Willie Rogers v. Nicholas Byroad

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 27, 2025
• Docket: 25-1155
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2583 KURT BEATHARD, Plaintiff-Appellee, v. LARRY LYONS and BROCK SPACK, Defendants-Appellants. ____________ Appeal from the United States District Court for the Central District of Illinois. No. 1:21-cv-01352-JES-JEH — James E. Shadid, Judge. ____________ ARGUED APRIL 9, 2024 — DECIDED FEBRUARY 27, 2025 ____________ Before EASTERBROOK, ROVNER, and JACKSON-AKIWUMI, Circuit Judges. ROVNER, Circuit Judge. In this section 1983 action, plaintiff Kurt Beathard alleges that he was discharged from his posi- tion as a university football coach at Illinois State University (“ISU”) as a result of personal speech, protected by the First Amendment, that he had posted on the door to his office. See 42 U.S.C. § 1983. The defendants contend that they are enti- tled to dismissal of the complaint pursuant to Fed. R. Civ. P. 2 No. 22-2583

12(b)(6) on the ground of qualified immunity, because it would not have been clear to them in the Fall of 2020 that Beathard’s speech was protected as personal rather than offi- cial speech, Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), nor would it have been clear that they could not discharge Beathard based on the disruption his speech fomented among team players, Pickering v. Bd. of Educ. of Tp. High Sch. Dist. 205, 391 U.S. 563 (1968). Because the district court concluded that factual development was in order before it could resolve the question of qualified immunity, see Beathard v. Lyons, 620 F. Supp. 3d 775, 783–84 (C.D. Ill. 2022), we dismiss the appeal for want of appellate jurisdiction. I. The following facts are derived from Beathard’s amended complaint (hereinafter, the “complaint”), the allegations of which we accept as true at this stage of the case. Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 195 (2024). Beathard was engaged as the offensive coordinator for the Illinois State University football team in July 2020. Beathard had a 25-year history of coaching, and indeed he had worked as offensive coordinator for ISU in 2014, 2015, 2018, and 2019. Beathard’s previous engagements with ISU were successful: his breaks in service were occasioned not by ISU’s dissatisfac- tion with his performance, but rather his late wife’s illness. When Beathard returned to ISU in 2020, defendant Larry Ly- ons was the Athletic Director and Brock Spack was the head football coach. In the late Summer and early Fall of 2020, there was ten- sion and unrest on the ISU campus related to the death of No.22-2583 3

George Floyd, 1 and some of the players on the football team were threatening to boycott team practice, resulting in the cancellation of several practice sessions. In August, the ath- letic department had posters printed in support of the Black Lives Matter movement. The posters featured photographs of ISU student athletes and included the hashtag, “#Black- LivesMatter.”

R. 13 at 5 ¶ 20. Several football coaches placed the poster on their own office doors, and an unknown person placed the poster on Beathard’s door as well.

1 Floyd, a black man, was asphyxiated by a white Minneapolis police

officer in May 2020 while he was being arrested on suspicion of passing a counterfeit $20 bill. Cell-phone video recordings of his death sparked pro- tests across the country in the ensuing weeks and months. 4 No. 22-2583

Beathard removed the poster from his office door and re- placed it with a handwritten message stating, “All Lives Mat- ter to Our Lord & Savior Jesus Christ.”

R. 13 at 6 ¶ 22. The message was on his office door for approx- imately two weeks. Although, due to the Covid-19 pandemic, students were not allowed into the area of the coaches’ offices at that time, Beathard alleges that another coach who hoped to replace him as offensive coordinator photographed Beathard’s message and shared it with team players. Accord- ing to the complaint, “some” football players “apparently” found the message offensive and threatened to continue boy- cotting practice sessions. R. 13 at 9 ¶¶ 33–34. The complaint represents that there is no university or ath- letics department policy regarding what employees may post on their office doors. Faculty and staff at ISU, as at other uni- versities, commonly decorate their office doors with posters, No.22-2583 5

