McGreal, James T. v. Ostrov, Eric Dr.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3405

OFFICER JAMES T. MCGREAL,

Plaintiff-Appellant,

v.

ERIC OSTROV, Doctor, VILLAGE OF ALSIP,

KENNETH WOOD, Chief of the Alsip Police

Department, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 C 3958—Charles R. Norgle, Sr., Judge.

____________

ARGUED APRIL 16, 2003—DECIDED MAY 10, 2004

____________

Before POSNER, COFFEY and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. To hear Officer James McGreal

tell the story, something is rotten in the Village of Alsip.

After running against the mayor and losing by a narrow

margin, McGreal found himself the target of a campaign

to remove him from his long-held post as an Alsip police

officer. He sued the Village of Alsip, the town’s Chief of

Police, a police lieutenant, and a psychologist retained by

the Village to assess McGreal’s fitness for duty. The district

court granted summary judgment in favor of the defen-

dants, and McGreal appeals. We reverse and remand.

2 No. 02-3405

I.

We begin with the cast of characters. James McGreal

has been a police officer in the Village of Alsip since 1983.

The Alsip Chief of Police is Kenneth Wood, and Lt. David

Snooks is the department’s Field Operations Commander.

At the time this suit was filed, Arnold Andrews had been

the mayor of Alsip for twenty-four years. Both Wood and

Snooks remain in their posts subject to annual reappoint-

ment by Mayor Andrews. McGreal served in the department

without incident until he challenged Mayor Andrews in the

April 1997 mayoral election. After he lost the election to

Andrews by a slim 378 votes (the Village has 17,000

residents), McGreal found himself under unprecedented

scrutiny from his superiors. Ultimately, they attempted to

remove him from his post on the ground that he was unfit

for duty. The dispute over McGreal’s fitness to serve as a

police officer revolves around a number of incidents, fol-

lowed by a mental health examination. The events overlap

in time and we will describe them separately for clarity. We

explore the factual circumstances extensively because a full

review of the facts casts a pall of suspicion on the Village of

Alsip. On summary judgment, of course, we credit

McGreal’s version of the facts because he is the party

opposing judgment. We draw all reasonable inferences in

his favor. Myers v. Hasara, 226 F.3d 821, 825 (7th Cir.

2000).

A.

McGreal’s story begins two years before the election. He

was on routine patrol late one night in June 1995 when he

noticed a number of cars in the parking lot of the Alsip

Elk’s Club in apparent violation of the local closing time

ordinance. He entered the Club and found people concealing

video poker machines behind a folding wall. The machines

themselves are not illegal but using them to gamble is

No. 02-3405 3

prohibited. McGreal promptly fired off a memo to Lt.

Snooks about the incident, suggesting that a gambling

investigation might be in order. McGreal also mentioned

the matter to Sgt. Murray, the head of Alsip vice investi-

gations. Snooks passed the information on to Chief Wood,

who told Snooks he would “take care of it.” Despite that

promise, Wood did not order an investigation at that time.

As it turned out, the video poker machines were owned by a

company called “Vegas Amusements.” Approximately one

month after McGreal wrote the memo detailing his suspi-

cions, Vegas Amusements contributed money to the political

party controlled by Mayor Andrews. A few days after that,

the Mayor signed into law a variance permitting the Elk’s

Club to have eight video poker machines on the premises

rather than the three machines permitted at all other Alsip

establishments. At his deposition for this lawsuit, Mayor

Andrews could not recall either a company named Vegas

Amusements or having ever signed a variance permitting

an increased number of the poker machines at the Elk’s

Club.

A little more than two years later, in late August 1997

(several months after the mayoral election in which

McGreal challenged Andrews), McGreal once again found

himself at the Elk’s Club, this time attending a banquet for

his son’s Little League team. McGreal observed people

lining up to play the video poker machines, which he con-

sidered unusual if the machines were purely for entertain-

ment rather than gambling. On September 9, 1997,

McGreal wrote another memo, addressed this time to Chief

Wood, suggesting again the possibility that the machines

were being used for illegal gambling. McGreal cited as

evidence the unusual popularity of the machines and the

presence of reset switches on each machine, which would

facilitate gambling payoffs by keeping score for each user.

McGreal also noted that establishments with far fewer

poker machines had been investigated for gambling in

4 No. 02-3405

the past. McGreal also repeated rumors that in recent

years, compulsive gamblers had lost substantial sums on

the Elk’s Club machines. He noted a rumor that an Alsip

Village official was receiving a percentage of the revenue

produced by the video poker machines. McGreal concluded

that, although he placed no importance on unsubstantiated

rumors, it appeared to him that the possibility of gambling

at the Elk’s Club had been overlooked.

Lt. Snooks replied to McGreal’s memo by expressing

surprise that McGreal would put these rumors of payoffs in

writing and asking McGreal to provide “a more detailed

written explanation of these ‘rumors’ including . . . the

names of [the] elected officials.” R. 64, Snooks Attachment

B. McGreal responded immediately by identifying Mayor

Andrews as the elected official involved in the payoff rumor.

According to McGreal’s memo, an Alsip police sergeant was

the source of the rumor. Chief Wood subsequently consulted

with neighboring police chiefs to determine how to handle

these allegations. Ultimately, he requested that the Cook

County Sheriff’s Police investigate the charges of gambling

at the Elk’s Club. In October 1997, the Sheriff’s office set up

a sting operation and confirmed McGreal’s suspicions. The

video poker machines at the Elk’s Club were in fact being

used for gambling. Although Chief Wood claims he asked

the Sheriff’s police to also investigate whether Mayor

Andrews was receiving payoffs, there are no documents

memorializing such a request and the Sheriff’s office

conducted no investigation of the Mayor.

Nonetheless, in early November 1997, Chief Wood dis-

cussed with a member of the Illinois State Police Public

Integrity Task Force (“PITF”) an inquiry into the Mayor’s

possible involvement in gambling at the Elk’s Club. On

November 6, 1997, Wood formally requested a probe in

writing. A few days later, on November 10, the Mayor

caught wind of the investigation and called Chief Wood into

his office. According to Wood, the Mayor was visibly upset,

No. 02-3405 5

and at the end of the meeting he demanded that the Chief

resign by the end of the day or the Mayor would fire him.

Wood returned later in the day, accompanied by his lawyer,

to discuss the matter further. (At that time, Chief Wood

was two months shy of his fiftieth birthday, the date on

which certain of his employment benefits vested). At or

before this second meeting, Mayor Andrews learned that

McGreal was the person behind the call for an investigation

into the Mayor’s possible connections with Elk’s Club

gambling. Wood’s attorney explained to the Mayor that an

investigation was proper and justified under the circum-

stances. The Mayor was somewhat appeased by the lawyer’s

explanation, and took no further steps towards Wood’s

resignation. However, at this same meeting, the Mayor

mentioned to the chief that the “McGreal case” was going to

be investigated by Thomas McGuire, an attorney who

specializes in representing municipalities that are seeking

the termination of police officers.

The very first entry in McGuire’s billing records for the

Village of Alsip shows that on November 10, the day the

Mayor demanded Wood’s resignation, McGuire traveled

to Alsip for a four hour meeting with the Mayor. That

evening, at a Village Board meeting, Mayor Andrews an-

nounced that a “disgruntled police officer” who had been a

candidate against him had made serious allegations about

him. The Mayor told the Board he had authorized Chief

Wood to select an outside law enforcement agency to inves-

tigate “some of these fairy tale charges.” Of course, the

Chief had instigated the investigation before the Mayor

knew about it and thus the Mayor had not authorized the

investigation and in fact was quite angry about it. Wood

later testified that he did not tell the Mayor about the

investigation and would have preferred that the Mayor did

not know he was being investigated because it was never

appropriate for the subject of an undercover probe to know

that he was being investigated. PITF completed the inves-

6 No. 02-3405

tigation in March 1998 and informed Chief Wood that the

task force had concluded that the allegation of misconduct

by Mayor Andrews in connection with Elk’s Club gambling

was “unfounded.” R. 64, Wood Attachment G.

B.

On August 16, 1997, McGreal arrested Sean Taylor

for driving under the influence. Taylor is the son of a city

prosecutor in a neighboring town. When McGreal appeared

in court for Taylor’s initial court date on September 17,

he learned that the case had been rescheduled to August 27

without his knowledge. On checking with the court’s

computer system, McGreal learned that on August 27, two

of the citations he wrote for Taylor (driving under the in-

fluence and damage to property) had been stricken on the

motion of the Assistant State’s Attorney handling the case.

The third charge, driving with a blood alcohol content of

greater than .08, was continued to September 24. At that

time, Taylor pled guilty to that charge. McGreal wrote a

memo to his supervisors about this incident, explaining the

unusual disposition of the case and suggesting that further

inquiry was appropriate. McGreal believed that the manner

in which the case was handled was indicative of intentional

misconduct. Lt. Snooks replied to McGreal’s memo, indicat-

ing that he had met with Jim McCarter (of the State’s

Attorney’s office) and requested that he look into McGreal’s

allegations. Snooks reported that Taylor pled guilty to one

charge and received a sentence of eighteen months’ supervi-

sion. The other charges were stricken. Snooks concluded his

memo to McGreal with the statement that, “Mr. McCarter

believes and I concur that the actions of the involved

parties are properly explained and the handling of the case

was lawful and proper.” R. 64, McGreal Ex. 15. McGreal

remained suspicious about Taylor’s case because this was

the most lenient sentence he had ever seen for a DUI

No. 02-3405 7

conviction. In the absence of community service, the lowest

fine McGreal had ever seen for a drunk driving charge was

a $100 fine for the son of a state senator. Snooks later

admitted that his memo to McGreal contained errors and

omissions.

McGreal continued to investigate based on what he

learned from Snooks’ memo. He obtained a copy of the case

disposition from the Cook County Court Clerk’s compu-

terized system and saw that the sentence recorded there

was a one year period of supervision, $150 fine, a victim

impact panel, and required attendance at a remedial adult

safety education program (at a cost to the offender of ap-

proximately $1800). Because Lt. Snooks had previously told

McGreal that he had investigated the matter and concluded

that the sentence of eighteen months’ supervision was

appropriate, McGreal concluded that someone had changed

the sentence between the time he complained to his super-

visor and the time he checked the computer records himself.

He fired off a letter to the Judicial Inquiry Board, formally

requesting that the actions of the judge involved be investi-

gated. He pointed out that moving the case off of the normal

call schedule was irregular as was the dismissal of some of

the charges at an initial hearing. He relayed to the JIB that

he believed the sentence of eighteen months’ supervision for

driving with a blood alcohol content greater than .08 and

the appearance of a different sentence in the official record

after he complained to his supervisor were highly irregular

events deserving of further inquiry.

