Morales v. Jones

494 F.3d 590, 26 I.E.R. Cas. (BNA) 555, 2007 U.S. App. LEXIS 16936, 2007 WL 2033754

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 17, 2007
• Docket: 06-1463
• Status: Published

Opinions

FLAUM, Circuit Judge.

The Milwaukee Police Department employed David Kolatski and Alfonso Morales as police officers in its Vice Control Division (“VCD”). Kolatski and Morales were reassigned to street patrol duties after informing an Assistant District Attorney about allegations that Police Chief Arthur Jones and Deputy Chief Monica Ray had harbored the Deputy Chiefs brother, who was wanted on felony warrants. Kolatski and Morales brought suit under 42 U.S.C. § 1983, alleging that Jones and Ray violated their First Amendment rights. After a four-day trial, a jury returned a verdict for Morales and Kolat-ski, awarding them compensatory and punitive damages. Jones and Ray filed a motion for judgment as a matter of law, which the district court denied. Jones and Ray appeal from that denial. For the following reasons, we reverse the district court’s judgment.

I. Background

On March 22, 1998, Lieutenant Edward Liebrecht received a phone call from a landlord complaining that one of his tenants, Vincent Ray, was altering his property to make it suitable for selling drugs. The landlord informed Liebrecht that he knew Vincent Ray was Deputy Chief Ray’s brother because of his rental application. Liebrecht spoke about the complaint with Chief Jones, who told Liebrecht to investigate the matter immediately. Liebrecht subsequently notified Deputy Chief Ray of the call. She confirmed that Vincent Ray was her brother and that he was a heroin addict. She also told Liebrecht that her brother might be wanted on warrants.

Liebrecht assigned the case to Morales and Detective Joseph Link. Morales ran a warrants check on Vincent Ray and discovered that he was wanted on two felony warrants. Link and Morales then met with Vincent Ray’s landlord who showed them the altered property and informed them that he had asked Ray to vacate the premises. After speaking with Ray’s landlord, the officers drove to each of the addresses Ray provided in his rental application in an attempt to locate him or his car.

Liebrecht’s shift ended at 3 p.m. that day, and Lieutenant James Shepard relieved him. Before the end of his shift, Liebrecht called Chief Jones to update him on the investigation. At 4 p.m. the landlord informed Morales and Link that Vincent Ray had called him. The landlord also told the officers that he had set up a meeting with Ray to return his security deposit at 5 p.m. the following day, March 23. The landlord also provided the detectives with the phone number from which Ray called. The detectives planned on arresting Ray at this meeting.

Shepard instructed Link to write a report detailing the investigation. Link included the landlord’s allegations, his and Morales’ efforts to locate Ray, the names, addresses, and phone numbers from Ray’s rental application, Ray’s outstanding warrants, and the detectives’ plans to arrest him on March 23 at 5 p.m.

On March 23, 1998, Link and Morales attempted to arrest Ray at the scheduled meeting with his landlord, but Ray did not show up. Ray set up two more meetings to get his security deposit, and both times the detectives informed Shepard that they planned to arrest him. However, Ray failed to appear at those meetings as well.

On April 6, 1998, the landlord called Morales and told him that Ray was working on his car around the 3000 block of West Burleigh Street. Morales informed Link, but Link was executing a search warrant in another investigation. Morales decided not to inform Shepard about the tip because the three previous meetings had fallen through. Instead, he asked Ko-latski to help him arrest Ray. Morales and Kolatski arrested Ray on two felony warrants. The detectives found a knife, marijuana, and three rocks of cocaine in Ray’s car. The detectives took him to the police administration building and then made arrangements to meet Link.

