Opinion

Delgado, Octavio v. Jones, Arthur L.

Court: Court of Appeals for the Seventh Circuit
Filed: Mar 8, 2002
Status: Published
On the bench: Per Curiam
Nature of suit: civil
Cited by: 0 cases
Authority: More cited than 39.7%

noting that Gonzalez would have stated a claim had his employers asked him to rewrite his reports so as not to expose police corruption and he nevertheless undertook efforts to accurately communicate his findings

How later courts described this case

noting that Gonzalez would have stated a claim had his employers asked him to rewrite his reports so as not to expose police corruption and he nevertheless undertook efforts to accurately communicate his findings
"To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark . . . would plant the seed of a constitutional case."
stating that in response to a motion under Rule 12(c), a court should not dismiss a claim "unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief"
noting that "it would be a rare case indeed where the pleadings as a whole would permit judgment as a matter of law on this point, unless the plaintiff was relying on speech that is wholly unprotected by the First Amendment or the defendant’s justifications were frivolous"

Written by the judges who cited it.

The opinion

In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1460

Octavio Delgado,

Plaintiff-Appellee,

Police Chief Arthur Jones and

Deputy Chief Monica Ray,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 00 C 917--Lynn Adelman, Judge.

Argued September 5, 2001--Decided March 8, 2002

Before Cudahy, Rovner, and Diane P. Wood,

Circuit Judges.

Cudahy, Circuit Judge. Octavio Delgado

is a detective with the Milwaukee Police

Department who alleges that he was

transferred to a less desirable position

and denied vacation time in retaliation

for an investigation in which he

participated and a memorandum that he

wrote about alleged criminal activities

involving a close relative of an elected

official. This elected official is also

purported to be a close personal friend

of the Chief of Police, Arthur Jones, one

of the defendants. In turn, Deputy Chief

Monica Ray is alleged to have been

involved in the sequence of events

leading to the transfer. The district

court denied the defense of qualified

immunity. Under the Supreme Court’s

ruling in Behrens v. Pelletier, 516 U.S.

299, 306 (1996), a denial of a qualified

immunity defense is immediately

appealable under 28 U.S.C. sec. 1291. We

now affirm the decision of the district

court.

Octavio Delgado is a 15-year veteran of

the Milwaukee Police Department (MPD). In

December of 1997, Delgado began working

in the department’s Vice Control Unit.

Thereafter, until his alleged retaliatory

transfer on May 18, 2000, Delgado had

been receiving satisfactory job

evaluations.

In April 2000, or thereabouts, Delgado

served as part of a drug entry team that

executed a search warrant at a suspected

drug house within the City of Milwaukee.

This police operation ultimately resulted

in the arrest of several persons. In May

of 2000, Delgado received a letter from

an individual arrested during the

execution of the April search warrant.

The letter claimed that the arrestee had

information about the buying and selling

of drugs by public school employees and

the patronage of a drug house by a close

relative of a public official as well as

knowledge of a drug dealer who lived with

a state employee. The letter also stated

that Chief of Police Jones was a close

personal friend of the public official

whose immediate relative was alleged to

have frequented the drug house. Delgado

then showed the letter to his supervising

lieutenant, who commented: "What district

do you want to be transferred to?"

According to the appellee’s brief, the

intended inference of the supervisor’s

comment was that investigations of

politically sensitive matters often

result in unfavorable treatment,

including unwanted transfers.

Delgado was subsequently ordered to

interview the author of the letter (the

former arrestee) in order to corroborate

the details of the letter. Delgado was

then instructed to write a "Matter of"

memorandum summarizing the contents of

the interview with the former arrestee

and to submit it to his lieutenant.

This memo ultimately moved up the chain

of command to Deputy Chief Ray, who

recommended that it be investigated by an

outside law enforcement agency. It is

unclear from the complaint whether Deputy

Chief Ray had the authority to make this

decision. Nevertheless, on May 18, 2000,

Chief Jones was notified of the "Matter of"

memorandum. In a meeting with Delgado’s

captain and Deputy Chief Ray, Chief Jones

ordered that the investigation stay

within the MPD and instructed Delgado’s

captain not to discuss the "Matter of"

memorandum with Delgado or anyone else.

