Clarence Gross v. Town of Cicero

In the

United States Court of Appeals
For the Seventh Circuit

No. 06-4042

C LARENCE G ROSS,
Plaintiff-Appellant,
v.

T OWN OF C ICERO , ILLINOIS, et al.,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 9465—John W. Darrah, Judge.

A RGUED F EBRUARY 10, 2009—D ECIDED A UGUST 27, 2010

Before C UDAHY, W ILLIAMS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Plaintiff Clarence Gross got
more than he bargained for when he sued his former
employer, the Town of Cicero (“the Town” or “Cicero”),
and several related individuals for what he believed to
be an unconstitutional firing. The Town countersued
and won on a breach of fiduciary duty theory, while
defeating Gross’s constitutional claims in the process.
After a bench trial, Gross was stuck with a judgment of
2 No. 06-4042

over $300,000, which constituted a forfeiture of his entire
salary for over four years of work as a public servant.
Gross appeals, challenging everything but the kitchen
sink—the denial of his constitutional claims, the merits
of the Town’s fiduciary duty claim, the rejection of his
demand for a jury trial, the judgment amount, and many
more. In the end, Gross gets a split victory. We affirm
the grant of summary judgment on his constitutional
claims, but we reverse summary judgment granted in
the Town’s favor on its fiduciary duty claim.

I. Background
In 1997, Gross retired as a Cicero police officer and was
appointed to a variety of positions within the Town
of Cicero’s municipal government. He served as Director
of Internal Services, Deputy Liquor Commissioner, and a
member of the “911 Board.” Most important for this
case, though, was his involvement with the Board of Fire
and Police Commissioners (“BOFPC”), to which the
Town President (similar to a mayor) appointed him
Hearing Officer and Chairman for a three-year term
from 1998-2000, and later for a second term. Gross
served the Town of Cicero in some capacity through
October 2002, though he was removed from (or not reap-
pointed to) certain positions before then. Gross was paid
a single annual salary for all his various government
positions, which was between around $61,000 and
$66,500 annually (he received a little over $50,000 for his
service through October 2002).
As Chairman of the BOFPC, Gross oversaw the hiring
and discipline of Cicero police officers. Cicero had estab-
No. 06-4042 3

lished screening, evaluation, and hiring procedures.
Throughout his tenure, a number of officers were hired
to the force.
Gross admitted in his deposition that he hired a dozen
or so individuals whom he felt at the time were “unquali-
fied” to be police officers. Many of these individuals
had performed poorly on one or more aspects of the
evaluation criteria. But he hired them anyway, he testi-
fied, because Town President Betty Loren-Maltese told
him to. On at least one occasion, Gross hired an individual
without notifying the other BOFPC members about the
prospective officer’s documented poor performance on
certain evaluations. Gross also admitted that he never
told the other BOFPC members that Loren-Maltese in-
structed him to make certain hires. Gross viewed Loren-
Maltese as his superior and testified that he believed
Loren-Maltese had the legal authority to override his
appointment decisions. Gross also admitted that he was
worried about his and his daughter’s employment if he
failed to comply with Loren-Maltese’s orders: “Town
president tells you to hire somebody, sir, you hire them.
I didn’t wish to be fired. I wasn’t going to get into an
argument with her. And if I didn’t do it, I would be
terminated and my daughter would suffer the wrath.”
As it turns out, Gross’s daughter, Rhonda, had also been
hired to the police force during Gross’s tenure as Chair-
man. Shortly after being hired, Rhonda complained to
her father that she and other female police officers were
suffering sexual harassment, and in some cases abuse, at
the hands of police commander Jerold Rodish. In re-
4 No. 06-4042

sponse, Gross claims that he approached Loren-Maltese
on six or so occasions to talk with her about these is-
sues. But each time, Gross wouldn’t say much. Typically,
Gross would come in and tell Loren-Maltese that he
wanted to talk about “a situation still going on with
Rhonda” or “a problem that’s just escalating . . . regarding
Rhonda.” And each time Loren-Maltese would tell him
that she knew what he was there for, “what it’s about,”
and that she would talk to him later. Gross admitted
in his deposition that he never mentioned Rodish, the
police department, any of the other female officers, or
any allegations of sexual harassment. The last time he
broached the issue, Gross claims that Loren-Maltese
told him to “just call Eddie,” referring to Edward
Vrdolyak, an outside lawyer retained to represent the
Town in certain matters.
Not getting anywhere with Loren-Maltese, Gross claims
he told his daughter to file a charge with the Equal Em-
ployment Opportunity Commission (“EEOC”). Rhonda
filed a charge in June 2001; the Town was represented
by Vrdolyak’s law firm. The matter was later settled
after the EEOC found, in June 2002, that there was sub-
stantial evidence that Rhonda was subjected to sexual
harassment.
Around this time, Gross began to lose some of his
Cicero posts. Gross claims that Loren-Maltese was re-
sponsible for removing him from several positions. Gross
was no longer on the 911 Board by October 2001. Then,
in January 2002, Gross claims that Loren-Maltese termi-
nated him as Chairman of BOFPC, allegedly prior to the
No. 06-4042 5

end of his second, three-year term. Loren-Maltese
stated that she could no longer trust Gross and his daugh-
ter due to “this EEOC thing” and that Rhonda “was
lucky she had a job.” Finally, in late September 2002,
Gross claims that Ramiro Gonzalez, the new Town Presi-
dent, terminated him as Deputy Liquor Commissioner
and Director of Internal Services. Gross alleges that,
after he learned of his termination, he phoned Vrdolyak,
who said “I cannot understand why she did this to you.”
Gross understood “she” to mean Loren-Maltese.
That wasn’t the only time Gross talked to Vrdolyak,
though. In late 2002 and early 2003, Gross spoke with and
wrote letters to Vrdolyak about past compensation
Gross had not yet received. Then, several months later,
Gross claims that he became involved as a potential
witness in litigation against the Town, filed by a man
named Moreno. He claims that he talked with the plain-
tiff’s attorneys about what he knew and that the attor-
neys put him on their witness list. In September 2003,
Vrdolyak called Gross and told him, “Your money
matter won’t be settled until the Moreno matter is set-
tled. Do you understand me?” Gross was never called
as a witness, either in court or in a deposition, in connec-
tion with the Moreno case. But Gross claims that he
still hasn’t received his compensation.
Gross sued the Town of Cicero, along with Loren-
Maltese, Vrdolyak, and Gonzalez (collectively the “Indi-
vidual Defendants”) under 42 U.S.C. § 1983 for viola-
tions of equal protection and free speech under the
First and Fourteenth Amendments. Regarding his First
6 No. 06-4042

