Daniel J. Wackett v. City of Beaver Dam, Wisconsin

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-4040
DANIEL J. WACKETT,
Plaintiff-Appellant,
v.
CITY OF BEAVER DAM, WISCONSIN, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-C-181—William C. Griesbach, Judge.
ARGUED DECEMBER 2, 2010—DECIDED JUNE 13, 2011
Before EASTERBROOK, Chief Judge, and MANION and
WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Daniel Wackett sued the City
of Beaver Dam and several current and former members
of the Board of Public Works and City Council. Wackett
alleged the defendants violated his First Amendment
rights when he spoke out against their recommendation
to purchase a Caterpillar front-end loader. He claims

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2 No. 09-4040
they retaliated against him by not appointing him
Director of Public Works. Wackett also alleged supple-
mental state law claims for unjust enrichment and quan-
tum meruit. The district court granted the defendants
summary judgment on Wackett’s First Amendment claim
and declined to exercise jurisdiction on the state law
claims. We affirm.
I.
Daniel Wackett began working for the City of Beaver
Dam, Wisconsin, in its Department of Public Works
(“Department”) in November 1972. Through the years,
Wackett advanced through the ranks in the Department
and in 1990 was promoted to the position of Public
Works Supervisor. In line with his responsibility as
Public Works Supervisor, Wackett was charged with de-
termining the performance specifications for a front-
end loader tractor which Beaver Dam needed to purchase.
On February 17, 2003, Wackett attended a Board of
Public Works (“Board”) meeting at which the Board
considered three bids for the needed front-end loader. At
this meeting, which was open to the public, Wackett and
his boss, Director of Public Works Bruce Gall, recom-
mended that the Board accept the bid for a unit manu-
factured by John Deere. The John Deere tractor was the
lowest of the three qualifying bids. However, the Board
voted 3-0 to pass a resolution recommending to the
Beaver Dam Common Council that the city purchase
a tractor manufactured by Caterpillar, which cost about
$10,000 more than the John Deere tractor.

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No. 09-4040 3
The Board held another meeting on February 24, 2003.
All five Board members were present at this meeting and
the Chairman of the Board, Jeffry Kohman, said that he
wanted one hundred percent support for the Board’s
recommendation to purchase the Caterpillar tractor. The
Board then re-voted on its resolution to the Common
Council recommending the purchase of the Caterpillar
front-end loader, and the resolution passed by a 4-1 vote.
The four Board members who voted in favor of the resolu-
tion are the individual defendants in this case, Terry
Capelle, Jeffry Kohman, Laine Meyer, and Gina Staskal.
After the Board approved the purchase of the Cater-
pillar tractor, Wackett claims he publicly spoke out
against the decision, telling people that the Board
should not have voted to recommend accepting a bid
that was $10,000 higher than the lowest qualifying bid.
Wackett also claims he publicly spoke out about his
concern that the Board’s decision to purchase the more
expensive front-end loader was improperly influenced
by personal relationships with the Caterpillar sales rep-
resentative. He also claimed they were influenced by
the representative’s invitation to the Board for an over-
night trip to Chicago and a tour of the Caterpillar plant.
Wackett maintains that he had publicly spoken out
against this “unethical” all-expense-paid trip when the
invitation was originally extended in June 2002.
Wackett claims that he spoke out to many individuals,
but he focuses on his comments to a local businessman,
Jeff Schmidt. Schmidt had a local grading and excavating
company and was thus familiar with various types of

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4 No. 09-4040
construction equipment. Wackett claims that he pro-
vided Schmidt with information concerning the Board’s
decision and encouraged Schmidt to write a letter to the
Common Council and the mayor criticizing the purchase.
Schmidt complied, writing to both the mayor and the
Common Council. In this letter dated February 24, 2003,
Schmidt chastised the Board for its recommendation
to purchase the Caterpillar and urged the City to “go
along with the INITIAL opinion of the Director of
Public Works (Bruce Gall) and the Street Superintendent
(Dan Wackett), which was to purchase the JOHN DEERE
unit as bid.” Schmidt ended the letter with a post-script:
“P.S. To interested citizens! Final council vote on this
issue is Monday, March 3, 2003 at 7:00 p.m. at City Hall
as I understand. Call or write your Alderperson or
Mayor!” Schmidt copied the Beaver Dam Daily Citizen
editor with this letter and the local newspaper printed
the letter in its entirety.
Following the reprinting of the letter, numerous citi-
zens complained about the Board’s recommendation to
purchase the Caterpillar front-end loader. In response,
the Chairperson of the Board decided to pull the Board’s
recommendation to purchase the Caterpillar tractor
from the Common Council agenda. The Board then revis-
ited the issue at its March 10, 2003, meeting. At that
meeting, Wackett provided information which coun-
tered the Board members’ claim that the Caterpillar
tractor was more economical than the John Deere based
on maintenance costs. Nonetheless, the Board voted
to reintroduce the resolution to the Common Council to

