AMY HARNISHFEGER, Plаintiff-Appellant, v. UNITED STATES OF AMERICA, et al., Defendants-Appellees.
No. 18-1865
United States Court of Appeals For the Seventh Circuit
ARGUED NOVEMBER 28, 2018 — DECIDED DECEMBER 3, 2019
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:16-cv-03035-TWP-DLP — Tanya Walton Pratt, Judge.
HAMILTON, Circuit Judge. This appeal deals with First Amendment protection for public employees when they engage in speech that is not related or tied to their work. Plaintiff Amy Harnishfeger authored a short book, published under a pseudonym, about her time as a phone-sex operator called Conversations with Monsters: 5 Chilling, Depraved and Deviant Phone Sex Conversations. A month after publishing Conversations, Harnishfeger began what was to have been a one-year
But when Harnishfeger‘s National Guard supervisor discovered Conversations and identified Harnishfeger as its author, she demanded that CNCS remove Harnishfeger from her position. CNCS complied. Harnishfeger was unable to find another suitable placement for the remаinder of her VISTA service, so, three months after she started, CNCS cut her from the program entirely. Harnishfeger filed this suit alleging violations of her rights under the First Amendment and the Administrative Procedure Act (APA). The district court granted the defendants’ motions for summary judgment. Harnishfeger v. United States, 2018 WL 1532691 (S.D. Ind. March 29, 2018). Harnishfeger appeals.
We reverse in part and affirm in part. Conversations with Monsters is clearly protected speech, and on this record, a jury could find that Harnishfeger‘s National Guard supervisor, Lieutenant Colonel Lisa Kopczynski, infringed her freespeech rights by removing her from her placement because of it. We find no basis, however, for holding CNCS or its employees liable, so we affirm the judgment in favor of the federal defendants.
I. Factual Background
A. Conversations with Monsters
Because this appeal is from a grant of summary judgment, we state the facts and the inferences from them in the light most favorable to Harnishfeger. A little more than a decade ago, Harnishfeger found herself unemployed and
These “vile, unrepentant, disgusting poor excuses for men” (and one woman) are the “monsters” of whom she wrote in Conversations. Harnishfeger did not mince words: “if you‘re getting off at the thought of hurting a child . . ., there is something clearly unfit for this world in you and you need to end things once and for all.” Conversations recounted five of Harnishfeger‘s most horrifying phone-sex calls and meditated on the social role of phone-sex operators and on her own experiences as one of them.
Harnishfeger published Conversations with Monsters in May 2016 by making it available for sale in electronic form on Amazon, an online marketplace. On June 2, 2016 Harnishfeger announced publication of her book on her page on Facebook, a social networking website, with a link to the book‘s page on Amazon. Harnishfeger‘s Facebook page was “set to private,” meaning that only Facebook users whom Harnishfeger dеsignated as her “friends” could view what she posted there. Others viewing Harnishfeger‘s Facebook page would see only very general information about her.
Because Conversations was published pseudonymously, only Harnishfeger‘s Facebook “friends” could tie her to it. Even they, however, would have had to do a bit of hunting to find a reference to it unless they had seen the publication announcement soon after it was posted. A Facebook user‘s posts
B. VISTA
Shortly after publishing Conversations with Monsters, Harnishfeger was selected to participate in the VISTA program. The VISTA program is a part of AmeriCorps, a federal network of hundreds of programs across the nation. It is sometimes called “the domestic Peace Corps.” VISTA members serve full-timе for a year at non-profit organizations or local government agencies to help them carry out programs to alleviate poverty. AmeriCorps is administered by CNCS, a federal agency that leads service, volunteering, and grantmaking efforts in the United States.1
Prospective VISTA members apply directly to CNCS. If selected to participate in the program, members apply separately to work with a sponsoring organization pre-approved by CNCS. In Indiana, for example, the twenty-three organizations approved for VISTA sponsorship in 2016 included various charities, the Indianapolis Public Schools, and the Indiana Army National Guard. VISTA members/volunteers do not
C. Harnishfeger‘s Short VISTA Career
Harnishfeger had applied to and been accepted by CNCS as a VISTA volunteer sponsored by the Indiana Army National Guard. She began her VISTA service with the Guard‘s Family Program Office in Indianapolis оn June 24, 2016. Harnishfeger was responsible for maintaining a database of information on service providers to whom veterans and their families could turn for help. Much of the underlying information had already been gathered by the Guard‘s previous VISTA volunteer. If it had not been, Harnishfeger would glean the information herself from public sources. She would then enter it into the database. The information was made publicly available on the Guard‘s website.
