Amy Harnishfeger v. United States ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1865
AMY HARNISHFEGER,
Plaintiff‐Appellant,
v.
UNITED STATES OF AMERICA, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16‐cv‐03035‐TWP‐DLP — Tanya Walton Pratt, Judge.
____________________
ARGUED NOVEMBER 28, 2018 — DECIDED DECEMBER 3, 2019
____________________
Before ROVNER, HAMILTON, and BRENNAN, Circuit Judges.
HAMILTON, Circuit Judge. This appeal deals with First
Amendment protection for public employees when they en‐
gage in speech that is not related or tied to their work. Plaintiff
Amy Harnishfeger authored a short book, published under a
pseudonym, about her time as a phone‐sex operator called
Conversations with Monsters: 5 Chilling, Depraved and Deviant
Phone Sex Conversations. A month after publishing Conversa‐
tions, Harnishfeger began what was to have been a one‐year
2 No. 18‐1865
stint with the Indiana Army National Guard as a member of
the Volunteers in Service to America (VISTA) program, a fed‐
eral antipoverty program administered by the Corporation
for National and Community Service (CNCS).
But when Harnishfeger’s National Guard supervisor dis‐
covered Conversations and identified Harnishfeger as its au‐
thor, she demanded that CNCS remove Harnishfeger from
her position. CNCS complied. Harnishfeger was unable to
find another suitable placement for the remainder of her
VISTA service, so, three months after she started, CNCS cut
her from the program entirely. Harnishfeger filed this suit al‐
leging violations of her rights under the First Amendment
and the Administrative Procedure Act (APA). The district
court granted the defendants’ motions for summary judg‐
ment. Harnishfeger v. United States, 2018 WL 1532691 (S.D. Ind.
March 29, 2018). Harnishfeger appeals.
We reverse in part and affirm in part. Conversations with
Monsters is clearly protected speech, and on this record, a jury
could find that Harnishfeger’s National Guard supervisor,
Lieutenant Colonel Lisa Kopczynski, infringed her free‐
speech rights by removing her from her placement because of
it. We find no basis, however, for holding CNCS or its em‐
ployees liable, so we affirm the judgment in favor of the fed‐
eral defendants.
I. Factual Background
A. Conversations with Monsters
Because this appeal is from a grant of summary judgment,
we state the facts and the inferences from them in the light
most favorable to Harnishfeger. A little more than a decade
ago, Harnishfeger found herself unemployed and
No. 18‐1865 3
“disgruntled with the thought of working for ‘the man’ any
longer,” as she wrote in the introduction to Conversations. She
decided to try phone‐sex work, but quickly discovered it was
not the “flirty fun” the phone‐sex industry held it out to be.
Harnishfeger was horrified to hear what some of the callers
would fantasize to her about, including sexual abuse of chil‐
dren.
These “vile, unrepentant, disgusting poor excuses for
men” (and one woman) are the “monsters” of whom she
wrote in Conversations. Harnishfeger did not mince words: “if
you’re getting off at the thought of hurting a child . . . , there
is something clearly unfit for this world in you and you need
to end things once and for all.” Conversations recounted five of
Harnishfeger’s most horrifying phone‐sex calls and medi‐
tated on the social role of phone‐sex operators and on her own
experiences as one of them.
Harnishfeger published Conversations with Monsters in
May 2016 by making it available for sale in electronic form on
Amazon, an online marketplace. On June 2, 2016 Harnish‐
feger announced publication of her book on her page on Face‐
book, a social networking website, with a link to the book’s
page on Amazon. Harnishfeger’s Facebook page was “set to
private,” meaning that only Facebook users whom Harnish‐
feger designated as her “friends” could view what she posted
there. Others viewing Harnishfeger’s Facebook page would
see only very general information about her.
Because Conversations was published pseudonymously,
only Harnishfeger’s Facebook “friends” could tie her to it.
Even they, however, would have had to do a bit of hunting to
find a reference to it unless they had seen the publication an‐
nouncement soon after it was posted. A Facebook user’s posts
4 No. 18‐1865
appear on her page chronologically from most recent to least
recent, so Harnishfeger’s “quite frequent” Facebook activity
would have buried the publication announcement under flur‐
ries of more recent posts “as little as a week or two” after it
was made.
B. VISTA
Shortly after publishing Conversations with Monsters,
Harnishfeger was selected to participate in the VISTA pro‐
gram. The VISTA program is a part of AmeriCorps, a federal
network of hundreds of programs across the nation. It is
sometimes called “the domestic Peace Corps.” VISTA mem‐
bers serve full‐time for a year at non‐profit organizations or
local government agencies to help them carry out programs
to alleviate poverty. AmeriCorps is administered by CNCS, a
federal agency that leads service, volunteering, and grant‐
making efforts in the United States.1
Prospective VISTA members apply directly to CNCS. If se‐
lected to participate in the program, members apply sepa‐
rately to work with a sponsoring organization pre‐approved
by CNCS. In Indiana, for example, the twenty‐three organiza‐
tions approved for VISTA sponsorship in 2016 included vari‐
ous charities, the Indianapolis Public Schools, and the Indiana
Army National Guard. VISTA members/volunteers do not
1 See AmeriCorps FAQs, CNCS, https://www.national‐
service.gov/programs/americorps/americorps‐faqs (last visited Dec. 3,
2019); AmeriCorps VISTA FAQs, CNCS, https://nationalservice.gov/pro‐
grams/americorps/americorps‐programs/americorps‐vista/americorps‐
vista‐faqs (last visited Dec. 3, 2019); About CNCS, https://www.national‐
service.gov/about (last visited Dec. 3, 2019).
No. 18‐1865 5
receive a salary, but they do receive a number of benefits, in‐
cluding a small monthly living allowance.
C. Harnishfeger’s Short VISTA Career
Harnishfeger had applied to and been accepted by CNCS
as a VISTA volunteer sponsored by the Indiana Army Na‐
tional Guard. She began her VISTA service with the Guard’s
Family Program Office in Indianapolis on June 24, 2016.
Harnishfeger was responsible for maintaining a database of
information on service providers to whom veterans and their
families could turn for help. Much of the underlying infor‐
mation had already been gathered by the Guard’s previous
VISTA volunteer. If it had not been, Harnishfeger would
glean the information herself from public sources. She would
then enter it into the database. The information was made
publicly available on the Guard’s website.
Occasionally—perhaps a dozen times over the course of
three months—Harnishfeger was unable to find an item of in‐
formation she needed, such as a service provider’s telephone
number or physical address. In those cases, Harnishfeger con‐
tacted the service provider directly, usually by telephone or
email.