Amendment claims, Gross contended that the defen-
dants retaliated against him for (1) approaching Loren-
Maltese about Rhonda’s “situation”; (2) encouraging
Rhonda to file an EEOC charge; and (3) talking with
the lawyers in the Moreno case. Gross also alleged a
civil rights conspiracy under 42 U.S.C. § 1985(3). Cicero
countersued, alleging breach of fiduciary duty and
unjust enrichment. The district court exercised supple-
mental jurisdiction over these state-law claims.
The litigation was contentious, to put it mildly. There
were hundreds of docket entries, numerous motions to
strike, and, as was apparent from the deposition tran-
scripts, some tension between the lawyers.
Eventually, both sides moved for summary judgment
and the district court, for the most part, found for the
defendants. The court granted summary judgment for
the defendants on all of Gross’s claims. Gross won on
Cicero’s unjust enrichment claim. But the court granted
summary judgment in favor of Cicero on the issue
of liability on the fiduciary duty claim.
So the case proceeded to trial on the issue of damages
from the breach of fiduciary duty. Gross demanded a
jury trial but the court denied it. After a bench trial, the
court awarded Cicero Gross’s entire salary for all four-
plus years of service in Cicero government, which
totaled $302,473.79.
Gross appeals and raises a slew of arguments. He
challenges the district court’s decision on his equal pro-
tection and free speech claims. He also appeals the
court’s grant of summary judgment on Cicero’s fiduciary
No. 06-4042 7

duty claim, the denial of his jury demand, and the
amount of damages the court awarded, along with half
a dozen other quarrels he has with the way the trial on
damages was conducted. To decide this case, though,
only Gross’s First Amendment and fiduciary duty argu-
ments warrant extended discussion.

II. Preliminary Matters
At the outset, though, we must address several
matters stemming from the parties’ sub-par briefing in
this case. In appellate litigation, as in most other aspects
of life, rules must be followed. Federal Rule of Appellate
Procedure 28(a)(7) requires appellants (and in some
cases appellees, under Fed. R. App. P. 28(b)) to include
in their briefs “a statement of facts relevant to the
issues submitted for review with appropriate references
to the record.” Elaborating on this rule, this circuit
requires that “[n]o fact shall be stated in this part of the
brief unless it is supported by a reference to the page
or pages of the record or the appendix where that fact
appears.” Cir. R. 28(c); see also Fed. R. App. P. 28(e). Gross’s
statement of facts lacks a single citation to the record.
Though the Individual Defendants point this out in
their response brief, Gross gives no explanation in his
reply brief why he failed to cite the record; instead,
Gross just hits back at the Defendants’ appellate briefs,
claiming they contain factual assertions without cita-
tions. This kind of tit-for-tat is no way to justify
breaking the briefing rules. Gross leaves us no choice
but to strike that section of his brief and any assertion
8 No. 06-4042

that relies solely upon it. See Casna v. City of Loves Park,
574 F.3d 420, 424 (7th Cir. 2009).
The Individual Defendants implore us to go further,
though. They contend that Gross’s error warrants dis-
missal of his entire appeal. We think that’s a bit draconian
for two reasons. First, Gross usually provides some sup-
port for his factual assertions in his “argument” section
(with one notable exception, which we’ll discuss later).
He typically cites specific paragraphs in his Local
Rule 56.1(b) statement. Those paragraphs, in turn, usually
contain appropriate record cites. This method of cita-
tion violates our briefing rules, for the rules require
litigants to cite directly to the record, as opposed to
something like a Rule 56.1 statement. See id. (citing Fed. R.
App. P. 28(e) and Cir. R. 28(c)). But because Gross’s
citations to specific paragraphs in the Rule 56.1 state-
ment usually lead to appropriate citations to the record,
he has given us enough to work with that we decline
to strike his brief entirely. See id.
Second, when we look at the Defendants’ briefs, the
proverbial pot-and-kettle idiom comes quickly to mind.
The Defendants, too, prefer citing Rule 56.1 statements
or like filings, instead of citing the record itself. And
though most of the Defendants’ factual assertions in
their briefs are followed by citations, that’s not always
the case.
Perhaps most egregious, though, is the Individual
Defendants’ failure to cite or even acknowledge that the
district court previously ruled against them on an argu-
ment they raise on appeal. They contend that we
should affirm summary judgment simply because Gross
No. 06-4042 9

failed to comply with Local Rule 56.1. They further
point out that, in the district court, they filed a motion
requesting that their own statement of facts be deemed
admitted and that Gross’s response to their statement of
facts be stricken. (R. 189.) In their view, “each of the
facts submitted in Defendants’ Statement of Uncontested
Facts is deemed admitted. . . . [and] [a]s such, Defendants
were entitled to summary judgment.” (Individual Def.’s
Br. 16.) But the Individual Defendants utterly fail to
mention that the district court expressly denied that
motion. (R. 209.) In addition to the fact that the Defen-
dants have not cross-appealed this ruling, which dooms
their argument right out of the gate, see Pryzina v. Ley,
813 F.2d 821, 823 (7th Cir. 1987), failing to cite the deci-
sion below denying their precise argument on appeal
is beyond a breach of our briefing rules; it’s downright
disingenuous.
We recognize that litigation is contentious and that
lawyers must often fight hard for their clients. But this
case has turned into a bare-knuckle brawl and it isn’t
pretty. One lawyer has already been sanctioned by this
court for not following the rules. See Gross v. Town of
Cicero, 528 F.3d 498 (7th Cir. 2008).
Consequently, in reviewing this appeal, we strictly
enforce all procedural rules and requirements. As we
have repeated time and again, “Judges are not like
pigs, hunting for truffles buried in [the record].” United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). Beyond
striking Gross’s statement of facts, we strike any of the
parties’ factual assertions, in any section of their briefs,
10 No. 06-4042

