In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2661
D AVID H UTCHINS, et al.,
Plaintiffs-Appellees,
v.
D AVID A. C LARKE, JR., et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:07-cv-00526-WEC—William E. Callahan, Jr., Magistrate Judge.
A RGUED JUNE 10, 2011—D ECIDED O CTOBER 24, 2011
Before B AUER, FLAUM and W ILLIAMS, Circuit Judges.
B AUER, Circuit Judge. Milwaukee County Deputy
Sheriff David Hutchins brought an action for com-
ments made by Milwaukee County Sheriff David
Clarke regarding Hutchins’ disciplinary history with
the sheriff’s department. The district court granted the
plaintiffs’ motions for summary judgment, finding that
Sheriff Clarke violated (1) Wisconsin’s Open Records
Law, Wis. Stat. §§ 19.31-19.39; (2) Wisconsin’s Right of
Privacy statute, Wis. Stat. § 995.50; and (3) 42 U.S.C. § 1983
2 No. 10-2661
for retaliation and depriving Hutchins of his First Amend-
ment right to free speech. We reverse the district court
on all three counts.
I. BACKGROUND
This case arises from a pair of on-air phone calls to a
popular Milwaukee, Wisconsin radio show, one from
Hutchins and the other from Sheriff Clarke. On May 17,
2007, a discussion regarding Sheriff Clarke’s avoidance
of certain African-American groups took place on the
“Eric Von Show,” a listener-interactive radio show
which is broadcasted on WMCS AM 1290. On that day,
Hutchins, a routine listener and caller, called the show
in response to the critical comments regarding Sheriff
Clarke’s involvement with an African-American com-
munity organization dedicated to reducing crime.
Hutchins was likewise critical of Sheriff Clarke, stating
words to the effect that Sheriff Clarke was not a good fit
for the Milwaukee County Sheriff position. In response
to Hutchins’ comments, Sheriff Clarke called the Eric
Von Show and retorted by calling Hutchins a “slacker”
who did not deserve to be an employee of the sheriff’s
department. Sheriff Clarke expressed the view that
Hutchins was bitter and carried a grudge against him
because of a disciplinary action taken in 2004 by him
against Hutchins. Sheriff Clarke identified this dis-
ciplinary action on-air as a step taken as a result of
Hutchins’ “sexual harassment” of another employee. In
actuality, the disciplinary action was for Hutchins’ vio-
lation of a department rule that prohibited offensive
No. 10-2661 3
conduct or language toward the public or toward county
officers or employees.
Hutchins and the Milwaukee Deputy Sheriff’s Associa-
tion filed a complaint alleging that the defendants
violated Hutchins’ First Amendment right to free speech
and both plaintiffs’ First Amendment right of free as-
sociation by retaliating against the plaintiffs, in violation
of 42 U.S.C. § 1983. The plaintiffs also alleged that the
defendants violated the plaintiffs’ rights under Wisconsin
statutory law, specifically under (1) Wisconsin’s Law
Enforcement Officers’ Bill of Rights, Wis. Stat. §§ 164.015,
164.03; (2) Wisconsin’s Municipal Employment Re-
lations Act, Wis. Stat. § 111.70(2), (3) Wisconsin’s Open
Records Law, Wis. Stat. §§ 19.31-19.39; and (4) Wiscon-
sin’s Right of Privacy statute, Wis. Stat. § 995.50(2)(c).
Both parties filed motions for summary judgment on
all counts. The district court granted summary judgment
in favor of the plaintiffs on (1) their claim under § 1983
for Sheriff Clarke’s disclosure of Hutchins’ disciplinary
history, (2) their claim under Wisconsin’s Open Records
Law, and (3) their claim under Wisconsin’s Right of
Privacy statute. The court granted the defendants’
motions for summary judgment on the remaining claims.
The defendants filed a motion for reconsideration and
the district court issued an order denying the motion.
The defendants have appealed the claims under Wiscon-
sin’s Open Records Law, Wisconsin’s Right of Privacy
statute, and § 1983 for retaliation in Sheriff Clarke’s
disclosure of Hutchins’ disciplinary history.