In two cases, Harnishfeger could find no contact infor‐
mation for the service provider at all, so, using her own Face‐
book account, she posted a comment to the provider’s Face‐
book page asking for the information she needed. For exam‐
ple, on August 26, she posted a message to the Facebook page
of an organization called PACT—Hoosier Hills asking for an
office email address. The comment identified Harnishfeger as
a “VISTA volunteer.”
6 No. 18‐1865
To post these comments requesting information, Harnish‐
feger was not required to, and did not, designate the service
providers as her Facebook “friends.” Because her Facebook
account was private, neither the provider’s Facebook account
manager nor any other members of the public viewing her
comments were able to view Harnishfeger’s posts to her own
Facebook page, including her earlier post about Conversations.
During her three months of VISTA service with the Guard,
these dozen contacts were the only occasions on which
Harnishfeger interacted with members of the public on the
Guard’s behalf. Otherwise, she sat at a computer and entered
data. She performed her duties to the Guard’s satisfaction.
D. Harnishfeger’s Termination from VISTA
That likely would have been the story of Harnishfeger’s
entire year with the Guard. But then Noelle Butler, Harnish‐
feger’s direct supervisor, asked to become her Facebook
“friend.” Harnishfeger felt she could not reject this request
from her quasi‐employer. She accepted Butler’s “friend re‐
quest” and thereby gave Butler access to all of her “friends‐
only” Facebook activity.
In mid‐ to late September, Butler explored Harnishfeger’s
Facebook history deeply enough—through “many dozens, if
not hundreds” of posts—to come upon her post of June 2 an‐
nouncing the publication of Conversations with Monsters. Over
her lunch break one day, “[o]ut of curiosity about this bizarre
title,” Butler and another Guard employee followed the Ama‐
zon link and purchased a copy of the book. On September 27,
Butler and the other employee brought the book’s contents to
the attention of Lieutenant Colonel Lisa Kopczynski, the
Guard’s State Family Program Director.
No. 18‐1865 7
On September 28, Lt. Col. Kopczynski wrote a letter to
Emily Kubiszewski, a State Program Officer for CNCS who
was Harnishfeger’s point of contact with the VISTA program.
Kopczynski requested that Harnishfeger be removed from the
VISTA placement or be terminated early for cause. Referring
to Conversations, Kopczynski explained that “activities and
conduct found” on Harnishfeger’s Facebook page did not “fa‐
vorably represent” the Guard’s Family Program Office.
The next day, September 29, Harnishfeger met with Butler
and Kopczynski. Kopczynski told her that Conversations with
Monsters was “really horrible,” that she was not presenting
the Guard “in a favorable light,” and that the Guard could not
“have anyone find out about” her authorship of Conversations.
Harnishfeger would therefore be removed from her VISTA
placement with the Guard.
The same day, Harnishfeger received a letter from Louis
Lopez, Indiana State Program Director for CNCS, informing
her that she had been removed from her VISTA placement
and put on “Administrative Hold status” for up to 30 days,
effective immediately. A week or so later, in early October,
Kubiszewski told Harnishfeger that, although she would not
be readmitted to her placement with the Guard, if she deac‐
tivated her Facebook account, she would be permitted to seek
another sponsor where she could complete her term of VISTA
service. Harnishfeger accordingly deactivated her account.
On October 6, Kubiszewski sent Harnishfeger a letter
spelling out her prospects with the VISTA program. She gave
Harnishfeger a list of approved VISTA sponsors in Indiana
and nineteen days, until October 25, to find a new sponsor. If
Harnishfeger could not secure reassignment before October
8 No. 18‐1865
25, her VISTA participation would be terminated entirely, ef‐
fective October 26.
Harnishfeger contacted five of the twenty‐two potential
sponsors available to her. One responded, but it was too far
from Indianapolis to be feasible on Harnishfeger’s limited
means. Harnishfeger thus failed to secure reassignment by
the October 25 deadline. On that day, she received a second
letter from Lopez informing her that her VISTA membership
had been finally terminated “for lack of suitable assignment.”
E. This Lawsuit
Within two weeks, Harnishfeger sued Lopez, Ku‐
biszewski, Kopczynski, and Butler in their personal and offi‐
cial capacities, as well as the United States government, for
violating her rights under the First and Fourteenth Amend‐
ments and the Administrative Procedure Act, 5 U.S.C. § 706.
The district court had jurisdiction of the case under 28 U.S.C.
§ 1331 and § 1346.
The personal‐capacity defendants (except Butler, who was
later dismissed on Harnishfeger’s motion) moved to dismiss
the complaint. The United States, as a named defendant and
as the real target of official‐capacity claims against federal ac‐
tors, Hafer v. Melo, 502 U.S. 21, 25–26 (1991), moved separately
to dismiss the complaint or in the alternative for summary
judgment. After converting the defendants’ motions to dis‐
miss to motions for summary judgment, see Fed. R. Civ. P.
12(d), the district court granted the defendants’ motions and
entered final judgment in the defendants’ favor.
II. Analysis
Because the district court converted the defendants’ mo‐
tions to dismiss to motions for summary judgment, we apply
No. 18‐1865 9
the standard of review for grants of summary judgment.
Washington v. Summerville, 127 F.3d 552, 557 (7th Cir. 1997). On
the record before us, a reasonable jury could conclude that
Lieutenant Colonel Kopczynski violated Harnishfeger’s con‐
stitutional rights. Harnishfeger has a claim under 42 U.S.C.
§ 1983 against Kopczynski as a state actor, and Kopczynski is
not entitled to qualified immunity. We therefore reverse the
judgment as to Kopczynski. By contrast, Harnishfeger failed
to show a triable issue as to whether any federal defendant is
responsible for a violation of her rights under the First
Amendment or the APA. We affirm the judgment in their fa‐
vor.
A. First Amendment Claim Against Lt. Col. Kopczynski
1. First Amendment Merits
We begin with the First Amendment merits before turning
to questions of Lieutenant Colonel Kopczynski’s personal lia‐
bility. To prove a First Amendment retaliation claim, a public
employee must establish three elements: first, that she en‐
gaged in constitutionally protected speech; second, that she
suffered a deprivation likely to deter protected speech; and
third, that her protected speech was a motivating factor in the
deprivation and ultimately, if the public employer cannot
show it would have inflicted the deprivation anyway, its but‐
for cause. See Graber v. Clarke, 763 F.3d 888, 894–95 (7th Cir.