Shortly after Lt. Snooks met with Jim McCarter, McGreal

appeared on another DUI matter before the judge who had

decided Taylor’s case. McGreal noticed that the judge’s

behavior towards him had changed. After filing his charge

with the JIB, he sent off a letter to the presiding judge,

suggesting that the judge involved had been informed of

McGreal’s intradepartmental complaint. He told the pre-

siding judge that the judge’s behavior during an October 15

8 No. 02-3405

court call was “prejudicial and radically different than

normal.” R. 64, McGreal Dep. Ex. 17; R. 64, McGreal Dep.,

Vol. III at 58. He suggested to the presiding judge that

the judge’s conduct toward him was a result of his filing a

request for inquiry into the Taylor case. He concluded by

explaining that he wished to inform the presiding judge of

the existence of a formal complaint with the JIB and the

change in behavior of the judge in question.

C.

On August 30, 1994, McGreal was on routine patrol on

the midnight shift when he spotted a car in the parking lot

of the Copacabana Bar (“the Copa”). Because the bar was

closed (it was 3 a.m.), McGreal stopped to investigate. The

driver of the car was John Hernandez, a man McGreal had

encountered in a hotel parking lot some six years earlier.

After the earlier meeting, McGreal had learned that

Hernandez was known to be involved in narcotics. McGreal

questioned Hernandez about his presence in the Copa

parking lot after hours, and Hernandez claimed he was a

part-owner of the establishment. This claim piqued

McGreal’s interest because ownership of a bar by a felon

violates both Illinois law and an Alsip ordinance.

McGreal was well-acquainted with the bar because the

police were called to the Copa more than twice as often as

they were called to any other liquor establishment in Alsip.

The Copa also had ties to the Mayor. The owner of record,

George Rusick, was a good friend of Mayor Andrews, and

the Mayor patronized the bar. Indeed, the Mayor appeared

in a local television advertisement for the Copa. Moreover,

the Mayor had been involved in a car accident as he was

exiting the Copa parking lot at 4:30 one morning. Rusick

drove Mayor Andrews away from the scene of the accident

before police arrived and later testified for him at trial. The

Mayor turned himself in to the Alsip police department the

No. 02-3405 9

afternoon after the accident, much too late to be given a

meaningful blood alcohol test. He was charged with leaving

the scene of an accident and failure to yield. The record

does not reveal how these charges were resolved.

After running into Hernandez in the Copa parking lot,

McGreal discussed the issue with Sgt. Murray and filed

a police report on the incident. Murray followed up by

interviewing Hernandez. Hernandez told Murray he had

worked for George Rusick and that, in lieu of payment for

his services, Rusick agreed to allow Hernandez into the

business as a part owner. Sgt. Murray drafted a two-page

handwritten police report on the matter documenting what

he believed was an illegal ownership situation at the Copa

based on his belief that Hernandez was a felon. Sgt. Murray

showed this report to McGreal. Murray’s report corrobo-

rated McGreal’s information. On the second page of his

report, Murray recommended that the liquor commissioner

initiate proceedings against the Copa. Perhaps coinciden-

tally, Mayor Andrews served as the town’s liquor commis-

sioner.

Normally, when an officer submits a report, a secre-

tary sends it to the official files. When Chief Wood read

Murray’s report, however, he gave the report back to

Murray and told him to “come back with a different con-

clusion” unless more evidence was uncovered. Murray then

spoke to Hernandez again and confirmed that Hernandez

performed work for Rusick in exchange for a promise of

an ownership interest in the business. Murray then sub-

mitted the report again. The first page of the new report

was identical to the first page of his earlier filing but the

second page now contained a different conclusion, that no

further action would be taken. The original second page was

later destroyed.

Approximately nine months later, McGreal asked Murray

about the investigation of the Copa. Murray replied that he

10 No. 02-3405

had not worked on the investigation because he had given

the matter to Chief Wood. McGreal then asked Chief Wood

about the investigation. Wood told him that Murray was

still working on it. McGreal then went to the records section

of the Department and requested the file for the case. The

official file contained McGreal’s report but neither version

of Sgt. Murray’s report. McGreal told the Chief about the

missing report and followed up with a memo requesting the

full contents of the file. As a result of this request, McGreal

received another copy of his own two-page report and a

third, one-page, typed report written by Murray that was

different from either of the first two reports. The new report

was not dated, but the case file number contained a hand-

written strikeover from “95” to “94.” To McGreal, this

suggested that the new report was created in 1995 when he

had raised the matter again. When McGreal approached

Murray about the new report, Murray asked him to “please

drop it.”

Some time around the Fall of 1996, Lt. Snooks directed

McGreal to search the liquor commission files for the name

of a doorman for the Copa for an unrelated underage

drinking case. As McGreal searched the files, he discovered

a copy of the revised, handwritten two-page document (the

one concluding that no further action would be taken).

McGreal made two copies of the report, placing one in his

evidence locker and delivering the other to Chief Wood,

pointing out that the report had been missing from the

official department files. McGreal also told Snooks in

November 1996 that he believed files were missing from the

official records. Everyone agrees this was a serious charge

because destroying police reports or removing them from

the official files violated the rules and regulations of the

department and also may have constituted a crime under

Illinois law. McGreal publicized the fact that documents

were missing from the files in the course of his campaign

against the Mayor. Discovery in this case corroborated

No. 02-3405 11

McGreal’s claims. The defendants produced a records

envelope with a startling notation written by Snooks:

Original sups from John Murray given to me by Chief

11/24/97 at 0920 as he never placed them into records

to prevent officer “digging.”

Snooks Dep., Ex 49.

D.

When McGreal learned that there would be no further

investigation of the Copa, he decided to appeal the Mayor’s

decision to renew the Copa’s liquor license. He also decided

to further investigate the ties between Hernandez and the

Copa on his own time and as a private citizen. He learned

from an acquaintance that Assistant Attorney General

Mary Sue Feldmeier might have information about

Hernandez and the Copa. McGreal called Feldmeier and

asked about Hernandez’s ties to the Copa. Although he in-

troduced himself as a police officer, he did not intend to

convey that he was conducting an official investigation and

he was unaware that Feldmeier had apparently misunder-

stood him and assumed his questions were presented in his

official capacity.

In response to his inquiry, she sent him a facsimile at the

Alsip Police Department of an Attorney General report. The

report stated that Hernandez’s girlfriend had acknowledged

that Hernandez gave the owner of the Copa $100,000 in

cash to become a part-owner of the business. The fax was

intercepted by Chief Wood, who called Feldmeier to investi-

gate whether McGreal had given her the impression that

his investigation was an official (rather than personal)

matter. After speaking to Feldmeier in March 1997, he

thought he might have cause to discipline McGreal, but

dropped the matter for a time. Feldmeier was not contacted

again until November or December of that year, after the

12 No. 02-3405

Mayor learned that McGreal had instigated an investiga-

tion into the Mayor’s ties to gambling at the Elk’s Club. At

that point, Snooks was investigating McGreal for any

possible wrong-doing that would justify his discharge.

E.

That brings us back to November 1997. Recall that

McGreal had opposed Andrews in the mayoral election

earlier that year, and the Mayor then learned that McGreal

had instigated an investigation into the Mayor’s possible

receipt of gambling kickbacks from the Elk’s Club. The

Mayor responded to this news first by threatening to fire

Chief Wood and then by hiring a lawyer who specialized in

discharging police officers. The Mayor first met with this

lawyer, Thomas McGuire, on November 10, 1997, the same

day he demanded the Chief’s resignation and announced to

the Village Board that he had authorized an investigation

into “fairy tale charges” brought by a “disgruntled” police

officer. Eleven days later, Wood ordered McGreal to appear

for an administrative interview. The topics for the interview

included McGreal’s investigation of the ownership of the

Copa, his inquiry into gambling at the Elk’s Club, his

handling of the Taylor DUI case, alleged sick time abuse in

1996 and 1997, alleged failure to properly utilize on-duty

time, and his handling of an ordinance violation at the

Copa. From November 21, 1997 through March 12, 1998,

Lt. Snooks interrogated McGreal repeatedly. After five

sessions of questioning totaling more than twelve hours, no

charges were brought against McGreal. Neither Wood nor

Snooks could conclude that McGreal had engaged in

misconduct that warranted discipline or termination.

Instead, about a week after the conclusion of these inter-

rogations, Chief Wood ordered McGreal to report to Dr. Eric

Ostrov, a psychologist (who also happens to be a lawyer), for

No. 02-3405 13

a psychological evaluation to assess McGreal’s fitness for

duty. Dr. Ostrov had provided expert testimony many times

over the years for clients of Thomas McGuire seeking to

terminate police officers. McGreal’s attorney asked why

McGreal was being psychologically evaluated and neither

Wood nor Snooks responded to the inquiry. McGreal was

ordered (under threat of termination) to sign a waiver of his

right to privacy, confidentiality and/or privilege with Dr.

Ostrov before submitting to the examination. When

McGreal signed the document, he noted that he was

waiving his rights “under duress.” McGreal subsequently

submitted to three sessions with Dr. Ostrov as well as a

number of psychological tests.

Dr. Ostrov wrote a 21-page evaluation of McGreal based

on his sessions with McGreal, the psychological tests, a

conversation with Lt. Snooks about McGreal and a conver-

sation with Thomas McGuire regarding McGreal. See R. 4,

Ex. H. The report recounts the incidents we have described

above including McGreal’s investigation into the ownership

of the Copa, his call to the Assistant Attorney General, his

charges about the missing police report, and his conduct

during the prosecution of the Taylor DUI. For reasons not

explained in the report, Dr. Ostrov apparently credited only

the versions of those stories presented by the defendants

and their lawyer. He then presented his diagnostic assess-

ment. This part of the report contained a great many details

of McGreal’s home life, especially regarding his relation-

ships with his three sons, his wife, and his parents and in-

laws. Dr. Ostrov also extensively reported on McGreal’s

version of the many incidents the department cited as

problematic. Dr. Ostrov’s “diagnostic impression” of

McGreal was that he displayed narcissistic, paranoid and

histrionic traits, not rising to the level of a personality

disorder, citing the Diagnostic and Statistical Manual IV.

In other words, McGreal suffered from no identifiable men-

tal illness. Dr. Ostrov concluded, however, that McGreal

14 No. 02-3405

had a “marked tendency to make inferences based on highly

tenuous evidence.” R. 4, Ex. H, at 19. We read this as a

charge that McGreal relied on hunches. (If McGreal’s

allegations prove true at trial, his hunches were remarkably

accurate.) Ostrov based this finding on the DUI matter, the

Elk’s Club investigation, the Copa ownership question and

the missing memo incident. He also concluded that McGreal

had limited insight into the possible disruptions that his

behavior caused. In sum, he stated:

Based on these results, it is my opinion, to a reasonable

degree of psychological certainty, that Officer McGreal

should be allowed to continue on full active duty only if

he is willing to undertake a course of psychotherapy

directed toward helping him gain insight into the

vagaries of his reasoning processes, their potential for

disruption in the police department and the community,

and the relationship to his own psychological needs and

functioning. I suggest a course of short-term cognitive

psychotherapy once a week for at least 50 minutes a

session for a period of time not to exceed three months.