4 No. 10-2661
II. DISCUSSION
A. Wisconsin’s Open Records Law
The district court granted summary judgment in favor
of Hutchins, finding that Sheriff Clarke violated Wis-
consin’s Open Records Law by failing to provide notice
and failing to conduct a balancing test before orally
discussing the contents of Hutchins’ disciplinary file.
The appellants argue that the district court erred
when it applied Wisconsin’s Open Records Law to
Sheriff Clarke’s oral reference to Hutchins’ disciplinary
record. We agree and can dispose of this issue without
delving much into the district court’s analysis or the
parties’ arguments; Wisconsin’s Open Records Law
simply does not apply to the facts of this particular
case, and the plaintiffs have no claim under the statute.
Wisconsin’s Open Records Law was enacted to pro-
vide the public with “the greatest possible information
regarding the affairs of the government and the official
acts of those officers and employees who represent
them.” Wis. Stat. § 19.31. The statute provides that “except
as otherwise provided by law, any requester has a right
to inspect any record.” Wis. Stat. § 19.35(1)(a). With
regard to a record containing information about an em-
ployee’s disciplinary history, as in this case, the statute
provides that if the authority decides to permit access to
the requested record, the authority shall serve written
notice on the employee. Wis Stat. § 19.356(2)(a). When
deciding whether to open a record, the authority must
conduct a balancing test to weigh the public interest in
protecting its citizens’ reputations and privacy against the
No. 10-2661 5
strong public interest in maintaining open records.
Woznicki v. Erickson, 549 N.W.2d 699, 703 (Wis. 1996). Once
the employee receives notice, the employee then has
the option of seeking a court order to restrain the
authority from permitting access to the record. Wis. Stat.
§ 19.356(4).
Here, the facts in the record show that Sheriff Clarke
called into a radio show and, spontaneously or not, dis-
cussed details regarding Hutchins’ disciplinary history.
Nothing from this set of facts leads us to the conclusion
that Wisconsin’s Open Records Law should be invoked.
There was no request to inspect Hutchins’ disciplinary
record, no permission granted, and no balancing test
undertaken.1 Perhaps the plaintiffs themselves said it
1
The Wisconsin Open Records Law defines a record as:
[A]ny material on which written, drawn, printed, spoken,
visual or electromagnetic information is recorded or
preserved, regardless of physical form or characteristics,
which has been created or is being kept by an authority.
“Record” includes, but is not limited to, handwritten, typed
or printed pages, maps, charts, photographs, films, record-
ings, tapes (including computer tapes), computer printouts
and optical disks. “Record” does not include drafts, notes,
preliminary computations and like materials prepared
for the originator’s personal use or prepared by the origina-
tor in the name of a person for whom the originator is
working; materials which are purely the personal property
of the custodian and have no relation to his or her office;
materials to which access is limited by copyright, patent or
(continued...)
6 No. 10-2661
best in their own motion for summary judgment: “Com-
pounding the problem is the undisputed fact that
nobody sought access to Hutchins’ personnel file in the
first place. As there was no ‘request,’ there was nothing
to ‘balance,’ and the release of such information must
be seen for what it was—an attempt to smear Hutchins
in front of the audience of the Eric Von Show . . . .” While
the plaintiffs have since changed their tune, we find
this initial argument much more persuasive than their
current one.
While Wisconsin courts have not yet considered this
issue, we believe our opinion is consistent with the trajec-
tory of Wisconsin case law. Prior to the decision in
Woznicki v. Erickson, the Open Records Law only autho-
rized a requester to bring an action for mandamus com-
pelling a custodian to release a record under Wis. Stat.
§ 19.37. Woznicki changed this, holding that an employee
who wishes to keep the authority from disclosing the
requested information may also bring an action under
the statute. The Open Records Law was then amended
1
(...continued)
bequest; and published materials in the possession of an
authority other than a public library which are available
for sale, or which are available for inspection at a public
library.
Wis. Stat. § 19.32(2). Because the Open Records Law is not
applicable, we save the determination of whether Sheriff
Clarke’s oral statement constituted a “record,” as that term
is used in the Open Records Law, for another day.
