“[T]he fact that a plaintiffʹs protected speech may precede an adverse employment decision alone does not establish causation.”
How later courts described this case
- “[T]he fact that a plaintiffʹs protected speech may precede an adverse employment decision alone does not establish causation.”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 13‐2165
RICHARD P. GRABER,
Plaintiff‐Appellant,
v.
DAVID A. CLARKE, JR. and COUNTY OF
MILWAUKEE,
Defendants‐Appellees.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:11‐cv‐01038‐WEC — William E. Callahan, Jr., Magistrate Judge.
ARGUED JANUARY 8, 2014 — DECIDED AUGUST 18, 2014
Before BAUER, WILLIAMS, and TINDER, Circuit Judges.
BAUER, Circuit Judge. Former Deputy Sheriff Sergeant
Richard Graber (“Graber”) filed suit against Sheriff David
Clarke (“Clarke”) and the County of Milwaukee alleging three
violations of his federal and state rights. In Counts I and II,
Graber claims the defendants violated his federal First Amend‐
ment rights to free speech and association; Count III alleges
2 No. 13‐2165
that the defendants violated the Wisconsin Law Enforcement
Officer’s Bill of Rights.
Following a bench trial, the district court dismissed the
action with prejudice. Graber timely appealed to this court. For
the following reasons, the decision of the district court is
affirmed.
I. BACKGROUND
In June 2010, Graber was employed as a Deputy Sheriff
Sergeant at the Milwaukee County Correctional Facility‐
Central (“the jail”) and served as the vice president of the
Milwaukee Deputy Sheriffs’ Association (“the union”). As vice
president of the union, Graber’s responsibilities included
attending various meetings where members discussed topics
impacting the union, including issues related to wages, hours,
and conditions of employment.
O’Donnell Park, located on Milwaukee’s lakefront, is a
Milwaukee County facility under the control of the Sheriff’s
Office.
On June 24, 2010, a fifteen‐year‐old boy was killed when a
large concrete slab fell from the O’Donnell Park parking
garage. The boy’s mother and friend were also injured in the
incident. The Sheriff’s Office responded to the emergency, in
part by securing the inner perimeter of the park. Captain
Thomas Meverden (“Meverden”) of the Patrol Division was
the incident commander on the scene; he immediately assigned
the task of securing the park perimeter to deputy sheriffs at the
jail. The deputies were informed to stay for mandatory
overtime even if their usual shifts were over. Meverden also
No. 13‐2165 3
ordered Sergeant Carol Mascari (“Mascari”) to assist him by
making calls for volunteers in an effort to comply with the
union’s collective bargaining agreement.1
A. Conversation with Mascari and Meverden
Graber arrived at work on June 25, 2010, for his shift as the
Intake Booking Sergeant; he was not one of the deputies sent
to the park and did not have any responsibilities related to
staffing deputies. A fellow jail deputy who had been assigned
to secure the park’s perimeter approached Graber and com‐
plained to him about the mandatory overtime. Graber called
Deputy Roy Felber (“Felber”), the union president, with whom
he spoke once or twice daily regarding union issues. Felber,
who had not yet heard about the mandatory overtime assign‐
ments, told Graber to handle the situation on behalf of the
union.
1
The collective bargaining agreement’s overtime provision, 3.02, provides
that “[a]ll scheduled overtime shall be assigned within classification as
follows:
(c) In the event an employee refuses to accept an overtime
assignment or there are insufficient volunteers for the
work unit where overtime is required, the least senior
employee in the classification in the work unit shall be
required to work the overtime assignment.
…
(e) For an event identified by the Sheriff as a Special Event,
the above procedure shall be utilized on a departmental
basis. In the event there are insufficient volunteers for a
Special Event overtime assignment the Sheriff shall rotate
in the inverse the order of seniority among all employees
in the department in the classification.”