. . . If he is unwilling to enlist in such treatment . . . I

would recommend . . . that he be found unfit for full

active duty due to his potential for undermining the

essential quasi-military hierarchical structure of the

police department, undermining the essential element

of morale in the police department, and undermining

the essential element of the police department’s having

good relationships with external agencies in the com-

munity.

R. 4, Ex. H at 20-21.

Dr. Ostrov forwarded his report to Chief Wood, who di-

rected McGreal to appear in his office for a meeting on June

9, 1998. McGreal appeared at the meeting with his attor-

ney. Along with Chief Wood, Lt. Snooks, Thomas McGuire

and Dr. Ostrov were also present. Dr. Ostrov reiterated his

No. 02-3405 15

conclusion that McGreal need not be removed from active

duty so long as he submitted to the prescribed cognitive

therapy. McGreal’s attorney said that McGreal was willing

to consider the therapy, but the meeting ended with Chief

Wood handing McGreal a memo placing him on paid sick

leave until further notice. McGreal’s attorney attempted to

clarify by letter what had happened at the meeting. He

noted that McGreal had offered to discuss therapy and that

the defendants had not responded. McGreal never received

a clarifying response from the department. Instead, on June

12, 1998, McGuire sent McGreal’s attorney a letter contain-

ing a two-part ultimatum. The letter provided that if

McGreal wished to have a second medical opinion on his

fitness for duty, he was required to submit a completed

report to Chief Wood within 17 days. Second, if the contents

of the second report did not negate the conclusions of the

first report, and if McGreal did not sign a “Proposed

Therapy Agreement” then Wood would initiate termination

proceedings against McGreal. Chief Wood and Lt. Snooks

later claimed not to have authorized McGuire’s letter, but

on summary judgment we construe the facts in favor of the

party opposing judgment, and McGuire claimed he did have

authority from his clients to send this letter. Three days

before the deadline for McGreal to sign off on the therapy

agreement, McGreal filed this lawsuit, alleging that the

defendants were retaliating against him for exercising his

First Amendment rights.

Approximately two weeks later, McGreal was served with

an “Administrative Complaint” filed by Chief Wood, seeking

McGreal’s termination on the basis of various acts of

misconduct. The charges were numerous and varied, and in

some cases quite vague. For example, the Complaint notes

that McGreal was “cautioned” during his employment about

his “lack of proper interaction with his fellow employees”

and that he had “not fully accept[ed] said caution.” R. 4, Ex.

G, ¶ 8. The Administrative Complaint also faults McGreal

16 No. 02-3405

for (1) commencing his own investigation into a felon’s

purported ownership interest in a liquor establishment; (2)

falsely accusing Chief Wood of mishandling the records of

the Alsip Police Department; (3) using in his campaign

against the Mayor information he received while on duty as

a police officer (regarding that felon’s ownership interest in

the bar); (4) conveying to Chief Wood, without proper

justification, the rumor that the Mayor was taking payoffs

from an Alsip establishment (presumably a reference to the

Elk’s Club); (5) alleging without proper justification that the

Taylor DUI had been improperly handled by the prosecutor;

(6) sending a letter to the JIB and the presiding judge of the

circuit court accusing a Cook County judge of treating him

inappropriately after he pointed out possible wrong-doing

by the prosecutor in the DUI case; (7) expressing, in the

administrative investigation interviews, that he had little

to no confidence in Chief Wood and Lt. Snooks because they

served at the pleasure of the Mayor; and (8) failing to agree

to enter into psychotherapy to correct “the vagaries of his

reasoning processes”. McGreal points out that during

Woods’ nine year tenure as Chief, only one other officer was

terminated, an officer who inappropriately fired his gun at

unarmed civilians. At the same time, the Department never

sought to terminate a third officer (we’ll call him Officer

Doe) who was reprimanded for consorting with a female

civilian in his squad car while on duty, being tardy repeat-

edly, kissing another officer’s wife at a party, verbally

abusing civilians with ethnic slurs, tanning at a salon while

on duty, falsely calling in sick, carrying a personal pager on

duty, driving in an unsafe manner on repeated occasions,

wearing an improper uniform, battering his domestic

partner and assaulting a police officer who tried to inter-

vene, threatening the life of his domestic partner and other

police officers with his gun in the course of this incident,

repeatedly attempting to break in to the home of a female

Department radio operator, using his official position as a

No. 02-3405 17

police officer to intimidate his girlfriend’s ex-husband, and

failing to attend alcohol counseling as required by the

Department.

Meanwhile, McGreal, apparently considered by the

Department to be far more dangerous than his violent and

abusive gun-wielding fellow officer, was barred from re-

turning to work from June 9 through October 6, 1998 on the

grounds that he had been declared psychologically unfit for

duty. He was forced to expend reserved sick days in order

to draw a salary during this lengthy absence. In July 1998,

Wood distributed a memo to all police department person-

nel barring McGreal from setting foot in the police station.

Wood also prohibited McGreal from attending court on his

pending cases while he was on leave. Snooks notified court

personnel of McGreal’s leave status, causing McGreal

further embarrassment. The Administrative Complaint was

eventually resolved by a settlement which preserved

McGreal’s right to pursue his claims in federal court.

McGreal was still employed as an Alsip police officer as of

the time of oral argument.

F.

McGreal filed a four-count complaint against Dr. Ostrov,

Chief Wood, Lt. Snooks and the Village of Alsip. Count I

alleged a deprivation of rights guaranteed under the First

Amendment by Snooks, Wood and the Village, in violation

of § 1983. Count II stated a claim of deprivation of speech

rights guaranteed by the Constitution of the State of

Illinois. Count III alleged a deprivation of property in vio-

lation of due process, where the property at issue was

McGreal’s interest in the sick time pay he was forced to use

in order to continue to receive his salary. Count IV, which

was filed under seal, alleged violation of the Mental Health

and Developmental Confidentiality Disabilities Act, 740

ILCS 110/1 et. seq., arising from the dissemination of Dr.

Ostrov’s report.

18 No. 02-3405

All of the defendants moved to dismiss Count IV on the

grounds that there was no therapeutic relationship between

McGreal and Dr. Ostrov, that McGreal signed a waiver of

his right to confidentiality, and that public policy favored

disclosure of mental health reports to a police officer’s

supervisors when a mental health evaluation for fitness for

duty has been ordered. The district court granted the

motion to dismiss, finding that Dr. Ostrov was acting not as

McGreal’s own psychiatrist1 but rather as a consultant to

the Village to evaluate McGreal’s fitness for duty. The court

found that although Dr. Ostrov was a therapist whose

services would otherwise come within the statutory provi-

sions, McGreal’s discussions with him were not subject to

the full constraints applicable to confidential communica-

tions under the act.

After discovery, the defendants moved for summary

judgment on the remaining counts. The court found that the

Village could not be held liable for the acts of the mayor or

agents of the police department because they were not

acting pursuant to a policy of retaliating against free

speech. Citing Monell v. Department of Social Servs. of City

of New York, 436 U.S. 658 (1978), the court reasoned that

the municipality could not be held liable even if an admit-

ted policymaker like the Mayor engaged in retaliation

against McGreal for engaging in free speech. The key,

according to the court, was whether the Village had a policy

of retaliating against free speech and McGreal had no

evidence of such a policy.

The court then considered the claims against Wood and

Snooks in their individual capacities. The court found that

Wood and Snooks were entitled to qualified immunity on

1

The district court was apparently under the misapprehension

that Dr. Ostrov is a psychiatrist. The undisputed record discloses

that he is a psychologist and an attorney.

No. 02-3405 19

two different grounds. First, the court engaged in a

Pickering balancing test, weighing McGreal’s right to speak

on matters of public interest against the department’s need

to protect against disruption in carrying out its work. See

Pickering v. Board of Educ. of Township High School Dist.

205, Will County, Illinois, 391 U.S. 563 (1968). The court

concluded that McGreal’s speech addressed matters of

public concern, namely, possible corruption in the police

department and by the Mayor. Balanced against McGreal’s

interest in making that corruption known (and the public’s

interest in hearing it), the court found that the police

department had a more substantial interest in efficiency,

loyalty, morale, public confidence in law enforcement and

protecting against actual and potential disruptions in the

department and with other city agencies. On balance, then,

the court found that Wood and Snooks were entitled to

qualified immunity for any actions they took against

McGreal because of his speech on these issues. In the

alternative, the court found that Wood and Snooks were

entitled to qualified immunity because the law surrounding

McGreal’s claim was not clearly established at the time of

these events. According to the district court, it was not clear

at the time of these events that the actions taken against

McGreal violated his First Amendment rights. The court

therefore granted judgment in favor of all of the defendants.

McGreal appeals.

II.

On appeal, McGreal contends that the court misapplied

the Pickering test. He points out that his alleged verbal

missteps are far over-shadowed by the speech and conduct

of the unnamed officer who misused his gun as well as his

words, an officer whom the department never sought to ter-

minate. McGreal argues that the disparate treatment

of Officer Doe demonstrates that the rationales offered

20 No. 02-3405

to justify McGreal’s treatment by the department are pre-

textual. McGreal maintains that the Village should be held

liable for the acts of the Mayor and the police chief, and

that his claim for violation of the Illinois Mental Health and

Developmental Disabilities Confidentiality Act should not

have been dismissed. He asks us to apply Circuit Rule 36 on

remand.

A.

We begin with McGreal’s § 1983 claim for retaliation in

violation of his First Amendment rights. There are four

elements to a First Amendment retaliation claim in the

employment context. Gustafson v. Jones, 290 F.3d 895, 906

(7th Cir. 2002). The appeal comes to us as the result of

summary judgment and, thus, our review is de novo and

McGreal need only demonstrate a genuine issue of material

fact as to each element. Myers, 226 F.3d at 825 (we review

de novo a grant of summary judgment as well as a district

court’s decision that a defendant is entitled to qualified

immunity). We construe all facts in a light most favorable

to McGreal, the party opposing summary judgment, and we

draw all reasonable inferences in his favor. Myers, 226 F.3d

at 825. In order to make out his First Amendment claim,

McGreal must first demonstrate that his speech was on a

matter of public concern. Second, he must show that his

speech played at least a substantial part in his employer’s

decision to take an adverse employment action against him.

If McGreal carries his burden on these two elements, the

defendants may prevail only if, third, they can prove that

the government’s interest as an employer in efficiently

providing government services outweighs McGreal’s First

Amendment interests, or if, fourth, they can prove that they

would have disciplined McGreal even in the absence of his

speech. Gustafson, 290 F.3d at 906. The defendants’ burden

in justifying the actions they took against an employee

No. 02-3405 21

varies depending upon the nature of the employee’s expres-

sion. Connick v. Myers, 461 U.S. 138, 149 (1983); Glass v.

Dachel, 2 F.3d 733, 744 (7th Cir. 1993) (Supreme Court

unanimously placed the burden on the State to demonstrate

a state interest that outweighs the employee’s First Amend-

ment rights).

1.

