International Association of Fire Fighters, Local 365 v. CITY OF EAST CHICAGO and ANTHONY COPELAND

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1708
I NTERNATIONAL A SSOCIATION OF
F IRE F IGHTERS, LOCAL 365, et al.,
Plaintiffs-Appellees,
v.
C ITY OF EAST C HICAGO and
A NTHONY C OPELAND,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 21-cv-00154 — Philip P. Simon, Judge.
____________________
A RGUED NOVEMBER 7, 2022 — DECIDED D ECEMBER 21, 2022
____________________
Before F LAUM , EASTERBROOK, and S T. EVE, Circuit Judges.
ST. EVE, Circuit Judge. The plaintiffs in this case are thirty-
eight firefighters and their union, International Association of
Fire Fighters, Local 365 (collectively, the “Fire Fighters”).
They sued the City of East Chicago, Mayor Anthony
Copeland, and former East Chicago Fire Chief Anthony
Serna, alleging that the defendants implemented an

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2 No. 22-1708
undesirable work schedule in retaliation for their protected
First Amendment activity. The Fire Fighters filed a motion for
a preliminary injunction, which the district court granted af-
ter full briefing and a two-day hearing. In a combined opinion
and order, the district court ordered the City to “immediately
begin the process of reinstating the” old work schedule and
gave the City until April 18, 2022, to implement the change.
The City and Copeland appealed the decision.1 On appeal,
they challenge several of the district court’s findings of fact,
contend that the court applied improper preliminary injunc-
tion standards, and argue that the court failed to consider cer-
tain state statutes giving the mayor and fire chief control over
the Fire Fighters’ work schedules. For the reasons below, we
affirm.
I. Background
A. Factual History
Anthony Copeland, a former firefighter of twenty-six
years, was elected mayor of the City of East Chicago in 2010.
He ran on a campaign to reduce corruption, obtain financial
stability, and increase the quality of life in the City. Shortly
after he was elected, Copeland implemented certain cost-cut-
ting measures to address the City’s deficit. One such effort
was freezing the salaries and benefits of East Chicago fire-
fighters, including abolishing terminal leave, freezing longev-
ity pay and grade pay, and eliminating the payout of leave
banks for firefighters hired after 2010.
1 Because Serna did not join the appeal, we use the term “appellants”
when referring to the City and Copeland and the term “defendants” when
referring to the City, Copeland, and Serna.

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No. 22-1708 3
In 2019, Copeland ran for reelection. The Fire Fighter’s po-
litical action committee actively and publicly endorsed
Copeland’s opponent for mayor, as well as several candidates
who opposed Copeland’s policies for positions on East Chi-
cago’s legislative body, the Common Council. Copeland was
reelected but so were six of the Common Council candidates
who the Fire Fighters endorsed. Several firefighters protested
at Copeland’s inauguration, which Copeland found to be
“disrespectful.”
In August of that year, Union President David Mata and
the Common Council worked together to draft a salary ordi-
nance that would return some of the benefits that Copeland
froze in 2010. The Council read the draft salary ordinance at
its September 2019 public safety meeting for discussion and
amendment. After another draft, the public safety committee
passed the ordinance by a vote of 7-0. The Council later
passed the ordinance by a 5-4 vote, but Copeland vetoed the
ordinance. The Council was unable to override the veto, and
the ordinance was never passed.
Sometime after the September 2019 public safety meeting,
Copeland directed then-Fire Chief Anthony Serna to develop
a new schedule for the East Chicago Fire Department. At the
time, the Fire Department utilized the same work schedule
used by most other fire departments in the country—the 24/48
work schedule, whereby a firefighter would be on-duty for
twenty-four hours and then off-duty for the next forty-eight
hours. Serna proposed two alternative work schedules to
Copeland: (1) an 8/24 schedule, whereby a firefighter would
work eight hours and then be off twenty-four hours and (2) a
12/36 schedule, whereby a firefighter would work twelve

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4 No. 22-1708
hours and then be off thirty-six hours. Copeland decided to
implement the 8/24 work schedule.
No other fire department in the country has adopted the
8/24 schedule. Unlike the 24/48 system, where the firefighters
are on-duty the same hours every day that they work, the 8/24
schedule assigns the firefighters to different shifts every day.
A firefighter could, for example, work the day shift on one
day, the night shift the next day, and the graveyard shift the
day after. This rotating schedule wreaked havoc on the per-
sonal lives and wellbeing of the firefighters, making it diffi-
cult—if not impossible—for the firefighters to manage their
children’s regular schedules and establish consistent sleep
schedules. As a result, the firefighters experienced weight
gain, lack of sleep, irritability, and trouble concentrating.
The Union soon learned of the plan to modify the work
schedule. On November 2, 2019, Serna and Mata met at a local
Burger King to discuss the change. Mata secretly wore a wire
to the meeting and recorded the conversation.
During the discussion, Serna defended the decision to im-
plement the 8/24 work schedule. He explained that the sched-
ule change was in response to the Common Council’s and Un-
ion’s 2019 ordinance to unfreeze the firefighters’ salary and
benefits:
The 8-hour schedule and … all those moves are a reac-
tion to that original ordinance. So, to protect … the
public’s interest … moves that we are gonna make
now, in anticipation of that’s what the firefighters’ un-
ion and council is gonna do. They didn’t get to do it
this time. When the opportunity comes again, it’s
gonna happen. And so, these moves are in reaction to

