Chrzanowski v. Bianchi, 12–2811.

• Decision Date: 02 August 2013
• Docket Number: No. 12–2811.,12–2811.
• Citation: 725 F.3d 734
• Parties: Kirk CHRZANOWSKI, Plaintiff–Appellant, v. Louis A. BIANCHI, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

725 F.3d 734

Kirk CHRZANOWSKI, Plaintiff–Appellant,

v.Louis A. BIANCHI, et al., Defendants–Appellees.

No. 12–2811.

United States Court of Appeals, Seventh Circuit.

Argued April 5, 2013.

Decided Aug. 2, 2013.

Rebecca M. Lee, Attorney, Gummerson Rausch Wand Lee Wobacher LLC, Woodstock, IL, for Plaintiff–Appellant.

George Michael Hoffman, Attorney, Woodstock, IL, for Defendant–Appellee.

Before EASTERBROOK, Chief Judge, and FLAUM and WOOD, Circuit Judges.

WOOD, Circuit Judge.

From January 2006 until he lost his job in December 2011, Kirk Chrzanowski was an assistant state's attorney in the McHenry County State's Attorney's Office. Problems arose for Chrzanowski in early 2011, when a special prosecutor began investigating suspected wrongdoing by Chrzanowski's boss, McHenry County State's Attorney Louis Bianchi. Bianchi allegedly had improperly influenced the handling of cases involving his relatives and political allies. Under command of a subpoena, Chrzanowski testified before the grand jury, and later, after receiving another subpoena, he testified at Bianchi's trial. A few months after the trial, Chrzanowski was called into Bianchi's office, interrogated about his testimony by Bianchi and another prosecutor, Michael Combs, and fired. Chrzanowski believes that this was “in retaliation for his truthful testimony.” He filed suit a month later, alleging that Bianchi and Combs violated his rights under the First Amendment and various state statutes.

The defendants moved to dismiss Chrzanowski's § 1983 claims, arguing that the First Amendment's protections do not apply to any of his testimony because his statements were given “pursuant to [his] official duties” as a public employee. See Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). The district court agreed, holding that Chrzanowski had not presented a valid constitutional claim; in the alternative, the court held that the defendants were entitled to qualified immunity, since any First Amendment protections that might have attached to his testimony were not “clearly established” at the time. We reverse.

I

Our analysis relies on the facts contained in Chrzanowski's complaint, which at this stage we accept as true and construe in Chrzanowski's favor. Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir.2009).

Chrzanowski began working in the McHenry County State's Attorney's Office as an assistant state's attorney in January 2006. Initially he was assigned to the Office's misdemeanor division, but eventually he assumed responsibility for prosecuting more serious drug offenses and other felonies. He received positive performance reviews and raises in 2006, 2007, 2008 (twice), 2009 and 2010.

In early 2011, Chrzanowksi received a subpoena to testify before a grand jury. He complied and gave sworn testimony concerning allegations that Bianchi had improperly influenced a negotiated plea in a case for which Chrzanowski was principally responsible. On February 24, 2011, the grand jury returned an indictment against Bianchi on charges of official misconduct in violation of 720 ILCS 5/33–3(b). Chrzanowski was listed as a potential trial witness on April 6, 2011, and he received a trial subpoena two months later. He testified in the prosecution's case-in-chief on August 1, 2011.

From the outset, Bianchi and his allies were concerned by Chrzanowski's cooperation with the investigation. Upon learning of the grand jury subpoena, Ron Salgado, the chief investigator in the McHenry County State's Attorney's Office (and a friend and political ally of Bianchi), tried to speak with Chrzanowski. Chrzanowski avoided his calls. Terry Ekl, Bianchi's defense counsel, also tried to contact Chrzanowski after the special prosecutor identified Chrzanowski as a potential trial witness, but again Chrzanowski ignored requests to discuss the Bianchi investigation. On cross-examination at Bianchi's trial, Ekl pointedly brought up Chrzanowski's refusal to discuss the case before the trial:

Q: And you didn't feel that you owed your boss any obligation to talk to his lawyer before this trial, right?

A: My only obligation is to tell the truth here, sir.

