Kokkinis v. Ivkovich

DIANE P. WOOD, Circuit Judge,

dissenting.

Peter Kokkinis appeared on a segment of a television news program devoted to the question whether the Police Department of the Village of Bridgeview had a problem with sex discrimination. The reporter who introduced the disguised Kok-kinis to the viewers described him as “another officer who did not want to be identified,” and as someone who “feels Officer [Sharon] Walsh is unfairly being chosen for [an] assignment.” In the typical, highly-edited style of news broadcasts, the camera shifted to Kokkinis, and viewers heard him make a negative remark about the way in which the Chief of Police administered the Department. Although Kokkinis’s history with the Department had not been smooth, matters became worse for him as soon as he was identified as the disguised officer. Kok-kinis thought there was a link between his television appearance and the adverse actions taken against him, and he brought this suit under the First Amendment.

The majority concludes that the district court correctly threw the case out on summary judgment for two different reasons: first, it accepts the defendants’ argument that there is not even a disputed issue of material fact about the question whether the televised statements were on a matter of public concern (ie. sex discrimination in the Department), based not on the content or context of the program, but instead on their view of Kokkinis’s motivation for making the statements he did; and second, it concludes as a matter of law that whatever interest Kokkinis may have had in raising public awareness of sex discrimination within the Department was outweighed by the Department’s own interest in maintaining order, discipline, and esprit de corps. In my view, the question whether a speaker has raised a matter of public concern does not turn on the speaker’s motivation, even if motivation may help in interpreting the speech. Looking at the overall record, I find disputed issues of fact on both key questions: whether Kok-kinis suffered adverse job consequences as a result of his appearance on the television show, and whether the Department can show that its interest in disciplining such an officer outweighed any free speech interest the officer may have had. I therefore respectfully dissent.

As the majority explains, in determining whether a public employee’s speech is protected by the First Amendment to the U.S. Constitution, a court must consider two questions: (1) whether the speech addresses a matter of public concern, and (2) whether the plaintiffs interest in speaking is outweighed by the state employer’s interest in promoting the efficiency of the public services it performs. Waters v. Churchill, 511 U.S. 661, 668, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994); Button v. Kibby-Brown, 146 F.3d 526, 529 (7th Cir.1998). The answer to the first question turns on whether the speech relates to a matter of political, social, or other concern to the community, or merely raises a personal grievance of interest only to the employee. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). For purposes of this important threshold inquiry, a court must look at the “content, form, and context of [the contested] state*848ment, as revealed by the reeord as a whole.” Id. at 147-48, 103 S.Ct. 1684. Of these three, we have stressed that content is the most important. See Cliff v. Board of Sch. Comm’rs of the City of Indianapolis, 42 F.3d 403, 409 (7th Cir.1994). While motive has some relevance, particularly in understanding the context of a remark, it is not a litmus test, and it must be considered in relation to the content of the speech itself. Id.; see also Berg v. Hunter, 854 F.2d 238, 242-43 (7th Cir.1988).

The majority does not take issue with the well-established principle that sex discrimination in public employment is a matter of public interest. Maj. op. at 844. See Marshall v. Allen, 984 F.2d 787, 795 (7th Cir.1993); see also Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412, 419 (7th Cir.1988) (“Sex discrimination is a matter of public concern; obviously debate over it is protected by the First Amendment.”); Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir.1987) (“[I]t is undoubtedly true that incidences of sexual harassment in a public school district are inherently matters of public concern .... ”). It concludes, however, that Kokkinis is not entitled to a trial on his allegations that his comments were about this important public issue, and that his speech gave rise to his problems. It is there that our paths diverge. Material facts are disputed here, most notably the central question of how to interpret Kokkinis’s remarks on the fateful' news broadcast. Understood one way, perhaps Kokkinis was talking about something entirely extraneous; but understood in another (especially given the overall context of the program), a reasonable finder of fact could also conclude that he was talking about sex discrimination in a way that the Chief found embarrassing. In order to conclude that the undisputed facts support only one outcome, the majority has made Kokkinis’s purported motive the dispositive factor, contrary to our own case law and to the more comprehensive analysis that Connick requires. See Zorzi v. County of Putnam, 30 F.3d 885, 896 (7th Cir.1994); Berg, 854 F.2d at 242.

The fact that an employee speaks out in part for personal reasons will not doom her case if other factors indicate that her speech was also intended to call attention to problems of public concern. Button, 146 F.3d at 529; Marshall v. Porter County Plan Comm’n, 32 F.3d 1215, 1219 (7th Cir.1994); Berg, 854 F.2d at 242. Indeed, we have acknowledged that satisfied employees tend to be less critical of their employers in general, while those inclined to criticize their employers publicly frequently are involved in personal disputes with them as well. Marshall, 32 F.3d at 1219. It is plain on this record that Kok-kinis and the Chief of Police were at odds with one another, and, given that animosity, it is probable that the prospect of criticizing the Chief on television appealed to Kokkinis. But the possibility that Kokkin-is’s motive for speaking was vindictive should not doom his retaliation claim if the objective content of the speech, taken in context, reveals that it was about a matter of public concern (or, more accurately, that a finder of fact could so conclude).

The majority has adequately documented the difficulties Kokkinis had experienced within the Department, and I have nothing to add to that discussion. Presenting the facts in the light most favorable to Kokkinis, however, it is also plain that he had decided to become involved in the sex discrimination debate. On May 17, 1995, Cindy Hernandez, a reporter from a local news affiliate, approached Kokkinis to request an interview. Hernandez was preparing a news segment regarding allegations of sex discrimination within the Bridgeview Police Department, and, in particular, reports that Chief Ivkovich had discriminated against one of Kokkinis’s fellow officers, Officer Sharon Walsh, because she is a woman. Kokkinis wanted to cooperate, but he was afraid that Chief Ivkovich would retaliate against him for speaking out. He therefore agreed to the interview on the condition that his voice and identity be disguised. He told Her*849nandez that he believed Walsh was being treated unfairly and he wanted to help her cause. He added that he felt the public should know what was going on inside the Department.

