# Petition for Writ of Certiorari — Fermaint v. Fairley (No. 06-1685)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

2 rae “eur, WS.

PO cites Othe 5. 2 ee

In the OFFICE UF THE CLERK

Supreme Court of the United States

EVAN FERMAINT, Officer
NOBERTO BERCASIO, Officer, and
FRED COFFEY, Officer,

Petitioners,
V.

ROGER FAIRLEY,
and REICHARD GACKOWSKI,
Respondents.

On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Terry E. Johnson
Counsel of Record
Daniel P. Duffy
PETERSON JOHNSON
& MURRAY, S.C.
30 North LaSalle Street, Suite 2900
Chicago, IL 60602
(312) 782-7150
Counsel for Petitioners
June 18, 2007

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

i

QUESTIONS PRESENTED

1. Under Johnson v. Jones, 515 U.S. 304, 115 S. Ct.
2151, 132 L.Ed.2d 238 (1995), is an appellate court
precluded from reviewing the record on an interlocutory
appeal in a qualified immunity case?

2. At the time of the alleged harassment, was the law
“clearly established” that one co-equal, public employee could
be held liable on Constitutional grounds for harassing another
co-equal public employee?

il

PARTIES TO THE PROCEEDING

Pursuant to Rule 14.1(b), the following list identifies all
of the parties appearing here and before the United States
Court of Appeals for the Seventh Circuit.

The petitioners here and appellants below are Evan
Fermaint, Noberto Bercasio, and Fred Coffey.

The respondents here and appellees below are Roger
Fairley and Richard Gackowski.

The following parties were defendants in the district court
action but did not participate in the appeal to the United States
Court of Appeals for the Seventh Circuit: Dennis Andrews,
Edward Byrne, Patrick Loizon, Ronald Prohaska, Gregory
Ernst, Saul Weinstein, Tim Kaufmann, Gabriel Ochoa, Juan
Diaz, Michael Sheahan, and Cook County.

TABLE OF CONTENTS

Page
ON yg Beg gO og) a a rr Pa i
PARTS 1) TUG PROCES oes il
Te SOE) ROAR cs i ee ea weet vi
SP ERE eho hi ge hae ew eos ]
PC RIE co wk ewe eae es CRS ees ]

CONSTITUTIONAL AND STATUTORY PROVISIONS

I ek eh en ek ee ea |
IE as es es a a ee 2
h.. RUE COS a 2
ee re ee Pe eee ee 7
REASONS FOR GRANTING THE PETITION ...... 10

I. Johnson v. Jones Does Not Stand for the
Proposition that an Appellate Court Is Precluded
from Reviewing the Record on an Interlocutory
Appeal in a Qualified Immunity Case and the
Seventh Circuit’s Decision to Ignore the Record Is
in Conflict with Behrens v. Pelletier ........ 10

II. It has not been “Clearly Established” in the
Seventh Circuit, or any other Circuit, that it is
Legally Possible for One, Co-Equal, Employee to

iV

“Deprive” Another, Co-Equal, Employee of His
or Her Constitutional Rights and Defendants are,
therefore, Entitled to Qualified Immunity. ... . .

A. A Conflict Exists Among the Circuits
Involving Public Employment First
Amendment Retaliation Cases...........

B. The Seventh Circuit Has Yet to Conclusively
Resolve Whether The “Adverse Employment
Action” Standard or The “Reasonably Likely
To Deter” Standard is the Appropriate
Standard to Apply to a Public Employer’s
Actions For Purposes of a First Amendment
on eer rere rere ee

C. A State Employee Cannot be Said to be
“Acting Under Color Of State Law” When
Interacting With Other Co-Equal State
Employees Unless He or She is Explicitly
Acting Pursuant to Powers Conferred by the
ee ee ee ae ee ere ee re eS Pe

CPR 6 ot oe OL on ae ae whee be aeceS
APPENDIX
Appendix A: March 19, 2007 Order of the court of
appeals granting rehearing and denying rehearing en

er Pat ae ERP on Rnd ia SR ee eee Se See

Appendix B: March 19, 2007, Opinion of the court of
appeals in affirmation on rehearing ............

15

19

23

26

la

Vv

Appendix C: December 20, 2006, Opinion of the
ee GT Beer eee eee ee Sa

Appendix D- May 4, 2006, Memorandum Opinion
and Order of Wie district court .............. 28a

Appendix E: May 4, 2006, Notification of Docket
Entry in the district court ............. i ao

vi

TABLE OF AUTHORITIES
Cases: Page(s)

Acosta-Orozco v. Rodriquez-de-Rivera,
SG Lg ge oA Sar arr ere ee 18

Alvarado v. Litscher,
S67 FSA OORT Cae: BOON)... ws ook Ke ek 2, i>

Banks v. East Baton Rouge Parish School Board,
SIF SES OT 55. oe a 18

Bart v. Telford,
677 F.2d 622 (7th Cir.1982) ........ [7 28. 39s

Behrens v. Pelletier,
516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d
I SE ae Od aK aa ee Bee a Cee ee a 10

Bunting v. Mellen,
541 U.S. 1019, _—, 124 S.Ct. 1750 2004) ....... 15

Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 760, 118 S.Ct. 2257, 141 L.Ed.2d 633
So 2 is a eee B1, oh; 20

Burlington Northern and Santa Fe Ry. Co. v. White,
U.S. , 126 S.Ct. 2405, 165 L.Ed.2d 345

Burns v. Reed,
Oa re a oe ek wk ee eae 16

Vil

Casteel v. Pieschek,
Se Pee Ce 6k ok 6 dR Rd Oe 16

Connick v. Myers,
461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708
SEE. ew Vb Se RK eae ee eee eee 7

Dahm y. Flynn,
bak aoe Ee ae. | areas ae 23

DeGuiseppe v. Village of Bellwood,
Cae ae” Ce: FOO) oc ce Ses ees 16, 18, 19

Fairley v. Andrews,
430 F.Supp.2d 786 (N.D.IIl. 2004) ........... 8

Fairley v. Andrews,
600 F.Supp. 660 (N.D.IH. 2004). ............ 7

Fairley v. Fermaint,
At F6 Ga Cree CH. Be ek ee tee ees 8

Fairley v. Fermaint,
S66 3:20 Ge? Cet CM. DOG oo 6 Es TEES 9

Garcetti v. Ceballos,
547 U.S. _, 126 S.Ct. 1951, 164 L.Ed.2d
ee 5s ool Bowe ey ae es Oe ee eee 9, 22

Gomez v. Toledo,
446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572
5s 6 ls oe ee 15

Harlow v. Fitzgerald,
OFF Ue BOO on ks a ee eee eee 16

Vill

Hudgens v. NLRB,
424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196
Te igre Bese eG ks bk kd wae 23

Hughes v. Halifax County School Bd.,
855 F.2d 183 (4th Cir.1988), cert. denied, 488 U.S.
1042, 109 S.Ct. 867, 102 L.Ed.2d 991 (1989) .... 23

Jacobs v. City of Chicago,
ee OP OR 12

Johnson v. Jones,
515 U.S. 304, 115 S. Ct. 2151, 132 L.Ed.2d 238
RE de in gg aw a be ae ok 9, 10, 11

Lansing v. City of Memphis,
meee eee oe Ge. 2000) 2 ww ee 23

Martinez v. Colon,
EE oe SE |: ) 24, 25

McGill v. Board of Education,
ewe erat? CWAGTS) 2... wk eee 19, 20

McKinney v. Duplain,
ep mee ye Cit Gal, 2000) 2... ca 11

Meyers v. Starke,
pee ee pete Com, 2S)... we ee 18

Mosely v. Board of Educ. of City of Chicago,
Seer .oe oa? (7? Cir, 2006) ............. 17, 18

1X

Pickering v. Board of Education,
391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811
cc ees a ek ea eee ee 16, 20

Pieczynski v. Duffy,
S75: F.2d 1331 (7th Cir. 1969) ......... 17, 18, 22

Powers v. Summers,
726 F MOIST Ce. TOD)... vi eo ek ee 17, 18

Sallenger v. Oakes,
FOF ae Tak CI, BOTT wk eae be 11

Saucier v. Katz,
533 U.S. 194, 121 S.Ct. 215, 150 L.Ed.2d 272
CR tL bepte aie a eae ae ea ee 15

Scott v. Harris,
Via, tet a. See, ee
Screws v. U.S.,

325 U.S. 91, 111, 65 S.Ct. 1031, 1040 (1945) .... 25

Stavropoulos v. Firestone,
562 TSEC Cie. DO) oe ie es 18

Toeller v. Wisconsin Department of Corrections,
BOt FS Sie Cree Oe ASRS 9

Via v. LaGrand,
aGe F356 Gre Cre GH. Be). svn hee wees. 11

xX
Statutes and Rules
Se Oe ED ioe a ee ek ee eee ee 1
PRN EGE. 6 oe le oe bee nee Se ee ee J
yi > ae Ye inp Coed wee ate Oe a aa 1
EU 0 Uw dae bw a weds oS ee cee abe passim

Other Materials

Bohn, Elizabeth J., Put On Your Coat, A Chill Wind Blows:
Embracing the Expansion of the Adverse Employment Action

Factor In Tenth Circuit First Amendment Retaliation Claims,
ao ey US. E.. eee: ee Ce se a eee 17

Rosalie Berger Levinson, Superimposing Title VII's Adverse
Action Requirement on First Amendment Retaliation Claims:
A Chilling Prospect for Government Employee Speech, 79
FOL. B; REY. OOF, CO Cd on ho os ee ee ease 17

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 3a-14a)
on rehearing is reported at 482 F.3d 897. The opinion of the
court of appeals (App., infra, 1Sa-27a) is reported at 471 F.3d
826. The opinion of the district court (App., infra, 28a-65a)
is reported at 430 F.Supp.2d 786.

JURISDICTION

The district court had jurisdiction of this case under 28
U.S.C. § 1331. The court of appeals had jurisdiction to
review the district court’s order under 28 U.S.C. § 1292.
The court of appeals’ judgment was entered on December 20,
2006. A timely petition for rehearing was granted on March
19, 2007. (App., infra, la-2a) However, the petition for
rehearing en banc was denied. /d. The court of appeals’
judgment on rehearing was entered March 19, 2007. The
jurisdiction of this Court is invoked under 28 U.S.C. §
1254(1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The First Amendment provides, in relevant part:
“Congress shall make no law . . . abridging the freedom of
a

Title 42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State

2

or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or
other proper proceeding for redress... .

STATEMENT

Respondents allege violation of their First Amendment
right to free speech and seek redress pursuant to 42 U.S.C.
§1983.

I. Factual Background

Plaintiffs, Roger Fairley and Richard Gackowski, were
formerly employed as correctional officers at the Cook
County Department of Corrections. (R. 447-1) Petitioners
Evan Fermaint and Noberto Bercasio were, at all times
material to this suit, correctional officers at the CCDOC.
Petitioner Fred Coffey was a correctional officer at the
CCDOC from Augusi 7, 1995 to November 15, 2002. (R.
455-1)

During their respective periods of employment with the
CCDOC Fairley and Gackowski were equal in rank to
Fermaint, Bercasio, and Coffey. Fairley, Gackowski,
Fermaint, and Bercasio were all assigned to the same shift in
Division I of the jail from approximately 1998 to July 2002.
Coffey was assigned outside of Division I during the year
2001.

The CCDOC General Orders require correctional officers
to report misconduct by other officers. Both Fairley and

3

Gackowski were trained to report misconduct by other
officers in accordance with the General Orders.

Fairley and Gackowski both claim to have been harassed
by Fermaint, Bercasio, and Coffey while on duty at the
CCDOC. (R. 257-1) They both ascribe the motive for the
harassment as their having been witness to officer-on-inmate
violence. Fairley and Gackowski point to three alleged
specific instances:

a. Fairley claims that in “late 1998 or early 1999" he
saw Coffey “forearm” an inmate’s head into a
steel plate wall. Afterwards, Fairley alleges that
Coffey called him a “snitch” and threatened to
“beat him up.”

b. Gackowski claims to have witnessed Coffey “beating”
a different inmate in April of 2000. According to
Gackowski, he yelled at Coffey during the beating and
told Coffey not to include him as a witness in his
report. Gackowski ciaimed that Coffey subsequently
told him that he was not “part of the team.” After
April 2000, Gackowski testified that Fermaint started
calling him a “snitch.” Gackowski further testified
that, subsequent to April 2000, Coffey, Fermaint, and
Bercasio each started calling Gackowski a “social
worker.”

c. Last, Fairley claims he witnessed Fermaint and
Bercasio “beating” various inmates during an
altercation on July 29, 2000 in SI-2.' Fairley told

' “SI-2" is an abbreviation for “Special Incarceration Unit 2,” and
is a section of the Cook County Jail complex housed within

4

Gackowski and other correctional officers about the
July 29, 2000 beating he claimed to have witnessed.
Gackowski did not witness any of the events on July
29, 2000 in SI-2 because he was assigned that day to
a different division of the jail complex. Gackowski
did not see any officers use excessive force, act

inappropriately, or engage in any misconduct on July
29, 2000.

Fairley and Gackowski place the most stock in the last of

these incidents. After the SI-2 Incident, various inmates filed

a lawsuit in state court known as the “Fields Litigation,”
which named Fermaint and Bercasio, among others, as
defendants. Gackowski testified that he told correctional
officer Rodriguez that he was “going to tell the truth” about
the SI-2 Incident. Similarly, Fairley told a number of
correctional officers that he was “not going to lie” about the
SI-2 Incident. Neither Gackowski nor Fairley told Fermaint,
Bercasio, or Coffey that he was going to tell the truth
concerning the SI-2 Incident. (R. 455)

Fairley testified that Fermaint harassed him by refusing to
provide enough lunches and other supplies for the SI-2
inmates, which caused the inmates to become irate and yell at
Fairley. Fairley also testified that Fermaint and Bercasio
would physically grab him by the waist and imitate
intercourse and otherwise harass him by failing to unlock the
security door to the SI-2 Unit to allow Fairley to use the
restroom and calling him an “inmate lover.” Gackowski also
testified that from late 2000 through May or June 2002,

Division I where high profile detainees are housed. The July 29,
2000 altercation has been referred to throughout this litigation as
the “SI-2 Incident.”

