Cygan, Lori v. WI Dept Corrections

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-1297

LORI CYGAN,

Plaintiff-Appellant,

v.

WISCONSIN DEPARTMENT OF CORRECTIONS,

JON E. LITSCHER, DANIEL BERTRAND, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03 C 4—William C. Griesbach, Judge.

____________

ARGUED SEPTEMBER 8, 2004—DECIDED NOVEMBER 10, 2004

____________

Before BAUER, MANION, and KANNE, Circuit Judges.

BAUER, Circuit Judge. After the termination of her em-

ployment at the Wisconsin Department of Corrections (“DOC”)

facility in Green Bay, plaintiff Lori Cygan filed a lawsuit

against the DOC and various DOC officials under 42 U.S.C.

§ 1983. Cygan alleged that the defendants violated her

constitutional rights by firing her in retaliation for exercis-

ing her First Amendment rights, and by failing to afford her

due process in connection with the termination. Cygan also

advanced a state law retaliation claim. The district court

granted the defendants summary judgment on all three

2 No. 04-1297

theories. Cygan limits her appeal to the district court’s

decision on her First Amendment retaliation claim. We

affirm.

I. Background

Cygan worked for fourteen years as a prison guard at the

Green Bay Correctional Institution (“GBCI”), a maximum-

security facility operated by the Wisconsin DOC. GBCI

houses over 1,040 of Wisconsin’s violent offenders. Cygan

was a second-shift Rotunda Officer at GBCI, responsible for

security of the rotunda, supervising inmate movement,

operating gates leading into the rotunda, and supervising

inmates during the evening meal.

A. Cygan’s Performance at GBCI

Throughout the majority of her tenure at GBCI, Cygan

had positive performance evaluations. However, starting in

1997, various supervisors began to take issue with Cygan’s

job performance. For example, in reviewing Cygan’s perform-

ance from October 1997 through October 1998, Dennis Natzke,

Cygan’s immediate supervisor, wrote:

Officer Cygan has an excellent work ethic. . . . I do have

concern with Officer Cygan and that is her patience

with newer employees. She needs to understand that

everyone has to go through a learning process and they

will not be as efficient as someone who does the same

routine every day will. While she has the ability to teach

these officers I feel she would rather do it herself than

take the time to train. . . . I believe she needs to consider

all other personnel as her equal, which she sometimes

has a problem with when dealing with new officers.

This is a very real concern and I feel she needs to ad-

dress this soon as some officers do not care to work in

the cell hall because of this . . . . She needs to learn to

No. 04-1297 3

become more personable when working with officers

that are not regulars in her work unit.

Robin Rogers, Cygan’s supervisor in 2001, expressed simi-

lar concerns when evaluating Cygan in November 2001.

Rogers wrote that Cygan was not meeting institutional

standards with respect to interpersonal relationships. Rogers

also specifically noted that there had been “several occur-

rences of [Cygan] being discourteous and insensitive to staff

and inmates during this reporting period,” and that “Cygan

did not meet the standards for having sensitivity to others

and their problems, feelings and rights, being courteous and

tactful and to respond positively to constructive criticism

and supervision.”

Defendant Peter Erickson, the security director at GBCI

since 2002, initiated an investigation into Cygan’s behavior

in June 2001 after receiving a complaint about Cygan’s use

of profanity and other derogatory language when referring

to junior officers. During the course of the investigation,

three junior officers confirmed that Cygan had treated them

in an unprofessional manner. After the investigation,

defendant Daniel Bertrand, the Warden of GBCI, directed

Cygan to attend a training on professionalism, and issued

her an official letter of reprimand for violating DOC Work

Rule 13, which prohibits the following conduct:

13. Intimidating, interfering with, harassing (including

sexual or racial harassment), demeaning, or using abu-

sive language in dealing with others.

Cygan was also disciplined twice in October 2001. The

first incident involved a complaint by Health Services Unit

Manager Jeanne Hertel. Hertel complained that Cygan failed

to promptly open a gate to allow Hertel to pass to her de-

stination within the institution. After a pre-disciplinary

interview where Cygan stated that she did not remember

the incident, Warden Bertrand sent Cygan notice that she

was suspended without pay for one day for negligence in

4 No. 04-1297

performing assigned duties. The second incident stemmed

from a complaint that Cygan had made a loud and threaten-

ing comment to an inmate. Cygan admitted that she yelled

at the inmate, but she denied using threats or profanity.

