case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 1 of 24
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF INDIANA
`FORT WAYNE DIVISION
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`))
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`))
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`DONALD LANTZ,
`RONNIE WRIGHT,
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`Plaintiffs,
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`v.
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`THE OFFICE OF THE JACKSON
`TOWNSHIP TRUSTEE, THE
`JACKSON TOWNSHIP ADVISORY
`BOARD, JACKSON TOWNSHIP, AND
`THE JACKSON TOWNSHIP
`VOLUNTEER FIRE CORPORATION
`OF DEKALB COUNTY,
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`Defendants.
`
`No. 1:10 CV 340
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`))
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`OPINION AND ORDER
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`This matter is before the court on the township defendants’ (the Office of the
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`Jackson Township Trustee, the Jackson Township Advisory Board, and Jackson
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`Township) motion for summary judgment (DE # 34) and the Jackson Township
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`Volunteer Fire Corporation of DeKalb County’s motion for summary judgment
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`(DE # 36). For the reasons set forth below, those motions are granted in part, and the
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`remaining claims are remanded to state court.
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`I.
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`Facts and Background
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`The following facts are not genuinely disputed. The Jackson Township
`1
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`1
` The facts that follow are construed most favorably to plaintiffs, the non-moving
`parties. Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir. 1998). The facts are
`taken from defendants’ separate statements of material facts (DE # 37 at 2; DE # 35 at 2),
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 2 of 24
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`Volunteer Fire Corporation (“the VFC”) provides firefighting protection services for
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`Jackson Township, which is located in Dekalb County, Indiana. All of the VFC’s
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`corporate powers are vested in the Fire Corporation Board. This Board oversees all of
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`the VFC’s operations. In 2009, the Jackson County Trustee entered into an agreement
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`with the Fire Corporation Board. Under the agreement, Jackson Township paid the VFC
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`$38,500 a year for fire protection services.
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`The Fire Corporation Board is made up of eleven individuals. The Jackson
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`Township Trustee and the Fire Chief are both mandatory members of the Fire
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`Corporation Board. The other nine members are elected. The Fire Corporation has its
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`own set of bylaws. Each year, the Fire Corporation Board appoints a Fire Chief and an
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`Assistant Fire Chief.
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`Plaintiff Donald Lantz began his tenure at the VFC after joining as a volunteer
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`firefighter in 2000. From that time, until the date he was terminated in 2009, Lantz held
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`several positions, including Assistant Chief. Plaintiff Ronnie Wright began working for
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`the VFC in 1982. Wright also held various positions within the corporation, including
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`Fire Chief from 1991 to 2005. As volunteer firefighters, Lantz and Wright received a
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`yearly stipend for clothing and reimbursement for training and attendance on fire runs.
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`and from the deposition of plaintiff Lantz. (DE # 35-1; DE # 37 -2; DE # 39-1; DE # 41-1.)
`Although plaintiffs have filed two lengthy statements of disputed facts, they have not
`disputed any of the facts set out in this fact section.
`In their various submissions, the parties discuss numerous other facts relevant to
`plaintiffs’ state-law claims. As discussed in more detail below, the court will not address
`those claims, and will therefore limits this fact section to the facts relevant to plaintiffs’
`federal claims.
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`2
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 3 of 24
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`In 2008, the VFC held a fundraiser at which alcohol was served. At some point
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`prior to the date of the fundraiser, Lantz, while at a meeting of firefighters and Fire
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`Corporation Board members, announced that he would not be attending the fundraiser
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`because his religious beliefs would not allow him to participate in an event that served
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`alcohol to the public. (DE # 37-2 at 5.) The VFC planned to hold the same fundraiser in
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`2009. When it was announced that the same fundraiser would be held, but this time, sex
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`toys would be auctioned off, Lantz stated to his fellow firefighters that he “would not
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`participate again in [the] fundraiser.” (Id.; DE # 39-1 at 76.) Although Lantz was not
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`penalized in any way for failing to participate in the fundraisers, other members of the
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`VFC started to shun him after he announced he would not be attending the 2009
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`fundraiser.