4 No. 13‐2165
Graber then called Mascari to say that he thought the
mandatory overtime violated the union’s collective bargaining
agreement. Meverden, overhearing Graber on speakerphone,
picked up the line and explained to Graber that the mandatory
overtime was necessary in the wake of the tragedy at the park
and so did not violate the collective bargaining agreement.
Meverden informed Graber that volunteers could not be
mobilized quickly enough, that the park perimeter needed to
be secured immediately, and that only jail deputies were
available to meet the park staffing needs.2 Meverden went on
to explain that volunteer staffing would begin that evening to
comply with the collective bargaining agreement. While the
discussion with Graber was described by Mascari as “heated”
at times, Meverden and Mascari testified that they never
thought Graber was being rude or insubordinate or impeding
their ability to handle the staffing at the park. The conversation
ended with both men thinking the matter was resolved.
Shortly after this phone call, Deputy Joseph Quiles
(“Quiles”) approached Graber to complain that he had been
assigned mandatory overtime at the park. Quiles, who testified
that he spoke to Graber because of his role as the union vice
president, informed Graber that he had worked at the jail on
July 24 from 2:00 p.m. until 10:00 p.m., was immediately
assigned to overtime at the park until 8:30 a.m. the next day,
2
Deputies from other divisions were unavailable to assist with securing the
park perimeter; they were already working overtime and “extended”
for various assignments, primarily related to a large Milwaukee music
festival, “Summerfest,” which had opened the day the parking garage
incident occurred.
No. 13‐2165 5
and was then supposed to return to work at the jail for an
eight‐hour shift beginning at 2:00 p.m. on July 25. At trial,
Graber testified that his conversation with Quiles made him
concerned for Quiles’ and other deputies’ safety and that
the public’s safety was in jeopardy because deputies typically
required at least eight hours of rest between shifts in order to
be fully vigilant while performing their duties.
B. Encounter with Nyklewicz
Graber then briefly encountered Deputy Inspector Kevin
Nyklewicz (“Nyklewicz”) in the administration area of the jail.
At trial, the two men disputed the details of what transpired in
their short conversation. Graber’s version is that Nyklewicz
approached him first to discuss a union matter unrelated to the
incident at the park. Graber then calmly informed Nyklewicz
that he was concerned about the working conditions of jail
deputies assigned to mandatory overtime at the park. Graber
said he was worried that the deputies would get “burned out”
from the extra work with so little time between shifts, and that
in turn would put the public’s safety at risk.
According the Nyklewicz, however, Graber approached
him first and began yelling that Clarke was “screwing” with
jail deputies and Graber was “sick of it.” Nyklewicz contended
that Graber did not mention the union or that he thought the
mandatory overtime violated the collective bargaining agree‐
ment. Nyklewicz asserted that Graber always brought up the
union specifically when the two spoke in the past about union‐
related issues. Nyklewicz testified that when he tried to end
the conversation by saying he would look into the matter and
telling Graber to return to work, Graber continued to be
6 No. 13‐2165
aggressive and called the situation “ridiculous.” Nyklewicz
thought that Graber was being insubordinate because he was
challenging the authority of his superiors, disregarding direct
orders, and personally attacking Clarke. Nyklewicz said that
in the nineteen years he had served in law enforcement, he had
never before been spoken to by a subordinate officer in such a
manner.
As a result of this encounter, Nyklewicz sought to open an
internal affairs investigation against Graber. Lacking the
authority to discipline Graber himself, Nyklewicz went to
Inspector Edward Bailey (“Bailey”), the assisting officer to
Clarke. Bailey testified that an “irate” Nyklewicz said he was
approached by Graber who made remarks about Clarke
“screwing” with the jail deputies. Bailey decided that since
Graber’s complaint was directed towards Clarke personally, he
would inform Clarke of the matter before taking disciplinary
action.
