                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-2345

D AVID K RISTOFEK,
                                                  Plaintiff-Appellant,
                                  v.

V ILLAGE OF O RLAND H ILLS,
a municipal corporation, and
T HOMAS S CULLY, individually
and in his official capacity,
                                               Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
         No. 1:11-cv-07455—Samuel Der-Yeghiayan, Judge.



     A RGUED JANUARY 9, 2013—D ECIDED M ARCH 11, 2013




 Before P OSNER, F LAUM, and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. In November 2010, Plaintiff
David Kristofek, a part-time officer for the Village of
Orland Hills Police Department, arrested a driver for
traffic violations, but the driver turned out to be the
son of a former mayor of a nearby town. Because of the
2                                              No. 12-2345

driver’s political connections, Kristofek was ordered to
let him go. Kristofek strongly disagreed with what he
believed was political corruption and expressed such
concerns to his fellow officers, his supervisors, and even-
tually the FBI. When Police Chief Thomas Scully found
out about this conduct, he fired him.
  Kristofek sued, bringing First Amendment retaliation
claims against Scully and the Village of Orland Hills
pursuant to 42 U.S.C. § 1983. The district court granted
the defendants’ motions to dismiss, finding that
Kristofek’s speech did not involve a matter of public
concern, principally because his sole motive was to
protect himself from civil and criminal liability. The
defendants-appellees rely solely on this reasoning as a
basis for affirming on appeal. But the complaint does
not allege that Kristofek’s only motive was self-
interested, and the mere existence of a self-interested
motive does not preclude the plausibility of mixed
motives, which is consistent with protected speech. We
also find that Kristofek has plausibly pled, albeit barely,
that Scully had at least de facto authority to set policy
for hiring and firing, sufficient to sustain a Monell
claim against the Village of Orland Hills. For these
reasons, we reverse and remand.


                   I. BACKGROUND
  Because this case is considered on a motion to dismiss
for failure to state a claim, we assume the facts alleged
in the complaint to be true. Plaintiff David Kristofek was
a part-time police officer for the Village of Orland Hills.
No. 12-2345                                             3

On November 12, 2010, while on routine patrol, Kristofek
ran the license plate of an automobile and discovered
that the registration was suspended. (The complaint
does not say why he ran the plate, and it does not mat-
ter.) He pulled the vehicle over and asked the driver
to produce proof of valid insurance, but the driver
was unable to do so. Kristofek wrote two traffic tickets
for the suspended registration and the absence of proof
of insurance, and pursuant to police department
policy, arrested the driver and had the vehicle towed.
Additional officers arrived on the scene to help
Kristofek take the driver to the police station.
  During the arrest, the driver told the officers that his
mother was a former mayor of a nearby town and asked
to be released. The driver’s girlfriend, who was a
passenger in the vehicle, gave Kristofek a cell phone
and said that the driver’s mother was on the phone. The
driver’s mother asked Kristofek not to arrest her son,
but Kristofek explained that under police department
policy concerning certain traffic violations, he had
no choice.
  After taking the driver to the police station, Kristofek
began filling out the arrest paperwork and entering
the driver’s booking information into the computer
system. Other officers suddenly came in and told
Kristofek to stop what he was doing, give all the
paperwork to the deputy chief, and delete any informa-
tion about the driver from the computer system.
Kristofek believed he had done nothing wrong, so he
personally confronted the deputy chief, who responded,
4                                            No. 12-2345

“Did you not understand what you were [expletive]
told?” Kristofek relented, gave the documents to the
deputy chief, and released the driver.
  A couple of days later, Kristofek ran into the deputy
chief, who told him that Kristofek had made a “good
arrest” but that the driver’s release from custody was
“above you and I.” Kristofek said he disagreed with the
decision to release the driver simply because his mother
was politically connected. Kristofek expressed concern
“that the unequal application of the law due to political
considerations was improper and possibl[y] illegal.” (The
complaint is actually ambiguous as to whether he ex-
pressed this concern to the deputy chief or kept it to
himself; we assume that he expressed it.)
  Several months later, in April 2011, Kristofek partici-
pated in an online police training seminar, which posed
a hypothetical that was coincidentally similar to what
happened in November 2010. In the hypothetical, an
officer makes a valid arrest and booking, but the super-
visor takes the paperwork and orders the release of the
arrestee, so that the arrestee may “evade prosecution.”
The training simulation said that in this situation, the
supervisor has committed a crime, because “in a case
with similar facts, an Illinois appellate court ruled
that a police officer is a public employee under the
‘official misconduct’ statute and can be prosecuted for
a violation.”
  After this training, Kristofek’s concerns about the
incident “escalated because of the possible criminal
and civil liability.” He then spoke to the other officers
No. 12-2345                                            5

