Patrick Fehlman v. James Mankowski

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1467
PATRICK FEHLMAN,
Plaintiff-Appellant,
v.
JAMES MANKOWSKI,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:21-cv-00362-jdp — James D. Peterson, Chief Judge.
____________________
ARGUED OCTOBER 31, 2022 — DECIDED JULY 26, 2023
____________________
Before EASTERBROOK, JACKSON-AKIWUMI, and LEE, Circuit
Judges.
JACKSON-AKIWUMI, Circuit Judge. Patrick Fehlman, a for-
mer member of the Neillsville, Wisconsin police department,
sued Chief of Police James Mankowski, alleging the Chief re-
taliated against him for critiquing the Chief’s leadership, in
violation of the First Amendment. The district court dis-
missed Fehlman’s complaint. The court determined that Feh-
lman’s statements, both directly to the Chief and later to the
2 No. 22-1467
Neillsville Police & Fire Commission, were made as a public
employee and therefore foreclosed from First Amendment
protection by Garcetti v. Ceballos, 547 U.S. 410 (2006). On ap-
peal, Fehlman challenges the district court’s decision about
his statements to the Police & Fire Commission, but we affirm
for the same reason as the district court: Fehlman’s remarks
were made in his capacity as a public employee, not a private
citizen.
I
Fehlman appeals a judgment granting a motion to dismiss,
so in our review of his case we assume the truth of his well-
pleaded allegations. Peterson v. Wexford Health Sources, Inc.,
986 F.3d 746, 751 (7th Cir. 2021). Fehlman served as the Neills-
ville Police Department’s interim police chief for most of 2019.
At the start of 2020, James Mankowski was hired as the per-
manent police chief and Fehlman returned to his role as a
rank-and-file officer. 1 Over the next several months, Fehlman
raised a series of concerns about the management of the de-
partment to Mankowski, only to be rebuffed.
Fehlman and several other officers requested a meeting
with the Neillsville Police & Fire Commission (“PFC”) to de-
tail their concerns. At the meeting, Fehlman addressed issues
of “professional integrity and ethics,” raising the following
concerns:
1 The parties do not specify Fehlman’s position during the period rel-
evant to this suit, but both suggest he returned to being a rank-and-file
officer. While this omission is notable, we take the parties’ suggestion as
true.
No. 22-1467 3
• Mankowski instilled fear in officers at the
NPD, and they feared retaliation from him.
• Mankowski lacked professionalism; in one
instance, while on duty, he told a business
owner that he should consider installing a
stripper pole in the bar and having the busi-
ness owner’s wife dance on it topless.
• Mankowski ordered officers to turn off their
body cameras in violation of department
policy and best practices.
• Mankowski verbally abused suspects, berat-
ing them and insulting them gratuitously.
• Mankowski changed radio talk procedures
in ways that threatened officer safety.
• Mankowski prioritized speed limit enforce-
ment over responding to an allegation of
child abuse at a school
Mankowski, upset that Fehlman had taken these concerns
to the PFC, harassed Fehlman afterwards, including by taking
away his work credit card. Mankowski also yelled at Fehlman
and the other officers, threatening them with charges of in-
subordination.
Fehlman resigned from the NPD the next day and sought
work with the Clark County Sheriff’s Office. Mankowski in-
terfered with Fehlman’s recruitment by making false, nega-
tive comments about the former officer (Fehlman was hired
nonetheless). Fehlman also discovered that his NPD
4 No. 22-1467
personnel file had been altered, and that Mankowski gave in-
formation to the unemployment compensation office that led
to a delay in benefits. Upon learning Fehlman had reentered
the NPD building to examine his personnel file, Mankowski
sent the ex-officer a letter banning him from the premises.
Fehlman sued Mankowski under 42 U.S.C. § 1983, alleging
violation of his First Amendment rights. Mankowski moved
to dismiss under Federal Rule of Civil Procedure 12(b)(6), ar-
guing that Fehlman’s speech lacked constitutional protection
because it was made pursuant to his official duties. The dis-
trict court agreed with Mankowski, leading to this appeal.