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No. 22-1708 5
what we saw. It’s like a card game—poker. You
showed your hand. So we know what the hand is. So
in anticipation of what’s coming down the road, that’s
what these moves are right here.
Serna went on: “You can call it retaliation. And I’m gonna call
it—we know what it is you want, what you’re going for so we
have to prepare for that.” He again brought up the 2019 ordi-
nance, emphasizing that “[a]ll this is reactionary to the origi-
nal ordinance. Knowing what it is you’re going for we have to
be proactive instead of waiting til we can’t do anything about
it. We are being proactive.” He then stated that he and
Copeland believed the Fire Fighters were responsible for the
terms of the ordinance: “You’re in control of what [Common
Council member Robert Garcia] presents. You’re in control of
that. He gave you a blank sheet. I know this. … Everybody
knows it’s the firemen who wrote that. What I’m saying is that
original ordinance is what fucked this all up.”
On December 2, 2019, Serna and Mata met again, along
with then-Deputy Fire Chief Marc Escobedo, then-Union Vice
President Manual Paredes, and then-Union Secretary Mike
Widemann. At the meeting, the parties discussed a draft
memorandum of understanding, whereby the defendants
agreed to give up the proposed change to the 8/24 work
schedule in exchange for the Union’s agreement to give up its
right to lobby the Common Council. The document stated:
“The Local agrees that it will not meet with or have any dis-
cussion with any member of the East Chicago Common
Council in regards to the council’s pursuit of any ordinance
concerning the East Chicago Fire Department.” Copeland and
Serna took no part in drafting the memorandum of

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6 No. 22-1708
understanding; rather, it was Widemann who wrote the terms
of the agreement and sent the draft to Mata.
On December 3, 2019, the Union rejected the memoran-
dum of understanding. The very next day, Serna issued three
memoranda, which, among other things, discontinued the
24/48 schedule and implemented the 8/24 schedule. Over the
next several days, Copeland posted two Facebook posts dis-
cussing the change. He insisted in the first post that the new
work schedule was “not about retaliation [but] about effi-
ciency.” He wrote in the second post that the Union’s refusal
to sign the memorandum of understanding “le[ft] us with no
choice but to move on with the schedule change.”
Following the schedule change, the Union immediately
began to lobby the Common Council to pass an ordinance re-
instating the old policy. On December 23, 2019, the Common
Council passed Ordinance 19-0029, which set the firefighters’
work schedule back to the 24/48 schedule. Copeland vetoed
the ordinance, but the Council passed the ordinance over the
veto. Copeland then filed suit against the Common Council,
alleging that Ordinance 19-0029 violated his executive power
under Indiana law. On March 4, 2021, the Lake County Supe-
rior Court issued a decision agreeing with Copeland and
struck down the ordinance—leaving the 8/24 schedule in ef-
fect.
B. Procedural History
One month after the Lake County Superior Court decision,
the Fire Fighters filed this suit, alleging that the defendants’
implementation of the 8/24 work schedule was retaliation for
the Fire Fighters’ exercise of their First Amendment rights.
The Fire Fighters filed a motion for a preliminary injunction

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No. 22-1708 7
on July 30, 2021, requesting that the district court order the
defendants to revert to the 24/48 schedule during the pen-
dency of the case. The parties submitted briefing and con-
ducted limited discovery on the motion.
On October 7–8, 2021, the district court held a two-day
preliminary injunction hearing where it heard testimony from
Mata, Peredes, firefighter Angel Gilarski, and retired Assis-
tant Chief Carlos Aburto. Mata testified regarding the effects
of the new schedule on fire department staffing and work-
load. He stated that, following the implementation of the 8/24
schedule, firefighters quit and took off work far more fre-
quently than under the previous schedule. The overall num-
ber of line firefighters decreased from sixty-three to forty-
four, which increased the workload for the remaining fire-
fighters. According to Mata, there were only fourteen fire-
fighters available to man the fire engines, whereas, before the
schedule change, the minimum number of firefighters needed
to staff the engines was seventeen. Because of this staffing
shortage, the City removed one fire engine.
Mata also described the detrimental effects the new sched-
ule had on the firefighters’ personal lives and wellbeing. Un-
der the new policy, firefighters were no longer permitted to
trade shifts, making it difficult for them to arrange childcare.
Additionally, the irregular shift schedule disrupted their abil-
ity to maintain a regular sleep schedule, and this lack of sleep
negatively affected their ability to perform their jobs.
Next, Gilarski testified as to how the new schedule af-
fected her personally. She stated that her irregular work
schedule caused sleep deprivation and made it difficult for
her to manage her child’s routine. Gilarski also explained that
she and the Union feared further retaliation from the

