Perkins v. County of Milwaukee Wisconsin et al

Filing 42

ORDER signed by Judge J P Stadtmueller on 11/29/2018. 41 Plaintiff's Motion for Sanctions is DENIED. 24 Defendants' Motion for Summary Judgment is GRANTED. Plaintiff's claims for violation of free speech and free association rights under the First Amendment are DISMISSED. CASE is DISMISSED with prejudice. See Order. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAMEION PERKINS,
Plaintiff,
v.
COUNTY OF MILWAUKEE,
SLYVANA RADMER, and SANDRA
KELLNER,

Case No. 18-CV-179-JPS

ORDER

Defendants.
1.

INTRODUCTION
Plaintiff is the brother of Dontre Hamilton (“Hamilton”), who was

killed by a Milwaukee police officer in April 2014. (Docket #1 at 3). Plaintiff
participated in protests following Hamilton’s death and made public
statements critical of the City of Milwaukee. Id. He later applied for
employment with Defendant Milwaukee County (the “County”). Id.
Plaintiff says his application was denied because of his association with
Hamilton and his public statements. Id. at 6. Plaintiff alleges that
Defendants’ refusal to hire him violated his rights of free speech,
association, and equal protection. Id. Defendants deny Plaintiff’s
accusations and filed a motion for summary judgment on September 14,
2018. (Docket #24). The motion is now fully briefed, and for the reasons
explained below, it will be granted.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 (“FRCP”) provides that the “court

shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A “genuine” dispute of material fact is created when “the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court construes all facts and reasonable inferences in a light most
favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016). In assessing the parties’ proposed facts, the Court
must not weigh the evidence or determine witness credibility; the Seventh
Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chi.
Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). The non-movant “need not
match the movant witness for witness, nor persuade the court that [their]
case is convincing, [they] need only come forward with appropriate
evidence demonstrating that there is a pending dispute of material fact.”
Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
3.

BACKGROUND
3.1

Plaintiff’s Failure to Dispute Defendants’ Proposed
Findings of Fact

Preliminarily, the Court must note that Plaintiff, through conscious
disregard of the rules of procedure, has admitted most of the facts material
to Defendants’ motion. In his response to Defendants’ proposed findings of
fact, Plaintiff attempts to deny certain facts and qualify his admission of
others. See, e.g., (Docket #36 ¶¶ 9, 10). In almost every instance, however,
these did not take the form of a prose response to the asserted fact. Instead,
Plaintiff merely states “DENY” or “ADMIT,” immediately followed by a
citation to his own proposed findings of fact. Id. In some places Plaintiff
string-cites to dozens of his proposed facts to support a denial or qualified
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admission. See, e.g., id. ¶ 40. For one particularly important denial, Plaintiff
cites to literally every one of his own ninety-four statements of fact. Id. ¶ 60.
Out of his responses to Defendants’ sixty proposed findings of fact, in only
two does Plaintiff offer the barest explanation as to the basis for his dispute
or qualified admission. Id. ¶¶ 28, 47. Most importantly, however, nowhere
in the entire response document does Plaintiff actually cite to evidentiary
materials. See generally id.
Plaintiff’s approach flies in the face of straightforward rules of
summary judgment procedure. FRCP 56 states that a party “must” support
a putative dispute of fact by citing to evidence or by showing that the
materials the movant cited do not establish the fact at issue. Fed. R. Civ. P.
56(c)(1)(A)–(B). Civil Local Rule 56 similarly requires a party opposing a
summary judgment motion to supply a “concise response to the moving
party’s statement of facts” that must include “specific references to the
affidavits, declarations, parts of the record, and other supporting materials
relied upon[.]” Civ. L. R. 56(b)(2)(B)(i). It is clear that Plaintiff knows how
to follow these rules, as he did so in his own proposed findings of fact. See
(Docket #35). Why Plaintiff chose to flaunt the rules in responding to
Defendants’ proposed facts is not only beyond the Court’s understanding,
but also inexplicable.
As explained in Waldridge, in assessing a summary judgment
motion, “[t]he court has one task and one task only: to decide, based on the
evidence of record, whether there is any material dispute of fact that
requires a trial. . . . The parties, in turn, bear a concomitant burden to
identify the evidence that will facilitate this assessment.” Waldridge, 24 F.3d
at 920 (citations omitted). The court held that requiring compliance with the
federal and local rules of procedure
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benefit[s] the parties themselves by requiring their opponents
to clarify exactly what they dispute and on what evidence
they rely. . . . But they are of significantly greater benefit to the
court, which does not have the advantage of the parties’
familiarity with the record and often cannot afford to spend
the time combing the record to locate the relevant
information.
Id. at 923–24 (citation omitted); Hamm v. Nestle USA, Inc., No. 12-CV-2427,
2013 WL 4401328, at *1 (N.D. Ill. Aug. 15, 2013) (attempting to dispute a fact
without citing evidence, but instead only referencing a party’s own
proposed fact statements, is improper). Indeed, even pro se litigants are
required to follow these procedural rules. Smith v. Lamz, 321 F.3d 680, 682–
83 (7th Cir. 2003).
Plaintiff’s response to Defendants’ statement of facts must, therefore,
be viewed as willful noncompliance. In other words, Plaintiff knows full
well that he must explain why a fact is disputed and then support that
explanation by citation to evidentiary materials. Instead, Plaintiff has
attempted to foist his obligation onto the Court, requiring the Court to
embark on an archeological dig through his own findings of fact to piece
together the theory of his dispute(s) and that which supports it. This, the
Court will not do. Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 643–44 (7th Cir.
2008) (district courts are entitled to expect strict compliance with the rules
of summary judgment procedure, and do not abuse their discretion in
disregarding improperly presented disputes of fact); United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for
truffles buried in briefs.”). Thus, for the purpose of deciding this motion,
the Court will take Defendants’ statements of fact as true. Fed. R. Civ. P.
56(e)(2). Plaintiff’s proposed findings of fact will be considered only to the