2014); Greene v. Doruff, 660 F.3d 975, 977–80 (7th Cir. 2011)
(collecting causation cases); Massey v. Johnson, 457 F.3d 711,
716 (7th Cir. 2006). The first element—constitutionally pro‐
tected speech— is the nub of this appeal; the second and third
are uncontested as to Kopczynski.
10 No. 18‐1865
Whether a public employee’s speech is constitutionally
protected is a question of law, “even though it may . . . re‐
quire[] predicate factual determinations.” Gustafson v. Jones,
290 F.3d 895, 906 (7th Cir. 2002). For clarity, we note that “con‐
stitutionally protected speech” has two different meanings in
the doctrine. A public employee ultimately satisfies the pro‐
tected‐speech element of a retaliation claim by prevailing in
the balance of employee and employer interests required by
Pickering v. Board of Education, 391 U.S. 563 (1968). Our discus‐
sion immediately below focuses on the threshold question
whether Harnishfeger’s speech was constitutionally pro‐
tected in the sense that the court needs to engage in Pickering
balancing at all. We conclude that Conversations with Monsters
was protected in both senses.
a. Conversations Is Protected Under NTEU
There are at least two routes to Pickering balancing. See
City of San Diego v. Roe, 543 U.S. 77, 80 (2004). The better tra‐
veled leads across the double threshold established by Con‐
nick v. Myers, 461 U.S. 138 (1983), and Garcetti v. Ceballos,
547 U.S. 410 (2006). The employee must show under Garcetti
that she spoke as a citizen rather than an employee, 547 U.S.
at 418, and under Connick that she spoke on a matter of public
concern rather than “matters only of personal interest.”
461 U.S. at 147.
When the employee’s speech is neither at work nor about
work, however, a different path to Pickering is available under
United States v. National Treasury Employees Union, 513 U.S. 454(1995) (“NTEU”), largely anticipated in this circuit by Eber‐
hardt v. O’Malley, 17 F.3d 1023 (7th Cir. 1994). In NTEU, the
Court struck down a federal law that prohibited federal em‐
ployees from receiving honoraria for writing and speaking on
No. 18‐1865 11
matters unrelated to their official duties. The NTEU record in‐
cluded examples such as a mail handler who was paid for lec‐
turing on Quaker history, an aerospace engineer who was
paid for lecturing on African American history, and a biolo‐
gist who earned money by writing and speaking about dance
performances. 513 U.S. at 461. Justice Stevens’s opinion for the
Court also reminded readers that authors Nathaniel Haw‐
thorne, Herman Melville, Walt Whitman, and Bret Harte had
all published (and been paid for) their famous works while
employed by various federal agencies. Id. at 464–65.
The key issues under NTEU are whether the employee’s
speech is “made outside the workplace,” id. at 466; “involve[s]
content largely unrelated to [her] government employment,”
id.; and is “addressed to a public audience,” id., or, what
amounts to the same thing, involves “any matter for which
there is potentially a public.” Eberhardt, 17 F.3d at 1026 (reject‐
ing pre‐ and post‐publication distinction). If the employee
shows these elements, and if the employer cannot show the
employee’s speech was linked by her “deliberate steps” to the
employer’s mission, purpose, or image, see Roe, 543 U.S. at 81,
then NTEU, not Connick, controls, and Pickering balancing ap‐
plies.
While Conversations may satisfy Connick as citizen speech
on a matter of public concern, NTEU offers the easier and
clearer path to decision. Harnishfeger’s book was written and
published a month before she began her VISTA service. Its
content is entirely unrelated to CNCS, VISTA, and the Guard.
It was written for a general audience on the personal experi‐
ences of sex workers and their social role, matters for which
there is undoubtedly a public. Harnishfeger never
12 No. 18‐1865
deliberately linked the book to her VISTA service, which had
not even begun at the time of publication.
Defendants try to distinguish NTEU by citing Roe and our
decision in Craig v. Rich Township High School District 227,
736 F.3d 1110 (7th Cir. 2013), arguing that Harnishfeger delib‐
erately linked Conversations with Monsters to her VISTA ser‐
vice by “promoting [the book] on her Facebook page, where
she held herself out as an employee of the Indiana National
Guard and which she used to contact local family‐services or‐
ganizations on behalf of the Guard.” This argument distorts
the record and fails to give plaintiff the benefit of conflicting
evidence and favorable inferences from the evidence.
The plaintiff in Roe was a San Diego police officer who sold
videos of himself on an online marketplace, stripping and
masturbating in a police uniform and pantomiming police
work. 543 U.S. at 78–79. He sold these and other items, includ‐
ing official San Diego police uniforms, under a user name that
was “a wordplay on a high priority police radio call,” while
identifying himself as employed in the field of law enforce‐
ment. Id. For these actions and for failing to comply with a
resulting investigation by his employer, Roe was fired. He
sued, alleging his firing violated the First Amendment. Id. at
79.
The Court concluded, summarily and unanimously, that
the firing was permissible under either NTEU or Connick. Id.
at 80. “In NTEU it was established that the speech was unre‐
lated to the employment and had no effect on the mission and
purpose of the employer.” Id. By contrast, although Roe’s ex‐
pression “purported to be” unrelated to his employment, Roe
himself had taken “deliberate steps to link his videos . . . to
his police work, all in a way injurious to his employer.” Id. at
No. 18‐1865 13
81. The Court pointed to his use of a police uniform in his per‐
formances, his allusive user name, his disclosure of law‐en‐
forcement employment, and his “debased parody of an officer
performing indecent acts while in the course of official duties”
in finding that Roe’s expression “brought the mission of the
employer and the professionalism of its officers into serious
disrepute.” Id. Put differently, “Roe’s expression was widely
broadcast, linked to his official status as a police officer, and
designed to exploit his employer’s image.” Id. at 84.
Similar linkage was critical in Craig, where the plaintiff
was a former high school guidance counselor and girls’ bas‐
ketball coach who had been fired from those positions for
writing a book called It’s Her Fault, a “hypersexualized” tract
dedicated to the proposition that, when men and women ex‐
perience difficulties in romantic relationships, “it’s her fault.”
736 F.3d at 1113–14. Affirming the district court’s dismissal of
his complaint, we rejected Craig’s argument that his book was
protected under NTEU.
