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finding plaintiff's claims insufficient because he "provide[d] nothing other than his own isolated experiences, upon which he would have the Court conjure up some established or longstanding and widespread practice of harassment and retaliation"
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Civ. No. 99 C 6811.
March 9, 2000.
MEMORANDUM OPINION
This matter comes before the Court on Defendants' motions to dismiss. For the reasons set forth below, the Court grants the Village of Glenview's motion to dismiss and denies in part and grants in part Defendants Charles Wolavka's and Brad Weigel's motions to dismiss.
BACKGROUND
Plaintiff John Watson ("Watson") filed his first amended complaint against Defendants the Village of Glenview (the "Village"), Charles Wolavka ("Wolavka"), and Brad Weigel ("Weigel"), alleging harassment, intimidation, and failure to transfer, presumably under 42 U.S.C. § 1983. For purposes of this motion, the Court is obligated to take as true the following alleged facts which come from Plaintiff's amended complaint.
Watson has been, and appears to still be, a police officer employed by the Village since January 4, 1988. Defendant Wolavka is and has been the Commander of the Village police department since July 1997, and Defendant Weigel is and has been the Deputy Chief of the Village police department since December 1996.
Watson wrote a total of three letters to the Chicago Tribune and the Chicago Sun-Times (collectively the "Newspaper Letters"), which they published and in which he allegedly expressed "liberal" viewpoints disfavored by the Village police department. Watson wrote the first letter to the Chicago Tribune, which it published on September 30, 1997 in the "Voice of the People" section (the "1997 Tribune Letter"). In that letter, Watson criticized the Village for considering to sue the federal government in order to avoid being required to preserve certain wetlands and prairie land located on the former Glenview Naval Air Station (the "Naval Station"). Someone posted a copy of the 1997 Tribune Letter on the bulletin board of the police department locker room.
On March 22, 1998, the Chicago Sun-Times published Watson's second letter (the "1998 Sun-Times Letter"). In that letter, Watson criticized the Village's approval of a land use plan for the Naval Station that called for the destruction of a wetland area and the addition of a 27-hole golf course despite the fact that there already were six golf courses within an 8 mile radius of the Naval Station.
Then, Watson wrote the third letter to the Chicago Tribune, which it published on March 31, 1998, in the "Voice of the People" section (the "1998 Tribune Letter"). Watson wrote this letter in response to another reader's letter published in the "Voice of the People" section. In his letter, Watson wrote that the other reader "serve[d] up the same old tired Republican myth that Ronald Reagan is responsible for every positive socio-economic condition in America." In addition to these letters, Watson claims that he occasionally expressed his support of many of the Democratic Party's policies and beliefs while working in the police department.
In response to the 1997 Tribune Letter, Wolavka told Watson while on duty that Watson was stupid to write the letter to the Tribune and put his name on it. Soon after this comment, Watson alleges that Wolavka, with the assistance and approval of Weigel and other police department supervisors, engaged in a concerted and systematic effort to harass and intimidate Watson and to create a hostile and stressful work environment. For example, Watson received four written reprimands since November 1997 when for 10 years prior to that time, Watson had not received four written reprimands. Also, Watson claims that Defendants conducted three internal affairs investigations against him without any basis. Further, Watson claims that he filed several grievances, to which the Police Department failed to properly reply. Watson nowhere alleges that he was terminated.
In his first amended complaint, Watson alleges violations of § 1983. He claims that Defendants violated his § 1983 rights by harassing and intimidating him so as to chill his speech in retaliation against him for writing the Newspaper Letters and by harassing him and failing to transfer him to a certain position in retaliation for filing grievances with the police department. Defendants have each filed separate motions to dismiss Watson's first amended complaint.
LEGAL STANDARD
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits of the case. A defendant must meet a high standard in order to have a complaint dismissed for failure to state a claim upon which relief may be granted. In ruling on a motion to dismiss, the court must construe the complaint's allegations in the light most favorable to the plaintiff and all well-pleaded facts and allegations in the plaintiff's complaint must be taken as true. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993), cert. denied, 510 U.S. 1012, 114 S.Ct. 602, 126 L.Ed.2d 567 (1993). The allegations of a complaint should not be dismissed for failure to state a claim "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Nonetheless, in order to withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992), cert. denied, 506 U.S. 893, 113 S.Ct. 267, 121 L.Ed.2d 196 (1992). With these principles in mind, the Court evaluates Defendants' motions.