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extent that they are admitted by Defendants, do not otherwise contradict
Defendants’ now-conceded facts, and are relevant.
3.2

Relevant Facts

Defendants Sylvana Radmer (“Radmer”) and Sandra Kellner
(“Kellner”) were, during the relevant period, employees of Milwaukee
Transport Services, Inc. (“MTS”). Radmer was MTS’s Director of Human
Resources and Kellner was the Chief Administrative Officer. Radmer
reports to Kellner, who then reports to MTS’s Deputy Director, Mark Stein
(“Stein”). Stein, in turn, reports to MTS’s Managing Director Dan Boehm
(“Boehm”). Finally, Boehm reports to the Milwaukee County Department
of Transportation.
MTS is a privately-owned company contracted to work for the
Milwaukee County Transit System (“MCTS”), which is a public entity. The
County acquired MCTS in 1975, and then contracted with MTS to actually
operate MCTS’s services. The County does not itself have any role in human
resources decisions for MTS’s union employees.
Sandra Goins-Jones (“Goins-Jones”) was MTS’s Talent Acquisition
and Development Manager. Rodney McCreight (“McCreight”) was a
contractor who served MTS as a Talent Acquisition Recruiter. McCreight’s
job was to handle recruitment of bus drivers and related staff, including
reviewing resumes, conducting phone screenings, inviting selected
applicants for interviews, and extending job offers. Goins-Jones was
McCreight’s direct supervisor.
On December 13, 2016, Plaintiff applied for a bus driver position
with MTS, though he was actually more interested in a Cleaner/Tanker
position, of which there were multiple openings at the time. Plaintiff spoke
with James Macon (“Macon”), president of the MTS employee union, about
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employment with MTS before applying. Of course, Macon did not himself
have any authority in hiring decisions on behalf of MTS. Nevertheless,
Goins-Jones received a number of calls from Macon, who stated that
Plaintiff would be a good candidate for the Cleaner/Tanker position.
About that time, Goins-Jones asked McCreight to conduct phone
screenings for Cleaner/Tanker applicants. Plaintiff was included in the
group to be screened. Screening serves to help McCreight understand the
applicant’s work experience, their interest in the position, and their
communication skills and demeanor. If an applicant has a successful phone
screening, they will be asked to do an in-person interview.
On December 19, 2016, Plaintiff participated in a phone screening
with McCreight. Plaintiff was asked a standard series of questions, and
McCreight made note of his answers. When asked why he wanted the job,
Plaintiff said he wanted to make more money and work at a place where he
could advance. Plaintiff did not mention any particular interest in the
Cleaner/Tanker position or MTS generally. In response to a question about
prior employment in a team setting, Plaintiff said he had previously
worked in a team environment, but provided no details about that
experience. During the interview, Plaintiff also revealed that he was
Hamilton’s brother.
Though

