Case Information
*1 Before F LAUM W ILLIAMS S YKES , Circuit Judges . F LAUM Circuit Judge . Officer Laura working Chicago Police Department’s Office News Affairs (“ONA”) when verbally assaulted colleague, Officer Veeja Zala. reported (1) ONA Director Melissa Stratton, (2) supervising Lieutenant, Maureen Biggane, (3) Internal Affairs Division (“IAD”). Three months later, ordered leave ONA return prior position beat patrol ‐ officer. Kubiak filed City Chicago, Stratton, Biggane, alleging retaliation violation Amendment conspiracy to deprive stitutional rights pursuant U.S.C. § granted defendants’ motion dismiss for failure state claim relief can granted. Kubiak appeals. We affirm.
I. Background
Because we reviewing dismissal failure state claim, take as true facts alleged complaint. Tamayo Blagojevich 1074, (7th Cir. 2008).
Kubiak worked as beat patrol officer with Chicago Police Department fourteen years. Her primary duties were patrol assigned areas, issue citations, make arrests, conduct investigations. 2000, Kubiak detailed Office News Affairs. Kubiak alleges this “highly coveted detail” “prestigious desk job.” At ONA, served liaison news media. Her re sponsibilities included “keeping members news media apprised police activity by providing information top ics such crimes committed, arrests made, providing information regard community safety alerts.”
On November Officer Zala, another news media liaison ONA, allegedly verbally assaulted exiting office end shift. ran ward her, enraged work related report had drafted. He screamed, “Who fuck do you think you are, you stupid bitch?” He shook his finger face swung his hand back if strike her. quickly backed away in fear. Officer Robert Perez was with Kubiak time incident and tried to calm Zala, telling him to “stop it.” Zala continued to yell Kubiak, saying, “You nothing, you are stupid bitch, you don’t know how to police, I am police, I am real police.”
Kubiak returned desk and called ONA Director Stratton. She told Stratton incident said she feared Zala was going strike her. Kubiak informed Strat ‐ ton that Zala had previously directed similar outbursts ‐ ward her. During this phone call, Zala stood desk continued berate intimidate her. An ONA who witnessed Zala’s conduct later spoke with Kubiak expressed fear that Zala going shoot Ku ‐ biak.
Kubiak alleges Zala has history violence. Ac cording complaint, around 2009, jury returned verdict favor plaintiff suit Zala bat tery excessive force. City defended Zala trial. Ku biak alleges City failed correct Zala’s behavior but rather gave him prestigious news media liaison position ONA. Throughout his detail ONA, Zala often lost his temper directed his outbursts toward his colleagues, including Kubiak. next day, Kubiak again with Stratton. Stratton
told she had already spoken with she have time discuss incident further. On No vember requested meeting Biggane, supervising Lieutenant, discuss incident. Biggane re sponded too busy. alleges she tinued request meetings, each time, respond ed too busy. On November went ‐ Biggane’s office to discuss the incident, Biggane refused to discuss it.
On December 3, Kubiak submitted memorandum Biggane complaining Zala, which initiated Internal Affairs Division investigation. Kubiak subsequently gave statement the IAD investigators. Perez also provided statement corroborating complaint. Kubiak alleges after gave statement the IAD, Officer Jose Es trada, who had been found guilty excessive force and also worked the ONA, told “better be careful be cause [she] might the one get suspended or fired.” mid February, Kubiak learned IAD complaint against Officer Zala had been “sustained.” Within days, Big gane cancelled detail the ONA and reassigned Kubiak position beat officer midnight shift what Kubiak alleges one the most dangerous neighbor hoods Chicago. same day, Perez removed from ONA reassigned beat officer. Kubiak and Perez were only two officers who had their ONA details cancelled even though other members ONA had pre viously requested transfer out ONA. At time removal, most senior member ONA had requested transfer.
Stratton Biggane decision remove Kubi ak Perez ONA. Stratton had final authority make these personnel decisions, were subject further review. alleges never reprimanded remains detailed ONA.
On February filed City Chicago, Stratton, Biggane. asserted claim against all defendants alleging retaliation in violation of Amendment pursuant to § and a claim against Stratton alleging conspiracy in depriva ‐ tion of constitutional rights pursuant § 1983. Kubiak ar gued cancelling detail ONA assigning work a beat patrol officer, defendants retaliated against for engaging protected speech. According Kubiak, defendants engaged a pattern protecting rewarding officers accused violent misconduct while re taliating those who exposed reported mis conduct.
Defendants filed a motion dismiss failure state a claim on which relief can be granted pursuant Federal Rule Civil Procedure 12(b)(6). district court granted motion dismissed claims prejudice, cluding not constitutionally pro tected since did speak a private speak appeals.
