At page 647 Determining citizen speech versus job duties38 citing casesa city police sergeant did not speak as a citizen when she told her supervisors that the police chiefs plan to reduce the number of crime prevention officers under her command would not work; the sergeant was on duty and in uniform when she engaged in discussion with her supervisors after emerging…
- Morris v. City of Ridgetop, Tennessee, No. 3:19-cv-00631 (M.D. Tenn. Mar. 28, 2025).Weisbarth v. Geauga Park Dist., 499 F. 3d 538, 546-47 (citing Mills v. City of Evansville, 452 F. 3d 646, 647-48 (7th Cir. 2006) (“before asking whether the subject-matter of particular speech is a topic of public concern, the court must d…
- Bloomberg v. The New York City Dep't of Educ., No. 1:17-cv-03136 (S.D.N.Y. Sept. 24, 2019).Dist., 254 F. Supp. 3d 524, 534 (E.D.N.Y. 2017) (quoting Mills v. City of Evansville, 452 F.3d 646, 647 (7th Cir. 2006), and citing Benvenisti v. City of N.Y., No. 04-CV-3166 (JJGK), 2006 WL 2777274 , at *7 (S.D.N.Y.
- Agyeman v. Roosevelt Union Free Sch. Dist., 254 F. Supp. 3d 524 (E.D.N.Y 2017).publishedBy expressly holding that speech pursuant to a public employee’s official duties is not insulated from employer discipline, Garcetti emphasized that “before asking whether the subject-matter of particular speech is a topic of public concer…
- Jackie Anderson, Patrick Cockerham, Diann Banks, Herbert Lenton, & Mable Caleb v. Terry Grier, Superintendent of the Houston Indep. Sch. Dist., No. 01-15-00285-CV (Tex. App.—Houston [1st Dist.] Dec. 21, 2015).publishedDist., 254 F.3d 595, 601 (5th Cir. 2001). “[B]efore 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.”…
- Soderlund v. Zibolski, 2016 WI App 6, 874 N.W.2d 561.publishedGarcetti thus requires 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 [his or] her public job." Mills…
- Peter Paske, Jr. v. Joel Fitzgerald, 785 F.3d 977 (5th Cir. 2015).published(holding that on-duty, in-uniform police officer who spoke to senior managers as they emerged from meeting spoke in her capacity as a public employee)
- Johnson v. Hurtt, 893 F. Supp. 2d 817 (S.D. Tex. 2012).publishedUnder Garcetti , then, “before asking whether the subject-matter of particular speech is a topic of public concern, [courts] must decide whether the plaintiff was speaking ‘as a citizen’ or as part of her public job.” Davis, 518 F.3d at 31…
- Jenkins v. East St. Louis Hous. Auth., 863 F. Supp. 2d 785 (S.D. Ill. 2012).published(a city police sergeant did not speak as a citizen when she told her supervisors that the police chiefs plan to reduce the number of crime prevention officers under her command would not work; the sergeant was on duty an…)
- Arthur Elizondo v. Fletcher Parks, 431 F. App'x 299 (5th Cir. 2011).unpublishedThus, “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.” Davis v. McKinney, 518 F.3d 304, 312…
- Frisenda v. Inc. Vill. of Malverne, 775 F. Supp. 2d 486 (E.D.N.Y 2011).publishedBy expressly holding that speech pursuant to a public employee’s official duties is not insulated from employer discipline, Garcetti emphasized the dual nature of the threshold inquiry into the status of speech; it first directs a court’s…
Show 18 more citing cases
- Swearnigen-El v. Cook Cnty. Sheriff's Dep't, 602 F.3d 852 (7th Cir. 2010).publishedThe most content-rich speech Swearnigen offers is his January 2003 statement to Harrison, while on duty, that he would “fight” her efforts to remove all male officers from the women’s division because it “was discriminatory and retaliatory…
- Brady v. Cnty. of Suffolk, 657 F. Supp. 2d 331 (E.D.N.Y 2009).published By expressly holding that speech pursuant to a public employee’s official duties is not insulated from employer discipline, Garcetti emphasized the dual nature of the threshold inquiry into the status of speech; it first directs a court’s…
- Wright v. City of Salisbury, Mo., 656 F. Supp. 2d 1013 (E.D. Mo. 2009).published Garcetti, 547 U.S. at 421 , 126 S.Ct. 1951 (holding that government employee did not act as a citizen when speech was made, but not challenging Circuit Court's finding that speech addressed a matter of public concern); McGee, 471 F.3d at 9…
- Cockroft v. Moore, 638 F. Supp. 2d 1024 (W.D. Wis. 2009).published(finding that after plaintiff criticized departmental policy, she was laterally transferred, not demoted, when she was removed from supervisory duties, reassigned to patrol duties and lost use of department ear but recei…)
- Caraccilo v. Vill. of Seneca Falls, NY, 582 F. Supp. 2d 390 (W.D.N.Y. 2008).publishedUnder Garcetti when a public employee speaks about a matter of public concern, she does so either “ ‘as a citizen’ or as part of her public job.” Mills v. City of Evansville, Indiana, 452 F.3d 646, 647 (7th Cir. 2006) (citing Garcetti) (Ea…
- Garcia v. Montenegro, 547 F. Supp. 2d 738 (W.D. Tex. 2008).publishedA. Garcetti Test Pursuant to Garcetti v. Ceballos, 547 U.S. 410 , 126 S.Ct. 1951 , 164 L.Ed.2d 689 (2006), employee speech qualifies for First Amendment protection when an employee speaks “as a citizen on a matter of public concern.” Garce…
- Sanders v. Leake Cnty. Sch. Dist., 546 F. Supp. 2d 351 (S.D. Miss. 2008).publishedThe Supreme Court’s recent decision in Garcetti “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 h…
- Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008).publishedMills v. City of Evansville, 452 F.3d 646, 647-48 (7th Cir.2006).
