Steven Yahnke v. County of Kane, Illinois

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-2162
STEVEN YAHNKE,
Plaintiff-Appellant,
v.
KANE COUNTY, ILLINOIS, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12-cv-05151 — Amy J. St. Eve, Judge.
ARGUED JANUARY 20, 2016 — DECIDED MAY 24, 2016
Before WOOD, Chief Judge, and MANION and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. After the Sheriff of Kane County
terminated Deputy Sheriff Steven Yahnke’s employment,
Yahnke sued the County and the Sheriff, alleging that he was
terminated because of his political affiliation and that the
termination occurred without due process. The district court
granted summary judgment in favor of the defendants on both
2 No. 15-2162
counts, and Yahnke appeals. We affirm the judgment on the
due process claim but we vacate the judgment on the political
affiliation count and remand for trial.
I.
The Kane County Sheriff’s office hired Yahnke in 1986, and
he worked as a Deputy Sheriff for more than twenty years,
eventually holding the rank of Sergeant. The position of Sheriff
is an elected post in Kane County, and in 2006, then-Sheriff
Kenneth Ramsey opted to retire rather than run for re-election.
Deputy Sheriff Patrick Perez decided to run for the post, and
Yahnke also contemplated entering the race. At the time,
Yahnke told several people about his intention to run and
spoke to a number of people about becoming his campaign
manager and raising funds. Eventually, Yahnke decided not to
run for the office, and Perez, a Democrat, defeated Republican
Kevin Williams, another Deputy Sheriff whom Yahnke had
supported.
Perez took over the post in December 2006. Earlier that
year, Sheriff Ramsey had approved Yahnke’s request to engage
in secondary employment as the part-time police chief of the
Village of Maple Park. In June 2007, after Sheriff Perez took
office, Yahnke was injured while working as a Deputy Sheriff
and began receiving disability benefits. In July 2007, Perez and
Undersheriff Stephen Ziman advised Yahnke that his second-
ary employment as Maple Park police chief was suspended
until he could return to work in the Sheriff’s office. But Ziman
allowed Yahnke to continue with some involvement in the
Maple Park position, such as opening the mail. In August 2007,
Yahnke hosted a party at his home attended by almost all of
No. 15-2162 3
the Maple Park police officers. At that event, Yahnke openly
discussed a plan to run for the Sheriff’s position in 2010, the
next election cycle.
Because Yahnke remained on temporary total disability, in
early November 2007, Ziman ordered Yahnke to cease all
secondary employment, including the limited involvement in
Maple Park that Ziman previously allowed. In the meantime,
Perez sought a legal opinion from the County’s State’s Attor-
ney regarding whether Yahnke’s dual employment presented
a conflict of interest. The State’s Attorney consulted with the
Illinois Attorney General and concluded that secondary
employment as chief of the Maple Park police presented a
potential conflict of interest with Yahnke’s job as a Deputy
Sheriff.1 Later that same month, Sheriff Perez permanently
revoked Yahnke’s authorization to act as police chief of Maple
Park.
Sheriff Perez also opened an investigation with the Office
of Professional Standards (“OPS”) into whether Yahnke
continued to work as police chief of Maple Park during the
period that his secondary employment was suspended. The
OPS investigator collected business and public records that
could be construed as evidence that Yahnke had continued to
perform some of his duties as police chief of Maple Park after
November 2007. On October 7, 2008, Sheriff Perez notified
Yahnke in two letters that he was filing charges with the Merit
Commission seeking his removal for cause. In the first letter,
1
Maple Park is located primarily in Kane County, but straddles the border
of neighboring DeKalb County.
4 No. 15-2162
Perez accused Yahnke of violating Merit Commission Rules by
failing to display absolute honesty during an OPS investigative
interview that took place on September 2, 2008, and by failing
to follow the orders of the Sheriff and Undersheriff to cease
secondary employment. In the second letter, Perez charged
Yahnke with failing to display absolute honesty regarding an
OPS investigation into Yahnke’s use of comp time and over-
time procedures. The Merit Commission set a hearing date to
review the charges. For reasons we will discuss below, that
hearing never took place. The Sheriff terminated Yahnke’s
employment on October 28, 2008.