Plaintiff

met

the

minimum

qualifications

for

a

Cleaner/Tanker position, McCreight decided that Plaintiff should not move
forward in the recruitment process. McCreight perceived that Plaintiff had
a negative attitude toward his prior employer and feared that Plaintiff

Page 6 of 18

would bring that attitude to his work at MTS.1 McCreight did not find
Plaintiff’s relation to Hamilton relevant and did not consider it in making
his decision. At the time he made the decision, McCreight was also not
aware of Plaintiff’s civil rights advocacy or any of his public statements.
Defendants maintain that McCreight’s decision to reject Plaintiff’s
application was his alone and was within his authority as a Talent Recruiter.
The open Cleaner/Tanker positions were eventually filled by other
candidates.
After making his decision, McCreight discussed the outcome of his
phone screenings with Goins-Jones. Among other things, McCreight told
her that Plaintiff was Hamilton’s brother. Goins-Jones took Plaintiff’s file
from McCreight to review it herself. She also offered a “joke” that she
would not hire someone whose family had blocked traffic. She says it was
based on the fact that “we’re a transportation company and Mr. Perkins’
family, they stop transportation.” (Docket #30-4 at 70:13-23). Later in
December, Goins-Jones mentioned Plaintiff and retold her “joke” to
Radmer. Radmer responded that this was not a legitimate reason to
disqualify a candidate.
In early January 2017, Goins-Jones again repeated her “joke,” this
time to Macon. Goins-Jones claims that both understood her statement to
be a joke and that Macon laughed. However, other MTS employees who
heard the statement did not think it humorous and did not see Macon

McCreight’s contemporaneous notes state: “Candidate had a very
negative attitude towards current position at Sprint. Seemed very bitter towards
current employer. Would not recommend further steps in process due to the way
he talked about current employer.” (Docket #29-1 at 3).
1

