Beth Sweet v. Town of Bargersville ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2061
BETH A. SWEET,
Plaintiff-Appellant,
v.
TOWN OF BARGERSVILLE and
STEVE LONGSTREET,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:18-cv-01950-TWP-MJD — Tanya Walton Pratt, Chief Judge.
____________________
ARGUED DECEMBER 7, 2020 — DECIDED NOVEMBER 17, 2021
____________________
Before SYKES, Chief Judge, and BRENNAN and ST. EVE,
Circuit Judges.
SYKES, Chief Judge. After a steady buildup of performance
problems, Beth Sweet lost her job as a customer-service
representative in the clerk-treasurer’s office in the Town of
Bargersville, Indiana. Several months before she was fired,
Sweet criticized Steve Longstreet, the elected clerk-treasurer,
for reconnecting the utility service of a delinquent customer
2 No. 20-2061
who happened to be Longstreet’s wealthy business partner.
Sweet contends that she was fired for vocalizing her opposi-
tion to the reconnection, so she sued Longstreet and the
Town alleging a claim of retaliation in violation of her First
Amendment right to freedom of speech. Her evidence in
support of retaliatory motive is paltry—“suspicious timing”
in the form of a five-month gap between her criticism and
the termination of her employment; an ambiguous affidavit
from a fellow employee; and the fact that her former em-
ployer offered several reasons for her termination rather
than a single, consistent explanation. The district court held
that Sweet failed to establish a prima facie case of retaliation
and entered summary judgment for the defendants. We
affirm.
I. Background
Beth Sweet worked as a customer-service representative
in the Bargersville clerk-treasurer’s office for almost
20 years. Throughout most of her employment, Sweet was
responsible for collecting utility bills and setting up payment
plans for customers. In 2012 Steve Longstreet was elected to
the clerk-treasurer position. Three years later, the office
outsourced collections to a private firm to cut costs, so Sweet
shifted to a more general customer-service role in which she
communicated with customers and managed disconnections
on overdue utility accounts.
Sweet had generally received positive performance
reviews until her transition away from collections in 2015.
After that point, her annual reviews showed a decline in her
performance. Her 2015 and 2016 reviews, which rated her
overall performance at 2.6/5.0 and 2.0/5.0 respectively, noted
that she was argumentative, resistant to change, and disor-
No. 20-2061 3
ganized. Those reviews—along with Sweet’s numerous
write-ups and a journal kept by her supervisor Melissa
Fraser—documented many specific and recurring problems.
She failed to learn the new billing system, which her super-
visors chalked up to her lack of initiative and anger at office
leadership for outsourcing collections. She refused to cross-
train fellow employees on processes in which she had exper-
tise. She regularly clocked in 10–20 minutes before begin-
ning work, casually passing the time in the breakroom or
restroom before finally reporting to her desk. Clocking in
early but not starting her duties meant that she received
overtime pay for time she didn’t work. And Sweet habitually
used her work computer and cell phone for personal matters
during work hours. To top it all off, she bullied a fellow
employee by accusing her of receiving her job as a favor
from a Town council member.
In August 2017 Sweet noticed that Jim Parsetich, a
wealthy Bargersville resident, had fallen behind on his
utility payments, so she disconnected his service. Longstreet
countermanded her decision and reconnected Parsetich’s
utilities after business hours. Sweet believed that
Longstreet’s action was influenced by Parsetich’s promi-
nence in Bargersville and by the fact that the two were
business partners in a land-development project.
Sweet vocalized her opposition to Longstreet’s action to
others in the office. She also confronted him about the
reconnection and expressed her view that customers should
be treated uniformly, regardless of their wealth or the extent
of their property ownership. She testified in deposition that
Longstreet told her that she could not treat multimillionaires
the same way as a poor person. Longstreet testified that he
4 No. 20-2061
has no recollection of discussing the matter with Sweet and
that reconnecting Parsetich’s utilities was consistent with his
general policy of reducing the number of disconnections in
Bargersville, which he viewed as an unnecessary waste of
resources.