We begin with whether McGreal’s speech touched on

matters of public concern. “Whether a government employ-

ee’s speech addresses a matter of public concern depends

upon ‘the content, form, and context [of the speech] as

revealed by the whole record.’ ” Gustafson, 290 F.3d at 906-

07 (quoting Connick, 461 U.S. at 147-48). McGreal’s com-

ments included his complaint to the Judicial Inquiry Board

about the handling of the Taylor DUI, his statements in the

mayoral campaign and in other fora about missing police

reports, his repetition of rumors that the Mayor was on the

take at the Elk’s Club, that illegal gambling was going on

at the Elk’s Club, and that a felon had an ownership

interest in the Copa. The defendants only weakly question

whether these remarks touched on matters of public

concern. See Connick, 461 U.S. at 148 (statements not a

matter of public concern where employee was not seeking

to inform the public that government agency was not

discharging its responsibilities and was not bringing to light

actual or potential wrongdoing or breach of the public trust

on the part of another public official); Glass, 2 F.3d at 741

(“matters of public concern do include speech aimed at

uncovering wrongdoing or breaches of the public trust”).

Rather they argue that, on balance, the department’s

interest in effectively and efficiently delivering law enforce-

ment services outweighed McGreal’s right to publicly

comment on these matters. The defendants also argue that

McGreal’s statements are not entitled to First Amendment

22 No. 02-3405

protection because they were false and made recklessly. We

have remarked that a suggestion that statements were

made with reckless indifference to their accuracy is not

normally relevant to the question whether the issue was a

matter of public concern. See Gustafson, 290 F.3d at 908.

The defendants’ theory, presumably, is that false charges of

corruption would not really touch on matters of public

concern. All of the statements that form the basis for

McGreal’s retaliation claim involved charges of wrong-doing

by public officials and therefore easily meet the element of

touching on matters of public concern unless the defendants

can demonstrate that McGreal’s statements were false and

recklessly made. See Delgado v. Jones, 282 F.3d 511, 517-18

(7th Cir. 2002) (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).

We believe there are genuine issues of material fact both

as to the truth of the statements and as to whether the

defendants genuinely believed the statements were false

when they took action against McGreal for making the

statements. For example, McGreal’s complaint to the

Judicial Inquiry Board was based in large part on misinfor-

mation provided to him by Lt. Snooks, who concedes he

gave McGreal incorrect information. At the time Lt. Snooks

provided this incorrect and incomplete information, he was

aware that McGreal was already suspicious about the

unusual handling of the Taylor DUI. Yet, as far as we can

tell from the record, Lt. Snooks was never disciplined for

giving false information in the first place. The department

can hardly be heard to complain now about the falsity of

information in McGreal’s JIB complaint when McGreal’s

supervisor was admittedly the source of the misinformation.

Moreover, the substance of McGreal’s missives was that the

judge involved began treating McGreal differently after he

questioned the handling of the Taylor DUI, and that the

No. 02-3405 23

sentence was surreptitiously changed after McGreal

complained. The defendants provide no evidence on the

truth of McGreal’s allegation that the judge treated him

differently after he began investigating the handling of the

Taylor DUI, and for summary judgment purposes we will

assume both that this allegation was true and that the

department had no reason to think it was false. The

department was also aware that, from McGreal’s perspec-

tive (because of the incorrect and incomplete information

provided by Lt. Snooks), Taylor’s sentence was changed

after McGreal began looking into the matter. Although this

may not have been literally true (we see no evidence in the

record that would definitively answer the question), from

McGreal’s perspective, in reliance on reports from the very

people who now accuse him of lying, this charge was true.

On summary judgment, we cannot find that McGreal’s

JIB complaint or his letter to the presiding judge contained

falsehoods or that the department honestly believed

McGreal was lying in making these charges.

McGreal’s suspicions about gambling at the Elk’s Club

turned out to be true. After McGreal pressed the issue and

forced an investigation, the Sheriff’s office confirmed that

the video poker machines at the Elk’s Club were being used

for gambling. As for McGreal’s repetition of the rumor that

a Village official was receiving payoffs from Elk’s Club

gambling, he identified the Mayor as the subject of the

rumor only when ordered to do so and only to his com-

manding officer. Whether he had heard such a rumor is

contested and we will credit his version of events for

summary judgment purposes. Thus, we will assume that he

did hear such a rumor. McGreal expressed no opinion as to

the truth of the rumor itself. Forwarding that information

to his commanding officer led to an investigation that

appears to have exonerated the Mayor. One would think

that (1) given the campaign contribution from the company

owning the machines and (2) given the Mayor’s preferential

treatment of that company, not to mention (3) the delays in

24 No. 02-3405

investigating the gambling charge and (4) the later confir-

mation that the machines were in fact used for gambling,

the Mayor would have been relieved to be cleared of the

bribery rumors. There is certainly no question that a charge

of bribery involving a Village official touched on matters of

public concern. The Mayor himself thought the matter

worthy of mention at a Village Board meeting. And there

was arguably enough smoke in the rumor for McGreal to

repeat the charge to his commanding officer in an effort to

force the department to check for fire.

The last two statements by McGreal are somewhat re-

lated. McGreal reported to his superiors and to the press

that a felon had an ownership interest in the Copa. He later

charged that documents relating to the investigation of this

matter had been altered and removed from the official

police files. We will begin with the charge that a felon held

an ownership interest in the Copa. McGreal first heard this

from the felon himself in the parking lot of the establish-

ment in question. He passed the information on to Sgt.

Murray who questioned the alleged owner further and

initially came to the conclusion that McGreal’s suspicions

were correct. Only after an order from Chief Wood to obtain

more evidence or come to a different conclusion did Murray

change his assessment. Later information from the Attor-

ney General’s office further supported McGreal’s charge

that a felon had an ownership interest in the Copa. Thus,

we will assume at this stage of the litigation that McGreal

was accurately reporting conduct that is illegal under state

and local law, and that his employer was well aware of this.

Next is McGreal’s charge that documents were missing

from the official police files relating to the investigation of

whether a felon owned part of the Copa in violation of state

and local law. Again, the record demonstrates that files

were in fact missing from the official record. First, McGreal

himself checked the file and could not find the original

memo shown to him by Sgt. Murray. McGreal later found a

No. 02-3405 25

copy of the revised handwritten memo in another filing area

and a third typewritten document was provided to him after

he reported that a document was missing. This third

document was different from the one he knew had been

submitted by Sgt. Murray. Discovery later turned up a

veritable smoking gun in the form of an envelope marked

“Original sups from John Murray given to me by Chief

11/24/97 at 0920 as he never placed them into records to

prevent officer ‘digging.’ ” The defendants do not deny that

a charge of altering or destroying official police files touches

on matters of public concern. Everyone seems to agree that

intentionally destroying or removing records from the

official file constitutes a crime. The envelope demonstrates

that the department knew files were not where they should

be and that Wood and Snooks therefore knew McGreal was

telling the truth when he made the charge. McGreal thus

has enough evidence to demonstrate that his statements

touched on matters of public concern, were arguably true

and were worthy of First Amendment protection.

2.

We turn next to the second element of McGreal’s First

Amendment claim, whether his speech played at least a

substantial part in his employer’s decision to take an ad-

verse employment action against him. The defendants do

not seriously contest that McGreal’s accusations played a

substantial role in their decision to seek his termination.

We need look only as far as the psychological evaluation

and the administrative charge filed against McGreal to

confirm that McGreal’s speech played a significant role

in the department’s determination to fire him. The

Administrative Complaint faults McGreal for, among other

things: (1) falsely accusing Chief Wood of mishandling the

records of the Alsip police department; (2) campaigning

against the Mayor with information obtained while on duty

26 No. 02-3405

as a police officer (regarding a felon’s ownership interest in

the Copa); (3) conveying to Chief Wood the rumor that the

Mayor was taking payoffs to overlook gambling at the Elk’s

Club; and (4) alleging to the JIB and the presiding judge

that the Taylor DUI had been handled improperly. These

same statements served as the department’s alleged

justification for sending McGreal to Dr. Ostrov for a fitness-

for-duty evaluation. We will consider separately the fourth

element of McGreal’s First Amendment claim, the defen-

dants’ argument that they would have sought to terminate

McGreal even in the absence of his statements. But

McGreal has demonstrated a genuine issue of material fact

on the issue of whether his speech played a substantial role

in the defendants’ decision to take adverse action against

him.

3.

That brings us to the heart of the First Amendment

analysis, the Pickering balancing. Pickering, 391 U.S. at

574. Even if a government employee’s speech is on a matter

of public concern, the government employer is entitled to

restrict that speech if it can prove that the interest of the

employee as a citizen in commenting on the matter is

outweighed by the interest of the government employer in

promoting effective and efficient public service. Gustafson,

290 F.3d at 909. A Pickering analysis is a highly fact-

specific inquiry into a number of related factors:

(1) whether the speech would create problems in main-

taining discipline or harmony among co-workers; (2)

whether the employment relationship is one in which

personal loyalty and confidence are necessary; (3)

whether the speech impeded the employee’s ability to

perform her responsibilities; (4) the time, place, and

manner of the speech; (5) the context within which the

underlying dispute arose; (6) whether the matter was

No. 02-3405 27

one on which debate was vital to informed decision-

making; and (7) whether the speaker should be re-

garded as a member of the general public.

Gustafson, 290 F.3d at 909. Before analyzing these factors

and the pertinent case law, we turn momentarily to a dis-

pute between the parties over our standard of review on the

Pickering issue.

McGreal argues for de novo review, generally because the

case comes to us on summary judgment, and specifically

because we have held that we review de novo the district

court’s application of the Pickering test. See Bonds v.

Milwaukee County, 207 F.3d 969, 979 (7th Cir. 2000), cert.

denied, 531 U.S. 944 (2000). The defendants cite Gustafson

for the proposition that, although our review of the court’s

legal conclusions is de novo, we review the record as a

whole, and we will accept the district court’s conclusions of

historical fact unless they are clearly erroneous. Gustafson,

290 F.3d at 906. The Supreme Court reminds us that “[t]he

inquiry into the protected status of speech is one of law, not

fact.” Connick, 461 U.S. at 148 n.7. These statements of the

standard do not actually conflict. Both parties agree that we

review the ultimate conclusion de novo. They disagree only

on the meaning of “historical fact” in this context. According

to the defendants, we must defer to the district court’s

“findings of historical fact” that (1) Wood and Snooks were

of the opinion that McGreal’s speech had the potential to

disrupt the police department and its relationships with

other law enforcement agencies, prosecutors and the courts;

(2) Wood and Snooks had legitimate concerns that

McGreal’s conduct could upset the mission of the police

department. McGreal maintains these are hotly contested

material facts that must be decided by a jury. McGreal is

correct that we will reverse a grant of summary judgment

when a material issue of fact is in dispute as to whether the

employer’s reasons for disciplining an employee involved

promoting the efficient and effective operation of a govern-

28 No. 02-3405

ment agency. See Glass, 2 F.3d at 736. See also Delgado,

282 F.3d at 517 (the Pickering balancing test can seldom be

done on the pleadings alone and in most cases will be

possible only after the parties have had an opportunity to

conduct discovery). The record here reveals many good

reasons to doubt the sincerity of Wood’s and Snooks’s

opinions, concerns and state of mind. We will completely

delineate those reasons shortly but in the meantime note a

few factors giving rise to a genuine issue of material fact.

