By: Jim Cline and Jordan L. Jones
In Graber v. Clarke, the U.S. Seventh Circuit Court of Appeals held that a deputy sheriff sergeant, who was also the Union Vice President, failed to prove a First Amendment employment retaliation claim under 42 U.S.C. §1983 against the County of Milwaukee and its Sheriff. The Seventh Circuit stated that even though he had presented union complaints he had failed to “establish a causal connection between his constitutionally protected speech and an adverse employment action.”
On June 24, 2010, a fifteen-year old boy was killed in a parking garage operated by the County when a concrete slab fell. A captain from the Sheriff’s Office subsequently ordered mandatory overtime to secure the parking garage. The Sergeant was later approached in his role as Union vice president by a deputy who had been affected by the mandatory overtime and he spoke to the captain about whether the CBA had been violated.
Later, the Union Vice President was approached by another deputy regarding the mandatory overtime incident. He then decided to speak first with a deputy inspector and later the Sheriff. The discussions with the deputy inspector and subsequently the Sheriff became personal and heated. Subsequently, in November 2010, he was given a seven-day suspension for signing a deficient memo book in 2009. In November 2011 he filed suit alleging that the Sheriff retaliated against him for his actions as Union vice president on June 24, 2010, in violation of his First Amendment rights to free speech and association.
The Seventh Circuit noted that in order to prove a First Amendment employment retaliation claim, a Plaintiff must establish the following three elements:
First, the [P]laintiff must show that his speech was constitutionally protected . . . . Second, the [P]laintiff must prove that he suffered an adverse employment action as a result of his protected speech . . . . And Third, the [P]laintiff must present evidence to establish that a reasonable jury could find that his speech was a ‘substantial’ or ‘motivating’ factor for his adverse employment action.
In addition, the Seventh Circuit stated that to determine whether speech is constitutionally protected, a two-part test is required under Pickering v. Bd. of Educ., 391 U.S. 563 (1968).
First, we ask whether the [P]laintiff spoke as a citizen on a matter of public concern; if so, we [next] ask whether the [P]laintiff’s interest in speaking as a citizen on a matter of public concern outweighed the government’s interest in controlling that speech to promote efficiency and effectiveness of serving the public through its employees.
The Seventh Circuit found that the Union Vice President’s speech with the captain was protected by the First Amendment. The Seventh Circuit noted that the Union Vice President had acted as a citizen about an issue of public concern that outweighed the government’s interest in controlling speech; That the employee was acting in his role as Union vice president and he was “legitimately concerned that deputies were not getting sufficient rest, raising a potential threat to their safety and the safety of the public.”
However, the Seventh Circuit did not find that the Union Vice President’s conversation with the deputy inspectors was protected by the First Amendment. The Seventh Circuit noted that the Union Vice President was “that of a disgruntled employee, not a citizen”; That the Union Vice President had made a comment to a deputy inspector that personally attacked the Sheriff for “screwing” with the deputies and the Union Vice President did not bring up the Union, its members, or the CBA in his conversation.
The Seventh Circuit held that even though the Union Vice President’s speech with the captain was protected by the First Amendment, the employee failed “to establish a causal connection between his constitutionally protected speech and an adverse employment action.”
The Seventh Circuit stated that 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.” The Seventh Circuit found that:
[T]he record does not show a causal connection between the . . . [Union Vice President’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 Nov+ember 2010, but the investigation of the memo book incident commenced in December 2009, over six months before the . . . incident.
The Seventh Circuit also found that the Sheriff’s comments in his heated argument with the Union Vice President “was due to the aggressive and insubordinate manner” in which the . . . Union Vice President spoke with the deputy inspector and that “it was not the result of any protected speech. The Seventh Circuit held that the Plaintiff failed to prove a First Amendment employment retaliation claim.
This reasoning in this decision was poor. While there may be a bona fide issue about whether there exists a proximate cause between the statements and the discipline, the 7th Circuit’s ruling that the speech was not protected is puzzling at best. The court acknowledges that union officer speech is normally protected by the first amendment as inherently touching on subjects of “public concern.” The court concluded that he was acting on a personal grievance, not a union grievance in this situation simply because he did not specifically mention “grievance” during the conversation in question. Given the context that it arose and his responsibilities as union vice-president for representing all the deputies, that aspect of the court’s decision doesn’t seem sound.
The court seem more influenced by the manner in which he delivered his objections. They characterized his protest as borderline insubordinate and indicated it was disruptive to the department in how the he delivered it. While the court’s ruling seems questionable on this point as well, cases like this are a reminder that it is better to deliver your union objections with a degree of civility whenever possible. Judges particularly like to see public employees treat their supervisors with civility.
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