Christopher See v. Illinois Gaming Board

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 19-2393
C HRISTOPHER S EE,
Plaintiff-Appellant,
v.
I LLINOIS GAMING BOARD, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 4:17-cv-4050 — Sara Darrow, Chief Judge.
____________________
A RGUED NOVEMBER 2, 2020 — DECIDED M ARCH 21, 2022
____________________
Before S YKES , Chief Judge, and EASTERBROOK and WOOD,
Circuit Judges.
S YKES , Chief Judge. Christopher See is a law-enforcement
officer for the Illinois Gaming Board, a state agency tasked
with regulating gambling in Illinois. The Board has statutory
authority to make use of the Illinois State Police to fulfill its
law-enforcement responsibilities and often hires State Police
officers for Gaming Board jobs. In his capacity as a union
representative, See began voicing concern over the Board’s

-- 1 of 12 --

2 No. 19-2393
promotion policies. He thought State Police employees were
given unfair advantages over Gaming Board employees.
After expressing his concerns to the Board’s labor-
relations liaison, See began to exhibit signs of paranoia. He
complained to the Board’s management that his supervisor
was spreading malicious rumors about him in an effort to
intimidate and scare him. He also said that his wife was
“seriously afraid” that someone from the State Police would
harm them. He pleaded for help in stopping the rumors and
intimidation. When this odd behavior continued, manage-
ment became concerned about his mental stability and
placed him on administrative leave pending an examination
of his fitness for duty. A few weeks later See passed the
examination and returned to work.
See then filed suit under 42 U.S.C. § 1983 alleging that the
Board and several of its officials retaliated against him for
exercising his First Amendment right to free speech and
discriminated against him in violation of the Americans with
Disabilities Act (“ADA”), id. § 12112, by requiring him to
undergo a medical examination without a job-related justifi-
cation. The district court entered summary judgment for the
defendants on both claims.
We affirm. There is no need to address whether See es-
tablished a prima facie case of retaliation. Even if he did, the
defendants offered a legitimate, nonretaliatory reason for
placing him on leave and requiring a fitness-for-duty exami-
nation: they were genuinely concerned about his mental
health based on his strange complaints about rumors, intim-
idation, and fear of harm from the State Police. See presented
no evidence that this reason was pretextual. The ADA claim
also fails for lack of proof. See is an armed law-enforcement

-- 2 of 12 --

No. 19-2393 3
officer, so the possibility of mental instability posed a serious
public-safety concern. The fitness-for-duty examination was
therefore job related and consistent with business necessity.
I. Background
The Illinois Gaming Board regulates riverboat and video
gambling in Illinois. 230 I LL. C OMP . S TAT. 10/5. To carry out
its law-enforcement responsibilities, the Board has statutory
authority to use the services of the Illinois State Police. Id.
§ 10/5(d). Approximately 50% of the Gaming Board’s staff
are officers assigned to it by the State Police. These officers
are eligible for promotion within the Board.
Christopher See is a sworn law-enforcement officer em-
ployed by the Gaming Board and works as a gaming special
agent at Jumer’s Casino and Hotel in Rock Island, Illinois. In
that capacity See investigates criminal activity related to
gambling and ensures the integrity of gaming in Illinois. He
is also a union representative.
In July 2016 See grew concerned about the Board’s hiring
and promotion practices. He emailed Karen Weathers, the
Gaming Board’s labor-relations liaison, complaining that
State Police officers enjoyed a higher promotion rate than
Board employees. He indicated that he was investigating
this issue in his capacity as a union representative for a
possible grievance. As part of his investigation, See request-
ed documentation of any similar past grievances, including
documents concerning the demotion of Michael Miroux,
another Gaming Board law-enforcement officer.
Weathers responded to See’s email, explaining that
Miroux had voluntarily agreed to be reassigned. She also
informed See of a similar past grievance alleging that the

