Sandra Valentino v. Village of South Chicago Heigh

In the

United States Court of Appeals

For the Seventh Circuit

No. 06-3882

S ANDRA L. V ALENTINO,

Plaintiff-Appellant,

v.

V ILLAGE OF S OUTH C HICAGO H EIGHTS, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CV 2373—William J. Hibbler, Judge.

A RGUED M AY 12, 2008—D ECIDED JULY 30, 2009

Before R OVNER, E VANS, and W ILLIAMS, Circuit Judges.

W ILLIAMS, Circuit Judge. In 2001, nepotism was alive

and well in the Village of South Chicago Heights. Its small

municipal government employed at least six members of

its mayor’s extended family, and several of his friends and

campaign supporters. When Sandra Valentino allegedly

discovered that the Village was paying several of these

employees for hours that they did not actually work, she

2 No. 06-3882

discussed the situation with the future head of Citizens

Against Corruption, William Bramanti. Bramanti sent a

letter to the citizens of the Village detailing this alleged

ghost payrolling and otherwise criticizing Mayor David

Owen. Coincidentally, the next business day, Village

Administrator Paul Petersen surreptitiously searched

Valentino’s desk and discovered that she had been photo-

copying the office’s employee sign-in sheets. Later that

day, on the say-so of Mayor Owen, Petersen terminated

Valentino’s employment.

Valentino brought claims against Owen, Petersen, and

the Village for First Amendment retaliation in violation

of 42 U.S.C. § 1983 and for retaliatory discharge under

Illinois law. Although the district court found that

Valentino had stated a prima facie case for retaliation, it

granted summary judgment for Defendants because it

concluded that they had put forth a lawful, plausible

reason for terminating Valentino, which she could not

prove was pretextual. The district court also found that

the Village was immune to Valentino’s Illinois tort claim

under section 2-201 of the Illinois Tort Immunity Act.

We agree with the district court that Valentino was

speaking on a matter of public concern and that she

stated a prima facie case for retaliation. However, we

find that she has proffered sufficient evidence to cast

serious doubt on the legitimacy of Defendants’ stated

reason for terminating her, such that a reasonable jury

could conclude that it was a mere pretext for firing her

for speaking out against the purported ghost payrolling.

Further, we find that the district court erred in applying

No. 06-3882 3

section 2-201 of the Illinois Tort Immunity Act because

it failed to consider that in order to be immune under

this section, the alleged unlawful act must be a “policy

decision.” For these reasons, we reverse the district

court’s grant of summary judgment to Defendants.

I. BACKGROUND

Sandra Valentino began working as a part-time

secretary in the Village of South Chicago Heights’

building department in 1989. From 1995 until 1997, she

worked under William P. Bramanti, a building inspector

with the Village. In 1997, the Village transferred her to

the water department, where she performed various ad-

ministrative tasks.

In November 2001, the Village hired Joe Minotti as a

water inspector. Minotti allegedly told Valentino that he

was hired because he was a “vote getter” for Defendant

Mayor David Owen and an active supporter of his cam-

paign for office. Valentino also allegedly observed that

Minotti failed to send certain citizens appropriate

water bills, failed to shut off their water in a timely man-

ner, and fraudulently handled the purchase of his new

home. After Valentino presented Minotti with a list of

those water accounts that she believed he improperly

handled, and complained about his actions to Mayor

Owen, several Village Trustees, and Defendant Paul

Petersen, Village Administrator, both Minotti and

Valentino received reprimands.

Her concern about Minotti, whom the Village hired

without prior public works experience, caused Valentino

4 No. 06-3882

to become skeptical of the Village’s, or, more specifically,

Mayor Owen’s, hiring practices. Valentino notes that the

Village employs several of Mayor Owen’s friends and

relatives, including Eric Faoro, Owen’s son-in-law; Erika

and Yvette Owen, Owen’s daughters and Petersen’s

nieces; Scott Owen, Owen’s son and Petersen’s nephew;

Sally Marrufo, and Ron Diederich. Valentino became

suspicious that Mayor Owen sanctioned the “ghost

payrolling” of these persons—that is, Valentino believed

that the Village paid them salaries for hours that they

did not actually work. Valentino noticed that several of

these employees were rarely in the office but still received

weekly paychecks. She communicated her concerns to

Bramanti, who had quit in late 2001 or early 2002 because

of conflicts with Owen. In these conversations, Valentino

expressed her negative view of the nepotism in the Vil-

lage’s hiring practices.

