The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1231
NORVAL WILLIAMS,
Plaintiff-Appellant,
v.
RICK SENIFF, individually and in his capacity as Sheriff of
St. Joseph County, Indiana, GANPAT WAUGH, individually
and in his capacity as Chief of Police of St. Joseph County,
Indiana, CHRISTOPHER TOTH, individually and in his official
capacity as Prosecuting Attorney of St. Joseph County,
Indiana, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 00 C 333—Robert L. Miller, Jr., Chief Judge.
____________
ARGUED SEPTEMBER 12, 2002—DECIDED AUGUST 20, 2003
____________
Before RIPPLE, ROVNER and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Norval Williams was employed by
the St. Joseph County Sheriff’s Department as an Assistant
Chief of Police. He was fired after he made a comment in
the media questioning the guilt of an individual who had
been convicted of killing a police officer. Mr. Williams
claimed that he suffered racial discrimination in his work-
place and that the defendants conspired to retaliate against
2 No. 02-1231
him after he made the comment. He therefore filed this
action, alleging violations of 42 U.S.C. §§ 1983 and 1985
based on deprivations of his First Amendment free speech,
procedural due process and equal protection rights. Invok-
ing Title VII, see 42 U.S.C. § 2000e et seq., he also claimed
that he had suffered racial discrimination. Finally, he
alleged a state law claim for interference with contractual
relations under Indiana law. The district court dismissed a
portion of Mr. Williams’ claims under Federal Rule of Civil
Procedure 12(b)(6) and later granted summary judgment on
the remaining claims. For the reasons set forth in this
opinion, we affirm the judgment of the district court.
I
BACKGROUND
A. Facts
Mr. Williams, an African-American, was hired by then-St.
Joseph County Sheriff, Rick Seniff, to serve as an Assistant
Chief of Police, beginning on January 1, 1999. One of Mr.
Williams’ responsibilities was to oversee security for the St.
Joseph County Courthouse in South Bend, Indiana. Serving
in this oversight capacity in June of 1999, Mr. Williams
attended the trial of Gregory Dickens, an African-American
youth who was tried before an all-white jury for the murder
of a white South Bend police officer. The jury convicted
Dickens.
At some time during the trial or after the verdict was
returned, Mr. Williams commented to television and
newspaper reporters that “if the person who committed the
murder was not on trial, the verdict would not be just.” R.1
at ¶ 5. Mr. Williams contends that his statement “mirrored
doubts felt and expressed by other members of the African
No. 02-1231 3
American community of South Bend, Indiana,” related to a
matter of public concern, and “was not without reasonable
basis and foundation.” R.1 at ¶ 7. Mr. Williams further
alleges that a witness had called to inform him that the real
murderer was not on trial. Mr. Williams claims he disclosed
this communication to both the prosecution and the defense
in Dickens’ trial. However, the witness feared for her
personal safety and subsequently refused to testify. Mr.
Williams contends that, after he made the statement in the
media, he was subjected to great anger and was forced to
endure race-based hostility in his workplace.
Mr. Williams maintains that, after he made this statement,
South Bend Mayor Stephen Luecke, then-St. Joseph County
Prosecuting Attorney Christopher Toth, and Fraternal Order
of Police (“F.O.P.”) Lodge 36 President Joseph Lauck
expressed displeasure and exerted pressure on Sheriff Seniff
to fire Mr. Williams. These individuals admit that they
called Sheriff Seniff to express their displeasure with Mr.
Williams’ comment, but the defendants deny that they
1
requested that Sheriff Seniff fire Mr. Williams.
Mr. Williams claims that, during his approximately seven-
month tenure on the police force, Sheriff Seniff displayed an
intent to discriminate against him by refusing to hire
minority job applicants in lieu of white applicants, as well
as by excluding him from input in the hiring process and
from social activities. Mr. Williams also contends that he
was singled out for an unprecedented performance evalua-
1
Mr. Lauck stated that his call to Sheriff Seniff was in response
to a call placed to Mr. Lauck’s pager by the Sheriff. See R.80,
Ex.Lauck Aff. at ¶ 4. Mr. Lauck’s affidavit indicates that the
Sheriff stated he had heard that the F.O.P. was displeased with
Mr. Williams’ comment, a fact that Mr. Lauck confirmed. See id.
at 5.
4 No. 02-1231
tion that was not given to similarly situated white officers.
On August 4, 1999, Sheriff Seniff summoned Mr. Williams
to a performance evaluation meeting. During the session,
Sheriff Seniff terminated Mr. Williams’ employment based
on allegations of poor job performance, Mr. Williams’
negative response to criticisms and Mr. Williams’ failure to
submit to a polygraph test. Mr. Williams maintains that
these claims were mere pretext for a race-based termination.
Mr. Williams contends that, after his termination, Sheriff’s
Department Chief of Police Ganpat Waugh (“Chief
Waugh”) and St. Joseph County Police Merit Board mem-
bers Terry O’Connor, Mary Jane Clark, Donald Decker,
Michael Anderson and Jon Hanley (collectively “Merit
Board members”), improperly acquiesced in his illegal
termination. Mr. Williams claims that the Merit Board
members had the authority and duty to challenge the ter-
mination directly or to grant a hearing at which Mr. Wil-
liams might answer charges and present a defense. He
claims that the Merit Board members failed to exercise their
authority with the intent that Sheriff Seniff would terminate
Mr. Williams in retaliation for the comment in the media.
Moreover, Mr. Williams alleges that Chief Waugh partici-
pated in the pretextual performance review and wrongful
termination and that Chief Waugh had the jurisdiction and
authority to stop the conspiracy to deprive Mr. Williams of
his rights. Mr. Williams contends that Chief Waugh is liable
for failing to stop or investigate the illegal actions of Sheriff
Seniff, Mayor Leucke, Mr. Toth and Mr. Lauck.
B. District Court Proceedings
Before the district court, Mr. Williams named Sheriff
Seniff, Chief Waugh, Mr. Toth, Mr. Lauck, Mayor Luecke
and the Merit Board members, all individually and in their
No. 02-1231 5
official capacities, in a six-count complaint filed on May 26,
2000. Count I alleged that Mayor Luecke, Mr. Toth and Mr.
Lauck conspired with Sheriff Seniff to deprive Mr. Williams
of his First Amendment free speech rights by pressuring
Sheriff Seniff to terminate Mr. Williams in retaliation for his
statement in the media. The first count also claimed that the
Merit Board members and Chief Waugh violated Mr.
Williams’ First Amendment rights by failing to intervene
and stop his termination. Mr. Williams alleged that all of the
defendants’ actions constituted violations of both 42 U.S.C.
§§ 1983 and 1985.
In the second and third counts of his complaint, Mr.
Williams alleged that all named defendants, individually
and in their official capacities, deprived him of his equal
protection rights by forcing him to work in a hostile and
discriminatory work environment and violated his due
process rights by depriving him of his liberty and property
interests in continued employment as Assistant Chief of
Police, both in violation of 42 U.S.C. §§ 1983 and 1985.
