Kokkinis v. Ivkovich

• Citation: 185 F.3d 840
• Decision Date: 26 July 1999
• Docket Number: No. 98-3047,98-3047
• Parties: (7th Cir. 1999) PETER A. KOKKINIS, Plaintiff-Appellant, v. VLADIMIR IVKOVICH, individually and officially as Chief of Police of the Bridgeview Police Department, and VILLAGE OF BRIDGEVIEW, a body politic and corporate, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 840

185 F.3d 840 (7th Cir. 1999)

PETER A. KOKKINIS, Plaintiff-Appellant, v. VLADIMIR IVKOVICH, individually and officially as Chief of Police of the Bridgeview Police Department, and VILLAGE OF BRIDGEVIEW, a body politic and corporate, Defendants-Appellees.

No. 98-3047

United States Court of Appeals, Seventh Circuit

Argued January 19, 1999

Decided July 26, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 1348--James H. Alesia, Judge.

Before FLAUM, RIPPLE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Peter Kokkinis brought this sec. 1983 action against Police Chief Vladimir Ivkovich and the Village of Bridgeview. He alleged that the defendants retaliated against him for exercising his First Amendment rights after he made statements about the Police Chief on television. The district court granted the defendants' motion for summary judgment on the ground that Mr. Kokkinis' statements were not constitutionally protected because they did not address a matter of public concern. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

Peter Kokkinis became a patrol officer for the Bridgeview Police Department in 1987. During his employment, he developed a negative view of Police Chief Vladimir Ivkovich ("the Chief"). Mr. Kokkinis kept a diary that documented his problems with the Chief. This diary contains references to "the Chief's pimp games," the Chief's "cold" style in firing someone on Valentine's Day, the Chief's lying about never having received two grievances filed by Mr. Kokkinis,¹ the Chief's lying about why Mr. Kokkinis was not promoted to detective, and the Chief's violation of rules and regulations by taking no police action when a fight occurred during a Board meeting. These diary entries are dated in the months prior to May 1995.

On May 17, 1995, Mr. Kokkinis appeared on a Channel Five News at 5:00 report covering Officer Sharon Walsh's allegation of sex discrimination within the police department. The reporter introduced him by saying, "[A]nother officer, who did not want to be identified, feels Officer Walsh is unfairly being chosen for the assignment, and says the residents of Bridgeview should know the situation inside the police department." Mr. Kokkinis then appeared behind a screen, wearing a ski mask. With his voice electronically modified, he said, "If they really knew what was going on, I think they would be in utter shock." The reporter asked, "Why?" Mr. Kokkinis replied, "Because they are clueless as to what is going on. Everybody is so afraid of the Chief's vindictiveness. If you even dare to question any decision he makes, basically your life will be made miserable."

Mr. Kokkinis had agreed to be interviewed after the reporter contacted him and said she would be reporting on sex discrimination within the police department. He claims that he agreed to talk with the reporter because he felt that Walsh was being discriminated against because she is a woman. He wanted to help her cause and to encourage more officers to speak out. However, he admits that he did not know why Walsh apparently had been treated differently from other officers when the Chief ordered her to take an assignment that other officers had been allowed to decline.

The television broadcast bothered the Chief because he thought Mr. Kokkinis' comments were untrue and reflected negatively on the department. The Chief viewed the broadcast as an embarrassment to himself and to the department as a whole, especially after he received phone calls about the broadcast, including one from the former chief. The Chief worried that the broadcast would adversely affect morale among the officers by undermining his efforts to build the department's esteem. Other ranking officers thought that both the content and manner of Mr. Kokkinis' statements made a mockery of the department. The television appearance, in their view, cast a negative light on the members of the department and was a discredit to the department as a whole.

After an investigation, Mr. Kokkinis admitted that he was the masked speaker. The Chief suspended Mr. Kokkinis for 5 days for violating department rules and regulations by appearing on television without first notifying the Chief. The Board of Fire and Police Commissioners reversed the suspension on September 5, 1995.

During this period, a sequence of events prompted the Chief to take other action. Mr. Kokkinis accidentally shot himself; fellow officers discovered that Mr. Kokkinis was "keeping book" on them; problems developed between Mr. Kokkinis and his supervisors; and Mr. Kokkinis began taking prescription medication due to stress. The Chief therefore ordered Mr. Kokkinis to undergo psychological evaluation. The evaluation concluded that Mr. Kokkinis' problems with authority rendered him unfit for work within a quasi-military organization like a police department. The Chief responded by placing Mr. Kokkinis on administrative duty in the station and denied Mr. Kokkinis' request for secondary employment as a bank security guard because it involved carrying a firearm.