that lack direct citation to easily identifiable support in
the record. See Casna, 574 F.3d at 424; Pourghoraishi v.
Flying J, Inc., 449 F.3d 751, 754 n.1 (7th Cir. 2006); Corley
v. Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990, 1001 (7th
Cir. 2004) (“[W]e will not root through the hundreds of
documents and thousands of pages that make up the
record here to make his case for him.”); L.S.F. Transp., Inc.
v. NLRB, 282 F.3d 972, 975 n. 1 (7th Cir. 2002) (“We further
caution counsel that violations of Fed. R. App. P. 28(a)(7)
and Circuit Rule 28(c) in the future very well could lead
to the brief being stricken, summary affirmance, together
with other sanctions.”).
There’s one final preliminary matter we must address
before turning to the merits of this case. In his opening
brief, Gross argues that the district court erred in
granting summary judgment for the defendants on his
equal protection claim. That claim is based on a “class of
one” theory. But in Engquist v. Oregon Department of
Agriculture, the Supreme Court held that “such a ‘class-of-
one’ theory of equal protection has no place in the
public employment context.” 553 U.S. 591, 128 S. Ct. 2146,
2148-49 (2008). Engquist clearly foreclosed this theory.
Perhaps Gross already knew that, though, because in
his reply brief Gross acknowledges the fate of his equal
protection claim and withdraws it. So we will not give
that claim any further consideration.
But we cannot move on without commenting that the
abandonment of this claim came one brief too late. In
his reply brief, Gross attempts to explain why he’s with-
drawing the equal protection argument that he so fully
No. 06-4042 11

developed in his opening brief. He asserts that the
Engquist decision came down in between the time he
filed his opening and reply briefs. (Gross’s Reply Br. 26
(“Since the filing of Gross’s Appeal brief, the Supreme
Court decided Engquist.”).) But that’s not true. We re-
ceived Gross’s opening brief on July 28, 2008. Engquist
was decided almost two months earlier, on June 9, 2008.
Failing to cite adverse controlling authority makes
an argument frivolous. Not only that, but it is “impru-
dent and unprofessional.” Thompson v. Duke, 940 F.2d
192, 198 (7th Cir. 1991). We expect more from attorneys
who appear before us. See Standards for Professional
Conduct Within the Seventh Federal Judicial Circuit,
“Lawyer’s Duties to the Court,” ¶ 5, available at http://
www.ca7.uscourts.gov/Rules/rules.htm.

III. Gross’s First Amendment Retaliation Claims
On to the merits. We’ll first address whether sum-
mary judgment in favor of the Defendants was appro-
priate on Gross’s First Amendment retaliation claims.
We review the grant of summary judgment de novo
and view the evidence in the light most favorable to
Gross, the non-moving party. Bodenstab v. County of Cook,
569 F.3d 651, 656 (7th Cir. 2009). Summary judgment is
appropriate where the evidence demonstrates that “there
is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
A public employee doesn’t check his First Amendment
rights at the door of the government building. Valentino
12 No. 06-4042

v. Vill. of S. Chi. Heights, 575 F.3d 664, 671 (7th Cir. 2009). A
public employee has a right, in certain circumstances, to
speak as a citizen addressing matters of public concern.
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). Accordingly,
the First Amendment, made applicable to the states
through the Fourteenth Amendment, prohibits the gov-
ernment from retaliating against its employees for en-
gaging in protected speech. Milwaukee Deputy Sheriff’s
Ass’n v. Clarke, 574 F.3d 370, 376 (7th Cir. 2009). But the
public employee’s free speech rights are not unfettered.
Valentino, 575 F.3d at 671. A claim for First Amendment
retaliation under § 1983 involves a three-step inquiry:
(1) whether the employee’s speech was constitutionally
protected; (2) whether the protected speech was a but-
for cause of the employer’s action; and (3) whether
the employee suffered a deprivation because of the em-
ployer’s action. Kodish v. Oakbrook Terrace Fire Protection
Dist., 604 F.3d 490, 501 (7th Cir. 2010).
This case centers on the first step—whether Gross
engaged in constitutionally protected speech. That ques-
tion, which is one of law for the court, Connick v. Myers,
461 U.S. 138, 148 n.7 (1983), boils down to whether
Gross “spoke in the capacity of a private citizen and
spoke on a matter of public concern,” Valentino, 575 F.3d
at 671. Because none of the defendants challenges
whether Gross spoke as a private citizen, our inquiry
focuses for the most part on whether Gross spoke on a
matter of public concern. Purely personal grievances do
not qualify as matters of public concern. Sullivan v. Ramirez,
360 F.3d 692, 699 (7th Cir. 2004). Still, “[t]he fact that an
employee has a personal stake in the subject matter of the
No. 06-4042 13

