Dick V. Lalowski v. City of Des Plaines

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-3604
DICK V. LALOWSKI ,
Plaintiff-Appellant,
v.
C ITY OF DES P LAINES, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:08-cv-03780 — James B. Zagel, Judge.
____________________
A RGUED S EPTEMBER 10, 2013 — DECIDED J UNE 17, 2015
____________________
Before K ANNE, WILLIAMS, and TINDER , Circuit Judges.
TINDER , Circuit Judge. Dick Lalowski was formerly a po-
lice officer for the City of Des Plaines, Illinois. However, on
the morning of May 20, 2006, he had two altercations with a
group of demonstrators at an abortion clinic, one while he
was on duty and the other shortly after his shift ended.
Lalowski’s conduct during these altercations led the City’s
police chief at the time, James Prandini, to file charges
against him with the Des Plaines Board of Fire and Police

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2 No. 12-3604
Commissioners and to recommend his discharge. The Board
held two sets of administrative hearings, one on the merits
of the charges against Lalowski and the other on the appro-
priate penalty. After the first set of hearings, the Board voted
unanimously to sustain the charges, and after the second set
of hearings, it voted unanimously to terminate Lalowski’s
employment. The Board issued a written decision on May
30, 2008.
On July 2, 2008, Lalowski filed this action against
Prandini, the Board, and the City. He brought five claims,
but only two are at issue in this appeal: (1) a claim against all
three defendants under 42 U.S.C. § 1983, alleging that they
retaliated against him for his protected speech in violation of
the First Amendment; and (2) a claim against the Board un-
der Illinois’s Administrative Review Law, 735 I.L.C.S. §§ 5/3-
101 et seq., seeking review of the Board’s decision to termi-
nate his employment. The district court granted summary
judgment against Lalowski on both claims, and he appeals
that ruling.
I. SPEECH RETALIATION CLAIM
The parties filed cross-motions for summary judgment
on Lalowski’s speech retaliation claim under the First
Amendment. “On review of cross-motions for summary
judgment, we view all facts and inferences in the light most
favorable to the nonmoving party on each motion.” Wis.
Alumni Research Found. v. Xenon Pharm., Inc., 591 F.3d 876,
882 (7th Cir. 2010). Summary judgment is appropriate if
“there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Below, we recite the facts relevant to Lalowski’s
speech retaliation claim that were before the district court on

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No. 12-3604 3
summary judgment. These facts are undisputed unless oth-
erwise noted.
A. SUMMARY J UDGMENT RECORD
During the early morning hours of May 20, 2006, a group
of demonstrators gathered outside an abortion clinic in Des
Plaines, Illinois. The demonstrators hoped to dissuade wom-
en from entering the clinic, and as part of that effort, they
planned to display large signs containing images of aborted
fetuses. Meanwhile, then-Officer Lalowski was nearing the
end of an overnight shift. Around 6:30 a.m., he noticed the
demonstrators setting up, and he pulled his marked police
vehicle up to them and began speaking to a woman named
Paula Emmerth. Lalowski told Emmerth not to impede traf-
fic or to stop anyone from entering the clinic. He also told
the demonstrators that he would arrest them if they did not
comply.
At this point, the stories diverge. Emmerth claims
Lalowski called her a “fat fucking cow.” She and other de-
monstrators also claim that Lalowski used repeated profani-
ties and threats (e.g., “I’ll fucking arrest you”), accused the
demonstrators of acting like the Taliban, and generally be-
haved in a way that was intimidating and “out of control.”
Lalowski, on the other hand, concedes that this initial con-
frontation with the demonstrators was “adversarial” but de-
nies using profanity or accusing them of acting like the Tali-
ban. In any event, this first exchange lasted only a few
minutes. Upon request, Lalowski provided the demonstra-
tors with his name and badge number, then he left the clinic
and returned to the Des Plaines police station.