No. 10-2661 7
to reflect the employee’s right to sue under these cir-
cumstances. Hutchins would have us take this a step
further and create a cause of action when the procedures
in the Open Records Law were not followed, thus
turning the statute into some kind of enforceable due
process right. We must reject Hutchins’ interpretation of
the Open Records Law because it vastly expands the
causes of actions under the statute.
Although Wisconsin’s Open Records Law is not ap-
plicable here, we note that Hutchins could have (and
in some cases did) brought his complaint under a
number of more applicable theories, including but not
limited to defamation, right of privacy, or retaliation, but
Wisconsin’s Open Records Law has no application here.
While we find Sheriff Clarke’s on-air comments re-
garding Hutchins’ disciplinary history insensitive, not
to mention inaccurate, we cannot say that his actions
were in violation of Wisconsin’s Open Records Act, and
we reverse the decision of the district court on this issue.
B. Wisconsin’s Right of Privacy Statute
The plaintiffs argue that the defendants invaded
Hutchins’ right of privacy in violation of Wisconsin’s
Right of Privacy statute, Wis. Stat. § 995.50, and the
district court found in favor of the plaintiffs. The relevant
section of the act defines “invasion of privacy” as,
[p]ublicity given to a matter concerning the private
life of another, of a kind highly offensive to a rea-
sonable person, if the defendant has acted either
8 No. 10-2661
unreasonably or recklessly as to whether there was
a legitimate public interest in the matter involved, or
with actual knowledge that none existed. It is not
an invasion of privacy to communicate any informa-
tion available to the public as a matter of public record.
Wis. Stat. § 995.50(2)(c).
There is most certainly a question of material fact as to
the first four factors that create the invasion of privacy
claim (which, we note, appear to weigh heavily in favor
of the plaintiffs). However, we do not reach this analysis
because the information communicated is available to
the public as a matter of public record.
The appellants’ argument with regard to the right of
privacy claim is that Hutchins’ disciplinary record is
considered a public record because the record is the
product of a closed investigation, and records of em-
ployee misconduct may be released under Wisconsin’s
Open Records Law once the investigation has con-
cluded.2 The district court addressed this argument and
disagreed, stating that Hutchins’ disciplinary file was
not a public record, basing this conclusion on its finding
that Sheriff Clarke violated Wisconsin’s Open Records
2
While it is true that Wisconsin courts have held that there
is not a blanket exemption from public disclosure for records
of closed investigations against a public employee as the
appellants argue, Wisconsin Newspress v. Sch. of Sheboygan, 546
N.W.2d 143, 148 (Wis. 1996), the common-law balancing test
still applies. Just because a disciplinary record may be dis-
closed does not mean it should be disclosed.
No. 10-2661 9
Law by failing to provide notice and conduct a
balancing test.
The district court entangled its analysis of Wisconsin’s
Open Records Law with its analysis under Wisconsin’s
Right of Privacy statute and incorrectly relied on its
procedural finding under the Open Records Law when
determining whether the disciplinary record should
remain closed under the Right of Privacy statute. While
the two statutes are related laws, they are only related
in that a finding under the Open Records Law that a
record should be made public would necessarily mean
that “the information was available to the public as a
matter of public record.” This is true because both
statutes apply the same common-law balancing test
when determining whether a record is “public.” In this
case, however, the district court never made a finding as
to whether the record could be made public under
the Open Records Law (and thus under the Right of
Privacy statute). Instead, it found only that the pro-
cedures delineated in the Open Records Law were not
followed. These procedures, however, have no impact on
the question of whether a record is “public” or not;
they are merely procedural, not substantive.
Although the district court’s opinion and the parties’
briefs identified the balancing test as being pertinent to
a public records finding under the Right of Privacy
statute, all failed to adequately apply the balancing
test to the facts in this case. Because the application
of the balancing test is a question of law, we apply our
analysis independently. Milwaukee Journal Sentinel v.