Occasionally—perhaps a dozen times over the course of three months—Harnishfeger was unable to find an item of information she needed, such as a service provider‘s telephone number or physical address. In those cases, Harnishfeger contacted the service provider directly, usually by telephone or email.
In two cases, Harnishfeger could find no contact information for the service provider at all, so, using her own Facebook account, she posted a comment to the provider‘s Faсebook page asking for the information she needed. For example, on August 26, she posted a message to the Facebook page of an organization called PACT—Hoosier Hills asking for an office email address. The comment identified Harnishfeger as a “VISTA volunteer.”
During her three months of VISTA service with the Guard, these dozen contacts were the only occasions on which Harnishfeger interacted with members of the public on the Guard‘s behalf. Otherwise, she sat at a computer and entered data. She performed her duties to the Guard‘s satisfaction.
D. Harnishfeger‘s Termination from VISTA
That likely would have been the story of Harnishfeger‘s entire year with the Guard. But then Noelle Butler, Harnishfeger‘s direct supervisor, asked to become her Facebook “friend.” Harnishfeger felt she could not reject this request from her quasi-employer. She accepted Butler‘s “friend request” and thereby gave Butler access to all of her “friends-only” Facebook activity.
In mid- to late September, Butler explored Harnishfeger‘s Facebook history deeply enough—through “many dozens, if not hundreds” of posts—to come upon her post of June 2 announcing the publication of Conversations with Monsters. Over her lunch break one day, “[o]ut of curiosity about this bizarre title,” Butler and another Guard employee followed the Amazon link and purchased a copy of the book. On September 27, Butler and the other employee brought the book‘s contents to the attention of Lieutenant Colonel Lisa Kopczynski, the Guard‘s State Family Program Director.
The next day, September 29, Harnishfeger met with Butler and Kopczynski. Kopczynski told her that Conversations with Monsters was “really horrible,” that she was not presenting the Guard “in a favorable light,” and that the Guard could not “have anyone find out about” her authorship of Conversations. Harnishfeger would therefore be removed from her VISTA placement with the Guard.
The same day, Harnishfeger received a letter from Louis Lopez, Indiana State Program Director for CNCS, informing her that she had been removed from her VISTA placement and put on “Administrative Hold status” for up to 30 days, effective immediately. A wеek or so later, in early October, Kubiszewski told Harnishfeger that, although she would not be readmitted to her placement with the Guard, if she deactivated her Facebook account, she would be permitted to seek another sponsor where she could complete her term of VISTA service. Harnishfeger accordingly deactivated her account.
On October 6, Kubiszewski sent Harnishfeger a letter spelling out her prospects with the VISTA program. She gave Harnishfeger a list of approved VISTA sponsors in Indiana and nineteen days, until October 25, to find a new sponsor. If Harnishfeger could not secure reassignment before October
Harnishfeger contacted five of the twenty-two potential sponsors available to her. One responded, but it was too far from Indianapolis to be feasible on Harnishfeger‘s limited means. Harnishfeger thus failed to secure reassignment by the October 25 deadline. On that day, she received a second letter from Lopez informing her that her VISTA membership had been finally terminated “for lack of suitable assignment.”