-- 3 of 12 --

4 No. 19-2393
Gaming Board filled too many positions with State Police
officers.
See went on vacation on July 30 and was not scheduled
to return to work until August 16. While on vacation, how-
ever, he emailed Weathers and Captain Frank Spizzirri, the
Gaming Board’s law-enforcement commander, saying that
he would formally file a grievance in the next few days. The
email, which was dated August 8, included a draft of his
forthcoming grievance.
The document spanned 79 pages. Among many other al-
legations, See claimed that the Board, through its adminis-
trator Mark Ostrowski, had given the State Police “de facto
control over the [Board].” He alleged that State Police em-
ployees accounted for a larger percentage of Gaming Board
leadership positions than Gaming Board employees. He also
complained about corruption within the Gaming Board and
in Illinois government more generally.
Despite the length of the grievance and its wide-ranging
allegations, it was what See wrote in his email transmitting
the draft grievance that raised concerns among the Board’s
management. See claimed that Richard Gesiorski, his direct
supervisor at the casino, was “spreading false rumors about”
him and his wife in retaliation for his planned grievance. He
added that his “wife [was] scared and [he] fear[ed] further
retaliation.” He asked the recipients of the email to “please
put a stop to any and all retaliation and false rumors.”
See didn’t stop there. He sent a second email on August 8
again pleading for help and noting that his “wife [was] now
afraid.” Captain Spizzirri responded to the email, asking See
to send his phone number so that Spizzirri could call him.

-- 4 of 12 --

No. 19-2393 5
See did so, adding: “My wife and I need help and my wife is
seriously afraid. Can you please help us?” He again indicat-
ed that Gesiorski was spreading false rumors about him.
Captain Spizzirri spoke with See by phone that day and
became concerned that he was behaving irrationally. During
the call, See continued to insist that Gesiorski was spreading
malicious rumors to intimidate him and that his wife was
afraid that the State Police might harm them.
See sent Spizzirri another email the next morning. He
again expressed his belief that he and his wife were the
subjects of “malicious and false rumors”—a smear campaign
that was intended to “intimidate and scare” them. He reiter-
ated that his wife “believe[d that] the Illinois State Police
may even actually try and send someone to physically harm
[their] family.” He wrote that his family was “counting on
[Spizzirri] to put an end to the retaliation and false rumors
about” them.
By now Captain Spizzirri was concerned enough about
See’s mental state to discuss the matter with the Gaming
Board’s general counsel, Weathers, and a few other officials.
The group met that same day and concluded that when See
returned from his vacation, he should be placed on adminis-
trative leave and evaluated for fitness for duty. In yet anoth-
er email to Spizzirri the next day, August 10, See repeated
his complaint about his supervisors spreading false rumors
and asked whether Spizzirri had “[a]ny luck with trying to
get ‘them’ to stop spreading false rumors about my wife,
Melissa[,] and I.” Spizzirri called See and assured him that
his allegations would be investigated after his vacation.

-- 5 of 12 --

6 No. 19-2393
On August 11—while he was still on vacation—See un-
expectedly showed up at Jumer’s Casino before 7 a.m. to
formally file his grievance. From his work computer, See
emailed the grievance to Weathers, Spizzirri, and Frank
Contreras, an operations supervisor for Jumer’s. Later that
day he hand-delivered a copy of the grievance to Contreras.
When other employees reported that they saw the two
arguing in Contreras’s office, Spizzirri called Contreras, who
put the call on speakerphone so that the captain could talk
with See. Over the speakerphone, Spizzirri ordered See to
leave the casino.
In light of See’s persistent odd behavior and his agitation
during his unexpected visit to work, Captain Spizzirri
decided to immediately place him on administrative leave
rather than wait until he returned from vacation. Spizzirri
attempted to inform See of his decision by phone but See
didn’t answer. Spizzirri wanted to notify See personally of
this action, but See lived in Bettendorf, Iowa, beyond the
Gaming Board’s jurisdiction. So Spizzirri contacted the
Bettendorf Police Department for assistance. At Spizzirri’s
request Bettendorf detectives delivered a written notice to
See informing him that the Board had placed him on admin-
istrative leave and that he could not return to work until he
completed a fitness-for-duty examination. After delivering
the notice, the detectives collected See’s service items, in-
cluding his gun.
On August 22 See passed the fitness-for-duty exam. He
was cleared to return to work effective September 12. He
filed this damages action in 2017 against the Gaming Board,
Captain Spizzirri, and several other officials. He raised two
claims: (1) a First Amendment retaliation claim under § 1983

