Nisenbaum v. Milwaukee County

• Decision Date: 25 June 2003
• Docket Number: No. 02-4296.,No. 03-1021.,02-4296.,03-1021.
• Citation: 333 F.3d 804
• Parties: Mark A. NISENBAUM, Plaintiff-Appellant, Cross-Appellee, v. MILWAUKEE COUNTY, et al., Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

333 F.3d 804

Mark A. NISENBAUM, Plaintiff-Appellant, Cross-Appellee, v. MILWAUKEE COUNTY, et al., Defendants-Appellees, Cross-Appellants.

No. 02-4296.

No. 03-1021.

United States Court of Appeals, Seventh Circuit.

Argued June 2, 2003.

Decided June 25, 2003.

COPYRIGHT MATERIAL OMITTED

Alan C. Olson (argued), Olson & Associates, New Berlin, WI, for Plaintiff-Appellee.

Jeremy P. Levinson (argued), Friebert, Finerty & St. John, Milwaukee, WI, for Defendant-Appellant.

Before POSNER, EASTERBROOK, and WILLIAMS, Circuit Judges.

EASTERBROOK, Circuit Judge.

At the end of 1998, Mark Nisenbaum lost his job as a security supervisor at Milwaukee County's Department of Public Works. Invoking 42 U.S.C. § 1983, he sued everyone in sight: the County, the County Executive (F. Thomas Ament), the Department's Director of Facilities Management (Daryl Bzdawka) and his deputy (Lawrence Lauer), its Human Resources Manager (Doris Harmon), and his immediate supervisor (Cortez VanFelder). According to Nisenbaum, he was sacked because he ran for public office (County Clerk) in the fall of 1998. He contends that the discharge violated his rights under the Constitution's first amendment, applied to the states and their subdivisions through the fourteenth amendment. All parties agreed that a magistrate judge could preside. See 28 U.S.C. § 636(c). She granted summary judgment in favor of each defendant other than Bzdawka, who prevailed at a jury trial. We must resolve cross-appeals: Nisenbaum contends that the court should hold a second trial at which Lauer, Harmon, and VanFelder would be defendants; defendants contend that Nisenbaum's claims against them are frivolous and his manner of prosecuting the case vexatious, so that they are entitled to sanctions.

Nisenbaum's job was to superintend security at the Milwaukee County Courthouse complex. After the County directed the Department of Public Works to provide security at additional facilities, increase the size of the security staff at each, and make greater use of computers in providing for security, Bzdawka decided that this would be best handled if Nisenbaum's position were replaced with a "security coordinator" having more responsibilities, better qualifications, and a higher salary. In June 1998 Bzdawka prepared a budget that replaced Nisenbaum's slot with a new position dubbed "security coordinator." Under the County's policies, Nisenbaum would be entitled to apply for that job but could get it only if he prevailed in an open competition. The County Executive transmitted the budget to the County Board, which enacted it. A month or two after Bzdawka wrote out his budget request, Nisenbaum entered the race for County Clerk. He lost; his job was abolished on schedule; and he did not apply for the new coordinator position, so he was laid off. The County's Department of Human Resources prepared a list of people eligible for the new position. Local law required the Department of Public Works to choose someone from that list, which did not include Nisenbaum. He does not contend that the Department of Human Resources omitted him from the list for an improper reason; since he did not apply, no such argument would be tenable. It might be possible, if barely, to say that Bzdawka disapproved of his campaign and on that account discouraged him from applying for the co-ordinator position — though this would be a stretch, as the Department of Human Resources had a free hand to make its own list. At all events, it is not possible to see how any of the other defendants could be liable for the fact that Nisenbaum was not on the list and thus was ineligible for the new position.

