Roger Peele v. Clifford Burch

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3562

R OGER L. P EELE,

Plaintiff-Appellant,

v.

C LIFFORD B URCH, individually and as

Portage Police Department Chief; L ARRY JOLLEY,

individually and as Portage Police Department

Assistant Chief; and the C ITY OF P ORTAGE,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 09-cv-00138—Paul R. Cherry, Magistrate Judge.

A RGUED A PRIL 1, 2013—D ECIDED JULY 9, 2013

Before B AUER, K ANNE, and T INDER, Circuit Judges.

K ANNE, Circuit Judge. Roger L. Peele was a detective

in the Portage Police Department. In his spare time, he

was active in local politics. Peele supported Steve

Charnetzky’s Democratic primary campaign for the

mayorship of Portage, Indiana. Charnetzky lost, and

2 No. 12-3562

Peele spoke about the loss to a local reporter. Peele’s

comments were published the next day. The day after

that, Peele was transferred out of the Detective Bu-

reau. Peele sued, claiming that he was transferred in

retaliation for his comments. The district court granted

summary judgment in favor of the defendants. For

the reasons that follow, we reverse.

I. B ACKGROUND

The facts of this case are ferociously disputed. For now,

we will try to stay above the fray. To the extent possible,

we will begin by discussing only those facts that every-

body agrees on. Once we move into disputed territory,

we will construe the facts in the light most favorable

to the plaintiff. See Arizanovska v. Wal-Mart Stores, Inc.,

682 F.3d 698, 702 (7th Cir. 2012).

The plaintiff, Roger L. Peele, worked for the Police

Department of the City of Portage, Indiana. Except for

a one-year term as Portage’s Chief of Police, Peele

served from 1992 until 2007 in the department’s Detec-

tive Bureau.

Spring 2007 was election season in Portage. Doug Olson,

the city’s incumbent mayor, was stepping down, and

two candidates sought the Democratic party’s nomina-

tion to replace him. The first was Olga Velazquez. The

second was Steve Charnetzky. Peele supported Charnetzky

and worked on his campaign during off-duty hours.

The voters went to the polls on May 8, 2007. Velazquez

won. Peele spent the evening at Charnetzky’s campaign

No. 12-3562 3

headquarters, and, unsurprisingly, he was frustrated with

his candidate’s loss. He vented his frustrations to a re-

porter for the Northwest Indiana Times. Peele criticized

the Times for what he thought was unfair coverage of the

race and also criticized Porter County Sheriff David Lain

for endorsing Velazquez. Peele also said, apparently

referring to Sheriff Lain, “He won’t get any support here.”

The following day, May 9, 2007, the Times published

Peele’s comments as part of its election coverage. The

next day, May 10, 2007, Peele was called into the Chief

of Police’s office for a meeting. Chief of Police Clifford

Burch, Assistant Chief of Police Larry Jolley, and Detec-

tive Captain Terry Swickard all attended. Chief Burch

read a prepared statement stating that Peele would be

reassigned from the Detective Bureau to the more desk-

bound position of “Station Duty Officer.”

In response, Peele sued Chief Burch, Assistant

Chief Jolley, the Portage City Police Department, and

the City of Portage. Peele claimed that (1) he was

demoted and constructively discharged without due

process; (2) the defendants retaliated against him for

supporting Charnetzky, in violation of the First Amend-

ment; and (3) the defendants defamed him. The de-

fendants countersued for malicious prosecution and

abuse of process. The parties consented to disposition

by a magistrate judge. (R. 17.)

On February 28, 2012, the district court issued an

order granting summary judgment to the defendants on

Peele’s due process, First Amendment, and defamation

claims. Peele v. Burch, No. 09-CV-138-PRC, 2012 WL 693570,

4 No. 12-3562

at *5-11 (N.D. Ind. Feb. 28, 2012). The district court also

granted summary judgment in favor of Peele on the de-

fendants’ abuse of process claim, but denied summary

judgment on the defendants’ malicious prosecution

claim. Id. at *12-13. Finally, the district court dismissed,

by agreement, the Portage Police Department as a party

defendant because the Department lacks the capacity to

be sued.1 Id. at *13. After the district court issued its

February 28 order, the parties stipulated to the dismissal,

with prejudice, of the defendants’ malicious prosecu-

tion claim. (R. 88.)

