Kenneth Kidwell v. Joseph S. Eisenhauer

The Honorable Ruben Castillo, of the Northern District å
of Illinois, is sitting by designation.
In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1929
KENNETH KIDWELL,
Plaintiff-Appellant,
v.
JOSEPH S. EISENHAUER, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09 CV 2179—Michael P. McCuskey, Judge.
ARGUED JANUARY 6, 2012—DECIDED MAY 22, 2012
Before MANION and WILLIAMS, Circuit Judges, and
CASTILLO, District Judge.å
MANION, Circuit Judge. Over the course of six months,
Appellant Kenneth Kidwell, a sixteen-year veteran of the
Danville, Illinois police department, publicly criticized
several departmental officials at two police officers’

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2 No. 11-1929
union meetings. Roughly during that same time period,
Kidwell also committed several violations of depart-
mental policy and was punished accordingly with,
among other things, a written reprimand and a two-
day suspension. Then, after Kidwell failed to clear a
fitness-for-duty evaluation, the department officials
filed termination charges against him. The matter was
assigned to arbitration where he was suspended but
not terminated. Ultimately, Kidwell brought this suit
under § 1983 against Danville’s mayor and several de-
partment officials, alleging that the actions taken against
him were in retaliation for the criticisms he voiced
at the two union meetings. The district court held
that Kidwell could not make out a prima facie case
for retaliation and therefore granted summary judg-
ment in favor of the defendants. We agree with the
district court’s conclusions, and thus affirm.
I.
Kenneth Kidwell has been a police officer for the city
of Danville, Illinois since December 1992. In 1996 he was
promoted to sergeant, a rank that he still holds. As a
sergeant, Kidwell was a second-shift patrol supervisor.
In addition, on January 1, 2006, Kidwell was assigned
the collateral duty of supervising the Community
Oriented Policing Service (“COPS”) Unit. The COPS
Unit, which was composed of Kidwell and two other
officers, was assigned to periodically patrol the Danville
housing projects and assist with certain police inves-
tigations.

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No. 11-1929 3
In March 2007, Defendant Doug Miller, a deputy
director of the police department, received a call from
an anonymous source who informed Miller that
Danville gang members were planning a hit on two
police officers. As the supervisor of the COPS Unit,
Kidwell became involved in investigating this threat.
After a period of time, Kidwell became displeased with
the police department’s progress, so he took it on
himself to dig further into the investigation.
As part of this supplemental investigation, Kidwell
cultivated a relationship with a confidential informant.
Subsequently, the confidential informant was arrested
for battering a woman and was jailed with a high bond.
In December 2007, Kidwell approached an assistant
state’s attorney to request that the attorney talk to
the judge about lowering the bond amount so that
Kidwell could continue to work with the informant on
the police assassination investigation. The attorney ap-
parently agreed to seek a reduction of the bond amount.
A few weeks later, Kidwell again met with the
assistant state’s attorney who told Kidwell that the
judge had refused to lower the bond amount. So
Kidwell personally met with the judge who apparently
told Kidwell that the assistant state’s attorney had
never requested that the informant’s bond amount be
lowered. After Kidwell explained that the informant
was helping him investigate a police assassination plot,
the judge agreed to lower the amount of the bond.
The state’s attorney’s office was upset that Kidwell
had surreptitiously discussed the lowering of the infor-
mant’s bond with a judge and complained to Defendant

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4 No. 11-1929
Larry Thomason, Director of Danville’s Public Safety
Department. Concerned about the future of the relation-
ship between the police department and the state’s attor-
ney’s office, Thomason initiated an investigation into
Kidwell’s actions. Although Kidwell was found not to
have violated any police department rules, the depart-
ment nevertheless changed its policy to forbid such
backroom dealings with judges in the future.
Kidwell’s first purported act of protected speech oc-
curred soon thereafter, and a tumultuous year and
a half ensued. On February 11, 2008, Kidwell and
another officer made a joint presentation at the Police
Benevolent and Protective Association (the “union”)
meeting, expressing concern about the department’s
failure to follow through on the police assassination
investigation. Kidwell also relayed the aforementioned
incident where the assistant state’s attorney had lied
to him about attempting to have the confidential infor-
mant’s bond lowered. Finally, Kidwell brought up the
prospect of the union holding a no-confidence vote
against the police department administration and
the mayor. That vote apparently never occurred.
Next, on April 2, 2008, Kidwell approached Defendant
Bob Richard, a deputy director of the police depart-
ment, concerning an internal investigation Richard
was conducting on a fellow officer, Tony Piatt. Kidwell
asked Richard—while Piatt was within earshot—“Why
are you headhunting him?” On April 15, pursuant to
departmental rules and regulations, Richard issued
Kidwell a “Written Reprimand at Division Level” for
Kidwell’s public headhunting comment.

