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Graber v. Clarke

United States Court of Appeals, Seventh Circuit

August 18, 2014

RICHARD P. GRABER, Plaintiff-Appellant,
DAVID A. CLARKE, JR. and COUNTY OF MILWAUKEE, Defendants-Appellees

Argued January 8, 2014

Page 889

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:11-cv-01038-WEC -- William E. Callahan, Jr., Magistrate Judge.

For Richard P. Graber, Plaintiff - Appellant: Christopher J. MacGillis, Attorney, Macgillis Wiemer, Llc, Wauwatosa, WI.

For DAVID A. CLARKE, JR., individually and in his official capacity, Milwaukee County, Wisconsin, Defendants - Appellees: Roy L. Williams, Attorney, Office of The Corporation Counsel, Milwaukee, WI; Oyvind Wistrom, Attorney, Lindner & Marsack, S.C., Milwaukee, WI.

Before BAUER, WILLIAMS, and TINDER, Circuit Judges.


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Bauer, Circuit Judge.

Former Deputy Sheriff Sergeant Richard Graber (" Graber" ) filed suit against Sheriff David Clarke (" Clarke" ) and the County of Milwaukee alleging three violations of his federal and state rights. In Counts I and II, Graber claims the defendants violated his federal First Amendment rights to free speech and association; Count III alleges that the defendants violated the Wisconsin Law Enforcement Officer's Bill of Rights.

Following a bench trial, the district court dismissed the action with prejudice. Graber timely appealed to this court. For the following reasons, the decision of the district court is affirmed.


In June 2010, Graber was employed as a Deputy Sheriff Sergeant at the Milwaukee County Correctional Facility-Central (" the jail" ) and served as the vice president of the Milwaukee Deputy Sheriffs' Association (" the union" ). As vice president of the union, Graber's responsibilities included attending various meetings where members discussed topics impacting the union, including issues related to wages, hours, and conditions of employment.

O'Donnell Park, located on Milwaukee's lakefront, is a Milwaukee County facility under the control of the Sheriff's Office.

On June 24, 2010, a fifteen-year-old boy was killed when a large concrete slab fell from the O'Donnell Park parking garage. The boy's mother and friend were also injured in the incident. The Sheriff's Office responded to the emergency, in part by securing the inner perimeter of the park. Captain Thomas Meverden (" Meverden" ) of the Patrol Division was the incident commander on the scene; he immediately assigned the task of securing the park perimeter to deputy sheriffs at the jail. The deputies were informed to stay for mandatory overtime even if their usual shifts were over. Meverden also ordered Sergeant Carol Mascari (" Mascari" ) to assist him by making calls for

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volunteers in an effort to comply with the union's collective bargaining agreement.[1]

A. Conversation with Mascari and Meverden

Graber arrived at work on June 25, 2010, for his shift as the Intake Booking Sergeant; he was not one of the deputies sent to the park and did not have any responsibilities related to staffing deputies. A fellow jail deputy who had been assigned to secure the park's perimeter approached Graber and complained to him about the mandatory overtime. Graber called Deputy Roy Felber (" Felber" ), the union president, with whom he spoke once or twice daily regarding union issues. Felber, who had not yet heard about the mandatory overtime assignments, told Graber to handle the situation on behalf of the union.

Graber then called Mascari to say that he thought the mandatory overtime violated the union's collective bargaining agreement. Meverden, overhearing Graber on speakerphone, picked up the line and explained to Graber that the mandatory overtime was necessary in the wake of the tragedy at the park and so did not violate the collective bargaining agreement. Meverden informed Graber that volunteers could not be mobilized quickly enough, that the park perimeter needed to be secured immediately, and that only jail deputies were available to meet the park staffing needs.[2] Meverden went on to explain that volunteer staffing would begin that evening to comply with the collective bargaining agreement. While the discussion with Graber was described by Mascari as " heated" at times, Meverden and Mascari testified that they never thought Graber was being rude or insubordinate or impeding their ability to handle the staffing at the park. The conversation ended with both men thinking the matter was resolved.

Shortly after this phone call, Deputy Joseph Quiles (" Quiles" ) approached Graber to complain that he had been assigned mandatory overtime at the park. Quiles, who testified that he spoke to Graber because of his role as the union vice president, informed Graber that he had worked at the jail on July 24 from 2:00 p.m. until 10:00 p.m., was immediately assigned to overtime at the park until 8:30 a.m. the next day, and was then supposed to return to work at the jail for an eight-hour shift beginning at 2:00 p.m. on July 25. At trial, Graber testified that his conversation with Quiles made him concerned for Quiles' and other deputies' safety and that the public's safety was in jeopardy because deputies typically required at least eight hours of rest between shifts in order to be fully vigilant while performing their duties.

B. Encounter with Nyklewicz

Graber then briefly encountered Deputy Inspector Kevin Nyklewicz (" Nyklewicz" )

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in the administration area of the jail. At trial, the two men disputed the details of what transpired in their short conversation. Graber's version is that Nyklewicz approached him first to discuss a union matter unrelated to the incident at the park. Graber then calmly informed Nyklewicz that he was concerned about the working conditions of jail deputies assigned to mandatory overtime at the park. Graber said he was worried that the deputies would get " burned out" ...

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