who had assisted in the arrest, expressing his concerns
that he and the other officers were potentially involved
with political corruption and that they may have com-
mitted a crime. He then consulted an attorney, and pursu-
ant to the attorney’s advice, Kristofek told the FBI
about the arrest and about “possible political corruption
in the Orland Hills Police Department and/or Village of
Orland Hills,” and said that he was not sure if the
order to release the driver came from the police depart-
ment or the mayor’s office. The FBI agent said that
there would be an investigation. Kristofek then went
back to the other officers and told them that he had
contacted the FBI out of his concern that he and the
other officers could be accused of committing a crime.
   On April 21, 2011, Kristofek was ordered to report to
Police Chief Thomas Scully. Scully “angrily” said that he
had heard that Kristofek was speaking to other officers
about “possible corruption and illegal activity” con-
cerning the release of the driver. Kristofek told Scully
that he was concerned about exposing himself and the
police department to liability and “wanted no part of
it,” and he revealed that he had reported the incident to
“an outside law enforcement agency” to protect himself.
Scully said that he needed to be able to trust his
police officers and that he no longer trusted him “for
speaking to other persons about the circumstances of the
arrest of the driver.” Scully then told Kristofek that he
had two options: resign or have his employment termi-
nated, and that if Kristofek could not decide, Scully
would decide for him. Kristofek said he had done
nothing wrong, and so he would not resign. Scully
6                                              No. 12-2345

then terminated his employment, and Kristofek was im-
mediately escorted out of the building in front of his co-
workers. Two of the other officers who participated in
the arrest have since left the police department.
  Kristofek subsequently sued Scully and the Village
of Orland Hills (collectively, “Orland Hills”), claiming
pursuant to section 1983 that his First Amendment
rights were violated when he was fired in retaliation
for his statements to the other officers and the FBI
about “possible political corruption, political favoritism,
and criminal activity,” made in his capacity as a citizen
“contesting the unequal application of the laws to its
citizens.” He also brought several state law claims, in-
cluding under the Illinois Whistleblower Act. The de-
fendants moved to dismiss, and the district court
granted their motions, finding that Kristofek’s speech
was not protected under the First Amendment because
it did not involve matters of public concern. In so
finding, the court emphasized that, according to the
complaint itself, Kristofek’s sole motive in spreading
the word about political corruption was to protect
himself from civil and criminal liability. The court
then declined to exercise supplemental jurisdiction
over the state law claims. Kristofek appealed.


                     II. ANALYSIS
  In concluding below that Kristofek has stated viable
First Amendment claims against Orland Hills, we em-
phasize that we are construing Kristofek’s complaint
liberally, assuming all of his factual allegations to be
No. 12-2345                                                     7

true, and drawing all reasonable inferences in his favor,
as we must at this early stage. Nothing in this opinion
should be read to prejudge whether the evidence will
show that Kristofek’s claims about Orland Hills’s prac-
tices are meritorious.


    A. Kristofek’s Speech, Notwithstanding His Motives,
       Was a Matter of Public Concern
  Kristofek claims that he was fired in retaliation for his
speech concerning the wrongfulness of the police depart-
ment’s release of the driver due to the driver’s political
connections. A viable First Amendment retaliation claim
by a public employee requires, at a minimum, that the
speech being retaliated against be constitutionally pro-
tected, which means that the speech must involve a
matter of “public concern.” See Chaklos v. Stevens, 560
F.3d 705, 712 (7th Cir. 2009).1 “Whether a statement rises



1
   The plaintiff must also show that he was speaking in his
capacity as a private citizen rather than as an employee. See
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Orland Hills does
not argue on appeal that Kristofek did not speak in a private
citizen capacity. Nor does Orland Hills suggest that the
speech at issue was not pled as a “substantial or motivating
factor in the retaliatory action.” Chaklos, 560 F.3d at 711. And
Orland Hills does not suggest that it is appropriate at the
motion to dismiss stage to consider whether, even assuming
the speech involves a public concern, the government can
prove that “ ‘the interest of the employee as a citizen in com-
                                                    (continued...)
8                                                No. 12-2345

