The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RONALD SWINTEK, )
) Case No. 21-cv-3079
Plaintiff, )
) Judge Sharon Johnson Coleman
v. )
)
THOMAS DART, in his official capacity )
as Sheriff of Cook County, et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
In his second amended complaint, plaintiff Ronald Swintek seeks review of defendant Cook
County Sheriff’s Merit Board’s decision to terminate his employment as a Correctional Officer with
the Cook County Sheriff’s Office. He also brings a First Amendment retaliation claim based on his
termination. Before the Court is defendants’ motion for judgment on the pleadings as to Swintek’s
First Amendment retaliation claim under Federal Rule of Procedure 12(c). For the following
reasons, the Court denies defendants’ motion.
Background
On August 1, 2018, the Sheriff’s Office filed an internal complaint to the Cook County
Sheriff’s Merit Board against Swintek based on his conduct that occurred from August 2016 until
July 2017. During that time period, Swintek posted numerous disrespectful comments and
photographs denigrating the Muslim faith on his Facebook account under the moniker “Ivan
Stalin.” For example, one comment stated: “When are people going to understand Moslems [sic]
are not part of America. They do not want to be part of America [and] their only goal is to destroy
and conquer America. And the only reason that is [sic] because we will not bow down to Ali Baba
and his pedophile Mohammed.” Swintek also posted: “I swear to God I will never bend to my
knees for Allah” or “his bitch Mohammed.” Other posts include, “God bless Israel” may “they
continue to kill muslims this worlds [sic] real enemy” and “Thank God we have a president that is
worried about American [sic]. And Americans. That Will fight to protect us from filthy Muslims.”
In his second amended complaint, Swintek alleges that he made these posts while sharing articles
about activities of ISIS in the Middle East, including articles discussing the destruction of Christian
artifacts and that ISIS attacked and killed of Christians. Meanwhile, it is undisputed that Swintek
posted these comments on Facebook when he was off-duty.
On January 21, 2021, the Board concluded Swintek’s conduct violated the Rules and
Regulations and General Orders of the Cook County Sheriff’s Office and the Cook County
Department of Corrections, and therefore, terminated Swintek’s employment. The Board
specifically concluded Swintek violated the Sheriff’s policy regarding discrimination, harassment, or
intimidation of any person and that his actions reflected negatively on the Sheriff’s Office.
Legal Standard
Rule 12(c) specifically states: “After the pleadings are closed—but early enough not to delay
trial—a party may move for judgment on the pleadings.” The “only difference between a motion
for judgment on the pleadings and a motion to dismiss is timing; the standard is the same.” Federated
Mutual Ins. Co. v. Coyle Mech. Supply Inc., 983 F.3d 307, 313 (7th Cir. 2020). “To survive a motion for
judgment on the pleadings, ‘a complaint must state a claim to relief that is plausible on its face.’”
Bishop v. Air Line Pilots Assoc., Int'l, 900 F.3d 388, 397 (7th Cir. 2018) (citation omitted). When
determining if a complaint states a plausible claim for relief, courts draw all facts and reasonable
inferences in favor of the non-moving party. ADM Alliance Nutrition, Inc. v. SGA Pharm Lab, Inc.,
877 F.3d 742, 746 (7th Cir. 2017). “A defendant filing a motion under Rule 12(b)(6) or 12(c) can
base its motion on only ‘the complaint itself, documents attached to the complaint, documents that
are critical to the complaint and referred to in it, and information that is subject to proper judicial
notice.’” Kuebler v. Vectren Corp., 13 F.4th 631, 636 (7th Cir. 2021) (citation omitted).
Discussion
In examining whether a public employee’s speech is protected under the First Amendment,
courts must first look to whether the employee spoke as a citizen on a matter of public concern.