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laugh. Plaintiff also states that when Macon informed him of the encounter,
Macon did not express a belief that the statement was a joke.
In the second week of January 2017, Radmer was told by various
people about Goins-Jones’ “joke” to Macon. At the end of the week, GoinsJones told Radmer that Plaintiff was calling her repeatedly about the status
of his application. Radmer recommended that Goins-Jones send Plaintiff a
standard rejection letter. Additionally, at some point, Macon himself
confronted Radmer about Goins-Jones’ statement. She agreed that it was
not a good reason to refuse to hire Plaintiff, but emphasized that it was not
the reason Plaintiff’s application was rejected.
The next Monday, January 16, 2017, Plaintiff called Radmer directly
to complain that he was being denied consideration for the job because of
his family. Radmer informed Kellner of Plaintiff’s concern, and they agreed
to invite him to an in-person meeting. Prior to the meeting, Radmer
reviewed Plaintiff’s application materials and McCreight’s notes. Plaintiff
met with Radmer and Kellner that same day. The purpose of the meeting
was to investigate Goins-Jones’ comment and Plaintiff’s concerns about it,
not to interview him for the job. Nevertheless, during the meeting, they did
not notice a difference in Plaintiff’s attitude or demeanor from what
McCreight had observed. Radmer and Kellner told Plaintiff his application
was rejected because of the unfavorable phone screening, not his family
affiliation. Radmer and Kellner then met with McCreight to confirm that
Plaintiff’s family ties played no role in his decision to remove Plaintiff from
consideration for the job.
Radmer’s investigation of Goins-Jones’ comment continued. She
asked the MTS employees who had been present with Macon to prepare
memoranda recounting what they had heard. On January 17, 2017, Radmer
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and Kellner met with Goins-Jones about the comment. Goins-Jones was
adamant that it was a joke. Radmer and Kellner offered the memoranda as
proof that it was not taken that way. They then reprimanded her for making
the “joke” and thus giving an inaccurate account of why Plaintiff was not
hired. After the meeting, Goins-Jones went to McCreight and said she
intended to hire Plaintiff. McCreight immediately informed Radmer of this.
The next day, Radmer and Kellner again met with Goins-Jones. They
reiterated that Plaintiff would not be hired because he did not pass the
initial phone screening.
Radmer and Kellner stress that they did not refuse to hire Plaintiff
because of his civil rights advocacy or his public statements. Indeed, while
they had heard of Hamilton, they had no particular knowledge of Plaintiff’s
activities. Goins-Jones was the only person who had made a comment that
Plaintiff would not be hired because of his family affiliation. Though
Plaintiff presents a First Amendment claim, he had not identified any
specific dates on which he engaged in protected speech or the content of
specific statements. Instead, he claims to have made statements on
television about “getting justice for [his] brother,” the “[d]ates and times, if
you type my name in Google, you will find[.]” (Docket #40 ¶¶ 51–52).
According to Plaintiff, the only support for his retaliation claim is GoinsJones’ “joke.”
4.

ANALYSIS
Plaintiff’s equal protection claim was dismissed with his consent on

April 4, 2018. (Docket #18). Defendants’ opening brief argues that Plaintiff’s
freedom of association claim is, at best, coterminous with his freedom of
speech claim. (Docket #32 at 20). Plaintiff did not respond to that argument
or make any separate attempt to defend his freedom of association claim.
Page 9 of 18

See generally (Docket #38). The Court will, therefore, confine its analysis to
the only remaining disputed claim—retaliation for the exercise of Plaintiff’s
right of free speech.
“Government retaliation tends to chill an individual’s exercise of his
First Amendment rights,” the Seventh Circuit observes, “and this principle
applies with equal force in the context of public-sector employment.”
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). Thus, government
employers “may not respond to their employees’ protected activity with
actions aimed to deter that activity.” Id. Though Plaintiff only vaguely
alleges that Defendants violated his First Amendment rights, (Docket #1 at
6), his claim must be one for retaliation; his allegedly protected speech
occurred long before he applied to the position at issue here. To make a
prima facie case for First Amendment retaliation, Plaintiff must establish that
“(1) his speech was constitutionally protected, (2) he has suffered a
deprivation likely to deter speech, and (3) his speech was at least a
motivating factor in the employer’s action.” Swetlik v. Crawford, 738 F.3d
818, 825 (7th Cir. 2013).2
There are fatal problems with each aspect of Plaintiff’s retaliation
claim. Preliminarily, his claim against the County is misplaced. MTS is a
private company which has contracted with the County to provide

There are other showings required to ultimately prove the claim. Once
Plaintiff makes his prima facie case, the burden of proof shifts to Defendants “to
demonstrate that [they] would have taken the same action in the absence of the
protected speech.” Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 670 (7th Cir.
2009). If Defendants carry this burden, Plaintiff must then show that Defendants’
reasons for taking the employment action are mere pretext. Id. Because Plaintiff
comes nowhere close to making his prima facie case, the Court does not delve into
these issues (which the parties did not brief, in any event).
2

