In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-1463 

KELVIN LETT, 

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. 18-cv-4993 — John Robert Blakey, Judge. 

____________________ 

ARGUED DECEMBER 4, 2019 — DECIDED JANUARY 6, 2020 

____________________ 

Before MANION, KANNE, and BARRETT, Circuit Judges. 

BARRETT, Circuit Judge. Kelvin Lett was an investigator in 

the Chicago municipal office that reviews allegations of police 

misconduct. In that role, Lett helped prepare an investigative 

report about a police shooting. Lett’s supervisor directed him 

to write in the report that police officers had planted a gun on 

the victim of the shooting, but Lett did not believe that the 

evidence supported that finding and refused. After he faced 

disciplinary consequences as a result, Lett sued his 
2 No. 19-1463 

supervisors and the City of Chicago for retaliating against 

him in violation of the First Amendment. The district court 

dismissed all of Lett’s claims, and Lett now appeals, insisting 

that his refusal to alter the report constitutes protected citizen 

speech. But as the district court recognized, Davis v. City of 

Chicago, 889 F.3d 842 (7th Cir. 2018), squarely forecloses this 

argument. Because Lett spoke pursuant to his official duties 

and not as a private citizen when he refused to alter the report, 

the First Amendment does not apply. 

I. 

This case comes to us on a motion to dismiss, so we take 

the allegations in Lett’s complaint as true. Kubiak v. City of Chicago, 810 F.3d 476, 479 (7th Cir. 2016). 

Lett worked as an investigator for Chicago’s Civilian Office of Police Accountability (formerly known as the Independent Police Review Authority), a municipal office tasked 

with reviewing allegations of police misconduct. In 2016, Lett 

was working on an investigation into police involvement in a 

particular civilian shooting. The office’s Chief Administrator, 

Sharon Fairley, directed Lett to include in the report a finding 

that police officers had planted a gun on the victim of the 

shooting. Lett refused because he did not believe that the evidence supported that finding. 

Lett raised his concerns with Fairley’s deputy, who in turn 

shared them with Fairley. Not long after that, Lett was removed from his investigative team, then removed from investigative work altogether, and ultimately assigned to janitorial 

duties. Fairley then opened an internal investigation into Lett 

for disclosing confidential information. The internal investigation concluded that Lett had violated the office’s 
No. 19-1463 3

confidentiality policy, and Fairley ordered that Lett be fired. 

Convinced that the internal investigation was a hit job, Lett 

initiated a grievance through his union. The grievance arbitrator, siding with Lett, ordered the office both to reinstate 

him with backpay and to expunge his record. But when Lett 

returned to his office, Fairley immediately placed him on administrative leave with pay. Lett was assigned on paper to the 

Chicago Police Department’s FOIA office, but in reality he 

was not allowed to return to work. 

Lett sued his supervisors, as well as the City of Chicago. 

Count 1, brought against all individual defendants under 42 

U.S.C. § 1983, alleged that the supervisors had retaliated 

against Lett for his refusal to write false information in his report, in violation of his First Amendment rights. Count 2 asserted Monell liability under § 1983 for the City and for Fairley 

in her official capacity based on the supervisors’ actions.1 Because it concluded that Lett had acted as a public employee 

rather than as a private citizen when he refused to alter the 

investigative report, the district court dismissed these claims 

with prejudice under FED. R. CIV. P. 12(b)(6). 

II. 

For a public employee to prove retaliation in violation of 

the First Amendment, he must first establish that his speech 

was constitutionally protected. Swetlik v. Crawford, 738 F.3d 

818, 825 (7th Cir. 2013). Although the First Amendment offers 

public employees some protection, “it does not empower 

them to ‘constitutionalize the employee grievance.’” Garcetti 

 1 Lett asserted two additional federal claims that he has abandoned 

on appeal, as well as supplemental state-law claims that the district court 

dismissed without prejudice. 
4 No. 19-1463 

v. Ceballos, 547 U.S. 410, 420 (2006) (citation omitted). A public 

employee’s speech is therefore only protected if (1) he spoke 

as a private citizen rather than in his capacity as a public employee; (2) he spoke on a matter of public concern; and (3) his 

interest in expressing the speech is “not outweighed by the 

state’s interests as an employer in ‘promoting effective and 

efficient public service.’” Swetlik, 738 F.3d at 825 (citation 

omitted). This appeal concerns the first element: whether Lett 

spoke as a private citizen when he refused to amend the investigative report. 

