In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3207

BRENDA MILLS,

Plaintiff-Appellant,

v.

CITY OF EVANSVILLE, INDIANA, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 3:03-cv-00183-JDT-WGH—John Daniel Tinder, Judge.

____________

ARGUED APRIL 3, 2006—DECIDED JUNE 20, 2006

____________

Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit

Judges.

EASTERBROOK, Circuit Judge. “[W]hen 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.” Garcetti v.

Ceballos, No. 04-473 (U.S. May 30, 2006), slip op. 9. That

principle resolves this appeal.

Brenda Mills was a sergeant of the Evansville, Indiana,

police with responsibilities that included supervising “crime

prevention officers” (CPOs) during the first shift in the

City’s west sector. According to Mills, “CPOs are part of the
2 No. 05-3207

patrol division and are assigned throughout the city to, in

part, interact with neighborhood associations in an effort to

reduce the incidence of crime, foster good community

relations and deal with quality of life issues.”

Chief David Gulledge decided to move some officers from

CPO duties to active patrol; the plan reduced by one the

number of CPOs under Mills’s supervision. In January 2002

Mills attended a meeting on departmental premises at

which Chief Gulledge described this plan (not yet implemented) and other proposals to cope with a manpower

shortage. After the meeting Mills and other officers,

including Chief Gulledge, Deputy Chief Reed and Assistant

Chief Burnsworth (but not Mills’s immediate supervisor),

discussed the subject in the building’s lobby. Mills told

these senior managers that the plan would not work, that

community organizations would not let the change happen,

and that sooner or later they would have to restore the

old personnel assignment policies. Others present at the

event got the impression that Mills would try to enlist

community organizations against the plan rather than

describe its virtues.

Two things happened to Mills during the next months:

First, Captain Brad Hill put in her personnel file a “Summary of Counseling” that disapproved her attitude at the

meeting, her choice of time and place for presenting her

views, and her failure to work through the chain of command. Second, Mills was removed from her supervisory

position and assigned to patrol duties. That step increased

her pay by $1,200 per year (because of a shift differential)

but cost her the use of a departmental car, which had been

at her disposal 24 hours a day. After about a week on patrol

she was moved back indoors to the support services division

but did not regain supervisory responsibilities or personal

use of a car. We must assume that the reassignment, like

the “Summary of Counseling,” was a consequence of her

statements at the meeting.
No. 05-3207 3

Mills contends in this suit under 42 U.S.C. §1983 that

Evansville (and everyone superior to her in the department’s chain of command) violated the Constitution by

retaliating on account of her speech. In granting summary judgment to the defendants, the district judge

stated that Mills’s statements at the meeting are protected by the first amendment because she addressed issues

of public concern but that the department’s interest in

efficient management of its operations must prevail. See

Pickering v. Board of Education, 391 U.S. 563 (1968).

Garcetti, which was issued while this appeal was under

advisement, holds that before asking whether the subjectmatter of particular speech is a topic of public concern, the

court must decide whether the plaintiff was speaking “as a

citizen” or as part of her public job. Only when government

penalizes speech that a plaintiff utters “as a citizen” must

the court consider the balance of public and private interests, along with the other questions posed by Pickering and

its successors, such as Waters v. Churchill, 511 U.S. 661

(1994); Connick v. Myers, 461 U.S. 138 (1983); and Givhan

v. Western Line Consolidated School District, 439 U.S. 410

(1979).

Mills was on duty, in uniform, and engaged in discussion

with her superiors, all of whom had just emerged from

Chief Gulledge’s briefing. She spoke in her capacity as a

public employee contributing to the formation and execution

of official policy. Under Garcetti her employer could draw

inferences from her statements about whether she would

zealously implement the Chief’s plans or try to undermine

them; when the department drew the latter inference it was

free to act accordingly.

Quite apart from Garcetti is the fact that Evansville did

not fire or demote Mills. When the Supreme Court held in

Elrod v. Burns, 427 U.S. 347 (1976), and Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), that the first
4 No. 05-3207

amendment bars linking hiring, firing, and promotion

decisions to the employee’s politics, it did not doubt that

a public employer retains a powerful interest in ensuring

that all positions are filled by workers who will stand

behind rather than subvert the decisions made by politically

accountable actors. If a chief of police can’t fire or demote

sergeants whose views imply less than enthusiastic support,

what can he do to ensure faithful implementation? The

answer must be a lateral transfer; that’s how Evansville

proceeded with Mills.

Public employers must be able to change assignments

in response to events (including statements) that reveal

whether employees will be faithful agents of the decisions

made by the politically accountable managers. It promotes

rather than undermines first amendment values when

those who make decisions, and are held accountable for

them at the polls, can ensure their implementation within the bureaucracy. Chief Gulledge was entitled to insist

that his subordinates not play the “Yes, Minister” game and

undermine his directions. The power of transfer is essential

if the top of the bureaucracy is to see its decisions through.

Mills also contends that the letter written to her file, and

the removal of her supervisory responsibilities, amounted

to sex discrimination. Of this she offered not an iota of

proof. By 2002 Mills had been a police officer for 27 years;

the department was hardly likely to start discriminating

against her so late in her career. (She has since retired.)

Summary judgment was properly granted against her.

AFFIRMED
No. 05-3207 5

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-20-06