Brian Swetlik v. Kevin Crawford

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2675

BRIAN W. SWETLIK,

Plaintiff-Appellant,

v.

KEVIN CRAWFORD, Former Mayor,

individually and in his official capac-

ity, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 09-C-1157 — William C. Griesbach, Chief Judge.

ARGUED NOVEMBER 1, 2012 — DECIDED DECEMBER 23, 2013

Before EASTERBROOK, ROVNER, and HAMILTON, Circuit

Judges.

HAMILTON, Circuit Judge. Brian Swetlik is a police detective

in Manitowoc, Wisconsin. Swetlik sued the City of Manitowoc,

its mayor, and members of its Common Council, alleging that

they violated his First Amendment rights by voting to file a

termination charge against him with the Manitowoc Police and

2 No. 12-2675

Fire Commission. The defendants voted after an outside

investigation recommended Swetlik’s termination based on its

finding that he had been untruthful in statements about the

police chief. Swetlik argues that the charges were actually in

retaliation for his public criticism of the chief, which he made

in his capacity as a union member supporting the union’s

demands for the chief’s resignation. The Police and Fire

Commission later dismissed the charges against Swetlik and he

was reinstated after a period of paid administrative leave. In

the end, it was actually the chief who lost his job.

The district court granted summary judgment for the

defendants, finding that Swetlik’s statements were not pro-

tected speech because they did not address a matter of public

concern and, alternatively, that the defendants were justified

in bringing the charge against him based on the recommenda-

tion of the investigation. We agree with the district court on the

second ground and affirm on that basis.

I. Factual and Procedural Background

Because we are reviewing a grant of summary judgment,

we must view the evidence in the light reasonably most

favorable to Swetlik as the non-moving party, and we must

give him the benefit of reasonable inferences in his favor. See

Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). In November

2005, the Manitowoc police brought into custody a man

suspected of stabbing a police officer. The central controversy

in this case begins with an odd incident involving this sus-

pect’s custody. The suspect was apparently refusing to eat, and

police officers believed he was mentally unstable. For reasons

that are unclear, Police Chief Perry Kingsbury arranged for the

No. 12-2675 3

suspect’s mother to bring him a home-cooked meal at the

police station. But the chief’s wishes were not relayed to the

officers taking the suspect to jail, including Swetlik. Before the

home-cooked meal arrived, Swetlik and other officers had

already taken the suspect to the county jail for booking. When

Chief Kingsbury discovered this, he called the jail and spoke

with Swetlik.

This telephone call is at the heart of this dispute. Swetlik

said a great deal about this telephone call, both publicly and

privately, before he eventually learned that it had been

recorded. The actual contents of the conversation are no longer

disputed. During the call, Chief Kingsbury explained that he

wanted to get the suspect the home-cooked meal, but Swetlik

said the jail would not permit outside food. After Kingsbury

learned that the suspect’s booking process had already begun,

the conversation proceeded as follows:

Chief: Okay. Stop the process, bring him back, we’ve

got some more questions to do.

Swetlik: Okay. Should I ask him if he wants to—if he

wants to, he might not?

Chief: Well, just—just—why—why can’t we just say

that hey, we—I’m sorry, we forgot, we’ve got a few

more questions to ask and is there—do you—do you

mind coming back over to the department to answer

the question?

[Swetlik then asked the suspect if he wanted to come

back to the station for food from his mother; the

suspect said he did not want any food; Swetlik got

back on the telephone with Chief Kingsbury]

4 No. 12-2675

Chief: So you didn’t do what I asked you to do. You

started talking about the food. What I asked you to

do is say hey, you mind coming back over and ask

a few questions, we forgot about something. And

that’s okay, you went about it your way, but—and

now he doesn’t want anything so just let him get

booked—

… Just let him get booked and whatever—whatever

happens, happens. Okay?

Swetlik: Okay. He’ll—he’ll—he’ll visit with her later,

he just—

Chief: Whatever.

Swetlik: —he don’t—he don’t want to eat anything.

Chief: Well, I understand that but we—we—we

might have been able to get him a meal, okay. But

that’s okay, we might not have been.

Swetlik: Okay.

Chief: We’ll catch ya later.

Swetlik: Okay. Bye.

Swetlik interpreted the chief’s words as an instruction to lie

to the jailers by telling them that police wanted to question the

suspect further. He also misunderstood the chief’s final words

to be “I will deal with you later” and took them as a threat.

Swetlik was upset. He told the police officers who were with

him that Chief Kingsbury had told him to lie and had threat-

ened him for not doing so. Later that day he reported the same

No. 12-2675 5

to a deputy chief of police, who apparently took no action on

Swetlik’s complaint.