E. This Lawsuit
Within two weeks, Harnishfeger sued Lopez, Kubiszewski, Kopczynski, and Butler in their personal and official capacities, as well as the United States government, for violating her rights under the First and Fourteenth Amendments and the Administrative Procedure Act,
The personal-capacity defendants (except Butler, who was later dismissed on Harnishfeger‘s motion) moved to dismiss the complaint. The United States, as a named defendant and as the real target of official-capacity claims against federal actors, Hafer v. Melo, 502 U.S. 21, 25–26 (1991), moved separately to dismiss the complaint or in the alternative for summary judgment. After converting the defendants’ motions to dismiss to motions for summary judgment, see
II. Analysis
Because the district court converted the defendants’ motions to dismiss to motions for summary judgment, we apply
A. First Amendment Claim Against Lt. Col. Kopczynski
1. First Amendment Merits
We begin with the First Amendment merits before turning to questions of Lieutenant Colonel Kopczynski‘s personal liability. To prove a First Amendment retaliation claim, a public employee must establish three elements: first, that she engaged in constitutionally protected speech; second, that she suffered a deprivation likely to deter protected speech; and third, that her protected speech was a motivating factor in the deprivation аnd ultimately, if the public employer cannot show it would have inflicted the deprivation anyway, its butfor cause. See Graber v. Clarke, 763 F.3d 888, 894–95 (7th Cir. 2014); Greene v. Doruff, 660 F.3d 975, 977–80 (7th Cir. 2011) (collecting causation cases); Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). The first element—constitutionally protected speech—is the nub of this appeal; the second and third are uncontested as to Kopczynski.
a. Conversations Is Protected Under NTEU
There are at least two routes to Pickering balancing. See City of San Diego v. Roe, 543 U.S. 77, 80 (2004). The better traveled leads across the double threshold established by Connick v. Myers, 461 U.S. 138 (1983), and Garcetti v. Ceballos, 547 U.S. 410 (2006). The employee must show under Garcetti that she spoke as a citizen rather than an employee, 547 U.S. at 418, and under Connick that she spoke on a matter of public concern rather than “matters only of personal interest.” 461 U.S. at 147.
When the employee‘s speech is neither at work nor about work, however, a different path to Pickering is available under United States v. National Treasury Employees Union, 513 U.S. 454 (1995) (”NTEU“), largely anticipated in this circuit by Eberhardt v. O‘Malley, 17 F.3d 1023 (7th Cir. 1994). In NTEU, the Court struck down a federal law that prohibited federal employees from receiving honoraria for writing and speaking on
The key issues under NTEU are whether the employee‘s speech is “made outside the workplace,” id. at 466; “invоlve[s] content largely unrelated to [her] government employment,” id.; and is “addressed to a public audience,” id., or, what amounts to the same thing, involves “any matter for which there is potentially a public.” Eberhardt, 17 F.3d at 1026 (rejecting pre- and post-publication distinction). If the employee shows these elements, and if the employer cannot show the employee‘s speech was linked by her “deliberate steps” to the employer‘s mission, purpose, or image, see Roe, 543 U.S. at 81, then NTEU, not Connick, controls, and Pickering balancing applies.
While Conversations may satisfy Connick as citizen speech on a matter of public concern, NTEU offers the easier and clearer path to decision. Harnishfeger‘s book was written and published a month before she began her VISTA service. Its content is entirely unrelated to CNCS, VISTA, and the Guard. It was written for a general audience on the personal experiences of sex workers and their social role, matters for which there is undoubtedly a public. Harnishfeger never
Defendants try to distinguish NTEU by citing Roe and our decision in Craig v. Rich Township High School District 227, 736 F.3d 1110 (7th Cir. 2013), arguing that Harnishfeger deliberately linked Conversations with Monsters to her VISTA service by “promoting [the book] on her Facebook page, where she held herself out as an employee of the Indiana National Guard and which she used to contact local family-services organizations on behalf of the Guard.” This argument distorts the record and fails to give plaintiff the benefit of conflicting evidence and favorable inferences from the evidence.
The plaintiff in Roe was a San Diego police officer who sold videos of himself on an online marketplace, stripping and masturbating in a police uniform and pantomiming police work. 543 U.S. at 78–79. He sold these and other items, including official San Diego police uniforms, under a user name that was “a wordplay on a high priority police radio call,” while identifying himself as employed in the field of law enforcement. Id. For these actions and for failing to comply with a resulting investigation by his employer, Roe was fired. He sued, alleging his firing violated the First Amendment. Id. at 79.
