Timothy Kingman v. Chris Frederickson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1013
T IMOTHY K INGMAN,
Plaintiff-Appellant,
v.
C HRIS FREDERICKSON, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 19-cv-999 — William M. Conley, Judge.
____________________
A RGUED MAY 26, 2022 — D ECIDED J ULY 11, 2022
____________________
Before BRENNAN, SCUDDER , and ST . EVE , Circuit Judges.
SCUDDER , Circuit Judge. In March 2019 Timothy Kingman,
the Director of Public Works for the City of Rhinelander, Wis-
consin, took to the floor of a City Council meeting with a dec-
laration of no confidence in a colleague. The City investigated
Kingman’s contentions and found them without merit. In the
process, however, third-party investigators discovered that
Kingman himself had not only mistreated his employees, but
also had gone so far as to retaliate against those who had

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2 No. 22-1013
complained about the toxic work environment he created in
his department. The City fired Kingman, only to find itself on
the receiving end of a lawsuit. Kingman alleged that the ter-
mination reflected payback for exercising his First Amend-
ment rights at the City Council meeting. The district court en-
tered summary judgment for the City and other individual
defendants, concluding that no reasonable jury could find
that the Council’s vote to fire Kingman reflected unlawful re-
taliation. We agree and affirm.
I
A
Timothy Kingman served as the City of Rhinelander’s Di-
rector of the Department of Public Works from 2011 until June
2019. Over time he developed a reputation as a difficult su-
pervisor who was often rude and demeaning to others. Sev-
eral employees in the department even quit to avoid working
with him. The City knew all of this and at one point put King-
man on a performance improvement plan, but he remained at
the helm of Public Works.
Things took a turn for the worse in the early spring of 2019.
By then the City had hired Daniel Guild to serve as its City
Administrator. A handful of incidents in the first six months
of Guild’s tenure led Kingman to believe that his new col-
league was both incompetent and corrupt. Kingman took his
concerns directly to Guild and Mayor Chris Frederickson to
no avail.
On March 11, 2019, Kingman stood up during the public
comment segment of a City Council meeting and lodged a lit-
any of complaints against Guild. Some were petty grievances
about Guild’s changes to City practices or took issue with

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No. 22-1013 3
Guild’s managerial style. Kingman complained, for example,
that Guild unnecessarily changed the office stationery and
preferred text messages over in-person communications.
Other contentions were more serious, such as Kingman’s al-
legation that Guild had deviated from the City’s “long-stand-
ing financial practices” and engaged in “political hit jobs”
against other Rhinelander public officials. Kingman memori-
alized his public remarks by submitting a “Declaration of No
Confidence” in Guild for the City Council’s consideration.
The City reacted by retaining two outside investigators to
evaluate Kingman’s allegations. Tensions within Rhine-
lander’s government escalated while the investigation pro-
gressed. In early April 2019, for instance, a group of fifteen
employees—including some of Kingman’s subordinates in
the Department of Public Works—submitted a competing
“Declaration of Full Confidence” in Daniel Guild. And at the
City Council’s April 22 meeting, eight current and former
Public Works employees implored the Council to address the
hostile work environment within their department and sub-
mitted written complaints to the same effect. None of the em-
ployees mentioned Kingman by name, but it was clear that he
was the chief source of their discontent.
Kingman did not take well to public criticism from his
own subordinates. In an initial email after the April 22 meet-
ing, he informed Mayor Frederickson and the City Council
president that he intended to issue verbal warnings to each
employee who voiced such concerns outside of the formal in-
ternal grievance process. Kingman also shared his view that
the employees’ complaints were evidence of ongoing retalia-
tion against him for speaking out against Guild at the March
City Council meeting.

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4 No. 22-1013
In a follow-up email a few days later, Kingman went fur-
ther and suggested that Guild stirred others to complain. He
also reiterated that he did not think the employees’ chosen
course of action was acceptable and asked City leadership
whether he should proceed with the proposed discipline.
Even more, Kingman worked behind the scenes to pressure
Public Works supervisors to discipline—or even terminate—
the complaining employees.
The third-party investigators published three reports at
the end of May 2019: the first evaluated Kingman’s allegations
in the declaration of no confidence against Guild; the second
assessed Kingman’s contention that he was harassed and re-
taliated against for that declaration; and the third addressed
the Public Works employees’ complaints about the hostile
work environment within their department.
The third report proved most problematic for Kingman. It
confirmed that each of the Public Works employees who
spoke at the April 22 City Council meeting was complaining
about Kingman, and that their complaints reflected a wider
disagreement with Kingman’s managerial style and tenden-
cies towards micromanagement, threatening and yelling at
employees, and using foul language in the workplace. The re-
port further found that Kingman demanded—“not just in an
isolated burst of poor judgment, but consistently over a three-
day period”—that Public Works supervisors discipline or fire
the employees involved in making the public complaints. In
light of these findings, the investigators recommended that
Kingman be placed on immediate administrative leave pend-
ing further consideration by the City Council. Mayor Freder-
ickson accepted the recommendation and placed Kingman on
leave on June 3.