DISCUSSION
I. The Village's Motion to Dismiss
Watson seeks to impose § 1983 liability on the Village for the alleged harassment, intimidation, and retaliation instigated by Wolavka, Weigel, and "other supervisors in the Police Department." According to Watson, the Village had a de facto policy of harassment and retaliation, which exposes it to § 1983 liability. Nevertheless, the Court finds that Watson has failed to adequately allege a de facto policy of harassment or any other viable theory that would hold the Village liable for the harassment and intimidation alleged.
Although a claimant may sue a local government unit under § 1983, the local government unit cannot be held liable under § 1983 on a respondeat superior theory for employing a tortfeasor.See Monell v. Dep't of Social Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978); Morgan v. Board of Trustees of Community College District No. 508, No. 98 C 1095, 1999 WL 160369, at *3 (N.D.Ill. Mar. 9, 1999). Rather, the viability of a § 1983 action against a government body rests on an allegation that the execution of the local government body's "official policy" itself results in a deprivation of a constitutionally protected right. See Monell 436 U.S. at 694. There are three recognized contexts where a municipality or other local governing body can be sued under § 1983:
(1) for an express policy that causes a constitutional deprivation; (2) for a widespread practice that, although not authorized by written law or express municipal policy, causes a constitutional deprivation and is so permanent and well settled as to constitute a custom and usage with the force of law; or (3) for an allegation that the constitutional injury was caused by a person with "final policymaking authority." Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7th Cir. 1994); Morgan, 1999 WL 160369, at *4.
Watson does not claim the first or third of these theories, but seems to rely on the second theory by claiming the existence of ade facto Village custom. Watson further seems to argue that certain unnamed "Policy making officials" ratified the harassment and intimidation.
In order to establish a "custom," plaintiff must allege that policymaking officials knew and acquiesced in the established practice or that the particular practice was so longstanding and widespread that it would give rise to the inference that policymaking officials "must have known about it but failed to stop it." McNabola, 10 F.3d at 511. Watson completely fails to do this and instead relies on conclusory boilerplate assertions that the Village "by and through its supervisors, allowed improper activity and employee practices which violated police department policy and public safety" and that "Defendants' harassment and intimidation of Plaintiff reflects a policy, custom, or pattern of official conduct." Watson's allegations fail to suggest that there was an "established" or "longstanding and widespread" practice of harassment and retaliation. Although Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct 1160, 1163, 122 L.Ed.2d 517 (1993) clarified that § 1983 Monell claims are subject to the same liberal pleading requirements of Rule 8(a)(2) and not to a heightened pleading requirement, the Rules still require more than bare conclusory allegations. See McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995). Watson, however, provides nothing other than his own isolated experiences, upon which he would have the Court conjure up some established or longstanding and widespread practice of harassment and retaliation. Cf Figueroa v. City of Chicago, No. 97 C 8861, 1999 WL 163022, at *6 (N.D.Ill. Mar. 12, 1999) (allegations making vague references to other people who were allegedly subjected to similar harassment does not establish pattern or series of incidents which would show policy or custom); Silva v. City of Chicago, No. 94 C 7228, 1996 WL 535244, at *4 (N.D.Ill. Sept 18, 1996) (where plaintiff did not refer to any incidents other than his own case and relied on conclusory allegations of a municipal policy, claim was insufficient). Because Watson fails to put forth allegations that would suggest an established or longstanding and widespread practice of wrongdoing, his § 1983 claim against the Village on the basis of "custom" is inadequate.