-- 6 of 12 --

No. 19-2393 7
against Spizzirri, Ostrowski, Weathers, Contreras, and Mark
Brannon (another operations supervisor at Jumer’s Casino);
and (2) an ADA claim against the Gaming Board.
The case proceeded to summary judgment. See conceded
that he could not prevail on his retaliation claim against
Contreras; the district judge entered judgment for the re-
maining defendants on both claims.
II. Discussion
We review a summary judgment de novo, construing the
evidence and drawing reasonable inferences in favor of the
nonmoving party. Consolino v. Towne, 872 F.3d 825, 829 (7th
Cir. 2017).
A. First Amendment Retaliation Claim
“The First Amendment generally prohibits government
officials from dismissing or demoting an employee because
of the employee’s engagement in constitutionally protect-
ed … activity.” Heffernan v. City of Paterson, 578 U.S. 266, 268
(2016). To establish a prima facie case of unlawful retaliation
for exercising free-speech rights, a plaintiff public employee
must present evidence that (1) the speech at issue was
constitutionally protected; (2) his employer subjected him to
a deprivation of the sort that is likely to deter free speech;
and (3) his speech was a motivating factor in the employer’s
actions. Consolino, 872 F.3d at 829.
If the plaintiff establishes a prima facie case, the burden
shifts to the defendant employer to show that it would have
taken the same action even in the absence of the plaintiff’s
protected speech. Id. If the employer does so, the burden
shifts back to the plaintiff to show that the employer’s reason
is merely pretextual—i.e., that the employer is lying about

-- 7 of 12 --

8 No. 19-2393
the true reason for its actions. Valentino v. Village of South
Chicago Heights, 575 F.3d 664, 670 (7th Cir. 2009).
The district judge assumed without deciding that See met
his burden to establish a prima facie case, moving directly to
the second and third steps of the burden-shifting frame-
work. We do the same. The defendants offered a legitimate,
nonretaliatory reason for the decision to place See on admin-
istrative leave and require a fitness-for-duty examination:
they were concerned about his mental stability based on his
persistent claims that his supervisors were spreading mali-
cious rumors to intimidate and scare him and that the State
Police would harm him and his family. The defendants
therefore satisfied their burden to “produce[] evidence that
the same decision would have been made in the absence of
the protected speech.” Thayer v. Chiczewski, 705 F.3d 237, 252
(7th Cir. 2012). See does not argue otherwise.
It was See’s burden, then, to produce evidence that
would allow a reasonable jury to find that this justification
was pretextual. “Pretext means more than a mistake on the
part of the employer; pretext means a lie, specifically a
phony reason for some action.” Smith v. Chi. Transit Auth.,
806 F.3d 900, 905 (7th Cir. 2015) (quotation marks omitted). If
the employer honestly believed its reasons for taking the
challenged actions, even if those reasons were incorrect, then
the reasons were not pretextual. McCann v. Badger Mining
Corp., 965 F.3d 578, 590 (7th Cir. 2020).
See has not carried this burden. He insists that Captain
Spizzirri’s concerns about his mental health were phony, but
all of his arguments rely on speculation or unreasonable
inferences. For instance, See points out that the Bettendorf
detectives’ police report does not say that he presented a

-- 8 of 12 --

No. 19-2393 9
danger to others. That’s neither here nor there. The detec-
tives’ report states only that Captain Spizzirri and Brannon
“believed that Mr. See was paranoid for unknown reasons
and they were concerned about his mental state.” The fact
that the report doesn’t specify why Spizzirri and Brannon
thought See was paranoid does not support an inference that
their concerns about his mental state were pretextual.
See also notes that although his wife was afraid for their
safety, he did not share her fears. It’s not clear why he thinks
that matters. His argument seems to focus on the wrong
inquiry. The relevant question is not whether See was actual-
ly paranoid but whether Captain Spizzirri and the other
defendants were genuinely—i.e., honestly—concerned about
his mental health. In other words, when assessing pretext,
“[t]he question is not whether the employer’s stated reason
was inaccurate … but whether the employer honestly be-
lieved the reason it has offered.” O’Leary v. Accretive Health,
Inc., 657 F.3d 625, 635 (7th Cir. 2011) (emphasis added). Even
if Spizzirri and the other defendants overreacted to See’s
behavior or if their reasoning was “foolish or trivial or even
baseless,” their concerns were not pretextual so long as they
were “honestly believed.” Culver v. Gorman & Co., 416 F.3d
540, 547 (7th Cir. 2005) (quotation marks omitted).
No record evidence casts doubt on the honesty of their
beliefs. To the contrary, the memorandum placing See on
leave specifically referred to his paranoid behavior as the
reason for the decision. Nothing in the record suggests that
this reason was a lie to cover up retaliatory intent. Rather,
the uncontradicted evidence all points in the opposite direc-
tion: See’s repeated emails and phone calls complaining of
“malicious rumors” and “scare tactics” and his wife’s fear