The defendants did not appeal the district court’s

judgment, but Peele did. Abandoning his due process

and defamation claims, Peele now argues only that the

defendants punished him for his political speech in

violation of the First Amendment. Peele also raises

several ancillary issues relating to his retaliation claim.

We address these issues at the end of our opinion.

II. A NALYSIS

There is much more to this case than our brief intro-

duction lets on. Our focus, however, is on a narrower

issue: whether the district court was right to grant sum-

1

Despite this agreed dismissal, the parties continue to list

the Portage Police Department as a party to this case. Because

neither side has asked to have the Department reinstated as

a defendant, we have omitted the Department from our opin-

ion’s caption.

No. 12-3562 5

mary judgment on Peele’s retaliation claim. Summary

judgment is proper when “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). We

review the district court’s entry of summary judgment

de novo and view all of the evidence in the light most

favorable to the nonmoving party. Arizanovska, 682 F.3d

at 702. A genuine issue of material fact exists only if

there is enough evidence that a reasonable jury could

return a verdict in favor of the nonmoving party. Harper

v. C.R. England, Inc., 687 F.3d 297, 306 (7th Cir. 2012).

Peele’s lone claim is that the defendants are liable

under 42 U.S.C. § 1983 for transferring him in retaliation

for his political activities. The First Amendment protects

the free speech rights of public employees. See Spiegla

v. Hull, 371 F.3d 928, 935 (7th Cir. 2004) (citing Pickering

v. Bd. of Educ., 391 U.S. 563, 568 (1968)). Thus, “[i]t is well

established that . . . transferring government employees

based on political motivation violates the First Amend-

ment, with certain exceptions for policymaking pos-

itions and for employees having a confidential relation-

ship with a superior.” Hall v. Babb, 389 F.3d 758, 762 (7th

Cir. 2004) (citing Rutan v. Republican Party of Ill., 497 U.S.

62, 65, 71 n.5 (1990), and Elrod v. Burns, 427 U.S. 347,

367 (1976)). To make out a prima facie case of First Amend-

ment retaliation, a public employee must present evi-

dence that “(1) his speech was constitutionally pro-

tected; (2) he has suffered a deprivation likely to deter

free speech; and (3) his speech was at least a motivating

factor in the employer’s actions.” Kidwell v. Eisenhauer,

679 F.3d 957, 964 (7th Cir. 2012).

6 No. 12-3562

The first question, then, is whether Peele made a con-

stitutionally protected statement. Peele argues that we

should consider all of his conduct during election

season protected. In response, the defendants concede

that Peele’s May 8 statement to the Times was constitu-

tionally protected, but argue that we should not con-

sider the rest of his election-season conduct because

that conduct was not raised in Peele’s complaint.

We agree with the defendants on this point. “Federal

Rule of Civil Procedure 8(a) requires that a complaint

adequately plead facts to put a defendant on notice of

the plaintiff’s claim[.]” Segal v. Geisha NYC LLC, 517 F.3d

501, 505 (7th Cir. 2008). Here, Peele’s complaint alleged

only one clear instance of protected conduct: his state-

ment to the reporter in May 2007. (See R. 1 at ¶ 7)

(alleging that “on May 9, 2007, Plaintiff, Roger L. Peele

voiced his First Amendment [r]ight to publicly support

his candidate for Democratic Mayor of Portage, Steve

Charnetzky[,] against candidate[ ] Olga Velazquez”).2

Beyond that, the complaint offered nothing more

than vague boilerplate language. (See, e.g., id. at ¶ 16)

(alleging that the defendants, “by their acts and failures

to act and by their deliberate indifference to acts and

failures to act,” violated Peele’s “First Amendment

[r]ights including but not limited to the right of free

2

The complaint identified May 9, 2007, as the date of Peele’s

statement. As our prior discussion makes clear, the statement

was published on May 9, 2007, but Peele actually made the

statement on May 8, 2007.

