Cygan, Lori v. WI Dept Corrections ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1297
LORI CYGAN,
Plaintiff-Appellant,
v.
WISCONSIN DEPARTMENT OF CORRECTIONS,
JON E. LITSCHER, DANIEL BERTRAND, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 C 4—William C. Griesbach, Judge.
____________
ARGUED SEPTEMBER 8, 2004—DECIDED NOVEMBER 10, 2004
____________
Before BAUER, MANION, and KANNE, Circuit Judges.
BAUER, Circuit Judge. After the termination of her em-
ployment at the Wisconsin Department of Corrections (“DOC”)
facility in Green Bay, plaintiff Lori Cygan filed a lawsuit
against the DOC and various DOC officials under 42 U.S.C.
§ 1983. Cygan alleged that the defendants violated her
constitutional rights by firing her in retaliation for exercis-
ing her First Amendment rights, and by failing to afford her
due process in connection with the termination. Cygan also
advanced a state law retaliation claim. The district court
granted the defendants summary judgment on all three
2 No. 04-1297
theories. Cygan limits her appeal to the district court’s
decision on her First Amendment retaliation claim. We
affirm.
I. Background
Cygan worked for fourteen years as a prison guard at the
Green Bay Correctional Institution (“GBCI”), a maximum-
security facility operated by the Wisconsin DOC. GBCI
houses over 1,040 of Wisconsin’s violent offenders. Cygan
was a second-shift Rotunda Officer at GBCI, responsible for
security of the rotunda, supervising inmate movement,
operating gates leading into the rotunda, and supervising
inmates during the evening meal.
A. Cygan’s Performance at GBCI
Throughout the majority of her tenure at GBCI, Cygan
had positive performance evaluations. However, starting in
1997, various supervisors began to take issue with Cygan’s
job performance. For example, in reviewing Cygan’s perform-
ance from October 1997 through October 1998, Dennis Natzke,
Cygan’s immediate supervisor, wrote:
Officer Cygan has an excellent work ethic. . . . I do have
concern with Officer Cygan and that is her patience
with newer employees. She needs to understand that
everyone has to go through a learning process and they
will not be as efficient as someone who does the same
routine every day will. While she has the ability to teach
these officers I feel she would rather do it herself than
take the time to train. . . . I believe she needs to consider
all other personnel as her equal, which she sometimes
has a problem with when dealing with new officers.
This is a very real concern and I feel she needs to ad-
dress this soon as some officers do not care to work in
the cell hall because of this . . . . She needs to learn to
No. 04-1297 3
become more personable when working with officers
that are not regulars in her work unit.
Robin Rogers, Cygan’s supervisor in 2001, expressed simi-
lar concerns when evaluating Cygan in November 2001.
Rogers wrote that Cygan was not meeting institutional
standards with respect to interpersonal relationships. Rogers
also specifically noted that there had been “several occur-
rences of [Cygan] being discourteous and insensitive to staff
and inmates during this reporting period,” and that “Cygan
did not meet the standards for having sensitivity to others
and their problems, feelings and rights, being courteous and
tactful and to respond positively to constructive criticism
and supervision.”
Defendant Peter Erickson, the security director at GBCI
since 2002, initiated an investigation into Cygan’s behavior
in June 2001 after receiving a complaint about Cygan’s use
of profanity and other derogatory language when referring
to junior officers. During the course of the investigation,
three junior officers confirmed that Cygan had treated them
in an unprofessional manner. After the investigation,
defendant Daniel Bertrand, the Warden of GBCI, directed
Cygan to attend a training on professionalism, and issued
her an official letter of reprimand for violating DOC Work
Rule 13, which prohibits the following conduct:
13. Intimidating, interfering with, harassing (including
sexual or racial harassment), demeaning, or using abu-
sive language in dealing with others.
Cygan was also disciplined twice in October 2001. The
first incident involved a complaint by Health Services Unit
Manager Jeanne Hertel. Hertel complained that Cygan failed
to promptly open a gate to allow Hertel to pass to her de-
stination within the institution. After a pre-disciplinary
interview where Cygan stated that she did not remember
the incident, Warden Bertrand sent Cygan notice that she
was suspended without pay for one day for negligence in
4 No. 04-1297
performing assigned duties. The second incident stemmed
from a complaint that Cygan had made a loud and threaten-
ing comment to an inmate. Cygan admitted that she yelled
at the inmate, but she denied using threats or profanity.