The following day, Chief Jones issued an

order transferring one person, Delgado,

from the Vice Control Division to the

Criminal Investigations Bureau,

retroactive to the previous day,

Thursday, May 18. According to the

complaint, this transfer was a departure

from normal practice, since most

transfers occur on Fridays at the end of

a pay period and take effect the

following Sunday. Moreover, the unit

Delgado was transferred out of already

had several vacancies.

From May 18 until May 26 Delgado was on

vacation. During this period, the letter

writer was allegedly interrogated by

other MPD officers on the subject of his

earlier interview with Delgado. When

Delgado returned to work on the 26th, he

was ordered to undergo a urine drug test

and was informed that he was under

investigation by the MPD’s Internal

Affairs Division for his communication

with the letter writer, allegedly in

violation of a departmental rule.

On the same day, Delgado also received

a second letter from the same arrestee

providing additional information on

potential drug dealers. Delgado forwarded

this letter to his former lieutenant in

the Vice Squad Unit. The following day,

Delgado asked both his former lieutenant

and a captain in the Vice Squad Unit why

he had been transferred, and he was

advised that Chief Jones had forbidden

any communication by these supervisors

with Delgado.

Finally, Delgado claims that in the

succeeding weeks and months, his pre-

approved vacation schedule was

unilaterally truncated or cancelled in

accordance with rules that were not being

applied to his fellow officers. Again,

according to the complaint, Delgado had

been receiving good performance

evaluations. In addition, the MPD has a

rule prohibiting the use of transfers as

a form of discipline.

On a motion for a judgment on the

pleadings, pursuant to Fed. R. Civ. P.

12(c) and 12(h)(2), the district court

denied the appellants’ request that they

be accorded the defense of qualified

immunity.

II.

This case presents two issues on appeal:

(1) whether both Chief Jones and Deputy

Chief Ray are entitled to qualified

immunity because, within the specific

context of this case, a reasonable

official would not have concluded that

Detective Delgado had a First Amendment

right to free speech; and (2) whether

Deputy Chief Ray, who forwarded Detective

Delgado’s "Matter of" memorandum to Chief

Jones, is also entitled to qualified

immunity because her role in any alleged

retaliation was entirely ancillary and

administrative in nature. A motion for a

judgment on the pleadings under Fed. R.

Civ. P. 12(c), like a motion for failure

to state a claim under Fed. R. Civ. P.

12(b)(6), should not be granted "unless

it appears beyond doubt that the

plaintiff cannot prove any facts that

would support his claim for relief."

Gustafson v. Jones, 117 F.3d 1015, 1017

(7th Cir. 1997) (quoting Frey v. Bank

One, 91 F.3d 45, 46 (7th Cir. 1996)). In

evaluating the motion, we view the

allegations of the complaint in the light

most favorable to the nonmoving party.

See id. The standard of review in

determining the validity of a qualified

immunity defense and the underlying

interpretation of the First Amendment is

de novo, with the courts’ accepting all

well-pleaded factual allegations as true,

and making all permissible inferences in

the plaintiff’s favor. See id. at 1017-

18.

As a threshold matter, the Supreme

Court’s jurisprudence on qualified

immunity requires that this issue be

resolved at the earliest stages of

litigation. In Harlow v. Fitzgerald, 457

U.S. 800 (1982), the Supreme Court

limited the inquiry for qualified

immunity to an objective reasonableness

standard in order to facilitate judgment

as a matter of law and concluded that

"[u]ntil this threshold immunity question

is resolved, discovery should not be

permitted." Id. at 818-19./1 Therefore,

in order for a plaintiff to successfully

defeat a qualified immunity defense, two

conditions must be satisfied: (1) the

complaint must adequately allege facts

that, if true, would constitute a

violation of a constitutional right; (2)

