Houskins, Virgean v. Sheahan, Michael F.

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 06-2283, 06-2549 and 06-2575

V IRGEAN H OUSKINS,

Plaintiff-Appellee,

v.

M ICHAEL F. S HEAHAN, Sheriff, The Sheriff of

Cook County, sued in his official capacity,

C OOK C OUNTY and D ONALD K EITH,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 6553—Milton I. Shadur, Judge.

A RGUED N OVEMBER 9, 2007—D ECIDED N OVEMBER 25, 2008

Before B AUER, M ANION and W ILLIAMS, Circuit Judges.

B AUER, Circuit Judge. Social worker Virgean Houskins

brought a civil rights action under 42 U.S.C. § 1983 against

her employer, then-Sheriff Michael Sheahan and Cook

County (collectively the “Sheriff”), alleging that she was

disciplined in retaliation for reporting a fight between

her and Correctional Officer Donald Keith. She further

alleged the Sheriff had a widespread custom or policy

2 Nos. 06-2283, 06-2549 and 06-2575

of retaliating against employees of the Cook County

Department of Corrections (“CCDOC”) who exercised

their right to free speech. Houskins also filed a claim

under Illinois state law for civil assault and battery

against Keith. A jury returned a verdict in favor of

Houskins, awarding damages against the Sheriff and Keith;

these appeals followed. For the reasons set forth in this

opinion, we affirm the judgment against Keith and

reverse the judgment against the Sheriff.

I. BACKGROUND

Beginning in 1990, Houskins was a social worker for

the Sheriff in the Department of Program Services at the

CCDOC. On the morning of September 17, 2001, Houskins

arrived at work and pulled into the parking lot of the

Cook County jail. The lot was full, and while she waited

for a parking space, Houskins chatted with co-worker

Regina Bowers, who was sitting in the car next to

Houskins. Keith pulled into the parking lot shortly there-

after. As Keith drove past her, Houskins thought Keith

was going to take the parking spot she had been waiting

for, and stated, “oh, mother fuck, no he won’t do this.”

Keith overheard Houskins through the open car windows.

Keith took the parking space and Houskins parked her

car in another space nearby. Both exited their cars and

approached one another. A verbal argument ended with

Keith striking Houskins in the face. Bowers was present

for the argument and saw Keith strike Houskins. Two

more correctional officers, Claude Lawrence and Dennis

Calderone, arrived on the scene moments after the inci-

dent, but neither witnessed Keith striking Houskins.

Nos. 06-2283, 06-2549 and 06-2575 3

According to Houskins, Lawrence came over and told

her to “shut the fuck up” and “nobody was going to lose

their job” over the incident; Calderone walked away

from the area.

After the altercation ended, Houskins reported for duty.

On the advice of two lieutenants, she filed a CCDOC

incident report in which she described the attack. Houskins

went to the emergency room at Cermak Health Services,

where doctors examined her, took x-rays, and ordered

her to apply cold packs to her right jaw and take Tylenol

for any pain.

Under the CCDOC General Orders, which set forth

policy, procedure, and requirements of conduct for

CCDOC employees, it was Houskins’s obligation to

report incidents of misconduct immediately to her super-

visor. So, after leaving Cermak, Houskins recounted the

incident to her supervisor, Patricia Tolbert, including her

use of foul language and Keith’s attack. Tolbert took

Houskins, along with Bowers, to the Internal Affairs

Division (“IAD”) to make a complaint against Keith,

Lawrence, and Calderone. Houskins gave her statement

to investigators, repeating the story about her use of

foul language, the argument, Keith’s attack, and Law-

rence’s and Calderone’s responses. IAD began the in-

vestigation shortly thereafter. The day after the incident,

Keith was de-deputized, or stripped of his duties as a

correctional officer, as a result of the complaint Houskins

filed against him.

On the same day she reported the incident to IAD,

Houskins went to the emergency room at the University

of Illinois at Chicago Hospital for head pain and later

4 Nos. 06-2283, 06-2549 and 06-2575

filed a police report, attempting to have Keith arrested

for assault and battery.1 According to Houskins, she also

contacted the Cook County State’s Attorney’s Office in

October and left a message for an assistant state’s attor-

ney regarding criminal charges being filed against

Keith, but no one returned her phone call and she did not

follow up.

On December 14, 2001, the IAD completed its investiga-

tion into the Houskins/Keith incident. IAD Investigator

Gregory Ernst found that the evidence was “inconclusive”

against Keith, Calderone, and Lawrence. However, Ernst

“sustained” the investigation into Houskins’s conduct,

finding that Houskins used obscene language in viola-

tion of General Order 3.8 § III D-1 of the CCDOC Ethics

and Standards of Conduct, which states that employees

must conduct themselves in a professional and ethical

manner, both on and off duty, and “[e]mployees will

refrain from the use of abusive or obscene language,

threats, and coercion.” On January 3, 2002, Tolbert re-

ceived Ernst’s report and recommended that Houskins

receive a three-day suspension.2

1

The police report indicated that Houskins “stated [that the

incident] would be handled internally by [the] county,” however

Houskins denied making this statement to police. Criminal

charges were never filed against Keith.

2

General Order 4.1 applies to internal investigations within

the CCDOC. Section III defines guidelines for “serious miscon-

duct” of CCDOC employees that warrants investigation and

disciplinary action, “[i]nclud[ing] misconduct while an em-

ployee is off duty/outside the institution . . .”. Section (G)(11)

(continued...)

