SCOTT A. MILLIMAN, SR., Plaintiff-Appellant, v. COUNTY OF MCHENRY, et al., Defendants-Appellees.
No. 17-2687
United States Court of Appeals For the Seventh Circuit
June 19, 2018
Before FLAUM, MANION, and HAMILTON, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:11-cv-50361 — Frederick J. Kapala, Judge. ARGUED MAY 31, 2018 — DECIDED JUNE 19, 2018
I. Background
Milliman became a McHenry County Sheriff‘s Deputy on March 2, 1998. In December 2001, Milliman was diagnosed with brain cancer. On July 21, 2002, Milliman underwent brain surgery and went on extended medical leave to recover. Before returning to work, Dr. Christopher Grote evaluated Milliman and determined that he was fit for duty. Milliman returned to MCSD on November 17, 2003.
A. Milliman‘s 2010 Deposition
In November 2010, former MCSD Sheriff‘s Deputy Zane Seipler brought a case against MCSD. The details of Seipler‘s suit are not relevant here, other than the fact that Milliman gave a deposition in the course of the litigation, during which
First, Milliman maintained that Nygren participated in bribery schemes. For example, he testified that Rivera told him about a scheme in which Nygren and Rivera fixed non-valid-driver‘s-license tickets for a $1,000 fee. Additionally, Milliman claimed Rivera told him that Nygren received a $10,000 bribe to help an individual reinstate a liquor license, and that same individual later contributed more than $5,000 cash to Nygren‘s sheriff campaign.
Next, Milliman testified that Rivera and Nygren tried to recruit him into a Small Business Administration (“SBA“) loan fraud scheme in 2001 or 2002. According to Milliman, Rivera told him they sent undocumented individuals to a woman named “Maria” at Elgin State Bank to fill out an application for an SBA loan. Nygren and Rivera would give $10,000 of the proceeds to the undocumented individual and split the remaining proceeds between them. The borrower would then default on the loan and return to Mexico. Milliman testified that Nygren and Rivera later moved the scheme to Home State Bank.
Third, Milliman testified that Rivera and Nygren tried to recruit him to participate in a scheme to traffic undocumented immigrants into McHenry County. According to Milliman, Rivera and Nygren charged $1,100 per person to bring individuals from Zacatecas, Mexico to an apartment complex in Woodstock, Illinois.
Finally, Milliman testified that Nygren solicited him to kill two individuals. Milliman claimed that, in 1999, Nygren asked him to push retired McHenry County Circuit Judge
Milliman testified that in 2007, he called Patrick Fitzgerald, the United States Attorney for the Northern District of Illinois, and reported Nygren‘s criminal conduct. According to Milliman, he then met with several FBI agents.
B. MCSD‘s Investigation
Nygren and several of his subordinates received copies of Milliman‘s deposition transcript from the Seipler case. Undersheriff Andrew Zinke and Commander John Miller investigated the matter. After reading Milliman‘s deposition, Miller determined that, due to the bizarre nature of the allegations, Milliman might have been suffering from “psychological difficulties.” Miller drafted a memorandum recommending that Milliman be placed on administrative leave and sent for a fitness-for-duty examination and that an independent agency look into Milliman‘s allegations. Miller also noted that he would look into the FBI‘s response to Milliman‘s allegations. Although Miller recommended handling the matter as a medical issue instead of a disciplinary one, the investigation file was titled “Termination Review.”
On December 23, 2010, Milliman was placed on administrative leave and ordered to attend a fitness-for-duty psychological examination with Dr. Robert Meyers. Milliman objected to Dr. Meyers on the ground that he had a personal re-
Meanwhile, Zinke sent a letter to the FBI requesting information about its investigation into Milliman‘s allegations. In response, the FBI stated that it could “confirm that Deputy Milliman has approached our office in the past and provided information in confidence that he felt may be of interest to the FBI.” It further stated that “[w]here appropriate, investigation was conducted to determine the validity of the allegations,” but that “none of the information provided by Deputy Milliman was determined to have prosecutive merit.”