No. 12-3562 7

speech and association” and “the right of freedom of

political association”). For the reasons correctly and

comprehensively discussed in the district court’s opin-

ion, see Peele, 2012 WL 693570, at *8-9, these vague al-

legations were not enough to give fair notice that

Peele’s claim involved protected conduct other than the

conduct of May 8, 2007. Accordingly, we will confine

our analysis to the events surrounding May 8, 2007.

The second element of Peele’s claim requires him to

show that he suffered a deprivation likely to deter free

speech. Kidwell, 679 F.3d at 964. While the defendants

suggest in passing that Peele did not suffer such a dep-

rivation when they transferred him to the Station Duty

Officer position, (see Appellee’s Br. at 38-39), they have

not supported that suggestion with a developed argu-

ment. Instead, the defendants focus all of their attention

on the third element of Peele’s case: whether Peele pro-

vided evidence that his protected conduct was

a “motivating factor,” Kidwell, 679 F.3d at 964, in the

defendants’ decision to transfer him. (See, e.g., Appellees’

Br. at 28) (“Appellees/Defendants claim that they are

entitled to summary judgment because Peele has failed

to satisfy requirement (3).”). Thus, we turn our atten-

tion to the third element of Peele’s claim.

There has been some confusion recently about how to

apply the “motivating factor” test. We addressed this

confusion in Kidwell, 679 F.3d at 964-66, and Greene

v. Doruff, 660 F.3d 975, 977-80 (7th Cir. 2011). As

we explained in those cases, the “motivating factor” re-

quirement splits the burden of production between the

8 No. 12-3562

parties on summary judgment. Kidwell, 679 F.3d at 965.

The plaintiff has the initial burden to produce evidence

that his speech was at least a “motivating factor” in the

employer’s decision to take adverse action against him—

“or, in philosophical terms, a ‘sufficient condition’ ” of

the retaliation. Id. (citing Greene, 660 F.3d at 979-80).

The defendant may then rebut that evidence by demon-

strating that “the harm would have occurred any-

way,” even without the protected conduct—or, in other

words, “that his conduct was not a necessary condition

of the harm.” Greene, 660 F.3d at 980 (emphasis added);

accord Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 285-86 (1977). Put another way, Peele

must first provide evidence that the defendants were

motivated, at least in part, by a desire to retaliate

against him for his protected speech. If he does, then

the defendants may counter by showing that they

would have reached the same result even without the

protected speech.

Here, we think that there is enough evidence for a

reasonable jury to conclude that Peele’s comments were

both sufficient and necessary causes of his transfer. To

begin, the timing of Peele’s transfer was highly suspi-

cious. Suspicious timing is rarely enough, by itself, to

create a triable issue of fact. Kidwell, 679 F.3d at 966.

“Occasionally, however, an adverse action comes so

close on the heels of a protected act that an inference of

causation is sensible.” Loudermilk v. Best Pallet Co., LLC,

636 F.3d 312, 315 (7th Cir. 2011); see also id. (collecting

cases). And even if suspicious timing alone is not enough

to create a triable issue in a particular case, suspicious

No. 12-3562 9

timing remains “an important evidentiary ally of the

plaintiff.” Davis v. Time Warner Cable of Se. Wis., L.P., 651

F.3d 664, 675 (7th Cir. 2011).

Here, Peele made his protected comments on May 8,

2007. They were published in the newspaper the very

next day (May 9, 2007), and Peele was transferred the

day after that (May 10, 2007). “The closer two events are,

the more likely that the first caused the second,”

Loudermilk, 636 F.3d at 315, and it is hard to imagine

two key events closer in time than the ones at stake here.

Even if this extraordinary temporal proximity is not

enough to create a triable issue of fact on its own—a

question we need not answer—at the very least, it pro-

vides some evidence that a retaliatory motive lurked

behind Peele’s transfer. See id.; Spiegla, 371 F.3d at 943

(“It is settled in this Circuit that a plaintiff may establish

a causal link between protected expression and adverse

action through evidence that the adverse action took

place on the heels of protected activity.”) (internal

comma, brackets, and ellipsis omitted).