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No. 11-1929 5
Later in April 2008, Richard received word that
Kidwell had been meeting with informants in Kidwell’s
personal vehicle while on duty and without anyone in
the police department’s knowledge. Concerned for
Kidwell’s safety, Richard instructed a police commander,
John Miller, to meet with Kidwell and direct him not
to meet with informants alone without first telling some-
one in the department. On May 1, 2008, Miller relayed
the directive to Kidwell and emphasized that the
directive was put in place out of concern for Kidwell’s
safety. Kidwell denied (and continues to deny) that he
had met with informants in his personal vehicle while
on duty. He contends that this policy was instituted
solely for him.
On May 23, 2008, Richard informed Kidwell that
the COPS Unit, which Kidwell supervised, was being
combined with another unit named the Problem
Oriented Policing (“POP”) Unit. Formed in June 2007,
the POP Unit consisted of one sergeant and three
officers and was organized under the police depart-
ment’s criminal investigations section. The record is not
clear on how the COPS and POP Units were different,
but it is apparent that they had overlapping roles. As
Thomason put it, both units assisted detectives and
shared resources. Thomason apparently was seeking to
find a way to combine the COPS and POP Units
beginning in June 2007 (the inception of the POP Unit), as
the department was hit with economic and manpower
constraints in the beginning of 2008. Thomason became
further convinced that it would be a more efficient use
of both resources and manpower to combine the two

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6 No. 11-1929
units under the investigations section. Specifically,
because the patrol section was in need of more com-
mand personnel, combining the two investigation units
had the effect of freeing up Kidwell to focus more on
his supervisory role in the patrol section. And so the
units merged and the COPS Unit was placed under
the leadership of the POP Unit sergeant and the inves-
tigations section. Kidwell’s leadership position was thus
eliminated, and on June 25, 2008, Richard ordered
Kidwell to turn in his COPS Unit-issued cell phone.
On August 8, 2008, Kidwell attended another union
meeting where he engaged in another purported act
of protected speech. Kidwell complained that Richard
had interfered with a grievance that Kidwell had filed
and had otherwise been acting contrary to the union’s
policies. Kidwell thus argued that Richard had a conflict
of interest and asked that Richard be removed from
the union. Kidwell was the primary presenter at this
meeting, and Thomason, Richard, and Doug Miller were
all in attendance.
On August 26, 2008, a little more than two weeks
after the second union meeting, Kidwell received a
call from the same confidential informant who
had been helping Kidwell with the police-assassination
investigation. The informant told Kidwell that he was
in Chicago and in possession of an explosive device;
he asked Kidwell to travel to Chicago so that the
informant could turn the device over to Kidwell. So
Kidwell traveled to Chicago in his personal vehicle
without telling anyone in the police department (a trip

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No. 11-1929 7
of at least 120 miles one way), and took a civilian with
him. On arrival, Kidwell discovered that the explosive
device was actually a piece of firework. Confident that
it would not explode in transit, Kidwell carried the
device in his trunk back to the Danville police depart-
ment. After returning to the department, Kidwell
informed Richard that he had an explosive device in
his trunk, and Richard directed Kidwell to call the bomb
squad. Kidwell did so and was instructed to drive
the device over to Ogden, Illinois, approximately 15 to
20 miles away, to turn it over to the bomb squad.
When Thomason learned of this episode, he was con-
cerned about several aspects of Kidwell’s conduct.
Among those concerns was the fact that Kidwell had
gone out of the police department’s jurisdiction
without notifying either his own chain of command or
the Chicago police department, and that Kidwell had
also potentially placed a civilian in danger. Thomason
therefore called a meeting with Kidwell, who recounted
the details of the trip, corroborating the information
that Thomason had received. Thomason then informed
Kidwell by memorandum that Kidwell was in violation
of several departmental rules, and as punishment
Kidwell was suspended for two days on September 17,
2008.
On the same day that his suspension began, Septem-
ber 17, 2008, Kidwell transported the same confidential
informant to Burlington, Iowa, ostensibly so that the
informant could receive medical treatment from a
recent gunshot wound (the informant apparently had

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8 No. 11-1929
family in Burlington and felt more comfortable
receiving treatment there). Curiously, the informant
sustained this wound while at a gas station in
Burlington. Notably, the informant was a convicted
felon whose bond restrictions prohibited him from
leaving the state of Illinois without prior approval. Once
in Burlington, Kidwell purchased a disposable camera
and took some pictures of the gas station where the
informant had been shot. He also inquired about the
gas station’s security video footage. Kidwell denies
that this activity amounted to any sort of police inves-
tigation, claiming that he did not take any notes, cite
names of individuals, or recover any shell casings.
The Burlington police department thought differently.
The same day that Kidwell and the informant traveled to
Burlington, Richard received a call from a Lieutenant
Kramer at the Burlington police department, asking if
an officer named Kidwell had been authorized to
conduct an investigation in Iowa. Kramer relayed that
Kidwell had gone to a gas station where a shooting
had occurred, showed his Danville police identifica-
tion, asked questions, and inquired about videotapes.
Kramer conveyed his concern that Kidwell was inter-
fering with an active investigation and noted that, if
Kidwell continued, he could be brought up on criminal
charges.
Richard passed on this information to Thomason, who,
after Kidwell returned to Danville, spoke briefly with
Kidwell about what had occurred and then told
Kidwell that the Burlington police department had