Yahnke sued Kane County and Sheriff Perez, asserting that
his termination was in retaliation for exercising his First
Amendment rights, and that he was terminated without due
process, in violation of 42 U.S.C. § 1983.2 Yahnke asserted he
had been terminated because of his political affiliation and
because the Sheriff believed that Yahnke would oppose him in
an election. In the course of discovery in a state court lawsuit
between the same parties, Undersheriff Ziman was questioned
about the Sheriff’s reaction to learning that Yahnke had
engaged in outside employment. Ziman testified:
The words I recall, when it came to disciplining
Sergeant Yahnke, I went to the Sheriff and I said,
You know, he was teaching, he was—we sent
2
Yahnke also brought a state law claim for retaliatory discharge under the
Illinois Workers’ Compensation Act. After granting judgment in favor of
the defendants on the federal claims, the district court declined to exercise
supplemental jurisdiction over the state law claim and dismissed it without
prejudice.
No. 15-2162 5
Internal Affairs out and they found him teaching,
he’s guilty of that, do you want to give him a letter,
time off or whatever, I went to the Sheriff and asked
him that. I don’t mean to be vulgar here, but he said,
I’m not giving him any time off, I’m firing him. He
thinks he’s going to run for Sheriff against me some
day.
R. 170-3 at 67-68.3 In opposition to the defendants’ motion for
summary judgment, Yahnke cited this testimony as direct
evidence of the Sheriff’s motive for his termination, but the
court did not address this evidence. Instead, the district court
assumed that Yahnke established a prima facie case of First
Amendment retaliation, and turned to the Sheriff’s stated
reasons for firing Yahnke. The court found that Perez had non-
retaliatory reasons to terminate Yahnke, namely, that he had
continued his secondary employment after being ordered to
stop, and that he was not absolutely honest in departmental
investigations of his conduct. The court then shifted the burden
back to Yahnke to demonstrate that the Sheriff’s stated reasons
were not worthy of credence. The court concluded, again
without addressing the deposition testimony of Undersheriff
Ziman, that Yahnke had failed to produce evidence that the
Sheriff’s stated reasons were a pretext and that the true reason
was Yahnke’s political affiliation or ambitions. The court also
3
Although Ziman could not recall the precise date of this conversation, by
considering the context and construing the record in Yahnke’s favor, it is
apparent that it took place during the time period that the Sheriff was
investigating Yahnke for engaging in secondary employment. It was
therefore within the relevant time frame.
6 No. 15-2162
concluded that Yahnke was provided all the process that was
due in the course of his termination, and that Yahnke waived
certain procedures that were available to him. The court
therefore granted summary judgment in favor of the defen-
dants. Yahnke appeals.
II.
On appeal, Yahnke asserts that the court erred in granting
judgment to the defendants on the First Amendment claim
when he presented direct evidence that the Sheriff terminated
him because of his political activity. Yahnke also notes that, in
shifting the burden to Yahnke to demonstrate that the Sheriff’s
stated reasons were a pretext, the court erroneously required
Yahnke to meet all three parts of a disjunctive standard that
this court applied in Carter v. Chicago State Univ., 778 F.3d 651,
659 (7th Cir. 2015). Yahnke also argues on appeal that the court
erred in granting judgment on his due process claim when the
court disregarded disputed issues of material fact. Finally,
Yahnke asserts that the district court should have granted his
motion to strike the defendants’ Local Rule 56.1 statement of
facts for various violations of that rule.
We review the district court's grant of summary judgment
de novo, examining the record in the light most favorable to
Yahnke and construing all reasonable inferences from the
evidence in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Naficy v. Illinois Dep't of Human Servs., 697 F.3d
504, 509 (7th Cir. 2012); Norman–Nunnery v. Madison Area Tech.
Coll., 625 F.3d 422, 428 (7th Cir. 2010). Summary judgment is
appropriate when there are no genuine disputes of material
fact and the movant is entitled to judgment as a matter of law.
No. 15-2162 7
Fed.R.Civ.P. 56(a); Naficy, 697 F.3d at 509. Anderson, 477 U.S. at
255; McGreal v. Ostrov, 368 F.3d 657, 663 (7th Cir. 2004).
A.