Craig had taken “‘deliberate steps to link’ his book with
his work as a guidance counselor . . . .” Id. at 1118, quoting
Roe, 543 U.S. at 81. Craig’s book cited his work as a counselor
and coach as the basis for his claimed expertise; thanked his
“students and clients” in the acknowledgments; contained a
foreword written by a teacher at Craig’s school; and described
the counseling Craig had provided “to thousands of students,
parents, clients, and friends.” Id. We held this material re‐
flected “Craig’s conscious choice to connect ‘It’s Her Fault’ to
his counseling position,” taking his book outside NTEU’s pro‐
tection. Id.The point of Roe and Craig is that the speaker‐employee
cannot deliberately trade on her public employment while
14 No. 18‐1865
claiming the speech is entirely unrelated. But NTEU would
mean little indeed if its protection could be circumvented by
merely identifying an author as a public employee. (Recall
that Butler had to canvass “many dozens, if not hundreds” of
Harnishfeger’s Facebook posts to find the Conversations pub‐
lication announcement.) And simply nothing at all in Conver‐
sations or its distribution is deliberately linked to the mission,
purpose, or image of the Indiana Army National Guard or the
VISTA program.
Conversations was speech on a matter of public concern
within the meaning of NTEU, and Harnishfeger is therefore
entitled to Pickering balancing. The district court erred in
reaching the contrary conclusion. That is not enough to re‐
solve this appeal, however, as the district court ruled in the
alternative that, even assuming Conversations was constitu‐
tionally protected in the threshold sense, the Pickering balance
weighed in the defendants’ favor. This ruling, too, was erro‐
neous.
b. The Pickering Balance Does Not Weigh in the De‐
fendants’ Favor
The challenge in public‐employee speech doctrine is “to
arrive at a balance between the interests of the [employee], as
a citizen, in commenting upon matters of public concern and
the interest of the State, as an employer, in promoting the ef‐
ficiency of the public services it performs through its employ‐
ees.” Pickering, 391 U.S. at 568. In deciding whether the bal‐
ance should be struck in favor of speech or efficiency in a
given case, we have examined seven factors:
(1) whether the speech would create problems
in maintaining discipline or harmony among
No. 18‐1865 15
co‐workers; (2) whether the employment rela‐
tionship is one in which personal loyalty and
confidence are necessary; (3) whether the
speech impeded the employee’s ability to per‐
form her responsibilities; (4) the time, place and
manner of the speech; (5) the context in which
the underlying dispute arose; (6) whether the
matter was one on which debate was vital to in‐
formed decisionmaking; and (7) whether the
speaker should be regarded as a member of the
general public.
Kristofek v. Village of Orland Hills, 832 F.3d 785, 796 (7th Cir.
2016), quoting Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir.
2000). We need not address each factor in each case. Id., citing
Graber v. Clarke, 763 F.3d 888, 896 (7th Cir. 2014).
At trial, the public employer has the burden of showing by
a preponderance of the evidence that this balance weighs in
its favor. Gustafson v. Jones, 290 F.3d 895, 906, 909 (7th Cir.
2002). Requiring proof by a preponderance of the evidence in‐
dicates that the public employer’s burden is one of persua‐
sion, not merely production, in the nature of an affirmative
defense. See Gustafson v. Jones, 117 F.3d 1015, 1019 (7th Cir.
1997) (“[P]urely as a matter of good pleading practice, we
think it preferable to leave to the defendant the burden of rais‐
ing justification [under Pickering] as an affirmative defense.”);
see generally Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 57
(2005), citing FTC v. Morton Salt Co., 334 U.S. 37, 44–45 (1948)
(“[T]he burden of persuasion as to certain elements of a plain‐
tiff’s claim may be shifted to defendants, when such elements
can fairly be characterized as affirmative defenses . . . .”).
16 No. 18‐1865
When a public employer moves for summary judgment on
the Pickering balancing defense, therefore, it must “lay out the
elements of the [defense], cite the facts which it believes sa‐
tisf[y] these elements, and demonstrate why the record is so
one‐sided as to rule out the prospect of a finding in favor of
the non‐movant” on the defense.” See Hotel 71 Mezz Lender
LLC v. Nat’l Retirement Fund, 778 F.3d 593, 601 (7th Cir. 2015)
(summary judgment standard where movant bears burden of
proof on claim or defense). The district court did not hold the
defendants to this standard, however.
On appeal, the defendants’ defense of the district court’s
Pickering balance suffers from two general defects. First,
through citations to websites and the “VISTA Member Hand‐
book,” they seek to defend the district court’s decision based
on facts that were not before that court. Contra, Fed. R. App.
P. 10(a); United States v. Elizalde‐Adame, 262 F.3d 637, 640 (7th
Cir. 2001) (“[W]e still could not consider the claims because
they are based on factual material outside of the record which
was never presented to the district court.”). We therefore de‐
cline to consider these materials.2
2In one unusual case, we reversed summary judgment in an opinion
that discussed in detail factual materials drawn from the majority’s own
factual research, outside the appellate record. See Rowe v. Gibson, 798 F.3d
622 (7th Cir. 2015), rehearing en banc denied by equally divided court,
2015 WL 10767326 (7th Cir. 2015). The Rowe majority denied, however,
that it based its decision on such research. 798 F.3d at 629, 630, 632; 2015
WL 10767326 at *1. The plaintiff’s pro se status as a prisoner who had vir‐
tually no access to medical expertise was critical to the majority’s unusual
decision to carry out its own factual research. Id. at 629–30. By contrast, in
this opinion we have cited several government websites only for general
background and context about the VISTA program, not for material facts.
See supra at 4 n.1.
No. 18‐1865 17
Second, the defendants offer justifications for Harnish‐
feger’s termination that Kopczynski might have considered at
the time but for which there is no actual evidence. “Pickering
balancing is not an exercise in judicial speculation.” Gustafson,
290 F.3d at 909. More specifically, Pickering balancing “is not
like ‘rational basis’ review . . . , under which it is enough to
imagine any rational underpinning” for a challenged govern‐
ment action. Id. at 909–10. “First Amendment rights cannot be
trampled based on hypothetical concerns that a governmental
employer never expressed.” Id. at 910. A court must look in‐
stead to what the public employer’s concerns “really were.”
Id. at 909; cf. Craig, 736 F.3d at 1115, 1119–21 (on motion to
dismiss, reviewing public employer’s “list of Charges” and
“Bill of Particulars” attached to complaint as “adequate basis”
on which to perform Pickering balancing).
