Kuchenreuther d/b/a Burgoyne v. City of Milwaukee et al

• Decision Date: 20 July 2000
• Docket Number: No. 99-3611,99-3611
• Citation: 221 F.3d 967
• Parties: (7th Cir. 2000) CAROL KUCHENREUTHER, now known as CAROL BURGOYNE, Plaintiff-Appellant, v. CITY OF MILWAUKEE, MILWAUKEE POLICE DEPARTMENT, and ARTHUR JONES, Chief, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 967

221 F.3d 967 (7th Cir. 2000)

CAROL KUCHENREUTHER, now known as CAROL BURGOYNE, Plaintiff-Appellant, v. CITY OF MILWAUKEE, MILWAUKEE POLICE DEPARTMENT, and ARTHUR JONES, Chief, Defendants-Appellees.

No. 99-3611

In the United States Court of Appeals For the Seventh Circuit

Argued April 19, 2000

Decided July 20, 2000

[Copyrighted Material Omitted] Before POSNER, Chief Judge, COFFEY and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

Carol M. Kuchenreuther, an officer employed by the Milwaukee Police Department, brought a claim under 42 U.S.C. sec. 1983 against the City of Milwaukee, Wisconsin, and against its Police Chief Arthur L. Jones. Kuchenreuther alleged that, in four separate incidents, the defendants retaliated against her for exercising her First Amendment rights. After the district court¹ determined that on two of the occasions, Kuchenreuther's speech was not constitutionally protected and that on the other two occasions, the defendants were not responsible for violating Kuchenreuther's First Amendment rights, the magistrate judge granted summary judgment in favor of the defendants. We affirm.

I. BACKGROUND

Officer Kuchenreuther has been employed as a police officer by the City of Milwaukee, Wisconsin, Police Department (MPD) since October 6, 1986. From November 1989 until September 21, 1997, Kuchenreuther was assigned as a patrol officer to what is referred to as the late power shift (midnight to 8:00 a.m.). During this same time, Kuchenreuther served as a union steward for the Milwaukee Police Association (MPA).² From February to September 1997, Kuchenreuther contends that, on four separate occasions, the defendants violated her First Amendment rights.

A. The February 27, 1997 Bulletin Board Note

The first incident involves a note that Kuchenreuther taped onto a bulletin board in her station house.³ On February 27, 1997, Kuchenreuther noticed an official memorandum from Chief Jones and Assistant Chief James W. Koleas attached to the MPA bulletin board encouraging MPD personnel to support the United Performing Arts Fund (UPAF).⁴ Upon seeing this notice, Kuchenreuther used another police department form already on the bulletin board and wrote: "When you donate to U.P.A.F. you make the Chief and his Administration look good! Do you want to help that cause?"

The next day, on February 28, 1997, Kuchenreuther found that her note had been removed. In fact, Sergeant Thomas Bohl, Officer Kuchenreuther's supervisor, had removed the note because he believed that her note violated MPD rules and because it was openly disrespectful of management.

At that evening's roll call, Sergeant Bohl advised police officers not to post their personal opinions on the bulletin board. Kuchenreuther raised her hand, stated that she had placed the note on the bulletin board, and argued that, as a union steward with prior permission from MPA President Bradley DeBraska, she could place anything she wanted on the board. In response, Sergeant Bohl informed Kuchenreuther that he would refer the matter to Captain David J. Bartholomew.

Captain Bartholomew, like Sergeant Bohl, believed that Kuchenreuther's note violated MPD rules both because it was not authorized by an MPD supervisor and because it was inappropriately disrespectful of the police chief. Later that same day, on February 28, 1997, Captain Bartholomew called the Internal Affairs Division (IAD), which ordered an investigation into the incident. IAD Sergeant Linda Haynes was assigned to investigate whether Kuchenreuther violated Department rules when posting the note.

Five months later, the IAD completed its investigation. Sergeant Haynes concluded that Kuchenreuther had violated two Department rules because the note was written on MPD stationery and because it was posted without the prior approval of an MPD supervisor, in violation of MPD Rule 4, General Rules and Regulations sec. 2/350.00⁵ and 2/385.00.⁶ Kuchenreuther answered IAD's charges by submitting a report to Chief Jones. But on December 18, 1997, Chief Jones issued a Personnel Order finding Kuchenreuther guilty of violating MPD rules and regulations, and disciplined her as follows for using Department stationery for personal use, Kuchenreuther was given a District Reprimand; for posting the UPAF note without prior approval, Chief Jones suspended Kuchenreuther for two days without pay.⁷

