In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 05-4313, 05-4335, 06-1055 & 06-1098

MICHALE CALLAHAN,

Plaintiff-Appellee,

v.

STEVEN M. FERMON and

DIANE CARPER,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Central District of Illinois.

No. 03 C 2167—Harold A. Baker, Judge.

____________

ARGUED JANUARY 10, 2008—DECIDED MAY 20, 2008

____________

Before EASTERBROOK, Chief Judge, and RIPPLE and

ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. Michale Callahan, a former lieutenant with the Illinois State Police, was transferred after

making statements at a meeting about a cold case and

after making official complaints about his superior officers. In bringing this action under 42 U.S.C. § 1983

against several of his superiors, he claims that he was

transferred in retaliation for speech that is protected by

the First Amendment. The jury found that two of the
2 Nos. 05-4313, 05-4335, 06-1055 & 06-1098

defendants, Diane Carper and Steven Fermon, had retaliated against him on the basis of his protected speech and

awarded him compensatory and punitive damages. The

defendants appealed. While this appeal was pending, the

Supreme Court decided Garcetti v. Ceballos, 547 U.S. 410

(2006), which held that the First Amendment does not

protect a public employee’s statements made as part of

his official duties. In light of Garcetti, we hold that the

First Amendment does not insulate Mr. Callahan’s statements from employer discipline. Accordingly, the judgment in his favor is reversed, and the case is remanded

with instructions to enter judgment for the defendants.

I

BACKGROUND

A.

Michale Callahan was a lieutenant in Zone V of the

Illinois State Police (“ISP”). His captain, the head of

Zone V, was Steven Fermon. Cpt. Fermon reported to

Diane Carper, the commander of several zones including

Zone V. Mr. Callahan, Cpt. Fermon and Cdr. Carper all

worked in the Department of Operations, the branch of

the ISP that contains the patrol and investigative functions. A second branch of the ISP, the Department of

Internal Investigation (“DII”), investigates all complaints about misconduct by governmental employees,

including complaints brought by citizens and complaints about employees not within the ISP itself.

In the spring of 2000, a private investigator sent a

letter to the ISP asking it to review the 1986 murder of

Dyke and Karen Rhoads. Mr. Callahan was assigned to
Nos. 05-4313, 05-4335, 06-1055 & 06-1098 3

review the matter and to take appropriate action. His

examination concluded that there were significant problems with the convictions of Herbert Whitlock and

Randy Steidl, the men serving life sentences for the crime.

Through his initial investigation, Mr. Callahan became

suspicious that Robert Morgan, a person of interest in the

initial Rhoads’ investigation who never had been charged,

actually might have committed the murders. At the time

Mr. Callahan was reviewing the file, Morgan was under

investigation by federal authorities for possible drug

trafficking and money laundering. Mr. Callahan also

learned that Morgan had made significant donations to

the political campaigns of both the Illinois Attorney

General and the Governor. After Mr. Callahan relayed

this information to Cdr. Carper, she ordered him not to

continue investigating the Rhoads’ murder, but she told

him that he could continue to investigate Morgan’s possible ongoing illegal activities.

In January 2003, the Deputy Governor called Mr.

Callahan at his home and explained that the Governor

was considering a grant of clemency for Steidl and

Whitlock. He solicited Mr. Callahan’s opinion as to

whether they were guilty or innocent. Mr. Callahan

said that he needed to talk to ISP before he responded. He

then called Cpt. Fermon and Cdr. Carper. Cdr. Carper

reported the information to her superior, who arranged

a meeting at the ISP Academy for the next day in order

to discuss the Governor’s inquiry. At the all-day meeting,

Cpt. Fermon and Mr. Callahan made presentations regarding the convictions of Steidl and Whitlock. They also

discussed Morgan’s possible criminal activity. Mr.

Callahan stated that he thought Steidl and Whitlock were

not guilty; he also provided a computer-generated assess-
4 Nos. 05-4313, 05-4335, 06-1055 & 06-1098

ment of the homicide that indicated that the two could

not have committed the murder.

The relationship between Cpt. Fermon and Mr. Callahan

always had been strained, but, in 2003, Mr. Callahan

became suspicious that Cpt. Fermon was compromising

deliberately the investigation of Morgan. He also began

to suspect that Cpt. Fermon might have connections to

organized crime. Mr. Callahan discussed his concerns

with friends on the task force and former ISP officers. He

also began a surreptitious investigation of Cpt. Fermon. In

April 2003, Mr. Callahan lodged a complaint with the DII

in which he claimed that Cpt. Fermon possibly was involved in misconduct relating to organized crime, and

that he possibly had interfered with a federal criminal

investigation. He also told DII that Cdr. Carper had

ordered him not to pursue the Rhoads’ investigation

because it was too politically sensitive. Several weeks

later he made a second complaint to the DII with substance almost identical to the first. After reviewing the

complaints, the DII decided to take no action on them.

The hostility between Mr. Callahan and Cpt. Fermon

made Zone V a difficult workplace. Between late 2002 and

April 2003, the ISP’s Equal Employment Opportunity

Office (“EEOO”) investigated a hostile-work-environment complaint related to that stress in Zone V. Around

the same time that Mr. Callahan filed his DII complaints

regarding Cpt. Fermon and Cdr. Carper, the EEOO reported to ISP’s upper command that the hostility between Mr. Callahan and Cpt. Fermon was sufficiently

serious to warrant action. Cdr. Carper and her superiors

met to discuss the problem and determined that they

would recommend transferring both Cpt. Fermon and

Mr. Callahan out of Zone V. On June 16, that recommenda-
Nos. 05-4313, 05-4335, 06-1055 & 06-1098 5

1 Although Mr. Callahan requested that the court grant him

injunctive relief that would restore him to his position in

Zone V, the district court did not grant such relief, and Mr.

Callahan has not brought the matter to this court by a cross

appeal.

tion was given effect; Mr. Callahan was transferred to

the patrol lieutenant position in another district.

B.

On September 23, 2003, Mr. Callahan filed a complaint

in the district court. He alleged that he had been transferred laterally because of his statements at the ISP Academy meeting and because of the complaints that he had

made to the DII in April and May of 2003. At trial, a

jury found in favor of Mr. Callahan as to his claims

against Cdr. Carper and Cpt. Fermon and awarded him

$210,000 in compensatory damages. The jury additionally

awarded him $276,700 in punitive damages against Cpt.

Fermon and $195,600 in punitive damages against Cdr.

Carper. The district court allowed the verdict and compensatory damages to stand, but it ordered the punitive

damages reduced to $100,000 against Cpt. Fermon and

$50,000 against Cdr. Carper.1

 Cpt. Fermon and Cdr. Carper

appealed.

II

DISCUSSION

The First Amendment, as made applicable to the states

through the Fourteenth Amendment, see Ben’s Bar, Inc. v.

Village of Somerset, 316 F.3d 702, 707 (7th Cir. 2003), pro-
6 Nos. 05-4313, 05-4335, 06-1055 & 06-1098

2 Mr. Callahan contends that Cdr. Carper and Cpt. Fermon

forfeited their Garcetti argument by failing to raise it in the

district court. See Spiegla v. Hull, 481 F.3d 961, 964 (7th Cir. 2007).

(continued...)

tects, under certain circumstances, a public employee’s

right to speak as a citizen about matters of public concern. See Garcetti, 547 U.S. at 420-21. An employer may

not retaliate against an employee for engaging in protected speech. Massey v. Johnson, 457 F.3d 711, 716 (7th

Cir. 2006). Under the traditional pre-Garcetti two-step

test, a public employee’s speech received constitutional

protection if the employee could establish that (1) he

spoke as a citizen on matters of public concern, and

(2) his interest as a citizen in commenting upon matters

of public concern outweighed the interest of the State as

an employer in promoting the efficiency of the public

services it performs through its employees. Sigsworth v.

City of Aurora, 487 F.3d 506, 509 (7th Cir. 2007). Applying

this test, the jury determined that Mr. Callahan’s

speech was protected by the First Amendment.

Since the jury’s decision, however, the Supreme Court

has provided further guidance as to when a public employee can be considered, for First Amendment purposes, to be speaking as a citizen. In Garcetti, the Court held

that “when public employees make statements pursuant

to their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitution does not insulate their communications from

employer discipline.” 547 U.S. at 421 (emphasis added).

Garcetti was decided while this case was still open on direct review, and therefore that decision must be given

effect in this case.2 See Spiegla v. Hull, 481 F.3d 961, 965
Nos. 05-4313, 05-4335, 06-1055 & 06-1098 7

2 (...continued)

We cannot accept this argument. Cdr. Carper and Cpt. Fermon

moved for summary judgment on the basis that Mr. Callahan’s

speech was not constitutionally protected “because the

speech was a part of his routine duties.” R.28 at 24-25; see

also R.39 at 7 (rejecting the defendants’ argument that

“Callahan’s speech was not protected because he was performing routine job duties as a police officer”). This court

has held that a defendant’s motion for summary judgment on a

Garcetti-type ground “was sufficient to preserve the issue

for appellate review.” Spiegla, 481 F.3d at 964. Therefore, Cdr.

Carper and Cpt. Fermon did not forfeit their Garcetti argument. See id.

(7th Cir. 2007).

We review de novo whether Mr. Callahan’s statements qualify for protection under the standard articulated in Garcetti. See id. After Garcetti, when determining whether a public employee spoke as a citizen,

the operative question is whether he made his statements pursuant to his official duties. Id. This inquiry is a

practical one. Garcetti, 547 U.S. at 424. Notably, the

Court rejected “the suggestion that employers can restrict employees’ rights by creating excessively broad

job descriptions.” Id. “Formal 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.” Id. at 424-25. Additionally, the location and audience of the employee’s

speech are not dispositive; speech may be protected even

if it is made by an employee at his place of work to his
8 Nos. 05-4313, 05-4335, 06-1055 & 06-1098

coworkers. Id. at 420. Neither is the subject matter of the

speech dispositive; the “First Amendment protects

some expressions related to the speaker’s job.” Id. at

421. The controlling factor in the Garcetti inquiry is

whether the speech “owes its existence to a public employee’s professional responsibilities.” Id.

With Garcetti in mind, we turn to Mr. Callahan’s

claims of First Amendment retaliation. The jury considered two instances of speech in determining that

Mr. Callahan had spoken as a citizen: (1) he contended

at the ISP Academy meeting that Steidl and Whitlock

should be granted clemency; (2) he made two complaints about Cpt. Fermon and Cdr. Carper to the DII.

We shall consider each in turn.

Based on the record as a whole, we conclude that

Mr. Callahan was speaking pursuant to his official

duties—not as a citizen—when he spoke at the Academy

meeting. Lieutenants in the ISP routinely are required

to attend meetings and to exchange information about

investigations. Here, Mr. Callahan was ordered by his

superiors to attend the meeting during normal business

hours. At the meeting, he advised his employer about

the results of his investigation, which he had been ordered to conduct as a public employee with the ISP. He

did not speak as a citizen when he attended the meeting;

he went to work and performed the tasks that he was

paid to perform. See Garcetti, 547 U.S. at 422. Like the

plaintiff in Sigsworth, Mr. Callahan’s “speech was part

of the tasks he was employed to perform.” 487 F.3d at 511.

Therefore, “he spoke not as a citizen but as a public

employee, and that speech is not entitled to protection

by the First Amendment.” Id.
Nos. 05-4313, 05-4335, 06-1055 & 06-1098 9

3 As a result of this disposition we need not address the

remainder of the appellants’ arguments.

We also conclude that Mr. Callahan spoke pursuant to

his official duties when he twice complained to the DII

about Cpt. Fermon and Cdr. Carper. Mr. Callahan stated

to his employer’s investigative branch his concern that

Cpt. Fermon, a captain in the ISP, was involved in unlawful activity and had impeded a criminal investigation.

He also alleged that Cdr. Carper had been involved

in misconduct by refusing to investigate a crime for

political reasons. Mr. Callahan conceded in his deposition testimony and in closing arguments at trial that the

ISP rules of conduct require all ISP officers to report

misconduct of fellow employees to the DII. That requirement was part of his official responsibility as a police

lieutenant. See Garcetti, 547 U.S. at 424; Spiegla, 481 F.3d

at 966. That Mr. Callahan’s “statements highlighted

potential misconduct by [ISP] officers does not change

the fact that [he] was speaking pursuant to [his] official

responsibilities, not as a citizen contributing to the civic

discourse.” Spiegla, 481 F.3d at 967 (quotation marks

omitted) (final alteration omitted); see also Morales v.

Jones, 494 F.3d 590, 598 (7th Cir. 2007), cert. denied, 128

S. Ct. 931 (2008).

Mr. Callahan did not speak as a citizen at the Academy

meeting or when he filed two complaints with the DII

because his statements were required by his actual

duties as a lieutenant in the ISP. Spiegla, 481 F.3d at 969;

see also Garcetti, 547 U.S. at 424. He therefore has no

claim for First Amendment retaliation under section 1983,

and the judgment entered in his favor must be reversed.3

Spiegla, 481 F.3d at 966.
10 Nos. 05-4313, 05-4335, 06-1055 & 06-1098

Conclusion

Accordingly, the judgment of the district court is reversed, and the case is remanded to the district court

with instructions to enter judgment for the defendants.

The defendants may recover their costs in this court.

REVERSED and REMANDED

USCA-02-C-0072—5-20-08