Swetlik was not the only one who had complaints about

Chief Kingsbury. The police union took a vote of no confidence

in Kingsbury in early 2006 and compiled a list of grievances

against him and the general operation of the police department

with regard to public safety and department morale. Swetlik

added this grievance to the list:

Chief has told officers to lie to other agencies (Golden

Attack)[.] A suspect was taken to MTSO after the

stabbing [of] an officer and while being booked in called

an officer and told him to bring the suspect back to the

PD for a homecooked meal from the suspect[’]s mother.

When the officer asked what he was suppose[d] to tell

the jail staff the chief told him to lie and say there were

more questions to be asked. The officer refused and the

chief said, “I will deal with you later[.]” Nothing was

done.

The union marched to city hall to present its list of 37

grievances and to demand the resignation of Chief Kingsbury.

They presented the grievances and demand to the mayor, the

Common Council, and members of the Police and Fire Com-

mission. Kingsbury responded by arranging a mediation

session between the union and one of his deputies. After

mediation failed, Kingsbury sought to have an outside investi-

gation into the veracity of the union’s complaints. He and his

private attorney discussed the possibility with the mayor, and

the three agreed that an investigation for the purpose of getting

“to the heart of the complaints from the view of an outside

6 No. 12-2675

investigator” would be appropriate. Kingsbury sent a letter to

the mayor formally requesting an investigation into the union’s

complaints against him and the department. The mayor agreed

and the city attorney hired an outside investigator, the law firm

of DeWitt Ross & Stevens, S.C.1

In authorizing the investigation, the mayor explained that

its purpose was to “bring this long-debated issue in our

community to a close” by investigating the “alleged complaints

and accusations against Chief Perry Kingsbury and his

administration, and all related issues and incidents.” Swetlik

maintains that the purpose of the investigation was to silence

the union, pointing to statements by the private attorney who

represented Chief Kingsbury throughout the investigation. The

attorney told the investigators: “When you have got that much

[union] noise going on, you can’t be bopping everybody. He

[the Chief] wouldn’t have a department. Which one, who, and

how? Part of the reason you guys are in here is to help us sort

out [who’s] on first, second, and third. It’s hard enough just

running the PD let alone trying to figure out all this intrigue.”

The chief’s attorney also told the investigators that Swetlik

exemplified the union’s agenda and that he had a “poisoned”

attitude.

Over the next year, the law firm conducted more than 80

interviews. Swetlik was interviewed three times about the

1

The evidence indicates that the city selected this firm on the recommenda-

tion of the chief’s private attorney, who recommended a specific senior

partner at the firm. That partner was not involved in the investigation.

Swetlik does not dispute that the chief’s private attorney served as only his

private attorney.

No. 12-2675 7

telephone call and his allegations that Chief Kingsbury

threatened him for not following his instructions to lie to the

jailers. Before his interviews, though, he had listened to the

recording of the conversation. During his first interview,

Swetlik conceded that Chief Kingsbury did not actually say the

words that he had earlier claimed were a threat (“I will deal

with you later”). Still, Swetlik maintained that Kingsbury had

directed him to lie to the jailers rather than to the suspect. (The

assumption shared by all parties is that deception of suspects

is an accepted part of interrogation, but that law enforcement

officers must be honest with each other.)

The investigators’ report ultimately recommended to the

mayor and the council that both Swetlik and Chief Kingsbury

be terminated (as well as another officer). With regard to

Kingsbury, the report addressed over a dozen allegations

against him and found that most were valid. Based on those

findings, it recommended that Kingsbury be removed for

“inefficiency,” “official misconduct,” and “malfeasance in

office.” With regard to Swetlik, the report recommended

termination because he had lied about the telephone call with

Kingsbury, and lying violated a department rule. The report

said:

[T]here is no doubt that [Swetlik] lied to other

officers about the Chief allegedly instructing him to

lie to the sheriff’s department deputies and threaten-

ing him for failing to do so. Perhaps more impor-

tantly, however, is that Detective Sergeant Swetlik

allowed those lies to be perpetuated and brought

forth to the Police and Fire Commission, the Com-

mon Council and this investigation in an effort to

8 No. 12-2675

seek the removal of Chief Kingsbury. It was only

after he learned that the entire conversation was

recorded and he obtained a copy through the open

records process, that he was forced to retract a part

of the allegations. Nonetheless, Swetlik still clung to

the allegation that the Chief instructed him to lie to

the Sheriff’s deputies despite clear and convincing

evidence to the contrary contained on the recording.