cartoons, articles, and so forth that reflect their personal views and beliefs. However, ISU does have a written anti-harassment and non-discrimination policy which provides in relevant part that “[e]ach member of the University community enjoys the right to free speech. The right of free expression and the open exchange of ideas stimulates debate, promotes creativity, and is essential to a rich learning environment. … As members of the University Community, students … and staff have a re- sponsibility to respect others and show tolerance for opinions that differ from their own … .” R. 13 at 10 ¶ 41. Meanwhile, athletic director Lyons placed himself into difficulty during a Zoom address to ISU student athletes re- garding the boycott problem when he said, “All [ISU] Redbird Lives Matter.” R. 13 at 7 ¶ 25. That only fanned the flames of discontent, and Lyons announced his retirement the follow- ing month. On or about August 29, head football coach Spack came to Beathard’s office and asked him to remove the handwritten “All Lives Matter” message from his office door. Beathard complied. Days later, on September 1, following the cancella- tion of a team practice session, Spack told Beathard that he was in trouble because of that message. R. 13 at 9 ¶ 34. On the following morning, September 2, Spack called Beathard into his office and advised him that he was being terminated from his position as offensive coordinator because Spack didn’t “like the direction of the offense.” R. 13 at 9 ¶ 35. Beathard alleges that this explanation was “100% pretext,” be- cause Spack had previously complimented Beathard’s work. R. 13 at 9 ¶ 35. Moreover, the team had not yet played a single 6 No. 22-2583

game that year (nor, as it turned out, would it play at all in the 2020 season, due to the Covid-19 pandemic). Spack informed Beathard that Lyons was involved in this decision and would be in touch with him about a future assignment. Eventually, Beathard was assigned to researching other university teams’ Covid-19 practices, which he characterizes as a make-work task. (In the meantime, two other coaches had replaced him as offensive coordinator.) When his contract expired at the end of 2020, it was not renewed, ending his employment with the university. Beathard filed this suit pursuant to section 1983 alleging that he was improperly terminated as offensive coordinator due to the exercise of his free speech rights. He contends that the message he posted on his office door was personal speech on a matter of public concern rather than official speech asso- ciated with his job responsibilities, and that as such, it was protected by the First Amendment. Yet, he alleges, because the defendants saw his message as being inconsistent with the athletic department’s support of the Black Lives Matter move- ment, the defendants discharged him. 2 Lyons and Spack filed a motion to dismiss the complaint pursuant to Rule 12(b)(6), arguing that the complaint did not set forth a viable First Amendment claim and also that they are entitled to qualified immunity, because it would not have been clear to them in the Fall of 2020 that a message posted on Beathard’s office door was properly understood as personal speech rather than official, government speech or that the

2 Beathard named as a third defendant Kyle Brennan, who succeeded

Lyons as ISU’s athletic director. Brennan was named only in his official capacity, however, and he is not a party to this appeal. No.22-2583 7

university could not discipline Beathard for the speech based on the disruption it caused among members of the football team. Judge Shadid denied the motion without resolving the de- fendants’ invocation of qualified immunity. 620 F. Supp. 3d 775. In the first instance, he concluded that the complaint made out a viable claim that Beathard had been discharged based on the exercise of his free speech rights. Relying in part on the Supreme Court’s recent decision in Kennedy v. Bremer- ton School District, 597 U.S. 507, 529–30 (2022), which held that a high school football coach’s prayer on the playing field im- mediately after team football games was private rather than official speech, the judge concluded that Beathard’s actions in posting the handwritten message on his office door were not taken in furtherance of his official job duties. See Garcetti, 547 U.S. at 421. “[Beathard] was expressing his personal views, which in no way owed their existence to his responsibilities as a public employee. Plaintiff was not paid by the University to decorate his door or to use it to promote a particular view- point, he was employed to coach football.” 620 F. Supp. 3d at 782 (cleaned up). And under ISU’s own anti-harassment and non-discrimination policy, Beathard had the right to express his personal viewpoint, within reason. Id. The judge went on to find that Beathard had adequately alleged that his speech was a motivating factor in his discharge. Id. at 782–83. Finally, the judge noted that although under Pickering, 391 U.S. at 568, a teacher’s right to comment on matters of public concern must be balanced against the State’s interest in the efficiency of the public services it provides through its employees, this is a highly fact-specific weighing that must occur on a devel- oped record. Id. at 783 (citing Gustafson v. Jones, 290 F.3d 895, 8 No. 22-2583