-- 9 of 12 --

10 No. 19-2393
that the State Police would harm their family prompted
honest concerns about his mental health. Spizzirri’s concerns
only increased after See’s unexpected decision to visit work
while on vacation and his increasing agitation while there.
This visit was the tipping point to immediately place See on
administrative leave.
Finally, See argues that a jury might simply choose not to
believe Captain Spizzirri. But a plaintiff cannot withstand
summary judgment by relying solely on “challenges to [a]
witness’[s] credibility” while providing “no independent
facts—no proof—to support his claims.” Springer v.
Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). After all, it was
See’s burden to produce evidence that would allow a rea-
sonable jury to infer that the defendants’ proffered reason
for their actions was pretextual. Thayer, 705 F.3d at 252. He
did not do so.
B. ADA Medical-Examination Claim
The ADA claim also suffers from a fundamental failure
of proof. Our analysis of this claim can be brief. The ADA
prohibits employers from making certain medical inquiries
or requiring medical examinations unless they are justified
by business necessity. § 12112(d)(4)(A) (“[An employer] shall
not require a medical examination and shall not make
inquiries of an employee as to whether such employee is an
individual with a disability or as to the nature or severity of
the disability, unless such examination or inquiry is shown
to be job-related and consistent with business necessity.”). In
this context, “a medical examination is job-related and
consistent with business necessity when an employer has a
reasonable belief based on objective evidence that a medical
condition will impair an employee’s ability to perform

-- 10 of 12 --

No. 19-2393 11
essential job functions or that the employee will pose a
threat due to a medical condition.” Coffman v. Indianapolis
Fire Dep’t, 578 F.3d 559, 565 (7th Cir. 2009).
We have repeatedly held that the ADA permits fitness-
for-duty examinations when public-safety employees are
involved. See, e.g., Kurtzhals v. County of Dunn, 969 F.3d 725,
731 (7th Cir. 2020) (holding that § 12112(d)(4)(A) permitted a
fitness-for-duty examination of a police officer who had a
“short fuse”); Freelain v. Village of Oak Park, 888 F.3d 895, 903–
04 (7th Cir. 2018) (permitting a fitness-for-duty examination
of a police officer who experienced medical conditions due
to stress); Coffman, 578 F.3d at 565–66 (holding that a fire-
fighter’s fitness-for-duty examination was job related and
consistent with business necessity when she appeared to be
“withdrawn” and “suffering from paranoia”); Nichols v.
S. Ill. Univ.-Edwardsville, 510 F.3d 772, 786–87 (7th Cir. 2007)
(permitting paid leave pending a psychological examination
after an officer used force against a mentally unstable wom-
an); Krocka v. City of Chicago, 203 F.3d 507, 515 (7th Cir. 2000)
(“It was entirely reasonable, and even responsible, for [the
police department] to evaluate [the officer’s] fitness for duty
once it learned that he was experiencing difficulties with his
mental health.”). Public-safety officers operate in a “special
work environment” performing “mentally and physically
demanding work.” Coffman, 578 F.3d at 566. Because of this
special work environment, the reasonable perception that an
officer is “even mildly paranoid” will justify a fitness-for-
duty examination under the ADA. Kurtzhals, 969 F.3d at 731
(quoting Watson v. City of Miami Beach, 177 F.3d 932, 935
(11th Cir. 1999)).

-- 11 of 12 --

12 No. 19-2393
Unable to contest this point, See simply reiterates his con-
tention that he was required to undergo a fitness-for-duty
examination in retaliation for his protected speech. This
argument fares no better as a basis for the ADA claim. As we
have explained, nothing in the record suggests that the
Gaming Board’s concerns about his mental stability were
fabricated as a cover for retaliation. Instead, the Board’s
management reasonably “believed there was a possibility
that [he] was suffering from paranoia” based on his persis-
tent odd behavior. Coffman, 578 F.3d at 565. Given See’s
position as an armed public-safety officer, the Board’s
requirement that he pass a fitness-for-duty examination
before returning to work was job related and consistent with
business necessity, as required by the ADA.
A FFIRMED

-- 12 of 12 --