Roger Peele v. Clifford Burch , 722 F.3d 956 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3562
R OGER L. P EELE,
Plaintiff-Appellant,
v.
C LIFFORD B URCH, individually and as
Portage Police Department Chief; L ARRY JOLLEY,
individually and as Portage Police Department
Assistant Chief; and the C ITY OF P ORTAGE,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 09-cv-00138—Paul R. Cherry, Magistrate Judge.
A RGUED A PRIL 1, 2013—D ECIDED JULY 9, 2013
Before B AUER, K ANNE, and T INDER, Circuit Judges.
K ANNE, Circuit Judge. Roger L. Peele was a detective
in the Portage Police Department. In his spare time, he
was active in local politics. Peele supported Steve
Charnetzky’s Democratic primary campaign for the
mayorship of Portage, Indiana. Charnetzky lost, and
2 No. 12-3562
Peele spoke about the loss to a local reporter. Peele’s
comments were published the next day. The day after
that, Peele was transferred out of the Detective Bu-
reau. Peele sued, claiming that he was transferred in
retaliation for his comments. The district court granted
summary judgment in favor of the defendants. For
the reasons that follow, we reverse.
I. B ACKGROUND
The facts of this case are ferociously disputed. For now,
we will try to stay above the fray. To the extent possible,
we will begin by discussing only those facts that every-
body agrees on. Once we move into disputed territory,
we will construe the facts in the light most favorable
to the plaintiff. See Arizanovska v. Wal-Mart Stores, Inc.,
682 F.3d 698, 702 (7th Cir. 2012).
The plaintiff, Roger L. Peele, worked for the Police
Department of the City of Portage, Indiana. Except for
a one-year term as Portage’s Chief of Police, Peele
served from 1992 until 2007 in the department’s Detec-
tive Bureau.
Spring 2007 was election season in Portage. Doug Olson,
the city’s incumbent mayor, was stepping down, and
two candidates sought the Democratic party’s nomina-
tion to replace him. The first was Olga Velazquez. The
second was Steve Charnetzky. Peele supported Charnetzky
and worked on his campaign during off-duty hours.
The voters went to the polls on May 8, 2007. Velazquez
won. Peele spent the evening at Charnetzky’s campaign
No. 12-3562 3
headquarters, and, unsurprisingly, he was frustrated with
his candidate’s loss. He vented his frustrations to a re-
porter for the Northwest Indiana Times. Peele criticized
the Times for what he thought was unfair coverage of the
race and also criticized Porter County Sheriff David Lain
for endorsing Velazquez. Peele also said, apparently
referring to Sheriff Lain, “He won’t get any support here.”
The following day, May 9, 2007, the Times published
Peele’s comments as part of its election coverage. The
next day, May 10, 2007, Peele was called into the Chief
of Police’s office for a meeting. Chief of Police Clifford
Burch, Assistant Chief of Police Larry Jolley, and Detec-
tive Captain Terry Swickard all attended. Chief Burch
read a prepared statement stating that Peele would be
reassigned from the Detective Bureau to the more desk-
bound position of “Station Duty Officer.”
In response, Peele sued Chief Burch, Assistant
Chief Jolley, the Portage City Police Department, and
the City of Portage. Peele claimed that (1) he was
demoted and constructively discharged without due
process; (2) the defendants retaliated against him for
supporting Charnetzky, in violation of the First Amend-
ment; and (3) the defendants defamed him. The de-
fendants countersued for malicious prosecution and
abuse of process. The parties consented to disposition
by a magistrate judge. (R. 17.)
On February 28, 2012, the district court issued an
order granting summary judgment to the defendants on
Peele’s due process, First Amendment, and defamation
claims. Peele v. Burch, No. 09-CV-138-PRC, 2012 WL 693570,
4 No. 12-3562
at *5-11 (N.D. Ind. Feb. 28, 2012). The district court also
granted summary judgment in favor of Peele on the de-
fendants’ abuse of process claim, but denied summary
judgment on the defendants’ malicious prosecution
claim. Id. at *12-13. Finally, the district court dismissed,
by agreement, the Portage Police Department as a party
defendant because the Department lacks the capacity to
be sued.1 Id. at *13. After the district court issued its
February 28 order, the parties stipulated to the dismissal,
with prejudice, of the defendants’ malicious prosecu-
tion claim. (R. 88.)