5

Bercasio and Fermaint physically grabbed him by the waist
and imitated intercourse. Bercasio also drew cartoons of
GackowskIi.

In June of 2002, Gackowski told Internal Affairs that he
was being harassed. And on July 9, 2002, Gackowski
submitted a written complaint to Inte:nal Affairs (IAD)
alleging that he had been the subject of harassment by his
fellow correctional officers, including Fermaint, Bercasio,
and approximately a dozen others. The July 9, 2002
complaint made no reference to the SI-2 Incident or any other
incident of alleged inmate abuse.

Gackowski was interviewed by Internal Affairs as a result
of his complaint. During the course of his interview,
Gackowski identified officers who had harassed him ~ among
them Fermaint and Bercasio - and described the harassment
as including physical grabbing, sexually suggestive cartoons,
and degrading and sexual comments about his wife.
Gackowski told the interviewer that he believed he had been
singled out for harassment because he did not “smack inmates
around for no reason.”

On July 23, 2002, Gackowski was transferred to Division
Vill, a different division of the jail complex. On July 24,
2002, Gackowski filed a charge of discrimination with the
U.S. Equal Employment Opportunity Commission alleging he
had been discriminated against “because of my sex, male

”

While in Division VIII from July 23, 2002 to November
9, 2002, Gackowski did not experience any form of
harassment. On October 10, 2002, Gackowski “bid”
pursuant to collective bargaining rules to be transferred back
to Division |. On November 10, 2002, pursuant to his

6

request, Gackowski was moved back to Division I. From
November 10, 2002 to January 8, 2003, Gackowski did not
report any claims of harassment to IAD.

On January 9, 2003, Gackowski submitted a written
complaint to IAD. On January 10, 2003, Gackowski was
offered a transfer to anywhere on the jail compound.
Gackowski declined the transfer offer and informed IAD
investigators that he was leaving the CCDOC.

Coffey left the CCDOC in November 2002. (R. 447-1)
Neither Fairley nor Gackowski have had any contact with
Coffey since he left the CCDOC. (R. 448) Fermaint bid out
of Division I in November 2002. (R. 447-1)

Fairley was involved in an altercation with an inmate on
December 20, 2002, (R. 447-1) He theorizes that one or
more of the defendants to the suit provoked the inmate to
attack him. (R. 553-1) The States Attorney’s Office never
brought criminal charges against the inmate for his assault on
Fairley. (R. 447-1)

Fairley last worked a shift at the CCDOC in January
2003. (R. 553-1) Gackowski worked his last shift in January
2003. (/d.) Both Fairley and Gackowski then used all of
their vacation and sick days and tendered their resignations
after that time was exhausted on February 3, 2003. (/d.)

From the time he started to the day he left, Fairley never
submitted a written complaint to IAD claiming that he was the
subject of harassment. (R. 447-1) Nor did he ever submit a
written complaint concerning inmate abuse. (/d.)

Fairley sat for a deposition in the Fields case on three
occasions, the first occasion being after his last day on the job

7

at the CCDOC. (R. 553-1) Gackowski sat for the first
session of his deposition in the Fields case after his
resignation from the CCDOC. (R. 448) No one at the
CCDOC did anything to prevent either Fairley or Gackowski
from testifying on their appointed days. (R. 447-1)

The two appeared at a press conference in February 2003
after tendering their resignations.

On July 25, 2003, Fairley and Gackowski filed the
underlying lawsuit. (R. 1)

The Fields case was tried in May and June of 2005. (R.
240) Both Fairley and Gackowski testified for the plaintiffs.
(R. 462-1, R. 465-1) A jury returned a verdict in favor of all
of the defendant correctional officers, including Fermaint and
Bercasio, after deliberating for less than one hour. (R. 420)

II. Proceedings Below

Respondents filed a five count Complaint on July 25, 2003
naming thirteen individual defendants as well as Cook
County. On October 16, 2003, petitioners moved to dismiss
respondents’ complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). One of the arguments raised in the
Motion to Dismiss was based on qualified immunity. The
District Court denied the motion. See Fairley v. Andrews,
600 F.Supp. 660 (N.D.IIl. 2004). Petitioners then submitted
to an exhaustive discovery process.

Near the conclusion of discovery, all defendants excepting
Cook County filed Motions for Summary Judgment.
Respondents voluntarily dismissed a count alleging state law
claims of intentional infliction of emotional distress in the face
of the Motion for Summary Judgment. One of the defendants,

8

Correctional Officer Gabriel Ochoa - who was named only in
the intentional infliction of emotional distress count - was
voluntarily dismissed on respondents’ motion.

On May 4, 2006, the District Court entered a
Memorandum Opinion and Order (App., infra, 28a-65a)
denying the motion on legal grounds, specifically declining to
“revisit” the District Court’s earlier ruling relative to
qualified immunity. See Fairley v. Andrews, 430 F.Supp.2d
786, 797 (N.D.II1. 2004).

Petitioners filed a notice of appeal on May 18, 2006,
seeking appellate review of the District Court’s denial of their
Motion on qualified immunity grounds.

The sole surviving count of respondents’ Second Amended
Complaint complains of “harassment,” ascribing the
motivation for the “harassment” to “retaliation deliberately
aimed at silencing the Plaintiffs and thwarting their attempts
to report and testify on matters of the State’s interest and of
public concern.” (R. 257-1)

Specifically, the Complaint alleges that Fairley and
Gackowski “made known to their fellow officers that they
would tell the truth if asked about what they had seen or
heard” regarding a July 29, 2000 altercation between officers
and inmates known as “the SI-2 Incident” that resulted in a
lawsuit. And that “[{t]hereafter the Defendants engaged in a
series of deliberate actions to discourage Plaintiffs Fairley and
Gackowski from attending depositions and from testifying or
talking freely, fully and truthfully about the SI-2 Incident.”

On December 20, 2006, the Seventh Circuit dismissed the
appeal for want of jurisdiction. Fairley v. Fermaint, 471 F.3d
826, 829 (7th Cir. 2006). On March 19, 2007, the court

9

granted petitioners’ request for panel rehearing and issued a
second decision. Fairley v. Fermaint, 482 F.3d 897 (7th Cir.
2007). Quoting Toeller v. Wisconsin Department of
Corrections, 461 F.3d 871, 873-74 (7th Cir. 2006), the court
concluded that it did have jurisdiction to address the merits of
the appeal. /d. at 901. However, the court ultimately
affirmed the District Court’s decision, stating that issues
regarding whether petitioners engaged in the conduct of which
respondents accused them, and whether they did it to retaliate
for respondents’ constitutionally protected speech, were
questions that should be resolved at trial. /d. at 904.

While acknowledging that the allegations concerning
retaliation for the alleged work-related speech were barred by
this court’s holding in Garcetti v. Ceballos, 126 S.Ct. 1951
(2006), the panel held that the suit could proceed to trial in
order to determine if the retaliation arose from “testimony
that plaintiffs gave in inmates’ suits.” The panel declined to
review the record in order to resolve the question, citing
Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132
L.Ed.2d 238 (1995), for the proposition that such review was
“not allowed”:

Piecing out the state of the record, and drawing
inferences from the evidence, is not allowed on an
interlocutory appeal based on a claim of immunity.

Fairley v. Fermaint 482 F.3d at 902. The court went on to
hold that the arguments raised on interlocutory appeal could
be made on appeal from the final judgment. /d. at 904.
(Citation omitted).

10
REASONS FOR GRANTING THE PETITION

I. Johnson v. Jones, 515 U.S. 304, 115 S. Ct. 2151,
132 L.Ed.2d 238 (1995), Does Not Stand for the
Proposition that an Appellate Court Is Precluded
from Reviewing the Record on an Interlocutory
Appeal in a Qualified Immunity Case and the
Seventh Circuit’s Decision to Ignore the Record Is
in Conflict with Behrens v. Pelletier, 516 U.S. 299,
312, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)

In Johnson v. Jones, 515 U.S. 304, 311-12, 115 S.Ct.
2151, 132 L.Ed.2d 238 (1995), this Court found that a district
court’s denial of a qualified immunity was an appealable final
decision to the extent it turned on an issue of Jaw. The term
following, in Behrens v. Pelletier, 516 U.S. 299, 312, 116
S.Ct. 834, 133 L.Ed.2d 773 (1996), this Court clarified its
holding in Johnson — expressly rejecting the argument that the
existence of an issue of fact foreclosed interlocutory appeal:

[Rjespondent asserts that appeal of denial of the
summary-judgment motion is not available because the
denial rested on the ground that “[mlJatcrial issues of
fact remain.” This, he contends, renders the denial
unappealable under last Term’s decision in Johnson v.
Jones, 515 U.S., at 313-318, 115 S.Ct., at 2156-2158.
That is a misreading of the case. Denial of summary
judgment often includes a determination that there are
controverted issues of material fact, see *313 Fed.
Rule Civ. Proc. 56, and Johnson surely does not mean
that every such denial of summary judgment is
nonappealable. Johnson held, simply, _ that
determinations of evidentiary sufficiency at summary
judgment are not immediately appealable merely
because they happen to arise in a qualified-immunity

case; if what is at issue in the sufficiency
determination is nothing more than whether the
evidence could support a finding that particular
conduct occurred, the question decided is not truly
“separable” from the plaintiff's claim, and hence there
is no “final decision” under Cohen and Mitchell. See
515 U.S., at 313-318, 115 S.Ct., at 2156-2158.
Johnson reaffirmed that summary judgment
determinations are appealable when they resolve a
dispute concerning an “abstract issu[e] of law”
relating to qualified immunity, id., at 317, 115 S.Ct.,
at 2158-typically, the issue whether the federal right
allegedly infringed was “clearly established,” see,
e.g., Mitchell, supra, at 530-535, 105 S.Ct., at 2817-
2820; Davis v. Scherer, 468 U.S. 183, 190-193, 104
S.Ct. 3012, 3017-3019, 82 L.Ed.2d 139 (1984).

In holding that a review of the record on appeal is “not
allowed,” the Seventh Circuit has interpreted Johnson in such
a way as to create an impossible standard that movants for
summary judgment in qualified immunity cases must meet on
interlocutory appeal: that to the extent an analysis of qualified
immunity turns on any fact (regardless of whether the district
court found there to be an genuine issue with regard to that
fact), the issue is not subject to review because the record
cannot be reviewed on appeal. See Sallenger v. Oakes, 473
F.3d 731 (7th Cir. 2007) (defendant appealing denial of
motion for summary judgment in qualified immunity case
must accept district court’s finding of facts in order for
Seventh Circuit to have jurisdiction to hear appeal); Via v.
LaGrand, 469 F.3d 618 (7th Cir. 2006)(discussing Johnson
and McKinney); and McKinney v. Duplain, 463 F.3d 679
(7th Cir. 2006) (court concluded that it could not review the
record to determine whether it supported the district court’s

12

conclusion that a genuine issue of fact existed as to whether
the suspect charged a police officer before he was fired upon).

The Seventh Circuit’s approach cannot be harmonized
with its earlier decisions expressly discouraging appeals of
adverse decisions on Rule 12(b)(6) motions based in qualified
immunity. See Jacobs v. City of Chicago, 215 F.3d 758, 775
(7" Cir. 2000) (“Rule 12(b)(6) is a mismatch for immunity
and almost always a bad ground of dismissal... summary
judgment is the right way to handle claims of immunity.”
Easterbrook, J., concurring.); See also Alvarado v. Litscher,
267 F.3d 648, 651 (7" Cir. 2001).

Neither can the Seventh Circuit’s approach be squared
with the practice of this Court. In Scott v. Harris, __ US.
__, 127 S.Ct. 1769, —-L.Ed.2d —_— (2007), decided this
term, the Court conducted an extensive review of a videotape
included in the record in considering whether, consistent with
the Fourth Amendment, an officer could take actions placing
a “fleeing motorist at risk of serious injury or death in order
to stop the motorist’s flight from endangering the lives of
innocent bystanders.” Scott, 127 S.Ct. at 1772.

[T]he Court of Appeals adopted respondent’s
assertions that, during the chase, “there was little, if
any, actual threat to pedestrians or other motorists, as
the roads were mostly empty and [respondent]
remained in control of his vehicle.” 433 F.3d, at
ee

The videotape tells quite a different story. There we
see respondent’s vehicle racing down narrow, two-
lane roads in the dead of night at speeds that are
shockingly fast. We see it swerve around more than a
dozen other cars, cross the double-yellow line, and

13

force cars traveling in both directions to their
respective shoulders to avoid being hit. We see it run
multiple red lights and travel for considerable periods
of time in the occasional center left-turn-only lane,
chased by numerous police cars forced to engage in
the same hazardous maneuvers just to keep up. Far
from being the cautious and controlled driver the
lower court depicts, what we see on the video more
closely resembles a Hollywood-style car chase of the
most frightcning sort, placing police officers and
innocent bystanders alike at great risk of serious
injury.

At the summary judgment stage, facts must be viewed
in the light most favorable to the nonmoving party
only if there is a “genuine” dispute as to those facts.
Fed. Rule Civ. Proc. 56(c). As we have emphasized,
“[w]hen the moving party has carried its burden under
Rule 56(c), its opponent must do more than simply
show that there is some metaphysical doubt as to the
material facts .... Where the record taken as a whole
could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial.’
“ Matsushita Elec. Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986) (footnote omitted). “[T]he mere
existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). When opposing
parties tell two different stories, one of which is
blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not

14

adopt that version of the facts for purposes of ruling
on a motion for summary judgment.

That was the case here with regard to the factual issue
whether respondent was driving in such fashion as to
endanger human life. Respondent’s version of events
is so utterly discredited by the record that no
reasonable jury could have believed him. The Court of
Appeals should not have relied on such visible fiction;
it should have viewed the facts in the light depicted by
the videotape.