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No. 09-4040 5
purchase the Caterpillar front-end loader. On March 17,
2003, the Common Council voted to reject the Board’s
recommendation to purchase the Caterpillar tractor. Two
weeks later the Board changed its recommendation to
the John Deere tractor; the Common Council approved
this recommendation.
In July 2003, shortly after the front-end loader debate,
the Director of Public Works, Bruce Gall, retired. The
mayor appointed Wackett to serve as the Acting Director,
but then in October 2003, the Common Council ap-
pointed John Bemis, a subordinate of Wackett, to be the
new Director. Bemis resigned in July 2004. After Bemis’s
resignation, defendant Terry Capelle made it known
that there was “no way that Wackett will ever get [the
Director of Public Works] job.” Capelle and the mayor
then appointed Chris Liveris, the Water Utility Super-
intendent, as the Acting Director of Public Works. After
appointing Liveris, Capelle told Liveris to “get that son
of a bitch,” referring to Wackett. Capelle also told
Liveris, “Now that Gall is gone, Wackett is the next to
go,” and suggested that Liveris “nail ‘em.”
Liveris lasted only a few months in the Acting Director
role, resigning in September 2004. The mayor then ap-
pointed Wackett to again serve as Acting Director.
Wackett then applied for the permanent position and
the interview committee unanimously recommended
that the Board hire him as the Director. But the Board
rejected the recommendation. The City then posted the
job two more times, but the City rejected Wackett’s ad-
ditional applications. Instead Capelle recommended a

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6 No. 09-4040
candidate whom the Common Council later rejected
as unqualified. During this entire time—from Septem-
ber 2004 until his retirement in February 2009—Wackett
continued to serve as the Acting Director. Wackett
did not receive any additional compensation for per-
forming the Acting Director’s duties in addition to his
supervisory duties.
After he retired, Wackett sued the City of Beaver Dam
and Capelle, Kohman, Meyer, and Staskal under § 1983,
alleging the defendants retaliated against him because
of his public speech about the tractor. Wackett also as-
serted state law claims for unjust enrichment and
quantum meruit. The district court granted the defen-
dants’ motion for summary judgment, concluding that
Wackett had not spoken out on a matter of public
concern and that even if he had, the defendants were
not aware of his protected speech and therefore could
not have retaliated against him. Wackett appeals.
II.
On appeal Wackett maintains that the district court
erred in granting the defendants summary judgment on
his First Amendment retaliation claim. We review the
grant of summary judgment de novo and view the evi-
dence in the light most favorable to Wackett. Gross v.
Town of Cicero, Ill., 619 F.3d 697, 703 (7th Cir. 2010). Sum-
mary judgment is appropriate when “there is no genu-
ine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).

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No. 09-4040 7
“[T]he First Amendment, made applicable to the states
through the Fourteenth Amendment, prohibits the gov-
ernment from retaliating against its employees for en-
gaging in protected speech.” Gross, 619 F.3d at 703-04. To
state a retaliation claim under § 1983, Wackett must
prove that: (1) his speech was constitutionally protected;
(2) the protected speech was a but-for cause of the em-
ployer’s action; and (3) he suffered a deprivation be-
cause of the employer’s action. Id. at 704.
In this case, Wackett claims he engaged in protected
speech by: publicly criticizing the Board’s recommenda-
tion to purchase the Caterpillar; positing that that
decision was improperly influenced by personal rela-
tionships with the Caterpillar salesman and the invita-
tion for a free overnight trip to Chicago followed by a
tour of the Caterpillar plant; and making his earlier
statements that it was illegal and unethical to accept
that all-expense-paid trip. The problem for Wackett,
though, is that he publicly criticized the Board’s decision
to purchase the Caterpillar during two Board meetings
at which he was speaking in his official capacity. And
while overseeing the bidding process as part of his
official duties, Wackett also spoke with City officials of
his belief that it was improper for members of the Board
to accept a trip to tour the Caterpillar plant during the
bidding process. As the Supreme Court explained in
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), “when public
employees make statements pursuant to their official
duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution
does not insulate their communications from employer
discipline.”