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No. 11-1929 9
voiced its concern. Thomason believed that Kidwell
had violated departmental policy by implying that he
was conducting an investigation in Burlington without
letting the Burlington police department know in ad-
vance. (Kidwell states that he did in fact let the
Burlington police know of his presence—but he did so
only after he had left town and was made aware that
the gas station manager might be complaining about
his actions.) Additionally, Thomason believed that
Kidwell had violated policy by fraternizing with a felon
and aiding that felon’s violation of his bond restric-
tions by taking him across state lines. Kidwell was not
immediately punished for his actions, however, and
after he had served the remainder of his two-day suspen-
sion he returned to duty.
But only a few days later, on September 21, 2008, Kidwell
was involved in a car accident while on duty. During a
high-speed chase that involved several officers, Kidwell
was making a three-point turn on a highway when he
was broadsided by a squad car driven by another police
officer. Both Kidwell and the police officer who hit
him suffered serious injuries, and there was extensive
property damage done to several vehicles. Detective
Stark, a Danville police department officer who was
off duty at the time, witnessed the accident and reported
to Thomason his version of the events. Based on that
report, Thomason decided to have Stark head the en-
suing investigation into how the accident had happened.
The Danville Police Department Policy Manual states
that, “[w]henever a police vehicle is involved in a vehicle

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10 No. 11-1929
accident which involves death, serious injury, or major
property damage, the on duty supervisor will request the
accident to be investigated by either the Vermilion
County Sheriff’s Department or the Illinois State Police.”
Thomason’s appointment of Stark to head the investiga-
tion thus ostensibly violated this policy, which requires
the appointment of an outside agency when serious
accidents occur to avoid the appearance of impropriety.
Thomason, however, stated that he interprets the policy
to require outside agency involvement only if there is
a death that results from an accident between a police
department vehicle and a civilian vehicle. Because
there were no deaths and the two main vehicles
involved in the accident belonged to the department,
Thomason saw no need to appoint an outside agency
to head the investigation. The police department’s Vehicle
Accident Damage Review Committee, composed of one
command officer and four to five other department mem-
bers, subsequently found that Kidwell was at fault in
the accident. Although not immediately disciplined for
his part in causing the accident, Kidwell was out of
work for the next several months due to his injuries
sustained during the crash.
Kidwell was still off of work and recovering from his
injuries when, on January 12, 2009, he informed the
police department that he was taking the prescription
drugs Lexapro and Abilify. Kidwell stated that he
began taking Lexapro in 2007, and Abilify in Novem-
ber 2008, to treat obsessive-compulsive disorder.
Kidwell disclosed this information, albeit belatedly,
because under departmental policy police officers must

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No. 11-1929 11
disclose to their supervisors when they are taking med-
ication. As a result of Kidwell’s medication disclosure,
on January 26, 2009, Thomason ordered Kidwell to un-
dergo a fitness-for-duty evaluation at the Institute for
Public Safety Personnel, Inc., located in Indianapolis,
Indiana. Thomason’s written order stated that the
reasons for the evaluation were Kidwell’s “increasingly
changed behavior over the last year,” and Kidwell’s
disclosure that he was taking Lexapro and Abilify.
As ordered, Kidwell submitted to the fitness-for-duty
evaluation on January 29, 2009. The next day, Thomason
placed Kidwell on administrative leave, citing as
his rationale the fact that Kidwell was undergoing a
fitness-for-duty evaluation. Dr. Darren Higginbotham
performed Kidwell’s evaluation and, on February 6, 2009,
informed Thomason that Kidwell was unfit for duty.
Thomason then placed Kidwell on leave for a non-duty-
related illness.
Kidwell had to be found fit for duty before he could
resume his police duties. Therefore, Thomason sought
to have Kidwell take another fitness-for-duty evalua-
tion, but Dr. Higginbotham refused to work with
Kidwell any further because of a dispute that occurred
when Kidwell’s worker’s compensation attorney sub-
poenaed Dr. Higginbotham for his records. Thomason
eventually ordered Kidwell to submit to an evaluation
with Dr. Michael Campion on May 29, 2009. Kidwell
initially complied with this order, but was concerned with
what he believed to be an overly broad medical release
waiver, so he withdrew his consent to have the evalua-
tion (along with all of his medical records) turned over

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12 No. 11-1929
to the police department. The union informed the
police department of the reason for Kidwell’s consent
withdrawal, and itself expressed concern that the
broad medical release violated Illinois law.
Defendant Scott Eisenhauer, Danville’s mayor, eventu-
ally sought to have Kidwell terminated. Accordingly, on
September 14, 2009, Thomason filed charges seeking
to discharge Kidwell for insubordination because
Kidwell had disobeyed a direct order to release Dr. Cam-
pion’s report to the police department. Thomason
also sought Kidwell’s termination because of Kidwell’s
violation of departmental policy during his trip to
Burlington, Iowa and during the high-speed chase the
previous year. The union filed a grievance on Kidwell’s
behalf, challenging the grounds for termination. The
arbitrator assigned to the matter eventually found
that there was no just cause for termination and that
a seven-day suspension was warranted for Kidwell’s
actions during the Burlington incident and the high-
speed chase accident. Moreover, the arbitrator found
that Kidwell was not insubordinate for refusing to sign
Dr. Campion’s broad medical consent form. Although
she ultimately ordered that Kidwell be reinstated,
the arbitrator conditioned his continued employment on
a fit-for-duty determination made by another doctor.
Kidwell apparently remains employed by the police
department but his exact status is unclear from the record.
In addition to the administrative proceedings,
Kidwell filed this suit under 42 U.S.C. § 1983, alleging
that Mayor Eisenhauer, Director Thomason, and Deputy

