Petition for Writ of Certiorari — Patrick Fehlman, Petitioner v. James Mankowski
Supreme Court briefOct 24, 2023
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In the
United States Court of Appeals
For the Seventh Circuit
No. 22-1467
PATRICK FEHLMAN,
Plaintiff-Appellant,
v.
JAMES MANKOWSKI,
Defendant-Appellee.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:21-cv-00362-jdp — James D. Peterson, Chief Judge.
ARGUED OCTOBER 31, 2022 — DECIDED JULY 26, 2023
Before EASTERBROOK, JACKSON-AKIWUMI, and LEE,
Circuit Judges.
JACKSON-AKIWUMI, Circuit Judge. Patrick Fehlman,
a former member of the Neillsville, Wisconsin police
department, sued Chief of Police James Mankowski,
alleging the Chief retaliated against him for critiquing the
Chief’s leadership, in violation of the First Amendment.
The district court dismissed Fehlman’s complaint. The
court determined that Fehlman’s statements, both directly
to the Chief and later to the Neillsville Police & Fire
APPENDIX A
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Commission, were made as a public employee and
therefore foreclosed from First Amendment protection by
Garcetti v. Ceballos, 547 U.S. 410 (2006). On appeal,
Fehlman challenges the district court’s decision about his
statements to the Police & Fire Commission, but we affirm
for the same reason as the district court: Fehlman’s
remarks were made in his capacity as a public employee, not
a private citizen.
I
Fehlman appeals a judgment granting a motion to
dismiss, so in our review of his case we assume the truth of
his well- pleaded allegations. Peterson v. Wexford Health
Sources, Inc., 986 F.3d 746, 751 (7th Cir. 2021). Fehlman
served as the Neillsville Police Department’s interim police
chief for most of 2019. At the start of 2020, James
Mankowski was hired as the permanent police chief and
Fehlman returned to his role as a rank-and-file officer. 1
Over the next several months, Fehlman raised a series of
concerns about the management of the department to
Mankowski, only to be rebuffed.
Fehlman and several other officers requested a meeting
with the Neillsville Police & Fire Commission (“PFC”) to
detail their concerns. At the meeting, Fehlman addressed
issues of “professional integrity and ethics,” raising the
following concerns:
•
Mankowski instilled fear in officers at the NPD,
and they feared retaliation from him.
The parties do not specify Fehlman’s position during the period relevant to this suit, but both suggest he returned to being a rank-and-file
officer. While this omission is notable, we take the parties’ suggestion
as true.
1
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•
Mankowski lacked professionalism; in one
instance, while on duty, he told a business
owner that he should consider installing a
stripper pole in the bar and having the business
owner’s wife dance on it topless.
•
Mankowski ordered officers to turn off their body
cameras in violation of department policy and
best practices.
•
Mankowski verbally abused suspects, berating
them and insulting them gratuitously.
•
Mankowski changed radio talk procedures in
ways that threatened officer safety.
•
Mankowski prioritized speed limit enforcement
over responding to an allegation of child abuse
at a school
Mankowski, upset that Fehlman had taken these
concerns to the PFC, harassed Fehlman afterwards,
including by taking away his work credit card. Mankowski
also yelled at Fehlman and the other officers, threatening
them with charges of insubordination.
Fehlman resigned from the NPD the next day and
sought work with the Clark County Sheriff’s Office.
Mankowski interfered with Fehlman’s recruitment by
making false, negative comments about the former officer
(Fehlman was hired nonetheless).
Fehlman
also
discovered
that
his
NPD personnel file had been
altered, and that Mankowski gave information to the
unemployment compensation office that led to a delay in
benefits. Upon learning Fehlman had reentered the NPD
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building to examine his personnel file, Mankowski sent the
ex-officer a letter banning him from the premises.
Fehlman sued Mankowski under 42 U.S.C. § 1983,
alleging violation of his First Amendment rights.
Mankowski moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6), arguing that Fehlman’s speech lacked
constitutional protection because it was made pursuant to
his official duties. The district court agreed with
Mankowski, leading to this appeal. Fehlman concedes that
the complaints he directed initially to Mankowski do not
qualify for First Amendment protection, so this appeal
concerns only his statements to the PFC.
II
We review a dismissal for failure to state a claim under
Rule 12(b)(6) de novo, accepting as true all well-pleaded
facts and drawing reasonable inferences in favor of the nonmoving party. Peterson, 986 F.3d at 751.
Establishing a prima facie case of First Amendment
retaliation requires showing (1) Fehlman engaged in
constitutionally protected speech; (2) he suffered a
deprivation likely to deter him from exercising his First
Amendment rights; and (3) the speech was a motivating
factor in the employer’s adverse action. Sweet v. Town of
Bargersville, 18 F.4th 273, 277–78 (7th Cir. 2021). Fehlman
claims that he suffered retaliation both during and after his
employment with the NPD. But because we conclude that
Fehlman’s speech was not constitutionally protected, we
deny his appeal.
Whether a public employee’s speech is protected turns
first on whether the speech was made in the employee’s
capacity as an employee or as a private citizen. McArdle v.
Peoria Sch. Dist. No. 150, 705 F.3d 751, 754 (7th Cir. 2013).
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If speech occurs “pursuant to their official duties,”
employees are not speaking as private individuals for First
Amendment purposes and therefore cannot turn to the
Amendment’s protections as a defense against employer
discipline. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
Whether speech is made “pursuant to” official duties is
broader than an employee’s job description. Employees’
statements about “misconduct affecting an area within
[their] responsibility” are considered official-capacity speech
even if those employees are not ordinarily responsible for
investigating misconduct. McArdle, 705 F.3d at 754. This is
particularly pronounced for law enforcement officers whose
“duty to report official police misconduct is a basic part of
the job.” Forgue v. City of Chicago, 873 F. 3d 962, 967 (7th
Cir. 2017).
We conclude that Fehlman’s speech to the PFC was
made in his role as a police officer. A key factor in this
determination is the structure of the PFC itself. By statute,
boards like the PFC retain the general authority “[t]o
organize and supervise the fire and police … departments
and to prescribe rules and regulations for their control
and management.” WIS. STAT.