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8 No. 22-1708
defendants and that, as a result, the Union felt the need to
scrutinize every decision it made.
Peredes echoed the concerns of Mata and Gilarski. He told
the court that the 8/24 work schedule negatively impacted his
sleep and mental health and that he began seeing a therapist
to help with these problems. Peredes eventually resigned
from the East Chicago Fire Department due to the new sched-
ule and now works for the Hobart Fire Department.
Lastly, Aburto testified regarding the benefits of the old
24/48 work schedule. He explained that the old schedule al-
lowed the firefighters to work and live together for twenty-
four hours at a time with no distractions. This allowed the
crew to learn each firefighter’s respective strength and weak-
ness and figure out which role each person should play. In
contrast, Aburto stated, the 8/24 work schedule does not give
the firefighters enough time together to learn the dynamics of
each particular crew or build comradery. Aburto also reiter-
ated the personal problems that the others discussed: he tes-
tified that the new schedule made it difficult for firefighters to
care for their kids or elderly parents or meet other family re-
sponsibilities.
On March 28, 2022, the district court issued a combined
opinion and order granting the Fire Fighters’ motion for a pre-
liminary injunction.2 It noted that, to be entitled to a
2 Typically, we require that a district court issuing a preliminary in-
junction file a “separate document setting forth the terms of such an in-
junction.” MillerCoors LLC v. Anheuser-Busch Cos., 940 F.3d 922, 922 (7th
Cir. 2019) (citation omitted); see also Fed. R. Civ. P. 65(d)(1). The district
court did not do so in this case, instead issuing a single opinion and order
containing both the injunction and its reasoning for its decision. Nonethe-
less, the district court’s opinion contains enough content to permit

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No. 22-1708 9
preliminary injunction, the Fire Fighters had to meet four re-
quirements: (1) they were likely to succeed on the merits of
their First Amendment retaliation claim; (2) they would suffer
irreparable harm without an injunction; (3) the balance of the
equities tipped in their favor; and (4) an injunction was in the
public interest. On the first element, the court found that the
Fire Fighters’ lobbying with the Common Council constituted
protected First Amendment activity and that this lobbying
was a motivating factor in the implementation of the 8/24
work schedule. The court further found that the defendants’
implementation of the 8/24 work schedule was likely to deter
free speech and that, under our caselaw, this satisfied the ir-
reparable harm element. Additionally, the court found that,
without an injunction, the firefighters working under the
schedule would continue to experience physical and psycho-
logical harms like sleep deprivation, weight gain, and irrita-
bility. Comparing this harm with the alleged cost-saving ben-
efits of the 8/24 schedule, the court determined that the bal-
ance of the equities tipped in favor of the Fire Fighters and the
injunction was in the public interest.
II. Analysis
Determination of whether a movant is entitled to a prelim-
inary injunction involves a multi-step inquiry. “As a threshold
matter, a party seeking a preliminary injunction must demon-
strate (1) some likelihood of succeeding on the merits, and (2)
that it has ‘no adequate remedy at law’ and will suffer ‘irrep-
arable harm’ if preliminary relief is denied.” Cassell v. Snyders,
effective enforcement. See Auto Driveaway Franchise Sys., LLC v. Auto Drive-
away Richmond, LLC, 928 F.3d 670, 676 (7th Cir. 2019). Accordingly, we
have appellate jurisdiction.

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10 No. 22-1708
990 F.3d 539, 544–45 (7th Cir. 2021) (quoting Abbott Labs. v.
Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992)). If the mo-
vant makes this showing, the district court must then consider
two additional factors: “the irreparable harm the non-moving
party will suffer if preliminary relief is granted, balancing that
harm against the irreparable harm to the moving party if re-
lief is denied” and “the public interest, meaning the conse-
quences of granting or denying the injunction to non-parties.”
Id. at 545 (quoting Abbott Labs., 971 F.2d at 11–12). The district
court must equitably weigh these four factors together to de-
termine if a preliminary injunction is warranted. Id.
When evaluating a district court’s grant of a preliminary
injunction, we review its “findings of fact for clear error, its
legal conclusions de novo, and its balancing of the factors for a
preliminary injunction for abuse of discretion.” Doe v. Univ. of
S. Ind., 43 F.4th 784, 791 (7th Cir. 2022) (citing D.U. v. Rhoades,
825 F.3d 331, 335 (7th Cir. 2016)). The appellants argue that
the court erred in its decision to issue a preliminary injunction
because the Fire Fighters failed to satisfy the first three ele-
ments for a preliminary injunction. Specifically, they argue
that (1) the district court clearly erred in making several fac-
tual determinations regarding whether the Fire Fighters were
likely to succeed on the merits; (2) it applied an incorrect
standard in determining that the Fire Fighters would suffer
irreparable harm without an injunction; and (3) it failed to
consider relevant state law when balancing the potential
harm to the parties. For the reasons below, these arguments
are unpersuasive.
A. Likelihood of Success on the Merits
“[G]overnment employees do not sign away their free
speech rights when answering the call to public service.”

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No. 22-1708 11
Kingman v. Frederickson, 40 F.4th 597, 601 (7th Cir. 2022). To
make out a prima facie case of First Amendment retaliation,
the plaintiff must “show that: (1) he engaged in constitution-
ally protected speech; (2) he suffered a deprivation likely to
deter him from exercising his First Amendment rights; and (3)
his speech was a motivating factor in his employer’s adverse
action against him.” Cage v. Harper, 42 F.4th 734, 741 (7th Cir.
2022). Once the plaintiff makes that showing, “the burden
shifts to the government employer to produce evidence that it
would have [taken the disputed action] even in the absence of
the protected speech.” Kingman, 40 F.4th at 601. “If the em-
ployer carries that burden, a plaintiff must persuade the fact-
finder that the defendant’s proffered reasons were pre-
textual.” Id. at 602.
The district court found that the Fire Fighters were likely
to succeed on the merits of their First Amendment retaliation
claim. On the first element, it found that the Fire Fighters’
communications with the Common Council constituted pro-
tected First Amendment activity—rejecting the defendants’
contention that the Fire Fighters’ lobbying concerned only
their own private interests. Turning to the second element, the
district court found that the Fire Fighters’ political speech was
a motivating factor in the schedule change. It concluded that
certain of Serna’s and Copeland’s statements supported its
conclusion and that, contrary to the defendants’ representa-
tions, there was no evidence suggesting that the 8/24 work
schedule was expected to result in substantial cost-savings for
the City. Lastly, the district court found—based on Gilarski’s
testimony from the preliminary injunction hearing—that the
change in schedule was likely to deter the Fire Fighters from
exercising their First Amendment rights in the future.