Shortly after this incident, Sweet was removed from
handling disconnections. Later that year, she made a costly
fee-collection error. She incorrectly informed Jessen Funeral
Home that it was not required to pay an engineering fee for
work performed on its property. Her mistake cost the Town
about $1,000.
Longstreet fired Sweet in January 2018. She claims that
he told her the decision to let her go was related to the
office’s transition to greater use of automation, for which her
skills were a poor fit. She also contends that Nancy Kehl, the
deputy clerk-treasurer, later gave her a different explana-
tion, telling her that the leadership team had decided in late
November or early December 2017 to fire her because of the
fee-collection error involving the funeral home.
Six months after she was fired, Sweet sued Longstreet
and the Town under 42 U.S.C. § 1983 alleging a violation of
her First Amendment right to free speech. 1 The claim rests
on a retaliation theory: Sweet alleges that she was fired for
objecting to Longstreet’s decision to reconnect Parsetich’s
utilities.
1Sweet also raised an age-discrimination claim but has abandoned it on
appeal.
No. 20-2061 5
After lengthy discovery, the district judge entered sum-
mary judgment for the defendants. 2 She assumed without
deciding that Sweet’s criticism of Longstreet was constitu-
tionally protected speech and instead rested her decision on
the causation element of the claim, ruling that Sweet’s
evidence of retaliatory motive was insufficient to establish a
prima facie case. Sweet unsuccessfully sought reconsidera-
tion, and this appeal followed.
II. Discussion
To establish a prima facie case of First Amendment retal-
iation, a public employee must show that: “(1) she engaged
in constitutionally protected speech; (2) she suffered a
deprivation likely to deter her from exercising her First
Amendment rights; and (3) her speech was a motivating
factor in her employer’s adverse action” against her.
Valentino v. Village of South Chicago Heights, 575 F.3d 664, 670
(7th Cir. 2009). If the plaintiff produces enough evidence to
establish each of these elements, the burden shifts to the
public employer to demonstrate that it would have taken the
same action regardless of the protected speech. Id. Even
then, the plaintiff can still survive summary judgment by
2 Neither party mentions the special requirements for holding a munici-
pality liable under § 1983, which is permissible only when a constitu-
tional violation occurs as a result of a municipal custom or policy or
when the violation is committed by an individual with final policymak-
ing authority. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978);
Valentino v. Village of South Chicago Heights, 575 F.3d 664, 674 (7th Cir.
2009) (applying Monell to a First Amendment retaliation claim against a
municipality). We assume without deciding that Longstreet had final
policymaking authority, thereby making the Town liable for his constitu-
tional violations. Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).
6 No. 20-2061
producing evidence showing that the employer's proffered
reason for the action was merely pretextual. Id.The district judge held that Sweet failed to carry her bur-
den on the elements of her prima facie case. We review the
judge’s order de novo. Flexible Steel Lacing Co. v. Conveyor
Accessories, Inc., 955 F.3d 632, 643 (7th Cir. 2020).
A. Protected Speech
As we’ve noted, the judge assumed that Sweet’s criticism
of Longstreet was constitutionally protected speech and
moved directly to the element of causation. We could take
the same shortcut; as we will explain, the evidence is insuffi-
cient to establish retaliatory motive. But we’re skeptical that
Sweet’s speech was constitutionally protected in the first
place. For completeness, we turn briefly to the first element
of the claim.
“[P]ublic employees do not surrender all their First
Amendment rights by reason of their employment.” Garcetti
v. Ceballos, 547 U.S. 410, 417 (2006). The Amendment protects
“a public employee’s right, in certain circumstances, to
speak as a citizen addressing matters of public concern.” Id.But it “does not prohibit managerial discipline based on an
employee’s expressions made pursuant to official responsi-
bilities.” Id. at 424. “[S]peech that owes its existence to a
public employee’s professional responsibilities” does not
implicate the employee’s rights under the First Amendment.
Id. at 421. “[A]n employee’s speech about misconduct affect-
ing an area within her responsibility is considered pursuant
to her employment even when she is not strictly required to
make it.” Hatcher v. Bd. of Trs. of S. Ill. Univ., 829 F.3d 531, 539
No. 20-2061 7
(7th Cir. 2016), overruled on other grounds by Ortiz v. Werner
Enters., Inc., 834 F.3d 760 (7th Cir. 2016).