The investigators presented the report and recommenda-

tions to the Common Council. The council voted unanimously

to adopt the recommendation to bring termination charges

against both Kingsbury and Swetlik. After this vote, the

investigators were told to prepare formal charges. The investi-

gators presented Swetlik’s formal charge statement to the

Common Council at a second council meeting on November 5,

2007. A majority of the council, including the mayor, voted to

file the charges.

In the end, two aldermen, Brey and Tittl, did not agree to

file any of the charges, though they had initially voted in favor.

Alderman Brey later testified:

As time went on as you reread the report from

DeWitt, Ross & Stevens, and even in my own—this

is my recollection, the more you read it, the more to

me it became frivolous … . When we start attacking

people’s characters for little inciden[ts] that seem to

be irrelevant to the big thing, I just thought this

became a witch hunt.

Brey clarified that by “witch hunt” he meant that the

concerns brought to the Common Council by the union

No. 12-2675 9

members were the main “focus of this investigation by DeWitt,

Ross & Stevens.” He did not sign the charges because, “after

rereading and rereading the report, I determined that the

allegations were just that. Lot of them were allegations and not

based on fact or violations of law.”

Alderman Tittl later testified that he thought the charge

against Swetlik was “ridiculous” and “felt that the Chief trying

to get this guy a home cooked meal and the detective trying to

keep the guy in jail, and I guess I made an assumption that he

felt threatened and I didn’t think it warranted removal from

the department.”

After the Common Council voted to pursue the charge,

Swetlik was placed on paid administrative leave pending the

outcome. Swetlik’s case was presented to a hearing officer of

the Police and Fire Commission on February 27 and 28, 2008.

Upon Swetlik’s motion, the hearing officer recommended

dismissal of the charge. He concluded that Chief Kingsbury’s

statements to Swetlik during their telephone conversation

could have been interpreted as instructing him to tell the

jailers, not the suspect, that police had additional questions for

the suspect even though they did not. The hearing officer also

concluded that the chief’s statements could have been per-

ceived as threatening. Swetlik was reinstated with the police

department after the Commission adopted the hearing officer’s

conclusions. Swetlik then brought this suit in federal court

against the mayor and the individual members of the Common

Council who voted to bring the charges. He claimed they

retaliated against him in violation of the First Amendment by

bringing charges against him for his complaints about Chief

Kingsbury, which were protected speech because he raised

10 No. 12-2675

them as part of his union activities. The district court granted

summary judgment for the defendants, and Swetlik appeals.

II. Absolute Immunity

Defendants raise a threshold defense to the entire case,

arguing they are entitled to absolute prosecutorial immunity.

We reject this defense. Prosecutorial immunity applies to

prosecutorial actions that are “intimately associated with the

judicial phase of the criminal process.” Van de Kamp v.

Goldstein, 555 U.S. 335, 341 (2009), quoting Imbler v. Pachtman,

424 U.S. 409, 430 (1976). The defendants here are not prosecu-

tors, of course, but that is not why the defense fails. The

immunity’s application depends not on an official’s title but on

whether the official is, at the time, “acting as an officer of the

court” and on the action’s “relatedness to the judicial phase of

the criminal process.” Fields v. Wharrie, 672 F.3d 505, 510 (7th

Cir. 2012); see also Wilson v. Kelkhoff, 86 F.3d 1438, 1443 (7th

Cir. 1996) (“Absolute immunity is not limited to government

officials with the title of prosecutor or judge; officials perform-

ing ‘functionally comparable’ acts in other contexts, such as

administrative agencies, are also accorded absolute immu-

nity.”).

Absolute immunity is not available here because the

defendants’ action was an employment decision, not a decision

to bring criminal charges. Defendants have not provided and

we have not found any cases extending prosecutorial immu-

nity to an employment decision. Even prosecutors themselves

are not entitled to absolute immunity when they make employ-

ment decisions. See, e.g., Lacey v. Maricopa County, 693 F.3d 896,

930–31 (9th Cir. 2012) (en banc) (“Decisions related to general

No. 12-2675 11

conditions of employment—including decisions to hire,

promote, transfer, and terminate—and which do not affect the

prosecutor’s role in any particular matter are generally not

sufficiently related to the initiation and conduct of a prosecu-

tion in a court of law or their role as an advocate of the state to

qualify for absolute immunity.”); see also Forrester v. White,

484 U.S. 219, 229 (1988) (state judge “was acting in an adminis-

trative capacity when he demoted and discharged” a probation

officer and therefore was not entitled to absolute immunity).

