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Seventh Circuit Explains the Burden of Proof Applied to Retaliation Claims

In Kidwell v. Eisenhauer, the plaintiff police officer sued the Mayor of Danville, Illinois, along with the Director of Public Safety and two Deputy Directors. The officer pursued his First Amendment retaliation claim under 42 U.S.C. sec. 1983, and alleged that the defendants responded unlawfully by disciplining him and subjecting him to termination charges because of his public criticisms of various departmental officials at police officer union meetings. The case narrative contains many vivid facts, including the claims by a parolee informant of the officer that he had an explosive, which proved to be a piece of firework, and the officer transporting the same informant across state lines.

The cited opinion, however, proves significant on legal grounds. In the Seventh Circuit, the elements of a First Amendment retaliation claim are: 1. the plaintiff's speech must qualify for constitutional protection; 2. the plaintiff must have suffered a deprivation likely to deter free speech; and 3. plaintiff's speech must at least constitute a motivating factor in the actions taken by the employer. Through their summary judgment motion, the employer only challenged the sufficiency of officer's evidence on the third prong, and contended that officer lacked evidence that his speech was a motivating factor behind the adverse employment actions the employer took against the officer.

Circuit Judge Manion of the Seventh Circuit noted that when the trial court granted summary judgment, it was unclear what standard courts would apply to evaluate whether there was a material issue of fact under the third prong of First Amendment retaliation claims. The Court noted that under Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977), a plaintiff could show a prima facie case of retaliation by submitting enough evidence to permit an inference that his speech qualified as a motivating factor in the employer's adverse decision. When interpreting the ADEA in 2009, however, the Supreme Court explained in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), that "unless a statute provides otherwise, demonstrating but-for causation is a part of the plaintiff's burden in all suits under federal law." The combination of the two cases produced a noted "tension" in Seventh Circuit case law with several opinions after Gross indicating that the but-for standard had replaced the motivating-factor standard. Here, the district court decided to apply the but-for causation test before the Seventh Circuit held that it would also apply the but-for standard when ruling on motions for summary judgment.

Now, the Seventh Circuit gave further directions to litigants and trial courts dealing with retaliation claims. The burden of proof on summary judgment shifts. First, a plaintiff needs to provide enough evidence to demonstrate that his constitutionally protected speech formed at least a motivating factor or "sufficient condition" for the retaliatory employment actions taken against him by the defendants. The burden then shifts to a defendant employer to rebut the causal inference created by the plaintiff's evidence. If the employer falters and falls short in contesting such evidence, then plaintiff has enough evidence to proceed to trial and succeed on his claim if his evidence remains insufficiently challenged.

Even though the Court cleared the thickets here for the officer to potentially emerge with his claim unscathed by summary judgment, the officer's action still failed. The officer completely relied on the circumstantial evidence of the alleged suspicious timing of the retaliatory employment actions taken against him as revealing the unlawful retaliatory motive of the employer. Before discussing time lines, the Court stressed that evidence of alleged suspicious timing, by itself, will rarely create a triable issue of fact. Moreover, governing case law mandates that suspiciously timed events must occur soon after the claimed protected activity. Where there is no other evidence of causation, the court will typically not permit an inference to be drawn from an event that occurs more than a few days between the protected activity and the adverse employment action. 

The officer had two problems that sunk his case, and which led to the Seventh Circuit affirming the summary judgment entered against him. First, while there were several alleged incidents, none of them happened shortly after an occasion of protected speech. Second, the temporal gaps were filled with more than a few instances of the officer's own negative work behavior which the Court characterized as "significant intervening events[.]" As a result, the officer's own negative employment actions separated his speech from any adverse employment actions taken against him. Therefore, the temporal gaps between his assumed protected speech and the adverse employment actions taken against him required finding that the officer had failed to show that his speech was at least a motivating factor for the adverse employment actions taken against him by the employer.

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