speech does not necessarily remove the speech from
the scope of public concern.” Phelan v. Cook County, 463
F.3d 773, 791 (7th Cir. 2006) (quotation omitted). We
must look at the “content, form, and context” of the
speech to determine if the employee sought to raise
issues of public concern or whether the employee sought
to further only some private interest. Kokkinis v. Ivkovich,
185 F.3d 840, 844 (7th Cir. 1999); see also Connick, 461 U.S.
at 147-48. Though no one factor is dispositive, the
content of the speech is the most important of the
three. Clarke, 574 F.3d at 377.
Gross asserts four bases for his First Amendment re-
taliation claims, but only three require extended discus-
sion. Those three are: (1) Gross complaining to Loren-
Maltese about sexual harassment in the Cicero police
department; (2) Gross telling his daughter to file an
EEOC charge; and (3) Gross talking with the plaintiff’s
attorneys in the Moreno case. Gross claims that the first
two resulted in his discharge from positions in the
Town government; he claims the third led to his not
receiving back pay allegedly owed to him. We will
review each in turn.
Before we do, though, we must comment on Gross’s
fourth claimed basis for relief—civil rights conspiracy
under 42 U.S.C. § 1985(3). Again, Gross’s shoddy
briefing hurts him. “[I]t is not this court’s responsibility
to research and construct the parties’ arguments, and
conclusory analysis will be construed as waiver.” APS
Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624, 631
(7th Cir. 2002) (quotation omitted). Gross’s only mention
14 No. 06-4042

of this issue in his opening brief came in a three-sen-
tence footnote that lacked any citation to legal authority.
(Gross’s Br. 14-15 n.1.) In that footnote, Gross simply
says that if we reverse any of his three substantive
First Amendment claims, we must reverse the § 1985(3)
claim. That argument fails to address the district court’s
conclusion that § 1985(3) does not afford relief for First
Amendment violations. Gross v. Town of Cicero, No. 03 C
9465, 2006 WL 288262, at *10 (N.D. Ill. Feb. 1, 2006). More-
over, Gross’s footnote does not mention a shred of evi-
dence of conspiracy. Perhaps recognizing this deficiency,
Gross, in his reply brief (which is too late anyway),
claims that there is a “wealth of direct and circumstantial
evidence of a meeting of the minds.” (Gross’s Reply Br.
25.) But in support, Gross cites eight docket entries—
no paragraph or page numbers, and nothing written to
let us know what might be significant in those entries.
(Id. at 26.) That is not a fully developed argument. If
the evidence of conspiracy was so substantial, Gross
should have had no trouble pointing it out with some
specificity. We will not hunt through the record to find
this “wealth” of evidence. See Dunkel, 927 F.2d at 956.
Accordingly, Gross waived his § 1985(3) argument. See
United States v. Useni, 516 F.3d 634, 658 (7th Cir. 2008)
(“We have repeatedly warned that perfunctory and
undeveloped arguments, and arguments that are unsup-
ported by pertinent authority, are waived.” (quotation
omitted)).
On to the merits of Gross’s three substantive bases
for his First Amendment claims.
No. 06-4042 15

A. Gross’s Complaints to Loren-Maltese
First, Gross claims he was fired in part because he
approached Town President Loren-Maltese to discuss
allegations of sexual harassment by Cicero police
officer Jerold Rodish. This violated his First Amend-
ment rights, he argues, because his attempts to talk with
Loren-Maltese constituted protected speech. On about
six occasions, Gross told Loren-Maltese that he wanted
to talk about “a situation still going on with Rhonda” and
“a problem that’s just escalating . . . regarding Rhonda.”
Though he never discussed the details of the “situation”
or “problem,” Gross argues that he engaged in constitu-
tionally protected speech because Loren-Maltese in-
dicated that she understood what he wanted to say
(e.g., she said she knew why he was there, “what it’s
about,” that she would talk to him later, and to “just
call Eddie [Vrdolyak]”).
Like the district court, we’re dubious of whether
Gross ever articulated a “particular viewpoint, grievance
or complaint” that could even be considered speech on
a matter of public concern. Wernsing v. Thompson, 423
F.3d 732, 752 (7th Cir. 2005). The record indicates that
Gross never discussed his daughter’s “situation” with
Loren-Maltese; he never mentioned the police depart-
ment, Rodish, or any allegations of sexual harass-
ment. Gross’s only “speech” was his request to discuss
Rhonda’s situation with her. Though one ordinarily
need not explicitly utter the words “sexual harassment” to
make an employer aware of such a problem, see Gentry
v. Export Packaging Co., 238 F.3d 842, 849 (7th Cir. 2001),
16 No. 06-4042

we have made clear that the First Amendment does not
protect merely expressing a desire to speak, even if the
viewpoint one desires to express might itself be pro-
tected, Wernsing, 423 F.3d at 752. “Speech which has not
yet occurred . . . is no speech at all.” Id.
Gross argues, however, that Loren-Maltese’s reac-
tions give some indication that she understood what he
wanted to communicate. In Gross’s view, her responses
transformed Gross’s statements from a desire to com-
plain into actual complaints. We’re skeptical of whether
the record supports this argument. There’s little evidence
to establish that Loren-Maltese understood Rhonda’s
“situation” or “problem” to mean sexual harassment in
the police department. Gross admitted that he never
elaborated on what he wanted to talk about. And Gross
does not allege that Loren-Maltese said anything about
Rodish, sexual harassment, or the police department.
Her responses were largely non-descriptive—she said
she knew “what it’s about.” Still, she did say, “Just call
Eddie,” which might be some slight indication of under-
standing, since there is some evidence that Rodish
was connected to Vrdolyak. And more generally, it’s
true that a listener’s reactions are part of the calculus in
determining whether a statement constitutes speech on
a matter of public concern. See Waters v. Churchill, 511
U.S. 661, 668 (1994).
But whether Loren-Maltese understood what Gross
meant is ultimately irrelevant. Gross’s speech wasn’t
constitutionally protected because he never spoke on
No. 06-4042 17

a matter of public concern.1 Of course, sex discrimination
in public employment can be a matter of public con-
cern. Kokkinis, 185 F.3d at 844. But it is not always so.
Id.; see also McKenzie v. Milwaukee County, 381 F.3d 619,
626 (7th Cir. 2004) (“Sexual harassment is indeed an
important matter, but not all speech relating to sexual
harassment enjoys constitutional protection.”). Purely
personal grievances do not garner First Amendment
protection, Clarke, 574 F.3d at 377-78, including personal
grievances about sexual harassment in the workplace,
see Phelan, 463 F.3d at 791; Gray v. Lacke, 885 F.2d 399,
411 (7th Cir. 1989).
Examining both the content and context of Gross’s
speech, we, like the district court, conclude that Gross, to
the extent that he engaged in any “speech” at all, spoke
only about his daughter, Rhonda, with the intent of
obtaining some private redress for her. As we’ve dis-
cussed, Gross never mentioned anything to Loren-
Maltese about Rodish or harassment of other officers.
Instead, Gross privately approached Loren-Maltese
about “a situation . . . with Rhonda” and “a problem . . .
regarding Rhonda.” These words concern a purely per-
sonal matter.