To argue for a different result, defendants point only to our

decision in Henry v. Farmer City State Bank, 808 F.2d 1228, 1238

(7th Cir. 1986), but the prosecutorial immunity we extended to

the state’s attorney there was for the attorney’s actions in filing

a petition for civil contempt. The case does not support

prosecutorial immunity for a decision to bring termination

charges against an employee.

III. First Amendment Retaliation

We turn to the merits. To establish a claim for retaliation in

violation of the First Amendment, a public employee must

prove that: (1) his speech was constitutionally protected, (2) he

has suffered a deprivation likely to deter speech, and (3) his

speech was at least a motivating factor in the employer’s

action. Peele v. Burch, 722 F.3d 956, 959 (7th Cir. 2013). Only the

first element is disputed in this case.2

2

Because the second element is not disputed here, we assume without

deciding that the defendants’ actions in bringing formal, public charges that

(a) caused plaintiff’s immediate suspension with pay and (b) could have led

to his termination were sufficient to deter protected speech. In public

(continued...)

12 No. 12-2675

For a public employee’s speech to be protected under the

First Amendment, the employee must show that (1) he made

the speech as a private citizen, (2) the speech addressed a

matter of public concern, and (3) his interest in expressing that

speech was not outweighed by the state’s interests as an

employer in “promoting effective and efficient public service.”

Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir. 2008). This last

element is known as Pickering balancing, after Pickering v. Board

of Education, 391 U.S. 563 (1968). Under Pickering and its

progeny, if an employer takes action against an employee for

2

(...continued)

employees’ First Amendment cases, we have recognized that the question

is often fact-specific and that sometimes even modest deprivations or

threats can be sufficient to deter protected speech. See, e.g., Spiegla v. Hull,

371 F.3d 928, 941 (7th Cir. 2004) (unwelcome transfer to more demanding

job duties); Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000) (harassment

and ridicule); Pieczynski v. Duffy, 875 F.2d 1331, 1333 (7th Cir. 1989)

(harassment of public employee for political beliefs violates First Amend-

ment unless the harassment is so trivial that a person of ordinary firmness

would not be deterred from holding or expressing beliefs); see generally

Rutan v. Republican Party of Illinois, 497 U.S. 62, 76 n.8 (1990) (“the First

Amendment … already protects state employees not only from patronage

dismissals but also from ‘even an act of retaliation as trivial as failing to

hold a birthday party for a public employee … when intended to punish her

for exercising her free speech rights’”), quoting Rutan v. Republican Party of

Illinois, 868 F.2d 943, 954 n.4 (7th Cir. 1989). Judge Easterbrook’s concurring

opinion shows that this line of First Amendment cases is in tension with

First Amendment doctrine under the Noerr-Pennington doctrine as it might

be applied to the rights of individual government officials who take action

against a public employee based on his protected speech. We leave these

interesting questions of conflicting First Amendment rights for another day

where they may affect the outcome of the case.

No. 12-2675 13

speech that the employer, based on an adequate investigation,

reasonably believes to be false, the employer’s interests

outweigh the speaker’s interests. See Wright v. Illinois Dep't of

Children & Family Servs., 40 F.3d 1492, 1500, 1505–06 (7th Cir.

1994).

Applying these legal principles, we review de novo the

district court’s grant of summary judgment. Cloe v. City of

Indianapolis, 712 F.3d 1171, 1176 (7th Cir. 2013). We will affirm

the grant of summary judgment if, viewing the facts in the

light reasonably most favorable to Swetlik, there is no genuine

dispute as to any material fact. Id.; Fed. R. Civ. P. 56(a). A

genuine issue of material fact exists only if there is enough

evidence upon which a reasonable jury could return a verdict

in Swetlik’s favor. Cloe, 712 F.3d at 1176. Viewing the facts in

this light, we find that Swetlik could be deemed to have

spoken as a private citizen about a matter of public concern

when he made statements about Chief Kingsbury as part of his

union activities. We also find, however, that undisputed facts

show that the defendants reasonably relied on the investiga-

tion’s report that Swetlik had been untruthful, and thus they

were justified in bringing termination charges against him

based on those statements.

