The Seventh Circuit recently presented a refresher in what kinds of claims public employees may bring against their employers. In Forgue v. City of Chicago, a retired police officer sued his former employer, the City of Chicago, and co-workers alleging that they violated three of his constitutional rights: freedom of speech, equal protection, and procedural due process. Forgue alleged that he and his sons were harassed by CPD officers during his employment and that he was unfairly passed over for promotions and denied a retirement card, which was given to all retiring officers. Forgue claimed that CPD officers acted in response to his strict adherence to CPD policies and procedures and reporting officers for infractions.
Forgue’s free speech complaint alleged that the Chicago Police Department passed him up for promotion and assigned him to less desirable assignments in retaliation for complaints he filed with department disciplinary authorities about officers mistreating his sons. The complaint ultimately failed because, the court held, Forgue made his statements in his role as a public employee, not as a private citizen. Part of a police officer’s duty is to report misconduct of fellow officers. Even though Forgue’s complaints about police misbehavior stemmed from the mistreatment of his sons, he was not entitled to First Amendment protection as a private citizen when making such statements because disclosing police misconduct was part of his job.
The Seventh Circuit Appellate Court, while dismissing Forgue’s Equal Protection claim, reiterated that disputes between a public employee and his superiors or coworkers may never be litigated as a class-of-one Equal Protection claim. A class-of-one claim allows an individual who does not purport to be a part of any group to bring an Equal Protection claim if the plaintiff can show that he or she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Forgue claimed that he was targeted for harassment and discriminated against in the conditions of his employment without a rational basis. The court rejected this claim because the government, as an employer, must make a myriad of decisions based on a vast array of subjective, individualized assessments. To allow class-of-one claims in the public employer-employee context would undermine the state officials’ discretion as employers.
Forgue did succeed, however, in moving forward with his due process claim. A successful due process claim must show that the plaintiff had (1) a cognizable property interest; (2) a deprivation of that property interest; and (3) a denial of due process. A property interest may be established by contract, but also by unwritten or implied policies where there is a mutual understanding that one party will be entitled to a future benefit. Forgue alleged that the retirement cards issued to retired CPD officers, which allowed retired officers to carry concealed firearms, procure health insurance, and find other law enforcement employment, were given to all retiring CPD employees as custom. The court held that CPD may have violated Forgue’s due process rights in denying him the card and remanded the case back to the District Court for further proceedings on this claim.