In the
United States Court of Appeals
For the Seventh Circuit
No. 98-1343
CHRISTIAN F. THOMSEN,
Plaintiff-Appellant,
v.
WAYNE ROMEIS, in his individual and official
capacity; MICHAEL S. THEISEN, in his individual
and official capacity; GERALDINE MATTHEWS,
in her individual and official capacity; MARY LOU
BRIMMER, in her individual and official capacity;
and THE TOWN OF MADISON, WISCONSIN,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 97-C-341--John C. Shabaz, Chief Judge.
Argued November 3, 1998--Decided January 6, 2000
Before, COFFEY, EASTERBROOK, and DIANE P. WOOD,
Circuit Judges.
COFFEY, Circuit Judge. Christian F. Thomsen, a
former police officer with the Town of Madison
Police Department in Madison, Wisconsin, brought
this action under 42 U.S.C. sec. 1983 against the
Town of Madison, Wisconsin Chief of Police, Wayne
Romeis; Madison Town Board members, Michael
Theisen, Geraldine Matthews and Mary Lou Brimmer;
and the Town of Madison ("defendants"), alleging
that the defendants violated his rights under the
First Amendment because they retaliated against
him after he complained to the local Police and
Fire Commission about the misconduct of other
members of his Police Department; he says the
retaliation took the form of reprimands for minor
violations of Department policy and ultimately,
termination. He also alleged that defendants
violated his rights under the Fourteenth
Amendment and Wisconsin law because they
wrongfully terminated him without allowing him to
bring his grievance regarding the termination to
arbitration. Thomsen originally filed suit in the
Wisconsin state court system. Defendant Romeis
moved for removal of the action to the United
States District Court for the Western District of
Wisconsin under 28 U.S.C. sec. 1446. The district
court permitted removal. The defendants filed
motions for summary judgment and the trial court
then granted summary judgment for the defendants
on Thomsen’s First and Fourteenth Amendment
claims, but did not rule on the state law claims,
dismissing them without prejudice as permitted by
28 U.S.C. sec. 1367(c)(3). Thomsen appeals. We
affirm.
I. BACKGROUND
Thomsen began working for the Town of Madison
Police Department ("the Department") as a part-
time officer in 1986 and became a full-time
officer in 1989. In 1992, he was promoted to the
position of Patrol Sergeant. Between 1990 and
1993, Thomsen received six written commendations
for his work. Prior to February 1994, Thomsen
never received a written adverse comment
regarding his work, nor a letter of counseling,
much less any type of written discipline.
However, in February 1994, Thomsen and three
other officers with the Department filed a
"Request for Investigation" ("RFI") with the Town
of Madison’s Police and Fire Commission, alleging
that Detectives Jim McCarthy and Mike Gehn were
engaging in police misconduct, and that their
chief, Romeis, was well aware of it but failed to
take any action. For example, one instance of
alleged misconduct was the carrying out of a
practice called "Town Seizure," under which
officers would seize monies that they believed to
be drug-related from suspects, and without
following proper procedures, declare the monies
"abandoned" and deposit them in the Town of
Madison’s treasury. The RFI also alleged that
McCarthy and Gehn investigated crimes based on
information provided by drug informants who were
on parole, contrary to Wisconsin Department of
Corrections policies that prohibit the use of
informants on parole; and also that McCarthy,
while on duty, used his service revolver on one
occasion to threaten to kill an individual for
following his girlfriend. Romeis admitted in his
deposition that he was "upset" by the filing of
the RFI, which received extensive press coverage.
Defendants do not contest that the matters
discussed in the RFI are of public concern.
The RFI was filed on or about February 3, 1994.