to the level of public concern is a question of law, and
in answering this question we look to the ‘content, form,
and context’ of the statement.” Id. (citing Connick v.
Myers, 461 U.S. 138, 147-48, 148 n.7 (1983)). The motive
of the speaker is relevant as part of the “context” in
which the speech was made, id. at 714, but content “re-
mains the most important factor in determining
whether speech addresses a matter of public concern.” Id.
  Orland Hills focuses exclusively on Kristofek’s motive,
arguing that his speech did not involve a matter of
public concern because it was motivated entirely by his
self-interested desire to protect himself from civil and
criminal liability. The district court also dismissed the
claims largely on this basis. The complaint indeed re-
peatedly references Kristofek’s desire to protect himself
from liability, and the catalyst for most, if not all, of the
speech for which he was fired was the April 2011
online training seminar which (understandably) sparked
Kristofek’s fear for his own liability. Even his whistle-
blowing to the FBI was made pursuant to his lawyer’s
advice, which he sought for the purpose of protecting
himself from liability.
  However, a public employee’s speech may still be
protected if the speaker’s motives were mixed and



1
  (...continued)
menting on the matter is outweighed by the interest of the
government employer in promoting effective and efficient
public service.’ ” Id. at 714 (citation omitted). So we do not
address any of these considerations.
No. 12-2345                                               9

also included a desire to help the public, see Chaklos, 560
F.3d at 714; Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir.
2000) (“ ‘[A] personal aspect contained within the motive
of the speaker does not necessarily remove the speech
from the scope of public concern.’ ” (citation omitted)),
and at no point does the complaint allege that Kristofek’s
only motive was to protect himself. The mere fact
that Kristofek was motivated by his self-interest
does not make it implausible that he was also motivated
to help the public. Any reasonable person would under-
stand that a report to the FBI could potentially
result in widespread changes to police practices in
Orland Hills. Kristofek’s early response to the incident
in November 2010 to the deputy chief, “that
the unequal application of the law due to political con-
siderations was improper and possibl[y] illegal,” hints
at a latent concern beyond that of his own liability.
Kristofek’s rather aggressive reaction (e.g., going to the
FBI instead of first discussing his concerns about his
liability to Scully) to an incident that inherently contains
a public interest component also tends to suggest
that Kristofek was not solely concerned with his
own liability. Because it is plausible that Kristofek’s
motives were mixed, Orland Hills’s sole argument on
appeal fails. We may reverse on this basis alone.
  But even if Kristofek were motivated exclusively by
his own self-interest, his First Amendment claim would
not necessarily be dismissed. As we have stated before,
motive alone does not conclusively determine whether
a public employee’s speech involves a matter of public
concern. See, e.g., Gustafson v. Jones, 290 F.3d 895, 908
10                                               No. 12-2345

(7th Cir. 2002) (“As a legal matter, while motive is
relevant to the ‘matter of public concern’ inquiry, we
have consistently held that it is not dispositive.” (citing
cases)); Chaklos, 560 F.3d at 714 (motive is not “an
absolute litmus test [to] supplant content in terms of
overall importance to the public concern inquiry”
(quoting Cliff v. Bd. of Sch. Comm’rs of City of Indianapolis,
Ind., 42 F.3d 403, 410 (7th Cir. 1994))). The marketplace
of ideas would become quite impoverished indeed if
anyone (including public employees) motivated solely
by his or her own self-interest were precluded from
participating in it. Making the speaker’s motive
dispositive would not only run afoul of common sense
and our well-established case law, it would also run
afoul of Connick’s requirement that we look to content
and form in addition to context (of which motive is a
part). See, e.g., Gross v. Town of Cicero, Ill., 619 F.3d 697,
706 (7th Cir. 2010). However, while not dispositive,
motive remains relevant. See Gustafson, 290 F.3d at 908.
And though content is recognized as the most important
factor, neither is it dispositive for that conclusion
would eliminate form and context from the three-factor
Connick test.
  The root of the confusion may lie in a phrase, cited
by both parties, that we have repeated with some fre-
quency: that “speech of public importance is only trans-
formed into a matter of private concern when it is moti-
vated solely by the speaker’s personal interests.”
Gazarkiewicz v. Town of Kingsford Heights, Ind., 359 F.3d
933, 941-42 (7th Cir. 2004); see also Gschwind v. Heiden,
692 F.3d 844, 846 (7th Cir. 2012) (repeating quote); Chaklos,
No. 12-2345                                               11

