Campion, Barrow & Assoc. v. City of Springfield

• Decision Date: 24 March 2009
• Docket Number: No. 08-1947.,08-1947.
• Citation: 559 F.3d 765
• Parties: CAMPION, BARROW & ASSOCIATES, INC., and Michael A. Campion, Plaintiffs-Appellants, v. CITY OF SPRINGFIELD, ILLINOIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

559 F.3d 765

CAMPION, BARROW & ASSOCIATES, INC., and Michael A. Campion, Plaintiffs-Appellants, v. CITY OF SPRINGFIELD, ILLINOIS, Defendant-Appellee.

No. 08-1947.

United States Court of Appeals, Seventh Circuit.

Argued September 17, 2008.

Decided March 24, 2009.

Brian W. Raum (argued), Scottsdale, AZ, for Plaintiffs-Appellants.

Jason A. Anselment (argued), Office of the Corporation Counsel, Springfield, IL, for Defendant-Appellee.

Before MANION, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge.

The firm of Campion, Barrow & Associates, led by Dr. Michael Campion, provides psychological services to police and fire departments in the central Illinois area. (We refer to both as Campion unless the context requires otherwise.) For many years, one of its clients was the City of Springfield. This case arose when the City decided to terminate its relationship with Campion and enter into a new agreement with psychologist Dr. Paul Detrick. Campion believes that it did so because of a newspaper article reporting his affiliation with the Illinois Family Institute ("IFI"), an organization with conservative views on such topics as marriage, abortion, homosexuality, and stem cell research. After losing his contract with the City, Campion sued it under 42 U.S.C. § 1983 and state law, asserting that the City had violated his First Amendment right of freedom of association, that it had retaliated against his exercise of his First Amendment right of freedom of speech, and that it had breached its contract with him. The district court granted summary judgment in the City's favor. We conclude that it was correct to do so; while Campion's affiliation with IFI was indeed protected, he has not come forward with enough admissible evidence to support a finding that this affiliation or his speech prompted the City's action. We therefore affirm.

I

Campion began providing psychological screening for the City's police and fire departments in 1990. Over the years, he performed these tasks under a series of different contracts. The most recent of those became effective on June 1, 2000. The 2000 contract expressly stated that it "shall automatically renew itself each year thereafter" unless either provides notice of termination. The agreement also authorized payments from the City to Campion up to a ceiling of $21,000. This did not mean that Campion's compensation was so limited, however; it just meant that the City Council had to modify the contract periodically to approve additional payments. And indeed, the City Council regularly passed ordinances authorizing greater payments to Campion.

It is difficult to pinpoint the exact moment when the parties' relationship began to unravel, but some or all of the following facts may have made a difference. On April 1, 2003, Timothy Davlin became mayor of Springfield. Davlin thought that pre-employment psychological evaluations were a waste of time and money, and he made no secret of his opinion. Nevertheless, after Davlin asked for an opinion from a City attorney about the necessity of the services, the attorney advised him to continue with them, and Davlin did so.

So matters stood when, on August 24, 2004, the Illinois Times, a Springfield newspaper, ran a column written by reporter Dusty Rhodes entitled "Partial Disclosure." The story criticized Campion for failing to disclose on his resume the fact that he had been on IFI's board of directors since 1999. Over the next two months, Rhodes wrote two additional articles discussing Campion, his involvement with IFI, and his work for the City. Shortly after these articles appeared, Alderman Frank McNeil went to Mayor Davlin and said "Hey, this guy's got to go. He's out of touch with the mainstream. He has an absolute right to his conservative views, and we have an absolute right to change reviewers." Most of the rest of Springfield's ten aldermen did not recall seeing Rhodes's column before they were deposed in Campion's lawsuit. Moreover, Davlin had no recollection of either the column or of McNeil's statement (which, taking the facts in the light most favorable to Campion, we assume was uttered).