Id. at 1775-76 (footnotes omitted).

Here, while the Seventh Circuit held the suit could
proceed to trial in order to determine if the alleged retaliation
arose from “testimony that plaintiffs gave in inmates’ suits,”
the panel declined to review the record in order to resolve the
question. In point of fact, there is no evidence in the record
— competent or otherwise - to suggest that petitioners were in
any way aware of respondents’ “assistance to prisoners and
their lawyers in litigation.” Moreover, there is no evidence
in the record to suggest either of the respondents did anything
to assist any inmates’ attorneys at any point that pre-dates any
of the allegations of “harassment.”

II. It has not been “Clearly Established” in the
Seventh Circuit, or any other Circuit, that it is
Legally Possible for One, Co-Equal, Employee to
“Deprive” Another, Co-Equal, Employee of His or
Her Constitutional Rights and Defendants are,
therefore, Entitled to Qualified Immunity.

Section 1983 permits a cause of action for the deprivation
of a right secured by the Constitution by someone acting

15

under color of state law. There are, broadly speaking, two
elements to any such claim: (1) the deprivation of a right
secured by the Constitution; and (2) that the deprivation
occurred “under color of state law.” See Alvarado v.
Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (quoting Gomez
v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d
572 (1980)). As a matter of law, neither element can be
established as against petitioners, respondents’ former co-
workers.

A. A Conflict Exists Among the Circuits Involving
Public Employment First Amendment Retaliation
Cases.

The U.S. Supreme Court “has established a mandatory
order of priority for resolution of the two standard issues”
relative to resolving the question of qualified immunity.
Bunting v. Mellen, 541 U.S. 1019, 124 S.Ct. 1750, 1753
(2004) (Scalia, J., dissenting) (citing Saucier v. Katz, 533
U.S. 194, 201, 121 S.Ct. 215, 150 L.Ed.2d 272 (2001)). “A
court must ask, first, whether the facts alleged show the
officer’s conduct violated a constitutional right; if so, the
next, sequential step is to resolve the qualified-immunity
claim by asking whether the right was clearly established.”
Id. (quoting, in part, Saucier v. Katz, supra.)(internal
quotation marks omitted) “The requisites of a qualified
immunity defense must be considered in proper sequence.”
Id. (quoting Saucier v. Katz, supra, at 200, 121 S.Ct. 2151)
(emphasis added).

Under the second step of the qualified immunity analysis
required by Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct.
215, 150 L.Ed.2d 272 (2001), a government official is
shielded from liability for damages when his or her conduct
does not violate “clearly established” statutory or

16

constitutional rights of which a reasonable person would have
known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

A proper qualified immunity analysis requires that the
constitutional right “be identified in a particularized sense
with respect to the circumstances of the alleged violation.”
Burns v. Reed, 44 F.3d 524 (7" Cir.1995). In order to
demonstrate that the right was “clearly established” the
plaintiff must offer “a closely analogous case or evidence that
the defendants’ conduct is so patently violative of the
constitutional right that reasonable officials would know
without guidance from the courts.” Id. [citing Casteel v.
Pieschek, 3 F.3d 1050, 1053 (7" Cir.1993).]

Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct.
1731, 20 L.Ed.2d 811 (1968) established that a public
employer cannot terminate one of its employees in retaliation
for an exercise of that employee’s First Amendment rights on
a matter of public concern. Since Pickering, a large body of
case law has developed expanding and expounding upon each
of the rule’s component parts - foremost among them: Does
the rule apply to an employer’s actions short of termination?

Over the ‘past twenty-seven years, First Amendment
retaliation cases in the Seventh Circuit can be categorized in
one of three ways:

(1) those cases holding that an “adverse employment
action” is an element of plaintiff's proof; See e.g. DeGuiseppe
v. Village of Bellwood, F.3d 187, 192 (7" Cir. 1995)

(2) those cases which that make actionable even “trivial
annoyances” provided they rise to the level of an “effective
deterrent to the exercise of First Amendment rights.” See

17

e.g. Bart v. Telford, 677 F.2d 622 (7th Cir. 1982); Pieczynski
v. Duffy, 875 F.2d 1331 (7th Cir. 1989); and

(3) cases seeking to harmonize the approaches of
categories (1) and (2). See e.g. Powers v. Summers, 226 F.3d
815, 820 (7" Cir. 2000); Mosely v. Board of Educ. of City of
Chicago, 434 F.3d 527 (7" Cir. 2006).

No case in any of the lines has, however, held that one
employee could be liable on Constitutional grounds for
harassing another, co-equal, employee. And this must be true
for at least two closely-related reasons, both of which are
cemented in the basic principle that only the government can
deprive a citizen of rights conferred by the Constitution:
First, co-employees cannot usually interact with one another
in such a way that one employee is acting - relative to
another, co-equal empioyee - as the alter ego of the
government employer. And second, co-employees do not act
“under color of state law” when interacting with one another.

The decision in the underlying case extends the 7"
Circuit’s public employment First Amendment retaliation
jurisprudence further than that of any other Circuit -
effectively permitting any public employee to be potentially
liabie for anything “likely to deter” another public employee’s
“exercise of free speech.”

And the holding serves to further highlight a split in
authority among the Circuits where public employment First
Amendment retaliation cases are involved. See Bohn,
Elizabeth J., Put On Your Coat, A Chill Wind Blows:
Embracing the Expansion of the Adverse Employment Action
Factor In Tenth Circuit First Amendment Retaliation Claims,
83 Denv. U. L. Rev. 867 (2006); Rosalie Berger Levinson,
Superimposing Title VII's Adverse Action Requirement on

18

First Amendment Retaliation Claims: A Chilling Prospect for
Government Employee Speech, 79 TUL. L. REV. 669, 694
(2005).

Four Circuits - the First, Fifth, Eighth and Eleventh -
explicitly limit public employment First Amendment
retaliation cases to those involving some type of a “materially
adverse change” in the terms or conditions of employment.
See e.g. Acosta-Orozco v. Rodriquez-de-Rivera, 132 F.3d 97,
101 n. 5 (1* Cir. 1997) [“unreasonably inferior” test]; Banks
v. East Baton Rouge Parish School Board, 320 F.3d 570, 580
(5" Cir. 2003) [“adverse employment action”}; Meyers v.
Starke, 420 F.3d 738, 744 (8 Cir. 2005) [{“adverse
employment action”]; Stavropoulos v. Firestone, 361 F.3d
610, 619 (11" Cir. 2004) [action affecting “important
condition of employment” J.

Unlike those four Circuits, Seventh Circuit jurisprudence
is unmoored to any consistent standard. See e.g. Bart v.
Telford, 677 F.2d 622 (7th Cir.1982); [“campaign of petty
harassments” may be actionable under Section 1983];
Pieczynski_ v. Duffy, 875 F.2d 1331 (7th Cir.1989)
{“Harassment of a public employee for his political beliefs
violates the First Amendment unless the harassment is so
trivial that a person of ordinary firmness would not be
deterred from holding or expressing those beliefs”]
DeGuiseppe v. Village of Bellwood, 68 F.3d 187, 192 (7th
Cir. 1995) [holding that an “adverse employment action” is
an element of plaintiff's proof in the context of a First
Amendment retaliation claim]; Powers v. Summers, 226 F.3d
815, 820 (7th Cir. 2000) [defining “adverse employment
action” in terms of the Bart v. Telford/Peicynski v. Duffy
test]; Mosely v. Board of Educ. of City of Chicago, 434 F.3d
527 (7th Cir. 2006) [same].

19

The limitation imposed by an express requirement that the
plaintiff demonstrate a “materially adverse change” in the
terms or conditions of employment has two effects beneficial
to the administration of these types of claims: (1) it
necessarily limits the pool of defendants to those who can
affect conditions of employment (i.e. supervisory personnel);
and (2) it imposes some limitation on the scope of the cause
of action beyond that currently imposed in the Seventh Circuit
- the outer contours of which are delineated only be the legal
maxim de minimis non curat lex. See Bart v. Telford, 677
F.2d 622, 625 (7th Cir.1982).

It is axiomatic that only the government can deprive a
citizen of rights conferred by the Constitution. And one
public employee without the authority to affect the terms and
conditions of another public employee’s employment cannot
be said to “violate” the second public employee’s First
Amendment rights no matter whatever he or she does.
Hundreds of thousands of public employees reside within the
confines of the Seventh Circuit. And the holding in Fairley,
in combination with the Seventh Circuit’s standard-less First
Amendment retaliation jurisprudence, has the potential to
inundate the federal courts with, quite literally, thousands
upon thousands of employee-versus-employee claims.

B. The Seventh Circuit Has Yet to Conclusively
Resolve Whether The “Adverse Employment
Action” Standard or The “Reasonably Likely To
Deter” Standard is the Appropriate Standard to
Apply to a Public Employer’s Actions For Purposes
of a First Amendment Retaliation Claim.

The “adverse employment action” element found in
DeGuiseppe v. Village of Bellwood, 68 F.3d 187, 192 (7"
Cir. 1995) and others would seem to have its roots in McGill

20.

v. Board of Education, 602 F.2d 774 (7" Cir.1979), a case in
which the Seventh Circuit extended Pickering’s holding - that
a public employee could not be terminated for exercising his
First Amendment rights —- beyond termination to a “retaliatory
transfer. McGill held that the standard to be applied to such
cases was “whether protected speech” was the motivating
factor “for the adverse action...” McGill 602 F.2d at 779
(emphasis added). The unstated logic underlying the
requirement would seem to lie in further extending, by
analogy, Pickering’s termination requirement to “adverse
action[s]” affecting public employment.

Another way of explaining the “adverse employment
action” construct is as a means of establishing a government
employer’s vicarious liability for the wrongful retaliatory
actions - specifically by way of the “aided in the agency
relation” rule found in Section 219(2){d) of the Restatement
(Second) of Agency. This “aided in the agency relation”
framework was settled upon by the Court in Burlington
Industries, Inc. v. Elierth, 524 U.S. 742, 118 S.Ct. 2257
(1998), as a means of explaining the closely analogous
“tangible employment action” in a Title VII context:

When a party seeks to impose vicarious liability based
on an agent’s misuse of delegated authority, the
Restatement’s aided in the agency relation rule... .
appears to be the appropriate form of analysis.

... Inasense, most workplace tortfeasors are aided
in accomplishing their tortuous objective by the
existence of the agency relation: Proximity and
regular contact may afford a captive pool of potential
victims. Were this to satisfy the aided in the agency
relation standard, an employer would be subject to
vicarious liability not only for all supervisor

21

harassment, but also for all co-worker harassment, a
result enforced by neither the EEOC nor any court of
appeals to have considered the issue. The aided in the
agency relation standard, therefore, requires the
existence of something more than the employment
relation itself.

At the outset, we can identify a class of cases where,
beyond question, more than the mere existence of the
employment relation aids in commission of the
harassment: where a supervisor takes a tangible
employment action against the subordinate. Every
Federal Court of Appeals to have considered the
question has found vicarious liability when a
discriminatory act results in a tangible employment
action. Although few courts have elaborated how
agency principles support this rule, we think it reflects
a correct application of the aided in the agency
relation standard.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 760, 118
S.Ct. 2257, 141 L.Ed.2d 633 (1998).

As the Ellerth Court made clear, only supervisors are in
position to take the types of actions that would bind the
employer under the Restatement analysis:

When a supervisor makes a tangible employment
decision, there is assurance the injury could not have
been inflicted absent the agency relation. . . . As a
general proposition, only a supervisor, or other
person acting with the authority of the [employer], can
cause this sort of injury. A co-worker can break a co-
worker’s arm as easily as a supervisor, and anyone
who has regular contact with an employee can inflict

22

psychological injuries by his or her offensive conduct.
But one co-worker (absent some elaborate scheme)
cannot dock another’s pay, nor can one co-worker
demote another. Tangible employment actions fall
within the special province of the supervisor.

Burlington Industries, Inc. v. Ellerth, 524 U.S. at 761-62
(emphasis added).

Practically, the situation has been no different in the
Seventh Circuit even in the sécond category of cases that do
not reference “adverse employment actions.” So in Bart v.
Telford, 677 F.2d 622 (7th Cir.1982), it was of undoubted
legal significance (though unanalyzed in the opinion) that the
allegation at issue was that it was the Mayor of Springfield
who “orchestrated a campaign of petty harassments” against
the plaintiff, a subordinate employee who had endorsed an
opposition candidate to succeed the current officeholder (after
dropping out of the race herself). And in Pieczynski v.
Duffy, 875 F.2d 1331 (7th Cir.1989), it was Pieczynski’s
superiors, retaliating against her because of her 10th Ward
political background, who removed her long distance line and
denied her vacation requests (among other things).

Application of the proper test has been confused further
still by this Court’s decision in Garcetti v. Ceballos, supra,
- which speaks of an “adverse employment action” as an
element of a §1983 retaliation claim - coupled with this
Court’s decision to adopt — three weeks later - the competing
“reasonably likely to deter” standard as the appropriate test
for Jitle VII retaliation claims. Burlington Northern and
Santa Fe Ry. Co. v. White, U.S. __, 126 S.Ct. 2405, 165
L.Ed.2d 345 (2006).

23

Qualified immunity dictates that government employees
“not become prey to every hypothesis of what the law might
have come to forbid had it eventually developed along certain
lines.” Dahm y. Flynn, 60 F.3d 253, 261(7th Cir. 1994)
(Easterbrook, J. dissenting). All this flux means that the
Seventh Circuit, or another, will eventually hold that fellow
employees are potentially liable to one another on
Constitutional grounds is indiscernible at this point. This case
presents a significant opportunity for this Court to resolve the
instability in the law surrounding this issue.

C. A State Employee Cannot be Said to be “Acting
Under Color Of State Law” When Interacting With
Other Co-Equal State Employees Unless He or She
is Explicitly Acting Pursuant to Powers Conferred
by the State.