909 (7th Cir. 2022)). The court found it premature to engage in the Pickering analysis at the pleading stage of the case. Id. As to qualified immunity, Judge Shadid observed that “[i]t is often not advisable … to consider qualified immunity at the pleadings stage.” Id. Therefore, without saying anything fur- ther on the subject of qualified immunity, the Judge con- cluded by stating, “Defendant’s Motion to Dismiss is denied … with respect to the issue of qualified immunity, with leave to reassert on a more fully developed record.” Id. at 784. II. Interlocutory orders, including denials of a motion to dis- miss, ordinarily are not immediately appealable. See Lauro Lines, s.r.l. v. Chasser, 490 U.S. 495, 498 (1989). With limited ex- ceptions, the rule is that all claims of error must be raised in a single appeal following the entry of final judgment. 28 U.S.C. § 1291; see Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981). Orders denying qualified immunity are one such excep- tion to this rule. Lauro Lines, 490 U.S. at 500 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). “[A]n order rejecting the de- fense of qualified immunity at either the dismissal stage or the summary judgment stage is a ‘final’ judgment subject to im- mediate appeal.” Behrens v. Pelletier, 516 U.S. 299, 307 (1996) (emphasis in original); McGee v. Parsano, 55 F.4th 563, 570 (7th Cir. 2022); Hanson v. LeVan, 967 F.3d 584, 592 (7th Cir. 2020) (citing Mitchell, 472 U.S. at 530). Allowing review of such or- ders is consistent with the goal of sparing a public official from the burden of defending a suit and standing trial when the right he is accused of violating was not clearly established at the time he acted. See Pearson v. Callahan, 555 U.S. 223, 231– No.22-2583 9

32 (2009); Behrens, 516 U.S. at 305–06; Mitchell, 472 U.S. at 525– 26. By contrast, an order postponing a decision on qualified immunity ordinarily is not appealable. Khorrami v. Rolince, 539 F.3d 782 (7th Cir. 2008). Unless the district court delays so long in ruling that the delay becomes a de facto denial, a deci- sion not to rule on a motion [to dismiss on grounds of qualified immunity] is just that: in- action. This follows from the general rule the Supreme Court has acknowledged forbidding interlocutory appeals in situations where “unre- solved issues of fact” remain or the district court has not even “tentatively decided anything about the merits of the claim.”… Id. at 786 (quoting Switzerland Cheese Ass’n, Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 25 (1966)) (additional citations omit- ted). The defendants suggest that our decision in Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 667 (7th Cir. 2012), cabined Khorrami and allowed appeals of orders postponing decisions on qualified immunity in addition to those denying qualified immunity. We do not read Abelesz that way. Abelesz involved a question of sovereign immunity: the plaintiffs were suing Hungarian state entities and instrumen- talities (Hungary’s central bank and national railway) for the theft of property from Jewish families during the Holocaust. When, at the pleading stage of the case, the defendants sought dismissal of the complaints based on their immunity from suit under the Foreign Sovereign Immunities Act, 28 U.S.C. 10 No. 22-2583

§ 1604, the district court concluded that the plaintiffs had al- leged enough to invoke an expropriation exception to FSIA immunity, id. § 1605(a)(3), and on that basis denied the de- fendants’ motions to dismiss. See Holocaust Victims of Bank Theft v. Magyar Nemzeti Bank, 807 F. Supp. 2d 689, 697 (N.D. Ill. 2011) (“Plaintiffs allege that Magyar took money and other property held in bank accounts or kept in safe deposit boxes at Magyar. [S]uch taking was in violation of international law. … Finally, plaintiffs have sufficiently alleged that Magyar owns or operates the property in question and that Magyar is engaged in commercial activity in the United States within the meaning of the FSIA.”) (citations omitted), vacated & remanded by Abelesz, 692 F.3d 661; Victims of the Hungarian Holocaust v. Hungarian State Rys., 798 F. Supp. 2d 934, 938 (N.D. Ill. 2011) (“Plaintiffs have … alleged facts that, when accepted as true at the motion to dismiss stage, suggest that Plaintiffs’ per- sonal property, contractual rights, and interest in real prop- erty were taken by [Hungarian State Railways] and that the takings violated international law. … Plaintiffs have [also] al- leged facts showing that HSR conducts commercial activity in this case sufficient to satisfy the nexus requirement for the takings exception.”), vacated & remanded by Abelesz. To the ex- tent that the defendants denied the relevant factual allega- tions, the court added that it was premature to resolve the ve- racity of the complaint’s factual allegations on a motion to dis- miss, and that the defendants were free to reassert their im- munity defenses on summary judgment. Magyar Nemzeti Bank, 807 F. Supp. 2d at 697; Hungarian State Rwys., 798 F. Supp. 2d at 938. When the defendants appealed these rulings in Abelesz, we determined that we had jurisdiction over the appeal precisely because the district court had denied the motions to dismiss, No.22-2583 11

