In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2675
BRIAN W. SWETLIK,
Plaintiff-Appellant,
v.
KEVIN CRAWFORD, Former Mayor,
individually and in his official capac-
ity, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 09-C-1157 — William C. Griesbach, Chief Judge.
ARGUED NOVEMBER 1, 2012 — DECIDED DECEMBER 23, 2013
Before EASTERBROOK, ROVNER, and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. Brian Swetlik is a police detective
in Manitowoc, Wisconsin. Swetlik sued the City of Manitowoc,
its mayor, and members of its Common Council, alleging that
they violated his First Amendment rights by voting to file a
termination charge against him with the Manitowoc Police and
2 No. 12-2675
Fire Commission. The defendants voted after an outside
investigation recommended Swetlik’s termination based on its
finding that he had been untruthful in statements about the
police chief. Swetlik argues that the charges were actually in
retaliation for his public criticism of the chief, which he made
in his capacity as a union member supporting the union’s
demands for the chief’s resignation. The Police and Fire
Commission later dismissed the charges against Swetlik and he
was reinstated after a period of paid administrative leave. In
the end, it was actually the chief who lost his job.
The district court granted summary judgment for the
defendants, finding that Swetlik’s statements were not pro-
tected speech because they did not address a matter of public
concern and, alternatively, that the defendants were justified
in bringing the charge against him based on the recommenda-
tion of the investigation. We agree with the district court on the
second ground and affirm on that basis.
I. Factual and Procedural Background
Because we are reviewing a grant of summary judgment,
we must view the evidence in the light reasonably most
favorable to Swetlik as the non-moving party, and we must
give him the benefit of reasonable inferences in his favor. See
Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). In November
2005, the Manitowoc police brought into custody a man
suspected of stabbing a police officer. The central controversy
in this case begins with an odd incident involving this sus-
pect’s custody. The suspect was apparently refusing to eat, and
police officers believed he was mentally unstable. For reasons
that are unclear, Police Chief Perry Kingsbury arranged for the
No. 12-2675 3
suspect’s mother to bring him a home-cooked meal at the
police station. But the chief’s wishes were not relayed to the
officers taking the suspect to jail, including Swetlik. Before the
home-cooked meal arrived, Swetlik and other officers had
already taken the suspect to the county jail for booking. When
Chief Kingsbury discovered this, he called the jail and spoke
with Swetlik.
This telephone call is at the heart of this dispute. Swetlik
said a great deal about this telephone call, both publicly and
privately, before he eventually learned that it had been
recorded. The actual contents of the conversation are no longer
disputed. During the call, Chief Kingsbury explained that he
wanted to get the suspect the home-cooked meal, but Swetlik
said the jail would not permit outside food. After Kingsbury
learned that the suspect’s booking process had already begun,
the conversation proceeded as follows:
Chief: Okay. Stop the process, bring him back, we’ve
got some more questions to do.
Swetlik: Okay. Should I ask him if he wants to—if he
wants to, he might not?
Chief: Well, just—just—why—why can’t we just say
that hey, we—I’m sorry, we forgot, we’ve got a few
more questions to ask and is there—do you—do you
mind coming back over to the department to answer
the question?
[Swetlik then asked the suspect if he wanted to come
back to the station for food from his mother; the
suspect said he did not want any food; Swetlik got
back on the telephone with Chief Kingsbury]
4 No. 12-2675
Chief: So you didn’t do what I asked you to do. You
started talking about the food. What I asked you to
do is say hey, you mind coming back over and ask
a few questions, we forgot about something. And
that’s okay, you went about it your way, but—and
now he doesn’t want anything so just let him get
booked—
… Just let him get booked and whatever—whatever
happens, happens. Okay?
Swetlik: Okay. He’ll—he’ll—he’ll visit with her later,
he just—
Chief: Whatever.
Swetlik: —he don’t—he don’t want to eat anything.
Chief: Well, I understand that but we—we—we
might have been able to get him a meal, okay. But
that’s okay, we might not have been.
Swetlik: Okay.
Chief: We’ll catch ya later.
Swetlik: Okay. Bye.
Swetlik interpreted the chief’s words as an instruction to lie
to the jailers by telling them that police wanted to question the
suspect further. He also misunderstood the chief’s final words
to be “I will deal with you later” and took them as a threat.