Morales and Kolatski met Link at Gold Rush Chicken to pick up dinner. After ordering dinner at the counter, Morales went to the restroom. Kolatski and Link stayed at the counter discussing the details of Ray’s arrest, although they did not use his name. Kolatski told Link that “he had a bad feeling about the situation.” Gold Rush Chicken’s owner, John Mullarkey, who was a friend of Deputy Chief Ray, overheard the conversation and asked Ko-latski, “what did you do, throw the Chief in jail?” Kolatski said no. Mullarkey then asked whether they had thrown Deputy Chief Ray in jail. Kolatski again said no and explained that they had arrested the relative of a higher ranking department member. Mullarkey told the detectives that two weeks earlier he delivered food to Deputy Chief Ray’s house and that Chief Jones was there when a man came out of a back room. Mullarkey explained that had he not been in the presence of two police officers, he would have been worried that the man might rob him. Link and Kolat-ski asked Mullarkey to describe the individual. Mullarkey identified him as a black man with a dark complexion and a tattoo on his upper body. Mullarkey also said that Deputy Chief Ray introduced him as her brother.

Morales returned from the restroom. After leaving the restaurant, Kolatski told Morales about Mullarkey’s story. The three detectives agreed that the allegations were serious because, if true, the Chief and Deputy Chief had harbored a felon.

After returning to the police administration building, Link told Lieutenant Ha-beck, the on-duty supervisor, that Vincent Ray had been arrested. Habeck informed Deputy Chief Ray that her brother was in custody. Link, Kolatski, and Morales listened to a phone call between Habeck and Deputy Chief Ray, in which the Deputy Chief asked what address Vincent Ray gave the officers when they arrested him. When Habeck said that Ray had provided Deputy Chief Ray’s address, she instructed Habeck not to include that address on the arrest report. Habeck relayed the instruction, not to list Deputy Chief Ray’s name or address on Vincent’s arrest or pedigree reports to Link.¹ Link refused to falsify the reports and included Deputy Chief Ray’s name but simply listed her address as “County of Milwaukee.”

On the evening of April 6, 1998, Morales reviewed Vincent Ray’s arrest reports, made copies of them, and filed them with his supervisor, leaving the reports on his desk for the evening. The next morning, Morales returned to take the reports to the District Attorney’s (“D.A.”) office, and discovered that the first page of the pedigree report, listing Deputy Chief Ray’s name, was missing. Morales searched for the missing report, did not locate it, and decided to proceed to the D.A.’s office anyway.

Morales met with Assistant D.A. John Chisholm and provided him with a synopsis of Ray’s arrest and the possible charges. Chisholm asked Morales why the first page of the pedigree report was missing. Morales said that to the best of his knowledge the page had been ordered not to include any information related to Deputy Chief Ray and that he had pages two and three of the report, but did not know where page one was located.

Chisholm inquired further, and Morales told him about the investigation and Ray’s arrest. Morales also told Chisholm that he and Link had notified Shepard on three separate occasions of arranged meetings to arrest Vincent Ray, but that all three meetings fell through. Morales then recounted Mullarkey’s. conversation with Ko-latski and Link, as well as Deputy Chief Ray’s instructions to leave her information out of the arrest reports. Morales told Chisholm that he believed that prior to Ray’s arrest, someone had known Vincent Ray’s location and informed Ray to avoid meeting with the landlord to receive his security deposit.

Chisholm met with Deputy District Attorney Jon Reddin and relayed Morales’ information. Reddin instructed Chisholm to interview Mullarkey. Chisholm and another investigator spoke with Mullarkey who confirmed that he told Kolatski and Link about his delivery to Deputy Chief Ray, but was now certain that the delivery occurred in January 1998. Mullarkey stated that one of his employees made a delivery to Deputy Chief Ray’s home within the past two weeks and provided the employee’s name.

On April 8, 1998, Link and Morales met with Chisholm and Reddin. Chisholm and Reddin spoke to Link who confirmed that Habeck instructed him to omit Deputy Chief Ray’s name and address from the pedigree report, but that he refused to do so. Link verified his discussion with Mul-larkey as well.

Link and Morales reported the D.A.’s investigation to Liebrecht. Liebrecht informed a superior who met with Chief Jones, Deputy Chief Ray, and Link. Deputy Chief Ray then met with Morales to discuss the D.A.’s investigation.

