Alleged Retaliation towards Police Deputy Unrelated to First Amendment Protection, Federal Court Holds

The U.S. Court of Appeals for the Seventh Circuit has held that a former police sergeant’s freedom of speech and association rights were not violated by alleged retaliation as the sergeant could not demonstrate that the retaliation was linked to any protected speech.

Richard Graber, a sergeant at a Wisconsin jail and the vice president of an officers’ union, had concerns that jail deputies being ordered to work mandatory overtime violated a bargaining agreement. Captain Thomas Meverden, an official in charge of the assignments, explained that it was temporary and not a violation. Graber had a subsequent aggressive encounter with a deputy inspector with Graber criticizing Sheriff David Clarke, which led to a meeting with Clarke where Clarke then berated Graber. Due to an unrelated investigation, Graber was suspended months later for seven days. Graber filed suit a year later against Clarke and the county of Milwaukee in a district court, arguing that his First Amendment rights had been violated by Clarke’s berating and the suspension , resulting from Graber’s speech and association. Graber also raised a state retaliation issue. The district court dismissed the claims, holding that Graber’s speech to the inspector was not protected and while his speech to Meverden was, no link to the berating or suspension had been proved by Graber. On August 18, 2014, the appellate court affirmed the dismissal.

On June 25, 2012, while on duty at the Milwaukee County Correctional Facility – Central (Facility), Graber was approached by a deputy complaining about mandatory overtime. Handling the matter as his union’s vice president, he contacted Sgt. Carol Mascar; who was assisting Captain Meverden, to voice his concern that the mandatory overtime violated the union’s collective bargaining agreement (Agreement). Meverden explained that a nearby tragedy the day before required the temporary posting of the Facility’s deputies at the tragedy’s site until volunteers became available that evening, which did not violate the agreement.

Soon after the completion of the conversation, another deputy complained about his lack of rest between Facility and overtime shifts. That same day, Graber encountered Deputy Inspector Kevin Nyklewicz. Graber, rather than raise the union issue, yelled that he was tired of Sheriff Clarke’s treatment of the Facility’s deputies. Ignoring Nyklewicz’s order to go back to work, Graber continued his tirade. Nyklewicz, feeling that Graber had overstepped his position, contacted Inspector Edward Bailey for possible discipline. Bailey instead set a meeting between himself, Clarke, and Graber for later that day.

Graber alleged that at the two hour meeting, Clarke yelled, pointed and cursed at him in an attempt to bully and intimidate him, Clarke also reportedly said he would “come after” Graber if his name came up again. Bailey and Clarke disputed Graber’s version but all three agreed that Clarke had told Graber to take up the union matter with Inspector Carr. Following the meeting, no grievances were filed about the overtime. In November 2010, Graber was suspended for seven days upon the completion of an unrelated investigation that began in 2009. In November 2011, Graber filed suit in the US district court for the Eastern District of Wisconsin, alleging First Amendment violations for retaliation and a state claim of retaliation for Graber’s engaging in a political activity. Before the resolution of his claims, Graber retired in May 2012.

On May 7, 2013, the claims were dismissed after a bench trial on the district court’s finding that Graber’s protected speech with Meverden and Mascari did not lead to retaliation and that Graber did not prove that he had engaged in a political activity. Graber subsequently appealed but did not raise the state claim.

In affirming the district court’s holding, the appellate court first reviewed Graber’s speech to Meverden and Mascari and to Nyklewicz. For his speech to be protected under the First Amendment, the court stated that Graber had to speak “as a citizen on a matter of public concern” and if he had, his “interest [must] outweigh [ ] the government’s interest in controlling that speech to promote the efficient and effectiveness of serving the public through its employees.”

As to Meverden and Mascari, the appellate court found that Graber had met this standard, legitimately speaking on a union matter as the vice president concerning the Agreement and the deputies’ well-being. However, now fully aware of the purpose of the mandatory overtime, Graber had approached Nyklewicz aggressively and his “speech was that of a disgruntled employee, not a citizen,” and thus, unprotected under the First Amendment, the court concluded.

Next, the appellate county assessed Graber’s First Amendment retaliation claims. Graber first had to establish that his speech was protected—only his speech with Meverden and Mascari met that requirement. The court then stated that Graber had to “establish [ ] an adverse employment action related to his suspension” or to “Clarke’s hostile meeting,” with either having a deterring effect on Graber’s free speech.

The appellate court held that Graber had failed to prove that the suspension or meeting was related to his protected speech. First, the suspension had been a result of the unrelated investigation, with the appellate court pointing out that when questioned at his suspension hearing about the suspension, Graber denied being punished for his June 25 comments. Second, Clarke’s berating, “even when considered an actionable offense, was due to the aggressive and insubordinate manner in which Graber spoke to Nyklewicz.”

See: Graber v. Clarke, 763 F.3d 888 (7^th Cir. 2008).

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