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4 No. 12-3604
Back in the station locker room, Lalowski began to think
about the images of aborted fetuses the demonstrators were
displaying, and he became upset. He testified in his deposi-
tion, “At that time I was thinking about why would some-
body put those signs out there, why would anybody who
was trying to help people do that [?] I had to know.” Thus,
he decided that he would go back to the clinic to confront
the demonstrators about their signs.
Around 7:00 a.m., Lalowski, now off duty and wearing
plain clothes, returned to the abortion clinic in his personal
vehicle. He parked his car in an adjacent lot and walked over
to Matthew Jones, a fellow Des Plaines police officer who
was stationed at the clinic to provide security and ensure
that the demonstration remained orderly. After a brief con-
versation with Jones, Lalowski approached Paula Emmerth,
greeted her, and asked if she remembered him. Emmerth
said that she remembered him as the police officer who had
spoken to her earlier that morning. Lalowski told her that he
was now off duty and “not [t]here representing anybody.”
However, he concedes that he wanted the demonstrators to
know that he was a police officer so they would show him
respect, even though he was off duty.
Lalowski then asked Emmerth why the demonstrators
were displaying the aborted-fetus signs. Emmerth said that
they were using the signs to tell the truth about abortion, to
which Lalowski responded, “Okay. Let’s talk about the truth
then. You’re fat.” Lalowski then started telling Emmerth and
other demonstrators that they should not show the fetus
signs because “the truth sometimes hurts.” He noted that a
woman who had recently had a miscarriage might drive by
and be upset by the signs. When Emmerth refused to take

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No. 12-3604 5
down the signs, Lalowski called her a “fat fucking cow” and
a “sinner of gluttony,” then he sarcastically asked her
whether she was hiding food somewhere. Lalowski claims to
have made these statements to provide Emmerth with a few
stinging examples of how the truth can hurt. He then began
to lecture Emmerth on the importance of exercise and got
down on all fours to demonstrate aerobic exercises she could
do to lose weight.
After demonstrating the exercises, Lalowski got up and
continued talking to Emmerth. At some point, he reached
out and made physical contact with her. There is a factual
dispute as to the manner of the touching. Lalowski says that
he patted Emmerth on the shoulder to “convey sincerity,”
but Emmerth says that he “poked” her in both arms and
rubbed her arms “in a creepy, sexual way.”
This time, Lalowski remained at the clinic for approxi-
mately one hour and twenty minutes. During the course of
that time he spoke with many demonstrators, and there are
factual disputes over his specific language, tone of voice, and
general demeanor during these conversations. However, it is
undisputed that Lalowski accused the demonstrators of us-
ing intimidation tactics like the Taliban, compared their use
of the aborted-fetus signs to using an image of a priest
“bending over” a small boy to protest sexual abuse within
the Catholic church, called demonstrator Wanda Glitz a
“psycho” and a “man hater,” called Paula Emmerth a “fat
cow” several times, called Paula’s sister Teresa Emmerth
“fatty,” and told Paula Emmerth that she would be a beauti-
ful woman if she were not so fat. At some point, Officer
Jones called Lalowski over to notify him that a demonstrator
had called 911 to request police assistance in dealing with

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6 No. 12-3604
him. Finally, after Lalowski realized that his efforts to per-
suade the demonstrators to take down their signs were fu-
tile, he hugged Paula Emmerth, told her that he loved her,
and went on his way. He made no report of his on-duty or
off-duty contact with the demonstrators.
Later that day, then-police chief Prandini received a call
at home from one of his sergeants about the morning’s inci-
dents. Prandini asked two officers, Sergeant Kevin
O’Connell and Deputy Chief Terry McAllister, to investigate
Lalowski’s conduct at the clinic. During the course of the in-
vestigation, Lalowski and several demonstrators were inter-
viewed and gave written statements. On May 24, 2006, Ser-
geant O’Connell and Deputy Chief McAllister sent Prandini
a final report of their investigation. The report stated in part,
“Officer Lalowski’s conduct [on the morning of May 20th]
toward the public was harsh, profane, and unruly and
caused a huge disturbance among numerous citizens of the
city of Des Plaines. He used insulting, profane language to-
ward numerous female citizens and caused a hostile feeling
towards the city of Des Plaines and the Des Plaines Police
Department.”
Based on this report, Prandini decided to suspend
Lalowski without pay and file charges with the Board of Fire
and Police Commissioners seeking his termination. Prandini
filed five charges against Lalowski for violations of the po-
lice department’s rules and regulations governing unbecom-
ing conduct, courteous and orderly dealings with the public,
the obligation to obey all laws and department rules and
regulations, truthfulness, and impartiality. Two additional
charges were brought against him based on violations of Il-
linois Criminal Code Sections 5/12-1 and 5/12-3, which deal

