In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2407

Gerardo D. Gonzalez,

Plaintiff-Appellant,

v.

City of Chicago, an Illinois Municipal
Corporation, Sergeant Hanson, individually,
and Lieutenant Sullivan, individually,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 5103--George M. Marovich, Judge.


Argued November 30, 2000--Decided February 13, 2001



  Before Ripple, Manion, and Kanne, Circuit Judges.

  Manion, Circuit Judge. Gerardo Gonzalez sued the
City of Chicago, two of his supervisors, and
Chicago’s Chief of Police, alleging retaliation
for exercising his First Amendment right to free
speech in violation of 42 U.S.C. sec. 1983 and
retaliatory discharge under Illinois law. The
district court granted the defendants’ motion to
dismiss with respect to the sec. 1983 claim on
the merits and declined to exercise jurisdiction
over the state law claim. Gonzalez appeals. We
affirm.

I.

  Beginning in July, 1991, Gerardo Gonzalez worked
as a civilian employee of the Chicago Police
Department’s Office of Professional Standards
(OPS). As an OPS investigator, he looked into
public complaints against officers in the Chicago
Police Department for police misconduct or
brutality, and following his investigations
Gonzalez was required to summarize his
conclusions in a written report. Gonzalez
completed between fifty and one hundred such
reports per month. All indications are that
Gonzalez’s job performance was satisfactory.

  In June 1998, Gonzalez resigned from OPS and
joined the Chicago Police Department. On November
17, 1998, he graduated from the Police Academy
and was subsequently assigned to the 18th
District. During his tenure at OPS, Gonzalez
investigated at least nine 18th District
officers, and one investigation caused the
termination of 18th District officer Hugh
Robinson. He also investigated the father of an
officer currently assigned to the 18th District,
Sergeant Hanson.

  Apparently due to these and perhaps other OPS
investigations, Gonzalez allegedly met great
hostility at the 18th District. During his ten
weeks of field training, Gonzalez received two
negative performance reports which he claims were
"predicated upon falsified subjective information
. . . and motivated by retaliation for
Plaintiff’s exercise of his fair constitutional
right of free speech . . . while employed by
OPS." As a result of these evaluation reports,
the Police Department suspended Gonzalez pending
termination proceedings. On April 14, 1999, the
Police Department terminated Gonzalez from his
position.

  After he was fired, Gonzalez sued the City of
Chicago, the Chief of Police, and two of his
supervisors, claiming the defendants retaliated
against him for his speech as an OPS investigator
in violation of sec. 1983 and Illinois law. The
district court concluded that because his speech
at OPS was that of an employee performing his job
and not protected speech by a citizen which
touched upon matters of public concern, the
defendants had not violated his First Amendment
rights. Having dismissed the only federal claim,
the district court then declined to exercise
jurisdiction over his state law claim of
retaliatory discharge. Gonzalez appeals.

II.

  The district court dismissed Gonzalez’s
complaint for failure to state a First Amendment
claim. We review such a dismissal de novo,
accepting all well-pleaded factual allegations in
the complaint as true, and make all permissible
inferences in Gonzalez’s favor. See Kyle v.
Morton High School, 144 F.3d 448, 450 (7th Cir.
1998).

  First Amendment claims by public employees
asserting a violation against protected speech
are analyzed under a two-step test. The first
step, set forth in Connick v. Myers, is to
determine whether the employee speaks "as a
citizen upon matters of public concern." 461 U.S.
138, 147 (1983). The second step is to balance
the "interests of the [employee], as a citizen,
in commenting upon matters of public concern and
the interest of the State, as an employer, in
promoting the efficiency of the public services
it performs through its employees." Pickering v.
Bd. of Educ., 391 U.S. 563, 568 (1968). In
determining whether speech is protected at step
one, we must consider the content, form, and
context of the speech. Connick, 461 U.S. at 147.

  Where speech is intended to serve a private or
personal interest, it may not meet the standards
for First Amendment protected speech. See
Kokkinis v. Ivkovich, 185 F.3d 840, 844 (7th Cir.
1999). "Our precedent makes clear . . . that
speaking up on a topic that may be deemed one of
public importance does not automatically mean the
employee’s statements address a matter of public
concern as that term is employed in Connick." Id.

  The present case, however, occupies the flip
side of the coin. Gonzalez’s statements are not
self-serving private statements (except in the
sense that performance of one’s job is self-
serving), but written statements for internal use
in the Department. They are reports on his
investigations as required by his employer, and
as such, they lack First Amendment protection.
Both the Connick and Pickering cases explain that
the First Amendment offers protection to speech
uttered "as a citizen." See Connick, 461 U.S. at
147; Pickering, 391 U.S. at 568. But the City of
Chicago’s Office of Public Standards does not
have First Amendment rights. Only its employees
do. As the district court stated, "these reports
were created in the scope of [Gonzalez’s]
ordinary job responsibilities. This fact lends
support for the conclusion that Gonzalez was not
acting as a ’concerned citizen’ or ’member of the
general public,’ but merely as an employee."
Gonzalez v. City of Chicago, 2000 WL 748136, *4
(N.D. Ill. May 2, 2000).