During the same day, Chisholm went back to Mullarkey’s restaurant and discovered that Mullarkey had made food deliveries on March 19 and 23, 1998, though he had previously denied making any food deliveries since January 1998. In addition, another investigator interviewed the driver who delivered food to Deputy Chief Ray’s home on March 28th. The driver denied seeing a male at Deputy Chief Ray’s residence. Additionally, Chisholm discovered that there were no food deliveries on March 29, and all of the April food delivery receipts were off premises at Mullarkey’s home. As a result, the D.A.’s office concluded that Mullarkey’s allegations against Chief Jones and Deputy Chief Ray were false.

On April 17, 1998, Chief Jones transferred Kolatski from VCD to District No. 1 night-shift patrol duty. No one in the police department explained why Kolatski was transferred, and he was performing well at the time. On December 8, Link and Morales gave depositions in Kuchen-reuther v. Jones, a case in which Chief Jones was accused of transferring a police officer in violation of the officer’s First Amendment rights. During Morales’ deposition, he testified about the Mullarkey information and opined that Kolatski was transferred as a result of events connected with Vincent Ray’s arrest. Within days of the December 8 depositions, Chief Jones reassigned Link to the VCD’s prostitution section. Nearly two months later, on January 22, 1999, Chief Jones transferred Morales to District No. 6 night-shift patrol duty.

On May 20, 2000, Morales and Kolatski filed a complaint in the Eastern District of Wisconsin under 42 U.S.C. § 1983, alleging that Chief Jones and Deputy Chief Ray violated their First Amendment rights by transferring them to patrol duties. The defendants filed a motion for judgment on the pleadings, which the district court denied. After the close of discovery, the defendants filed a motion for summary judgment. The district court also denied that motion. On November 19, 2005, after a four-day trial, the jury returned a special verdict in the plaintiffs’ favor. The jury awarded both plaintiffs $20,000 in compensatory damages and $65,000 in punitive damages, finding that the defendants’ actions were wilful, wanton and malicious. On December 6, 2005, the defendants filed motions for judgment as a matter of law. On February 1, 2006, the district court denied those motions and granted the plaintiffs’ motions for attorneys’ fees and costs. The defendants now appeal.

II. Discussion

The defendants argue that the district court erred by not granting them judgment as a matter of law because Kolatski’s and Morales’ speech was not protected by the First Amendment. This Court reviews de novo the district court’s denial of a motion for judgment as a matter of law. LaFollette v. Savage, 63 F.3d 540, 543-44 (7th Cir.1995).

The defendants argue that their actions did not violate the plaintiffs’ First Amendment rights because the plaintiffs’ speech was made pursuant to their official duties. The Supreme Court has made clear that public employees do not surrender all of their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. See, e.g., Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will County, Ill., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The Supreme Court recently clarified, however, that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, — U.S. —, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006).²

In Garcetti, the Court evaluated the First Amendment claims of a deputy district attorney (Ceballos). Believing that a search warrant affidavit contained misrepresentations, Ceballos wrote two memo-randa recommending the dismissal of pending charges. Id. at 1955-56. He was later transferred from his calendar deputy position to a trial deputy position and assigned to work at another location. Id. at 1956. He sued under § 1983, alleging retaliation for his speech. Focusing on the “citizen” prong of the First Amendment analysis, the Court determined that Cebal-los “wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do.” Id. at 1960. Because Ms expression was “pursuant to” his official duties, he was not speaking as a citizen for First Amendment' purposes. Id. The Court stated, “[rjestricting speech that owes its existence to a public employee’s professional, responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Id.

In light of Garcetti, the crux of our inquiry is whether Morales’ and Kolatski’s speech was made pursuant to their official duties. Because both parties in Garcetti agreed that Ceballos’ speech was made pursuant to his official duties, the Court “had no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate.” 126 S.Ct. at 1961. Lower courts, including this one, have applied Garcetti in an attempt to define the scope of an employee’s duties. See Haynes v. City of Circleville, Ohio, 474 F.3d 357 (6th Cir.2007); Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477 (7th Cir.2007); Green v. Bd. of County Comm’rs, 472 F.3d 794 (10th Cir.2007); Freitag v. Ayers, 468 F.3d 528 (9th Cir.2006); Battle v. Bd. of Regents for the State of Ga., 468 F.3d 755 (11th Cir.2006); Mills v. City of Evansville, 452 F.3d 646 (7th Cir.2006).