For example, a great deal of time passed between McGreal’s

statements and the defendants’ determination that there

was a “potential” for disruption. Indeed, so much time had

passed that a reasonable jury could find that their stated

fear of “potential” disruption was pretextual because Wood

and Snooks surely knew by then that any danger of disrup-

tion had passed. In other words, when the disruption failed

to materialize, they could not justify disciplining McGreal

by reaching back in time to predict “potential” disruption

that they knew in fact had not occurred. Other reasons to

doubt their sincerity include the timing of the hiring of

Thomas McGuire and the decision to require McGreal to

submit to a psychological evaluation when he showed no

signs of mental illness or instability.

Given the state of the dispute over this material fact, we

will apply de novo review. Characterizing the district court’s

conclusions on the state of mind of Snooks and Wood as

“findings of historical facts” is quite a stretch. It is rarely

appropriate on summary judgment for a district court to

make a finding on state of mind. Alexander v. Wisconsin

Dept. of Health & Family Serv., 263 F.3d 673, 681 (7th Cir.

2001) (cases involving questions of intent and credibility are

inappropriate for summary judgment); Stumph v. Thomas

& Skinner, Inc., 770 F.2d 93, 97 (7th Cir.1985) (“ ’Summary

judgment is notoriously inappropriate for determination of

claims in which issues of intent, good faith and other

subjective feelings play dominant roles.’ ”) (quoting Pfizer,

No. 02-3405 29

Inc. v. International Rectifier Corp., 538 F.2d 180, 185 (8th

Cir.1976), cert. denied, 429 U.S. 1040 (1977)). When the

issue is contested, as it is here, the plaintiff is entitled to

have the finder of fact decide the issue, perhaps with a

special verdict form that the court can then use to apply the

Pickering factors to the particular facts of the case. “Histor-

ical facts” do not include subjective, contested issues about

state of mind. “Pickering balancing is not an exercise in

judicial speculation. While it is true that in some cases the

undisputed facts on summary judgment permit the resolu-

tion of a claim without a trial, that means only that the

Pickering elements are assessed in light of a record free

from material factual disputes.” Gustafson, 290 F.3d at 909.

Thus, there is no reason on this disputed record to defer to

these so-called findings.

That brings us squarely to the seven factors of the

Pickering test. Recall that the three statements in dispute

are McGreal’s complaint to the JIB about the handling of

the Taylor DUI, McGreal’s statements to Wood and Snooks

that reports were missing from the official files, and

McGreal’s accusation of corruption against the Mayor. For

the JIB complaint, the defendants contend that McGreal’s

statement had a potential negative impact on the

Department’s image as well as the Department’s relation-

ship with judges and prosecutors. They maintain that

McGreal’s credibility with these other agencies was com-

promised and the close working relationships between these

entities “could have been seriously undermined” if Wood

had not stepped in and minimized the damage. They argue

that the JIB complaint also caused Wood to lose confidence

in McGreal.

As for McGreal’s accusations about missing reports, the

defendants argue that McGreal made the statements to

promote his own self-interest in his political campaign

against the Mayor. In doing so, he challenged the integrity

of the entire police department, according to the defendants,

30 No. 02-3405

and diminished the Department’s ability to efficiently

deliver law enforcement services. McGreal’s repetition of a

rumor that the Mayor was on the take had the potential for

disruption in the entire Department, defendants explain,

because in addition to accusing the Mayor, McGreal implied

that the Department was looking the other way when it

came to enforcing the law against the Copa. Also, this

incident caused Chief Wood to lose confidence in McGreal.

The defendants largely rest their case, then, on the poten-

tial for disruption in the Department and with outside

agencies, and the Chief’s loss of confidence in McGreal as a

result of these statements. They rely heavily on our deci-

sions in Kokkinis and Jefferson, one a police officer case and

the other involving a probation officer, as analogous cases

requiring affirmance here. See Kokkinis v. Ivkovich, 185

F.3d 840 (7th Cir. 1999); Jefferson v. Ambroz, 90 F.3d 1291

(7th Cir. 1996). We turn to these cases to aid our analysis.

Kokkinis, a patrol officer, appeared on a local television

news program in a report on another officer’s charges of sex

discrimination in the police department. Wearing a ski

mask and speaking in an electronically disguised voice,

Kokkinis told a reporter that people would be in “utter

shock” if they knew what was going on in the police depart-

ment. When the reporter asked why, Kokkinis replied that

everyone was afraid of the police chief’s vindictiveness, and

that if anyone dared to question one of the chief’s decisions,

that person’s life would be “made miserable.” Kokkinis did

not directly comment on the other officer’s charge of sex

discrimination and admittedly had no specific knowledge

related to the officer’s charge. Kokkinis later admitted he

was the masked speaker on the news report. At first, the

chief suspended him for five days, ostensibly for violating

department rules by appearing on television without first

notifying the chief. The Board of Fire and Police Commis-

sioners reversed the suspension but Kokkinis’s problems

with the department continued. A strange series of events

No. 02-3405 31

(Kokkinis accidentally shot himself, his fellow officers

learned he was keeping a diary of his interactions with

them, problems developed between Kokkinis and his

supervisor, and Kokkinis began taking prescription medica-

tion for stress) led the chief to order Kokkinis to undergo

psychological testing. The evaluation resulted in a finding

that Kokkinis was not fit for regular duty, and the chief

reassigned him to administrative duties in the station.

Kokkinis, 185 F.3d at 841-43.

Applying the Pickering balancing test, we found that the

defendants were entitled to summary judgment. The

defendant police chief and police department presented

uncontested evidence that the chief believed Kokkinis’s

statements to be untrue, that he felt the remarks reflected

negatively on the department as a whole, that he had been

embarrassed by phone calls after the broadcast, and that he

was concerned the broadcast would negatively affect officer

morale. Other ranking officers concurred in these state-

ments. Kokkinis did not challenge the sincerity of the chief’s

beliefs. Rather, he argued that reliance on potential disrup-

tion in the police department was insufficient to tip the

Pickering balance in the defendant’s favor. We held that

potential disruption of working relationships caused by the

officer’s speech was a legitimate factor for the government

employer to consider. Citing Connick, we noted that when

close working relationships are essential to fulfilling public

responsibilities, deference to the employer’s judgment was

appropriate, especially in the context of a law enforcement

setting. Kokkinis, 185 F.3d at 845-46. We noted that a

public employer is not required to wait until working

relationships are actually damaged if immediate action

might prevent the harm from occurring. Id. 185 F.3d at 845.

Finally, we were careful to distinguish the situation in

which employees were reporting illegal conduct by supervi-

sors and airing grievances in a manner calculated to resolve

the problem without jeopardizing the government function.

Id. 185 F.3d at 846 n.3.

32 No. 02-3405

In Jefferson, a probation officer repeatedly called into a

radio program and identified himself as a local gang

member. Using this assumed identity, the officer publicly

criticized the police department and the judicial circuit. At

times, his calls to the station caused him to be late to work.

He made one call from his desk at work. When his employer

suspected he was the mysterious caller, he denied any

involvement. His employer suspended him, explaining that

Jefferson had misrepresented himself on the radio program,

had denied he was the caller, had lied about the reason for

his tardiness, and had impugned the integrity of the police

department and the local judiciary. A newspaper editorial

criticized Jefferson for putting a “problematic chill on

relations between the police and the court agency” for which

Jefferson worked. Jefferson, 90 F.3d at 1294. After a

hearing regarding Jefferson’s conduct, his employer termi-

nated him, finding that he had violated the trust of his

immediate supervisors, grievously damaged the probations

department’s relationship with the police department, and

compromised the probation department’s relationship with

the local courts. 90 F.3d at 1295.

Jefferson sued his employer, complaining that he was

terminated in violation of his First Amendment rights. In

applying the Pickering test, we first found that Jefferson’s

statements on the radio were clearly of public concern

because they were a critique of the local police department

and court system. We noted the seven factors that we would

consider in determining whether Jefferson’s speech out-

weighed his employer’s interest in promoting the efficiency

of its judicial system (the branch of government that

employed Jefferson). Jefferson, 90 F.3d at 1297. Applying

those factors, we found that loyalty and confidence were

critical to a probation officer’s job, and that Jefferson’s

employer reasonably believed his statements potentially

damaged the probation office’s public image and its rela-

tionship with other law enforcement agencies. 90 F.3d at

1297.

No. 02-3405 33

Neither Kokkinis nor Jefferson requires judgment for the

defendants. McGreal does not dispute whether potential

disruption is a legitimate factor in the Pickering balance.

He merely disputes, as a factual matter, whether his

employer genuinely feared potential disruption to the

Department’s operations. In both Kokkinis and Jefferson,

there was no evidence that the employers did not genuinely

believe the employees’s statements were extremely damag-

ing to agencies involved and to their relationships with

other government entities. In contrast, McGreal presents

evidence that his employers were aware that his statements

were actually or arguably true and that his employers had

no legitimate claim to a fear of potential disruption. For

example, the Chief knew records were missing from the

official files because the evidence shows the Chief is the

person who removed them. McGreal’s claims about gam-

bling at the Elk’s Club also proved to be true after he

pressed the point and the Sheriff’s office confirmed his well-

founded suspicions. As for his statement that the Mayor

might have been receiving payoffs related to the Elk’s Club

gambling, McGreal never presented this statement as true

but, when under orders to do so, accurately reported that he

heard the rumor from another officer and thought it worthy

of investigation in light of the delays in investigating the

Elk’s Club after his initial report.

These statements were not only true, they were also part

of McGreal’s duties as an officer to bring to light. Effective

police work would be hopelessly compromised if supervisors

could retaliate against police officers for communicating

factual details that bear on the department’s ability to

conduct an objective investigation. Delagdo, 282 F.3d at

519. “The fact that a police officer’s job responsibilities may

in some measure overlap with motivations of a well-mean-

ing citizen does not change this analysis.” Id. “[S]peech that

accurately exposes official impropriety or corruption may

certainly be described as highly critical of the officials it

34 No. 02-3405

targets, yet it has generally been accorded the greatest level

of First Amendment protection.” Jefferson, 90 F.3d at 1298

(Rovner, J., concurring). See also Glass, 2 F.3d at 741

(matters of public concern include speech aimed at uncover-

ing wrongdoing or breaches of the public trust). The interest

of the employee in speaking out to uncover government

malfeasance has often been held to outweigh the interest of

the employer in maintaining harmony in the workplace.

Jefferson, 90 F.3d at 1298 (collecting cases). The key is

whether the employer was acting on the facts as the

employer reasonably found them to be. Jefferson, 90 F.3d at

1297. Here, McGreal has raised a genuine issue as to the

sincerity and reasonableness of his employer’s belief that he

was lying and the sincerity and reasonableness of his

employer’s conclusion that his statements were potentially

disruptive to the police department. We have already found

material issues of fact relating to the sincerity of the

defendants’ belief that McGreal was making false state-

ments. We turn to the sincerity of their belief that

McGreal’s statements posed potential for disruption to

Department operations.

