Graber v. Clarke

763 F.3d 888, 2014 WL 4058976, 200 L.R.R.M. (BNA) 3360, 2014 U.S. App. LEXIS 15931
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 18, 2014
DocketNo. 13-2165
StatusPublished
Cited by29 cases

This text of 763 F.3d 888 (Graber v. Clarke) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graber v. Clarke, 763 F.3d 888, 2014 WL 4058976, 200 L.R.R.M. (BNA) 3360, 2014 U.S. App. LEXIS 15931 (7th Cir. 2014).

Opinion

BAUER, Circuit Judge.

Former Deputy Sheriff Sergeant Richard Graber (“Graber”) filed suit against Sheriff David Clarke (“Clarke”) and the County of Milwaukee alleging three violations of his federal and state rights. In Counts I and II, Graber claims the defendants violated his federal First Amendment rights to free speech and association; Count III alleges that the defendants violated the Wisconsin Law Enforcement Officer’s Bill of Rights.

Following a bench trial, the district court dismissed the action with prejudice. Graber timely appealed to this court. For the following reasons, the decision of the district court is affirmed.

I. BACKGROUND

In June 2010, Graber was employed as a Deputy Sheriff Sergeant at the Milwaukee County Correctional Facility-Central (“the jail”) and served as the vice president of the Milwaukee Deputy Sheriffs’ Association (“the union”). As vice president of the union, Graber’s responsibilities included attending various meetings where members discussed topics impacting the union, including issues related to wages, hours, and conditions of employment.

O’Donnell Park, located on Milwaukee’s lakefront, is a Milwaukee County facility under the control of the Sheriffs Office.

On June 24, 2010, a fifteen-year-old boy was killed when a large concrete slab fell from the O’Donnell Park parking garage. The boy’s mother and friend were also injured in the incident. The Sheriffs Office responded to the emergency, in part by securing the inner perimeter of the park. Captain Thomas Meverden (“Mev-erden”) of the Patrol Division was the incident commander on the scene; he immediately assigned the task of securing the park perimeter to deputy sheriffs at the jail. The deputies were informed to stay for mandatory overtime even if their usual shifts were over. Meverden also ordered Sergeant Carol Mascari (“Mas-can”) to assist him by making calls for [891]*891volunteers in an effort to comply with the union’s collective bargaining agreement.1

A. Conversation with Mascari and Meverden

Graber arrived at work on June 25, 2010, for his shift as the Intake Booking Sergeant; he was not one of the deputies sent to the park and did not have any responsibilities related to staffing deputies. A fellow jail deputy who had been assigned to secure the park’s perimeter approached Graber and complained to him about the mandatory overtime. Graber called Deputy Roy Felber (“Felber”), the union president, with whom he spóke once or twice daily regarding union issues. Felber, who had not yet heard about the mandatory overtime assignments, told Graber to handle the situation on behalf of the union.

Graber then called Mascari to say that he thought the mandatory overtime violated the union’s collective bargaining agreement. Meverden, overhearing Graber on speakerphone, picked up the line and explained to Graber that the mandatory overtime was necessary in the wake of the tragedy at the park and so did not violate the collective bargaining agreement. Mev-erden informed Graber that volunteers could not be mobilized quickly enough, that the park perimeter needed to be secured immediately, and that only jail deputies were available to meet the park staffing needs.2 Meverden went on to explain that volunteer staffing would begin that evening to comply with the collective bargaining agreement. While the discussion with Graber was described by. Mascari as “heated” at times, Meverden and Mascari testified that they never thought Graber was being rude or insubordinate or impeding their ability to handle the staffing at the park. The conversation ended with both men thinking the matter was resolved.

Shortly after this phone call, Deputy Joseph Quiles (“Quiles”) approached Gra-ber to complain that he had been assigned mandatory overtime at the park. Quiles, who testified that he spoke to Graber because of his role as the union vice president, informed Graber that he had worked at the jail on July 24 from 2:00 p.m. until 10:00 p.m., was immediately assigned to overtime at the park until 8:30 a.m. the next day, and was then supposed to return to work at the jail for an eight-hour shift beginning at 2:00 p.m. on July 25. At trial, Graber testified that his conversation with Quiles made him concerned for Quiles’ and other deputies’i safety and that the public’s safety was in jeopardy because deputies typically required at least eight hours of rest between shifts in order to be fully vigilant while performing their duties.

B. Encounter with Nyklewicz

Graber then briefly encountered Deputy Inspector Kevin Nyklewicz (“Nyklewicz”) [892]*892in the administration area of the jail. At trial, the two men disputed the details of what transpired in their short conversation. Graber’s version is that Nyklewicz approached him first to discuss a union matter unrelated to the incident at the park. Graber then calmly informed Nyk-lewicz that he was concerned about the working conditions of jail deputies assigned to mandatory overtime at the park. Graber said he was worried that the deputies would get “burned out” from the extra work with so little time between shifts, and that in turn would put the public’s safety at risk.

According the Nyklewicz, however, Gra-ber approached him first and began yelling that Clarke was “screwing” with jail deputies and Graber was “sick of it.” Nyklew-icz contended that Graber did not mention the union or that he thought the mandatory overtime violated the collective bargaining agreement. Nyklewicz asserted that Graber always brought up the union specifically when the two spoke in the past about union-related issues. Nyklewicz testified that when he tried to end the conversation by saying he would look into the matter and telling Graber to return to work, Graber continued to be aggressive and called the situation “ridiculous.” Nyk-lewicz thought that Graber was being insubordinate because he was challenging the authority of his superiors, disregarding direct orders, and personally attacking Clarke. Nyklewicz said that in the nineteen years he had served in law enforcement, he had never before been spoken to by a subordinate officer in such a manner.

As a result of this encounter, Nyklewicz sought to open an internal affairs investigation against Graber. Lacking the authority to discipline Graber himself, Nyk-lewicz went to Inspector Edward Bailey (“Bailey”), the assisting officer to Clarke. Bailey testified that an “irate” Nyklewicz said he was approached by Graber who made remarks about Clarke “screwing” with the jail deputies. Bailey decided that since Graber’s complaint was directed towards Clarke personally, he would inform Clarke of the matter before taking disciplinary action.

Later that morning, Bailey told Clarke about Graber’s remarks. Bailey expressed his concern over Graber’s disrespectful comments towards superior officers. Bailey also thought that Graber was essentially forcing Clarke to “rejustify” his decision to staff jail deputies at the park in the midst of an emergency. Rather than open an internal affairs investigation, Clarke ordered Bailey to schedule a meeting with Graber later that day so that Clarke could speak with him directly about the situation.

C. Meeting with Clarke and Bailey

Graber, Clarke, and Bailey met later that day; each had a different account of what transpired during the meeting.

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763 F.3d 888, 2014 WL 4058976, 200 L.R.R.M. (BNA) 3360, 2014 U.S. App. LEXIS 15931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graber-v-clarke-ca7-2014.