10 No. 10-2661
Wisconsin Dep’t of Admin., 768 N.W.2d 700, 708 (Wis. 2009)
(citing Wisconsin Newspress, 546 N.W.2d at 149).3
In order to determine whether Hutchins’ disciplinary
history is “information available to the public as a
matter of public record,” we weigh the public interest
in protecting its citizens’ reputations and privacy against
the strong public interest in maintaining open records,
considering the relevant factors to determine whether
the surrounding factual circumstances create an “excep-
tional case” not governed by the strong presumption of
openness. Hempel v. City of Baraboo, 699 N.W.2d 551, 567
(Wis. 2005). When applying the common-law balancing
test, our consideration is not of personal embarrass-
3
Wisconsin courts have not defined “public record” in the
Privacy Act context. But, Wisconsin common law has
always recognized a concern for the privacy and reputation of
citizens and therefore used a balancing test before making
certain information public. In a decades-old case, the court
noted that:
[T]he right to inspect public documents and records at
common law is not obsolute [sic]. There may be situations
where the harm done to the public interest may outweigh
the right of a member of the public to have access to particu-
lar public records or documents. Thus, the one must be
balanced against the other in determining whether to
permit inspection.
State ex rel. Youmans v. Owens, 137 N.W.2d 470, 474 (Wis. 1966).
Wisconsin courts have repeated this fundamental principle
in nearly every public records case. See, e.g., Woznicki,
549 N.W.2d at 701; Wisconsin Newspress, 546 N.W.2d at 147;
Newspapers, Inc. v. Breier, 279 N.W.2d 179, 187 (Wis. 1979).
No. 10-2661 11
ment and damage to reputation, but whether disclosure
would affect any public interest. Zellner v. Cedarburg Sch.
Dist., 731 N.W.2d 240, 252 (Wis. 2007); Linzmeyer v.
Forcey, 646 N.W.2d 811, 820 (Wis. 2002) (“[T]he public
interest in protecting individuals’ privacy and reputation
arises from the public effects of the failure to honor the
individual’s privacy interests, and not the individual’s
concern about embarrassment.”).
After balancing the two interests in this case, we find
that the public interest in disclosure of this information
is not outweighed by the public interest in maintaining
it as a closed record. Many of the factors that favor non-
disclosure of police officers’ personnel files are not
present in Hutchins’ case. See Hempel, 699 N.W.2d at 568-
70 (records pertaining to internal investigations may be
withheld from the public when they are the result of
a confidential investigation and disclosure would dis-
courage other police officers and employees within the
police department from providing potentially damaging
information about a colleague); State ex rel. Journal /Sentinel,
Inc., Anne Bothwell v. Arreola, 558 N.W.2d 670, 676-77
(Wis. Ct. App. 1996) (the release of disciplinary files
might hamper the police department’s ability to conduct
an effective investigation against an accused officer);
Law Offices of William A. Pangman & Associates, S.C. v.
Zellmer, 473 N.W.2d 538, 545 (Wis. Ct. App. 1991) (disclo-
sure of personnel records would have a “chilling effect”
on law enforcement because officers might make fewer
arrests if they knew their personnel files might be
made public as a result of the arrest); Law Offices of
William A. Pangman & Associates v. Stigler, 468 N.W.2d
12 No. 10-2661
784, 789 (Wis. Ct. App. 1991) (release of records would
endanger officer engaged in undercover work); Village of
Butler v. Cohen, 472 N.W.2d 579, 584 (Wis. App. 1991)
((1) the possibility of cross-examination of matters in
personnel records might impair police officer’s ability or
willingness to testify in court, and (2) fewer qualified
candidates would accept employment in a position
where they could expect their personnel files are
regularly open for public review).
Nevertheless, some factors favoring non-disclosure do
apply. For example, the release of Hutchins’ disciplinary
file could jeopardize the personal privacy of the employee
who made the complaint about his offensive conduct.
See State ex rel. Ledford v. Turcotte, 536 N.W.2d 130, 132
(Wis. Ct. App. 1995).4 And there is a valid concern about
the impact of disclosing personnel files on intra-depart-
ment morale. Zellmer, 473 N.W.2d at 543.5
4
Generally, this problem can be addressed by simply redacting
the identities of a victim or any individuals interviewed in
the investigation.