C. Dr. Grote‘s Fitness-for-Duty Examination
On February 12, 2011, Dr. Grote conducted Milliman‘s fitness-for-duty examination. In the narrative portion of his report, Dr. Grote wrote that Milliman was:
Extremely disorganized and “derailed” in interview. He was over-inclusive, tangential and very difficult to follow at certain points in the interview, particularly when he was describing his allegations about corruption in McHenry County. It typically would take over 5 minutes for him to describe a specific allegation,
which I would later summarize for him in 30 seconds or less to see if this is what he was alleging.
Dr. Grote‘s report further stated that Milliman “would typically veer from one story to another, or make an unclear allegation about one thing before going on to another unclear allegation.” Accordingly, Dr. Grote had to provide “structure,” rephrasing and summarizing Milliman‘s statements, “to understand what [Milliman] was alleging.” Dr. Grote wrote that, “[a]t other times, there seemed to be a lack of logic, or even possibly a hypomanic element to some of [Milliman‘s] claims.”
For example, Milliman told Dr. Grote that the FBI agents got angry with him because he followed them while they followed another subject. According to Dr. Grote, Milliman‘s explanation of that incident was “incomprehensible.” Milliman also told Dr. Grote that the purpose of MCSD‘s officer exchange program was to “take over” the town of Zacatecas, Mexico. Moreover, Milliman claimed that Chipotle took his idea in creating its restaurant chain. In addition to being difficult to understand, Dr. Grote found some of Milliman‘s stories “hard to believe.” Nevertheless, it appeared to Dr. Grote that “[Milliman] believed what he said.”
According to Dr. Grote‘s report, Milliman also shared several personal facts about himself. During the interview, Milliman told Dr. Grote that following his brain surgery in 2002, he was no longer able to remember anything from his birth in 1961 until 1996, including his schooling, marriage, or children. The only thing he could remember was the 1985 Super Bowl Champion Chicago Bears. Milliman had not mentioned this memory loss during his 2003 examination. A week after the interview, Milliman called Dr. Grote and contradicted his
Milliman also completed several psychological tests and scored mostly in normal ranges, performing about the same or better than he did in 2003, with a few key exceptions. Specifically, Dr. Grote noted that Milliman was “now doing better on nonverbal ability and nonverbal learning and memory,” and that “[o]ther cognitive test scores are similar to before.” However, Milliman‘s verbal skills were in the “borderline impaired range” and “[h]is lack of ‘general knowledge’ ... was rather striking.” For instance, “he answered that the sun rose in the west, that Brazil was on the continent of Spain, etc.” In addition, Milliman scored poorly on the Rey Complex Figure test, which is “consistent” with frontal lobe dysfunction.
Dr. Grote also discussed Milliman‘s results on the Minnesota Multiphasic Personality Inventory-2 (“MMPI-2“). Milliman‘s results were consistent with “significant feelings and symptoms of paranoia, feelings of being persecuted, disorganized or dysfunctional cognition and emotions, and difficulty working with figures of authority.” Dr. Grote explained that “[i]n 2003, he had shown a significant elevation on only one of the critical scales (scale 4); thus his current MMPI-2 profile shows more evidence of psychiatric problems and symptoms than in 2003.” In comparing Milliman‘s 2003 and 2011 results, Dr. Grote also noted that “the 2003 evaluation did not indicate the disorganization now seen in conversation
At his deposition in this case, Dr. Grote testified that, due to the prospect of Milliman losing his job, his MMPI-2 score could have reflected his present mental state rather than a longstanding permanent trait. However, Dr. Grote also clarified that Milliman‘s feelings on the day in question could not completely explain his MMPI-2 results.
Dr. Grote also interviewed several “collaterals” in Milliman‘s life, including Miller and Nygren. Miller told Dr. Grote that he was unaware of any basis for Milliman‘s allegations. He also informed Dr. Grote that the retirement age for deputies was fifty (Milliman‘s age at the time) and that Milliman had disability options. Miller said he sometimes questioned whether Milliman was being honest, citing as an example Milliman‘s claims in an unrelated class action lawsuit in which Milliman was a plaintiff.
