### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 2976

B RIAN R OAKE

, Plaintiff

‐ Appellant

,

v.

F OREST P RESERVE D ISTRICT OF C OOK C OUNTY

, et al.,

Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 15

‐ cv

‐ 08949

— Harry D. Leinenweber

, Judge

.

____________________

A RGUED J ANUARY 5, 2017

— D ECIDED F EBRUARY 17, 2017

____________________

Before W OOD

, Chief Judge

, and M ANION and W ILLIAMS

, Cir

‐

cuit Judges

.

M ANION

, Circuit Judge

. Brian Roake, a former police officer

for the Forest Preserve District of Cook County, was ostensi

‐ bly disciplined for drinking alcohol at work. He responded

with this lawsuit under 42 U.S.C. § 1983, alleging unlawful

retaliation under the First Amendment. He also asserted a

Fourteenth Amendment due process claim based on reputa

‐

tional harm. The district court dismissed Roake’s action under2 No. 16

‐ 2976

Rule 12(b)(6) for failure to state a plausible claim to relief. We

affirm.

I. BACKGROUND

Plaintiff Brian Roake was a police officer for the Forest Pre

‐

serve District of Cook County, Illinois. His troubles began on

December 31, 2013, when he brought some champagne to a

Forest Preserve police station to celebrate the New Year.

Roake says that he was off duty at the time and that he got

permission from a sergeant (who was present at the celebra

‐ tion) to bring the champagne. Roake and others drank the

champagne at the station.

In January 2014, the department initiated disciplinary pro

‐ ceedings against Roake for his participation in the New Year’s

Eve gathering. When Roake was interviewed about the inci

‐

dent, the interviewing officer assured him that he would not

lose his job but “might be suspended for one or two days at

the most.” 1 On February 7, 2014, the disciplinary proceedings

culminated in what Roake calls a “pre

‐ disciplinary/pre

‐ termi

‐

nation hearing.” Roake alleges that the hearing officers “up

‐

held the charges” against him, though he does not say what

the charges were. At that point, Roake says he saw the “hand

‐ writing on the wall” and so resigned his job. He also states,

with no supporting facts, that he “would have been termi

‐

nated” if he had not resigned.

1 This is consistent with Roake’s allegation that the other employees

involved in the New Year’s celebration generally received only a written

reprimand or a one

‐ day suspension. Only one employee—apparently the

sergeant who gave Roake permission to bring the alcohol—was termi

‐

nated.No. 16

‐ 2976 3

Roake claims that his employer used his involvement in

the New Year’s Eve party as a mere pretext for disciplining

him. The real reason he was disciplined, according to Roake,

was because he had previously reported to his employer two

instances of official misconduct within the police department.

First, in October 2013, he reported that a fellow officer had

engaged in racial profiling. Roake mentioned the matter again

during his disciplinary proceedings in January 2014, when he

complained that it wasn’t fair that he was being investigated

while the officer who engaged in racial profiling was not.

Roake’s second report, made around February 6, 2014, in

‐

volved a fellow officer whom Roake believed had been un

‐ justly disciplined. Earlier that month, the officer had con

‐

tacted Roake about a woman and children who were in the

Forest Preserves after hours in below

‐ freezing weather. Roake

responded that the officers were “mandated reporters” to the

Department of Children and Family Services (DCFS), so the

officer called DCFS to report the situation. The officer was

later written up in connection with the incident, 2 and Roake

complained to his employer that the write

‐ up was unlawful.

After resigning in February 2014, Roake applied for jobs

in other police departments. He alleges that officials of the

Forest Preserve department told certain prospective employ

‐

ers that he had consumed alcohol while on duty and was not

welcome to reapply there. Roake claims that this damaged his

professional reputation and made it more difficult for him to

find work.

2 Roake alternately alleges that the officer was disciplined for report

‐ ing to DCFS and “for contacting Roake.”4 No. 16

‐ 2976

In October 2015, Roake filed this § 1983 action against the

Forest Preserve District of Cook County and several officers

who were involved in the disciplinary proceedings against

him. He claims that the defendants violated the First Amend

‐

ment by disciplining him in retaliation for reporting police

misconduct. He also claims that the defendants violated his

Fourteenth Amendment due process rights by tarnishing his

reputation among prospective employers. The district court

concluded that Roake failed to state a plausible claim for relief

and granted the defendants’ motion to dismiss under Federal

Rule of Civil Procedure 12(b)(6). 3 Roake appeals.

