Peter Daza v. State of Indiana

                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 18‐3102
PETER DAZA,
                                                 Plaintiff‐Appellant,
                                 v.

STATE OF INDIANA, et al.,
                                              Defendants‐Appellees.
                     ____________________

         Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
         No. 17‐cv‐0316 — Jane Magnus‐Stinson, Chief Judge.
                     ____________________

  ARGUED SEPTEMBER 10, 2019 — DECIDED OCTOBER 24, 2019
                ____________________

    Before WOOD, Chief Judge, and KANNE and BRENNAN, Cir‐
cuit Judges.
   KANNE, Circuit Judge. After the Indiana Department of
Transportation (“INDOT”) fired Peter Daza from his position
as a geologist, Daza filed various claims against the State of
Indiana and INDOT employees, alleging that his firing was
unlawful. The district court granted summary judgment to
the defendants on all Daza’s claims. Daza appeals only the
grant of summary judgment on his claims under 42
2                                                    No. 18‐3102

U.S.C. § 1983. Those claims alleged that the defendants vio‐
lated his First Amendment rights by discriminating and retal‐
iating against him for his political activities and affiliation. Be‐
cause Daza has failed to show that any of his alleged pro‐
tected activities or political affiliation motivated his firing, we
affirm.
                          I. BACKGROUND
   Peter Daza began working for INDOT in 1993. During his
twenty‐two‐year tenure, he worked in INDOT’s Vincennes
District both as a geologist and as a supervisor. As a geologist,
Daza tested construction materials to ensure they complied
with INDOT standards. As a supervisor, Daza oversaw the
work of other INDOT employees.
   Daza had not received any formal discipline until after a
change in leadership that occurred in September 2009. At that
time, a former Republican Indiana State Representative, Troy
Woodruff, was appointed District Deputy Commissioner of
INDOT’s Vincennes District. Almost a year later, Woodruff
was promoted to Chief of Operations, and Woodruff’s friend,
Russell Fowler, replaced Woodruff as Vincennes’s Deputy
Commissioner.
    Daza alleges the political discrimination began two years
later, in 2011. INDOT employees learned that one of Daza’s
supervisees, Terry Goff, had posted political statements on his
private Facebook page. One employee asked Daza to speak
with Goff about the posts, expressing concern that the posts
might inhibit Goff’s ability to obtain a promotion.
   Later that year, in August 2011, Goff interviewed for and
was denied a promotion. Upset with this decision, Goff told
the Director of Technical Services, Valerie Cockrum, that he
No. 18‐3102                                                   3

felt disrespected by an interviewer who had texted during the
interview. But Daza had his own theory about why Goff did
not receive the promotion: politics. Daza voiced this concern
to Cockrum five days after Goff’s complaint, claiming that
Goff was consistently passed over for promotions because of
his connections to the Democratic party. Cockrum responded
that she would keep Daza’s complaint to herself, and she
commended Daza for his honesty and loyalty.
    Goff’s troubles continued throughout 2011. Daza, who
completed a performance appraisal of Goff every year, gave
Goff an initial overall rating of “outstanding.” But because
Woodruff and Fowler disagreed with this assessment, Goff’s
final 2011 appraisal reflected an overall performance rating of
“exceeds expectations,” one level below his original “out‐
standing” rating.
    The next year and a half passed without incident. Around
February 2013, Chief of Operations Woodruff was involved in
a public scandal. It was discovered that he had previously
failed to disclose his financial interest in land purchased by
INDOT. This scandal received public attention and was dis‐
cussed by employees at INDOT’s Vincennes District. Daza
complained to Cockrum about Woodruff’s misuse of political
office.
    One month after his complaint, Daza received his first
written reprimand. The Vincennes District had been unusu‐
ally busy due to construction on I‐69, so Fowler required em‐
ployees with an INDOT‐issued cell phone to be available for
calls after business hours. Daza did not take kindly to this re‐
quirement. He complained and told other employees that it
was not a part of his job to work overtime. Daza’s supervisor,
Brent Schmitt, heard about these complaints and approached
4                                                 No. 18‐3102