In addition, Watson fails to connect the Village to any alleged established or longstanding and widespread practice as he does not adequately claim that some policymaking official acquiesced in that alleged practice or custom of wrongdoing. Watson claims that he complained to a Deputy Commander, the Acting Police Chief, the Police Chief, and the Assistant Village Manager/Personnel Director (the "Personnel Director"), and as a result availed himself of the Village's grievance procedure. According to Watson, the grievance procedure resulted in the Personnel Director, Joseph F. Wade ("Wade"), issuing a determination finding that Watson was subjected to intimidation and harassment. In his decision, Wade also ordered the police department to clear any discipline other than an oral reprimand of Watson with the Personnel Director for a four year period.
Given these allegations, Watson has failed to claim that the Village had a custom or practice of harassment and retaliation. In fact, Watson alleges that the acts of the individual perpetrators were in violation of police department policy and not pursuant to a de facto policy. There is nothing in Watson's complaint to suggest that the Village knew and acquiesced in the alleged harassment and retaliation. If anything, Watson's complaint suggests that the Village condemned the alleged misconduct when it came to light. Watson, however, seems to complain that despite the Village's attempt to redress the wrong, the harassment persisted. Watson, however, has alleged nothing that would suggest that the Village condoned this alleged continuing harassment, but rather argues that the Village's corrective action ultimately proved insufficient. These allegations do not adequately claim that the Village maintained a custom or policy of allowing harassment and retaliation. Thus, Watson has not stated a § 1983 claim against the Village based on a custom or policy.
Watson also seems to posit a ratification theory to impose § 1983 liability on the Village. A claimant may impose § 1983 liability on a municipality or local government body based on a "ratification theory" by alleging that a municipal official with final policymaking authority approved the subordinate's decision and the basis for it. See Baskin v. City of Des Plaines, 138 F.3d 701, 705 (7th Cir. 1998). However, a claimant does not state a § 1983 claim against a local government body by merely alleging that it failed to investigate an incident or to take punitive action against the alleged wrongdoer. See id. A Court will not equate failure to eliminate a practice with approving it; rather, a claimant must allege deliberate or reckless indifference to complaints in order to establish that an abusive practice was actually condoned and adopted by a policymaking official. See Wilson v. City of Chicago, 6 F.3d 1233, 1240 (7th Cir. 1993).
Aside from failing to indicate who the alleged "Policy making officials" were, Watson's allegations entirely fail to suggest that a Village policymaking official acted with deliberate or reckless indifference to Watson's complaints. Watson's allegations belie this notion since he maintained in his amended complaint that the Personnel Director responded favorably to his grievances. Nevertheless, Watson claims that despite the corrective action, individuals continued to harass him. This is insufficient to state a claim for § 1983 liability against the Village on a ratification theory as it fails to give rise to the inference that some policymaking official acted with deliberate or reckless indifference to Watson's complaints.
Because Watson has alleged no viable theory upon which to base the imposition of § 1983 liability on the Village, the Court grants the Village's motion to dismiss.
II. The Individual Defendants' Motions to Dismiss
Watson alleges that Wolavka and Weigel violated his § 1983 rights by retaliating against him through harassment that chilled his free speech rights and by retaliating against him for filing grievances. To establish a retaliation claim under § 1983 based on the First Amendment, a claimant must first establish that (1) his conduct was constitutionally protected and (2) his conduct was a substantial or motivating factor in the defendant's challenged actions. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Thomsen v. Romeis, 198 F.3d 1022, 1026 (7th Cir. 2000). The plaintiff must allege that his involvement in the constitutionally protected conduct was the "but for" cause of defendant's challenged actions. See id. Because a § 1983 claim depends on the existence of a violation of a constitutional right, the threshold inquiry is whether the plaintiff can demonstrate that the defendant deprived plaintiff of a constitutional right. See Graham v. Connor, 490 U.S. 386, 393, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989) (§ 1983 itself is not a source of substantive rights).
The Court examines separately Watson's claim that he was retaliated against for writing the Newspaper Letters and his claim that he was retaliated against for filing grievances with the Police Department.
A. Chilled Free Speech Rights — the Newspaper Letters
Watson alleges that Wolavka and Weigel retaliated against him for writing the Newspaper Letters by harassing him so as to chill his exercise of his First Amendment rights to free speech. Defendants Wolavka and Weigel counter that Watson's speech was not protected because it did not address a matter of public concern. Further, Wolavka and Weigel argue that Watson suffered no deprivation and that there are no allegations of a causal connection between the speech and the alleged harassment.