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No. 12-3604 7
with assault and battery. After a series of administrative
hearings, the Board unanimously voted to sustain all charges
against Lalowski and to order his discharge from the Des
Plaines Police Department.
In reaching its decision, the Board credited the demon-
strators’ version of the events and found that Lalowski had
been untruthful to the extent that his story contradicted
theirs. The Board also relied upon Lalowski’s disciplinary
history as an aggravating factor in its decision to terminate
his employment. That history included five suspensions and
two written reprimands. Moreover, two of those disciplinary
actions resulted from Lalowski’s interactions with the pub-
lic. Specifically, in 1996, he was suspended for ten days after
getting into an argument with a woman while he was on du-
ty, calling her a “slut” and a “whore,” and pushing her to
the ground. Then, in 2002, he received a written reprimand
for using profane language toward a private citizen.
B. RES J UDICATA
As an initial matter, Prandini and the City argue that if
we were to affirm the district court’s entry of summary
judgment in favor of the Board on Lalowski’s administrative
review claim, his First Amendment claim would be barred
by the doctrine of res judicata. We disagree. The doctrine of
claim preclusion, or res judicata, operates to bar a “second
suit” after a final judgment involving the same parties and
causes of action. Bernstein v. Bankert, 733 F.3d 190, 226 (7th
Cir. 2013) (quoting Kratville v. Runyon, 90 F.3d 195, 197 (7th
Cir. 1996)). However, it cannot be invoked to bar claims
brought in the same suit. See Lee v. City of Peoria, 685 F.2d
196, 199 (7th Cir. 1982) (“The essential elements of the doc-
trine are generally stated to be: (1) a final judgment on the

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8 No. 12-3604
merits in an earlier action; (2) an identity of the cause of ac-
tion in both the earlier and the later suit; and (3) an identity
of parties or their privies in the two suits.”); cf. United States
v. Sherman, 912 F.2d 907, 909 (7th Cir. 1990) (holding that the
related doctrine of issue preclusion, or collateral estoppel,
“requires separate actions”). Lalowski’s administrative re-
view claim and his First Amendment claim were both
brought in this action. As a result, a final judgment on one
would not preclude the other.
Prandini and the City cite several cases in which we gave
preclusive effect to a state court’s judgment upholding an
agency decision. See Dookeran v. Cnty. of Cook, Ill., 719 F.3d
570, 577–78 (7th Cir. 2013); Abner v. Ill. Dep’t of Transp., 674
F.3d 716, 721–22 (7th Cir. 2012); Hayes v. City of Chicago, 670
F.3d 810, 815–16 (7th Cir. 2012); Garcia v. Vill. of Mount Pro-
spect, 360 F.3d 630, 644 (7th Cir. 2004); Licari v. City of Chicago,
298 F.3d 664, 666–67 (7th Cir. 2002); Pirela v. Vill. of N. Aurora,
935 F.2d 909, 915 (7th Cir. 1991). But all of those decisions
followed a final judgment in a separate state action. Prandini
and the City have failed to cite any authority for the proposi-
tion that res judicata may be applied to preclude a claim
brought in the same action. Therefore, we turn to the merits
of Lalowski’s First Amendment claim.
C. M ERITS
“It is well-established in our jurisprudence that a public
employee does not shed his First Amendment rights at the
steps of the government building.” Vargas-Harrison v. Racine
Unified Sch. Dist., 272 F.3d 964, 970 (7th Cir. 2001). However,
“the State has interests as an employer in regulating the
speech of its employees that differ significantly from those it
possesses in connection with regulation of the speech of the

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No. 12-3604 9
citizenry in general.” Kiddy-Brown v. Blagojevich, 408 F.3d
346, 358 (7th Cir. 2005) (quoting Pickering v. Bd. of Educ., 391
U.S. 563, 568 (1968)) (internal quotation marks omitted).
Thus, a unique constitutional framework applies:
When a plaintiff brings a § 1983 claim for retal-
iation in violation of First Amendment rights
in the employment context, our analysis in-
volves three steps. First, the court must deter-
mine whether the employee’s speech was con-
stitutionally protected under the Connick-
Pickering test. Second, the plaintiff must estab-
lish that the speech was a substantial or moti-
vating factor in the alleged retaliatory action.
Finally, if the plaintiff satisfies the first two
steps, the defendant has an opportunity to es-
tablish that the same action would have been
taken in the absence of the employee’s protect-
ed speech.
Hutchins v. Clarke, 661 F.3d 947, 955 (7th Cir. 2011) (internal
citations omitted). In this case, the district court concluded
that Lalowski could not prevail on his speech retaliation
claim because only some of his statements were constitu-
tionally protected, and none of those statements was a moti-
vating factor in his termination. We agree that Lalowski
cannot prevail, but we will not reach the causation issue, be-
cause we conclude that none of his statements was constitu-
tionally protected under the Connick-Pickering test.
The Connick-Pickering test, derived from Connick v. Myers,
461 U.S. 138 (1983), and Pickering, 391 U.S. 563, is a two-part
test used to determine whether a public employee’s speech