Fehlman concedes that the complaints he directed initially to
Mankowski do not qualify for First Amendment protection,
so this appeal concerns only his statements to the PFC.
II
We review a dismissal for failure to state a claim under
Rule 12(b)(6) de novo, accepting as true all well-pleaded facts
and drawing reasonable inferences in favor of the non-mov-
ing party. Peterson, 986 F.3d at 751.
Establishing a prima facie case of First Amendment retali-
ation requires showing (1) Fehlman engaged in constitution-
ally protected speech; (2) he suffered a deprivation likely to
deter him from exercising his First Amendment rights; and (3)
the speech was a motivating factor in the employer’s adverse
action. Sweet v. Town of Bargersville, 18 F.4th 273, 277–78 (7th
Cir. 2021). Fehlman claims that he suffered retaliation both
during and after his employment with the NPD. But because
we conclude that Fehlman’s speech was not constitutionally
protected, we deny his appeal.
No. 22-1467 5
Whether a public employee’s speech is protected turns
first on whether the speech was made in the employee’s ca-
pacity as an employee or as a private citizen. McArdle v. Peoria
Sch. Dist. No. 150, 705 F.3d 751, 754 (7th Cir. 2013). If speech
occurs “pursuant to their official duties,” employees are not
speaking as private individuals for First Amendment pur-
poses and therefore cannot turn to the Amendment’s protec-
tions as a defense against employer discipline. Garcetti v. Ce-
ballos, 547 U.S. 410, 421 (2006).
Whether speech is made “pursuant to” official duties is
broader than an employee’s job description. Employees’ state-
ments about “misconduct affecting an area within [their] re-
sponsibility” are considered official-capacity speech even if
those employees are not ordinarily responsible for investigat-
ing misconduct. McArdle, 705 F.3d at 754. This is particularly
pronounced for law enforcement officers whose “duty to re-
port official police misconduct is a basic part of the job.”
Forgue v. City of Chicago, 873 F. 3d 962, 967 (7th Cir. 2017).
We conclude that Fehlman’s speech to the PFC was made
in his role as a police officer. A key factor in this determination
is the structure of the PFC itself. By statute, boards like the
PFC retain the general authority “[t]o organize and supervise
the fire and police … departments and to prescribe rules and
regulations for their control and management.” WIS. STAT.
§ 62.13(6). Relatedly, the PFC has disciplinary authority over
the chief of police, who “shall hold their offices during good
behavior, subject to suspension or removal by the [PFC] for
cause.” Id. § 62.13(3). The Wisconsin Supreme Court has also
interpreted this provision as creating a “comprehensive sys-
tem” requiring cities to maintain commissions “with jurisdic-
tion over the hiring, promotion, and discipline of members of
6 No. 22-1467
police and fire departments.” City of Madison v. Wis. Emp. Rels.
Comm'n, 2003 WI 52, ¶ 13, 261 Wis. 2d 423, 432, 662 N.W.2d
318, 322 (2003). These statutory provisions governing the PFC
strongly suggest the body is best seen as part of Fehlman’s
chain of command. This renders Fehlman’s remarks a form of
internal grievance. See, e.g., Tamayo v. Blagojevich, 526 F.3d
1074, 1092 (7th Cir. 2008) (holding that a senior administrator
who testified before a legislative committee with oversight of
her agency was “discharging the responsibilities of her office,
not appearing as ‘Jane Q. Public.’”); Houskins v. Sheahan, 549
F.3d 480, 491 (7th Cir. 2008) (distinguishing an employee’s in-
ternal complaint about an assault, which was made pursuant
to official duties, from a police report on the same conduct,
which was provided as a citizen). Fehlman’s statements to the
PFC are the definition of speech that, in Garcetti’s formulation,
“owes its existence to a public employee’s professional re-
sponsibilities,” and therefore do not implicate speech liberties
the employee enjoys as a private citizen. 547 U.S. at 421–22.
Fehlman disagrees, arguing Wisconsin law demonstrates
his remarks were made as a citizen. In doing so, he notes po-
lice chiefs have the authority to file disciplinary charges
against subordinates with the PFC, see WIS. STAT.