Warden Bertrand suspended Cygan three days without pay
as a result of this incident.
As related above, Warden Bertrand directed Cygan to attend
a training on professionalism after the June 2001 complaint.
Cygan attended the required class, but the class instructor,
a professor from the University of Wisconsin-Milwaukee,
reported that she was disruptive, inattentive, and disrespect-
ful during the class. In an e-mail sent to GBCI, the instructor
stated that Cygan arrived late, talked incessantly, laughed
during the presentation, and slept on the table. Based on the
e-mail from the instructor and corroborating statements
from other class attendees, Warden Bertrand suspended
Cygan without pay for one day.
B. Cygan’s Speech Activities at GBCI
GBCI staff often discussed security issues and other job-
related issues with Deputy Warden Michael Baenen. Cygan
had discussions with Baenen about her perceptions of poor
communication between GBCI staff, low morale, inadequate
training for rookie officers, lack of radios for prison staff,
problems with the prison camera security system, and staff
shortages during meals. Other staff had raised some of the
same concerns with Baenen. Cygan and Officer Chad
Frappier, her union steward, filed grievances regarding staff
shortages during meals, which were denied.
On November 23, 2001, Cygan met with Warden Bertrand
in his office and complained about inadequate training and
staffing at the prison and about the administration’s failure
to repair the security cameras in the South Cell Hall.
On December 25, 2001, a fight broke out between two
inmates in the rotunda area near the cafeteria during the
No. 04-1297 5
second-shift meal. Cygan and three other responding offi-
cers suffered minor injuries while subduing the inmates. In
her report about the incident, Cygan noted that the second-
shift meal started with a shortage of staff, and that similar
incidents could be avoided by “running the shift with
enough officers.”
On January 8, 2002, Cygan was assigned to supervise in-
mates during the evening meal. Defendant Michael Schultz,
a Captain at GBCI, was Cygan’s supervising officer that
night. Although GBCI has a policy that provides, “GBCI will
ensure that a minimum of ten correctional officers are as-
signed to the dining room areas for necessary meal cover-
age,” the evening meal started with fewer than ten officers
on hand.
The parties dispute some of the details regarding Cygan’s
behavior on that night. According to Schultz, Cygan was
upset that the second-shift meal had started without ten
officers present, and she yelled in the presence of other staff,
“This is fucking bullshit. I am sick of this shit.” Schultz tes-
tified that inmates working on the serving line may have
heard Cygan’s complaints. Schultz also heard Cygan yelling
at Officer Frappier in the rotunda area just outside of the
cafeteria. According to Schultz, Cygan was complaining
loudly about officer coverage at meals and about the need
for Frappier to do his job. Frappier was the union represen-
tative and Cygan wanted him to file a grievance regarding
officer coverage at meals. Schultz considered Cygan’s tone
to be loud and profane, and he thought the conduct inap-
propriate and unprofessional. Believing Cygan’s behavior
would stop, Schultz walked toward the dining hall. However,
according to Schultz, Cygan continued to yell and use pro-
fanity, and Schultz confronted Cygan in the rotunda area,
saying, “Officer Cygan, if you want to take Officer Frappier
into a different room and talk to him later, that’s fine. But
this conversation will not happen in the rotunda during
meals.” In response, Cygan yelled, “fine,” and then turned
6 No. 04-1297
to other officers in the rotunda and yelled, “and this is
professional?”
Cygan tells a different story. At a hearing about the in-
cident, Cygan admitted that she was upset about the meal
starting without ten officers present and she acknowledged
raising her voice, but she denied using profanity and denied
acting in an abusive manner. Cygan testified that she said,
“I hate his place” when she learned that the meal was
starting understaffed. In Cygan’s view, it was Schultz who
acted unprofessionally by yelling at her within inches of her
face in front of other officers. Cygan also admitted that she
urged Frappier to file a grievance because “GBCI does not
seem to care about our safety.” Frappier largely corrobo-
rated Cygan’s story.