“(T]he constitutional guarantee of free speech is a
guarantee only against abridgment by government, federal or
state.” Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47
L.Ed.2d 196 (1976). A private actor acting on his or her own
cannot deprive a citizen of First Amendment rights. See
Lansing v. City of Memphis, 202 F.3d 821, 828 (6" Cir.
2000).

The Seventh Circuit’s decision in Fairley effectively
ignores the distinction between private action and action under
color of state law. A result which is in conflict with decisions
of at least two other Circuits.

The Fourth Circuit distinguished private harassment
between fellow government employees in Hughes v. Halifax
County School Bd., 855 ¥.2d 183 (4th Cir.1988), cert.
denied, 488 U.S. 1042, 109 S.Ct. 867, 102 L.Ed.2d 991
(1989), a case involving county workers who staged a mock

24

hanging of plaintiff in alleged retaliation for plaintiff's
participation in a grand jury inquiry of the school board.
There, plaintiff argued that “he was assaulted, battered, and
subjected to intentional emotional distress under color of state
law because he was accosted by county employees with
retaliation in their eyes, on county land, with a county-owned
rope, during work hours.” The court concluded that
harassment by fellow school district employees was not
“under color of law” because defendants did not purport to
act under authority vested in them by the state. The Fourth
Circuit cautioned against a broad reading of “state action”
where “any employee of any state who commits a tort has
potentially violated §1983 ... [w]e cannot endorse this result.”
855 F.2d at 186.

The First Circuit arrived at the same conclusion in
Martinez v. Colon, 54 F.3d 980, 986 (1" Cir. 1995). In
Martinez, a police officer sued various of his fellow officers
after another fellow officer accidentally discharged his
firearm, maiming him. Entering summary judgment on the
constitutional claims, the First Circuit held that the plaintiff
had not produced any evidence tending to show that the
plaintiff's tormentor, when brandishing the firearm, was
exercising or purporting to exercise police power:

Here, the record is transpicuously clear that
throughout the course of Martinez’ ordeal Valentin did
not exercise, Or purport to exercise, any power (real
or pretended) possessed by virtue of state law. To the
contrary, Valentin was bent on a singularly personal
frolic: tormenting an acquaintance. Though on duty
and in uniform, Valentin’s status as a police officer
simply did not enter into his benighted harassment of
his fellow officer. Hazing of this sort, though

25

reprehensible, is not action under color or pretense of
law.

[Had the plaintiff] been a civilian rather than a fellow
officer, the significance of [defendant officer’s]
uniform and weapon for purposes of the color-of-law
determination might well have been greater. But
when the victim is himself a fellow officer and the
particular interaction between the two officers is of a
distinctively personal nature, it can generally be
assumed that the aggressor’s official trappings,
without more, will not lead the victim to believe that
the aggressor in acting with the imprimatur of the state
and, in turn, to forgo exercising legal rights.

Martinez, 54 F.3d at 987-88 n. 6:

“[W |hether a police officer is acting under color of state
law turns on the nature and circumstances of the officer’s
conduct and the relationship of that conduct to the
performance of his official duties.” Martinez v. Colon, 54
F.3d 980, 986 (1" Cir. 1995). “The key determinant is
whether the actor, at the time in question, purposes to act in
an official capacity or to exercise official responsibilities
pursuant to state law.” /d. Acting “under ‘color’ of law
means under ‘pretense’ of law.” Screws v. U.S., 325 U.S.
91, 111, 65 S.Ct. 1031, 1040 (1945). And “acts of officers
in the ambit of their personal pursuits are plainly excluded.”
Screws, 325 U.S. at 111, 65 S.Ct. at 1040.

The harassment at issue is wholly unrelated to the
performance of the defendant officers’ duties as state
employees. The Petitioners would have been just as capable
of the sexually-related “harassment;” drawing cartoons of

26

Gackowski or calling Fairley names if they were all
employees at a local McDonalds. The complained of
interactions arise merely from proximity - not any type of
state-conferred powers. By their very nature, they are
“private acts” rather than acts taken “under color of state
law.” Consequently, it cannot be said to have been “clearly
established” that petitioners, co-equal employees, were
potentially subject to suit under §1983.

CONCLUSION

For all the reasons set forth herein, the Petitioners
respectfully request that the petition for a writ of certiorari be
granted.

TERRY E. JOHNSON
Counsel of Record
DANIEL P. DUFFY
PETERSON JOHNSON & MURRAY, S.C.
30 North LaSalle Street, Suite 2900
Chicago, Illinois 60602
(312) 782-7150
, Counsel for Petitioners

June 18, 2007

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

No. 06-2411

[Filed March 19, 2007]

ROGER FAIRLEY and RICHARD
GACKOWSKI,
Plaintiffs-Appellees,

VAN FERMAINT, NORBERTO
BERCASIO, and FRED COFFEY,

)
)
)
)
V. )
)
)
)
Defendants-Appellants. )

)

Appeal from the United States District Court
for the Northern District of llinois, Eastern Division.
No. 03 C 5207.
Amy J. St. Eve, Judge.

Before Hon. FRANK H. EASTERBROOK, Chief Judge,
Hon. RICHARD A. POSNER, Circuit Judge, Hon. DIANE
P. WOOD, Circuit Judge.

2a

ORDER

Defendants-appellants filed a petition for rehearing and
rehearing en banc on January 3, 2007. All of the judges on
the panel have voted to grant rehearing and an opinion is
issued contemporaneously with this order. However, the
petition for rehearing en banc” is DENIED.

" Judge Flaum did not participate in the consideration of this matter.

3a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

No. 06-2411

{Filed March 19, 2007]

ROGER FAIRLEY and RICHARD
GACKOWSKI,
Plaintiffs-Appellees,

Vv,

EVAN FERMAINT, NOBERTO
BERCASIO, and FRED COFFEY,

)
)
)
)
)
)
)
)
Defendants-Appellants. )
)

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 03 C 5207—Amy J. St. Eve, Judge.

ARGUED NOVEMBER 7, 2006—
DECIDED DECEMBER 20, 2006
ON REHEARING DECIDED MARCH 19, 2007

Before EASTERBROOK, Chief Judge, and POSNER and
WOOD, Circuit Judges.

4a

EASTERBROOK, Chief Judge. Two former guards at Cook
County Jail contend in this suit under 42 U.S.C. §1983 that
some of their ex-colleagues violated the Constitution’s first
amendment (applied to state actors via the fourteenth) by
vilifying and assaulting them because they stood up for
inmates’ rights. According to the complaint, the defendants
and their confederates bully and ostracize any guard who
plays by the rules; these strong arm tactics organize and
protect guards who beat inmates at whim and then lie about
their activities to their superiors, criminal investigators, and
judges in any suits that the prisoners may file. Plaintiffs’
allegations may or may not be true; this litigation has not
reached the point at which a judge or jury sifts fact from
fiction.

Defendants moved for summary judgment on the ground
of official immunity, and they have appealed from the order
denying this motion. Despite its interlocutory character, such
an order is appealable. But there is a wrinkle: defendants
asked the court to dismiss the complaint two years ago, before
discovery commenced, and did not appeal from the adverse
decision. They reply that Behrens v. Pelletier, 516 U.S. 299
(1996), allows successive interlocutory appeals at the
complaint and summary judgment stages, so it must logically
allow defendants to forego appeal at the complaint stage and
save their arguments for summary judgment.

Our initial decision in this case, 471 F.3d 826 (2006),
dismissed the appeal for want of jurisdiction. Relying on
Garvin v. Wheeler, 304 F.3d 628, 632-33 (7th Cir. 2002),
and the principle that the time for appeal cannot be extended
by seeking reconsideration of a district court’s order after the
30 days has lapsed, see Charles v. Daley, 799 F.2d 343, 347-
48 (7th Cir. 1986), we concluded that the defendants’ appeal
was untimely. They could have appealed from the order

Sa

denying their motion to dismiss the complaint. When they
failed to appeal from that decision, and then filed a motion for
summary judgment reiterating arguments that the district court
already had rejected, they were just attempting to extend the
time for appeal, we held. Our opinion implied some doubt
about the wisdom and scope of the decision in Garvin but
observed that defendants had not asked us to revisit the
subject, so we took circuit law as we found it.

Defendants’ petition for rehearing, with the support of
multiple amici curiae, has asked us to take a fresh look at the
subject. The request is not one we can dispatch with the
observation that it comes too late, for defendants’ position
turns out to have the support of language in 7Joeller v.
Wisconsin Department of Corrections, 461 F.3d 871, 873-74
(7th Cir. 2006), a decision that none of the parties cited to us
and that we did not consider independently. In dealing with an
interlocutory appeal that had been taken to assert a form of
sovereign immunity, 7oeller had this to say:

WDOC argues that this court has jurisdiction over the
district court’s order rejecting its defense, noting that
it is established that “States . . . may take advantage
of the collateral order doctrine to appeal a district
court order denying a claim of Eleventh Amendment
immunity.” Nanda v. Bd. of Trs. of Univ. of Ill., 303
F.3d 817, 821 (7th Cir. 2002) (quoting Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506
U.S. 139, 147 (1993)). Toeller acknowledges this
rule, but he argues that WDOC failed to file its notice
of appeal within the time permitted by Fed. R. App.
P. 4(a)—a step that is also required before this court
may entertain the appeal.

6a

Toeller’s position, however, rests on the mistaken
premise that WDOC had one and only one opportunity
to take an interlocutory appeal on this issue. He
believes that this opportunity arose after the district
court’s initial denial of the State’s motion to dismiss,
which was docketed on December 23, 2003. But
Behrens v. Pelletier, 516 U.S. 299 (1999), held to the
contrary, in the closely-related area of interlocutory
appeals from denials of motions to dismiss on
qualified immunity grounds. See id. at 307. We see no
reason why the rationale of Behrens should not apply
with equal force to interlocutory appeals of Eleventh
Amendment immunity claims. From that standpoint,
WDOC’s notice of appeal easily satisfied Rule 4(a).
The district court denied WDOC’s motion for
summary judgment (which included its renewed
Eleventh Amendment defense) on September 29,
2005, and the State filed its notice of appeal
comfortably within the 30-day period allowed by the
rule, on October 17, 2005. We conclude that we have
jurisdiction over this appeal and thus may proceed to
the merits.

This passage says that, when Behrens allows an appeal
from both a decision denying a motion to dismiss a complaint
and a decision denying a motion for summary judgment, the
litigant’s appeal from the latter decision cannot be rejected as
an effort to extend the time to appeal from the former.

Just as our decision neglected Toeller, so the panel in
Toeller did not mention Garvin. Perhaps it did not need to do
so: unless the motions to dismiss and for summary judgment
in TJoeller were materially identical, then Garvin (as our panel
understood it) did not foreclose appeal from the denial of
summary judgment. A material difference between the

Ta

arguments made in the two stages is not, however, the ground
on which Toeller resolved the appeal. The stated rationales of
Garvin, Toeller, and the decision in this appeal are not
compatible. We need to bring harmony to the law of the
circuit, and to do so it is best to return to first principles. We
grant the petition for rehearing and proceed to decide this
appeal anew.

Mitchell v. Forsyth, 472 U.S. 511 (1985), held that a
defendant who claims qualified immunity is entitled to take an
interlocutory appeal. Mitchell used the approach of Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), which
held that a decision is “final” (and thus appealable under 28
U.S.C. §1291) when it conclusively resolves an important
question that cannot be reviewed on appeal at the litigation’s
end. The Court concluded in Mitchell that qualified immunity
gives the defendant a right not only to prevail but also to
avoid entanglement in the litigation—sometimes dubbed a
“right not to be tried,” this entitlement includes a right to
avoid discovery if matters are sufficiently clear at the outset
of the suit. Behrens held that Mitchell logically implies a right
to appeal from either or both of an order refusing to dismiss
the complaint and an order denying a public official’s motion
for summary judgment, because each of these orders can
“conclusively resolve” an aspect of the qualified immunity
right: an order refusing to dismiss the complaint conclusively
rejects a defendant’s claim of freedom from discovery, and an
order denying a motion for summary judgment conclusively
rejects a defendant’s claim of freedom from trial. Each of
these decisions is “final” in the Cohen-Mitchell framework,
and §1291 allows the aggrieved party to appeal from every
final decision.

Once a “final” decision has been made, the clock for
filing a notice of appeal begins to run. It stops if a motion for

8a

reconsideration is filed while time for appeal remains, see
United States v. Dieter, 429 U.S. 6 (1976) (holding that this
principle applies even if the order is interlocutory and no rule
specifically authorizes a motion for reconsideration), and
Starts anew once such a motion is denied. Fed. R. App. P.
4(a)(4). A motion for reconsideration filed outside the time
for appeal (or otherwise provided by rule for such a motion),
or a successive motion for reconsideration, does not affect the
time for appeal or reopen the window. See Charles v. Daley,
supra. When there are two “final” decisions in a case, the
time runs independently from each. This would be clear
enough if the first “final” decision were an order denying a
motion to dismiss the complaint, and the second were the final
decision after a trial. It is no less true when (as a result of
Behrens) multiple “final decisions” precede the single “final
judgment.” This is what Toeller said—correctly, we conclude.

Garvin could have been decided as a simple application of
these principles. The district court denied a public official’s
motion for summary judgment. After the time for appeal had
expired, defendant asked the district court to reconsider and
appealed from the order denying that motion. Instead of
applying the rule that an untimely motion for reconsideration
never extends or reopens the time for appeal, however, the
panel in Garvin stated that a motion making new legal or
factual arguments might reopen the time—but that because no
new arguments had been advanced in that case, the appeal
must be dismissed. That analysis led us to ask whether the
appellants in our case had made new arguments and, finding
that they had not, to dismiss their appeal. But the search for
new arguments is unsound. Once a final decision has been
made, and the time for appeal (or an authorized motion to
reconsider) has expired, it does not matter what arguments the
litigant adduces. The window for appeal cannot be reopened.