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`Lantz was involved in another incident that caused tension at the VFC. One of
`2
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`Lantz’s fellow volunteer firefighters, Todd Helgesen, also worked at a nightclub in Fort
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`Wayne. At some point, Helgesen told Lantz two stories about his employment at the
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`nightclub that caused Lantz to become alarmed about Helgesen’s well-being. First,
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`Helgesen told Lantz that someone had pointed a gun at his face while he was working
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`security at the nightclub one night. Additionally, Helgesen told Lantz that twelve of his
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`coworkers at the nightclub had been arrested for drug possession. After hearing these
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`stories, Lantz called the nightclub that Helgesen was working at out of a concern for
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`Helgesen’s well-being. Lantz ended up voicing his concerns to Helgesen’s supervisor,
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`2
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` It is not clear from the parties’ filings when this incident took place.
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`3
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 4 of 24
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`and later, the owner of the nightclub. After learning about this incident, Matt Logsdon,
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`the Fire Chief at the time, approached Lantz about the phone calls to the nightclubs.
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`Lantz told Logsdon that he was concerned for Helgesen’s well-being, apologized for
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`making the calls, and promised not to make any additional phone calls to the nightclub.
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`On March 23, 2009, the Fire Corporation Board met and decided to terminate
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`both Lantz and Wright. On September 1, 2010, plaintiffs filed suit in Indiana state court
`3
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`against the Jackson Township Trustee, the Jackson Township Advisory Board, Jackson
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`Township, and the Jackson Township Volunteer Fire Corporation of Dekalb County. In
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`their complaint (DE # 1), plaintiffs allege federal claims under 42 U.S.C. § 1983 for
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`violations of the first amendment, and state-law claims of breach of contract, wrongful
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`termination, defamation, libel, and violations of the Indiana Open Door Law. (DE # 1.)
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`Additionally, plaintiffs seek a declaration that the removal of the plaintiffs from their
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`positions with the VFC was invalid and in violation of 42 U.S.C. § 1983. The township
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`defendants and the VFC have both moved for summary judgment on all of plaintiffs’
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`claims.
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`3
` The parties do not agree on the reason that the plaintiffs were fired. For
`purposes of deciding the present motions, however, the court will assume that Lantz
`was fired for making his statement regarding the fundraiser and his statements
`regarding Helgesen. Milwaukee Deputy Sheriff’s Assoc. v. Clarke, 574 F.3d 370, 377 (7th
`Cir. 2009) (employee has no cause of action for First Amendment retaliation if he or she
`is not speaking “‘as a citizen on a matter of public concern.’” (quoting Garcetti v.
`Ceballos, 547 U.S. 410, 417 (2006))).
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`4
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 5 of 24
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`II.
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`Legal Standard
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`FEDERAL RULE OF CIVIL PROCEDURE 56 requires the entry of summary judgment,
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`after adequate time for discovery, against a party “who fails to make a showing
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`sufficient to establish the existence of an element essential to that party’s case, and on
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`which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
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`317, 322 (1986). “[S]ummary judgment is appropriate–in fact, is mandated–where there
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`are no disputed issues of material fact and the movant must prevail as a matter of law.
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`In other words, the record must reveal that no reasonable jury could find for the non-
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`moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.
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`1994) (citations and quotation marks omitted).
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`The moving party bears the initial burden of demonstrating that these
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`requirements have been met; it may discharge this responsibility by showing that there
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`is an absence of evidence to support the non-moving party’s case. Carmichael v. Village of
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`Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010) (citing Celotex, 477 U.S. at 323). To
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`overcome a motion for summary judgment, the non-moving party must come forward
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`with specific facts demonstrating that there is a genuine issue for trial. Id. (citing
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`Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The existence of
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`a mere scintilla of evidence, however, is insufficient to fulfill this requirement. Id. (citing
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`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The nonmoving party must
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`show that there is evidence upon which a jury reasonably could find for him. Id.
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`5
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 6 of 24
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`The court’s role in deciding a summary judgment motion is not to evaluate the
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`truth of the matter, but instead to determine whether there is a genuine issue of triable
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`fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th
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`Cir. 1994). On summary judgment a court may not make credibility determinations,
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`weigh the evidence, or decide which inferences to draw from the facts; these are jobs for
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`a factfinder. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citing Anderson, 477 U.S. at
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`255). In viewing the facts presented on a motion for summary judgment, the court must
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`construe all facts in a light most favorable to the non-moving party and draw all
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`reasonable inferences in favor of that party. Chmiel v. JC Penney Life Ins. Co., 158 F.3d
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`966, 968 (7th Cir. 1998); Doe, 42 F.3d at 443. Importantly, the court is “not required to
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`draw every conceivable inference from the record [in favor of the non-movant]-only
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`those inferences that are reasonable.” Bank Leumi Le-Israel, B.M., v. Lee, 928 F.2d 232, 236
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`(7th Cir. 1991) (emphasis added).