Mr. Williams’ fourth count alleged that he had suffered
disparate treatment and a hostile work environment in
violation of Title VII. The complaint stated that the creation
of a hostile work environment was undertaken by all named
defendants individually and in their official capacities in
furtherance of the deprivations alleged in Counts I through
III. However, the complaint specifically singled out the
actions of Sheriff Seniff as his employer and Mr. Lauck in
his capacity as an agent for the F.O.P., which Mr. Williams
characterizes as a labor union. Finally, in the fifth count of
the complaint, Mr. Williams alleged that all defendants
committed a wrongful and tortious breach of contract under
6 No. 02-1231
2
Indiana law.
In an order issued on October 5, 2000, the district court
addressed a number of motions for dismissal on the plead-
ings. First, the court noted that, in response to Mayor
Luecke’s motion to dismiss, Mr. Williams had stated that
Mayor Luecke’s actions occurred “in the course of his
official duties and while exercising his responsibilities as
Mayor of South Bend, Indiana [and] nothing in the com-
plaint alleges or indicates that [Mayor] Luecke was ‘off-
duty’ or somehow acting as a private individual when he
became involved in the conspiracy.” R.41 at 6-7 (quoting
Williams Resp. at 8). Consequently, the court determined
that the complaint only alleged action in the Mayor’s official
capacity, and the court dismissed claims against Mayor
Luecke in his individual capacity. The court then ruled that
Mr. Williams could proceed on the claims against Mayor
Luecke in his official capacity. On June 14, 2001, the court
granted Mr. Williams’ and Mayor Luecke’s joint motion to
voluntarily dismiss the remaining claims as to Mayor
Luecke in his official capacity. Mr. Williams has not ap-
pealed the dismissal of claims against the Mayor.
The court then addressed Mr. Lauck’s Rule 12(b)(6)
motion. The motion claimed that the conspiracy allegations
of Mr. Williams’ complaint were insufficient, that Mr. Lauck
was not a state actor, that the speech in question was not
protected, and that the state law claims in Count V did not
properly contain any allegations against Mr. Lauck or the
F.O.P. The court granted Mr. Lauck’s motions with respect
to Count V because the pleading alleged only a breach of an
employment agreement and because Mr. Lauck was not in
2
Mr. Williams’ sixth count does not allege an additional cause
of action; rather, it details the harm that he suffered from the
claims set forth in the first five counts.
No. 02-1231 7
privity in the employment contract with Mr. Williams.
Although in his brief in opposition to the motion to dismiss
Mr. Williams pointed out that the Indiana torts of interfer-
ence with an employment relationship and interference with
a contractual relationship do not require privity of contract,
the court rejected this argument as an impermissible
attempt to amend the complaint through a motion to
dismiss. Consequently, the court concluded that the plead-
ing did not give Mr. Lauck reason to believe that he should
seek dismissal of claims for contractual interference with his
employment relationship. See R.41 at 11.
The district court dismissed all claims against the Merit
Board members in their official and personal capacities. It
reasoned that, under the Indiana Code, Mr. Williams was an
at-will probationary employee; as such, the Merit Board
members did not have jurisdiction to review Mr. Williams’
termination. Moreover, the court concluded that the Merit
Board members were acting in a quasi-judicial capacity and
therefore were entitled to absolute immunity.
With respect to Mr. Toth, the court relied on the Eleventh
Amendment to dismiss the claims brought against him in
his official capacity as a state prosecutor. The court also
dismissed Mr. Williams’ Count V interference with contract
obligations claim against Mr. Toth in his individual capacity
for the same reason it dismissed Mr. Williams’ claim against
Mr. Lauck—the absence of privity of contract with Mr.
Williams. Moreover, the court dismissed the Title VII claim
against Mr. Toth in his individual capacity, recognizing that
Mr. Toth could not be characterized as Mr. Williams’
employer and because no individual liability exists under
Title VII.
Having had his claims against Mr. Lauck and Mr. Toth for
8 No. 02-1231
tortious breach of contract dismissed for lack of privity, Mr.
Williams made a motion for leave to file a First Amended
Complaint, which sought to more clearly outline his state
law claim of tortious interference with a contractual rela-
tionship. In an order dated November 20, 2001, the district
court refused Mr. Williams’ motion because it continued to
refer “in the caption and in the text, to parties and claims
that were dismissed in [an earlier order].” R.58 at 2.
Finally, on December 27, 2001, after the parties had
conducted discovery, the district court granted summary
judgment in the defendants’ favor on all remaining claims.
The court found that Mr. Williams had not presented
sufficient evidence to survive summary judgment motions
on his remaining § 1983, § 1985 and Title VII claims. See
R.81.
II
DISCUSSION
Mr. Williams submits that the defendants, acting in their
official and individual capacities, deprived him of his First
Amendment right to free speech as well as of his rights to
equal protection and due process under the Fourteenth
Amendment. He also claims that Sheriff Seniff and Chief
Waugh conspired with Mr. Lauck, Mr. Toth and Mayor
3
Luecke to deprive him of those rights. See 42 U.S.C. § 1985.
Moreover, Mr. Williams contends that Sheriff Seniff’s and
Mr. Lauck’s actions constituted disparate treatment and
created a hostile work environment in violation of Title VII.
He also maintains that his termination was a result of tor-
3
As we have noted above, Mayor Luecke was dismissed from
the case on June 14, 2001, and he is not a party to this appeal.
No. 02-1231 9
tious interference with his employment contract.
We review de novo the district court’s grants of summary
judgment and motions to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) and draw all favorable inferences
in favor of the nonmovant, Mr. Williams. See Lee v. City of
Chicago, 330 F.3d 456, 459 (7th Cir. 2003) (reviewing de novo
grant of motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6)); Turner v. J.V.D.B. & Assocs., Inc., 330 F.3d 991, 994
(7th Cir. 2003) (reviewing grant of summary judgment de
novo).
A. First Amendment
1. Connick-Pickering Analysis
When a government employee is terminated and alleges
that his exercise of protected speech motivated the termina-
tion, we initially evaluate whether the First Amendment
protects the employee’s speech by conducting the two-part
analysis set forth in Pickering v. Board of Education, 391 U.S.
563 (1968), and Connick v. Myers, 461 U.S. 138 (1983). See
Wainscott v. Henry, 315 F.3d 844, 848 (7th Cir. 2003).
The first element of the Connick-Pickering test requires that
we consider whether the speech in question addresses a
matter of public concern. See Delgado v. Jones, 282 F.3d 511,
516 (7th Cir. 2002) (citing Connick, 461 U.S. at 147). “Whether
an employee’s speech addresses a matter of public concern
must be determined by the content, form, and context of a
given statement, as revealed by the whole record.” Connick,
461 U.S. at 147-48. We have determined that the content of
the speech is the most important consideration. See Delgado,
282 F.3d at 517. The second element, the Pickering balancing
test, requires us
to determine whether “the interests of the [plaintiff], as
a citizen, in commenting upon matters of public con-
10 No. 02-1231
cern” outweigh “the interest of the State, as an em-
ployer, in promoting the efficiency of the public services
it performs through its employees.”
Kokkinis v. Ivkovich, 185 F.3d 840, 844 (7th Cir. 1999) (quoting
Pickering, 391 U.S. at 568). Both prongs of the Connick-
Pickering test are matters of law that this court reviews de
novo. See Wainscott, 315 F.3d at 851 (stating that resolution
of Pickering balancing test is a question of law); Snider v.
Belvidere Township, 216 F.3d 616, 620 (7th Cir. 2000) (noting
that determination of matter of public concern is for the
court).