Those courts have followed the Supreme Court’s general guidance that “the inquiry is a practical one” and should focus on “the duties an employee actually is expected to perform.” Id. at 1962. For example, in Battle, the plaintiff was the financial aid counselor at Fort Valley State University. Her job required her to verify the completion and accuracy of student files as well as report any perceived fraudulent activity. 468 F.3d at 758. The plaintiff reviewed several student files, discovering that her supervisor had been falsifying information and awarding financial aid to ineligible recipients. The plaintiff spoke to the supervisor, the University president, and finally to the University’s Vice-President of Student Affairs. Shortly after her final meeting, the University decided not to renew the plaintiffs contract. The Eleventh Circuit held that because the plaintiffs specific job responsibilities included ensuring the accuracy and completeness of student flies and reporting any mismanagement or fraud, her speech was made pursuant to her official employment responsibilities. The court also noted that Department of Education Guidelines require all financial aid workers to report suspected fraud. Id. at 761.

Lower courts have also been careful to recognize that, under Garcetti, “public employees retain the prospect of constitutional protection for their contributions to the civic discourse.” 126 S.Ct. at 1960. In Freitag, the plaintiff, a corrections officer, was sexually harassed by several inmates at the Pelican Bay State Prison. She complained to her supervisors that her documentation of the incidents was denied or thrown away. After she complained to her state senator and the State Office of the Inspector General, the prison warden terminated her. The Ninth Circuit held that the plaintiffs “right to complain both to an elected public official and to an independent state agency is guaranteed to any citizen in a democratic society regardless of his status as a public employee.” 468 F.3d at 545. The court stated that “it was certainly not part of her official tasks to complain to the [s]enator or the IG about the state's failure to perform its duties properly.... Rather, it was [the plaintiffs] responsibility as a citizen to expose such official malfeasance to broader scrutiny.” Id.

The plaintiffs first contend that their statements were not a part of their official duties because they learned of Mullarkey’s unfounded allegations after they arrested Ray. Yet the plaintiffs admit that their duties included “processing arrests through [the] District Attorney’s office, requesting [the][D]istrict [Attorney’s office for advice on certain methods to utilize on investigations, and completing it through the court system, whether it be a trial or through guilty pleas.” Therefore, by their own admission, the plaintiffs’ official duties did not end when they arrested Ray.

Second, the plaintiffs maintain that their speech was not made pursuant to their official duties because Chief Jones ended his own internal investigation into whether Kolatski disclosed confidential information to" Mullarkey. Chief Jones reasoned that because the arrest had already taken place, the detectives’ discussion with Mul-larkey did not pose a threat to the investigation. The plaintiffs argue that this demonstrates that their official duties concluded as soon as they arrested Vincent Ray. As explained above, however, the plaintiffs concede that their duties continue after a suspect’s arrest. Moreover, Chief Jones’ investigation does not bear on whether the plaintiffs’ speech was made pursuant to their official duties.

Finally, Kolatski and Morales argue that their speech was not made pursuant to their official duties because they were unsure about how to handle Mullarkey’s allegations. However, the plaintiffs’ confusion about which course of conduct to take in dealing with Mullarkey’s allegations does not indicate that they were not acting pursuant to their official duties as police officers.

After reviewing the record, we conclude that Kolatski’s speech was not protected under the First Amendment because it was made pursuant to his official duties. Kolatski told Morales about Mul-larkey’s allegations because Morales recruited Kolatski to assist him in arresting Ray. As a result, Kolatski had a duty to apprise Morales of any information pertinent to the investigation. Consequently, the judgment in favor of Kolatski must be reversed.