Warden Bertrand suspended Cygan three days without pay

as a result of this incident.

As related above, Warden Bertrand directed Cygan to attend

a training on professionalism after the June 2001 complaint.

Cygan attended the required class, but the class instructor,

a professor from the University of Wisconsin-Milwaukee,

reported that she was disruptive, inattentive, and disrespect-

ful during the class. In an e-mail sent to GBCI, the instructor

stated that Cygan arrived late, talked incessantly, laughed

during the presentation, and slept on the table. Based on the

e-mail from the instructor and corroborating statements

from other class attendees, Warden Bertrand suspended

Cygan without pay for one day.

B. Cygan’s Speech Activities at GBCI

GBCI staff often discussed security issues and other job-

related issues with Deputy Warden Michael Baenen. Cygan

had discussions with Baenen about her perceptions of poor

communication between GBCI staff, low morale, inadequate

training for rookie officers, lack of radios for prison staff,

problems with the prison camera security system, and staff

shortages during meals. Other staff had raised some of the

same concerns with Baenen. Cygan and Officer Chad

Frappier, her union steward, filed grievances regarding staff

shortages during meals, which were denied.

On November 23, 2001, Cygan met with Warden Bertrand

in his office and complained about inadequate training and

staffing at the prison and about the administration’s failure

to repair the security cameras in the South Cell Hall.

On December 25, 2001, a fight broke out between two

inmates in the rotunda area near the cafeteria during the

No. 04-1297 5

second-shift meal. Cygan and three other responding offi-

cers suffered minor injuries while subduing the inmates. In

her report about the incident, Cygan noted that the second-

shift meal started with a shortage of staff, and that similar

incidents could be avoided by “running the shift with

enough officers.”

On January 8, 2002, Cygan was assigned to supervise in-

mates during the evening meal. Defendant Michael Schultz,

a Captain at GBCI, was Cygan’s supervising officer that

night. Although GBCI has a policy that provides, “GBCI will

ensure that a minimum of ten correctional officers are as-

signed to the dining room areas for necessary meal cover-

age,” the evening meal started with fewer than ten officers

on hand.

The parties dispute some of the details regarding Cygan’s

behavior on that night. According to Schultz, Cygan was

upset that the second-shift meal had started without ten

officers present, and she yelled in the presence of other staff,

“This is fucking bullshit. I am sick of this shit.” Schultz tes-

tified that inmates working on the serving line may have

heard Cygan’s complaints. Schultz also heard Cygan yelling

at Officer Frappier in the rotunda area just outside of the

cafeteria. According to Schultz, Cygan was complaining

loudly about officer coverage at meals and about the need

for Frappier to do his job. Frappier was the union represen-

tative and Cygan wanted him to file a grievance regarding

officer coverage at meals. Schultz considered Cygan’s tone

to be loud and profane, and he thought the conduct inap-

propriate and unprofessional. Believing Cygan’s behavior

would stop, Schultz walked toward the dining hall. However,

according to Schultz, Cygan continued to yell and use pro-

fanity, and Schultz confronted Cygan in the rotunda area,

saying, “Officer Cygan, if you want to take Officer Frappier

into a different room and talk to him later, that’s fine. But

this conversation will not happen in the rotunda during

meals.” In response, Cygan yelled, “fine,” and then turned

6 No. 04-1297

to other officers in the rotunda and yelled, “and this is

professional?”

Cygan tells a different story. At a hearing about the in-

cident, Cygan admitted that she was upset about the meal

starting without ten officers present and she acknowledged

raising her voice, but she denied using profanity and denied

acting in an abusive manner. Cygan testified that she said,

“I hate his place” when she learned that the meal was

starting understaffed. In Cygan’s view, it was Schultz who

acted unprofessionally by yelling at her within inches of her

face in front of other officers. Cygan also admitted that she

urged Frappier to file a grievance because “GBCI does not

seem to care about our safety.” Frappier largely corrobo-

rated Cygan’s story.

