Forgue v. City of Chi.

• Decision Date: 17 October 2017
• Docket Number: No. 16-2857.,16-2857.
• Citation: 873 F.3d 962
• Parties: Ronald FORGUE, Plaintiff–Appellant, v. CITY OF CHICAGO, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

873 F.3d 962

Ronald FORGUE, Plaintiff–Appellant,

v.CITY OF CHICAGO, et al., Defendants–Appellees.

No. 16-2857.

United States Court of Appeals, Seventh Circuit.

Argued September 27, 2017

Decided October 17, 2017

Mary Johanna Grieb, Attorney, Shiller Preyar, Chicago, IL, for Plaintiff–Appellant.

Justin A. Houppert, Attorney, City of Chicago Law Department, Chicago, IL, for Defendants–Appellees.

Before Wood, Chief Judge, and Flaum and Kanne, Circuit Judges.

Flaum, Circuit Judge.

From 1986 to 2015, Plaintiff Ronald Forgue was an officer with the Chicago Police Department ("CPD"). Forgue alleges that, from 2012 to 2015, he was harassed by fellow police officers for adhering to CPD policy and procedure and for filing numerous internal complaints. Forgue filed suit against the City of Chicago and over forty individual officers under 42 U.S.C. § 1983 for First Amendment retaliation, equal protection, civil conspiracy, and procedural due process, as well as related state law claims. The district court granted defendants' Rule 12(b)(6) motion to dismiss Forgue's federal claims and declined to exercise supplemental jurisdiction over his state law claims. We affirm in part and reverse in part.

I. Background

From 1986 to 2015, Ronald Forgue worked for the CPD in several capacities, including for the Internal Affairs Division ("IAD"), as an incident team Sergeant, as an Operations Lieutenant, and as a Commanding Officer in the Alternate Response Unit. Forgue officially retired on August 13, 2015 after nearly thirty years of service.

Forgue alleges that, between 2012 and 2015, he was harassed "in retaliation against his leadership as a sergeant and lieutenant because he followed proper procedure." Forgue cites several specific instances where he was wrongfully targeted for adhering to CPD rules. In 2012, for example, Forgue complained to his superiors that white officers were "spitting tobacco in black families' homes when on calls." Forgue claims that, in response, his superiors laughed at him and told him to "not mess with his boys."

Forgue also maintains that CPD harassed him by unlawfully targeting his sons. Between June 2012 and January 2015, Forgue's three sons were stopped, arrested, handcuffed, or detained a total of twenty-two times. According to Forgue, the "majority of the reasons given for the stops and/or arrests were false." As examples: Forgue's three sons were falsely labeled as gang members; in November 2012, two officers unlawfully seized one of Forgue's sons, drove him around, and interrogated him for two hours; and in August 2014, an officer "grabbed [Forgue's son] by the neck and beat[ ] [him] in front of [his] house." In response to this treatment, Forgue filed complaints with his superiors.

Forgue also was allegedly targeted directly. On November 20, 2013, a poster falsely labeling Forgue's picture with the words "sex offender" was displayed and distributed at Forgue's police station. On March 24, 2014—the same day that he reported to the IAD that a sergeant was improperly distributing a booking photo and rap sheet of his son—Forgue discovered a fake Facebook account created under his name. The Facebook page associated with the account displayed a photograph of Forgue labeled "IAD INFORMANT." The creator of the account (who falsely purported to be Forgue himself) posted disparaging comments about Forgue as well as false complaints on the official Facebook page for the Chicago Mayor's Office.

Moreover, Forgue claims he was passed over for several promotions in favor of other officers who did not file complaints, and on September 23, 2014, Forgue was assigned to the less desirable Alternate Response Unit. According to Forgue, the police union told him this transfer was because "of the complaints he made to the [IPRA] and IAD." Overall, between May 2012 and September 2014, CPD officers filed seven formal complaints against Forgue, allegedly for his strict compliance with CPD policies.