the case law must be "clearly

established" at the time of the alleged

violation, so that a reasonable public

official would have know that his conduct

was unlawful. Id./2

In Siegert v. Gilley, 500 U.S. 226

(1991), the Court observed that a

decision "of this purely legal question

permits courts expeditiously to weed out

suits which fail the test without

requiring a defendant who rightly claims

qualified immunity to engage in expensive

and time-consuming preparation to defend

the suit on the merits." Id. at 232. One

of the intended effects of the qualified

immunity defense is "to spare a defendant

not only unwarranted liability, but

unwarranted demands customarily imposed

upon those defending a long drawn out

lawsuit." Id. The policy that underlies

this judicially created doctrine is that

meritless and insubstantial lawsuits can

distract officials from their public

duties, inhibit the exercise of

independent judgment and discretion and

ultimately discourage highly qualified

citizens from entering public service.

See Harlow, 457 U.S. at 814 (discussing

the "social costs" that flow from

lawsuits against innocent public

officials); see also Donovan v. City of

Milwaukee, 17 F.3d 944, 947 (7th Cir.

1994) (observing that "few individuals

will enter public service if such service

entails the risk of personal liability

for one’s official decisions").

Here, our review of the district court’s

denial of the qualified immunity defense

must focus on two issues: (1) Did the

defendants’ alleged conduct amount to a

violation of Delgado’s First Amendment

rights? (2) Was this conduct clearly

established as a violation of the

Constitution at the time of the alleged

violation?

For a First Amendment retaliation claim

to survive a judgment on the pleadings,

we have held that "the facts alleged in

the complaint must show that (1) the

speech in which the plaintiffs engaged

was constitutionally protected under the

circumstances, and (2) the defendants

retaliated against them because of it."

Gustafson, 117 F.3d at 1018 (citing

Caldwell v. City of Elwood, 959 F.2d 670,

672 (7th Cir. 1992)). Moreover, in the

context of a qualified immunity defense,

"The plaintiff bears the burden of

establishing the existence of a clearly

established constitutional right."

Donovan, 17 F.3d at 951-52 (citing

Radovich v. Wade, 850 F.2d 1180, 1209

(7th Cir. 1988) (en banc)).

The Supreme Court has held that the

speech of a government employee warrants

First Amendment protection if that speech

"addresses a matter of public concern."

Connick v. Myers, 461 U.S. 138, 147

(1982)./3 Whether the employee’s speech

falls under the rubric of public concern

must be determined "by the content, form,

and context of a given statement, as

revealed by the record as a whole." Id.

at 147-48. Of these three factors, this

court has determined that the content of

the speech is the most important. See

Campbell v. Towse, 99 F.3d 820, 827 (7th

Cir. 1996); Glass v. Dachel, 2 F.3d 733,

740 (7th Cir. 1993).

The Supreme Court’s First Amendment

jurisprudence also requires that a court,

in determining the nature of a public

employee’s speech, seek "a balance

between the interests of the [employee],

as a citizen, in commenting upon matters

of public concern and the interest of the

State, as an employer, in promoting the

efficiency of public service." Connick,

461 U.S. at 142 (quoting Pickering v.

Board of Education, 391 U.S. 563, 568

(1968)). However, this inquiry, which is

commonly know as the Pickering balancing

test, can seldom be done on the basis of

the pleadings alone. See Gustafson, 117

F.3d at 1019 (noting that "it would be a

rare case indeed where the pleadings as a

whole would permit judgment as a matter

of law on this point, unless the

plaintiff was relying on speech that is

wholly unprotected by the First Amendment

or the defendant’s justifications were

frivolous"); Jefferson v. Ambroz, 90 F.3d

1291, 1296-97 (7th Cir. 1996) (ruling for

the defendant because the plaintiff

included in his complaint facts that

established that the defendant would

prevail under the Pickering balancing

test). In most cases, application of the

Pickering balancing test will be possible

only after the parties have had an oppor

tunity to conduct discovery. Gustafson,

117 F.3d at 1019. However, even at an

early stage of litigation, a First

Amendment retaliation claim can sometimes

be resolved on the public concern test on

the basis of the three Connick factors of

content, form and context of the disputed

speech.