560 F.3d at 714 (same); Valentino v. Vill. of S. Chicago
Heights, 575 F.3d 664, 672 (7th Cir. 2009) (same);
Milwaukee Deputy Sheriffs’ Ass’n v. Clarke, 574 F.3d 370,
380 (7th Cir. 2009) (same). However, this phrase does
not refer exclusively to the unseen, secret “motive” of the
speaker, which goes only to the context of the speech.
It instead essentially summarizes the “public concern”
test established by Connick v. Myers, 461 U.S. 138
(1983), which looks to the overall objective or point of the
speech, as ascertained by all three factors of content, form,
and context. As we have said in an oft-quoted passage:
“The [Connick] test requires us to look at the point of
the speech in question: was it the employee’s point to
bring wrongdoing to light? Or to raise other issues of
public concern, because they are of public concern? Or
was the point to further some purely private interest?”
Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir. 1985);
see also Delgado v. Jones, 282 F.3d 511, 518 (7th Cir.
2002) (drawing from this formulation); Kokkinis v.
Ivkovich, 185 F.3d 840, 844 (7th Cir. 1999) (same); Cliff,
42 F.3d at 410 (same). Note that these questions appro-
priately focus on the objective of the speech itself, rather
than fixating solely upon the speaker’s inner motives
(though the line is admittedly not always clear). See also
Sousa v. Roque, 578 F.3d 164, 173-75 (2d Cir. 2009)
(resolving similar apparent tension in its own case
law concerning motive). For instance, in Connick,
the Supreme Court noted that the speaker’s motives
were self-interested, but in the same breath also looked
to the content of her speech in determining that
the speech’s objective was to further a personalized
12                                              No. 12-2345

grievance. See Connick, 461 U.S. at 148 (“Nor did Myers
seek to bring to light actual or potential wrongdoing . . . .
[T]he focus of Myers’ questions is not to evaluate
the performance of the office but rather to gather am-
munition for another round of controversy with her
supervisors.”).
   It is not a stretch to distinguish between the secret
intent of the speaker and the objective of the speech.
A whistleblower’s exclusive motive may be a desire
for fame and a book deal, but it is also accurate to say
that the main objective of his speech—given its content,
context, and the manner in which it is delivered—is
to reform the system. See, e.g., Connick, 461 U.S. at 149
(notwithstanding the speaker’s exclusively self-inter-
ested motive, another part of her speech did involve a
matter of public concern due to its content). To further
illustrate by rough analogy, when interpreting the unam-
biguous terms of a contract, we often refer to giving
“effect to the intent of the parties,” but that does not
necessarily mean we are trying to divine the actual,
secret motivations of each party. See, e.g., Hampton v.
Ford Motor Co., 561 F.3d 709, 714 (7th Cir. 2009) (“Our
primary objective in construing a contract is to give
effect to the intent of the parties . . . [, but] the court
looks first to the written agreement and not to the par-
ties’ subjective understandings. The status of a document
as a contract depends on what the parties express to each
other and to the world, not on what they keep to them-
selves.” (citations and quotation marks omitted)).
  In sum, if the objective of the speech—as determined
by content, form, and context—is simply to further a
No. 12-2345                                               13

purely personalized grievance, then the speech does not
involve a matter of public concern. See, e.g., Bivens v.
Trent, 591 F.3d 555, 561-62 (7th Cir. 2010) (“The context
and the form of Bivens’s grievance are consistent with
the vindication of a personal interest, rather than a
public concern, and the content of the grievance—while
touching a subject of potential interest to the public—does
not convince us that his purpose was anything other
than personal.” (emphasis added)); cf. Gustafson, 290
F.3d at 908 (“Motive matters to the extent that even
speech on a subject that would otherwise be of interest
to the public will not be protected if the expression ad-
dresses only the personal effect upon the employee or if
the only point of the speech was to further some
purely private interest.” (citations and quotation marks
omitted)). But if an objective of the speech was also to
bring about change with public ramifications ex-
tending beyond the personal, then the speech does
involve a matter of public concern.
  We pause to stress that nothing in the above discus-
sion should be construed as establishing new law, for
we are simply reaffirming the already well-established
Connick rule that whether speech is a matter of public
concern depends on content, form, and context; and
thus the speaker’s motive, which is a part of context,
obviously cannot be dispositive. See, e.g., Sousa v. Roque,
578 F.3d 164, 173-74 (2d Cir. 2009) (“To the extent that
our precedents have been less than clear, we reaffirm
today . . . : a speaker’s motive is not dispositive in deter-
mining whether his or her speech addresses a matter of
public concern. . . . Whether or not speech addresses a
14                                             No. 12-2345

matter of public concern ‘must be determined by the
content, form, and context of a given statement, as
revealed by the whole record,’ and while motive surely
may be one factor in making this determination, it is
not, standing alone, dispositive or conclusive.” (quoting
Connick, 461 U.S. at 147-48)). We repeat these
principles because both Orland Hills and the district
court seemed to believe that motive was dispositive, and
even Kristofek’s counsel at oral argument was all too
ready to concede that motive alone could determine
whether Kristofek’s speech was protected. It would be
inefficient to allow discovery, and potentially summary
judgment motion practice and trial, to proceed on
such a fundamentally erroneous premise, potentially
resulting in a second appeal and remand.