The defendants did not appeal the district court’s
judgment, but Peele did. Abandoning his due process
and defamation claims, Peele now argues only that the
defendants punished him for his political speech in
violation of the First Amendment. Peele also raises
several ancillary issues relating to his retaliation claim.
We address these issues at the end of our opinion.
II. A NALYSIS
There is much more to this case than our brief intro-
duction lets on. Our focus, however, is on a narrower
issue: whether the district court was right to grant sum-
1
Despite this agreed dismissal, the parties continue to list
the Portage Police Department as a party to this case. Because
neither side has asked to have the Department reinstated as
a defendant, we have omitted the Department from our opin-
ion’s caption.
No. 12-3562 5
mary judgment on Peele’s retaliation claim. Summary
judgment is proper when “there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). We
review the district court’s entry of summary judgment
de novo and view all of the evidence in the light most
favorable to the nonmoving party. Arizanovska, 682 F.3d
at 702. A genuine issue of material fact exists only if
there is enough evidence that a reasonable jury could
return a verdict in favor of the nonmoving party. Harper
v. C.R. England, Inc., 687 F.3d 297, 306 (7th Cir. 2012).
Peele’s lone claim is that the defendants are liable
under 42 U.S.C. § 1983 for transferring him in retaliation
for his political activities. The First Amendment protects
the free speech rights of public employees. See Spiegla
v. Hull, 371 F.3d 928, 935 (7th Cir. 2004) (citing Pickering
v. Bd. of Educ., 391 U.S. 563, 568 (1968)). Thus, “[i]t is well
established that . . . transferring government employees
based on political motivation violates the First Amend-
ment, with certain exceptions for policymaking pos-
itions and for employees having a confidential relation-
ship with a superior.” Hall v. Babb, 389 F.3d 758, 762 (7th
Cir. 2004) (citing Rutan v. Republican Party of Ill., 497 U.S.
62, 65, 71 n.5 (1990), and Elrod v. Burns, 427 U.S. 347,
367 (1976)). To make out a prima facie case of First Amend-
ment retaliation, a public employee must present evi-
dence that “(1) his speech was constitutionally pro-
tected; (2) he has suffered a deprivation likely to deter
free speech; and (3) his speech was at least a motivating
factor in the employer’s actions.” Kidwell v. Eisenhauer,
679 F.3d 957, 964 (7th Cir. 2012).
6 No. 12-3562
The first question, then, is whether Peele made a con-
stitutionally protected statement. Peele argues that we
should consider all of his conduct during election
season protected. In response, the defendants concede
that Peele’s May 8 statement to the Times was constitu-
tionally protected, but argue that we should not con-
sider the rest of his election-season conduct because
that conduct was not raised in Peele’s complaint.
We agree with the defendants on this point. “Federal
Rule of Civil Procedure 8(a) requires that a complaint
adequately plead facts to put a defendant on notice of
the plaintiff’s claim[.]” Segal v. Geisha NYC LLC, 517 F.3d
501, 505 (7th Cir. 2008). Here, Peele’s complaint alleged
only one clear instance of protected conduct: his state-
ment to the reporter in May 2007. (See R. 1 at ¶ 7)
(alleging that “on May 9, 2007, Plaintiff, Roger L. Peele
voiced his First Amendment [r]ight to publicly support
his candidate for Democratic Mayor of Portage, Steve
Charnetzky[,] against candidate[ ] Olga Velazquez”).2
Beyond that, the complaint offered nothing more
than vague boilerplate language. (See, e.g., id. at ¶ 16)
(alleging that the defendants, “by their acts and failures
to act and by their deliberate indifference to acts and
failures to act,” violated Peele’s “First Amendment
[r]ights including but not limited to the right of free
2
The complaint identified May 9, 2007, as the date of Peele’s
statement. As our prior discussion makes clear, the statement
was published on May 9, 2007, but Peele actually made the
statement on May 8, 2007.