Daza directly to ask him to answer calls after hours. Daza re‐
peatedly told Schmitt he would not answer these calls, but ul‐
timately agreed to comply with this request. Schmitt issued
Daza a written reprimand for his insubordinate and defiant
behavior.
    Still, 2013 was not all bad for Daza. Even with the written
reprimand, Daza received praise in his annual performance
appraisal. The report complimented Daza’s willingness to
help others and his ability to arrive at data‐based solutions.
But it also reflected Daza’s struggles to remain professional
with his colleagues. Daza received an overall performance
rating of “meets expectations” in 2013.
   The following year, Daza again defended Goff from al‐
leged political discrimination. In March 2014, Goff declined to
help snow plow because of a shingles flare up. Schmitt alerted
Daza to this situation, noting that INDOT would both request
a doctor’s note and issue Goff a formal warning that could
lead to disciplinary action. Daza took issue with this treat‐
ment of Goff, and he complained to Cockrum that Goff is “ob‐
viously a target and they are trying to come at him with a
take‐no‐prisoners attitude.”
    The same day Daza made this complaint, Nina Daniel, a
Human Resources Manager, emailed another employee about
Daza. In that email, Daniel mentioned that Daza’s supervisor,
Schmitt, had discussed Daza’s behavior with her: Schmitt told
Daniel that Daza’s job knowledge is “one of the best in the
state” but that Daza’s professionalism had been described as
a “cancer on the department.” Daniel’s email also pointed out
that there was “little on [Daza’s] file discipline wise,” but
there was evidence of a pattern of behavior.
No. 18‐3102                                                  5

   Tensions between Daza and Schmitt continued to run
high. Later that month, in March 2014, Daza emailed
Cockrum expressing discontent with Schmitt. Daza implied
that Schmitt never comes to work and even suggested that
Schmitt should quit. Then Daza took issue directly with
Cockrum, who had recently asked Daza to mentor another
INDOT geologist in a different district. Daza alleged that
Cockrum gave him this task to set him up for future bad eval‐
uations. Daza expected that his days with INDOT were num‐
bered.
    The following month, INDOT hired T.J. Brink, a Republi‐
can City Council member, as Vincennes’s Safety Director.
This hiring, Daza argues, stands in stark contrast to how
INDOT treated Daza. Brink had no experience in safety, and
his only professional experience was as a Director of Business
Development. Yet, Fowler was “anxious” to offer Brink the
position. (Appellant’s Br. at 9.) Fowler just needed to deter‐
mine if there was an ethical problem with hiring a current City
Council member. There was not, and Brink was hired.
    Over a year later, management again took issue with
Daza’s behavior. On November 22, 2015, Daza’s mother pub‐
lished a letter to the editor with a regional newspaper, criti‐
cizing then‐Indiana Governor Pence’s position on immigra‐
tion. Daza discussed this letter with Cockrum and other
INDOT employees. A few days later, Brink went to Cockrum
with concerns about Daza’s behavior. Brink complained that
Daza checked out a respirator after being told during training
not to use it. Cockrum pointed out the respirator was checked
out before Daza was given this instruction. Still, Brink com‐
plained about Daza’s responses to questions during the
6                                                   No. 18‐3102

training. Cockrum met with Daza and warned him not to fur‐
ther antagonize Brink.
    About a week later, on December 1, 2015, Daza attended
the first day of a training class scheduled for multiple days
that month. Daza alleges the trainer did not like him. The
trainer did take issue with Daza’s behavior during the ses‐
sion. In her notes, the trainer stated that Daza refused to pay
attention and closed his eyes several times, that he refused to
participate in training activities, and that she heard Daza refer
to part of the training as “f_ _ _ _ ing gay.” The trainer’s su‐
pervisor emailed these notes to Human Resources and stated
that she had concerns about Daza attending the second train‐
ing class scheduled for December 9.
    After receiving this information, Human Resources em‐
ployees discussed with Fowler how to move forward with
Daza. Human Resources Manager Daniel noted that Daza’s
past behavior could be considered arrogant and insubordi‐
nate. She said that INDOT had previously terminated a dif‐
ferent employee for a continued pattern of negative behavior.
However, due to a lack of progressive discipline in Daza’s
past, another employee recommended only a three‐to‐five‐
day suspension. In the same discussion, Fowler—who was
the ultimate authority on employment decisions—indicated
that he was ready to proceed with termination.
    On December 7, 2015, Daza emailed employees he super‐
vised, telling them they had been nominated for a bonus
based on their recent work performance. Daza understood
that these bonuses are meant to surprise employees and that
the bonuses could still be denied. But Daza had sent these
emails for years, and Human Resources never took issue with
the practice. This time, Daniel expressed to another employee
No. 18‐3102                                                    7