II. Discussion We review de novo grant motion dismiss based Rule 12(b)(6). Tamayo Rule 12(b)(6) per mits motion dismiss complaint failure state claim upon relief can granted. Fed. R. Civ. P. 12(b)(6). To properly state claim, plaintiff’s contain allegations “plausibly suggest *6 6 14 ‐ 3074 plaintiff has a right relief, raising possibility above a speculative level[.]” EEOC v. Concentra Health Servs., Inc. , 496 F.3d 773, 776 (7th Cir. 2007) (internal quotation marks omit ted). We accept as true all well pleaded facts draw all reasonable inferences favor plaintiff. Tamayo , 526 F.3d 1081.
A. First Amendment Retaliation Claim To establish a claim retaliation violation First Amendment, public employee first must prove is constitutionally protected. Swetlik v. Crawford , 738 F.3d 818, 825 (7th Cir. 2013). For public employee’s protected under First Amendment, employee establish spoke pub lic Garcetti v. Ceballos , U.S. 418 (2006). The determination whether is constitutionally protect ed is question law . Houskins Sheahan , F.3d (7th Cir. 2008).
1. Did Not Speak Private Citizen held failed allege facts plausibly suggest citizen. We agree. Supreme Court has held “when employees make statements pursuant their official duties, em ployees speaking citizens Amendment purposes, Constitution does insulate their com munications employer discipline.” Garcetti U.S. “Determining official duties employee requires practical inquiry into what duties is expected perform, limited formal job de scription.” Houskins (citation omitted); see Garcetti U.S. 424–25 (“Formal job descriptions ten bear little resemblance duties an employee actually is expected perform ….”).
First, contends made her complaints about Zala not as part of her routine job duties, rather as citizen who subjected an assault violent Chica go police officer. She argues sufficiently pled her made as citizen because her complaint identifies her primary job responsibility as being liaison news media. lists ordinary and daily job duties as including: keeping members news media apprised police activity, responding inquiries from news media, and monitoring News Affairs email account. argues as relations face Chicago Police Department, professional du ties include reporting misconduct coworkers, such, were as pri vate citizen. We disagree. concept “official duties” overly narrow. As explained Houskins an employee’s official duties limited formal job description. F.3d We make practical inquiry into what ex
pected do an employee. See id. ; Spiegla Hull 965–67 (7th Cir. 2007) (holding correctional officer when reporting supervisor’s breach prison security even though 3074 ficer’s primary responsibility was monitor vehicle foot traffic through the main gate). Generally, an employee who is verbally assaulted by a colleague would expected report the inappropriate behavior supervisor. Addi ‐ tionally, as the pointed out, the context police department, it makes even more sense expect offic ‐ ers report that fellow officer acted violently. is police officer, as part job, is responsible protecting the public from harm, even though was de ‐ tailed the ONA at the time the complaints.
Our conclusion as an employee is fur ther supported by fact her intimately connected job. In Davis v. Cook Cnty. plaintiff nurse argued memorandum Employee Assis tance Counselor, contained complaints about being harassed by other employees when working hospital’s ‐ emergency room, was speech. (7th Cir. 2008). We disagreed held that memorandum was employee speech. Id. 653–54. We noted that “[w]hile drafting letters may be core job function nurse, focus on core job functions too narrow after Garcetti ….” that plaintiff’s speech was “intimately connected with her job.” Id. (citation internal quo tation marks omitted).
Similarly, Kubiak’s was intimately connected her professional duties. She complained that her co ‐ worker treated her inappropriately work yelled her over work related report. Moreover, directed supervisor, director office, IAD. Just plaintiff’s memorandum Davis “reflect[ed] concern conscientious nurse ensure contribute smooth functioning ER,” Kubiak’s reflected employee’s attempt improve work environment so would harassed again. Id. As result, district court correctly concluded Kubiak’s private citizen. Speech Did Not Address Matter Public
Concern The court held failed allege facts plausibly suggest noted facts alleged suggest focused personal interest pro tecting herself harassment Zala. We agree. Supreme Court has defined “public concern” mean “legitimate news interest,” or “’a subject general *10 10 14 3074 terest of value and concern the public the time of publication.’” Meade v. Moraine Valley Cmty. Coll. , 770 F.3d 680, 684 (7th Cir. 2014) (quoting City of San Diego v. Roe , 543 U.S. 77, 83–84) (2004) (per curiam)). “Whether an employee’s speech addresses matter of public concern must deter mined by the content, form, context of given statement ….” Connick v. Myers , 461 U.S. 138, 147–48 (1983). Con nick test requires us look the overall objective or point of the speech, ascertained by those three factors. Kristofek v. Vill. of Orland Hills , F.3d 979, (7th Cir. 2013). Of the three factors, content is the most important, but the subject matter of the speech is determinative. Bivens v. Trent , F.3d 560–61 (7th Cir. 2010); Gustafson Jones F.3d (7th Cir. 2002). Rather, we focus the “par ticular content (as opposed subject matter) of the ….” Bivens F.3d 561. motive of speaker is relevant part of context made dispositive. Kristofek sum, we ask whether objective of speech—as determined by content, form, context—was “bring wrongdoing light” or “further some purely private interest.” Id. argues she complaints her su pervisors IAD out fear own safety well safety others. According Kubiak, should infer motivated help public no tifying superiors fact posed threat violence, thus conclude matter concern. However, content, form, context convince us objective further personal interest remedying grievance address