In terms of content, this court has

determined that police protection and

public safety are generally a matter of

public concern. See Auriemma v. Rice, 910

F.2d 1449, 1460 (7th Cir. 1990) (en banc)

("It would be difficult to find a matter

of greater public concern in a large

metropolitan area than police protection

and public safety."); Glass, 2 F.3d at

741 ("Obviously, speech that focuses on

police departments (and ultimately police

protection and public safety) involve

matters of great public concern."). Here,

Delgado’s complaint alleges that a former

arrestee sent him a letter that contains

information about criminal drug activity.

The letter alleges that a close relative

of an elected official had been

frequenting a drug house, and that Chief

Jones was a close personal friend of this

elected official. A subsequent interview

with the arrestee corroborated the claims

of the letter. All of this information

was contained in the "Matter of"

memorandum. For this reason, Delgado’s

captain provided a copy of this

memorandum to Deputy Chief Ray with a

recommendation that an investigation be

conducted by an outside law enforcement

agency.

Thereafter, Delgado has alleged specific

instances of retaliation, including an

unsolicited job transfer and restrictions

on his enjoyment of vacation that

occurred immediately after the Chief

received the "Matter of" memorandum.

Moreover, Chief Jones decided to ignore

the recommendation that an outside agency

conduct the investigation; he ordered

Delgado’s supervisors not to discuss

Delgado’s memorandum with anyone. In

addition, the supervisors were allegedly

ordered not to discuss the transfer

decision with Delgado.

Certainly, a communication by a law

enforcement officer that contains

information essential to a complete and

objective investigation of serious

criminal activity is "content" that

implicates public concern. Moreover, the

Connick factors of form and context,

which can be clarified by an examination

of an employee’s motivation, also support

Delgado’s claim. In Linnhart v.

Glatfelter, 771 F.2d 1004 (7th Cir.

1985), an acting police chief of a

municipality claimed that his various

behind-the-scene activities, which were

designed to secure him the chief’s

position on a permanent basis, were

protected speech under the First

Amendment. In rejecting the plaintiff’s

claim, we stated that an inquiry under

Connick "requires us to look to the point

of the speech in question: was it the

employee’s point to bring wrongdoing to

light? Or was the point to further some

purely private interest?" Id. at 1010

(emphasis in original). In Linnhart, the

plaintiff had engaged in

conversationsdesigned to persuade his

principal rival to apply for a different

position within the municipal government.

We determined that the political or

social content of the acting chief’s

speech was not sufficient to overcome the

obvious self-interested context in which

these conversations occurred.

As in Linnhart, the inquiry into

motivation relates to both the form and

the context of Delgado’s speech. Here,

there are absolutely no facts in the

pleadings suggesting that Delgado’s

communications, both in conversations

with his supervisors and in his "Matter of"

memorandum, would somehow benefit him

personally. Quite to the contrary, after

informing his lieutenant of the content

of the arrestee’s letter, Delgado was

asked, "What district do you want to be

transferred to?" Drawing all inferences

in favor of Delgado, as we must at this

stage of the litigation, this comment

could certainly support the inference

that employees who bring to light

politically sensitive or embarrassing

allegations about their superiors are

often subject to unwanted job transfers.

Although the manner in which Delgado per

formed his police work was apparently

designed to bring on an appropriate

investigation (and thus suggests a matter

of public concern), there is no

suggestion that Delgado also furthered

some personal, private interest. Also,

the fact that Delgado communicated

privately with his superiors does not

make his speech less a matter of public

concern. Givhan v. Western Line Consol.

Sch. Dist., 439 U.S. 410, 415-16 (1979)

("Neither the [First] Amendment itself

nor our decisions indicate that this

freedom is lost to the public employee

who arranges to communicate privately

with his employer rather than to spread

his views before the public.").

