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Milliman v. County of McHenry

United States Court of Appeals, Seventh Circuit

June 19, 2018

Scott A. Milliman, Sr., Plaintiff-Appellant,
County of McHenry, et al., Defendants-Appellees.

          Argued May 31, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:11-cv-50361 - Frederick J. Kapala, Judge.

          Before Flaum, Manion, and Hamilton, Circuit Judges.

          Flaum, Circuit Judge.

         Plaintiff Scott A. Milliman, Sr. is a former McHenry County Sheriff's Deputy. While working for the McHenry County Sheriff's Department ("MCSD"), Milliman gave a deposition in which he accused Sheriff Keith Nygren of corruption, bribery, securing fraudulent loans, trafficking illegal aliens, and soliciting the murder of two individuals. Based upon these allegations, Nygren and his subordinates referred Milliman to a psychologist to evaluate whether he was fit for duty. The psychologist determined that Milliman suffered from cognitive and psychological problems from a previous brain tumor in his right frontal lobe that rendered him unfit to perform his duties. MCSD terminated Milliman based upon the results of the fitness examination, the false allegations against Nygren, and violations of multiple MCSD General Orders. In response, Milliman sued Nygren, Nygren's subordinates, and the county in federal district court under 42 U.S.C. § 1983. Milliman claimed that defendants violated his First Amendment rights by retaliating against him for making protected speech. The district court granted summary judgment to defendants on the ground that the fitness-forduty examination provided an independent, non-retaliatory, non-pretextual basis for Milliman's termination. For the reasons below, we affirm.

         I. Background

         Milliman became a McHenry County Sheriff's Deputy on March 2, 1998. In December 2001, Milliman was diagnosed with brain cancer. On July 21, 2002, Milliman underwent brain surgery and went on extended medical leave to recover. Before returning to work, Dr. Christopher Grote evaluated Milliman and determined that he was fit for duty. Milliman returned to MCSD on November 17, 2003.

         A. Milliman's 2010 Deposition

         In November 2010, former MCSD Sheriff's Deputy Zane Seipler brought a case against MCSD. The details of Seipler's suit are not relevant here, other than the fact that Milliman gave a deposition in the course of the litigation, during which he testified that Nygren and a local businessman, Jose Rivera, engaged in numerous criminal activities.

         First, Milliman maintained that Nygren participated in bribery schemes. For example, he testified that Rivera told him about a scheme in which Nygren and Rivera fixed nonvalid-driver's-license tickets for a $1, 000 fee. Additionally, Milliman claimed Rivera told him that Nygren received a $10, 000 bribe to help an individual reinstate a liquor license, and that same individual later contributed more than $5, 000 cash to Nygren's sheriff campaign.

         Next, Milliman testified that Rivera and Nygren tried to recruit him into a Small Business Administration ("SBA") loan fraud scheme in 2001 or 2002. According to Milliman, Rivera told him they sent undocumented individuals to a woman named "Maria" at Elgin State Bank to fill out an application for an SBA loan. Nygren and Rivera would give $10, 000 of the proceeds to the undocumented individual and split the remaining proceeds between them. The borrower would then default on the loan and return to Mexico. Milliman testified that Nygren and Rivera later moved the scheme to Home State Bank.

         Third, Milliman testified that Rivera and Nygren tried to recruit him to participate in a scheme to traffic undocumented immigrants into McHenry County. According to Milliman, Rivera and Nygren charged $1, 100 per person to bring individuals from Zacatecas, Mexico to an apartment complex in Woodstock, Illinois.

         Finally, Milliman testified that Nygren solicited him to kill two individuals. Milliman claimed that, in 1999, Nygren asked him to push retired McHenry County Circuit Judge Conrad Floeter-who at the time was the campaign manager for Nygren's opponent for sheriff-in front of a train. Additionally, Milliman said that in 2009, Nygren asked him to "hang" David Bachmann, a local internet blogger who made comments about Nygren, and make sure "that it looks like a suicide."

         Milliman testified that in 2007, he called Patrick Fitzgerald, the United States Attorney for the Northern District of Illinois, and reported Nygren's criminal conduct. According to Milliman, he then met with several FBI agents.

