Kubiak v. City of Chi.

• Citation: 810 F.3d 476
• Decision Date: 11 January 2016
• Docket Number: No. 14–3074.,14–3074.
• Parties: Laura KUBIAK, Plaintiff–Appellant, v. CITY OF CHICAGO, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

810 F.3d 476

Laura KUBIAK, Plaintiff–Appellant,

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

No. 14–3074.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 7, 2015.

Decided Jan. 11, 2016.

M. Megan O'Malley, Attorney, O'Malley & Madden, P.C., Chicago, IL, for Plaintiff–Appellant.

Kerrie Maloney Laytin, Attorney, Office of the Corporation Counsel, Chicago, IL, for Defendants–Appellees.

Before FLAUM, WILLIAMS, and SYKES, Circuit Judges.

FLAUM, Circuit Judge.

Officer Laura Kubiak was working in the Chicago Police Department's Office of News Affairs ("ONA") when she was verbally assaulted by her colleague, Officer Veeja Zala. Kubiak reported Zala to (1) ONA Director Melissa Stratton, (2) Kubiak's supervising Lieutenant, Maureen Biggane, and (3) the Internal Affairs Division ("IAD"). Three months later, Biggane ordered Kubiak to leave ONA and return to her prior position as a beat patrol officer. Kubiak filed a complaint against the City of Chicago, Stratton, and Biggane, alleging retaliation in violation of the First Amendment and conspiracy to deprive her of her constitutional rights pursuant to 42 U.S.C. § 1983. The district court granted defendants' motion to dismiss for failure to state a claim on which relief can be granted. Kubiak appeals. We affirm.

I. Background

Because we are reviewing a dismissal for failure to state a claim, we must take as true the facts alleged in Kubiak's complaint. Tamayo v. Blagojevich, 526 F.3d 1074, 1078 (7th Cir.2008).

Kubiak worked as a beat patrol officer with the Chicago Police Department for fourteen years. Her primary duties were to patrol assigned areas, issue citations, make arrests, and conduct investigations. In 2000, Kubiak was detailed to the Office of News Affairs. Kubiak alleges that this was a "highly coveted detail" to a "prestigious desk job." At the ONA, Kubiak served as a liaison to the news media. Her responsibilities included "keeping members of the news media apprised of police activity by providing information on topics such as crimes committed, arrests made, and providing information with regard to community safety alerts."

On November 8, 2012, Officer Zala, another news media liaison at the ONA, allegedly verbally assaulted Kubiak as she was exiting the office at the end of her shift. Zala ran toward her, enraged by a work-related report Kubiak had drafted. He screamed, "Who the fuck do you think you are, you stupid bitch?" He shook his finger in Kubiak's face and swung his hand back as if to strike her. Kubiak quickly backed away in fear. Officer Robert Perez was with Kubiak at the time of the incident and tried to calm Zala, telling him to "stop it." Zala continued to yell at Kubiak, saying, "You are nothing, you are a stupid bitch, you don't know how to be the police, I am the police, I am the real police."

Kubiak returned to her desk and called ONA Director Stratton. She told Stratton about the incident and said she feared Zala was going to strike her. Kubiak informed Stratton that Zala had previously directed similar outbursts toward her. During this phone call, Zala stood by Kubiak's desk and continued to berate and intimidate her. An ONA employee who witnessed Zala's conduct later spoke with Kubiak and expressed fear that Zala was going to shoot Kubiak.

Kubiak alleges that Zala has a history of violence. According to her complaint, around 2009, a jury returned a verdict in favor of the plaintiff in a suit against Zala for battery and excessive force. The City defended Zala at trial. Kubiak alleges that the City failed to correct Zala's behavior but rather gave him a prestigious news media liaison position in the ONA. Throughout his detail at the ONA, Zala often lost his temper and directed his outbursts toward his colleagues, including Kubiak.

The next day, Kubiak again spoke with Stratton. Stratton told Kubiak that she had already spoken with Zala and that she did not have time to discuss the incident further. On November 12, Kubiak requested a meeting with Biggane, her supervising Lieutenant, to discuss the incident. Biggane responded that she was too busy. Kubiak alleges that she continued to request meetings, but each time, Biggane responded that she was too busy. On November 27, Kubiak went to Biggane's office to discuss the incident, but Biggane refused to discuss it.

