Morales v. Jones

ROVNER, Circuit Judge,

concurring in part and dissenting in part.

A jury found that these officers were reassigned to undesirable posts in retaliation for their speech. After Garcetti, the first question we must answer is whether the speech at issue was “made pursuant to the employee’s official duties.” Garcetti 126 S.Ct. at 1955. But before we answer that question, we must discern exactly what speech is at issue. Green v. Board of County Comm’s, 472 F.3d 794, 799 (10th Cir.2007) (as a starting point in a Garcetti analysis, the court must determine what speech, and conduct are at issue). As the majority notes, the speech at issue for Detective Kolatski was his conversation with Officer Link and Mr. Mullarkey in the Gold Rush restaurant, and his subsequent conversation with Lieutenant Morales on the way back to the police station after picking up dinner.1 These discussions both occurred on a single day in April 1998. In each instance of speech, Detective Kolatski was either investigating a possible crime or conveying information about a possible crime to other officers who were more intimately involved in the investigation and arrest of Vincent Ray. The defendants demoted Detective Kolat-ski only a few days later and a jury found that the demotion was retaliation for his speech. Because I agree that Detective Kolatski’s speech was made pursuant to his official duties, I concur in the majority’s holding that his speech was not protected by the First Amendment. The Supreme Court remarked that “[ejxposing governmental inefficiency and misconduct is a matter of considerable significance.” Garcetti 126 S.Ct. at 1962. Detective Ko-latski was performing his job admirably at the time of these events, and although his demotion for truthfully reporting allegations of misconduct may be morally repugnant, after Garcetti it does not offend the First Amendment. In Garcetti after all, the Court wished to avoid a rule that would mandate “judicial oversight of communications between and among government employees and their superiors in the course of official business.” 126 S.Ct. at 1961.

The case of Lt. Morales is another story. The speech at issue for Lt. Morales consisted primarily of his discussions with the district attorney’s office and the deposition he gave many months later in an unrelated civil case. We review de novo the district court’s denial of the defendants’ motion for judgment as a matter of law. Erickson v. Wisconsin Dept. of Corr., 469 F.3d 600, 601 (7th Cir.2006); Davis v. Wisconsin Dept. of Corr. 445 F.3d 971, 975 (7th Cir.2006); Byrd v. Illinois Dept. of Pub. Health, 423 F.3d 696, 712 (7th Cir.2005). In conducting that review, we must view the facts in the light most favorable to Lt. Morales, the party opposing the motion, and we must disregard all evidence favorable to 'the moving parties that the jury was not required to believe. Erickson, 469 F.3d at 601; Davis, 445 F.3d at 975. We may overturn a jury verdict in favor of Lt. Morales only if no reasonable jury could have found for him. Erickson, 469 F.3d at 601; Davis, 445 F.3d at 975. See also Byrd, 423 F.3d at 712 (in reviewing a district court’s decision to deny a Rule 50 *600motion, we must review all of the evidence in the record, drawing all reasonable inferences in favor of the nonmoving party, and assure that the jury was presented with a legally sufficient basis to support the verdict).

Recall' that Lt. Morales’s discussions with the district attorney’s office arose when he attempted to deliver Vincent Ray’s incomplete arrest report to that office. The arrest report was missing the first page of the so-called “pedigree report” that identified the Deputy Chief of Police, Monica Ray, as Vincent Ray’s sister and listed her address as Milwaukee County. The evidence at trial demonstrated that this rather vague address was due to Monica Ray’s directive not to list her name or address on the report and to change Ray’s address to that of “a fucking light pole” if necessary. R. 145, at 723. The officers who were attempting to comply with the directive of the Deputy Chief while simultaneously trying to avoid filing a false report decided that “Milwaukee County” was a specific enough address for both Ray and the light pole. R. 145, at 727. All of Lt. Morales’s comments about the Chief and Deputy Chief to the district attorney came in response to questions about the missing page of the pedigree report. At the time, Lt. Morales was on duty, delivering a report he was obliged to deliver, and assisting the district attorney in Vincent Ray’s prosecution. However, as Lt. Morales testified, although he was obliged to deliver the report and assist in Ray’s prosecution, he was not obliged to report his suspicions about why the report page was missing. R. 144, at 628, 641, 646. In disclosing his suspicions, he went beyond his work duties.

