In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3074
LAURA KUBIAK,
Plaintiff‐Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14‐CV‐1159 — Samuel Der‐Yeghiayan, Judge.
____________________
ARGUED DECEMBER 7, 2015 — DECIDED JANUARY 11, 2016
____________________
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
2 No. 14‐3074
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 con‐
stitutional 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 re‐
sponsibilities included “keeping members of the news media
apprised of police activity by providing information on top‐
ics 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 to‐
ward 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
No. 14‐3074 3
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 Strat‐
ton that Zala had previously directed similar outbursts to‐
ward 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 Ku‐
biak.
Kubiak alleges that Zala has a history of violence. Ac‐
cording to her complaint, around 2009, a jury returned a
verdict in favor of the plaintiff in a suit against Zala for bat‐
tery and excessive force. The City defended Zala at trial. Ku‐
biak 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 No‐
vember 12, Kubiak requested a meeting with Biggane, her
supervising Lieutenant, to discuss the incident. Biggane re‐
sponded that she was too busy. Kubiak alleges that she con‐
tinued to request meetings, but each time, Biggane respond‐
ed that she was too busy. On November 27, Kubiak went to
4 No. 14‐3074
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 Es‐
trada, who had been found guilty of excessive force and also
worked at the ONA, told her that she “better be careful be‐
cause [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, Big‐
gane 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 neighbor‐
hoods 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 pre‐
viously 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 Kubi‐
ak 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
No. 14‐3074 5
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 depriva‐
tion of constitutional rights pursuant to § 1983.1 Kubiak ar‐
gued 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 re‐
taliating against those who exposed and reported the mis‐
conduct.
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, con‐
cluding that Kubiak’s speech was not constitutionally pro‐
tected 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) per‐
mits 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
1 Kubiak also brought a state law claim of retaliation in violation of
the Illinois Whistleblower Act, 740 ILCS § 174/1, but the district court
declined to exercise supplemental jurisdiction over this claim and dis‐
missed it without prejudice. Kubiak does not appeal the dismissal of her
state law claim.
6 No. 14‐3074
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 omit‐
ted). 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 pub‐
lic concern. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). The
determination of whether speech is constitutionally protect‐
ed 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 em‐
ployees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their com‐
munications from employer discipline.” Garcetti, 547 U.S. at
421. “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 de‐
scription.” Houskins, 549 F.3d at 490 (citation omitted); see
also Garcetti, 547 U.S. at 424–25 (“Formal job descriptions of‐
No. 14‐3074 7
ten 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 Chica‐
go 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 du‐
ties did not include reporting misconduct of her coworkers,
and as such, her complaints about Zala were made as a pri‐
vate citizen. We disagree.
Kubiak’s concept of “official duties” is overly narrow. As
we explained in Houskins, an employee’s official duties are
not limited to the formal job description. 549 F.3d at 490. We
must make a practical inquiry into what Kubiak was ex‐
pected to do as an employee. See id.; Spiegla v. Hull, 481 F.3d
961, 965–67 (7th Cir. 2007) (holding that a correctional officer
spoke as an employee and not as a citizen when reporting
supervisor’s breach of prison security even though the of‐
2 Kubiak notes that her duties also included researching print, televi‐
sion, and online media; creating files of the Chicago Police coverage in
the news; receiving and recording notifications from the field on poten‐
tially newsworthy events; preparing daily news clips and monthly safety
related reports; maintaining files on high profile cases; and preparing
media advisors and press releases.
8 No. 14‐3074
ficer’s primary responsibility was to monitor vehicle and
foot traffic through the main gate). Generally, an employee
who is verbally assaulted by a colleague would be expected
to report the inappropriate behavior to a supervisor. Addi‐
tionally, as the district court pointed out, in the context of a
police department, it makes even more sense to expect offic‐
ers to report that a fellow officer acted violently. Kubiak is a
police officer, and as part of that job, she is responsible for
protecting the public from harm, even though she was de‐
tailed to the ONA at the time of the complaints.3
Our conclusion that Kubiak spoke as an employee is fur‐
ther supported by the fact that her speech was intimately
connected with her job. In Davis v. Cook Cnty., the plaintiff
nurse argued that her memorandum to the Employee Assis‐
tance Counselor, which contained complaints about being
harassed by other employees when working in the hospital’s
3 Kubiak also argues that reporting Zala’s actions was not “ordinari‐
ly” within the scope of her duties, relying on Lane v. Franks, 134 S. Ct.