1
We note that Gross does not allege that Loren-Maltese
silenced him or threatened some penalty if he continued
speaking when he approached her on those six occasions.
Accordingly, Gross does not claim that Loren-Maltese
effected a “prior restraint” on Gross’s speech. See Fairley
v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009).
18 No. 06-4042

With the content of his speech clearly against him, Gross
implores us to focus on context. Gross tries to show
that Gross had a broader purpose in seeking Loren-Mal-
tese’s ear by alleging that he knew about other in-
stances of harassment in the police force, particularly
by Rodish. But even if that were true, he never communi-
cated that knowledge to Loren-Maltese—in other words,
his speech never conveyed more than his personal griev-
ance. Moreover, we find Gross’s claim that he intended
to sound the alarm about a broader pattern of harass-
ment incredible. Gross took no other corrective measures
to address Rodish’s allegedly systemic and heinous
conduct. Gross claims that he knew that other women
had been threatened and even physically abused. But
he did nothing about it, despite the fact that he was
the Chairman of the BOFPC. Instead, after not getting
what he wanted from Loren-Maltese, he claims he in-
structed his daughter to file an EEOC charge. Gross
presents no evidence that he did anything to help the
other women in the department. See Phelan, 463 F.3d at
791. Moreover, Loren-Maltese’s responses give no in-
dication that she understood Gross to be raising broader
concerns about sexual harassment in the police depart-
ment. Accordingly, we see no evidence that Gross’s
attempt to speak with Loren-Maltese was motivated
by anything but a private concern for his daughter.
We cannot fault a father for seeking to protect his
daughter, especially when she claims to have been
sexually harassed. But the law is clear that the First
Amendment cannot shield the father’s speech when
his motive in speaking is a purely personal one, as
No. 06-4042 19

Gross’s was here. So we affirm summary judgment in
favor of the defendants on this issue.

B. Telling Rhonda to File an EEOC Charge
Gross next argues that he also engaged in constitu-
tionally protected speech when he “encouraged” his
daughter to file an EEOC charge in response to
Rodish’s conduct. This argument is a non-starter for
two reasons. First, like the previous issue, we see no
evidence that Gross spoke on a matter of public concern.
The record gives hardly any indication of what Gross’s
“encouragement” actually entailed—Gross merely points
us to his deposition, where he said, “I told her to go to
the EEOC.” Nothing in the record suggests that Gross
had any motive other than to help his daughter seek
redress. See id.
Again, Gross contends that his knowledge of other
incidents of harassment involving other officers is suffi-
cient to infer Gross’s intent to raise a matter of
public concern. As we discussed above, we disagree. The
record fails to show that Gross encouraged other officers
to file EEOC charges, nor does it show that Gross en-
couraged his daughter to file the charge to vindicate
the interests of other female officers or to expose a
pattern of harassment in the police department. Thus,
neither the content (which is almost entirely unknown)
nor the context of Gross’s statements to his daughter
indicates that he spoke on a matter of public concern.
Alternatively, Gross fails to show that any defendant
knew that he told his daughter to file an EEOC charge.
20 No. 06-4042

This bears on the second step of the ordinary First Amend-
ment retaliation analysis—causation. Gross identifies
several statements in the record in which witnesses
heard Loren-Maltese say that she did not trust Gross or
his daughter because of “this EEOC thing” and that
“you’re lucky your daughter has a job.” 2 But those state-
ments indicate Loren-Maltese’s displeasure with
Rhonda filing the EEOC charge, not with Gross’s telling
her to file. Gross fails to cite any evidence that Loren-
Maltese or any other defendant knew what Gross told
his daughter—or even whether he told his daughter
anything at all. But what Gross told his daughter is the
speech we’re concerned with here. To the extent filing an
EEOC charge constitutes “speech,” it was Rhonda’s

2
Gross also alleges that Loren-Maltese stated in her deposition
that she fired Gross “because of ‘his daughter,’ ” (Gross’s Br. 19
(quoting R.171 ¶ 37)), which Gross claims is evidence that Loren-
Maltese retaliated against Gross for approaching her about
Rhonda’s situation and his encouraging Rhonda to file an
EEOC charge. This argument mischaracterizes the evidence.
Loren-Maltese said that she did not reappoint Gross to the
BOFPC in part because she believed Rhonda received fav-
orable treatment from the police commission. For example,
she testified that she was aware of complaints about Rhonda
for which other officers would have been brought up on
charges before the commission. (Loren-Maltese Dep. 85, Apr. 13,
2005.) Loren-Maltese’s references to “his daughter” did not
pertain to Rhonda’s EEOC charges or any allegations of
sexual harassment in the police department. Accordingly,
these statements are irrelevant to Gross’s First Amendment
retaliation claims.
No. 06-4042 21

speech, not Gross’s. The record contains no evidence
that Gross participated in the filing of the charge or as a
witness in the EEOC proceedings. Cf. Salas v. Wis. Dep’t
of Corrs., 493 F.3d 913, 925 & n.8 (7th Cir. 2007) (finding
that participation as witness on EEOC charge con-
stituted protected speech, but noting that parties did not
address fact that plaintiff-witness had not yet testified).
And Gross cites no authority that shows how he can
recover under the First Amendment for retaliation
based on what his daughter said or did. Because
Gross failed to produce any evidence that the defendants
were aware of his speech, Gross cannot demonstrate a
triable issue of fact that his discharge was at all
motivated by his encouraging his daughter to go to the
EEOC. Accordingly, we affirm the district court’s deci-
sion on this issue as well.