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No. 22-1013 5
The investigators presented their findings to the City
Council in closed session in early June and, at its June 24 meet-
ing a few weeks later, the City Council afforded Kingman a
chance to respond. The City Council then put Kingman’s con-
tinued employment to a vote. It split four to four, with Mayor
Frederickson casting the tiebreaking fifth vote in favor of
Kingman’s termination.
Mayor Frederickson informed Kingman of the City Coun-
cil’s decision in a letter dated June 25, 2019. Though brief, the
letter highlighted Kingman’s attempt to “improperly disci-
pline and/or terminate employees of [his] department for
providing public comment at an April Council meeting” and
explained that a majority of the councilmembers “did not find
[Kingman’s] explanation at the private conference” denying
the allegations against him “to be convincing or consistent.”
B
Several months later, Kingman invoked 42 U.S.C. § 1983
and filed this First Amendment and age-based retaliation law-
suit against the City of Rhinelander, Mayor Chris Frederick-
son, the councilmembers who voted in favor of his termina-
tion, and City Administrator Daniel Guild.
Discovery ensued and in time the defendants moved for
summary judgment on Kingman’s claims. In the district
court’s assessment, Kingman had not done enough to survive
summary judgment on his First Amendment retaliation
claim. Based on the evidence in the record, the court con-
cluded that because Kingman spoke as a City employee on an
issue of only personal interest rather than a broader matter of
public concern, his speech received no protection under the
First Amendment. The district court further determined that,

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6 No. 22-1013
even if his speech was protected, Kingman failed to rebut the
defendants’ evidence that the City Council fired him because
of his attempt to retaliate against Public Works employees,
not his critical speech at the March 2019 meeting.
The district court’s analysis of Kingman’s age discrimina-
tion claim also turned on causation. Nothing in the record
suggested that the City Council fired Kingman because of his
age, and to the extent that his claim focused on perceived re-
taliation for filing a complaint with the EEOC, he presented
no evidence of a causal link between the City Council’s
knowledge of the complaint and its decision to terminate him.
Kingman now appeals, urging us to reverse the district
court’s resolution of his First Amendment retaliation claim.
II
A
Kingman asks us to take our own independent look at the
summary judgment record and contends that, based on the
evidence before it, the district court was wrong to conclude
that his complaints about Guild were both constitutionally
unprotected and unrelated to his firing. In pressing this posi-
tion, Kingman spills substantial ink recounting the events that
played out within Rhinelander’s city government from the fall
of 2018 through his termination in June 2019 and beyond. He
likewise devotes considerable space to outlining the relevant
First Amendment legal framework governing public employ-
ees and emphasizing the difficult line drawing between pro-
tected and unprotected speech that often presents itself in this
area of law.
But all along Kingman stops short of grappling with a re-
ality in the summary judgment record that was before the

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No. 22-1013 7
district court and is before us now on appeal: the lack of evi-
dence that would allow a jury to conclude that the City termi-
nated him for any reason other than his own workplace mis-
conduct.
B
All agree that government employees do not sign away
their free speech rights when answering the call to public ser-
vice. To the contrary, the First Amendment tolerates “only
those speech restrictions that are necessary for [government]
employers to operate efficiently and effectively.” Garcetti v.
Ceballos, 547 U.S. 410, 419 (2006). The “threshold inquiry” in
this area, the Supreme Court has emphasized, focuses on “the
nature of the speech at issue.” Kennedy v. Bremerton Sch. Dist.,
No. 21-418, slip op. at 15 (U.S. June 27, 2022). If a public em-
ployee speaks pursuant to his “official duties,” the First
Amendment “generally will not shield the individual from an
employer’s control and discipline because that kind of speech
is—for constitutional purposes at least—the government’s
own speech.” Id. (citing Garcetti, 547 U.S. at 421).
On the other hand, if the government employee speaks as
a private citizen on a matter of public concern, the Free Speech
inquiry is more complex and requires courts to go the added
step of “engag[ing] in ‘a delicate balancing of the competing
interests surrounding the speech and its consequences.’” Id.
(quoting Garcetti, 547 U.S. at 423). The Supreme Court has ar-
ticulated the requisite balancing in Connick v. Myers, 461 U.S.
138, 147 (1983), and Pickering v. Board of Education, 391 U.S. 563
(1968).
These principles govern courts’ analysis of the initial ele-
ment of a First Amendment retaliation claim: whether a

