Kidwell v. Eisenhauer, 2012 U.S. App. LEXIS 10233

Kenneth Kidwell, a Danville, Illinois police sergeant with 16 years on the force, publicly criticized departmental officials at two union meetings and in other contexts.
Shortly thereafter he faced disciplinary actions for police conduct and policy violations, including a written reprimand, a two-day suspension, and later a fitness-for-duty process.
After failing a fitness-for-duty evaluation, the department sought to terminate him; an arbitrator ultimately reinstated him with a seven-day suspension and a condition to pass another fitness-for-duty exam.
Kidwell filed a 42 U.S.C. § 1983 action alleging retaliation for his protected speech; the district court granted summary judgment for the defendants.
The Seventh Circuit reviews de novo whether Kidwell can show the required causation for a retaliation claim under the First Amendment.
The court clarifies the causation standard, adopting Greene’s framework that at summary judgment the plaintiff must show the protected speech was a motivating factor, with the burden then on the employer to rebut; if not countered, but-for causation may be shown.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Kidwell establish a prima facie causal link from protected speech to adverse actions?	Kidwell argues protected speech was a motivating factor.	Defendants contend timing and intervening events break causation.	No; no sufficient prima facie causal link.
Are the alleged actions sufficiently proximate in time to the protected speech to infer causation?	Suspicious timing links actions to speech.	Gaps in time and intervening events undermine timing-based inference.	No; timing alone does not establish causation given long gaps and intervening events.
Do deviations from policy or UPODA procedures create a pretext for retaliation?	Procedural deviations imply retaliatory motive.	Policy deviations, if any, are not shown to be dishonest or pretextual; other evidence shows deficient performance.	No; no pretext shown; deviations are insufficient to prove retaliation.

Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274 (U.S. 1977) (but-for causation is the general requirement for retaliation claims at trial)
Spiegel v. Galena, 371 F.3d 928 (7th Cir. 2004) (motivating-factor standard; context for causation framework)
Gross v. FBL Financial Services, Inc., 557 U.S. 167 (U.S. 2009) (but-for causation required unless statute provides otherwise)
Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009) (but-for causation framework for plaintiff's burden in retaliation claims)
Greene v. Doruff, 660 F.3d 975 (7th Cir. 2011) (distinguishes prima facie and ultimate burden at summary judgment; split burdens)
Loudermilk v. Best Pallet Co., 636 F.3d 312 (7th Cir. 2011) (suspicious timing requires close temporal proximity)
Casna v. City of Loves Park, 574 F.3d 420 (7th Cir. 2009) (short time gaps can support causation in certain circumstances)
Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681 (7th Cir. 2000) (dishonest explanation for policy deviation supports inference of retaliation)
Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106 (7th Cir. 1998) (policy deviations plus proven deficient performance can negate pretext arguments)
Rudin v. Lincoln Land Community College, 420 F.3d 712 (7th Cir. 2005) (deviations from policy may be circumstantial evidence of retaliation, but must show pretext)