§ 62.13(6). Relatedly, the PFC has disciplinary authority
over the chief of police, who “shall hold their offices during
good behavior, subject to suspension or removal by the
[PFC] for cause.” Id. § 62.13(3). The Wisconsin Supreme
Court has also interpreted this provision as creating a
“comprehensive system” requiring cities to maintain
commissions “with jurisdiction over the hiring, promotion,
and discipline of members of police and fire departments.”
City of Madison v. Wis. Emp. Rels. Comm'n, 2003 WI 52, ¶
13, 261 Wis. 2d 423, 432, 662 N.W.2d 318, 322 (2003).
These statutory provisions governing the PFC strongly
suggest the body is best seen as part of Fehlman’s chain of
command. This renders Fehlman’s remarks a form of
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internal grievance. See, e.g., Tamayo v. Blagojevich, 526
F.3d 1074, 1092 (7th Cir. 2008) (holding that a senior
administrator who testified before a legislative committee
with oversight of her agency was “discharging the
responsibilities of her office, not appearing as ‘Jane Q.
Public.’”); Houskins v. Sheahan, 549 F.3d 480, 491 (7th Cir.
2008) (distinguishing an employee’s internal complaint
about an assault, which was made pursuant to official
duties, from a police report on the same conduct, which was
provided as a citizen). Fehlman’s statements to the PFC are
the definition of speech that, in Garcetti’s formulation, “owes
its existence to a public employee’s professional
responsibilities,” and therefore do not implicate speech
liberties the employee enjoys as a private citizen. 547 U.S.
at 421–22.
Fehlman
disagrees,
arguing
Wisconsin
law
demonstrates his remarks were made as a citizen. In doing
so, he notes police chiefs have the authority to file
disciplinary charges against
subordinates
with
the
PFC, see WIS. STAT.
§ 62.13(5)(b), but subordinates do not have corresponding
power to bring charges upwards against their chiefs to the
PFC. From this, Fehlman concludes that “[a]ny misconduct
exposed by a subordinate before a police commission against
a chief would necessarily be as a citizen.” Fehlman’s
supposition is a cramped view of the Wisconsin statute.
That subordinates lack the ability to bring charges against
superiors does not necessarily reduce the subordinates’
complaints to that of a common citizen. Further, simply
because the statute does not provide a mechanism for
subordinates to file formal
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complaints against their superiors does not mean the PFC
cannot solicit employees’ views as a part of the
investigations it undertakes pursuant to its statutory
authority discussed above.
The circumstances of Fehlman’s meeting with the PFC
further support our conclusion that his speech was made in
his capacity as a police officer, not a private citizen.
Fehlman alleged that he and his fellow officers “requested a
meeting” with the PFC. He then attended the meeting,
along with two other officers. So did Mankowski, who at
some point also spoke with the PFC. Fehlman does not
allege the meeting was open to the public, and the minutes
from the PFC’s meeting indicate that it went into closed
session “for the purpose of considering employment,
promotion, compensation or performance evaluation data of
any public employee over which the governmental body has
jurisdiction or exercises responsibility, specifically issues
and procedures of the Neillsville Police Department.” 2 2
That Fehlman spoke in a closed meeting, which he
requested, and which the PFC described as a meeting to
address governance issues involving the NPD, underscore
the degree to which Fehlman’s speech was made
pursuant to his official duties. He used what is effectively a
Neillsville, WI. Police & Fire Commission, Minutes of the Thursday,
June 25, 2020 3:00 PM Meeting, https://neillsville-wi.com/wp-content/uploads/2020/07/Minutes-Police-Fire-06-25-20- OPEN.pdf. The PFC
meeting’s minutes are not attached to Fehlman’s amended complaint
or otherwise included in the record. However, the complaint
references the minutes at paragraph 20. Documents that a plaintiff
relies on in a complaint may be considered at the motion to dis- miss
stage and therefore by this court on appeal. Williamson v. Curran, 714
F.3d 432, 436 (7th Cir. 2013).
2
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supervisory agency of the NPD to raise a complaint about
his manager.
Taken as a whole, the record before us suggests the PFC
is best considered an extension of the NPD’s management
and operational structure. Fehlman provided insight from
his perspective as an employee, not a private citizen, to
assist the PFC in carrying out that function.
Because we conclude that Fehlman spoke not as private
citizen but as a public employee, we do not reach the second
hurdle he would need to surmount to succeed with a First
Amendment retaliation claim. That second question,
reserved for private citizen speakers only, is whether the
speech addressed a matter of public concern. Bivens v.
Trent, 591 F.3d 555, 560 (7th Cir. 2010). As the district
court ably explained, “under Garcetti v. Ceballos, 547 U.S.
410 (2006), a public employee’s speech made pursuant to his
official duties isn’t protected by the First Amendment, no
matter how important that speech may be or how it could
affect the public interest.” Because Fehlman’s comments
were made in his role as a public employee, they are not
subject to First Amendment protection, regardless of
whether his critiques of Mankowski might affect or interest
the public.
III
Fehlman argues that even if his speech was not
protected under the First Amendment when he was
employed by the NPD, his speech is protected from
Makowski’s alleged postemployment retaliation because
none of the policy arguments underpinning Garcetti apply to
the post-employment context. But there is no caselaw
supporting this reading of Garcetti.
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Establishing a prima facie case of First Amendment
retaliation requires an initial showing that the speech the
employee engaged in was constitutionally protected. Sweet,
18 F.4th at 278. If the speech is not protected to begin with,
any retaliation for that speech is not actionable under a
First Amendment framework, so the question of whether
that retaliation happened during or after employment is
legally irrelevant.
IV
For these reasons, we AFFIRM the district court’s
decision.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PATRICK FEHLMAN,
Plaintiff,
OPINION and ORDER
v.
21-cv-00362-jdp
JAMES MANKOWSKI,
Defendant.
This First Amendment retaliation case grew from the
contentious relationship between two officers who both
served as the chief of police for Neillsville, Wisconsin, a
small town located between Eau Claire and Stevens Point.