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8 No. 09-4040
Wackett attempts to avoid the import of Garcetti by
claiming that in addition to speaking out against the
Caterpillar purchase and the unethical free trip in his
role as a Public Works employee, he also spoke out on
his personal time as a private citizen and taxpayer. Even
if repeating statements made earlier as part of an em-
ployee’s official duties were enough to trigger First
Amendment protection, Wackett’s theory cannot stand
because there is no evidence that the defendants
knew of Wackett’s additional “unofficial” speech. While
the defendants (or most of them) were aware of the
Schmidt letter, all of the defendants filed declarations
stating that they did not know that Wackett had spoken
with Schmidt or any other members of the public con-
cerning the front-end loader issue. There is also nothing
in Schmidt’s letter to indicate that Wackett had spoken
to him about the tractor purchase; rather, Schmidt’s
letter incorporates information made available at the
public Board hearings. Moreover, while the letter refer-
ences Wackett, it also references Wackett’s boss, Gall, and
refers to their initial recommendation to purchase the
John Deere tractor. That initial recommendation was
made at the public hearing. Thus, if anything, the con-
tent of the letter indicates that Schmidt was relying on
Wackett’s recommendations made during the public
hearings—when he was acting in his official capacity.
There is also no evidence that the defendants knew
Wackett had publicly spoken out against the offer of the
Caterpillar trip.
Wackett responds that the defendants must have
known of his allegedly protected speech because the

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No. 09-4040 9
“defendants’ attitude and the intensity and maliciousness
of their hostility toward Wackett increased markedly
during and after he spoke out about the [Board’s] end
loader purchase recommendation.” He insists that “there
really was no other way to explain the intensity of de-
fendants’ hostility toward Wackett or their desire to
‘get’ Wackett.” But as Wackett himself points out, the
defendants expressed displeasure over his public recom-
mendation during the first Board meeting, and there is
no evidence that their unhappiness with Wackett came
from things he said outside of his official role. Wackett
also claims there is no reason—other than retalia-
tion—to explain why the defendants kept Wackett in the
Acting Director role for so long, while denying him
the Director position.
This argument is circular: Wackett is essentially main-
taining that the defendants must have known about his
protected speech because they retaliated against him.
That conclusory assumption does not suffice. For a viable
case, Wackett must prove defendants’ knowledge of the
protected speech to establish retaliation. All of the state-
ments that Wackett claims the defendants resented were
made while he was speaking in his official capacity.
Even if he were to say similar things elsewhere in
private, it would not alter the status of what he had
already said in his official capacity. And in any event,
the defendants presented evidence that the reason they
did not appoint him as the Director was because they
did not like his management style. That might be the
nice way of saying what the facts in this case make
clear—that the defendants did not particularly like
Wackett. Only if that dislike stemmed from Wackett’s

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10 No. 09-4040
The district court recognized as an additional basis for 1
summary judgment Wackett’s non-compliance with Local
Rule 56.2(e), which provides that “the Court must conclude
that there is no genuine material issue as to any proposed
finding of fact to which no response is set out.” In this case,
the defendants proposed as a finding of fact that none of the
individual defendants “knew that Wackett made any state-
ments about them outside of public meetings regarding their
votes to recommend that the City purchase a Caterpillar
front end loader in 2003 until this lawsuit was filed.” Wackett
did not contest this proposed finding, and thus under Local
Rule 56.2(e) that proposed finding of fact would be deemed
admitted. As the district court recognized, this alone is a
basis for granting summary judgment on Wackett’s First
Amendment claim.
protected speech, though, would it be actionable, and
Wackett bore the burden to present sufficient evidence
to support that conclusion. But Wackett did not pre-
sent any evidence that the defendants knew that he had
spoken to members of the public outside his role as a
Public Works employee. Therefore, even if Wackett’s
speech at some point were protected, it could not have
caused the defendants to retaliate against him. See Salas
v. Wis. Dep’t of Corr., 493 F.3d 913, 925 (7th Cir. 2007)
(holding that the defendants were entitled to sum-
mary judgment on the plaintiff’s First Amendment re-
taliation claim where there was no evidence the defen-
dants knew of the plaintiff’s speech because the plaintiff
“offered insufficient evidence to prove a causal connec-
tion between his speech and termination”). Accordingly,1
the defendants were entitled to summary judgment on
Wackett’s First Amendment claim.

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No. 09-4040 11
III.
To prevail on his First Amendment retaliation claim,
Wackett needed to establish that he engaged in pro-
tected speech, which caused the defendants to retaliate
against him. Because Wackett cannot show that any
of the defendants knew of his purportedly protected
speech, he cannot establish causation. Accordingly,
the defendants were entitled to summary judgment.
We AFFIRM.
6-13-11

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