Carol Kuchenreuther, Now Known as Carol Burgoyne v. City of Milwaukee, Milwaukee Police Department, and Arthur Jones, Chief

Citations: 221 F.3d 967; 2000 U.S. App. LEXIS 17441; 2000 WL 994886Docket: 99-3611

Court: Court of Appeals for the Seventh Circuit; July 20, 2000; Federal Appellate Court

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Carol M. Kuchenreuther, now known as Carol Burgoyne, filed a lawsuit under 42 U.S.C. § 1983 against the City of Milwaukee and Police Chief Arthur L. Jones, alleging retaliation for exercising her First Amendment rights in four incidents. The district court found that in two instances, her speech was not constitutionally protected, and in the other two, the defendants were not liable for any violations of her rights, resulting in a summary judgment in favor of the defendants, which was subsequently affirmed by the appellate court.

Kuchenreuther, a police officer since 1986 and a union steward for the Milwaukee Police Association, claimed her rights were violated between February and September 1997. The first incident involved a note she posted on a bulletin board on February 27, 1997, criticizing a memorandum from Chief Jones encouraging support for the United Performing Arts Fund (UPAF). After her note was removed by her supervisor, Sergeant Thomas Bohl, who deemed it disrespectful and a violation of department rules, a roll call discussion ensued where Kuchenreuther defended her actions as authorized by the union president. Bohl referred the matter to Captain David J. Bartholomew, who agreed on the inappropriateness of her note and initiated an investigation by the Internal Affairs Division to determine if she had violated department rules.

Five months after an investigation, Sergeant Haynes determined that Kuchenreuther violated two Department rules by posting a note on MPD stationery without prior approval, breaching MPD Rule 4. In response to the charges, Kuchenreuther submitted a report to Chief Jones, who ultimately found her guilty on December 18, 1997. She received a District Reprimand for using Department stationery for personal purposes and was suspended for two days without pay for the unauthorized posting.

The second incident involved an argument between Kuchenreuther and Chief Jones during an in-service meeting on March 5, 1997. During the session, Kuchenreuther questioned Chief Jones about a policy limiting officers to one set of handcuffs. After a contentious exchange, Chief Jones ceased the discussion and requested that Lieutenant Drazkowski review Kuchenreuther's notes from the meeting. Initially hesitant, Kuchenreuther later permitted the review, and Lieutenant Drazkowski found her notes accurate and appropriate. He reported this to Inspector Warren, who informed Chief Jones, resulting in no further action.

The third incident pertains to four postings Kuchenreuther made on the MPA bulletin board between March and September 1997. On March 7, 1997, she posted a notice about an upcoming MPA meeting, which Sergeant Bohl removed and subsequently returned after date-stamping and initialing it, reminding Kuchenreuther that prior approval was necessary. On April 14, 1997, Kuchenreuther posted notes from a monthly MPA meeting, but Captain Bartholomew removed them the next day, deeming them inappropriate and unapproved. He forwarded the notes to the IAD, which did not initiate an investigation.

On May 17, 1997, Kuchenreuther posted meeting notes from the May MPA membership meeting on the MPA bulletin board, which were removed around May 24, 1997. Captain Bartholomew did not recall removing the notes but acknowledged that unauthorized postings would be taken down. On September 10, 1997, Kuchenreuther posted a magazine article regarding a National Labor Relations Board ruling on employee free speech, which was also removed. 

Kuchenreuther's transfer from the patrol division to the property control division is presented as another incident of alleged First Amendment rights violation. On August 11, 1997, she requested to be placed on the Day Shift Eligibility List, but did not complete a section of the Day Shift Questionnaire regarding her assignment preference. Deputy Inspector Roger Reinke, aware of the Property Control Division's need for officers, ordered her transfer, which Chief Jones approved on September 19, 1997. Although her title, pay, and benefits remained unchanged, Kuchenreuther deemed the new position "less desirable" and viewed the transfer as punitive.

Kuchenreuther filed a Section 1983 lawsuit on December 15, 1997, against the City of Milwaukee and Chief Jones, claiming violations of her First Amendment rights. After both parties moved for summary judgment, the district court granted the defendants' motion on September 22, 1999, leading to Kuchenreuther's appeal. On appeal, she contends that the district court incorrectly determined her speech was not constitutionally protected and that the defendants were not liable for violating her rights. The court reviews summary judgment de novo, ensuring no genuine issues of material fact exist, and considers all facts favorably towards the opposing party.

A claim for retaliation under section 1983 based on First Amendment rights involves a three-step analysis. First, the court assesses whether the plaintiff's speech is constitutionally protected. If it is, the plaintiff must then prove that the defendant's actions were motivated by this protected speech. Finally, the plaintiff needs to show that the speech was a substantial or motivating factor in the defendant's actions, after which the defendant can argue that they would have taken the same action regardless of the speech.

In evaluating whether Kuchenreuther's speech was protected, the Connick-Pickering test is applied. This requires determining if her speech concerns a matter of public concern, which is defined as relating to political, social, or community issues. Each incident of speech must be examined individually. If it is found to address a matter of public concern, a balancing test is applied to weigh Kuchenreuther's rights against the state's interest in maintaining efficient public services.