Plaintiff Patrick Fehlman was the interim police chief from
February 2019 until defendant James Mankowski—an
outside hire—took over in December 2019. Fehlman doesn’t
say
whether
he
and
Mankowski
competed
for
the
permanent position, but Fehlman’s complaint makes it
clear that they didn’t get along.
Fehlman
remained
with the department
after
Mankowski became chief, but Fehlman wasn’t pleased with
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Mankowski’s performance. And Fehlman wasn’t shy about
his feelings, telling Mankowski that the way he ran the
department was violating state law and jeopardizing officer
safety. When Mankowski didn’t change his ways, Fehlman
and some other officers took their concerns to the Police and
Fire
Commission,
alleging
that
Mankowski
was
unprofessional to staff and verbally abusive to citizens,
among other things.
According to Fehlman, Mankowski confronted him a
few days later, threatening to discipline him for going to the
commission. The following day, Fehlman quit. Fehlman
now accuses Mankowski of retaliating against him in
violation of the First Amendment by
threatening him, attempting to interfere with his
efforts to find a new job, and banning him from entering
the department.
Mankowski moves to dismiss the case for failure to
state a claim upon which relief may be granted. Dkt. 13.
The question before the court isn’t whether Mankowski
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attempted to sabotage Fehlman’s job prospects, or, if he did,
whether it was because Fehlman spoke out against him.
Rather, the issue now is whether Fehlman was speaking as
a police officer or a citizen when he complained to and
about Mankowski. The difference matters because, under
Garcetti v. Ceballos, 547 U.S. 410 (2006), a public
employee’s speech made pursuant to his official duties
isn’t protected by the First Amendment, no matter how
important that speech may be or how it could affect the
public interest.
Garcetti and the Seventh Circuit cases applying it
doom Fehlman’s claim, even if everything that Fehlman
alleges is true. All of the speech at issue in this case was
either a statement to a supervisor about issues affecting the
workplace or a complaint to an oversight body about how
the supervisor was performing his job. Under the law of
this circuit, that is employee—not citizen—speech, even if
the speech was motivated in part by concern for the
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community. The court will grant Mankowski’s motion to
dismiss.
ANALYSIS
Fehlman’s claim for retaliation arises out of two categories
of statements. First, Fehlman alleges that he directly
confronted Mankowski over the course of several months in
2020 about concerns that Fehlman had about Mankowski’s
performance as chief. Fehlman identifies the following
examples of the concerns that he expressed to Mankowski:
•
The department needed more bullet-proof vests for
officers.
•
Mankowski’s decision to stop writing reports for
accidents that occur on private property violated
state law.
•
Mankowski’s policy regarding issuing citations for
operating without a license violated state law.
•
Mankowski’s decision to change “radio
procedures” created “officer safety issues.”
•
Mankowski shouldn’t have “prioritized speed limit
enforcement over responding to an allegation of child
abuse at a school.”
Dkt. 8, ¶¶ 9, 17–18.
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Second, Fehlman raised additional concerns about
Mankowski during a meeting that Fehlman and other
officers requested with the Neillsville Police and Fire
Commission in late June 2020. Fehlman says that he
repeated some of the same concerns as above, and he raised
the following additional concerns about Mankowski:
•
He lacked professionalism and instilled fear in the
officers who worked for him.
•
He ordered officers to turn off their body cameras
in violation of department policies.
•
He was verbally abusive to suspects.
Id., ¶¶ 13–18. 1
Many of the issues raised by Fehlman involve
important public concerns. If Fehlman’s allegations are
true, Mankowski was violating the law and department
policy and mistreating employees and citizens. Those are
issues that merit public scrutiny. See Garcetti v. Ceballos,
Fehlman’s complaint also refers to a June 30, 2020 department
meeting where Fehlman and Mankowski spoke. Dkt. 8, ¶¶ 22–24. But
Fehlman doesn’t identify any protected statements that he made at the
meeting, and he doesn’t respond to Mankowski’s contention that he
failed to provide fair notice of any claim based on the June 30 meeting.
So the court doesn’t understand Fehlman to be raising a separate claim
based on that meeting.
1
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547 U.S. 410, 425 (2006) (“Exposing governmental
inefficiency and misconduct is a matter of considerable
significance.”); Vose v. Kliment, 506 F.3d 565, 569 (7th
Cir. 2007) (“[P]olice misconduct is a matter of public
concern.”).
But to sustain a claim for retaliation under the
First Amendment, a public employee like Fehlman must
do more than show that he was speaking out on a matter of
public concern. In moving to dismiss the case, Mankowski’s
primary argument is that Fehlman’s claim is barred by
Garcetti, which holds that the First Amendment protects
the speech of public employees only if they were speaking
“as a citizen” rather than “pursuant to their official
duties.” 547 U.S. at 421–22. 2
Mankowski also contends that Fehlman’s complaint doesn’t
comply with federal pleading standards and that his speech isn’t
protected because it was motivated by private interests, but it
isn’t necessary to consider those issues because Mankowski’s
motion to dismiss can be resolved on other grounds.
2
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In crafting this rule, the Supreme Court was trying
to balance a public employee’s right to speak with the
government employer’s ability to function efficiently and
effectively. See id. at 418–19. The Court reasoned that
public employees are also citizens, and they can provide
important contributions to public debate on matters on
which they are better informed than most. Id at 419–20.
But speech that “owes its existence to a public employee’s
professional responsibilities does not infringe any liberties
the employee might have enjoyed as a private citizen. It
simply reflects the exercise of employer control over what
the employer itself has commissioned or created.” Id. at
421–22. The parties in Garcetti agreed that the plaintiff, a
deputy district attorney, was speaking pursuant to his
duties when he wrote a memo recommending dismissal of a
case based on government misconduct. Id. at 421. As a
result, the Court concluded that the employee’s speech
wasn’t protected by the First Amendment.
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Mankowski contends that Fehlman was speaking
pursuant to his official duties when he made all the
statements at issue in this case, so Garcetti bars his claim.
Fehlman says that he was speaking as a citizen. Resolving
the dispute is complicated somewhat by Fehlman’s failure
to precisely identify what his job was. Fehlman says that he
was the interim police chief before Mankowski became the
chief in December 2019. Dkt. 8, ¶ 6. But Fehlman says
that he made the relevant statements between March and
June 2020, and he doesn’t say in his complaint what
position he had at that point or what specific duties he had.