After Valentino shared her suspicions with Bramanti,

he submitted a series of requests pursuant to the

Freedom of Information Act, looking to obtain copies of

the time cards and sign-in sheets for Owen’s associates

and relatives. Petersen initially denied Bramanti’s re-

quests. On February 3, 2003, the same day that Petersen

sent a letter to Bramanti denying his requests, Mayor

Owen told another employee, Rose Bautista, that

“[Valentino] is going to get her butt canned,” ostensibly

because of her relationship with Bramanti.1 Several days

1

Although there is no direct evidence that Owen or Petersen

knew that Valentino was communicating with Bramanti

(continued...)

No. 06-3882 5

later, Mayor Owen overruled Petersen and released

certain time records to Bramanti.

In the meantime, starting in February 2003, Valentino

began to make copies of the daily sign-in sheets, in part to

verify her suspicions regarding ghost payrolling and in

part to determine if the Village was unfairly docking

her pay when she was tardy, while not docking the pay

of other Village employees. These sign-in sheets were

left on the office counter, and employees, when they

arrived at and left from the office, were supposed to

sign in and out. Valentino communicated her observa-

tions regarding these sign-in sheets to Bramanti.

On February 28, 2003, when he did not receive a full

response to his FOIA requests and learned of Valentino’s

observations regarding ghost payrolling, Bramanti,

through his organization, Citizens Against Corruption,

sent a letter to the citizens of the Village accusing Owen

of ghost payrolling his relatives and of various other

indiscretions.

On March 3, 2003, the next business day after he sent

this letter, and days after he submitted another FOIA

request to the Village, Valentino arrived at her desk and

(...continued)

regarding ghost payrolling, it is undisputed that they knew

that both Bramanti and Valentino were concerned about

employment practices at the Village and that they were

friends. Moreover, Petersen testified that he told Sally Marrufo

not to talk to Valentino because she would pass informa-

tion along to Bramanti.

6 No. 06-3882

found Petersen waiting for her. Before Valentino’s

arrival, Petersen had searched her desk and found copies

of the employee sign-in sheets. Petersen consulted with

Owen, who instructed Petersen to ask the Village’s legal

counsel if Owen could fire Valentino because she

copied these sign-in sheets. Counsel told Petersen that

copying the sign-in sheets was a lawful reason to

terminate Valentino, and Petersen terminated her on

March 3, 2003, after fourteen years of service to the Village.

Valentino (and Bramanti, who is not a party to this

appeal) filed this section 1983 action, claiming that Owen,

Petersen, and the Village retaliated against her for exer-

cising her First Amendment rights and speaking out

against Defendants’ practices of nepotism and alleged

ghost payrolling. The district court granted summary

judgment for Defendants, and Valentino now appeals.

II. ANALYSIS

A. Valentino Has Satisfied All the Necessary Require-

ments to Reach Trial on Her Retaliation Claim

In order to establish a prima facie case of unlawful

First Amendment retaliation, a public employee must

establish that: (1) she engaged in constitutionally pro-

tected speech; (2) she suffered a deprivation likely to deter

her from exercising her First Amendment rights; and

(3) her speech was a motivating factor in her employer’s

adverse action. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.

2006). If a plaintiff establishes a prima facie case, the

burden shifts to the employer to demonstrate that it

No. 06-3882 7

would have taken the same action in the absence of the

protected speech. Id. at 717. If the employer carries this

burden, the plaintiff may still reach trial by producing

sufficient evidence to allow a reasonable fact finder

to determine that the employer’s reasons were merely

a pretext for firing the employee, at least in part, for exer-

cising her First Amendment rights. Id. We review

de novo the district court’s grant of summary judgment

to Defendants based on its finding that a plaintiff failed

to proffer sufficient evidence of pretext. Id. at 716.

1. Valentino Established a Prima Facie Case of Retali-

ation

There is no dispute that Defendants, in firing Valentino,

caused her to suffer an adverse action likely to chill her

freedom of speech. The only questions for us to resolve

in determining whether Valentino has stated a prima

facie case for retaliation is whether she engaged in con-

stitutionally protected speech and whether a reason-

able fact finder could determine that her speech was a

motivating factor behind her termination.

Valentino, as a public employee, does not relinquish

all First Amendment rights merely because she works

for the government. Brooks v. Univ. of Wisc. Bd. of Regents,

406 F.3d 476, 479 (7th Cir. 2005). That said, she does not

have an unfettered right to express herself on all matters

related to her public employment. Id. Instead, she has a

protected right, in certain circumstances, to speak as a

citizen addressing matters of public concern. Garcetti v.

8 No. 06-3882

Ceballos, 547 U.S. 410, 416-17 (2006). When “public em-

ployees 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 disci-

pline.” Id. at 421. In order for us to find that Valentino

engaged in constitutionally protected speech, we must

determine that she spoke in the capacity of a private

citizen and spoke on a matter of public concern. Renken

v. Gregory, 541 F.3d 769, 773 (7th Cir. 2008).