Over the same period, Bianchi began placing memoranda and notes in Chrzanowski's personnel file; these notes bore little relation to Chrzanowski's work performance. For instance, on June 6, 2011, Bianchi placed a negative report in Chrzanowski's file because Chrzanowski failed to introduce Bianchi to “two college females” who were interning in the office. “He never would have thought of introducing me to them had I not stopped him and made a point of it,” Bianchi wrote. Chrzanowski was unaware of these additions to his personnel file and did not have an opportunity to contest them.

On December 2, 2011, Chrzanowski was summoned from his regular courtroom duties to Bianchi's office. There, Bianchi and Combs “confronted and interrogated” Chrzanowski about his grand jury and trial testimony. They presented him with transcripts of the proceedings and eventually Bianchi asked for Chrzanowski's resignation. When Chrzanowski refused, Bianchi told him, “You're terminated. Get out.” Chrzanowski alleges that he was “fir[ed] in retaliation for his truthful testimony against ... Bianchi.”

Chrzanowski responded to these events by filing suit in federal court, asserting claims against Bianchi and Combs pursuant to 42 U.S.C. § 1983 and state law. The defendants moved to dismiss the complaint in its entirety, arguing that Chrzanowski failed to state a valid First Amendment claim and that his state counts should be dismissed once the federal claim disappeared. Relying heavily on this court's decision in Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir.2008), the district court concluded that, when testifying against Bianchi, Chrzanowski was “a public employee ... speak[ing] pursuant to [his] official duties,” and not “a private citizen [speaking] on a matter of public concern.” The First Amendment offers no protection to “expressions [public] employees make pursuant to their professional duties,” Garcetti, 547 U.S. at 426, 126 S.Ct. 1951, and accordingly, the district court dismissed the § 1983 claim under Federal Rule of Civil Procedure 12(b)(6). In the alternative, the court held that “if the conclusion that there was no constitutional violation is incorrect, it cannot be said that the right was so clearly established that defendants cannot avail themselves of qualified immunity.” The court then granted Chrzanowski's request voluntarily to dismiss the remaining state law claims. This appeal followed.

II

In Garcetti v. Ceballos, the Supreme Court held 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.” 547 U.S. at 421, 126 S.Ct. 1951. In that case, a deputy district attorney alleged that supervisors had penalized him for writing an internal “disposition memorandum” that highlighted police misconduct in a pending criminal prosecution. Id. at 420, 126 S.Ct. 1951. The plaintiff also asserted that he was punished for speaking out about the case in other settings: for instance, discussing the matter with his supervisors, testifying truthfully at a hearing in which the defendant challenged the validity of a search warrant, and delivering a speech about the case at a bar meeting. The Court limited its opinion to the question whether the memorandum warranted First Amendment protection. The dispositive fact, it explained, was that writing such “disposition memoranda” was exactly what the plaintiff was employed to do in his capacity as a “calendar deputy.” Id. at 421, 126 S.Ct. 1951. The Court highlighted the fact that “the parties ... [did] not dispute that Ceballos wrote his disposition memo pursuant to his employment duties.” Id. at 424, 126 S.Ct. 1951. Disciplinary action on the basis of such speech does not offend the First Amendment because “[r]estricting employee 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.” Id. at 421–22, 126 S.Ct. 1951.

Although the Garcetti Court chose not to “articulate a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious debate,” id. at 424, 126 S.Ct. 1951, it did provide guidance on the subject. Public employee speech does not lose First Amendment protection because it concerns the subject matter of the employee's job. Id. at 421, 126 S.Ct. 1951. To the contrary, the Court reaffirmed that public employees are often “the members of a community most likely to have informed and definite opinions” on matters of public concern, and that it remains “essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” Id. (quoting Pickering v. Bd. of Ed. of Township High School Dist. 205, Will Cnty., 391 U.S. 563, 572, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Likewise, public employees' speech is not subject to restriction simply because it occurs inside the office, since “[m]any citizens do much of their talking inside their respective workplaces.” Id. at 420–421, 126 S.Ct. 1951. In other words, speech does not “owe[ ] its existence to a public employee's professional responsibilities” within the meaning of Garcetti simply because public employment provides a factual predicate for the expressive activity; rather, Garcetti governs speech that is made “pursuant to official duties” in the sense that it is “government employees' work product” that has been “commissioned or created” by the employer. Id. at 422, 126 S.Ct. 1951 (citing Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995)).

In assessing whether a public employee is speaking as an employee or...