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No. 11-1929 13
Directors Miller and Richard violated his First Amend-
ment rights by retaliating against him because of his
speeches during the union meetings of February and
August 2008. The district court granted summary judg-
ment for the defendants, and Kidwell now appeals.
II.
Summary judgment is appropriate when “the movant
shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). Although we con-
strue all facts and make all reasonable inferences in a
light most favorable to the nonmoving party, Spiegla v.
Hull, 371 F.3d 928, 935 (7th Cir. 2004), we will affirm
the district court’s grant of summary judgment if the
nonmoving party “is unable to ‘establish the existence
of an essential element to [that party’s] case, and on
which [that party] will bear the burden of proof at
trial . . . .’ ” Benuzzi v. Bd. of Educ., 647 F.3d 652, 662 (7th
Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986)). We review the district court’s grant of sum-
mary judgment de novo. Id.
Kidwell claims that the defendants retaliated against
him for engaging in speech protected under the First
Amendment in violation of 42 U.S.C. § 1983. To
succeed, Kidwell must make out a prima facie case
of retaliation, demonstrating that: “(1) his speech was
constitutionally protected; (2) he has suffered a depriva-
tion likely to deter free speech; and (3) his speech was
at least a motivating factor in the employer’s actions.”

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14 No. 11-1929
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006)
(citing Spiegla, 371 F.3d at 935, 940-41); Redd v. Nolan,
663 F.3d 287, 294-95 (7th Cir. 2011) (citing Greene v.
Doruff, 660 F.3d 975, 977-78 (7th Cir. 2011)). In this case
the defendants challenge only the third factor, so that
is where we will focus our discussion. Accordingly, we
express no opinion on whether Kidwell’s speech was
constitutionally protected or whether the department’s
actions constituted deprivations that were likely to
deter free speech.
The district court issued its order granting sum-
mary judgment in favor of the defendants in April 2011.
At that time, the third factor, which requires the plaintiff
to demonstrate a causal link between his protected
speech and the employer’s actions, seemed to be in a state
of transition in federal courts. For years, the Supreme
Court had required that, to establish a prima facie case
of retaliation, a plaintiff need only produce evidence
sufficient to allow for an inference that his speech was
a motivating factor in the employer’s decision. See
Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977); Spiegla, 371 F.3d at 941-43 (applying the test set
forth in Mt. Healthy). Then along came the Supreme
Court’s decision in Gross v. FBL Financial Services, Inc., 557
U.S. 167, 129 S. Ct. 2343 (2009), an Age Discrimination
Employment Act case, which held that, “unless a statute
provides otherwise, demonstrating but-for causation is
a part of the plaintiff’s burden in all suits under federal
law.” Fairley v. Andrews, 578 F.3d 518, 525-26 (7th Cir. 2009)
(citing Gross, 129 S. Ct. at 2349). Notably, Gross did not
overrule Mt. Healthy. This, in turn, created a tension in

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No. 11-1929 15
our case law when several post-Gross decisions intimated
that the motivating-factor standard had been replaced by
the but-for standard. Compare Kodish v. Oakbrook Terrace Fire
Protection Dist., 604 F.3d 490, 500-01 (7th Cir. 2010), Gunville
v. Walker, 583 F.3d 979, 984 n.1 (7th Cir. 2009), and
Fairley, 578 F.3d at 525-26, with Spiegla, 371 F.3d at 941-
43. Thus, on the issue of causation, district courts were
understandably puzzled over whether to apply the still-
surviving motivating-factor test articulated in Mt. Healthy
and Spiegla, or whether to discard that test in favor of
the but-for test set forth in Gross and Fairley. Many,
like the district court in this case, disavowed the
motivating-factor test and applied the but-for standard
at the summary judgment stage. See Greene v. Doruff,
660 F.3d 975, 978 (7th Cir. 2011) (collecting cases).
This court’s recent opinion in Greene, which was
issued after the district court’s summary judgment order
in this case, shed some light on the “superficial” conflict
between Mt. Healthy/Spiegla and Gross/Fairley, and set
about reconciling their seemingly disparate holdings.
Id. Here is the distinction: In the end, the plaintiff
must demonstrate that, but for his protected speech, the
employer would not have taken the adverse action.
This explains the holdings of Gross and Fairley, which
were cases that discussed the plaintiff’s burden of
proving causation at trial. See Gross, 129 S. Ct. at 2347,
2351; Fairley, 578 F.3d at 526. But preliminarily at sum-
mary judgment, the burden of proof is split between
the parties. Initially, to establish a prima facie case of re-
taliation, the plaintiff must produce evidence that his
speech was at least a motivating factor—or, in philosophi-