No. 12-3562 7
speech and association” and “the right of freedom of
political association”). For the reasons correctly and
comprehensively discussed in the district court’s opin-
ion, see Peele, 2012 WL 693570, at *8-9, these vague al-
legations were not enough to give fair notice that
Peele’s claim involved protected conduct other than the
conduct of May 8, 2007. Accordingly, we will confine
our analysis to the events surrounding May 8, 2007.
The second element of Peele’s claim requires him to
show that he suffered a deprivation likely to deter free
speech. Kidwell, 679 F.3d at 964. While the defendants
suggest in passing that Peele did not suffer such a dep-
rivation when they transferred him to the Station Duty
Officer position, (see Appellee’s Br. at 38-39), they have
not supported that suggestion with a developed argu-
ment. Instead, the defendants focus all of their attention
on the third element of Peele’s case: whether Peele pro-
vided evidence that his protected conduct was
a “motivating factor,” Kidwell, 679 F.3d at 964, in the
defendants’ decision to transfer him. (See, e.g., Appellees’
Br. at 28) (“Appellees/Defendants claim that they are
entitled to summary judgment because Peele has failed
to satisfy requirement (3).”). Thus, we turn our atten-
tion to the third element of Peele’s claim.
There has been some confusion recently about how to
apply the “motivating factor” test. We addressed this
confusion in Kidwell, 679 F.3d at 964-66, and Greene
v. Doruff, 660 F.3d 975, 977-80 (7th Cir. 2011). As
we explained in those cases, the “motivating factor” re-
quirement splits the burden of production between the
8 No. 12-3562
parties on summary judgment. Kidwell, 679 F.3d at 965.
The plaintiff has the initial burden to produce evidence
that his speech was at least a “motivating factor” in the
employer’s decision to take adverse action against him—
“or, in philosophical terms, a ‘sufficient condition’ ” of
the retaliation. Id. (citing Greene, 660 F.3d at 979-80).
The defendant may then rebut that evidence by demon-
strating that “the harm would have occurred any-
way,” even without the protected conduct—or, in other
words, “that his conduct was not a necessary condition
of the harm.” Greene, 660 F.3d at 980 (emphasis added);
accord Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 285-86 (1977). Put another way, Peele
must first provide evidence that the defendants were
motivated, at least in part, by a desire to retaliate
against him for his protected speech. If he does, then
the defendants may counter by showing that they
would have reached the same result even without the
protected speech.
Here, we think that there is enough evidence for a
reasonable jury to conclude that Peele’s comments were
both sufficient and necessary causes of his transfer. To
begin, the timing of Peele’s transfer was highly suspi-
cious. Suspicious timing is rarely enough, by itself, to
create a triable issue of fact. Kidwell, 679 F.3d at 966.
“Occasionally, however, an adverse action comes so
close on the heels of a protected act that an inference of
causation is sensible.” Loudermilk v. Best Pallet Co., LLC,
636 F.3d 312, 315 (7th Cir. 2011); see also id. (collecting
cases). And even if suspicious timing alone is not enough
to create a triable issue in a particular case, suspicious
No. 12-3562 9
timing remains “an important evidentiary ally of the
plaintiff.” Davis v. Time Warner Cable of Se. Wis., L.P., 651
F.3d 664, 675 (7th Cir. 2011).
Here, Peele made his protected comments on May 8,
2007. They were published in the newspaper the very
next day (May 9, 2007), and Peele was transferred the
day after that (May 10, 2007). “The closer two events are,
the more likely that the first caused the second,”
Loudermilk, 636 F.3d at 315, and it is hard to imagine
two key events closer in time than the ones at stake here.
Even if this extraordinary temporal proximity is not
enough to create a triable issue of fact on its own—a
question we need not answer—at the very least, it pro-
vides some evidence that a retaliatory motive lurked
behind Peele’s transfer. See id.; Spiegla, 371 F.3d at 943(“It is settled in this Circuit that a plaintiff may establish
a causal link between protected expression and adverse
action through evidence that the adverse action took
place on the heels of protected activity.”) (internal
comma, brackets, and ellipsis omitted).
