Defendants' Motion for Summary Judgment (Doc. 47), and on Plaintiff Trevor James Fulk's (Fulk) voluntary Stipulation of Dismissal (Doc. 53). Fulk, a former police officer for the Village of Sandoval, Illinois (Village), filed claims against the Village for: (1) common law retaliation; (2) retaliation in violation of his First Amendment rights under 42 U.S.C. § 1983; and (3) violating the Illinois Whistleblower Act, 740 ILCS 174/1 et seq., for allegedly terminating Fulk's employment in response to his reports of misconduct by the Defendant, then Mayor and Village Board President, Jerome Ratermann (Mayor). Fulk also filed claims under 42 U.S.C. § 1983 against the Mayor and the members of the Village Board of Trustees, both in their official capacities and individually.*fn1
At the hearing, the Court granted Fulk's voluntary Stipulation of Dismissal, thereby dismissing, with prejudice, all of Fulk's claims against the individual Village Board members: Defendant's Mark Copple, Gerald Fanger, Cora Oehmke, Bill Thompson and Ray Resch. Further, at the hearing and on the record, the Court granted summary judgment, in part, as to the Village of Sandoval because Fulk failed to show a genuine issue of material fact regarding any "permanent and well-settled municipal custom or practice that . was the moving force behind the plaintiff's constitutional injury." Valentino v. Village of S. Chicago Heights, 575 F.3d 664, 674 (7th Cir. 2009), citing Monell v. City of New York, 436 U.S. 658, 690 (1978). As such, only Fulk's First Amendment retaliation claim under 42 U.S.C. § 1983 against the Mayor, individually, remains for disposition.
On summary judgment, the Court considers the facts in a light most favorable to the non-moving party and adopts reasonable inferences and resolves doubts in favor of that party. Nat'l Athletic Sportswear, Inc., v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). In September 2007, Fulk was hired as a part-time police officer for the Village. During his brief tenure, Fulk allegedly either witnessed, or became aware of, inappropriate conduct by the Mayor, including: accessing juvenile records for no apparent official purpose, searching through and handling items in the evidence locker, making a fraudulent police commission card for himself and destroying, or ordering the destruction of various official documents. In mid-to-late November 2007, Fulk reported some of this conduct to an Illinois Assistant State Attorney (State's Attorney), the Illinois State Police Integrity Unit (ISP), the Marion County Sheriff and certian members of the Village Board of Trustees (Doc. 48, Ex. 3, pp. 52-54, 61). Then, on December 1, 2007, Fulk was told he was "laid off" or terminated from his employment with the Village of Sandoval.
Initially, Fulk was told he was being terminated for sitting in on a Village Board meeting (Doc. 48, Ex. 3, p. 35, line 5). However, the Mayor later claimed Fulk was fired because of numerous complaints made against Fulk. At his deposition, the Mayor first cited one incident involving the manager of a Casey's General Store who claimed that Fulk was pressuring her into pressing charges. The Mayor then testified that Fulk allegedly went outside of Sandoval in a patrol car to eat at a restaurant and, at another time, had run into a tavern, causing damage to a patrol car. Further, the Mayor alleged that "all the officers couldn't get along with [Fulk]" (Doc. 48, Ex. 5, p. 39, line 12). However, no written complaints were ever filed, and the Mayor claims that he took no notes or other disciplinary actions regarding any of the alleged incidents involving Fulk. Finally, the Mayor testified that the Village Board's Police Committee, comprised of himself and two other Board members, made the decision to let Fulk go (Doc. 48, Ex. 5, p. 19, lines 14-21). However, the two other Police Committee members testified that the Mayor, acting alone, made the decision to fire Fulk. Indeed, the Mayor now admits that "it is undisputed that Fulk was fired by [the Mayor], not a vote of the Board" (Doc. 48, p. 3).
The Mayor moves for summary judgment alleging: (1) he had no knowledge of Fulk's reports to any outside state agencies or members of the Village Board and, as such, he could not have fired Fulk in retaliation; (2) Fulk's conduct is not protected by the First Amendment because he made his complaints pursuant to his official duties; (3) the allegations that Fulk reported "are not of sufficiently public concern to trigger a First Amendment claim" (Doc. 48, p. 7); and (4) Fulk was fired for non-discriminatory reasons - namely, he "was not a good police officer" - and Fulk cannot prove that these reasons were merely a pretext (Id. at 8).
The standard applied to summary judgment motions under Federal Rule of Civil Procedure 56 is well-settled and has been succinctly stated as follows:
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. In determining whether a genuine issue of material fact exists, [the Court] must view the record in a light most favorable to the nonmoving party. Because the primary purpose of summary judgment is to isolate and dispose of factually unsupported claims, the non-movant may not rest on the pleadings but must respond, with affidavits or otherwise, setting forth specific facts showing that there is a genuine issue for trial.. A mere scintilla of evidence in support of the non-movant's position is insufficient; a party will be successful in opposing summary judgment only when it presents definite, competent evidence to rebut the motion.
Albiero v. City of Kankakee, 246 F.3d 927, 931-32 (7th Cir. 2001) (citations and quotations omitted).
To establish a prima facie claim for a retaliatory violation of First Amendment rights, public employees must present sufficient evidence that: (1) their speech (or conduct) was constitutionally protected; (2) they suffered a deprivation likely to deter them from exercising First Amendment rights; and (3) their speech was a motivating factor in their employer's adverse action. Valentino, 575 F.3d 664 at 670; see also Gunville v. Walker, 583 F.3d 979, 983-84 (7th Cir. 2009).*fn2 Then,
[i]f a plaintiff establishes a prima facie case, the burden shifts to the employer to demonstrate that it would have taken the same action in the absence of the protected speech. If the employer carries this burden, the plaintiff may still reach trial by producing sufficient evidence . that the employer's reasons were merely a pretext ...