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`III.
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`Analysis
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`The court will begin and end its analysis with plaintiffs’ First Amendment and
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`§ 1983 declaratory judgment claims.
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`A.
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`Lantz’s First Amendment Claim
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`Plaintiffs provide two separate statements that they believe prompted Lantz’s
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`termination: Lantz’s statement that he would not participate in the fundraiser, and the
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`conversations Lantz had with Helgesen’s superiors at the nightclub. (DE # 42 at 21.)
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`Both groups of defendants have moved for summary judgment on Lantz’s First
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`6
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 7 of 24
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`Amendment claim. The VFC argues that it is entitled to summary judgment on Lantz’s
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`First Amendment claim because the phone conversations Lantz had with Helgesen’s
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`supervisors did not involve a matter of public concern. (DE # 37 at 9.) The township
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`defendants argue that they are entitled to summary judgment because Lantz’s
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`statement that he would not participate in the fundraiser did not involve a matter of
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`public concern. (DE # 35 at 10.)4
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`The First Amendment prohibits “a public employer from retaliating against an
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`employee for engaging in protected speech.” Clarke, 574 F.3d at 376. The court must
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`apply a three-step analysis to a First Amendment retaliation claim brought under 42
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`U.S.C. § 1983: “(1) the employee’s speech must be constitutionally protected; (2) the
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`employer’s action must be motivated by the constitutionally protected speech; and (3) if
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`the action was retaliatory, [the court must] consider whether the employer has
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`demonstrated that it would have taken the same action irrespective of the employee’s
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`speech.” Id. To be constitutionally protected, the speech must involve a matter of public
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`4
` Thus, the VFC and the township defendants have each moved for summary
`judgment on the same legal theory, but with respect to separate statements that Lantz
`contends prompted his termination. Because Lantz had the opportunity to respond to
`arguments regarding both sets of statements, the court will analyze these motions
`together as if both the VFC and the township defendants had argued that neither set of
`statements Lantz contends prompted his termination involved a matter of public
`concern. See Malak v. Associated Physicians, Inc., 784 F.2d 277, 280 (7th Cir. 1986)
`(“[W]here one defendant files a motion for summary judgment which the court grants,
`the district court may sua sponte enter summary judgment in favor of additional non-
`moving defendants if the motion raised by the first defendant is equally effective in
`barring the claim against the other defendants and the plaintiff had an adequate
`opportunity to argue in opposition to the motion.”).
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`7
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 8 of 24
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`concern. Kristofek v. Village of Orland Hills, ---- F.3d ----, No. 12–2345, 2013 WL 932016, at
`5
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`*3 (7th Cir. 2013). “‘Whether a statement rises to the level of public concern is a question
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`of law, and in answering this question [the court must] look to the content, form, and
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`context of the statement.’” Id. (quoting Chaklos, 560 F.3d at 712. The content of the
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`speech, however, is the most important factor in determining whether the speech
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`addressed a matter of public concern. Id.
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` “[I]f the objective of the speech—as determined by content, form, and
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`context—is simply to further a purely personalized grievance, then the speech does not
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`involve a matter of public concern.” Kristofek, 2013 WL 932016, at *6. If the speech does
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`involve a matter of public concern, “the court must balance the interest of the public
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`employee, as a citizen, in commenting upon matters of public concern with the interest
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`of the government, as the employer, in promoting the efficiency of the public services it
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`provides.” Klug v. Chicago Sch. Reform Bd. of Trs., 197 F.3d 853, 857 (7th Cir. 1999). If the
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`speech does not involve a matter of public concern, however, “the employee has no
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`cause of action for First Amendment retaliation, and [the court] need not balance the
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`employee’s interests against the government’s interest in promoting effective and
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`efficient public services.” Clarke, 574 F.3d at 377; see also Metzger v. DaRosa, 367 F.3d 699,
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`703 (7th Cir. 2004).