§ 62.13(5)(b), but subordinates do not have corresponding
power to bring charges upwards against their chiefs to the
PFC. From this, Fehlman concludes that “[a]ny misconduct
exposed by a subordinate before a police commission against
a chief would necessarily be as a citizen.” Fehlman’s supposi-
tion is a cramped view of the Wisconsin statute. That subor-
dinates lack the ability to bring charges against superiors does
not necessarily reduce the subordinates’ complaints to that of
a common citizen. Further, simply because the statute does
not provide a mechanism for subordinates to file formal
No. 22-1467 7
complaints against their superiors does not mean the PFC
cannot solicit employees’ views as a part of the investigations
it undertakes pursuant to its statutory authority discussed
above.
The circumstances of Fehlman’s meeting with the PFC fur-
ther support our conclusion that his speech was made in his
capacity as a police officer, not a private citizen. Fehlman al-
leged that he and his fellow officers “requested a meeting”
with the PFC. He then attended the meeting, along with two
other officers. So did Mankowski, who at some point also
spoke with the PFC. Fehlman does not allege the meeting was
open to the public, and the minutes from the PFC’s meeting
indicate that it went into closed session “for the purpose of
considering employment, promotion, compensation or per-
formance evaluation data of any public employee over which
the governmental body has jurisdiction or exercises responsi-
bility, specifically issues and procedures of the Neillsville Po-
lice Department.” 2 That Fehlman spoke in a closed meeting,
which he requested, and which the PFC described as a meet-
ing to address governance issues involving the NPD, under-
score the degree to which Fehlman’s speech was made
2 Neillsville, WI. Police & Fire Commission, Minutes of the Thursday,
June 25, 2020 3:00 PM Meeting, https://neillsville-wi.com/wp-con-
tent/uploads/2020/07/Minutes-Police-Fire-06-25-20-
OPEN.pdf. The PFC meeting’s minutes are not attached to Fehlman’s
amended complaint or otherwise included in the record. However, the
complaint references the minutes at paragraph 20. Documents that a
plaintiff relies on in a complaint may be considered at the motion to dis-
miss stage and therefore by this court on appeal. Williamson v. Curran, 714
F.3d 432, 436 (7th Cir. 2013).
8 No. 22-1467
pursuant to his official duties. He used what is effectively a
supervisory agency of the NPD to raise a complaint about his
manager.
Taken as a whole, the record before us suggests the PFC is
best considered an extension of the NPD’s management and
operational structure. Fehlman provided insight from his per-
spective as an employee, not a private citizen, to assist the
PFC in carrying out that function.
Because we conclude that Fehlman spoke not as private
citizen but as a public employee, we do not reach the second
hurdle he would need to surmount to succeed with a First
Amendment retaliation claim. That second question, reserved
for private citizen speakers only, is whether the speech ad-
dressed a matter of public concern. Bivens v. Trent, 591 F.3d
555, 560 (7th Cir. 2010). As the district court ably explained,
“under Garcetti v. Ceballos, 547 U.S. 410 (2006), a public em-
ployee’s speech made pursuant to his official duties isn’t pro-
tected by the First Amendment, no matter how important that
speech may be or how it could affect the public interest.” Be-
cause Fehlman’s comments were made in his role as a public
employee, they are not subject to First Amendment protec-
tion, regardless of whether his critiques of Mankowski might
affect or interest the public.
III
Fehlman argues that even if his speech was not protected
under the First Amendment when he was employed by the
NPD, his speech is protected from Makowski’s alleged post-
employment retaliation because none of the policy arguments
underpinning Garcetti apply to the post-employment context.
But there is no caselaw supporting this reading of Garcetti.
No. 22-1467 9
Establishing a prima facie case of First Amendment retaliation
requires an initial showing that the speech the employee en-
gaged in was constitutionally protected. Sweet, 18 F.4th at 278.
If the speech is not protected to begin with, any retaliation for
that speech is not actionable under a First Amendment frame-
work, so the question of whether that retaliation happened
during or after employment is legally irrelevant.
IV
For these reasons, we AFFIRM the district court’s deci-
sion.