Defendants argue that Valentino did not direct her

speech at the public, but rather privately confided in

Bramanti because her main concern was the docking of

her pay, rather than ghost payrolling, which is arguably

a matter of public concern. True, speech that addresses

“a private or personal interest, as opposed to a com-

munity one, does not satisfy the standards for First

Amendment protection.” Spiegla v. Hull, 371 F.3d 928, 935

(7th Cir. 2004). However, we must look at the content of

the speech as a whole, Gazarkiewicz v. Town of Kingsford

Heights, Ind., 359 F.3d 933, 942-43 (7th Cir. 2004), when

determining if it addresses a matter of public concern. In

making this argument, Defendants confuse their stated

reason for firing Valentino (photocopying of the sign-in

sheets) with her speech as a whole. Valentino admits

that she photocopied the employee sign-in sheets in part

because she was privately concerned with the docking

of her pay. However, she communicated the information

on these sheets to Bramanti, and, more importantly,

discussed her suspicions regarding the issue of ghost

payrolling with Bramanti long before she began copying

them.

No. 06-3882 9

Whether a statement rises to the level of public concern

is a question of law, and in answering this question we

look to the “content, form, and context” of the statement.

Connick v. Myers, 461 U.S. 138, 147-48, 148 n.7 (1983). Then

we balance “the interests of the [employee], as a citizen,

in commenting upon matters of public concern and the

interest of the State, as an employer, in promoting the

efficiency of the public services it performs through

its employees.” Schad v. Jones, 415 F.3d 671, 674 (7th Cir.

2005) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568

(1968)).

It is by now well-established that speech protesting

government waste addresses a matter of public concern

and is therefore entitled to constitutional protection. See,

e.g., Wainscott v. Henry, 315 F.3d 844, 849 (7th Cir. 2003)

(“An employee’s ability to highlight the misuse of

public funds or breaches of public trust is a critical

weapon in the fight against government corruption and

inefficiency.”); see also Miller v. Jones, 444 F.3d 929, 935

(7th Cir. 2006); Brooks, 406 F.3d at 484 (finding that gov-

ernment corruption is a quintessential matter of public

concern). Ghost payrolling—paying public employees

with taxpayer dollars for hours that they do not work—is

a prime example of such waste. Here, although Valentino

might have been personally concerned that the Village

was docking her pay, her comments to Bramanti

strongly implicate the public concerns of government

corruption and waste caused by ghost-payrolling. Her

speech need not be directed at supervisors or at a large

contingent of the public to be protected. It is enough

that she spoke on a matter of public concern to Bramanti,

10 No. 06-3882

a member of the public. Moreover, although we

consider the motive of the speaker as part of the “context”

in which the speech was made, see Miller, 444 F.3d at

937, “we have emphasized that speech of public impor-

tance is only transformed into a matter of private

concern when it is motivated solely by the speaker’s

personal interests.” Gazarkiewicz, 359 F.3d at 941-42 (em-

phasis added); see also Breuer v. Hart, 909 F.2d 1035, 1039

(7th Cir. 1990) (“[T]he fact that these serious allega-

tions arose in the context of what began as a personal

dispute does not in itself disqualify from protection all

speech on the topics arising from that dispute”). Given

that Defendants do not make an argument that their

efficiency concerns outweigh the public concern raised

by Valentino, we find that she has adequately shown

that she engaged in constitutionally protected speech.

The next question is whether Valentino proffered suffi-

cient circumstantial evidence to show that her protected

speech was a motivating factor in Defendants’ decision

to terminate her employment. See Massey, 457 F.3d at 717.

Valentino relies on her open complaints about her pay

being docked vis-à-vis Owen’s relatives, her relation-

ship with Bramanti, and the suspicious timing of her

firing to show that a reasonable jury could infer that

Defendants fired her because she complained about

ghost payrolling. Defendants retort that because Owen

and Petersen, the persons who made the final firing

decision, allegedly did not know that Valentino com-

municated with Bramanti regarding ghost payrolling, a

jury cannot possibly infer that they fired her in retaliation

for this communication. As the district court aptly noted,

No. 06-3882 11

it would be rare for a plaintiff to have smoking gun

evidence that a defendant knew of her protected speech

or for a defendant to admit such knowledge. Here, there

is no direct evidence that either Owen or Petersen knew

that Valentino was communicating with Bramanti. How-

ever, they knew that Valentino and Bramanti had a long-

standing personal relationship, that Bramanti was sub-

mitting FOIA requests for certain employees’ time

sheets, and that Valentino was examining the office’s

master time sheets. Further, Petersen told at least one

employee to stop talking with Valentino because she

was passing information to Bramanti. In addition, the

timing of Valentino’s termination occurred just one

business day after Bramanti released a letter to the

public regarding ghost payrolling in the Village, and

shortly after his series of FOIA requests. See id. (“Circum-

stantial proof, such as the timing of events or the

disparate treatment of similar individuals, may be suf-

ficient to establish the defendant’s retaliatory motive.”);