C. Gross’s Participation in the Moreno Case
Gross’s final basis for his First Amendment retaliation
claim stems from his alleged involvement in separate,
unrelated litigation against Cicero. For a variety of
reasons, we are compelled to strike this portion of
Gross’s brief and will dismiss this argument as unde-
veloped. As we explained earlier in this opinion, the
parties’ briefing, particularly Gross’s, was often woe-
fully inadequate and violated multiple procedural rules.
We said we will strictly enforce those rules when we
see violations. And that is what we have here.
First, Gross failed to support his factual assertions
with appropriate citations to the record, in violation of
22 No. 06-4042

Fed. R. App. P. 28(a)(9)(A) & (e). Gross’s argument on
this issue is a factual one. He claims that he received a
call from Vrdolyak who told him that he wouldn’t
receive certain compensation he was owed until the
Moreno litigation was resolved, which Gross argues was
retaliation for his talking with the plaintiff’s lawyers.
The district court rejected this argument because it con-
cluded that Gross never talked with Moreno’s lawyers
until after Vrdolyak called Gross. On appeal, Gross dis-
putes that view of the timing and argues that Vrdloyak’s
failure to address his complaint on back pay was ongoing
retaliation for his involvement in the Moreno lawsuit.
To evaluate Gross’s argument, we must know how the
record supports Gross’s view of the facts. In his brief,
Gross provides what appears to be his version of events
in bullet-point form. (Gross’s Br. 23-25.) However, only
one of the bulleted paragraphs contains any citation to
the record. At the end of the bulleted list, Gross pro-
vides a general citation to 22 paragraphs in his Local
Rule 56.1(b) statement. (Id. at 25.) We have already ex-
plained that citing to litigation documents like Rule 56.1
statements, in lieu of citing directly to the record, violates
our briefing rules. See Casna, 574 F.3d at 424. Still, we
let this slide and didn’t strike Gross’s entire appellate
brief because, in most instances, he supports each
factual assertion with a citation to a specific paragraph
in his Rule 56.1(b) statement, which then usually corre-
sponds to a specific record citation. But here, Gross leaves
it to us to match the paragraphs from his Rule 56.1 state-
ment to his bullet points and decipher how the record
supports each of his factual claims (which is made even
No. 06-4042 23

more difficult by the fact that some paragraphs in the
Rule 56.1 statement lack any citation to the record). And
as we discussed, Gross’s statement of facts provides us
no help. This is a truffle-hunting expedition that we will
not engage in. See Dunkel, 927 F.2d at 956.
Beyond failing to appropriately cite the record, Gross
fails to cite any legal authority that would allow us
to rule in his favor on this issue. But citations to au-
thorities are required. See Fed. R. App. P. 28(a)(9)(A). For
example, Gross does not claim to have testified in the
Moreno matter, in court or in a deposition. So even if
we assume his timeline of events is accurate, Gross fails
to cite any authority supporting his claim that talking
with a plaintiff’s lawyer or being on a witness list con-
stitutes speech on a matter of public concern, an issue
we’ve expressed our curiosity about in a prior opinion,
see Salas, 493 F.3d at 925 n.8 (“Interestingly, the parties
do not address the fact that Salas had not yet testified
in the EEOC investigation when he was terminated, nor
do they delineate what communications, if any, Salas
had with Rogers or the EEOC investigator before he
was fired.”).
Additionally, Gross fails to respond to the Individual
Defendants’ argument that Vrdolyak is not a state actor.
The First Amendment only protects a person from
the government, or a particular state actor, not from
private citizens. Hallinan v. Fraternal Order of Police of
Chi. Lodge No. 7, 570 F.3d 811, 815 (7th Cir. 2009). The
Individual Defendants contend that Vrdolyak is merely
a private lawyer without authority to speak for the
24 No. 06-4042

Town. Gross fails to counter this claim on appeal. Instead,
in his reply brief, Gross merely tries to link Vrdolyak
to Cicero by alleging that “Cicero and [then-Town Presi-
dent] Gonzalez would have to authorize Gross’s back
pay payment.” (Gross’s Reply Br. 16.) But Gross fails
to provide a citation to any authority, legal or factual,
supporting that assertion. We are left without any devel-
oped argument as to why Vrdolyak’s alleged statement
regarding Gross’s back pay should be considered state
action.
Accordingly, in light of Gross’s rule violations as well
as his failure to develop a viable argument, Gross leaves
us no choice but to affirm the district court’s decision on
this issue.

IV. Cicero’s Fiduciary Duty Claim
Gross challenges Cicero’s summary judgment victory on
liability on the fiduciary duty theory. Though Gross
presents several arguments, we need only address one.
For we are convinced that the district court improperly
concluded as a matter of law that Gross breached a fidu-
ciary duty.
Under Illinois law, upon which this theory is based,
recovery for a breach of fiduciary duty requires proof
of three elements: “[1] a fiduciary duty exists, [2] that the
fiduciary duty was breached, and [3] that such breach
proximately caused the injury of which the plaintiff
complains.” Neade v. Portes, 739 N.E.2d 496, 502 (Ill. 2000).
Our trouble with the district court’s ruling lies at the
No. 06-4042 25