If we determine that the employee’s speech was constitu-
tionally protected, we then must consider whether the
protected speech was a substantial or motivating factor in
the defendant’s actions. See Gustafson v. Jones, 290 F.3d 895,
906 (7th Cir. 2002). If the speech was such a factor, the
employer must have the opportunity to prove that it would
have taken the same action regardless of the plaintiff’s
exercise of First Amendment rights. See Vukadinovich v.
Bartles, 853 F.2d 1387, 1389-90 (7th Cir. 1988) (quotation
marks and citations omitted). However, we need not reach
the issue of the employer’s motivations if the plaintiff’s
statements are not constitutionally protected. See id. at 1390
n.5.
The first step in the analysis requires that we determine
whether Mr. Williams’ speech addressed a matter of public
concern. At some point during or after the Dickens trial, Mr.
Williams commented to reporters, “if the person who
committed the murder was not on trial, the verdict would
4
not be just.” R.1 at ¶ 5. Mr. Williams contends that his
4
This quotation is taken from Mr. Williams’ complaint; the
(continued...)
No. 02-1231 11
statement “mirrored doubts felt and expressed by other
members of the African American community of South
Bend, Indiana” and that it was based on information from
a witness that did not testify at the trial. Id. at ¶ 7. This
statement purported to address the validity of a criminal
conviction that Mr. Williams claims was influenced by race.
Because we believe that the second prong of the Connick-
Pickering analysis is determinative, we assume, without
deciding, that this comment constitutes a matter of public
concern. See Knight v. Connecticut Dep’t of Pub. Health, 275
F.3d 156, 164 (2d Cir. 2001) (assuming arguendo that speech
addressed matter of public concern and turning to Pickering
balancing test); Flynn v. City of Boston, 140 F.3d 42, 46-47 (1st
Cir. 1998) (same).
In Gustafson, we outlined a number of factors for consider-
ation in conducting the Pickering balancing test:
Pickering contemplates a highly fact-specific inquiry into
a number of interrelated factors: (1) whether the speech
would create problems in maintaining discipline or
harmony among co-workers; (2) whether the employ-
ment relationship is one in which personal loyalty and
confidence are necessary; (3) whether the speech im-
peded the employee’s ability to perform [his] responsi-
bilities; (4) the time, place, and manner of the speech; (5)
the context within which the underlying dispute arose;
(6) whether the matter was one on which debate was
vital to informed decision-making; and (7) whether the
speaker should be regarded as a member of the general
public.
Gustafson, 290 F.3d at 909 (citing Greer v. Amesqua, 212 F.3d
4
(...continued)
record neither contains a direct quote nor a transcript of the
media reports.
12 No. 02-1231
358, 371 (7th Cir. 2000)). The court’s opinion in Kokkinis v.
Ivkovich is also instructive. In Kokkinis, a police officer
appeared on a television newscast in disguise and shared
his views concerning another officer’s allegation of sex
discrimination within the police department. See Kokkinis,
185 F.3d at 842. The court found that Kokkinis had no
knowledge of the incident; rather, he had a personal dispute
5
with the Police Chief. The Police Chief was embarrassed by
the broadcast and believed that the department as a whole
was placed in a negative light. The Chief also received
phone calls complaining about the interview. See id. We
concluded that the Pickering balancing test weighed in favor
of the defendants because “[d]eference to the employer’s
judgment regarding the disruptive nature of an employee’s
speech is especially important in the context of law enforce-
6
ment.” Kokkinis, 185 F.3d at 845.
5
In Kokkinis, we held that the motive of the officer in making the
statements ostensibly about sex discrimination was a private
feud; therefore, the statements did not constitute a matter of
public concern. See Kokkinis v. Ivkovich, 185 F.3d 840, 844-45 (7th
Cir. 1999). However, we addressed the Pickering balancing test in
the alternative. See id. at 845.
6
We note that in Gustafson v. Jones, 290 F.3d 895 (7th Cir. 2002),
we reached the opposite result and concluded that a police
department had violated two police officers’ free speech rights by
transferring them out of their elite tactical unit in retaliation for
publicly criticizing an order of the department’s deputy inspec-
tor. We noted that, due to the need for relationships of trust and
loyalty on a police force, deference given to police departments
under the Pickering analysis is considerable; however, it is “by no
means complete.” Id. at 910 (citing Waters v. Churchill, 511 U.S.
661, 677 (1994)). However, the result in Gustafson is distinguish-
able from the present case. In Gustafson, there was neither
(continued...)
No. 02-1231 13
In an organization such as a police department, discipline
and respect for the chain of command are critical to accom-
plishing the entity’s mission of maintaining order and
public safety. See Dill v. City of Edmond, 155 F.3d 1193, 1203
(10th Cir. 1998) (stating that in the context of law enforce-
ment the government has a “ ‘heightened interest . . . in
maintaining discipline and harmony among employees.’ ”
(citation omitted)); Tyler v. City of Mountain Home, 72 F.3d
568, 570 (8th Cir. 1995) (commenting that paramilitary
character and mission of police departments results in
greater latitude in discipline and personnel matters than a
normal government employer). As an Assistant Police Chief,
Mr. Williams served in a position of loyalty and confidence.
He breached those by making the statement to the press. See
Klunk v. County of St. Joseph, 170 F.3d 772, 776 (7th Cir. 1999)
(noting that a police officer’s position contains a duty of
loyalty and confidence); Upton v. Thompson, 930 F.2d 1209,
1215 (7th Cir. 1991) (commenting on need for loyal deputies
for elected sheriff to promote public confidence in law
enforcement).
In addition to violating his duty of personal loyalty to
Sheriff Seniff, it is undisputed that Mr. Williams’ conduct
resulted in a number of phone calls to Sheriff Seniff similar
to those in Kokkinis demonstrating the displeasure of various
6
(...continued)
evidence that the speech was disruptive, nor that the defendants
believed it would have future disruptive consequences. See id.
The case turned on a failure of proof. Moreover, we emphasized
that the manner and means of the employee’s speech is critical.
See id. at 912 (noting the significance of the fact that the complain-
ing officers properly took their concerns up the chain of com-
mand). In this case, the public manner and means of Mr. Wil-
liams’ speech was inappropriate, and the speech clearly had a
significant disruptive impact within the police department.
14 No. 02-1231
individuals with Mr. Williams’ public statement. Moreover,
Mr. Williams’ comment created significant unrest in the law
enforcement community, almost enough to precipitate his
expulsion from the F.O.P. See R.80, Ex.Lauck Aff. at ¶ 3;
Tedder v. Norman, 167 F.3d 1213, 1215 (8th Cir. 1999) (hold-
ing that deposition testimony of deputy director of police
training academy, which upset crucial business relation-
ships with other law enforcement agencies, was significant
in Pickering analysis); Tyler, 72 F.3d at 570 (noting signifi-
cance of negative impact on interagency relationships
caused by employee’s speech).
Additionally, as Assistant Chief of Police, Mr. Williams
was charged with oversight of security at the Dickens trial.