9a

The right inquiry under Mitchell and Behrens is what the
court has done, not what arguments the litigant has made.
Once the judge has conclusively denied a motion to dismiss
the complaint or grant summary judgment, the time for appeal
begins to run. A tentative decision, by contrast, is not “final”
and does not start the time for appeal; the defendant is free to
make new arguments (or reiterate old ones) without
jeopardizing the opportunity to appeal once the district judge
turns the tentative resolution into a conclusive one. To the
extent that Garvin made appellate jurisdiction turn on the
arguments presented fo the judge, rather than the sort of
decision made by the judge, it is disapproved.’ We now hold,
in accord with Behrens and Toeller, that a public official may
appeal from an order conclusively denying a motion (based on
qualified immunity) seeking summary judgment, whether or
not the official has appealed from an order denying a motion
to dismiss the complaint, and whether or not the motion for
summary judgment rests on new legal or factual arguments.
But once a conclusive resolution has been reached at either
stage, a renewed motion for the same relief, or a belated
request for reconsideration, does not reopen the time for
appeal. Accord, Robbins v. Wilkie,433 F.3d 755, 762-63
(10th Cir. 2006); Vega v. Miller, 273 F.3d 460, 465-66 (2d
Cir. 2001); Grant v. Pittsburgh, 98 F.3d 116, 120 (3d Cir.
1996).

This conclusion relieves public officials from any pressure
to take what may be premature appeals from orders declining

" This opinion has been circulated to all active judges under Circuit
Rule 40(e). No judge requested a hearing en banc on the question
whether to change the legal analysis employed in Garvin. Circuit
Judge Flaum did not participate in the consideration or decision of
this case.

10a

to dismiss complaints. See Jacobs v. Chicago, 215 F.3d 758,
765 n.3 (7th Cir. 2000), id. at 775 (concurring opinion);
McMath v. Gary, 976 F.2d 1026, 1031 (7th Cir. 1992). It
also operates mechanically, a desirable feature in any
jurisdictional rule. See Budinich v. Becton Dickinson & Co..,
486 U.S. 196, 202 (1988) (“The time of appealability, having
jurisdictional consequences, should above all be clear.”).
Garvin and our initial opinion could send litigants and judges
on a tour of the record to determine whether and when a
public official is entitled to appeal. How much preferable it is
to have a rule that can be applied using only a copy of the
district court’s decision and a calendar.

Our conclusion that this appeal is timely does not mean,
however, that the defendants are home free. Defendants’
principal argument relies on Garcetti v. Ceballos, 126 S. Ct.
1951 (2006), which holds 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.” /d. at 1960. Defendants invoke Garcetti
for the proposition that plaintiffs’ speech in the workplace is
not covered by the first amendment, so they are entitled to
prevail even though their reactions to that speech are asserted
to be extra-legal and reprehensible. Such responses may be
actionable under state law in the wake of Garcetti, defendants
allow, but cannot be treated as constitutional torts.

Plaintiffs maintain, however, that defendants reacted
adversely to two kinds of speech: not only statements made as
part of their duties at work (the kind of speech to which
Garcetti applies) but also to testimony that plaintiffs gave in
inmates’ suits. Assistance to prisoners and their lawyers in
litigation is not part of a guard’s official duties. To apply
Garcetti, therefore, we would need to determine whether

lla

defendants reacted to plaintiffs’ activities in litigation (they
say not) and which of defendants’ deeds can be traced to the
litigation as opposed to events at work. Piecing out the state
of the record, and drawing inferences from the evidence, is
not allowed on an interlocutory appeal based on a claim of
immunity. See Johnson v. Jones, 515 U.S. 304 (1995); Via v.
LaGrand, 469 F.3d 618 (7th Cir. 2006). The role of an
appeal under Mitchell and Behrens is to determine whether the
legal principles that apply to public officials were clearly
established at the time those officials acted; it is not to
determine what the officials did in fact, for that would
impinge on the jury’s task.

It was clearly established long before the events of which
plaintiffs complain that state actors may not assault witnesses
in federal litigation. That’s a crime, see 18 U.S.C.
§1512(a)(2), so no public official could think the conduct
proper. Still, an interlocutory appeal is not the forum for
resolving disputes about whether defendants did what
plaintiffs accuse them of. Nor is an interlocutory appeal a
means to obtain review of the question whether the suit is
barred by the statute of limitations. That subject has nothing
to do with official immunity. Defendants appear to believe
that all arguments of any stripe are open on an interlocutory
appeal under Mitchell, but as Jones shows that’s not so.

When entertaining an interlocutory appeal by a public
official who seeks the shelter of qualified immunity,
the threshold question is: “Taken in the light most
favorable to the party asserting the injury, do the facts
alleged show the [public official’s] conduct violated a
constitutional right?” Saucier vy. Katz, 533 U.S. 194,
201 (2001). See also, e.g., Brosseau v. Haugen, 543
U.S. 194, 197 (2004); Newsome v. McCabe, 319 F.3d
301, 303-04 (7 Cir. 2003). Only if the answer is

12a

affirmative does the court inquire whether the official
enjoys qualified immunity. “[I]f a violation could be
made out on a favorable view of the parties’
submissions, the next, sequential step is to ask
whether the right was clearly established.” Saucier,
533 US. at 20].

Hosty v. Carter, 412 F.3d 731, 733 (7th Cir. 2005) (en
banc)(bracketed material in original). Whether plaintiffs’ suit
is untimely does not bear on either of the questions identified
in Saucier and Hosty.

Defendants’ further argument that they are not state
actors, because all of the guards are on the same level of the
employment hierarchy, is self-defeating at this stage of the
litigation. For if they are not state actors, they also are not
entitled to take an interlocutory appeal. The premise of this
appeal is that the defendants are public officials sued on
account of their official conduct; by denying that premise and
insisting that they behaved in a private capacity on a private
frolic the defendants knock out appellate jurisdiction. See
Mitchell v. Aeolus, 872 F.2d 577,580 (4th Cir. 1989). Lack
of state action would be a reason why this suit belongs in state
court under state tort law, rather than in federal court under
§1983, but an argument along these lines does not assert a
right not to be tried; it just asserts a right to be tried in a
different forum, and such a contention does not justify an
interlocutory appeal. See Van Cauwenberghe v. Biard, 486
U.S. 517 (1988).

Perhaps the state-actor theme can be recast as an argument
that one public official’s misconduct toward another at the
same level of the bureaucracy cannot violate the Constitution.
So put, the argument is within the first step of immunity
analysis under Saucier. But so put the argument ts a loser.

13a

Suppose one police officer arrests another or searches his
house; that step, if taken without probable cause (and a
warrant, if required for the search), violates the fourth
amendment. See Acevedo v. Canterbury, 457 F.3d 721 (7th
Cir. 2006); Driebel v. Milwaukee, 298 F.3d 622, 649-50 (7th
Cir. 2902). Suppose the white guards at a prison mercilessly
harass the blackguards and make their lives miserable, or
suppose the men demean the women. Such misconduct may
be actionable under the Constitution. See, e.g., Bohen v. East
Chicago, 799 F.2d 1180 (7th Cir. 1986); Valentine v.
Chicago, 452 F.3d 670 (7th Cir. 2006). See also, e.g., Bart
v. Telford, 677 F.2d 622 (7th Cir. 1982) (campaign of
harassment against co-worker on account of speech can
violate the first amendment); Powers v. Summers, 226 F.3d
815 (7th Cir. 2000) (same).

In litigation under Title VII of the Civil Rights Act
of1964, one worker’s misconduct toward another does not
automatically lead to liability for the employer, because
liability under that statute is direct rather than vicarious. Only
employers are subject to the law’s commands, and employers
are responsible for what they do (or elect to tolerate), rather
than what everyone in the work force does. See Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v.
Boca Raton, 524 U.S. 775 (1998). Things are otherwise under
§ 1983. State agencies are not“persons” under §1983, see Will
v. Michigan Department of State Police, 491 U.S. 58 (1989),
and even units of local government are responsible only for
their policies rather than misconduct by their workers. Monell
v. New York City Department of Social Services, 436 U.S.
658 (1978). Liability falls on the misbehaving
employees—which of course is why they are keen to assert
immunities from suit. Whether defendants engaged in the
conduct of which plaintiffs accuse them—and, if so, whether
they did it to retaliate for plaintiffs’ constitutionally protected

14a

speech, or just because defendants have a mean streak—are
questions hat must be resolved at trial. Arguments based on
Garcetti, the state-action doctrine, and the statute of
limitations are preserved for decision on appeal from the final
judgment. See Kurowski v. Krajewski, 848 F.2d 767 (7th Cir.
1988). ,

AFFIRMED
A true Copy:
Teste:

/s/

Clerk of the United States Court of

Appeals for the Seventh Circuit

lSa

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

No. 06-2411

[Filed December 20, 2006]

ROGER FAIRLEY and RICHARD
GACKOWSKI,
Plaintiffs-Appellees,

¥.

EVAN FERMAINT, NOBERTO
BERCASIO, and FRED COFFEY,

)
)
)
)
)
)
)
)
Defendants-Appellants. )
)

Appeai from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 03 C 5207—Amy J. St. Eve, Judge.

ARGUED NOVEMBER 7, 2006—
DECIDED DECEMBER 20, 2006

Before EASTERBROOK, Chief Judge, and POSNER and
WOOD, Circuit Judges.

EASTERBROOK, Chief Judge. Two former guards at
Cook County Jail contend in this suit under 42 U.S.C. §1983

l6a

that some of their ex-colleagues violated the Constitution’s
first amendment (applied to state actors via the fourteenth) by
vilifying and assaulting them because they stood up for
inmates’ rights. According to the complaint, the defendants
and their confederates bully and ostracize any guard who
plays by the rules; these strong-arm tactics organize and
protect guards who beat inmates at whim and then lie about
their activities to their superiors, criminal investigators, and
judges in any suits that the prisoners may file. Plaintiffs’
allegations may or may not be true; this litigation has not
reached the point at which a judge or jury sifts fact from
fiction.

Defendants moved for summary judgment on the ground
of official immunity, and they have appealed from the order
denying this motion. Despite its interlocutory character, such
an Order is appealable under the approach of Mitchell v.
Forsyth, 472 U.S. 511 (1985). But there is a wrinkle:
defendants asked the court to dismiss the complaint two years
ago, before discovery commenced, and did not appeal from
the adverse decision. They reply that Bahrainis v. Pelletier,
516 U.S. 299 (1996), allows successive interlocutory appeals
at the complaint and summary judgment stages, so it must
logically allow defendants to forego appeal at the complaint
stage and save their arguments for summary judgment.

The problem is not, however, the number of appeals but
timing. Litigants have only 30 days to appeal. See Fed. R.
App. P. 4(a)(1)(A). Having let the time pass, a litigant cannot
reopen the window by re-filing the same motion or its
functional equivalent and obtaining the same decision. See
Charles v. Daley, 799 F.2d 343, 347-48 (7th Cir. 1986). That
would be equivalent to abolishing the time limit. Thus we
held in Garvin v. Wheeler, 304 F.3d 628, 632-33 (7th Cir.
2002), that when an immunity-based motion for summary

l7a

judgment duplicates a motion already made and denied—when
no new facts or legal arguments are presented in support of
the new motion—an appeal from the order denying summary
judgment must be dismissed, because the maneuver is nothing
but an effort to get around the time limit. Cf. Vega v. Miller,
273 F.3d 460, 465-66 (2d Cir. 2001) (new arguments allow
a new appeal under Behrens).

In Bahrainis the successive motions rested on different
grounds; the Supreme Court noted these differences as part of
the justification for allowing multiple interlocutory appeals.
516 U.S. at 308-09. It was not possible to characterize the
second interlocutory appeal in Bahrainis as an effort to evade
the 30-day limit for filing a notice of appeal from the initial
decision. The holding of Behrens is that both an order
declining to dismiss the complaint and an order denying
summary judgment are “final” decisions under 28 U.S.C.
§1291 when the defendant invokes an immunity to discovery
or trial; the timing for permissible appeals did not arise. In
our case timing is everything, and the generally applicable
rule that the window for appeal cannot be reopened by filing
the same motion again covers this situation.

The rule that successive motions do not reopen the time
for appeal applies to all “final decisions”—and a decision
rejecting an immunity defense is “final” even though the
litigation continues. The independent “finality” of such
decisions is the linchpin of both Mitchell and Bahrainis. So it
will not help to assert that the doctrine does not concern
interlocutory decisions; an order rejecting an immunity
defense is “final” rather than “interlocutory” as the Supreme
Court draws that distinction.

Perhaps one could doubt the wisdom of Garvin because it
has the potential to encourage unnecessary protective appeals.

18a

Suppose that a public official prefers to avoid the cost and
delay associated with an appeal at the complaint stage,
confident that discovery either will foil plaintiffs’ claims on
the merits or fortify the basis of immunity. If discovery
(unexpectedly) does not turn up new evidence, then Garvin
means that the defendant cannot appeal from an order denying
summary judgment: the invocation of immunity will just
repeat the arguments made earlier, rendering the appeal
untimely. To avoid ensnaring even the wary litigant, a court
might instead say, as Bahrainis emphasized, that an order
denying a motion to dismiss the complaint, and an order
denying summary judgment, are independently “final” (for
purposes of Mitchell), so that each has its own 30-day period
for appeal no matter what arguments have been raised. Such
an approach would have the additional virtue of clarity and
mechanical application, much-desired qualities in any
jurisdictional doctrine. See Budinich v. Becton Dickinson &
Co., 486 U.S. 196 (1988). But this approach also would
require us to overrule Garvin, a step that defendants have not
proposed.

Garvin cannot be treated as limited to successive motions
for summary judgment and distinguished on the ground that
this case involved a motion to dismiss the complaint followed
by a motion for summary judgment. Behrens holds that an
interlocutory appeal is proper from any decision finally
rejecting a claim of official immunity. Both an order declining
to dismiss a complaint and an order denying a motion for
summary judgment fit that category, the Court held. There is
no basis in Bahratnis or its predecessors for saying that all
motions to dismiss must be sorted into one pile, and all
motions for summary judgment into a second, with one appeal
from each category of motion rather than from each order that
is a“ final decision” for the purpose of 28 U.S.C. §1291. So
it does not make any difference that Garvin involved

19a

successive requests under Rule 56, while this case entails one
request for relief under Rule 12 and a second under Rule 56.
What does matter is that in both Garvin and this litigation the
two motions were functionally identical, and entertaining an
appeal from the second decision would effectively extend the
time to appeal from the first.