B. The March 5, 1997 In-Service Meeting

The second incident in which Kuchenreuther alleges the defendants violated her First Amendment rights involves an argument between Kuchenreuther and Chief Jones. On March 5, 1997, Kuchenreuther attended an in-service session at the MPD Training Academy. At the in-service session, Chief Jones addressed the officers about his philosophy of running the MPD and the new programs he was instituting. When Jones invited questions from the officers, Kuchenreuther asked several questions about the Chief's policy authorizing officers to carry only one set of handcuffs. At some point, the Chief stated that he had "heard enough" and was not going to answer any more questions from Kuchenreuther on the handcuff issue.⁸

Believing that Kuchenreuther had been inappropriately argumentative at the meeting, Chief Jones wanted to know if her notes of the meeting were appropriate and accurately depicted what had transpired at the meeting. So, after the meeting, Chief Jones directed Lieutenant Dennis Drazkowski to review Kuchenreuther's notes. Initially Kuchenreuther refused to allow Lieutenant Drazkowski to view her notes, but after she called Pat Doyle, a union representative at the MPA office, Kuchenreuther handed over her notes. Lieutenant Drazkowski photocopied the notes and returned the originals to Kuchenreuther within twenty minutes. Lieutenant Drazkowski reviewed the notes, found them to be appropriate and accurate, and turned them over to Inspector James R. Warren (the head of the training bureau where the in-service meeting was held). Warren called Chief Jones and informed him that Kuchenreuther was the officer taking notes, informed him that Kuchenreuther's notes were appropriate and accurate, and sent him a copy of the notes. No further action was taken concerning this issue.

C. The Other Bulletin Board Notes

The third incident in which Kuchenreuther alleges the defendants violated her First Amendment rights involves four postings that Kuchenreuther placed on the MPA bulletin board from March to September 1997. First, on or about March 7, 1997, Kuchenreuther placed a handwritten note on the MPA bulletin board to inform MPA members of the March 11, 1997, MPA meeting.⁹ Sergeant Bohl removed Kuchenreuther's note, date- stamped and initialed it, and, within fifteen minutes after removing the note, placed it back on the bulletin board. Sergeant Bohl also advised Kuchenreuther that such items must be stamped and initialed by a supervisor prior to posting.

Next, on April 14, 1997, Kuchenreuther placed notes from the monthly MPA membership meeting on the MPA bulletin board. The next day, on April 15, 1997, Captain Bartholomew removed these notes both because he believed the notes were inappropriate and controversial and because the notes were neither date-stamped nor initialed by a supervisor.¹⁰ Captain Bartholomew then forwarded the notes to the IAD, but the IAD did not open an investigation into the matter.

Next, on May 17, 1997, Kuchenreuther posted the May MPA membership meeting notes on the MPA bulletin board.¹¹ Kuchenreuther noticed that these notes were removed on or about May 24, 1997. Captain Bartholomew did not remember removing these notes, but admitted that they would have been removed if they were not authorized by a supervisor.

Finally, on September 17, 1997, Kuchenreuther discovered that a magazine article reporting on a National Labor Relations Board ruling on free speech protection of employees,¹² which she had posted to the MPA bulletin board on September 10, 1997, had also been removed.¹³

D. Transfer to the Property Control Division

The final incident in which Kuchenreuther alleges the defendants violated her First Amendment rights involves her transfer from the patrol division to the property control division. On August 11, 1997, Kuchenreuther submitted a memorandum to Captain Bartholomew requesting that she be placed on the Day Shift Eligibility List. Captain Bartholomew forwarded Kuchenreuther's request to the Personnel Division, where MPD Personnel Analyst Valarie Watson responded to Kuchenreuther's request on August 15, 1997, and advised Kuchenreuther that she needed to complete a "Day Shift Questionnaire" before her transfer request could be processed. Kuchenreuther completed the Day Shift Questionnaire but left blank a section where officers are supposed to indicate their day shift assignment preferences.¹⁴

Deputy Inspector Roger Reinke, acting director of the MPD Personnel Division, reviewed thirty- four day shift requests, including Kuchenreuther's.¹⁵ Because Kuchenreuther failed to delineate a preferred assignment, and because Reinke knew that the Property Control Division needed additional officers, he submitted an order transferring her there; Chief Jones signed that order on September 19, 1997, and the transfer became effective September 21, 1997. Her title, basic pay, and benefits remained the same. Nevertheless, Kuchenreuther found her new position "less desirable" and viewed her transfer as punitive.

E. Kuchenreuther's Lawsuit

Approximately three months after her transfer, on December 15, 1997, Kuchenreuther filed a section 1983 action in the Eastern District of Wisconsin, naming both the City of Milwaukee and Chief Jones (in both his official and personal capacities) as defendants. Kuchenreuther alleged that the defendants violated her First Amendment rights to freedom of speech and freedom of association.¹⁶ Subsequently, both parties moved for summary judgment. On September 22, 1999, the district court issued a decision granting the...