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8 No. 22-1013
public employee engaged in constitutionally protected
speech. See Harnishfeger v. United States, 943 F.3d 1105, 1112–
13 (7th Cir. 2019). To make out the rest of a prima facie case,
the plaintiff must also present evidence that he suffered a
“deprivation likely to deter free speech” and that his em-
ployer’s decision to take an adverse action against him was
motivated, at least in part, by that constitutionally protected
speech. George v. Walker, 535 F.3d 535, 538 (7th Cir. 2008).
“As articulated by our case law,” this latter element
“amounts to a causation inquiry” requiring the plaintiff to
“show that [his] protected conduct was a substantial or moti-
vating factor in the employer’s decision.” Massey v. Johnson,
457 F.3d 711, 716–17 (7th Cir. 2006); Harnishfeger, 943 F.3d at
1113–14. A plaintiff may rely on either direct, “so-called
smoking gun” evidence, or more circumstantial proof, “such
as the timing of events or the disparate treatment of similar
individuals” to do so. Massey, 457 F.3d at 717.
If the plaintiff makes the threshold causation showing, the
burden shifts to the government employer to produce evi-
dence that it would have fired the plaintiff even in the absence
of the protected speech. Id. (citations omitted) (“In other
words, the defendants may show that retaliation was not the
but-for cause for the firing.”); McGreal v. Vill. of Orland Park,
850 F.3d 308, 313–14 (7th Cir. 2017) (explaining that if the
plaintiff makes an initial showing of retaliatory motive, the
burden shifts to the defendants “to provide a legitimate and
nonretaliatory explanation for the firing”). If the employer
carries that burden, a plaintiff must persuade the factfinder
that the defendant’s proffered reasons were pretextual. See id.
at 314.

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No. 22-1013 9
C
Determining whether the Free Speech Clause protected
Kingman’s complaints about Daniel Guild at the March 2019
City Council meeting is not an easy task. The proper analysis,
we have explained, depends on the “content, form, and con-
text of the contested statement, as revealed by the whole rec-
ord.” Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004) (cleaned
up). The context before us here is not a large urban area like
Chicago or an expansive department or agency like the De-
partment of Defense, but instead a small town in the middle
of America—the City of Rhinelander, Wisconsin. This matters
for measuring the relevant inquiries.
Even in the context of a small, rural town like Rhinelander,
the district court thought Kingman’s speech fell outside the
First Amendment. In its view, Kingman’s declaration of no
confidence, by its terms, reflected a complaint by one em-
ployee against another up the supervisory chain of com-
mand—a fact suggesting that Kingman was complaining in
his capacity as a City employee, not as a private citizen. Even
more, the district court continued, Kingman’s grievances fo-
cused primarily on Guild’s management style, availability to
other City employees, and administrative choices—concerns
that may have impacted Kingman’s experience as an em-
ployee, but which were not of import to the public at large.
The district court’s perspective is plenty reasonable.
But other facts may point in a different direction. Recall
that Kingman’s declaration of no confidence and accompany-
ing remarks made the point, albeit without elaboration, that
Guild had deviated from the City’s long-standing financial
practices and had engaged in political hit jobs against other
elected and career public officials. Kingman presented

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10 No. 22-1013
evidence that these issues had been the subject of local news
coverage, suggesting a broader public interest in that infor-
mation. See Spiegla, 371 F.3d at 936 (“While not dispositive of
whether speech relates to a matter of public concern, the fact
that the press takes interest in the matter is relevant to the de-
termination.”). He also chose to air his concerns in the public
session of the City Council’s meeting, rather than privately
with individual councilmembers or in a closed session—a fact
suggesting he intended to speak as a private citizen on a mat-
ter of concern to his fellow Rhinelander residents. It is not dif-
ficult to see aspects of Kingman’s speech as potentially wor-
thy of First Amendment protection.
Our only point here is to observe that the summary judg-
ment record contains evidence cutting in both directions on
the threshold question of the nature of Kingman’s speech. In
the end, we do not need to resolve the question, for the sum-
mary judgment record is clear that, no matter whether the
First Amendment protected Kingman’s speech, it was not his
complaining about Daniel Guild that cost him his job. See La-
vite v. Dunstan, 932 F.3d 1020, 1031 (7th Cir. 2019). The una-
voidable conclusion from the evidence before the district
court is that the City Council voted to fire Kingman because
of his own workplace misconduct.
D
Remember Kingman’s burden. Even if the First Amend-
ment protected his complaints, to survive summary judgment
he had to come forward with some evidence that his speech
was “at least a motivating factor in the [City’s] decision to take
the retaliatory action” of firing him. McGreal, 850 F.3d at 312
(citation omitted).

