Ricky Darrow v. Connie Putland ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 6, 2021 *
Decided May 6, 2021
Before
DIANE S. SYKES, Chief Judge
JOEL M. FLAUM, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-1806
RICKY J. DARROW, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 19-CV-797
CONNIE PUTLAND and Nancy Joseph,
WILLIAM SMITH, Magistrate Judge.
Defendants-Appellees.
ORDER
The University of Wisconsin-Whitewater fired Ricky Darrow from his custodial
job after coworkers reported his racist and vulgar comments. Darrow administratively
appealed the University’s decision to no avail and then sued University administrators
in federal court, alleging retaliation, discrimination, and denial of due process. The
district court dismissed all claims but the due-process claim and later entered summary
judgment for the defendants. Darrow appeals the entry of summary judgment on his
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-1806 Page 2
due-process claim and argues that the district court never fully assessed his retaliation
allegations. But the University gave Darrow notice and an opportunity to be heard
before it fired him, and the retaliation allegations are legally insufficient, so we affirm.
A coworker complained about Darrow to a supervisor. That coworker, who was
Mexican, wrote that he felt unsafe because Darrow had made offensive comments to
him about Mexicans. The supervisor sent the complaint to Connie Putland, a
human-resources officer. Putland contacted Darrow, who had “permanent status” in his
job and could be fired only for just cause, WIS. STAT. § 230.34(1)(a), and placed him on
administrative leave pending an investigation. When they met two days later, Putland
read the complaint to Darrow and allowed him to offer reasons why he should not be
disciplined for violating the University’s policy prohibiting offensive language. Darrow
named other coworkers as “character references” who could assure Putland that he was
a good employee. Putland interviewed those coworkers, but they reported more
offensive comments Darrow had made to and about female coworkers and non-white,
disabled, and female students. Based on these reports, the University fired Darrow.
Darrow appealed the University’s decision to the Wisconsin Employment
Relations Commission, a state agency that resolves claims of wrongful discharge of
state employees. At the hearing, Darrow argued that the coworker who reported him
had fabricated the complaint, but he did not respond to the other allegations that he had
used offensive language. Darrow cross-examined Putland, his supervisor, and the
coworker who reported him, and he filed a post-hearing brief. After receiving these
materials, the hearing examiner affirmed the University’s decision to fire Darrow.
Darrow did not appeal that decision in state court. See WIS. STAT. § 227.52.
Darrow next turned to the federal court for relief. He filed suit under 42 U.S.C.
§ 1983 against the University, coworkers, and administrators. As relevant to this appeal,
Darrow raised two claims. First, he alleged that the defendants denied him his job
without due process when they fired him. Second, he asserted that, by firing him, the
defendants violated the First Amendment, because in his view the firing was retaliation
for his comments to coworkers and for filing an unrelated complaint months earlier
against an employee for “bullying.” A magistrate judge, presiding by consent, screened
the complaint, see 28 U.S.C. § 1915(e)(2)(B)(ii), and dismissed all claims except the
due-process claim. On Darrow’s retaliation claim, the court explained that the First
Amendment did not protect his comments to fellow workers (whether offensive or not)
because they did not cover matters of public concern. Later, the court entered summary
judgment against Darrow on his due-process claim because he conceded that, before he
No. 20-1806 Page 3
was fired, Putland read the complaint to him and gave him a chance to tell his side of
the story; furthermore, Darrow had a full hearing after he was fired and chose not to
appeal the adverse decision in state court.
In this appeal, Darrow argues that the district court erred in entering summary
judgment because the University’s procedures did not satisfy due process. We review
an entry of summary judgment de novo, Kvapil v. Chippewa Cnty., Wis., 752 F.3d 708, 712
(7th Cir. 2014), and we conclude that the district court properly entered summary
judgment on Darrow’s due-process claim. The parties stipulate that, before Darrow lost
his job, due process entitled him to notice of the charges against him, an explanation of
his employer’s evidence, and an opportunity to tell his side of the story. See Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
The record contains no dispute about the process that Darrow received before his
discharge. See Kvapil, 752 F.3d at 712. Darrow has acknowledged that Putland read him
the complaint, told him about the comments that he had made about Mexicans, gave
him the opportunity to dispute that evidence, received from him the names of
coworkers who he said could “vouch” for him, and then contacted those employees for
more information.
Moreover, this procedure gave Darrow all the pre-discharge process that he was
due. See Loudermill, 470 U.S. at 546. Darrow argues that, before he was fired, he
deserved a written copy of the charge against him and the chance to cross-examine his
coworkers about their reports. But oral notice, which he received, satisfies due process,
and a full hearing with cross-examination is not required if, as here, the public
employee receives that opportunity after he is fired. See id. at 546–47. Darrow received
that precise opportunity (and more) at the post-discharge hearing before the
Commission: He presented evidence, cross-examined witnesses, including the coworker
who initially reported him, and filed a post-hearing brief. True, he chose not to avail
himself of additional procedures (i.e., appealing that decision in state court), but his
acquiescence does not mean that the process was unavailable.
Finally, Darrow unpersuasively argues that the defendants unlawfully retaliated
against him for comments he made to fellow workers and for filing a complaint about
bullying against an employee “only months” before the University fired him. Public
employers may not discharge employees for protected speech, but the First
Amendment does not protect workplace speech about a “purely private interest.”
Garcetti v. Ceballos, 547 U.S. 410, 419, 421 (2006); Bivens v. Trent, 591 F.3d 555, 561
No. 20-1806 Page 4
(7th Cir. 2010) (citation omitted). Darrow does not offer any evidence that his private
remarks to fellow employees (whether they violated workplace rules or not), or his
complaint that someone at work bullied him, were matters of public, as opposed to
personal, interest. Thus, even if we assume that the defendants fired him because of
those personal matters, Darrow’s claims could not proceed under a First Amendment
theory. See Trent, 591 F.3d at 561. In any event, the record conclusively establishes that
the defendants fired Darrow because he violated a workplace policy, the validity of
which he does not contest, forbidding offensive language.
We have considered Darrow’s remaining arguments, and none has merit.
AFFIRMED