The Court concluded, summarily and unanimously, that the firing was permissible under either NTEU or Connick. Id. at 80. “In NTEU it was established that the speech was unrelatеd to the employment and had no effect on the mission and purpose of the employer.” Id. By contrast, although Roe‘s expression “purported to be” unrelated to his employment, Roe himself had taken “deliberate steps to link his videos . . . to his police work, all in a way injurious to his employer.” Id. at
Similar linkage was critical in Craig, where the plaintiff was a former high school guidance counselor and girls’ basketball coach who had been fired from those positiоns for writing a book called It‘s Her Fault, a “hypersexualized” tract dedicated to the proposition that, when men and women experience difficulties in romantic relationships, “it‘s her fault.” 736 F.3d at 1113–14. Affirming the district court‘s dismissal of his complaint, we rejected Craig‘s argument that his book was protected under NTEU.
Craig had taken “‘deliberate steps to link’ his book with his work as a guidance counselor . . . .” Id. at 1118, quoting Roe, 543 U.S. at 81. Craig‘s book cited his work as a counselor and coach as the basis for his claimed expertise; thanked his “students and clients” in the acknowledgments; contained a foreword written by a teacher at Craig‘s school; and described the counseling Craig had provided “to thousands of students, parents, clients, and friends.” Id. We held this material reflected “Craig‘s conscious choice to connect ‘It‘s Her Fault’ to his counseling position,” taking his book outside NTEU‘s protection. Id.
The point of Roe and Craig is that the speaker-employee cannot deliberately trade on her public employment while
Conversations was speech on a matter of public concern within the meaning of NTEU, and Harnishfeger is therefore entitled to Pickering balancing. The district court erred in reaching the contrary conclusion. That is not enough to resolve this appeal, however, as the district court ruled in the alternative that, even assuming Conversations was constitutionally protected in the threshold sense, the Pickering balance weighed in the defendants’ favor. This ruling, too, was erroneous.
b. The Pickering Balance Does Not Weigh in the Defendants’ Favor
The challenge in public-employee speech doctrine is “to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568. In deciding whether the balance should be struck in favor of speech or efficiency in a given case, we have examined seven factors:
- (1) whether the speech would create problems in maintaining discipline or harmony among
co-workers; (2) whether the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee‘s ability to perform her responsibilities; (4) the time, place and manner of the speech; (5) the context in which the underlying dispute arose; (6) whether the matter was one on which debate was vital to informed decisionmaking; and (7) whether the speaker should be regarded as a member of the general public.
Kristofek v. Village of Orland Hills, 832 F.3d 785, 796 (7th Cir. 2016), quoting Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir. 2000). We need not address each factor in each case. Id., citing Graber v. Clarke, 763 F.3d 888, 896 (7th Cir. 2014).
At trial, the public employer has the burden of showing by a preponderance of the evidence that this balance weighs in its favor. Gustafson v. Jones, 290 F.3d 895, 906, 909 (7th Cir. 2002). Requiring proof by a preponderance of the evidence indicates that the public employer‘s burden is one of persuasion, not merely production, in the nature of an affirmative defense. See Gustafson v. Jones, 117 F.3d 1015, 1019 (7th Cir. 1997) (“[P]urely as a matter of good pleading practice, we think it preferable to leave to the defendant the burden of raising justification [under Pickering] as an affirmative defense.“); see generally Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 57 (2005), citing FTC v. Morton Salt Co., 334 U.S. 37, 44–45 (1948) (“[T]he burden of persuasion as to certain elements of a plaintiff‘s claim may be shifted to defendants, when such elements can fairly be characterized as affirmative defenses . . . .“).
On appeal, the defendants’ defense of the district court‘s Pickering balance suffers from two general defects. First, through citations to websites and the “VISTA Member Handbook,” they seek to defend the district court‘s decision based on facts that were not before that court. Contra,
On this record, the only evidence of the defendants’ actual concerns with Conversations is Kopczynski‘s September 28, 2016 letter to Kubiszewski requesting Harnishfeger‘s removal from her Guard assignment, supported by Harnishfeger‘s report of her September 29, 2016 meeting with Kopczynski and Butler. Kopczynski‘s letter disclosed one overriding concern: that Conversations and Harnishfeger‘s June 2, 2016 Facebook post announcing its publication “substantially diminishe[d]” Harnishfeger‘s “effectiveness as an AmeriCorps VISTA member.”