Swetlik was upset. He told the police officers who were with
him that Chief Kingsbury had told him to lie and had threat-
ened him for not doing so. Later that day he reported the same
No. 12-2675 5
to a deputy chief of police, who apparently took no action on
Swetlik’s complaint.
Swetlik was not the only one who had complaints about
Chief Kingsbury. The police union took a vote of no confidence
in Kingsbury in early 2006 and compiled a list of grievances
against him and the general operation of the police department
with regard to public safety and department morale. Swetlik
added this grievance to the list:
Chief has told officers to lie to other agencies (Golden
Attack)[.] A suspect was taken to MTSO after the
stabbing [of] an officer and while being booked in called
an officer and told him to bring the suspect back to the
PD for a homecooked meal from the suspect[’]s mother.
When the officer asked what he was suppose[d] to tell
the jail staff the chief told him to lie and say there were
more questions to be asked. The officer refused and the
chief said, “I will deal with you later[.]” Nothing was
done.
The union marched to city hall to present its list of 37
grievances and to demand the resignation of Chief Kingsbury.
They presented the grievances and demand to the mayor, the
Common Council, and members of the Police and Fire Com-
mission. Kingsbury responded by arranging a mediation
session between the union and one of his deputies. After
mediation failed, Kingsbury sought to have an outside investi-
gation into the veracity of the union’s complaints. He and his
private attorney discussed the possibility with the mayor, and
the three agreed that an investigation for the purpose of getting
“to the heart of the complaints from the view of an outside
6 No. 12-2675
investigator” would be appropriate. Kingsbury sent a letter to
the mayor formally requesting an investigation into the union’s
complaints against him and the department. The mayor agreed
and the city attorney hired an outside investigator, the law firm
of DeWitt Ross & Stevens, S.C.1
In authorizing the investigation, the mayor explained that
its purpose was to “bring this long-debated issue in our
community to a close” by investigating the “alleged complaints
and accusations against Chief Perry Kingsbury and his
administration, and all related issues and incidents.” Swetlik
maintains that the purpose of the investigation was to silence
the union, pointing to statements by the private attorney who
represented Chief Kingsbury throughout the investigation. The
attorney told the investigators: “When you have got that much
[union] noise going on, you can’t be bopping everybody. He
[the Chief] wouldn’t have a department. Which one, who, and
how? Part of the reason you guys are in here is to help us sort
out [who’s] on first, second, and third. It’s hard enough just
running the PD let alone trying to figure out all this intrigue.”
The chief’s attorney also told the investigators that Swetlik
exemplified the union’s agenda and that he had a “poisoned”
attitude.
Over the next year, the law firm conducted more than 80
interviews. Swetlik was interviewed three times about the
1
The evidence indicates that the city selected this firm on the recommenda-
tion of the chief’s private attorney, who recommended a specific senior
partner at the firm. That partner was not involved in the investigation.
Swetlik does not dispute that the chief’s private attorney served as only his
private attorney.
No. 12-2675 7
telephone call and his allegations that Chief Kingsbury
threatened him for not following his instructions to lie to the
jailers. Before his interviews, though, he had listened to the
recording of the conversation. During his first interview,
Swetlik conceded that Chief Kingsbury did not actually say the
words that he had earlier claimed were a threat (“I will deal
with you later”). Still, Swetlik maintained that Kingsbury had
directed him to lie to the jailers rather than to the suspect. (The
assumption shared by all parties is that deception of suspects
is an accepted part of interrogation, but that law enforcement
officers must be honest with each other.)
The investigators’ report ultimately recommended to the
mayor and the council that both Swetlik and Chief Kingsbury
be terminated (as well as another officer). With regard to
Kingsbury, the report addressed over a dozen allegations
against him and found that most were valid. Based on those
findings, it recommended that Kingsbury be removed for
“inefficiency,” “official misconduct,” and “malfeasance in
office.” With regard to Swetlik, the report recommended
termination because he had lied about the telephone call with
Kingsbury, and lying violated a department rule. The report
said:
[T]here is no doubt that [Swetlik] lied to other
officers about the Chief allegedly instructing him to
lie to the sheriff’s department deputies and threaten-
ing him for failing to do so. Perhaps more impor-
tantly, however, is that Detective Sergeant Swetlik
allowed those lies to be perpetuated and brought
forth to the Police and Fire Commission, the Com-
mon Council and this investigation in an effort to
8 No. 12-2675
seek the removal of Chief Kingsbury. It was only
after he learned that the entire conversation was
recorded and he obtained a copy through the open
records process, that he was forced to retract a part
of the allegations. Nonetheless, Swetlik still clung to
the allegation that the Chief instructed him to lie to
the Sheriff’s deputies despite clear and convincing
evidence to the contrary contained on the recording.