concerns about Daza’s December 7 emails. She questioned
how it would make management look if the bonus was later
denied.
   The next day, December 8, 2015, Cockrum notified Daza
that he should not attend the second day of training on De‐
cember 9. Daza asked for more information but was told to
wait until a December 10 meeting with Fowler.
    At the December 10 meeting, Fowler informed Daza his
employment was being terminated. Fowler made this deci‐
sion without input from Daza’s supervisor and without al‐
lowing Daza to respond to the allegations against him. Daza
received a memo explaining that he was fired because his be‐
havior consistently defied INDOT culture and expectations.
The memo recalled his 2013 written reprimand, 2013 perfor‐
mance appraisal, and behavior during the December 1, 2015
training session.
    Daza filed a Charge of Discrimination with the Indiana
Civil Rights Commission. He claimed INDOT discriminated
against him due to his race, color, age, and disability. One day
later, he filed a similar Civil Service Employee Complaint
with the Indiana State Personnel Department.
     Daza then initiated this lawsuit in the Southern District of
Indiana, bringing various claims against the State of Indiana,
Fowler, Daniel, and Cockrum. He alleged that he was discrim‐
inated and retaliated against based on his race, color, age, po‐
litical speech, and political affiliation. Specifically, Daza
brought claims under 

, 1983; the First and
Fourteenth Amendments; the Age Discrimination and Em‐
ployment Act, 

 et seq.; and the Americans with
Disabilities Act, 

 et seq. The defendants
8                                                     No. 18‐3102

moved for, and the court granted, summary judgment on all
counts.
   Daza appealed the district court’s grant of summary judg‐
ment to the defendants on his § 1983 political‐discrimination
and political‐retaliation claims.
                            II. ANALYSIS
    Summary judgment is appropriate when there is no dis‐
pute of material fact and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). We review grants of
summary judgment de novo and construe all facts and reason‐
able inferences in a light most favorable to the nonmoving
party. Monroe v. Ind. Dep’t of Transp., 

 (7th Cir.
2017). But this “favor toward the nonmoving party does not
extend to drawing ‘inferences that are supported by only
speculation or conjecture.’” Argyropoulos v. City of Alton, 

 (7th Cir. 2008) (quoting Fischer v. Avanade, Inc.,

 (7th Cir. 2008)).
    Daza argues that INDOT’s series of acts, culminating in
his firing, amounts to a violation of his First Amendment
rights. The First Amendment prohibits public employers from
firing an employee based on that employee’s constitutionally
protected political conduct. See Elrod v. Burns, 

 (1976). Daza argues that his employer’s conduct amounts
to both political discrimination and retaliation under the First
Amendment. To establish a prima facie claim of First Amend‐
ment political discrimination, a plaintiff must show: (1) that the
plaintiff’s conduct is constitutionally protected; and (2) that
the protected conduct was a motivating factor in the em‐
ployer’s actions. Bisluk v. Hamer, 

 (7th Cir.
2015). To state a prima facie claim of First Amendment political
No. 18‐3102                                                      9

retaliation, the plaintiff must additionally show a deprivation
likely to deter free speech. Yahnke v. Kane Cty., 

 (7th Cir. 2016).
    Here, Daza’s discrimination and retaliation claims each
fail because he has not shown that his alleged protected con‐
duct motivated his firing. We therefore need not decide
whether his defenses of Goff and discussions about his
mother’s letter to the editor are constitutionally protected
and—for his retaliation claim—whether he suffered a depri‐
vation likely to deter free speech.
    To show that protected conduct was a motivating factor in
the employer’s action, a plaintiff must demonstrate a causal
connection between the conduct and the employer’s action.
Graber v. Clarke, 

 (7th Cir. 2014). As a thresh‐
old matter, the plaintiff must show that the defendant was
aware of the protected conduct. See Hall v. Babb, 

 (7th Cir. 2004). If the defendant was aware of the conduct,
a causal connection can then be demonstrated by suspicious
timing alone only when the employer’s action follows on the
close heels of protected expression. Lalvani v. Cook Cty., 

 (7th Cir. 2001) (“As the time separating the pro‐
tected conduct and the adverse employment action grows, the
causal inference weakens and eventually time becomes the
plaintiff’s enemy.”). For an employer’s actions to be on the
close heels of an employee’s conduct, thus allowing an infer‐
ence of causation based on timing alone, we “typically allow
no more than a few days to elapse.” Kidwell v. Eisenhauer, 

 (7th Cir. 2012). But this is a context‐specific anal‐
ysis with no formal legal rule. 

