Domiano v. Village of River Grove, 89-2084

• Decision Date: 08 June 1990
• Docket Number: No. 89-2084,89-2084
• Citation: 904 F.2d 1142
• Parties: Russell DOMIANO, Plaintiff-Appellant, v. The VILLAGE OF RIVER GROVE, a Municipal Corporation, and Thomas Tarpey, Individually and as President of the Village of River Grove, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1142

904 F.2d 1142

Russell DOMIANO, Plaintiff-Appellant, v. The VILLAGE OF RIVER GROVE, a Municipal Corporation, and Thomas Tarpey, Individually and as President of

the Village of River Grove, Defendants-Appellees.

No. 89-2084.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 12, 1989.

Decided June 8, 1990.

Raymond J. Prosser, Chicago, Ill., for plaintiff-appellant.

Harry J. Smith, Jr., River Grove, Ill., for defendants-appellees.

Before WOOD, Jr., CUDAHY and KANNE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

The plaintiff-appellant, Russell Domiano, appeals from a summary judgment entered by the district court in favor of the defendants Thomas Tarpey and the Village of River Grove ("Village"). Plaintiff claimed that the defendants violated his first amendment rights when they discharged him from his post as fire chief after he criticized a recently enacted ordinance. Plaintiff also asserted that the defendants deprived him of his property without due process of law when they discharged him from his job without notice and a hearing prior to his dismissal.

I. BACKGROUND

Domiano was a River Grove volunteer fireman for approximately eighteen years. He served as chief of the department from May 1986 to April 12, 1988. Since his dismissal, Domiano has resumed his prior status as a volunteer fireman. Domiano's salary during his final year as a fire chief was $5,000; volunteer firemen are only paid when they go out on a call. The final year of Domiano's tenure as fire chief was to expire on April 30, 1988.

At their meeting on April 7, 1988, the Village board of trustees passed two ordinances that affected the fire department. Ordinance number 1988-6 repealed an existing ordinance limiting the department's transport of patients to certain local hospitals. The repealed ordinance required that in cases of medical emergency, fire department personnel were to transfer patients to the nearest hospital; in nonemergency situations, patients could be taken to the hospital of their choice. The repeal effectively required the fire department to return to its previous practice of allowing patients to designate a particular hospital to which they wished to be transported. The second ordinance that the Village board adopted, ordinance number 1988-4, amended the procedure for the fire chief's appointment by providing that the Village president rather than fire department members would appoint the fire chief.

When he learned of the new ordinances, Domiano allegedly called Pat Paldo, chairman of the fire and police committee of the Village board, to express his concern that transporting patients to outlying hospitals could result in manpower shortages in the event of a second emergency and would also expose the Village to additional liability. Domiano informed Paldo that he would not comply with the new policy expressed by the Village board's repeal of the ordinance concerning the transportation of patients. Domiano also told Paldo that he would advise other members of the fire department not to comply with the new policy until Paldo discussed the hazards posed by the new ordinance with Village president Tarpey. Paldo agreed to convey Domiano's concerns to Village president Thomas Tarpey the following day. Domiano also expressed his displeasure with the ordinance to a reporter for the River Grove Messenger.

On April 12, 1988, Tarpey telephoned Domiano to discuss Domiano's reaction to the patient transportation ordinance. Domiano advised Tarpey that he regarded the ordinance as "ridiculous" and that he would not enforce it. Domiano also conceded to Tarpey that he had expressed his opinion and concerns to a newspaper reporter, two department members, and the department officers. Tarpey informed Domiano that he was relieved of his duties as fire chief because of his refusal to obey the new ordinance. Domiano thereafter received a certified letter from Tarpey dated April 12, 1988, that notified him that he was relieved of his duties as fire chief "because of his insubordination relative to the repeal of the transportation ordinance." ¹ The Village never formally charged Domiano nor did it provide him with a formal hearing prior to his discharge. Domiano continues to be employed by the fire department as a part-time volunteer fire fighter.

