Smith v. Fruin, 93-2839

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Citation: 28 F.3d 646
• Docket Number: No. 93-2839,93-2839
• Parties: , 128 Lab.Cas. P 57,710, 9 IER Cases 1202 John S. SMITH, Plaintiff-Appellee, v. James FRUIN, Robert Biebel, Stephen Kuhn, and William Murray, Defendants-Appellants.
• Decision Date: 15 August 1994

Page 646

28 F.3d 646

63 USLW 2035, 128 Lab.Cas. P 57,710,

9 IER Cases 1202

John S. SMITH, Plaintiff-Appellee, v. James FRUIN, Robert Biebel, Stephen Kuhn, and William

Murray, Defendants-Appellants.

No. 93-2839.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 17, 1994.

Decided June 30, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Aug. 15, 1994.

Richard J. Brzeczek, Brzeczek & Associates, Chicago, IL (argued), for plaintiff-appellee.

Lawrence Rosenthal, Deputy Corp. Counsel (argued), Frederick S. Rhine, Asst. Corp. Counsel, Terence J. Moran, Benna R. Solomon, Susan S. Sher, Office of Corp. Counsel, Chicago, IL, for defendants-appellants.

Before CUMMINGS, KANNE, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

John S. Smith, a Chicago police detective, brought suit against his superiors in the police department contending that they had given him a sham surveillance assignment as a punishment for voicing his concerns about smoking in his workplace. The appellants moved for summary judgment on the basis of qualified immunity. The district court denied the motion, reasoning that it should have been clear to the appellants that Detective Smith's complaints constituted protected speech on a matter of public concern, for which he could not be penalized. Because we conclude based on the undisputed facts that Detective Smith's complaints were in the nature of personal grievances rather than speech on a matter of public concern, we reverse.

I. FACTS

At all times relevant to this action, Detective Smith was assigned to the Violent Crimes Section of the Chicago Police Department, Area 5. Commander James Fruin headed the Area 5 Detective Division until his retirement from the police force on July 9, 1991. Robert Biebel and Stephen Kuhn are both sergeants who supervised Detective Smith and other detectives in the Area 5 Violent Crimes Section during the relevant time frame. Sergeant William Murray has supervised case management for detectives assigned to the Violent Crimes Section of Area 5 since 1986.

In 1988, the Chicago City Council enacted the Clean Indoor Air Ordinance, declaring, "It is the purpose of this section and the policy of the city to provide smoke-free areas in enclosed public places and to regulate smoking in places of employment." Chicago Municipal Code Sec. 7-32-030. The ordinance further provided that "[n]o employer shall ... in any manner retaliate against any employee ... because such employee ... exercises any rights afforded by this section." Chicago Municipal Code Sec. 7-32-060(d). The Superintendent of Police subsequently issued Special Order 88-18, which instructed all employees of the police department to honor and enforce the provisions of the ordinance, directed supervisory personnel to establish smoke-free areas for non-smoking employees, and forbade retaliation against any department employee who exercised his or her rights under the ordinance.

Apparently, smokers at Area 5 headquarters frequently did not honor posted admonitions not to smoke in areas designated smoke-free. This prompted Detective Smith (who describes himself as particularly sensitive to tobacco smoke) to complain to Commander Fruin in January 1991 that the ordinance was not being enforced at Area 5. Detective Smith repeated the objection to Fruin in March, explaining that "I don't want people to quit smoking on my behalf. I just want a place to work where I don't have to smell their smoke." On both occasions, Commander Fruin told Smith that he would see what could be done. By April, however, Detective Smith's concerns had not yet been addressed. ¹ He spoke once again to Commander Fruin that month, requesting a work location that was smoke-free and reiterating that he "didn't want to smell smoke anymore." He also made similar complaints to Biebel and Kuhn. Detective Smith subsequently explained at his deposition that he had raised the issue with Commander Fruin solely on his own behalf:

Q. When you complained to Fruin about the smoking, did you complain only on your own behalf?

A. I don't speak for anyone else other than myself.

Q. So you were speaking for yourself when you complained to Fruin--

A. That's correct.

Q. --that the smoke bothered you in particular?

A. I don't implicate anyone else, just me.

Smith Dep. 48-49.

