Lett v. City of Chi., No. 19-1463

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Barrett, Circuit Judge.
• Citation: 946 F.3d 398
• Parties: Kelvin LETT, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees.
• Decision Date: 06 January 2020
• Docket Number: No. 19-1463

946 F.3d 398

Kelvin LETT, Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al., Defendants-Appellees.

No. 19-1463

United States Court of Appeals, Seventh Circuit.

Argued December 4, 2019
Decided January 6, 2020
Rehearing En Banc Denied January 27, 2020

Cass T. Casper, Attorney, Talon Law, LLC, Chicago, IL, for Plaintiff-Appellant.

Mark J. Bereyso, Suzanne M. Loose, Attorneys, City of Chicago Law Department, Myriam Z. Kasper, Attorney, Office of the Corporation Counsel, Chicago, IL, for Defendant-Appellees City of Chicago, Civilian Office of Police Accountability, and Independent Police Review Authority.

Lisa Noller, Attorney, Foley & Lardner LLP, Chicago, IL, for Defendant-Appellee Sharon Fairley.

Robert A. Seltzer, Attorney, Cornfield & Feldman, Chicago, IL, for Defendant AFSCME Local 654.

Before Manion, Kanne, and Barrett, Circuit Judges.

Barrett, Circuit Judge.

Kelvin Lett was an investigator in the Chicago municipal office that reviews allegations of police misconduct. In that role, Lett helped prepare an investigative report about a police shooting. Lett’s supervisor directed him to write in the report that police officers had planted a gun on the victim of the shooting, but Lett did not believe that the evidence supported that finding and refused. After he faced disciplinary consequences as a result, Lett sued his supervisors and the City of Chicago for retaliating against him in violation of the First Amendment. The district court dismissed all of Lett’s claims, and Lett now appeals, insisting that his refusal to alter the report constitutes protected citizen speech. But as the district court recognized, Davis v. City of Chicago , 889 F.3d 842 (7th Cir. 2018), squarely forecloses this argument. Because Lett spoke pursuant to his official duties and not as a private citizen when he refused to alter the report, the First Amendment does not apply.

I.

This case comes to us on a motion to dismiss, so we take the allegations in Lett’s complaint as true. Kubiak v. City of Chicago , 810 F.3d 476, 479 (7th Cir. 2016).

Lett worked as an investigator for Chicago’s Civilian Office of Police Accountability (formerly known as the Independent Police Review Authority), a municipal office tasked with reviewing allegations of police misconduct. In 2016, Lett was working on an investigation into police involvement in a particular civilian shooting. The office’s Chief Administrator, Sharon Fairley, directed Lett to include in the report a finding that police officers had planted a gun on the victim of the shooting. Lett refused because he did not believe that the evidence supported that finding.

Lett raised his concerns with Fairley’s deputy, who in turn shared them with Fairley. Not long after that, Lett was removed from his investigative team, then removed from investigative work altogether, and ultimately assigned to janitorial duties. Fairley then opened an internal investigation into Lett for disclosing confidential information. The internal investigation concluded that Lett had violated the

946 F.3d 400

office’s confidentiality policy, and Fairley ordered that Lett be fired. Convinced that the internal investigation was a hit job, Lett initiated a grievance through his union. The grievance arbitrator, siding with Lett, ordered the office both to reinstate him with backpay and to expunge his record. But when Lett returned to his office, Fairley immediately placed him on administrative leave with pay. Lett was assigned on paper to the Chicago Police Department’s FOIA office, but in reality he was not allowed to return to work.

Lett sued his supervisors, as well as the City of Chicago. Count 1, brought against all individual defendants under 42 U.S.C. § 1983, alleged that the supervisors had retaliated against Lett for his refusal to write false information in his report, in violation of his First Amendment rights. Count...