A. Speaking as Private Citizen

Defendants argue first that Swetlik’s statements are not

entitled to the protection of the First Amendment because he

did not speak as a private citizen. They argue that the com-

ments leading to the alleged retaliation were made pursuant to

Swetlik’s official duties and therefore were not protected by

the First Amendment. See Garcetti v. Ceballos. 547 U.S. 410,

14 No. 12-2675

421–22 (2006) (a public employee’s statements made pursuant

to official duties are not made as a private citizen for the

purposes of the First Amendment); see also Vose v. Kliment,

506 F.3d 565, 569 (7th Cir. 2007) (applying Garcetti). According

to defendants, because Swetlik was claiming the chief had

violated department policy by ordering him to lie to the jailers,

Swetlik was required to report the telephone call to his

superiors. On this theory, when Swetlik gave his version of the

call to the deputy chief and to the investigators, he acted

pursuant to his official duties.

If the only basis for the defendants’ taking action against

Swetlik were statements he had made as part of his official

duties, Garcetti would indeed bar the claim, and we assume for

purposes of argument that the defense theory would apply to

to Swetlik’s statements to the deputy chief and investigators.

But Swetlik has also offered evidence that defendants were

acting on the basis of his other statements on the matter,

including the grievances that the union presented to the

Common Council and the Police and Fire Commission. Those

statements were made in his capacity as a union member, not

as part of his official duties as a police detective. See Nagle v.

Village of Calumet Park, 554 F.3d 1106, 1123–24 (7th Cir. 2009)

(police officer’s statements made at a union meeting were

made in his capacity as a union representative, not as a police

officer, but summary judgment for employer was affirmed

because statements did not address matter of public concern).

Thus, with regard to his statements at the union meeting and

in the list of grievances, Garcetti “does not deprive his com-

ments of First Amendment protection.” Id. at 1123; see also

Morales v. Jones, 494 F.3d 590, 597–98 (7th Cir. 2007) (applying

No. 12-2675 15

Garcetti and reversing for new trial because police officer’s

speech to district attorney was not protected, while same

speech made in a deposition was protected).

B. Matter of Public Concern

The district court did not decide whether Garcetti applied.

The court found that Swetlik’s speech was not protected

because it did not address a matter of public concern. We

disagree. Swetlik’s allegations about Chief Kingsbury impli-

cated the effectiveness and integrity of the chief, specifically

with regard to his handling of police procedures such as

transporting and booking suspects (in this case, a suspect who

had stabbed a police officer), and we have observed that “‘[i]t

would be difficult to find a matter of greater public concern …

than police protection and public safety,’” Gustafson v. Jones,

290 F.3d 895, 907 (7th Cir. 2002) (affirming denial of new trial

after jury verdict for officers who had publicly criticized a

department order limiting follow-up investigations), quoting

Auriemma v. Rice, 910 F.2d 1449, 1460 (7th Cir. 1990) (en banc).

This case differs from those in which we have previously

found speech not to address a matter of public concern because

it was purely personal or vindicated only a personal interest.

See Bivens v. Trent, 591 F.3d 555, 561–62 (7th Cir. 2010) (em-

ployee’s complaints about lead poisoning were confined to his

own illness); Milwaukee Deputy Sheriff's Ass'n v. Clarke, 574 F.3d

370, 379 (7th Cir. 2009) (deputy sought to further his own

personal interest by questioning sheriff’s courage); Kokkinis v.

Ivkovich, 185 F.3d 840, 844–45 (7th Cir. 1999) (officer’s concerns

about the chief’s “vindictiveness” were expressed to further

officer’s personal goals). Swetlik’s accusation that Chief

16 No. 12-2675

Kingsbury directed an officer to “lie to other agencies” was a

serious accusation that implicated the chief’s integrity and

ability to fulfill his duties as the head of the police department.

Moreover, Swetlik raised the concern along with the other

concerns raised by union members to bring public attention to

the problems they perceived in the department, which they did

by bringing the grievances to the mayor, the Common Council,

and the Police and Fire Commission. Swetlik’s speech was a

matter of public concern in at least some of the contexts in

which it was raised, so summary judgment cannot be affirmed

on this basis.

C. Pickering Balancing

Although for purposes of summary judgment Swetlik’s

statements about Chief Kingsbury were made as a citizen and

addressed a matter of public concern, for speech to be pro-

tected under the First Amendment, it must satisfy another

requirement: the employee’s interest in making the speech

must outweigh the employer’s interest in “promoting the

efficiency of the public services it performs through its employ-

ees.” Hernandez v. Cook County Sheriff's Office, 634 F.3d 906, 914

(7th Cir. 2011) (internal quotations omitted), citing Pickering,

391 U.S. 563. If not, the employer’s action is considered to be

justified and does not violate the First Amendment. See

Garcetti, 547 U.S. at 418 (“The question becomes whether the

relevant government entity had an adequate justification for

treating the employee differently from any other member of

the general public.”), citing Pickering, 391 U.S. at 568. The Court

in Pickering suggested that an employee’s statements may fail

the test and not warrant protection if they were false and made

with knowing or reckless disregard for the truth, Pickering,

No. 12-2675 17

391 U.S. at 574, and we have since held that “an employee’s

speech is not protected where it is[] made with a reckless

disregard for the truth …,” Brenner v. Brown, 36 F.3d 18, 20–21

(7th Cir. 1994).