First, the content of Kubiak’s speech, argues that speech involving police departments misconduct of officers is always matter of public However, when analyzing the content of the speech, the broad subject matter not determinative, instead focus on the par ‐ ticular content of the speech. Bivens F.3d 560–61. The precise content of Kubiak’s speech focused on the work related incident with Zala Kubiak’s concerns about her own safety. Kubiak’s complaint states that informed Stratton “of what had occurred,” “that was afraid that Officer Zala was going physically strike ,” that “Zala had similar outbursts the past towards ” (empha sis added). also states that requested meeting “discuss incident” Ku biak’s memorandum Biggane, initiated IAD vestigation, “complain[ed] Officer Zala’s assault.” Thus, particular content Kubiak’s focused Zala’s actions toward personally. See Houskins F.3d 491–92 (holding social worker’s police report stating correctional officer had hit did address matter concern because report “nothing more than [a] personal grievance [the officer] or der have him arrested striking her”).
Second, form Kubiak’s indicates objective air personal grievance. reported incident superiors, Stratton Biggane, IAD. fact complaints were directed up chain command suggests address cern. See Bivens (holding plaintiff directly up chain command his su pervisors were protected Amendment). 3074
Third, regarding the context of Kubiak’s speech, the grievance arose Kubiak’s personal confrontation with Zala while at work. This fact indicates that the speech cerned private issue not address a matter of See id. at 561–62 (noting that an officer’s the safety his working conditions “arose result [the officer’s] own illness detailed his own exposure environmental lead [at work]” concluding that the speech was “internal grievance [ ] purely private interest”).
Additionally, we consider the motive the speaker part context in was made. Kristofek , F.3d at 985. alleges that was motivated by concern safety, especially since jury had previ ously returned verdict in favor plaintiff in suit battery excessive force. But fact Kubiak’s were all internally suggests was primarily motivated by personal concerns. Cf. id. 984–85 (noting plaintiff’s “rather aggressive reac tion” going FBI with his suspicions, in addition making internal complaints, suggested he was not solely concerned his personal interest was also motivated desire help public); see Bivens F.3d (“Although fact entirely internal does itself render unprotected, this fact does sug gest grievance personal nature.” (internal ci tation omitted)). any event, motive dispositive. Kris tofek F.3d Even accepting allegations true drawing all reasonable inferences favor, are required do reviewing dismissal based Rule 12(b)(6), Tamayo mixed motives enough show objective bring wrongdoing light, especially given personal nature complaints. sum, content, form, context Kubiak’s
show did not address matter cern. Because sufficiently allege facts plausibly suggest private concern, district court correctly deter mined entitled Amendment protection. See Garcetti U.S. Therefore, district court properly dismissed Kubiak’s failure state claim relief can granted.
B. Conspiracy Claim claims Stratton entered into conspiracy deprive constitutional rights. Since constitutionally protected, dis trict properly dismissed conspiracy claim.
III. Conclusion For foregoing reasons, A FFIRM judgment court.
[1] brought state law claim retaliation violation Illinois Whistleblower Act, ILCS § 174/1, declined exercise supplemental jurisdiction over this claim dis missed it without prejudice. does appeal dismissal state law claim.
[2] notes duties included researching print, televi sion, online media; creating files Chicago Police coverage news; receiving recording notifications field poten tially newsworthy events; preparing daily news clips monthly safety related reports; maintaining files high profile cases; preparing media advisors press releases.
[3] argues reporting Zala’s actions “ordinari ly” within scope duties, relying Lane Franks S. Ct. (2014) (“The critical question under Garcetti is whether at issue is itself ordinarily within scope an employee’s du ties, whether it merely concerns those duties.”). However, Kubiak’s reliance Lane is misplaced. Employee grievances, such as Zala, very different than at issue Lane —subpoenaed testimony former employee’s corruption trials. See Lane S. Ct. 2377. Lane Court explained testimony un der oath employee is outside scope his ordinary job duties is thus citizen purposes Amendment. Id. 2378. Court reasoned when employee testifies, any obligation he may have an “distinct independent from obligation, citizen, speak truth.” Id. trast, obligation report Zala’s verbal assault stemmed position ONA employee, there no independent obliga tion report Zala’s conduct ONA supervisors.