On January 21, 2002, a boiler broke down at the prison

and inmates became upset when they learned that they

would not have showers that evening. On January 22, 2002,

about fifty inmates dumped their dirty laundry on the

sergeant’s desk during the noon hour. A fight subsequently

broke out between inmates and officers, and eight officers

were taken to the hospital for treatment. During the second

shift on January 22, Cygan told Deputy Warden Baenen

that she thought that Captain Schultz had mishandled the

shower situation and the subsequent disturbance. Cygan

also told Baenen that Security Director Erickson had stayed

in his office during the disturbance and failed to check on the

situation. Baenen later discussed the issues with Erickson

and Schultz.

On January 29, 2002, defendant Jon Litscher, the Secretary

of the DOC, met with staff at GBCI to discuss the January

22 disturbance. While Secretary Litscher was touring the

facility with Warden Bertrand, Cygan asked Litscher if she

could speak to him alone. Litscher agreed, and Cygan and

two other officers told him that they were concerned about

the security issues at the prison that Warden Bertrand had

No. 04-1297 7

not adequately addressed. Cygan handed him a list of

concerns that had been compiled by second-shift officers,

which included short-staffing at meals, malfunctioning se-

curity cameras, and low morale among front-line staff.

Secretary Litscher spoke to a number of GBCI employees

on January 29, 2002, including Officer Patricia Janus. Janus

spoke to Litscher about various work-related concerns and,

like Cygan, gave Litscher a written list of concerns. Janus

was not terminated or disciplined in any way for her speech;

she is still employed at GBCI.

Baenen and Cygan had a discussion on January 30, 2002,

in the lobby at GBCI. According to Cygan, Baenen told her,

“there is a target on your back and it is getting bigger every-

day.” Baenen also told her that she would not have so much

trouble if she could learn to keep her mouth shut. When

asked about the conversation in his deposition, Baenen said

that he could not remember his exact words, but that he

wanted to warn Cygan “to be more careful about how you

interact with people.”

C. Termination of Cygan’s Employment

On January 16, 2002, defendant Brad Nuss, the GBCI

Human Resources Director, sent a memorandum requesting

Cygan’s termination to the DOC employment relations

specialist in Madison, Wisconsin. The memorandum pro-

vided:

We are requesting approval to terminate Officer Lori

Cygan. . . . She is a long-term officer whose performance

has deteriorated significantly in the past year. Officer

Cygan has a history of directing abusive, demeaning,

and derogatory language at coworkers and inmates.

The memorandum then detailed a series of incidents and

disciplinary actions taken against Cygan, and stated that

“[Cygan] has shown absolutely no willingness to change”

8 No. 04-1297

despite the discipline.

On February 5, 2002, Cindy O’Donnell, the Deputy

Secretary of the DOC, reviewed GBCI’s termination recom-

mendation and gave her approval to terminate Cygan.

O’Donnell, who receives approximately twenty such recom-

mendations each month, never discussed the Cygan termi-

nation with Secretary Litscher nor did O’Donnell and Litscher

discuss Cygan’s performance or employment at GBCI.

On February 6, 2002, Warden Bertrand sent Cygan

notification that her employment was terminated effective

immediately. In the termination letter, Bertrand informed

Cygan that she was terminated due to her repeated viola-

tions of Work Rule 13 (which prohibits intimidating, abusive,

and demeaning behavior). The letter specifically mentioned

five incidents where Cygan had violated Work Rule 13 or

other DOC rules, and noted that her behavior had resulted

in three suspensions and a written reprimand.

D. Cygan’s Federal Lawsuit

Cygan challenged the constitutionality of her dismissal by

filing a federal lawsuit under 42 U.S.C. § 1983 in January

2003, advancing a First Amendment retaliation claim, a

due process claim, and a state law retaliation claim. The

district court disposed of all three claims at the summary

judgment stage. Cygan appeals only the court’s ruling on

her First Amendment claim. With regard to this claim, the

district court observed that Cygan’s affidavit lacked speci-

ficity about her complaints, but concluded for purposes of

summary judgment that her speech addressed matters of

public concern. The court then ruled that Cygan failed to

prove causation or show pretext, and granted summary

judgment.

No. 04-1297 9

II. Discussion

A. Standard of Review

We review de novo the district court’s decision to grant

summary judgment. Wainscott v. Henry, 315 F.3d 844, 848

(7th Cir. 2003). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and ad-

missions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter

of law.” FED. R. CIV. P. 56(c). We may affirm the district

court on any basis supported by the record. Aviles v. Cornell

Forge Co., 183 F.3d 598, 603 (7th Cir. 1999).