Culver v. Gorman & Co., 416 F.3d 540, 545-46 (7th Cir. 2005);

Holland v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1314-15

(7th Cir. 1989). Although suspicious timing in and of

itself is usually insufficient to create a triable issue, Stone

v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644

(7th Cir. 2002), the suspicious timing in this case com-

bined with Defendants’ knowledge of Valentino’s rela-

tionship with Bramanti, Petersen’s surreptitious search of

her desk, and the timing of Owen’s purported statement

that she “is going to get her butt canned” is enough

circumstantial evidence upon which a jury could conclude

that Defendants terminated her, at least in part, because

12 No. 06-3882

she spoke out against the Village’s supposed ghost

payrolling.

2. Valentino Has Presented Sufficient Evidence

From Which A Jury Could Infer that Defendants’

Stated Reason for Terminating Her Employment

Was Pretextual

Defendants contend that Valentino’s “theft” of the office

sign-in sheets was their true motivation for firing her.

Defendants claim they were worried that such “theft”

could lower office morale, foster identify theft, constitute

an invasion of the Village’s employees’ privacy, or have

other deleterious effects. The district court, finding that

“Valentino has produced no evidence that the Village’s

concern about employee privacy was pretextual,” granted

Defendants’ motion for summary judgment. In doing so,

the district court suffered the misapprehension that a

plaintiff necessarily must proffer different or additional

evidence to rebut pretext from that she used to estab-

lish her prima facie case. This is not so. Often, the same

evidence used to establish the prima facie case is suf-

ficient to allow a jury to determine that a defendant’s

stated reason for terminating a plaintiff was a mere front

for an ulterior, unlawful motive. See, e.g., McGreal v.

Ostrov, 368 F.3d 657, 681 (7th Cir. 2004) (citing Glass v.

Dachel, 2 F.3d 733, 743-44 (7th Cir. 1993)) (finding defen-

dant’s post hoc explanation of employee’s termination

“too fishy” to allow summary judgment); Holland,

883 F.2d at 1313 (holding that plaintiff may reach trial

No. 06-3882 13

by showing, through circumstantial evidence, that em-

ployer’s articulated reason for its action was not worthy

of credence and was thus pretextual); Collin v. Illinois,

830 F.2d 692, 705 (7th Cir. 1987) (same).

Here, there are several factors that a jury may examine

in deciding not to give credence to Defendants’ stated

reason for firing Valentino. Valentino did not “steal” the

sign-in sheets. She did not remove them from the

Village’s office. She simply photocopied them and

stored them in her desk. We fail to see how this behavior

differs from Valentino simply writing down the times

that each employee clocks in and out. Any argument

pertaining to the privacy of the information on these

sheets is specious at best. The sign-in sheets were

publicly displayed in the office, and the Village enacted

the sign-in policy to create transparency in the arrival

and departure times of the Village’s employees. Moreover,

the Village had already publicly released some of the

information on these sign-in sheets when it partially

granted Bramanti’s FOIA requests. Given that these times

were available for all to see, a jury may be hard pressed

to find any substantial privacy concerns implicated in

Valentino’s copying of them. With regards to Defendants’

professed fear that Valentino was committing “identity

theft,” unless the employees were required to sign into

work using their social security and credit card numbers,

we fail to see any evidence that even remotely supports

this belief.

These factors, combined with the fact that Petersen

singled out Valentino’s desk to be searched after hours,

14 No. 06-3882

make the Village’s explanation “too fishy”, or, put another

way, “too convenient,” to allow summary judgment in

Defendants’ favor. It seems unlikely that Petersen would

randomly decide to search only Valentino’s desk and

terminate her shortly thereafter, coincidentally, on the

same day that Bramanti’s latest letter was released. See

McGreal, 368 F.3d at 681 (“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 De-

partment.”). This is especially true because Valentino’s

termination occurred without warning after nearly

fifteen years of uninterrupted service. See Spiegla, 371

F.3d at 943 (“Taken together, the closely related sequence

of events, Spiegla’s long and uninterrupted tenure, and

Johnson’s anger with Spiegla demonstrate that Spiegla’s

speech was a motivating factor in the decisions to

transfer her and to change her shift.”).