Whether an employee recklessly disregarded the truth in

making a statement will often present a disputed factual issue.

An employer cannot avoid liability for First Amendment

retaliation simply by asserting that an employee’s otherwise

protected speech was false or was made recklessly. See

McGreal v. Ostrov, 368 F.3d 657, 673–74 (7th Cir. 2004) (revers-

ing summary judgment for employers where they presented

no evidence on the truth of employee’s statements or their

reason for believing statements to be false). But an employer

may defeat a First Amendment retaliation claim if “supervisors

reasonably believed, after an adequate investigation, that [the

employee’s] testimony was false, even if it actually was true.”

Wright v. Illinois Dep’t of Children & Family Servs., 40 F.3d 1492,

1506 (7th Cir. 1994), citing Waters v. Churchill, 511 U.S. 661,

677–80 (1994) (plurality opinion); see also Waters, 511 U.S. at

685 (Souter, J., concurring) (reasonableness test in plurality

opinion was approved by majority of Court and represents a

holding).3

3

Our approach to the problem is consistent with that of other circuits,

which generally hold that a public employee’s speech is not entitled to First

Amendment protection when the employer shows that the speech was false

or made with reckless disregard for the truth, particularly when the truth

of the statement was thoroughly investigated. See, e.g., Diaz-Bigio v. Santini,

652 F.3d 45, 54 (1st Cir. 2011) (reversing denial of qualified immunity to

employer on summary judgment where city took employee’s criticisms

(continued...)

18 No. 12-2675

The defendants in this case are not entitled to summary

judgment on the theory that a reasonable jury would be

required to find that Swetlik’s statements were deliberate lies

or were made with reckless disregard for the truth. The Police

and Fire Commission’s hearing officer found that Swetlik

could have been stating his own reasonable interpretation of

Chief Kingsbury’s statements rather than lying. That is a

plausible reading of the evidence, even if it is not the strongest

reading. We must determine, then, whether the defendants

voted to bring termination charges against Swetlik because

they genuinely and reasonably believed, based on an adequate

investigation, that Swetlik had lied about his telephone

3

(...continued)

“seriously and investigated them, basing its termination decision on the fact

that they were found false and groundless”); Brewster v. Board of Educ. of

Lynwood Unified Sch. Dist., 149 F.3d 971, 981–82 (9th Cir. 1998) (reversing

denial of qualified immunity for employer on summary judgment; falsity

of employee’s speech was part of Pickering balancing, and the “fact that,

despite their public-concern character, [teacher’s] allegations of erroneous

recordkeeping were ultimately determined to be false, both by [the

principal] and by a team of independent auditors,” weighed against First

Amendment protection); see also Reuland v. Hynes, 460 F.3d 409, 414–15 (2d

Cir. 2006) (speech not entitled to First Amendment protection if employer

shows the statement: “(1) would reasonably have been perceived as an

assertion of fact, (2) was false, and (3) was made with knowledge or reckless

disregard of its falsity,” but affirming denial of directed verdict for

defendants where nothing in the record suggested plaintiff’s statement was

false); cf. Westmoreland v. Sutherland, 662 F.3d 714, 721–23 (6th Cir. 2011)

statements made “with knowledge of, or reckless indifference to, their

falsity” are not a matter of public concern such that Pickering balancing is

not necessary; reversing grant of summary judgment for employer where

fact issue existed as to whether plaintiff made statements recklessly).

No. 12-2675 19

conversation with Kingsbury. See Waters, 511 U.S. at 677–80

(plurality opinion). If so, they were justified in bringing the

termination charges.

To show that the defendants did not believe he had lied but

instead voted for the termination charges to silence his

legitimate complaints about the chief, Swetlik relies heavily on

the chief’s private attorney’s statements that the purpose of the

investigation was to quell the union’s complaints about

Kingsbury. The problem is that Swetlik has presented no

evidence that the private attorney caused any improper bias on

the part of the investigators or that the defendants shared his

views. And the fact that the investigation recommended the

termination of Chief Kingsbury himself undermines Swetlik’s

claim that its secret purpose was to protect the chief, distin-

guishing this case from Hobgood v. Illinois Gaming Bd., 731 F.3d

635 (7th Cir. 2013), where the plaintiff presented evidence that

the internal agency investigation that ultimately resulted in a

decision to terminate his employment had a predetermined

outcome. See id. at 644–45.