The investigators presented the report and recommenda-
tions to the Common Council. The council voted unanimously
to adopt the recommendation to bring termination charges
against both Kingsbury and Swetlik. After this vote, the
investigators were told to prepare formal charges. The investi-
gators presented Swetlik’s formal charge statement to the
Common Council at a second council meeting on November 5,
2007. A majority of the council, including the mayor, voted to
file the charges.
In the end, two aldermen, Brey and Tittl, did not agree to
file any of the charges, though they had initially voted in favor.
Alderman Brey later testified:
As time went on as you reread the report from
DeWitt, Ross & Stevens, and even in my own—this
is my recollection, the more you read it, the more to
me it became frivolous … . When we start attacking
people’s characters for little inciden[ts] that seem to
be irrelevant to the big thing, I just thought this
became a witch hunt.
Brey clarified that by “witch hunt” he meant that the
concerns brought to the Common Council by the union
No. 12-2675 9
members were the main “focus of this investigation by DeWitt,
Ross & Stevens.” He did not sign the charges because, “after
rereading and rereading the report, I determined that the
allegations were just that. Lot of them were allegations and not
based on fact or violations of law.”
Alderman Tittl later testified that he thought the charge
against Swetlik was “ridiculous” and “felt that the Chief trying
to get this guy a home cooked meal and the detective trying to
keep the guy in jail, and I guess I made an assumption that he
felt threatened and I didn’t think it warranted removal from
the department.”
After the Common Council voted to pursue the charge,
Swetlik was placed on paid administrative leave pending the
outcome. Swetlik’s case was presented to a hearing officer of
the Police and Fire Commission on February 27 and 28, 2008.
Upon Swetlik’s motion, the hearing officer recommended
dismissal of the charge. He concluded that Chief Kingsbury’s
statements to Swetlik during their telephone conversation
could have been interpreted as instructing him to tell the
jailers, not the suspect, that police had additional questions for
the suspect even though they did not. The hearing officer also
concluded that the chief’s statements could have been per-
ceived as threatening. Swetlik was reinstated with the police
department after the Commission adopted the hearing officer’s
conclusions. Swetlik then brought this suit in federal court
against the mayor and the individual members of the Common
Council who voted to bring the charges. He claimed they
retaliated against him in violation of the First Amendment by
bringing charges against him for his complaints about Chief
Kingsbury, which were protected speech because he raised
10 No. 12-2675
them as part of his union activities. The district court granted
summary judgment for the defendants, and Swetlik appeals.
II. Absolute Immunity
Defendants raise a threshold defense to the entire case,
arguing they are entitled to absolute prosecutorial immunity.
We reject this defense. Prosecutorial immunity applies to
prosecutorial actions that are “intimately associated with the
judicial phase of the criminal process.” Van de Kamp v.
Goldstein, 555 U.S. 335, 341 (2009), quoting Imbler v. Pachtman,
424 U.S. 409, 430 (1976). The defendants here are not prosecu-
tors, of course, but that is not why the defense fails. The
immunity’s application depends not on an official’s title but on
whether the official is, at the time, “acting as an officer of the
court” and on the action’s “relatedness to the judicial phase of
the criminal process.” Fields v. Wharrie, 672 F.3d 505, 510 (7th
Cir. 2012); see also Wilson v. Kelkhoff, 86 F.3d 1438, 1443 (7th
Cir. 1996) (“Absolute immunity is not limited to government
officials with the title of prosecutor or judge; officials perform-
ing ‘functionally comparable’ acts in other contexts, such as
administrative agencies, are also accorded absolute immu-
nity.”).