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`5
` To be protected, the public employee must also be speaking as a citizen, and not
`as an employee pursuant to their official duties. Chaklos v. Stevens, 560 F.3d 705, 711-12
`(7th Cir. 2009). Neither the township defendants nor the VFC argue that Lantz’s
`statements were made pursuant to his official duties.
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 9 of 24
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`Defendants contend that the statements plaintiffs rely on for their First
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`Amendment claims do not involve matters of public concern because both statements
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`were purely personal in nature. (DE # 35 at 10; DE # 37 at 11-12.) Plaintiffs argue that
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`these statements were part of a message that Lantz wanted to convey regarding “how a
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`firefighter should conduct themselves as a member of the [VFC]” and the conduct of
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`firefighters while in public. (DE # 40 at 15; DE # 42 at 21.) The court will address each
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`statement separately.
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`1.
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`Statement Regarding Fundraiser
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`The first statement that Lantz contends prompted his termination was his
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`statement that he would not participate in the VFC’s fundraiser. (DE # 42 at 21.) The
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`content, form, and context of this statement weigh in favor of finding that it did not
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`involve a matter of public concern. As to the content, Lantz testified in his deposition
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`that when he found out that the fundraiser was serving alcohol and auctioning off sex
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`toys, he told the other firefighters that “I will not participate again in this fundraiser.”
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`(DE # 35-1 at 4; DE # 37-2 at 5.) There is no evidence that Lantz elaborated on this point,
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`although he did make a similar statement regarding the previous year’s fundraiser. 6
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`6
` When the VFC had announced that it would hold a similar fundraiser the
`previous year, Lantz told his fellow firefighters and members of the Fire Corporation
`Board that his “spiritual beliefs would not allow [him] to participate in an activity like
`[the fundraiser.]” (DE # 35-1 at 4.) Lantz went on to make clear that his refusal to
`participate was based on the fact that there would be alcohol served at the event. (Id.)
`Plaintiffs do not argue that this statement involved a matter of public concern because it
`was motivated by Lantz’s religious beliefs, and the court will not address that issue.
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 10 of 24
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`Although the topic of how firefighters conduct themselves as members of the fire
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`department, or even whether it is appropriate for a taxpayer-funded fire department to
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`hold a public event serving alcohol and auctioning off sex toys, certainly could be
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`matters of public concern, nothing in the content of plaintiff’s statement indicates that
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`he raised those issues, and the content of the speech is what is important, “not the
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`inchoate intentions or views that the speaker privately holds.” Wernsing v. Thompson,
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`423 F.3d 732, 752 (7th Cir. 2005). Additionally, although plaintiffs contend that this
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`statement was part of a larger message Lantz intended to convey regarding “how a
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`firefighter should conduct themselves as a member of the [VFC]” and the conduct of
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`firefighters while in public, plaintiffs have failed to direct the court to any evidence that
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`supports this assertion. (DE # 40 at 15; DE # 42 at 21.)
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`The context of plaintiff’s statement also weighs in favor of a finding that this
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`statement did not involve a matter of public concern. When analyzing the context of a
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`statement, the court must look to the speaker’s motive and the circumstances
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`surrounding the statement. Miller v. Jones, 444 F.3d 929, 937 (7th Cir. 2006); see also
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`Girten v. Town of Schererville, 819 F. Supp. 2d 786, 795 (N.D. Ind. 2011). Lantz’s
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`deposition testimony reveals that he was motivated to make this statement by his own
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`personal beliefs regarding religion and parenting. (DE # 35-1 at 4.) There is no evidence
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`that Lantz raised any issue regarding the fundraiser after he announced that he would
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`not participate, and “where considerations of motive and context indicate that an
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`employee’s speech raised a topic of general societal interest merely for personal reasons
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 11 of 24
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`rather than a desire to air the merits of the issue . . . these factors militate against the
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`conclusion that the employee’s speech is entitled to First Amendment protection.”
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`DaRosa, 367 F.3d at 702 (citation and quotation omitted). There is no indication here that
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`Lantz made this statement in an attempt to get the VFC to change its policies on the
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`fundraiser. Instead, the evidence shows Lantz was simply informing his coworkers that
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`he would not be participating in the event.
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`Finally, in regard to form, Lantz made this statement to his fellow firefighters.