Nos. 06-2283, 06-2549 and 06-2575 5

Ernst also submitted the results of his investigation

for command channel review—an additional review by the

Office of the Inspector General (“OIG”), which oversees

IAD’s investigations. Deputy Inspector Henry Barsch and

Inspector General Joseph Shaughnessy of the OIG re-

viewed the IAD’s investigation and Tolbert’s recommenda-

tion to suspend Houskins for three days. On January 25,

2002, OIG concurred with the findings and penalties

against Houskins, but reversed IAD’s findings with

regard to Keith and Calderone, concluding that, by the

preponderance of the evidence, (1) Keith struck Houskins

in the face, in violation of General Order 4.1 § III (A)(10)

and (A)(17),3 and (2) Calderone failed to take action

during the altercation, in violation of General Order 9.23

§ III(A)(8).4 OIG recommended a suspension of twenty-

nine days for Keith and three days for Calderone. OIG

2

(...continued)

states that when the IAD investigation is classified as “sus-

tained,” the divisional Superintendent/Unit Head may recom-

mend a) written reprimand; b) suspension; or c) severance

from duty.

3

General Order 4.1 § III(A) states “Guidelines for serious

misconduct include, but are not limited to . . . (10) [i]nmate,

employee or visitor abuse . . . (17) [e]ngag[ing] in any

conduct unbecoming an employee of the [CCDOC] which

tends to reflect discredit on the [CCDOC] or [the Sheriff].”

4

General Order 9.23 § III(A)(8) states, in pertinent part, that the

responsibilities of sergeants employed at CCDOC include

“provide fair and equitable supervision standards to person-

nel under their authority, and initiate corrective action when

applicable.”

6 Nos. 06-2283, 06-2549 and 06-2575

forwarded its findings up the chain of command channel

review to Executive Director Ernesto Velasco, and then to

Undersheriff Zelda Whitler; both concurred with the

findings and recommendations in early February 2002.

Houskins received a memo from Tolbert in July 2002,

notifying her of her suspension without pay from July 30

to August 1, 2002. Houskins served the three-day suspen-

sion; eventually Houskins and Keith initiated the

grievance process under their respective Union Collective

Bargaining Agreements. Keith’s suspension was ulti-

mately reduced to one day; Houskins’s suspension was

reduced to a written reprimand and she was reimbursed

for the three-day suspension.

On September 16, 2003, Houskins filed a complaint in

federal district court, alleging a First Amendment viola-

tion against Sheahan in his official capacity and against

Cook County. She claimed that (1) the Sheriff retaliated

against her in violation of her First Amendment rights,

because, as a direct result of her filing a complaint and

police report against Keith, she was charged with a viola-

tion of General Order 3.18 and suspended, and that Keith

was neither disciplined nor reprimanded for striking

Houskins; (2) a policy existed that officers in the CCDOC

abide by a “code of silence” when faced with testifying

against a fellow officer; this custom and policy also meant

that those employees who do not abide by this “code”

(such as Houskins) are subject to retaliatory actions; and

(3) Sheahan employs a policy of selective discipline that

exempts officers with “clout” from reprimands or disci-

pline for misconduct under the General Orders, but

those who lack influence are subject to retaliation.

Nos. 06-2283, 06-2549 and 06-2575 7

Houskins also alleged state law claims of assault and

battery against Keith.

A. District Court Proceedings—The Sheriff

On September 23, 2004, the Sheriff filed a motion for

summary judgment, arguing that it was entitled to judg-

ment as a matter of law because Houskins’s speech re-

garding the disciplinary process at the jail was not a

matter of public concern under the Connick-Pickering test.

The Sheriff also argued that no genuine issue of material

fact existed to prove that either the Sheriff had a policy or

practice of retaliating against employees who exercise

their right to free speech, or engaged in a policy of selective

discipline. The district court denied the motion on

October 4, 2004, without prejudice to its possible renewal

at trial as a Rule 50 motion. That same day, the final pre-

trial order was entered, in which the Sheriff did not

raise the issue of whether Houskins’s speech was constitu-

tionally protected.

At a status hearing on April 7, 2005, counsel for the

Sheriff alerted the court that it had not yet addressed the

issue of whether Houskins’s speech was constitutionally

protected. The court stated that it was unaware that

such an important question remained unanswered and

expressed its frustration that the final pre-trial order did

not contain any language identifying the contested issue.

The court held that the Sheriff had forfeited the argu-

ment because it had not raised the issue in the final pre-

trial order, and therefore it could not include it in

opening or closing statements, nor could it request a

jury instruction on the issue.

8 Nos. 06-2283, 06-2549 and 06-2575

The Sheriff filed a motion to reconsider on April 25,

2005, once again asking the court to make a determina-

tion as a matter of law as to whether Houskins’s speech

was constitutionally protected. The court denied the

motion to reconsider on June 16, 2005, finding that the

final pre-trial order did not properly identify the issue.

The court stated, “You know there is nothing to prevent,

for example, when an issue is to be identified, a final pre-

trial order gets amended on the party’s motion. They say,

‘Look. This is an item that we want to add.’ ” When counsel

for the Sheriff inquired whether they may still raise the

issue in a Rule 50 motion at the close of Houskins’s case,

the court ruled that the issue of whether the speech was

constitutionally protected had not been preserved.

The case went to trial and the following is a summary

of the facts pertinent to our analysis.

Houskins testified that she spoke out about the incident

almost every day to anyone that would listen, and that

after the incident, she saw Keith twice and both times

he told her that “nothing would happen” to him. She

stated that she was treated differently or ignored by

the correctional officers at the jail, and sometime in

2005, she saw Keith at work, and became so upset that she

told her supervisor that she “couldn’t take it” anymore.

She also testified about an incident in 1999, where she

observed a correctional officer beat up an inmate while

another officer watched, and she was not aware of the

officers reporting the incident. (Houskins could not

identify any of the officers by name.) Houskins also

testified to her belief that “a code of silence” existed

Nos. 06-2283, 06-2549 and 06-2575 9

within the Sheriff, because she had observed other

officers violate General Orders in the past, but no officer

fulfilled his or her duty to report incidents. According

to Houskins, profanity was used frequently by employees

at the jail without repercussion.