What Nisenbaum says on appeal is that in fall 1998 Lauer, Harmon, and VanFelder knew that he was running for office (as they concede) and that a jury could infer that they also knew his platform (honesty and hard work in the County Clerk's office). But what difference could that knowledge have made? By the time they learned of Nisenbaum's candidacy, the die had been cast. They had nothing to do with the County Board's decision to eliminate his slot or with the fact that he was not on the list for the coordinator's position. It is not enough for a plaintiff to show that a given defendant knows of protected speech; the plaintiff also must show that the speech, and the defendant in question, played a causal role in the adverse decision. See Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Vukadinovich v. North Newton School Corp., 278 F.3d 693, 699 (7th Cir.2002). Nisenbaum did not establish any material dispute about these defendants' role in the causal chain: they had none. Indeed, it is hard to see why even Bzdawka should have been put through a trial. His budget had been prepared at least a month before Nisenbaum threw his hat into the ring — and Nisenbaum does not contend that he had told Bzdawka (or anyone else) before July that he was going to run. At oral argument, Nisenbaum's lawyer said that he had run for office twice before. That he had remained on the payroll makes it even harder to perceive any connection between the third candidacy and the end of his job. It is not as if his platform the third time around were controversial — who is against honesty and hard work? A campaign might imply that "the incumbent" must be the opponent of good government, but Nisenbaum did not work in the Clerk's office, so his candidacy did not implicitly criticize Bzdawka or his superiors in the bureaucratic hierarchy.

Perhaps one could say that even in June 1998, when preparing his budget, Bzdawka was out to get rid of Nisenbaum. But it would not be possible to think that the reason was a political campaign that lay in the future. Time's arrow points in one direction; the reason had to be some event preceding the budget's preparation. It is not hard to perceive one. During 1997 Nisenbaum submitted a forged document that enabled him to take seven weeks' paid leave under the workers' compensation program, even though he was fit to work. He was caught and fired. The County's civil service authority converted the discharge to a lengthy, unpaid suspension. Bzdawka, Lauer, and VanFelder soured on Nisenbaum and had testy relations with him thereafter. Maybe the impetus for the reorganization of 1998 was to get rid of someone who had lost his superiors' confidence. But that view of matters would not entitle Nisenbaum to relief under § 1983, which does not create remedies for the evasion of local civil-service systems. Proof that the ostensible reason for the reorganization was not the real one does not imply that the real reason was forbidden by federal law. See Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 657 (7th Cir.1991) (en banc). No reasonable jury could find that the real reason for a decision taken in June was a political campaign launched in August.

Thus we arrive at the cross-appeal, by which defendants seek sanctions for frivolous litigation. Potential bases of that relief include 42 U.S.C. § 1988, which allows prevailing defendants to recover attorneys' fees if the litigation was frivolous, see Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978); Fed.R.Civ.P. 11(c), which authorizes sanctions for complaints filed without reasonable investigation; Fed.R.Civ.P. 37, which authorizes sanctions for misconduct in discovery; and 28 U.S.C. § 1927, which permits courts to penalize an attorney "who ... multiplies the proceedings in any case unreasonably and vexatiously". Defendants have invoked all of these, and with considerable justification.

Take, for example, the claim against Milwaukee County. A unit of municipal government may be held liable under § 1983 only for its own policies, not for the improper acts of its agents and employees. See Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Nisenbaum did not allege, and has never argued, that Milwaukee County has a policy of eliminating civil-service employees who run for office. What is more, if the County did have such a policy, it would be entirely lawful. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) ("baby Hatch Acts" forbidding civil-service employees to engage in politics are valid); Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982) (states may require employees to resign in order to run for a different position). A municipality with a local version of the Hatch Act or a resign-to-run policy must implement that rule evenhandedly; it may not require Democrats to resign while allowing Republicans to keep their civil-service positions as fallbacks. But Nisenbaum, having omitted any allegation that Milwaukee County acted pursuant to any policy, necessarily failed to allege that the County engages in viewpoint discrimination as a matter of policy. The claim against the County thus has been frivolous from the get-go, sanctionable under Rule 11(c) and a warrant for fee-shifting under § 1988.

Party-initiated sanctions under Rule 11 depend on the filing of a motion under Rule 11(c)(1)(A). This motion must be served, but it may not be filed with the court until the opposing party has had three weeks to decide whether to withdraw the supposedly offending pleading. Only if the adverse party maintains its position may the movant inform the court and request sanctions. When denying the motion under Rule 11, the magistrate judge stated that defendants had failed to comply with Rule 11(c)(1)(A). In a footnote, however, the magistrate judge revealed that any noncompliance was technical: the defendants sent Nisenbaum's lawyer a "letter" or "demand" rather than a "motion." Before turning to the court, defendants alerted Nisenbaum to the problem and gave him more than 21 days to desist; he decided to press on. Defendants have complied substantially with Rule 11(c)(1)(A) and are...