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transportation services. The County itself has no role in human resources
decisions regarding MTS employees. Radmer and Kellner are employees of
MTS, and Plaintiff’s application for employment was with MTS, not the
County. Thus, the County is not a proper defendant in this matter.3 This
begs the question: though it is a private company, does MTS’s quasigovernment status—its connection with the County and its provision of a
public transport service—qualify MTS as a public employer, such that First
Amendment liability may attach? Though the answer to this question
would be dispositive of the case, the parties have not briefed it. The Court
will assume, without deciding, that MTS should be considered a public
employer defendant.
Even with this assumption, Plaintiff’s problems do not end. Local
government entities cannot be held vicariously liable for constitutional
violations committed by their employees, which is precisely what Plaintiff
alleges here. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
690 (1978). Such entities can, nevertheless, be liable under Section 1983 if
“the unconstitutional act complained of is caused by: (1) an official policy
adopted and promulgated by its officers; (2) a governmental practice or
custom that, although not officially authorized, is widespread and well
settled; or (3) an official with final policy-making authority.” Thomas v. Cook

Plaintiff cites two opinions of the Wisconsin Court of Appeals, and one of
the Seventh Circuit, for the proposition that the County can be held liable in
lawsuits involving MTS. Not only have Plaintiff’s procedural failings rendered the
fact undisputed in Defendants’ favor, the Court quite agrees with Defendants’
analysis in their reply, (Docket #39 at 4–6), that the cases are neither controlling
nor persuasive on what MTS’s status actually is vis-à-vis the County, or whether
the County may be liable in this case.
3

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Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2009) (citing Monell, 436 U.S.
at 690). These are colloquially referred to as “Monell” claims.
Plaintiff offers his Monell claim pursuant to the third theory. He
argues that Radmer and Kellner were “final policymakers” for MTS.
(Docket #38 at 7). More precisely, Plaintiff emphasizes that the parties
dispute who made the final decision not to hire Plaintiff, whether it was
McCreight, Goins-Jones, Radmer, or Kellner. He laboriously reviews the
evidence as to each person’s involvement in Plaintiff’s application. Id. at 7–
27.
Plaintiff completely misunderstands what a “final policymaker” is
for purposes of Monell liability, which is a question of law to be decided by
the Court. Valentino, 575 F.3d at 675–76.4 Valentino, decided more than a
decade ago, is directly on-point. Mayor Owen of the Village of South
Chicago Heights (the “Village”) hired family members, friends, and
campaign contributors to fill various municipal government positions. Id.
at 669. Valentino, a secretary for the Village, discovered that some of these
people were being paid for hours they did not work. Id. at 669–70. She
disclosed this to her former supervisor who had previously quit because of
conflicts with Owen. Id. The former supervisor then made a series of
Freedom of Information Act requests seeking documents to expose the
scheme. Id. Valentino herself began surreptitiously copying sign-in sheets
to prove her suspicions. Id. Owen found out that Valentino had spilled the
beans and had Village Administrator Petersen search her desk. Id. at 670.

This is unsurprising, as Plaintiff’s brief makes no attempt to cite or
analogize to any case law specifically addressing the “final policymaker” issue,
but is instead largely a stream-of-consciousness discussion of evidentiary material.
4

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Petersen discovered the copied sign-in sheets. Id. Valentino was
immediately fired, ostensibly for the unlawful copying. Id.
Valentino sued Owen, Petersen, and the Village for First
Amendment retaliation. Id. The trial court granted summary judgment to
the defendants. Id. The appellate court determined that Valentino had
raised triable issues of fact on her retaliation claim. Id. at 670–74. It then
turned to the Village’s Monell liability:
Valentino contends that because Owen made the
ultimate decision to fire her, Monell liability should apply. But
just because Owen is the decisionmaker on hiring/firing
decisions for the Village government does not necessarily
make him the policymaker on those issues. “The fact that a
particular official—even a policymaking official—has
discretion in the exercise of particular functions does not,
without more, give rise to municipal liability based on an
exercise of that discretion.” [Pembaur v. City of Cincinnati, 475
U.S. 469, 481-82 (1986)]. Rather, such an official also must be
responsible for establishing final government policy on a
particular issue. The determination of whether a person has
policymaking authority is a question of state law, and is to be
decided by the court. Our inquiry is not whether an official is
a policymaker on all matters for the municipality, but
whether he is a policymaker in a particular area, or on a
particular issue; here, the relevant question is whether Mayor
Owen is a policy-maker on personnel decisions.
...
Helpful in determining whether an official is a final
decisionmaker is an inquiry into: (1) whether the official is
constrained by policies of other officials or legislative bodies;
(2) whether the official’s decision on the issue in question is
subject to meaningful review; and (3) whether the policy
decision purportedly made by the official is within the realm
of the official’s grant of authority. Also helpful is an
examination of not only positive law, including ordinances,
rules and regulations, but also the relevant customs and
practices having the force of law.
Page 13 of 18