Four days later, on February 7, 1994, Romeis gave
Thomsen a "letter of counseling" informing him
that he needed to update his operations manual by
inserting printed revisions into it and sending
a signed acknowledgment to Romeis that the
updates were made. The letter of counseling
specifically stated that it was not disciplinary
in nature and should not be construed as
disciplinary, although it noted that if Thomsen
failed to correct the problem, he could be
disciplined in the future. Thomsen admitted that
he had not kept his policy manual updated because
he had been out on sick leave. In addition, on
February 8, 1994, five days after the RFI was
filed, Romeis sent Thomsen a written warning
stating that Thomsen, while performing his duties
as Patrol Sergeant, had failed to follow
seniority order when he chose an officer to fill
a sick leave vacancy. Thomsen admitted that he
made a mistake and failed to follow the proper
procedure, which resulted in the Department’s
having to compensate both the officer who worked
the shift and the officer who should have been
given the opportunity to work the shift. Finally,
on April 15, 1994, Thomsen received an oral
reprimand from his supervisor, Lieutenant Gould,
for reporting to court wearing a short-sleeved
shirt. Lieutenant Gould is not a defendant in the
case, nor did Thomsen present any evidence that
Gould reprimanded him pursuant to the
instructions of a defendant. Further, Thomsen
admits that he should not have worn the short-
sleeved shirt. He maintains, without offering any
admissible evidence, however, that other officers
were not disciplined for similar violations.
On June 14, 1994, Thomsen learned from his
doctor that he had re-aggravated a pre-existing
shoulder injury while performing as a patrol
officer in the line of duty. In his deposition,
Thomsen explained that he re-injured his shoulder
in an altercation pursuant to an arrest that he
made in February, 1993. Although Thomsen still is
able to use his left arm and shoulder, Thomsen’s
doctor informed him that he was partially
disabled in that he could not perform all of the
duties of a patrol officer because of the injury.
In addition, Thomsen admitted that it would have
been unsafe for him to continue in his position
as a Patrol Sergeant because he would be unable
to use his left arm and shoulder in stressful
situations where he might have to exert force.
Thomsen informed Romeis of his doctor’s diagnosis
and opinion on July 12, 1994.
Then, on July 29, 1994, Thomsen submitted a
duty disability retirement application to the
state of Wisconsin to receive benefits under
Wisconsin’s program for "protective occupation
participants" injured in the line of duty. See
Wis. Stat. sec. 40.02 et seq. Thomsen also wrote
a letter to his supervisor, Lieutenant Gould,
that stated in relevant part, "I request to be
assigned to a ’light duty’ assignment within the
Town of Madison Police Dept. . . . At such time
as my application for Duty-Related Disability
Retirement is successfully processed, I would
then submit my resignation from the Town of
Madison." Romeis subsequently informed Thomsen
that because he could not perform the essential
functions of his job, and had submitted a duty
disability retirement application, Thomsen had to
resign or be discharged from his position with
the Department. Romeis determined that there was
no light duty assignment available for Thomsen.
Romeis further explained in his deposition that
he opposed light duty requests as a matter of
policy because he believed that in a department
as small as his, all officers needed to be
available to respond to emergency calls for
assistance. Romeis acknowledged that he granted
a light duty request for ten days for Thomsen in
1991, but made it clear at that time that the
grant of the request was not to be considered
"precedential." Further, Romeis had turned down
another request for light duty work that Thomsen
had made in 1993, prior to his filing of the RFI.
Romeis had also turned down a 1994 request for a
light duty assignment made by another officer who
had no involvement in the RFI.