But neither party suggests that Fehlman retained any
supervisory authority after December 2019. Rather, both
parties assume in their briefs that Fehlman had the same
duties as any police officer working for the Neillsville Police
Department. The court will follow the parties’ lead. As a
result, the question before the court is whether a Neillsville
police officer is speaking pursuant to his duties or as a
citizen when he: (1) complains directly to the chief that the
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chief is undermining officer safety and violating the law
and department policy; and (2) complains to the Neillsville
Police and Fire Commissioner about the same things, as
well as that the chief is mistreating his staff and criminal
suspects.
Garcetti itself provides only limited guidance in
deciding this case. The Court emphasized that an employee
doesn’t speak pursuant to his duties simply because the
speech occurred at work or is related to the employee’s job.
Id. at 421. The memo at issue in Garcetti was part of the
plaintiff’s everyday duties; it was literally the employee’s
work product and thus readily viewed as the government’s
own speech that it had the right to control. See id. at 422
(“Refusing to recognize First Amendment claims based on
government employees’ work product does not prevent them
from participating in public debate.”). That is not the
situation here. Complaining about alleged misconduct of
the police chief isn’t part of an officer’s normal routine.
Although Fehlman doesn’t identify what his position with
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the department was, he does say in his brief that that he
wasn’t an auditor or head of internal affairs. Dkt. 16, at
9.
But much more judicial ink has been spilled in the
years since the Supreme Court decided Garcetti. Four postGarcetti trends in the law of this circuit lead to the
conclusion that Fehlman’s speech in this
case isn’t
protected by the First Amendment. First, the court of
appeals has declined to read Garcetti as applying only to
speech that is part of “a public employee’s ordinary daily
job duties.” Vose v. Kliment, 506 F.3d 565, 572 (7th Cir.
2007); see also Kubiak v. City of Chicago, 810 F.3d 476,
481–82 (7th Cir. 2016) (Garcetti not limited to “routine
job duties”). Rather, it is enough if the speech relates to
activities that fall “within the general ambit of his job.”
Fairley v. Andrews, 578 F.3d 518, 523 (7th Cir. 2009). It
doesn’t matter whether the employee had “total control”
over the issues he was addressing. See Ulrey v. Reichhart,
941 F.3d 255, 260 (7th Cir. 2019).
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Second, the court of appeals has consistently held
that an employee’s complaints to or about supervisors
regarding how the agency or department is run owes its
existence to the employee’s professional responsibilities, so
it isn’t citizen speech. For example, in Mills v. City of
Evansville, Indiana, the court concluded that a police
sergeant’s discussions with her supervisors criticizing a
plan to alter the responsibilities of some officers was not
protected by the First Amendment. 452 F.3d 646, 648
(7th Cir. 2006). In reaching this conclusion, the court
observed that the plaintiff “was on duty, in uniform, and
engaged in discussion with her superiors,” and the court
concluded that she “spoke in her capacity as a public
employee contributing to the formation and execution of
official policy.” Id. In other words, an employee’s speech
disagreeing with supervisors about the direction of the
office
implicates
the
employer’s
management
responsibilities, so it is made as an employee rather than a
citizen. See id.
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The court of appeals has reached the same conclusion
in numerous other disputes between a public employee and
a supervisor. 3 More generally, the court has held that
speech that is part of an attempt to improve the functioning
of the workplace is
not protected under
the First
Amendment. See Kubiak, 810 F.3d at 482 (complaints that
“reflected an employee’s attempt to improve her work
environment” were made as an employee); Davis v. Cook
Cty., 534 F.3d 650, 653 (7th Cir. 2008) (Garcetti barred
claim based on memo that “reflect[ed] the concern of a
conscientious nurse to ensure and contribute to the smooth
functioning of the ER and to advocate for the well-being of
the patients under her care”).
Mills and the other cited cases are consistent with
the statement in Garcetti that courts shouldn’t adopt a rule
See, e.g., Ulrey, 941 F.3d at 259 (principal’s disagreement with
superintendent about disciplinary issue not protected); Ogden v.
Atterholt, 606 F.3d 355, 360 (7th Cir. 2010) (concluding that employer’s
complaint to “ultimate supervisor” asking for department to be
reorganized was not protected); Renken v. Gregory, 541 F.3d 769, 774
(7th Cir. 2008) (teacher’s criticism of his superior’s use of grant funds
provided to his department was speech as an employee, not a private
citizen).
3
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that “mandate[es] judicial oversight of communications
between and among government employees and their
superiors in the course of official business.” 547 U.S. at
423. And Fehlman cites no cases, from this circuit or any
other, in which a court concluded that an employee’s onthe-job
discussions
with
a
supervisor
about
the
management of the office qualify as citizen speech. This
strongly
suggests
that
Fehlman’s
discussions
with
Mankowski aren’t protected.
The third trend in circuit law that undermines
Fehlman’s claim relates to complaints like Fehlman’s that
deal with workplace misconduct. Specifically, the court
of
appeals
has consistently held that an employee’s
complaints about workplace misconduct aren’t protected
under the First Amendment, even when the employee’s
express job duties didn’t include a duty to report that
misconduct. See, e.g., Hatcher v. Bd. of Trustees of S.
Illinois Univ.,
829
F.3d 531, 539 (7th Cir. 2016),
overruled on other grounds by Ortiz v. Werner Enterprises,
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Inc., 834 F.3d 760 (7th Cir. 2016); McArdle v. Peoria Sch.
Dist. No. 150, 705 F.3d 751, 754 (7th Cir. 2013). Courts
must go beyond the job description and apply “a more
commonsense, contextual analysis of the role the public
employee assumed in making the speech at issue in the
case.” Ogden, 606 F.3d at 360. If an employee’s speech
about
misconduct
“affect[s]
an
area
within
her
responsibility,” that is enough to qualify as employee
speech. Hatcher, 829 F.3d at 539.