On January 21, 2002, a boiler broke down at the prison
and inmates became upset when they learned that they
would not have showers that evening. On January 22, 2002,
about fifty inmates dumped their dirty laundry on the
sergeant’s desk during the noon hour. A fight subsequently
broke out between inmates and officers, and eight officers
were taken to the hospital for treatment. During the second
shift on January 22, Cygan told Deputy Warden Baenen
that she thought that Captain Schultz had mishandled the
shower situation and the subsequent disturbance. Cygan
also told Baenen that Security Director Erickson had stayed
in his office during the disturbance and failed to check on the
situation. Baenen later discussed the issues with Erickson
and Schultz.
On January 29, 2002, defendant Jon Litscher, the Secretary
of the DOC, met with staff at GBCI to discuss the January
22 disturbance. While Secretary Litscher was touring the
facility with Warden Bertrand, Cygan asked Litscher if she
could speak to him alone. Litscher agreed, and Cygan and
two other officers told him that they were concerned about
the security issues at the prison that Warden Bertrand had
No. 04-1297 7
not adequately addressed. Cygan handed him a list of
concerns that had been compiled by second-shift officers,
which included short-staffing at meals, malfunctioning se-
curity cameras, and low morale among front-line staff.
Secretary Litscher spoke to a number of GBCI employees
on January 29, 2002, including Officer Patricia Janus. Janus
spoke to Litscher about various work-related concerns and,
like Cygan, gave Litscher a written list of concerns. Janus
was not terminated or disciplined in any way for her speech;
she is still employed at GBCI.
Baenen and Cygan had a discussion on January 30, 2002,
in the lobby at GBCI. According to Cygan, Baenen told her,
“there is a target on your back and it is getting bigger every-
day.” Baenen also told her that she would not have so much
trouble if she could learn to keep her mouth shut. When
asked about the conversation in his deposition, Baenen said
that he could not remember his exact words, but that he
wanted to warn Cygan “to be more careful about how you
interact with people.”
C. Termination of Cygan’s Employment
On January 16, 2002, defendant Brad Nuss, the GBCI
Human Resources Director, sent a memorandum requesting
Cygan’s termination to the DOC employment relations
specialist in Madison, Wisconsin. The memorandum pro-
vided:
We are requesting approval to terminate Officer Lori
Cygan. . . . She is a long-term officer whose performance
has deteriorated significantly in the past year. Officer
Cygan has a history of directing abusive, demeaning,
and derogatory language at coworkers and inmates.
The memorandum then detailed a series of incidents and
disciplinary actions taken against Cygan, and stated that
“[Cygan] has shown absolutely no willingness to change”
8 No. 04-1297
despite the discipline.
On February 5, 2002, Cindy O’Donnell, the Deputy
Secretary of the DOC, reviewed GBCI’s termination recom-
mendation and gave her approval to terminate Cygan.
O’Donnell, who receives approximately twenty such recom-
mendations each month, never discussed the Cygan termi-
nation with Secretary Litscher nor did O’Donnell and Litscher
discuss Cygan’s performance or employment at GBCI.
On February 6, 2002, Warden Bertrand sent Cygan
notification that her employment was terminated effective
immediately. In the termination letter, Bertrand informed
Cygan that she was terminated due to her repeated viola-
tions of Work Rule 13 (which prohibits intimidating, abusive,
and demeaning behavior). The letter specifically mentioned
five incidents where Cygan had violated Work Rule 13 or
other DOC rules, and noted that her behavior had resulted
in three suspensions and a written reprimand.
D. Cygan’s Federal Lawsuit
Cygan challenged the constitutionality of her dismissal by
filing a federal lawsuit under 42 U.S.C. § 1983 in January
2003, advancing a First Amendment retaliation claim, a
due process claim, and a state law retaliation claim. The
district court disposed of all three claims at the summary
judgment stage. Cygan appeals only the court’s ruling on
her First Amendment claim. With regard to this claim, the
district court observed that Cygan’s affidavit lacked speci-
ficity about her complaints, but concluded for purposes of
summary judgment that her speech addressed matters of
public concern. The court then ruled that Cygan failed to
prove causation or show pretext, and granted summary
judgment.
No. 04-1297 9
II. Discussion
A. Standard of Review
We review de novo the district court’s decision to grant
summary judgment. Wainscott v. Henry, 315 F.3d 844, 848
(7th Cir. 2003). Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and ad-
missions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.” FED. R. CIV. P. 56(c). We may affirm the district
court on any basis supported by the record. Aviles v. Cornell
Forge Co., 183 F.3d 598, 603 (7th Cir. 1999).