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`(DE # 35-1 at 4.) Thus, this statement was entirely internal to the VFC, and although this
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`does not render the speech unprotected, it does suggest that the statement was personal
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`in nature. Bivens v. Trent, 591 F.3d 555, 561 (7th Cir. 2010); see also Girten, 819 F. Supp. 2d
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`at 795.
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`Several Seventh Circuit decisions are instructive on these principles. In Bivens,
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`the plaintiff, an Illinois State Police officer, was assigned to a position as a range officer
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`at a firing range. 591 F.3d at 557. The plaintiff oversaw all aspects of the firing range’s
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`operations. Id. After he had worked at the firing range for a few months, the plaintiff
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`began to feel extremely ill, and he became concerned that being exposed to lead at the
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`firing range was the source of his medical problems. Id. The plaintiff expressed his
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`concerns through the chain of command, and he eventually got a blood test done,
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`which revealed that his lead levels were extremely high. Id. A few days later, the
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`plaintiff filed a grievance with the state police union for a violation of the safe working
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`conditions provision of the collective bargaining agreement. Id. The firing range was
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 12 of 24
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`eventually tested, and subsequently cleaned after elevated lead levels were found. Id.
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`The cleaning required that the range be closed for approximately nine months. Id. The
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`closure of the range received some local media attention. Id.
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`The plaintiff eventually filed a § 1983 suit against his supervisors at the state
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`police. In that suit, the plaintiff alleged that his supervisors had retaliated against him in
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`violation of the First Amendment for filing his grievance by docking his pay, subjecting
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`him to different rules than his coworkers, and harassment. Id. at 558-59. The defendants
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`moved for summary judgment, and the district court granted the motion after
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`concluding that the plaintiff was not speaking as a private citizen. Id. at 559. The
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`Seventh Circuit affirmed the district court’s decision, but instead of relying on the
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`private citizen basis as the district court had, the Seventh Circuit ruled that the
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`plaintiff’s grievance did not raise a matter of public concern. Id. at 562. In reaching that
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`conclusion, the court noted that although the subject matter of the plaintiff’s grievance,
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`the elevated lead levels at the firing range, was potentially of interest to the public, the
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`court found that the speech was not protected because there was no evidence that the
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`plaintiff “was attempting to bring an issue of wrongdoing or environmental safety to
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`public light.” Id. at 560-62.
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`The Seventh Circuit reached the same conclusion in Smith v. Fruin. 28 F.3d 646
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`(7th Cir. 1994). In that case, a Chicago police detective complained to his superiors
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`about a smoke-free workplace policy not being followed. Id. at 647. The plaintiff’s
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`complaints were not addressed, and the plaintiff proceeded to complain to the health
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 13 of 24
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`department and the police department’s office of legal affairs. Id. at 648. After the
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`plaintiff complained to the health department the police department’s office of legal
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`affairs, the plaintiff was removed from his post investigating sex crimes, and was given
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`a new assignment recording the license plate numbers of certain cars. Id. The plaintiff
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`believed that his reassignment was in retaliation for speaking out on the smoking issue,
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`and brought a First Amendment suit against his superiors. Id. at 648-49
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`The district court concluded that the plaintiff’s comment regarding a smoke-free
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`environment clearly involved a matter of public concern. Id. at 651. The Seventh Circuit
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`disagreed. That court recognized that the issue of second-hand smoke was a matter of
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`“widespread public interest,” but the fact that the plaintiff had raised that issue did not
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`automatically render his speech protected. Id. at 651. The Seventh Circuit concluded
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`that the plaintiff’s statements were purely personal in nature:
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`[Each] time [the plaintiff] raised the smoking issue, he spoke solely in terms
`of his own sensitivity to smoke and the difficulty he had experienced with
`smokers at Area 5 headquarters. He did not cite any difficulties experienced
`by other non-smokers, nor did he purport to speak on behalf of anyone but
`himself. . . . The relief he requested was likewise individual; he simply
`wanted a work environment in which he would not be exposed to second-
`hand smoke.