- Boyce v. Andrew, 510 F.3d 1333 (11th Cir. 2007).published (recognizing that “[o]nly when a government employer penalizes speech that a plaintiff utters ‘as a citizen’ must the court consider” the Pickering analysis)
- Winder v. Erste, 511 F. Supp. 2d 160 (D.D.C. 2007).published (Garcetti ... 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)
- Kasak v. Vill. of Bedford Park, 514 F. Supp. 2d 1071 (N.D. Ill. 2007).publishedGarcetti v. Ceballos, — U.S. -, 126 S.Ct. 1951 , 164 L.Ed.2d 689 (2006); Mills v. Evansville, 452 F.3d 646, 647-48 (7th Cir.2006).
- D'ANGELO v. Sch. Bd. of Polk Cnty., Fla., 497 F.3d 1203 (11th Cir. 2007).publishedDist., 473 F.3d 1323, 1328 (10th Cir.2007), and the Seventh Circuit explained that “Garcetti ... holds that before asking whether the subject-matter of particular speech is a topic of public concern, the court must decide whether the plain…
- D'ANGELO v. Sch. Bd. of Polk Cnty., Fla., 497 F.3d 1203 (11th Cir. 2007).publishedDist., 473 F.3d 1323, 1328 (10th Cir. 2007), and the Seventh Circuit explained that “Garcetti . . . holds that before asking whether the subject-matter of particular speech is a topic of public concern, the court must decide whether the pl…
- Barclay v. Michalsky, 493 F. Supp. 2d 269 (D. Conn. 2007).publishedThis fact, while not determinative, lends further support to the conclusion that plaintiff acted, as she testified she did, pursuant to her official duties. 4 While this Court appreciates the logic of Justice Souter’s dissent opinion in Ga…
- Sigsworth v. City Of Aurora, 487 F.3d 506 (7th Cir. 2007).published(on-duty sergeant dressed in uniform did not speak as a citizen when she criticized the effectiveness of police chief's plan during discussions with her superiors)
- Spiegla v. Hull, 481 F.3d 961 (7th Cir. 2007).published Mills v. City of Evansville, 452 F.3d 646, 647-48 (7th Cir.2006).
- Spiegla, Nancy v. Hull, Edward, 481 F.3d 961 (7th Cir. 2007).published Mills v. City of Evansville, 452 F.3d 646, 647-48 (7th Cir.2006).
- Wilburn, Nadine C. v. Robinson, Kelvin, 480 F.3d 1140 (D.C. Cir. 2007).published (Garcetti ... 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’ ....)
At page 648 Speech in official capacity and policy execution32 citing cases“spoke in her capacity as a public employee contributing to the formation and execution of official policy.”
- Hawkins v. Dist. of Columbia, 923 F. Supp. 2d 128 (D.D.C. 2013).published (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…)
- Christopher Anderson v. City of Jellico, Tenn., No. 21-5704 (6th Cir. May 2, 2022).unpublishedThe throughline of all these cases is that each officer “spoke in [his] capacity as a 7 Case No. 21-5704, Anderson, et al. v. City of Jellico public employee contributing to the formation and execution of official policy.” Mills v. City of…
- Fehlman, Patrick v. Mankowski, James, No. 3:21-cv-00362 (W.D. Wis. Mar. 1, 2022). For example, in Mills v. City of Evansville, Indiana, the court concluded that a police sergeant’s discussions with her supervisors criticizing a plan to alter the responsibilities of some officers was not protected by the First Amendment.…
- Romero v. City of Middletown, No. 1:19-cv-00307 (S.D. Ohio Aug. 18, 2020).See Fox, 605 F.3d at 350 (noting that “when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job”); Haynes, 474 F.3d at…
- Brown v. City Of Cincinnati, No. 1:18-cv-00412 (S.D. Ohio July 15, 2020).(holding that a police sergeant’s speech was not protected under Garcetti where the sergeant was “on duty, in uniform, and engaged in discussion with her superiors.)