 B. The Complaint Has Plausibly Established Scully
    as Having Authority to Set Policy for Hiring and
    Firing, Sufficient to State a Monell Claim
  We next address whether Kristofek has plausibly
stated a claim against the Village of Orland Hills as a
municipal body, pursuant to Monell v. New York City
Department of Social Services, 436 U.S. 658 (1978). One
way in which a municipality may be liable for a
section 1983 violation is if “an individual with final
policymaking authority for the municipality (on the
subject in question) caused the constitutional depriva-
tion.” Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664,
674 (7th Cir. 2009). “It is well-established that when a
particular course of action is directed by those who set
No. 12-2345                                               15

municipal policy, the municipality is responsible under
section 1983, even if the action in question is under-
taken only once.” Id. at 675. “But just because [the individ-
ual] is the decisionmaker on hiring/firing decisions for the
Village government does not necessarily make him
the policymaker on those issues.” Id. “[T]he mere unre-
viewed discretion to make hiring and firing decisions
does not amount to policymaking authority. There must
be a delegation of authority to set policy for hiring and
firing, not a delegation of only the final authority to
hire and fire.” Id. at 676 (quotation marks and citation
omitted).
  We find that Kristofek has stated, albeit barely, a plausi-
ble claim that Scully had at least de facto authority to
set policy for hiring and firing. The complaint suggests
Scully was fully in charge of the police department and
that his firing decisions were not reviewed. See, e.g.,
Valentino, 575 F.3d at 677 (“Key in our reasoning was
that the plaintiff provided evidence that: (1) the board
did not review the Chief’s personnel decisions; and (2) the
Chief was completely in charge of the probation depart-
ment.”) (citing Kujawski v. Bd. of Comm’rs of Bartholomew
Cty., Ind., 183 F.3d 734, 740 (7th Cir. 1999))). The picture
painted by the complaint, which includes Scully’s angry
reaction to Kristofek’s speech, “suggests that [Scully]
had the unfettered discretion to hire and fire whomever
he pleased.” Id. at 678; see also Gschwind, 692 F.3d at 848
(school board permitted principals to “make evaluation
and employment decisions as they see fit,” making the
principal a final policymaker). And it is plausible that
Scully essentially had a de facto policy that anyone
16                                           No. 12-2345

who made noise about political corruption or favoritism
would be fired, especially when he equated “speaking
to other persons about the circumstances of the arrest of
the driver” as a breach of trust against Scully, and then
suggested that he could not work with anyone whom
he could not trust. By firing Kristofek and escorting
him out of the building in front of his co-workers, many
of whom were well aware of Kristofek’s speech, Scully
made it clear to his staff that anyone else who com-
plained about the November 2010 incident (or any other
incident involving political favoritism) would meet a
similar fate. Two other officers involved in the incident
have left the force since that time. Though discovery
may reveal that they left for reasons having nothing to
do with the November 2010 incident, it may be inferred
at the pleading stage that their leaving was due to
Scully’s established policy.
  At oral argument, Orland Hills suggested that the
Village Board never formally delegated to Scully the
authority to set policy in regards to hiring and firing,
rather only to make final hiring and firing decisions.
But even if it were appropriate to consider this fact
outside the pleadings on a motion to dismiss, that fact
alone does not necessarily preclude, or render im-
plausible, the fact that Scully essentially had de facto
authority to set hiring and firing policy “without as
much as a whisper” from the Village Board. Valentino,
575 F.3d at 677. Kristofek has thus adequately stated
a claim against the Village at this early stage. Orland
Hills will, of course, have an opportunity to show
through evidence that it has not violated Kristofek’s
constitutional rights.
No. 12-2345                                          17

                  III. CONCLUSION
  For the above-stated reasons, we R EVERSE the district
court’s dismissal of the complaint and R EMAND for
further proceedings consistent with this opinion.




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