We note first that the department was far more concerned

with McGreal’s statements than it was with the actions of

Officer Doe, who engaged in dangerous and criminal

behavior. Officer Doe’s actions directly affected the Depart-

ment because he threatened his fellow officers with his

service revolver and also repeatedly tried to break into the

home of a female Department employee, among other

things. The extreme nature of Officer Doe’s actions coupled

with the Department’s failure to take action against him

cast doubt on the sincerity of the Department’s explanation

for disciplining McGreal. The Department claims it sought

to discipline McGreal because of the disruptive effect of his

statements on Department operations. The Department’s

only explanation for turning a blind eye to Officer Doe’s

conduct is that he is an alcoholic. That fact, of course, does

No. 02-3405 35

not change the disruptive effect of Doe’s behavior on the

Department and does not explain why the Department

never required a mental health evaluation for Doe, who was

actually exhibiting signs of mental illness. McGreal, on the

other hand, exhibited no signs of mental illness but merely

said things that embarrassed the Mayor and forced the

Department to engage in appropriate investigations. This

raises a genuine issue as to whether the Department was

actually acting out of a fear of potential disruption rather

than out of displeasure with the content of McGreal’s

statements. See Glass, 2 F.3d at 742 (because the First

Amendment interests in speaking out on matters of public

concern are real and important, “the State’s asserted

interests must likewise be real and important.”).

McGreal raises another compelling fact pointing us to the

same conclusion. A considerable amount of time passed

between the time McGreal made the offending statements

and the time the Department determined there was a

“potential for disruption.” Indeed, so much time had passed

that any potential disruption would have materialized by

the time the Department took action against McGreal. The

Department took no action against McGreal until November

11, 1997, when the Mayor learned McGreal had instigated

an investigation into whether the Mayor was taking payoffs

to look the other way on Elk’s Club gambling. On that day,

the Village hired an employment lawyer specializing in the

discharge of police officers. An extensive administrative

review process followed and the Village failed to find a

legitimate reason to discipline McGreal. Only then did the

Village decide that he was showing signs of mental illness

and they sent him to Dr. Ostrov in March 1998. In June

1998, a full seven months after McGreal’s statements first

got him into hot water with the Mayor, the Village suddenly

decided that McGreal suffered from “vagaries of his reason-

ing process” which were potentially disruptive to Depart-

ment operations. The seven month delay from the last-

36 No. 02-3405

occurring offending speech to the suspension provided a

huge window for the potential disruption to materialize.

But the defendants proffered no conclusive evidence that

McGreal’s speech or actions caused any disruptions to police

operations between November 1997 and June 1998. The

Department, as we discussed earlier, may not reach back in

time to November 1997 (and earlier dates) to justify the

June 1998 suspension by citing “potential disruption.” In

Gustafson, another police department case, four months

passed without any evidence of ill effect from the officers’

offending speech before they were transferred to another

unit. Gustafson, 290 F.3d at 911. We held that when

substantial time has passed without incident, “it naturally

becomes more difficult for an employer to satisfy its burden

of proving that punishment on the basis of anticipated

disruption was reasonable.” Id. “Mere assertions of general-

ized potential for disruption are in any event insufficient.”

Id. On summary judgment, when we are drawing all

reasonable inferences in favor of the party opposing sum-

mary judgment, the Village’s post hoc explanation sounds

too fishy to support judgment. See Glass, 2 F.2d at 743-44

(where sincerity of employer’s belief that police officer’s

speech would disrupt harmony and morale in department

was in dispute, summary judgment is inappropriate). The

timing of these events provides a genuine issue of fact

regarding the true reason for the Department’s actions

against McGreal. The timing demonstrates an extreme

displeasure with the content of McGreal’s statements just

as easily as it indicates a concern for potential disruption in

the Department. See Coady v. Steil, 187 F.3d 727, 732 (7th

Cir. 1999) (Pickering balance seeks to ensure that public

employers do not use authority over employees to silence

discourse, not because it hampers public function but

simply because supervisors disagree with the content of the

employee’s speech). Only a trial can determine the true

reason the defendants decided to place McGreal on leave.

No. 02-3405 37

In considering the other six factors, we think there are

genuine issues of fact that further preclude judgment. For

example, the parties would have quite different views of

whether McGreal’s speech interfered with his daily job

responsibilities. McGreal has a legitimate argument to

make about his speech being necessary to the fulfillment of

his duties as a police officer, but the Village may be able to

make a compelling case demonstrating that these state-

ments interfered with McGreal’s daily responsibilities. As

for the time, place and manner in which the remarks arose,

some comments were made publicly, some were made

privately and under orders to disclose the information, and

some were made as part of a political campaign. For some

of the remarks, construing the facts in McGreal’s favor, he

will be able to demonstrate that his statements were vital

to informed decision-making. For example, his charges of

public corruption were very relevant to decisions to investi-

gate possible crimes and were also relevant to Village

elections involving one of the subjects of his speech, the

Mayor. See Connick, 461 U.S. at 145 (quoting Garrison v.

Louisiana, 379 U.S. 64, 74-75 (1964)) (“ ‘[S]peech concerning

public affairs is more than self-expression; it is the essence

of self-government.’ ”). The employer bears the burden of

justifying a particular disciplinary action, and a stronger

showing may be necessary when an employee’s speech more

substantially involves matters of public concern. Connick,

461 U.S. at 150-52; Gustafson, 290 F.3d at 909.

As for whether McGreal should be regarded as a member

of the general public, he may well be able to show that for

some of the remarks, he was speaking as a member of the

general public. A genuine issue of fact exists as to whether

he was speaking as a private citizen or as a police officer on

at least one occasion, when he called the Attorney General’s

office to seek more information about the ownership of the

Copa. In short, there are far too many open questions for a

court to conduct the Pickering balancing at this stage of the

38 No. 02-3405

proceedings. A judge or jury must decide what the facts are

before a court may determine whether, on balance, the

government’s interest as an employer in efficiently provid-

ing government services outweighs McGreal’s First Amend-

ment interests.

Finally, we address the fourth element of a First Amend-

ment claim, whether the employer would have disciplined

McGreal even in the absence of his speech. Much of the

defendants’ argument on this point overlaps with the

factors in the Pickering balancing test and, as we have

noted, there are many open factual disputes. The Village,

after all, originally explained McGreal’s suspension as

necessary in light of his refusal to undergo cognitive

therapy, a highly suspect explanation in light of the timing

of the suspension and the favorable treatment given to

Officer Doe, who had engaged in highly dangerous and

disruptive behavior that was actually indicative of mental

illness. See Gordon v. United Airlines, Inc., 246 F.3d 878,

887-88 (7th Cir. 2001) (employer’s disparate treatment of

similarly situated employees created question of fact

regarding employer’s proffered reason for discipline of

employee). Under the circumstances, the district court

should not have entered judgment in favor of the defen-

dants.

B.

Wood and Snooks also argued that they were entitled to

qualified immunity for their actions against McGreal.

Because we are reversing and remanding on the basis of the

Pickering balancing, we must address this issue. McGreal

maintains that qualified immunity is unavailable on this

record because if his version of the facts is credited, Wood

and Snooks pursued an “unabashed campaign to get rid of

him” in order to punish him for engaging in protected

expression on matters of public concern. The defendants

No. 02-3405 39

contend that they were not on notice that their conduct was

unlawful and that they reasonably believed that McGreal

was telling lies and falsehoods rather than engaging in

protected speech. As we have already discussed, there are

genuine issues of material fact regarding the sincerity of

the defendants’ beliefs. See Glass, 2 F.3d at 745 (when a

material issue of fact remains as to the reason for defen-

dant’s discipline of plaintiff, neither qualified immunity nor

ultimate liability may be decided on summary judgment).

We will therefore turn to the issue of whether the defen-

dants were on notice that they would be infringing

McGreal’s First Amendment rights by their actions.

The initial inquiry in determining qualified immunity is

whether the facts, taken in the light most favorable to the

party asserting the injury, show that the defendant’s

conduct violated a constitutional right. Saucier v. Katz, 533

U.S. 194, 201 (2001). That question is easily answered here

because McGreal alleges that Wood and Snooks suspended

him from duty as punishment for speaking out on matters

of public concern. The First Amendment protects public

employees from termination because of their speech on

matters of public concern. Board of County Commissioners,

Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 675

(1996).

The next issue is whether the right in question was

clearly established at the time of the violation. Saucier, 533

U.S. at 201. This inquiry is to be undertaken in light of the

specific context of the case and not as a broad general

proposition. Id. To demonstrate that the law was clearly

established, the plaintiff may point to closely analogous

cases demonstrating that the conduct is unlawful or

demonstrate that the violation is so obvious that a reason-

able state actor would know that what he is doing violates

the Constitution. Morrell v. Mock, 270 F.3d 1090, 1100 (7th

Cir. 2001), cert. denied, 537 U.S. 812 (2002). Officials may

still be on notice that their conduct violates established law

40 No. 02-3405

even in novel factual circumstances, however. Hope v.

Pelzer, 536 U.S. 730, 741 (2002). The Supreme Court has

rejected a requirement that previous cases be “fundamen-

tally similar” before officials can be held to know their

conduct was unlawful. Hope, 536 U.S. at 741. The salient

question is not whether there is a prior case on all fours

with the current claim but whether the state of the law at

the relevant time gave the defendants fair warning that

their treatment of the plaintiff was unconstitutional. Hope,

536 U.S. at 741; Gregorich v. Lund, 54 F.3d 410, 415 (7th

Cir. 1995).

In Gustafson, we analyzed the state of the law as of 1993

in the context of Pickering and Connick, the same context

we face here for conduct occurring in 1997 and 1998. We

stated:

[T]he issue is whether any employer could have thought

it was entitled to punish an employee for speech on a

matter of public concern where the speech caused no

actual disruption of any kind for four months, and

where the employer neither articulates a belief that the

speech has the potential to be disruptive in the future,

nor has evidence to support the reasonableness of such

a belief. We need look no further than Connick to know

that the answer to that question is no. The law to that

extent was clearly established[.]

290 F.3d at 913. See also Delgado, 282 F.3d at 520 (finding

it has been well-established for many years that a public

employer may not retaliate against an employee who

exercises his First Amendment speech rights); Myers, 226

F.3d at 829 (“It was, therefore, clear in June 1996 that

government employees had a First Amendment right to

speak on matters of public concern that must be weighed

against the employer’s right to punish insubordination.”).