II. DISCUSSION

We review the grant of a motion to dismiss de novo, con

‐ struing all well

‐ pleaded facts in the light most favorable to the

nonmoving party. Huri v. Office of the Chief Judge of the Circuit

Ct. of Cook Cty.

, 804 F.3d 826, 829 (7th Cir. 2015). To survive a

motion to dismiss, the complaint must “state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly

, 550 U.S.

544, 570 (2007). “A claim has facial plausibility when the plain

‐

tiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the mis

‐

conduct alleged.” Ashcroft v. Iqbal

, 556 U.S. 662, 678 (2009).

A. First Amendment Retaliation Claim

To prevail on a First Amendment retaliation claim, a plain

‐

tiff must show that the government took an adverse action

against him because he engaged in constitutionally protected

speech. George v. Walker

, 535 F.3d 535, 538 (7th Cir. 2008). A

3 Roake also brought a state

‐ law claim under the Illinois Whistle

‐

blower Act, but that claim is not before us on appeal.No. 16

‐ 2976 5

public employee’s speech is constitutionally protected only

when he speaks “as a citizen” on matters of public concern.

Garcetti v. Ceballos

, 547 U.S. 410, 417 (2006). A public employee

does not speak “as a citizen” when he speaks “pursuant to

[his] official duties.” Id. at 421. Thus, public employees have

no cause of action under the First Amendment when they are

disciplined for speaking pursuant to their official duties, even

if the speech is on a matter of public concern. Spiegla v. Hull

,

481 F.3d 961, 965 (7th Cir. 2007) (“ Garcetti made clear that pub

‐

lic employees speaking ‘pursuant to their official duties’ are

speaking as employees, not citizens, and thus are not pro

‐

tected by the First Amendment regardless of the content of

their speech.”). The “determination of whether speech is con

‐ stitutionally protected is a question of law.” Kubiak v. City of

Chic.

, 810 F.3d 476, 481 (7th Cir. 2016).

Roake alleges that the defendants retaliated against him

for complaining about racial profiling and unlawful discipli

‐

nary action within the police force. But Roake has not plausi

‐ bly alleged that he made these complaints as a citizen rather

than as a public employee speaking pursuant to his official

duties. On the contrary, Roake shared the complaints only

with his employer, and the complaints focused exclusively on

official misconduct by his fellow officers. As we have previ

‐ ously recognized, a police officer’s duty to report official po

‐

lice misconduct is a basic part of the job. See, e.g., id. at 481–

82 (rejecting an “overly narrow” description of police job du

‐

ties and concluding that officer’s reports of police misconduct

were closely connected with the broad professional duty to

protect the public from harm); Vose v. Kliment

, 506 F.3d 565,

571 (7th Cir. 2007) (police officer was “merely doing his job,”

and thus not engaged in protected speech, when he reported6 No. 16

‐ 2976

suspected misconduct by his fellow officers); see also Hous

‐

kins v. Sheahan

, 549 F.3d 480, 491 (7th Cir. 2008) (public em

‐ ployee’s “internal complaint” about official misconduct was

“an obvious form of speech made pursuant to official duties

under the Garcetti standard”); Spiegla

, 481 F.3d at 967 (no pro

‐

tected speech where correctional officer internally reported

official misconduct but “did not make a public statement, dis

‐

cuss politics with a coworker, write a letter to newspapers or

legislators, or otherwise speak as a citizen”). Cf. Kristofek v.

Vill. of Orland Hills

, 832 F.3d 785 (7th Cir. 2016) (finding pro

‐

tected speech where part

‐ time officer reported official mis

‐

conduct both to his fellow officers and to an outside agency,

and where the reported misconduct extended beyond the po

‐

lice department and included higher

‐ level political corrup

‐

tion in the mayor’s office).