Harnishfeger v. United States, 943 F.3d 1105, 1113 (7th Cir. 2019). “Speech deals with matters
of public concern when it can be fairly considered as relating to any matter of political, social, or
other concern to the community, or when it is a subject of legitimate news interest; that is, a subject
of general interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453, 131
S.Ct. 1207, 179 L.Ed.2d 172 (2011) (internal citations and quotation marks omitted). When
determining if statements constitute a matter of public concern, courts consider the content, form,
and context of the public employee’s speech. Kubiak v. City of Chicago, 810 F.3d 476, 483 (7th Cir.
2016). “Of these three considerations, content is the most important.” Meade v. Moraine Valley
Cmty., Coll., 770 F.3d 680, 684 (7th Cir. 2014).
In response to defendants’ motion, Swintek argues his statements against Muslims and the
Islamic faith are not his personal opinions, but rather are a matter of public concern because he was
sharing his religious and political responses to alarming online articles. Defendants, in turn, argue
Swintek’s statements did nothing to inform the public about issues of value or concern, but rather
reflected his personal animosity toward the Islamic faith. See City of San Diego v. Roe, 543 U.S. 77, 84,
125 S.Ct. 521, 160 L.E.2d 410 (2004) (per curiam).
Viewing Swintek’s allegations and all reasonable inferences in his favor, his comments,
although offensive, concern political expression that Muslims seek to destroy America and religious
expression, namely, that he will not join Islam. Moreover, his statement about the President
protecting Americans concerns political speech. And, although his statements are distasteful, “[i]f
there is a bedrock principle underlying the First Amendment, it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable.” Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Put
differently, “[t]he right to free speech, of course, includes the right to attempt to persuade others to
change their views, and may not be curtailed simply because the speaker’s message may be offensive
to his audience.” Hill v. Colorado, 530 U.S. 703, 716, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). That
said, although Swintek’s First Amendment retaliation claim survives defendants’ Rule 12(c) motion,
discovery may reveal more information as to the form and content of his speech, as well as his
motive, which is relevant to context. See Kubiak, 810 F.3d at 483.
Defendants next argue that even if Swintek’s statements amount to a matter of public
concern, he has failed the Pickering balancing test because his posts on Facebook undermined the
legitimate interests of the Sheriff’s Office, even though Swintek’s statements were not directly
related to his employment. Under Pickering, the Court must strike a balance between the interests of
the public employee in commenting on matters of public concern and the public employer’s interest
in promoting the efficiency of the public services it performs. Olendzki v. Rossi, 765 F.3d 742, 746-47
(7th Cir. 2014) (citing Pickering v. Board of Ed. of Twp. High Sch., 391 U.S. 563, 568, 88 S.Ct. 1731, 20
L.Ed.2d 811 (1968)). When evaluating a public employee’s interests, courts focus “on the effective
functioning of the public employer’s enterprise.” Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct.
2891, 97 L.Ed.2d 315 (1987). Indeed, “[i]nterference with work, personnel relationships, or the
speaker’s job performance can detract from the public employer’s function; avoiding such
interference can be a strong state interest.” Id.
There is no dispute that Swintek’s speech occurred while he was off-duty, thus there is an
important factual dispute prohibiting the Court from conducting the Pickering balancing test at this
juncture. This dispute is whether Swintek identified himself by name and whether he was wearing a
Cook County Department of Corrections hat in a photograph when he made the anti-Islamic
statements on Facebook. Whether Swintek identified himself and his workplace in these posts goes
directly to whether he violated the Rules and Regulations and General Orders of the Cook County
Sheriffs Office and the Cook County Department of Corrections, and ultimately to whether his
speech detracted from his public employer’s function. The Court therefore denies defendants’ Rule
12(c) motion in this respect.
Conclusion
For these reasons, the Court denies defendants’ Rule 12(c) motion for judgment on the
pleadings as to plaintiff's First Amendment retaliation claim [43].
ISSO ORDERED.
Date: 9/22/2022
Entered:
SHARON JOHNSON COLEMAN
United States District Judge