In arguing that Delgado’s actions did

not involve a matter of public concern,

the defendants rely on Gonzalez v. City

of Chicago, 239 F.3d 939 (7th Cir. 2001),

for the proposition that communications

that are part of an employee’s regular

job duties are not matters of public

concern. In Gonzalez, a newly recruited

police officer, who formerly served as a

civilian employee of the Chicago Police

Department’s Office of Professional

Standards, was discharged shortly after

completing his police academy training.

Gonzalez claimed that poor job

evaluations he had received were based on

false information that was furnished to

retaliate against him for several

negative reports he had authored about

police officers who were now his co-

workers. In finding that Gonzalez’s

earlier work activities did not

constitute protected speech under the

First Amendment, this Court emphasized

that Gonzalez was "clearly acting

entirely in an employment capacity when

he made those reports," id. at 941

(emphasis added), and that he "could have

been fired had he not produced the

reports," id. at 942 (emphasis added).

The defendants argue that under

Milwaukee Ordinances 105-125 and 105-126,

Delgado was duty-bound to report all

violations of city ordinances to the

Chief of Police and to arrest all persons

found to have violated any law or

ordinance. This argument, however, sweeps

much too broadly. On the facts of this

complaint, Delgado had information about

criminal activity that potentially

involved an immediate relative of an

elected official, who also happened to be

a close personal friend of Chief Jones.

Fully divulging this information to his

superiors may have been consistent with

his obligations as a police officer in

seeking an independent and objective

investigation. And it was hardly in his

personal interest to antagonize the

Chief. See Linnhart, 771 F.2d at 1010.

But we think Delgado had considerable

discretion about how he communicated the

information up the chain of command. His

disclosure went far beyond some rote,

routine discharge of an assigned duty, as

in Gonzalez. Our holding in Gonzalez is

limited to routine discharge of assigned

functions, where there is no suggestion

of public motivation. In the case now

before the court, Delgado’s

communications with his superiors were

designed not only to convey information

of possible crimes, but also additional

facts that were relevant to the manner

and scope of any subsequent

investigation. Effective police work

would be hopelessly compromised if police

officers could be retaliated against for

communicating factual details (e.g., a

supervisor’s relationship to a criminal

suspect) that bear on the department’s

ability to conduct an objective

investigation. The fact that a police

officer’s job responsibilities may in

some measure overlap with motivations of

a well-meaning citizen does not change

this analysis.

In contrast, Gonzalez addresses a

different scenario where the effective

discharge of a public employee’s routine

duties touches on a matter of public

concern--arguably a very broad category.

In order to prevent every adverse employ

ment decision from claiming the shield of

First Amendment protection, Gonzalez

requires some type of speech or

expression that, in addition to

objectively promoting or protecting a

matter of public concern, is also a

product of some independent discretion or

judgment. 239 F.3d at 941 (noting that

Gonzalez would have stated a claim had

his employers asked him to rewrite his

reports so as not to expose police

corruption and he nevertheless undertook

efforts to accurately communicate his

findings). But the dichotomy between

routine and discretionary functions is

not quite the same as the distinction

between public or private motive

discussed in Linnhart. The latter

distinction has broader application.

We must weigh the interests of the

public employee in speaking upon matters

of public concern against the State’s

interest in furthering efficient public

service, as required under the Pickering

balancing test. Gonzalez essentially

represents a categorical judgment for the

employer insofar as a public agency

cannot efficiently carry out its

functions if the faithful discharge of

routine tasks could become grounds for

challenging virtually any personnel

decision. See Connick, 461 U.S. at 149

("To presume that all matters which

transpire within a government office are

of public concern would mean that

virtually every remark . . . would plant

the seed of a constitutional case.").

Gonzalez clarified that "we are not

’establishing a per se rule exempting

statements made in the course of official

duties from the protection of the First Amendment.’"

239 F.3d at 942 (quoting Koch v. City of

Hutchinson, 847 F.2d 1436 (10th Cir.