See R.76, Ex.Williams Dep. at 100 (Mr. Williams stating that
his official role at the Dickens trial as Assistant Chief of
Police was to be “in charge of people who worked in the
courthouse and [to provide] security for the courthouse. I
was in charge of the jail where he was housed.”); R.76,
Ex.Seniff Dep. at 79 (stating that a captain was primarily
responsible for courtroom security at the Dickens trial, but
that if there were any problems the Assistant Chief, Wil-
liams, would be the next in line in the organizational chart
to address security issues). Given his relationship to the
judicial proceedings as the Assistant Chief of Police respon-
sible for security at a trial, there was a significant govern-
mental interest in Mr. Williams’ refraining from impugning
the validity of the jury verdict to the press during or shortly
7
after the trial.
7
We note that the record does not provide the exact timing or
circumstances of Mr. Williams’ comment. See R.75, Ex.Alan Lieb
Dep. at 61-62 (stating that in television report the caption read
only “Norval Williams” and did not identify him as a police
(continued...)
No. 02-1231 15
These considerations make clear that any limited interest
in commenting on the verdict at trial that Mr. Williams may
have possessed was outweighed by the considerations of the
police department in maintaining appropriate order and
discipline. Consequently, Mr. Williams did not have a
protected First Amendment right to make his statement to
the press. Therefore, Sheriff Seniff and Chief Waugh could
not be liable for violating Mr. Williams’ First Amendment
rights. This conclusion is equally applicable to the remain-
ing First Amendment claims against Mr. Toth, Mr. Lauck
and the Merit Board members.
2. Existence of Conspiracy
Liability under § 1985 must be predicated on a finding
that two or more people agreed to violate the plaintiff’s civil
rights. See 42 U.S.C. § 1985(3). Upon examination of the
record, we must conclude that Mr. Williams has not pro-
duced sufficient evidence of a conspiracy to violate any of
8
his federally protected rights.
7
(...continued)
department spokesman, nor was Mr. Williams wearing his
uniform); R.80, Ex.Toth Declaration at ¶ 7 (stating that comment
in the media was made “at the time of the trial”); R.1 at 4 (Mr.
Williams’ complaint stating that his comment was made
“concerning the verdict” in the Dickens case).
8
In addition to Mr. Williams’ claims that the defendants
conspired to deprive him of his First Amendment rights in
violation of 42 U.S.C. § 1985, his complaint also alleges violations
of § 1985 based on the deprivation of his Due Process and Equal
Protection rights.
Moreover, Mr. Lauck and Mr. Toth are alleged to have violated
42 U.S.C. § 1983; but they were not in a position to fire Mr.
(continued...)
16 No. 02-1231
We begin our appraisal of Mr. Williams’ conspiracy claim
by noting that our case law makes clear that:
To establish § 1983 liability through a conspiracy theory,
a plaintiff must demonstrate that: (1) a state official and
private individual(s) reached an understanding to
deprive the plaintiff of his constitutional rights, Starnes
[v. Capital Cities Media, Inc., 39 F.3d 1394, 1397 (7th Cir.
1994)]; and (2) those individual(s) were “willful
participant[s] in joint activity with the State or its
agents.” Adickes [v. S.H. Kress & Co., 398 U.S. 144, 152
(1970) (internal quotation marks and citation omitted)].
Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998). Although
a conspiracy certainly may be established by circumstantial
evidence, we have stressed that such evidence cannot be
speculative. For instance, in Goetzke v. Ferro Corp., 280 F.3d
766 (7th Cir. 2002), we concluded that the existence of
numerous phone calls between alleged conspirators,
“standing alone, merely proves that [the individuals]
remained in contact. . . . To assert that the calls are evidence
of a conspiracy is simply speculation.” Id. at 778. Although
a nonmoving party’s own deposition may constitute
affirmative evidence to defeat summary judgment,
conclusory statements in the deposition do not create an
8
(...continued)
Williams, so any liability must be based on the theory that their
participation in the alleged conspiracy violated § 1983. See Dennis
v. Sparks, 449 U.S. 24, 28-29 (1980) (noting that “[p]rivate parties
who corruptly conspire with a judge in connection with such
conduct are thus acting under color of state law within the
meaning of § 1983 . . . .”); Tarkowski v. Robert Bartlett Realty Co.,
644 F.2d 1204, 1206 (7th Cir. 1980) (concluding that private parties
may be liable under 42 U.S.C. § 1983 for jointly engaging with
public officials in the denial of civil rights).
No. 02-1231 17
issue of fact. See Mills v. First Fed. Sav. & Loan Ass’n of
Belvidere, 83 F.3d 833, 843 (7th Cir. 1996). In Johnson v. Uni-
versity of Wisconsin-Eau Claire, 70 F.3d 469, 482 (7th Cir.
1995), we noted that the plaintiff had “not offered evidence
to rebut the [defendant’s] claim that [the defendant’s]
decision was based on [] legitimate factors, since [] unsup-
ported conjecture is not competent evidence in this regard.”
We must conclude that Mr. Williams has not introduced
evidence to support his assertions of a conspiracy. He relies
upon expressions of displeasure by various public officials
with his public statement and his unsupported conjecture
that this statement created a conspiracy to fire him for
exercising his right to free speech. Mr. Williams’ “smoking
gun” is Sheriff Seniff’s statement in the termination hearing:
I think you have strained relations with the prosecutors
[sic] office, with the South Bend Police Department and
with a lot of the public. You’ve damaged relationships.
I told you before I got calls from the mayor’s [sic] office,
I got calls from the Chief of Police, I got calls from the
FOP, I got calls from the Prosecutors [sic] Office. Yes, I
think you are straining relations.
R.39, Ex.1 at 3. This statement indicates that various individ-
uals expressed displeasure with Mr. Williams’ statement; it
does not provide evidence of an agreement on the part of
those who expressed the displeasure to deprive Mr. Wil-
liams of his rights.
As additional evidence of Mr. Toth’s participation in the
alleged conspiracy, Mr. Williams introduced the deposition
testimony of Alan Lieb, an acquaintance and political
supporter of Mr. Toth. Lieb stated that he had called Mr.
Toth and said, “Chris, [] I can’t believe you’re involved with
this case. . . . I’d like to see what I can do, if there’s anything
I can do to get you out of this.” R.75, Ex.Alan Lieb Dep. at
59. To which Mr. Toth responded, “There’s nothing you can
18 No. 02-1231
do. I’m right in the middle of it.” Id. Lieb testified that Mr.
Toth told him a number of people had called him to com-
plain about Mr. Williams’ comment in the media. See id. at
60. Lieb also stated that Mr. Toth indicated that he was
“involved in the termination of employment.” Id. at 66-68.
However, Lieb had trouble remembering Mr. Toth’s exact
words. When initially asked whether the “involvement”
could have been simply a complaint to Sheriff Seniff, Lieb
responded, “No, not when there’s a termination involved,
no. No. Absolutely not.” Id. at 66. However, Lieb ultimately
admitted that the level of involvement “very possibl[y]”
could have referred only to Mr. Toth’s call to Sheriff Seniff
to complain about Mr. Williams’ comment. Id. at 67-68.
Additionally, Lieb admitted that Mr. Toth did not elaborate
on the level of his “involvement.” Id. at 68. This vacillating
testimony only confirms that Mr. Toth was involved in the
events surrounding Mr. Williams’ termination, and Mr.
Toth readily admitted that he had complained to Sheriff
Seniff about Mr. Williams’ statement. We cannot say,
however, that this testimony constitutes evidence from
which a conspiracy may be inferred. Accordingly, the
district court’s grant of summary judgment in favor of Mr.