B. First Amendment
Individuals do not relinquish their First Amendment rights
to free speech by accepting employment with the government.
See Pickering v. Bd. of Educ. of Township High Sch. Dist.,
391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed. 2d (1968). Never-
theless, the government as an employer has an interest in
conducting its affairs as efficiently and effectively as pos-
sible. Waters v. Churchill, 511 U.S. 661, 675, 114 S.Ct. 1878,
128 L.Ed.2d 686 (1994). As a consequence, public employees
do not have the unfettered right to express themselves on
matters related to their official responsibilities, and courts
must give due weight to the government’s interest in effi-
cient employment decisionmaking when evaluating First
Amendment retaliation claims. Id.In analyzing a First Amendment retaliation claim brought
under § 1983, we apply a three-step test premised on the
Supreme Court’s decisions in Pickering, Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568,
50 L.Ed. 2d 471 (1977), and Connick v. Myers, 461 U.S. 138,
103 S.Ct. 1684, 75 L.Ed 2d 708 (1983). First, we must deter-
mine whether the plaintiff’s speech was constitutionally
10 No. 04-1297
protected. Second, the plaintiff must establish that the
speech was a substantial or motivating factor in her ter-
mination. Third, defendants then have the opportunity to
show that the plaintiff would have been fired even in the
absence of the protected speech. Sullivan v. Ramirez, 360
F.3d 692, 697 (7th Cir. 2004).
At the outset, we identify the instances of speech at issue
in order to evaluate their protected status under the First
Amendment. Cygan’s speech distills into six categories: (1)
the general complaints to Deputy Warden Baenen about low
morale, poor communication, inadequate training for rookie
officers, lack of radios for prison staff, problems with the
prison camera security system, and staff shortages during
meals; (2) the November 23, 2001, meeting with Warden
Bertrand where Cygan commented on inadequate training
and staffing at the prison and the failure to repair security
cameras in the South Cell Hall; (3) Cygan’s report after the
December 25, 2001, fight in the cafeteria; (4) the January 8,
2002, incident during the evening meal; (5) Cygan’s conver-
sation with Deputy Warden Baenen on January 22, 2002,
where she criticized how Schultz handled a prisoner disturb-
ance the day before; and (6) Cygan’s January 29, 2002,
written list of concerns and comments to Secretary Litscher.
We analyze each instance of speech separately to determine
its protected status. Wright v. Ill. Dept. of Children &
Family Servs., 40 F.3d 1492, 1499 (7th Cir. 1994).
However, it is only necessary to analyze the speech for
which Cygan was terminated. Wright, 40 F.3d at 1501. Al-
though Cygan mentions other instances of speech when dis-
cussing the facts, she focuses almost entirely on the events
of January 8, 2002, in her analysis section. Notably, Cygan
fails to provide any evidence of a causal link between the first
three instances of speech listed above and her termination.
While those instances of speech may provide relevant
background information in this case, the complete absence
of evidence linking those speech activities to Cygan’s termi-
No. 04-1297 11
nation renders it unnecessary to analyze their protected
status. See Wright, 40 F.3d at 1501 (noting that courts need
not analyze instances of speech under the First Amendment
unless the plaintiff adequately links the speech to punish-
ment meted out by defendant). At any rate, many of the
topics covered in her litany of complaints strike us as
relatively mundane concerns raised by a disgruntled public
employee, rather than issues of public concern worthy of
First Amendment protection.
We are thus left with the task of evaluating Cygan’s speech
on January 8, January 22, and January 29, 2002. In eval-
uating whether speech is constitutionally protected, we apply
the two-step Connick-Pickering test. Wainscott, 315 F.3d at
848. First, under Connick, we determine whether the em-
ployee spoke as a citizen upon matters of public concern.
Connick, 461 U.S. at 147. Second, if the employee spoke on
a matter of public concern, we apply the Pickering balanc-
ing test, balancing the employee’s interest in commenting
upon such matters and the employer’s interest in efficient
public services. Pickering, 391 U.S. at 568.
When determining whether speech addresses a matter of
public concern, we consider “the content, form, and context
of a given statement, as revealed by the whole record.”