and we distinguished Khorrami on that basis, noting that in Khorrami, the district court had postponed a decision on the question of immunity. 692 F.3d at 668. Although the district court’s decisions in Abelesz had also included language indicating that it was “premature” to resolve the merits of the sovereign immunity defense, which was “not ripe for adjudication” at the pleading stage of the case, we were satisfied that the district court—having otherwise found the complaints’ allegations sufficient to invoke an exception to sovereign immunity—had, in fact, denied the motions to dismiss on the merits, resulting in a ruling that was subject to interlocutory review. Id. (More on the Abelesz district court’s “premature” and “not ripe for adjudication” language in a moment.) The same cannot be said here. To be sure, the district court in this case did say at the conclusion of its order that the de- fendants’ motion to dismiss was “denied.” R. 13 at 10. But the court’s language in the preceding sentence makes clear that the court did not think it advisable to address qualified im- munity with only the allegations of Beathard’s complaint to inform its assessment. By way of explanation, the court cited Doe v. Purdue Univ., 928 F.3d 652, 665 (7th Cir. 2019), and Ja- cobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000), for the common-sense point that qualified immunity is fact- driven, and yet as a matter of federal pleading rules the plain- tiff is not required to set out in his complaint all of the facts that might bear on qualified immunity. The court’s reference here to “a more fully developed record” in its concluding sen- tence thus leaves no doubt that it did not believe this was a case in which the defense could be evaluated based on the face of the complaint, but rather that further development was necessary before it could properly assess qualified 12 No. 22-2583

immunity. Beathard, 620 F. Supp. 3d at 784; see Hanson, 967 F.3d at 591–92. Nowhere in its order did the court otherwise suggest that Beathard had either pleaded enough to overcome qualified immunity or had instead pleaded himself out of court by making allegations that left no doubt that the defend- ants were entitled to qualified immunity. In short, the court’s order “d[id] not settle or even tentatively decide anything” about the merits of the defendants’ qualified-immunity argu- ments. Switzerland Cheese Ass’n, 385 U.S. at 25. It reserved those arguments for a later date. By contrast, the district court in Abelesz had reached the merits of the immunity defense, reasoning that the plaintiffs had alleged enough in their complaints to support FSIA’s ex- propriation exception to sovereign immunity. When the Abelesz court added that it was “premature” to resolve the “merits” of the sovereign immunity defense, it was merely recognizing that allegations and facts are not the same thing, and that the evidence subsequently adduced in discovery might show that one or more of the complaint’s material alle- gations as to the FSIA’s expropriation exception were not true, and the court’s qualified-immunity inquiry might, as a result, produce a different conclusion. Magyar Nemzeti Bank, 807 F. Supp. 2d at 697; Hungarian State Rwys., 798 F. Supp. 2d at 938; see Hanson, 967 F.3d at 591–92. This is why an immun- ity defense can be raised at multiple stages of the case: At the pleading stage, the assessment of qualified immunity turns solely on the allegations of the complaint, whereas at the sum- mary judgment stage, the assessment turns on the undisputed facts. Behrens, 516 U.S. at 309. Thus, if a court has rejected qualified immunity at the former stage of the case, the defense can be raised again at the latter stage. Id. at 307–08. No.22-2583 13

Here, there can be no doubt that the district court was postponing consideration of the qualified immunity defense, bringing this case within the rubric of Khorrami rather than Abelesz. Indeed, the balance of the court’s order confirms the court’s conclusion that factual development was required be- fore the court could reach the merits of the immunity defense. As we have noted, the defendants, apart from invoking qualified immunity, had also moved to dismiss Beathard’s First Amendment claim on the ground that his allegations failed to state a claim on which relief might be granted. The district court rejected this argument in part: It found that Beathard engaged in protected personal speech when he af- fixed the “All Lives Matter” poster to his office door. 620 F. Supp. 3d at 782. But more is required to establish that one’s state employer violated its employee’s First Amendment rights by taking disciplinary action against him based on his personal speech. His speech must have addressed a matter of public concern, Connick v. Myers, 461 U.S. 138, 145–47 (1983), and under Pickering, 391 U.S. at 568, a plaintiff must also show that his interest in speaking on such a matter outweighed his public employer’s interest in the efficiency of the public ser- vices it performs through its employees. As to this aspect of Beathard’s First Amendment claim, the court said that with- out discovery and development of the facts, it could only con- duct the Pickering balance by engaging in speculation. 620 F. Supp. 3d at 783. The district court’s conclusion as to Pickering was not at all unreasonable: the Pickering balance is inherently fact- dependent. See Lalowski v. City of Des Plaines, 789 F.3d 784, 791 (7th Cir. 2015); McGreal v. Ostrov, 368 F.3d 657, 675 (7th Cir. 2004); Gustafson, 290 F.3d at 909 (all noting the fact-specific 14 No. 22-2583

