The 7th Circuit Court of Appeals ruled this week that a Chicago police officer’s complaints of verbal assault by a fellow officer while on duty were not protected speech, once again drawing the line between matters of personal versus public interest.
The facts as reported by the court are somewhat compelling for the plaintiff, Laura Kubiak, in her suit against the Chicago Police Department. Kubiak was assigned as a news media liaison, a position which she claims is highly sought after and prestigious. During the course of her work, she apparently prepared a report that angered one of her co-workers who verbally assaulted her with profane and derogatory remarks and made movements as if he was going to hit her. Plaintiff reported this to her supervisors up the chain of command. She also made a complaint with Office of Internal Affairs and sought help from EAP. Internal Affairs “substantiated” her complaint with that office, but the plaintiff claimed that her supervisors never responded to her complaints, despite the corroborating statements of another officer who witnessed the incident. Ultimately, plaintiff and the officer who corroborated her complaint were both transferred back to patrol, a reassignment that she believed was in direct retaliation for her complaints.
Plaintiff filed suit claiming that the Department retaliated against her in violation of her First Amendment rights pursuant to Section 1983, among other claims. Defendants sought dismissal of the action claiming that Officer Kubiak’s statements were not constitutionally protected speech. The court agreed.
The court held that the plaintiff’s complaints were personal in nature and therefore not afforded protection under the law. To establish a claim for retaliation in violation of the First Amendment, a public employee first must prove that the speech in question is constitutionally protected. Constitutionally protected speech requires that the employee speaks as a citizen on a matter of public concern. The court here found that the plaintiff’s complaints about her co-worker were personal in nature, despite her argument that police misconduct is always a matter of public concern and that her job duties did not include making complaints of this nature. The court found that, in fact, an employee, especially a police officer, would be expected to report the inappropriate conduct of a colleague. Therefore, Kubiak’s complaints were not of a personal nature and were not afforded protection.
The ability to take employment action based on statements made by an employee is somewhat counterintuitive. Employee complaints about matters that are connected to their work duties are not constitutionally protected, although may be protected by other laws depending on the subject of the complaint. Before taking action against an employee based on their statements, it is generally wise to consult with an experienced employment attorney to ensure that the proposed action is lawful.