Reporting misconduct in the office can be an
unstated but expected part of the job for high-level and lowlevel employees alike. For example, in Sweet v. Town of
Bargersville, the court concluded that a customer service
representative in the clerk-treasurer’s office was speaking
pursuant to her official duties when she criticized the clerktreasurer for reconnecting the utility service of a delinquent
customer who was the clerk-treasurer’s business partner.
18 F.4th 273, 278 (7th Cir. 2021). The court reasoned that
the plaintiff’s responsibilities included handling customer
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service for utility disconnections, so her complaint fell
within her area of responsibility. Id. The court rejected the
plaintiff’s contention that it was “not her job as a low- level
employee to confront a high-ranking elected official about
questions of policy.” Id. 4 In other cases, the court of
appeals has suggested that claims based on reporting
misconduct within the workplace are categorically barred
by Garcetti. See also Comsys, Inc. v. Pacetti, 893 F.3d
468,
471–72
(7th
Cir.
2018)
(“[I]nternal
memos
protesting coworkers’ misconduct are not protected by
the First Amendment.”); Tamayo v. Blagojevich, 526
F.3d 1074, 1091–92 (7th Cir. 2008) (agreeing with other
cases holding “that reports by government employees to
their superiors concerning alleged wrongdoing in their
government office were within the scope of their job
duties, and, therefore, the employees were not speaking
4 See also Fairley, 578 F.3d at 523–24 (prison guard’s complaint about
guard-on-inmate violence was “part of the job” and thus not
protected); Spiegla v. Hull, 481 F.3d 961, 962 (7th Cir. 2007) (prison
guard’s complaint about a lapse in security by her supervisor was
barred by Garcetti because “ensuring compliance with prison
security policy was part of what she was employed to do”).
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as private citizens”).
In this case, Fehlman’s complaint doesn’t discuss his
job responsibilities, but in his brief he cites a Neillsville
ordinance, which says that an officer’s duties include
“enforcement” of
state and local laws, “prevent[ing]”
violations of the law, and “protect[ing] the health, safety,
public peace and order of the City and its inhabitants.” Dkt.
16, at 11. All of Fehlman’s complaints about Mankowski
relate to officer safety, protection of the public, compliance
with the law, or mistreatment of staff, and those subject
matters fall within Fehlman’s general responsibilities as
described in the ordinance. See Trigillo v. Snyder, 547 F.3d
826, 829 (7th Cir. 2008) (“A statute or regulation can help
determine the scope of an employee's duties to the extent
that it creates responsibilities for that employee’s specific
job.”).
The fourth and final relevant trend in circuit law
focuses on police officers, and it forecloses Fehlman’s claim.
Specifically, the court of appeals has “held on several
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occasions that a police officer’s duty to report official police
misconduct is a basic part of the job” for the purpose of a
Garcetti analysis, so that type of speech isn’t protected.
Forgue v. City of Chicago, 873 F.3d 962, 967 (7th Cir.
2017) (citing Roake v. Forest Pres. Dist. of Cook Cty., 849
F.3d 342, 346 (7th Cir. 2017); Kubiak, 810 F.3d at
481–82; Vose, 506 F.3d at 571). Regardless of the
officer’s job description, he or she has an inherent duty to
protect the public from harm. Forgue, 873 F.3d at 967.
That duty extends to “harm resulting from illegal
activity by law enforcement.” Roake, 849 F.3d at 346–47.
For example, in Vose, the court held that a police
officer was “merely doing his job,” and thus not engaged in
protected speech, when he reported suspected misconduct
by officers who worked in a different unit. 506 F.3d at
571. In Roake, the court held that complaints about
racial profiling and unlawful disciplinary action within the
police force were employee speech. 849 F.3d at 346–47. It
was enough that the employee “shared the complaints only
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with his employer, and the complaints focused exclusively
on official misconduct by his fellow officer.” Id. In Kubiak,
in the court held that an officer was acting as an
employee when she reported her own assault. 810 F.3d at
481–82. The court reasoned that an employee in her
situation “would be expected to report the inappropriate
behavior to a supervisor” and that it “makes even more
sense to expect officers to report that a fellow officer acted
violently” because that is part of an officer’s duty to
protect the public from harm. Id. 5
Taken together, these four trends require dismissal of
Fehlman’s complaint. All of the speech at issue in this case
involves allegations of perceived workplace misconduct by
Mankowski or complaints about how Mankowski was
running the police department. Although the complaint
5 See also Davis v. City of Chicago, 889 F.3d 842 (7th Cir. 2018) (officer’s
report accusing other officers of misconduct not protected); Morales v.
Jones, 494 F.3d 590, 597–98 (7th Cir. 2007) (officer’s conversations with
assistant district attorney about police chief’s alleged misconduct not
protected); Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 510–11
(7th Cir. 2007) (finding that a detective’s report on suspicions of
misconduct within the police department were made within his capacity
as an investigator and a task force member, and therefore he did not
speak as a citizen).
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doesn’t provide details about Fehlman’s precise job title or
duties, it is clear from his allegations that he was speaking
in his capacity as an officer rather than as a citizen under
the law of this circuit. His statements were “intimately
connected” to his job and related to subjects that fell within
the general responsibilities of all police officers, such as
protecting the public and enforcing the law. See Kubiak,
810 F.3d at 482 (statements that are “intimately connected”
to plaintiff’s job more likely to be made pursuant to
professional duties).
The parties’ briefs include a separate discussion of
Fehlman’s statements to the Police and Fire Commission,
and they dispute whether the commission was part of
Fehlman’s “chain of command.” This is a reference to
Nesvold v. Roland, in which the court observed that
“complaints directed beyond direct supervisors ‘up the
chain of command’ also fall outside of the protections of the
First Amendment.” 37 F. Supp. 3d 1027, 1039–40 (W.D.
Wis. 2014). Fehlman contends that we don’t have enough
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information to determine at this point whether the
commission was part of Fehlman’s chain of command, and
if it wasn’t, that would suggest his statements to the
commission were protected.
Fehlman’s argument isn’t persuasive. Nesvold didn’t
hold that any speech outside an employee’s “chain of
command” is citizen speech. Rather, Nesvold’s larger point
was that context matters in deciding whether a plaintiff
spoke as an employee or a citizen, and part of that context
includes where the employee spoke and to whom. The same
point has been made in other cases. For example, in Lane
v. Franks, the Supreme Court held that “truthful sworn
testimony, compelled by subpoena” is inherently “outside
the scope of [an employee’s] ordinary job responsibilities.”