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12 No. 22-1708
The appellants challenge the court’s conclusion that the
Fire Fighters’ speech was a motivating factor in the schedule
change. In doing so, they take issue with three of the district
court’s factual findings: (1) its finding that Serna told Mata at
the November 2, 2019, meeting at the local Burger King that
the 8/24 work schedule was implemented as retaliation for the
Fire Fighters’ political activity; (2) its finding that Copeland
implemented the 8/24 work schedule in response to the Fire
Fighters’ refusal to sign the memorandum of understanding;
and (3) its finding that there was no evidence of any cost-sav-
ings due to the implementation of the 8/24 schedule.
We disagree on all fronts. Our review of a district court’s
findings of fact is for clear error, a standard that is “highly
deferential” to the district court. Goodpaster v. City of Indianap-
olis, 736 F.3d 1060, 1070 (7th Cir. 2013). We will find clear error
only where “after considering all the evidence, we cannot
avoid or ignore a definite and firm conviction that a mistake
has been made.” United States v. Mercado, 53 F.4th 1071, 1085
(7th Cir. 2022). That is not the case here. There is sufficient
evidence in the record, from the parties’ filings and the two-
day hearing, to support the district court’s findings.
1. Serna’s Statements at the Burger King Meeting
The district court found that Serna’s statements at the No-
vember 2, 2019, Burger King meeting suggested that the de-
fendants were motivated by the Fire Fighters’ lobbying activ-
ity to implement the new work schedule. At the meeting,
Serna told Mata:
The 8-hour schedule and . . . all those moves are a re-
action to that original ordinance. So, to protect . . . the
public’s interest . . . moves that we are gonna make

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No. 22-1708 13
now, in anticipation of that’s what the firefighters’ un-
ion and council is gonna do. They didn’t get to do it
this time. When the opportunity comes again, it’s
gonna happen. And so, these moves are in reaction to
what we saw. It’s like a card game—poker. You
showed your hand. So we know what the hand is. So
in anticipation of what’s coming down the road, that’s
what these moves are right here.
Serna also stated: “You can call it retaliation. And I’m gonna
call it: We know what it is you want—what you’re going for—
so we have to prepare for that.” The district court did not
clearly err in determining that these comments support that
the defendants’ actions were in response to the Fire Fighters’
work with the Common Council.
The appellants’ arguments do not warrant a different con-
clusion. They first contend that the district court clearly erred
when it found that Serna told Mata that “it was payback
time.” But the appellants misread the district court’s opinion.
Although the opinion states that “Chief Serna told Mata it was
payback time,” the court did not find that Serna used the spe-
cific phrase “payback time” at the meeting. Rather, the district
court evaluated all of Serna’s statements at the meeting and
concluded that the overall takeaway of the conversation was
that the schedule change was “payback” for the ordinance.
This much is clear from the court’s use of quotation marks in
its opinion when referring to Serna’s exact statements. The
phrase payback time was not in quotes because it was merely
a summary of Serna’s statements.
The appellants also suggest that the district court clearly
erred because Serna never stated that the schedule change
was retaliation during the meeting. This argument holds no

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14 No. 22-1708
water. There is no magic language requirement for First
Amendment retaliation claims. Even without using the term
“retaliation,” Serna suggested with thinly veiled euphemisms
that the defendants retaliated against the Fire Fighters. He
stated that “[t]he 8-hour schedule [was] a reaction to that orig-
inal ordinance”; that “[a]ll this is reactionary to the original or-
dinance”; and that “these moves [were] in reaction to what we
saw.” He even told Mata that he “c[ould] call it retaliation.”
Next, the appellants argue that the district court failed to
properly consider certain of Serna’s statements that, they con-
tend, demonstrate that the new work schedule was not moti-
vated by the Fire Fighters’ lobbying, but rather by the 2019
ordinance and the desire to protect the public interest. The ap-
pellants, however, identify statements that make up only a
small portion of the conversation between Serna and Mata.
And when heard in context, they further support the district
court’s conclusion that the Fire Fighters’ lobbying efforts were
a motivating factor in the implementation of the 8/24 work
schedule. For example, the appellants maintain that they im-
plemented the schedule change because of the 2019 ordi-
nance, but Serna made it clear that he understood the ordi-
nance to be a direct result of the Fire Fighters’ political activ-
ity:
Serna: You’re in control of what [Robert Garcia] pre-
sents. You’re in control of that. He gave you a blank
sheet. I know this. Okay, but whatever.
Mata: No.
Serna: So he wrote all that? He came up with that.
You’re telling me Robert came up with all that? You
know he didn’t. I know, everybody knows it’s the