The majority relies in large part on an assumption that Lt. Morales was obliged under department policy to report all potential crimes and thus was speaking pursuant to his job duties when he reported possible misconduct by the Chief and Deputy Chief to the district attorney. But Lt. Morales testified that, although that was the department rule, in practice, he had considerable discretion in determining whether to report or pursue investigation of a potential crime. See R. 143, at 500-03. At trial, Lt. Morales was asked, “In the course of conducting an investigation, what kind of discretion do you as a police officer have to do the investigation? In other words, if you come upon information, what discretion do you have to even investigate?” He answered, “I have discretion not tó investigate it.” R. 143, at 501-02. Lt. Morales also testified that he is “not duty bound” to investigate when he receives information about potential wrongdoing. R. 143, at 502. Rather, he has the discretion to weigh the facts at hand, and in light of other investigations he is conducting, may elect not to pursue the information further. R. 143, at 502-03. Thus, when he saw that Vincent Ray failed to show up for three scheduled meetings that had been reported to commanding officers, when he learned about Mr. Mullarkey’s allegations that the Chief and Deputy Chief had been present with Vincent Ray at a time they both knew he was wanted on warrants, and when he heard the Deputy Chiefs directive to keep her name and address off the pedigree report, he was not obliged to report his suspicion that the missing report page was related to these events. In short, he had the “option to ignore it.” R. 144, at 549. See also R. 144, at 551 (“Again, I had the discretion. I could have ignored all of this.”). In fact, he testified that, as a police officer, he could not do anything with this information or his suspicions:

I couldn’t do anything with it. I’m a police officer at that time. The allegations are against the third person in command and the Chief of Police. I had *601to give it to someone outside of the police department.

R. 144, at 547. The Chief himself testified that he was unsure what he would have done if he had been in Lt. Morales’s position, where someone had told him the Chief of Police had possibly been involved in criminal activity:

[W]hat would I do? I don’t know. I ask myself that. Would I go back and tell somebody within the police department? No.
I think if the officer felt that that was the placé that he needed to reveal any information he had, the District Attorney’s Office was an appropriate place for it to happen. The District Attorney has investigators that have arrest powers that they could send out to investigate. Obviously, the District Attorney, the Deputies, can do some investigation themselves or inquiries themselves.

R. 143, at 365.

The Garcetti majority was not faced with the situation we have here and admittedly gave us no “comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate.” Garcetti, 126 S.Ct. at 1961. The Court did offer some hints on how this analysis should be performed. The Court instructed that “[t]he proper inquiry is a practical one.” Garcetti, 126 S.Ct. at 1961. The Court rejected the notion that we were limited to job descriptions in determining the nature of official duties because “[fjormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.” Garcetti 126 S.Ct. at 1962. Such appears to be the case here where the departmental rule differed from the manner in which the officers actually performed their duties. Because the evidence that the jury was entitled to believe on this point contradicts the majority’s - assumption, I would not rely on Lt. Morales’s supposed duty to report all potential wrongdoing in determining whether this speech was protected by the First Amendment.

There are other hints in Garcetti that help dictate the analysis here. The Court was concerned, for example, that “[ojfficial communications have official consequences,” and that “[sjupervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission.” Garcetti, 126 S.Ct. at 1960. The Court opined that employees may receive protection for expressions made at work rather than publicly, and that it also is not dispositive that the speech concerns the subject matter of the plaintiffs job. 126 S.Ct. at 1959. In Garcetti the Court found that the significant factor was that Ceballos’ memo was written pursuant to his official duties:

Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer .control over what the employer itself has commissioned or created.