Lauck and Mr. Toth on all § 1985 claims and on all § 1983
claims based on participation in a conspiracy was appropri-
9
ate.
9
We note that the district court granted Mr. Toth’s motion to
dismiss Mr. Williams’ claims against him in his official capacity
pursuant to Federal Rule of Civil Procedure 12(b)(6), reasoning
that, in enacting 42 U.S.C. § 1983, Congress did not overturn the
states’ Eleventh Amendment immunity. See R.41 at 20 (citing
Quern v. Jordan, 440 U.S. 332, 345 (1979)). The district court held
that prosecuting attorneys in Indiana are state officials, preclud-
ing suit against them in their official capacity under the Eleventh
(continued...)
No. 02-1231 19
B. Due Process
Mr. Williams contends that the district court erred in
granting summary judgment and motions to dismiss
pursuant to Rule 12(b)(6) in favor of the defendants on his
10
claims that he was denied due process. In reviewing a
procedural due process claim, we conduct a two-part
inquiry, asking: “(1) whether the defendants deprived the
plaintiffs of a constitutionally protected liberty or property
interest; and (2) if so, whether that deprivation occurred
without due process of law.” Doe v. Heck, 327 F.3d 492, 526
(7th Cir. 2003) (citing Zinermon v. Burch, 494 U.S. 113, 125
(1990)). Property interests are not created by the Constitu-
tion; they are established by state law. See Moore v. Muncie
Police & Fire Merit Comm’n, 312 F.3d 322, 326 (7th Cir. 2002).
Mr. Williams was a county police officer in St. Joseph
County, Indiana. The Indiana Code provides that “[a]ll
county police officers appointed to the department under
this chapter are on probation for a period of one (1) year
from the date of appointment.” Ind. Stat. 36-8-10-10(b). The
Code also provides that the sheriff may dismiss an officer
on probation without a hearing. See Ind. Stat. 36-8-10-11(d).
Mr. Williams entered on duty on January 1, 1999; he was
fired on August 4, 1999, within the first year of his employ-
ment. Consequently, he was a probationary employee when
he was terminated. Therefore, the district court properly
9
(...continued)
Amendment. See id. at 20-21.
10
The district court treated the individual capacity claims against
the Merit Board members under a quasi-judicial absolute
immunity analysis and concluded that they were entitled to
absolute immunity for the exercise of judicial discretion. Because
we have determined that there was no constitutional violation,
we need not address further the issue of immunity.
20 No. 02-1231
determined that Mr. Williams did not have a protected
property interest in continued employment because of his
at-will status. See Phegley v. Indiana Dep’t of Highways, 564
N.E.2d 291, 295 (Ind. Ct. App. 1990) (stating “[a]s a general
rule, an employee at will has no property interest in further
employment”); Indiana Alcoholic Beverage Comm’n v. Gault,
405 N.E.2d 585, 589 (Ind. Ct. App. 1980) (stating that in
Indiana an at-will government employee has no property
interest in continued employment and is not entitled to
procedural protections); see also Moulton v. Vigo County, 150
F.3d 801, 804 (7th Cir. 1998) (citing Gault, 405 N.E.2d at 589).
We also note that the record will not support a determina-
tion that Mr. Williams was deprived of any liberty interest
in pursuing his chosen occupation; there is no evidence that
Mr. Williams was blacklisted from obtaining a comparable
position after his termination. See Trejo v. Shoben, 319 F.3d
878, 889 (7th Cir. 2003) (requiring that discharge have the
effect of blacklisting an employee before liberty interest in
continued employment in his chosen field is infringed);
Townsend v. Vallas, 256 F.3d 661, 670 (7th Cir. 2001) (stating
that an infringement of an employee’s liberty interest to
pursue the occupation of his choice requires public disclo-
sure of a stigmatization by the defendant’s conduct result-
11
ing in a tangible loss of employment opportunities).
11
Mr. Williams also contends that the Merit Board members and
Chief Waugh violated his procedural due process rights by
failing to accord him a hearing before he was deprived of his
fundamental interest in free speech protected by the First
Amendment. We decline to address this unsettled issue because
we already have concluded that Mr. Williams’ comment was not
protected under the Pickering test. See Waters v. Churchill, 511 U.S.
661, 668-71 (1994) (plurality opinion); Id. at 686-89 (Scalia, J.,
concurring). See also 3 Ronald D. Rotunda & John E. Nowak,
Treatise on Constitutional Law: Substance and Procedure § 17.4, at 54
(continued...)
No. 02-1231 21
C. Equal Protection
Count III of Mr. Williams’ complaint alleges that the
defendants, individually and in their official capacities,
violated 42 U.S.C. §§ 1983 and 1985 based on disparate
treatment and the creation of a hostile work environment in
violation of the Equal Protection Clause of the Fourteenth
Amendment. See R.1 at 12-16. Mr. Williams can prevail on
his equal protection claim by offering direct proof of
discriminatory intent, or he may prove discriminatory intent
by circumstantial evidence. In the employment context, the
latter approach is usually accomplished through the use of
the burden-shifting paradigm of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Helland v. South Bend Cmty.
Sch. Corp., 93 F.3d 327, 329 (7th Cir. 1996); Bruno v. City of
Crown Point, 950 F.2d 355, 361 (7th Cir. 1991). Under the
McDonnell Douglas approach, “the plaintiff first must
establish by a preponderance of the evidence a prima facie
case of discrimination, which creates a presumption that the
employer unlawfully discriminated against the plaintiff.”
Helland, 93 F.3d at 329. Once a plaintiff establishes a prima
facie case, the burden shifts to the employer to produce
evidence of a legitimate, nondiscriminatory reason for the
action alleged by the plaintiff to be discriminatory. See
Helland, 93 F.3d at 329. Once the employer has shouldered
its burden of production, the plaintiff then must establish by
a preponderance of the evidence that the proffered reasons
for the alleged discriminatory action are pretextual. See
Bruno, 950 F.2d at 363 (citing Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 252-53 (1981)).
As in most cases of discrimination in the employment
11
(...continued)
(3d. ed. 1999); Henry P. Monaghan, First Amendment “Due
Process,” 83 Harv. L. Rev. 518, 525 (1970).
22 No. 02-1231
context, Mr. Williams does not make out a case of discrimi-
natory intent through reliance on direct evidence of discrim-
inatory intent. We therefore turn to the indirect method
outlined in McDonnell Douglas to ascertain whether he has
established a case through circumstantial evidence. To
establish the basic prima facie case of an equal protection
violation, Mr. Williams must demonstrate that (1) he is a
member of a protected class, (2) he is similarly situated to
members of the unprotected class, (3) he suffered an adverse
employment action, and (4) he was treated differently from
members of the protected class. To this formulation, some
of our cases add independently a fifth criterion: that the
12
defendant acted with discriminatory intent —although
13
such an addition is really a redundancy.
12
See McPhaul v. Bd. of Comm’rs of Madison County, 226 F.3d 558,
564 (7th Cir. 2000); McNabola v. Chicago Transit Auth., 10 F.3d 501,
513 (7th Cir. 1993).