Houskins’s co-workers Susie Richardson, Regina

Bowers, and Lester Hampton, Jr. took the stand at trial.

Richardson testified that Houskins had complained

when Tolbert gave her a three-day suspension. Richardson

stated that Houskins made it known to everybody in her

department, including Tolbert, that she was not happy

with Tolbert’s decision to discipline her. Richardson

also stated that she too had been subjected to retaliatory

acts from her supervisors, most recently two weeks

before she testified in the current case.

Regina Bowers stated she talked to Houskins about the

incident every day. Lester Hampton, Jr. testified that

Houskins told him the investigation would not be con-

ducted in a fair and objective manner. Hampton also

testified that profanity is part of the culture at the jail, and

that the majority of employees use profanity on a daily

basis without facing discipline.

Investigator Ernst and Deputy Inspector General Barsch

testified about the results of their respective investiga-

tions. Houskins presented evidence, through Barsch, that

OIG maintains a case management system, or “database”

that was developed to track investigations by IAD and the

outcomes of these investigations. The database kept

information such as the name of the accuser, the date the

case was received, an investigation number, the nature of

10 Nos. 06-2283, 06-2549 and 06-2575

the claim (e.g., verbal abuse), and the outcome of the

investigation (e.g., whether the findings were sustained,

inconclusive, exonerated or unfounded), within the time

frame of 1996 to 2003. Houskins used the database to

show that out of more than 2000 investigations, only

twelve employees were charged with verbal abuse, and

that the only two employees actually disciplined for that

offense (one of whom was Houskins) were not officers.

Tolbert testified that when she made the decision to

suspend Houskins for three days, she did not base her

decision on the fact that Houskins had filed an internal

complaint about the incident. Tolbert stated that she

based her decision on Houskins’s past problems with

supervisors, use of unprofessional language on the job (all

of which had been pointed out to Houskins in the past),

and finally, her concern that Houskins’s language had

escalated to the point where someone had been injured.

Tolbert denied that Velasco told her what discipline

to impose on Houskins.

Throughout the trial, counsel for the Sheriff objected to

most of the evidence concerning Houskins’s conversa-

tions with co-workers about the Sheriff’s investigation of

the incident. The court stated that it was aware of the

problem regarding the public concern issue, and although

it had “knocked out a lot of these cases on precisely [the

issue of whether speech was a matter of public concern] . . .

the problem is that this case got generated and presente[d]

in a different way, and [the court could not] undo that.”

Twice during the trial, outside of the presence of the jury,

the court sua sponte raised the speech issue while com-

Nos. 06-2283, 06-2549 and 06-2575 11

menting on how Houskins would be able to prove policy

or practice to establish municipal liability. The court stated,

“[t]he kind of things [pattern or policy] that we are talking

about now would assist enormously a defendant, for

example, in connection with seeking a dispositive

motion on grounds that it failed to meet the first step of

the analysis [related to protected speech].” Another time,

the court stated that it was “troubled” by Houskins’s

presentation and considered releasing the jury to “deal

with this thing as a legal matter.”

At the conclusion of Houskins’s case, the Sheriff moved

for judgment as a matter of law, which the court took

under advisement. At the close of evidence, the Sheriff

stated that “we have our Rule 50 motion of course, and

we will be doing that,” to which the court replied,

“of course.”

On March 3, 2006, the jury returned a verdict against the

Sheriff for $240,000 in compensatory damages, and the

court entered judgment on the verdict on March 8, 2006.

The Sheriff filed a post-judgment renewal of its motion

to enter judgment as a matter of law under Rule 50(b),

arguing that Houskins failed to prove policy, custom or

practice.5 In denying the motion, the court noted that the

Sheriff had failed to renew its Rule 50 motion at the

5

At oral argument, the Sheriff stated that the issue of whether

Houskins’s speech was constitutionally protected was not

included in its renewed post-judgment motion because the

court told the Sheriff before trial not to include the issue in

a Rule 50 motion, due to its failure to preserve it in the final pre-

trial order.

12 Nos. 06-2283, 06-2549 and 06-2575

close of evidence, and deferred to Houskins’s response to

the Rule 50(b) motion for the substance of his ruling. The

Sheriff and Keith filed these timely appeals.

II. DISCUSSION

A. The Sheriff

On appeal, the Sheriff argues that the Houskins’s speech

was not a matter of public concern under Garcetti v.

Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006),

because Houskins was a public employee speaking pursu-

ant to official job duties, and therefore the speech was not

protected under the First Amendment. The Sheriff main-

tains that the issue of whether speech is protected is a

matter of law that the district court failed to address, and

therefore the court erred in denying its motion for sum-

mary judgment. The Sheriff also argues that the jury

verdict imposing municipal liability under Monell cannot

stand, where no final policymaking official caused

Houskins’s alleged injury, and the jury did not have a

legally sufficient evidentiary basis to conclude that

Houskins’s alleged constitutional injury resulted from

widespread customs within the Sheriff’s Department.

Before we reach the Sheriff’s arguments, we must clear

a few procedural hurdles. The Sheriff requests that we

review the district court’s denial of its motion for sum-

mary judgment; Houskins responds that the denial of

this motion is unreviewable on appeal. Further, Houskins

believes that the Sheriff has waived the issue of whether

Houskins’s speech was constitutionally protected, because

Nos. 06-2283, 06-2549 and 06-2575 13

the Sheriff’s renewed Rule 50(b) motion—the final decision

creating jurisdiction for this appeal—only preserved

the issue of whether there was sufficient evidence of a

practice or custom of retaliation to send the issue to the

jury, and the Sheriff failed to move for judgment as a

matter of law on the issue of constitutionally protected

speech.