Despite the reasoning provided by Romeis,
Thomsen nonetheless contended that he should have
been re-assigned to a less physically taxing
position, because he was able to perform, for
example, the functions of a detective or a court
officer. Thomsen acknowledged that these
positions were filled, but argued that if he had
not filed the RFI, Romeis would have at least
explored the possibility of accommodating his
request. But Romeis claimed that he refused to
displace other officers from their positions
because of the time involved in re-training,
expense, and Romeis’s knowledge that Thomsen was
going to leave the Department once his disability
benefits were approved. Consequently, says
Romeis, he decided to terminate Thomsen’s
employment and informed Thomsen that he would be
discharged once he had exhausted his vacation and
sick leave time. As a result of the chief’s
decision, Thomsen left the Department on August
10, 1994. Romeis met with Thomsen twice before
the termination, on July 12 and July 16, 1994,
and gave him written notice of his discharge and
an opportunity to comment on it. After Thomsen
received notice of this job action, his union,
the Wisconsin Professional Police Association
("WPPA"), filed a grievance protesting it, but
the WPPA dropped the grievance without Thomsen’s
consent before submitting it to arbitration,
reasoning that it lacked merit. Neither the WPPA
nor the Police Department contested that Thomsen
was injured and ultimately disabled while in the
line of duty. The state of Wisconsin approved
Thomsen for disability benefits and ordered that
the award be made retroactive to the last day of
his employment, August 10, 1994.
Thomsen thereafter filed this suit against the
named defendants, alleging that they violated his
rights under the First Amendment because they
retaliated against him in issuing the three
reprimands for minor violations of Department
policy and by terminating him after he complained
in the RFI about the misconduct of other Madison
Police Department officers./1 He also alleged
that the defendants violated his right to due
process under the Fourteenth Amendment in that he
was not allowed to bring his grievance regarding
his discharge to arbitration. The district court
granted summary judgment for defendants on
Thomsen’s First and Fourteenth Amendment claims,
concluding that Thomsen did not establish a
causal connection between his protected speech
and the alleged instances of retaliation; that
Thomsen failed to rebut the legitimate, non-
retaliatory reasons that Romeis gave for ending
his employment; and that Thomsen was not entitled
to any more process than he received. The
district court did not rule on Thomsen’s state
claims, dismissing them without prejudice as
permitted by 28 U.S.C. sec. 1367(c)(3)./2
II. ISSUES
On appeal we consider: (1) whether the district
court properly concluded that Thomsen failed to
establish that the defendants retaliated against
him in violation of the First Amendment after he
filed the RFI; and (2) whether the district court
acted properly in finding that Thomsen was not
denied due process in violation of the Fourteenth
Amendment when Thomsen’s union declined to pursue
his grievance regarding his discharge.
III. DISCUSSION
We review a district court’s grant of summary
judgment de novo. See Green v. Shalala, 51 F.3d
96, 99 (7th Cir. 1995). Summary judgment is
appropriate when there is no genuine issue of
material fact and the moving party is entitled to
judgment as a matter of law. See id. We view the
record and all reasonable inferences drawn from
it in the light most favorable to the non-moving
party. See Hartford Accident & Indem. v. Chicago
Hous. Auth., 12 F.3d 92, 95 (7th Cir. 1993).
A. Thomsen’s First Amendment retaliation claim
In order to establish a sec. 1983 claim based
on the First Amendment, a plaintiff must
demonstrate that (1) his conduct was
constitutionally protected and (2) his conduct
was a "substantial factor" or "motivating factor"
in the defendant’s challenged actions. See Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977); Johnson v. University
of Wisconsin-Eau Claire, 70 F.3d 469, 482 (7th
Cir. 1995). The plaintiff cannot prevail unless
he establishes that the defendant would not have
taken the challenged actions "but for" the
constitutionally protected conduct. See id.;
Button v. Harden, 814 F.2d 382, 383 (7th Cir.
1987). If the plaintiff meets his burden, the
burden shifts and the defendant must show by a
preponderance of the evidence that it would have
taken the same actions even in the absence of the
protected conduct. Mt. Healthy, 429 U.S. at 287;
Johnson, 70 F.3d at 482.
In this case, the first prong of the Mt.
Healthy analysis is not at issue; the defendants
do not contest that the matters Thomsen raised in
the RFI were of public concern and thus
constitutionally protected. Even if Thomsen met
his burden on the first prong, however, the
district court found that Thomsen failed to meet
his burden on the second prong, because Thomsen
failed to present evidence demonstrating that his
participation in filing the RFI motivated the
defendants to take adverse actions against him.