The letter suggests two reasons for that conclusion: first, that “activities and conduct found on Amy‘s social media Facebook account . . . do not favorably represent our Family Program Office or its core programs,” and again that “[t]hese public displays on social media do not reflect a positive image for our organization“; and second, that “[t]his posting and its
Harnishfeger‘s report of the September 29 meeting is consistent with the September 28 letter, except that on September 29 there was apparently no mention of “help-seeking behaviors” or the Guard‘s “Domestic Violence Prevention and Response Plan.” According to Harnishfeger, in their meeting Kopczynski said that Conversations was “really horrible,” that Harnishfeger was not presenting the Guard “in a favorable light,” and that the Guard could not “have anyone find out” that Harnishfeger had written it.
Kopczynski‘s first reason for doubting Harnishfeger‘s effectiveness was that Conversations reflected poorly on the Guard. But there is no evidence or reasonable inference that it had done so or would do so—certainly not to an extent that would risk compromising the Guard‘s mission, a prospect Kopczynski‘s letter did not even raise. “The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee‘s role entails.” Rankin v. McPherson, 483 U.S. 378, 390 (1987). Harnishfeger‘s responsibilities with the Guard were so routine and clerical that she could not be viewed by a reasonable member of the public as speaking for the Guard on any matter, beyond her occasional collection of telephone numbers and email addresses from veterans’ service providers.
In this respect, Harnishfeger is much like the clerical law-enforcement employee in Rankin. She was fired from that role (impermissibly, as the Court held) for saying, in a private
On this point, the Court contrasted the case with McMullen v. Carson, 754 F.2d 936 (11th Cir. 1985), which upheld the firing of a clerical employee in the Jacksonville, Florida, sheriff‘s office after the employee identified himself at a televised press conference as a recruiter for the Ku Klux Klan. Rankin, 483 U.S. at 391 n.18. In that case, “[t]he evidence [was] uncontradicted that Jacksonville‘s black community in large part would categorically distrust the Sheriff‘s office if a known Klan member were permitted to stay on in any position.” McMullen, 754 F.2d at 939.
Our decision in Craig offers a useful comparison on this point as well. Emphasizing the “inordinate amount of trust and authority” conferred upon Craig by his role as a high school guidance counselor, 736 F.3d at 1119, we could “easily see how female students may feel uncomfortable seeking advice from Craig given his professed inability to refrain from sexualizing females” and indeed might have forgone “the school‘s counseling services entirely rather than take the risk that Craig would not view them as a person but instead as an
As in Rankin, and unlike McMullen and Craig, there is in Harnishfeger‘s case no evidence and no basis for believing that veterans or organizations serving them would distrust the Guard if the known author of a phone-sex memoir were permitted to collect and enter the organizations’ contact information into a database on the Guard‘s behalf. That is all the more true of Conversations specifically, which disаpproves sexual abuse of children in the strongest terms, describing those who fantasize about it as “monsters” who “need to end things once and for all.” It “borders on the fanciful,” see Rankin, 483 U.S. at 393 (Powell, J., concurring), to suggest, as defendants do here, that any member of the public could believe the Guard condoned sexual abuse of children because its VISTA volunteer authored Conversations.
It is in fact highly unlikely that Conversations could have reflected anything at all about the Guard, positive or negative. Only a single “private” Facebook post linked Conversations to Harnishfeger, and, as far as the record discloses with certainty, only two “public” Facebook posts linked Harnishfeger to the Guard. Harnishfeger‘s authorship of Conversations was uncovered only because Butler, the Guard‘s own employee, out of boredom or curiosity on her lunch break, went digging through “dozens, if not hundreds” of Harnishfeger‘s Facebook posts. She was able to do so only because—we must assume—Harnishfeger felt compelled to accept her supervisor‘s “friend” request. The rеasonable inference in Harnishfeger‘s favor is that she would not have accepted “friend” requests
The district court weighed in defendants’ favor the possibility that Butler, not Harnishfeger, would disrupt the Guard‘s mission by spreading knowledge of Conversations. We must disagree. Aside from the lack of evidence on this point, the government cannot be handed a “snooper‘s veto” when it uncovers otherwise secreted employee speech and then invokes the possibility that its own agents would publicize it. Cf. Craig, 736 F.3d at 1121 (recognizing that “heckler‘s veto” cannot be used to silence unpopular speech).