In addition to this circumstantial evidence, Peele has
also presented direct evidence of retaliatory motivation.
That evidence comes from the deposition of Joe Radic,
the officer who held the Station Duty Officer position
before Peele replaced him. (See R. 50-4 at 14-23.) According
to Radic, Chief Burch told Radic that he would not
have to work as the Station Duty Officer anymore. Burch
then went on to explain that Peele was being transferred
to the Station Duty Officer position because Peele had
“made the mayor mad.” (Id. at 21.) Burch further ex-
10 No. 12-3562
plained that the “mayor” he was referring to was
Velazquez, who had just defeated Charnetzky in the
primary and presumably would soon become mayor.
(Id. at 22.)
We express no opinion at this stage on whether Radic’s
recollection of Burch’s statements is credible. But Burch
is a party to the case, so his alleged statements are not
hearsay. See Fed. R. Evid. 801(d)(2)(A). And, as the Chief
of Police, Burch was a key player in the decision to
transfer Peele. If genuine, Burch’s statements would
provide powerful evidence that Peele’s transfer was
politically motivated. We think this evidence, combined
with the suspicious timing of the transfer, could be
enough to lead a reasonable jury to decide in Peele’s favor.3
Before moving on, we should note that the defendants
moved, in the district court, to strike Radic’s testimony
about Burch’s statements. (See R. 55 at 5, 17.) The de-
fendants argued that Radic’s deposition was contrary
to Burch’s deposition; contained improper speculation
on Velazquez’s motivations; and could be interpreted to
3
Peele argues that other evidence also supports his claim. But
determining whether this evidence is admissible will require
findings about witness unavailability, see Fed. R. Evid. 804,
authorization to speak for a party, see Fed. R. Evid. 801(d)(2)(C)-
(D), and the existence of personal knowledge, see Fed. R. Evid.
602. Because Radic’s deposition and the suspicious timing
are enough to avoid summary judgment, we need not discuss
this other evidence. We leave it to the district court to deter-
mine, in its sound discretion, whether Peele will be able to
introduce this additional evidence at trial.
No. 12-3562 11
have a more innocent meaning. (Id. at 5.) The defendants
also argued that Peele’s brief failed to properly cite to
Radic’s deposition under Northern District of Indiana
Local Rule 56-1. (Id. at 17.)
Those seem like thin grounds for a motion to strike.
Take, for instance, the fact that Radic’s deposition con-
flicted with Burch’s deposition and was susceptible to
multiple meanings. (Id. at 5.) That is not a reason to
strike Radic’s testimony; it is a reason to present it to a
jury to resolve the conflicting stories and interpretations.
Or consider the argument that Radic’s recollections of
Burch’s statements are too speculative to be introduced
as evidence of Velazquez’s motivations. (Id.) (citing Fed. R.
Evid. 602). That is true, but Radic’s recollections would
be highly relevant to Burch’s motivations, and, as dis-
cussed, Burch was a key player in the decision to
transfer Peele. Only the issue of noncompliance with
Local Rule 56-1 might have some substance behind it.
But even so, it would not necessarily have led to striking
Radic’s testimony; “[o]ur cases make it clear that a
district court’s decision whether to apply a local rule
strictly or to overlook any transgression is one left to
the district court’s discretion.” Stanciel v. Gramley, 267
F.3d 575, 579 (7th Cir. 2001) (internal quotation marks
and brackets omitted).
It is unclear, however, whether the district court con-
sidered these issues. As the district court (correctly)
noted, both sides filed “voluminous” motions to strike
each other’s statements of fact. Peele, 2012 WL 693570, at
*1. As a result, the district court declined to discuss the
12 No. 12-3562
motions to strike in detail and instead wrote that it con-
sidered the motions and would discuss only those
facts that the court deemed “material” and “either undis-
puted by the parties or reflect[ing] the Court’s deter-
mination that they [were] properly supported by the
evidence in the record.” Id. The district court’s ensuing
factual discussion did not mention Radic’s testimony.
Id. at *2-3.
This omission suggests, at least implicitly, that the
district court thought that Radic’s recollections were
somehow inadmissible or unsupported. Nevertheless,
we hesitate to defer to, or rely on, the district court’s
implicit suggestion that it struck Radic’s statements.
