Graber v. Clarke, 200 L.R.R.M. (BNA) 3360

Richard Graber, a Milwaukee County Deputy Sheriff sergeant and union vice president, raised concerns on June 25, 2010 about mandatory overtime assigned to jail deputies after a fatal accident at O’Donnell Park.
Graber called the union president and then spoke with Captain Meverden and Sergeant Mascari as the union representative; that conversation was calm and resolved and Meverden testified Graber was not insubordinate.
Later Graber had a brief, disputed, heated encounter with Deputy Inspector Nyklewicz in which Nyklewicz says Graber yelled, insulted Sheriff Clarke, and acted insubordinately; Nyklewicz reported the incident.
Clarke met with Graber that day; accounts differ about Clarke’s language and conduct, but Clarke and Bailey said the meeting was prompted by Nyklewicz’s complaint about Graber’s insubordination, not by the earlier union call.
Graber later received a separate seven-day suspension (investigation began before the park incident) that was overturned by an arbitrator; Graber claimed retaliation and stress-related early retirement and sued under § 1983 (First Amendment free speech/association) and state Law Enforcement Officer’s Bill of Rights.
The district court found the call to Meverden/Mascari protected but the encounter with Nyklewicz was not, and that Graber failed to show causation between any protected speech and adverse action; the Seventh Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Graber’s statements were protected speech	Graber says his calls/remarks were made as union VP and addressed public safety and CBA violations (matters of public concern)	Defendants say remarks to Nyklewicz were insubordinate, personal, and made pursuant to official duties, not protected	The call to Meverden/Mascari was protected speech; the encounter with Nyklewicz was not
Whether protected speech was on a matter of public concern	Graber: safety and overtime policy affect public and deputies	Defendants: context, tone, and audience show personal grievance and workplace disruption	Court: conversation re overtime with Meverden/Mascari was public concern; Nyklewicz encounter was a personal, disruptive grievance
Whether Graber suffered adverse employment action because of protected speech	Graber: Clarke’s abusive meeting and later suspension were retaliatory and chilled speech	Defendants: suspension was for pre-existing memo-book investigation; meeting was prompted by Nyklewicz’s complaint about insubordination	Held: no causal link between protected speech and suspension or Clarke’s meeting; retaliation claim fails
Burden on causation (motivating factor)	Graber: protected speech motivated disciplinary/hostile treatment	Defendants: meeting was called due to Nyklewicz’s report of insubordination; suspension unrelated	Court: plaintiff failed to show but-for causation; Clarke’s conduct tied to nonprotected encounter

Garcetti v. Ceballos, 547 U.S. 410 (public employees’ statements made pursuant to official duties are not protected)
Pickering v. Board of Education, 391 U.S. 563 (balancing public-employee speech on matters of public concern against government employer interest)
Connick v. Myers, 461 U.S. 138 (content, form, context determine public concern; speech disrupting office not protected)
Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (causation/supervening legitimate reasons framework for retaliation)
Spiegla v. Hull, 481 F.3d 961 (Seventh Circuit application of Pickering balancing)
Gustafson v. Jones, 290 F.3d 895 (standard of review and mixed law/fact First Amendment analysis)