13
Our cases make clear that the same standards for proving
intentional discrimination apply to Title VII and § 1983 equal
protection. See Helland v. South Bend Cmty. Sch. Corp., 93 F.3d 327,
329 (7th Cir. 1996) (analyzing Title VII and equal protection
simultaneously and applying McDonnell Douglas burden shifting
to prove indirect evidence of intent); Bruno v. City of Crown Point,
950 F.2d 355, 361 & 363 (7th Cir. 1991) (same); Friedel v. City of
Madison, 832 F.2d 965, 971-72 (7th Cir. 1987) (same); see also St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 n.1 (1993) (assuming
that the Title VII McDonnell Douglas framework is fully applicable
to racial discrimination claims under § 1983).
Although, under Title VII, the prima facie case under
McDonnell Douglas constitutes a rebuttable presumption of
discriminatory intent, a number of this court’s cases nevertheless
indicate that a separate showing of intent is required to meet
one’s equal protection prima facie burden before proceeding to
the McDonnell Douglas burden shifting. See Chavez v. Illinois State
(continued...)
No. 02-1231 23
Upon examination of the record, we must conclude that
Mr. Williams has not provided evidence sufficient to
withstand summary judgment. First, Mr. Williams has not
identified a similarly situated administrator of the unpro-
tected class who was treated more favorably. See McPhaul v.
Bd. of Comm’rs of Madison County, 226 F.3d 558, 565 (7th Cir.
2000). Mr. Williams assumes that the relevant similarly
situated class would be all administrative officers in the
sheriff’s department. However, he has provided no evidence
that his performance was satisfactory other than his own
statements to that effect. In contrast, Sheriff Seniff has
presented a number of nondiscriminatory bases for his
decision to terminate Mr. Williams, including Mr. Williams’
disagreement with the Sheriff’s negative assessment of his
job performance at the August 4, 1999 performance evalua-
tion and Mr. Williams’ refusal to submit to a polygraph
exam. See R.80, Ex.Seniff Aff. at 2-3. Sheriff Seniff’s criti-
cisms of Mr. Williams’ performance included displeasure
with Mr. Williams’ lack of punctuality, poor communication
skills, strained relationships with other agencies, and failure
to reduce the jail population, a task with which he had been
13
(...continued)
Police, 251 F.3d 612, 635-36 (7th Cir. 2001) (dividing equal
protection analysis into a two-part analysis of first proving
discriminatory effect (analogous to Title VII prima facie case
factors) and then requiring proof of discriminatory purpose);
McPhaul, 226 F.3d at 564 (listing proof of intent as an element of
prima facie case); Greer v. Amesqua, 212 F.3d 358, 370 (7th Cir.
2000) (same); McNabola, 10 F.3d at 513 (same). We think that these
latter cases are best read as simply emphasizing the requirement
that § 1983, like disparate treatment cases under Title VII, require
ultimately proof of discriminatory intent.
24 No. 02-1231
14
charged. See R.39; R.76, Ex.Williams Dep. at Ex.B. Mr.
Williams’ only evidence contradicting Sheriff Seniff’s
evaluation of his performance is his own deposition. Mr.
Williams contends that the Sheriff’s negative evaluation of
his performance was factually incorrect. Mr. Williams seeks
to rebut charges by citing selected examples of the Sheriff’s
complaints and arguing that they are pretextual. See Appel-
lant’s Br. at 24-25 (contesting evaluation of strained relation-
ships, poor communication skills, failure to attend early
morning meetings, and failure to accomplish assigned
tasks).
We have stated that generally, “[a]n employee’s self-
serving statements about his ability . . . are insufficient to
contradict an employer’s negative assessment of that
ability.” Gustovich v. AT&T Communications, Inc., 972 F.2d
845, 848 (7th Cir. 1992); see also Jackson v. E.J. Brach Corp., 176
F.3d 971, 985 (7th Cir. 1999) (quoting Gustovich). However,
we recently clarified this principle by noting explicitly that
it is not the mere self-serving nature of a nonmovant’s
affidavit that renders such evidence infirm. Rather, it is the
absence of personal knowledge or the failure to set forth
14
Sheriff Seniff’s written performance evaluation of Mr. Wil-
liams, dated July 30, 1999, evaluated Mr. Williams’ performance
in nine categories and gave him an overall rating of “unsatisfac-
tory.” R.76, Ex.Williams Dep. at Ex.B. Mr. Williams received a
“needs improvement” evaluation in the areas of: communica-
tions, dependability, judgment, problem solving, and quality.
See id. Mr. Williams received an “unsatisfactory” rating for:
cooperation, initiative, job knowledge, as well as planning and
organization. See id. The Sheriff’s review was detailed and
emphasized that Mr. Williams created friction and strained
relationships with other municipal agencies, that his tardiness
was a consistent problem, and that the management team lacked
confidence in his ability. See id.
No. 02-1231 25
“specific facts” as required by Rule 56(e) of the Federal
Rules of Civil Procedure that is problematic. See Payne v.
Pauley, 02-2674, 2003 WL 21540424, at *4-5 (7th Cir. July 9,
2003). Here, a review of the record demonstrates that,
although Mr. Williams disputes the factual basis for some of
the Sheriff’s complaints about his performance, he has
produced insufficient evidence to permit a jury to conclude
that the Sheriff’s estimation of his overall performance was
pretextual. Because Mr. Williams has produced insufficient
evidence to create a material dispute regarding Sheriff
Seniff’s nondiscriminatory explanations for firing him, the
appropriate class for comparison would be
underperforming administrative officers. When evaluated
from this perspective, the record does not contain sufficient
evidence to support a contention that unprotected adminis-
trators with deficient performance evaluations were treated
more favorably than Mr. Williams.
Indeed, the same evidence leaves undisturbed Sheriff
Seniff’s assertion that he terminated Mr. Williams for the
nondiscriminatory reason of poor performance. Mr. Wil-
liams’ assertion that he heard a rumor that Sheriff Seniff had
uttered racial slurs impugning African-Americans at some
point in the past does not alter this analysis. See R.76,
Ex.Williams Dep. at 41. Such isolated and attenuated
statements are insufficient to establish discriminatory intent
in this case. See Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th
Cir. 1996) (“To be probative of discrimination, isolated
comments must be contemporaneous with the discharge or
causally related to the discharge decision making process.”).
Mr. Williams also testified that Sheriff Seniff failed to hire
minorities recommended by Mr. Williams, see R.76,
Ex.Williams Dep. at 43 & 65, that he was excluded from
input in the hiring process, see id. at 44, and that he was
26 No. 02-1231
15
excluded from social activities, see id. at 63-64. These
assertions could hardly sustain a jury verdict that Sheriff
Seniff terminated Mr. Williams because of his race.
Mr. Williams also notes that, after his termination, Mr.
Lauck allegedly made a racially derogatory statement and
commented that he was pleased to learn of Mr. Williams’
termination. See R.76, Ex.Tracy Lieb Dep. at 21. Mr. Wil-
liams contends that this statement proves that Mr. Lauck
acted with racial animus in calling Sheriff Seniff and
attempting to influence him to terminate Mr. Williams.
However, we have held that, if a person “not involved in
the decisionmaking . . . expressed discriminatory feelings,
that is not evidence that the decision was discriminatory.”
Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir.