B. First Amendment

Individuals do not relinquish their First Amendment rights

to free speech by accepting employment with the government.

See Pickering v. Bd. of Educ. of Township High Sch. Dist.,

391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed. 2d (1968). Never-

theless, the government as an employer has an interest in

conducting its affairs as efficiently and effectively as pos-

sible. Waters v. Churchill, 511 U.S. 661, 675, 114 S.Ct. 1878,

128 L.Ed.2d 686 (1994). As a consequence, public employees

do not have the unfettered right to express themselves on

matters related to their official responsibilities, and courts

must give due weight to the government’s interest in effi-

cient employment decisionmaking when evaluating First

Amendment retaliation claims. Id.

In analyzing a First Amendment retaliation claim brought

under § 1983, we apply a three-step test premised on the

Supreme Court’s decisions in Pickering, Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568,

50 L.Ed. 2d 471 (1977), and Connick v. Myers, 461 U.S. 138,

103 S.Ct. 1684, 75 L.Ed 2d 708 (1983). First, we must deter-

mine whether the plaintiff’s speech was constitutionally

10 No. 04-1297

protected. Second, the plaintiff must establish that the

speech was a substantial or motivating factor in her ter-

mination. Third, defendants then have the opportunity to

show that the plaintiff would have been fired even in the

absence of the protected speech. Sullivan v. Ramirez, 360

F.3d 692, 697 (7th Cir. 2004).

At the outset, we identify the instances of speech at issue

in order to evaluate their protected status under the First

Amendment. Cygan’s speech distills into six categories: (1)

the general complaints to Deputy Warden Baenen about low

morale, poor communication, inadequate training for rookie

officers, lack of radios for prison staff, problems with the

prison camera security system, and staff shortages during

meals; (2) the November 23, 2001, meeting with Warden

Bertrand where Cygan commented on inadequate training

and staffing at the prison and the failure to repair security

cameras in the South Cell Hall; (3) Cygan’s report after the

December 25, 2001, fight in the cafeteria; (4) the January 8,

2002, incident during the evening meal; (5) Cygan’s conver-

sation with Deputy Warden Baenen on January 22, 2002,

where she criticized how Schultz handled a prisoner disturb-

ance the day before; and (6) Cygan’s January 29, 2002,

written list of concerns and comments to Secretary Litscher.

We analyze each instance of speech separately to determine

its protected status. Wright v. Ill. Dept. of Children &

Family Servs., 40 F.3d 1492, 1499 (7th Cir. 1994).

However, it is only necessary to analyze the speech for

which Cygan was terminated. Wright, 40 F.3d at 1501. Al-

though Cygan mentions other instances of speech when dis-

cussing the facts, she focuses almost entirely on the events

of January 8, 2002, in her analysis section. Notably, Cygan

fails to provide any evidence of a causal link between the first

three instances of speech listed above and her termination.

While those instances of speech may provide relevant

background information in this case, the complete absence

of evidence linking those speech activities to Cygan’s termi-

No. 04-1297 11

nation renders it unnecessary to analyze their protected

status. See Wright, 40 F.3d at 1501 (noting that courts need

not analyze instances of speech under the First Amendment

unless the plaintiff adequately links the speech to punish-

ment meted out by defendant). At any rate, many of the

topics covered in her litany of complaints strike us as

relatively mundane concerns raised by a disgruntled public

employee, rather than issues of public concern worthy of

First Amendment protection.

We are thus left with the task of evaluating Cygan’s speech

on January 8, January 22, and January 29, 2002. In eval-

uating whether speech is constitutionally protected, we apply

the two-step Connick-Pickering test. Wainscott, 315 F.3d at

848. First, under Connick, we determine whether the em-

ployee spoke as a citizen upon matters of public concern.

Connick, 461 U.S. at 147. Second, if the employee spoke on

a matter of public concern, we apply the Pickering balanc-

ing test, balancing the employee’s interest in commenting

upon such matters and the employer’s interest in efficient

public services. Pickering, 391 U.S. at 568.

When determining whether speech addresses a matter of

public concern, we consider “the content, form, and context

of a given statement, as revealed by the whole record.”