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No. 22-1708 15
firemen who wrote that. What I’m saying is that origi-
nal ordinance is what fucked this all up.
Given the conversation as a whole, the district court did not
clearly err in finding that Serna’s statements supported the
conclusion that the Fire Fighter’s lobbying efforts were a mo-
tivating factor in the implementation of the 8/24 work sched-
ule.
Lastly, the appellants argue that the district court’s find-
ings are somehow clearly erroneous because they are “based
on the audio recording the Fire Fighters did not even want to
produce.” Whether and why the Fire Fighters delayed in pro-
ducing the recording, however, has no effect on the content of
that recording.3 The district court was able to evaluate Serna’s
statements for itself, and, as previously discussed, it did not
clearly err in doing so.
2. Memorandum of Understanding
The district court found that the discussions and events
surrounding the memorandum of understanding supported
the Fire Fighters’ position. According to Mata’s and Paredes’s
testimony during the preliminary injunction hearing, Serna
initiated the idea of a memorandum of understanding at the
December 2 meeting. Mata further testified that Serna reached
out to him after the meeting asking him for the signed mem-
orandum of understanding. And the day after the Union de-
clined to sign the memorandum of understanding, Serna is-
sued three memoranda implementing certain policy changes,
including the schedule change. Copeland also made two
3 The appellants do not suggest that there was a discovery violation
that should have resulted in the exclusion of the recording.

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16 No. 22-1708
Facebook posts within a few days of the Union’s decision not
to sign the memorandum of understanding. In his second
post, he stated that the Union’s refusal to sign the memoran-
dum of understanding “le[ft] us with no choice but to move
on with the schedule change.”
The appellants contend that the district court’s finding
was in error because Widemann, the secretary for the Union,
wrote the terms of the memorandum of understanding and
Copeland “played no role in drafting” the agreement. This ar-
gument is misguided, however, because the district court did
not base its findings on a mistaken belief that Copeland and
Serna were responsible for drafting the memorandum of un-
derstanding. Instead, it found that their statements suggested
that the implementation of the 8/24 schedule was a response
to the Fire Fighters’ refusal to sign the document. The fact that
Widemann drafted the terms of the document does not un-
dermine this finding.
Next, the appellants dispute the Fire Fighters’ characteri-
zation of the evidence and contend that the record forecloses
a finding that they imposed the schedule change because of
the Fire Fighters’ refusal to sign the memorandum of under-
standing. Serna told Mata about the schedule change a month
before the December 2 meeting, and according to the appel-
lants, this timing suggests that the decision to implement the
8/24 work schedule had been made before the memorandum
of understanding discussions. The appellants further contend
that the timing of the implementation of the policy change
(December 4) was not because of the rejection of the memo-
randum of understanding, but rather because the City sets va-
cation time and other paid time off at the end of the year.

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No. 22-1708 17
These arguments do not demonstrate that the district
court’s findings were clearly erroneous. Serna may have in-
formed Mata about the schedule change a month earlier, but
this change was not implemented until the day after the Un-
ion declined to sign the memorandum of understanding.
And, even if we accept that the City sets vacation time and
other paid time off at the end of the year, this does not explain
why the defendants decided to implement the schedule
change in early December, merely one day after the Union re-
jected the memorandum of understanding. It was reasonable
for the district court to infer from this timing that the Union’s
rejection of the agreement motivated the implementation of
the 8/24 policy. See Kingman, 40 F.4th at 601 (noting that cir-
cumstantial evidence includes “the timing of events”). Addi-
tionally supporting the district court’s finding is Copeland’s
second Facebook post, in which he stated that the Union’s re-
fusal to sign the agreement “le[ft] us with no choice but to
move on with the schedule change.”
Finally, the appellants argue that the district court clearly
erred because Copeland testified during the preliminary in-
junction hearing that he did not retaliate against the Union
because it would not sign the memorandum of understand-
ing. They also quote Copeland’s first Facebook post where he
states, “It’s not about retaliation. It’s about efficiency.” But
these are self-interested statements made by a defendant
whose credibility the district court was entitled to assess. Af-
ter considering the record as a whole, we cannot say that the
district court clearly erred in weighing the other evidence
above these statements.

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18 No. 22-1708
3. Alleged Cost-Savings of the 8/24 Work Schedule
The appellants next claim that the district court failed to
address Serna’s testimony regarding the cost-saving benefits
of the schedule change, estimating that the new schedule
“[wa]s saving probably about $200,000.” The district court did
address this evidence, however; it simply did not find the tes-
timony persuasive. In its opinion, the court acknowledged
what it referred to as the “conclusory statements from Chief
Serna,” but it emphasized that Serna never talked to the fi-
nance director, city comptroller, or anyone else about the cost-
savings of the 8/24 work schedule. We agree. What matters is
whether, at the time the schedule was enacted, the defendants
believed it would save money. The defendants’ inability to
produce such evidence ends the inquiry.
* * *
For the reasons above, the district court did not clearly err
in finding that the defendants’ implementation of the 8/24
schedule was motivated by the Fire Fighters’ lobbying activ-
ity. It therefore did not err in concluding that the Fire Fighters
were likely to succeed on the merits of their First Amendment
retaliation claim.
Before moving to the appellants’ next argument, we pause
to emphasize one thing: that is, what makes the Fire Fighters’
claim likely to succeed on the merits here is unrelated to the
fact that the defendants rejected the Fire Fighters’ lobbying
campaign. We recognize that “[p]olitical life has winners and
losers,” and we do not suggest that “[t]he first amendment …
ensure[s] that every lobbying campaign will prevail.” Kelsey
v. Sheehan, No. 01-1718, 2001 WL 1173166, at *1 (7th Cir. Oct.
2, 2001). An elected official who disagrees with a citizen or