Kopczynski‘s second reason for doubting Harnishfeger‘s effectiveness was that her “posting and its content do not create a culture that reduces violent behavior within the ranks or emphasizes and encоurages help-seeking behaviors” and are “in direct contrast with the Indiana National Guard‘s Domestic Violence Prevention and Response Plan.” The district court did not address this ground, and the defendants do not attempt to defend it on appeal. Conversations neither promotes violence nor discourages victims of violence from seeking help.
In sum, the defendants’ side of the Pickering balance is empty. The connection between the stated grounds for Harnishfeger‘s termination and the evidence before us is so tenuous as to support a reasonable inference that the former were mere pretexts for the feelings of embarrassment and disgust that Conversations undoubtedly—and intentionally, Harnishfeger points out—arouses in its readers. But a public employer may not “use authority over employees to silence discourse, not because it hampers public functions but simply
2. Action Under Color of State Law
“No set formula exists” for determining whether a particular governmental action is taken under color of state or federal law; our inquiry “focuses on the nature of that action and functional capacity of the actor.” Knutson, 995 F.2d at 767, citing Lake Country Estates, Inc. v. Tahoe Reg‘l Planning Agency, 440 U.S. 391, 399–400 (1979). The question arises with respect to the National Guard because, as the Supreme Court has explained, its members occupy a unique position in our federal structure:
[In 1933, Congress] created the two overlapping but distinct organizations . . . —the National Guard of the various States and the National Guard of the United States. Since 1933 all persons who have enlisted in a State National Guard unit have simultaneously enlisted in the National Guard of the United States. In the latter capaсity they became a part of the Enlisted Reserve Corps of the Army, but unless and until ordered to active duty in the Army, they
retained their status as members of a separate State Guard unit.
Perpich v. U.S. Dep‘t of Defense, 496 U.S. 334, 345 (1990) (internal quotation marks omitted). Unless and until called into federal service, therefore, “[i]n each state the National Guard is a state agency, under state authority and control.” Knutson, 995 F.2d at 767.
In Knutson we considered whether, in light of its “hybrid nature,” the Wisconsin Air National Guard acted under color of state law for purposes of
Similarly here, the Indiana Army National Guard was not federalized at any time relevant to this case. The governor of Indiana is the commander in chief of Indiana‘s National Guard units.
The defense points out that Harnishfeger‘s VISTA position was federally funded and subject in part to federal guidelines. But both factors were present in Knutson as well, see id. at 767 (“the federal government provides salaries, benefits, and supplies to full-time Guard officers and technicians“), 768 (“Wisconsin adopts and [defendant] opts to utilize federal substantive and procedural rules“), and that did not “alter the state-law character” of the Wisconsin Air National Guard‘s actions. Id. at 768.
In demanding Harnishfeger‘s removal from her VISTA placement, Lieutenant Colonel Kopczynski was a Guard officer exercising her supervisory authority over the Guard‘s Family Program Office for the Guard‘s benefit and in furtherance of the Guard‘s mission. That was action under color of state law, so
3. Qualified Immunity
Defendants also sought summary judgment on the defense of qualified immunity, arguing that Kopczynski did not violate clearly established constitutional law by demanding
No prescience is demanded, however, of the public employer who retaliates against protected speech “where the speech caused no actual disruption of any kind for four months, and where the employer neither articulates a belief that the speech has the potential to be disruptive in the future, nor has evidence to support the reasonableness of such a belief.” Gustafson v. Jones, 290 F.3d 895, 913 (7th Cir. 2002) (rejecting defense of qualified immunity on appeal from verdict for plaintiffs). Substitute “three months” for “four months,” and the observation applies here.
First, under clearly established law in September 2016, Conversations was protected. It was speech neither at work nor about work; it was addressed to a general audience; and there was no sign that Harnishfeger deliberately linked its content or message to the Guard‘s mission, purpose, or image. City of San Diego v. Roe, 543 U.S. 77, 80–82 (2004); NTEU, 513 U.S. 454, 466 (1995); Eberhardt v. O‘Malley, 17 F.3d 1023, 1026–27 (7th Cir. 1994). Though we must take care not to define the right
Defendants argue that Roe and Craig v. Rich Township High School District 227, 736 F.3d 1110 (7th Cir. 2013), together suggest that sexually explicit speech “is generally not considered of public concern,” but those cases suggest no such thing. Roe made clear that the plaintiff‘s sexualized performances would have been protected under NTEU but for his deliberate linkage of them to his police work. See 543 U.S. at 81 (“Although Roe‘s activities took place outside the workplace . . . .“). And Craig lost at the Pickering balancing step of the analysis, not the threshold step of whether his speech addressed a matter of public concern under Connick. See Craig, 736 F.3d at 1113, 1115-18.