Connick, 461 U.S. at 147-48. Of those three factors, content

is the most important. Wright, 40 F.3d at 1501. In addition,

an employee’s choice of forum and motivation for speaking

are also relevant considerations. Id. At bottom, we must

decide whether the speech is most accurately characterized

as an employee grievance, or as a matter of political, social,

or other concern to the community. Connick, 461 U.S. at

146-47. With these standards in mind, we turn to the

specifics of Cygan’s speech on January 8, January 22, and

January 29, 2002.

12 No. 04-1297

1. Cygan’s Speech on January 8

a. Matter of Public Concern

The parties dispute the circumstances surrounding Cygan’s

speech activities on January 8, 2002. Under Waters, we ap-

ply the Connick-Pickering test to the facts as the government

employer found them to be, as long as the government’s con-

clusion about the facts was reasonable. Waters, 511 U.S. at

676-77 (noting that if it were otherwise and the Connick-

Pickering test was applied to the facts determined by a ju-

dicial factfinder, government employers would be forced “to

come to its factual conclusions through procedures that

substantially mirror the evidentiary rules used in court.”).

So, as a preliminary matter, we must decide whether GBCI

management’s view of the events on January 8 was rea-

sonable.

After conducting an investigation into the January 8 in-

cident, GBCI management concluded that Cygan violated

Work Rule 13’s prohibition on the use of demeaning and

abusive language in dealing with others. In reaching their

conclusion, defendants credited Captain Schultz’s statement

over the statements of Cygan and Frappier. According to

Schultz, Cygan was upset that the second-shift meal started

without ten officers present, and she complained in a loud,

profane, and unprofessional manner in the presence of staff

and inmates. Schultz confronted her and told her not to have

that conversation with Frappier during the meal. Cygan,

with corroborating testimony from Frappier, denied using

profanity or acting in an abusive manner and faulted

Schultz for acting unprofessionally and causing a scene.

After receiving a disciplinary report about the incident

from Schultz, a pre-disciplinary meeting was held with

Cygan, her union representative, and a GBCI management

representative. Cygan was permitted to tell her side of the

story at the meeting, during which she admitted to yelling

but denied using profanity. Defendants were aware of nu-

No. 04-1297 13

merous previous complaints from different sources against

Cygan for directing profane and derogatory language at both

officers and inmates, and defendants knew that Cygan had

denied using profane or abusive language after past com-

plaints. This knowledge of Cygan’s abusive behavior in the

past, buttressed by their consideration of Captain Schultz’s

eyewitness statement and any insight gained from the face-

to-face meeting with Cygan, provided GBCI management

with a reasonable basis to credit Schultz’s version of the

events and discredit portions of Cygan and Frappier’s state-

ments. See Waters, 511 U.S. at 679 (explaining that courts

will accept the employer’s credibility determinations as long

as they are reasonable and the employer used the care that

a reasonable manager would use before making the deter-

minations). We conclude that GBCI’s findings about the

events on January 8 were reasonable.

Applying the Connick test to defendants’ version of the

events on January 8, we conclude that Cygan’s speech

touched on matters of public concern. As we discussed above,

content is the most important factor, and it is undisputed

that Cygan was expressing her disagreement with Schultz’s

decision to start the second-shift meal with fewer than ten

officers, which implicates prison security issues. Even though

Cygan could be accurately characterized as a disgruntled

employee and her speech may have been partially moti-

vated by her dissatisfaction at GBCI and by concerns for

her personal safety, speech touching on issues of internal

prison security in a maximum security prison like GBCI is

undoubtedly a matter of public concern. See Spiegla v. Hull,

371 F.3d 928, 936 (7th Cir. 2004).

We wish to emphasize, as we did in Spiegla, that not every

prison employee complaint is a matter of constitutional

magnitude. Spiegla, 371 F.3d at 936. As explained by the

Supreme Court in Connick, government employee speech tied

up in personal grievances or internal office affairs does not

fall within the ambit of “public concern.” Connick, 461 U.S.

14 No. 04-1297

at 148. In this case, Cygan’s speech on January 8 brought

attention to a staffing issue that had the potential to com-

promise prison security. Indeed, Cygan and other officers

had suffered injuries a month earlier during an inmate fight

in the cafeteria after the meal started with fewer than ten

officers. These unique circumstances distinguish Cygan’s

January 8 speech from the type of mundane complaints

about internal office policies at issue in cases like Connick.