On this record, the only evidence of the defendants’ actual
concerns with Conversations is Kopczynski’s September 28,
2016 letter to Kubiszewski requesting Harnishfeger’s removal
from her Guard assignment, supported by Harnishfeger’s re‐
port of her September 29, 2016 meeting with Kopczynski and
Butler. Kopczynski’s letter disclosed one overriding concern:
that Conversations and Harnishfeger’s June 2, 2016 Facebook
post announcing its publication “substantially diminishe[d]”
Harnishfeger’s “effectiveness as an AmeriCorps VISTA mem‐
ber.”
The letter suggests two reasons for that conclusion: first,
that “activities and conduct found on Amy’s social media Fa‐
cebook account . . . do not favorably represent our Family
Program Office or its core programs,” and again that “[t]hese
public displays on social media do not reflect a positive image
for our organization”; and second, that “[t]his posting and its
18 No. 18‐1865
content do not create a culture that reduces violent behavior
within the ranks or emphasizes and encourages help‐seeking
behaviors” and are “in direct contrast with the Indiana Na‐
tional Guard’s Domestic Violence Prevention and Response
Plan.”
Harnishfeger’s report of the September 29 meeting is con‐
sistent with the September 28 letter, except that on September
29 there was apparently no mention of “help‐seeking beha‐
viors” or the Guard’s “Domestic Violence Prevention and Re‐
sponse Plan.” According to Harnishfeger, in their meeting
Kopczynski said that Conversations was “really horrible,” that
Harnishfeger was not presenting the Guard “in a favorable
light,” and that the Guard could not “have anyone find out”
that Harnishfeger had written it.
Kopczynski’s first reason for doubting Harnishfeger’s ef‐
fectiveness was that Conversations reflected poorly on the
Guard. But there is no evidence or reasonable inference that it
had done so or would do so—certainly not to an extent that
would risk compromising the Guard’s mission, a prospect
Kopczynski’s letter did not even raise. “The burden of caution
employees bear with respect to the words they speak will vary
with the extent of authority and public accountability the em‐
ployee’s role entails.” Rankin v. McPherson, 483 U.S. 378, 390
(1987). Harnishfeger’s responsibilities with the Guard were so
routine and clerical that she could not be viewed by a reason‐
able member of the public as speaking for the Guard on any
matter, beyond her occasional collection of telephone num‐
bers and email addresses from veterans’ service providers.
In this respect, Harnishfeger is much like the clerical law‐
enforcement employee in Rankin. She was fired from that role
(impermissibly, as the Court held) for saying, in a private
No. 18‐1865 19
conversation with a colleague at work about a recent attempt
on President Reagan’s life, that “if they go for him again, I
hope they get him.” 483 U.S. at 381. Notwithstanding the gen‐
eral proposition that approving of murder may cast doubt on
a person’s suitability for a career in law enforcement, see id.
at 390, the Court rejected the suggestion that “every employee
in Constable Rankin’s office, whether computer operator,
electrician, or file clerk, is equally required, on pain of dis‐
charge, to avoid any statement susceptible of being inter‐
preted” as an indication of unsuitability for promoting the
public employer’s ultimate law‐enforcement mission. Id. at
391.
On this point, the Court contrasted the case with McMul‐
len v. Carson, 754 F.2d 936 (11th Cir. 1985), which upheld the
firing of a clerical employee in the Jacksonville, Florida, sher‐
iff’s office after the employee identified himself at a televised
press conference as a recruiter for the Ku Klux Klan. Rankin,
483 U.S. at 391 n.18. In that case, “[t]he evidence [was] uncon‐
tradicted that Jacksonville’s black community in large part
would categorically distrust the Sheriff’s office if a known
Klan member were permitted to stay on in any position.”
McMullen, 754 F.2d at 939.
Our decision in Craig offers a useful comparison on this
point as well. Emphasizing the “inordinate amount of trust
and authority” conferred upon Craig by his role as a high
school guidance counselor, 736 F.3d at 1119, we could “easily
see how female students may feel uncomfortable seeking ad‐
vice from Craig given his professed inability to refrain from
sexualizing females” and indeed might have forgone “the
school’s counseling services entirely rather than take the risk
that Craig would not view them as a person but instead as an
20 No. 18‐1865
object.” Id. at 1120. The school’s interest in “ensur[ing] effec‐
tive delivery of counseling services to female students” was
squarely implicated, and immediately endangered, by Craig’s
speech. Id.
As in Rankin, and unlike McMullen and Craig, there is in
Harnishfeger’s case no evidence and no basis for believing
that veterans or organizations serving them would distrust
the Guard if the known author of a phone‐sex memoir were
permitted to collect and enter the organizations’ contact infor‐
mation into a database on the Guard’s behalf. That is all the
more true of Conversations specifically, which disapproves
sexual abuse of children in the strongest terms, describing
those who fantasize about it as “monsters” who “need to end
things once and for all.” It “borders on the fanciful,” see Ran‐
kin, 483 U.S. at 393 (Powell, J., concurring), to suggest, as de‐
fendants do here, that any member of the public could believe
the Guard condoned sexual abuse of children because its
VISTA volunteer authored Conversations.
It is in fact highly unlikely that Conversations could have
reflected anything at all about the Guard, positive or negative.
Only a single “private” Facebook post linked Conversations to
Harnishfeger, and, as far as the record discloses with cer‐
tainty, only two “public” Facebook posts linked Harnishfeger
to the Guard. Harnishfeger’s authorship of Conversations was
uncovered only because Butler, the Guard’s own employee,
out of boredom or curiosity on her lunch break, went digging
through “dozens, if not hundreds” of Harnishfeger’s Face‐
book posts. She was able to do so only because—we must as‐
sume—Harnishfeger felt compelled to accept her supervisor’s
“friend” request. The reasonable inference in Harnishfeger’s
favor is that she would not have accepted “friend” requests
No. 18‐1865 21
from any Guard employee who was not her supervisor, nor
from anyone connected to the two service providers she con‐
tacted on Facebook on the Guard’s behalf.
The district court weighed in defendants’ favor the possi‐
bility that Butler, not Harnishfeger, would disrupt the Guard’s
mission by spreading knowledge of Conversations. We must
disagree. Aside from the lack of evidence on this point, the
government cannot be handed a “snooper’s veto” when it un‐
covers otherwise secreted employee speech and then invokes
the possibility that its own agents would publicize it. Cf.
Craig, 736 F.3d at 1121 (recognizing that “heckler’s veto” can‐
not be used to silence unpopular speech).
