832 F.3d 785 (7th Cir. 2016), 14-2919, Kristofek v. Village of Orland Hills

Docket Nº:14-2919
Citation:832 F.3d 785
Opinion Judge:Williams, Circuit Judge.
Party Name:David Kristofek, Plaintiff-Appellant, v. Village of Orland Hills, a municipal corporation, and Thomas Scully, individually and in his official capacity, Defendants-Appellees.
Attorney:Keith A. Karlson, Attorney, Hinsdale, IL, Jerome Frank Marconi, Jr., Attorney, Law Offices of Jeromes F. Marconi, Chicago, IL, for Plaintiff-Appellant. K. Austin Zimmer, Veronica Bonilla-Lopez, Attorneys, Del Galdo Law Group, LLC, Berwyn, IL, Patrick J. Ruberry, Attorney, Litchfield Cavo LLP, Chi...
Judge Panel:Before Posner, Flaum, and Williams, Circuit Judges.
Case Date:August 11, 2016
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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832 F.3d 785 (7th Cir. 2016)

David Kristofek, Plaintiff-Appellant,


Village of Orland Hills, a municipal corporation, and Thomas Scully, individually and in his official capacity, Defendants-Appellees.

No. 14-2919

United States Court of Appeals, Seventh Circuit

August 11, 2016

Argued December 4, 2015

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Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 CV 7455— Samuel Der-Yeghiayan, Judge.

Keith A. Karlson, Attorney, Hinsdale, IL, Jerome Frank Marconi, Jr., Attorney, Law Offices of Jeromes F. Marconi, Chicago, IL, for Plaintiff-Appellant.

K. Austin Zimmer, Veronica Bonilla-Lopez, Attorneys, Del Galdo Law Group,

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LLC, Berwyn, IL, Patrick J. Ruberry, Attorney, Litchfield Cavo LLP, Chicago, IL, for Defendants-Appellees.

Before Posner, Flaum, and Williams, Circuit Judges.


Williams, Circuit Judge.

While working as a part-time police officer for the Village of Orland Hills, David Kristofek cited and arrested a driver for several car-insurance-related infractions. Following a flurry of phone calls between the driver’s mother, several local politicians, and Thomas Scully, the Village’s chief of police, the driver was released and the citations against him were voided. Several months later, Kristofek participated in a police training session that involved two hypothetical instances of official police misconduct. Based on these hypotheticals, Kristofek became concerned that official misconduct may have occurred involving the voided citations. After Kristofek shared this concern with two other officers and with the FBI, Scully fired him.

Kristofek sued Scully and the Village, and the district court granted their motion for summary judgment. On appeal, Kristofek claims that the district court erred in holding that his statements to his colleagues and the FBI about the voided citations were not protected under the First Amendment. We agree. Kristofek was speaking as a private citizen about a matter of public concern, and his interest in speaking outweighed Scully’s interest in promoting efficiency within the department. Kristofek also claims that the district court erroneously held that the Village was not liable for Scully’s actions under Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). But the district court correctly rejected Kristofek’s Monell claim, since Scully did not possess the requisite authority to unilaterally fire Kristofek or to set departmental firing policy. So we reverse the district court’s judgment relating to Kristofek’s First Amendment retaliation claim against Scully, but affirm it as to Kristofek’s Monell claim against the Village.


A. Arrest and Citations

In September 2010, the Village of Orland Hills, Illinois (Village) hired Kristofek as a part-time probationary officer. At the time, Kristofek was also working part time as an officer for the police department in Lemont, Illinois. While working for the Village in November 2010, Kristofek ran the license plate of a car that was being driven by Alonzo Marshall (Alonzo), a young black man. Kristofek discovered that the car’s registration was suspended due to a lack of insurance and initiated a traffic stop. (The legality of this stop is not at issue on appeal.) After Alonzo was unable to provide proof of insurance, he was cited for driving with suspended license plates and for failing to provide proof of insurance. He was placed under arrest by Kristofek and transported to a police station by two other officers— Joseph Johnston and Ross Ricobene.

Between the commencement of the traffic stop and the arrest, Alonzo called his mother, Carol Marshall (Carol). Carol was working as a bus driver in neighboring Rich Township, and had previously worked as a trustee in Matteson, Illinois (which is located within Rich Township). After Carol got off the phone with Alonzo, she called Timothy Bradford, a friend who was a trustee for Rich Township, and complained about Alonzo’s arrest. This led to a series of phone calls between several area public officials.