- Slater v. Chicago Transit Auth., No. 1:20-cv-03356 (N.D. Ill. June 26, 2020).(on duty, in uniform sergeant with supervisory authority “spoke in her capacity as a public employee contributing to the formation and execution of official policy)
- Laura Hatcher v. Bd. of Trs. of S., No. 15-1599 (7th Cir. July 14, 2016).published(employee speech unprotected because it contributed to formation and execution of an official policy)
- Hatcher v. Bd. of Trs. of S. Illinois Univ., 829 F.3d 531 (7th Cir. 2016).published(employee speech unprotected because it contributed to formation and execution of an official policy)
- Ehrlich v. Kovack, 135 F. Supp. 3d 638 (N.D. Ohio 2015).publishedFox, 605 F.3d at 350 (quoting the Fifth Circuit’s observation that “when a public employee raises complaints or concerns up the chain, of command at his workplace about his job duties, that speech is undertaken in the course of performing…
- Adams v. Luzerne Cnty., 36 F. Supp. 3d 511 (M.D. Penn. 2014).publishedMills v. City of Evansville, Ind., 452 F.3d 646, 648 (7th Cir.2006).
Show 8 more citing cases
- Brown v. Tucci, 960 F. Supp. 2d 544 (W.D. Pa. 2013).publishedWhen Brown expressed his misgivings about the Council’s policy, he was speaking “in h[is] capacity as a public employee contributing to the formation and execution of official policy.” Mills v. City of Evansville, 452 F.3d 646, 648 (7th Ci…
- Bridgett Handy-Clay v. City of Memphis, Tennessee, 695 F.3d 531 (6th Cir. 2012).publishedFox, 605 F.3d at 350 (quoting the Fifth Circuit’s observation that “when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing h…
- Foley v. Town of Randolph, 598 F.3d 1 (1st Cir. 2010).published(observing that police officer was on duty and in uniform when engaged in challenged speech, and concluding that she spoke "in her capacity as a public employee)
- Moore v. Darlington Twp., 690 F. Supp. 2d 378 (W.D. Pa. 2010).publishedMills v. City of Evansville, Ind., 452 F.3d 646, 648 (7th Cir.2006).
- Cindrich v. Fisher, 341 F. App'x 780 (3d Cir. 2009).unpublished Moreover, even if Cindrich’s speech that touched on matters of public concern could survive summary judgment under Pickering, this speech was unprotected as a matter of law under Garcetti In her “chain of command” memos and e-mails, Cindri…
- Houskins v. Sheahan, 549 F.3d 480 (7th Cir. 2008).published Mills v. City of Evansville, Indiana, 452 F.3d 646, 648 (7th Cir.2006) (citing Garcetti 547 U.S. at 421 , 126 S.Ct. 1951 , 164 L.Ed.2d 689 ).
- Houskins, Virgean v. Sheahan, Michael F., No. 06-2283 (7th Cir. Nov. 25, 2008).published Mills v. City of Evansville, Indiana, 452 F.3d 646, 648 (7th Cir. 2006) (citing Garcetti, 547 U.S. at 421 , 126 S.Ct. 1951 ).
- Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689 (5th Cir. 2007).publishedSee, e.g., Freitag v. Ayers, 468 F.3d 528 (9th Cir.2006) (holding as not protected speech a prison guard’s internal complaints documenting her superior’s failure to respond *694 to inmates’ sexually explicit behavior toward her); Battle v.…
At page 646 “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 his public job.”2 citing cases
- Foraker v. Chaffinch, 501 F.3d 231 (3d Cir. 2007).published However, the Sixth Circuit also said that "[t]he fact that Haynes communicated solely to his superior also indicates that he was speaking `in [his] capacity as a public employee. . . .'" Id. at 364 (quoting Mills v. City of Evansville, Ind…
- Price v. Chaffinch, No. 06-4086 (3d Cir. Aug. 30, 2007).publishedHowever, the Sixth Circuit also said that “[t]he fact that Haynes communicated solely to his superior also indicates that he was speaking ‘in [his] capacity as a public employee....’” Id. at 364 (quoting Mills v. City of Evansville, Ind.,…
v.
CITY OF EVANSVILLE, INDIANA, Et Al., Defendants-Appellees
“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, — U.S. -, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689, 701 (2006). 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 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 Gul-ledge described this plan (not yet implemented) 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 “Summary 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 command. 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.
Mills contends in this suit under 42 U.S.C. § 1983 that Evansville (and everyone superior to her in the department’s chain of command) violated the Constitution by retaliating on account of her speech. In granting summary judgment to the defendants, the district judge stated that Mills’s statements at the meeting are protected 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, 88 S.Ct. 1731, 20 L.Ed.2d 811 (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 plain[*648] tiff utters “as a citizen” must the court consider the balance of public and private interests, along with the other questions posed by Pickering and its successors, such as Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994); Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); and Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (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 Chiefs 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, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), that the first 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 within 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