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16 No. 11-1929
We recognize that the district court did not have the benefit 1
of Greene when it rendered its opinion granting summary
judgment to the defendants. It therefore did not properly
allocate the burden of proof on the causation element be-
tween the parties, instead requiring Kidwell to satisfy the but-
for standard on his own. No matter, because we may affirm
on any basis that appears in the record. Bivens v. Trent, 591
F.3d 555, 559 (7th Cir. 2010) (citing Samuelson v. LaPorte Cmty.
Sch. Corp., 526 F.3d 1046, 1051 (7th Cir. 2008)). And so we
will address each of Kidwell’s arguments in support of his
retaliation claim under the standard set forth in Greene.
cal terms, a “sufficient condition”—of the employer’s
decision to take retaliatory action against him. Greene,
660 F.3d at 979-80. Then, the burden shifts to the
employer to rebut the causal inference raised by the
plaintiff’s evidence. If the employer fails to counter
the plaintiff’s evidence, then the employer’s retaliatory
actions are considered a “necessary condition” of the
plaintiff’s harm, and the plaintiff has established the but-
for causation needed to succeed on his claim. Id. at 980.1
So, to make out a prima facie case for retaliation at
summary judgment, Kidwell must produce sufficient
evidence to show that his purportedly protected speech
was at least a motivating factor in the defendants’
alleged retaliatory employment actions taken against
him. Kidwell may do so by presenting either direct or
circumstantial evidence. “ ‘Direct evidence is evidence
which, if believed by the trier of fact, will prove the
particular fact in question without reliance upon inference
or presumption.’ ” Rudin v. Lincoln Land Cmty. Coll., 420

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No. 11-1929 17
F.3d 712, 720 (7th Cir. 2005) (quoting Eiland v. Trinity
Hosp., 150 F.3d 747, 751 (7th Cir. 1998)). Circumstantial
evidence, however, is evidence from which a trier of
fact may infer that retaliation occurred. See id. at 720-21.
“Circumstantial evidence may include suspicious
timing, ambiguous oral or written statements, or behavior
towards or comments directed at other employees in
the protected group.” Long v. Teachers’ Retirement Sys. of
Ill., 585 F.3d 344, 350, (7th Cir. 2009) (citation omitted).
Importantly, regardless of which type of evidence is
offered, “[t]o demonstrate the requisite causal connection
in a retaliation claim, [a] plaintiff[] must show ‘that the
protected activity and the adverse action are not wholly
unrelated.’ ” Sauzek v. Exxon Coal USA, Inc., 202 F.3d
913, 918 (7th Cir. 2000) (quoting Hunt-Golliday v. Met.
Water Reclamation Dist., 104 F.3d 1004, 1014 (7th Cir.
1997)). Here, Kidwell relies solely on circumstantial
evidence; specifically, he argues that the timing of the
various alleged retaliatory employment actions taken
against him was suspicious and that the defendants’
departure from established procedures evinced a retalia-
tory motive.
A. Suspicious Timing
Kidwell argues that the alleged retaliatory employ-
ment actions taken against him leading up to the deci-
sion to seek his termination amounted to “progressive
discipline” and were close enough in time to his pur-
portedly protected speech to allow a reasonable fact
finder to infer that the actions were taken because of

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18 No. 11-1929
that speech. That discipline, Kidwell contends, was
composed of the following five incidents: the written
reprimand on April 15, 2008; the restrictions on when
and how he may meet with informants in late April 2008;
the cancellation of his COPS Unit assignment in June
2008; the two-day suspension he received in September
2008; and the fact that the police department sought
to terminate him following the car accident in Septem-
ber 2008.
At the outset, we note that suspicious timing will
“ ‘rarely be sufficient in and of itself to create a triable
issue.’ ” Culver v. Gorman & Co., 416 F.3d 540, 546 (7th Cir.
2005) (quoting Stone v. City of Indianapolis Pub. Utils. Div.,
281 F.3d 640, 644 (7th Cir. 2002)). The reason is obvious:
“[s]uspicious timing may be just that—suspicious—and
a suspicion is not enough to get past a motion for sum-
mary judgment.” Loudermilk v. Best Pallet Co., 636 F.3d
312, 315 (7th Cir. 2011) (citation omitted). Accordingly,
for a suspicious-timing argument alone to give rise to
an inference of causation, the plaintiff must demonstrate
that “an adverse employment action follows close on
the heels of protected expression, and the plaintiff
[must] show that the person who decided to impose the
adverse action knew of the protected conduct.” Lalvani
v. Cook Cnty., 269 F.3d 785, 790 (7th Cir. 2001).
There can be no set legal rule for determining
whether an adverse employment action falls “close on
the heels”of protected activity because such a determina-
tion “depends on context.” Loudermilk, 636 F.3d at 315.
Of course, “[t]he closer two events are, the more likely

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No. 11-1929 19
that the first caused the second.” Id. But it is clear from
our case law that the time period between the pro-
tected activity and the adverse action must be “very
close.” Id. (citing Clark Cnty. Sch. Dist. v. Breeden, 532
U.S. 268, 273 (2001)). For an inference of causation to
be drawn solely on the basis of a suspicious-timing argu-
ment, we typically allow no more than a few days to
elapse between the protected activity and the adverse
action. See, e.g., id. at 314-15 (holding that a worker
who handed his supervisor a note that complained of
workplace discrimination and was immediately fired
had established an inference of causation by way of
suspicious timing); Casna v. City of Loves Park, 574 F.3d
420, 422-23, 427 (7th Cir. 2009) (holding that a one-day
time period between the employee’s complaint and her
supervisor’s recommendation to fire her was sufficient);
McClendon v. Ind. Sugars Inc., 108 F.3d 789, 796-97 (7th
Cir. 1997) (holding that a two- to three-day time period
between the employee’s complaint and his discharge
was sufficient). In this case, there was a significant time
lapse between the two instances of purportedly pro-
tected speech and the several alleged retaliatory employ-
ment actions that Kidwell cites. Kidwell’s first act of
purportedly protected speech occurred on February 11,
2008. But the first alleged retaliatory action he cites,
namely, the April 15, 2008 written reprimand for his
“headhunting” comment, occurred more than two
months later. Kidwell’s second act of purportedly pro-
tected speech occurred on August 8, 2008, yet the next
alleged retaliatory act taken against him after that
union meeting occurred approximately five weeks later,