Bradford called Village Mayor Kyle Hastings, who in turn called Village Police Chief Thomas Scully. Hastings gave Bradford’s

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phone number to Scully, who then spoke with Bradford about Carol’s complaints. After getting off the phone with Bradford, Scully called Deputy Police Chief Michael Blaha and briefly discussed the arrest. (The parties dispute the content of the discussion.) After the call, Alonzo was released, the citations were voided, and a letter was sent to the County Clerk identifying the citations and advising that they had been voided. Scully argues that this was done to protect the officers and the Village from a potential lawsuit. Kristofek claims, however, that Blaha told him that the incident involving Alonzo was not Kristofek’s fault and “ was above and beyond you and me.”

In February 2011, a handgun was discovered in the backseat of Kristofek’s squad car after Kristofek had returned the car to the station and gone off-duty. Kristofek admitted that the gun was likely in the car when he returned it and offered to resign. But Scully refused to accept the offer, stating in an email, “ DO NOT submit your resignation as I will not accept it.... You’ re a good police officer Dave and we will learn from this experience.”

B. Kristofek’s Termination

In early April 2011, Kristofek participated in an online training session through the Lemont Police Department. The session included two Q & As instructing that official misconduct occurs if a supervisor allows an arrestee in police custody at a station to leave, confiscates the related paperwork, and declines to forward it to the County Clerk or the State’s Attorney. Kristofek believed these hypotheticals to be similar to the incident involving Alonzo, and became concerned that official misconduct had occurred for which he could be punished. He consulted with an attorney and was advised to bring the matter to the FBI’s attention. Kristofek also expressed his concerns to Johnston and Ricobene— the two officers who took Alonzo to the police station after he was arrested— and asked them to help him report the matter to outside law enforcement. After both officers rebuffed Kristofek’s request, he contacted the FBI.

Ricobene informed Scully about Kristofek’s remarks, prompting Scully to reach out to Johnston for corroboration. (The parties dispute whether Scully was informed that Kristofek had consulted with an attorney and that Kristofek believed the officers’ knowledge of the voided citations might constitute official misconduct.) Scully then met with Village Administrator John Daly to discuss Kristofek’s comments and to recommend that Kristofek be fired. Daly agreed with Scully’s recommendation but first wanted him to meet with Kristofek and confirm the content of Kristofek’s statements.

Scully asked Kristofek to meet him in his office. Kristofek described the online training scenarios he had viewed and said that they suggested official misconduct had occurred in connection with Alonzo’s voided citations. Kristofek claims that he also told Scully that he had recently met with the FBI to discuss the incident. (The FBI and U.S. Attorney’s Office later investigated the matter and decided not to take action.) After Kristofek declined Scully’s offer to submit a resignation letter, Scully fired him. In the ensuing days, Scully prepared a “ notice of termination” that stated Kristofek was being fired because he had “ contacted several members of this agency, telling them that the Chief of Police was a criminal and was going to be indicted,” and had “ accused the Village of being corrupt.” The February handgun incident was not referenced.

C. Legal Proceedings

Kristofek sued Scully and the Village, alleging that his termination violated the First Amendment and Illinois state law.

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The district court dismissed Kristofek’s First Amendment claim and remanded the remaining claims to state court. But we reversed, finding that Kristofek’s complaint adequately pled that his speech related to a matter of public concern (notwithstanding his apparent self-interested motivation in avoiding potential punishment), and that Scully possessed enough authority over hiring and firing to state (albeit barely) a Monell claim. See generally Kristofek v. Vill. of Orland Hills, 712 F.3d 979 (7th Cir. 2013) (“ Kristofek I ” ).

On remand, the parties conducted discovery and filed cross motions for summary judgment. The district court granted the defendants’ motion and denied Kristofek’s motion. In doing so, the court rejected Kristofek’s claim against Scully on several grounds: Kristofek had failed to speak on a matter of public concern; the police department’s interests in promoting efficient and effective public service outweighed his interest in expressing his speech; his speech was made with a reckless disregard for the truth; and his speech did not cause his termination because Scully was not aware of his contact with the FBI when Scully fired him. The court also concluded that Scully was entitled to qualified immunity. In addition, the court rejected Kristofek’s Monell claim against the Village on the grounds that Kristofek’s constitutional rights had not been violated, and that he had failed to demonstrate that Scully had policymaking authority over firing. This appeal followed.


We review the district court’s grant of summary judgment de novo and construe all factual inferences in Kristofek’s favor as “ the party against whom...

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