Kopczynski’s second reason for doubting Harnishfeger’s
effectiveness was that her “posting and its content do not cre‐
ate a culture that reduces violent behavior within the ranks or
emphasizes and encourages help‐seeking behaviors” and are
“in direct contrast with the Indiana National Guard’s Domes‐
tic Violence Prevention and Response Plan.” The district court
did not address this ground, and the defendants do not at‐
tempt to defend it on appeal. Conversations neither promotes
violence nor discourages victims of violence from seeking
help.
In sum, the defendants’ side of the Pickering balance is
empty. The connection between the stated grounds for
Harnishfeger’s termination and the evidence before us is so
tenuous as to support a reasonable inference that the former
were mere pretexts for the feelings of embarrassment and dis‐
gust that Conversations undoubtedly—and intentionally,
Harnishfeger points out—arouses in its readers. But a public
employer may not “use authority over employees to silence
discourse, not because it hampers public functions but simply
22 No. 18‐1865
because superiors disagree with the content of employees’
speech.” Rankin, 483 U.S. at 384. The First Amendment pro‐
hibits such misuse of authority.
2. Action Under Color of State Law
Section 1983 offers a remedy for constitutional violations
by persons acting under color of state law, not federal law.
Knutson v. Wis. Air Nat’l Guard, 995 F.2d 765, 767 (7th Cir.
1993). Kopczynski contends that she acted here under federal
law, not state. The district court did not address the issue, but
the record is sufficient for us to address it as an alternative
ground argued for affirming summary judgment.
“No set formula exists” for determining whether a partic‐
ular governmental action is taken under color of state or fed‐
eral law; our inquiry “focuses on the nature of that action and
functional capacity of the actor.” Knutson, 995 F.2d at 767, cit‐
ing Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency,
440 U.S. 391, 399–400 (1979). The question arises with respect
to the National Guard because, as the Supreme Court has ex‐
plained, its members occupy a unique position in our federal
structure:
[In 1933, Congress] created the two overlapping
but distinct organizations . . . —the National
Guard of the various States and the National
Guard of the United States. Since 1933 all per‐
sons who have enlisted in a State National
Guard unit have simultaneously enlisted in the
National Guard of the United States. In the lat‐
ter capacity they became a part of the Enlisted
Reserve Corps of the Army, but unless and until
ordered to active duty in the Army, they
No. 18‐1865 23
retained their status as members of a separate
State Guard unit.
Perpich v. U.S. Dep’t of Defense, 496 U.S. 334, 345 (1990) (inter‐
nal quotation marks omitted). Unless and until called into fed‐
eral service, therefore, “[i]n each state the National Guard is a
state agency, under state authority and control.” Knutson,
995 F.2d at 767.
In Knutson we considered whether, in light of its “hybrid
nature,” the Wisconsin Air National Guard acted under color
of state law for purposes of § 1983 in firing plaintiff Knutson.
Id. Despite the web of state and federal laws and regulations
governing National Guard service, at bottom Knutson’s case
“present[ed] the rather straightforward case of state officers
exercising their state authority to effectuate the termination of
state militia personnel.” Id. at 768. There was no contention
that Knutson’s unit had been federalized at any relevant time,
and the governor of Wisconsin otherwise served as the
Guard’s commander in chief. Id. Though federal law author‐
ized the Guard’s activity, governed much of its conduct, and
subsidized the salaries of its officers and technicians, id. at 767,
that did “not alter the state‐law character of its actions.” Id. at
768.
Similarly here, the Indiana Army National Guard was not
federalized at any time relevant to this case. The governor of
Indiana is the commander in chief of Indiana’s National
Guard units. Ind. Code § 10‐16‐6‐4(a). Kopczynski’s Septem‐
ber 28, 2016 letter to Kubiszewski was on letterhead bearing
Indiana’s state seal and the emblem of the “Indiana Joint
Forces Headquarters.” All signs point to state action, not fed‐
eral.
24 No. 18‐1865
The defendants argue that Knutson does not control here,
not because the Indiana Army National Guard is materially
different from the Wisconsin Air National Guard, but because
Harnishfeger was a member of a federal program when
Kopczynski demanded her removal. The proper focus, how‐
ever, is not on the target of the action but on the actor. Knut‐
son, 995 F.2d at 767. The defense argument implies that any
public or private VISTA sponsor (the Indianapolis Public
Schools or a local Boys and Girls Club, for example) becomes
a federal agent whenever it hosts a VISTA volunteer, a view
we find untenable.
The defense points out that Harnishfeger’s VISTA position
was federally funded and subject in part to federal guidelines.
But both factors were present in Knutson as well, see id. at 767(“the federal government provides salaries, benefits, and sup‐
plies to full‐time Guard officers and technicians”), 768 (“Wis‐
consin adopts and [defendant] opts to utilize federal substan‐
tive and procedural rules”), and that did not “alter the state‐
law character” of the Wisconsin Air National Guard’s actions.
Id. at 768.
In demanding Harnishfeger’s removal from her VISTA
placement, Lieutenant Colonel Kopczynski was a Guard of‐
ficer exercising her supervisory authority over the Guard’s
Family Program Office for the Guard’s benefit and in further‐
ance of the Guard’s mission. That was action under color of
state law, so § 1983 offers a remedy.
3. Qualified Immunity
Defendants also sought summary judgment on the de‐
fense of qualified immunity, arguing that Kopczynski did not
violate clearly established constitutional law by demanding
No. 18‐1865 25
Harnishfeger’s removal. See generally, e.g., Surita v. Hyde,
665 F.3d 860, 868 (7th Cir. 2011), citing Pearson v. Callahan,
555 U.S. 223, 231 (2009). It is “an undeniable fact about balanc‐
ing tests,” such as Pickering’s, “that they produce a wide gray
area between the clearly legal and the clearly illegal, and the
rules of qualified immunity require giving the benefit of the
doubt to the reasonable public official if the particular case
falls within that gray area.” Gustafson v. Jones, 117 F.3d 1015,
1021 (7th Cir. 1997). “[G]overnment officials are not expected
to be prescient and are not liable for damages simply because
they legitimately but mistakenly believed that the balancing
of interests tipped in the State’s favor.” Gregorich v. Lund,
54 F.3d 410, 415 (7th Cir. 1995).
No prescience is demanded, however, of the public em‐
ployer who retaliates against protected speech “where the
speech caused no actual disruption of any kind for four
months, and where the employer neither articulates a belief
that the speech has the potential to be disruptive in the future,
nor has evidence to support the reasonableness of such a be‐
lief.” Gustafson v. Jones, 290 F.3d 895, 913 (7th Cir. 2002) (re‐
jecting defense of qualified immunity on appeal from verdict
for plaintiffs). Substitute “three months” for “four months,”
and the observation applies here.