Absolute immunity is not available here because the
defendants’ action was an employment decision, not a decision
to bring criminal charges. Defendants have not provided and
we have not found any cases extending prosecutorial immu-
nity to an employment decision. Even prosecutors themselves
are not entitled to absolute immunity when they make employ-
ment decisions. See, e.g., Lacey v. Maricopa County, 693 F.3d 896,
930–31 (9th Cir. 2012) (en banc) (“Decisions related to general
No. 12-2675 11
conditions of employment—including decisions to hire,
promote, transfer, and terminate—and which do not affect the
prosecutor’s role in any particular matter are generally not
sufficiently related to the initiation and conduct of a prosecu-
tion in a court of law or their role as an advocate of the state to
qualify for absolute immunity.”); see also Forrester v. White,
484 U.S. 219, 229 (1988) (state judge “was acting in an adminis-
trative capacity when he demoted and discharged” a probation
officer and therefore was not entitled to absolute immunity).
To argue for a different result, defendants point only to our
decision in Henry v. Farmer City State Bank, 808 F.2d 1228, 1238
(7th Cir. 1986), but the prosecutorial immunity we extended to
the state’s attorney there was for the attorney’s actions in filing
a petition for civil contempt. The case does not support
prosecutorial immunity for a decision to bring termination
charges against an employee.
III. First Amendment Retaliation
We turn to the merits. To establish a claim for retaliation in
violation of the First Amendment, a public employee must
prove that: (1) his speech was constitutionally protected, (2) he
has suffered a deprivation likely to deter speech, and (3) his
speech was at least a motivating factor in the employer’s
action. Peele v. Burch, 722 F.3d 956, 959 (7th Cir. 2013). Only the
first element is disputed in this case.2
2
Because the second element is not disputed here, we assume without
deciding that the defendants’ actions in bringing formal, public charges that
(a) caused plaintiff’s immediate suspension with pay and (b) could have led
to his termination were sufficient to deter protected speech. In public
(continued...)
12 No. 12-2675
For a public employee’s speech to be protected under the
First Amendment, the employee must show that (1) he made
the speech as a private citizen, (2) the speech addressed a
matter of public concern, and (3) his interest in expressing that
speech was not outweighed by the state’s interests as an
employer in “promoting effective and efficient public service.”
Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir. 2008). This last
element is known as Pickering balancing, after Pickering v. Board
of Education, 391 U.S. 563 (1968). Under Pickering and its
progeny, if an employer takes action against an employee for
2
(...continued)
employees’ First Amendment cases, we have recognized that the question
is often fact-specific and that sometimes even modest deprivations or
threats can be sufficient to deter protected speech. See, e.g., Spiegla v. Hull,
371 F.3d 928, 941 (7th Cir. 2004) (unwelcome transfer to more demanding
job duties); Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000) (harassment
and ridicule); Pieczynski v. Duffy, 875 F.2d 1331, 1333 (7th Cir. 1989)
(harassment of public employee for political beliefs violates First Amend-
ment unless the harassment is so trivial that a person of ordinary firmness
would not be deterred from holding or expressing beliefs); see generally
Rutan v. Republican Party of Illinois, 497 U.S. 62, 76 n.8 (1990) (“the First
Amendment … already protects state employees not only from patronage
dismissals but also 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
Illinois, 868 F.2d 943, 954 n.4 (7th Cir. 1989). Judge Easterbrook’s concurring
opinion shows that this line of First Amendment cases is in tension with
First Amendment doctrine under the Noerr-Pennington doctrine as it might
be applied to the rights of individual government officials who take action
against a public employee based on his protected speech. We leave these
interesting questions of conflicting First Amendment rights for another day
where they may affect the outcome of the case.
No. 12-2675 13
speech that the employer, based on an adequate investigation,
reasonably believes to be false, the employer’s interests
outweigh the speaker’s interests. See Wright v. Illinois Dep't of
Children & Family Servs., 40 F.3d 1492, 1500, 1505–06 (7th Cir.
1994).
Applying these legal principles, we review de novo the
district court’s grant of summary judgment. Cloe v. City of
Indianapolis, 712 F.3d 1171, 1176 (7th Cir. 2013). We will affirm
the grant of summary judgment if, viewing the facts in the
light reasonably most favorable to Swetlik, there is no genuine
dispute as to any material fact. Id.; Fed. R. Civ. P. 56(a). A
genuine issue of material fact exists only if there is enough
evidence upon which a reasonable jury could return a verdict
in Swetlik’s favor. Cloe, 712 F.3d at 1176. Viewing the facts in
this light, we find that Swetlik could be deemed to have
spoken as a private citizen about a matter of public concern
when he made statements about Chief Kingsbury as part of his
union activities. We also find, however, that undisputed facts
show that the defendants reasonably relied on the investiga-
tion’s report that Swetlik had been untruthful, and thus they
were justified in bringing termination charges against him
based on those statements.