Garcetti 126 S.Ct. at 1960. The Court noted that Ceballos did not act as a citizen when he conducted his daily professional activities; rather when “he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee.” 126 S.Ct. at 1960. The Court also characterized Ceballos’s memo as the “work product” of a government employee. The Court commented that government *602employees who make public statements outside the course of performing their duties retain First Amendment protection because that is the kind of activity engaged in by persons who do not work for the government. Thus, a letter to a local newspaper is protected as is a discussion of politics with a co-worker. Garcetti 126 S.Ct. at 1961.

We must consider, then, whether Lt. Morales’s comments to the district attorney constitute “work product,” whether his words owed their existence to his professional responsibilities, whether it is speech that his employer commissioned or created, or whether it is the kind of activity engaged in by persons who do not work for the government. Lt. Morales certainly became aware of the facts that he reported and formed the opinions that he expressed because of his work in investigating and arresting Vincent Ray. But for his job duties, Lt. Morales would not have known that Vincent Ray failed to show up for three meetings that had been reported up the chain of command; he would not have been aware of Mr. Mullarkey’s allegations; he would not have been privy to Monica Ray’s directive to keep her name and address off the pedigree report. The fact that his speech concerned the subject matter of his employment is not dispositive, though, because in Garcetti the Court reaffirmed the principle that the First Amendment protects some speech related to the speaker’s job, at least in part because front line workers like teachers (as was the ease in Pickering) or police officers (as we have here) are, as a class, most likely to have informed and definite opinions about matters of public concern related to their jobs. Garcetti 126 S.Ct. at 1959 (citing Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979), and Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will County, Ill., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). When he spoke to the district attorney, Lt. Morales was on duty and responding to questions about papers he was obliged to present to the state’s attorney as part of his official job duties. However, because Lt. Morales was not required, as a practical matter, to report these allegations, this is a close case under Garcetti The information that Lt. Morales conveyed was work product only in the sense that he learned the information while at work. But the work he was paid to perform that day, to paraphrase Garcetti, was the prosecution of Vincent Ray. Both government employees and persons who do not work for the government may report possible wrongdoing or crimes by government officials. In this case, reporting possible wrongdoing was beyond the scope of Lt. Morales’s required job duties.

Construing the facts in favor of Lt. Morales, he may have begun his conversation with the district attorney as a police officer, but when he went beyond his obligations as a police officer and decided to disclose his suspicions about the Chief and Deputy Chief, he was speaking to the district attorney as a witness to public corruption, in the same fashion any citizen who witnessed suspicious conduct by a government official might speak. See Freitag v. Ayers, 468 F.3d 528, 545 (9th Cir.2006), cert. denied, — U.S. —, 127 S.Ct. 1918, 167 L.Ed.2d 567 (2007) (where it was not part of jail guard’s official tasks to complain to a senator or inspector general about the failure of jail officials to respond to charges of sexual harassment at the jail, the guard was speaking as a citizen when she exposed official malfeasance to broader scrutiny and thus her speech was protected by the First Amendment). In Garcetti the Supreme Court noted that “when a public employee speaks pursuant to employment responsibilities *603... there is no relevant analogue to speech by citizens who are not government employees.” 126 S.Ct. at 1961. In this case, unlike Garcetti there is a relevant analogue to speech by citizens who are not public employees. Any citizen may report suspicions of public corruption to the district attorney’s office, which, as I noted above, had the ability and the authority to investigate allegations of wrongdoing at the highest levels of the police department. A reasonable jury could find, and I would find, on balance, that Lt. Morales spoke as a private citizen when he conveyed his suspicions to the district attorney and his speech was therefore protected by the First Amendment.

But even if the discussions with the district attorney were unprotected, I am not convinced that the jury found those discussions to be the sole, or even the primary, motivating factor in the defendants’ retaliation. In fact, it is highly unlikely that the jury relied on those stale conversations as the cause of Lt. Morales’s demotion. The discussions with the district attorney occurred in April 1998 and no action was taken against Lt. Morales until approximately nine months later, shortly after he gave a deposition in an unrelated civil case. Approximately seven months after Lt. Morales met with the district attorney, in December 1998, he and Officer Link gave depositions in the case of Kuchenreuther v. Jones. In Kuchenreuther, another officer sued Chief Jones for retaliating against her for exercising her First Amendment rights. At his deposition, Lt. Morales testified about the Mullarkey incident and stated that he believed Detective Kolatski was transferred as a result of events connected with the arrest of Vincent Ray and the aftermath of the Mullarkey allegations. Lt. Morales was transferred approximately six weeks after that deposition. Officer Link, who was not a plaintiff here, also was transferred (albeit temporarily) to a considerably less desirable position shortly after the depositions.

The key question, then, is whether that deposition testimony was given pursuant to Lt. Morales’s official duties. The district court found that Lt. Morales’s deposition could not be tied to any of his required duties as a police officer. The majority does not address that finding by the district court and thus does not address whether and to what extent we should defer to the district court’s fact-finding. Even assuming that we need not defer to the district court at all, though, I would find, as the majority has found, that Lt. Morales’s deposition was given as a citizen and not pursuant to official duties.

The defendants make no attempt to demonstrate that testifying at a civil deposition for a co-worker’s lawsuit was part of Lt. Morales’s job duties. Nor could they. There is nothing in the record below to suggest that the deposition testimony was work that Lt. Morales was expected to perform as part of his formal or informal job duties, that it was conducted pursuant to his job duties or at his employer’s behest, that it was work product of the police department, that it-was official speech, or that it was one of the tasks he was paid to perform. Although the subject matter of the deposition related to information Lt. Morales learned on his job, his testimony owed its existence not to his job but rather to a subpoena in a lawsuit. See Fairley v. Ferrmaint, 482 F.3d 897, 902 (7th Cir.2007). In Fairley, county jail guards brought § 1983 claims against the county sheriff and other guard personnel, claiming they were harassed for exercising their First Amendment right to speak out against abuse of prison inmates. 482 F.3d at 899. The defendants sought to invoke Garcetti for the proposition that the plaintiffs’ speech in the workplace is not protected *604by the First Amendment. We noted that, under the plaintiffs’ theory, the “defendants reacted adversely to two kinds of speech: not only statements made as part of their duties at work (the kind of speech to which Garcetti applies) but also to testimony that plaintiffs gave in inmates’ suits.” Fairley, 482 F.3d at 902. Because “[assistance to prisoners and their lawyers in litigation is not part of a guard’s official duties,” we needed to determine what part of the defendants’ retaliation could be traced to the plaintiffs’ litigation activity as opposed to events at work. 482 F.3d at 902. Fairley applies directly to the circumstances we have here, where it was not part of Lt. Morales’s job duties to assist his fellow officer in her suit against the Chief.

Because they cannot demonstrate that the deposition was given pursuant to Lt. Morales’s job duties, the defendants rely entirely on an argument that deposition testimony about unprotected speech does not constitute protected speech. Unlike the majority, I would find that the underlying speech was protected but I will assume for the sake of argument that it was not. The defendants rely on Morris v. Crow, 142 F.3d 1379 (11th Cir.1998), and Kirby v. City of Elizabeth City, N.C., 388 F.3d 440 (4th Cir.2004), for the proposition that Lt. Morales’s deposition testimony was unprotected speech. Neither of these cases supports the defendants’ position. Morris was an employee of the sheriffs department who was called upon to investigate an accident in which an unmarked sheriffs car, en route to an emergency call, collided with a citizen’s vehicle, killing the citizen. Morris investigated the accident and wrote an official report where he concluded that the officer driving the unmarked squad car was traveling more than 130 mph in a 50 mph zone without using his blue warning lights, in contravention of department policy. After Morris filed that report, the citizen’s personal representative brought a wrongful death suit against the sheriffs department and Morris was deposed in connection with that suit. At the deposition, he reiterated the allegations of his report and opined that if the officer had been traveling the posted speed limit, there was a great possibility the accident would not have occurred. Morris, 142 F.3d at 1381.