True, both sides’ motions to strike were indeed volumi-
nous and occasionally frivolous. Moreover, many of
Peele’s filings, both in this court and in the district court,
contain unsupported assertions and poor citation prac-
tices. Still, without a clear articulation of the district
court’s reasoning, we cannot tell whether the court
wanted to strike Radic’s statements or whether it simply
overlooked them. In any event, Peele relies on Radic’s
testimony in his briefs in our court, (see Appellant’s Br. at
11, 30, 43-45), and the defendants have not objected to
that reliance. As a result, we think it appropriate to base
our decision, in part, on Radic’s deposition testimony
about his conversation with Burch. And, as discussed,
we think that this testimony, combined with the highly
suspicious timing, is enough to survive summary judg-
ment.
There is, of course, another side to this story. The defen-
dants have provided evidence that Peele was transferred
No. 12-3562 13
because of his disruptive, profane, and insubordinate
behavior, not because of his constitutionally protected
speech. And, according to Chief Burch, Assistant Chief
Jolley, and former Mayor Olson, the decision to transfer
Peele was made on May 4, 2007, several days before Peele
made his protected statements. Nevertheless, we do
not think that this evidence entitles the defendants to
summary judgment. Our role at this stage is to decide
if there is a factual dispute, not which side of the dispute
is right. See O’Leary v. Accretive Health, Inc., 657 F.3d 625,
630 (7th Cir. 2011).
Moreover, we think that Peele’s evidence casts enough
doubt on the defendants’ story to create a triable issue.
The defendants claim that they decided to transfer Peele
on May 4, 2007, but waited until May 10, 2007, to tell him
about it. But employee attendance records show that
the key players—Peele, Burch, Jolley, and Swickard—were
all present at work on May 8 and May 9. (R. 56-1 at 24);
(R. 71-1 at 21-23). This fact casts at least some doubt on
the defendants’ claim that they made their decision
earlier in the week—if they had already made their deci-
sion, why not tell Peele about it immediately? Peele also
points out that the written statement transferring him
was signed on May 10, not May 4. That too suggests
that the defendants’ story might be pretextual. The defen-
dants counter that they actually drafted the statement on
May 7, but left the date blank so they could fill it out
later. (See Appellees’ Br. at 16, 19.) That is surely possible,
but a reasonable jury could believe that explanation to
be pretextual in light of Burch’s alleged statements to
Radic and the otherwise suspicious timing of the transfer.
14 No. 12-3562
At this stage, we must view all of the evidence in the
light most favorable to Peele. See Arizanovska, 682 F.3d
at 702. It may ultimately be the case, of course, that the
defendants’ evidence will prove more convincing. If it
does, the defendants will be entitled to a verdict in their
favor at trial. See Greene, 660 F.3d at 980. But the defen-
dants’ evidence is not so overwhelming that no rea-
sonable jury could decide against them. Accordingly,
they are not entitled to summary judgment in their favor.
Peele also asks us to address several other related
issues, including conspiracy, qualified immunity, statu-
tory immunity, and whether the City of Portage is liable
under Monell v. Department of Social Services, 436 U.S. 658(1978). While Peele characterizes these arguments as
requests for summary judgment, (see Appellant’s Br. at
15, 32, 35, 37-38), they are more accurately described
as issues of law. For example, a holding that the
defendants are not entitled to qualified or statutory
immunity would merely bar the defendants from pre-
senting qualified or statutory immunity defenses. It
would not bar the defendants from presenting any
defense, nor would it entitle Peele to entry of judgment
in his favor without the need for a trial.
But however one characterizes these issues, we need
not tackle them now. The district court did not address
conspiracy, immunity, or Monell below. Nor have the
defendants briefed these issues in our court. Accord-
ingly, we will leave these questions for the district
court to consider in the first instance on remand.
No. 12-3562 15
III. C ONCLUSION
For the foregoing reasons, we R EVERSE the district
court’s grant of summary judgment on Peele’s retaliation
claim and R EMAND for further proceedings consistent
with this opinion.
7-9-13