As a police officer, Roake had a duty to protect the public

from harm, including harm resulting from illegal activity by

law enforcement. So when Roake internally reported that his

fellow officers were abusing the public trust by acting illegally

on the job, he was speaking as a public employee pursuant to

his official responsibilities, and not “as a citizen contributing

to the civic discourse.” Spiegla

, 481 F.3d at 967 (internal marks

omitted). Consequently, even assuming Roake was disci

‐ plined in retaliation for his speech, he has failed to state a

plausible claim under the First Amendment because he has

not shown that his speech was constitutionally protected. The

district court properly dismissed Roake’s First Amendment

retaliation claim under Rule 12(b)(6).No. 16

‐ 2976 7

B. Fourteenth Amendment Due Process Claim

To prevail on a procedural due process claim under the

Fourteenth Amendment, a plaintiff must show that the gov

‐

ernment “‘deprived him of a constitutionally protected liberty

or property interest without due process of law.’” Hinkle v.

White

, 793 F.3d 764, 767 (7th Cir. 2015). Mere injury to reputa

‐

tion, even if it seriously impairs one’s future employment pro

‐

spects, is not a constitutionally protected liberty or property

interest under the due process clause. Id. ; Willan v. Columbia

Cty.

, 280 F.3d 1160, 1163 (7th Cir. 2002). Instead, to state a due

process claim based on reputational harm, a plaintiff must

show that the government distinctly altered his legal status in

addition to tarnishing his good name. Hinkle

, 793 F.3d at 768;

Santana v. Cook Cty. Bd. of Review

, 679 F.3d 614, 621 (7th Cir.

2012) (explaining that defamatory statements are actionable

under the Fourteenth Amendment only if they “‘alter or ex

‐ tinguish a right or status previously recognized by state

law’”). Hence, we conduct a “‘stigma

‐ plus’ analysis to deter

‐

mine whether there was an ‘injury to reputation along with a

change in legal status.’” Hinkle

, 793 F.3d at 768.

Roake alleges that the defendants sullied his reputation

among prospective employers by reporting that he drank on

the job and was not eligible for rehire. In addition to alleging

injury to his reputation, however, Roake has not plausibly al

‐ leged that the defendants did anything to alter his legal status.

Roake counters that the defendants did change his legal status

by effectively removing him from the police force. Specifi

‐ cally, he argues that he was constructively terminated when

certain “charges” were upheld at his disciplinary hearing in

February 2014.8 No. 16

‐ 2976

Roake’s pleadings do not support this argument. Roake

plainly states that he resigned his position, and he alleges no

facts suggesting that the defendants constructively termi

‐

nated his employment or otherwise changed his legal rights

or status in any way. 4 See Lifton v. Bd. of Educ. of City of Chic.

,

416 F.3d 571, 578 (7th Cir. 2005) (explaining that constructive

discharge for due process purposes is “limited to egregious

cases” and “occurs when an employee resigns because work

‐ ing conditions are so intolerable that a reasonable employee

would feel compelled to quit”); see also Witte v. Wis. Dep’t of

Corr.

, 434 F.3d 1031, 1035–36 (7th Cir. 2006), partially over

‐

ruled on other grounds by Hill v. Tangherlini

, 724 F.3d 965 (7th

Cir. 2013) (“Working conditions for constructive discharge

must be even more egregious than those that would support

a finding of a hostile work environment.”).

In short, even assuming the defendants spoke about Roake

in a way that impaired his future employment prospects,

Roake has not plausibly alleged a due process violation be

‐

cause he has not shown that he was deprived of a liberty or

property interest requiring the protections of due process.

The district court properly dismissed Roake’s Fourteenth

Amendment due process claim under Rule 12(b)(6).

III. CONCLUSION

Roake failed to state a plausible claim to relief under the

First and Fourteenth Amendments. He did not show that he

4 Roake’s conclusory and hypothetical assertion that he “would have

been terminated” had he not resigned is pure conjecture; it is not a well

‐ pleaded factual allegation entitled to a presumption of truth on a motion

to dismiss. See Iqbal

, 556 U.S. at 680–81; McCauley v. City of Chic.

, 671 F.3d

611, 616 (7th Cir. 2011).No. 16

‐ 2976 9

was disciplined for engaging in constitutionally protected

speech, or that he was deprived of a constitutionally protected

liberty or property interest without due process. The district

court properly dismissed Roake’s action, and we AFFIRM.