A. Speaking as Private Citizen
Defendants argue first that Swetlik’s statements are not
entitled to the protection of the First Amendment because he
did not speak as a private citizen. They argue that the com-
ments leading to the alleged retaliation were made pursuant to
Swetlik’s official duties and therefore were not protected by
the First Amendment. See Garcetti v. Ceballos. 547 U.S. 410,
14 No. 12-2675
421–22 (2006) (a public employee’s statements made pursuant
to official duties are not made as a private citizen for the
purposes of the First Amendment); see also Vose v. Kliment,
506 F.3d 565, 569 (7th Cir. 2007) (applying Garcetti). According
to defendants, because Swetlik was claiming the chief had
violated department policy by ordering him to lie to the jailers,
Swetlik was required to report the telephone call to his
superiors. On this theory, when Swetlik gave his version of the
call to the deputy chief and to the investigators, he acted
pursuant to his official duties.
If the only basis for the defendants’ taking action against
Swetlik were statements he had made as part of his official
duties, Garcetti would indeed bar the claim, and we assume for
purposes of argument that the defense theory would apply to
to Swetlik’s statements to the deputy chief and investigators.
But Swetlik has also offered evidence that defendants were
acting on the basis of his other statements on the matter,
including the grievances that the union presented to the
Common Council and the Police and Fire Commission. Those
statements were made in his capacity as a union member, not
as part of his official duties as a police detective. See Nagle v.
Village of Calumet Park, 554 F.3d 1106, 1123–24 (7th Cir. 2009)
(police officer’s statements made at a union meeting were
made in his capacity as a union representative, not as a police
officer, but summary judgment for employer was affirmed
because statements did not address matter of public concern).
Thus, with regard to his statements at the union meeting and
in the list of grievances, Garcetti “does not deprive his com-
ments of First Amendment protection.” Id. at 1123; see also
Morales v. Jones, 494 F.3d 590, 597–98 (7th Cir. 2007) (applying
No. 12-2675 15
Garcetti and reversing for new trial because police officer’s
speech to district attorney was not protected, while same
speech made in a deposition was protected).
B. Matter of Public Concern
The district court did not decide whether Garcetti applied.
The court found that Swetlik’s speech was not protected
because it did not address a matter of public concern. We
disagree. Swetlik’s allegations about Chief Kingsbury impli-
cated the effectiveness and integrity of the chief, specifically
with regard to his handling of police procedures such as
transporting and booking suspects (in this case, a suspect who
had stabbed a police officer), and we have observed that “‘[i]t
would be difficult to find a matter of greater public concern …
than police protection and public safety,’” Gustafson v. Jones,
290 F.3d 895, 907 (7th Cir. 2002) (affirming denial of new trial
after jury verdict for officers who had publicly criticized a
department order limiting follow-up investigations), quoting
Auriemma v. Rice, 910 F.2d 1449, 1460 (7th Cir. 1990) (en banc).
This case differs from those in which we have previously
found speech not to address a matter of public concern because
it was purely personal or vindicated only a personal interest.
See Bivens v. Trent, 591 F.3d 555, 561–62 (7th Cir. 2010) (em-
ployee’s complaints about lead poisoning were confined to his
own illness); Milwaukee Deputy Sheriff's Ass'n v. Clarke, 574 F.3d
370, 379 (7th Cir. 2009) (deputy sought to further his own
personal interest by questioning sheriff’s courage); Kokkinis v.
Ivkovich, 185 F.3d 840, 844–45 (7th Cir. 1999) (officer’s concerns
about the chief’s “vindictiveness” were expressed to further
officer’s personal goals). Swetlik’s accusation that Chief
16 No. 12-2675
Kingsbury directed an officer to “lie to other agencies” was a
serious accusation that implicated the chief’s integrity and
ability to fulfill his duties as the head of the police department.
Moreover, Swetlik raised the concern along with the other
concerns raised by union members to bring public attention to
the problems they perceived in the department, which they did
by bringing the grievances to the mayor, the Common Council,
and the Police and Fire Commission. Swetlik’s speech was a
matter of public concern in at least some of the contexts in
which it was raised, so summary judgment cannot be affirmed
on this basis.