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No. 22-1708 19
organization concerning the proper course of action is well
within his rights to act against that citizen’s or organization’s
wishes. Accordingly, if the defendants had adopted the 8/24
policy for cost-cutting reasons as they claim, such a decision
would have been entirely proper. But the fact that the defend-
ants could have adopted the 8/24 policy in some circumstance
does not mean that they were permitted to do so in this cir-
cumstance. See Spiegla v. Hull, 371 F.3d 928, 941 (7th Cir. 2004),
vacated on other grounds, 481 F.3d 961 (7th Cir. 2007).
B. Irreparable Harm
In addition to showing a likelihood of success on the mer-
its, plaintiffs seeking a preliminary injunction must also show
that, absent an injunction, they will suffer irreparable harm.
The district court found that the Fire Fighters met this burden,
crediting Gilarski’s testimony that she and other members of
the Union were deterred from exercising their First Amend-
ment rights following the schedule change. Independent of
the First Amendment harm, the district court also found that
the Fire Fighters suffered irreparable harm in the form of
physical and psychological injury from the imposed schedule.
On appeal, the appellants dispute both findings. We ad-
dress each in turn.
1. First Amendment Harm
Under Seventh Circuit law, irreparable harm is presumed
in First Amendment cases. Christian Legal Soc’y v. Walker, 453
F.3d 853, 859 (7th Cir. 2006). The district court concluded that
the defendants punished the Fire Fighters for exercising their
First Amendment rights and that these injuries constituted ir-
reparable harms satisfying the preliminary injunction re-
quirement. The appellants contend that the district court

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20 No. 22-1708
applied “an incorrect preliminary injunction standard” and
that this presumption does not apply because “the Fire Fight-
ers’ speech was not deterred.” In support, they point to testi-
mony from the Fire Fighters’ witnesses, admitting that they
engaged in various forms of political activity following the
schedule change.
We disagree. The record supports the district court’s find-
ing that the implementation of the 8/24 work schedule de-
terred at least some political activity. During the preliminary
injunction hearing, Gilarski testified that, after the schedule
change, she and others were afraid to engage in any kind of
politics—including posting on social media, talking to the
newspaper, or lobbying the Common Council—for fear of an-
other adverse policy change. She stated that the Fire Fighters
began to “scrutinize” “[e]very decision that [they] ma[d]e as
a union,” asking whether such action would be subject to re-
taliation. And because of this fear of retaliation, Gilarski testi-
fied, the Union decided not to engage in certain actions or
speak out about certain issues. The district court found this
testimony credible, and it is sufficient to show the Fire Fight-
ers were deterred from exercising their First Amendment
rights. See Spiegla, 371 F.3d at 941 (holding that an “unfavora-
ble change in schedule” could be an adverse action sufficient
to deter the exercise of free speech).
That the Fire Fighters continued to engage in some political
activity does not foreclose their contention that they were de-
terred from engaging in other activities. A loss is a loss: the
Fire Fighters need not show total deprivation to meet the ir-
reparable harm element for a preliminary injunction. As the
Supreme Court has stated, “[t]he loss of First Amendment
freedoms, for even minimal periods of time, unquestionably

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No. 22-1708 21
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347,
373 (1976).
The appellants also contend, citing this Court’s decision in
Shaffer v. Globe Protection, Inc., 721 F.2d 1121, 1123 (7th Cir.
1983), that the Fire Fighters’ eighteen-month delay in apply-
ing for a preliminary injunction dooms their motion. In Shaf-
fer, we affirmed the district court’s refusal to grant the plaintiff
injunctive relief, in part, because she “wait[ed] two months
after the … denial of class action to make the request.” Id. The
appellants similarly contend the Fire Fighters’ “delay is in-
consistent with a claim of irreparable injury.” Id.
But that is not the whole story. Immediately after Serna
announced the schedule change, the Fire Fighters began to
lobby the Common Council to pass an ordinance to reinstate
the 24/48 work schedule, as well as meet with Copeland to
negotiate the issue. During the time between the implementa-
tion of the new schedule and the filing of this suit, the Fire
Fighters succeeded in getting the ordinance drafted, passed,
and passed again over Copeland’s veto. Their efforts were ul-
timately undone when the Lake County Circuit Court struck
down the ordinance. Within a month of that decision, how-
ever, the Fire Fighters filed this suit.
The Fire Fighters’ actions do not suggest lack of irrepara-
ble harm. As the district court acknowledged, “the firefighters
can [hardly] be criticized for first trying to negotiate their way
out of this onerous schedule before resorting to the courts for
relief.” Although the Fire Fighters did not immediately file
suit, they swiftly worked—on multiple fronts—to change
their work schedules back to the 24/48 system. These actions
signaled to the defendants that the Fire Fighters were dissat-
isfied with the change and would work to undo it. See Ty, Inc.