Later that morning, Bailey told Clarke about Graber’s
remarks. Bailey expressed his concern over Graber’s disre‐
spectful comments towards superior officers. Bailey also
thought that Graber was essentially forcing Clarke to “re‐
justify” his decision to staff jail deputies at the park in the
midst of an emergency. Rather than open an internal affairs
investigation, Clarke ordered Bailey to schedule a meeting
with Graber later that day so that Clarke could speak with
him directly about the situation.
C. Meeting with Clarke and Bailey
Graber, Clarke, and Bailey met later that day; each had a
different account of what transpired during the meeting.
No. 13‐2165 7
According to Graber, the meeting lasted about two hours and
consisted of Clarke going on an aggressive tirade in an effort
to “bully” and “intimidate” him. Clarke’s profanity‐ridden rant
included yelling, pointing, and calling Graber “waste,” an
“organizational terrorist,” a “fucker,” and a “cancer to the
agency.” Graber said Clarke got close to his face and yelled,
“I’ve got a dead child at the lakefront and you’re questioning
mandatory overtime? You sick fuck, you.” Clarke told Graber
that he had been hearing Graber’s name too much and that
Graber needed to take union matters to Inspector Carr. Clarke
said if he heard Graber’s name again, he would “come after”
him. Graber said Clarke made him feel “intimidated, fearful,
and scared.”
Clarke’s version of the meeting was that he never used
profanity towards Graber directly, but he did tell Graber that
he was being “insubordinate” and “interfering with [the]
command staff’s carrying out of [Clarke’s] orders.” Clarke
admitted to using profanities in general and telling Graber to
take union matters to Inspector Carr, but denied ever threaten‐
ing to “come after” Graber. Clarke also admitted to calling
Graber an “organizational terrorist,” but said he used the term
in the context of Graber being self‐centered in the middle of
an emergency. Clarke asserted that Graber was the first to
bring up the union issue. He told Graber that he could file a
grievance if he had concerns involving the union, but he
needed to stay out of the command staff’s way.
According to Bailey, Clarke was “very direct” when he
confronted Graber about “blocking the allocation of resources
to O’Donnell Park,” but Clarke never yelled, pointed, or used
“unending profanities and vulgarities.” Bailey said Graber
8 No. 13‐2165
was the first to bring up unions, but that it was “in deflection”
to Clarke’s comments about command issues. When Clarke
brought up the “dead child at the lakefront,” Bailey said
Graber expressed no concern for the victims of the accident. At
this point, Bailey said the meeting turned into an “argumenta‐
tive,” “intense,” and “heated” conversation. Bailey confirmed
that Clarke told Graber to take union matters to Inspector Carr
and that if Graber had issues, he could “file all the grievances
[he] want[s].” Bailey further testified that whenever Graber
pressed the union issue, Clarke would tell him that the
problem was not about unions but rather about the emergency
at O’Donnell Park and obeying direct orders. Bailey said
Clarke did most of the talking and that the meeting ended
when Clarke told Graber he was free to leave.
D. Events After June 25, 2010
After the meeting, neither Graber nor any other union
member filed a grievance concerning the mandatory overtime
staffing at the park. However, Graber began to withdraw from
union activities, had trouble focusing, and called in sick to
work more frequently. Graber said he was afraid to perform
his job responsibilities because he felt the Sheriff’s Office was
“trying to find fault” in his work so that they could discipline
or terminate him.
In November 2010, Graber received a seven‐day suspension
as a result of an investigation that started in December 2009.
The investigation arose because Graber signed a subordinate’s
deficient memo book. Other sergeants signed the same memo
book, but only Graber was subject to an investigation. In May
2011, Graber testified about the suspension in a hearing before
No. 13‐2165 9
the Wisconsin Employment Relations Committee and said he
was “not [] disciplined for [his] conduct as a union official for
anything about O’Donnell Park.” The arbitrator overturned
Graber’s suspension, finding that the County lacked just cause
to discipline him. Prior to the O’Donnell Park incident, Graber
had received three other suspensions from Clarke that were
overturned. Graber asserts that he had worked for four Sheriffs
before Clarke and had never been disciplined by any of them.