C. Pickering Balancing
Although for purposes of summary judgment Swetlik’s
statements about Chief Kingsbury were made as a citizen and
addressed a matter of public concern, for speech to be pro-
tected under the First Amendment, it must satisfy another
requirement: the employee’s interest in making the speech
must outweigh the employer’s interest in “promoting the
efficiency of the public services it performs through its employ-
ees.” Hernandez v. Cook County Sheriff's Office, 634 F.3d 906, 914
(7th Cir. 2011) (internal quotations omitted), citing Pickering,
391 U.S. 563. If not, the employer’s action is considered to be
justified and does not violate the First Amendment. See
Garcetti, 547 U.S. at 418 (“The question becomes whether the
relevant government entity had an adequate justification for
treating the employee differently from any other member of
the general public.”), citing Pickering, 391 U.S. at 568. The Court
in Pickering suggested that an employee’s statements may fail
the test and not warrant protection if they were false and made
with knowing or reckless disregard for the truth, Pickering,
No. 12-2675 17
391 U.S. at 574, and we have since held that “an employee’s
speech is not protected where it is[] made with a reckless
disregard for the truth …,” Brenner v. Brown, 36 F.3d 18, 20–21
(7th Cir. 1994).
Whether an employee recklessly disregarded the truth in
making a statement will often present a disputed factual issue.
An employer cannot avoid liability for First Amendment
retaliation simply by asserting that an employee’s otherwise
protected speech was false or was made recklessly. See
McGreal v. Ostrov, 368 F.3d 657, 673–74 (7th Cir. 2004) (revers-
ing summary judgment for employers where they presented
no evidence on the truth of employee’s statements or their
reason for believing statements to be false). But an employer
may defeat a First Amendment retaliation claim if “supervisors
reasonably believed, after an adequate investigation, that [the
employee’s] testimony was false, even if it actually was true.”
Wright v. Illinois Dep’t of Children & Family Servs., 40 F.3d 1492,
1506 (7th Cir. 1994), citing Waters v. Churchill, 511 U.S. 661,
677–80 (1994) (plurality opinion); see also Waters, 511 U.S. at
685 (Souter, J., concurring) (reasonableness test in plurality
opinion was approved by majority of Court and represents a
holding).3
3
Our approach to the problem is consistent with that of other circuits,
which generally hold that a public employee’s speech is not entitled to First
Amendment protection when the employer shows that the speech was false
or made with reckless disregard for the truth, particularly when the truth
of the statement was thoroughly investigated. See, e.g., Diaz-Bigio v. Santini,
652 F.3d 45, 54 (1st Cir. 2011) (reversing denial of qualified immunity to
employer on summary judgment where city took employee’s criticisms
(continued...)
18 No. 12-2675
The defendants in this case are not entitled to summary
judgment on the theory that a reasonable jury would be
required to find that Swetlik’s statements were deliberate lies
or were made with reckless disregard for the truth. The Police
and Fire Commission’s hearing officer found that Swetlik
could have been stating his own reasonable interpretation of
Chief Kingsbury’s statements rather than lying. That is a
plausible reading of the evidence, even if it is not the strongest
reading. We must determine, then, whether the defendants
voted to bring termination charges against Swetlik because
they genuinely and reasonably believed, based on an adequate
investigation, that Swetlik had lied about his telephone
3
(...continued)
“seriously and investigated them, basing its termination decision on the fact
that they were found false and groundless”); Brewster v. Board of Educ. of
Lynwood Unified Sch. Dist., 149 F.3d 971, 981–82 (9th Cir. 1998) (reversing
denial of qualified immunity for employer on summary judgment; falsity
of employee’s speech was part of Pickering balancing, and the “fact that,
despite their public-concern character, [teacher’s] allegations of erroneous
recordkeeping were ultimately determined to be false, both by [the
principal] and by a team of independent auditors,” weighed against First
Amendment protection); see also Reuland v. Hynes, 460 F.3d 409, 414–15 (2d
Cir. 2006) (speech not entitled to First Amendment protection if employer
shows the statement: “(1) would reasonably have been perceived as an
assertion of fact, (2) was false, and (3) was made with knowledge or reckless
disregard of its falsity,” but affirming denial of directed verdict for
defendants where nothing in the record suggested plaintiff’s statement was
false); cf. Westmoreland v. Sutherland, 662 F.3d 714, 721–23 (6th Cir. 2011)
statements made “with knowledge of, or reckless indifference to, their
falsity” are not a matter of public concern such that Pickering balancing is
not necessary; reversing grant of summary judgment for employer where
fact issue existed as to whether plaintiff made statements recklessly).