On April 18, 1988, Domiano filed a two-count complaint against the Village and Tarpey, both individually and in his capacity as Village president. The first count of the complaint alleged that the defendants violated 42 U.S.C. Sec. 1983 by discharging Domiano in retaliation for exercising his right to free speech as guaranteed by the first amendment of the United States Constitution and Article 1, section 1, of the Illinois Constitution. The second count asserted that the defendants' discharge of plaintiff prior to the expiration of his term on April 30, 1988, violated his due process rights under the fourteenth amendment to a pretermination hearing. Domiano asserted that he was deprived of property and liberty interests as a result of his termination. While the district court found that the defendants did not deprive Domiano of either a property or a liberty interest, Domiano only argues on appeal that the trial court erred in its finding that he was not deprived of a property interest or his right to free speech.

We review the district court's decision to grant summary judgment de novo and use the same standard of decisionmaking as that employed by the district court. McMillian v. Svetanoff, 878 F.2d 186, 188 (7th Cir.1989). Thus, we will only affirm the grant of summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c).

II. FIRST AMENDMENT CLAIM

Government employees do not relinquish their first amendment right to freedom of speech as a condition of public employment. Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 1686, 75 L.Ed.2d 708 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). The first amendment, however, is not a license for insubordinate speech that impedes an employee's performance of his duties or that interferes with the proper functioning of the workplace. In analyzing cases concerning a public employee's first amendment rights, we must first determine whether plaintiff's speech was a matter of public concern. Connick, 461 U.S. at 146, 103 S.Ct. at 1689. Defendants do not dispute the district court's finding that Domiano's speech addressed a matter of public concern.

Because Domiano's speech indisputably involved a matter of public concern, we must apply the Pickering balancing test to determine whether the defendants could justifiably retaliate against Domiano for his remarks. Pickering requires us to weigh Domiano's right to comment on matters of public concern against the Village's right, as an employer, to promote the efficiency of its public services. Pickering, 391 U.S. at 568, 88 S.Ct. at 1734; Gray v. Lacke, 885 F.2d 399, 410 (7th Cir.1989); Conner v. Reinhard, 847 F.2d 384, 389 (7th Cir.1988). The Pickering Court identified four factors integral to the balancing process: (1) whether the speech impeded the employee's ability to perform his responsibilities; (2) the importance of close working relationships with superiors and co-workers; (3) the time, place, and manner in which the speech was delivered; and (4) the context in which the underlying dispute arose. Pickering, 391 U.S. at 150-54, 88 S.Ct. at 1691-93. When considering Domiano's remarks in the Pickering calculus, we are obliged to "look at the ordinary or foreseeable effect of the conduct in controversy and to determine whether it would be 'reasonably calculated to create division or to have impaired discipline.' " Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1258 (7th Cir.1985) (quoting Yoggerst v. Stewart, 623 F.2d 35, 40 (7th Cir.1980)).

The defendants allege and the district court found that Domiano's statements were divisive and insubordinate acts, even though his speech concerned an important matter of public concern. The statements at issue were Domiano's remark that ordinance number 1988-6, which repealed the transportation ordinance, was "ridiculous;" his statement to Tarpey that he would not comply with the repealing ordinance; and Domiano's advice to other fire department personnel that they should ignore the policy expressed by the repealing ordinance. Tarpey testified at his deposition and by affidavit that he discharged Domiano only after Domiano stated that he would not follow the new policy implicit in the repealing ordinance.

Assistant fire chief Allan Utter executed an affidavit that stated that Domiano advised certain members of the department to ignore the repealing ordinance. Utter testified that he construed Domiano's statements as the equivalent of an order. Lieutenant Leder, who was in charge of the fire department's day crew, also testified by affidavit that Domiano ordered him not to follow the transportation policy expressed by the new ordinance. Plaintiff alleges that his deposition testimony, in which he denied that he gave a direct order to the department members to ignore the repealing ordinance, created a disputed issue of material fact regarding the disruptive nature of his speech. Domiano's deposition testimony, however, was ambiguous on the issue of precisely what he told Tarpey and the fire department members. Domiano stated that he "expressed his feelings on the ordinance," which "in a word" was that the ordinance was "ridiculous." Domiano never answered defense counsel's query as to whether he told the members or Tarpey that he would not comply with the ordinance. When defense counsel inquired into whether Domiano told Tarpey that he would not comply with the ordinance, Domiano responded as follows:

MR. SMITH: Did you tell him that you were not going to comply with the new policy?...