In November 2011, Graber brought suit against Clarke and
the County of Milwaukee. He argued that Clarke violated his
First Amendment rights under 42 U.S.C. § 1983 when he
retaliated against Graber for his association and speech during
their meeting on June 25, 2010. Additionally, Graber argued
that Clarke infringed upon his rights to engage in political
activity and retaliated against him in violation of the Wisconsin
Law Enforcement Officer’s Bill of Rights pursuant to Wis. Stat.
§§ 164.015 and 164.03. In May 2012, Graber was granted
disability retirement at the age of forty‐five, retroactive to July
2011. Graber asserted that his early retirement was because of
“on‐the‐job stress caused by Sheriff Clarke.”
After a two‐day bench trial, both parties submitted briefs to
the court. On May 7, 2013, the district court dismissed Graber’s
claims, concluding that his First Amendment rights were not
violated and that he did not establish a violation of the Wiscon‐
sin Law Enforcement Officer’s Bill of Rights. The court
reasoned that while Graber’s conversation with Mascari and
Meverden was protected under the First Amendment, his brief
discussion with Nyklewicz, which led to his meeting with
Clarke, was not. Additionally, the court held that Graber did
not present evidence that he engaged in a political activity and
10 No. 13‐2165
therefore could not be retaliated against for engaging in such
activity. Graber timely appealed to this court.
II. DISCUSSION
We first note that Graber has not presented an argument on
appeal in regard to Count III pursuant to the Wisconsin Law
Enforcement Officer’s Bill of Rights, as codified in Wis. Stats.
§§ 164.015 and 164.03. Since the claim was not pursued on
appeal, we will not consider it here. See, e.g., Barnickel v. United
States, 113 F.3d 704, 706 (7th Cir. 1997).
Before delving into Graber’s arguments regarding free
speech, we address Graber’s allegations regarding freedom of
association. Evidence presented to the district court shows that
Graber’s freedom of association claims are predicated upon his
freedom of speech claims related to the same incidents that
occurred on June 25, 2010. The district court found that because
Graber’s speech and association claims were intimately
intertwined, the claims should be analyzed together. See Balton
v. City of Milwaukee, 133 F.3d 1036, 1041 (7th Cir. 1998)
(Cudahy, J., concurring) (arguing that the Connick/Pickering test
may not be transferable to a “pure association claim,” the
analysis applies to “hybrid” claims where both speech and
association are involved). We agree and will address Graber’s
First Amendment claims together.
“Whether a government employee’s speech is protected by
the First Amendment is a question of law.” Gustafson v. Jones,
290 F.3d 895, 906 (7th Cir. 2002). A district court’s legal
conclusions are reviewed de novo. Id. As to issues of fact, this
court defers to a district court’s findings and will uphold such
findings unless clearly erroneous. Id. A finding is considered
No. 13‐2165 11
clearly erroneous when “the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948).
To prove a First Amendment employment retaliation claim
under 42 U.S.C. § 1983, a plaintiff must establish three primary
elements. First, the plaintiff must show that his speech was
constitutionally protected. Garcetti v. Ceballos, 547 U.S. 410, 418
(2006). Second, the plaintiff must prove that he suffered an
adverse employment action as a result of his protected speech
that was sufficiently adverse so as to deter the exercise of the
free speech. Vose v. Kliment, 506 F.3d 565, 569–570 (7th Cir.
2007). And third, the plaintiff must present evidence to
establish that a reasonable jury could find that his speech was
a “substantial” or “motivating” factor for his adverse employ‐
ment action. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977).
A. Conversation with Mascari and Meverden
To determine if speech is constitutionally protected, we
employ a two‐part inquiry established by the Supreme Court
in Pickering v. Bd. of Educ., 391 U.S. 563 (1968). First, we ask
whether the plaintiff spoke as a citizen on a matter of public
concern; if so, we ask whether the plaintiff’s interest in speak‐
ing as a citizen on a matter of public concern outweighed the
government’s interest in controlling that speech to promote
the efficiency and effectiveness of serving the public through
its employees. Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir. 2007)
(citing Pickering, 391 U.S. at 568).