2369, 2379 (2014) (“The critical question under Garcetti is whether the
speech at issue is itself ordinarily within the scope of an employee’s du‐
ties, not whether it merely concerns those duties.”). However, Kubiak’s
reliance on Lane is misplaced. Employee grievances, such as Kubiak’s
complaints about Zala, are very different than the speech at issue in
Lane—subpoenaed testimony at a former employee’s corruption trials.
See Lane, 134 S. Ct. at 2377. The Lane Court explained that testimony un‐
der oath by a public employee is outside the scope of his ordinary job
duties and is thus citizen speech for purposes of the First Amendment.
Id. at 2378. The Court reasoned that when a public employee testifies,
any obligation he may have as an employee is “distinct and independent
from the obligation, as a citizen, to speak the truth.” Id. at 2379. In con‐
trast, Kubiak’s obligation to report Zala’s verbal assault stemmed from
her position as an ONA employee, and there was no independent obliga‐
tion as a citizen to report Zala’s conduct to her ONA supervisors.
No. 14‐3074 9
emergency room, was citizen speech. 534 F.3d 650, 652 (7th
Cir. 2008). We disagreed and held that the memorandum
was employee speech. Id. at 653–54. We noted that “[w]hile
drafting letters of complaint may not be a core job function
of a nurse, a focus on core job functions is too narrow after
Garcetti ….” and that the plaintiff’s speech was “intimately
connected with her job.” Id. at 653 (citation and internal quo‐
tation marks omitted).
Similarly, Kubiak’s speech was intimately connected with
her professional duties. She complained that her co‐worker
treated her inappropriately at work and yelled at her over a
work‐related report. Moreover, her speech was directed to
her supervisor, the director of her office, and the IAD. Just as
the plaintiff’s memorandum in Davis “reflect[ed] the concern
of a conscientious nurse to ensure and contribute to the
smooth functioning of the ER,” Kubiak’s complaints about
Zala reflected an employee’s attempt to improve her work
environment so that she would not be harassed again. Id. As
a result, the district court correctly concluded that Kubiak’s
speech was made as a public employee and not as a private
citizen.
2. Kubiak’s Speech Did Not Address a Matter of Public
Concern
The district court held that Kubiak failed to allege facts
that plausibly suggest that she spoke on matter of public
concern. The court noted that the facts alleged suggest that
Kubiak’s speech was focused on her personal interest in pro‐
tecting herself from harassment by Zala. We agree.
The Supreme Court has defined “public concern” to
mean “legitimate news interest,” or “’a subject of general in‐
10 No. 14‐3074
terest and of value and concern to the public at the time of
publication.’” Meade v. Moraine Valley Cmty. Coll., 770 F.3d
680, 684 (7th Cir. 2014) (quoting City of San Diego v. Roe, 543
U.S. 77, 83–84) (2004) (per curiam)). “Whether an employee’s
speech addresses a matter of public concern must be deter‐
mined by the content, form, and context of a given statement
….” Connick v. Myers, 461 U.S. 138, 147–48 (1983). The Con‐
nick test requires us to look at the overall objective or point
of the speech, as ascertained by those three factors. Kristofek
v. Vill. of Orland Hills, 712 F.3d 979, 985 (7th Cir. 2013). Of the
three factors, content is the most important, but the subject
matter of the speech is not determinative. Bivens v. Trent, 591
F.3d 555, 560–61 (7th Cir. 2010); Gustafson v. Jones, 290 F.3d
895, 907 (7th Cir. 2002). Rather, we must focus on the “par‐
ticular content (as opposed to the subject matter) of the
speech ….” Bivens, 591 F.3d at 561. The motive of the speaker
is relevant as part of the context in which the speech was
made but is not dispositive. Kristofek, 712 F.3d at 985. In sum,
we ask whether the objective of the speech—as determined
by content, form, and context—was to “bring wrongdoing to
light” or to “further some purely private interest.” Id.
Kubiak argues that she made her complaints to her su‐
pervisors and to the IAD out of fear for her own safety as
well as for the safety of others. According to Kubiak, we
should infer that she was motivated to help the public by no‐
tifying her superiors of the fact that Zala posed a threat of
violence, and thus conclude that she spoke on a matter of
public concern. However, the content, form, and context of
Kubiak’s speech convince us that the objective of Kubiak’s
complaints was to further her personal interest in remedying
an employee grievance and that her speech did not address a
matter of public concern.