The posture of the appeal in Gustafson was post-trial and

the jury had resolved the issues of the credibility of the

No. 02-3405 41

police department’s explanation for its discipline against its

officers. Here we are at the summary judgment stage of the

proceedings, and McGreal need only raise genuine issues of

material fact as to these issues. As we explained above, he

may well be able to show that neither Wood nor Snooks

sincerely believed his speech caused any actual or potential

disruption, especially in light of the lengthy delay between

McGreal’s statements and his suspension. The state of the

law in 1997 and 1998 was clear; employers could not

suspend workers as punishment for disagreeable speech on

matters of public concern unless they truly believed that,

under the Pickering balancing test, their interest in effi-

cient delivery of government services outweighed the

employee’s right to speak. See Delgado, 282 F.3d at 520

(“government efficiency can be equally compromised if

government supervisors can freely pursue retaliation for

speech that is politically sensitive or embarrassing”). At

this stage of the proceedings, because the sincerity of their

belief and the true cause of the suspension are at issue,

Wood and Snooks are not entitled to judgment on the issue

of qualified immunity.

C.

The Village of Alsip contends it may not be held liable for

the acts of Mayor Andrews, Chief Wood or Lt. Snooks

unless McGreal can meet the standards for municipal

liability set by the Supreme Court in Monell v. Department

of Social Servs. of the City of New York, 436 U.S. 658 (1978).

In general, liability for a Section 1983 claim may not be

imposed on a city on a theory of respondeat superior.

McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir.

1995); Baxter by Baxter v. Vigo County School Corp. 26 F.3d

728, 734 (7th Cir. 1994) (superceded by statute on unrelated

point). Rather, “it is when the execution of a government’s

policy or custom, whether made by lawmakers or by those

42 No. 02-3405

whose edicts or acts may fairly be said to represent official

policy, inflicts the injury that the government as an entity

is responsible under § 1983.” Monell, 436 U.S. at 694;

Baxter, 26 F.3d at 734. Both sides agree that there are

three sets of circumstances in which a municipality can be

said to have violated the civil rights of a person because of

its policy:

(1) an express policy that, when enforced, causes a

constitutional deprivation; (2) a widespread practice

that, although not authorized by written law or express

municipal policy, is so permanent and well settled as to

constitute a “custom or usage” with the force of law; or

(3) an allegation that the constitutional injury was

caused by a person with final policymaking authority.

McTigue, 60 F.3d at 382; Baxter, 26 F.3d at 734-35.

McGreal relies entirely on the third scenario to make his

case against the Village of Alsip.

McGreal points to the following admissions made by the

defendants in response to requests to admit as dispositive

of the issue:

In initiating the process to terminate Officer McGreal,

Chief Wood was acting as a municipal policymaker with

final policymaking authority in that regard.

In seeking to force Officer McGreal to undergo psycho-

logical counseling, Chief Wood was the municipal

policymaker with final policymaking authority in that

regard.

Appellant’s Br. at 49. In support of these admissions,

McGreal cites to his Local Rule 56.1 Statement, ¶ 121,

which in turn supposedly cites to Plaintiff’s First Set of

Requests to Admit, ¶¶ 43 and 45. He cites to a portion of

Snooks’ deposition as well. The defendants contend that

McGreal’s assertion that the Village admitted Wood was a

final policymaker in his dealings with McGreal is “a

No. 02-3405 43

complete misrepresentation of the record.” Response Br. at

38. According to the defendants, they admitted only that

Wood was the final decision-maker, not the final

policymaker, in the decision to initiate termination proceed-

ings against McGreal. In support, the defendants cite to

Defendant’s Responses to First Requests to Admit at ¶ 45.

Both of the parties have done this Court a disservice with

their sloppy briefing on this very important issue. First,

when we turn to R. 53, which contains Plaintiff’s Local Rule

56.1 Statement, the page containing the cited paragraph,

¶ 121, is missing from both the official record and from the

copy provided by Plaintiff as an appendix to his brief on

appeal. Second, upon reviewing the Defendants’ Responses

to Plaintiff’s First Requests to Admit, Exhibit G to R. 100,

the actual responses do not fully support either party’s

characterization of the record. Here, instead is what the

elusive answers actually state:

43. In initiating the process to terminate Officer

McGreal, Chief Wood was acting as a municipal

policymaker with final policymaking authority in that

regard.

RESPONSE Admit.

45. In seeking to force Officer McGreal to undergo

psychological counseling, Chief Wood was the final

policymaker with final policymaking authority in that

regard.

RESPONSE Deny.

R. 100, Ex. G., ¶¶ 43 and 45.2 Third, and equally frustrat-

ing, is the absence from the record of that portion of Snooks’

deposition on which McGreal also relies.

2

The plaintiff concedes in his reply brief that the defendants

admitted only Request 43 in discovery but maintains that this

admission alone is sufficient to establish municipal liability.

44 No. 02-3405

In the end, the record tells a conflicted tale. McGreal at

first incorrectly reported that the defendants admitted ¶ 45

of the First Requests to Admit. The Village incorrectly

characterized its admission regarding Chief Wood as

applying only to “decision-making” rather than

“policymaking.” The Village clearly admitted Wood was a

policymaker in some regards but denied it in others. Nor

can the Village claim that McGreal has completely misrep-

resented the record because he has accurately reported at

least one part of the admission. We will hold the Village to

its admission regarding Chief Wood and turn to the cases to

consider whether this admission is adequate to generate a

genuine issue of material fact under the standard set by

Monell and its progeny.

“It is true that a single act or decision of a final

policymaker can establish municipal policy.” Baxter, 26 F.3d

at 735; Pembaur v. City of Cincinnati, 475 U.S. 469, 480

(1986). As a corollary of this point, the plaintiff must first

allege that a defendant is a final policymaker. Baxter, 26

F.3d at 735. Only then can a court proceed to the next

question of whether the single act or single decision of that

defendant constituted municipal policy. Id. Here, of course,

the plaintiff not only alleged that one of the defendants was

the final policymaker in regard to the act in question, but

the defendants actually admitted that this was the case.

The defendants conceded that Chief Wood was acting as a

municipal policymaker with final policymaking authority in

regards to initiating termination proceedings against

McGreal.

[A] government frequently chooses a course of action

tailored to a particular situation and not intended to

control decisions in later situations. If the decision to

adopt that particular course of action is properly made

by that government’s authorized decisionmakers, it

surely represents an act of official government “policy”

as that term is commonly understood. More impor-

No. 02-3405 45

tantly, where action is taken by those who establish

governmental policy, the municipality is equally re-

sponsible whether that action is to be taken only once

or to be taken repeatedly.

Pembaur, 475 U.S. at 481. Under this standard, Wood’s

initiation of termination proceedings against McGreal in

retaliation for McGreal’s public speech is an act attributable

to the municipality because the municipality has conceded

that Wood was acting as a municipal policymaker in that

respect.

Normally we look to state law to determine whether a

§ 1983 defendant is the kind of decision-maker with final

authority whose actions can subject a municipality to

liability. Radic v. Chicago Transit Authority, 73 F.3d 159,

161 (7th Cir. 1996), cert. denied, 517 U.S. 1247 (1996);

Abbott v. Village of Winthrop Harbor, 205 F.3d 976, 982

(7th Cir. 2000). Despite their admission, the defendants in

the instant case now claim that a police chief cannot be a

final policymaker as a matter of Illinois law. They rely on

Auriemma v. Rice, 957 F.2d 397, 399-400 (7th Cir. 1992)

and Horwitz v. Board of Educ. of Avoca School Dist. No. 37,

260 F.3d 602, 619 (7th Cir. 2001), for the proposition that,

under Illinois law, neither a police chief nor a village

president are final policymakers. Neither case supports that

proposition.

Auriemma involved a charge of race discrimination in the

Chicago police department. The Municipal Code of Chicago

expressly bans racial discrimination in the police depart-

ment and grants the chief of police authority only to

administer the department in a manner consistent with the

city ordinances, state law and police board rules and

regulations. We held therefore that a decision by the chief

of police to discriminate on the basis of race would thwart

rather than implement the will of the City. Because the

chief was not the final policymaker under City ordinances,

the City could not be held liable for his actions. 957 F.2d at

46 No. 02-3405

399-401. Here, of course, we are not dealing with the City

of Chicago but rather the Village of Alsip which operates

under its own codes and procedures. The Village’s policies

and ordinances are not part of the record except for the

defendants’ concession that the police chief acted as a

municipal policymaker with final policymaking authority

when he sought to terminate McGreal. Auriemma does not

aid the Village’s argument.

Horwitz does not help the Village either. The plaintiff

there sought to hold a local school board (a subdivision of a

municipality) liable for a discriminatory act by the presi-

dent of the board, a school principal and the district

superintendent. The court noted an absence of even “bare

allegations” from which to string together an argument that

the individual defendants enjoyed final policymaking

authority. Looking to state law, nothing in the Illinois

School Code allowed an inference that any of these individ-

uals had final policymaking authority. 260 F.3d at 619. It

should go without saying that the Illinois School Code does

not control the policy of the Alsip police department, so we

are again perplexed by the defendants’ reliance on this case.

In any case, Alsip’s admission distinguishes McGreal’s case

from Horwitz. In light of the defendants’ admission, Alsip

is not entitled to summary judgment on the issue of munici-

pal liability. See also, Kujawski v. Board of Commissioners

of Bartholomew County, Indiana, 183 F.3d 734, 739 (7th

Cir. 1999).

D.

Snooks argues separately that he is entitled to summary

judgment because of the dearth of evidence on his role in

the events at issue. According to the defendants, at most

Snooks followed the orders of his superiors in any actions

he took regarding McGreal, and cannot be held personally

liable for any harm McGreal suffered as a result. At this

No. 02-3405 47

stage of the litigation, we believe there is enough evidence

of personal involvement by Snooks to keep him in the case.

For example, he was the person who gave McGreal incorrect

information about the disposition of the Taylor DUI, who

demanded that McGreal name the public official allegedly

taking bribes in a gambling cover-up, and who noted on a

file jacket that original copies of police reports were re-

moved to prevent “officer digging.” Yet he is also the person

who interrogated McGreal about potential wrong-doing in

each of these events, even though he knew he had misled

McGreal about the Taylor case, knew that McGreal named

names only when ordered to do so, and knew that McGreal

was telling the truth about missing police reports. A jury

could infer that Snooks was deeply involved in the retalia-

tion against McGreal. It would be premature to grant

judgment in favor of Snooks.

E.

The final count at issue is McGreal’s Illinois statutory

claim under the Mental Health and Developmental Disabili-

ties Confidentiality Act (“Confidentiality Act”). See 740

ILCS 110/1 et seq. Chief Wood ordered McGreal to undergo

an evaluation by Dr. Ostrov, a psychologist hired by the

Alsip police department. At their first meeting, Dr. Ostrov

presented McGreal with a form titled “Consent for Evalua-

tion.” When McGreal balked at signing the consent, Dr.

Ostrov called Snooks who then ordered McGreal to sign the

form. McGreal signed the form with the notation “signed

under order of Lt. Snooks and under duress.” R. 21. The

consent form, in its entirety, provided:

I, Ofcr. James McGreal, agree and understand that Dr.