Connick, 461 U.S. at 147-48. Of those three factors, content
is the most important. Wright, 40 F.3d at 1501. In addition,
an employee’s choice of forum and motivation for speaking
are also relevant considerations. Id. At bottom, we must
decide whether the speech is most accurately characterized
as an employee grievance, or as a matter of political, social,
or other concern to the community. Connick, 461 U.S. at
146-47. With these standards in mind, we turn to the
specifics of Cygan’s speech on January 8, January 22, and
January 29, 2002.
12 No. 04-1297
1. Cygan’s Speech on January 8
a. Matter of Public Concern
The parties dispute the circumstances surrounding Cygan’s
speech activities on January 8, 2002. Under Waters, we ap-
ply the Connick-Pickering test to the facts as the government
employer found them to be, as long as the government’s con-
clusion about the facts was reasonable. Waters, 511 U.S. at
676-77 (noting that if it were otherwise and the Connick-
Pickering test was applied to the facts determined by a ju-
dicial factfinder, government employers would be forced “to
come to its factual conclusions through procedures that
substantially mirror the evidentiary rules used in court.”).
So, as a preliminary matter, we must decide whether GBCI
management’s view of the events on January 8 was rea-
sonable.
After conducting an investigation into the January 8 in-
cident, GBCI management concluded that Cygan violated
Work Rule 13’s prohibition on the use of demeaning and
abusive language in dealing with others. In reaching their
conclusion, defendants credited Captain Schultz’s statement
over the statements of Cygan and Frappier. According to
Schultz, Cygan was upset that the second-shift meal started
without ten officers present, and she complained in a loud,
profane, and unprofessional manner in the presence of staff
and inmates. Schultz confronted her and told her not to have
that conversation with Frappier during the meal. Cygan,
with corroborating testimony from Frappier, denied using
profanity or acting in an abusive manner and faulted
Schultz for acting unprofessionally and causing a scene.
After receiving a disciplinary report about the incident
from Schultz, a pre-disciplinary meeting was held with
Cygan, her union representative, and a GBCI management
representative. Cygan was permitted to tell her side of the
story at the meeting, during which she admitted to yelling
but denied using profanity. Defendants were aware of nu-
No. 04-1297 13
merous previous complaints from different sources against
Cygan for directing profane and derogatory language at both
officers and inmates, and defendants knew that Cygan had
denied using profane or abusive language after past com-
plaints. This knowledge of Cygan’s abusive behavior in the
past, buttressed by their consideration of Captain Schultz’s
eyewitness statement and any insight gained from the face-
to-face meeting with Cygan, provided GBCI management
with a reasonable basis to credit Schultz’s version of the
events and discredit portions of Cygan and Frappier’s state-
ments. See Waters, 511 U.S. at 679 (explaining that courts
will accept the employer’s credibility determinations as long
as they are reasonable and the employer used the care that
a reasonable manager would use before making the deter-
minations). We conclude that GBCI’s findings about the
events on January 8 were reasonable.
Applying the Connick test to defendants’ version of the
events on January 8, we conclude that Cygan’s speech
touched on matters of public concern. As we discussed above,
content is the most important factor, and it is undisputed
that Cygan was expressing her disagreement with Schultz’s
decision to start the second-shift meal with fewer than ten
officers, which implicates prison security issues. Even though
Cygan could be accurately characterized as a disgruntled
employee and her speech may have been partially moti-
vated by her dissatisfaction at GBCI and by concerns for
her personal safety, speech touching on issues of internal
prison security in a maximum security prison like GBCI is
undoubtedly a matter of public concern. See Spiegla v. Hull,
371 F.3d 928, 936 (7th Cir. 2004).
We wish to emphasize, as we did in Spiegla, that not every
prison employee complaint is a matter of constitutional
magnitude. Spiegla, 371 F.3d at 936. As explained by the
Supreme Court in Connick, government employee speech tied
up in personal grievances or internal office affairs does not
fall within the ambit of “public concern.” Connick, 461 U.S.
14 No. 04-1297
at 148. In this case, Cygan’s speech on January 8 brought
attention to a staffing issue that had the potential to com-
promise prison security. Indeed, Cygan and other officers
had suffered injuries a month earlier during an inmate fight
in the cafeteria after the meal started with fewer than ten
officers. These unique circumstances distinguish Cygan’s
January 8 speech from the type of mundane complaints
about internal office policies at issue in cases like Connick.