First, under clearly established law in September 2016,
Conversations was protected. It was speech neither at work nor
about work; it was addressed to a general audience; and there
was no sign that Harnishfeger deliberately linked its content
or message to the Guard’s mission, purpose, or image. City of
San Diego v. Roe, 543 U.S. 77, 80–82 (2004); NTEU, 513 U.S. 454,
466 (1995); Eberhardt v. O’Malley, 17 F.3d 1023, 1026–27 (7th
Cir. 1994). Though we must take care not to define the right
26 No. 18‐1865
asserted by Harnishfeger at too high a level of generality, see
Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008), citing Brosseau v.
Haugen, 543 U.S. 194, 198–99 (2004), there is no real dispute on
these points here.
Defendants argue that Roe and Craig v. Rich Township High
School District 227, 736 F.3d 1110 (7th Cir. 2013), together sug‐
gest that sexually explicit speech “is generally not considered
of public concern,” but those cases suggest no such thing. Roe
made clear that the plaintiff’s sexualized performances would
have been protected under NTEU but for his deliberate link‐
age of them to his police work. See 543 U.S. at 81 (“Although
Roe’s activities took place outside the workplace . . . .”). And
Craig lost at the Pickering balancing step of the analysis, not
the threshold step of whether his speech addressed a matter
of public concern under Connick. See Craig, 736 F.3d at 1113,
1115–18.
Second, clearly established law in September 2016 held
that the public employer’s side of the Pickering balance must
be supported with evidence of actual disruption, or at least
the articulation of a reasonable belief in future disruption plus
evidence of its reasonableness at the time. Gustafson, 290 F.3d
at 913; see also Hulbert v. Wilhelm, 120 F.3d 648, 655 (7th Cir.
1997) (denying qualified immunity: “Connick reiterated Pick‐
ering’s rule that the mere incantation of the phrase ‘internal
harmony in the workplace’ is not enough to carry the day, and
the Pierce County defendants appeared to have relied on
nothing more substantial than that.”); Dahm v. Flynn, 60 F.3d
253, 258 (7th Cir. 1994) (reversing in part grant of qualified
immunity defense: “Not only did Flynn fail to identify how
Dahm’s testimony impeded the efficient operations of the
No. 18‐1865 27
Lottery, but the precise opposite would seem to have moti‐
vated the Wisconsin legislature to invite Dahm to testify[.]”).
The Pickering analysis here shows no actual disruption; no
articulation of a belief in future disruption with respect to
Kopczynski’s appeal that Conversations does not “favorably
represent” the Guard; and no rational connection between
Kopczynski’s appeal to the Guard’s Domestic Violence Pre‐
vention and Response Plan and Conversations or Harnish‐
feger’s VISTA placement. On this record, the explanations
provided appear to be so flimsy as to support an inference
that they were not objectively reasonable but reflected only
disgust with Conversations and its author, whom the Guard,
as Kopczynski emphasized, “likely would not have consid‐
ered” for VISTA placement had it been aware of her “previous
employment/work experience.” On this record, “the line be‐
tween the permitted and the forbidden” was clearly “marked
in advance.” Walsh v. Ward, 991 F.2d 1344, 1346 (7th Cir. 1993).
Kopczynski has not shown that she stayed within that line
and is entitled to summary judgment based on qualified im‐
munity.
B. Claims Against the Federal Defendants
As for Harnishfeger’s claims against Kubiszewski, Lopez,
and the United States, we conclude she failed to show a triable
issue on any federal defendant’s personal participation in a
constitutional violation and otherwise failed to show a triable
issue on her APA claim. We therefore affirm the judgment in
the federal defendants’ favor.
1. First Amendment Claim
Causation, the third element of a public employee’s First
Amendment retaliation claim, is uncontested by the parties
28 No. 18‐1865
on appeal, though it was disputed in the district court. The
district court did not decide the issue, but we may affirm a
grant of summary judgment on any basis in the record, “so
long as that ground was adequately addressed in the district
court and the nonmoving party had an opportunity to contest
the issue.” Peretz v. Sims, 662 F.3d 478, 480 (7th Cir. 2011),
quoting Cardoso v. Robert Bosch Corp., 427 F.3d 429, 432 (7th
Cir. 2005). Here, Harnishfeger had and took the opportunity
to contest the issue in the district court (indeed, she cross‐
moved for summary judgment on liability) and the lack of
causation here is so clear‐cut that we see no need to remand
the issue for the district court to consider in the first instance.
“[T]o make out a prima facie case for retaliation at sum‐
mary judgment,” a public employee must bring forward evi‐
dence sufficient to permit a reasonable finding that her pro‐
tected speech “was at least a motivating factor” of the public
employer’s speech‐deterring deprivation. Kidwell v. Eisen‐
hauer, 679 F.3d 957, 965 (7th Cir. 2012). “Causation is a subject
on which philosophers speak more clearly than lawyers.”
Greene v. Doruff, 660 F.3d 975, 978 (7th Cir. 2011). What the law
calls a “motivating factor” in this context is a sufficient condi‐
tion: the public employee at summary judgment must show
that a reasonable jury could find her protected speech “was a
sufficient condition of the harm” for which she seeks redress.
Id. at 979.
If that showing is made, “the burden shifts to the employer
to rebut the causal inference raised by [the employee’s] evi‐
dence,” Kidwell, 679 F.3d at 965, by showing that her protected
speech “though a sufficient condition was not a necessary
condition” of the employer’s adverse action; “the harm
. . . would have occurred anyway.” Greene, 660 F.3d at 979. If
No. 18‐1865 29
the employer fails, “the inference is that ‘but for’ causation
(that is, a necessary condition) has been shown,” and the em‐
ployee prevails. Id.Harnishfeger failed to carry her initial burden of offering
evidence of causation as to the federal employees, Ku‐
biszewski and Lopez. Kubiszewski was a State Program Of‐
ficer for CNCS and Harnishfeger’s point of contact with the
VISTA program. A week or so after Lopez’s September 29,
2016 letter to Harnishfeger informing her CNCS had placed
her on administrative leave, Kubiszewski informed Harnish‐
feger that if she deactivated (more exactly, “took specific steps
with respect to”) her Facebook account, she would be permit‐
ted to seek another sponsoring organization. Harnishfeger
then deactivated her Facebook account. On October 6, Ku‐
biszewski sent Harnishfeger a list of approved VISTA spon‐
sors in Indiana and told her she had nineteen days, until Oc‐
tober 25, to find a new sponsor.