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22 No. 22-1708
v. Jones Grp., Inc., 237 F.3d 891, 903 (7th Cir. 2001) (“Whether
the defendant has been lulled into a false sense of security or
had acted in reliance on the plaintiff’s delay influences
whether we will find that a plaintiff’s decision to delay in
moving for a preliminary injunction is acceptable or not.”) (ci-
tation and internal quotation marks omitted). These actions
also distinguish this case from Shaffer, where the plaintiff
waited until two months after the denial of class certification
to file her motion for a preliminary injunction, doing nothing
in the meantime to resolve her problem. 721 F.2d at 1123.
2. Physical and Psychological Harms
Independent of the First Amendment harms, the district
court found that the Fire Fighters were likely to suffer other
irreparable harms without an injunction. Specifically, it found
that the 8/24 work schedule “had deleterious effect[s]” on the
Fire Fighters, resulting in sleep problems, “weight gain, trou-
ble concentrating, … irritability,” and difficulty obtaining re-
liable childcare or eldercare. The appellants fail to address
this point in their opening brief. And although they discuss
the issue in their reply brief, by that point, their arguments are
waived. See Griffin v. Bell, 694 F.3d 817, 822 (7th Cir. 2012)
(“[A]rguments raised for the first time in a reply brief are
deemed waived.”).
In any event, the district court did not clearly err in finding
that the Fire Fighters suffered physical and psychological
harm from the schedule change. During the preliminary in-
junction hearing, several of the Fire Fighters’ witnesses credi-
bly testified regarding the harms they experienced as a result
of the new schedule. Mata, Gilarksi, and Peredes testified that
the 8/24 schedule hindered the firefighters’ ability to maintain
a regular sleep schedule, negatively affecting their work

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No. 22-1708 23
performance and mental health. In fact, Peredes told the court
that, due to these mental health issues, he eventually resigned
from the East Chicago Fire Department and now works for a
different fire department. Additionally, Mata, Gilarksi, and
Aburto explained that the irregular schedule made it difficult
to satisfy familial obligations, for example, managing the
schedules of their children or elderly parents.
The appellants describe these harms as “speculative at
best” and criticize cherry-picked testimony from the Fire
Fighters’ witnesses in an attempt to undermine their claimed
injuries. The appellants argue, for example, that Gilarski’s al-
leged harms could not have been serious because she did not
seek treatment for any physical or psychological issues. But
seeking treatment is not a mandatory condition to establish
harm, and the district court found that Gilarski credibly testi-
fied as to the numerous ways the 8/24 work schedule nega-
tively affected her personally and professionally. Although
the appellants also point out that Mata testified that he was
still able to find times to sleep during the 8/24 work schedule,
Mata stated that he was unable to establish a consistent sleep
schedule because of the unpredictability of his shifts under
the new policy. To this end, Mata stated that, under the 8/24
schedule, his sleep pattern “became irregular” and that he
didn’t “have a set time” to “go to bed because [he was] work-
ing a different shift every day.”
C. Balancing of the Equities
The appellants’ last argument is that the district court
erred when it ignored relevant Indiana statutes granting
Copeland and Serna the exclusive right to set work schedules
for the East Chicago Fire Department. See Ind. Code § 36-4-9-
4(b) (establishing that “[t]he head of each city department or

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24 No. 22-1708
agency is under the jurisdiction of the executive”); id. § 36-8-
3-3(g) (stating that “the fire chief has exclusive control of the
fire department” and “[i]n time of emergency … the fire chief
[is] … subordinate to the city executive and shall obey the city
executive's orders and directions, notwithstanding any law or
rule to the contrary”).
As far as we can tell, the argument here is that the district
court abused its discretion when balancing the equities by
failing to consider Copeland’s and Serna’s interests in their
statutory authority over the fire department.4 They cite Bou-
cher v. School Board of School District of Greenfield, 134 F.3d 821,
823 (7th Cir. 1998), where we held that the district court erred
in granting a preliminary injunction prohibiting the defend-
ant school district from expelling the plaintiff. The plaintiff
had published an article teaching students how to hack into
school computers, and we reasoned that the injunction would
“undermin[e] the authority of the Board to take disciplinary
action for what it believed to be a serious threat to school
property.” Id. at 827. Because the district court failed to con-
sider this “substantial harm” in its analysis, we concluded
that it failed to “str[ike] a correct balance.” Id.
4 To the extent that the appellants’ argument is that the preliminary
injunction violates the Indiana statutes, this argument is obviously fore-
closed by the Supremacy Clause. See McHenry County v. Kwame Raoul, 44
F.4th 581, 587 (7th Cir. 2022) (“In cases where federal and state law conflict,
‘federal law prevails and state law is preempted.’”) (quoting Murphy v.
Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1476 (2018)). The Indiana stat-
utes may grant the mayor and fire chief exclusive authority over the fire
department, but this does not permit them to use that authority in viola-
tion of the First Amendment.

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No. 22-1708 25
The record here demonstrates that, without an injunction,
the Fire Fighters were likely to continue to suffer First
Amendment harms, as well as physical and psychological
harms, caused by the 8/24 schedule. These are serious injuries
that money damages cannot remedy. On the other side of the
scale is the speculative financial benefit of the 8/24 schedule
and the undefined harm to the statutory authority of
Copeland and Serna. There is little, if any, persuasive evi-
dence supporting these alleged harms: as previously dis-
cussed, the district court found that there was no credible ev-
idence of any cost-savings from the implementation of the
new schedule, and the appellants fail to point to any evidence
regarding their alleged statutory authority injury. In light of
this imbalance of evidence, it was not an abuse of discretion
for the district court to find that the “undocumented possibil-
ity that East Chicago might be saving money” was a “feather”
in comparison to the “anvil” of harms to the Fire Fighters.
III. Conclusion
For the reasons above, we find that the district court did
not err in determining that the defendants’ actions were mo-
tivated by the Fire Fighters’ First Amendment activity; that
there was no evidence that the 8/24 schedule was expected to
result in cost-savings for the City; and that the Fire Fighters
would suffer irreparable harms without an injunction. We ad-
ditionally find that the district court did not abuse its discre-
tion in balancing the equities in this case, considering the se-
verity of the harms the Fire Fighters have experienced and the
lack of evidence supporting the defendants’ alleged harms.
The decision of the district court is therefore
A FFIRMED.