intersection of the first two elements—just what duty
Gross owed the Town of Cicero and how he might
have breached it.
It has long been established in Illinois that “a public
officer occupies a fiduciary relationship to the political
entity on whose behalf he serves.” Chi. Park Dist. v.
Kenroy, Inc., 402 N.E.2d 181, 186 (Ill. 1980) (citing cases).
The most well-known of a public official’s fiduciary
duties is that of undivided loyalty to the office and the
people whom he serves. See Madlener v. Finley, 538
N.E.2d 520, 522 (Ill. 1989) (citing People v. Savaiano, 359
N.E.2d 475, 480 (Ill. 1976), and City of Chicago ex rel. Cohen
v. Keane, 357 N.E.2d 452, 455 (Ill. 1976)); see also Brown
v. Kirk, 355 N.E.2d 12, 15 (Ill. 1976). Emanating in part
from section 3 of the Illinois Corrupt Practices Act, 50
ILCS 105/3, see Keane, 357 N.E.2d at 455, this duty is
“sweeping,” see People v. Scharlau, 565 N.E.2d 1319, 1325
(Ill. 1990), and commands a public official to refrain
from self-dealing and conflicts of interest, see Madlener,
538 N.E.2d at 522.
The duty of loyalty is not the only fiduciary duty Illinois
recognizes for its public officials. Other duties may be
prescribed by statute or found in common law. Id.; see
also People v. Grever, 856 N.E.2d 378, 387 (Ill. 2006) (“The
right to a civil remedy for breach of a statutorily
created fiduciary duty is clear.”). For example, the Illinois
Supreme Court has held that the Pension Code, 40 ILCS
5/1-109, establishes that a public pension board owes a
fiduciary duty to its participants and beneficiaries.
Marconi v. Chi. Heights Police Pension Bd., 870 N.E.2d
273, 299 (Ill. 2006).
26 No. 06-4042

In this case, the district court looked to yet an-
other statute to define the scope of Gross’s fiduciary
duty. And it is the court’s reliance on that statute and
its characterization of Gross’s duty with which we dis-
agree. Cicero’s claim was based on Gross’s own admis-
sions in his depositions that he sought to preserve his
employment and that of his daughter by knowingly
appointing police officers whom he knew the Town
President desired but whom he also personally
believed were unqualified for the job. Instead of framing
that argument in a duty-of-loyalty context, though, the
district court drew on the Illinois statutes that grant a
municipal BOFPC the authority to appoint police
officers and set forth the standards by which such officers
must be evaluated and appointed. See Gross, 2006 WL
288262, at *7 (citing 65 ILCS 5/10-2.1-4 & 5/10-2.1-6). From
these statutes, the court gleaned a fiduciary duty owed
by BOFPC commissioners to exercise independent judg-
ment in appointing officers. The court concluded that
Gross breached that duty by appointing certain officers
only upon the orders of Town President Loren-Maltese
and not upon his own assessment and approval of those
officers’ qualifications.
But the BOFPC statutes do not speak in terms of fidu-
ciary duties nor do they state that BOFPC commissioners
must ignore the wishes of other public officials, particu-
larly the official who appoints them. Requiring the exer-
cise of good and independent judgment in appointing
police officers sounds more akin to imposing a fiduciary
duty of care on a public official. But Illinois law pro-
vides that public officials are “immune from individual
No. 06-4042 27

liability for the performance of discretionary duties in
good faith.” Kinzer ex rel. City of Chicago v. City of Chicago,
539 N.E.2d 1216, 1220 (Ill. 1989) (quotation omitted); see
also 745 ILCS 10/2-201 (“Except as otherwise provided
by Statute, a public employee serving in a position in-
volving the determination of policy or the exercise of
discretion is not liable for an injury resulting from his
act or omission in determining policy when acting in the
exercise of such discretion even though abused.”). Illinois
law seems to require more than just a breach of the duty
of care to hold a public official liable on a fiduciary
duty theory.
As a federal court, we are wary of expanding the liability
of certain public officials under state law without a firm
basis upon which to do so. Neither the parties nor
the district court cites any Illinois case establishing a
fiduciary duty under the BOFPC statutes, and our
research has not uncovered one either. Moreover, the
BOFPC statutes do not provide for the liability of BOFPC
commissioners; liability must be inferred from the
statute, as it has from other Illinois statutes like the Cor-
rupt Practices Act and the Pension Code. But we see
little similarity between the BOFPC statutes and those
laws under which Illinois courts have found fiduciary
duties. The Corrupt Practices Act specifically proscribes
self-dealing and conflicts of interest in matters upon
which an official exercises his discretion. 50 ILCS 105/3(a).
This is the essence of the fiduciary duty of loyalty—“these
and kindred statutes reflect the common law doctrine
that ‘the faithful performance of official duties is best
secured if a governmental officer, like any other person
28 No. 06-4042

holding fiduciary position, is not called upon to make
decisions that may advance or injure his individual inter-
est.’ ” Keane, 357 N.E.2d at 455 (quoting Brown, 355
N.E.2d at 15). Furthermore, in other statutes that form
the basis for a recognized fiduciary duty, the text itself
explicitly creates such a duty. The Pension Code is an
example. 40 ILCS 5/1-109 (“A fiduciary with respect to a
retirement system or pension fund established under
this Code shall discharge his or her duties with respect
to the retirement system or pension fund solely in the
interest of the participants and beneficiaries . . . .”).
The BOFPC statutes lack any analog to common law
doctrine and do not spell out a fiduciary duty for BOFPC
commissioners. Rather, the BOFPC statutes merely grant
appointment authority and explain how it should be
exercised. They do not require the commissioners to
exercise completely in dependent judgment (though one
would hope they would do so) and ignore the desires
of those who appoint them. Accordingly, without some
Illinois authority or any indication in the text, we
cannot conclude that the BOFPC statutes imposed a
fiduciary duty on Gross.
But that does not end our inquiry of this issue. Gross as
BOFPC Chairman is of course still subject to the duty
of loyalty that covers all public officials. Cicero has pro-
duced evidence, mostly in the form of Gross’s own dep-
ositions, that Gross appointed police officers he be-
lieved were unqualified because he was worried about
his and his daughter’s employment. But whether this
conduct could constitute a conflict of interest is unclear
No. 06-4042 29

