7th Circuit Affirms Dismissal of First Amendment Retaliation From Sheriff Candidate
The U.S. 7th Circuit Court of Appeals recently considered (and rejected) a “campaign of harassment” theory from a sheriff candidate. This decision demonstrates that an employer’s actions, while individually not enough to prove that an employer’s actions were motivated by the employee’s speech, collectively were enough to demonstrate a successful claim for retaliation.
Kevin Deeren was a Trempealeau County Deputy Sheriff who announced candidacy for Trempealeau County Sherriff in late 2017. Deeren had applied for employment with the Trempealeau County Sheriff’s Department in December 2014. During his interview, the department asked Deeren to disclose whether he had received any citations or had any prior contact with law enforcement, and he answered no. Deeren was hired in May 2015.
Deeren performed well initially and was promoted. He was demoted, however, in late November 2017 after he failed to enforce a no-contact order that he knew was being violated. Then-Sheriff Richard Anderson, advised Deeren of his demotion during a meeting, describing that his failure to enforce the no-contact order demonstrated lack of judgment and lack of leadership.
During the meeting, Deeren accused Anderson of demoting him because he was running for sheriff. At that time, Anderson wasn’t aware that Deeren was running for the position. Shortly thereafter, Anderson criticized him in two private conversations with individuals unaffiliated with the department. Simultaneously, the department increased its patrols around Deeren’s home due to complaints about traffic violations and drug activity.
Then, in early 2018, the department learned that Deeren had been arrested and charged with criminal sexual assault in South Carolina in 2007. The charges had been subsequently dropped and his record was expunged. It was unclear to the department at the time of their discovery how the charges had been resolved, however. It was concerned that Deeren might be ineligible to carry a gun or serve as a law enforcement officer had the charges resulted in a felony conviction.
After learning of his previous arrest, the department hired a private investigator to probe the details of Deeren’s arrest and informed Trempealeau County’s attorney of the charges. The private investigator interviewed Deeren, who refused to answer any questions about his arrest.
Anderson decided that Deeren should be fired for dishonesty during the hiring process and dishonesty and insubordination during the investigation. The personnel committee held a hearing and rejected Anderson’s determination. Deeren then resigned from the Sherriff’s Department and began campaigning for sheriff on a full-time basis. Deeren lost the election to a life-long Trempealeau County resident and 25-year department employee.
Deeren then filed a federal lawsuit against Trempealeau County and several other individuals. He claimed that the defendants retaliated against him in violation of his First Amendment rights. The District Court for the Western District of Wisconsin granted summary judgment in favor of the defendants, dismissing all of Deeren’s claims. He appealed to the 7th Circuit Court of Appeals.
7th Circuit decision
The 7th Circuit began its decision by setting forth the elements of a prima facie case of First Amendment retaliation, which, for this case, include:
- Deeren engaged in constitutionally protected speech;
- He suffered a deprivation likely to deter him from exercising his First Amendment rights; and
- His speech was a motivating factor in his employer’s adverse action against him.
The 7th Circuit ruled that Deeren failed to offer enough evidence to support a prima facie case of First Amendment retaliation. First, the 7th Circuit noted that negative comments made by the department about Deeren wouldn’t deter an ordinary person from engaging in protected speech.
Specifically, the 7th Circuit stated that when an alleged retaliatory act is an employer’s speech, an employee must show that the speech rose to the level of threat, coercion, intimidation, or profound humiliation. The 7th Circuit concluded that any negative comments in this case were simply the kind of critiques that came with running for public office.
The 7th Circuit also rejected Deeren’s claim that increased patrols were meant to intimidate him because there was no evidence to suggest that the increased patrols had anything to do with his campaign, aside from his own subjective belief.
Next, the 7th Circuit concluded that no reasonable jury could conclude that the recommendation to fire Deeren was an act of retaliation because of the close timing between his campaign and the recommendation. Moreover, the department had a legitimate explanation for their recommendation for termination.
Finally, Deeren argued that all the department’s acts, when considered together, amounted to a “campaign of retaliatory harassment.” The 7th Circuit agreed that a campaign of petty harassment with numerous minor forms of retaliation could violate the First Amendment, but ultimately rejected Deeren’s argument. It concluded, as described above, he failed to offer any evidence that the department’s alleged actions were motivated by his campaign. The 7th Circuit described that Deeren couldn’t aggregate nonretaliatory efforts taken over the span of many months to save his retaliation claims.
An employee may successfully demonstrate retaliation for their exercise of First Amendment rights by showing that multiple retaliatory actions amounted to a deprivation sufficient for a successful retaliation claim. The employee must still be able to demonstrate that each action was motivated by their exercise of First Amendment rights, however.
While it is an employee’s burden to demonstrate that actions are motivated by their exercise of First Amendment rights, it is important for an employer to have a legitimate, nondiscriminatory reason for any action that an employee may later claim was motivated by their speech.
This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.