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No. 22-1013 11
A plaintiff may create a triable causation issue by demon-
strating that an adverse employment action followed “close
on the heels” of his protected speech. Kidwell v. Eisenhauer, 679
F.3d 957, 966 (7th Cir. 2012). When a plaintiff relies solely on
a suspicious timing argument, however, “the time period be-
tween the protected activity and the adverse action must be
very close”—typically a period of days, not weeks or months.
Id. (cleaned up).
Here, three months separate Kingman’s public criticism of
Guild and his termination. In Kingman’s view, an escalating
pattern of snubs, hostility, and maneuvering to push him out
the door bridges that temporal gap and demonstrates that his
June 2019 firing was still causally related to his March 2019
speech. This argument is akin to the one we found unconvinc-
ing in Kidwell. 679 F.3d at 966–69 (concluding that five post-
speech incidents leading up to his termination did “not give
rise to an inference that [the plaintiff’s] speech was a motivat-
ing factor in any of the employment actions taken against
him”).
But even accepting, as the district court did, that the tim-
ing of Kingman’s firing was suspicious, the causation analysis
must go further. Kingman’s initial showing that his speech
was a motivating factor for his termination does not, without
more, warrant his claim proceeding to trial. Instead, it places
the onus on the defendants to offer evidence that Kingman
would have been terminated even absent his speech.
The defendants explain they have done just that. Recall
that the independent investigators’ third report concluded
that Kingman intended to retaliate against those Public
Works employees who publicly complained about the toxic
work environment that he created through his abusive

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12 No. 22-1013
managerial style. City councilmembers testified during depo-
sitions that they found the report credible and Mayor Freder-
ickson’s termination letter informed Kingman that a majority
of the City Council concluded that his justifications for his be-
havior lacked credibility. Nothing in the summary judgment
record indicates that Kingman’s complaints about Guild were
a part of the conversation.
This evidence severs any causal connection between King-
man’s speech and his termination. Kingman’s attempt to dis-
cipline or terminate his subordinates for their public com-
ments is just the type of “significant intervening event” and
seriously “inappropriate workplace behavior” that we have
said may separate an employee’s protected activity “from the
adverse employment action he receives.” Kidwell, 679 F.3d at
967 (citations omitted). Here, as in Kidwell, the evidence sup-
ported the City’s contention that Kingman’s “own aberrant
actions or other intervening circumstances”—not his public
comments several months prior—are what “led to the nega-
tive responses that he incurred.” Id. In short, Kingman’s own
misconduct between March and May 2019 constituted a legit-
imate, non-retaliatory reason for his dismissal.
If Kingman identified some evidence showing that the ex-
planation for his termination was pretextual, “the persuasive-
ness of [the] employer’s non-retaliatory explanation” would
be for a factfinder to assess. Massey, 457 F.3d at 719; Sweet v.
Town of Bargersville, 18 F.4th 273, 278 (7th Cir. 2021). But he
points to nothing in the record that a jury could reasonably
rely on to conclude that the City Council’s justifications are
pretextual, so “the court can say without reservation that a
reasonable finder of fact would be compelled to credit the em-
ployer’s case on this point.” Massey, 457 F.3d at 719 (citation

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No. 22-1013 13
omitted). Kingman’s unsupported speculation that Mayor
Frederickson and Guild rigged the investigation against him
does not cut it. Nor is it enough for Kingman to observe that
he never followed through with any of his threats to discipline
any Public Works employee for a public complaint. Neither
point constitutes evidence which could lead “a rational juror
[to] question the sincerity of the individuals who actually
made the decision to terminate [him].” Id. at 720.
One final note on another gap in Kingman’s causation the-
ory. The unifying theme of the summary judgment evidence
and briefing in this case is the interpersonal conflict between
Timothy Kingman and Daniel Guild. Their feud began almost
immediately after Guild became City Administrator in the fall
of 2018 and continued, perhaps with increasing intensity,
through Kingman’s public declaration of no confidence and
the several months of fallout that followed in early 2019. It
may be that Guild was “out to get” Kingman or, at the very
least, was unwilling or unable to work productively with him
after Kingman’s public criticism. Id. As in Massey, however,
the “fatal flaw” in Kingman’s heavy reliance on Guild’s po-
tential retaliatory motive is that Guild “did not have authority
over [Kingman’s] employment,” and none of the evidence in
the record would permit a jury to reasonably infer that Guild
took any tangible steps to “influence the individuals who
did.” Id.
For these reasons, we AFFIRM.

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