The district court found that Kuchenreuther's February 27, 1997, note questioning police payroll contributions did not meet the first prong of the Connick-Pickering test because it did not pertain to a matter of public concern. The determination is based on the "content, form, and context" of the statement, with content being the most significant factor. In this case, the content of the note, which addressed individual charitable contributions, was deemed irrelevant to public concern. Additionally, the note's lack of a signature and the use of a non-official form further supported the conclusion that it was a matter of individual economic interest rather than a public issue.

Kuchenreuther's note was deemed not to address a matter of public concern, primarily due to her motivation for writing it. In her response to disciplinary charges, she expressed that her note was a personal opinion regarding the solicitation of donations for a nonprofit, likening her actions to those of the Chief of Police soliciting for the United Negro College Fund. She emphasized that posting her opinion on the Milwaukee Police Association (MPA) bulletin board did not require authorization from the Chief. Her intention was to express dissatisfaction with the Milwaukee Police Department's (MPD) encouragement of automatic payroll deductions for contributions to the UPAF.

The analysis extended to Kuchenreuther's debate with the Chief about police operations, specifically regarding the policy on handcuff usage. While issues of police protection and public safety can be matters of public concern, the court cautioned against categorizing all internal agency operations as such. It highlighted that recognizing every employee complaint as constitutionally protected speech could lead to excessive judicial oversight of governmental activities. The court also noted the importance of deferring to law enforcement's expertise in personnel matters and clarified that speech reflecting personal interest rather than public concern does not warrant judicial review of personnel decisions. Consequently, disciplinary action taken against Kuchenreuther for her note does not support a First Amendment claim, as it was not considered constitutionally protected speech.

Kuchenreuther's concerns regarding police equipment allocation were deemed to pertain to internal work conditions rather than matters of public concern, as established in Bonds v. Milwaukee County. Her grievances were viewed as complaints about Chief Jones' policy that restricted officers to a single set of handcuffs, rather than addressing broader public safety issues. On appeal, Kuchenreuther argued that Chief Jones was personally liable for the removal of her postings, asserting that his initiation of an Internal Affairs Division (IAD) investigation set a precedent for enforcement of posting rules. However, she was previously informed that postings required a supervisor's stamp and initials, which she disregarded, leading to their removal. Her claim that union agreements allowed unfettered posting was deemed irrelevant to her constitutional argument. The court concluded that the actions taken by Sergeant Bohl and Captain Bartholomew, in compliance with departmental posting requirements, did not incur liability under section 1983.

Additionally, Kuchenreuther claimed her transfer to the Property Control Bureau was intended to suppress her First Amendment rights. To succeed, she needed to demonstrate a causal connection between her protected speech and the transfer. The court noted that she initiated her own transfer by not expressing an assignment preference on a required questionnaire. Deputy Inspector Reinke indicated that Kuchenreuther's lack of expressed preference led to her placement in the Property Control section, which undermined her claim that her transfer was retaliatory.

Kuchenreuther's transfer to the Property Control Division was determined to be a consequence of her own actions, specifically her refusal to adhere to departmental rules regarding duty assignment transfers, rather than a result of any speech protected by the First Amendment. Consequently, she did not demonstrate a violation of her First Amendment rights. The district court's decision was upheld. Additionally, the excerpt notes that the parties consented to proceedings before a magistrate judge under 28 U.S.C. sec. 636(c). It also outlines that the MPA, the union for non-supervisory MPD police officers, negotiated the establishment of bulletin boards at district stations for official union communications. Article 45 of the Collective Bargaining Agreement mandates that these boards display non-controversial materials, which the Association is responsible for maintaining.

UPAF is identified as a charity that aids performing arts organizations in Milwaukee. Regulations prohibit the display of any materials in departmental spaces without the Chief of Police's approval, except for items related to police functions. Department stationery and property are restricted from personal use. Kuchenreuther claims that her suspension by Chief Jones on January 5 and 6, 1998, was particularly harsh as it coincided with the MPA Trustee Election in which she was a candidate. Following a presentation, Chief Jones displayed signs of irritation. Various postings were noted, including one on construction paper about "free beer" dated March 11, 1997, and others containing sarcastic comments about the MPD administration. Notably, Kuchenreuther's postings included "Union Notes" and "Union Meeting Notes," along with a photocopy of a CFO Controller Alert discussing a specific legal case. Captain Bartholomew could not recall removing any notices. Kuchenreuther contended that she left her job preference section blank to avoid being denied desired assignments, although Deputy Inspector Reinke indicated she had previously specified preferences. Of thirty-four officers on a certain eligibility list, only Kuchenreuther and one other officer did not indicate shift preferences, and no officers requested transfers to the property control division. The evaluation of free speech and assembly claims follows a specific legal analysis, although the opinion does not determine if the workplace bulletin board qualifies as a public forum. Kuchenreuther's concerns regarding equipment allocation, expressed in a private setting, suggest a focus on her employment issues. The removals of certain notices by Sergeant Bohl or Captain Bartholomew remain uncertain.