One effect of this understanding will be to make
defendants more likely to appeal from the district court’s
order denying a motion to dismiss the complaint. Yet this is
not the only effect. Another is to reduce the incentive to file
premature motions; a defendant who refrains from filing a
doomed motion to dismiss does not jeopardize a later appeal.
A third effect is to induce defendants who do move to dismiss
the complaint, and lose, to do more legal and factual digging
before they file a motion for summary judgment. That effect
is all to the good, because it improves the accuracy of judicial
decision-making, and it is the sort of thing that Bahrainis
contemplated would occur. Finally, in some cases the effect
may be to postpone appellate review to the end of the
litigation, when immunity may no longer matter (and all facts
will be in focus if it still does matter). That cannot be
dismissed as a trivial benefit to the judicial system.

Defendants concede that their motion for summary
judgment replicated their motion to dismiss the complaint.
Only the caption differed. Nothing that turned up in discovery
mattered; no new legal argument was advanced.

Fortuitously, something changed after the district court
denied defendants’ renewed motion: 26 days later, the
Supreme Court decided Garceiti v. Ceballos, 126 S. Ct. 1951
(2006), which holds that, “when public employees make
statements pursuant to their official duties, the employees are
not speaking as citizens for First Amendment purposes, and

20a

the Constitution does not insulate their communications from
employer discipline.” /d. at 1960. Defendants rely on
Garcetti for the proposition that plaintiffs’ speech in the
workplace is not covered by the first amendment, so they are
entitled to prevail even though their reactions to that speech
are asserted to be extra-legal and reprehensible. Such
responses may be actionable under state law in the wake of
Garcetti, defendants allow, but cannot be treated as
constitutional torts.

Although it is tempting to see in Garcetti the sort of
change that allows an appeal without offense to the rule that
repetitious arguments do not open a new 30-day period, things
are not so straight forward. Plaintiffs maintain that defendants
reacted adversely to two kinds of speech: not only statements
made as part of their duties at work (the kind of speech to
which Garcetti applies) but also to testimony that plaintiffs
gave in inmates’ suits. Assistance to prisoners and their
lawyers in litigation is not part of a guard’s official duties. To
apply Garcetti, therefore, we would need to determine
whether defendants reacted to plaintiffs’ activities in litigation
(they say not) and which of defendants’ deeds can be traced

to the litigation as opposed to events at work. Piecing out the

state of the record, and drawing inferences from the evidence,
is not allowed on an interlocutory appeal based on a claim of
immunity. See Johnson v. Jones, 515 U.S. 304 (1995); Via v.
LaGrand, No. 04-4011 (7th Cir. Nov. 17, 2006). The role of
an appeal under Mitchell and Behrens is to determine whether
the legal principles that apply to public officials were clearly
established at the time those officials acted; it is not to
determine what the officials did in fact, for that would
impinge on the jury’s task.

It was clearly established long before the events of which
plaintiffs complain that state actors may not assault witnesses

2la

in federal litigation. That’s a crime, see 18 U.S.C.
§1512(a)(2), so no public official could think the conduct
proper. Still, an interlocutory appeal is not the forum for
resolving disputes about whether defendants did what
plaintiffs accuse them of. Nor is an interlocutory appeal a
means to obtain review of the question whether defendants
were engaged in state action in doing whatever they may have
done; that issue is unrelated to legal uncertainty and thus to
the doctrine of official immunity.

If the defendants ultimately lose this litigation, they will
be entitled to raise their immunity defenses on appeal from the
final decision. See Kurowski v. Krajewski, 848 F.2d 767 (7th
Cir. 1988). All we hold today is that, while Garvin stands,
public officials cannot use a motion for summary judgment in
order to reopen the time to take an interlocutory appeal from
an order declining to dismiss the complaint. Although
Garcetti might have allowed an appeal based on new legal
arguments, Johnson v. Jones blocks that route given the
material factual disputes, resolution of which is beyond the
scope of any interlocutory appeal. This appeal is dismissed for
want of jurisdiction.

POSNER, Circuit Judge, dissenting. The majority opinion
remarks:

Perhaps one could doubt the wisdom of Garvin [v.
Wheeler, 304 F.3d 628 (7th Cir. 2002)], because it
has the potential to encourage unnecessary protective
appeals. Suppose that a public official prefers to avoid
the cost and delay associated with an appeal at the
complaint stage, confident that discovery either will
foil plaintiffs’ claims on the merits or fortify the basis
of immunity. If discovery (unexpectedly) does not
turnup new evidence, then Garvin means that the

22a

defendant cannot appeal from an order denying
summary judgment: the invocation of immunity will
just repeat the arguments made earlier, rendering the
appeal untimely. To avoid ensnaring even the wary
litigant, a court might instead say, as Bahrainis [v.
Pelletier, 516U.S. 299 (1996)], emphasized, that an
order denying a motion to dismiss the complaint, and
an order denying summary judgment, are
independently “final”, . . . so that each has its own
30-day period for appeal no matter what arguments
have been raised. Such an approach would have the
additional virtue of clarity and mechanical application,
much-desired qualities in any jurisdictional

doctrine. . . . But this approach also would require us
to overrule Garvin, a step that defendants have not
proposed.

The defendants have not proposed that we overrule Garvin for
the excellent reason that Garvin is readily distinguishable
from the present case. So if my colleagues think it should be
overruled, they should not refrain from overruling it just to
punish the defendant’s lawyer for obtuseness in having failed
to ask us to overrule it. He was not obtuse. They have over
read the case.

Garvin was a Case of two successive motions for summary
judgment on immunity, so that by appealing from the denial
of the second motion but not from the denial of the first the
defendant could be thought to have tried to extend the time to
appeal beyond the 30-day limit for taking an appeal. (I don’t
think that’s an accurate characterization, but | accept it for the
moment.) In our case, a motion to dismiss was denied,
discovery ensued, a motion for summary judgment was made
and denied, and it was from that denial that the defendants
appeal. As my colleagues acknowledge in the passage I

23a

quoted, it makes sense for a defendant not to appeal from the
denial of his motion to dismiss if he thinks discovery will
strengthen his case for immunity. He will balance the cost of
the appeal against the cost of discovery, having regard also
for the possible effect of discovery in turning a losing
immunity defense into a winner and for the danger that losing
an appeal from the denial of the motion to dismiss would
reduce his chances of winning the subsequent appeal.

Garvin did not mention this argument, let alone reject it.
It did point out that the additional discovery that the defendant
conducted after the denial of the first motion for summary
judgment did not turn up any facts favorable to his immunity
defense. But that observation was consistent with a rule that
in the absence of exceptional circumstances you cannot file
identical successive motions for summary judgment on
immunity and be permitted to appeal from any or all of them.
That could inundate the courts of appeals with multiple
appeals in the same case. You can appeal from the denial of
your motion to dismiss and from the denial of your first
motion for summary judgment, but that’s it. (An alternative,
more lenient rule, which would require overruling Garvin but
is not necessary for the sound decision of this case, would
permit one appeal from denial of summary judgment without
specifying that it must be.taken from the denial of the first
motion for summary judgment, if as in Garvin there is more
than one such motion; for why should we care which denial
the defendant appeals from?)

The concern with inundation is the opposite in this case:
if failing to appeal the denial of a motion to dismiss blocks a
subsequent appeal from denial of a motion for summary
judgment, then courts of appeals could be inundated by
protective appeals from denials of motions to dismiss. This
point was made in Vega v. Miller, 273 F.3d 460, 465-66 (2d

24a

Cir. 2001), which my colleagues cite, and also in Robbins v.
Wilkie, 433 F.3d 755, 763-64 (10th Cir. 2006), and Grant v.
City of Pittsburgh, 98 F.3d 116, 121 (3d Cir. 1996).

Allowing the appeal in this case would not be inconsistent
with the dismissal of the defendant’s appeal in Garvin. But to
see this we need to understand that whether a decision can be
distinguished, in order to avoid its having precedential force
in a Subsequent case, or must be overruled to have that effect,
depends on the breadth of its holding, and that often there is
a choice as to how broadly a holding should be understood.
The choice is made by courts in later cases, the cases in
which the decision is argued to be a precedent. Garvin can be
read narrowly to hold that denials of second or successive
motions for summary judgment on grounds of immunity
cannot be appealed unless there has been some important
change since the first denial, or broadly to hold (with the
same “unless” qualification) that the denial of a motion for
summary judgment cannot be appealed if a motion for
summary judgment or a motion to dismiss was denied
previously. It is our choice. The panel majority, in the
“Perhaps” passage that I quoted earlier, explained why the
narrower reading is superior, yet unaccountably it chooses the
broader reading.

Well, not quite unaccountably. For later in its opinion the
majority has second thoughts, and suggests two reasons why
the broader reading might be preferable after all: that it would
reduce the incentive to file doomed motions to dismiss, and
that it would encourage more discovery. As to the latter point,
the last thing the federal courts need is more discovery. As to
the former, “doomed” motions to dismiss do not take up
much time of a district judge.

25a

I said that that one way to describe an appeal from the
denial of a successive motion for summary judgment that is
identical to the first motion is as an attempt to extend the time
for appealing from the initial denial. The panel majority
embraces that interpretation as the linchpin of its decision,
saying (citations omitted):

Litigants have only 30 days to appeal. Having let the
time pass, a litigant cannot reopen the window by
refiling the same motion or its functional equivalent
and obtaining the same decision. That would be
equivalent to abolishing the time limit . . . . [I]t does
not make any difference that Garvin involved
successive requests under Rule 56, while this case
entails one request for relief under Rule 12 and a
second under Rule 56. What does matter is that in
both Garvin and this litigation the two motions were
functionally identical, and entertaining an appeal from
the second decision would effectively extend the time
to appeal from the first.

Two things are overlooked in this passage: the difference
between appeals from final judgments and interlocutory
appeals, and the difference between motions to dismiss and
motions for summary judgment.

Suppose a final judgment is rendered and the losing party
does not appeal within the 30 or 60 days or whatever time is
allowed for filing the appeal, but later thinks better of his
decision, files a Rule 60(b) motion to vacate the judgment,
appeals from the denial, and argues in the appeal that the
judgment was wrong. That would indeed be a case of using an
appeal from the denial of a motion as a means of extending
the time for appealing an earlier ruling, and it would be
objectionable because it would deny finality to the litigation.

26a

The defendants in this case are not trying to reopen a
completed litigation. When they filed their motion to dismiss
there was no final judgment; when they filed their motion for
summary judgment there was no final judgment; and there
still is no final judgment. It made and makes no difference to
anyone whether they appealed from the denial of their motion
to dismiss, or passed and appeal instead from the denial of
their motion for summary judgment. The only effect of
today’s decision will be to engender the filing of protective
appeals. What is the point? To honor stare decisis? But read
narrowly, for the reason that the panel majority itself suggests
in the “Perhaps” passage, Garvin does not control the present
case; and it is entirely legitimate to read it narrowly. Courts
read precedents broadly or narrowly depending on what the
courts have learned subsequent to the precedents.

The other difference that the panel majority overlooks is
the difference between a motion to dismiss and a motion for
summary judgment. Defendants are entitled to immunity if
their “conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As
the Court explained in Bahrainis v. Pelletier, supra, 516 U.S.
at 309 (emphasis in original),“the legally relevant factors
bearing upon the Harlow question will be different on
summary judgment than on an earlier motion to dismiss. At
that earlier stage, it is the defendant’s conduct as alleged in
the complaint that is scrutinized for ‘objective legal
reasonableness.’ On summary judgment, however, the
plaintiff can no longer rest on the pleadings, see Fed. Rule
Civ. Proc. 56, and the court looks to the evidence before it
(in the light most favorable to the plaintiff) when conducting
the Harlow inquiry.” If a motion to dismiss on immunity
grounds fails, it is natural for the defendant to decide that he
had better try to find some evidence rather than take an appeal

27a

that he may be quite likely to lose. But he cannot know before
discovery begins how productive discovery will be. There is
no reason why, if he strikes out in discovery, as in this case,
he should be denied an appellate determination as to whether
the case should have been dismissed because he satisfied the
Harlow standard. This approach is a natural extension of
Bahrainis,; it is consistent with Garvin; and it harms no
one—its only effect being to head off protective appeals. We
have jurisdiction of the appeal, and should proceed to the
merits.

A true Copy:

Teste:
/s/
Clerk of the United States Court of
Appeals for the Seventh Circuit

28a

APPENDIX D

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
No. 03 C 5207

[Filed May 4, 2006]

ROGER FAIRLEY and RICHARD GACKOWSKI,
Plaintiffs,

¥x

)
)
)
)
| )
SUPT. DENNIS ANDREWS, LT. EDWARD )
BYRNE, SGT. PATRICK LOIZON, OFC. EVAN _ )
FERMAINT OFC. NOBERTO BERCASIO, OFC. _ )
FRED COFFEY, OFC. RONALD PROHASKA, )
INVESTIGATOR GREGORY ERNST, FORMER _ )
CHIEF INVESTIGATOR SAUL WEINSTEIN, )
CHIEF INVESTIGATOR TIM KAUFMANN, )
OFC. GABRIEL OCHOA, CHIEF INVESTIGATOR )
JUAN DIAZ, in their individual and official )
capacities, SHERIFF MICHAEL SHEAHAN, in his)
official capacity, and COOK COUNTY, )
Defendants. )

)

JUDGES: AMY J. ST. EVE, United States District Court
Judge.