5
We note that Wisconsin cases “indicate a legislative recogni-
tion of a public policy interest in generally denying access to
the personnel files of police officers,” Village of Butler, 472
N.W.2d at 584, but there have been cases where police offi-
cers’ and police department employees’ disciplinary files have
been disclosed. See, e.g., Local 2489 AFSCME, AFL-CIO v. Rock
County, 689 N.W.2d 644 (Wis. Ct. App. 2004); Arreola,
558 N.W.2d 670; Isthmus Publishing Co. Inc. v. City of Madison
Police Dep’t, 1995 WL 819176 (Wis. Cir. Ct. 1995).
No. 10-2661 13
The public policies favoring disclosure include (1) the
intent of Wisconsin’s Open Records Law states that
“[t]he denial of public access generally is contrary to the
public interest, and only in an exceptional case may
access be denied,” Wis. Stat. § 19.31; (2) the public has a
particularly strong interest in being informed about its
public officials, especially in the case of law enforcement
officers, Local 2489, 689 N.W.2d at 654; and (3) the public
has entrusted its police officers to protect the community
from any wrongdoings, and the misconduct for which
Hutchins’ was disciplined “occurred in the location
where the public has entrusted [the employees] to work
and during the performance of [their] public duties, and
therefore should be more subject to public scrutiny,”
Linzmeyer, 646 N.W.2d at 819.6
In addition to these factors, which have been identified
in Wisconsin cases, there are additional relevant facts
favoring disclosure in this case. Whether the county
sheriff is performing his job in a satisfactory manner is
particularly relevant to the public interest. Criticism of
the sheriff’s performance, especially from an individual
who freely identified himself on-air as a deputy within
the sheriff’s department, gives the public a heightened
interest in the origin and motives behind that criticism.
6
See also Isthmus Publishing Co., 1995 WL 819176, at *12
(“Clearly police personnel have a privacy interest in keeping
reports of misconduct secret. But the interest of society in
scrutinizing the uses to which police personnel put their
powers weighs more heavily. This has been the holding
of many previous cases including Youmans and Ledford.”).
14 No. 10-2661
We note that it is problematic when a government
employer openly discusses his employees’ disciplinary
files, and Wisconsin’s Right of Privacy statute remains a
viable form of relief. However, in this case, after applying
the common-law balancing test to Hutchins’ disciplinary
file, we conclude that there is no genuine public interest
in keeping the record closed to the public. Hutchins’
claim under Wisconsin’s Right of Privacy statute fails.
C. Unlawful Retaliation Under the First Amendment
The plaintiffs argue that Sheriff Clarke retaliated
against Hutchins for his comments on the Eric Von Show
when he disclosed Hutchins’ disciplinary history on the
radio show, and that this retaliation was in violation
of 42 U.S.C. § 1983 as a deprivation of Hutchins’ First
Amendment rights. The district court found that all the
elements of the § 1983 claim were satisfied, using the
purported Open Records Law violation as grounds for
finding an adverse action. We disagree.
It is well established that a public employee retains
First Amendment rights to free speech. Pickering v. Bd. of
Educ., 391 U.S. 563, 568 (1968); Vargas-Harrison v. Racine
Unified Sch. Dist., 272 F.3d 964, 970 (7th Cir. 2001). As a
general rule, the government cannot retaliate against its
employees for engaging in constitutionally protected
speech. Vargas, 272 F.3d at 970. When a plaintiff brings
a § 1983 claim for retaliation in violation of First Amend-
ment rights in the employment context, our analysis
involves three steps. First, the court must determine
whether the employee’s speech was constitutionally
No. 10-2661 15
protected under the Connick-Pickering test. Phelan v. Cook
County, 463 F.3d 773, 790 (7th Cir. 2006). Second, the
plaintiff must establish that the speech was a substan-
tial or motivating factor in the alleged retaliatory action.
Id. Finally, if the plaintiff satisfies the first two steps,
the defendant has an opportunity to establish that the
same action would have been taken in the absence
of the employee’s protected speech. Id. The dispute in
this case centers around the second factor.
The appellants argue that the retaliatory action Hutchins
complains of—the on-air disclosure of his disciplinary
history—is not an “adverse employment action” to
support his § 1983 retaliation claim. The district court
addressed this concern, recognizing that Sheriff Clarke’s
comments on the Eric Von Show did not relate to the
conditions of Hutchins’ employment, but nevertheless
completed the analysis and found the action to be suffi-
ciently adverse.