Second, clearly established law in September 2016 held that the public emрloyer‘s side of the Pickering balance must be supported with evidence of actual disruption, or at least the articulation of a reasonable belief in future disruption plus evidence of its reasonableness at the time. Gustafson, 290 F.3d at 913; see also Hulbert v. Wilhelm, 120 F.3d 648, 655 (7th Cir. 1997) (denying qualified immunity: “Connick reiterated Pickering‘s rule that the mere incantation of the phrase ‘internal harmony in the workplace’ is not enough to carry the day, and the Pierce County defendants appeared to have relied on nothing more substantial than that.“); Dahm v. Flynn, 60 F.3d 253, 258 (7th Cir. 1994) (reversing in part grant of qualified immunity defense: “Not only did Flynn fail to identify how Dahm‘s testimony impeded the efficient operations of the
The Pickering analysis here shows no actual disruption; no articulation of a belief in future disruption with respect to Kopczynski‘s appeal that Conversations does not “favorably represent” the Guard; and no rational connection between Kopczynski‘s appeal to the Guard‘s Domestic Violence Prevention and Response Plan and Conversations or Harnishfeger‘s VISTA placement. On this record, the explanations provided appear to be so flimsy as to support an inference that they were not objectively reasonable but reflected only disgust with Conversations and its author, whom the Guard, as Kopczynski emphasized, “likely would not have considered” for VISTA placement had it been aware of her “previous employment/work experience.” On this record, “the line between the permitted and the forbidden” was clearly “marked in advance.” Walsh v. Ward, 991 F.2d 1344, 1346 (7th Cir. 1993). Kopczynski has not shown that she stayed within that line and is entitled to summary judgment based on qualified immunity.
B. Claims Against the Federal Defendants
As for Harnishfeger‘s claims against Kubiszewski, Lopez, and the United States, we conclude she failed to show a triable issue on any federal defendant‘s personal participation in a constitutional violation and otherwise failed to show a triable issue on her APA claim. We therefore affirm the judgmеnt in the federal defendants’ favor.
1. First Amendment Claim
Causation, the third element of a public employee‘s First Amendment retaliation claim, is uncontested by the parties
“[T]o make out a prima facie case for retaliation at summary judgment,” a public employee must bring forward evidence sufficient to permit a reasonable finding that her protected speech “was at least a motivating factor” of the publiс employer‘s speech-deterring deprivation. Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012). “Causation is a subject on which philosophers speak more clearly than lawyers.” Greene v. Doruff, 660 F.3d 975, 978 (7th Cir. 2011). What the law calls a “motivating factor” in this context is a sufficient condition: the public employee at summary judgment must show that a reasonable jury could find her protected speech “was a sufficient condition of the harm” for which she seeks redress. Id. at 979.
If that showing is made, “the burden shifts to the employer to rebut the causal inference raised by [the employee‘s] evidence,” Kidwell, 679 F.3d at 965, by showing that her protected speech “though a sufficient condition was not a necessary condition” of the employer‘s adverse action; “the harm . . . would have occurred anyway.” Greene, 660 F.3d at 979. If
Harnishfeger failed to carry her initial burden of offering evidence of causation as to the federal emрloyees, Kubiszewski and Lopez. Kubiszewski was a State Program Officer for CNCS and Harnishfeger‘s point of contact with the VISTA program. A week or so after Lopez‘s September 29, 2016 letter to Harnishfeger informing her CNCS had placed her on administrative leave, Kubiszewski informed Harnishfeger that if she deactivated (more exactly, “took specific steps with respect to“) her Facebook account, she would be permitted to seek another sponsoring organization. Harnishfeger then deactivated her Facebook account. On October 6, Kubiszewski sent Harnishfeger a list of approved VISTA sponsors in Indiana and told her she had nineteen days, until October 25, to find a new sponsor.