In addition, Miller forwarded Dr. Grote a report from the Algonquin Police Department detailing an incident involving Milliman while he was on administrative leave. According to the report, Milliman and an individual named Mrs. Prate were studying for a real estate exam at Mrs. Prate‘s house. Mrs. Prate‘s husband entered the house and “overheard his wife and Mr. Milliman discussing their affair and their plan to have Mr. Prate killed and how this would affect the titling of the Prate home.” Miller did not send Dr. Grote the supplemental police report, which explained that, in fact, Milliman was just discussing a hypothetical question in his real estate textbook about ownership of property after sudden death. Miller also sent Dr. Grote a memorandum in which he wrote that, to his knowledge, the FBI might have met with Milliman
Meanwhile, Nygren told Dr. Grote that “Milliman made false claims that had no basis, and as such that his office could initiate termination proceedings if no extenuating circumstances (such as a disabling condition) could explain the making of these claims.” Nygren knew that Milliman had previously been treated for a brain tumor and wanted to know if his allegations were the result of a medical or psychological condition.
When Dr. Grote asked Milliman for another deputy who could give Milliman‘s side of the story, Milliman told him to talk to Deputy Bodden. Bodden told Dr. Grote that he “was not aware of any particular problems with Mr. Milliman‘s performance as a deputy, but did mention that his memory could be ‘goofy’ at time[s].” For example, Bodden explained that Milliman could remember the make and model of a car involved in a crime from five years ago, but could not remember if he was supposed to work the next day.
Dr. Grote also spoke to Milliman‘s wife. She said she did not witness any change in Milliman‘s behavior after his surgery. She also said that, until the previous year, she had not been aware of Milliman‘s association with the FBI. When asked about her husband‘s memory loss, she said that after his brain surgery he lost his memory of the 1980s.
Dr. Grote acknowledged that “[t]he final interpretation of Mr. Milliman‘s behavior and allegations could change somewhat in the future, depending on what, if anything, might later be revealed from the FBI files, other ‘undercover’ operations alleged to be ongoing, or new/conclusive information about what really happened at the Prate residence.” However, Dr. Grote also wrote that “new or different information that
D. Milliman‘s Termination
After receiving Dr. Grote‘s report, Nygren and the MCSD encouraged Milliman to retire with disability benefits in lieu of termination. However, Milliman did not submit the required disability paperwork. As a result, Milliman was terminated for: (1) making false allegations against Nygren in the Seipler deposition; (2) violating multiple MCSD General Orders; and (3) being unfit to perform his duties as a deputy.
E. The Present Litigation
On December 9, 2011, Milliman filed a
In response to a subpoena, the FBI produced 187 pages of heavily redacted documents. Those documents show that Milliman brought all of the complaints mentioned in his 2010 deposition testimony, and many more, to the FBI‘s attention. In 2006, Milliman began working as a cooperating witness for the FBI. He wore a recording device and attempted to get Rivera and Nygren to make incriminating statements. However, Milliman was unable to elicit any such statements, and he stopped working with the FBI in 2009. The FBI concluded that all of his claims lacked prosecutive merit.
Milliman similarly pointed to a 2010 agreement between Home State Bank and the Comptroller of the Currency to support an inference of fraudulent SBA loan activity at that bank. However, the CEO of Home State Bank, Steve Slack, testified that he had no knowledge of an SBA loan fraud scheme and that the bank did not possess documents that would reflect such a scheme. Rather, Slack testified that the agreement between Home State Bank and the Comptroller was the result of the 2008 financial crisis and addressed all aspects of their banking practices—not SBA loans in particular. Nevertheless, Slack agreed that it would be possible for individuals to defraud the bank by procuring SBA loans.