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20 No. 11-1929
when he was suspended for two days for violating de-
partmental policy when transporting an explosive de-
vice. The other alleged retaliatory actions cited by
Kidwell were even more removed in time from his two
acts of purportedly protected speech. Based on our case
law, these extended time gaps alone militate against
allowing an inference of causation based on suspicious
timing.
But allowing such an inference would be even
more inappropriate when we consider the context in
which the various complained-of actions were taken. We
have noted elsewhere that “an employee’s complaint . . .
does not immunize [him] from being subsequently disci-
plined or terminated for inappropriate workplace be-
havior.” Hall v. Bodine Elec. Co., 276 F.3d 345, 359 (7th
Cir. 2002). Thus, where a “significant intervening
event separat[es]” an employee’s protected activity
from the adverse employment action he receives, a
suspicious-timing argument will not prevail. Davis v.
Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 675
(7th Cir. 2011). Here, as discussed below, the evidence
shows that Kidwell’s own aberrant actions or other in-
tervening circumstances led to the negative responses
that he incurred.
That the department took the first negative re-
sponse, issuing Kidwell a written reprimand for his “head-
hunting” comment, cannot be surprising; not only was
that comment insubordinate and a violation of depart-
mental policy, but Kidwell himself acknowledged its
impropriety, stating that “in hindsight . . . I wouldn’t have
said it if I had to go back and do it all over again . . . .”

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No. 11-1929 21
Further, uncontroverted testimony by department
officials shows that the second action taken in April
2008, which consisted of the department establishing a
policy that prohibited officers from meeting with infor-
mants alone without telling someone in the department,
was taken out of a concern for Kidwell’s, as well as
other officers’, safety. Although Kidwell contends that
he was not meeting informants without the depart-
ment officials’ knowledge, he does not dispute that the
department officials received notice that Kidwell was
meeting with informants outside of the officials’
purview and that the officials had Kidwell’s personal
safety in mind when they instituted the policy.
Moreover, Kidwell’s contention that this policy was
unique to him is unsupported by any evidence in
the record.
The evidence shows that the third negative action
that Kidwell faced—the cancellation of his COPS Unit
assignment—had nothing to do with his purportedly
protected speech. Indeed, Thomason began contem-
plating the merger of the COPS and POP Units in
June 2007—well before the first instance of Kidwell’s
purportedly protected speech. He ultimately decided
to merge the units in May 2008, alleviating the
mounting strain on a department in the midst of
economic challenges and manpower losses, and also
freeing Kidwell to focus solely on his supervisory role
in the patrol section. Kidwell questions the idea that a
merger was contemplated from the inception of the
POP Unit in June 2007 because the department issued
a new COPS Unit policy in January 2008. But Thomason’s

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22 No. 11-1929
uncontroverted testimony shows that the manpower
and economic issues that ultimately necessitated the
merger did not surface until that same month. Further,
intradepartmental resistance slowed the merger process
for several months. Eventually, however, Thomason
effected the merger, which had the ancillary effect of
eliminating Kidwell’s position. There is no evidence
that this decision was based on Kidwell’s purportedly
protected speech; rather, the decision was based on
wholly unrelated, intervening events.
The underlying facts of the fourth negative action,
namely, Kidwell’s two-day suspension in September 2008
as a result of his journey to Chicago with a civilian to
pick up an explosive device, are likewise undisputed.
Kidwell attempts to mitigate his role in this incident
by claiming that the explosive device was merely a piece
of firework, but he conveniently leaves out the fact that
he did not know it was a firework until he arrived in
Chicago. In fact, the informant who alerted Kidwell to
the presence of this device initially described the device
as a “grenade . . . that would have the potential of ex-
ploding.” Therefore, this ill-advised journey—the facts
of which are not in dispute—was unquestionably danger-
ous and, as noted by Thomason in his memorandum
to Kidwell, was made in violation of departmental policy.
Finally, the fifth negative action, which consisted of
the department’s attempt to terminate Kidwell, was
clearly the result of Kidwell’s failure to pass a fitness-for-

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No. 11-1929 23
The other two termination charges that the department 2
filed against Kidwell included his trip to Burlington, Iowa,
and his role in the accident during the high-speed chase.
Notably, Kidwell was not punished for these incidents
outside of the fact that they formed the basis for part of the
department’s termination case against him. We will address
Kidwell’s complaints about how the department handled
the investigation into these incidents in the next section;
however, we pause here to note that the arbitrator found that
a seven-day suspension was warranted for Kidwell’s role in
these incidents. Such a punishment underscores the fact
that Kidwell’s own behavior—not his purportedly protected
speech—served as a basis for the negative actions taken
against him.
duty evaluation. Presumably as a source of vindication,2
Kidwell cites the arbitrator’s finding that Kidwell should
not be subject to any discipline for refusing to turn
over Dr. Campion’s fitness-for-duty report because the
consent form was overly broad. But Kidwell has failed
to show how that finding has any significance in this
case. There is no evidence that the department’s attempt
to fire Kidwell for his insubordination in failing to
turn over the fitness-for-duty report was a pretext for
his having engaged in purportedly protected speech. If
anything, the evidence demonstrates that if Kidwell
had passed a fitness-for-duty evaluation at any point
in time, he would have been allowed to return to
work. Even the arbitrator noted that Kidwell’s con-
tinued employment was based on his ability to pass a
fitness-for-duty evaluation (albeit without having to
sign a broad consent form). It was only after Kidwell