573 U.S. 228, 238 (2014). The Court reasoned that all
citizens, not just public employees, have a duty to testify
truthfully in a court proceeding. Id. at 238–
39. See also Chrzanowski v. Bianchi, 725 F.3d 734, 739–
40 (7th Cir. 2013) (public employee First Amendment
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claim based on grand jury testimony not barred by
Garcetti).
More generally, courts have considered as relevant to
the
Garcetti
analysis
whether
the
employee
made
statements about alleged misconduct to an outside agency.
See Anderson v. Wisconsin Dept. of Health & Fam. Servs.,
No. 08-cv-82-slc, 2009 WL 196736, at *7 (W.D. Wis. Jan.
26, 2009) (“Federal courts have been more likely to conclude
that an employee was speaking as a citizen when the
employee was addressing an audience outside his or her
employer.”). For example, in Houskins v. Sheahan, the
court concluded that an employee’s complaint to her
employer about workplace harassment was barred by
Garcetii, but her report to the police about the same
conduct wasn’t. 549 F.3d 480, 491 (7th Cir. 2008). This
was because any citizen, and not just a public employee,
can file a police report about alleged criminal behavior. See
also Morales, 494 F.3d at 598 (complaints to employer
about workplace misconduct not protected; deposition
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testimony about same misconduct protected).
Fehlman’s statements to the commission can’t be
compared to testimony in a court proceeding or a police
report. Under Wis. Stat. § 62.13, each city of more than
4,000 residents must maintain a police and fire
commission. Among other things, the commission has
jurisdiction over the hiring, promotion, and discipline of
members of police and fire departments, including the
chief of police. City of Madison v. Wisconsin Emp. Rels.
Comm’n, 2003 WI 52, ¶ 13, 261 Wis. 2d 423, 432–33,
662 N.W.2d 318, 322; see also Wis. Stat. § 62.13(3) and
(5)(j)
(describing
commission’s
authority to
appoint,
suspend, and remove police chiefs). So as far as this case
is concerned, the commission serves as a personnel board
for the chief, not an agency that is completely separate
from the workplace. This is similar to the situation in
Lloyd v. Mayor of City of Peru, in which a police officer
made allegations of misconduct about other officers to the
city’s “dispute-resolution body,” called the Board of Works.
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761 F. App’x 608, 612 (7th Cir. 2019). The court
concluded that the officer’s speech wasn’t protected
because he made “his accusations within the department’s
operational framework.” Id.
In this case, Fehlman’s complaint makes it clear that
he requested a meeting with the commission after
Mankowski reacted negatively to Fehlman’s comments
about Mankowski’s job performance. Dkt. 8, ¶¶ 10–11.
Fehlman brought two other police officers with him, and
their purpose was to “address[] Mankowski’s professional
integrity and ethics.” Id., ¶ 12. In other words, Fehlman
and the other offices were complaining to the commission
about his effectiveness as a supervisor and as a police chief.
Under these circumstances, Fehlman was not simply
acting in a manner that any concerned citizen could. He
requested a special meeting to raise employment-related
concerns, he was joined by other employees to present those
concerns, and he directed his concerns to a body that had
disciplinary authority over Mankowski. Fehlman doesn’t
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allege that the meeting was open to the public. The court
concludes that Fehlman’s own allegations show that he was
speaking to the commission as a police officer, not just a
concerned citizen.
Fehlman resists dismissal on two other grounds.
First, he says that an analysis under Garcetti is factsensitive, and most cases are decided on a motion for
summary judgment rather than on a motion to dismiss.
That is a fair point, and if Fehlman had pointed to facts
that he could prove at summary judgment that would save
his claim, the court would deny Mankowski’s motion as
premature. But Fehlman doesn’t identify any additional
facts consistent with his complaint that would show that
he was speaking out as a citizen rather than pursuant to
his duties as an officer. The law in this circuit is clear that
the First Amendment doesn’t protect disagreements with a
supervisor about effective management or statements
about misconduct related to a police officer’s general duties
to enforce the law and protect the public. Fehlman’s own
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allegations show that his speech falls within those
unprotected categories. In similar circumstances, the court
of appeals hasn’t hesitated to apply Garcetti in the context
of a motion to dismiss. See, e.g., Roake, 849 F.3d at 346–
47 (concluding at pleading stage that Garcetti barred
public employee retaliation claim); Aldous v. City of Galena,
Illinois, 702 F. App’x 439, 441–42 (7th Cir. 2017)
(same); Hatcher, 829 F.3d at 538 (same); Kubiak, 810
F.3d at 481–82 (same); Vose, 506 F.3d at 568 (same).
Second, Fehlman says that he has stated a claim
under the First Amendment because he “repeatedly
alleges in his complaint that he was speaking as a private
citizen
while
he
was
voicing
his
concerns
about
Mankowski.” Dkt. 16, at 8 (citing Dkt. 8, ¶¶ 9, 12). But
the court of appeals has rejected that precise argument:
[The plaintiff] cannot escape the strictures of Garcetti
by including in her complaint the conclusory legal
statement that she testified “as a citizen . . . outside
the duties of her employment.” A plaintiff cannot rely
on labels and conclusions. Nor are we bound to accept
as true a legal conclusion couched as a factual
allegation.
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Tamayo, 526 F.3d at 1091–92 (citations omitted). It is the
same in this case. Fehlman’s more specific allegations in his
complaint are inconsistent with the conclusion that Fehlman
spoke as a citizen. So the court isn’t required to accept that
allegation as true.
CONCLUSION
Garcetti and its progeny have significantly limited a public
employee’s protected speech in the workplace. See Haka v.