Generally after a trial on the merits, we will not review

the district court’s earlier denial of a motion for sum-

mary judgment that is based on the sufficiency of the

evidence. Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714,

718-19 (7th Cir. 2003). In Chemetall, we held that we follow

this rule because a denial of summary judgment is a

prediction that the evidence will be sufficient to support a

verdict in favor of the nonmovant. Id. at 718. Once the

trial has taken place, our focus is on the evidence

actually admitted and not on the earlier summary judg-

ment record. “After trial, the merits should be judged in

relation to the fully-developed record emerging from that

trial [and] [w]e will not at that point step back in time to

determine whether a different judgment may have been

warranted on the record at summary judgment.” Id. at 718-

19 (citing Watson v. Amedco Steel, Inc., 29 F.3d 274, 278 (7th

Cir. 1994)). Therefore, in order to preserve for appeal a

challenge to the sufficiency of the evidence, the chal-

lenge must be raised in a Rule 50(a) motion for judg-

ment as a matter of law before the case is submitted to

the jury. Chemtall, 320 F.3d at 719.

However, when, as in this case, the court’s denial of

summary judgment is not based on the adequacy of the

evidence, the justification does not apply. Id. (reviewing

14 Nos. 06-2283, 06-2549 and 06-2575

a district court’s denial of a motion for summary judg-

ment, notwithstanding the party’s failure to raise it in a

motion for judgment as a matter of law at trial, where

the motion raised legal issues other than the sufficiency

of the evidence); see also Fuesting v. Zimmer, 448 F.3d 936,

941 (7th Cir. 2006) (noting that if there are errors at trial

duly objected to, that deal with matters other than suffi-

ciency of the evidence, they may be raised on appeal even

though there had not been either a renewed motion

for judgment as a matter of law or a motion for a

new trial) (citing 9A CHARLES ALAN WRIGHT AND

ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCE-

DURE § 2540 (2d ed. 1995)). While we owe deference to

the jury’s resolution of the contested factual issues, the

determination of whether speech is constitutionally

protected is a question of law for the court. Connick v.

Myers, 461 U.S. 138, 150 n. 10, 103 S.Ct. 1684, 75 L.Ed.2d 708

(1983); Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir. 2007)

(Spiegla II) (inquiry into protected status of speech is a

matter of law, not of fact) (citing Connick, 461 U.S. at 148

n. 7, 103 S.Ct. 1684). Further, including the issue of law

in a Rule 50 motion would defeat its purpose, which is to

challenge the sufficiency of the evidence rather than the

propriety of questions of law. See Winters v. Fru-Con Inc.,

498 F.3d 734, 745-46 (7th Cir. 2007) (“Under Rule 50, a

court should grant judgment as a matter of law when a

party has been fully heard on an issue and there is no

legally sufficient evidentiary basis for a reasonable jury

to find for that party on that issue.”). By raising the legal

issue in its motion for summary judgment, as well as by

subsequent motions and objections throughout trial, the

Sheriff sufficiently preserved the issue for our review.

Nos. 06-2283, 06-2549 and 06-2575 15

Houskins also argues that the Sheriff failed to raise

the issue in the final pre-trial order, thus barring our

review. Nothing in the Federal Rules of Civil Procedure,

however, tells attorneys that, in order to preserve issues

for appeal, they must insert into the final pre-trial order

contentions that have already been rejected by the judge.

Calderon v. Witvoet, 999 F.2d 1101, 1108 (7th Cir. 1993)

(holding that defendants did not waive a statute of limita-

tions defense by failing to include it in a pre-trial order

because the district court had already ruled against the

defendants on that issue in their answer to the com-

plaint and in their opposition to the plaintiffs’ motion

for summary judgment). We therefore hold that the Sher-

iff’s failure to include the issue of protected speech in

the final pre-trial order is not fatal to its claims on appeal.

The issue of whether Houskins’s speech was constitution-

ally protected is a matter of law that the district court

failed to address, and the issue was sufficiently raised

in the Sheriff’s motion for summary judgment. We now

turn to the merits.

1. The Garcetti Issue

“[T]he First Amendment protects a public employee’s

right, in certain circumstances, to speak as a citizen ad-

dressing matters of public concern.” Morales v. Jones, 494

F.3d 590, 595 (7th Cir. 2006). A § 1983 claim that alleges a

defendant retaliated in response to a plaintiff’s proper

exercise of her First Amendment rights must satisfy a

three-step test in order to survive summary judgment.

Phelan v. Cook County, 463 F.3d 773, 790 (7th Cir. 2006). The

16 Nos. 06-2283, 06-2549 and 06-2575

first step is assessing whether the plaintiff’s speech is

constitutionally protected. Id. Next, the court must assess

whether the plaintiff has demonstrated that the alleged

retaliatory activity was motivated by the constitutionally-

protected speech. Id. Finally, if the plaintiff satisfies the

first two steps, the court must assess whether the defen-

dant has demonstrated that it would have taken the

same action irrespective of the plaintiff’s speech. Id.

In order to determine the first step, courts usually

referred to the Connick-Pickering test—whether the em-

ployee spoke as a citizen on a matter of public concern,

and if so, her interest as a citizen in commenting on the

matter of public concern outweighed the State’s interest

in promoting effective and efficient public service. Spiegla

II, 481 F.3d at 965. The Supreme Court in Garcetti pro-

vided further guidance as to when a public employee can

be considered, for First Amendment purposes, to be

speaking as a citizen. The Court held that “when public

employees make statements pursuant to their official

duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not

insulate their communications from employer discipline.”

Garcetti, 547 U.S. at 421, 126 S.Ct. 1951 (emphasis added).

Therefore, Garcetti (issued after the district court pro-

ceedings ended in this case) requires courts to first decide

whether a plaintiff was speaking “as a citizen” or as part

of her public job, before asking whether the subject-matter

of particular speech is a topic of public concern. Mills v.