under Illinois law. In People v. Scharlau, the Illinois Su-
preme Court upheld the convictions of several public
officials who negotiated on behalf of a municipality for
a consent decree in a Voting Rights Act case, through
which the officials sought a provision that would protect
their employment with the municipality for several
years. The court, examining several good-government
statutes, including the Corrupt Practices Act, observed
that such “sweeping” statutes reach action taken in
exchange for “a promise of employment.” 565 N.E.2d
at 1326.
Though not a civil case, we find Scharlau instructive
on how the Illinois courts view the statutes upon which
Gross’s fiduciary duty of loyalty is based. If the evidence
shows that Gross and Loren-Maltese agreed upon some
quid pro quo arrangement by which Loren-Maltese would
continue Gross’s and his daughter’s employ if Gross
continued to skirt the BOFPC evaluation process and
appoint her hand-picked officers, even though he be-
lieved they were unqualified, such action would con-
stitute an exchange for a promise of employment. We
think the evidence Cicero produced is sufficient, at least
barely, to reach a trier of fact on the question whether
such an arrangement actually existed.
But Cicero’s evidence is not sufficient to award it an
outright victory on liability at the summary judgment
stage. There is no direct evidence of a quid pro quo arrange-
ment between Gross and Loren-Maltese, and there is
some question as to whether the disputed hires were
truly unqualified, because each was ultimately certified as
30 No. 06-4042

a Law Enforcement Officer under Illinois law. Moreover,
Gross points out that he believed he was merely being
a good employee and following orders. Gross cites to
passages in his deposition where he stated that he
viewed Loren-Maltese as his “superior” and that he
believed she had the legal authority to override his de-
cisions as BOFPC Chairman.
Should a trier of fact credit Gross’s view of the evi-
dence, then we would be hard-pressed to conclude
that Gross engaged in self-dealing as proscribed by the
duty of loyalty, the Corrupt Practices Act, and the
court’s interpretation in Scharlau. We refuse to hold that
a mere concern for one’s continued employment as a
public official constitutes a conflict of interest. If that
were the case, we are confident that most politicians
and public servants would be found liable at some point
in their careers. Acting in a way that might be contrary
to one’s own beliefs, but doing so on the orders of
those who control one’s employment, is commonplace
and surely does not in itself violate any fiduciary duty. A
contrary view would wreak havoc on Illinois’s system
of public employment—subordinates would have to
refuse to act when they subjectively disagreed with the
orders of their employers. So, without a more exacting
command from the Illinois courts, we decline to inter-
pret Illinois’s fiduciary duty of loyalty to impose liability
on those who desire to continue their employment by
acting on the commands of their superiors. We will ac-
cordingly reverse the grant of summary judgment for
Cicero on its fiduciary duty claim and remand to allow
the trier of fact to determine whether Gross breached his
No. 06-4042 31

fiduciary duty of loyalty to Cicero by engaging in self-
dealing, that is, if Cicero continues to pursue this claim
on remand.
Reversal of Cicero’s judgment on liability also means
that the $302,473.79 damages awarded to Cicero cannot
stand, so we are not required to address Gross’s argu-
ment challenging that award. But since we find some
merit to Gross’s argument, and since this damages issue
will reappear if, on remand, Cicero wins again on the
liability issue, we offer these additional comments.
The $302,473.79 awarded by the district court was the
entire salary that Gross received during his four-plus
years of service in Cicero government. Although this total-
salary forfeiture is possible for breach of fiduciary duty
under Illinois law, we think in this case it can be sus-
tained only with more specific findings on the scope
and timing of Gross’s alleged quid pro quo arrangement
with Loren-Maltese.
Illinois law permits a complete forfeiture of any salary
paid to a fiduciary during the time when he was
breaching his duty to the employer. Levy v. Markal Sales
Corp., 643 N.E.2d 1206, 1219 (Ill. App. Ct. 1994). The
salary subject to forfeiture is not limited based on the
ratio of injurious to legitimate work performed, since
an agent who breaches his fiduciary duty has no right
to any compensation while acting adverse to the
principal’s interests. ABC Trans Nat’l Transport, Inc. v.
Aeronautics Forwarders, Inc., 413 N.E.2d 1299, 1314-15 (Ill.
App. Ct. 1980). Forfeiture is limited, however, to the “time
when the fiduciary was breaching his duty.” Levy,
32 No. 06-4042

643 N.E.2d at 1219; see also ABC Trans Nat’l, 413 N.E.2d
at 1315 (“The agent retains compensation rightfully
earned before the breach, for specific periods.”).
The district court’s total-salary measure of damages
assumes that Gross was breaching his duty during his
entire time as BOFPC Chairman, but at this stage, the
evidence does not support that assumption. It is
unknown whether Gross’s alleged quid pro quo arrange-
ment with Loren-Maltese was in place at the outset of
Gross’s appointment to the BOFPC, or developed some
time into that appointment, perhaps only when the first
of Loren-Maltese’s preferred police officer candidates
came up for consideration.
These details on the timing of Gross’s unlawful agree-
ment with Loren-Maltese should be developed in the
record as an adjunct to the question of whether such
an agreement even existed. If Cicero’s evidence is suf-
ficient to show that Gross actually agreed to abandon
his BOFPC duties by appointing Loren-Maltese’s hand-
picked officers in exchange for a promise of continued
employment, the evidence should also allow for a reason-
able determination of when during Gross’s tenure this
agreement was in place. From there, the proportion
of Gross’s total $302,473.79 earnings subject to for-
feiture for breach of fiduciary duty may be assessed. See
Vendo Co. v. Stoner, 321 N.E.2d 1, 14 (Ill. 1974) (considering
three-year, five-month period when fiduciary breached
duty by financing competitor’s operations); Levy, 643
N.E.2d at 1219 (upholding forfeiture of corporate direc-
tors’ salary received while they were running a com-
No. 06-4042 33

petitor corporation “and thus breaching their fiduciary
duty”); ABC Trans Nat’l, 413 N.E.2d at 1315 (limiting
salary forfeiture to four-month period when corporate
officers breached their duty by conspiring with em-
ployees to move to a competitor).

V. Conclusion
We A FFIRM the district court’s grant of summary judg-
ment on Gross’s equal protection, First Amendment, and
civil rights conspiracy claims. We R EVERSE the court’s
grant of summary judgment for Cicero on its fiduciary
duty claim and R EMAND for further proceedings. Each
side will bear its own costs on appeal.

8-27-10