It is clear that Mayor Owen is a decisionmaker with
regards to personnel decisions within the Village. He has
placed at least five of his family members and several friends
on the Village payroll. Owen, admittedly, had the final say-so
regarding the termination of Valentino. Moreover, several
Village ordinances indicate that Mayor Owen makes
personnel decisions regarding Village employees.
...
However, just because Owen makes personnel
decisions does not necessarily mean that he is the final
decisionmaker on such matters such that he can be considered
a policymaker for the Village in this area. It is a “wellestablished principle that the mere unreviewed discretion to
make hiring and firing decisions does not amount to
policymaking authority. There must be a delegation of
authority to set policy for hiring and firing, not a delegation
of only the final authority to hire and fire.” [Kujawski v. Bd. of
Comm’rs of Bartholomew Cnty., 183 F.3d 734, 739 (7th Cir.
1993).] The Village argues that the Board of Trustees, and not
Owen, is the final decisionmaker because it says the Board
sets personnel policy and reviews termination decisions,
whereas Owen merely has discretion to carry out the policy
set by the Board.
Id. at 675–77 (citations and quotations omitted). The court rejected the
Village’s argument, concluding that
Defendants cannot point to any edicts from the board of
trustees that in any way govern the manner in which Mayor
Owen may make his hiring or firing decisions. Nor do they
point to any instances in which the board provided any
meaningful oversight of Mayor Owen’s decisionmaking
process or meaningfully reviewed his termination decisions.
Instead, all the evidence indicates that Mayor Owen, either
personally or by his own delegation, makes the personnel
decisions for his office. Therefore, it is clear to us that Mayor
Owen is the de facto policymaker for the Village with regard
to personnel decisions in his office.

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Id. at 678; see also Rasche v. Vill. of Beecher, 336 F.3d 588, 599–601 (“In order
to have final policymaking authority, an official must possess
[r]esponsibility for making law or setting policy, that is, authority to adopt
rules for the conduct of government.”) (quotation omitted).
Summary judgment is “the put up or shut up moment in a lawsuit.”
Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017) (quotations
omitted). Assuming that Radmer and Kellner did indeed make the final
decision on Plaintiff’s application, he bears the burden to further establish
that, as a matter of law, they were final policymakers for MTS. If Plaintiff
cannot do so now, he is not entitled to go to a jury with his Monell theory.
Plaintiff has utterly failed to carry his burden. Plaintiff’s brief makes
no attempt to engage with the analysis or elements of proof raised in
Valentino. He has not provided the relevant evidence, in any event. Plaintiff
has no evidence demonstrating that Radmer and Kellner’s decisionmaking
was, like Owen’s, either legally or practically unconstrained by higher
supervisors or policymakers. Instead, it appears that they merely exercised
hiring discretion granted to them within the confines of MTS personnel
policy. Moreover, Radmer reported to Kellner, who reported to Stein, who
reported to Boehm, who reported to the Milwaukee County Department of
Transportation. Where did final policymaking authority lie? Plaintiff does
not say.
Ultimately, Plaintiff has not established that Radmer or Kellner
themselves set personnel policy, which is the only viable path to Monell
liability. The Court is unable to construct an appropriate argument or
marshal evidence on his behalf. Stransky v. Cummins Engine Co., Inc., 51 F.3d
1329, 1335 (7th Cir. 1995). Thus, despite all of Plaintiff’s bluster on the point,
it does not matter who made the final decision as to whether he should be
Page 15 of 18