12 No. 13‐2165
We begin our analysis by determining whether Graber
spoke as a citizen in his first conversation with Mascari and
Meverden. On the morning of June 25, 2010, after being
informed that jail deputies were forced to work overtime at
O’Donnell Park, Graber called the union president because he
thought the mandatory overtime violated the union’s collective
bargaining agreement. The union president told Graber to
handle the situation, so he initiated a discussion with Mascari
and Meverden, both of whom were directly involved with
assigning deputies to work overtime at O’Donnell Park. The
First Amendment does not protect a public employee’s
expressions made “pursuant to his or her official responsibili‐
ties,” but if the public employee is speaking in his capacity as
a union representative, he is speaking as a citizen. Garcetti, 547
U.S. at 424; Fuerst v. Clark, 454 F.3d 770, 774 (7th Cir. 2006).
Graber testified that he called Mascari as the union vice
president with the belief that he was performing “Step 1ʺ of the
union’s grievance process.3 Both Mascari and Meverden also
testified that they were generally under the impression that
they were speaking to Graber in his capacity as the union vice
president. The record makes evident that Graber was speaking
with Mascari and Meverden in his capacity as the union vice
president and thus as a citizen.
3
“Step 1ʺ of the union’s grievance process requires that “[t]he employee
alone or with his/her representative explain the grievance verbally to the
person designated to respond to employee grievances in his/her depart‐
ment.” “Step 2ʺ of the process calls for a “grievance in writing on the
Grievance Initiation Form.”
No. 13‐2165 13
Since we conclude that Graber was speaking as a citizen
during this first conversation, we next assess whether he was
speaking on an issue of public concern. “Whether an em‐
ployee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given
statement, as revealed by the whole record.” Nagle v. Vill. of
Calumet Park, 554 F.3d 1106, 1123 (7th Cir. 2009) (quoting
Connick v. Myers, 461 U.S. 138, 147–48 (1983)). Content is the
most important of these three factors. Gustafson, 290 F.3d at
907. This court has recognized that union activity, “in a broad
sense, touches upon matters of public concern,” but that does
not automatically make the expression protected by the First
Amendment. Gregorich v. Lund, 54 F.3d 410, 415 (7th Cir. 1995).
If the record demonstrates that Graber sought “to bring about
change with public ramifications extending beyond the
personal,” he was speaking on a matter of public concern.
Kristofek v. Vill. of Orland Hills, 712 F.3d 979, 986 (7th Cir. 2013).
Graber initiated the call to Mascari after being informed of
the mandatory overtime because he was concerned that the
staffing decisions violated a union provision and raised safety
issues for union members as well as the general public. Graber
was not assigned mandatory overtime at O’Donnell Park, so
his concerns did not arise from personal issues. Graber was
also unaware at the time he called Mascari that the mandatory
overtime was only a temporary action taken by the Sheriff’s
Office in response to the emergency. He did not know that jail
deputies were asked to work overtime only because they were
the only deputies available to secure the park and deputies in
other divisions were already “extended.” He was also unaware
that the jail deputies would be returning to their normal
14 No. 13‐2165
staffing schedules that evening. Because he lacked this infor‐
mation, Graber was legitimately concerned that deputies were
not getting sufficient rest, raising a potential threat to their
safety and the safety of the public. Graber’s speech addressed
“public ramifications” that extended “beyond the personal,” so
we find that he was speaking with Mascari and Meverden
about a matter of public concern.