Rivera testified that he knew an individual named Maria Villareal who had worked at both banks. Rivera further testified that he had personally received loans from Home State Bank in excess of the value of his real estate holdings. Based upon Rivera‘s personal loan history, Milliman testified that one could infer fraudulent loan activity. However, Milliman
Next, to support his allegations regarding the ticket-fixing scheme, Milliman produced McHenry County Court records showing forty-four examples of criminal charges being dismissed or significantly reduced for individuals who made campaign contributions to Nygren. However, there are often long time gaps between the campaign contribution and the dropping of charges. Milliman admitted that he did not speak with any individual on the list, nor did he speak with any prosecutor regarding the decisions behind the dismissed tickets. Likewise, with respect to the $10,000 bribe to reinstate a liquor license, Milliman testified that he did not see Rivera give Nygren $10,000, did not speak with Nygren about it, and knew of no witnesses to the scheme. Milliman further admitted that it is possible it never happened.
Next, Milliman retracted his claim that Nygren solicited him to murder Judge Floeter. However, he maintained that Nygren asked him to hang David Bachmann. Milliman testified that he immediately reported this solicitation to the FBI and was given a wired key fob to bring with him the next time he met with Nygren. However, Milliman testified that Nygren did not ask him to murder Bachmann the next time they met because he “was probably tipped off.”
As proof of the human trafficking scheme, Milliman testified that in 2007 he met a truck driver from Zacatecas, Mexico who said Jose Rivera brought him into the country. Milliman admitted that the man did not tell him that he gave Rivera any money, and called it a “guess” that this man was part of Rivera‘s illegal trafficking scheme. Milliman also testified that the manager of Stone Lake Apartment Complex told him that
F. Dr. Dawkins‘s Expert Report
Milliman retained a clinical psychologist, Marva P. Dawkins, as an expert to review Dr. Grote‘s report. Dr. Dawkins has conducted or supervised more than 3,000 fitness-for-duty examinations in her career. To prepare her expert report, Dr. Dawkins reviewed Dr. Grote‘s documents and held a two-hour interview with Milliman.
Dr. Dawkins concluded that Dr. Grote placed too much weight on the corruption allegations and the department‘s opinions of Milliman. According to Dr. Dawkins, Dr. Grote should have relied more on the objective test results, which she interpreted to be similar to the results from the 2003 test. Although Dr. Dawkins acknowledged that the MMPI-2 results showed abnormalities compared to 2003, she believed that the results were more likely situational than due to psychiatric impairment. With respect to Milliman‘s disorganized and derailed manner in conversation, Dr. Dawkins opined that this was not corroborated by the test data or collateral sources. Dr. Dawkins further believed that Dr. Grote failed to explain how and to what extent Milliman‘s amnesia would interfere with his job duties. Nevertheless, Dr. Dawkins did not state that Dr. Grote‘s ultimate conclusion was incorrect or that Milliman was, in fact, fit for duty.
G. The District Court‘s Summary Judgment Order
On August 7, 2017, the district court granted summary judgment for defendants on all claims, ruling that Dr. Grote‘s
II. Discussion
We review the district court‘s grant of summary judgment de novo. Swetlik v. Crawford, 738 F.3d 818, 826 (7th Cir. 2013). Summary judgment is appropriate if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.
A. First Amendment Retaliation Claim3
“The First Amendment, incorporated against the states through the Fourteenth Amendment, shields government employees from retaliation for engaging in protected speech.” Diadenko v. Folino, 741 F.3d 751, 755 (7th Cir. 2013). To prevail on a First Amendment retaliation claim, “a public employee must show that: (1) she engaged in constitutionally protected speech; (2) she suffered a deprivation because of her employer‘s action; and (3) her protected speech was a but-for cause of the employer‘s action.” Id.