Similarly unconvincing is Swetlik’s argument that the

mayor’s testimony shows that the mayor did not believe he

had lied but instead wanted to retaliate against him for his

union activities. Swetlik points to the mayor’s statement that

he signed the charges because he believed it would remedy

that “constant issues of communication between administra-

tion and the floor,” but the inference Swetlik draws from those

words is unreasonable and ignores the mayor’s additional

testimony that he voted for the charges because he “believed

that the charges were valid and so the action … would help

resolve issues at the police department.” We must assume the

20 No. 12-2675

truth of the non-moving party’s evidence on summary judg-

ment, but that duty “does not extend to drawing inferences

that are supported by only speculation or conjecture.” Cloe, 712

F.3d at 1176 (internal quotations omitted).

Nor has Swetlik presented evidence from which a jury

could reasonably conclude that the defendants’ acceptance of

the investigators’ findings was unreasonable. His best evidence

on this question comes from the two aldermen who voted

against the termination charges. Alderman Brey found the

allegations against Swetlik to be unsupported and thought the

investigation’s focus on the union’s complaints qualified as a

“witch hunt.” Alderman Tittl thought that Swetlik was right to

complain about Chief Kingsbury’s behavior. But the fact that

these two aldermen were not persuaded by the report would

not permit a jury to conclude that their colleagues who were

sued did not reasonably believe that Swetlik had lied about

police matters and that he should be fired on that basis. See

Waters, 511 U.S. at 678 (plurality opinion) (“[T]here will often

be situations in which reasonable employers would disagree

about who is to be believed, or how much investigation needs

to be done,” and “[i]n those situations, many different courses

of action will necessarily be reasonable”). To the contrary, the

undisputed evidence shows that the defendants were advised

to have no contact with the department during the investiga-

tion, and that they first heard from the investigators when the

report was presented. The discrepancies between Swetlik’s

account of his conversation with Kingsbury and the recording

of that conversation provide further support for the defen-

dants. A jury could not find that the defendants’ belief that he

had lied was unreasonable.

No. 12-2675 21

The undisputed evidence thus shows that the defendants

were justified in bringing termination charges against Swetlik

on the basis of the investigation report. His First Amendment

claim must therefore fail. Presented with the supported

findings of an outside investigation that Swetlik violated

department policy by making untruthful statements, defen-

dants could reasonably rely on the report in voting to bring

termination charges. In other words, the defendants’ interest

in ensuring the proper functioning of the department out-

weighed Swetlik’s interest in making his statements about

Kingsbury. Because we affirm on the merits, we do not reach

the defense of qualified immunity.

The judgment of the district court is AFFIRMED.

22   No.  12-­‐‑2675

EASTERBROOK,   Circuit   Judge,   concurring.   The   mayor   and

legislature  of  a  city  in  Wisconsin  proposed  to  discharge  two

members  of  the  police  department,  which  was  experiencing

internal   discord.   Under   state   law,   the   power   to   discharge

rests  with  the  Police  and  Fire  Commission.  So  the  elected  of-­‐‑

ficials   put   their   case   to   the   Commission,   which   took   evi-­‐‑

dence,   deliberated,   and   concluded   that   Detective   Kevin

Swetlik   should   keep   his   job,   but   that   Perry   Kingsbury,   the

Chief  of  Police,  should  be  sacked.  You  might  expect  a  suit  by

Kingsbury,   demanding   his   job   back   and   his   name   cleared.

Instead   we   have   a   suit   by   Swetlik,   who   contends   that   even

proposing   to   fire   him   is   actionable   under   42   U.S.C.   §1983   as

an  infringement  of  his  freedom  of  speech.

Today  the  court  holds  that  the  filing  of  charges  was  justi-­‐‑

fied.   Because   we   rule   against   Swetlik   on   this   ground,   with

which   I   agree,   the   court   does   not   consider   other   subjects—

including  the  fact  that  elected  officials  have  a  constitutional

right   to   speak   and   petition.   Swetlik   relies   on   cases   holding

that   public   officials   cannot   fire   or   discipline   employees   on

the   basis   of   protected   speech.   But   defendants   did   not   fire

Swetlik;   they   made   a   proposal   to   the   Commission.   In   other

words,   defendants   engaged   in   speech   rather   than   action.