Moving to the second part of the Pickering test, we ask
whether Graber’s interest in ensuring the safety of deputies
and the public outweighed the interest of the government “in
promoting effective and efficient public service.” Spiegla, 481
F.3d at 965 (citing Pickering, 391 U.S. at 568). This court has
identified certain factors that should be considered when
determining whether the government’s interest outweighs the
First Amendment interests of a public employee. Gustafson, 290
F.3d at 909. These factors include:
(1) whether the speech would create problems in
maintaining discipline or harmony among coworkers;
(2) whether the employment relationship is one in
which personal loyalty and confidence are necessary;
(3) whether the speech impeded the employee’s ability
to perform [his] responsibilities; (4) the time, place, and
manner of the speech; (5) the context within which the
underlying dispute arose; (6) whether the matter was
one on which debate was vital to informed decision‐
making; and (7) whether the speaker should be re‐
garded as a member of the general public.
Id. (citing Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir. 2000)). In
balancing Graber’s protected speech against the government’s
No. 13‐2165 15
interests, it is unnecessary for us to address each of the seven
factors in turn. The record makes evident that the conversation
between Graber, Mascari, and Meverden was brief, calm, and
both Mascari and Meverden testified that Graber did not
interfere with their staffing duties. Graber in no way impeded
the ability of the Sheriff’s Office to serve the public efficiently
and effectively when he raised the mandatory overtime issue
with Mascari and Meverden. Moreover, testimony from Graber
and Meverden established that at the end of their conversation,
both men felt the issue had been resolved. Graber’s interest in
ensuring the safety of deputies and the public outweighed the
government’s interest in effective public service. We therefore
find that Graber’s speech with Mascari and Meverden is
protected by the First Amendment.
B. Encounter with Nyklewicz
Shortly after the conversation with Mascari and Meverden,
Quiles approached Graber to inform him of the long hours he
was assigned to work and the short period of rest he was given
between shifts. At this point, Graber’s concerns involving
potential safety issues or violations of the union’s collective
bargaining agreement were allayed by his conversation with
Mascari and Meverden. If Graber had remaining concerns after
speaking with Quiles, he could have proceeded through the
usual channels and filed a grievance related to the mandatory
overtime and the potential violation of the collective bargain‐
ing agreement. Instead, he chose to aggressively approach
Nyklewicz, a superior who was not directly responsible for any
of the staffing decisions related to the O’Donnell Park emer‐
gency.
16 No. 13‐2165
Graber argues that he approached Nyklewicz in his
capacity as the union vice president. By bringing up how
Quiles’ was not getting enough rest, Graber claims he was
addressing concerns about the deputies’ hours and conditions
of employment that compromised the safety of union members
and the public. Nyklewicz, however, testified that Graber
approached him in a hostile and insubordinate manner, and
that nothing about the union or the collective bargaining
agreement was discussed. The district court found Nyklewicz
to be a credible witness and determined that Graber’s speech
was that of a disgruntled employee, not a citizen. “The district
courtʹs evaluation of witness credibility will not be disturbed
unless it is completely without foundation.” United States v.
Ferguson, 35 F.3d 327, 333 (7th Cir. 1994). In light of this
deference to the district court’s determination, we are com‐
pelled to agree.
“[W]hen public employees make statements pursuant to
their official duties, the employees are not speaking as citizens
for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.”
Garcetti, 547 U.S. at 421. Graber argues that he was not speak‐
ing as a deputy when he approached Nyklewicz about the
overtime issue since he had not been forced to work the
mandatory overtime. This, however, does not take into
consideration that Graber’s comments to Nyklewicz were
hostile and directed at Clarke personally for “screwing” with
jail deputies. Nyklewicz also testified that when Graber spoke
about union issues in the past, he always mentioned the union
or its members, neither of which were brought up during this
brief encounter. Furthermore, Graber’s comments specifically
No. 13‐2165 17
referred to jail deputies, not deputies on a department‐wide
basis. If he was functioning as a union vice president when
speaking with Nyklewicz and implicating a public interest, he
would have been concerned for all deputies who were getting
insufficient rest, not just those under his control at the jail.