Lopez was the Indiana State Program Director for CNCS. On September 29, 2016 Lopez told Harnishfeger by letter that she had been removed from her VISTA placement and put on “Administrative Hold status for a period not to exceed 30 days,” effective immediately. When Harnishfeger failed to securе a reassignment with another sponsoring organization by October 25, Lopez informed her by a second letter that her VISTA membership had been finally terminated “for lack of suitable assignment.”
A governmental actor may be held personally liable only for constitutional violations in which she personally participated. Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009) (Bivens); Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (
The exception for Lopez arises from the regulations governing VISTA participation. Those regulations provide in relevant part that “CNCS has the sole authority to remove a VISTA from a project where she has been assigned.”
As long as the Guard dug in its heels, as it did, it had the power to insist that Harnishfeger‘s term with it was over. Still, assuming without deciding that Lopez‘s failure to exercise his discretion to try to persuade the Guard to change its mind might have been actionable, Harnishfeger has failed to show that a jury could reasonably conclude Conversations explains Lopez‘s failure. There is no evidence that Lopez knew, even in a general way, what the content of Conversations was. Neither is there any evidence of Lopez‘s reaction to Conversations specifically or to any speech, offensive or not, by VISTA members generally. On this record, there is simply no indication that the content of Conversations influenced Lopez‘s decision
As for Harnishfeger‘s removal by CNCS from the VISTA program entirely, the constitutional violation at issue is her removal from her VISTA placement with the Guard. The Pickering balance makes no allowance here for the interests of CNCS regarding termination once the Guard ended Harnishfeger‘s VISTA term with it. In any event, as with Lopez‘s involvement in Harnishfeger‘s removal from her placement with the Guard, there is no non-speculative inference that Conversations explains Kubiszewski and Lopez‘s actions in removing Harnishfeger from the VISTA program. Again, there is no evidence Lopez had any material understanding of Conversations to begin with. More fundamentally, if one imagines Conversations being brought to the attention of Kubiszewski and Lopez directly, without mediation by Kopczynski‘s removal request, the record contains no reason to believe that either federal officer‘s reaction would have been adverse to its author—still less, adverse to such a degree that either would have been moved to seek Harnishfeger‘s removal from VISTA. Kubiszewski and Lopez are entitled to judgment as a matter of law.
2. The APA Claim
Under the federal Administrative Procedure Act, the target of an adverse final agency action may seek to have the action held unlawful and set aside by a reviewing court if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “contrary to constitutional right, power, privilege, or immunity.”
We agree that no federal defendant—Kubiszewski, Lopez, or the United States, which acted through them in this case—violated the Constitution. We have already explained why the record does not permit a reasonable inference that Kubiszewski or Lopez abridged Harnishfeger‘s free-speech rights: they did not personally participate in Lieutenant Colonel Kopczynski‘s decision to demand Harnishfeger‘s removal from her placement with the Guard; and Harnishfeger has not shown evidence that Conversations suffices to explain their decision to remove her from the VISTA program entirely.
For non-constitutional review of agency action, “we rely on the same administrative record that was before the district court and render an independent judgment as to whether the agency acted unreasonably.” Mittelstadt v. Perdue, 913 F.3d 626, 633 (7th Cir. 2019), quoting Stable Invs. P‘ship v. Vilsack, 775 F.3d 910, 915 (7th Cir. 2015). Our review is “deferential.” Id., quoting St. Clair v. Sec‘y of Navy, 155 F.3d 848, 851 (7th Cir. 1998). Harnishfeger does not deny that she failed to secure reassignment after her removal from the Guard and that this failure motivated her “non-cause” termination from the VISTA program. She complains, however, of “numerous uniquely onerous conditions” on which her continued VISTA service was made to depend: the unsuitability or undesirability of the proffered alternative placements; the “cold calling” process to which she was relegated; and the requirement that any future sponsor speak with her Guаrd supervisors.
Undoubtedly, CNCS‘s course of proceeding put Harnishfeger in a less than ideal position to continue her VISTA
The judgment in favor of all defendants but Kopczynski is AFFIRMED. The judgment in favor of Kopczynski is REVERSED and the case REMANDED for further proceedings consistent with this opinion.