1988)). The broad sweep of the

defendants’ argument is essentially

calling for such a per se rule, which

this court rejected in Gonzalez.

Delgado has alleged sufficient facts to

establish that his speech is

constitutionally protected and that the

defendants retaliated against him because

of it. Therefore, his complaint states a

valid First Amendment retaliation claim.

After establishing that the plaintiff

has adequately alleged a violation of a

constitutional right, the second level of

inquiry in a qualified immunity analysis

involves whether the law was "clearly

established" at the time of the alleged

violation. Here, the defendants have no

valid argument. In Gustafson, this court

observed, "It has been well established

for many years in this Circuit that a

public employer may not retaliate against

an employee who exercises his First

Amendment speech rights, including in

particular retaliation through a transfer

to a less desirable position." 117 F.3d

at 1020./4 Although the defendants

argue that Gonzalez somehow altered the

First Amendment landscape in this

Circuit, the alleged retaliation against

Delgado occurred about eight months

before our decision in Gonzalez,

eliminating any possibility of reliance.

The defendants’ only response to this

argument is that the Eleventh Circuit had

issued an opinion in Morris v. Crow, 142

F.3d 1379 (11th Cir. 1998), which seems

to have announced a rule similar to

Gonzalez. In Morris, an officer in the

Polk County Sheriff’s Office in Florida

filed an accident report on a high speed

collision that involved a fellow officer.

In a lawsuit that followed, Morris gave

deposition testimony about the accident

that was damaging to his employer. After

several months, the lawsuit was settled

and Morris was then suspended and fired.

The Eleventh Circuit concluded that

Morris’ report "was generated in the

normal course of his duties as an

accident investigator. The report

discussed only his investigation and

reconstruction of a single accident." Id.

at 1382. The subsequent deposition in a

civil lawsuit also was determined to have

no constitutional import. Id. at 1383.

However, as in Gonzalez, the Eleventh

Circuit in Morris also expressed concern

that routine public duties should not be

elevated to a protected status under the

First Amendment, lest every remark by a

government employee "plant the seed of a

constitutional case." 142 F.2d at 1382

(quoting Connick, 461 U.S. at 149).

Although concerns of efficiency may

require a safe harbor for personnel

decisions that are made against the

backdrop of an employee’s routine job

duties, this category is narrow and

cannot be permitted to swallow the First

Amendment. No doubt government efficiency

can be equally compromised if government

supervisors can freely pursue retaliation

for speech that is politically sensitive

or embarrassing.

In the case now before the court,

Delgado was singled out by the former

arrestee and given information on alleged

criminal activity. Once this information

was reduced to the "Matter of"

memorandum, it was forwarded by Delgado’s

captain to Deputy Chief Ray with a

recommendation that any subsequent

investigation be performed by an outside

law enforcement agency. Such a situation

is certainly not routine. Moreover,

because the subject of Delgado’s

communication was highly relevant to an

independent and objective investigation

of criminal activity and was not

motivated by the personal interests of

Delgado--in short, it was a matter of

public concern--a public official

knowledgeable about relevant case law

could not have reasonably believed that

he was free to retaliate by ordering an

unwanted transfer to a less desirable job

or by the manipulation of Delgado’s

vacation schedule.

III.

Since Chief Jones allegedly ordered the

unwanted job transfer and the change in

Delgado’s vacation schedule, the defense

of qualified immunity must fail as

applied to him. Deputy Chief Ray,

however, asserts that she is entitled to

qualified immunity because her only role

in this alleged sequence of events was to

forward the "Matter of" memorandum to

Chief Jones.

A judgment on the pleading, like a

motion to dismiss, should not be granted

"unless ’it is clear that no relief could

be granted under any set of facts that

could be proved consistent with the allegations.’"

Cushing v. City of Chicago, 3 F.3d 1156,

1159 (7th Cir. 1993) (quoting Hishon v.

King & Spalding, 467 U.S. 69, 73 (1984));