With respect to the third factor, a plaintiff must “show that a violation of his First Amendment rights was a motivating factor of the harm he‘s complaining of.” Thayer v. Chiczewski, 705 F.3d 237, 251 (7th Cir. 2012) (internal quotation marks
Ordinarily, “the persuasiveness of an employer‘s non-retaliatory explanation ... is ‘for the finder of fact to assess.‘” Massey v. Johnson, 457 F.3d 711, 719 (7th Cir. 2006) (quoting Venters v. City of Delphi, 123 F.3d 956, 973 (7th Cir. 1997)). However, “summary judgment should be granted when, in light of the defendant‘s unrebutted evidence, ‘the court can say without reservation that a reasonable finder of fact would be compelled to credit the employer‘s case on this point.‘” Id. (quoting Venters, 123 F.3d at 973). “We have repeatedly emphasized that when ‘assessing a plaintiff‘s claim that an employer‘s explanation is pretextual, we do not ... second-guess[] an employer‘s facially legitimate business decisions.‘” Lord v. High Voltage Software, Inc., 839 F.3d 556, 564 (7th Cir. 2016) (alterations in original) (quoting Argyropoulos v. City of Alton, 539 F.3d 724, 736 (7th Cir. 2008)). “An employer‘s reasons for firing an employee can be ‘foolish or trivial or even baseless,’ as long as they are ‘honestly believed.‘” Id. (quoting Culver v. Gorman & Co., 416 F.3d 540, 547 (7th Cir. 2005)).
To meet this burden, Milliman claims that a jury could reasonably find that Dr. Grote‘s conclusions were not independent. This is so, Milliman argues, because defendants deliberately gave Dr. Grote false, misleading, and irrelevant information in an attempt to influence his decision in various ways. Specifically, Milliman points to the following statements and communications:
- Miller told Dr. Grote he had concerns about Milliman‘s honesty arising out of an unrelated class action lawsuit in which Milliman was a plaintiff;
- Miller sent Dr. Grote a memorandum in which he wrote that, to his knowledge, the FBI had not conducted an investigation into Milliman‘s claims;
- Miller told Dr. Grote that Milliman was eligible for retirement and could go on disability;
- Miller forwarded Dr. Grote an incomplete set of police reports indicating that Milliman was overheard planning to kill Mr. Prate, but did not forward a
supplemental report which showed that, in fact, Milliman was just discussing a hypothetical question in his real estate textbook; and - Nygren told Dr. Grote that Milliman‘s claims were false, and that he could therefore be terminated unless extenuating circumstances, such as a disabling condition, could explain his allegations.
Milliman argues that these communications were intended to attack Milliman‘s credibility and persuade Dr. Grote that Milliman would be better off if he was found unfit.4
Contrary to plaintiff‘s assertion, these statements do not undermine the independence of Dr. Grote‘s conclusion that Milliman was unfit for duty. True, Dr. Grote cited Milliman‘s “bad judgment” with respect to the uncorroborated conspiracy allegations and the Prate incident as one of the reasons for his fitness determination. Dr. Grote also acknowledged that “[t]he final interpretation of Mr. Milliman‘s behavior and allegations could change somewhat in the future, depending on what, if anything, might later be revealed from the FBI files, other ‘undercover’ operations alleged to be ongoing, or new/conclusive information about what really happened at the Prate residence.” Critically, however, Dr. Grote stated in his report that “new or different information that might come
Nor did Miller and Nygren‘s statements about Milliman‘s potential termination, retirement eligibility, and disability benefits influence Dr. Grote‘s fitness finding. If anything, these statements indicate that defendants believed they could terminate plaintiff‘s employment regardless of Dr. Grote‘s conclusion. If so, defendants would not need to pressure Dr. Grote to manufacture a pretextual reason to fire Milliman. Furthermore, although Dr. Grote referenced these statements when summarizing his interviews with Nygren and Miller, he never relied on them as a reason for finding Milliman unfit. Given the numerous other reasons cited by Dr. Grote, a jury
Next, Milliman argues that a jury could reasonably infer Dr. Grote‘s report is pretextual because the results of the psychological testing were nearly identical to the results in 2003 when Milliman was found fit for duty. Not so. Although the 2003 and 2011 results are largely the same, Dr. Grote found that there was a meaningful difference in Milliman‘s scores on two sub-tests of the MMPI-2. Specifically, Dr. Grote opined that Milliman‘s results on those sub-tests showed “feelings of paranoia and dysfunctional thoughts and emotions, and lack of insight.”