A § 1983 retaliation claim does not require an ad-
verse employment action within the same meaning as other
anti-discrimination statutes. Spiegla v. Hull, 371 F.3d 928,
941 (7th Cir. 2004); Power v. Summers, 226 F.3d 815, 820
(7th Cir. 2000).7 We have explained that what was meant
7
In Power, we stated that:
Not section 1983, but the federal statutes, such as Title VII
of the Civil Rights Act of 1964, that forbid invidious dis-
crimination in employment, limit their protection to
victims of “adverse employment action,” which is judicial
(continued...)
16 No. 10-2661
by “adverse employment action” in the § 1983 context is
that the action of which the employee is complaining must
be sufficiently adverse to deter the exercise of the individ-
ual’s right to free speech. Power, 226 F.3d at 820-21. There-
fore, Hutchins need only show that Sheriff Clarke’s
disclosure was sufficiently adverse to chill his free speech.
While the district court used the purported Open Re-
cords Law violation as a basis for finding an adverse
employment action and, consequently, a § 1983 viola-
tion, we cannot conclude that Sheriff Clarke violated
Wisconsin’s Open Records Law, so we disagree with the
district court’s reasoning and undertake our own
analysis on the matter.
The appellants say that in undertaking this analysis, the
court must take into consideration Sheriff Clarke’s own
right to free speech, and they are correct. We cannot
afford one party his right to free speech while discounting
the rights of the other party. Other circuits and courts
within our circuit have addressed this situation—where
7
(...continued)
shorthand (the term does not appear in the statutes them-
selves) for the fact that these statutes require the plaintiff
to prove that the employer’s action of which he is com-
plaining altered the terms or conditions of his
employment . . . . Any deprivation of a legal right under
color of law that is likely to deter the exercise of free
speech, whether by an employee or anyone else, is action-
able . . . [if] the circumstances are such as to make such
a refusal an effective deterrent to the exercise of a fragile
liberty. 226 F.3d at 820.
No. 10-2661 17
the alleged retaliatory action is in itself speech—by
limiting a finding of an adverse action only to situations
where the defendant’s speech is threatening, harassing,
or intimidating. See Owens v. Ragland, 313 F.Supp.2d
939, 949 (W.D. Wis. 2004); Suarez Corp. Indus. v. McGraw,
202 F.3d 676, 687 (4th Cir. 2000) (“[W]here a public offi-
cial’s alleged retaliation is in the nature of speech, in the
absence of threat, coercion, or intimidation intimating
that punishment, sanction, or adverse regulatory action
will imminently follow, such speech does not ad-
versely affect a citizen’s First Amendment rights, even
if defamatory.”).
Here, Sheriff Clarke called the Eric Von Show and
expressed his opinion that Hutchins’ criticism was a
result of Hutchins carrying a grudge against him for a
past disciplinary action. Sheriff Clarke then went on to
discuss that disciplinary action. Sheriff Clarke’s comments
about Hutchins’ disciplinary history pertain to a past
disciplinary action and in no way intimate any future
disciplinary action against Hutchins with regard to that
closed matter. Sheriff Clark’s disclosure of Hutchins’
disciplinary history did not constitute a threat, coercion,
or intimidation that punishment, sanction, or adverse
regulatory action would immediately follow, and so
were not actionable under § 1983. Even if some “harass-
ment and ridicule” might be retaliatory speech
under § 1983 (See Bart v. Telford, 677 F.2d 622, 625 (7th
Cir. 1982)), Sheriff Clark’s statements did not rise to
that level.
The appellees direct our attention to the Sixth Circuit,
which has heard cases in which a public official has
18 No. 10-2661
responded to an individual’s criticism by revealing inti-
mate and embarrassing details about that individual.
See, e.g., Bloch v. Ribar, 156 F.3d 673, 679-80 (6th Cir. 1998).