“The First Amendment generally prohibits government
officials from dismissing or demoting an employee because of
the employee's engagement in constitutionally protected
political activity.” Heffernan v. City of Paterson, New Jersey,
136 S. Ct. 1412, 1416 (2016) (citing Elrod v. Burns, 427 U.S. 347(1976); and Branti v. Finkel, 445 U.S. 507 (1980)). To make out a
prima facie claim for a violation of First Amendment rights,
public employees must present evidence that (1) their speech
was constitutionally protected; (2) they suffered a deprivation
likely to deter free speech; and (3) their speech was at least a
motivating factor in the employer’s actions. Kidwell v.
Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012); Greene v. Doruff,
660 F.3d 975, 977-78 (7th Cir. 2011); Spiegla v. Hull, 371 F.3d 928,
935 (7th Cir. 2004). The defendants concede that Yahnke’s
political affiliation and desire to run for political office is
protected by the First Amendment. See Branti, 445 U.S. at 516-
17 (to prevail in a First Amendment retaliation claim, it is
sufficient for the plaintiffs to prove that they were dismissed
solely for the reason that they were not affiliated with or
sponsored by a particular political party). There is no dispute
that Yahnke’s termination is the sort of deprivation likely to
deter the exercise of First Amendment rights. See Rutan v.
Republican Party of Illinois, 497 U.S. 62, 73-74 (1990) (dismissal,
denial of transfer, failure to recall after layoff, and refusal to
promote are significant penalties that impermissibly encroach
on First Amendment freedoms unless such practices are
8 No. 15-2162
narrowly tailored to further vital government interests). The
only factor at issue here is whether the Sheriff terminated
Yahnke because of his political affiliation.
The district court analyzed causation under the burden-
shifting framework set out by the Supreme Court in Mt.
Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274(1977). The Court held that, in proving a First Amendment
claim, the initial burden is on the plaintiff to demonstrate that
his conduct was constitutionally protected and that his conduct
was a substantial or motivating factor in the defendant’s action
against him. The burden then shifts to the defendant to show
that it would have taken the same action even in the absence of
the protected conduct. Mt. Healthy, 429 U.S. at 287. We later
summarized the rule:
[T]he burden of proof relating to causation is di-
vided between the parties in First Amendment tort
cases. To make a prima facie showing of causation the
plaintiff must show only that the defendant's con-
duct was a sufficient condition of the plaintiff's
injury. The defendant can rebut, but only by show-
ing that his conduct was not a necessary condition of
the harm—the harm would have occurred anyway.
Greene, 660 F.3d at 980. On summary judgment, of course, the
plaintiff’s burden is simply to demonstrate that there is a
genuine issue of material fact on the question of causation.
The district court assumed (without citing any particular
piece of evidence) that Yahnke met the initial burden of
demonstrating that his political affiliation was a motivating
factor in the Sheriff’s decision to terminate him. The court then
No. 15-2162 9
turned to the Sheriff’s stated permissible, non-political reasons
for terminating Yahnke, namely that he violated regulations
that required him to be honest in all department dealings and
that he had failed to comply with the order that he cease
secondary employment. The court then shifted the burden
back to Yahnke to demonstrate that the Sheriff’s stated reasons
were pretextual, and that the real reason was retaliatory
animus. Thayer v. Chiczewski, 705 F.3d 237, 252 (7th Cir. 2012).
Showing pretext, the court held, required evidence that the
Sheriff’s reasons were “unworthy of credence.” Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). To
establish that the Sheriff’s reasons were not worthy of cre-
dence, the court turned to our opinion in Carter v. Chicago State
University, 778 F.3d 651 (7th Cir. 2015). There we held that a
plaintiff could prove that a defendant’s proffered justification
is unworthy of credence by “providing evidence tending to
prove that the employer's proffered reasons are factually
baseless, were not the actual motivation for the discharge in
question, or were insufficient to motivate” the employment
action. Carter, 778 F.3d at 659. Unfortunately, the district court
inadvertently switched out the “or” in that standard for an
“and” and created a conjunctive test rather than a disjunctive
one. Although Yahnke twice pointed out this error in his brief
on appeal, the defendants inexplicably continued to cite the
misquoted language in their response brief.
In any case, all Yahnke need do at this stage of the proceed-
ings is demonstrate a genuine issue of material fact on the
Sheriff’s intent in firing him. In the context of the Carter case,
Yahnke must demonstrate a genuine issue on any one of three
factors we set out in that case to survive summary judgment.