B. Decision of the District Court

The district court's analysis focused on the issue whether Mr. Kokkinis' speech involved a matter of public concern. Applying the test set out in Connick v. Myers, 461 U.S. 138, 147-48 (1983), the district court evaluated "the content, form, and context of the statement, as revealed by the record as a whole." The district court also noted that the plaintiff's motive in speaking is a relevant, although not dispositive, consideration.

In the district court's view, Mr. Kokkinis' statements concerned a matter of only personal, not public, concern. The "entire content" of Mr. Kokkinis' statements consisted only of his personal view that the Chief is vindictive and did not even mention Walsh or her charge of sex discrimination. Moreover, the district court held, the overall context in which Mr. Kokkinis made his statements was one of Mr. Kokkinis' personal unhappiness with the Chief, as revealed by Mr. Kokkinis' diary entries. In the district court's view, the fact that the statements were made in the context of a news program about Walsh's sex discrimination allegation did not transform the speech into a matter of public concern.

Additionally, the district court held that the form of the statements--an interview on a public news program--did not mean the statements necessarily involved a matter of public concern. Finally, the district court found that Mr. Kokkinis' motivation in making the statements was to further his own personal interest in expressing unhappiness with the Chief, not to bring to light sex discrimination or to advance Walsh's charge of sex discrimination.

On the ground that Mr. Kokkinis' statements did not address a matter of public concern, the district court granted summary judgment to the defendants on Mr. Kokkinis' sec. 1983 First Amendment retaliation claim.

II DISCUSSION

A claim under sec. 1983 for retaliation in violation of the First Amendment requires a three-step analysis. First, the court must determine whether the plaintiff's speech was constitutionally protected. If so, then the plaintiff must prove that the defendant's actions were motivated by the plaintiff's constitutionally protected speech. Finally, if the plaintiff can demonstrate that his constitutionally protected speech was a substantial or motivating factor in the defendant's actions, the defendant is given the opportunity to demonstrate that it would have taken the same action in the absence of the plaintiff's exercise of his rights under the First Amendment. See Belk v. Town of Minocqua, 858 F.2d 1258, 1262 & n.6 (7th Cir. 1988); Vukadinovich v. Bartels, 853 F.2d 1387, 1389-90 (7th Cir. 1988).

The first step of this analysis--determining whether the plaintiff's speech was constitutionally protected--is a question of law for the court, see Connick v. Myers, 461 U.S. 138, 148 n.7 (1983); see also Berg v. Hunter, 854 F.2d 238, 243 (7th Cir. 1988), cert. denied, 489 U.S. 1053 (1989); Hesse v. Board of Educ. of Township High Sch. Dist. No. 211, 848 F.2d 748, 753 (7th Cir. 1988), cert. denied, 489 U.S. 1015 (1989), which requires application of the two- part Connick-Pickering test. First, the court must determine whether the plaintiff's speech addressed a matter of public concern. See Connick, 461 U.S. at 147-48. If this hurdle is cleared, the court must then apply the Pickering balancing test to determine whether "the interests of the [plaintiff], as a citizen, in commenting upon matters of public concern" outweigh "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Educ. of Township High Sch. Dist. 205, 391 U.S. 563, 568 (1968).

The district court rested its decision on the first prong of the Connick-Pickering test; it concluded that Mr. Kokkinis' speech did not address a matter of public concern. The issue of sex discrimination in public employment is, of course, a matter of public concern. See Hartman v. Board of Trustees of Community College Dist. No. 508, 4 F.3d 465, 472 n.5 (7th Cir. 1993); Marshall v. Allen, 984 F.2d 787, 795 (7th Cir. 1993). Our precedent makes clear, however, that speaking up on a topic that may be deemed one of public importance does not automatically mean the employee's statements address a matter of public concern as that term is employed in Connick. See Cliff v. Board of Sch. Comm'rs of City of Indianapolis, 42 F.3d 403, 410 (7th Cir. 1994). Rather, we "must instead delve deeper into the precise content, form, and context of speech that admittedly may be of some interest to the public." Id. As the district court recognized, it is necessary to "look at the point of the speech in question: was it the employee's point to bring wrongdoing to...