Cygan v. Wisconsin Dept. of Corrections

• Decision Date: 10 November 2004
• Docket Number: No. 04-1297.,04-1297.
• Citation: 388 F.3d 1092
• Parties: Lori CYGAN, Plaintiff-Appellant, v. WISCONSIN DEPARTMENT OF CORRECTIONS, Jon E. Litscher, Daniel Bertrand, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

388 F.3d 1092

Lori CYGAN, Plaintiff-Appellant, v. WISCONSIN DEPARTMENT OF CORRECTIONS, Jon E. Litscher, Daniel Bertrand, et al., Defendants-Appellees.

No. 04-1297.

United States Court of Appeals, Seventh Circuit.

Argued September 8, 2004.

Decided November 10, 2004.

Appeal from the United States District Court for the Eastern District of Wisconsin, William C. Griesbach, J.

COPYRIGHT MATERIAL OMITTED

Mary E. Kennelly, Fox & Fox, Monona, WI, for Plaintiff-Appellant.

John R. Sweeney, Office of the Attorney General, Madison, WI, for Defendants-Appellees.

Before BAUER, MANION, and KANNE, Circuit Judges.

BAUER, Circuit Judge.

After the termination of her employment at the Wisconsin Department of Corrections ("DOC") facility in Green Bay, plaintiff Lori Cygan filed a lawsuit against the DOC and various DOC officials under 42 U.S.C. § 1983. Cygan alleged that the defendants violated her constitutional rights by firing her in retaliation for exercising her First Amendment rights, and by failing to afford her due process in connection with the termination. Cygan also advanced a state law retaliation claim. The district court granted the defendants summary judgment on all three theories. Cygan limits her appeal to the district court's decision on her First Amendment retaliation claim. We affirm.

I. Background

Cygan worked for fourteen years as a prison guard at the Green Bay Correctional Institution ("GBCI"), a maximum-security facility operated by the Wisconsin DOC. GBCI houses over 1,040 of Wisconsin's violent offenders. Cygan was a second-shift Rotunda Officer at GBCI, responsible for security of the rotunda, supervising inmate movement, operating gates leading into the rotunda, and supervising inmates during the evening meal.

A. Cygan's Performance at GBCI

Throughout the majority of her tenure at GBCI, Cygan had positive performance evaluations. However, starting in 1997, various supervisors began to take issue with Cygan's job performance. For example, in reviewing Cygan's performance from October 1997 through October 1998 Dennis Natzke, Cygan's immediate supervisor, wrote:

Officer Cygan has an excellent work ethic.... I do have concern with Officer Cygan and that is her patience with newer employees. She needs to understand that everyone has to go through a learning process and they will not be as efficient as someone who does the same routine every day will. While she has the ability to teach these officers I feel she would rather do it herself than take the time to train.... I believe she needs to consider all other personnel as her equal, which she sometimes has a problem with when dealing with new officers. This is a very real concern and I feel she needs to address this soon as some officers do not care to work in the cell hall because of this .... She needs to learn to become more personable when working with officers that are not regulars in her work unit.

Robin Rogers, Cygan's supervisor in 2001, expressed similar concerns when evaluating Cygan in November 2001. Rogers wrote that Cygan was not meeting institutional standards with respect to interpersonal relationships. Rogers also specifically noted that there had been "several occurrences of [Cygan] being discourteous and insensitive to staff and inmates during this reporting period," and that "Cygan did not meet the standards for having sensitivity to others and their problems, feelings and rights, being courteous and tactful and to respond positively to constructive criticism and supervision."

Defendant Peter Erickson, the security director at GBCI since 2002, initiated an investigation into Cygan's behavior in June 2001 after receiving a complaint about Cygan's use of profanity and other derogatory language when referring to junior officers. During the course of the investigation, three junior officers confirmed that Cygan had treated them in an unprofessional manner. After the investigation, defendant Daniel Bertrand, the Warden of GBCI, directed Cygan to attend a training on professionalism, and issued her an official letter of reprimand for violating DOC Work Rule 13, which prohibits the following conduct:

13. Intimidating, interfering with, harassing (including sexual or racial harassment), demeaning, or using abusive language in dealing with others.