In addition to this circumstantial evidence, Peele has

also presented direct evidence of retaliatory motivation.

That evidence comes from the deposition of Joe Radic,

the officer who held the Station Duty Officer position

before Peele replaced him. (See R. 50-4 at 14-23.) According

to Radic, Chief Burch told Radic that he would not

have to work as the Station Duty Officer anymore. Burch

then went on to explain that Peele was being transferred

to the Station Duty Officer position because Peele had

“made the mayor mad.” (Id. at 21.) Burch further ex-

10 No. 12-3562

plained that the “mayor” he was referring to was

Velazquez, who had just defeated Charnetzky in the

primary and presumably would soon become mayor.

(Id. at 22.)

We express no opinion at this stage on whether Radic’s

recollection of Burch’s statements is credible. But Burch

is a party to the case, so his alleged statements are not

hearsay. See Fed. R. Evid. 801(d)(2)(A). And, as the Chief

of Police, Burch was a key player in the decision to

transfer Peele. If genuine, Burch’s statements would

provide powerful evidence that Peele’s transfer was

politically motivated. We think this evidence, combined

with the suspicious timing of the transfer, could be

enough to lead a reasonable jury to decide in Peele’s favor.3

Before moving on, we should note that the defendants

moved, in the district court, to strike Radic’s testimony

about Burch’s statements. (See R. 55 at 5, 17.) The de-

fendants argued that Radic’s deposition was contrary

to Burch’s deposition; contained improper speculation

on Velazquez’s motivations; and could be interpreted to

3

Peele argues that other evidence also supports his claim. But

determining whether this evidence is admissible will require

findings about witness unavailability, see Fed. R. Evid. 804,

authorization to speak for a party, see Fed. R. Evid. 801(d)(2)(C)-

(D), and the existence of personal knowledge, see Fed. R. Evid.

602. Because Radic’s deposition and the suspicious timing

are enough to avoid summary judgment, we need not discuss

this other evidence. We leave it to the district court to deter-

mine, in its sound discretion, whether Peele will be able to

introduce this additional evidence at trial.

No. 12-3562 11

have a more innocent meaning. (Id. at 5.) The defendants

also argued that Peele’s brief failed to properly cite to

Radic’s deposition under Northern District of Indiana

Local Rule 56-1. (Id. at 17.)

Those seem like thin grounds for a motion to strike.

Take, for instance, the fact that Radic’s deposition con-

flicted with Burch’s deposition and was susceptible to

multiple meanings. (Id. at 5.) That is not a reason to

strike Radic’s testimony; it is a reason to present it to a

jury to resolve the conflicting stories and interpretations.

Or consider the argument that Radic’s recollections of

Burch’s statements are too speculative to be introduced

as evidence of Velazquez’s motivations. (Id.) (citing Fed. R.

Evid. 602). That is true, but Radic’s recollections would

be highly relevant to Burch’s motivations, and, as dis-

cussed, Burch was a key player in the decision to

transfer Peele. Only the issue of noncompliance with

Local Rule 56-1 might have some substance behind it.

But even so, it would not necessarily have led to striking

Radic’s testimony; “[o]ur cases make it clear that a

district court’s decision whether to apply a local rule

strictly or to overlook any transgression is one left to

the district court’s discretion.” Stanciel v. Gramley, 267

F.3d 575, 579 (7th Cir. 2001) (internal quotation marks

and brackets omitted).

It is unclear, however, whether the district court con-

sidered these issues. As the district court (correctly)

noted, both sides filed “voluminous” motions to strike

each other’s statements of fact. Peele, 2012 WL 693570, at

*1. As a result, the district court declined to discuss the

12 No. 12-3562

motions to strike in detail and instead wrote that it con-

sidered the motions and would discuss only those

facts that the court deemed “material” and “either undis-

puted by the parties or reflect[ing] the Court’s deter-

mination that they [were] properly supported by the

evidence in the record.” Id. The district court’s ensuing

factual discussion did not mention Radic’s testimony.

Id. at *2-3.

This omission suggests, at least implicitly, that the

district court thought that Radic’s recollections were

somehow inadmissible or unsupported. Nevertheless,

we hesitate to defer to, or rely on, the district court’s

implicit suggestion that it struck Radic’s statements.