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MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:

Plaintiffs Roger Fairley and Richard Gackowski filed a
Second Amended Complaint alleging that Defendants violated
their First Amendment rights to the United States Constitution
in violation of 42 U.S.C. § 1983. Before the Court are
Defendants’ Motions for Summary Judgment pursuant to
Federal Rule of Civil Procedure 56(c). For the reasons
discussed in detail below, the Court grants in part and denies
in part Defendant Sheriff Michael Sheahan’s Motion for
Summary Judgment. The Court grants in part and denies in
part Defendant Edward Byrne’s and Defendant Dennis
Andrews’ Motions for Summary Judgment. Further, the
Court grants in part and denies in part Defendants Evan
Fermaint’s, Noberto Bercasio’s, Fred Coffey’s and Ronald
Prohaska’s Motion for Summary Judgment. The Court also
grants Defendant Juan Diaz’s, Defendant Patrick Loizon’s
and Defendant Gregory Ernst’s Motions for Summary
Judgment in their entirety. Finally, the Court grants in part
and denies in part Timothy Kaufmann’s and Saul Weinstein’s
Motions for Summary Judgment.

30a

BACKGROUND’

I. The Parties

Plaintiffs Roger Fairley and Richard Gackowski are
former correctional officers at the Cook County Department
of Corrections (“CCDOC”), who resigned from the CCDOC
on February 4, 2003. (R. 447-1, Defs.’ Joint Local Rule
56.1(a)(3) Stmt. Facts. 94 1, 2; R. 553-1, Pls.’ Corrected
Rule 56.1(b)(3) Stmt. Add’! Facts ¢ 420.) During the relevant
time period, Defendant Dennis Andrews was _ the
superintendent of Division ], Defendant Edward Byrne was a
correctional officer with the rank of lieutenant, and Defendant
Patrick Loizon was a correctional officer with the rank of
sergeant at the CCDOC. (/d. 44 3-5.) Defendants Evan
Fermaint, Noberto Bercasio, Fred Coffey, and Ronald
Prohaska were all correctional officers at the CCDOC during

' The Court derives the background facts from the parties’ Northern
District of Illinois Local Rule 56.1 statements. The majority of
Defendants’ objections to Plaintiffs’ Rule 56.1(b)(3) Statement of
Facts are based on hearsay, although Defendants do not explain
how or why each challenged statement is inadmissible hearsay. See
Fed.R.Evid. 801(c) (“‘Hearsay’ is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.”); see also
Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997)
(“hearsay is inadmissible in summary judgment proceedings to the
same extent that it is inadmissible in a trial.”). Witnesses, however,
may testify to their observations and give opinions based on their
own personal knowledge. See Fed.R.Evid. 602, 701; United States
v. Joy, 192 F.3d 761, 767 (7th Cir. 1999) (“Because most
knowledge is inferential, personal knowledge includes opinions and
inferences grounded in observations or other first-hand
experiences. ”).

31a

the pertinent time period. (/d. ¢{ 6-9.) Defendant Gregory
Ernst was an investigator with the Internal Affairs Division
(“IAD”) of the CCDOC and Defendant Saul Weinstein and
Juan Diaz served as Chief Investigators at IAD. (/d. 4§ 10,
11, 14.) Defendant Timothy Kaufman was an investigator
with the Cook County Sheriff's Police Department and
Defendant Michael Sheahan served as the Sheriff of Cook
County. (/d. F{ 12, 15.) Cook County and Gabriel Ochoa are
no longer Defendants in this lawsuit. (/d. § 13.)

Ii, CCDOC Training Academy

Fairley attended the CCDOC Training Academy from
October 31, 1994 until January 27, 1995. (/d. | 55; Pls.’
Stmt. Add’l Facts § 1.) At his deposition, Fairley testified that
while on a visit to Division II of the CCDOC with his training
academy class, he witnessed a correctional officer take a pool
stick and hit an inmate who was using crutches. (Pls.’ Stmt.
Add’l Facts ¢ 2; Defs.’ Ex. 8, Fairley Dep. at 448-66.)
Fairley further testified that the next day during class, an
academy cadet complained about the incident. (/d. J 4, Defs.’
Ex. 8, Fairley Dep. at 463.) After that, Fairley stated that an
academy instructor told Fairley’s class that the cadets stick
together and that they should not make bad remarks about
anyone because “unity is the key.” (/d. 4 6, Defs.” Ex. 8,
Fairley Dep. at 462-63.)

Gackowski began training at the CCDOC Training
Academy on June 12, 1995 and was part of the Class of 95-4.
(Defs.’ Stmt. Facts 4 43; Pls.’ Stmt. Add’] Facts ¢ 7.) At his
deposition, Gackowski testified that he and his training
academy class visited the Cook County Jail and witnessed
officers throw a handcuffed inmate face-first into a bench.
(Pls.” Stmt. Add’! Facts 4 8; Defs.’ Ex. 1, Gackowski Dep.
at 131.) Gackowski further testified that while in training, a

32a

sergeant illustrated how to speed cuff inmates and that it was
possible to shatter the inmate’s bones in doing so. (/d. § 15,
Defs.’ Ex. 1, Gackowski Dep. at 126.) According to
Gackowski, the sergeant then joked that the reporting officer
would never know how the bones became shattered. (/d. 4 16,
Defs.” Ex. 1, Gackowski Dep. at 126-27.) Further,
Gackowski testified that a training sergeant told them after an
Internal Affairs class that the IAD investigators were not their
friends, but instead they were there to “trip up” the
correctional officers. (id. § 25, Defs.’ Ex. 1, Gackowski
Dep. at 117-18.) The sergeant further explained to the cadets
that they should be careful when they write their reports and
that they should not “set each other out.” (/d.)

Former correctional officer, Ricky Rodriguez, who started
at the Training Academy in June of 1996, testified that:

The code of silence is brought up to us and I believe
it’s brought up to us in the Redman training, that we
are the officers, they are the inmates, we are the good
guys, they are the bad guys. If you expect your fellow
officers to back you up, you need to back them up, so
basically what goes on in the jail stays in the jail.

(Id. 44 18, 19, Pls.’ Ex. 33, Rodriguez Dep. at 211.)

III. Division I Incidents

After their academy training, both Fairley and Gackowski
worked in Division I of the Cook County Jail during part of
the relevant time period and became friends. (Defs.’ Stmt.
Facts ¥{ 21, 26, 35-38.) Fairley testified that while working
in Division I in late 1998 or early 1999, he witnessed
Defendant Coffey and another correctional officer hit two
inmates. (Pls.” Simt. Add’l Facts 4 46, Defs.’ Ex. 8, Fairley

33a

Dep. at 507-09.) Fairley then told another officer to get a
supervisor. (/d. 4 47, Defs.’ Ex. 8, Fairley Dep. at 509-10.)
After the incident, Fairley testified that he told a sergeant
about it, after which Coffey called Fairley a snitch and
threatened to beat him up. (/d. ¥§ 48, 50, Defs.’ Ex. 8,
Fairley Dep. at 510-13.)

Gackowski testified that on April 1, 2000 he witnessed
Coffey punch and kick inmate Rodney Brown. (/d. § 51,
Defs.’ Ex. 1, Gackowski Dep. at 295-96.) After Brown fell
to the floor, Gackowski testified that Coffey continued to kick
Brown. (/d., Defs.’ Ex. 1, Gackowski Dep. at 296.)
According to Gackowski, he yelled at Coffey while Coffey
was beating Brown and told Coffey not to include him as a
witness in his report. (/d. 4 53, Defs.’ Ex. 1, Gackowski
Dep. at 286.) After the Brown incident, Gackowski testified
that he told his supervising sergeant about the beating. (/d.
q 54, Defs.’ Ex. 1, Gackowski Dep. at 296-97.) Coffey
subsequently told Gackowski that he was not “part of the
team.” (/d. 4 57, Defs.’ Ex. 1, Gackowski Dep. at 183.) Also
after this April 2000 incident, Gackowski testified that
Defendant Fermaint started calling him a snitch. (/d. 4 58,
Pls.’ Ex. 19, Gackowski Dep. at 207-08.) Similarly,
Defendants Coffey, Fermaint, and Bercasio started calling
Gackowski a “social worker.” (/d. 4 59, Defs.’ Ex. 1,
Gackowski Dep. at 403-04.)

IV. The July 29, 2000 Incident

Fairley testified at his deposition that on July 29, 2000 he
saw Fermaint and another correctional officer abuse inmates,
including Nathson Fields and James Scott, in the SI-2 (Special
Incarceration Unit Two), which is the maximum security tier
located in the basement of Division I. (Defs.’ Stmt. Facts
qq 64, 65; Pls.” Stmt. Add’l Facts 4 71.) Fairley testified that

34a

other officers, including Bercasio, also beat some inmates
while they were handcuffed and shackled. (Pls.’ Stmt. Add’!
Facts { 72; Defs.’ Ex. 8, Fairley Dep. at 691, 922-23.)
Further, Fairley stated that he told the officers to stop beating
the inmates and subsequently reported the beating to his
supervisors. (/d. {4 76, 93.) Also, Fairley testified that after
the incident, Lieutenant Byrne told him not to write up a
report and that [AD would interview him, yet no investigator
from IAD ever interviewed Fairley in connection with the
incident. (/d. {{ 79, 80.) Defendant Superintendent Andrews
was also informed about the altercation in Division I on July
29, 2000. (/d. ¢ 81.) Furthermore, Fairley told Gackowski
along with other correctional officers about the beating he had
witnessed on July 29, 2000. (Pls.’ Stmt. Add’! Facts 94 91,
98.)

Gackowski did not witness any of the events on July 29,
2000 in the SI-2 because he was assigned to Division VIII,
which houses the Cermak Hospital Emergency Room. (/d.
{ 82; Defs.’ Stmt. Facts ¢4 66-70.) He nonetheless heard
about the incident from officers in Division VIII. (Pls.’ Stmt.
Add’! Facts { 83.) At the emergency room, Gackowski saw
some of the injured officers and inmates, including inmate
Scott, who were involved in SI-2 altercation. (/d. § 84; Defs.’
Stmt. Facts {¢ 72, 73.) Although Gackowski saw Scott very
briefly, he testified at his deposition that Scott’s face was
swollen and that he was bleeding. (Pls’ Stmt. Add’! Facts
¢ 85; Defs.’ Stmt. Facts 4 71, 73.)

Gackowski was transferred back to Division I in August
2000. (/d. 4 86.) He testified at his deposition that on the day
he returned to Division I, he talked to Byrne about the SI-2
incident and Byrne explained that some of the inmates had
tried to jump the correctional officers. (/d. § 87, Defs.’ Ex.
1, Gackowski Dep., at 768-69; Defs.’ Stumt. Facts ¢ 85.) The

35a

parties dispute whether Byrne told Gackowski that Byrne had
tried to break one of the inmate’s legs. (/d. | 89.)

In August 2000 after the SI-2 incident, certain inmates
filed a lawsuit in state court known as the “Fields Litigation,”
which named Lieutenant Byrne as one of the defendants. (/d.
qq 104, 105.) The Fields Litigation received a significant
amount of publicity in the Chicago area. (/d. {4 106-123.) In
addition, correctional officers and other staff in Division I
discussed the Fields Litigation. (/d. 4 91, 93, 94, 124.) In
April 2001, a letter from the Sheriff's Office informed the
Division I correctional officers about the Fields Litigation.
(id. 44 165-172.) Superintendent Andrews discussed this
letter with the correctional officers who received it, including
Fermaint and Byrne. (/d. {4 169-171.) In the interim,
Gackowski testified that he told correctional officer Rodriguez
that he was going to tell the truth about the SI-2 incident. (/d.
¢{ 97.) Similarly, Fairley told a number of correctional
officers that he was not going to lie about the SI-2 incident.
(Id. ¢ 103.)

Eventually, Fairley and Gackowski gave deposition
testimony in the Fields Litigation. (/d. 4 401; Defs.’ Stmt.
Facts 4 101.) Prior to Fairley’s testimony, a private
investigator went to Fairley’s residence, after which Fairley
reported the investigator’s visit to Superintendent Andrews.
(Id. 44 147, 157.) After his conversation with Fairley,
Andrews contacted IAD, the CCDOC’s Executive Director’s
Office, and Sheriff Sheahan’s Chief Legal Counsel to inform
them that an investigator had been to Fairley’s house. (/d.
q 161.)

36a

V. Alleged Harassment and Retaliation After the July 29,
2000 Incident

After the July 29, 2000 incident, Fairley testified that
Fermaint refused to provide enough lunches and other
supplies for the SI-2 inmates which caused the inmates to
become irate and yell at Fairley. (/d. 4§ 252, 253.) Fairley
also testified that Fermaint and Bercasio would “dry hump”
him -- meaning that they would physically grab him by the
waist and imitate anal intercourse. (Jd. 949 254, 256.)
Moreover, Fairley testified that Fermaint and Bercasio also
harassed him by failing to unlock the security door to the SI-2
Unit to allow Fairley to use the restroom, in addition to
calling him an “inmate lover.” (/d. 44 240, 251.) Evidence in
the record also reveals that Byrne assigned Fairley difficult
assignments and denied him paternity leave. (/d. 44 214, 216,
221, 224, 228.) According to Fairley, Defendant Loizon
assigned him to the difficult task of escorting inmates to
Cermak hospital at the end of his shift. (/d. § 222, Defs.’ Ex.
8, Fairley Dep. at 847-48.)

Further, Bercasio drew sexually explicit cartoons of
Gackowski and had them posted around Division I. (/d.
qq 257, 258; Defs.’ Stmt. Facts § 121.) Gackowski also
testified that from late 2000 through May or June 2002,
Bercasio and Fermaint “dry humped” him by physically
grabbing him and imitating anal intercourse. (Pls.’ Stmt.
Add’l Facts ¢ 262; Defs.’ Stmt. Facts 4 121.) The record
contains undisputed evidence that Gackowski reported the
correctional officers’ harassment to Byrne. (Defs.’ Stmt.
Facts ¢ 112.)

