Over the course of six months, Kenneth Kidwell, a 16-year veteran of the Danville, Illinois Police Department, publicly criticized several departmental officials at two police officers’ union meetings. Roughly during that same time period, Kidwell also committed several violations of departmental policy and was punished accordingly with, among other things, a written reprimand and a two-day suspension. Then, after Kidwell failed to clear a fitness-for-duty evaluation, the department officials filed termination charges against him.

An arbitrator reduced Kidwell’s discharge to a suspension, and Kidwell sued the City, claiming his discipline was in retaliation for his statements at the union meetings. The federal Seventh Circuit Court of Appeals dismissed the lawsuit.

The heart of Kidwell’s argument was that the actions taken against him were close enough in time to his purportedly protected speech to allow a reasonable fact finder to infer that the actions were taken because of that speech. The Court disagreed, observing that “suspicious timing will rarely be sufficient in and of itself to create a triable issue. The reason is obvious: suspicious timing may be just that – suspicious – and a suspicion is not enough to get past a motion for summary judgment.”

In the Court’s judgment, for a suspicious-timing argument alone to give rise to an inference of retaliation, the employee must demonstrate that an adverse employment action follows close on the heels of protected expression, and that the person who decided to impose the adverse action knew of the protected conduct. In Kidwell’s case, “there was a significant time lapse between the two instances of purportedly protected speech and the several alleged retaliatory employment actions that Kidwell cites. Kidwell’s first act of purportedly protected speech occurred on February 11, 2008. But the first alleged retaliatory action he cites, namely, the April 15, 2008 written reprimand for his “headhunting” comment, occurred more than two months later. Kidwell’s second act of purportedly protected speech occurred on August 8, 2008, yet the next alleged retaliatory act taken against him after that union meeting occurred approximately five weeks later, when he was suspended for two days for violating departmental policy when transporting an explosive device.”

The Court also observed that “allowing such an inference would be even more inappropriate when we consider the context in which the various complained-of actions were taken. An employee’s complaint does not immunize him from being subsequently disciplined or terminated for inappropriate workplace behavior. The evidence shows that Kidwell’s own aberrant actions or other intervening circumstances led to the negative responses that he incurred.”

For example, the Court found, “Kidwell’s two-day suspension in September 2008 was as a result of a trip he took to Chicago with a civilian to pick up an explosive device. Kidwell attempts to mitigate his role in this incident by claiming that the explosive device was merely a piece of firework, but he conveniently leaves out the fact that he did not know it was a firework until he arrived in Chicago. In fact, the informant who alerted Kidwell to the presence of this device initially described the device as a ‘grenade that would have the potential of exploding.’ Therefore, this ill-advised journey – the facts of which are not in dispute – was unquestionably dangerous and, as noted by Thomason in his memorandum to Kidwell, was made in violation of departmental policy.

“The Department’s attempt to terminate Kidwell was clearly the result of Kidwell’s failure to pass a fitness-for-duty evaluation. If anything, the evidence demonstrates that if Kidwell had passed a fitness-for-duty evaluation at any point in time, he would have been allowed to return to work. Even the Arbitrator noted that Kidwell’s continued employment was based on his ability to pass a fitness-for-duty evaluation (albeit without having to sign a broad consent form). It was only after Kidwell refused to cooperate with the Department’s efforts to have him declared fit for duty that Thomason took action. Regardless of whether Kidwell was within his rights to refuse to cooperate, nothing in the department’s conduct indicates that the action it took was in response to Kidwell’s purportedly protected speech.”

Kidwell v. Eisenhauer, 679 F.3d 957 (7th Cir. 2012).

The above article has appeared in a previous issue of Public Safety Labor News and has been reprinted courtesy of Labor Relations Information System. These articles are for informational purposes only.

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