549 F.3d 480 (7th Cir. 2008), 06-2283, Houskins v. Sheahan

Docket Nº:06-2283, 06-2549, 06-2575.
Citation:549 F.3d 480
Party Name:Virgean HOUSKINS, Plaintiff-Appellee, v. Michael F. SHEAHAN, Sheriff, The Sheriff of Cook County, sued in his official capacity, Cook County and Donald Keith, Defendants-Appellants.
Case Date:November 25, 2008
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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549 F.3d 480 (7th Cir. 2008)

Virgean HOUSKINS, Plaintiff-Appellee,


Michael F. SHEAHAN, Sheriff, The Sheriff of Cook County, sued in his official capacity, Cook County and Donald Keith, Defendants-Appellants.

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

United States Court of Appeals, Seventh Circuit.

November 25, 2008

Argued Nov. 9, 2007.

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Christopher V. Langone (argued), Ithaca, NY, for Plaintiff-Appellee.

Arleen C. Anderson (argued), Jeanne A. Bischoff, Office of the Cook County State's Attorney, Robert W. Fioretti (argued), Chicago, IL, for Defendants-Appellants.

Before BAUER, MANION and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge.

Social worker Virgean Houskins brought a civil rights action under 42 U.S.C. § 1983 against her employer, then-Sheriff Michael Sheahan and Cook County (collectively the “ Sheriff" ), alleging that she was disciplined in retaliation for reporting a fight between her and Correctional Officer Donald Keith. She further alleged the Sheriff had a widespread custom or policy of retaliating against employees of the Cook County Department of Corrections (“ CCDOC" ) who exercised their right to free speech. Houskins also filed a claim under Illinois state law for civil assault and battery against Keith. A jury returned a verdict in favor of Houskins, awarding damages against the Sheriff and Keith; these appeals followed. For the reasons set forth in this opinion, we affirm the judgment against Keith and reverse the judgment against the Sheriff.


Beginning in 1990, Houskins was a social worker for the Sheriff in the Department of Program Services at the CCDOC. On the morning of September 17, 2001, Houskins arrived at work and pulled into the parking lot of the Cook County jail. The lot was full, and while she waited for a parking space, Houskins chatted with co-worker Regina Bowers, who was sitting in

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the car next to Houskins. Keith pulled into the parking lot shortly thereafter. As Keith drove past her, Houskins thought Keith was going to take the parking spot she had been waiting for, and stated, “ oh, mother fuck, no he won't do this." Keith overheard Houskins through the open car windows.

Keith took the parking space and Houskins parked her car in another space nearby. Both exited their cars and approached one another. A verbal argument ended with Keith striking Houskins in the face. Bowers was present for the argument and saw Keith strike Houskins. Two more correctional officers, Claude Lawrence and Dennis Calderone, arrived on the scene moments after the incident, but neither witnessed Keith striking Houskins. According to Houskins, Lawrence came over and told her to “ shut the fuck up" and “ nobody was going to lose their job" over the incident; Calderone walked away from the area.

After the altercation ended, Houskins reported for duty. On the advice of two lieutenants, she filed a CCDOC incident report in which she described the attack. Houskins went to the emergency room at Cermak Health Services, where doctors examined her, took x-rays, and ordered her to apply cold packs to her right jaw and take Tylenol for any pain.

Under the CCDOC General Orders, which set forth policy, procedure, and requirements of conduct for CCDOC employees, it was Houskins's obligation to report incidents of misconduct immediately to her supervisor. So, after leaving Cermak, Houskins recounted the incident to her supervisor, Patricia Tolbert, including her use of foul language and Keith's attack. Tolbert took Houskins, along with Bowers, to the Internal Affairs Division (“ IAD" ) to make a complaint against Keith, Lawrence, and Calderone. Houskins gave her statement to investigators, repeating the story about her use of foul language, the argument, Keith's attack, and Lawrence's and Calderone's responses. IAD began the investigation shortly thereafter. The day after the incident, Keith was de-deputized, or stripped of his duties as a correctional officer, as a result of the complaint Houskins filed against him.

On the same day she reported the incident to IAD, Houskins went to the emergency room at the University of Illinois at Chicago Hospital for head pain and later filed a police report, attempting to have Keith arrested for assault and battery.1 According to Houskins, she also contacted the Cook County State's Attorney's Office in October and left a message for an assistant state's attorney regarding criminal charges being filed against Keith, but no one returned her phone call and she did not follow up.