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26 No. 22-1708
EASTERBROOK, Circuit Judge, concurring. Does political
payback violate the Constitution? The firefighters union,
which waged and lost a political battle, says that the answer
is yes if defeat can be called retaliation for political speech. By
that standard, many political decisions are unconstitutional,
and the judiciary will decide which policies promote the pub-
lic interest. The judge in this suit found that the Mayor’s deci-
sion made the public worse off, leading to an injunction re-
storing the former policy. It is hard to imagine a more direct
impingement on democratic governance.
Political losers often pay a price. Lobbyists may seek a
benefit for themselves or their clients, only to find that politi-
cal actors adopt a policy that makes them worse off. States re-
quest more money from Congress but get less because they
are on the losing side of a political fight. Sometimes the loss
would not have happened but for the lobbying, which may
have raised the issue’s political salience; sometimes it is just
the result of the lobbyist not having enough political muscle.
That is normal politics—and the Constitution is designed to
protect the normal institutions of democracy, not to condemn
them.
The Supreme Court has never held that a policy that
harms the losers in a political contest can be enjoined as a pen-
alty for speech, even though some Presidents mastered the art
of payback. (Robert Caro’s biography of Lyndon Johnson pre-
sents examples.) Penalties imposed on individual speakers
through ad hoc decisions can be set aside; that’s the burden of
the decisions cited at pages 10–11 of the majority’s decision.
Contrast Engquist v. Oregon Department of Agriculture, 553 U.S.
591 (2008). But a policy? Our case concerns a policy that affects
all of the City’s firefighters, only some of whom engaged in

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No. 22-1708 27
speech—and only some of whom opposed the Mayor’s pro-
gram. The Mayor’s supporters in the Fire Department have
been treated just like his opponents. Similarly, the terms of a
collective bargaining agreement may hurt members who
asked the union (or the governmental agency) to structure
workplace relations differently. I’m not aware of any author-
ity for the proposition that workers disappointed by the out-
come of the bargaining process can ask a court to adopt their
proposals on the ground that they suffered “retaliation” be-
cause they supported the losing side of the debate.
Forget local working conditions and think of recent na-
tional events. President Trump reversed many of President
Obama’s policies, including some about immigration and
medical care. Could former President Obama, and his sup-
porters, have sued to reinstate the policies on the ground that
President Trump was making the change to penalize speech
by Democrats? President Biden in turn reversed many of Pres-
ident Trump’s policies; is that a constitutionally forbidden
penalty on Republicans’ speech? New Presidents appoint
members to agencies, and it is common for a new majority at
the NLRB or some other agency to reverse policies adopted
during the previous Administration. Must a federal court de-
termine, as a matter of fact (after receiving evidence), whether
the political winner’s policies produce net public benefits, or
were expected to do so? The canonical question is whether
any rational basis can be imagined to support a policy, not
whether the policy is beneficial in fact. See, e.g., United States
v. Vaello Madero, 142 S. Ct. 1539 (2022); Box v. Planned
Parenthood of Indiana and Kentucky, Inc., 139 S. Ct. 1780 (2019);
Park Pet Shop, Inc. v. Chicago, 872 F.3d 495 (7th Cir. 2017); Na-
tional Paint & Coatings Ass’n v. Chicago, 45 F.3d 1124 (7th Cir.
1995). To recast the question as one of actual or intended

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28 No. 22-1708
benefit is to act as a council of revision, holding hearings and
deciding which rules and laws promote the public interest.
Democracy would be the loser in that transformation.
The background of the 8/24 policy, which my colleagues
describe, is not pretty. But much legislation is adopted in a
similar fashion. As Otto von Bismarck quipped, no one should
see how laws or sausages are made. Politicians understand
who wins and who loses from their decisions, which may be
petty and mean-spirited, designed to reward supporters and
penalize opponents. The losers will have been vocal and can
cry “retaliation.” Federal courts cannot superintend that pro-
cess, at the losers’ behest, without displacing elected officials
as the policy makers. Cf. United States v. Blagojevich, 794 F.3d
729, 735–38 (7th Cir. 2015) (rejecting a contention that logroll-
ing by a petty and mean-spirited Governor can be treated as
a form of fraud on the public).
But the City does not make an argument along these lines.
Our litigants, like the district judge, have assumed that what-
ever is true for retaliation against single speakers must be true
at the level of policies that affect larger groups. Instead of
denying the legal premise of the Union’s argument, the City
denies that politics played any role in the Mayor’s decision. It
maintains that the district judge erred when finding that the
Mayor changed the staffing schedule in response to the Un-
ion’s unsuccessful attempt to get higher wages and better ben-
efits from the Common Council. An appeal on that ground is
doomed, because none of the findings is clearly erroneous.
We pass only on the arguments made by the litigants. See
United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020). I agree
with my colleagues’ disposition of those arguments and join
the court’s opinion. But no one should assume from this

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No. 22-1708 29
decision that we have authorized district judges to review
other public policies to ascertain whether they do more good
than harm—or whether the persons who adopted the policies
expected them to have net benefits. Those are political ques-
tions for political actors rather than for judges who never need
to face the voters.

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