Mills, Brenda v. City of Evansville ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3207
BRENDA MILLS,
Plaintiff-Appellant,
v.
CITY OF EVANSVILLE, INDIANA, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 3:03-cv-00183-JDT-WGH—John Daniel Tinder, Judge.
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ARGUED APRIL 3, 2006—DECIDED JUNE 20, 2006
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Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit
Judges.
EASTERBROOK, Circuit Judge. “[W]hen public employees
make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amend-
ment purposes, and the Constitution does not insulate their
communications from employer discipline.” Garcetti v.
Ceballos, No. 04-473 (U.S. May 30, 2006), slip op. 9. That
principle resolves this appeal.
Brenda Mills was a sergeant of the Evansville, Indiana,
police with responsibilities that included supervising “crime
prevention officers” (CPOs) during the first shift in the
City’s west sector. According to Mills, “CPOs are part of the
2 No. 05-3207
patrol division and are assigned throughout the city to, in
part, interact with neighborhood associations in an effort to
reduce the incidence of crime, foster good community
relations and deal with quality of life issues.”
Chief David Gulledge decided to move some officers from
CPO duties to active patrol; the plan reduced by one the
number of CPOs under Mills’s supervision. In January 2002
Mills attended a meeting on departmental premises at
which Chief Gulledge described this plan (not yet imple-
mented) and other proposals to cope with a manpower
shortage. After the meeting Mills and other officers,
including Chief Gulledge, Deputy Chief Reed and Assistant
Chief Burnsworth (but not Mills’s immediate supervisor),
discussed the subject in the building’s lobby. Mills told
these senior managers that the plan would not work, that
community organizations would not let the change happen,
and that sooner or later they would have to restore the
old personnel assignment policies. Others present at the
event got the impression that Mills would try to enlist
community organizations against the plan rather than
describe its virtues.
Two things happened to Mills during the next months:
First, Captain Brad Hill put in her personnel file a “Sum-
mary of Counseling” that disapproved her attitude at the
meeting, her choice of time and place for presenting her
views, and her failure to work through the chain of com-
mand. Second, Mills was removed from her supervisory
position and assigned to patrol duties. That step increased
her pay by $1,200 per year (because of a shift differential)
but cost her the use of a departmental car, which had been
at her disposal 24 hours a day. After about a week on patrol
she was moved back indoors to the support services division
but did not regain supervisory responsibilities or personal
use of a car. We must assume that the reassignment, like
the “Summary of Counseling,” was a consequence of her
statements at the meeting.
No. 05-3207 3
Mills contends in this suit under 42 U.S.C. §1983 that
Evansville (and everyone superior to her in the depart-
ment’s chain of command) violated the Constitution by
retaliating on account of her speech. In granting sum-
mary judgment to the defendants, the district judge
stated that Mills’s statements at the meeting are pro-
tected by the first amendment because she addressed issues
of public concern but that the department’s interest in
efficient management of its operations must prevail. See
Pickering v. Board of Education, 391 U.S. 563 (1968).
Garcetti, which was issued while this appeal was under
advisement, holds that before asking whether the subject-
matter of particular speech is a topic of public concern, the
court must decide whether the plaintiff was speaking “as a
citizen” or as part of her public job. Only when government
penalizes speech that a plaintiff utters “as a citizen” must
the court consider the balance of public and private inter-
ests, along with the other questions posed by Pickering and
its successors, such as Waters v. Churchill, 511 U.S. 661(1994); Connick v. Myers, 461 U.S. 138 (1983); and Givhan
v. Western Line Consolidated School District, 439 U.S. 410(1979).
Mills was on duty, in uniform, and engaged in discussion
with her superiors, all of whom had just emerged from
Chief Gulledge’s briefing. She spoke in her capacity as a
public employee contributing to the formation and execution
of official policy. Under Garcetti her employer could draw
inferences from her statements about whether she would
zealously implement the Chief’s plans or try to undermine
them; when the department drew the latter inference it was
free to act accordingly.
Quite apart from Garcetti is the fact that Evansville did
not fire or demote Mills. When the Supreme Court held in
Elrod v. Burns, 427 U.S. 347 (1976), and Rutan v. Republi-
can Party of Illinois, 497 U.S. 62 (1990), that the first
4 No. 05-3207
amendment bars linking hiring, firing, and promotion
decisions to the employee’s politics, it did not doubt that
a public employer retains a powerful interest in ensuring
that all positions are filled by workers who will stand
behind rather than subvert the decisions made by politically
accountable actors. If a chief of police can’t fire or demote
sergeants whose views imply less than enthusiastic support,
what can he do to ensure faithful implementation? The
answer must be a lateral transfer; that’s how Evansville
proceeded with Mills.
Public employers must be able to change assignments
in response to events (including statements) that reveal
whether employees will be faithful agents of the decisions
made by the politically accountable managers. It promotes
rather than undermines first amendment values when
those who make decisions, and are held accountable for
them at the polls, can ensure their implementation with-
in the bureaucracy. Chief Gulledge was entitled to insist
that his subordinates not play the “Yes, Minister” game and
undermine his directions. The power of transfer is essential
if the top of the bureaucracy is to see its decisions through.
Mills also contends that the letter written to her file, and
the removal of her supervisory responsibilities, amounted
to sex discrimination. Of this she offered not an iota of
proof. By 2002 Mills had been a police officer for 27 years;
the department was hardly likely to start discriminating
against her so late in her career. (She has since retired.)
Summary judgment was properly granted against her.
AFFIRMED
No. 05-3207 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-20-06