True, both sides’ motions to strike were indeed volumi-

nous and occasionally frivolous. Moreover, many of

Peele’s filings, both in this court and in the district court,

contain unsupported assertions and poor citation prac-

tices. Still, without a clear articulation of the district

court’s reasoning, we cannot tell whether the court

wanted to strike Radic’s statements or whether it simply

overlooked them. In any event, Peele relies on Radic’s

testimony in his briefs in our court, (see Appellant’s Br. at

11, 30, 43-45), and the defendants have not objected to

that reliance. As a result, we think it appropriate to base

our decision, in part, on Radic’s deposition testimony

about his conversation with Burch. And, as discussed,

we think that this testimony, combined with the highly

suspicious timing, is enough to survive summary judg-

ment.

There is, of course, another side to this story. The defen-

dants have provided evidence that Peele was transferred

No. 12-3562 13

because of his disruptive, profane, and insubordinate

behavior, not because of his constitutionally protected

speech. And, according to Chief Burch, Assistant Chief

Jolley, and former Mayor Olson, the decision to transfer

Peele was made on May 4, 2007, several days before Peele

made his protected statements. Nevertheless, we do

not think that this evidence entitles the defendants to

summary judgment. Our role at this stage is to decide

if there is a factual dispute, not which side of the dispute

is right. See O’Leary v. Accretive Health, Inc., 657 F.3d 625,

630 (7th Cir. 2011).

Moreover, we think that Peele’s evidence casts enough

doubt on the defendants’ story to create a triable issue.

The defendants claim that they decided to transfer Peele

on May 4, 2007, but waited until May 10, 2007, to tell him

about it. But employee attendance records show that

the key players—Peele, Burch, Jolley, and Swickard—were

all present at work on May 8 and May 9. (R. 56-1 at 24);

(R. 71-1 at 21-23). This fact casts at least some doubt on

the defendants’ claim that they made their decision

earlier in the week—if they had already made their deci-

sion, why not tell Peele about it immediately? Peele also

points out that the written statement transferring him

was signed on May 10, not May 4. That too suggests

that the defendants’ story might be pretextual. The defen-

dants counter that they actually drafted the statement on

May 7, but left the date blank so they could fill it out

later. (See Appellees’ Br. at 16, 19.) That is surely possible,

but a reasonable jury could believe that explanation to

be pretextual in light of Burch’s alleged statements to

Radic and the otherwise suspicious timing of the transfer.

14 No. 12-3562

At this stage, we must view all of the evidence in the

light most favorable to Peele. See Arizanovska, 682 F.3d

at 702. It may ultimately be the case, of course, that the

defendants’ evidence will prove more convincing. If it

does, the defendants will be entitled to a verdict in their

favor at trial. See Greene, 660 F.3d at 980. But the defen-

dants’ evidence is not so overwhelming that no rea-

sonable jury could decide against them. Accordingly,

they are not entitled to summary judgment in their favor.

Peele also asks us to address several other related

issues, including conspiracy, qualified immunity, statu-

tory immunity, and whether the City of Portage is liable

under Monell v. Department of Social Services, 436 U.S. 658

(1978). While Peele characterizes these arguments as

requests for summary judgment, (see Appellant’s Br. at

15, 32, 35, 37-38), they are more accurately described

as issues of law. For example, a holding that the

defendants are not entitled to qualified or statutory

immunity would merely bar the defendants from pre-

senting qualified or statutory immunity defenses. It

would not bar the defendants from presenting any

defense, nor would it entitle Peele to entry of judgment

in his favor without the need for a trial.

But however one characterizes these issues, we need

not tackle them now. The district court did not address

conspiracy, immunity, or Monell below. Nor have the

defendants briefed these issues in our court. Accord-

ingly, we will leave these questions for the district

court to consider in the first instance on remand.

No. 12-3562 15

III. C ONCLUSION

For the foregoing reasons, we R EVERSE the district

court’s grant of summary judgment on Peele’s retaliation

claim and R EMAND for further proceedings consistent

with this opinion.

7-9-13