Lopez was the Indiana State Program Director for CNCS.
On September 29, 2016 Lopez told Harnishfeger by letter that
she had been removed from her VISTA placement and put on
“Administrative Hold status for a period not to exceed 30
days,” effective immediately. When Harnishfeger failed to se‐
cure a reassignment with another sponsoring organization by
October 25, Lopez informed her by a second letter that her
VISTA membership had been finally terminated “for lack of
suitable assignment.”
A governmental actor may be held personally liable only
for constitutional violations in which she personally partici‐
pated. Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009) (Bivens);
Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (§ 1983).
On the facts recited above, it is clear beyond genuine dispute
30 No. 18‐1865
that neither Kubiszewski nor Lopez (with one exception)
played any role in Harnishfeger’s removal from her VISTA
placement with the Guard.
The exception for Lopez arises from the regulations gov‐
erning VISTA participation. Those regulations provide in rel‐
evant part that “CNCS has the sole authority to remove a
VISTA from a project where . . . she has been assigned.”
45 C.F.R. § 2556.405(a). However, a sponsoring organization
“may request that CNCS remove a VISTA assigned to its pro‐
ject.” § 2556.410(a). When such a request is made, “[t]he State
Program Director may, at his . . . discretion, attempt to resolve
the situation with the sponsor so that an alternative solution
other than removal of the VISTA from the project assignment
is reached.” § 2556.410(b) (emphasis added). Otherwise, if an
alternative solution “is not sought, or is not reached within a
reasonable time period, the State Program Director shall re‐
move the VISTA from the project.” § 2556.410(c) (emphasis
added).
As long as the Guard dug in its heels, as it did, it had the
power to insist that Harnishfeger’s term with it was over. Still,
assuming without deciding that Lopez’s failure to exercise his
discretion to try to persuade the Guard to change its mind
might have been actionable, Harnishfeger has failed to show
that a jury could reasonably conclude Conversations explains
Lopez’s failure. There is no evidence that Lopez knew, even
in a general way, what the content of Conversations was. Nei‐
ther is there any evidence of Lopez’s reaction to Conversations
specifically or to any speech, offensive or not, by VISTA mem‐
bers generally. On this record, there is simply no indication
that the content of Conversations influenced Lopez’s decision
No. 18‐1865 31
not to exercise his discretion to try to persuade the Guard to
allow Harnishfeger to stay.
As for Harnishfeger’s removal by CNCS from the VISTA
program entirely, the constitutional violation at issue is her
removal from her VISTA placement with the Guard. The Pick‐
ering balance makes no allowance here for the interests of
CNCS regarding termination once the Guard ended Harnish‐
feger’s VISTA term with it. In any event, as with Lopez’s in‐
volvement in Harnishfeger’s removal from her placement
with the Guard, there is no non‐speculative inference that
Conversations explains Kubiszewski and Lopez’s actions in re‐
moving Harnishfeger from the VISTA program. Again, there
is no evidence Lopez had any material understanding of Con‐
versations to begin with. More fundamentally, if one imagines
Conversations being brought to the attention of Kubiszewski
and Lopez directly, without mediation by Kopczynski’s re‐
moval request, the record contains no reason to believe that
either federal officer’s reaction would have been adverse to its
author—still less, adverse to such a degree that either would
have been moved to seek Harnishfeger’s removal from
VISTA. Kubiszewski and Lopez are entitled to judgment as a
matter of law.
2. The APA Claim
Under the federal Administrative Procedure Act, the tar‐
get of an adverse final agency action may seek to have the ac‐
tion held unlawful and set aside by a reviewing court if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law,” or “contrary to constitutional right,
power, privilege, or immunity.” 5 U.S.C. § 706(2)(A)–(B). The
district court entered judgment in the defendants’ favor on
the APA claim because it concluded that no defendant had
32 No. 18‐1865
violated Harnishfeger’s constitutional rights and CNCS’s de‐
cision to terminate Harnishfeger’s VISTA participation for
lack of suitable assignment was not arbitrary or unreasonable.
We agree that no federal defendant—Kubiszewski, Lopez,
or the United States, which acted through them in this case—
violated the Constitution. We have already explained why the
record does not permit a reasonable inference that Ku‐
biszewski or Lopez abridged Harnishfeger’s free‐speech
rights: they did not personally participate in Lieutenant Colo‐
nel Kopczynski’s decision to demand Harnishfeger’s removal
from her placement with the Guard; and Harnishfeger has not
shown evidence that Conversations suffices to explain their de‐
cision to remove her from the VISTA program entirely.
For non‐constitutional review of agency action, “we rely
on the same administrative record that was before the district
court and render an independent judgment as to whether the
agency acted unreasonably.” Mittelstadt v. Perdue, 913 F.3d
626, 633 (7th Cir. 2019), quoting Stable Invs. P’ship v. Vilsack,
775 F.3d 910, 915 (7th Cir. 2015). Our review is “deferential.”
Id., quoting St. Clair v. Sec’y of Navy, 155 F.3d 848, 851 (7th Cir.
1998). Harnishfeger does not deny that she failed to secure re‐
assignment after her removal from the Guard and that this
failure motivated her “non‐cause” termination from the
VISTA program. She complains, however, of “numerous
uniquely onerous conditions” on which her continued VISTA
service was made to depend: the unsuitability or undesirabil‐
ity of the proffered alternative placements; the “cold calling”
process to which she was relegated; and the requirement that
any future sponsor speak with her Guard supervisors.
Undoubtedly, CNCS’s course of proceeding put Harnish‐
feger in a less than ideal position to continue her VISTA
No. 18‐1865 33
service. But non‐ideal is not irrational. Harnishfeger’s charge
that the conditions of her continued participation were
“uniquely onerous” is not supported by the record. True, the
“cold calling” procedure differed from the initial sponsor‐as‐
signment process, but there is no evidence as to how CNCS
usually proceeded in sponsor‐reassignment cases. Without
such evidence, we cannot say that it was arbitrary for CNCS
to have failed to offer Harnishfeger more interesting or more
convenient reassignment options, or to have permitted any
prospective new sponsor to speak with Harnishfeger’s former
sponsor. Harnishfeger failed to show a genuine dispute as to
her entitlement to relief under the APA. The federal defen‐
dants are therefore entitled to judgment as a matter of law.
The judgment in favor of all defendants but Kopczynski is
AFFIRMED. The judgment in favor of Kopczynski is
REVERSED and the case REMANDED for further procee‐
dings consistent with this opinion.