Lincoln Cty., 533 F. Supp. 2d 895, 918–19 (W.D. Wis. 2008)
(“[T]he effect of Garcetti in this circuit has been devastating
for public employees asserting claims for First Amendment
retaliation.”). As a result, speech about many important issues
can be left without constitutional protection, including
speech about public corruption, e.g., Sigsworth, 487 F.3d at
507, misuse of government funds, e.g., Renken, 541 F.3d at
774, harassment, e.g., Kubiak, 810 F.3d at 482, and race
discrimination, e.g., Roake, 849 F.3d at 346–47. For better or
worse, there is no “whistleblower carve-out from the category of
unprotected employee speech.” Ulrey, 941 F.3d at 259. So even
if Fehlman’s purpose in speaking out was to expose misconduct
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that threatened the police department and the community, his
speech isn’t protected by the First Amendment because he spoke
as a police officer rather than a citizen. The court will grant
Mankowski’s motion to dismiss.
The general rule is that the plaintiff should have an
opportunity to amend his complaint after a dismissal to fix the
defects identified by the court. Runnion ex rel. Runnion v. Girl
Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 519–20 (7th
Cir. 2015). But in this case, the problem isn’t that Fehlman
failed to plead enough facts; the problem is that the facts he did
plead show that he isn’t entitled to relief. In that situation,
amendment would be futile. In any event, Fehlman has already
amended his complaint once, and he doesn’t ask for permission to
file a second amended complaint in the event that the court
grants Mankowski’s motion to dismiss. So the court will dismiss
the complaint with prejudice and direct the clerk of court to close
this case.
ORDER
IT IS ORDERED that defendant James Mankowski’s
motion to dismiss, Dkt. 13, is GRANTED and the case is
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DISMISSED for plaintiff Patrick Fehlman’s failure to state a
claim upon which relief may be granted. The clerk of court
is directed to enter judgment in Mankowski’s favor and close
this case.
Entered March 1, 2022.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge
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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WISCONSIN
PATRICK FEHLMAN,
Plaintiff,
v.
Case No. 3:21-cv-00362-jdp
JAMES MANKOWSKI (in his individual capacity),
Defendant.
FIRST AMENDED COMPLAINT
NOW COMES THE PLAINTIFF, Patrick Fehlman, by
his attorneys Gingras, Thomsen & Wachs by Attorney Paul A.
Kinne, and hereby states the following as his First Amended
Complaint in the above-captioned matter.
NATURE OF PROCEEDINGS
1.
This civil action is brought pursuant to 42 U.S.C.
§ 1983 and the First and Fourteenth Amendments to the
United States Constitution, to redress the retaliatory treatment
APPENDIX C
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of plaintiff by Defendant Mankowski.
PARTIES
2.
At all times relevant hereto, Patrick Fehlman
(Fehlman) has been an adult resident of the State of Wisconsin.
He presently resides within the Western District of Wisconsin.
3.
Defendant James Mankowski (Mankowski) is
presently the Chief of Police for the City of Neillsville. All
conduct attributable to him described in this complaint was
undertaken intentionally, and committed within the scope of his
employment and under color of law.
JURISDICTION AND VENUE
4.
This court has jurisdiction over this matter
pursuant to 42 U.S.C. § 1983, the First and Fourteenth
Amendments to the United States Constitution, and pursuant
to 28
U.S.C. §§ 1331 and 1343.
5.
This claim may be venued in the Western
District of Wisconsin pursuant to 28 U.S.C. § 1391, insofar as
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all the parties reside and/or do business in this district, and
the circumstances giving rise to the claim occurred in this
district.
FACTUAL ALLEGATIONS
6.
In February, 2019, Fehlman was appointed to be
the interim police chief for the City of Neillsville Police
Department (NPD).
7.
On December 31, 2019, Mankowski, an outside
hire, was sworn in as the Chief of Police of Neillsville. January
6, 2020, was Mankowski’s first day at work.
8.
On March 11, 2020, Fehlman received a
commendation / Letter of Recognition for his service as
interim chief. Pursuant to policy, such a letter is supposed to
be placed in an officer’s personnel file.
9.
From the time period of roughly March
through most of June, 2020, Fehlman approached Mankowski
to speak to him about Mankowski’s actions as chief. Fehlman’s
motivation was, at least in part, to speak as a citizen, and at
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least some of the issues Fehlman raised were on issues of
public concern. Examples of issues Fehlman raised with
Mankowski include but are not limited to the following:
i. Fehlman noted that two NPD officers (not him) needed
new bullet- proof vests. Mankowski responded to this
public safety concern by telling Fehlman that the rules
pertaining to fund use prevented Mankowski from
buying the vests. Fehlman then checked with an
employee of the Clark County Sheriff’s Department to
determine the veracity of what Mankowski explained to
Fehlman, and Mankowski discovered that Fehlman
communicated with this individual.
ii. Mankowski had ended the practice of writing
accident reports for accidents that occurred on
private property. Fehlman explained to Mankowksi
that his decision was in violation of state statute.
iii. Fehlman explained to Mankowski that Mankowski’s
policy with respect to issuing citations for Operating
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Without a License was in violation of state statute.
iv. Fehlman raised the issue of Mankowski changing
radio talk procedures that created officer safety
issues, which is further referenced at paragraph 17
of this complaint.
v. Fehlman raised the issue of prioritizing traffic
enforcement over a child abuse allegation, which is
further referenced in paragraph 18 of this complaint.
10.
Mankowski reacted with anger to Fehlman’s
comments. Mankowski told Fehlman, “I always have my guns
loaded,” a figurative reference.
Mankowski made this
comment as a threat of retaliation against Fehlman should
Fehlman continue to exercise
his right to speak and complain. Mankowski also said,
on more than one occasion, “I could have demoted you,” in
response to Fehlman’s speech.
11.
In late June, 2020, Fehlman and other officers
requested a meeting with the Neillsville Police & Fire
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Commission (PFC). That meeting was scheduled for June 25,
2020.
12.
Fehlman attended the meeting with officers
Jason King and Brett Chwala.
During the meeting, Fehlman told the PFC that he was
not attacking Mankowski as a person, but he was addressing
Mankowski’s professional integrity and ethics. Fehlman cited
his motivation as a sense of duty to the community, and he
was making his comments as a citizen as well as a police
officer.
13.
Fehlman told the PFC that Mankowski had
instilled fear in officers at the NPD. He said they feared
retaliation.
14.