   When suspicious timing alone is insufficient to carry the
plaintiff’s burden, a plaintiff may “survive summary
10                                                  No. 18‐3102

judgment if there is other evidence that supports the inference
of a causal link.” Culver v. Gorman & Co., 

 (7th
Cir. 2005).
    In an attempt to satisfy this burden, Daza alleges political
discrimination and retaliation spanning four years. Daza
claims that his mistreatment began two years after Republi‐
cans Woodruff and Fowler became leaders in the Vincennes
District. After years without any incidents, Daza believes
three protected political acts motivated his firing: (1) his de‐
fenses of Goff, a Democrat he supervised, (2) his mother’s let‐
ter to the editor criticizing a Republican Governor, and (3) his
status as a Democrat. Daza claims that complaints about his
behavior occurred after, and because of, his alleged political
activities during this time. But for the reasons discussed be‐
low, the evidence does not demonstrate that Daza’s alleged
protected political activities were a motivating factor in his
firing. Consequently, Daza has failed to satisfy his burden on
an element of his claims.
     A. Defenses of Goff
    First, Daza has failed to connect his defenses of Goff to his
firing. He argues that his two separate defenses of Goff were
a motivating factor in Fowler’s decision to terminate his em‐
ployment.
    Daza defended Goff from perceived political discrimina‐
tion in August 2011 and again in March 2014 when Goff re‐
fused to snow plow because of shingles. Daza was fired De‐
cember 10, 2015, more than a year after his most recent de‐
fense of Goff, and four years after his first defense of Goff.
Daza’s firing occurred well after both events, not on the close
heels of them. Lalvani, 

. And Daza offers no
No. 18‐3102                                                   11

additional evidence showing these acts motivated his firing.
The memo explaining Daza’s firing, as well as internal com‐
munications, did not mention these occurrences. In fact, his
defenses of Goff never led to disciplinary action. Time is
Daza’s enemy here, and he cannot show that defending Goff
motivated his firing.
   B. Letter to the Editor
    Daza also has not established that his mother’s letter to the
editor contributed to his firing. Daza alleges that being fired
weeks after discussing his mother’s letter to the editor with
INDOT employees is evidence of a causal connection. He ad‐
ditionally points out that Cockrum and Fowler did not re‐
spond negatively to Daza’s practice of emailing bonus nomi‐
nees until after his mother’s letter to the editor.
    But for this theory to have legs, Fowler would need to be
aware of the letter and Daza’s connection to it. See Hall, 

. Fowler’s signed declaration states that he did not
learn about Daza’s mother’s letter until after he fired Daza,
and Daza fails to present any contrary evidence. So, as a
threshold matter, Daza fails to show Fowler was aware of this
alleged protected activity. Daza’s mother’s letter to the editor,
and Daza’s discussion of the letter with INDOT employees,
were therefore not a motivating factor in his firing.
   C. Political Affiliation
   Finally, Daza cannot show his status as a Democrat moti‐
vated his firing. Political affiliation is protected by the First
Amendment. Hagan v. Quinn, 

 (7th Cir. 2017).
But to prove discrimination based on political affiliation, a
plaintiff must present evidence relevant to the question of
whether the plaintiff’s political affiliation was a motivating
12                                                  No. 18‐3102

factor in their employer’s action. See Brown v. Cty. of Cook, 

 (7th Cir. 2011).
    In Brown, we held that a sergeant in a sheriff’s office failed
to show his political affiliation was a motivating factor in the
sheriff’s decision to not promote him. 

. We specifi‐
cally noted that most of the evidence Brown tendered was ir‐
relevant to whether the sheriff considered political affiliation
in the decision to not promote Brown. 