Whether there was a violation of an employee's free speech rights begins with an inquiry into whether the speech at issue addressed a matter of public concern. See, e.g., Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct 1684, 1690, 75 L.Ed.2d 708 (1983); Cleaves v. City of Chicago, 68 F. Supp.2d 963, 968 (N.D. Ill. 1999). Thus, the Court examines whether Watson's three letters to the Chicago Tribune and Sun-Times, which allegedly prompted Wolavka's and Weigel's harassment and retaliation, addressed matters of public concern. A court considers the content, form, and context of an employee's speech in determining whether it addresses a matter of public concern. See Connick, 461 U.S. at 147, 103 S.Ct. at 1690. Where a public employee speaks not as a citizen upon matters of public concern, but as an employee upon matters only of personal interest, a federal court is generally not the proper forum in which to assess what is essentially a personnel matter. See id. In this case, however, Watson's speech addressed matters of public concern. Watson did not write the letters to the Chicago Tribune and Sun-Times in order to assuage a personal problem, but rather he was making political commentary in a public forum, which fits the definition of "a matter of public concern." See Coady v. Steil, 187 F.3d 727, 731 (7th Cir. 1999).
Next, in determining whether speech is entitled to First Amendment protection, a court must balance the plaintiff's interests in commenting upon matters of public concern and the interests of the state in promoting the efficiency of its public services. See, e.g., Little v. State of Illinois Dep't of Revenue, Bureau of Criminal Investigation, 907 F. Supp. 280, 285 (N.D.Ill. 1995). Without making a final determination on how to strike this balance, the Court finds that for purposes of a motion to dismiss, Plaintiff has adequately alleged that he was engaged in protected speech. See id. The competing interests of the Village and the public employee are unclear. At this juncture, the Court finds that Watson has sufficiently alleged that he was engaged in protected speech.
Moreover, Watson claims he suffered a deprivation of his First Amendment rights because Wolavka's and Weigel's harassing conduct allegedly chilled him in his exercise of his protected free speech rights. Threats or harassment intended to chill an individual's free speech rights may be actionable under § 1983. See Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982);Klipfel v. Bureau of Alcohol, Tobacco and Firearms, No. 94 C 6415, 1996 WL 566452, at *14 (N.D.Ill. Sept. 27, 1996). The Seventh Circuit has found that the effect of harassment "on freedom of speech may be small, but since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable." Bart, 677 F.2d at 625. Consequently, Watson has sufficiently alleged that he suffered a deprivation of his constitutional rights.
Weigel focuses much of his effort in arguing that Watson's speech was not ultimately stopped and therefore, not chilled. According to Weigel, the complained of harassment was not adverse enough to chill Watson's speech. However, all that is needed to save Watson's amended complaint from being dismissed under Rule 12(b)(6) is a suggestion that the harassment was motivated by Watson's exercise of his free speech rights and that it deterred Watson in his exercise of his free speech rights. See id.; see also Smith v. Fruin, 28 F.3d 646, 649, n. 3 (7th Cir. 1994) (degree of retaliation is immaterial because even minor forms can having chilling effect). Whether the harassment had a sufficiently chilling effect on Watson's free speech rights so as to reach the threshold of actionability under § 1983 is a question of fact not properly before the Court at this time. See Bart, 677 F.2d at 625.
Wolavka also argues that Watson fails to allege a causal connection between the exercise of his free speech rights and the alleged harassment. It is not enough that Watson alleges that he was harassed, but he must allege that his exercise of free speech was the "but for" cause of the harassment. See Thomsen, 198 F.3d at 1026. Although some of the alleged harassment is so remote that it fails to raise an inference of a causal nexus, the Court will not on these pleadings find that Watson can prove no set of facts demonstrating that his letters to the newspapers were the "but for" cause of some of the harassment.