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24 No. 11-1929
refused to cooperate with the department’s efforts to
have him declared fit for duty that Thomason took
action (at Eisenhauer’s direction). Regardless of whether
Kidwell was within his rights to refuse to cooperate,
nothing in the department’s conduct indicates that the
action it took was in response to Kidwell’s purportedly
protected speech.
In sum, none of the employment actions that Kidwell
complains about followed close on the heels of his purport-
edly protected speech. Moreover, the context in which
these actions were taken defies any argument that they
were related to his speech. Rather, it is apparent that
significant intervening events—not the least of which
was Kidwell’s own negative behavior—that occurred
after Kidwell’s acts of purportedly protected speech
were the cause of the negative or disciplinary employ-
ment actions that he received. Therefore, the timing
of events in this case does not give rise to an inference
that Kidwell’s speech was a motivating factor in any
of the employment actions taken against him.
B. Failure to Follow Procedures
Kidwell also argues that the departments officials’
failure to follow established procedures gives rise to an
inference that his purportedly protected speech was a
motivating factor in two of the termination charges
filed against him. Specifically, Kidwell contends that
the department officials did not follow the require-
ments of the Uniform Police Officers’ Disciplinary Act
(“UPODA”), 50 Ill. Comp. Stat. 725/1, et seq., when it

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No. 11-1929 25
questioned him after the Burlington, Iowa incident, and
that the officials failed to follow the department’s
internal policies when investigating Kidwell’s role in
the accident during the high-speed chase.
In another context, we stated that an employer’s “sys-
tematic abandonment of its hiring policies is circum-
stantial evidence” of a retaliatory motive. Rudin, 420 F.3d
at 723; see also Giacoletto v. Amex Zinc Co., 954 F.2d 424,
427 (7th Cir. 1992) (holding that the employer’s deviation
from its established procedure when terminating the
plaintiff was circumstantial evidence of retaliation).
Nevertheless, we do not require that an employer
rigidly adhere to procedural guidelines in order to
avoid an inference of retaliation. Instead, we look for
pretext in the form of “a dishonest explanation, a lie
rather than an oddity or an error.” Kulumani v. Blue Cross
Blue Shield Ass’n, 224 F.3d 681, 685 (7th Cir. 2000). More-
over, when independent surrounding circumstances
indicate that the employee’s performance was seriously
deficient and worthy of disciplinary action, a procedural
abnormality will not suffice to establish a retaliatory
motive. See Fortier v. Ameritech Mobile Commc’ns, Inc., 161
F.3d 1106, 1114 (7th Cir. 1998).
UPODA provides certain procedural protections to
police officers who are subject to discipline. 50 Ill.
Comp. Stat. 725/1. Specifically, police officers who are
interrogated after allegedly violating departmental
policy must be given written notice of the nature of the
investigation being conducted, the opportunity to have
an attorney present, and reasonable opportunities for

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26 No. 11-1929
rest. See id. 725/3.1-.11. UPODA defines an “interroga-
tion” as “the questioning of an officer pursuant to the
formal investigation procedures of the respective State
agency or local governmental unit in connection with an
alleged violation of such agency’s or unit’s rules which
may be the basis for filing charges seeking his or her
suspension, removal, or discharge.” Id. 725/2(d). Impor-
tantly, this definition “does not include questioning (1) as
part of an informal inquiry or (2) relating to minor in-
fractions of agency rules which may be noted on the
officer’s record but which may not in themselves
result in removal, discharge or suspension in excess of
3 days.” Id. A “formal investigation” is defined as “the
process of investigation ordered by a commanding
officer during which the questioning of an officer is
intended to gather evidence of misconduct which may
be the basis for filing charges seeking his or her removal,
discharge or suspension in excess of 3 days.” Id. 725/2(c).
In contrast, an “informal inquiry” is defined as a
meeting between supervisory personnel and an officer
“upon whom an allegation of misconduct has come . . . ,
the purpose of which meeting is to mediate a citizen
complaint or discuss the facts to determine whether a
formal investigation should be commenced.” Id. 725/2(b).
Here, Kidwell only vaguely argues that he was not
given the protections guaranteed by UPODA during
the investigation into his actions during the Burlington
incident. The only specific alleged violation of UPODA
to which Kidwell points is an informal conversation
he had with Thomason after the incident had occurred.
Kidwell contends that Thomason relied on that conversa-