10 No. 15-2162
Yahnke easily demonstrates a genuine issue on the second
Carter factor by citing the deposition of Undersheriff Ziman.
Ziman reported to the Sheriff that an investigator had discov-
ered that Yahnke was teaching during the period of time that
he was prohibited from engaging in secondary employment.
The Undersheriff asked whether the Sheriff wanted to “give
him a letter, time off or whatever,” ostensibly referring to a
written reprimand or a suspension, both of which were options
under the progressive discipline system of the Collective
Bargaining Agreement. See R. 150-4 at 22. As we noted above,
the Sheriff replied, “I’m not giving him any time off, I’m firing
him. He thinks he’s going to run for Sheriff against me some
day.” A finder of fact crediting Ziman’s version of the conver-
sation could easily find that the Sheriff fired Yahnke because of
his political ambitions and his political opposition to the
Sheriff, a motive for the termination that is impermissible
under the First Amendment. Construing that conversation in
favor of Yahnke, it is clear that, even if Yahnke had violated
department rules, lesser forms of discipline were available and
were suggested as appropriate by the Undersheriff. The finder
of fact could conclude that Sheriff Perez rejected these lesser
sanctions in favor of termination because Yahnke expressed a
desire to run against the Sheriff, and that the proffered reasons
were not the actual motivation for the discharge. On the
causation issue, that is more than enough to defeat summary
judgment, and a trial must be held to determine the Sheriff’s
true motivation. We vacate the judgment on the First Amend-
ment claim and remand for trial.
No. 15-2162 11
B.
We affirm, however, the district court’s judgment on
Yahnke’s due process claim. In the second count of his com-
plaint, Yahnke alleged that he had a protected property
interest in his continued employment with Kane County and
that he was not afforded due process when the Sheriff termi-
nated his employment. “The fundamental requirement of due
process is the opportunity to be heard ‘at a meaningful time
and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S.
319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). In analyzing a procedural due process claim, we must
first determine whether the plaintiff was deprived of a pro-
tected interest and then determine what process is due. Bryn
Mawr Care, Inc. v. Sebelius, 749 F.3d 592, 598 (7th Cir. 2014);
Pugel v. Board of Trustees of Univ. of Ill., 378 F.3d 659, 662 (7th
Cir. 2004). The parties do not dispute that Yahnke had a
protected property interest in his continued employment with
the County; a Collective Bargaining Agreement and the Kane
County Sheriff’s Merit Commission Rules and Regulations
made Yahnke a tenured deputy subject to the Merit Commis-
sion. We therefore focus on the process that was due.
Under the Merit Commission Rules, a hearing must
commence within thirty days after the Sheriff files a written
complaint with the Merit Commission seeking removal of an
employee unless the employee waives the thirty day require-
ment or elects arbitration instead of a hearing. As we noted
above, on October 7, 2008, the Sheriff notified Yahnke that he
was filing charges with the Merit Commission seeking
Yahnke’s termination. On October 15, 2008, the Merit Commis-
12 No. 15-2162
sion sent a letter to Yahnke informing him that it had received
the Sheriff’s charges and request for termination. That same
letter notified Yahnke that the Merit Commission had sched-
uled the requisite hearing for October 27, 2008.
Also on October 15, 2008, a lawyer from Yahnke’s union
filed a “Step Three" grievance on Yahnke’s behalf (hereafter
“Step Three Grievance”). The terms of the Collective Bargain-
ing Agreement provide for a four-step grievance process. In
Step One, the employee may raise a grievance in writing with
the employee’s immediate supervisor. In the case of County
employees such as Yahnke, that grievance is referred to the
Sheriff. If unresolved at Step One, the grievance proceeds to
Step Two, which encompasses review by the County Human
Resources Director. If necessary, at Step Three, the grievance
must be presented by the union to the Sheriff or his designee
or the County Board Chairman. If still unresolved, at Step
Four, the union must notify the Sheriff in writing of the intent
to go to arbitration. But Merit Commission employees such as
Yahnke may, as an alternative to review by the Merit Commis-
sion, skip directly to Step Three:
The discipline of Merit Commission employees shall
have as an alternative to review by the Merit Com-
mission be subject to review by the provisions of
Step Three of the Grievance Procedure. Within the
time provided for in Step Four of the Grievance
Procedure for appealing the decisions of the Sheriff,
the Union may file a request for arbitration under
the provisions of Step Four of the Grievance Proce-
dure. If no such request is made, then the employee
No. 15-2162 13
shall be deemed to have elected to proceed under
the terms of the rules of the Merit Commission.