Having concluded that Cygan raised a matter of public con-
cern, we will now analyze the speech under the Pickering
balancing test.
b. Balancing of Interests
Under Pickering, we balance the employee’s interest in
commenting upon such matters and the employer’s interest
in efficient public services. Pickering, 391 U.S. at 568. One
very important consideration is the “potential disruptive-
ness” of the speech. Waters, 511 U.S. at 681-82. Courts also
consider whether the employment relationship is one in
which personal loyalty and confidence are necessary, and
the time, place, and manner of the speech. Wainscott, 315
F.3d at 851.
The time, place, and manner of Cygan’s speech and its
potential disruptiveness weigh heavily against her. In the
cafeteria and rotunda of a maximum security prison that
houses 1,040 of Wisconsin’s violent offenders, Cygan yelled
and swore about the evening meal starting with insufficient
officer coverage. Both staff and inmates were present
during Cygan’s angry outburst. GBCI, as a correctional fa-
cility, has a very strong interest in maintaining order and
control over inmates, and Cygan’s decision to announce the
shortage of staff in the presence of inmates could have
endangered both staff and inmates by exposing them to
opportunistic acts of violence.
Cygan’s loud and profane complaints also serve to under-
mine the authority of Captain Schultz in the presence of
No. 04-1297 15
other officers and inmates. Correctional facilities, like police
departments, are managed like military organizations, and
respecting the authority of supervising officers is essential,
especially in the presence of the inmates where a united
front is crucial. That type of environment demands a high
degree of personal loyalty and confidence, and Cygan’s angry
protestation of a supervising officer’s decision in front of
inmates and officers was ill-advised and unacceptable.
In fairness to Cygan, we must acknowledge that she had
raised her concerns about short staffing through appropri-
ate avenues on other occasions. However, her frustration
with the situation did not justify a profanity-laced fit about
short staffing within earshot of inmates and staff. In her
anger, she could have caused the very danger she was ap-
parently seeking to avoid through her complaints. This epi-
sode, on the heels of similar incidents and apparently
unheeded disciplinary measures, could certainly cause GBCI
to doubt Cygan’s future effectiveness. As a matter of law,
this potential disruptiveness outweighs whatever First
Amendment value Cygan’s January 8 speech might have
had.
2. Cygan’s Speech on January 22 and 29
Neither the district court nor the parties separately anal-
yze whether Cygan’s speech on January 22 or January 29
was constitutionally protected, and Cygan focuses her
arguments almost entirely on the January 8 incident. The
district court assumed for purposes of summary judgment
that Cygan’s speech, to the extent that it touched on issues
of prison security and safety, was constitutionally protected,
and then proceeded to grant defendants summary judgment
on the basis of causation. Like the district court, we will
assume arguendo that Cygan’s speech on January 22 and
29 was constitutionally protected, and proceed to the
causation prong because it is dispositive.
16 No. 04-1297
Under the framework announced by the Supreme Court
in Doyle, Cygan must establish that her constitutionally
protected speech on January 22 and 29 was a substantial or
motivating factor in the defendants’ decision to terminate her
employment. Doyle, 429 U.S. at 287; Spiegla, 371 F.3d at
941 (clarifying that plaintiffs do not need to prove “but-for
causation” to carry their burden on causation in First
Amendment retaliation cases). If Cygan carries that burden,
then defendants would have the burden of showing that she
would have been fired even in the absence of the protected
conduct. In this case, we need not reach that step because
we conclude that Cygan failed to establish that her speech
on January 22 and 29 was a substantial or motivating
factor in her termination. To support her burden, Cygan
relies on inferences drawn from the short time between her
speech of January 22 and 29 and her termination, and on
Deputy Warden Baenen’s comments to her on January 30.
To put Cygan’s arguments into context, we begin our
analysis by reviewing the relevant evidence on causation.
On January 16, 2002, GBCI management requested the
DOC’s approval to terminate Cygan because her performance
had “deteriorated significantly in the past year” and due to
Cygan’s “history of directing abusive, demeaning, and derog-
atory language at coworkers and inmates.” The DOC ap-
proved Cygan’s termination on February 5, 2002, and Warden
Bertrand notified Cygan of her termination the following
day. Cygan’s termination letter stated that she was fired for
her repeated violations of DOC Work Rule 13, which
prohibits demeaning and abusive language in dealing with
others. The termination letter specifically mentioned five
incidents where Cygan had violated Work Rule 13, and
noted that her behavior had resulted in three suspensions
and a written reprimand.