No. 12-2675 19
conversation with Kingsbury. See Waters, 511 U.S. at 677–80
(plurality opinion). If so, they were justified in bringing the
termination charges.
To show that the defendants did not believe he had lied but
instead voted for the termination charges to silence his
legitimate complaints about the chief, Swetlik relies heavily on
the chief’s private attorney’s statements that the purpose of the
investigation was to quell the union’s complaints about
Kingsbury. The problem is that Swetlik has presented no
evidence that the private attorney caused any improper bias on
the part of the investigators or that the defendants shared his
views. And the fact that the investigation recommended the
termination of Chief Kingsbury himself undermines Swetlik’s
claim that its secret purpose was to protect the chief, distin-
guishing this case from Hobgood v. Illinois Gaming Bd., 731 F.3d
635 (7th Cir. 2013), where the plaintiff presented evidence that
the internal agency investigation that ultimately resulted in a
decision to terminate his employment had a predetermined
outcome. See id. at 644–45.
Similarly unconvincing is Swetlik’s argument that the
mayor’s testimony shows that the mayor did not believe he
had lied but instead wanted to retaliate against him for his
union activities. Swetlik points to the mayor’s statement that
he signed the charges because he believed it would remedy
that “constant issues of communication between administra-
tion and the floor,” but the inference Swetlik draws from those
words is unreasonable and ignores the mayor’s additional
testimony that he voted for the charges because he “believed
that the charges were valid and so the action … would help
resolve issues at the police department.” We must assume the
20 No. 12-2675
truth of the non-moving party’s evidence on summary judg-
ment, but that duty “does not extend to drawing inferences
that are supported by only speculation or conjecture.” Cloe, 712
F.3d at 1176 (internal quotations omitted).
Nor has Swetlik presented evidence from which a jury
could reasonably conclude that the defendants’ acceptance of
the investigators’ findings was unreasonable. His best evidence
on this question comes from the two aldermen who voted
against the termination charges. Alderman Brey found the
allegations against Swetlik to be unsupported and thought the
investigation’s focus on the union’s complaints qualified as a
“witch hunt.” Alderman Tittl thought that Swetlik was right to
complain about Chief Kingsbury’s behavior. But the fact that
these two aldermen were not persuaded by the report would
not permit a jury to conclude that their colleagues who were
sued did not reasonably believe that Swetlik had lied about
police matters and that he should be fired on that basis. See
Waters, 511 U.S. at 678 (plurality opinion) (“[T]here will often
be situations in which reasonable employers would disagree
about who is to be believed, or how much investigation needs
to be done,” and “[i]n those situations, many different courses
of action will necessarily be reasonable”). To the contrary, the
undisputed evidence shows that the defendants were advised
to have no contact with the department during the investiga-
tion, and that they first heard from the investigators when the
report was presented. The discrepancies between Swetlik’s
account of his conversation with Kingsbury and the recording
of that conversation provide further support for the defen-
dants. A jury could not find that the defendants’ belief that he
had lied was unreasonable.
No. 12-2675 21
The undisputed evidence thus shows that the defendants
were justified in bringing termination charges against Swetlik
on the basis of the investigation report. His First Amendment
claim must therefore fail. Presented with the supported
findings of an outside investigation that Swetlik violated
department policy by making untruthful statements, defen-
dants could reasonably rely on the report in voting to bring
termination charges. In other words, the defendants’ interest
in ensuring the proper functioning of the department out-
weighed Swetlik’s interest in making his statements about
Kingsbury. Because we affirm on the merits, we do not reach
the defense of qualified immunity.
The judgment of the district court is AFFIRMED.
22 No. 12-‐‑2675
EASTERBROOK, Circuit Judge, concurring. The mayor and
legislature of a city in Wisconsin proposed to discharge two
members of the police department, which was experiencing
internal discord. Under state law, the power to discharge
rests with the Police and Fire Commission. So the elected of-‐‑
ficials put their case to the Commission, which took evi-‐‑
dence, deliberated, and concluded that Detective Kevin
Swetlik should keep his job, but that Perry Kingsbury, the
Chief of Police, should be sacked. You might expect a suit by
Kingsbury, demanding his job back and his name cleared.