City of Evansville, Indiana, 452 F.3d 646, 648 (7th Cir. 2006)

(citing Garcetti, 547 U.S. at 421, 126 S.Ct. 1951). Determining

the official duties of a public employee requires a practical

inquiry into what duties the employee is expected to

Nos. 06-2283, 06-2549 and 06-2575 17

perform, and is not limited to the formal job description.

Vose v. Kliment, 506 F.3d 565, 569 (7th Cir. 2007) (citing

Garcetti, 547 U.S. at 425; 126 S.Ct. 1951). While “[t]he fact

that an employee has a personal stake in the subject

matter of the speech does not necessarily remove the

speech from the scope of public concern,” Phelan, 463

F.3d at 791 (quoting Button v. Kibby-Brown, 146 F.3d 526,

529 (7th Cir. 1998)), the “public concern” element must

relate to a community concern and is not satisfied by

“merely a personal grievance of interest only to the em-

ployee.” Sullivan Ramirez, 360 F.3d 692, 699 (7th Cir. 2004)

(citation omitted). We review de novo whether Houskins’s

statements qualify for protection under Garcetti. Callahan

v. Fermon, 526 F.3d 1040, 1044 (7th Cir. 2008).

Like the defendant in Spiegla II, the Sheriff did not have

the benefit of making a proper Garcetti argument, in that

the motion was filed two years before Garcetti. See Spiegla

II, 481 F.3d at 964. The Sheriff did, however, make a

Garcetti-type argument in their motion for summary

judgment, arguing that, under Connick and Pickering,

Houskins’s “statement/conduct and CCDOC’s response

are not a matter of public concern; rather it is a matter

of employer housekeeping matters,” and “while Plaintiff’s

grievances are of a private concern and important to her;

however, they are not of a public concern which invoke

the protections of the First Amendment.” We find this

sufficient to preserve the issue and consider the

Sheriff’s argument that Houskins’s speech was not pro-

tected under the First Amendment because it was made

pursuant to her official duties as an employee of the

Sheriff.

18 Nos. 06-2283, 06-2549 and 06-2575

Houskins’s complaint sets forth two different

instances in which she attempted to speak out on matters

of public concern and was subsequently disciplined by

the Sheriff as a direct result of that speech. Houskins

complained that as a direct result of the internal com-

plaint and the police report she filed against Keith, she

was charged with a violation of the General Orders.

We first address the internal complaint made by

Houskins, which we conclude is an obvious form of speech

m ad e p urs ua nt to official duties under the

Garcetti standard; it would require mental gymnastics to

see it otherwise. “Restricting speech that owes its

existence to a public employee’s professional responsibili-

ties does not infringe any liberties the employee might

have enjoyed as a private citizen. It simply reflects the

exercise of employer control over what the employer

itself has commissioned or created.” Garcetti, 547 U.S. at

421-22, 126 S.Ct. 1951; see e.g., Sigsworth v. City of Aurora,

Illinois, 487 F.3d 506, 510-11 (7th Cir. 2007) (finding that a

detective’s report on suspicions of misconduct within

the police department were made within his capacity as

an investigator and a task force member, and therefore

he did not speak as a citizen on a matter of public con-

cern); Spiegla II, 481 F.3d at 965-66 (finding that a plain-

tiff’s report of fellow officers’ suspicious activity was

made pursuant to the plaintiff’s responsibility as a

prison correctional officer to inform her superiors of a

possible breach in prison search policy); Mills, 452 F.3d

at 648 (holding that a police sergeant’s vocal criticisms

about her boss’s personnel decision were made in her

capacity as a public employee contributing to the forma-

Nos. 06-2283, 06-2549 and 06-2575 19

tion and execution of official policy). Almost immediately

after the incident in the parking lot, Houskins filed the

complaint with IAD, fulfilling her responsibility as a

CCDOC employee to report incidents of misconduct

immediately to her supervisor, pursuant to the General

Orders.6 Houskins was clearly expected to report the

incident under the General Orders, and therefore she

was speaking as part of her job as an employee of the

Sheriff, and not as a citizen. See id. As such, she does not

enjoy First Amendment protection of that speech.

We turn now to the police report. As we mentioned

earlier, the critical inquiry under Garcetti is whether

Houskins engaged in the relevant speech pursuant to

her official duties. Houskins’s statements to the police

were not made pursuant to her job, as the report was not

generated in the normal course of her duties and most

likely was similar to reports filed by citizens every day.

See Garcetti, 547 U.S. at 422, 126 S.Ct. 1951(citing Pickering

v. Board of Ed. of Township High School Dist. 205, Will Cty.,

391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)); see also

Frietag v. Ayers, 468 F.3d 528, 545 (9th Cir. 2006) (emphasiz-

6

General Order 3.8 § III (G) states that “[i]t shall be the respon-

sibility of every employee to immediately report to their

divisional Superintendent/Unit Head and the department

Internal Investigations Unit verbally and in writing, any fact or

situation which may give rise to or be construed as corrupt,

illegal or unethical behavior and/or possible conflict of interest.

This shall include, but not be limited to, reporting anything

which could impair the employee’s performance of their

duties in a fair and impartial manner.”

20 Nos. 06-2283, 06-2549 and 06-2575

ing that the “right to complain both to an elected public

official and to an independent state agency is guaranteed

to any citizen in a democratic society regardless of his

status as a public employee.”).

Houskins was not, however, speaking about matters

of public concern. Speech that serves a private or personal

interest, as opposed to a public one, does not satisfy the

standards for First Amendment protections. Boyce v.