Cygan was also disciplined twice in October 2001. The first incident involved a complaint by Health Services Unit Manager Jeanne Hertel. Hertel complained that Cygan failed to promptly open a gate to allow Hertel to pass to her destination within the institution. After a pre-disciplinary interview where Cygan stated that she did not remember the incident, Warden Bertrand sent Cygan notice that she was suspended without pay for one day for negligence in performing assigned duties. The second incident stemmed from a complaint that Cygan had made a loud and threatening comment to an inmate. Cygan admitted that she yelled at the inmate, but she denied using threats or profanity. Warden Bertrand suspended Cygan three days without pay as a result of this incident.

As related above, Warden Bertrand directed Cygan to attend a training on professionalism after the June 2001 complaint. Cygan attended the required class, but the class instructor, a professor from the University of Wisconsin-Milwaukee, reported that she was disruptive, inattentive, and disrespectful during the class. In an e-mail sent to GBCI, the instructor stated that Cygan arrived late, talked incessantly, laughed during the presentation, and slept on the table. Based on the e-mail from the instructor and corroborating statements from other class attendees, Warden Bertrand suspended Cygan without pay for one day.

B. Cygan's Speech Activities at GBCI

GBCI staff often discussed security issues and other job-related issues with Deputy Warden Michael Baenen. Cygan had discussions with Baenen about her perceptions of poor communication between GBCI staff, low morale, inadequate training for rookie officers, lack of radios for prison staff, problems with the prison camera security system, and staff shortages during meals. Other staff had raised some of the same concerns with Baenen. Cygan and Officer Chad Frappier, her union steward, filed grievances regarding staff shortages during meals, which were denied.

On November 23, 2001, Cygan met with Warden Bertrand in his office and complained about inadequate training and staffing at the prison and about the administration's failure to repair the security cameras in the South Cell Hall.

On December 25, 2001, a fight broke out between two inmates in the rotunda area near the cafeteria during the second-shift meal. Cygan and three other responding officers suffered minor injuries while subduing the inmates. In her report about the incident, Cygan noted that the second-shift meal started with a shortage of staff, and that similar incidents could be avoided by "running the shift with enough officers."

On January 8, 2002, Cygan was assigned to supervise inmates during the evening meal. Defendant Michael Schultz, a Captain at GBCI, was Cygan's supervising officer that night. Although GBCI has a policy that provides, "GBCI will ensure that a minimum of ten correctional officers are assigned to the dining room areas for necessary meal coverage," the evening meal started with fewer than ten officers on hand.

The parties dispute some of the details regarding Cygan's behavior on that night. According to Schultz, Cygan was upset that the second-shift meal had started without ten officers present, and she yelled in the presence of other staff, "This is fucking bullshit. I am sick of this shit." Schultz testified that inmates working on the serving line may have heard Cygan's complaints. Schultz also heard Cygan yelling at Officer Frappier in the rotunda area just outside of the cafeteria. According to Schultz, Cygan was complaining loudly about officer coverage at meals and about the need for Frappier to do his job. Frappier was the union representative and Cygan wanted him to file a grievance regarding officer coverage at meals. Schultz considered Cygan's tone to be loud and profane, and he thought the conduct inappropriate and unprofessional. Believing Cygan's behavior would stop, Schultz walked toward the dining hall. However, according to Schultz, Cygan continued to yell and use profanity, and Schultz confronted Cygan in the rotunda area, saying, "Officer Cygan, if you want to take Officer Frappier into a different room and talk to him later, that's fine. But this conversation will not happen in the rotunda during meals." In response, Cygan yelled, "fine," and then turned to other officers in the rotunda and yelled, "and this is professional?"

Cygan tells a different story. At a hearing about the incident, Cygan admitted that she was upset about the meal starting without ten officers present and she acknowledged raising her voice, but she denied using profanity and denied acting in an abusive manner. Cygan testified that she said, "I hate his place" when she learned that the meal was starting understaffed. In Cygan's view, it was Schultz who acted unprofessionally by yelling at her within inches of her face in front of other officers. Cygan also admitted that she urged Frappier to file a grievance because "GBCI does not seem to care about our safety." Frappier largely corroborated Cygan's story.

On January 21, 2002, a boiler broke down at the prison and inmates became upset when they learned that they would not have showers that evening. On January 22, 2002, about fifty inmates dumped their dirty laundry on the sergeant's desk during the noon hour. A fight subsequently broke out between inmates and officers, and eight officers were taken to the hospital for treatment. During the second shift on January 22, Cygan told Deputy Warden Baenen that she thought that Captain Schultz had mishandled the shower situation and the subsequent disturbance. Cygan also told Baenen that Security...