Garcetti v. Ceballos supplies the test for distinguishing employee and citizen speech. Under Garcetti, the key question is 

whether the employee makes the relevant speech “pursuant 

to [his] official duties.” 547 U.S. at 421. In other words, we ask 

whether the speech “owes its existence to a public employee’s 

professional responsibilities.” Id. If it does, then the employee 

speaks in his capacity as an employee rather than a private 

citizen and his speech is not protected. 

We applied Garcetti’s test to similar facts in Davis v. City of 

Chicago, 889 F.3d 842 (7th Cir. 2018). Lorenzo Davis was also 

an investigator in the Civilian Office of Police Accountability, 

and, like Lett, he alleged retaliation for his refusal to amend 

investigative reports. Each report contained a summary of the 

allegations of police misconduct and a finding on whether 

each allegation of misconduct was “sustained,” “not sustained,” “exonerated,” or “unfounded.” According to Davis, 

the Chief Administrator at the time directed him to change 

“sustained” findings and to alter his reports to reflect more 

favorably on police officers. Id. at 844. Because it was part of 

Davis’s professional responsibilities to revise his reports at 

the direction of his supervisors, we concluded that he made 
No. 19-1463 5

his refusal “pursuant to his official duties.” Id. at 845 (alteration and citation omitted). In making that determination, we 

rejected Davis’s argument that drafting inaccurate or misleading reports could not have been part of his job duties. Id. We 

explained that “the fact that an employee may have good reasons to refuse an order, does ‘not necessarily mean the employee has a cause of action under the First Amendment when 

he contravenes that order.’” Id. at 845–46 (citation omitted). 

The First Amendment therefore did not protect Davis’s 

speech. 

Lett’s case bears more than a passing resemblance to the 

facts in Davis. Lett held the same job as Davis and alleges retaliation for the same activity: refusing to alter an investigative report that he was assigned to prepare. Just as in Davis, 

Lett would have had neither occasion nor reason to refuse the 

request if not for his job. In the language of Garcetti, Lett’s refusal to amend the report was “speech that owe[d] its existence” to his professional responsibilities. 547 U.S. at 421. And 

while Lett contends that altering a report to include unsupported findings was necessarily outside his official job duties, 

Davis squarely forecloses that argument. As in Davis, the fact 

that Lett may have had a good reason to refuse to amend the 

report does not grant him a First Amendment cause of action. 

See Davis, 889 F.3d at 845–46. 

Lett nevertheless argues that Davis is distinguishable. He 

asserts that Davis was asked to alter his conclusions, whereas 

Lett was asked to lie about matters of fact—a distinction not 

mentioned by the majority opinion in Davis but emphasized 

in a concurrence. Id. at 846 (Hamilton, J., concurring). Try as 

he might, however, Lett cannot characterize his speech as relaying facts rather than conclusions. Fairley told Lett to add 
6 No. 19-1463 

the finding that a gun was planted on the shooting victim. It 

is true that someone who personally observed the police handle the victim’s gun could know as a matter of fact whether 

the gun was planted or whether the victim carried it. But Lett 

never alleged that he or any of his superiors personally observed the events in the report. Instead, Lett was tasked with 

analyzing the evidence before him. Without the benefit of personal observation, a finding that the gun was or was not 

planted was necessarily a conclusion drawn based on inferences. Lett’s case is thus on all fours with Davis. 

Lett’s concern about his First Amendment right not to lie 

in sworn testimony is similarly misplaced. A public employee’s truthful sworn testimony made outside the scope of 

his official duties is citizen speech. Lane v. Franks, 134 S. Ct. 

2369, 2379 (2014). Lett argues that we should expand Lane beyond sworn trial testimony to include his investigative report 

because it is likely that the report will be used in litigation. We 

need not address this argument, though, because Fairley did 

not ask Lett to add lies to the report—only conclusions with 

which Lett disagreed. And as we have already explained, the 

First Amendment does not protect Lett’s refusal to amend the 

investigative report. 

* * * 

The district court properly dismissed Lett’s claims against 

his supervisors and the City of Chicago, and we AFFIRM its 

judgment.