Sweet’s job duties during the relevant time period in-
cluded handling utility disconnections. Her criticism of
Longstreet for reconnecting a delinquent citizen amounted
to a complaint about possible misconduct in her official area
of responsibility. Under a straightforward application of
Garcetti, her criticism of Longstreet was not constitutionally
protected. Accord Renken v. Gregory, 541 F.3d 769, 774 (7th
Cir. 2008) (holding that the speech of a professor who spoke
out against the funding decisions of a supervisor was made
pursuant to official duties).
Sweet deploys a familiar tactic to get around Garcetti: she
minimizes the scope of her job duties as a customer-service
representative. Specifically, she claims that it was not her job
as a low-level employee to confront a high-ranking elected
official about questions of policy.
But Garcetti and our precedents do not define job duties
so narrowly. Spiegla v. Hull, 481 F.3d 961, 966 (7th Cir. 2007)
(“focus[ing] on ‘core’ job functions is too narrow after
Garcetti”). The inquiry is a practical one that goes beyond an
employee’s formal job description. Garcetti, 547 U.S. at 424–
25. Simply put, Sweet was responsible for utility disconnec-
tions, and she criticized her boss over his decision to recon-
nect a wealthy delinquent customer. Sweet’s speech thus
“owe[d] its existence to [her] professional responsibilities,”
id. at 421, even though she was “not strictly required to
make it,” Hatcher, 829 F.3d at 539. Because her complaint
about Longstreet fell within the scope of her official duties,
her case fails at the first step in the analysis.
8 No. 20-2061
B. Causation
Even if Sweet’s criticism of Longstreet was constitution-
ally protected, she lacks sufficient evidence to support an
inference that it was a motivating factor in the termination of
her employment. As is often the case, Sweet’s evidence of
retaliatory motive is circumstantial. “Circumstantial evi-
dence may include suspicious timing, ambiguous oral or
written statements, or behavior towards or comments di-
rected at other employees in the protected group.” Long v.
Teachers' Ret. Sys. of Ill., 585 F.3d 344, 350 (7th Cir. 2009).
Sweet argues that the timing of Longstreet’s decision to
fire her is suspicious. Although “suspicious timing will
rarely be sufficient in and of itself to create a triable issue,” if
the employee’s speech and the adverse employment action
are very close in time, it may be probative of a causal link
between the two events. Kidwell v. Eisenhauer, 679 F.3d 957,
966 (7th Cir. 2012) (quotation marks omitted).
Sweet complained about Longstreet’s decision to recon-
nect Parsetich’s utilities in August 2017, and she was fired
five months later, in January 2018. That time lapse is simply
too great to support an inference of retaliatory motive.
Though there is “no set legal rule[,] … we typically allow no
more than a few days to elapse between the protected
activity and the adverse action.” Id. In Kidwell we held that a
two-month gap and a five-week gap were not close enough
to establish probative suspicious timing. Id. at 967. We have
rejected similar timelines in numerous other cases. 3 See, e.g.,
3Sweet contends that the district judge relied on a case that was subse-
quently overruled in holding that her speech and firing were too far
apart to establish suspicious timing. See Galdikas v. Fagan, 342 F.3d 684No. 20-2061 9
Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 919 (7th Cir.
2000) (three-month gap); Davidson v. Midelfort Clinic, Ltd.,
133 F.3d 499, 511 (7th Cir. 1998) (five-month gap). Sweet’s
criticism of Longstreet was far too distant from the termina-
tion of her employment to support a causal link between the
two. A gap of five months is much longer than anything we
have accepted as evidence of retaliatory motive.
To salvage this argument, Sweet recasts the timing calcu-
lation. The relevant timeframe, she contends, is measured
from the time of her criticism of Longstreet to the time that
he decided to fire her. This argument relies on Kehl’s state-
ment that the leadership team decided to fire Sweet as early
as late November. That would reduce the timing gap to
three months.
As reframed, Sweet’s argument has two shortcomings.
