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Tuesday, July 09, 2013

Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal

In ROGER L. PEELE v. CLIFFORD BURCH, individually and as Portage Police Department Chief, et al (ND Ind., Cherry, Mag.J.), a 15-page, very interesting opinion, Judge Kanne writes:

Roger L. Peele was a detective in the Portage Police Department. In his spare time, he was active in local politics. Peele supported Steve Charnetzky’s Democratic primary campaign for the mayorship of Portage, Indiana. Charnetzky lost, and Peele spoke about the loss to a local reporter. Peele’s comments were published the next day. The day after that, Peele was transferred out of the Detective Bureau. Peele sued, claiming that he was transferred in retaliation for his comments. The district court granted summary judgment in favor of the defendants. For the reasons that follow, we reverse. * * *

Here, we think that there is enough evidence for a reasonable jury to conclude that Peele’s comments were both sufficient and necessary causes of his transfer. To begin, the timing of Peele’s transfer was highly suspicious. Suspicious timing is rarely enough, by itself, to create a triable issue of fact. Kidwell, 679 F.3d at 966. “Occasionally, however, an adverse action comes so close on the heels of a protected act that an inference of causation is sensible.” Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 315 (7th Cir. 2011); see also id. (collecting cases). And even if suspicious timing alone is not enough to create a triable issue in a particular case, suspicious timing remains “an important evidentiary ally of the plaintiff.” Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 675 (7th Cir. 2011).

Here, Peele made his protected comments on May 8, 2007. They were published in the newspaper the very next day (May 9, 2007), and Peele was transferred the day after that (May 10, 2007). “The closer two events are, the more likely that the first caused the second,” Loudermilk, 636 F.3d at 315, and it is hard to imagine two key events closer in time than the ones at stake here. Even if this extraordinary temporal proximity is not enough to create a triable issue of fact on its own—a question we need not answer—at the very least, it provides some evidence that a retaliatory motive lurked behind Peele’s transfer. See id.; Spiegla, 371 F.3d at 943 (“It is settled in this Circuit that a plaintiff may establish a causal link between protected expression and adverse action through evidence that the adverse action took place on the heels of protected activity.”) (internal comma, brackets, and ellipsis omitted).

In addition to this circumstantial evidence, Peele has also presented direct evidence of retaliatory motivation. That evidence comes from the deposition of Joe Radic, the officer who held the Station Duty Officer position before Peele replaced him. (See R. 50-4 at 14-23.) According to Radic, Chief Burch told Radic that he would not have to work as the Station Duty Officer anymore. Burch then went on to explain that Peele was being transferred to the Station Duty Officer position because Peele had “made the mayor mad.” (Id. at 21.) Burch further explained that the “mayor” he was referring to was Velazquez, who had just defeated Charnetzky in the primary and presumably would soon become mayor. (Id. at 22.)

Posted by Marcia Oddi on July 9, 2013 02:32 PM
Posted to Ind. (7th Cir.) Decisions