Watson alleges that Wolavka and Weigel began a concerted and systematic effort to harass and intimidate him after Wolavka told Watson that he was stupid to attach his name to the 1997 Tribune Letter. Among the harassing activities Watson alleges, the four written reprimands are the only harassing activities that can be considered to have some kind of connection to Watson's Newspapers Letters. Watson alleges that beginning in November of 1997 he received four written reprimands when in his prior years of employment he had not received four written reprimands. The suspicious timing of the reprimands, which directly followed his 1997 Tribune Letter, along with Wolavka's comments could ultimately demonstrate some causal nexus. However, Watson should note that a court will not generally infer a causal nexus from suspicious timing alone, and thus, Watson must eventually provide more detail regarding the reprimands to demonstrate that they were motivated by his Newspapers Letters. See Thomsen, 198 F.3d 1022, 1027 (7th Cir. 2000); compare Carlisle v. Lopresti, 47 F. Supp.2d 973, 982 (N.D.Ill. 1999).
Watson's other allegations of harassing activity are either irrelevant to his claim of retaliation caused by his letters to the newspapers or too remote. For example, Watson claims that in response to various grievances he filed, Wolavka requested that Watson be disciplined for insubordination; Weigel falsely stated that Watson's work was "slipshod; and that Wolavka and Weigel tried to "set up" Watson to commit an act in violation of police department policy. Although these claims may allege some causal connection between these harassing activities and Watson's filed grievances, they fail to allege that the letters written to the Chicago Tribune and Sun-Times were related, much less the "but for" cause of these harassing activities. Watson himself seems to claim that these acts of harassment were motivated by his filed grievances rather than his letters to the Chicago Tribune and Sun-Times.
Further, Watson claims that Defendants instituted baseless internal affairs investigations against him sometime after October 1997. Without more, there can be no inference of a causal nexus. Watson has alleged nothing to even tenuously connect the investigations to his Newspapers Letters, not even some specific timing element. In addition, Watson alleges a denial of a transfer in November 1999. The mere fact that Watson was denied a transfer a year and a half after his 1998 Tribune Letter does not create the inference of some causal connection between the two events. His denial of transfer is so remote from his 1998 Tribune letter that it cannot benefit from the suspicious timing argument.
Nevertheless, the Court denies Defendants Wolavka's and Weigel's motions to dismiss the retaliation claim against them, which alleges that they chilled Watson's exercise of his First Amendment rights by harassing him in retaliation for writing letters to the Chicago Tribune and Sun-Times. Because Watson has alleged that he was engaged in protected speech and that in retaliation Wolavka and Weigel may have chilled Watson's speech by harassing Watson with written reprimands, the Court finds that Watson has stated a sufficient claim for retaliation based on his Newspapers Letters.
B. Grievances
Watson claims that Wolavka and Weigel violated his § 1983 rights by retaliating against him for filing grievances with the Police Department. Because Watson has not properly alleged a violation of a constitutionally protected right, the Court grants Wolavka's and Weigel's motion to dismiss the retaliation claims based on the filing of the grievances. See Graham, 490 U.S. at 393, 109 S.Ct. at 1870-71.
Watson seems to be alleging that he has some constitutionally protected right to generally file grievances against his supervisors, and thus to retaliate against him for exercising these rights violates his § 1983 rights. The Court is familiar with no such constitutional right and no such federal cause of action. Even if the Court were to indulge Watson by viewing this retaliation claim based on his grievances as alleging retaliation against an exercise of his First Amendment rights, Watson's claim still would not stand because his grievances do not address matters of public concern. See Fruin, 28 F.3d at 651. It is clear that Watson filed his grievances only to protect his own personal interest. He states in his complaint that he filed his grievances to "document Defendants' harassment and intimidation of him." Nowhere does Watson claim that his grievances spoke to some public concern or sought to air the merits of some public issue. See id. at 652. As such, Watson has failed to meet the first element of a § 1983 retaliation claim based on the First Amendment.
Because Watson has stated no other viable cause of action based on the alleged retaliation for filing grievances, the Court grants Defendants Wolavka's and Weigel's motions to dismiss this claim against them.
CONCLUSION
For the reasons set forth above, the Court grants the Village's motion to dismiss and denies in part and grants in part Wolavka's and Weigel's motions to dismiss.