Indeed, Thomsen did not establish that "but for"
the filing of the RFI, Romeis would not have
issued either the letter of counseling regarding
keeping his manual updated or the written warning
about following seniority order when determining
who received overtime vacancies. Nor did Thomsen
establish that but for the filing of the RFI,
Gould would not have issued an oral reprimand in
written form regarding Thomsen’s failure to
appear in court in proper uniform. Finally,
Thomsen failed to provide evidence establishing
that his termination was motivated by his
involvement in the RFI rather than by his
inability to function as a patrol officer because
of his disabled shoulder.
1. The three reprimands
Thomsen argues that each of the three
reprimands--the two from Romeis and the one from
Gould--constituted an adverse action. He contends
that because he had never received a written
reprimand during his eight-year tenure with the
Department, the three reprimands he received in
short order after filing the RFI demonstrate that
the defendants were retaliating against him.
Although the timing of these events do appear
suspicious--the RFI was filed in February 1994
and two of the reprimands were issued in February
1994 and one in April 1994--we are barred from
"typically draw[ing] strong conclusions from the
mere fact that protected speech may have preceded
an adverse employment decision." Wright v.
Illinois Dept. of Children & Family Servs., 40
F.3d 1492, 1500 (7th Cir. 1994).
Furthermore, it is unclear that the three
incidents of which Thomsen complains constituted
adverse employment actions. It is true that
adverse acts need not be "monstrous" to be
actionable; the acts need only "create the
potential for chilling employee speech on matters
of public concern." DeGuiseppe v. Village of
Bellwood, 68 F.3d 187, 192 (7th Cir. 1995).
However, "[t]o be considered materially adverse
a change in the circumstances of employment must
be more disruptive than a mere inconvenience or
an alteration of job responsibilities. And it
certainly must be adverse in the sense that the
employee is made worse off by it." Id. (citation
and internal quotation omitted). It is unclear
how Thomsen was made worse off by the reprimands
of which he complains. Thomsen argues that the
three reprimands--the letter of counseling about
updating his policy manual, which explicitly
stated that it was non-disciplinary in nature;
the written warning about his failure to follow
seniority order in assigning overtime; and the
oral reprimand regarding his failure to wear a
long-sleeved shirt to court--could lead to future
discipline and affect his ability to compete for
promotions. These consequences, considered either
individually or in conjunction with each other,
appear to be somewhat speculative. Furthermore,
Thomsen failed to demonstrate how the
disciplinary warnings were related to his actual
discharge, even though the warnings occurred very
shortly after he filed his RFI. Moreover, Thomsen
presented no admissible evidence demonstrating
that he was treated differently than other
officers who violated the same procedures but did
not participate in the RFI. The only comparative
evidence that Thomsen offered is his testimony
that other officers also violated the uniform
code, but Thomsen failed to present any
admissible evidence establishing that the
officers referred to were not disciplined for
their violations. Furthermore, Thomsen failed to
present evidence establishing that Lieutenant
Gould, who issued the reprimand regarding the
uniform violation, was acting at the direction of
one of the defendants. In addition, Thomsen
admits that he had violated Department policy in
each instance that he was reprimanded. Thus,
Thomsen failed to meet his burden of
demonstrating that he would not have received the
reprimands in the absence of filing the RFI.
Furthermore, Thomsen failed to demonstrate that
these three disciplinary actions influenced his
ultimate discharge.
2. The termination
A plaintiff cannot prevail on a retaliatory
discharge claim if the decision to terminate him
would have been reasonable even in the absence of
the protected conduct. See Mt. Healthy, 429 U.S.
at 287; Khuans v. School Dist. 110, 123 F.3d
1010, 1014 (7th Cir. 1997); Conner v. Reinhard,
847 F.2d 384, 393 (7th Cir. 1988). Thomsen failed
to meet his burden of proving that he would not
have been terminated in the absence of protected
conduct; indeed, Thomsen admitted that he had
advised the Department that he had a shoulder
disability and that his continuing to serve as a
patrol officer at the time of his discharge would
have been unsafe. Thomsen contends that, had he
not filed his RFI, defendants would have
attempted to accommodate him by reassigning
employees or at least inviting other employees to
consider moving into different positions. Thomsen
presented no evidence to support this contention.