2001). In Gorence, we did qualify this principle by noting
that those who provide input into the decision can under
some circumstances provide evidence of discriminatory
intent. See id. However, in this case, Sheriff Seniff has
stated by affidavit that he alone made the decision to
terminate Mr. Williams. See R.80, Ex.Seniff Aff. at ¶ 15. Mr.
Lauck’s affidavit simply states that he had a conversation
with the Sheriff in which Sheriff Seniff stated that he had
heard the F.O.P. was displeased with Mr. Williams’ com-
ment, a fact that Mr. Lauck confirmed. See R.80, Ex.Lauck
15
Mr. Williams also notes that, prior to his evaluation, there was
no history of performance reviews being conducted in the
sheriff’s department. See R.76, Ex.Williams Dep. at 82-83.
However, Sheriff Seniff was newly elected and had taken office
in January of 1999. He explained that he decided it would be
appropriate to begin with the most problematic employee, Mr.
Williams. See R.76, Ex.Seniff Dep. at 84. Sheriff Seniff stated that,
after Mr. Williams’ performance review, all other administrators
were given reviews. See id. at 113-14. Mr. Williams has failed to
present any evidence rebutting this contention.
No. 02-1231 27
Aff. at ¶ 5. Mr. Lauck testified that he and Sheriff Seniff
did not discuss the issue of Mr. Williams’ employment. See
id. at ¶ 6. Mr. Williams has produced no evidence that Mr.
Lauck’s call influenced Sheriff Seniff’s decision to terminate
Mr. Williams. We therefore cannot conclude that the alleged
racially derogatory remark supports Mr. Williams’ claim of
discriminatory intent. Therefore, Mr. Williams has provided
insufficient evidence to establish his prima facie case. His
claim for disparate treatment was correctly dismissed by the
district court.
Finally, the district court correctly rejected Mr. Williams’
contention that the defendants are liable for creating a
racially hostile work environment. Mr. Williams’ own
deposition testimony fundamentally undercuts his claim
that he objectively and subjectively endured a hostile work
environment. See McPhaul, 226 F.3d at 566 n.6 (noting
parallel between equal protection and Title VII “hostile
environment” claims and applying same standard). Mr.
Williams admits that Sheriff Seniff never said anything
racist about him, that Sheriff Seniff never “disrespected”
him, and that Sheriff Seniff never made comments to Mr.
Williams with racial overtones. See R.76, Ex.Williams Dep.
at 42-43. Nor has Mr. Williams introduced evidence that
other members of the police department uttered racially
derogatory comments directed at him, contributing to a
hostile work environment. Additionally, we do not find that
Mr. Williams’ testimony of exclusion from social activities
and from the hiring process is sufficient to support a hostile
16
work environment claim. We therefore cannot conclude
that Mr. Williams has presented sufficient evidence that his
16
Additionally, in his deposition, Mr. Williams admitted that Mr.
Lauck played no role in creating the alleged hostile work
environment. See R.80, Ex.Williams Dep. at 201-02.
28 No. 02-1231
workplace approached the level of a hostile environment by
being “ ’so severe or pervasive as to alter the conditions of
[his] employment and create an abusive working environ-
ment.’ ” Conley v. Vill. of Bedford Park, 215 F.3d 703, 713 (7th
Cir. 2000) (quoting Faragher v. City of Boca Raton, 524 U.S.
775, 786 (1998)).
D. Title VII
Mr. Williams alleges that the actions of Sheriff Seniff as an
agent of St. Joseph County and Mr. Lauck as an agent of the
F.O.P., serving as his labor union, amounted to disparate
treatment and created a hostile work environment based on
his race in violation of Title VII. As noted above, our Title
VII and equal protection hostile work environment analyses
are parallel. See McPhaul, 226 F.3d at 566 n.6. Under the
equal protection analysis, we found that Mr. Williams had
not introduced evidence sufficient to carry his burden of
proving either disparate treatment or a hostile work envi-
ronment. That conclusion is equally applicable under Title
VII. See id.
E. Tortious Interference with a Contractual Relationship
17
In his initial complaint, Mr. Williams included a fifth
17
Mr. Williams’ proposed First Amended Complaint sought to
add a claim entitled “Interference with Contract of Employment,”
R.51, Complaint at 27-28, which explicitly alleged all require-
(continued...)
No. 02-1231 29
count entitled “Breach of Contract and Wrongful Termina-
tion.” R.1 at 22. The claim named all “Defendants” collec-
tively, which included Mr. Lauck and Mr. Toth by reference.
See id. at 25. The district court construed this claim as one
for breach of contract and granted Mr. Lauck’s and Mr.
Toth’s Rule 12(b)(6) motions to dismiss for failure to state a
claim, concluding that they were not in privity with Mr.
Williams concerning his employment contract. See R.41 at
11-12 & 25-26. In his response to the motions to dismiss, Mr.
Williams had attempted to clarify that he had intended to
claim a violation of tortious interference with his contractual
relationship, which does not require privity. However, the
district court rejected this attempt and stated that a com-
plaint may not be amended by a brief in opposition to a
motion to dismiss. See id. at 11.
This court reviews de novo a district court’s decision to
grant a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Gastineau v. Fleet Mortgage Corp., 137
F.3d 490, 493 (7th Cir. 1998). Pursuant to the notice pleading
regime of Federal Rule of Civil Procedure 8(a), Mr. Wil-
liams’ complaint must only allege facts upon which relief
may be granted. “[T]he complaint need not identify a legal
theory, and specifying an incorrect theory is not fatal.”
17
(...continued)
ments for tortious interference with a contractual relationship.
However, the district court rejected Mr. Williams’ motion for
leave to amend his complaint, because the proposed amendment
contained references to previously dismissed claims. See R.58 at
2. Mr. Williams claims that the district court abused its discretion
in failing to grant him leave to amend the complaint. Because we
find that Mr. Williams’ initial complaint was sufficient to state a
claim under Federal Rule of Civil Procedure 8(a), the issue of
whether leave to amend the complaint should have been granted
is moot.
30 No. 02-1231
Bartholet v. Reishauer A.G. (Zürich), 953 F.2d 1073, 1078 (7th
Cir. 1992). The district court concluded that, “because the
complaint doesn’t allege privity of contract between Mr.
Williams and Mr. Lauck,” Mr. Williams did not allege facts
sufficient to prove a breach of contract or wrongful dis-
18
charge. See R.41 at 11-12. The district court essentially
required Mr. Williams to match his factual allegations to the
legal theories set out in the caption to Count V: “Breach of
Contract or Wrongful Discharge.” This is an incorrect
application of the notice pleading regime. See Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 513 (2002) (stating that the
simplified notice pleading standard of Fed. R. Civ. P. 8(a)
applies to all civil actions, with limited exceptions such as
fraud and mistake outlined in Fed. R. Civ. P. 9(b)); Hoskins
v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003) (“Federal
practice uses a notice-pleading system, not a code-pleading
system.”); Bartholet, 953 F.2d at 1078 (stating that a court
should ask “whether relief is possible under any set of facts
that could be established consistent with the allegations”).
Mr. Williams intended to proceed against Mr. Lauck and
Mr. Toth on a theory of tortious interference with a contrac-
tual relationship, which consists of five elements under
Indiana law: “1) existence of a valid and enforceable
contract, 2) defendant’s knowledge of the contract’s exis-
tence, 3) defendant’s intentional inducement of breach of
contract, 4) the absence of justification, and 5) damages
resulting from defendant’s wrongful inducement of breach.”
