893 F.3d 422
7th Cir.2018Background
- Scott Milliman, a McHenry County deputy with a prior right-frontal brain tumor, gave a 2010 deposition accusing Sheriff Keith Nygren of bribery, loan fraud, human trafficking, and soliciting murder. These allegations were uncorroborated and described as bizarre.
- MCSD officials reviewed the deposition, placed Milliman on administrative leave, and referred him for a fitness-for-duty psychological examination; Dr. Robert Grote (who previously examined Milliman) performed the 2011 evaluation.
- Dr. Grote found Milliman disorganized, with cognitive signs consistent with frontal-lobe dysfunction, inconsistent autobiographical memory, and an abnormal MMPI-2 profile suggesting paranoia and poor insight; he concluded Milliman was unfit for duty.
- Milliman was offered disability retirement but did not apply; MCSD terminated him citing the fitness report, false allegations, and General Order violations.
- Milliman sued under 42 U.S.C. § 1983 alleging First Amendment retaliation and related state-law and Monell claims; the district court granted summary judgment for defendants, and the Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination violated Milliman's First Amendment right (retaliation) | Milliman argues his deposition was protected speech and that defendants fired him in retaliation; he contends Dr. Grote's report was influenced by misleading information and thus pretextual. | Defendants concede speech was a motivating factor but maintain they would have terminated Milliman regardless because they honestly relied on Dr. Grote's independent fitness-for-duty finding. | Court: Milliman's speech was a motivating factor, but defendants met burden showing they would have fired him based on Dr. Grote's report; Milliman failed to show that reason was pretextual. |
| Whether Dr. Grote's report was tainted or lacked independence | Milliman points to collateral communications to Dr. Grote (selective police reports, comments about retirement/disability, statements that allegations were false) and similarities to 2003 tests to argue dependence and pretext. | Defendants argue Dr. Grote relied on multiple independent indicators (interview behavior, cognitive test abnormalities, MMPI-2, collateral interviews) and expressly stated new facts would not "undo" present problems. | Court: The communications did not undermine independence; multiple objective indicators supported Dr. Grote's conclusion. |
| Whether differing expert critique creates a triable issue of pretext | Milliman's expert (Dr. Dawkins) criticized Grote's methodology and emphasized objective test stability, suggesting situational causes for MMPI changes. | Defendants say Dawkins does not dispute the ultimate unfitness conclusion and her critiques were not available at decision time. | Court: Critiques do not show a pretextual lie; at most they show mistaken judgment, not a sham reason. |
| Whether derivative Monell and state conspiracy claims survive absent First Amendment violation | Milliman's derivative claims depend on proving constitutional violation. | Defendants contend derivative claims fail if First Amendment claim fails. | Court: Because First Amendment claims fail, derivative claims also fail. |
Key Cases Cited
- Swetlik v. Crawford, 738 F.3d 818 (7th Cir. 2013) (standard of review for summary judgment)
- Diadenko v. Folino, 741 F.3d 751 (7th Cir. 2013) (First Amendment retaliation framework for public employees)
- Thayer v. Chiczewski, 705 F.3d 237 (7th Cir. 2012) (burden-shifting and causation in retaliation claims)
- Greene v. Doruff, 660 F.3d 975 (7th Cir. 2011) (but-for causation and motivating-factor analysis)
- Massey v. Johnson, 457 F.3d 711 (7th Cir. 2006) (when court may credit employer's explanation on summary judgment)
- Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997) (assessing employer explanations at summary judgment)
- Lord v. High Voltage Software, Inc., 839 F.3d 556 (7th Cir. 2016) (pretext requires more than mistaken judgment; must be a phony reason)
- Culver v. Gorman & Co., 416 F.3d 540 (7th Cir. 2005) (employer's honestly held reasons can be irrational yet legitimate)
- Argyropoulos v. City of Alton, 539 F.3d 724 (7th Cir. 2008) (courts should not second-guess employer's facially legitimate decisions)
- Koziara v. BNSF Ry. Co., 840 F.3d 873 (7th Cir. 2016) (employer may act on medical information that would lead to legitimate discharge)
- McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995) (employer may rely on information that would prompt discharge)
- Freelain v. Vill. of Oak Park, 888 F.3d 895 (7th Cir. 2018) (law enforcement safety justifies psychological evaluations)
- Zellner v. Herrick, 639 F.3d 371 (7th Cir. 2011) (pretext standard at summary judgment)
- Hartman v. Moore, 547 U.S. 250 (2006) (but-for causation in retaliation context)