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`Id. at 651-52
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`The Seventh Circuit reached the opposite conclusion in Gschwind v. Heiden. 692
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`F.3d 844 (7th Cir. 2012). In that case, the plaintiff, a public school teacher, was
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`threatened with violence by a student during a classroom discussion. Id. at 845. The
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`plaintiff considered filing a criminal complaint, but the school’s principal and assistant
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 14 of 24
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`principal were not supportive, as they feared that the student’s parents would sue the
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`school. Id. at 845. The plaintiff eventually filed the criminal complaint despite the
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`principal and assistant principal’s concerns. Id. The following day, the plaintiff received
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`an “unsatisfactory” evaluation, despite the fact that all of his previous evaluations had
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`been “satisfactory.” Id. at 845-46. The plaintiff was also informed by the principal and
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`the assistant principal that if he did not resign from his position, the principal would
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`recommend to the school board that the plaintiff’s contract not be renewed for the
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`following year. Id. at 846.
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`The plaintiff eventually brought a First Amendment retaliation suit against the
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`school district, the principal, and the assistant principal. Id. at 845. The district court
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`granted the defendants’ motion for summary judgment, finding that the plaintiff’s
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`criminal complaint about being threatened did not involve a matter of public concern.
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`Id. Specifically, the district court concluded that the plaintiff had filed the complaint out
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`of a concern for his own personal safety, and thus, he had filed the complaint as a
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`matter of purely private interest. Id. at 846. The Seventh Circuit disagreed, however,
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`noting that violence in public schools is an issue that the public is in fact very interested
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`in. Id. at 846. Additionally, in an affidavit, the plaintiff stated that one of the reasons he
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`had filed the complaint was “‘to bring to the public light the fact that such an incident
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`had occurred.’” Id.
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`Lantz’s statement in this case is more in line with the grievance filed in
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`Bivens than the complaint filed in Gschwind. While the VFC’s fundraiser may have been
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`14
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 15 of 24
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`a matter of public concern, there is no evidence that Lantz’s statement regarding the
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`fundraiser was anything other than a declaration, motivated by personal beliefs, that he
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`would not participate in the fundraiser. Marshall v. Porter County Plan Com’n, 32 F.3d
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`1215, 1219 (7th Cir. 1994) (“If the speech concerns a subject of public interest but the
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`expression addresses only the personal effect upon the employee, then as a matter of law
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`the speech is not of public concern.” (emphasis in original)). Additionally, like the
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`plaintiff in Fruin, Lantz was speaking on his own behalf and only sought individual
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`“relief,” namely, he did not want to participate in the fundraiser. Fruin, 28 F.3d at 651.
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`As noted above, plaintiffs contend that the fundraiser statement and plaintiff’s
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`phone calls to Helgesen were part of a greater message that Lantz wanted to convey
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`regarding how firefighters should behave as members of the fire department and that
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`firefighters should set a positive example for the community. (DE # 40 at 14; DE # 42 at
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`21.) Despite this contention, plaintiffs do not direct the court to any evidence that
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`Lantz’s statement was motivated by a desire to change the fundraiser in any way or
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`even to start a discussion about whether it was appropriate for the VFC to be holding
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`an event that included serving alcohol or auctioning off sex toys. Additionally, as both
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`groups of defendants point out in their reply briefs (DE # 43 at 1; DE # 44 at 5-6), there
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`is no evidence that Lantz made this statement as part of some sort of larger message
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`regarding “the public perception of firefighters and setting a positive example in the
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`community.” (DE # 40 at 1.)
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`15
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 16 of 24
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` The closest plaintiffs come to providing evidence to support this argument is a
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`claim in a response brief that the Fire Chief, Matthew Logsdon, “understood that Lantz
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`did not think [that the fundraiser serving alcohol and giving away sex toys] reflected
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`well on the [VFC].” (DE # 40 at 5.) While it is “true that a listener’s reactions are part of
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`the calculus in determining whether a statement constitutes speech on a matter of
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`public concern[,]” Gross v. Town of Cicero, 619 F.3d 697, 706 (7th Cir. 2010), plaintiffs do
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`not cite any evidence to support their assertion that Logsdon thought Lantz did not
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`believe that the fundraiser reflected well on the department. (DE # 40 at 5.) The court “is
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`not required to scour the record for evidence that supports a party’s case if the party
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`fails to point it out; that is the counsel’s job.” Dominguez v. Quigley’s Irish Pub, Inc., 790 F.