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No. 11-1929 27
tion when filing one of the termination charges against
him a year later. Kidwell argues that this was improper
because Kidwell never received UPODA procedural
protections. But Kidwell makes no effort to establish
which protections were violated or how any such viola-
tions were a pretext for a retaliatory motive instead of
simply errors. Without more, Kidwell’s conclusory argu-
ment fails.
Moreover, Kidwell cannot establish that his ques-
tioning was part of a “formal investigation” (as defined
under UPODA), and thus that UPODA protections even
apply. Indeed, other than Thomason’s conversation
with Kidwell after Kidwell’s return from Burlington,
there is no evidence that Thomason ordered an inves-
tigation pursuant to departmental policy. And to the
extent that Kidwell argues that his conversation
with Thomason could itself be construed as a “formal
investigation,” that argument fails. As noted above, a
formal investigation requires that the intent of super-
visory personnel in questioning a police officer be
to gather evidence that forms the basis of the charges
“seeking [the officer’s] removal, discharge or suspension
in excess of 3 days.” Id. 725/2(c). There is no evidence
in the record to support the conclusion that Thomason’s
conversation with Kidwell was intended to gather
evidence to seek Kidwell’s removal, discharge, or sus-
pension. True, the Burlington, Iowa incident formed
the basis for one of the charges against Kidwell when
the department sought his termination a year later,
but the evidence shows that between the time
of Thomason’s conversation with Kidwell about the

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28 No. 11-1929
Burlington incident and the time the charges were
filed, Thomason was open to Kidwell returning to
work if he could pass a fit-for-duty evaluation. There-
fore, there is no evidence from which a reasonable
factfinder could infer that Thomason’s conversation
with Kidwell was an attempt to glean evidence from
which Kidwell could be terminated. Instead, that con-
versation was at best an “informal inquiry,” and there-
fore Kidwell was never “interrogated” as defined by
UPODA. See id. 725/2(d). The procedural protections
therein simply do not apply in this case, and Kidwell’s
argument fails.
Kidwell also contends that the police department
officials failed to follow departmental policy when in-
vestigating his role in the accident that occurred during
the high-speed car chase. The Danville Police Depart-
ment Policy Manual states that, “[w]henever a police
vehicle is involved in a vehicle accident which involves
death, serious injury, or major property damage, the
on duty supervisor will request the accident to be in-
vestigated by either the Vermilion County Sheriff’s De-
partment or the Illinois State Police.” Although the acci-
dent certainly resulted in serious injury and major
property damage, Kidwell argues that Thomason’s ap-
pointment of Detective Stark—a Danville police officer—
to head the ensuing investigation violated depart-
mental policy and therefore is evidence of a retaliatory
motive.
Detective Stark’s appointment was undoubtedly a
technical violation of the written policy terms. But

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No. 11-1929 29
uncontroverted testimony from Thomason shows that
this policy was construed to mean that an independent
law enforcement agency would be appointed to head
an investigation only if a death occurred in an accident
involving a police and a civilian vehicle. Because there
were no deaths that resulted from the accident,
Thomason saw no need to appoint an outside agency.
As another circuit has stated, “[i]t is generally for an
employer to interpret its own policies.” Richey v. City
of Independence, 540 F.3d 779, 786 (8th Cir. 2008). Kidwell
does not argue that this construction of the policy was
disparately applied or that it was done for a retaliatory
purpose. What is more, simply showing a violation of
policy is not enough. Kidwell must point to “a dishonest
explanation [for deviating from policy], a lie rather than
an oddity or an error.” Kulumani, 224 F.3d at 685. He
does not do so.
Additionally, Kidwell cannot demonstrate a retalia-
tory motive based on a technical violation of policy
when the circumstances reveal a pattern of deficient
actions on his part. For example, in Fortier we acknowl-
edged that “an employer’s failure to follow policies . . .
may show . . . that the employer’s asserted reason
for termination (deficient performance) might be pre-
textual.” Fortier, 161 F.3d at 1114. In that case, how-
ever, we found that even if the employer had failed
to follow its established policies when terminating
the plaintiff, because other evidence showed that the
employer believed that the plaintiff’s performance was
“seriously deficient,” as indicated by previous warnings
and counseling sessions given to the plaintiff, a technical

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30 No. 11-1929
violation of policy was insufficient to give rise to an
inference of a retaliatory motive. Id. This case is similar;
by the time the high-speed chase accident occurred,
Kidwell had been issued a written reprimand, ad-
monished verbally, and suspended for two days. Like
the employer in Fortier, here the police department
officials had determined—independently of the high-
speed chase accident investigation—that Kidwell’s per-
formance was seriously deficient. Under such circum-
stances, Thomason’s failure to appoint an outside agency
to head the accident investigation is not sufficient to
raise an inference of a retaliatory motive.
III.
Kidwell has failed to demonstrate that his purportedly
protected speech was at least a motivating factor in
the defendants’ negative employment actions taken
against him. Specifically, Kidwell’s suspicious-timing
argument fails because his complained-of employment
actions did not follow closely on the heels of his pur-
portedly protected speech, and because significant in-
tervening events—especially Kidwell’s own deficient
performance—separated Kidwell’s speech from the
negative employment actions. Additionally, Kidwell
has failed to demonstrate that any deviations from
policy—if they occurred at all—were dishonest and
pretextual. Moreover, because independent surrounding
circumstances demonstrate that his performance was
seriously deficient and worthy of disciplinary action,
Kidwell cannot point to technical deviations from pro-

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No. 11-1929 31
cedure to raise an inference of retaliation. For these rea-
sons, we AFFIRM.
5-22-12

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