That circuit recognizes that in some cases where the
alleged retaliation is speech, causing “embarrassment,
humiliation, and emotional distress” that is damaging
to the plaintiff may be actionable under § 1983, regardless
of any lack of threat. Id. at 679-80. Even if we were to
follow this thinking, Hutchins’ case differs greatly from
those cases. In Bloch, the plaintiff, a rape victim, was
interviewed by a newspaper about the lack of progress
in the rape investigation and her statements were pub-
lished in articles that were critical of the county sheriff’s
department. In response to the articles, the county sheriff
held a public press conference, where he released “highly
personal and extremely humiliating details” of the rape
that even the plaintiff’s husband had not been made
aware. Sheriff Clarke’s comments do not rise to the level
of the comments made in Bloch.
The record demonstrates that Sheriff Clarke’s retalia-
tory conduct in discussing Hutchins’ disciplinary
history was not accompanied by threat, coercion, or
intimidation intimating punishment. Accordingly, it is
not actionable under § 1983, and we reverse the decision
of the district court.
D. Pleadings
The appellants argue that the plaintiffs did not plead
a violation of the Wisconsin Open Records Law, nor
did they plead a statutory right of privacy claim. We
No. 10-2661 19
will address each in turn and will not reverse unless we
have found the district court has abused its broad dis-
cretion to constructively amend a complaint. See
Sunstream Jet Express, Inc. v. Int’l Air Service Co., Ltd., 734
F.2d 1258, 1272 (7th Cir. 1984).
As for the Wisconsin Open Records Law, the appel-
lants argue that the plaintiffs never raised the issue
until they submitted a reply brief in support of the plain-
tiffs’ motion for summary judgment. The district
court recognized that the plaintiffs’ complaint did not
formally state a cause of action under Wisconsin’s
Open Records Law, but cited to the well-known rule that
a pleading can be constructively amended when both
parties expressly or impliedly consent to the constructive
amendment. See Fed. R. Civ. P. 15(b); Matter of Prescott,
805 F.2d 719, 725 (7th Cir. 1986). The test for consent is
“whether the opposing party had a fair opportunity to
defend and whether he could have presented additional
evidence had he known sooner the substance of the
amendment.” Matter of Prescott, 805 F.2d at 725 (quoting
Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456
(10th Cir. 1982)). Here, we are satisfied that the com-
plaint was constructively amended to include an Open
Records Law violation, as the defendants impliedly
consented to litigating the issue. The plaintiffs plainly
stated in their own brief in opposition to defendants’
motion for summary judgment and in support of plain-
tiffs’ motion for summary judgment that Sheriff
Clarke violated Wis. Stat. §§ 19.31-19.39. Furthermore,
the defendants were not unfamiliar with the substance
of the Open Records Law; they used the statute as their
20 No. 10-2661
own defense to the plaintiffs’ right of privacy claim in
their own brief and reply brief in support of their
motion for summary judgment. The district court did
not abuse its discretion in finding that the parties con-
sented to the constructive amendment of the pleadings
to include a claim under Wisconsin’s Open Records Law.
The appellants also argue that the plaintiffs did not
plead a statutory right of privacy claim under Wis. Stat.
§ 995.50 with specificity because the claim was initially
classified as “liberty interest-right of privacy.” Again, we
are satisfied that the complaint was constructively
amended to include a privacy violation under the Wis-
consin statute. The ad damnum clause in the plaintiffs’
complaint states that the defendants violated Hutchins’
privacy rights under Wis. Stat. § 995.50. Also, the defen-
dants address the elements of the plaintiffs’ § 995.50
claim in their brief in response to the plaintiffs’ motion for
summary judgment. The district court did not abuse
its discretion in finding that the parties consented to
the constructive amendment of the pleadings to include
a claim for a right of privacy violation under Wis.
Stat. § 995.50.
III. CONCLUSION
For the reasons stated above, we R EVERSE the
decision of the district court and R EMAND for further
proceedings consistent with the findings expressed herein.
No. 10-2661 21
W ILLIAMS, Circuit Judge, concurring. I join the
majority’s opinion in full except as to Part II.C. I agree
that, given the facts of this case, Sheriff Clarke’s dis-
cussion of Hutchins’s disciplinary history is not action-
able under § 1983. I write separately to note that I do not
read the majority’s opinion to overturn our circuit’s long-
standing recognition that retaliatory speech may be
actionable under § 1983 if it is likely to deter a person
of ordinary firmness from exercising his First Amend-
ment rights, even if not accompanied by a threat,
coercion, or intimidation intimating punishment.