The appeals court found that the accident report was generated pursuant to Morris’s official and customary duties. In that respect, the court appeared to have anticipated Garcetti. But the court then distinguished Morris’s case from two others that closely resemble the facts we have here in Lt. Morales’s case. See Morris, 142 F.3d at 1382, citing Fikes v. City of Daphne, 79 F.3d 1079 (11th Cir.1996), and Warnock v. Pecos County, 116 F.3d 776 (5th Cir.1997). In Fikes, an officer who had no obligation to do so reported two instances of misconduct by fellow officers. In that case, the Morris court found, the plaintiff was not speaking pursuant to work duties but was trying to bring to light actual or potential wrongdoing on the part of government officials. In Wamock, a county auditor reported a number of violations of law or fiscal improprieties committed by county officials to her superiors and to appropriate law enforcement officers. Although Warnoek generated her report in the normal course of her duties as an auditor, the Morris court distinguished her case because the plaintiffs purpose was to raise issues of public concern. Morris, on the other hand, wrote his report not to bring to light any wrongdoing but rather to accurately report an accident in the course of his employment. The court found that Morris’s deposition could not “be characterized as an attempt to make public comment on sheriffs office policies and procedures, the internal work*605ings of the department, the quality of its employees or upon any issue at all.” Morns, 142 F.3d at 1382. The Morris court thus concluded that the “mere fact that Morris’s statements were made in the context of a civil deposition cannot transform them into constitutionally protected speech.” 142 F.3d at 1383. Like Fikes, Lt. Morales was not obliged to report possible wrongdoing by the Chief and Deputy Chief. And like both Fikes and Warnock, Lt. Morales was attempting to bring to light issues of public concern. When read in whole, the Morris court found that Morris’s accident report was unprotected because it was an official report made in the normal course of his duties, and his deposition was unprotected because he was not attempting to bring to light matters of public concern. It is thus difficult to see how Morris helps the cause of the defendants in the instant case where Lt. Morales was not obliged to report the wrongdoing and was in fact trying to bring to light a matter of grave public concern. Under Morris, a pre-Gareeííi case, Lt. Morales’s speech would be protected because he had no work-related duty to speak and he was motivated by a desire to bring to light possible government corruption. I note, however, that the Morris court’s use of the speaker’s motive as a factor that overrides the citizen/employee distinction cannot survive Garcetti. In sum, Morris does not aid the defendants’ cause, and I also believe that Morris, at least in part, is no longer good law.

As for Kirby, another pre-Garcetti case on which the defendants rely, the issue was not whether the plaintiff police officer was speaking as a citizen but rather whether his speech addressed a matter of public concern. Kirby, 388 F.3d at 446-47. Kirby testified at a hearing before a City Personnel Appeals Committee regarding a grievance filed by a fellow officer. That officer had been disciplined for damaging his police car by failing to properly maintain it. Kirby testified about the maintenance history of the fellow officer’s car and provided an opinion about the maintenance and driving habits of that officer. 388 F.3d at 443. The court found that Kirby’s speech did not involve a matter of public concern but rather related only to the interests of the officers involved. Moreover, the court found, the fact that Kirby’s testimony was given in a public hearing did not transform it into a matter of public concern. No one could argue in the instant case that allegations of wrongdoing against the two highest ranking members of the Milwaukee Police Department did not touch on a matter of public concern. Kirby is irrelevant to the issue before this court. See also Green v. Barrett, 226 Fed.Appx. 883 (11th Cir.2007).2