The two instances of speech under consideration occurred
in January 2002, shortly before Cygan was terminated. First,
on January 22, 2002, Cygan told Deputy Warden Baenen
No. 04-1297 17
that Captain Schultz had mishandled and aggravated a
prisoner disturbance that stemmed from the prisoners’
anger about a temporary lack of showers at GBCI. Cygan
also told Baenen that Security Director Erickson had stayed
in his office during the disturbance and failed to check on
the situation. Second, on January 29, 2002, Cygan informed
DOC Secretary Litscher that she and other officers were
concerned about security issues at the prison and gave him
a list of their concerns. The concerns included short-staffing
of meals, malfunctioning of security cameras, and low
morale among front-line staff. On January 30, 2002, Deputy
Warden Baenen told Cygan that there was a target on her
back, and advised her to keep her mouth shut.
As mentioned above, Cygan attempts to create a jury issue
on causation based on the fact that she was terminated
shortly after her late January speech activities. However,
“we typically [do not] draw strong conclusions from the mere
fact that protected speech may have preceded an adverse
employment action.” Wright, 40 F.3d at 1500. This is es-
pecially true in a case where the employee has a documented
history of abusive and inappropriate behavior at work. See
Trnka v. Local Union No. 688, 30 F.3d 60, 63 (7th Cir. 1994)
(“To stave off summary judgment in a case where innocent
or multiple explanations for a defendant’s actions abound
a plaintiff must rely on more than post hoc, propter hoc
reasoning.”). As the district judge observed in his thorough
analysis of the causation prong, what stands out about this
case is that the complaints about Cygan come from so many
different sources. At least four different supervisors initi-
ated complaints against Cygan or formally criticized her
inappropriate behavior between 1997 and 2002. In addition,
during 2001, GBCI management disciplined Cygan based on
complaints lodged by a university professor at a profession-
alism course and a health services manager, two individuals
who surely did not have an ax to grind with Cygan. In light
of the uncontradicted record of Cygan’s increasingly disrup-
18 No. 04-1297
tive behavior at GBCI, it would be inappropriate to attach
significant weight to Cygan’s post hoc ergo propter hoc
reasoning.
The only other evidence Cygan offers on causation is her
conversation with Deputy Warden Baenen on January 30.
According to Cygan, Baenen told her that there was a target
on her back, and that she needed to learn to keep her mouth
shut. Baenen acknowledged having a conversation with
Cygan on January 30, but testified that he could not remem-
ber the exact words he used that day. Baenen, who was a
friend of Cygan, said that he wanted to warn Cygan “to be
more careful about how you interact with people.” In Cygan’s
view, Baenen’s directive was aimed at the substance of her
complaints, not her manner of expressing them. In essence,
Cygan claims that Baenen was warning her to keep silent
on prison security and safety issues.
Cygan’s interpretation of the conversation seems implau-
sible in the context of this case. First, Cygan and other offi-
cers had raised the same concerns on prior occasions and she
has not presented any evidence that her prior complaints
led to any disciplinary action. Second, Officer Janus also
spoke with Secretary Litscher on January 29 and gave him
a sealed envelope with a list of concerns, and she was not
terminated or disciplined in any way, and continues to work
at GBCI. Third, Cygan had a well-established track record
of using profane and abusive language with inmates and
officers alike. Given these circumstances, it is difficult to
escape the conclusion that Baenen’s advice on January 30
was directed at Cygan’s consistently inappropriate manner
of interacting with others, rather than the substance of her
speech. Like the district court, we conclude that no rea-
sonable jury could find that Cygan’s speech activities on
January 22 and 29 were a substantial factor in her termina-
tion.
No. 04-1297 19
C. Qualified Immunity
Defendants also argue that they are entitled to qualified
immunity because they did not personally participate in any
constitutional deprivation. Since the complaint has failed,
we need not determine whether defendants were entitled to
qualified immunity.
III. Conclusion
For the reasons stated herein, we AFFIRM the decision of
the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-10-04