Andrew, 510 F.3d 1333, 1344 (11th Cir. 2007) (“The relevant

inquiry is not whether the public would be interested

in the topic of the speech at issue but rather is whether

the purpose of the plaintiff’s speech was to raise issues of

public concern.”) (internal quotations and citation omit-

ted). The police report was nothing more than Houskins’s

personal grievance against Keith in order to have him

arrested for striking her. She reported the incident in the

police report as a simple “battery” and she related to an

officer that Keith struck her in the face and then left the

scene. Houskins’s statements in the report were tied to

a personal employment dispute; there is nothing in the

record to indicate that Houskins’s purpose in filing the

police report was to bring to light any wrongdoing by

the Sheriff, e.g., to raise public awareness about the safety

of the employees within the CCDOC or to uncover a

policy of selective discipline or clout within the CCDOC.

See Connick, 461 U.S. at 148, 103 S.Ct. 1684 (emphasizing

that statements not a matter of public concern where

employee was not seeking to inform the public that

government agency was not discharging its responsibil-

ities and was not bringing to light actual or potential

wrongdoing or breach of the public trust on the part of

Nos. 06-2283, 06-2549 and 06-2575 21

another public official); Glass v. Dachel, 2 F.3d 733, 741 (7th

Cir. 1993) (noting that “matters of public concern do

include speech aimed at uncovering wrongdoing or

breaches of the public trust”).

Because we are reviewing the denial of summary judg-

ment, we need not consider Houskins’s theory (that

emerged throughout the trial) that she was allegedly

retaliated against for conversing with her co-workers;

nevertheless, we briefly address the contention. Houskins

does not lose her right to speak as a citizen simply because

she initiated the conversations at work or because they

related to the subject matter of her employment. “Many

citizens do much of their talking inside their respective

workplaces, and it would not serve the goal of treating

public employees like ‘any member of the general public,’

to hold that all speech within the office is automatically

exposed to restriction.” Garcetti, 547 U.S. at 420-21, 126

S.Ct. 1951 (internal citation omitted). However, “we have

cautioned that if every facet of internal operations within

a governmental agency were of public concern, and

therefore any employee complaint or comment upon

such matters constitutionally protected, no escape from

judicial oversight of every governmental activity down to

the smallest minutia would be possible.” Kuchenreuther

v. City of Milwaukee, 221 F.3d 967, 974-75 (7th Cir. 2000).

Once again, Houskins’s statements to her co-workers ad-

dressed personal matters—her dissatisfaction with the

22 Nos. 06-2283, 06-2549 and 06-2575

investigation.7 See e.g., Connick, 461 U.S. at 149, 103 S.Ct.

1684 (holding that an assistant district attorney’s com-

plaints relating to intra-office policies, office morale, and

grievance procedures were “internal office affairs,” not

speech on matters of public concern, and thereby it was

not entitled to First Amendment protection).

After careful review of the summary judgment record,

we find that Houskins’s speech was not protected by the

First Amendment and the Sheriff was entitled to a judg-

ment as a matter of law under Fed. R. Civ. P. 56(c). Accord-

ingly, we hold that the Sheriff did not violate Houskins’s

constitutional rights, and the court erred in denying the

Sheriff’s motion for summary judgment.8

7

Even if we reviewed the evidence after a denial of a motion for

judgment as a matter of law, the record is devoid of any

evidence that the Sheriff retaliated against Houskins for her

conversations with co-workers. Indeed, Richardson’s testimony

indicated that Houskins complained about her three-day

suspension, therefore her suspension could not be a direct

result of those conversations. Further, there was not a scintilla

of evidence that her other complaints to co-workers about

the manner of the investigation were even acknowledged or

heard by her superiors at CCDOC.

8

Houskins raised the issue during oral argument that our

review of the denial of summary judgment would prejudice her,

because she did not have the opportunity to file a response to

the motion before the court denied it without prejudice. How-

ever we cannot think of any conceivable way that Houskins

could have presented evidence to refute the fact that her

(continued...)

Nos. 06-2283, 06-2549 and 06-2575 23

2. Monell

The Sheriff also challenges the district court’s denial of

its Rule 50(b) motion, arguing that no final policymaking

official caused Houskins’s alleged injury and there was

insufficient evidence to conclude that the Sheriff had a

policy of retaliating against protected speech. We review a

district court’s denial of judgment as a matter of law de

novo. Filipovich v. K & R Express Sys., Inc., 391 F.3d 859, 863

(7th Cir. 2004). “Our job is to assure that the jury had a

legally sufficient evidentiary basis for its verdict.” Id.

“Unlike our review of a summary judgment motion,

however, review of a Rule 50 motion proceeds on the

basis of the evidence the jury actually had before it. We

will overturn a jury verdict only if, after reviewing the

evidence, it is clear that the plaintiff failed to present

enough evidence to support her claim.” Id.

“While a municipality is not vicariously liable under

§ 1983 for the acts of its employees, a constitutional

deprivation may be attributable to a municipality ‘when

execution of a government’s policy or custom . . . inflicts

the injury.’ ” Montano v. City of Chicago, 535 F.3d 558, 570

(7th Cir. 2008) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018,

and Schlessinger v. Salimes, 100 F.3d 519, 522 (7th Cir. 1996));

Eversole v. Steele, 59 F.3d 710, 715 (7th Cir. 1995)

(“[M]unicipalities are answerable only for their own

decisions and policies; they are not vicariously liable for

8

(...continued)

speech, as alleged in the complaint, was not protected under

the First Amendment.

24 Nos. 06-2283, 06-2549 and 06-2575

the constitutional torts of their agents.”). “A local govern-

ment unit’s unconstitutional policy or custom can be

shown by: (1) an express policy causing the loss when

enforced; (2) a widespread practice constituting a ‘custom

or usage’ causing the loss; or (3) a person with final

policymaking authority causing the loss.” Walker v.

Sheahan, 526 F.3d 973, 977 (7th Cir. 2008).