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10 No. 12-3604
is constitutionally protected. See Phelan v. Cook Cnty., 463
F.3d 773, 790–91 (7th Cir. 2006). “First, the speech is protect-
ed only if it addressed a matter of public concern.” Carreon v.
Ill. Dep’t of Human Servs., 395 F.3d 786, 791 (7th Cir. 2005). “If
it did, the court must then apply the Pickering balancing test
to determine whether ‘the interests of the [plaintiff] as a citi-
zen in commenting upon the matters of public concern’ are
outweighed by ‘the interest of the state, as an employer, in
promoting the efficiency of the public services it performs
through its employees.’” Coady v. Steil, 187 F.3d 727, 731 (7th
Cir. 1999) (alteration in original) (quoting Pickering, 391 U.S.
at 568).
The district court placed Lalowski’s speech into three
categories. First, the court found that some of Lalowski’s
statements did not address a matter of public concern and
were therefore unprotected. Second, the court found that
some of Lalowski’s statements touched only loosely upon
matters of public concern, and because the state had a
“strong overriding interest” in proscribing them, those
statements were also unprotected. Finally, the court found
that some of Lalowski’s statements touched more directly
upon matters of public concern, and because the state lacked
a “legitimate overriding interest” in proscribing them, those
statements were protected.
We agree that at least some of Lalowski’s speech touched
upon matters of public concern. While Lalowski spent much
of his time hurling profanity and insults at the demonstra-
tors, he also managed to express his disapproval of their
methods, i.e., their use of the aborted-fetus signs. However,
in light of the context in which those statements were made,
we think the district court was wrong to conclude that the

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No. 12-3604 11
state had no “legitimate overriding interest” in proscribing
them.
The Pickering balancing test contemplates a fact-intensive
inquiry into a number of interrelated factors:
(1) whether the speech would create problems
in maintaining discipline or harmony among
co-workers; (2) whether the employment rela-
tionship is one in which personal loyalty and
confidence are necessary; (3) whether the
speech impeded the employee’s ability to per-
form her responsibilities; (4) the time, place,
and manner of the speech; (5) the context with-
in which the underlying dispute arose; (6)
whether the matter was one on which debate
was vital to informed decision-making; and (7)
whether the speaker should be regarded as a
member of the general public.
Gustafson v. Jones, 290 F.3d 895, 909 (7th Cir. 2002). In this
case, nearly all of the factors weigh heavily against Lalowski.
First, his speech had the potential to create problems in
maintaining discipline and harmony in the Des Plaines Po-
lice Department. Importantly, a showing of actual disrup-
tiveness is not required; “a government employer is allowed
to consider ‘the potential disruptiveness’ of the employee’s
speech.” Kokkinis v. Ivkovich, 185 F.3d 840, 846 (7th Cir. 1999)
(quoting Caruso v. De Luca, 81 F.3d 666, 670–71 (7th Cir.
1996)). The employer “is not required to wait until those
working relationships actually disintegrate if immediate ac-
tion might prevent such disintegration.” Breuer v. Hart, 909
F.2d 1035, 1040 (7th Cir. 1990).

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12 No. 12-3604
Protests at the abortion clinic were nothing new, and the
Des Plaines Police Department was charged with keeping
the peace during such protests. In fact, a Des Plaines police
officer was stationed at the clinic during Lalowski’s rant on
the day in question. By causing such a large disturbance,
Lalowski positioned himself in opposition to the goals of his
employer, thus compromising the harmony of the depart-
ment for which he worked. Indeed, the officer stationed at
the clinic was forced to confront Lalowski after one of the
demonstrators called 911. Even if this incident did not actu-
ally cause disharmony among Des Plaines police officers, the
potential for disruption is readily apparent. The department
could not reasonably be expected to police protests of any
sort, let alone the recurring protests at this abortion clinic, if
it condoned such behavior.
The potential for disruption is exacerbated by the second
factor, i.e., the importance of personal loyalty and confidence
in the employment relationship. We have recognized that
“there is a particularly urgent need for close teamwork
among those involved in the ‘high stakes’ field of law en-
forcement.” Breuer, 909 F.2d at 1041. “Speech that might not
interfere with work in an environment less dependent on
order, discipline, and esprit de corps could be debilitating to a
police force.” Id. Thus, “[d]eference to the employer’s judg-
ment regarding the disruptive nature of an employee’s
speech is especially important in the context of law enforce-
ment.” Kokkinis, 185 F.3d at 846.
Turning to the third factor, Lalowski’s speech directly
conflicted with his responsibilities as a police officer because
one of those responsibilities was to foster a relationship of
trust and respect with the public. “Police officers ... are quin-