This is not to say that it is impossible for Defendants

to have been motivated, in part, by Valentino’s photo-

copying of the sign-in sheets when they decided to termi-

nate her employment. However, as we have stated before,

a retaliatory animus need not be the sole motive behind

a termination decision for a plaintiff to have an

actionable claim. Id. at 942. Rather, it need be only one

factor in the employer’s decision. Id. (“[A] motivating

factor does not amount to a but-for factor or to the

only factor, but is rather a factor that motivated the de-

fendant’s actions.”). Since Valentino has shown that a

No. 06-3882 15

reasonable jury could find that an improper purpose was

a motivating factor in her termination, the burden shifts

to Defendants “to prove by a preponderance of the evi-

dence that the same actions would have occurred in the

absence of the protected conduct.” Id. at 943 (citing

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,

287 (1977)). Here, Defendants have failed to meet that

burden. Aside from showing that Defendants’ proffered

reason is specious at best, the evidence establishing

Valentino’s prima facie case is substantial enough to

allow a jury to infer that Defendants’ assertion that they

fired Valentino for “theft” of the sign-in sheets was

mere pretext. Given that the evidence Valentino has

offered established a prima facie case of retaliation, and

is enough to rebut Defendants’ proffered reason for

terminating her, we reverse the districts court’s grant of

summary judgment to Defendants.

B. Valentino’s Monell Claim May Proceed to Trial

Because the Evidence Indicates That Mayor Owen

Was a Policymaker for the Village Regarding Hir-

ing/Firing Decisions

A municipality, such as the Village, may be liable for a

section 1983 violation if, among other things: (1) it has a

permanent and well-settled municipal custom or prac-

tice that, although not authorized by official law or

policy, was the moving force behind the plaintiff’s consti-

tutional injury; or (2) an individual with final policy-

making authority for the municipality (on the subject

in question) caused the constitutional deprivation. Monell

16 No. 06-3882

v. City of New York, 436 U.S. 658, 690 (1978); Simmons v.

Chicago Bd. of Educ., 289 F.3d 488, 494 (7th Cir. 2002).

Monell liability is not a form of respondeat superior;

instead, a municipality can only be held liable “when

execution of [its] policy or custom, whether made by

its lawmakers or by those whose edicts or acts may fairly

be said to represent official policy, inflicts the injury that

the government as an entity is responsible for under

section 1983.” Monell, 463 U.S. at 694. Here, Valentino

seeks redress under both of the aforementioned theories.

As to the first theory, the district court correctly con-

cluded that Valentino could not show that the Village

had a custom or practice of sanctioning retaliation in

violation of the First Amendment. Valentino alleges

that Mayor Owen had denied benefits or otherwise at-

tempted to quash the speech of former political

opponents and their associates.2 “If the same problem

has arisen many times and the municipality has

acquiesced in the outcome, it is possible (though not

necessary) to infer there is a policy at work.” Lewis v. City

of Chicago, 496 F.3d 645, 656 (7th Cir. 2007) (quoting Phelan

v. Cook County, 463 F.3d 773, 789 (7th Cir. 2006) (quoting

2

Among other things, Valentino alleges that Owen and/or

Petersen: (1) denied a political opponent, Joe Kudra, insurance

benefits; (2) denied a supporter of Kudra, Rosario DelGroso,

“pickup of debris that would otherwise normally take place”;

(3) sent a letter to Valentino’s stepfather, demanding that he

pay $3.25 or have his water shut off; and (4) threatened to

fire George Ellis unless he moved out of the house of one of

Owen’s political rivals.

No. 06-3882 17

Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005))).

Valentino has failed to establish that the Village has

condoned a continual practice of terminating employees

who speak out against Mayor Owen or his political allies.

Valentino does not contend that any of these alleged

instances of retaliation ever resulted in a meritorious

lawsuit or settlement. Further, she does not provide

tangible evidence of what exactly these persons’ “speech”

consisted of or whether it was constitutionally pro-

tected. She also fails to adequately delineate how

Owen’s response to these persons’ speech was designed

to quell their First Amendment expression. In short,

although Valentino presents evidence of possible retalia-

tion against others, she does not show how these separate

incidents weave together into a cognizable Village pol-

icy. She fails to “introduce evidence demonstrating that the

unlawful practice was so pervasive that acquiescence on

the part of policymakers was apparent and amounted to a

policy decision.” Phelan, 463 F.3d at 790.