Fehlman told the PFC about Mankowski’s lack
of professionalism. He informed the PFC of Mankowski’s
encounter with a local business owner, while on duty. He told
the business owner that he should consider installing a
stripper pole in the bar and have his wife dance on it topless.
15.
Fehlman
told
the
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PFC
about
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ordering officers to turn off their body cameras in violation of
department policy and best practices.
16.
Fehlman informed the PFC that Mankowski was
often verbally abusive to suspects, berating them and insulting
them gratuitously.
17.
Fehlman informed the PFC that Mankowski
changed radio talk procedures that created officer safety
issues. Fehlman expressed his concerns over officer safety,
generally.
18.
Fehlman informed the PFC that Mankowski had
prioritized speed limit enforcement over responding to an
allegation of child abuse at a school.
19.
The PFC dismissed Fehlman and the other
officers and welcomed Mankowski to the meeting.
20.
The PFC minutes indicate that Mankowski was
“very upset” about Fehlman’s meeting with the PFC. The
minutes further indicate that the PFC informed Mankowski of
the complaints made, and that Fehlman did most of the
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talking.
21.
After
the
meeting,
Mankowski
harassed
Fehlman. For example, Mankowski demanded that Fehlman
turn in his work credit card.
22.
On June 30, 2020, there was a department meeting
at a community business.
The purpose of the meeting was, ostensibly, to clear the
air between Mankowski and Fehlman and the other concerned
officers.
23.
During the meeting, Mankowski was verbally
aggressive and raised his voice several times. He threatened
Fehlman, who was off duty at the time, with charges of
insubordination if Fehlman went to higher authorities over
issues Mankowski felt they could solve themselves.
24.
During the June 30 meeting, Mankowski made it
clear that he was prepared to retaliate against Fehlman for his
earlier exercise of free speech. Mankowski told Fehlman and
the other officers that he noted policy violations when he
started as chief.
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He told them that he could have written them up for
those violations, and that they were lucky he did not. He said
those officers should be grateful that they did not face
discipline.
25.
These comments were all veiled threats that
further exercise of their free speech rights would be met with
discipline.
26.
In the early morning hours of July 1, 2020,
Fehlman submitted his resignation, effective immediately.
27.
Fehlman sought employment at the Clark
County Sheriff’s Office (CLSO).
28.
CLSO.
Charles Ramberg was a Patrol Captain with the
Ramberg
was
allied
with
Mankowski;
upon
Wade
was
information and belief, they were friends.
29.
CLSO
Patrol
Sergeant
Hebert
assigned to complete Fehlman’s background check. Successful
completion of the background check was necessary for
Fehlman to secure employment with the CLSO.
30.
Upon information and belief, Mankowski told
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Ramberg to approach Hebert in an effort to sabotage
Fehlman’s application for a position with the CLSO.
31.
In July, 2020, Ramberg spoke to Hebert, telling
him that all Hebert needed to do was to interview Mankowski,
then terminate the background check, disqualifying Fehlman
for the job at the CLSO.
32.
As a result of Ramberg’s interference in the
background check process, the background check was instead
entrusted to the Eau Claire County Sheriff’s Office for
completion. This delayed Fehlman’s application process and
start date for the CLSO. It
also forced Fehlman to personally explain to the Clark
County Sheriff that Mankowski would not be an obstacle to
Fehlman doing good work for the CLSO.
33.
Upon information and belief, as part of the
background check into Fehlman as part of CLSO’s hiring
process, Mankowski made false and negative comments about
Fehlman as retaliation for Fehlman speaking on issues of
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public concern.
34.
On or about August 13, 2020, Fehlman examined
his personnel file with the NPD. He noted that it had been
altered, presumably by Mankowski or at his direction. The file
also contained evidence that Mankowski provided false or
misleading information to the unemployment compensation
office,
leading
to
a
delay
in
Fehlman’s
receipt
of
unemployment compensation to which he was entitled.
35.
On September 14, 2020, despite Mankowski’s
efforts to sabotage Fehlman’s application with the CLSO,
Fehlman started work for the CLSO.
36.
Mankowski learned that Fehlman visited the
NPD, off duty, as a citizen, on November 4, 2020.
37.
On November 10, 2020, Mankowski drafted a
letter to Fehlman, which Fehlman received on November 12,
2020. A copy was also sent to the CLSO via email, which was
received by the CLSO before Fehlman himself received it.
38.
The Mankowski letter informed Fehlman that he
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was to refrain from entering the NPD office unless a NPD
officer requested that he be on the premises pertaining to a
specific law enforcement action.
39.
Mankowski sent this letter in further retaliation
for Fehlman speaking on an issue of public concern.
FIRST CAUSE OF ACTION AGAINST MANKOWSKI
VIOLATION OF FIRST AMENDMENT RIGHTS
40.
The plaintiff realleges and incorporates the
preceding paragraphs as if set forth fully herein.
41.
By engaging in the conduct set forth in this
Complaint, Mankowski violated Fehlman’s rights to free
speech
when
Mankowski
verbally
abused
Fehlman,
threatened his employment with the NPD, attempted to
sabotage his employment with the CLSO, and otherwise acted
as described in this complaint.
42.
Said violation has caused Fehlman severe and
permanent emotional, psychological and economic injuries.
WHEREFORE, the plaintiff demands the following relief:
A.
An award of compensatory damages against the
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defendant that will justly compensate the plaintiff for his
emotional, psychological and economic losses.
B.
An
award
of
punitive
damages
against
Mankowski for the willful, wanton and reckless acts he has
committed against the plaintiff;
C.
An award of plaintiff’s reasonable attorneys’
fees and costs incurred in this
action;
D.
E.
appropriate.
Pre- and post-judgment interest; and
Such other relief as the Court deems just and
JURY DEMAND
The plaintiff respectfully requests that this matter be
tried before a jury of six (6) competent persons.
Dated this 30th day of July, 2021.
GINGRAS THOMSEN & WACHS
LLP
Attorneys for Plaintiff
s/ Paul A. Kinne
Paul A. Kinne
State Bar Number: 1021493
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8150 Excelsior Drive
Madison, WI 53717
Phone: (608) 833-2632
Fax: (608) 833-2874
Email: kinne@gtwlawyers.com
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