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No. 12-3604 13
tessentially public servants. As such, part of their job is to
safeguard the public’s opinion of them, particularly with re-
gard to a community’s view of the respect that police officers
... accord the members of that community.” Locurto v. Giulia-
ni, 447 F.3d 159, 178–79 (2d Cir. 2006). “The effectiveness of a
city’s police department depends importantly on the respect
and trust of the community and on the perception in the
community that it enforces the law fairly, even-handedly,
and without bias.” Id. at 178 (quoting Pappas v. Giuliani, 290
F.3d 143, 146–47 (2d Cir. 2002). By attacking private citizens
with profane and disrespectful language, Lalowski com-
promised the community’s trust in its police officers, thus
failing in one of his most important duties.
Fourth, we must consider the time, place, and manner of
Lalowski’s speech. Because he confronted the protestors at
the time and place they chose to protest, the time and place
of his speech were reasonable. However, the manner in
which he spoke cannot be justified. Lalowski aggressively
lambasted, ridiculed, and touched the protestors, going far
beyond what was necessary to communicate his displeasure
with their methods. His words and deeds were abusive and
degrading, falling well below the standard of conduct the
public expects from police officers, even while off duty.
The fifth factor to be considered is the context in which
the underlying dispute arose. Lalowski’s termination oc-
curred against the backdrop of his disciplinary history,
which included five suspensions and two written repri-
mands. One of his suspensions resulted from an argument
with a woman he called a “slut” and a “whore” and pushed
to the ground. One of his written reprimands was for using
profane language toward a private citizen. In light of

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14 No. 12-3604
Lalowski’s history of problematic interactions with the pub-
lic, Prandini and the Board had a substantial interest in pre-
venting further hostility. See Kokkinis, 185 F.3d at 846 (“The
increasing distrust and hostility between [a police officer]
and the Chief must inform our evaluation of the Chief’s re-
sponse to [the officer’s] speech.”).
The sixth factor—whether the matter was one on which
debate was vital to informed decision-making—is the only
factor that weighs in favor of Lalowski’s speech interests.
We do not doubt that any organized protest could benefit
from informed debate regarding its methods.
Finally, although Lalowski was off duty when he en-
gaged in the speech at issue, he cannot be regarded as a
member of the general public. He first confronted the de-
monstrators while on duty, in an encounter even he charac-
terizes as “adversarial.” He then left the clinic, only to return
off duty about a half hour later. Although his shift had end-
ed, this second encounter was a mere continuation and esca-
lation of the earlier, on-duty confrontation. Indeed, when
Lalowski returned, he made sure the demonstrators remem-
bered him as a police officer. Although he also told them
that he was “not [t]here representing anybody,” he concedes
that he wanted them to know he was a police officer so they
would show him respect. Because Lalowski represented
himself as an off-duty police officer, rather than as a mere
private citizen, we cannot say that he was speaking as a
member of the general public. Cf. Coady, 187 F.3d at 733
(finding that an off-duty firefighter who displayed a political
sign on his car was not “speaking as a firefighter” because
“there was apparently nothing on [his] car which identified

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No. 12-3604 15
him as a firefighter”). Consequently, Lalowski’s speech in-
terests were diminished by the capacity in which he spoke.
In sum, the state’s interests in running an efficient and ef-
fective police department outweighed Lalowski’s speech in-
terests, even in relation to his statements that directly ad-
dressed matters of public concern. Indeed, six out of the sev-
en factors that are relevant to the Pickering balancing test fa-
vor the state’s interests over Lalowski’s. Consequently, we
hold that none of Lalowski’s statements to the demonstra-
tors on the morning of May 20, 2006, were constitutionally
protected, and we will affirm the district court’s grant of
summary judgment on Lalowski’s speech retaliation claim.
II. ADMINISTRATIVE REVIEW CLAIM
Lalowski’s challenge to the district court’s ruling on his
administrative review claim requires some discussion of the
proceedings below. The deadline for dispositive motions in
the district court was March 26, 2012. On that day, Prandini
and the City filed a joint motion for summary judgment on
the claims against them, and Lalowski filed a cross-motion
for summary judgment on his First Amendment retaliation
claim. However, neither the Board nor Lalowski moved for
summary judgment on his administrative review claim. In-
deed, Lalowski argued that his administrative review claim
should not be decided until after his constitutional claims
were resolved. In contrast, Prandini and the City took the
position (rejected above) that Lalowski’s administrative re-
view claim should be decided first because a ruling adverse
to Lalowski on that claim would preclude his constitutional
claims.