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`Supp. 2d 803, 805 (N.D. Ill. 2011). Despite this, a review of the portions of Logsdon’s
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`depositions that plaintiffs submitted with their response briefs (DE # 39-1 at 32; DE # 41
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`at 89), does not reveal any testimony that would support plaintiffs’ assertion, and
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`therefore, plaintiffs’ have provided no evidence that Logsdon understood Lantz’s
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`statement to mean anything other than a declaration that Lantz would not participate in
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`the fundraiser. United States v. Stevens, 500 F.3d 625, 628 (7th Cir. 2007) (“[A]rguments in
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`a . . . brief, unsupported by documentary evidence, are not evidence.” (emphasis in
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`original)); see also Campania Mgmt. Co., Inc. v. Rooks, Pitts & Poust, 290 F.3d 843, 853 (7th
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`Cir. 2002) (“[I]t is universally known that statements of attorneys are not evidence.”).
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`Put simply, plaintiffs have not presented any evidence that “an objective of the
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`speech was also to bring about change with public ramifications extending beyond the
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 17 of 24
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`personal[,]” Kristofek, 2013 WL 932016, at *6, or that the statement was made to “air the
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`merits of the issue.”Fruin, 28 F.3d at 652. Therefore, the court concludes that Lantz’s
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`statement did not involve a matter of public concern.7
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`2.
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`Statements Regarding Helgesen
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`Defendants argue that Lantz’s statements to Helgesen’s supervisors at the night
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`club that he worked at did not involve a matter of public concern. (DE # 37 at 9.)
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`Plaintiffs contend that Lantz’s phone calls with Helgesen’s supervisors at the nightclub
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`are protected speech because they involve a public matter, specifically, how a firefighter
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`should act in public and the importance of emergency personnel avoiding dangerous
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`situations. (DE # 40 at 15.) As noted above, Lantz made these phone calls after Helgesen
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`told Lantz that someone had pointed a gun at Helgesen’s face while working at the
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`nightclub, and because Helgesen told Lantz that several of his coworkers at the
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`nightclub had been arrested for drugs. (DE # 37-2 at 6.)
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`The content, context, and motivation of these statements all indicate that these
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`statements did not involve a matter of public concern. As to the content, Lantz simply
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`told the two supervisors he spoke to about the incidents Helgesen had told him about,
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`and expressed concern for Helgesen’s well-being. (DE # 39-1 at 79-83 (Lantz Deposition
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`7
` In their response briefs (DE # 40; DE # 42), plaintiffs cite several cases in
`support of their First Amendment claim. The only case plaintiffs cite regarding the
`public concern analysis is in regard to an argument that Lantz was not speaking
`pursuant to his official duties when he made his statements. (DE # 42 at 21.) As noted
`above, however, none of the defendants argue that Lantz made his statement pursuant
`to his official duties. Because the other cases plaintiffs cite support other aspects of their
`First Amendment claims, the court need not address them.
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`17
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`case 1:10-cv-00340-JTM document 48 filed 03/29/13 page 18 of 24
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`pages 20-24.)) The evidence presented also shows that Lantz was motivated to make
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`these phone calls by his concern for Helgesen’s well-being. (See Lantz Deposition page
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`23, lines 23-24 (“Well, I was calling concerning [Helgesen’s] welfare . . . .”); Lantz
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`Deposition page 25, lines 13-16 (“I was the one that made that call and just stated to
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`[Fire Chief Logsdon] and the other officers of my concern from the comments
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`[Helgesen] was making, my concern for [Helgesen’s] well-being . . . .”); Lantz
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`Deposition page 25-26 (“I had known [Helgesen] for the three years that he had been on
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`and we created a really neat friendship, and early on he stressed that he never drinks
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`alcohol or parties, a really neat kid, and once he got the job [at the VFC], his talk on the
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`fire department was partying, getting drunk, a lot of sex with women, living with a girl
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`now, his life I saw taking a total change. My plan [when calling Helgesen’s employer]
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`was to intervene and try to help him get back on the path and lifestyle that he had
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`prior.”).
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` Lantz was clearly concerned about the well-being of his friend and fellow co-
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`worker Helgesen. As defendants correctly point out (DE # 43 at 1), there is no evidence
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`that Lantz made these statements as part of a larger message about how firefighters
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`behave in public or the importance of emergency personnel to avoid dangerous
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`situations. There is also no evidence to indicate this concern had anything to do with
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`the VFC or Helgesen’s ability to do