Having concluded that Cygan raised a matter of public con-

cern, we will now analyze the speech under the Pickering

balancing test.

b. Balancing of Interests

Under Pickering, we balance the employee’s interest in

commenting upon such matters and the employer’s interest

in efficient public services. Pickering, 391 U.S. at 568. One

very important consideration is the “potential disruptive-

ness” of the speech. Waters, 511 U.S. at 681-82. Courts also

consider whether the employment relationship is one in

which personal loyalty and confidence are necessary, and

the time, place, and manner of the speech. Wainscott, 315

F.3d at 851.

The time, place, and manner of Cygan’s speech and its

potential disruptiveness weigh heavily against her. In the

cafeteria and rotunda of a maximum security prison that

houses 1,040 of Wisconsin’s violent offenders, Cygan yelled

and swore about the evening meal starting with insufficient

officer coverage. Both staff and inmates were present

during Cygan’s angry outburst. GBCI, as a correctional fa-

cility, has a very strong interest in maintaining order and

control over inmates, and Cygan’s decision to announce the

shortage of staff in the presence of inmates could have

endangered both staff and inmates by exposing them to

opportunistic acts of violence.

Cygan’s loud and profane complaints also serve to under-

mine the authority of Captain Schultz in the presence of

No. 04-1297 15

other officers and inmates. Correctional facilities, like police

departments, are managed like military organizations, and

respecting the authority of supervising officers is essential,

especially in the presence of the inmates where a united

front is crucial. That type of environment demands a high

degree of personal loyalty and confidence, and Cygan’s angry

protestation of a supervising officer’s decision in front of

inmates and officers was ill-advised and unacceptable.

In fairness to Cygan, we must acknowledge that she had

raised her concerns about short staffing through appropri-

ate avenues on other occasions. However, her frustration

with the situation did not justify a profanity-laced fit about

short staffing within earshot of inmates and staff. In her

anger, she could have caused the very danger she was ap-

parently seeking to avoid through her complaints. This epi-

sode, on the heels of similar incidents and apparently

unheeded disciplinary measures, could certainly cause GBCI

to doubt Cygan’s future effectiveness. As a matter of law,

this potential disruptiveness outweighs whatever First

Amendment value Cygan’s January 8 speech might have

had.

2. Cygan’s Speech on January 22 and 29

Neither the district court nor the parties separately anal-

yze whether Cygan’s speech on January 22 or January 29

was constitutionally protected, and Cygan focuses her

arguments almost entirely on the January 8 incident. The

district court assumed for purposes of summary judgment

that Cygan’s speech, to the extent that it touched on issues

of prison security and safety, was constitutionally protected,

and then proceeded to grant defendants summary judgment

on the basis of causation. Like the district court, we will

assume arguendo that Cygan’s speech on January 22 and

29 was constitutionally protected, and proceed to the

causation prong because it is dispositive.

16 No. 04-1297

Under the framework announced by the Supreme Court

in Doyle, Cygan must establish that her constitutionally

protected speech on January 22 and 29 was a substantial or

motivating factor in the defendants’ decision to terminate her

employment. Doyle, 429 U.S. at 287; Spiegla, 371 F.3d at

941 (clarifying that plaintiffs do not need to prove “but-for

causation” to carry their burden on causation in First

Amendment retaliation cases). If Cygan carries that burden,

then defendants would have the burden of showing that she

would have been fired even in the absence of the protected

conduct. In this case, we need not reach that step because

we conclude that Cygan failed to establish that her speech

on January 22 and 29 was a substantial or motivating

factor in her termination. To support her burden, Cygan

relies on inferences drawn from the short time between her

speech of January 22 and 29 and her termination, and on

Deputy Warden Baenen’s comments to her on January 30.

To put Cygan’s arguments into context, we begin our

analysis by reviewing the relevant evidence on causation.

On January 16, 2002, GBCI management requested the

DOC’s approval to terminate Cygan because her performance

had “deteriorated significantly in the past year” and due to

Cygan’s “history of directing abusive, demeaning, and derog-

atory language at coworkers and inmates.” The DOC ap-

proved Cygan’s termination on February 5, 2002, and Warden

Bertrand notified Cygan of her termination the following

day. Cygan’s termination letter stated that she was fired for

her repeated violations of DOC Work Rule 13, which

prohibits demeaning and abusive language in dealing with

others. The termination letter specifically mentioned five

incidents where Cygan had violated Work Rule 13, and

noted that her behavior had resulted in three suspensions

and a written reprimand.