Valentino’s second theory, that Owen was the official

policymaker for the Village on issues involving hiring

and firing, merits further scrutiny. It is well-established

that when a particular course of action is directed by

those who set municipal policy, the municipality is respon-

sible under section 1983, even if the action in question

is undertaken only once. Pembaur v. City of Cincinnati, 475

U.S. 469, 480-81 (1986). Valentino contends that because

Owen made the ultimate decision to fire her, Monell

liability should apply. But just because Owen is the

decisionmaker on hiring/firing decisions for the Village

government does not necessarily make him the

18 No. 06-3882

policymaker on those issues. “The fact that a particular

official—even a policymaking official—has discretion

in the exercise of particular functions does not, without

more, give rise to municipal liability based on an

exercise of that discretion.” Id. at 481-82. Rather, such an

official also must be responsible for establishing final

government policy on a particular issue. Id. at 482-83

(finding that prosecutor who had authority to make

final decision about warrantless entry into home was a

policymaker for municipality). The determination of

whether a person has policymaking authority is a

question of state law, and is to be decided by the court.

Id.; Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737

(1989); Kujawski v. Bd. of Comm’rs of Bartholomew County,

Ind., 183 F.3d 734, 737 (7th Cir. 1999). Our inquiry is not

whether an official is a policymaker on all matters for

the municipality, but whether he is a policymaker “in a

particular area, or on a particular issue”; here, the

relevant question is whether Mayor Owen is a policy-

maker on personnel decisions. Kujawski, 183 F.3d at 738

(citing McMillian v. Monroe County, 520 U.S. 781, 785

(1997)). Officials with final decisionmaking authority are

deemed policymakers for Monell purposes, and we need

to look to state law to determine the scope of such author-

ity. See Pembaur, 475 U.S. at 480; City of St. Louis v.

Praprotnik, 485 U.S. 112, 134 (1988); Jett, 491 U.S. at 737.

Helpful in determining whether an official is a final

decisionmaker is an inquiry into: (1) whether the official

is constrained by policies of other officials or legislative

bodies; (2) whether the official’s decision on the issue

in question is subject to meaningful review; and

No. 06-3882 19

(3) “whether the policy decision purportedly made by

the official is within the realm of the official’s grant of

authority.” Randle v. City of Aurora, 69 F.3d 441, 448 (10th

Cir. 1995) (citing Praprotnik, 485 U.S. at 127). Also helpful

is an examination of not only “positive law, including

ordinances, rules and regulations, but also the relevant

customs and practices having the force of law.” Mandel v.

Doe, 888 F.2d 783, 793 (11th Cir. 1989) (finding that

custom dictated that physician’s assistant, and not super-

vising doctor, had final policymaking authority with

respect to medical decisions made at road prison) (citing

Jett, 491 U.S. at 722); Kujawski, 183 F.3d at 737 (“Customary

practices having the force of law may be considered

as proof of delegation.”).

It is clear that Mayor Owen is a decisionmaker with

regards to personnel decisions within the Village. He has

placed at least five of his family members and several

friends on the Village payroll. Owen, admittedly, had

the final say-so regarding the termination of Valentino.

Moreover, several Village ordinances indicate that

Mayor Owen makes personnel decisions regarding Village

employees. For example, Section 2-117 states: “The village

administrator shall not be responsible for the hiring,

firing, discipline, conducting of employment-related

hearings or other personnel matters, unless otherwise

specified herein or as lawfully instructed by the village

president 3 or board of trustees” (emphasis added). Section

2-115(3) states that the Village Administration has

3

It appears as though the terms “president” and “mayor” are

used interchangeably.

20 No. 06-3882

the power to: “Make recommendations to the village

president regarding hiring, discipline, and discharge of

employees . . . ,” indicating that the Owen, as mayor or

village president, has the ability to make personnel dis-

charge decisions (emphasis added).

However, just because Owen makes personnel decisions

does not necessarily mean that he is the final decisionmaker

on such matters such that he can be considered a

policymaker for the Village in this area. It is a

“well-established principle that the mere unreviewed

discretion to make hiring and firing decisions does not

amount to policymaking authority. There must be a

delegation of authority to set policy for hiring and

firing, not a delegation of only the final authority to hire

and fire.” Kujawski, 183 F.3d at 739 (citing Venters v. City of

Delphi, 123 F.3d 956, 966 (7th Cir. 1997)); Radic v. Chicago

Transit Auth., 73 F.3d 159, 161 (7th Cir. 1996); Auriemma v.

Rice, 957 F.2d 397, 401 (7th Cir. 1992). The Village argues

that the Board of Trustees, and not Owen, is the final

decisionmaker because it says the Board sets personnel

policy and reviews termination decisions, whereas Owen

merely has discretion to carry out the policy set by the

Board. See Partee v. Metropolitan Sch. Dist. of Washington

Twp., 954 F.2d 454, 462 (7th Cir. 1992) (holding that

where school board had final say-so on personnel

matters, principal of school was not policymaker for

municipality).