Instead we have a suit by Swetlik, who contends that even
proposing to fire him is actionable under 42 U.S.C. §1983 as
an infringement of his freedom of speech.
Today the court holds that the filing of charges was justi-‐‑
fied. Because we rule against Swetlik on this ground, with
which I agree, the court does not consider other subjects—
including the fact that elected officials have a constitutional
right to speak and petition. Swetlik relies on cases holding
that public officials cannot fire or discipline employees on
the basis of protected speech. But defendants did not fire
Swetlik; they made a proposal to the Commission. In other
words, defendants engaged in speech rather than action.
Elected officials often express opinions about who should
work for the polity. Views about how best to run the gov-‐‑
ernment are not confined to editorial writers or politicians
seeking office; those already in office also have opinions and
may have extra knowledge on which to base them. And if
each elected official has a right to express an opinion, then
defendants no less than Swetlik are protected by the first
amendment from penalties for their speech.
No. 12-‐‑2675 23
The court mentions this possibility at pages 11–12 note 2
but leaves the matter for decision another day. Seems to me
that the answer is straightforward. First, elected officials (de-‐‑
fendants, for example) have the same first amendment rights
as appointed ones (Swetlik, for example). Second, everyone
has the right to petition for redress of grievances—and that’s
what defendants did, petitioning the Commission to remove
employees who in defendants’ view were harming the pub-‐‑
lic weal. Third, under the Noerr-‐‑Pennington doctrine petitions
to public bodies cannot be penalized unless they are frivo-‐‑
lous. See BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002)
(recapitulating the Noerr-‐‑Pennington doctrine).
We held in New West, LP v. Joliet, 491 F.3d 717, 721–22
(7th Cir. 2007), that the Noerr-‐‑Pennington doctrine applies to
speech, proposals, and petitions by elected officials. Other
circuits agree. See Miracle Mile Associates v. Rochester, 617
F.2d 18 (2d Cir. 1980); Mariana v. Fisher, 338 F.3d 189 (3d Cir.
2003); Manistee Town Center v. Glendale, 227 F.3d 1090 (9th
Cir. 2000). A solitary decision, Video International Production,
Inc. v. Warner-‐‑Amex Cable Communications, Inc., 858 F.2d 1075
(5th Cir. 1988), is to the contrary. Yet the only reason given
in Video International—that “it is impossible for the govern-‐‑
ment to petition itself within the meaning of the first
amendment”, id. at 1086—not only wrongly supposes that
“the government” is a unitary entity (Swetlik’s situation and
Virginia Office for Protection & Advocacy v. Stewart, 131 S. Ct.
1632 (2011), show that it isn’t), but also overlooks the fact
that defendants in suits of this kind are real people in their
personal capacities, not “the government”.
The Noerr-‐‑Pennington doctrine establishes that Swetlik
cannot collect damages under §1983 for defendants’ pro-‐‑
24 No. 12-‐‑2675
posal to fire him. Even if the charges defendants made
against Swetlik were false and libelous, that would not mat-‐‑
ter, because Paul v. Davis, 424 U.S. 693 (1976), holds that def-‐‑
amation that does not make a person unemployable does not
violate the Constitution.
Otherwise we would open a new era in which litigants
who prevail before state courts or administrative agencies
could turn around and demand damages in federal court. If
fee-‐‑shifting is to occur at all, this should be done in the orig-‐‑
inal state proceeding, not in a separate federal suit. Under
the American Rule, litigants must bear their own legal ex-‐‑
penses in the absence of a statute requiring losers to pay.
Swetlik does not contend that Illinois law entitles him to
compensation for the costs incurred in defeating defendants’
proposal; he didn’t even seek such an award in the state pro-‐‑
ceeding. Maybe he was represented by a union and did not
incur any legal expenses. Yet he sees in the first amendment
an entitlement to collect from his adversary via a second,
federal proceeding. It just isn’t there.
Brian Swetlik v. Kevin Crawford
Court: Court of Appeals for the Seventh Circuit
Date filed: 2013-12-23
Citations: 738 F.3d 818, 2013 WL 6731780, 2013 U.S. App. LEXIS 25589, 97 Empl. Prac. Dec. (CCH) 44,977
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