Keith v. Mendus, 661 N.E.2d 26, 36 (Ind. Ct. App. 1996); see
Bochnowski v. Peoples Fed. Sav. & Loan Ass’n, 571 N.E.2d 282,
284-85 (Ind. 1991) (concluding that a claim for tortious
18
The court first addressed Mr. Lauck’s liability under the fifth
count and then applied the analysis equally to Mr. Toth later in
the opinion. See R.41 at 11-12 & 25-26.
No. 02-1231 31
interference with an employment relationship may be
maintained on a contract terminable at will); Bradley v. Hall,
19
720 N.E.2d 747, 751 (Ind. Ct. App. 1999) (same). Mr.
Williams’ initial complaint pleaded facts sufficient to
support a claim for recovery under this theory against Mr.
Lauck and Mr. Toth. The district court’s requirement of
privity of contract was inappropriate and the grant of Mr.
Lauck’s Rule 12(b)(6) motion, being premised on a mistake
of law, constituted an abuse of discretion.
We do not believe, however, that this misstep requires
reversal of the judgment. As we shall explain in the follow-
ing paragraphs, the record makes clear that this claim for
tortious interference with a contractual relationship could
not survive summary judgment. See Edwards v. Illinois Bd. of
19
We note that Mr. Williams’ briefs refer to two different tort
claims under Indiana law: interference with a contractual
relationship and interference with an employment relationship.
See Appellant’s Br. at 8-9 (referring to claims of “contractual
interference and interference with employment relationships”);
Williams Reply Br. at 19 (referring to a theory of “tortious
interference with employment”); see also 27 Indiana Law Encycl.,
Torts § 28, at 616-21 (1999) (noting differences between torts of
intentional interference with a contract and intentional interfer-
ence with a prospective business relationship). However, the
principal case upon which Mr. Williams relies, Keith v. Mendus,
661 N.E.2d 26 (Ind. Ct. App. 1996), outlines the standard for
tortious interference with a contractual relationship. See id. at 36.
The Indiana Court of Appeals has held that intentional interfer-
ence with an employment relationship requires the additional
showing that the defendant engaged in illegal conduct. See Levee
v. Beeching, 729 N.E.2d 215, 222 (Ind. Ct. App. 2000). Mr. Williams
does not refer to the illegality element; we therefore construe his
claim as one of tortious interference with a contractual relation-
ship.
32 No. 02-1231
Admissions to the Bar, 261 F.3d 723, 728 (7th Cir. 2001)
(noting that court of appeals may affirm on any ground
supported by the record). Mr. Williams must come forth
with credible evidence on all matters upon which he bears
the burden of proof at trial, see Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986), and he has failed to do so in regard
to the third and fifth elements of the cause of action:
intentional inducement of a breach of contract and damages.
Under Indiana law, “[l]iability for interference with
contractual relationships results only if there was an
intentional interference without justification or cause with
an intention to do wrongful harm or injury.” Helvey v.
O’Neill, 288 N.E.2d 553, 559 (Ind. Ct. App. 1972); see Winkler
v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1233 (Ind. 1994)
(stating that intentional interference with a contract “in-
cludes any intentional, unjustified interference by third
parties with an employment contract”). Mr. Williams’ proof
that Mr. Lauck intentionally induced a breach of contract
amounts to nothing more than the previously discussed
testimony that Mr. Lauck voiced the F.O.P.’s displeasure
with Mr. Williams’ statement in the media to Sheriff Seniff,
see R.80, Ex.Lauck Aff. at ¶ 5, Mr. Williams’ “internal
suspicions” that this expression of displeasure was the
reason for his termination, R.80, Ex.Williams Dep. at 199;
and Mr. Lauck’s racially derogatory statement about Mr.
Williams, see R.76, Ex.Tracy Lieb Dep. at 21. With respect to
the claim against Mr. Toth, the evidence simply establishes
that Mr. Toth called Sheriff Seniff to complain, for we have
determined that Alan Lieb’s testimony that Mr. Toth was
“involved with the termination” is not sufficient evidence
from which to infer Mr. Toth’s participation in the alleged
conspiracy to influence the Sheriff’s termination decision.
Moreover, Sheriff Seniff’s affidavit testimony that he alone
made the decision to terminate Mr. Williams is uncontra-
dicted. See R.80, Ex.Seniff Aff. at ¶ 15. We cannot conclude
No. 02-1231 33
that this evidence is sufficient to support a finding of an
intentional inducement of the breach of an employment
contract.
More fundamentally, Mr. Williams has failed to rebut
Sheriff Seniff’s explanations for his discharge. This failure
results in a lack of evidence that Mr. Williams incurred
“damages resulting from [Mr. Lauck and Mr. Toth’s]
wrongful inducement of breach.” Keith, 661 N.E.2d at 36.
Assuming that Mr. Lauck and Mr. Toth intentionally
attempted to induce Sheriff Seniff to fire Mr. Williams, there
still would be no “but for” causation because Mr. Williams
has failed to rebut Sheriff Seniff’s nondiscriminatory reasons
for firing him.
In affirming the judgment on this claim by concluding it
could not survive summary judgment, we are mindful of
the problems that may arise if the plaintiff has not been
accorded sufficient opportunity to conduct discovery on the
previously dismissed claim. However, because the district
court did not dismiss all of Mr. Williams’ § 1983, § 1985 and
Title VII claims on the pleadings, Mr. Williams had the
opportunity to conduct discovery on the issues of intent and
damages. Therefore, we cannot conclude that Mr. Williams
is prejudiced by our alternative resolution of the issue.
We also note that Mr. Williams’ fifth count is a pendent
state law tort claim. In Payne for Hicks v. Churchich, 161 F.3d
1030 (1998), we stated that, when the district court dismisses
all federal claims before trial, “the usual and preferred
course is to remand the state claims to the state court unless
there are countervailing considerations.” Id. at 1043. These
exceptions include: running of the state law cause of action’s
statute of limitations and cases where “sending the case to
another court will cause a substantial duplication of effort.”
Moses v. County of Kenosha, 826 F.2d 708, 710-11 (7th Cir.
1987) (quotation marks and citation omitted). In this case,
34 No. 02-1231
discovery has been completed, and a transfer to state court
would not permit Mr. Williams to uncover additional facts
to support his claim. Consequently, we dismiss the claim
with prejudice.
F. Sanctions and Damages
Mr. Lauck has filed a motion for sanctions and costs
pursuant to Federal Rule of Appellate Procedure 38. In
weighing such a request for sanctions, “we consider first
whether the appeal is indeed frivolous, and, if so, whether
sanctions are appropriate.” Pokuta v. Trans World Airlines,
Inc., 191 F.3d 834, 841 (7th Cir. 1999). In Hernandez v. Joliet
Police Department, 197 F.3d 256 (7th Cir. 1999), we declined
to impose sanctions for arguments that were nonmer-
itorious, but which created “some conceivable chance of
reversal.” Id. at 265-66. We conclude that, although the
issues presented on appeal by Mr. Williams do not result in
success, they are not so clear as to prevent “some conceiv-
able chance of reversal.” Id.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
A true Copy:
Teste:
No. 02-1231 35
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-20-03