hired. The relevant question—who was the final policymaker—he has left
unanswered.
Plaintiff’s argument as to Radmer and Kellner’s individual liability
is confused at best. He does not actually assess their conduct as against the
elements of a retaliation claim. (Docket #38 at 18–27). Instead, he frames his
position within the confines of his Monell theory, and the thrust of his
argument is that they were final decisionmakers. Id. Generously reading an
argument in favor of individual liability into Plaintiff’s brief, he has
nevertheless failed to make his prima facie case. Recall that the elements of a
retaliation claim are an instance of protected speech, a negative
employment action which would deter further speech, and proof that the
speech motivated the employer’s action. Swetlik, 738 F.3d at 825; George v.
Walker, 535 F.3d 535, 538 (7th Cir. 2008).
As to the first element, Plaintiff curiously refuses to identify any
specific instance of allegedly protected speech. Rather, in both his
deposition and in his legal brief, Plaintiff vaguely gestures at instances of
speech “too numerous to cite” and which may be found by “[a] cursory
Google search.” Id. at 6. Again, Plaintiff cannot later get to a jury without
now providing the evidence which creates a triable issue of fact. Surely, if
this case were tried, he would not tell the jurors to “Google” the instances
of his protected speech. To ask the Court to do so at this stage is the height
of absurdity. Without direct evidence of occasions of protected speech, the
Court has no choice but to conclude that summary judgment is appropriate
on the first element.
Assuming that being denied employment would deter free speech,
Plaintiff also fails to establish the third element. Defendants insist that
McCreight’s decision to reject Plaintiff’s application was final and was not
Page 16 of 18

subject to review by Goins-Jones, Radmer, or Kellner. Plaintiff counters that
his decision was merely a recommendation which needed to be ratified by
a superior. The issue is irrelevant for two reasons. First, on the now
undisputed facts, McCreight made the hiring decision, not Radmer or
Kellner. Second, assuming Radmer and Kellner even implicitly ratified
McCreight’s decision, there is no evidence that they did so based on
Plaintiff’s alleged protected speech. Rather, it is undisputed that McCreight
made his decision based on Plaintiff’s attitude during the phone screen, and
that none of McCreight, Radmer, or Kellner considered Plaintiff’s activism
in addressing his application. Plaintiff further admits that the entire basis
of his retaliation claim is Goins-Jones’ “joke,” but she is not a defendant in
this case.5 Indeed, Radmer and Kellner not only refused to agree with
Goins-Jones’ statement, they condemned it. Plaintiff has not shown that his
speech was a motivating factor in the decision not to hire him.
5.

CONCLUSION
It is most regrettable that so much time and effort were put into this

case only to be wasted by Plaintiff’s conscious refusal to follow proper
summary judgment procedure. His choice means that the material facts are
undisputed. On those facts, Defendants are unquestionably entitled to
summary judgment. The Court will, therefore, grant their motion and
dismiss this action with prejudice.6

This damning admission is the one the Court alluded to earlier, which
Plaintiff attempted to dispute by referencing all of his ninety-four statements of
fact. (Docket #36 ¶ 60).
5

On November 13, 2018, Plaintiff filed a motion for sanctions pursuant to
FRCP 11. (Docket #41). He contends that Defendants offered two frivolous
arguments: 1) that MTS and the County should be considered separate entities,
and 2) that Radmer and Kellner were not personally involved in the hiring
6

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Accordingly,
IT IS ORDERED that Plaintiff’s motion for sanctions (Docket #41)
be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendants’ motion for summary
judgment (Docket #24) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s claims for violation of
his rights of free speech and free association asserted under the First
Amendment (Docket #1 at 6) be and the same are hereby DISMISSED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 29th day of November, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

decision. Id. In light of the foregoing, the motion must be denied. Defendants’
arguments are far from frivolous; in fact, they are correct on both fronts. It is
Plaintiff himself who is fortunate to escape sanction for his conduct in addressing
the summary judgment motion.

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