Thus, we find that Graber was not speaking with Nyklewicz as
a citizen for First Amendment purposes.
Even if we were to conclude that Graber was speaking as a
citizen when he spoke with Nyklewicz, a review of the content,
form, and context of his speech shows that he was not speaking
on a “matter of public concern.” While “[i]t would be difficult
to find a matter of greater public concern in a large metropoli‐
tan area than police protection and public safety,” Gustafson,
290 F.3d at 907 (quoting Auriemma v. Rice, 910 F.2d 1449, 1460
(7th Cir. 1990) (en banc)), no such matters were discussed
between Nyklewicz and Graber. Nyklewicz said Graber’s
speech disrespected his superiors, interfered with the efficiency
of the workplace, and forced the command staff to justify their
decisions in the face of an emergency. The Supreme Court
noted in Connick that the First Amendment does not protect an
employee’s action that his supervisor “reasonably believed
would disrupt the office, undermine his authority, and destroy
close working relationships.” 461 U.S. at 154. In Nyklewicz’s
view, Graber’s actions were taking time and energy away from
the officers whose duties were to staff the park for the safety of
the public in the midst of an emergency as well as find volun‐
teers to take over for those deputies in order to comply with
the union’s collective bargaining agreement. “Deference to the
employer’s judgment regarding the disruptive nature of an
employee’s speech is especially important in the context of law
18 No. 13‐2165
enforcement.” Kokkinis v. Ivkovich, 185 F.3d 840, 845 (7th Cir.
1999).
Graber contends that his motive in approaching Nyklewicz
was to ensure the safety of the public as well as union mem‐
bers. The record as a whole, however, tells a different story.
Graber never mentioned the union or the collective bargaining
agreement in his conversation with Nyklewicz. “[I]f the
objective of the speech … is simply to further a purely person‐
alized grievance, then the speech does not involve a matter of
public concern.” Kristofek, 712 F.3d at 986. Given the aggressive
manner in which Graber approached Nyklewicz, his personal
attack of Clarke, and the fact that he had already spoken with
Mascari and Meverden about union issues, Graber’s interac‐
tion with Nyklewicz appears motivated by his frustration over
the department’s decision to have jail deputies working
overtime. Such a motivation is personal, and the speech should
be considered that of an upset employee over matters person‐
ally affecting him. See Metzger v. DeRosa, 367 F.3d 699, 702 (7th
Cir. 2004) (“[W]here considerations of motive and context
indicate that an employee’s speech raised a topic of general
societal interest merely for personal reasons rather than a
desire to air the merits of the issue, … these factors militate
against the conclusion that the employee’s speech is entitled to
First Amendment protection.”) (quoting Campbell v. Towse, 99
F.3d 820, 827 (7th Cir. 1996)).
Since we find that Graber was not speaking as a citizen on
a matter of public concern with Nyklewicz, we need not go
further; his speech does not warrant First Amendment protec‐
tion. See, i.e., Spiegla, 481 F.3d at 965 (“First, we inquire whether
the employee spoke as a citizen on a matter of public concern.
No. 13‐2165 19
If not, the employee has no cause of action for First Amend‐
ment retaliation and there is no need to reach the second part
of the test, which requires a balancing of the employee’s
interest … against the public employer’s interest … .”) (internal
quotations and citations omitted).
C. Adverse Employment Action and Causation
Graber argues that he experienced adverse employment
actions after his conversations with Mascari, Meverden, and
Nyklewicz since he received a seven‐day suspension in
November 2010, and a two hour “verbal assault” by Clarke.
The district court found that Graber’s suspension was not a
result of his speech on June 25, 2010, and so could not qualify
as an adverse employment action for retaliation purposes. The
court “assumed” that Clarke’s comments to Graber constituted
a violation of his First Amendment rights due to the fact that
Clarke criticized Graber “to an unnecessarily belittling degree”
in a “vulgarity‐laden” meeting. However, even if a plaintiff
proves that he experienced an adverse employment action, he
must still show causation between his speech and the adverse
action. Mt. Healthy City Sch. Dist. Bd. of Educ., 429 U.S. at 287.