On December 3, Kubiak submitted a memorandum to Biggane complaining about Zala, which initiated an Internal Affairs Division investigation. Kubiak subsequently gave a statement to the IAD investigators. Perez also provided a statement corroborating Kubiak's complaint. Kubiak alleges that after she gave her statement to the IAD, Officer Jose Estrada, who had been found guilty of excessive force and also worked at the ONA, told her that she "better be careful because [she] might be the one to get suspended or fired."

In mid-February, Kubiak learned that her IAD complaint against Officer Zala had been "sustained." Within days, Biggane cancelled Kubiak's detail to the ONA and reassigned Kubiak to a position as beat officer on a midnight shift in what Kubiak alleges is one of the most dangerous neighborhoods in Chicago. The same day, Perez was also removed from the ONA and reassigned as a beat officer. Kubiak and Perez were the only two officers who had their ONA details cancelled even though other members of the ONA had previously requested to transfer out of the ONA. At the time of her removal, Kubiak was the most senior member of the ONA and had not requested a transfer.

Stratton and Biggane made the decision to remove Kubiak and Perez from the ONA. Stratton and Biggane had the final authority to make these personnel decisions, which were not subject to further review. Kubiak alleges that Zala was never reprimanded and remains detailed to the ONA.

On February 18, 2014, Kubiak filed a complaint against the City of Chicago, Stratton, and Biggane. Kubiak asserted a claim against all defendants alleging retaliation in violation of the First Amendment pursuant to § 1983, and a claim against Stratton and Biggane alleging conspiracy in deprivation of constitutional rights pursuant to § 1983.¹ Kubiak argued that by cancelling her detail to the ONA and assigning her to work as a beat patrol officer, defendants retaliated against her for engaging in protected speech. According to Kubiak, defendants engaged in a pattern of protecting and rewarding officers accused of violent misconduct while retaliating against those who exposed and reported the misconduct.

Defendants filed a motion to dismiss for failure to state a claim on which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion and dismissed the claims with prejudice, concluding that Kubiak's speech was not constitutionally protected since Kubiak did not speak as a private citizen and did not speak on a matter of public concern. Kubiak appeals.

II. Discussion

We review de novo a grant of a motion to dismiss based on Rule 12(b)(6). Tamayo, 526 F.3d at 1081. Rule 12(b)(6) permits a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To properly state a claim, a plaintiff's complaint must contain allegations that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level[.]" EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.2007) (internal quotation marks omitted). We accept as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff. Tamayo, 526 F.3d at 1081.

A. First Amendment Retaliation Claim

To establish a claim for retaliation in violation of the First Amendment, a public employee first must prove that her speech is constitutionally protected. Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir.2013). For a public employee's speech to be protected under the First Amendment, the employee must establish that she spoke as a citizen on a matter of public concern. 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. Houskins v. Sheahan, 549 F.3d 480, 489 (7th Cir.2008).

1. Kubiak Did Not Speak as a Private Citizen

The district court held that Kubiak failed to allege facts that plausibly suggest that she spoke as a citizen. We agree. The Supreme Court has 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." 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." Houskins, 549 F.3d at 490 (citation omitted); see also Garcetti, 547 U.S. at 424–25, 126 S.Ct. 1951 ("Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform....").

First, Kubiak contends that she made her complaints about Zala not as part of her routine job duties, but rather as a citizen who was subjected to an assault by a violent Chicago police officer. She argues that she sufficiently pled that her speech was made as a citizen because her complaint identifies her primary job responsibility as being a liaison to the news media. Kubiak's complaint lists her ordinary and daily job duties as including: keeping members of the news media apprised of police activity, responding to inquiries from the news media, and monitoring the News Affairs email account.² Kubiak argues that as the public relations face of the Chicago Police Department, her professional duties did not include reporting misconduct of her coworkers, and as such, her complaints about Zala were made as a private citizen. We disagree.

Kubiak's concept of ...