We have long recognized such claims. For example, in
Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982), the
plaintiff complained of a “campaign of petty harass-
ments” designed to punish her for having run for public
office and endorsing a candidate at a press conference
following the primary election. Among other things, she
was allegedly ridiculed for bringing a birthday cake to
her office to celebrate a co-worker’s birthday. Finding
that a “campaign of harassment which though trivial
in detail may have been substantial in gross,” we reversed
the district court’s dismissal of the complaint and re-
manded for a factual determination of whether the
alleged “campaign reached the threshold of actionability
under section 1983.” Id. at 625.
We reiterated this point in DeGuiseppe v. Village of
Bellwood, 68 F.3d 187, 192 (7th Cir. 1995), by explaining
that “even minor forms of retaliation” such as “dimin-
ished responsibilities” or “false accusations” can be
actionable under the First Amendment if sufficiently
22 No. 10-2661
adverse to chill employee speech on matters of public
concern. Since then, we have consistently applied this
standard. E.g., Fairley v. Fermaint, 482 F.3d 897, 903 (7th Cir.
2007) (“Suppose the white guards at a prison mercilessly
harass the black guards and make their lives miserable, or
suppose the men demean the women. Such misconduct
may be actionable under the Constitution.”); Massey v.
Johnson, 457 F.3d 711, 721 (7th Cir. 2006) (“In the first
amendment context, harassment . . . may be actionable if
it is designed to deter a public employee’s free speech.”);
Tierney v. Vahle, 304 F.3d 734, 740 (7th Cir. 2002)
(“[D]efamation inflicts sufficient harm on its victim to
count as retaliation . . . .”).
Our standard for actionable retaliatory speech was
acknowledged with approval by the Supreme Court in
Rutan v. Republican Party of Illinois. 497 U.S. 62, 76 n.8
(1990) (“[T]he First Amendment . . . protects state employ-
ees . . . from ‘even an act of retaliation as trivial as failing
to hold a birthday party for a public employee . . . when
intended to punish her for exercising her free speech
rights.’ ” (quoting Rutan v. Republican Party of Ill., 868
F.2d 943, 954 n.4 (7th Cir. 1989) (citing Bart, 677 F.2d at
622))). And it has been adopted or reaffirmed by a
majority of our sister circuits. See, e.g., Welch v. Ciampa,
542 F.3d 927, 937 (1st Cir. 2008) (recognizing retaliatory
harassment may be actionable under objective test);
Coszalter v. City of Salem, 320 F.3d 968, 976 (9th Cir. 2003)
(same); Naucke v. City of Park Hills, 284 F.3d 923, 928 (8th
Cir. 2002) (same); Toolasprashad v. Bureau of Prisons, 286
F.3d 576, 584-85 (D.C. Cir. 2002) (same); Bloch v. Ribar, 156
F.3d 673, 679-80 (6th Cir. 1998) (same); Bernheim v. Litt, 79
No. 10-2661 23
F.3d 318, 325-26 (2d Cir. 1996) (same). But see McLaughlin
v. Watson, 271 F.3d 566, 573-74 (3d Cir. 2001) (holding
that speech must be a threat or coercion to be action-
able); Colson v. Grohman, 174 F.3d 498, 513-14 (5th Cir.
1999) (holding that, in the First Amendment employment
context, harassing speech must constitute “constructive
adverse employment action” to be actionable); cf. Keenan
v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002) (recognizing
that outside of the employment context, speech that
would “chill a person of ordinary firmness” is action-
able). Indeed, even the Fourth Circuit case cited by the
majority accepts that retaliatory speech that is “suf-
ficiently embarrassing, humiliating, or emotionally dis-
tressful” may be “one possible exception” to its rule
requiring a threat of punishment for cognizability.
Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 688 (4th
Cir. 2000).
In light of our enduring recognition that harassing
retaliatory speech may be actionable under § 1983,
I write separately to make clear that the majority’s
position neither deviates from nor disturbs this well-
settled position. Given the facts of this case, I—like the
majority—do not believe that Sheriff Clarke’s state-
ments rise to the level of actionability. I therefore concur.
10-24-11