December 4, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 18-cv-4993 - John
Robert Blakey, Judge.
Manion, Kanne, and Barrett, Circuit Judges.
BARRETT, CIRCUIT JUDGE.
Lett was an investigator in the Chicago municipal office that
reviews allegations of police misconduct. In that role, Lett
helped prepare an investigative report about a police
shooting. Lett's supervisor directed him to write in the
report that police officers had planted a gun on the victim
of the shooting, but Lett did not believe that the evidence
supported that finding and refused. After he faced
disciplinary consequences as a result, Lett sued his
supervisors and the City of Chicago for retaliating against
him in violation of the First Amendment. The district court
dismissed all of Lett's claims, and Lett now appeals,
insisting that his refusal to alter the report constitutes
protected citizen speech. But as the district court
recognized, Davis v. City of Chicago, 889 F.3d 842
(7th Cir. 2018), squarely forecloses this argument. Because
Lett spoke pursuant to his official duties and not as a
private citizen when he refused to alter the report, the
First Amendment does not apply.
case comes to us on a motion to dismiss, so we take the
allegations in Lett's complaint as true. Kubiak v.
City of Chicago, 810 F.3d 476, 479 (7th Cir. 2016).
worked as an investigator for Chicago's Civilian Office
of Police Accountability (formerly known as the Independent
Police Review Authority), a municipal office tasked with
reviewing allegations of police misconduct. In 2016, Lett was
working on an investigation into police involvement in a
particular civilian shooting. The office's Chief
Administrator, Sharon Fairley, directed Lett to include in
the report a finding that police officers had planted a gun
on the victim of the shooting. Lett refused because he did
not believe that the evidence supported that finding.
raised his concerns with Fairley's deputy, who in turn
shared them with Fairley. Not long after that, Lett was
removed from his investigative team, then removed from
investigative work altogether, and ultimately assigned to
janitorial duties. Fairley then opened an internal
investigation into Lett for disclosing confidential
information. The internal investigation concluded that Lett
had violated the office's confidentiality policy, and
Fairley ordered that Lett be fired. Convinced that the
internal investigation was a hit job, Lett initiated a
grievance through his union. The grievance arbitrator, siding
with Lett, ordered the office both to reinstate him with
backpay and to expunge his record. But when Lett returned to
his office, Fairley immediately placed him on administrative
leave with pay. Lett was assigned on paper to the Chicago
Police Department's FOIA office, but in reality he was
not allowed to return to work.
sued his supervisors, as well as the City of Chicago. Count
1, brought against all individual defendants under 42 U.S.C.
§ 1983, alleged that the supervisors had retaliated
against Lett for his refusal to write false information in
his report, in violation of his First Amendment rights. Count
2 asserted Monell liability under § 1983 for
the City and for Fairley in her official capacity based on
the supervisors' actions. Because it concluded that Lett
had acted as a public employee rather than as a private
citizen when he refused to alter the investigative report,
the district court dismissed these claims with prejudice
under Fed.R.Civ.P. 12(b)(6).
public employee to prove retaliation in violation of the
First Amendment, he must first establish that his speech was
constitutionally protected. Swetlik v. Crawford, 738
F.3d 818, 825 (7th Cir. 2013). Although the First Amendment
offers public employees some protection, "it does not
empower them to 'constitutionalize the employee
grievance.'" Garcetti v. Ceballos,
547 U.S. 410, 420 (2006) (citation omitted). A public
employee's speech is therefore only protected if (1) he
spoke as a private citizen rather than in his capacity as a
public employee; (2) he spoke on a matter of public concern;
and (3) his interest in expressing the speech is "not
outweighed by the state's interests as an employer in
'promoting effective and efficient public
service.'" Swetlik, 738 F.3d at 825
(citation omitted). This appeal concerns the first element:
whether Lett spoke as a private citizen when he refused to
amend the investigative report.
v. Ceballos supplies the test for distinguishing
employee and citizen speech. Under Garcetti, the key
question is whether the employee makes the relevant speech
"pursuant to [his] official duties." 547 U.S. at
421. In other words, we ask whether the speech "owes its
existence to a public employee's professional
responsibilities." Id. If it does, then the
employee speaks in his capacity as an employee rather than a
private citizen and his speech is not protected.
applied Garcetti's test to similar facts in
Davis v. City of Chicago,889 F.3d 842 (7th Cir.
2018). Lorenzo Davis was also an investigator in the Civilian
Office of Police Accountability, and, like Lett, he alleged
retaliation for his refusal to amend investigative reports.
Each report contained a summary of the allegations of police
misconduct and a finding on whether each allegation of
misconduct was "sustained," "not
sustained," "exonerated," or
"unfounded." According to Davis, the Chief
Administrator at the time directed him to change
"sustained" findings and to alter his reports to
reflect more favorably on police officers. Id. at
844. Because it was part of Davis's professional
responsibilities to revise his reports at the direction of
his supervisors, we concluded that he made his refusal
"pursuant to his official duties." Id. at
845 (alteration and citation omitted). In making that
determination, we rejected Davis's argument that drafting
inaccurate or misleading reports could not have been part of
his job duties. Id. We explained that "the fact
that an employee may have good reasons to refuse an ...