First, even if November rather than January is the relevant
point in time, we’re left with a three-month gap—still too
long to support an inference of retaliatory motive. Second, to
assess whether the employer’s timing is suspicious enough
to be probative of retaliation, we look to the duration of time
between the protected speech and the adverse employment
action itself, not the steps in the decision process that pre-
ceded it. Kidwell, 679 F.3d at 966–67.
Sweet argues in the alternative that she suffered an ad-
verse employment action when she was removed from
(7th Cir. 2003), overruled in part by Spiegla v. Hull, 371 F.3d 928 (7th Cir.
2004). We need not address the extent to which Galdikas remains good
law because other precedent makes clear that the five-month gap
between Sweet’s speech and termination is too long to infer suspicious
timing.
10 No. 20-2061
performing utility disconnections, which occurred shortly
after her criticism of Longstreet. But a reassignment of job
responsibilities “is not materially adverse unless it repre-
sents a significant alteration to the employee’s duties, which
is often reflected by a corresponding change in work hours,
compensation, or career prospects.” Koty v. DuPage County,
900 F.3d 515, 520 (7th Cir. 2018) (quotation marks omitted).
No evidence suggests that the reassignment from perform-
ing disconnections was materially adverse.
Sweet also relies on an affidavit from Jennifer Ashbaugh-
Ernest, a fellow employee who was also supervised by
Fraser. See Hobgood v. Ill. Gaming Bd., 731 F.3d 635, 644 (7th
Cir. 2013). In her sworn statement, Ashbaugh-Ernest attested
that in August 2017 she billed a developer for utility fees
incurred before the property owner took possession of the
property, but Fraser told her that she needed to bill the
property owner instead. Ashbaugh-Ernest complained to
Kehl about Fraser’s admonition and was fired at the end of
the month.
Ashbaugh-Ernest’s affidavit does not add anything to
Sweet’s case. For starters, we do not know if she actually
thinks her criticism of Fraser led to the termination of her
employment; her affidavit is silent on this point. And she
says nothing at all about Longstreet or his involvement in
the decision to fire Sweet. Even if we assume for the sake of
argument that Kehl and Fraser acted with retaliatory motive
in firing Ashbaugh-Ernest, their actions shed no light on
whether Longstreet was motivated by a desire to retaliate
against Sweet—or any other subordinate in the office who
may have criticized him. Willis v. Marion Cnty. Auditor's Off.,
118 F.3d 542, 546 (7th Cir. 1997) (“Statements by subordi-
No. 20-2061 11
nates normally are not probative of an intent to retaliate by
the decisionmaker.”).
Finally, Sweet relies on what she says are the “shifting”
explanations for why she was fired. She claims that
Longstreet told her she lost her job to automation but Kehl
later gave her a different explanation, saying she was fired
because of the billing mistake involving the funeral home.
Sweet also points to a statement in Longstreet’s affidavit in
which he refers to her bullying as a factor in the decision to
terminate her employment.
Whatever else might be said about this evidence, it’s not
enough to establish retaliatory motive. An employer’s
shifting explanations for taking an adverse employment
action may be evidence that its proffered reason is pretextu-
al. See, e.g., Reid v. Neighborhood Assistance Corp. of Am.,
749 F.3d 581, 589 (7th Cir. 2014); Hitchcock v. Angel Corps,
Inc., 718 F.3d 733, 738 (7th Cir. 2013). But Sweet’s evidence,
when read in context, does not suggest pretext. Rather, the
evidence as a whole points in the same direction: Sweet was
fired for multiple reasons, as summarized in Longstreet’s
affidavit, which is not nearly as limited as Sweet implies. He
attested that Sweet was fired because of “her long docu-
mented history of deficient performance, failure to improve
on requested areas, incidences of bullying and repeated
mistakes.”
In short, Sweet has not produced sufficient evidence
from which a reasonable jury could infer retaliatory motive.
Because her criticism of Longstreet was not constitutionally
protected and the record does not suggest that her speech
was a motivating factor in the termination of her employ-
12 No. 20-2061
ment, the judge appropriately entered summary judgment
for the defendants.
AFFIRMED