Because I would find that Lt. Morales’s speech was protected in its entirety by the First Amendment, I will briefly address the question of qualified immunity. I say briefly because it should be obvious to anyone and certainly to the Chief and Deputy Chief of Police that it is illegal to retaliate against a person for reporting a *606possible crime or for testifying under oath in a deposition as part of a judicial proceeding. In the federal system, we call such retaliation “witness tampering” or “obstruction of justice,” and these principles were established long before the events in this case. See Fairley, 482 F.3d at 902. As we noted in Fairley, “no public official could think the conduct proper.” Id. I would therefore find that the defendants were not entitled to qualified immunity. For the same reason, I would not disturb the award of punitive damages.

If, as the majority finds, Lt. Morales’s discussion with the district attorney was not protected, I would still affirm the judgment rather than grant a new trial. First, given that the demotions of both Lt. Morales and Officer Link came hot on the heels of their depositions, it is reasonable to assume that the jury found that the defendants demoted Lt. Morales because of his recent deposition and not because of a conversation he had with the district attorney some nine months earlier. As I noted above, we may overturn a jury verdict in favor of Lt. Morales only if no reasonable jury could have found for him. Erickson, 469 F.3d at 601; Davis, 445 F.3d at 975. A reasonable jury could and did find in favor of Lt. Morales and I would affirm that judgment.

Second, the majority’s decision to remand Lt. Morales’s case for a new trial gives the defendants a gift for which they did not ask. In their request for relief on appeal, the defendants asked that we reverse the decision of the trial court and hold as a matter of law that all of the relevant speech is not protected by the First Amendment. In the alternative, the defendants asked that we find that they are entitled to qualified immunity. And finally, if we determined that the speech was protected and that they were not entitled to qualified immunity, the defendants asked that we reverse the award of punitive damages. At no time in the appeal did the defendants request a new trial. At no time did they argue that they would be entitled to a new trial if the jury was presented with evidence of both protected and unprotected speech. The majority states that we do not know whether the jury found the retaliation was due to protected speech, unprotected speech or a combination of both. Even if the majority is correct that some of the speech was unprotected, that uncertainty is irrelevant. Having failed to make such an argument, the defendants waived any claim for a new trial on that basis. See Kramer v. Banc of Am. Sec. LLC, 355 F.3d 961, 964 n. 1 (7th Cir.2004) (the absence of any supporting authority or development of an argument constitutes a waiver on appeal); Hildebrandt v. Illinois Dep’t of Natural Res., 347 F.3d 1014, 1025 n. 6 (7th Cir.2003) (when a party presents no argument in its brief with respect to a particular claim, any arguments with respect to that claim are waived); Palmer v. Marion County, 327 F.3d 588, 597-98 (7th Cir.2003) (holding that claims not argued on appeal are abandoned, and collecting cases). The defendants took an all or nothing approach in their appeal of the judgment in favor of Lt. Morales; they are entitled to nothing. For these reasons, I concur in the judgment with respect to Detective Kolatski and respectfully dissent from the judgment with respect to Lt. Morales.

. At the time of the events at issue here, Detective Kolatski and Lieutenant Morales both held the rank of police officer. They received their respective promotions prior to the time of trial and I will use their more current designations here.

. In that case, a jailer was called to testify pursuant to her official duties, at the behest of her employer, in the normal course of work. The court found that the jailer’s testimony was therefore not protected by the First Amendment. Her testimony was her work that day. Lt. Morales was not called to testify pursuant to his official duties. He had no work-related obligation to testify. There is no evidence in the record indicating that Lt. Morales testified at that deposition at the behest of the Chief or Deputy Chief. And, finally, there is no evidence that the deposition was given in the normal course of Lt. Morales’s work. On the contrary, he was essentially testifying as a witness in a civil lawsuit unrelated to his duties as a police officer.