On December 14, 2001, the IAD completed its investigation into the Houskins/Keith incident. IAD Investigator Gregory Ernst found that the evidence was “ inconclusive" against Keith, Calderone, and Lawrence. However, Ernst “ sustained" the investigation into Houskins's conduct, finding that Houskins used obscene language in violation of General Order 3.8 § III D-1 of the CCDOC Ethics and Standards of Conduct, which states that employees must conduct themselves in a professional and ethical manner, both on and off duty, and “ [e]mployees will refrain from the use of abusive or obscene language, threats, and coercion." On January

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3, 2002, Tolbert received Ernst's report and recommended that Houskins receive a three-day suspension. 2

Ernst also submitted the results of his investigation for command channel review-an additional review by the Office of the Inspector General (“ OIG" ), which oversees IAD's investigations. Deputy Inspector Henry Barsch and Inspector General Joseph Shaughnessy of the OIG reviewed the IAD's investigation and Tolbert's recommendation to suspend Houskins for three days. On January 25, 2002, OIG concurred with the findings and penalties against Houskins, but reversed IAD's findings with regard to Keith and Calderone, concluding that, by the preponderance of the evidence, (1) Keith struck Houskins in the face, in violation of General Order 4.1 § III(A)(10) and (A)(17),3 and (2) Calderone failed to take action during the altercation, in violation of General Order 9.23 § III(A)(8).4 OIG recommended a suspension of twenty-nine days for Keith and three days for Calderone. OIG forwarded its findings up the chain of command channel review to Executive Director Ernesto Velasco, and then to Undersheriff Zelda Whitler; both concurred with the findings and recommendations in early February 2002.

Houskins received a memo from Tolbert in July 2002, notifying her of her suspension without pay from July 30 to August 1, 2002. Houskins served the three-day suspension; eventually Houskins and Keith initiated the grievance process under their respective Union Collective Bargaining Agreements. Keith's suspension was ultimately reduced to one day; Houskins's suspension was reduced to a written reprimand and she was reimbursed for the three-day suspension.

On September 16, 2003, Houskins filed a complaint in federal district court, alleging a First Amendment violation against Sheahan in his official capacity and against Cook County. She claimed that (1) the Sheriff retaliated against her in violation of her First Amendment rights, because, as a direct result of her filing a complaint and police report against Keith, she was charged with a violation of General Order 3.18 and suspended, and that Keith was neither disciplined nor reprimanded for striking Houskins; (2) a policy existed that officers in the CCDOC abide by a “ code of silence" when faced with testifying against a fellow officer; this custom and policy also meant that those employees who do not abide by this “ code" (such as Houskins) are subject to retaliatory actions; and (3) Sheahan employs a policy of selective discipline that exempts officers with “ clout" from reprimands or discipline for misconduct under the General Orders, but those who lack influence are subject to retaliation.

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Houskins also alleged state law claims of assault and battery against Keith.

A. District Court Proceedings-The Sheriff

On September 23, 2004, the Sheriff filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law because Houskins's speech regarding the disciplinary process at the jail was not a matter of public concern under the Connick - Pickering test. The Sheriff also argued that no genuine issue of material fact existed to prove that either the Sheriff had a policy or practice of retaliating against employees who exercise their right to free speech, or engaged in a policy of selective discipline. The district court denied the motion on October 4, 2004, without prejudice to its possible renewal at trial as a Rule 50 motion. That same day, the final pretrial order was entered, in which the Sheriff did not raise the issue of whether Houskins's speech was constitutionally protected.

At a status hearing on April 7, 2005, counsel for the Sheriff alerted the court that it had not yet addressed the issue of whether Houskins's speech was constitutionally protected. The court stated that it was unaware that such an important question remained unanswered and expressed its frustration that the final pre-trial order did not contain any language identifying the contested issue. The court held that the Sheriff had forfeited the argument because it had not raised the issue in the final pretrial order, and therefore it could not include it in opening or closing statements, nor could it request a jury instruction on the issue.

The Sheriff filed a motion to reconsider on April 25, 2005, once again asking the court to make a determination as a matter of law as to whether Houskins's speech was constitutionally protected. The court denied the motion to reconsider on June 16, 2005, finding that the final pre-trial order did not properly identify the issue. The court stated, “ You know there is nothing to prevent, for example, when...

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