Attorneys
Municipal Law Update: Sheriff's Handling of Discipline After Employee's Fight Over Parking Spot Does Not Implicate First Amendment
The Seventh Circuit Court of Appeals recently reversed a $240,000 jury verdict in favor of a Cook County Sheriff’s Department employee who sued her employer after receiving discipline she felt was unfair following an altercation she had in the parking lot with a co-worker over a parking space.
In Houskins v. Sheahan, 549 F.3d 480 (7th Cir. 2008), plaintiff Virgean Houskins sued Cook County Sheriff Michael Sheahan in his official capacity, along with Cook County (collectively “the Sheriff”), claiming that she was disciplined in retaliation for reporting the parking lot fight. She also claimed the Sheriff had a widespread custom or policy of retaliating against employees of the Cook County Department of Corrections ("CCDOC") who exercised their right to free speech. Following a trial in the U.S. District Court for the Northern District of Illinois, a jury returned a verdict against the Sheriff (and a verdict against the plaintiff’s co-worker, whom she sued for state law assault and battery).
The case arose from an incident on September 17, 2001, when Plaintiff pulled into the parking lot at the Cook County jail. The parking lot was full, and while plaintiff waited on a space, she saw a co-worker, Donald Keith, drive past her. Keith ended up taking the space Plaintiff was waiting on. Plaintiff got out of her car and approached Keith, and a verbal argument ensued. Keith ended the argument by striking the plaintiff in the face.
Plaintiff filed an Internal Affairs complaint against Keith as a result of the altercation, as required by the CCDOC General Orders. The day after the incident, Keith was de-deputized, or stripped of his duties as a correctional officer, as a result of the complaint Houskins filed against him. Ultimately, Keith was suspended for one day as a result of the incident. Also, the plaintiff herself received a written reprimand for using profanity during the argument, which violated a General Order of the Sheriff's Department.
Plaintiff then filed her lawsuit in U.S. District Court, alleging that the reprimand she received was actually retaliation for complaining about the incident to her co-workers in the Sheriff's Department. She claimed her First Amendment rights were violated and claimed the Sheriff was responsible for causing the violation with a custom and practice of retaliating against employees who report misconduct. The Sheriff moved for summary judgment, arguing that plaintiff’s speech was not constitutionally protected because she was a public employee speaking only about the disciplinary process at the jail. The Sheriff claimed that because this is not a matter of public concern, the employer’s reaction to the public employee’s speech cannot support a claim for a First Amendment violation (citing Pickering v. Board of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983)).
The lower court denied the motion for summary judgment, and the Sheriff did not raise the public concern issue in the final pre-trial order. As a result, the lower court would not allow the Sheriff to include it at trial in opening or closing statements, or to request a jury instruction on the issue.
After the jury found in plaintiff’s favor against the Sheriff, the Seventh Circuit reversed. (The jury also found in plaintiff’s favor on her assault and battery claims against Keith, but the Seventh Circuit upheld that verdict.) On appeal before the Seventh Circuit, the Sheriff again argued that the topic of plaintiff’s complaints regarding the incident was not a matter of public concern. As a result, the Sheriff’s reaction to those complaints could not support a lawsuit for infringing plaintiff’s First Amendment rights. The Seventh Circuit found it was not necessary for the Sheriff to include this matter in the final pre-trial order in order to preserve the issue for appeal.
The Seventh Circuit Court looked for guidance on this issue to the decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), which was decided after plaintiff’s trial in the lower court. The Seventh Circuit agreed with the Sheriff, based on Garcetti, which held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id.
The Seventh Circuit found that plaintiff was clearly expected to report the incident under the General Orders, and therefore she was speaking as part of her official duties as an employee of the Sheriff, and not as a citizen. Her complaints to her co-workers dealt with her own personal dissatisfaction with the investigation of the parking lot incident, and were likewise not on a matter of public concern. As a result, the court found she did not enjoy First Amendment protection of the speech at issue. The court also found that the Sheriff could not be liable based on a custom or practice that causes a constitutional violation, because there was no violation of plaintiff’s constitutional rights to begin with.
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Jason Callicoat, an associate in our Chicago office, concentrates his practice in municipal liability and product liability. He has previous experience in the areas of construction injury, insurance coverage, and workers compensation.
While in law school, Mr. Callicoat served as a volunteer mediator for the Center for Conflict Resolution and completed the Chicago-Kent Litigation and Alternative Dispute Resolution Certificate Program. He also has professional experience as a city government reporter for the Kansas City Star, and as a courts and police reporter for the South Bend (IN) Tribune.