As for Morales, his conversation with A.D.A. Chisholm was made pursuant to his official duties because he met with Chisholm in his capacity as a VCD officer. They met to discuss Vincent Ray’s arrest and review the arrest report. It was Morales’ duty to assist Chisholm in the proper presentation of charges by providing him with the arrest reports and details of his investigation. Morales informed Chisholm of Mullarkey’s allegations against Chief Jones and Deputy Chief Ray in response to Chisholm’s inquiry into the pedigree report’s missing page. Morales did not meet with Chisholm on his own time to report information that was unconnected to anything he was working on. Indeed, Morales’s speech concerned a case that he was assigned to investigate. Furthermore, the Milwaukee Police Department requires officers to report all potential crimes.³ By informing A.D.A. Chisholm of the allegations against Chief Jones and Deputy Chief Ray, Morales was performing that duty as well. Accordingly, his conversation with A.D.A. Chisholm is not protected under the First Amendment after Garcetti.

Morales’ December 8 deposition testimony is a different story. In his deposition, Morales testified about Mullar-key’s allegations, his conversation with A.D.A. Chisholm, and his opinion that Ko-latski was transferred because they had reported the allegations against the Chief and Deputy Chief. Being deposed in a civil suit pursuant to a subpoena was unquestionably not one of Morales’ job duties because it was not part of what he was employed to do. Nonetheless, Morales testified about speech he made pursuant to his official duties and we must determine whether that fact renders his deposition unprotected. We hold that it does not.

The purpose of Garcetti was to allow government employers greater influence over speech that owes it existence to a public employee’s professional responsibilities and that is damaging to the government’s capacity to conduct public business. 126 S.Ct. at 1958 (“Government employers ... need a significant degree of control over their employees’ words and actions .... ”). Here, because the substance of Morales’ speech is the same, it poses the same threat to the MPD regardless of whether it is said to A.D.A. Chisholm or in a deposition. We recognize the oddity of a constitutional ruling in which speech said to one individual may be protected under the First Amendment, while precisely the same speech said to another individual is not protected. Indeed, this is exactly the concern that Justice Stevens voiced in his dissent in Garcetti: “[I]t is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description.” 126 S.Ct. at 1963. Despite Justice Stevens’ admonishment, Garcetti established just such a framework, and we are obliged to apply it. As a result, although we hold that Morales’ conversation with Chisholm was unprotected speech, his deposition testimony was protected.

Thus, we are faced with a difficult situation because Morales presented the jury with evidence of both his protected and unprotected speech. We do not know whether the jury found that Chief Jones and Deputy Chief Ray retaliated against Morales solely on the basis of protected speech, unprotected speech, or a combination of both.⁴ Because of our uncertainty, we remand to the district court for a new trial on Morales’ claims.

III. Conclusion

For the foregoing reasons, we Reverse the district court’s ruling denying the defendants’ motion for judgment as a matter of law with regard to Kolatski, and we Remand for a new trial on Morales’ claims.

1 . A pedigree report is a report that lists an arrestee's name, age, gender, physical description, race, family members, home address and phone number, among other information.

2 . The district court ruled in this case on February 1, 2006. The Supreme Court decided Garcetti on May 30, 2006. As a result, the district court did not have the opportunity to consider Garcetti in its analysis.

3 . The dissent emphasizes the fact that Morales testified that he had the discretion whether or not to investigate Mullarkey’s allegations. However, when Morales chose to exercise that discretion he did so pursuant to his job duties.

4 . The dissent contends that "it is highly unlikely that the jury relied” on Morales’ conversation with A.D.A. Chisholm as the cause of Morales' demotion. The dissent relies solely on timing, stating that Morales was transferred "shortly” after his December 8 deposition testimony. In fact, Morales was transferred almost two months after he gave his deposition testimony. Moreover, the trial transcript reveals that the focus of Kolatski’s and Morales' testimony dealt with the Ray investigation and Morales' conversation with A.D.A. Chisholm, not Morales’, deposition testimony. In short, we cannot determine which speech the jury relied upon to find that the defendants retaliated against Morales.