McNeil made further efforts to have Campion removed from the City's work. At one point, he recommended possible providers to replace Campion. McNeil inferred from Campion's association with IFI that Campion held extremely conservative views on a number of issues, and he speculated that Campion's personal views might be affecting his decisionmaking process when he performed psychological screenings for the City. Alderman Edwards, who had formerly been chief of the City's Fire Department, shared Davlin's skepticism about the usefulness of the evaluation process. At one point, according to one of Rhodes's articles, Edwards commented "This guy's got no consistency. ... The people I thought would've been squashed, he passed. I'm just a novice reading this, but if a guy had a beer, he was out."

After the publication of Rhodes's first article, in December 2004, the City Council approved an extension of the Campion contract and additional payments. By January 2005, however, it was hunting for a new psychologist. That search led to Detrick, who charged less per applicant than Campion. On May 17, 2005, the Council passed Ordinance 344-05-05 ("Detrick ordinance") on an emergency basis; that ordinance authorized the execution of a contract with Detrick for the provision of the City's psychological testing services. The use of the emergency procedure eliminated the need for two readings of the ordinance at two separate council meetings, but it also imposed a requirement of a supermajority of eight of the ten alderman for passage. In fact, the vote was unanimous to enter into the Detrick contract. Most aldermen stated under oath that they did not know why the City was changing psychologists, and that the choice was up to the mayor. Every alderman except McNeil stated that Campion's personal views and political associations were not a factor in their decision to vote for the Detrick ordinance.

After the passage of the Detrick ordinance, the City began referring all applicants to Detrick for testing. It did not give Campion 30 days' written notice that his contract was terminated. What it did instead was to pass an additional ordinance authorizing additional payments to Campion for services previously rendered. After that, Campion filed this action, initially against each individual alderman and the mayor, as well as the City, asserting his First Amendment and breach of contract theories. The district court dismissed the claims against the individual defendants, leaving only the claim against the City at this point; Campion has not challenged that action on appeal. On the City's motion for summary judgment, the district court held that, while Campion's speech was protected, he had failed to demonstrate that his protected activity was a motivating factor in the City's decision to terminate his contract. In addition, the court held, it was the City Council that had final policymaking authority with respect to the decision to enter into the Detrick contract, and Campion failed to show that a significant bloc of aldermen were motivated by Campion's protected speech or associations. Campion contests all of those findings on appeal. The court declined to exercise supplemental jurisdiction over Campion's contract claim.

II

In order to prevail on his § 1983 claim, Campion must prove (1) that he was engaged in constitutionally protected speech or associations, and (2) that his protected speech was a motivating factor behind the City's decision to terminate his contract in favor of Detrick. If he can point to evidence supporting both of those propositions, the City would then be entitled to show that it would have taken the same action even in the absence of Campion's exercise of his First Amendment rights. Samuelson v. LaPorte Community School Corp., 526 F.3d 1046, 1053 (7th Cir.2008); Spiegla v. Hull, 371 F.3d 928, 942 (7th Cir.2004) (plaintiff has the burden of proof on the question whether protected activity was a motivating factor for defendant's retaliatory action). Here, the City concedes that Campion's speech and associations were constitutionally protected. The only question is therefore whether Campion has produced enough evidence to require a trial on the question whether his protected activity was a factor that motivated the City's decision on the contract.

Campion detects three errors in the district court's approach to his case: first, he argues that it erred in concluding that the City Council, rather than Mayor Davlin, had final policymaking authority over the choice of contractor; second, he argues that he did present enough evidence to survive summary judgment; and finally, he finds fault in the district court's implicit legal conclusion that he could prevail only if a significant bloc of aldermen were motivated by his protected activity. We address these points in turn.

1. Final policymaking authority. Campion is trying to hold the City itself liable for the loss of his contract, which he is entitled to do under Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). But, as the Supreme Court recently reiterated in the analogous context of a case raising an Equal Protection challenge, "[a] plaintiff stating a similar claim via § 1983 for violation of the Equal Protection Clause by a school district or other municipal entity must show that the harassment was the result of municipal custom, policy, or practice." Fitzgerald v. Barnstable School Comm., ___ U.S. ___, 129 S.Ct. 788, 797, 172 L.Ed.2d 582 (2009). One way that municipal custom, policy, or practice can be shown is by demonstrating a "deliberate choice to follow a course of action ... from among various alternatives by the official or officials responsible for establishing final policy, with respect to the subject matter in question."...