Eric Ostrov has been asked by Alsip PD to evaluate my

fitness for duty as a to [sic] Alsip PO. I understand that

Alsip PD will pay for this evaluation and that they will

receive a report based on this evaluation that will

48 No. 02-3405

include an opinion about my fitness for duty and

evidence to back that opinion. I understand Dr. Ostrov

is not my psychotherapist and that what I say to him or

communicate to him is not confidential. I understand

that if Dr. Ostrov is called upon to testify regarding this

evaluation, if appropriate, he will do so. I understand I

have a right not to cooperate with this process but that

if I do not do so, that fact will be communicated to Alsip

PD. I further understand that since Alsip PD is the

client of FPA, all data and the report resulting from

this evaluation belongs to them. Accordingly, I waive

any right I may have to know test results, interpreta-

tions made, and access to the original data from which

final judgments have been made.

R. 21.3 McGreal signed the consent, noting the duress, and

Ostrov served as a witness to his signature.

Dr. Ostrov then interviewed McGreal over the course of

three sessions. Ostrov had already been briefed by Wood,

Snooks and the Village attorney in preparation for the

evaluation. Ostrov eventually produced a 21-page report

summarizing his findings on McGreal based on his three

sessions with McGreal and his briefings from Wood, Snooks

and the Village attorney. The report, as we described

earlier, contained a great deal of personal information

about McGreal’s family life, some of it very sensitive. Ostrov

produced the report to Wood, Snooks and the Village

attorney, neglecting to label the report “confidential.” After

this law suit was filed, Wood forwarded the report to

McGreal’s colleagues at the F.O.P., ostensibly in response

to a grievance filed by McGreal. McGreal objected to the

3

We have omitted the letterhead for Forensic Psychology

Associates (“FPA”), Dr. Ostrov’s firm. We have also omitted

certain irrelevant strikeouts and misplaced punctuation for ease

of reading.

No. 02-3405 49

disclosure of the report, questioning the validity of his

consent and also the scope of the information disclosed in

the report. The defendants moved to dismiss McGreal’s

claim for breach of the Mental Health Confidentiality Act,

and the court granted the motion. The court found that

McGreal was not a “recipient” of mental health services as

that term is defined by the Confidentiality Act because he

met with Ostrov only to facilitate Alsip’s ability to evaluate

McGreal’s fitness for duty. On appeal, McGreal contends

that he is a “recipient” under the plain language of the

statute, that his consent was invalid and in any case was

later withdrawn, and that the disclosure far exceeded what

was necessary to determine his fitness for duty. The

defendants maintain that McGreal was not a recipient of

mental health services, that his consent vitiates any claim

he has regarding disclosure of information obtained by

Ostrov, and that public policy requires an exception be

made in the case of police officers being tested for fitness for

duty.

The Confidentiality Act prohibits disclosure of mental

health records and communications except as provided by

the Act. 740 ILCS 110/3(a). The records covered by the

Confidentiality Act include “any record kept by a therapist

or by an agency in the course of providing mental health . . .

service to a recipient concerning the recipient and the

services provided.” 740 ILCS 110/2. Mental health services

include but are not limited to “examination, diagnosis,

evaluation, treatment, training, pharmaceuticals, aftercare,

habilitation or rehabilitation.” 740 ILCS 110/2. A recipient

is a person who is receiving or has received mental health

services. 740 ILCS 110/2. The term “therapist” includes

psychologists, among others. 740 ILCS 110/2. Under the

straightforward terms of the Act, Dr. Ostrov, who is a

psychologist, qualifies as a therapist; his examination,

evaluation and diagnosis of McGreal constitute mental

health services; McGreal is a recipient under the plain

language; and Ostrov’s resulting report is a covered record.

50 No. 02-3405

The Confidentiality Act contains no disclosure exception for

police departments performing mental health examinations

to determine fitness for duty. It does allow for disclosure on

consent, but the consent form used here does not meet the

standards set forth by Illinois law. See 740 ILCS 110/5(b)

(listing what is required for valid consent).

The Illinois Supreme Court notes that the “Confidential-

ity Act is carefully drawn to maintain the confidentiality of

mental health records except in the specific circumstances

explicitly enumerated.” Norskog v. Pfiel, 755 N.E.2d 1, 9

(Ill. 2001) (quoting Sassali v. Rockford Memorial Hospital,

693 N.E.2d 1287 (Ill. App. 2d Dist.1998)).

In each instance where disclosure is allowed under the

Act, the legislature has been careful to restrict disclo-

sure to that which is necessary to accomplish a particu-

lar purpose. Exceptions to the Act are narrowly crafted.

When viewed as whole, the Act constitutes a “strong

statement” by the General Assembly about the impor-

tance of keeping mental health records confidential.

That a high value is placed on privacy is evidenced by

the fact that the privilege afforded a recipient of mental

health treatment continues even after the recipient’s

death.

Norskog, 755 N.E.2d at 10 (internal citations omitted). The

Court also noted that it was in the public interest to

zealously guard against erosion of the confidentiality

provision. Id. Therefore, “anyone seeking the nonconsensual

release of mental health information faces a formidable

challenge and must show that disclosure is authorized by

the Act.” Id.

Consent to disclose, as we have noted, is one of the

exceptions to strict confidentiality under the Act. “Section

5 of the Act makes it clear that a recipient may consent to

disclosure of information for a limited purpose and that any

agency or person who obtains confidential and privileged

No. 02-3405 51

information may not redisclose the information without the

recipient’s specific consent.” Norskog, 755 N.E.2d at 14. The

release of information for a limited purpose under the

consent provision does not operate as a general waiver of

the confidentiality privilege. Id. The Court in Norskog

strictly construed the statutory exceptions to confidentiality

and refused to recognize a “fundamental fairness” exception

under the circumstances of that case. Norskog, 755 N.E.2d

at 14-18.

In tension with the Illinois Supreme Court’s ruling is

Sangirardi v. Village of Stickney, 793 N.E.2d 787 (Ill. App.

1st Dist. 2003). Sangirardi was discharged from his duties

as a Stickney police officer when he refused to obey an order

requiring him to consent to the release of the results of a

mental health “fitness for duty” exam. The chief of police

had ordered the fitness exam based on reports from a

detective, a citizen, a police officer and a sergeant complain-

ing about Sangirardi’s conduct. Sangirardi, 793 N.E.2d at

798. Sangirardi first resisted the exam and then refused to

allow the release of the results to the police chief. After he

was fired for insubordination, he brought an administrative

action challenging his discharge. The Village Board of Fire

and Police Commissioners found that the police chief had

reasonable cause to order the fitness exam and that there

was a strong public interest in the department assuring

that officers have the psychological stability to perform

their duties as police officers. 793 N.E.2d at 794. The Board

upheld the discharge and Sangirardi appealed through the

Illinois courts.

The Court of Appeals noted that, under Illinois law, a

police chief has the authority to order an officer to submit

to a fitness exam:

The authority to order fitness exams is justified by the

unique, almost paramilitary nature of police depart-

ments and the critical importance of police officers to

public health and safety. By necessary implication, the

52 No. 02-3405

police department must have access to the ultimate

fitness determination of such exams in order to deter-

mine whether officers are capable of performing their

duties.

Sangirardi, 793 N.E.2d at 798. See also Haynes v. Police

Board of the City of Chicago, 688 N.E.2d 794, 797-98

(Ill. App. 1st Dist. 1997) (police officer’s refusal to obey

a direct order was not justified by his mistaken belief that

he should not have to take a psychological examination);

Conte v. Horcher, 365 N.E.2d 567, 568-69 (Ill. App. 1st Dist.

1977) (police chief has the power to order a psychiatric

examination of a police officer to determine whether the

officer is able to perform the duties required for the job and

to assure the effective performance of the department). The

court found that the chief’s order that Sangirardi submit to

a fitness exam was based on multiple complaints about the

officer’s conduct. As such, it was a reasonable order. 793

N.E.2d at 798. Because the order to take the exam was

reasonable, then logically, the police chief was entitled to

view the results of the exam. Id. The court distinguished a

number of confidentiality cases on the ground that none

involved the disclosure of officers’ fitness exams to their

superiors. Ultimately, the court ruled, the recipient’s

expectation of privacy is dispositive in determining the

disclosure of mental health information. 793 N.E.2d at 799.

The court rejected Sangirardi’s claim that he retained an

expectation of privacy because he refused to sign the

consent form. The court found that, as a police officer,

Sangirardi had no reasonable expectation that the results

of his fitness exam would be kept confidential from the

police chief because “fitness exams are part and parcel of

the process officers must undergo in order to be hired and

retained.” The court ruled that the Act was not applicable

to the facts presented, where the police chief’s testimony

and order established that he did not compel the release of

Sangirardi’s mental health records, but only the ultimate

fitness for duty recommendation. 793 N.E.2d at 799.

No. 02-3405 53

We believe this ruling is in tension with the Illinois

Supreme Court’s holding in Norskog, which allows for

disclosures only under the narrow exceptions defined by the

statute, but we need not resolve that tension here.4 The

crux of McGreal’s complaint is that the department had no

valid reason to order him to submit to the fitness exam in

the first place. He maintains they were simply trying to

manufacture a reason to fire him in retaliation for his

exercise of his First Amendment rights. Even under

Sangirardi the department would not be entitled to require

a mental health exam for this purpose. Moreover, under

Sangirardi, the defendants were not entitled to disclosure

of anything other than the fitness for duty determination.

They were not entitled under any Illinois law to force the

disclosure of the intimate and irrelevant details of

McGreal’s home life. Finally, McGreal claims that dissemi-

nation of the report was broader than necessary to deter-

mine his fitness for duty and also that the defendants

republished the information without his further consent as

required by the Confidentiality Act. Under these circum-

stances, McGreal is entitled to have a jury hear his claim

and determine whether the defendants reasonably ordered

the exam and whether the disclosure and republication

4

We note that the Court of Appeals could have served the

competing public policy interests in maintaining mental health

confidentiality and ensuring a mentally fit police force by simply

requiring the use of the consent form detailed in the statute at

740 ILCS 110/5. For example, if the officer disobeyed a reasonable

order to submit to a mental health exam and refused to sign a

valid consent to the disclosure necessary to determine fitness for

duty, then the police department would be justified in discharging

the officer. An officer could choose not to consent to disclosure but

could not, in that instance, retain his position as a police officer.

Use of the consent provision would ensure that all parties were

aware of their rights and duties under Illinois law and would not

require an exception outside the statutory scheme.

54 No. 02-3405

exceeded the scope necessary to determine fitness for duty.

Such a claim would be consistent with both Norskog and

Sangirardi. We therefore reverse the district court’s

judgment in favor of the defendants on the Confidentiality

Act claim and remand for a trial on the merits.

III.

In summary, we find that the district court erroneously

granted summary judgment in favor of the defendants on

McGreal’s First Amendment claim and on his Confidential-

ity Act claim. We reverse that judgment and remand for a

trial on these claims consistent with this opinion. Circuit

Rule 36 shall apply on remand.

REVERSED AND REMANDED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—5-10-04