Kokkinis’s interview was broadcast on that evening’s five o’clock news as part of a longer segment focusing on Walsh’s allegations. The segment opened with a graphic consisting of a badge, a map of Bridge-view, and the phrase “Sex discrimination?” A reporter introduced the story by explaining that Walsh was the only female police officer in Bridgeview and that she had filed charges against her boss, Chief Ivkovich, alleging discrimination based on her sex. The broadcast then shifted to Hernandez, who was standing outside the Bridgeview Police Department. Hernandez’s portion of the report included comments by Walsh’s attorney and a video clip showing Walsh with her children. After summarizing Walsh’s grievances, which consisted primarily of her complaint that she had been forced to accept an assignment that male officers were routinely permitted ,to reject, Hernandez introduced Kokkinis. She described him as “another officer who did not want to be identified” and who “feels Walsh is unfairly being chosen for the assignment.” Then Kok-kinis, his face hidden by dark glasses and a ski mask, appeared, saying: “If they [the pubiic] really knew what was going on, I think they would be shocked, because they are clueless as to what is going on. Everybody is so afraid of the Chiefs vindictiveness. If you even dare to question any decision he makes, basically your life will be made miserable.”

The majority assumes that the only way anyone could understand Kokkinis’s remarks is as a generic expression of “his displeasure with the Chiefs policies.” Maj. op. at 844. It then asserts that “Kok-kinis’ participation in the interview was not designed to address a matter of public concern.” Id. While this may be one way to look at the incident, it is not the only way. Indeed, the context points much more strongly to the theory that Kokkinis had decided (for reasons good or bad) to support Walsh’s charges. Under cases like Cliff, Berg, and Zorzi, we must not place dispositive weight on Kokkinis’s motivations. Especially at this stage of the proceedings, it does not matter if Kokkinis was not particularly concerned about whether Walsh had been a victim of discrimination when he participated in the interview, or if he was simply taking advantage of an opportunity to harm the Chiefs reputation. Whatever Kokkinis may have been privately thinking at the time, his statements to Hernandez indisputably were uttered in response to questions about Walsh’s allegations. Moreover, the specific statements themselves could be seen as support for Walsh’s allegations that the environment in which she worked was a hostile one. Kokkinis’s argument does not depend on a finding that he had the “right to say anything that he wanted to about the Chief’ because the context was a news broadcast. Id. Instead, he simply points out that the personal gratification he arguably received from the interview did not weaken its link to legitimate matters of public concern.

Turning to an alternate ground for decision, the majority also concludes that, even if it were to find that Kokkinis’s speech addressed a matter of public concern, it would nonetheless affirm the grant of summary judgment on the ground that the claim cannot survive the Pickering/Connick balancing analysis. See Pickering v. Board of Educ. of Township High Sch. Dist. 205, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick, 461 U.S. at 150-54, 103 S.Ct. 1684. Applying the analysis outlined in Caruso v. DeLuca, 81 F.3d 666 (7th Cir.1996), they find as a matter of law that the potential for Kok-kinis’s remarks to disrupt and embarrass the Department justified suppressing them. They find particularly persuasive the fact that this dispute arose in a police department, where there is an asserted special need for order, discipline, morale, *850and obedience to superior officers. See Breuer v. Hart, 909 F.2d 1035, 1042 (7th Cir.1990); Tyler v. City of Mountain Home, 72 F.3d 568, 570 (8th Cir.1995).

Certainly, a police department where all of the subordinate officers hold their chief in high regard is more desirable in terms of both efficiency and public safety than a department in which officers either openly or secretly question the chiefs authority. Nevertheless, this truism should not serve to insulate police departments from scrutiny by the very public they are bound to serve. Many times, the information that is of the greatest public concern is also the most embarrassing for public officials and has the greatest potential to “disrupt” their work. Newspapers regularly run stories about race discrimination, sex discrimination, and corruption within police departments, and it is safe to say that the chiefs of those departments find these stories embarrassing, detrimental to morale, and disruptive to chains of command. But that is the price of free speech, in the final analysis, and the First Amendment is premised on the theory that society is better off in the long run when such matters can be exposed and remedied.

Much the same arguments were made in Pickering, where the Court accommodated the conflicting interests at stake with its balancing test. In this court, Breuer is to the same effect. The record in that case revealed a reckless campaign to encourage insubordination and to disrupt the internal operations of a police department. See 909 F.2d at 1041-42. In contrast, the speech for which Kokkinis claims to have been punished relates to charges of discrimination Walsh filed with the Illinois Human Rights Commission, which she pursued actively through appropriate legal channels. In addition, Kokkinis spoke to a reporter, who approached him while he was off duty and not present on department grounds, on a specific matter of public concern. Under the majority’s approach, it is difficult to imagine a scenario in which a police officer could feel comfortable speaking to the media about misconduct by members of his department without fear of reprimand, or even termination. Even in the best of circumstances, it is often hard to justify summary judgment when the governing law requires a balancing test; here, I find it impossible.

Because I believe a trier of fact could find that Kokkinis’s statements related to a matter of public concern, and I cannot find as a matter of law that a threat to the functioning of the department outweighed the interests of Kokkinis and the public in the airing of these views, I respectfully dissent from the court’s judgment.