nature of the Pickering balancing test). As such, it is precisely the sort of matter that typically cannot be resolved on the pleadings. See McGreal, 368 F.3d at 677 (“Pickering balancing is not an exercise in judicial speculation.”) (quoting Gustufson, 290 F.3d at 909). The district court’s rationale as to Pickering further illus- trates why the court thought it necessary to postpone a deci- sion on qualified immunity. Although we have acknowl- edged that qualified immunity can be resolved on pleadings in certain situations, Sabo v. Erickson, No. 21-3332, --- F.4th ---, 2025 WL 354484, at *3 (7th Cir. Jan. 31, 2025) (en banc) (collect- ing cases), particularly when the relevant issues are legal or “abstract,” Hanson, 967 F.3d at 590, we have recognized that it will often be premature to do so at the motion to dismiss stage. E.g., Roldan v. Stroud, 52 F.4th 335, 339 (7th Cir. 2022); Hanson, 967 F.3d at 589–90. Especially where the merits of a plaintiff’s claim turn on the application of a fact-intensive bal- ancing test, it will be difficult to assess prior to discovery whether the results of that test would have been obvious to the defendant without knowing “what is being balanced against what.” Evans-Marshall v. Bd. of Educ., 428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J. concurring). The defendants emphasize that Beathard’s complaint it- self acknowledges that the message posted on his office door caused dissention among the ranks of the school’s football players. Pickering recognizes that a public employer may dis- cipline an employee for personal speech that interferes with its mission. 391 U.S. at 568. As the defendants see it, the dis- ruption that Beathard’s speech fomented among team mem- bers gave Lyons and Spack all the cause they needed to re- move Beathard from his position—or enough cause, at least, No.22-2583 15

to be shielded by qualified immunity for the discharge. In fact, however, the complaint alleges only that “some” football players “apparently” were “upset” by Beathard’s message and threatened to continue boycotting practice sessions, and that Coach Spack later advised Beathard he was “in trouble” because of that message. R. 13 at 9 ¶¶ 33–34. Beathard himself disputes the notion that his speech resulted in substantial dis- ruption among the team’s players. R. 13 at 12 ¶ 47. The com- plaint tells us nothing concrete about the impact that Beathard’s message had on team players and how that fac- tored into the university officials’ decision to remove him as offensive coordinator. Second- and third-hand accounts about the effects of a plaintiff’s speech are a shaky foundation for a Pickering inquiry. For that matter, the complaint alleges that Spack told Beathard he was being removed for an alto- gether different reason (because Spack was unhappy with the direction of the offense). R. 13 at 9 ¶ 35. In these circum- stances, it was reasonable for the district court to conclude that it required more information about the defendants’ ra- tionale for terminating Beathard before assessing whether the discharge decision was consistent with Pickering and, if not, whether that would have been clear to the defendants when they removed Beathard as offensive coordinator. We take the defendants’ point that qualified immunity is meant to spare a defendant the burden of litigation, not merely an adverse monetary judgment at the conclusion of a suit. See Pearson, 555 U.S. at 231, 237 (citing Mitchell, 472 U.S. at 526). To that end, an invocation of qualified immunity should be resolved as soon as the record allows an assessment of the defense. Sabo, 2025 WL 354484, at *3. But at what stage of the case it is realistically possible to evaluate qualified im- munity depends on the nature of the claim and circumstances 16 No. 22-2583

of the individual case. In some cases, the fact-intensive nature of the claim means that resolution of a qualified immunity de- fense must await factual development. E.g., Roldan, 52 F.4th at 339. The district court reasonably understood this to be such a case. This is not to say that deferring the question of qualified immunity leaves the defendants with no protection from the burdens of litigation. The district court has broad discretion to manage discovery (including the imposition of appropriate limits) and to prioritize development of the record as to the issues relevant to the defense of qualified immunity. See Jacobs v. City of Chicago, 215 F.3d 758, 775–76 (7th Cir. 2000) (Easter- brook, J., concurring). The district court and the parties may also prioritize a motion for summary judgment focused on qualified immunity without prejudice to a later round of sum- mary judgment focused on other issues. Roldan, 52 F.4th at 340. III. Because the district court postponed a decision on the de- fendant’s invocation of qualified immunity rather than deny- ing their motion to dismiss on that basis, we lack jurisdiction over this appeal. DISMISSED.