37a

VI. Gackowski’s Complaint to Internal Affairs

On June 14, 2002, Gackowski told Superintendent
Andrews that he might file a complaint with Internal Affairs
concerning the officers’ harassment. (Defs.’ Stmt. Facts.
¢ 116.) Gackowski also testified that on June 15, 2002, he
told Lieutenant Byrne that he was going over Superintendent
Andrews’ head and would report the various officers’
harassing conduct to Internal Affairs. (/d. ¢§ 91, 117; Pls.’
Stmt. Add’l Facts 44 264, 269.) Gackowski testified at his
deposition that Byrne told him that if he did go to Internal
Affairs, repercussions would follow. (Pis.’ Stmt. Add’ Facts
¢ 266.) Moreover, Gackowski stated that he informed other
Defendants that he was going to go to Internal Affairs with his
complaints. (/d. {4 267, 268.) Also, in or about June or July
2002, Gackowski, by giving an investigation statement, told
Defendant Gregory Ernst of Internal Affairs that certain
officers were harassing him. (/d. § 270; Defs.” Ex. 20,
Gackowski’s 2002 Internal Affairs Stmt.)

On July 9, 2002, Gackowski submitted a written
complaint to Internal Affairs alleging that he was the subject
of harassment by other correctional officers. (/d. § 272;
Defs.” Stmt. Facts ¢ 119.) Saul Weinstein, the Chief
Investigator of IAD, did not initiate an investigation into
Gackowski’s allegations, but instead forwarded Gackowski’s
complaint back to Division I and Superintendent Andrews.
(Pls.’ Stmt. Add’l Facts 4274.) Gackowski testified that when
he went to Andrews’ office, Andrews berated him for
submitting the IAD complaint. (/d. ¢ 280.) In addition,
Andrews told Gackowski that he would sue Gackowski for
slander because of the statements Gackowski made in the IAD
complaint. (R. 454-1, Def. Andrews Rule 56.1(a)(3) Stmt.
Facts § 11.) Nevertheless, Andrews contacted Weinstein and
told him that he was sending Gackowski’s complaint back to

38a

IAD because it was a “conflict of interest” for Andrews to
investigate a complaint in which he was a named subject.
(Pls.’ Stmt Add’l Facts € 282.)

After Gackowski’s complaint was returned to IAD,
Investigator Gregory Ernst was assigned*to the case and
interviewed Gackowski about his allegations. (/d. {{ 303,
304.) In his statement to Ernst, Gackowski identified officers
who had harassed him, including Fermaint and Bercasio, and
described the harassment -- including physical grabbing,
sexually suggestive cartoons, and degrading and sexual
comments about his wife. (/d. § 305, Defs.’ Ex. 20,
Gackowski’s 2002 Internal Affairs Stmt.) Gackowski told
Ernst that he believed he had been singled out for harassment
because he did not “smack inmates around for no reason.”
(Id. 4 306.) Further, Gackowski explained to Ernst that he
had witnessed Fermaint, Byrne, and Coffey abuse inmates and
specifically described the Rodney Brown incident. (/d.
q{ 308, 314.) There is also evidence in the record that other
correctional officers knew that Gackowski had made a report
to the IAD, especially because a Division I Chief spoke tc
everyone identified in Gackowski’s IAD complaint. (/d.
q{ 291, 316, 321-326.)

On September 20, 2002, Ernst reported to the Chief of
IAD, Saul Weinstein, that Gackowski had filed a complaint
with the Illinois Human Rights Department and Weinstein
advised Ernst to put the investigation into Gackowski’s IAD
complaint on hold until the completion of the Human Rights
investigation. (/d. J§ 327, 328.) Gackowski contends that no
one ever told him that his IAD investigation was put on hold.
(Id. { 335.)

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VII. Lipscomb Incident

On December 20, 2002, there was an altercation between ,
inmate Keon Lipscomb and Fairley, as well as other
correctional officers. (Defs.’ Stmt. Facts 4214.) On that date,
Fairley was scheduled to transport Lipscomb for his “medical
movement.” (Pls.’ Stmt. Add’! Facts 4§ 337-339; Defs.’ Stmt
Facts 4 216.) After Lipscomb’s “medical movement” was
cancelled, Lipscomb would not follow Fairley’s orders. (Pls.’
Stmt. Add’! Facts ¢ 342; Defs.’ Stmt Facts § 220.)
Thereafter, Bercasio, Byrne, and Loizon came to Fairley’s
assistance. (Defs.’ Stmt. Facts § 223.) Lipscomb attacked
Fairley, Bercasio tackled Lipscomb from behind, and Fairley
fell back during which Fairley sustained a cut to his wrist.
(Pls.’ Stmt. Add’l Facts 44 348, 349.) After that, other
correctional officers helped subdue Lipscomb. (/d. ¢ 350.)

Thereafter, the Sheriff's Office Investigator, Timothy
Kaufmann, began his investigation of the Lipscomb incident.
(Id. { 361; Defs.’ Stmt. Facts ¢ 233.) Kaufmann interviewed
Fairley as well as other the officers involved. (Defs.’ Stmt.
Facts ¢ 237.) An Assistant States Attorney, Bumjoon Park,
also conducted a felony review into the Lipscomb incident and
interviewed Fairley and the officers. (/d. 44 238, 240, 246.)
In the course of the investigation, Fairley told Kaufmann and
Park that he believed he was being set up in retaliation for
speaking the truth about the July 29, 2000 incident and his
upcoming testimony in the Fields Litigation. (Pls.’ Stmt.
Add’| Facts 4 364, Pls.’ Ex. 25, Kaufman Dep. at 51, Pls.’
Ex. 30, Park Dep. at 69.) Kaufmann’s final report of the
Lipscomb incident stated that he and Assistant States Attorney
Park concluded that charges against Lipscomb were not
warranted because of Fairley’s inconsistent statements. (/d.
q 367.) Park, however, testified at his deposition that he did
not tell Kaufmann that the States Attorney's Office would not

oe re A ame RE

40a

approve felony charges or that he found Fairley to be
incredible. (Jd. 44 368, 369, Pls.’ Ex. 30, Park Dep. at 27,
63-64.) The States Attorney’s Office never brought criminal
charges against Lipscomb regarding his assault on Fairley.
(Id. 4 375; Defs.’ Stmt. Facts 9 253.)

VIII. Prohaska Threat

Shortly after the Lipscomb incident, Gackowski testified
that he encountered Defendant Prohaska in Division I, after
which Prohaska asked Gackowski about Fairley’s testimony
in the Fields Litigation. (Pls.’ Stmt. Add’! Facts 44 382-384.)
During their encounter, Gackowski asserts that Prohaska
stated that Fairley was a weak link and that they had to
“bury” the weak link. (/d. 4 384.) Also, Gackowski asserts
that Prohaska made disparaging remarks about him. (/d.
q 385.) On January 9, 2003, Gackowski filed a IAD
complaint regarding the Prohaska threat. (Defs.’ Stmt. Facts
q 168.)

SUMMARY JUDGMENT STANDARD

Summary judgment is proper when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed.R.Civ.P.
56(c). A genuine issue of material fact exists only if “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202
(1986). The party seeking summary judgment has the burden
of establishing the lack of any genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). In determining whether a

4la

genuine issue of material fact exists, the Court construes the
facts in a light most favorable to the non-moving party and
draws all reasonable inferences in favor of that party.
Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. The
existence of a factual dispute alone is not sufficient to defeat
a summary judgment motion, instead the non-moving party
must present definite, competent evidence to rebut the
summary judgment motion. Butts v. Aurora Health Care,
Inc., 387 F.3d 921, 924 (7th Cir. 2004).

ANALYSIS
I. First Amendment Retaliation Claim -- Count I

The First Amendment protects freedom of speech and
expressive conduct and generally prevents the government
from proscribing such activities. RAV v. City of St. Paul,
Minnesota, 505 U.S. 377, 382, 112 S.Ct. 2538, 2542, 120
L.Ed.2d 305 (1992). “It is by now well established that the
government may not arbitrarily silence the constitutionally-
protected speech of its employees. Government workers do
not forfeit their First Amendment rights simply by accepting
public sector employment.” Wernsing v. Thompson, 423 F.3d
732, 750 (7th Cir. 2005). Although public sector employees
retain their First Amendment rights to free speech, a public
employee does not possess unlimited rights of speech and
expression on matters related to official responsibilities.
Sullivan v. Ramirez, 360 F.3d 692, 697 (7th Cir. 2004)
(citing Pickering v. Board of Educ. of Twp. High Sch. Dist.
205,391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811
(1968)); see also Connick v. Myers, 461 U.S. 138, 146, 103
S.Ct. 1684, 75 L.Ed.2d 708 (1983) (employee's speech may
be protected if matter of public concern).

42a

In determining a Section 1983 claim for retaliation in
violation of a public employee’s First Amendment rights, the
Court conducts a three-step inquiry: (1) the Court first
determines whether the employee’s speech was
constitutionally protected under the Connick - Pickering test;
(2) Plaintiffs then must show that their speech was a
substantial or motivating factor in the retaliation; and (3)
Defendants may rebut Plaintiffs’ contentions by establishing
that Defendants would have taken the same action in the
absence of Plaintiffs’ protected speech. Ashman v. Barrows,
438 F.3d 781, 784 (7th Cir. 2006); Sullivan v. Ramirez, 360
F.3d at 697-98. Plaintiffs have the burden of establishing the
first two prongs because they constitute the prima facie
elements of a First Amendment retaliation claim. Carreon v.
Iilinois Dep’t of Human Servs., 395 F.3d 786, 791 (7th Cir.
2005). “If the plaintiff establishes these elements, the burden
shifts to the defendant to prove by a preponderance of the
evidence that it would have taken the same action in the
absence of the protected speech.” /d.

A. Connick-Pickering Test

Defendants do not address whether Gackowski’s and
Fairley’s speech was a matter of public concern under
Connick, nor do they discuss the balancing test as required
under Pickering. Because the Connick-Pickering test is a
prima facie element of Plaintiffs’ retaliation claim, the Court
addresses this first step for the sake of completeness.

1. Matter of Public Concern

Under Connick, the Court must determine whether each
Plaintiff spoke “as a citizen upon matters of public concern.”
Connick, 461 U.S. at 147. To do so, the Court examines “the
content, form, and context of a given statement, as revealed

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by the whole record.” /d. at 147-48. The Connick public
concern element must relate to a community concern, and
thus cannot relate to an employee’s personal grievance.
Carreon, 395 F.3d at 791; see also Cygan v. Wisconsin Dep't
of Corr., 388 F.3d 1092, 1099 (7th Cir. 2004) (speech must
be matter of political, social, or other community concern).

Looking to the content, form, and context of Plaintiffs’
speech, it involved other correctional officers physically
abusing inmates at the Cook County Jail. Plaintiffs’ speech
took the form of complaints and statements to other
correctional officers, supervisors, and investigators about this
alleged excessive force, as well as their testimony in the
Fields Litigation. Such speech is not a mere personal concern,
but pertains to a social and public concern as required under
Connick. See Glass v. Dachel, 2 F.3d 733, 741 (7th Cir.
1993) (“speech that focuses on police departments (and
ultimately police protection and public safety) involve matters
of great public concern”); see also Kinney v. Weaver, 367
F.3d 337, 356 (Sth Cir. 2004) (en banc) (“plaintiff’s
testimony regarding the use of excessive force by police
officers was unquestionably a matter of public concern”).

2. Balancing Interests

Under the Pickering prong, the Court balances the
interests of the employee “as a citizen, in commenting upon
matters of public concern” against “the interest of the State,
as an employer, in promoting the efficiency of the public
services it performs through its employees.” Pickering, 391
U.S. at 568. In other words, governmental units may restrict
a public employee’s speech if the government can show that
its interest in promoting effective and efficient public service
outweighs the employee’s interest as a citizen commenting on

44a

matters of public concern. Carreon, 395 F.3d at 791 (citing
Gustafson v. Jones, 290 F.3d 895, 909 (7th Cir. 2002)).

Although an employer’s concern regarding the disruptive
nature of an employee’s speech is important in the context of
law enforcement, when an employee reports illegal conduct,
such speech is necessarily protected. See McGreal v. Ostrov,
368 F.3d 657, 678 (7th Cir. 2004) (citation omitted).
Therefore, the CCDOC’s need to perform efficient public
service does not outweigh Plaintiffs’ interests as citizens
commenting on inmate abuse and the alleged excessive force
at the Cook County Jail. See Carreon, 395 F.3d at 791.

B. Substantial or Motivating Factor

The next element of Plaintiffs’ prima facie case is whether
Plaintiffs’ protected speech was a substantial or motivating
factor in the alleged retaliation and harassment. See Ashman
v. Barrows, 438 F.3d at 784; see also Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct.
568, 50 L.Ed.2d 471 (1977). The “motivating factor does not
amount to a but-for factor or to the only factor, but is rather
a factor that motivated the defendant’s actions.” Spiegia v.
Hull, 37) F.3d 928, 942 (7th Cir. 2004).

Defendants contend that their conduct was not a
motivating factor in the retaliation and harassment because
they did not know of Plaintiffs’ protected speech in the first
instance. Defendants base their argument on Stagman v. Ryan,
176 F.3d 986, 999 (7th Cir. 1999), in which the Seventh
Circuit concluded that to establish the “motivating factor”
element, plaintiffs must demonstrate that defendants knew of
plaintiff's constitutional activities. In Stagman, the Seventh
Circuit concluded that the plaintiff had failed to raise a
genuine issue of material fact regarding whether his

45a

supervisor knew of his constitutionally protected union
activities. See id. The Court thus turns to whether the
individual Defendants knew of Plaintiffs’ constitutional
activities.

1. Correctional Officers and Supervisors’

Defendants Fermaint, Bercasio, Prohaska, Coffey,
Loizon, Byrne, and Andrews argue that they were unaware of
Plaintiffs’ constitutional activities, namely, that Plaintiffs
engaged in protected speech. Plaintiffs’ protected speech
involved speaking out against inmate abuse

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1102%3A1. Public record. Not legal advice.