         B. MCSD's Investigation

         Nygren and several of his subordinates received copies of Milliman's deposition transcript from the Seipler case. Undersheriff Andrew Zinke and Commander John Miller investigated the matter. After reading Milliman's deposition, Miller determined that, due to the bizarre nature of the allegations, Milliman might have been suffering from "psychological difficulties." Miller drafted a memorandum recommending that Milliman be placed on administrative leave and sent for a fitness-for-duty examination and that an independent agency look into Milliman's allegations. Miller also noted that he would look into the FBI's response to Milliman's allegations. Although Miller recommended handling the matter as a medical issue instead of a disciplinary one, the investigation file was titled "Termination Review."

         On December 23, 2010, Milliman was placed on administrative leave and ordered to attend a fitness-for-duty psychological examination with Dr. Robert Meyers. Milliman objected to Dr. Meyers on the ground that he had a personal relationship with Nygren and had contributed to Nygren's campaign. Instead, Milliman's counsel requested a neutral examiner. Defendants chose Dr. Grote, who performed Milliman's fitness-for-duty examination in 2003.[1]

         Meanwhile, Zinke sent a letter to the FBI requesting information about its investigation into Milliman's allegations. In response, the FBI stated that it could "confirm that Deputy Milliman has approached our office in the past and provided information in confidence that he felt may be of interest to the FBI." It further stated that "[w]here appropriate, investigation was conducted to determine the validity of the allegations, " but that "none of the information provided by Deputy Milliman was determined to have prosecutive merit."

         C. Dr. Grote's Fitness-for-Duty Examination

         On February 12, 2011, Dr. Grote conducted Milliman's fitness-for-duty examination. In the narrative portion of his report, Dr. Grote wrote that Milliman was:

Extremely disorganized and "derailed" in interview. He was over-inclusive, tangential and very difficult to follow at certain points in the interview, particularly when he was describing his allegations about corruption in McHenry County. It typically would take over 5 minutes for him to describe a specific allegation, which I would later summarize for him in 30 seconds or less to see if this is what he was alleging.

         Dr. Grote's report further stated that Milliman "would typically veer from one story to another, or make an unclear allegation about one thing before going on to another unclear allegation." Accordingly, Dr. Grote had to provide "structure, " rephrasing and summarizing Milliman's statements, "to understand what [Milliman] was alleging." Dr. Grote wrote that, "[a]t other times, there seemed to be a lack of logic, or even possibly a hypomanic element to some of [Milliman's] claims."

         For example, Milliman told Dr. Grote that the FBI agents got angry with him because he followed them while they followed another subject. According to Dr. Grote, Milliman's explanation of that incident was "incomprehensible." Milliman also told Dr. Grote that the purpose of MCSD's officer exchange program was to "take over" the town of Zacatecas, Mexico. Moreover, Milliman claimed that Chipotle took his idea in creating its restaurant chain. In addition to being difficult to understand, Dr. Grote found some of Milliman's stories "hard to believe." Nevertheless, it appeared to Dr. Grote that "[Milliman] believed what he said."

         According to Dr. Grote's report, Milliman also shared several personal facts about himself. During the interview, Milliman told Dr. Grote that following his brain surgery in 2002, he was no longer able to remember anything from his birth in 1961 until 1996, including his schooling, marriage, or children. The only thing he could remember was the 1985 Super Bowl Champion Chicago Bears. Milliman had not mentioned this memory loss during his 2003 examination. A week after the interview, Milliman called Dr. Grote and contradicted his prior statement, claiming his memory loss was only between 1980 and 1990. Dr. Grote asked Milliman why he had not mentioned the memory loss in 2003 and why his account of his memory loss had changed. Milliman responded that he "wasn't aware of these discrepancies in self-report and didn't know what to make of them."

         Milliman also completed several psychological tests and scored mostly in normal ranges, performing about the same or better than he did in 2003, with a few key exceptions. Specifically, Dr. Grote noted that Milliman was "now doing better on nonverbal ability and nonverbal learning and memory, " and that "[o]ther cognitive test scores are similar to before." However, Milliman's verbal skills were in the "borderline impaired range" and "[h]is lack of 'general knowledge' … was rather striking." For instance, "he answered that the sun rose in the west, that Brazil was on the continent of Spain, etc." In ...

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