On April 24, 1991, Smith contacted the City Health Department. Smith apprised Stuart Sikes, an assistant to a Deputy Health Commissioner, that there was "too much smoke for him" at Area 5 Headquarters. Smith called Sikes once again a month later, reporting that "he was still being disturbed by cigarette smoke." In each instance, Smith described the problem only in terms of what he experienced personally; he did not report any incidents involving other non-smokers nor did he purport to speak on anyone's behalf but his own.

On June 12, 1991, Smith made a similar call to Lieutenant John Klein, Commanding Officer of the police department's Office of Legal Affairs. Again his complaint was framed in personal terms. Klein promptly initiated an inquiry into Smith's concerns, which culminated in the Chief of Detectives contacting Commander Fruin that same day.

On June 13, 1991, the day after Smith had contacted Klein, Sergeant Biebel advised Smith of a new assignment: beginning the following day, Smith was to station himself in an unmarked car in the 1500 block of North Austin Avenue from 9:00 a.m. to 5:00 p.m. and record the license plate numbers of all large dark blue, red, and maroon cars driven northbound by African American men. Commander Fruin had conceived of this assignment and approved Biebel's suggestion that it be given to Smith, whose usual purview was the investigation of sex crimes. ² Smith contends that this assignment was concocted solely to punish him for his speech; the city contends that the assignment was not a sham, but instead was a genuine surveillance assignment initiated in conjunction with the investigation of a large-scale fencing operation taking place in that area. At this juncture of the proceedings, however, we will assume that Detective Smith's take on the assignment is accurate. Smith stationed himself as ordered and copied down license plate numbers for a total of twelve days over a three-week period. (No one else relieved Smith, either at the end of his shift or when he left his post for lunch; nor did anyone take his place on two days when he was absent from work for medical reasons.)

Columnist Mike Royko discussed Smith's plight in the July 4, 1991 issue of the Chicago Tribune. Royko quoted Smith as saying "I came to work on June 14, and my sergeant told me that the commander said that if I wanted a smoke-free environment, I was going to get a smoke-free environment." Mike Royko, More tax money goes up in smoke, Chicago Tribune, July 4, 1991, at A3. Royko went on to write:

Those who follow the news probably have noticed that on any given day in Chicago, especially when the weather is hot, people are shooting, stabbing and bopping each other. They are grabbing purses, wallets, rings, chains, watches, emptying cash registers, crawling through open windows, jumping out of gangways, doorways and bushes.

When you toss in the wife-beaters, the saloon brawlers, the flashers and peeping Toms, the drunken drivers, the teenage vandals and the assorted nuts and zanies, there isn't nearly enough police manpower to handle the mayhem and madness.

And here we have a cop with 20 years' experience, 14 as a detective, spending his workday jotting down the license numbers of black motorists who happen to be driving north on Austin Avenue.

Detective Smith has talked to attorney Richard Brzeczek, formerly police superintendent, and they might go into court next week and slap the department with a lawsuit. If they don't, some bungalow owner should, on the grounds that this is one hell of a way to spend his real-estate taxes.

In the meantime, I suggest that Police Supt. LeRoy Martin ask Detective Smith's commander to explain the purpose of Detective Smith's goofy assignment.

And if he doesn't get a suitable explanation, Supt. Martin should provide that commander with an environment that is not only smoke-free, but authority-free.

Id. Several days after the article appeared, Smith was removed from the surveillance assignment. Smith was subsequently disciplined for publicly criticizing his commanding officer without first pursuing the matter internally and for revealing to the public the details of an ongoing undercover operation; the propriety of this measure is not at issue here. No one was assigned to replace Smith on Austin Avenue, purportedly because the publicity had compromised the surveillance effort.

Smith brought suit in the district court under 42 U.S.C. Sec. 1983, contending that his superiors had penalized him with the surveillance assignment for his complaints about smoking, in violation of his rights under the First and Fourteenth Amendments. See Marshall v. Allen, 984 F.2d 787, 789 n. 1 (7th Cir.1993). ³ At the completion of discovery, the defendants moved for summary judgment. In an initial ruling, the district court concluded that Smith's complaints about second-hand smoke qualified as protected speech on a matter of public concern within the ambit of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Smith v. Martin, 819 F.Supp. 733, 734 (N.D.Ill.1992). The court went on to conclude that whether the surveillance assignment was retaliatory or not was a disputed matter that could only be resolved at trial. Id. ⁴ In a second, unpublished opinion, the court rejected the appellants' defense of qualified immunity, reasoning that it was clear in June of 1991 (when Smith was given the assignment) that Smith's complaints amounted to speech on a matter of public concern and consequently that he could not be...