The court found that Graber failed to show that the protected
statements he made to Mascari and Meverden motivated the
scathing comments by Clarke.
We first address whether Graber established an adverse
employment action related to his suspension. To determine
whether an action is sufficiently adverse, it must present an
actual or potential danger of deterring or chilling the plaintiff’s
exercise of free speech. DeGuiseppe v. Village of Bellwood, 68 F.3d
187, 191 (7th Cir. 1995). The defendants concede that if the
20 No. 13‐2165
seven‐day suspension was issued in retaliation for Graber’s
constitutionally protected speech, it would be an actionable
offense under § 1983. However, the record does not show a
causal connection between Graber’s comments on June 25,
2010, and the seven‐day suspension he received for the signing
of a deficient memo book in 2009. The actual suspension did
not occur until November 2010, but the investigation of the
memo book incident commenced in December 2009, over six
months before the O’Donnell Park incident. Although Graber’s
speech preceded the suspension, without other evidence
linking the two events, we cannot find the suspension was
motivated by that speech. See Mullin v. Gettinger, 450 F.3d 280,
285 (7th Cir. 2006) (“[T]he fact that a plaintiffʹs protected
speech may precede an adverse employment decision alone
does not establish causation.”). Perhaps most significantly,
when Graber was specifically asked at his suspension hearing
whether the seven‐day suspension was linked to any com‐
ments he made on June 25, 2010, Graber admitted that he
“was not disciplined for [his] conduct as a union official for
anything about O’Donnell Park.”
We now turn to whether Clarke’s hostile meeting with
Graber qualified as an adverse employment action. “[R]etali‐
ation need not be monstrous to be actionable under the First
Amendment … ’A campaign of petty harassment may achieve
the same effect as an explicit punishment.’” DeGuiseppe, 68 F.3d
at 192 (quoting Walsh v. Ward, 991 F.2d 1344, 1345 (7th Cir.
1993)). Graber claims that the purpose of the meeting was for
Clarke to “intimidate and harass him,” that he was directly
threatened by Clarke, and that he experienced great stress as
a result. For the sake of brevity, we will assume that the heated
No. 13‐2165 21
meeting was an adverse employment action and discuss the
more pressing issue: whether Graber’s protected speech
motivated his “dress down” by Clarke.
“In the end, the plaintiff must demonstrate that, but for his
protected speech, the employer would not have taken the
adverse action.” Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th
Cir. 2012). As discussed above, Graber’s conversation with
Mascari and Meverden was protected by the First Amendment,
but his comments to Nyklewicz were not. Therefore, Graber
must show that but for his discussion with Mascari and
Meverden, Clarke would not have called the extended meeting
with Graber.
The evidence is insufficient to show that but for Graber’s
conversation with Mascari and Meverden, he would not have
been “bullied” by Clarke in their meeting. Clarke and Bailey
testified at trial that the reason the meeting was called with
Graber was because of Nyklewicz’s complaints. The meeting
between Clarke and Graber would have occurred even if the
conversation with Mascari and Meverden never happened.
While additional testimony revealed that Graber’s conversa‐
tion with Mascari and Meverden may have been brought up
during the extended meeting with Clarke, the purpose and
focus of the meeting related to Graber challenging orders,
blocking department resources, personally attacking Clarke,
and acting insubordinate in his encounter with Nyklewicz.
Clarke’s belittling “dress down” of Graber, even when consid‐
ered an actionable offense, was due to the aggressive and
insubordinate manner in which Graber spoke to Nyklewicz;
it was not the result of any protected speech in which Graber
engaged.
22 No. 13‐2165
III. CONCLUSION
Graber failed to establish a causal connection between his
constitutionally protected speech and an adverse employment
action. The decision of the district court is AFFIRMED.