Milliman asserts that his MMPI-2 results did not indicate a permanent psychological trait, but simply reflected his mental state on the day in question. To support that assertion, he points to Dr. Grote‘s testimony that Milliman‘s MMPI-2 scores might have been partially explained by the threat of being terminated. However, Dr. Grote also stated that this could not completely explain Milliman‘s test results. In other words, the test results reflected, at least to some degree, an underlying psychological condition.
Moreover, even if the MMPI-2 results were driven in part by a temporary mental state, there were numerous other indicators of frontal lobe dysfunction. Therefore, any potential misreading of the MMPI-2 does not undermine Dr. Grote‘s overarching conclusion that Milliman has “cognitive and psychological problems that are consistent with the effects of his having had a right frontal lobe (insula cortex) brain tumor along with chemotherapy and radiation.” More importantly, it does not weaken the defendants’ reasonable reliance on Dr.
In addition, Milliman argues that a jury could reasonably conclude that Dr. Grote‘s conclusion is pretextual based upon Dr. Dawkins‘s expert report. However, while Dr. Dawkins critiqued Dr. Grote‘s methodology—namely, his reliance on outside information instead of objective findings—she does not dispute Dr. Grote‘s ultimate conclusion. In other words, despite reviewing all of the same information and documents reviewed by Dr. Grote, Dr. Dawkins does not opine that Milliman was in fact fit for duty.
Regardless, Dr. Dawkins‘s criticisms were not available to defendants when they decided to terminate Milliman, and thus do not show that defendants’ reliance on Dr. Grote‘s report was disingenuous. “Pretext involves more than just faulty reasoning or mistaken judgment on the part of the employer; it is [a] lie, specifically a phony reason for some action.” Lord, 839 F.3d at 564 (alteration in original) (internal quotation marks omitted) (quoting Argyropoulos, 539 F.3d at 736). Dr. Dawkins‘s criticisms may show that Dr. Grote‘s report was a “foolish or trivial or even baseless” ground upon which to terminate plaintiff. Id. (quoting Culver, 416 F.3d at 547). However, that does not challenge defendants’ assertion that, based upon Dr. Grote‘s report, they honestly believed
Finally, Milliman argues that a jury could question whether Milliman‘s fitness examination was ordered in good faith because he received a “standard” rating in his last annual performance review. However, we recently cited “many instances of public safety agencies requiring psychological evaluations of their employees.” Freelain v. Vill. of Oak Park, 888 F.3d 895, 903 (7th Cir. 2018). In particular, we stressed the importance of such precautionary measures in the law enforcement context due to “the risks posed by an officer who is not well enough to work.” Id. Here, plaintiff‘s bizarre allegations of widespread corruption, human trafficking, and solicitation of murder by the Sheriff were certainly enough to put defendants on notice of a potential mental health issue. Thus, defendants properly referred Milliman for a psychological evaluation.6
In sum, Milliman has not produced evidence from which a jury could reasonably conclude that defendants’ proffered reason for his termination—Dr. Grote‘s finding that he was unfit for duty—was pretextual. Having failed to do so, there is no genuine dispute of material fact on this issue for trial. Because Milliman would have been fired based on his fitness-for-duty examination even absent the protected speech, he cannot establish the requisite “causal connection between unconstitutional motive and resulting harm.” Thayer, 705 F.3d at 252 (quoting Hartman v. Moore, 547 U.S. 250, 260 (2006)). Therefore, his First Amendment claims must fail.
B. Derivative Claims
Milliman‘s state law conspiracy claim and Monell claim are derivative of his First Amendment claims. Because his First Amendment claims fail, defendants are also entitled to summary judgment on his derivative claims.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.