The two instances of speech under consideration occurred

in January 2002, shortly before Cygan was terminated. First,

on January 22, 2002, Cygan told Deputy Warden Baenen

No. 04-1297 17

that Captain Schultz had mishandled and aggravated a

prisoner disturbance that stemmed from the prisoners’

anger about a temporary lack of showers at GBCI. Cygan

also told Baenen that Security Director Erickson had stayed

in his office during the disturbance and failed to check on

the situation. Second, on January 29, 2002, Cygan informed

DOC Secretary Litscher that she and other officers were

concerned about security issues at the prison and gave him

a list of their concerns. The concerns included short-staffing

of meals, malfunctioning of security cameras, and low

morale among front-line staff. On January 30, 2002, Deputy

Warden Baenen told Cygan that there was a target on her

back, and advised her to keep her mouth shut.

As mentioned above, Cygan attempts to create a jury issue

on causation based on the fact that she was terminated

shortly after her late January speech activities. However,

“we typically [do not] draw strong conclusions from the mere

fact that protected speech may have preceded an adverse

employment action.” Wright, 40 F.3d at 1500. This is es-

pecially true in a case where the employee has a documented

history of abusive and inappropriate behavior at work. See

Trnka v. Local Union No. 688, 30 F.3d 60, 63 (7th Cir. 1994)

(“To stave off summary judgment in a case where innocent

or multiple explanations for a defendant’s actions abound

a plaintiff must rely on more than post hoc, propter hoc

reasoning.”). As the district judge observed in his thorough

analysis of the causation prong, what stands out about this

case is that the complaints about Cygan come from so many

different sources. At least four different supervisors initi-

ated complaints against Cygan or formally criticized her

inappropriate behavior between 1997 and 2002. In addition,

during 2001, GBCI management disciplined Cygan based on

complaints lodged by a university professor at a profession-

alism course and a health services manager, two individuals

who surely did not have an ax to grind with Cygan. In light

of the uncontradicted record of Cygan’s increasingly disrup-

18 No. 04-1297

tive behavior at GBCI, it would be inappropriate to attach

significant weight to Cygan’s post hoc ergo propter hoc

reasoning.

The only other evidence Cygan offers on causation is her

conversation with Deputy Warden Baenen on January 30.

According to Cygan, Baenen told her that there was a target

on her back, and that she needed to learn to keep her mouth

shut. Baenen acknowledged having a conversation with

Cygan on January 30, but testified that he could not remem-

ber the exact words he used that day. Baenen, who was a

friend of Cygan, said that he wanted to warn Cygan “to be

more careful about how you interact with people.” In Cygan’s

view, Baenen’s directive was aimed at the substance of her

complaints, not her manner of expressing them. In essence,

Cygan claims that Baenen was warning her to keep silent

on prison security and safety issues.

Cygan’s interpretation of the conversation seems implau-

sible in the context of this case. First, Cygan and other offi-

cers had raised the same concerns on prior occasions and she

has not presented any evidence that her prior complaints

led to any disciplinary action. Second, Officer Janus also

spoke with Secretary Litscher on January 29 and gave him

a sealed envelope with a list of concerns, and she was not

terminated or disciplined in any way, and continues to work

at GBCI. Third, Cygan had a well-established track record

of using profane and abusive language with inmates and

officers alike. Given these circumstances, it is difficult to

escape the conclusion that Baenen’s advice on January 30

was directed at Cygan’s consistently inappropriate manner

of interacting with others, rather than the substance of her

speech. Like the district court, we conclude that no rea-

sonable jury could find that Cygan’s speech activities on

January 22 and 29 were a substantial factor in her termina-

tion.

No. 04-1297 19

C. Qualified Immunity

Defendants also argue that they are entitled to qualified

immunity because they did not personally participate in any

constitutional deprivation. Since the complaint has failed,

we need not determine whether defendants were entitled to

qualified immunity.

III. Conclusion

For the reasons stated herein, we AFFIRM the decision of

the district court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-10-04