No. 14‐3074 11
First, as to the content of Kubiak’s speech, Kubiak argues
that speech involving police departments and misconduct of
officers is always a matter of public concern. However, when
analyzing the content of the speech, the broad subject matter
is not determinative, and we must instead focus on the par‐
ticular content of the speech. Bivens, 591 F.3d at 560–61. The
precise content of Kubiak’s speech focused on the work‐
related incident with Zala and on Kubiak’s concerns about
her own safety. Kubiak’s complaint states that she informed
Stratton “of what had occurred,” “that she was afraid that
Officer Zala was going to physically strike her,” and that
“Zala had similar outbursts in the past towards her” (empha‐
sis added). The complaint also states that Kubiak requested a
meeting with Biggane to “discuss the incident” and that Ku‐
biak’s memorandum to Biggane, which initiated the IAD in‐
vestigation, “complain[ed] of Officer Zala’s assault.” Thus,
the particular content of Kubiak’s speech was focused on
Zala’s actions toward Kubiak personally. See Houskins, 549
F.3d at 491–92 (holding that a social worker’s police report
stating that a correctional officer had hit her did not address
a matter of public concern because the report was “nothing
more than [a] personal grievance against [the officer] in or‐
der to have him arrested for striking her”).
Second, the form of Kubiak’s speech also indicates that
the objective of her speech was to air a personal grievance.
Kubiak reported the incident to her superiors, Stratton and
Biggane, and to the IAD. The fact that Kubiak’s complaints
about Zala were directed up the chain of command suggests
that Kubiak’s speech did not address a matter of public con‐
cern. See Bivens, 591 F.3d at 560 (holding that complaints the
plaintiff made directly up the chain of command to his su‐
pervisors were not protected by the First Amendment).
12 No. 14‐3074
Third, regarding the context of Kubiak’s speech, the
grievance arose from Kubiak’s personal confrontation with
Zala while at work. This fact indicates that the speech con‐
cerned a private issue and did not address a matter of public
concern. See id. at 561–62 (noting that an officer’s complaint
about the safety of his working conditions “arose as a result
of [the officer’s] own illness and detailed his own exposure
to environmental lead [at work]” and concluding that the
speech was an “internal grievance [ ] on a matter of purely
private interest”).
Additionally, we consider the motive of the speaker as
part of the context in which the speech was made. Kristofek,
712 F.3d at 985. Kubiak alleges that she was motivated by a
concern for public safety, especially since a jury had previ‐
ously returned a verdict in favor of the plaintiff in a suit
against Zala for battery and excessive force. But the fact that
Kubiak’s complaints were all made internally suggests that
she was primarily motivated by personal concerns. Cf. id. at
984–85 (noting that the plaintiff’s “rather aggressive reac‐
tion” of going to the FBI with his suspicions, in addition to
making internal complaints, suggested that he was not solely
concerned with his personal interest but was also motivated
by a desire to help the public); see also Bivens, 591 F.3d at 561
(“Although the fact that the speech was entirely internal does
not itself render the speech unprotected, this fact does sug‐
gest that the grievance was personal in nature.” (internal ci‐
tation omitted)). In any event, motive is not dispositive. Kris‐
tofek, 712 F.3d at 985. Even accepting Kubiak’s allegations as
true and drawing all reasonable inferences in her favor, as
we are required to do in reviewing a dismissal based on Rule
12(b)(6), Tamayo, 526 F.3d at 1081, Kubiak’s mixed motives
are not enough to show that the objective of her speech was
No. 14‐3074 13
to bring wrongdoing to light, especially given the personal
nature of her complaints.
In sum, the content, form, and context of Kubiak’s speech
show that her speech did not address a matter of public con‐
cern. Because Kubiak did not sufficiently allege facts that
plausibly suggest that she spoke as a private citizen on a
matter of public concern, the district court correctly deter‐
mined that her speech was not entitled to First Amendment
protection. See Garcetti, 547 U.S. at 418. Therefore, the district
court properly dismissed Kubiak’s complaint for failure to
state a claim on which relief can be granted.
B. Conspiracy Claim
Kubiak also claims that Stratton and Biggane entered into
a conspiracy to deprive her of her constitutional rights. Since
Kubiak’s speech was not constitutionally protected, the dis‐
trict court properly dismissed Kubiak’s conspiracy claim.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
Laura Kubiak v. City of Chicago
Court: Court of Appeals for the Seventh Circuit
Date filed: 2016-01-11
Citations: 810 F.3d 476
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