However, as we found above, Houskins failed to estab-

lish that she was deprived of a constitutional right, where

her speech was not constitutionally protected; therefore

her claims that the Sheriff has a policy of retaliation and

selective discipline fail.9 See King v. East St. Louis School

Dist. 189, 496 F.3d 812, 817 (7th Cir. 2007) (“It is well

established that there can be no municipal liability based

on an official policy under Monell if the policy did not

result in a violation of [a plaintiff’s] constitutional rights”);

Alexander v. City of South Bend, 433 F.3d 550, 557 (7th Cir.

2006) (finding that a municipality defendant cannot be

liable under Monell for a policy or custom of inadequately

training and supervising its police officers, unless the

defendant violated a constitutional guarantee); Aguilera

v. Baca, 510 F.3d 1161, 1167, 1174 (9th Cir. 2007) (noting

9

We also note that Houskins failed to present sufficient

evidence that the Sheriff retaliated against her for using profan-

ity, when Keith was in fact disciplined for his actions on that

day. Shortly after Houskins filed a complaint against him,

Keith was de-deputized. While initially Keith was not repri-

manded for the incident in the parking lot, a command-channel

review of the investigation decided Keith was responsible

and suspended him for 29 days.

Nos. 06-2283, 06-2549 and 06-2575 25

that if no constitutional violation occurred, the court need

not consider qualified immunity or a claim brought

pursuant to Monell); Wilson v. Morgan, 477 F.3d 326, 340

(6th Cir. 2007) (noting that if a jury found no constitu-

tional violation by individual defendants, a county could

not have been found liable under Monell for an allegedly

unconstitutional custom or policy); Segal v. City of New

York, 459 F.3d 207, 219 (2d Cir. 2006) (“[B]ecause the

district court properly found no underlying constitutional

violation, its decision not to address the municipal defen-

dants’ liability under Monell was entirely correct.”) (citing

Monell, 436 U.S. at 694, 98 S.Ct. 2018 (involving a policy

that was “the moving force of the constitutional violation”)

and City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103

L.Ed.2d 412 (1989) (involving a failure to train municipal

employees that led to the constitutional injury)); Hannah

v. City of Overland, Mo., 795 F.2d 1385, 1392 n.5 (8th Cir.

1986) (“[S]ince the jury found no constitutional violations,

we need not decide whether the actions taken by . . . police

officers were pursuant to official municipal policy or

custom, as required under Monell . . . in order to impose

liability on a municipality.”).

B. Keith

Counts II and III of Houskins’s complaint sought dam-

ages from Keith for assault and battery. At the April 11,

2005 status hearing, Keith moved to sever his case from

the Sheriff’s; the district court denied the motion. The

court also denied Keith’s second motion to sever on May 2,

2005, stating that Keith had forfeited the issue by failing

26 Nos. 06-2283, 06-2549 and 06-2575

to object to the final pre-trial order, and that any exhibits

relevant to Houskins’s claims against the Sheriff and not

Keith would be subject to limiting instructions to the

jury. At trial, Keith testified on his own behalf, stating that

he did not hit Houskins because he does not “disrespect

women,” and that Houskins was in fact the instigator. The

jury believed differently and found him liable on both

counts. Houskins was awarded $10,000 in compensatory

damages and $50,000 in punitive damages against Keith.

On March 13, 2006, Keith filed a motion to set aside the

verdict or to grant a new trial, which was denied by the

district court on May 12, 2006.

On appeal, Keith argues that (1) the district court erred

in exercising supplemental jurisdiction over the state law

assault and battery claims against him; (2) the district

court erred by denying Keith’s motion to sever the trial;

(3) the district court judge made comments throughout the

trial that denied him a fair trial; and (4) the punitive

damage award of $50,000 was excessive. We shall briefly

address each argument in turn, but before doing so, we

note that Keith failed to preserve other arguments for

appeal. Keith complains that the jury instructions were

erroneous, however he failed to challenge the instruc-

tions below, which constitutes waiver of that challenge

and precludes appellate review. Chestnut v. Hall, 284

F.3d 816, 819-20 (7th Cir. 2002) (emphasizing that Federal

Rule of Civil Procedure 51 “requires not only that objec-

tions to jury instructions be made in a timely fashion

and on the record, but also with sufficient specificity to

apprise the district court of the legal and factual basis

for any perceived defect” and “unlike in a criminal trial,

Nos. 06-2283, 06-2549 and 06-2575 27

there is no plain error analysis in a civil trial.”). In addition,

Keith challenges statements made during Houskins’s

closing argument, arguing that the comments erroneously

tainted him with the Sheriff’s wrongdoing, and thus

prevented him from receiving a fair trial. However,

again, Keith has waived this argument because he failed

to object these statements at the time they were made, thus

failing to preserve the argument on appeal. See Soltys v.

Costello, 520 F.3d 737, 745 (7th Cir. 2008).

We now turn to Keith’s challenge that the district court

erred in asserting supplemental jurisdiction under 28

U.S.C. § 1367 over the state assault and battery claims

against him, because there was no connection between

those state claims and the federal claim against the

Sheriff under § 1983. We review a district court’s supple-

mental jurisdiction ruling under 28 U.S.C. § 1367(a) de novo.

Groce v. Eli Lilly & Co., 193 F.3d 496, 499 (7th Cir. 1999).

Article III jurisdiction under § 1367(a) must be examined

even if raised for the first time on appeal, as opposed to

the discretionary exercise of supplemental jurisdiction by

the court under § 1367(c), which is waived if not raised

in the district court. See International College of Surgeons v.

City of Chicago,153 F.3d 356, 366 (7th Cir. 1998).

A district court has supplemental jurisdiction over the

state claims against Keith pursuant to § 1367(a) “so long as

they ‘derive from a common nucleus of operative fact’ with

the original federal claims.” Wisconsin v. Ho-Chunk

Nation, 512 F.3d 921, 936 (7th Cir. 2008). A loose factual

connection is generally sufficient. Baer v. First Options of

Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995). Keith

28 Nos. 06-2283, 06-2549 and 06-2575

contends that Houskins’s claim against Keith is a

“factually discrete argument over a parking space which

resulted in [Houskins’s] claim for personal injuries.” The

state claims brought by Houskins pertained to the same

set of circumstances at issue in the federal claim. The crux

of Houskins’s federal claim was that she was disciplined

in retaliation for filing a grievance and police report

against Keith, stemming from Keith’s assault on her in

the parking lot, which was the crux of the state law claim.

Moreover, in order to decide whether the Sheriff’s

internal investigation was legitimate, the jury needed to

consider Keith’s assault on Houskins and the subse-

quent discipline of both Keith and Houskins. The district

court properly asserted supplemental jurisdiction.

Next, Keith argues that under Fed. R. Civ. P. 42(b), the

court erred in denying the motion to sever his trial from

the Sheriff. Keith believes that he was subjected to sub-

stantial prejudice, when it was alleged during trial that

Keith was intimately connected with the Sheriff’s policy

through “clout” or “influence.” Keith questions whether

the jury punished Keith for the assault and battery or for

his alleged association with an unproven ability to influ-

ence the Sheriff not to punish him for the assault and

battery. Houskins’s brief fails to respond to this argument.

The ultimate decision to order a separate trial under

Rule 42(b) is at the court’s discretion and will be over-

turned only upon a clear showing of abuse. Housman v.

United States Aviation Underwriters, 171 F.3d 1117, 1121

(7th Cir. 1999). Rule 42(b) provides for separate trials

where the efficiency of a consolidated trial is outweighed

Nos. 06-2283, 06-2549 and 06-2575 29

by its potential prejudice to the litigants. The court must

balance considerations of convenience, economy, expedi-

tion, and prejudice, depending on the peculiar facts and

circumstances of each case.

We cannot say that the district court abused its discretion

in finding that Keith’s motion was “empty of merit”;

clearly there was an overlap in the facts, evidence, and

witnesses required for Houskins’s claims against Keith

and the Sheriff. Further, the court gave limiting instruc-

tions to the jury, stating “[the jury] should be aware that

[it] ha[s] to give separate consideration to each claim and

to each party in the case. There are two defendants, but it

doesn’t follow that if one is liable the other is also liable . . .

[y]ou look at each one.” Later, the court reminded the

jury that “[e]ach defendant . . . must be considered sepa-

rately.” The Supreme Court has noted that our trial system

“relies upon the ability of a jury to follow instructions.”

Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99

L.Ed. 101 (1954). In the end, Keith has failed to demon-

strate any prejudice.

Keith also maintains that comments made by the

district court judge denied him a fair trial. Specifically,

Keith argues that the judge overruled objections by his

counsel in a sarcastic manner in the presence of the jury,

and he believes the jury was biased toward Houskins as

a result of the judge’s comments. We have considered all

of the judge’s statements that Keith has mentioned on

appeal, and find any argument of bias to be without merit.

The judge’s admonitions to Keith’s counsel about his

method of questioning on cross-examination, as well as

30 Nos. 06-2283, 06-2549 and 06-2575

his improper objections, were within his mandate as a

federal trial judge. Even if the comments were made with

obvious frustration in front of the jury, they “do not

indicate any bias against [Keith], but a legitimate

concern for the manner and mode of the presentation of

evidence.” M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d

1404, 1409 (7th Cir. 1991); Fed. R. Evid. 403, 611.

Finally, Keith appeals the jury’s award of punitive

damages, claiming the district court erred by refusing to

reduce the $50,000 punitive damage award against Keith

or grant a new trial on the issue of damages. Keith ad-

vances many new arguments regarding the punitive

damage award on appeal, however we only address the

arguments he raised below. See Belom v. National Futures

Ass’n, 284 F.3d 795, 799 (7th Cir. 2002). We review the

district court’s decision not to grant a remittitur or a new

trial on damages for an abuse of discretion. Farfaras v.

Citizens Bank and Trust of Chicago, 433 F.3d 558, 566 (7th

Cir. 2006). While “it is inevitable that the specific

amount of punitive damages awarded whether by a judge

or by a jury will be arbitrary . . . [t]he proper judicial

function is to police a range, not a point.” Mathias v. Accor

Economy Lodging, Inc., 347 F.3d 672, 678 (7th Cir. 2003). The

gist of Keith’s argument in the district court was that the

damages were excessive in light of the evidence, and the

jury may have been confused as to how to assess the

damages in light of the fact that Houskins asked the

jury for $5,000 in damages for the battery. The district

court did not abuse its discretion in finding that Keith’s

challenge to the award was essentially that the jury

should have believed his testimony over Houskins’s and

Nos. 06-2283, 06-2549 and 06-2575 31

the other witnesses that testified against Keith. In addition,

“the jury is entitled to disregard the amount of damages

requested by a party, especially when evidence is intro-

duced from which jurors could draw their own conclu-

sions.” Carter v. Chicago Police Officers, 165 F.3d 1071,

1082 (7th Cir. 1998).

III. CONCLUSION

For the foregoing reasons, we A FFIRM the judgment and

award against Keith. The issue of whether Houskins’s

speech was constitutionally protected was a matter of

law that the district court failed to address, and because

we find that Houskins was speaking as an employee of

the Sheriff and about personal grievances, we conclude

that the district court erred in denying the Sheriff’s motion

for summary judgment. We also find that Houskins’s

Monell claim necessarily fails because Houskins’s con-

stitutional rights were not violated. Accordingly,

the judgment of the district court against the Sheriff is

R EVERSED, and the case is R EMANDED to the district court

with instructions to enter judgment for the Sheriff.

11-25-08