A defendant municipality in Kujawski sought refuge

from Monell liability under the same theory. 183 F.3d at

739. There, a plaintiff sued a municipality claiming that

No. 06-3882 21

it was liable under Monell for the actions of the municipal-

ity’s Chief Probation Officer, who fired the plaintiff from

his job as a probation officer after he complained about

some of the office’s policies. Id. We recognized the fact

that our precedent had established that unreviewed

discretion to make employment decisions does not rise

to the level of policymaking authority, but nonetheless

found that summary judgment was inappropriate

because a fact issue remained regarding whether

the municipality’s board had delegated policymaking

authority on the office’s personnel decisions to the Chief

Probation Officer. Id. at 740. Key in our reasoning was

that the plaintiff provided evidence that: (1) the board did

not review the Chief’s personnel decisions; and (2) the

Chief was completely in charge of the probation depart-

ment. Id. We concluded that the evidence “permits the

reasonable inference that the Commissioners delegated

to Officer Parker the authority to make employment

policy decisions with respect to community corrections

employees” and remanded the matter for trial on plain-

tiff’s Monell claim. Id.

Kujawski shares several important similarities, and

several important differences, with this case. Unlike here,

in Kujawski, because it was unambiguous that: (1) the

community corrections advisory board “may establish

personnel policies” for the probation department; (2) any

terminated probation officer had a right to a grievance

hearing in front of the county board of commissioners;

and (3) the county judges had the authority to hire proba-

tion officers, we found that there was a question of fact

regarding whether the Chief’s decisions were reviewed

or constrained in such a way that he was not actually

22 No. 06-3882

the final decisionmaker on personnel decisions for the

county’s probation office. Id. at 738-39. In other words,

several concrete hiring/firing policy mechanisms existed

that were in the hands of various quasi-legislative

bodies and not in the hands of the Chief Probation

Officer, which could have had an impact on who was the

actual final decisionmaker on personnel matters. See id.

Therefore, to the extent that the evidence indicated that

the Chief had unfettered discretion to hire and fire em-

ployees on his whim and that his decisions were not

meaningfully constrained or reviewed, we found it neces-

sary to remand for a factual determination of whether

these legislative bodies had in fact delegated their

policy making authority to the Chief, thus subjecting the

municipality to the possibility of Monell liability. Id. at 740.

Not so here. Defendants do not point to any laws,

statutes, or ordinances which place policy setting

authority in the hands of the Village’s board of trustees.

To the contrary, all the evidence suggests that Mayor

Owen had the unfettered discretion to hire and fire whom-

ever he pleased. Indeed, he hired several of his relatives

and fired Valentino and others without as much as a

whisper from the board of trustees. Given that the Village

has a population of only a few thousand people and is

run by a small government, a legislative framework for

personnel decisions may not actually exist, and Defen-

dants have not provided evidence of any. Rather, the

evidence suggests that as head of the government, Mayor

Owen may hire or fire whomever he wants in the

routine course of business. Therefore, in this case, unlike

in Kujawski, given that there is no presumption of

policymaking authority in the hands of any quasi-legisla-

No. 06-3882 23

tive body, it is unnecessary for there to be any factual

inquiry into whether that body delegated its authority

to Mayor Owen. To the contrary, given Mayor Owen’s

preference to hire his relatives and campaign supporters

to government jobs, it appears to be a Village cus-

tom/practice to allow Owen to set whatever hiring/firing

criteria he sees fit.

As in Kujawski, Defendants cannot point to any edicts

from the board of trustees that in any way govern the

manner in which Mayor Owen may make his hiring or

firing decisions. Nor do they point to any instances in

which the board provided any meaningful oversight of

Mayor Owen’s decisionmaking process or meaningfully

reviewed his termination decisions. Instead, all the evi-

dence indicates that Mayor Owen, either personally or by

his own delegation, makes the personnel decisions for

his office. Therefore, it is clear to us that Mayor Owen is

the de facto policymaker for the Village with regard to

personnel decisions in his office. Given this, we reverse

the district court’s decision on Valentino’s Monell claim

and find that Valentino has shown that Owen is a

final policymaker for the Village, such that the Village

may be held liable if the jury finds that Mayor Owen

and Village Administrator Petersen retaliated against her

in violation of her First Amendment rights.

C. The Illinois Tort Immunity Act Does Not Immunize

Defendants Against Valentino’s Retaliatory Dis-

charge Claim

Valentino also alleges that the Village is liable under the

Illinois tort of retaliatory discharge based on her

24 No. 06-3882

unlawful termination. In Illinois, to recover for retaliatory

discharge, a plaintiff must show that he was discharged

“in retaliation for his activities, and that the discharge be

in contravention of a clearly mandated public policy.”