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16 No. 12-3604
Although the Board did not move for summary judg-
ment, it agreed with Prandini and the City that Lalowski’s
administrative review claim should be resolved first, and on
April 12, it moved to compel Lalowski to file a brief in sup-
port of that claim. The district court held a hearing on that
motion on April 17, during which the court indicated that it
would “review the file and issue an order.” However, as of
June 19, no order was forthcoming, so the Board filed anoth-
er motion asking the district court to establish a briefing
schedule on the administrative review claim. At a hearing on
June 26, the court denied both of the Board’s motions and
stated that the administrative review issues would be “taken
in context with the pending motions for summary judg-
ment.” By this time, Lalowski, Prandini, and the City had
already filed their responses to the pending motions for
summary judgment.
On October 17, after summary judgment briefing was
complete, the district court held a hearing on the pending
motions. The next day, the court issued a written order
granting Prandini and the City’s motion for summary judg-
ment, denying Lalowski’s motion for summary judgment,
and sua sponte granting summary judgment in favor of the
Board on Lalowski’s administrative review claim. On ap-
peal, Lalowski contends that this latter ruling was improper
because he was never given an opportunity to brief his ad-
ministrative review claim. We agree.
First, we note that summary judgment was the correct
procedural mechanism to resolve Lalowski’s administrative
review claim. That claim is governed by Illinois’s Adminis-
trative Review Law, which limits judicial review of a state
administrative agency’s decision to the administrative rec-

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No. 12-3604 17
ord. See 735 I.L.C.S. § 5/3-110 (“No new or additional evi-
dence in support of or in opposition to any finding, order,
determination or decision of the administrative agency shall
be heard by the court.”). When a party seeks judicial review
of administrative action in a federal district court, and the
case is to be decided on the administrative record without
further evidence, “the district court resolves the issue
[through] summary judgment.” Johnson by Johnson v.
Duneland Sch. Corp., 92 F.3d 554, 557 (7th Cir. 1996) (citing
Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir. 1994)). The
problem here is not that summary judgment was used to re-
solve Lalowski’s administrative review claim, but rather that
the district court failed to comply with the procedural re-
quirements of summary judgment.
Because no party moved for it, the district court could
grant summary judgment on Lalowski’s administrative re-
view claim only “[a]fter giving notice and a reasonable time
to respond.” Fed. R. Civ. P. 56(f). Yet, the court did not noti-
fy the parties of its intent to resolve the administrative re-
view claim until after their summary judgment response
briefs had been filed. Nor did it allow the parties an oppor-
tunity to separately brief that claim before entering sum-
mary judgment. Indeed, by denying both of the Board’s mo-
tions for briefing on the administrative review claim, the
court made clear that it would not welcome such briefing.
Consequently, the court failed to comply with Rule 56(f),
and we must vacate its entry of summary judgment on
Lalowski’s administrative review claim and remand for fur-
ther proceedings.
As discussed above, the district court properly entered
summary judgment against Lalowski on his First Amend-

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18 No. 12-3604
ment claim. As a result, all of Lalowski’s federal claims have
been resolved, and on remand, the district court may decline
to exercise supplemental jurisdiction over his state adminis-
trative review claim. See 28 U.S.C. § 1367(c)(3). In general,
“when all federal claims are dismissed before trial, the dis-
trict court should relinquish jurisdiction over pendent state-
law claims rather than resolving them on the merits.” Wright
v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1251 (1994). “There
are, however, unusual cases in which the balance of factors
to be considered under the pendent jurisdiction doctrine—
judicial economy, convenience, fairness and comity—will
point to federal decision of the state-law claims on the mer-
its.” Id. We leave the decision whether to exercise supple-
mental jurisdiction over Lalowski’s administrative review
claim to the sound discretion of the district court on remand.
III. CONCLUSION
The district court’s entry of summary judgment against
Lalowski on his First Amendment claim is AFFIRMED, but the
district court’s entry of summary judgment against Lalowski
on his administrative review claim is VACATED, and the case
is REMANDED for further proceedings consistent with this
opinion.

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