Scott A. Milliman, Sr., Plaintiff-Appellant,
County of McHenry, et al., Defendants-Appellees.
May 31, 2018
from the United States District Court for the Northern
District of Illinois, Western Division. No. 3:11-cv-50361 -
Frederick J. Kapala, Judge.
Flaum, Manion, and Hamilton, Circuit Judges.
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.
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.
Milliman's 2010 Deposition
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.
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.
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.
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,
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."
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.
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."
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.
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."
Dr. Grote's Fitness-for-Duty Examination
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
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
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."
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."
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 ...