R. 150, Ex. 4 at 23-24.
In Yahnke’s Step Three Grievance, the union noted that
Yahnke had been the subject of an extensive investigation
regarding his secondary employment, and that Yahnke had
grieved the central issues of his right to maintain secondary
employment. The Step Three Grievance also noted that
Yahnke’s prior grievance had proceeded to the point of
arbitration but that the Sheriff had changed legal counsel and
forced a continuance of the arbitration. The Sheriff then placed
Yahnke on administrative leave before notifying him on
October 9, 2008 that the Sheriff was sending the matter to the
Merit Commission with a request for termination. At that
point, the Sheriff’s office stopped paying Yahnke. Yahnke
asserted that these actions violated the Collective Bargaining
Agreement because: (1) the order to cease secondary employ-
ment was illegal and arbitrary, and the Sheriff’s continuance of
the arbitration worked to Yahnke’s detriment; (2) the Sheriff
placed Yahnke in illegal unpaid status prior to a termination
hearing with the Merit Board; (3) Yahnke was not provided an
appropriate complaint as required by the Collective Bargaining
Agreement; (4) the discipline was given without just cause,
based on an illegal order, and was not progressive or correc-
tive; and (5) the discipline was a politically motivated act of
retaliation. In the box on the grievance form for “relief sought,”
Yahnke’s union representative wrote, “Stay any discipline until
the outcome of the grievance arbitration addressing the central
issue of the O.P.S. investigation.” R. 150, Ex. 7.
14 No. 15-2162
A week later, the union lawyer representing Yahnke sent a
letter to the chairman of the Merit Commission stating:
I have been made aware of a letter that you have
sent to … Yahnke, concerning a Merit Commission
hearing this coming Monday October 27, 2008.
Pursuant to … the Collective Bargaining Agreement
… Yahnke has exercised his alternative to review by
the Merit Commission by provision of step 3 of the
Grievance Procedure. The step 3 grievance was filed
… on October 15, 2008. … In the event the Chairman
denies the grievance, Sergeant Yahnke wishes to
proceed to step 4 of the grievance process under the
Collective Bargaining agreement with his intent to
go to independent arbitration.
R. 150, Ex. 15.
On October 28, the Sheriff again sent Yahnke a series of
letters setting forth his purported violations, and stating in
relevant part:
The violations of these general orders warrant your
dismissal as a Deputy Peace Officer Sergeant. Based
on my authority under the terms of 55 ILCS 5/3-
8014, and since you have waived your right to a
Merit Commission hearing and filed notice of your
intent to go to independent arbitration, I am termi-
nating your employment with the Kane County
Sheriff’s Department, effective immediately.
R. 150, Ex. 8. At a Merit Commission meeting that same day,
Undersheriff Ziman “advised the Commission that Sgt. Steven
No. 15-2162 15
Yahnke has been fired and requested arbitration. The Commis-
sion will not be hearing the case.” R. 150, Ex. 9.
And indeed the Commission never heard the case. Nor did
it go to arbitration, even though the union sought to compel
arbitration on Yahnke’s behalf in state court. As the Illinois
Appellate Court explained, when Yahnke attempted to set up
the arbitration hearing, Sheriff Perez responded that the Step
Three Grievance had been resolved and he did not agree to
arbitrate it. Policemen’s Benevolent Labor Comm. v. County of
Kane, 2012 IL App (2d) 120009-U, 2012 WL 6969132 (Ill. App.
Ct. 2012). Perez took the position that Yahnke’s October 15
grievance had been resolved when Yahnke “was sent his check
for the time off work he claimed prior to his termination.”
Yahnke conceded in the state court proceeding that the
termination did not occur until October 28, and that his
October 15 Step Three Grievance was not filed with regard to
the October 28 termination letter. The Sheriff argued that
Yahnke had not filed a grievance specifically challenging his
termination. The Appellate Court affirmed the trial court’s
conclusion that, once the October 15 grievance was resolved,
nothing was left to arbitrate, and the October 15 grievance was
insufficient to challenge the termination.