  If Gonzalez were writing reports of police
misconduct, and his supervisors told him to
rewrite the reports so as not to disclose police
corruption, Gonzalez would have a First Amendment
right to expose the police cover-up to the
public. But in that circumstance, Gonzalez would
be acting beyond his employment capacity. Instead
of simply performing his job of writing truthful,
internal reports, he would be speaking as a
citizen on a matter of public concern--a police
cover-up.

  Thus, the question before us is whether a public
employee receives First Amendment protection for
producing writings that may address matters of
public concern, but are also a routine
requirement of the job. Gonzalez may well have
been motivated in part as a good citizen when he
accepted the employment duties of reporting
police misconduct. Nevertheless, he was clearly
acting entirely in an employment capacity when he
made those reports. The form of his speech
(routine official reports), the content of the
speech (required opinions on misconduct), and the
context (pursuant to duties of the job), all
indicate that Gonzalez did not speak "as a
citizen" on a matter of public concern.

  This situation is distinguishable from our
recent decision in Bonds v. Milwaukee County, 207
F.3d 969 (7th Cir. 2000). In that case, Michael
Bonds, a public employee, spoke at a panel at the
request, and in place of, Alderman Fred Gordon.
We held that, despite the fact that the speech
was given pursuant to employment duties, it was
protected by the First Amendment based on the
speech’s content. See id. at 980-81 ("Even though
he participated in the forum at Alderman Gordon’s
direction, Bonds articulated many independent
views . . . and did not serve as a mere surrogate
for Council positions. Gordon testified that
Bonds spoke for himself at the forum and that
Bonds’s criticisms . . . went well beyond the
scope of Gordon’s instructions.").

  All of Gonzalez’s speech at issue--the written
reports--was mandated in his capacity as an OPS
investigator. While police misconduct is
certainly a matter of public concern, the
internal reports were simply a summary of his
findings following his official investigations.
The few courts that have addressed circumstances
like these have found that the speech was not
protected by the First Amendment. See, e.g., Koch
v. City of Hutchinson, 847 F.2d 1436 (10th Cir.
1988), cert. denied, 488 U.S. 909 (1988) (routine
report of fire marshal regarding cause of a fire
did not address a matter of public concern);
Cahill v. O’Donnell, 75 F.Supp.2d 264 (S.D.N.Y.
1999) (speech by police department Internal
Affairs employees made in course of "day-to-day
professional obligations" not protected). We
agree with these holdings. Speech which is made
in all respects as part of the employee’s job
duties is generally not the protected expression
of the public employee. "Speech that relates
primarily to . . . internal office affairs, in
which the individual speaks as an employee rather
than as a citizen" is not protected by the First
Amendment. Id. at 272.

  Youker v. Schoenenberger, 22 F.3d 163 (7th Cir.
1994), also supports this conclusion. That
decision involved the claim of a deputy tax
assessor (Youker) for the town of Milton,
Illinois, that he was fired for speech regarding
an allegedly fraudulent homestead exemption.
Youker had sent a letter criticizing a tax
assessment in a neighboring community, and the
letter was signed with the stamped signature of
the assessor, Youker’s boss. This court held that
Youker’s speech was not protected because "it was
not speech as a citizen because Youker
represented, without authority, that [the speech]
was [his supervisor’s] official speech." Id. at
166. We added, however, that "because Youker was
an employee of the Milton Assessor’s office, and,
when acting in that capacity, identifying fraud
in homestead exemptions was part of his
responsibilities, the letter represented not his
personal opinion (speech) but the opinion of the
Milton Assessor’s Office." Id. Accordingly, we
held that Youker was not "speaking ’as a citizen’
on a matter of public concern." Id. at 166-67.

  For Gonzalez, there is no distinction from any
of his allegedly protected speech and the
required duties of his job. A failure to carry
out this particular speech--writing accurate
reports of assigned investigations--would be a
dereliction of Gonzalez’s employment duties.
Indeed, Gonzalez’s attorney conceded at oral
argument that Gonzalez could have been fired had
he not produced the reports. Here Gonzalez’s
speech was clearly speech by an employee in the
course of his employment, rather than speech by a
citizen on a matter of public concern. Id. at
165.
  Like the Tenth Circuit in Koch, we are not
"establishing a per se rule exempting statements
made in the course of official duties from the
protection of the First Amendment." 847 F.2d at
1442. There could be a unique set of facts that
would afford such protection. We also emphasize
that a public employee has every First Amendment
right to speak out as a citizen. See Bonds, 207
F.3d at 976. "Although public employees once
forfeited First Amendment protection by virtue of
their employment with the government, this is no
longer so. Speech by government employees,
completely divorced from the employment context,
is protected under the same standard as speech by
those who are not government employees." Id.
(citations omitted). But there are still limits
in public employment as to what can be fairly
characterized as speech "as a citizen" on a
matter of public concern. Speech exercised by a
public employee in the course of his employment
will rarely fit the mold of private speech by a
citizen.

III.

  Since Gonzalez’s speech in his employment
capacity at OPS was not protected by the First
Amendment, his sec. 1983 claim fails. The
district court appropriately granted the City of
Chicago’s motion to dismiss. Also, while the
district court properly exercised its discretion
in declining to accept supplemental jurisdiction,
that decision and our affirmance should not
reflect any view on the validity of the state law
claim of discharge in retaliation for Gonzalez’s
investigation reports that he authored during his
tenure at OPS. The district court’s decision is

AFFIRMED.