Elected   officials   often   express   opinions   about   who   should

work   for   the   polity.   Views   about   how   best   to   run   the   gov-­‐‑

ernment   are   not   confined   to   editorial   writers   or   politicians

seeking  office;  those  already  in  office  also  have  opinions  and

may   have   extra   knowledge   on   which   to   base   them.   And   if

each   elected   official   has   a   right   to   express   an   opinion,   then

defendants   no   less   than   Swetlik   are   protected   by   the   first

amendment  from  penalties  for  their  speech.

No.  12-­‐‑2675   23

The  court  mentions  this  possibility  at  pages  11–12  note  2

but  leaves  the  matter  for  decision  another  day.  Seems  to  me

that  the  answer  is  straightforward.  First,  elected  officials  (de-­‐‑

fendants,  for  example)  have  the  same  first  amendment  rights

as   appointed   ones   (Swetlik,   for   example).   Second,   everyone

has  the  right  to  petition  for  redress  of  grievances—and  that’s

what  defendants  did,  petitioning  the  Commission  to  remove

employees  who  in  defendants’  view  were  harming  the  pub-­‐‑

lic  weal.  Third,  under  the  Noerr-­‐‑Pennington  doctrine  petitions

to   public   bodies   cannot   be   penalized   unless   they   are   frivo-­‐‑

lous.  See  BE&K  Construction  Co.  v.  NLRB,  536  U.S.  516  (2002)

(recapitulating  the  Noerr-­‐‑Pennington  doctrine).

We   held   in   New   West,   LP   v.   Joliet,   491   F.3d   717,   721–22

(7th  Cir.  2007),  that  the  Noerr-­‐‑Pennington  doctrine  applies  to

speech,   proposals,   and   petitions   by   elected   officials.   Other

circuits   agree.   See   Miracle   Mile   Associates   v.   Rochester,   617

F.2d  18  (2d  Cir.  1980);  Mariana  v.  Fisher,  338  F.3d  189  (3d  Cir.

2003);   Manistee   Town   Center   v.   Glendale,   227   F.3d   1090   (9th

Cir.  2000).  A  solitary  decision,  Video  International  Production,

Inc.  v.  Warner-­‐‑Amex  Cable  Communications,  Inc.,  858  F.2d  1075

(5th  Cir.  1988),  is  to  the  contrary.  Yet  the  only  reason  given

in   Video   International—that   “it   is   impossible   for   the   govern-­‐‑

ment   to   petition   itself   within   the   meaning   of   the   first

amendment”,   id.   at   1086—not   only   wrongly   supposes   that

“the  government”  is  a  unitary  entity  (Swetlik’s  situation  and

Virginia  Office  for  Protection  &  Advocacy  v.  Stewart,  131  S.  Ct.

1632   (2011),   show   that   it   isn’t),   but   also   overlooks   the   fact

that   defendants   in   suits   of   this   kind   are   real   people   in   their

personal  capacities,  not  “the  government”.

The   Noerr-­‐‑Pennington   doctrine   establishes   that   Swetlik

cannot   collect   damages   under   §1983   for   defendants’   pro-­‐‑

24   No.  12-­‐‑2675

posal   to   fire   him.   Even   if   the   charges   defendants   made

against  Swetlik  were  false  and  libelous,  that  would  not  mat-­‐‑

ter,  because  Paul  v.  Davis,  424  U.S.  693  (1976),  holds  that  def-­‐‑

amation  that  does  not  make  a  person  unemployable  does  not

violate  the  Constitution.

Otherwise   we   would   open   a   new   era   in   which   litigants

who   prevail   before   state   courts   or   administrative   agencies

could  turn  around  and  demand  damages  in  federal  court.  If

fee-­‐‑shifting  is  to  occur  at  all,  this  should  be  done  in  the  orig-­‐‑

inal   state   proceeding,   not   in   a   separate   federal   suit.   Under

the   American   Rule,   litigants   must   bear   their   own   legal   ex-­‐‑

penses   in   the   absence   of   a   statute   requiring   losers   to   pay.

Swetlik   does   not   contend   that   Illinois   law   entitles   him   to

compensation  for  the  costs  incurred  in  defeating  defendants’

proposal;  he  didn’t  even  seek  such  an  award  in  the  state  pro-­‐‑

ceeding.  Maybe  he  was  represented  by  a  union  and  did  not

incur  any  legal  expenses.  Yet  he  sees  in  the  first  amendment

an   entitlement   to   collect   from   his   adversary   via   a   second,

federal  proceeding.  It  just  isn’t  there.