. For example,
Brown presented as evidence of discrimination his ability to
accurately predict upcoming promotions before they were an‐
nounced. 

. But this evidence had nothing to do with
political affiliation, and even suggested that the promotions
were based on objective criteria rather than political party. 

    Here, Daza claims to have a significant amount of evi‐
dence showing his status as a Democrat motivated his firing.
He argues that his defenses of Goff and his mother’s letter to
the editor, in addition to a long list of other workplace occur‐
rences, are all evidence that he was fired because of his polit‐
ical affiliation. The evidence Daza provides in support of this
claim includes: Daza’s various written and verbal complaints
to Cockrum; Fowler’s treatment of Daza compared to the hir‐
ing of Brink; INDOT’s failure to progressively discipline
Daza; Brink’s and Fowler’s complaints about Daza’s behavior
following his mother’s letter to the editor; the trainer’s com‐
ments on Daza’s behavior shortly after his mother’s letter to
the editor; Daniel’s complaint about Daza’s emails, sent on
December 7, 2015, to potential bonus recipients; and Fowler’s
refusal to allow Daza to respond to the allegations against him
before terminating his employment.
    But Daza fails to show how any of this evidence relates to
his political affiliation. For example, Daza believes that his
No. 18‐3102                                                   13

various complaints to Cockrum, and her response thanking
him for his honesty, are evidence that he was fired because of
his political affiliation. But Cockrum’s compliment did not
reference Daza’s political affiliation. In fact, none of her com‐
munications with Daza or Fowler ever referenced Daza’s po‐
litical affiliation.
     Daza also alleges the trainer’s comments on his behavior
at the December 1, 2015 training somehow show that Fowler
terminated him based on his political affiliation. But the
trainer’s notes about Daza refer to specific instances from the
training and do not mention his political party. Nor does the
record show that the trainer was aware of Daza’s political af‐
filiation. So, it does not follow that the trainer’s notes about
Daza’s behavioral issues caused Fowler to fire Daza for his
political affiliation. The trainer’s notes instead suggest that
Fowler’s decision to fire Daza was based on a series of inap‐
propriate behavior that culminated in Daza’s offensive com‐
ments at the December 1 training.
    Daza similarly believes that Fowler’s refusal to allow Daza
to respond to negative allegations, while affording this oppor‐
tunity to other INDOT employees, is evidence of political dis‐
crimination. But Daza does not produce the names of any spe‐
cific employees who were given an opportunity to respond to
allegations before they were fired. And Daza provides no ev‐
idence that Fowler decided who can and cannot respond to
allegations based on their political affiliation. Instead, the rec‐
ord shows Fowler made the decision to proceed with termi‐
nation based on his frustrations with how Daza, a supervisor,
consistently failed to comply with INDOT’s behavioral expec‐
tations.
14                                                  No. 18‐3102

    Daza’s other alleged evidence of discrimination based on
political affiliation meets a similar fate. Daza provides a long
list of occurrences and simply assumes that they happened
because he is a Democrat. But Daza does not present a single
piece of evidence relevant to his political affiliation. Cf. Brown,

. The evidence presented actually shows that
management had taken issue with Daza’s conduct for years,
and the decision to fire him was made after his offensive com‐
ments during the December 1 training. So, Daza has failed to
show that his political affiliation was a motivating factor in his
firing.
    All the evidence presented by Daza, viewed as a whole
and in a light most favorable to Daza, fails to satisfy his bur‐
den of proving his alleged protected activities were a motivat‐
ing factor in INDOT’s decision to fire him. And because Daza
has failed to meet his burden on the motivating‐factor ele‐
ment—a necessity for political discrimination and retaliation
claims—we need not address whether he carried his burdens
to show that his defenses of Goff and discussion of his
mother’s letter to the editor are protected by the First Amend‐
ment and (for the retaliation claim) that he suffered a depri‐
vation likely to deter free speech.
                         III. CONCLUSION
    Daza presented a long string of facts occurring over four
years but presented no evidence that his alleged political ac‐
tivities or affiliation motivated his firing. So, Daza has failed
to prove an element of his political retaliation and discrimina‐
tion claims. The district court correctly granted summary
judgment to the defendants on those claims. We therefore
AFFIRM the judgment of the district court.