Even if Thomsen had been able to marshal evidence
to support this speculative assertion, defendants
did nothing improper by declining to undertake
Thomsen’s proposed changes. Cf. Pond v. Michelin
North America, Inc., 183 F.3d 592, 595 (7th Cir.
1999) (holding that employers are not required to
bump other employees from occupied positions in
order to reasonably accommodate disabled
employees under the Americans with Disabilities
Act); Eckles v. Consolidated Rail Corp., 94 F.3d
1041, 1051-52 (7th Cir. 1996) (same). In
addition, Thomsen’s contention that Thiesen, a
Board member, angrily ordered him away from a
town meeting in September 1994 does nothing to
support his claim. First, this incident took
place after Thomsen’s termination in August 1994.
Second, even if we accept Thomsen’s reasoning
that Thiesen was angry at him in September 1994,
and therefore was angry at him when he was
employed with the Department before that, a
defendant’s anger against a plaintiff does not
alone establish that the challenged actions would
not have occurred "but for" the constitutionally
protected conduct. See Johnson, 70 F.3d at 482.
Thus, just as with the three reprimands discussed
above, Thomsen failed to produce evidence that he
would not have been terminated in the absence of
his protected conduct. Nor did Thomsen
demonstrate that the Department had any
obligation to transfer him, and we will not
second-guess his employer’s decision not to do
so, since this court is not a "’super-personnel
department’ weighing the prudence of employment
decisions." Gleason v. Mesirow Fin., Inc., 118
F.3d 1134, 1139 (7th Cir. 1997) (quoting
Giannopoulos v. Brach & Brock Confections, Inc.,
109 F.3d 406, 410 (7th Cir. 1997) (citations
omitted)).
B. Thomsen’s Fourteenth Amendment due process
claim
Thomsen also argues that he was denied due
process because his union dropped his grievance
protesting his termination before arbitration, on
the ground that the grievance lacked merit.
Before Thomsen was terminated, Romeis met with
him on July 12, 1994, and on July 16, 1994, and
gave him written notice of his termination and an
opportunity to comment on it. These meetings were
followed by an exchange of letters, which again
informed Thomsen of the reasons for his
termination and invited his comments. These pre-
deprivation measures, in conjunction with the
procedures that were available to Thomsen,
satisfy due process requirements. See Cleveland
Board of Educ. v. Loudermill, 470 U.S. 532, 546-
48 (1985); Staples v. City of Milwaukee, 142 F.3d
383, 385 (7th Cir. 1998); Chaney v. Suburban Bus
Div. Regional Transp. Auth., 52 F.3d 623, 628-30
(7th Cir. 1995). Thus, while it is true that
Thomsen could not compel his union to take his
grievance to arbitration, see Vaca v. Sipes, 386
U.S. 171, 191 (1967), it is also true that the
collective bargaining agreement here gave Thomsen
the choice between proceeding on his own or
proceeding through the union. He chose the union,
and along with that choice he assumed the risk
that the union would decide at some point not to
pursue the grievance further. Under all
circumstances, we are of the opinion that Thomsen
received the process that he was due.
IV. CONCLUSION
The decision of the district court to grant the
defendants’ motion for summary judgment was
proper.
AFFIRMED.
/1 We note that the state of Wisconsin does not have
a whistleblower statute that protects municipal
employees. See Wis Stat. sec. 111.70(2)
(outlining the rights of municipal employees).
/2 The record does not reflect whether Thomsen
decided to pursue these claims in the Wisconsin
state court system. Nor does the record indicate
whether Thomsen requested (or could have
requested) a hearing before the Police and Fire
Commission concerning his termination.