Horton v. Miller Chem. Co., Inc., 776 F.2d 1351, 1355 (7th

Cir. 1985) (quoting Palmateer v. Int’l Harvester Co., 421

N.E.2d 876, 881 (Ill. 1981)) (holding that there is no

precise definition of public policy and that “concerns

what is right and just and what affects the citizens of the

State collectively”). Terminating a government employee

for speaking out against corruption in her workplace

is surely contrary to clearly mandated public policy

(the intersection of the First Amendment and the public’s

right not to be defrauded by its government); the Village

does not contend otherwise. Nor does the Village assert

that she cannot state a prima facie case for this tort (other

than the same arguments it raises against her section 1983

claim). Cf. Fellhauer v. City of Geneva, 568 N.E.2d 870, 877

(Ill. 1991) (recognizing that this tort is to be construed

narrowly, but noting that it may be viable in speaking

against municipal corruption).

Instead, the Village contends that section 2-201 of the

Illinois Tort Immunity Act exempts Owen and Petersen

from liability, thus negating the claim against the Village.

This section provides that “a public employee serving in

a position involving the determination of policy or the

exercise of discretion is not liable for an injury resulting

from his act or omission in determining policy when acting

in the exercise of such discretion even though abused.”

745 ILCS 10/2-201 (emphasis added). The Village essen-

tially reasons, and the district relies on the fact, that

No. 06-3882 25

section 2-201, “together with section 2-109 (745 ILCS

10/2-109 (‘a local public entity is not liable for an injury

resulting from an act or omission of its employee

where the employee is not liable’)), provides both public

employees and the public employer with immunity

against allegations that challenge discretionary policy

determinations.” Murray v. Chicago Youth Ctr., 864

N.E.2d 176, 185-86 (Ill. 2007) (citations omitted).4

The Village is not immune under the Act, however,

because, in order to receive immunity under section 2-201,

the municipal official must have been making a “policy

decision” when committing the alleged retaliatory act.

Section 2-201 immunizes an individual defendant only

to the extent that the action he is being sued for

involves both the making of a policy choice and the

exercise of discretion. Van Meter v. Darien Park Dist., 799

N.E.2d 273, 285 (Ill. 2003) (“[O]ur cases have made clear

that there is a distinction between situations involving

the making of a policy choice and the exercise of discre-

tion. Municipal defendants are required to establish

both of these elements in order to invoke immunity

4

The Illinois Supreme Court, in Smith v. Waukegan Park Dist.,

896 N.E.2d 232, 236-37 (Ill. 2008), called into doubt a municipal-

ity’s ability to combine sections 2-201 and 2-109 to extend im-

munity from a municipal official to the municipality itself.

It reasoned that where the municipality is the pertinent actor

that performed the alleged retaliatory action, section 2-109

is not implicated. We need not delve into this line of rea-

soning, however, because we determine that section 2-201

does not immunize the Village.

26 No. 06-3882

under section 2-201.”) (citations omitted). The Illinois

Supreme Court has defined “ ‘discretionary’ actions to

be those ‘unique to a particular public office.’ ” Id. at 286

(citations omitted). It also has “held that decisions re-

quiring a governmental entity to balance competing

interests and to make a judgment call as to what solution

will best serve those interests are ‘policy decisions’

within the meaning of section 2-201.” Id. (citations omit-

ted). Last, we note that “because the Tort Immunity Act

is in derogation of the common law, it must be strictly

construed against the public entities involved.” Id. (citing

Zimmerman v. Vill. of Skokie, 697 N.E.2d 699, 707 (Ill. 1998)

(quoting Aikens v. Morris, 583 N.E.2d 487 (Ill. 1991))).

Defendants’ attempt to argue that Owen’s decision to

fire Valentino was a “policy decision” is futile. The

Village argues in one breath that Owen’s series of hirings

and firings for the Village do not mean that he is a

policymaker, and in another breath that his decision to

fire Valentino was a policy decision. As discussed above,

its first argument is without merit as it applies to the

facts of this case. The second argument fails as well.

Here, Owen’s one-time decision to fire one employee,

Valentino, does not amount to a “judgment call between

competing interests.” In fact, we are at a loss to identify

any competing interests at all. Rather, Owen either

made a one-time decision to fire Valentino because she

copied the sign-in sheets or because she spoke out

against the Village’s practice of ghost payrolling, or some

combination thereof. The Village offers no evidence that

it had a policy against copying the sign-in sheets either

before or after Valentino’s termination. Even if such a

No. 06-3882 27

policy did exist, we cannot see how the decision to

create it might involve competing interests and judg-

ment calls that would meet the Illinois courts’ definition

of a “policy decision”. See id. Therefore, the decision to

fire Valentino does not amount to a policy decision as

defined by the Illinois courts. So, the Village is not

entitled to immunity under section 2-201.

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is R EVERSED and this matter is R EMANDED on all

counts against all Defendants.

7-30-09