Suspicious Timing of Detective’s Transfer after Political Involvement and Favorable Testimony that Detective had “Made the Mayor Mad” Creates a Triable First Amendment Claim

By Anthony Rice

In Peele v. Burch, the 7^th Circuit Court of Appeals reversed a district court decision granting summary judgment to the City on a detective’s First Amendment Claim against the Portage Indiana Police Department. The court held that the detective presented sufficient evidence that casts doubt on the defendants’ story and thus creates a triable claim.

The plaintiff, Roger L. Peele, worked for the Police Department of the City of Portage, Indiana, as a detective for 15 years before he was demoted to a desk job. Peele was active in local politics and particularly involved with the mayoral race. After his candidate lost, Peele vented his frustrations to a reporter for the Northwest Indiana Times, criticizing the supporters of his candidate’s opponent. The statements were published in the newspaper the very next day, and Peele was transferred the day after that.

The court narrowed its focus to one key element of Peele’s claim: “whether Peele provided evidence that his protected conduct was a ‘motivating factor’ in the defendants’ decision to transfer him.” In order to satisfy this element

Peele must first provide evidence that the defendants were motivated, at least in part, by a desire to retaliate against him for his protected speech. If he does, then the defendants may counter by showing that they would have reached the same result even without the protected speech.

The court first noted the suspicious timing of the demotion and stated that, as a general rule, suspicious timing is rarely enough to satisfy the “motivating factor” element. However, sometimes an adverse action comes so close on the heels of a protected act that an inference the speech was a motivating factor is sensible. The did not need to decide whether the suspicious timing, by itself, was sufficient in this case because,

[i]n addition to this circumstantial evidence, Peele has also presented direct evidence of retaliatory motivation. That evidence comes from the deposition of Joe Radic, the officer who held the Station Duty Officer position before Peele replaced him. According to Radic, Chief Burch told Radic that he would not have to work as the Station Duty Officer anymore. Burch then went on to explain that Peele was being transferred to the Station Duty Officer position because Peele had “made the mayor mad.”