Finally, upon his retirement from the CPD in 2015, Forgue was denied a retirement identification card ("Retirement Card" or "Card"). Pursuant to CPD policy, an officer who provides at least ten years of service and leaves the CPD in "good standing" receives a Retirement Card. Although the good standing determination is left to the discretion of the Police Superintendent, Forgue's complaint alleges that it was the "policy and practice" of the CPD to issue a Card to all retiring officers. There are several detriments to not receiving a Card. Without one, Forgue cannot carry a concealed firearm, procure benefits such as health insurance, or find other employment in law enforcement.

On September 23, 2015, Forgue filed a complaint against the City of Chicago and forty-two City employees, including the CPD Superintendent and CPD sergeants, lieutenants, and officers. Forgue brought 42 U.S.C. § 1983 claims for First Amendment retaliation, equal protection, civil conspiracy, and procedural due process, as well as several related state law claims. In response, defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted defendants' motion on Forgue's federal claims and declined supplemental jurisdiction over the remaining state law claims. This appeal followed.

II. Discussion

We review a district court's grant of a Rule 12(b)(6) motion to dismiss de novo. Kubiak v. City of Chicago , 810 F.3d 476, 480 (7th Cir. 2016). To survive a motion to dismiss, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). In reviewing a 12(b)(6) motion, "[w]e accept as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff." Kubiak , 810 F.3d at 480–81.

A. First Amendment Retaliation Claim

"To establish a claim for retaliation in violation of the First Amendment, a public employee first must prove that [his] speech is constitutionally protected." Id. at 481. A public employee's speech is constitutionally protected only if it: (1) was made as a private citizen; and (2) addressed a matter of public concern. Id. If the employee fails to establish either of these elements, "the employee has no First Amendment cause of action based on his or her employer's reaction to the speech." Garcetti v. Ceballos , 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). "The determination of whether speech is constitutionally protected is a question of law." Kubiak , 810 F.3d at 481.

Here, the district court held that Forgue spoke as a public employee, not a private citizen, in filing his internal complaints of police misconduct. We agree. "[W]hen 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." Garcetti , 547 U.S. at 421, 126 S.Ct. 1951. "Determining the official duties of a public employee requires a practical inquiry into what duties the employee is expected to perform, and is not limited to the formal job description." Kubiak , 810 F.3d at 481 (quoting Houskins v. Sheahan , 549 F.3d 480, 490 (7th Cir. 2008) ).

Forgue contends that his complaints with the IAD and IPRA about the CPD's treatment of his sons are entitled to First Amendment protection because they were made "as a concerned citizen and father outside of his employment duties." He stresses that anyone mistreated by the police is free to file complaints with the IAD. Forgue's argument is unpersuasive. We have held on several occasions that "a police officer's duty to report official police misconduct is a basic part of the job." See Roake v. Forest Pres. Dist. of Cook Cty. , 849 F.3d 342, 346 (7th Cir. 2017) (holding that a police officer spoke as a public employee when he shared complaints "only with his employer, and the complaints focused exclusively on official misconduct by his fellow officers"); Kubiak , 810 F.3d at 481–82 (holding that a police officer's internal complaints alleging that a co-worker inappropriately yelled at her about a work-related report were "made as a public employee and not as a private citizen"); Vose v. Kliment , 506 F.3d 565, 571 (7th Cir. 2007) (holding that a police officer "was merely doing his job" when he reported suspected police misconduct to his superiors). Indeed, this conclusion makes sense because at bottom, a police officer is "responsible for protecting the public from harm." Kubiak , 810 F.3d at 482.

Forgue argues his speech is distinct from cases like Kubiak . First, he notes that his sons were detained or arrested "away from the office." In the context of police activity, however, this fact is immaterial; officers perform the majority of their work patrolling the streets.

Second, Forgue argues that his speech concerned the safety of his sons rather than the terms of his police duties. The relevant inquiry, however, is whether the speech is made pursuant to, not about , public employment. Like in Kubiak , Forgue's grievances were "intimately connected" with his job. See id . Indeed, Forgue's complaint specifically alleges that the CPD's retaliatory behavior was "due to [his] complaints to IAD and due to [his] reputation as an officer who follows [CPD] rules and regulations." Forgue's attempts to distinguish Kubiak are thus unavailing.

Moreover, as the district court stressed, Forgue's...