With that factual background in place, the district court
analyzed Yahnke’s due process claim. The court noted that
Yahnke had entered into an Agreed Order to waive his right to
proceed before the Merit Commission and instead elected to
proceed to arbitration under the Collective Bargaining Agree-
ment. R. 163, Ex. 5. But having waived the Merit Commission
hearing, Yahnke did not follow up and file a grievance related
to his October 28 termination. The court noted that Yahnke had
16 No. 15-2162
adequate procedures available and simply did not follow them.
The court therefore granted judgment in favor of the defen-
dants on the due process claim.
On appeal, Yahnke argues that, under the Merit Commis-
sion Rules, he must be afforded a hearing before the Merit
Commission unless he waives the thirty day requirement or
elects arbitration instead of a hearing. Yahnke contends that
the Sheriff conceded that Yahnke had requested arbitration
and that Yahnke had “filed notice of [his] intent to go to
independent arbitration.” Yahnke contends that the Sheriff
could not have withdrawn the Merit Commission charges
unless the Sheriff also accepted that Yahnke had already
properly filed his request for arbitration of his termination.
Moreover, the Collective Bargaining Agreement provides that
if an employee does not file a grievance, he or she is deemed to
elect to proceed under the rules of the Merit Commission.
Yahnke faults the district court for concluding that he was
required to file an additional grievance specifically directed at
his termination; by Yahnke’s reasoning, the October 15
grievance was sufficient to preserve his right to arbitrate his
termination and the Sheriff had already conceded that it was
sufficient. The Sheriff’s later refusal to arbitrate the termination
was a reversal of his earlier concession that Yahnke had
followed the proper procedures. According to Yahnke, this
creates a disputed issue of material fact, namely, why the
Sheriff told the Merit Commission that Yahnke had requested
arbitration and that the Sheriff therefore would withdraw the
Merit Commission charges so that the parties could proceed to
arbitration. According to Yahnke, the answer is that the Sheriff
No. 15-2162 17
took these actions so that Yahnke would have no means of
obtaining a hearing on his termination.
Although there may be a factual dispute regarding why the
Sheriff told the Merit Commission that Yahnke was waiving
his hearing in favor of arbitration, that dispute is not material
to Yahnke’s due process claim. It is the actions that Yahnke
took and, more importantly, did not take, that led to his
procedural bind. A process existed for Yahnke to challenge his
termination: he could have had a hearing before the Merit
Commission or he could have filed a grievance against his
termination and proceeded to arbitration. But he waived the
Merit Commission hearing when his union lawyer sent a letter
to the Merit Commission, and then he failed to file a grievance
that was adequate to challenge his termination. He may have
thought that the October 15 grievance was adequate, but by his
own concession, and by the findings of the Illinois courts, that
grievance was not specifically addressed to the termination,
which occurred two weeks after the Step Three Grievance was
filed. Yahnke essentially argues the Sheriff’s statements that
Yahnke had filed his intention to go to arbitration are conclu-
sive on the issue. But the Sheriff’s characterization of events to
the Merit Commission could neither preserve nor waive
Yahnke’s arbitration rights. Only Yahnke could preserve his
rights, and the Illinois courts found that he failed to do so
when he neglected to file a grievance specifically challenging
his termination. There is no evidence that the Sheriff prevented
him from obtaining a hearing. Due process was available;
Yahnke simply failed to perfect his request for arbitration. The
district court therefore did not err in granting judgment to the
defendants on the due process claim.
18 No. 15-2162
III.
The district court also denied Yahnke’s motion to strike the
defendants’ Local Rule 56.1 Statement of Facts. But the
propriety of that decision is now moot in relation to Yahnke’s
First Amendment claim because we are remanding for trial. As
for Yahnke’s due process claim, we have relied only on
undisputed facts and on Yahnke’s version of the facts in
affirming the district court’s grant of judgment in favor of the
defendants. We will therefore not address the issue further. In
sum, we vacate the judgment in part and remand for a trial on
Yahnke’s claim under the First Amendment. We affirm the
judgment as to the due process claim. Each party will bear its
own costs on appeal.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART.