DeGuiseppe v. Village of Bellwood

• Citation: 68 F.3d 187
• Decision Date: 16 October 1995
• Docket Number: No. 95-1296,95-1296
• Parties: Frank DeGUISEPPE and Torry Palermo, Plaintiffs-Appellants, v. VILLAGE OF BELLWOOD and Robert Frascone, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 187

68 F.3d 187

Frank DeGUISEPPE and Torry Palermo, Plaintiffs-Appellants, v. VILLAGE OF BELLWOOD and Robert Frascone, Defendants-Appellees.

No. 95-1296.

United States Court of Appeals, Seventh Circuit.

Argued June 8, 1995.

Decided Oct. 16, 1995.

Armand L. Andry (argued), Oak Park, IL, for Torry Palermo and Frank DeGuiseppe.

John M. Sullivan, Susan L. Jantorni (argued), Nancy S. Harbottle, Staehlin, Jantorni & Sullivan, Chicago, IL, for Village of Bellwood and Robert H. Frascone.

Before CUMMINGS, ESCHBACH and RIPPLE, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiffs, two sergeants with the Village of Bellwood, Illinois, Police Department, filed this 42 U.S.C. Sec. 1983 action against the Village and its police chief in his official capacity. ¹ Although the details of each plaintiff's claim differed slightly, the gist of both was that the chief, Robert Frascone, had retaliated against them in violation of their First Amendment rights after they unsuccessfully opposed his promotion to police chief. The district judge granted defendants' motion to dismiss with respect to plaintiff Palermo and granted summary judgment against plaintiff DeGuiseppe; both plaintiffs now appeal, but we affirm.

BACKGROUND

This dispute originated in 1990, when the chief of police position at the Bellwood Police Department became vacant and Frascone, at the time a patrolman, was selected by the Village for the job. Palermo, DeGuiseppe and others, angered at this promotion to the top spot of a rank-and-file officer, protested in a letter written to Frascone, the mayor and the Village Board and published in several local media outlets. Subsequently Frascone held a series of meetings with plaintiffs, who had continued to express vocal opposition to him. Plaintiffs allege that at one of those meetings, Frascone threatened retaliation against both of them for their opposition. More specifically, they claim that Frascone told them, "I don't get mad--I get even."

Soon after, say the plaintiffs, Frascone carried out this threat by instituting disciplinary proceedings against Palermo and by refusing to grant light duty status to DeGuiseppe. Palermo remains on the police force; DeGuiseppe, who applied for a disability pension after being denied light duty, is retired.

DISCUSSION

Both plaintiffs' claims were decided prior to trial on the merits: Palermo's on a motion to dismiss and DeGuiseppe's on summary judgment. This Court reviews each claim de novo. We uphold a motion to dismiss only if the plaintiff has stated no set of facts on which relief could be granted. Chaney v. Suburban Bus Div. of Regional Transp. Authority, 52 F.3d 623, 626 (7th Cir.1995). We review a grant of summary judgment to determine whether the record, with all reasonable inferences drawn in favor of the non-movant, establishes that the movant was entitled to judgment as a matter of law. DeLuca v. Winer Industries, Inc., 53 F.3d 793, 796 (7th Cir.1995). In both cases, our sole inquiry concerns the potential liability of the Village of Bellwood; because Frascone was sued only in his official capacity, a

suit against him is deemed to be a suit against the municipality. See Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir.1991).

I. Plaintiff Torry Palermo

Frascone disciplined Palermo for departmental infractions, issuing him a five-day suspension. Palermo appealed his suspension to the Board of Police and Fire Commissioners, who found him guilty of the alleged infractions but reduced the suspension to three days. He did not pursue further administrative relief.

Palermo's claim on appeal is foreclosed by City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988), which holds that municipal liability will not result from an official's conduct unless the official is a final decision-maker. Under Illinois state law, final authority for issuing disciplinary measures against an officer is vested exclusively in the Board of Police and Fire Commissioners, not the police chief; Palermo successfully pursued a reduction in his suspension pursuant to this statute. 65 ILCS 5/10-2.1-17 (formerly Ill.Rev.Stat. Ch. 24, Sec. 10-2.1-17). Because Frascone was not the final decision-maker with respect to Palermo's suspension his conduct cannot serve as the predicate to municipal liability, and the claim based thereon was correctly dismissed.

II. Plaintiff Frank DeGuiseppe

DeGuiseppe's claim against Frascone, arising out of his attempt to secure a "light duty" assignment, requires more extended analysis.

A. Facts

On February 8, 1991, DeGuiseppe--who had previously undergone coronary bypass surgery--presented Frascone with a physician's letter recommending that due to his heart disease he should not work the midnight to 8 a.m. shift and should be placed on light duty for the next four months. ² Refusing his request for light duty, Frascone instead told DeGuiseppe to call in sick for his midnight shifts and referred him to an independent physician who reported on March 11 that DeGuiseppe should not attempt further employment as a police officer.

After receiving this evaluation, Frascone refused to let DeGuiseppe return to work but told him to stay at home, where he continued to receive full pay. Frascone then referred DeGuiseppe to a second physician, who on April 26 returned a report that was similarly pessimistic about DeGuiseppe's future ability to perform police duties. Three days later, Frascone told DeGuiseppe to seek a disability pension or face involuntary proceedings begun by Frascone. As before, DeGuiseppe remained at home collecting sick pay.

On June 17, 1991, some four months after requesting light duty and shortly after learning that he had used all of his sick time, DeGuiseppe applied for a disability pension pursuant to Illinois statute ³ based on the evaluations of the two independent physicians. In evaluating DeGuiseppe's claim the pension board sent him to yet another physician who reported that DeGuiseppe was capable On November 12, 1991, the pension board granted DeGuiseppe a pension retroactive to May 31, 1991--the date when his sick leave had dissipated and he had ceased to receive full pay.

of returning to full-time police work; DeGuiseppe did not submit the report of his own treating physician which suggested that he was capable of ultimately performing unrestricted duty.

B. Analysis

To establish a cause of action for retaliation in violation of the First Amendment, a public employee must demonstrate that he has suffered an adverse employment action motivated by the exercise of his right to free speech. Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Pierce v. Texas Dept. of Crim. Justice, 37 F.3d 1146, 1149 (5th Cir.1994). Several caveats limit this apparently broad dictate. The speech must be on a matter of public concern. Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). The employee's interest in speech must outweigh governmental interests in running an efficient and productive office. Pickering, 391 U.S. at 568, 88 S.Ct. at 1734; Breuer v. Hart, 909 F.2d 1035, 1037 (7th Cir.1990). And the complained-of action must be sufficiently adverse to present an actual or potential danger that the speech of employees will be chilled. See Rutan v. Republican Party of Illinois, 497 U.S. 62, 73-74, 110 S.Ct. 2729, 2736-37, 111 L.Ed.2d 52.

Defendants claim that plaintiff DeGuiseppe failed to make the necessary showings regarding the content of his speech, the balancing of his interest against their own or the adversity of Frascone's actions. We address the last point first.

DeGuiseppe implies that his confrontation with Frascone ultimately cost him his job: that the "adverse employment action" consisted of Frascone's forcing him into early retirement by denying his request for light duty and bullying him into applying for a pension. The legitimacy of this claim depends on whether it can fairly be said that Frascone's conduct caused DeGuiseppe to lose his position as police sergeant. The fact is that DeGuiseppe ended his police career of his own volition. At the pension board hearing, a proceeding at which he bore the burden of proof, see Mem.Op. at 9 (reprinted in Pl.Br.App.), DeGuiseppe stated that he was disabled and submitted two physicians' reports (and not the more optimistic evaluation of his own treating physician) in support of his claim.

DeGuiseppe now tells this Court that he was not disabled at the time of the pension board hearing but was forced by Frascone's retaliatory harassment to assert his disability in order to maintain an income, albeit a reduced one. Regardless of whether or not this contention is true, this Court is not disposed to consider it. Under the doctrine of judicial estoppel, which "prevents a party who has successfully taken a position in one litigation from taking the opposite position in a subsequent litigation," Czajkowski v. City of Chicago, 810 F.Supp. 1428 (N.D.Ill.1992), courts are under no compulsion to heed the shifting theories of "chameleonic litigants." See Astor Chauffeured Limousine Co. v. Runnfeldt Investment Corp., 910 F.2d 1540 (7th Cir.1990). Instead, we will accept a party's prevailing position in previous litigation (or, as here, quasi-judicial proceedings) as dispositive. Here DeGuiseppe's position was that he was disabled and unable to work in June 1991 (and logically prior to that time, since there is no indication that his condition worsened rather than improved in the intervening months).

Judicial estoppel, of course, is...