In the

United States Court of Appeals

For the Seventh Circuit

No. 15-2162

STEVEN YAHNKE,

Plaintiff-Appellant,

v.

KANE COUNTY, ILLINOIS, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 1:12-cv-05151 — Amy J. St. Eve, Judge.

ARGUED JANUARY 20, 2016 — DECIDED MAY 24, 2016

Before WOOD,Chief Judge, andMANION andROVNER,Circuit

Judges.

ROVNER, Circuit Judge. After the Sheriff of Kane County

terminated Deputy Sheriff Steven Yahnke’s employment,

Yahnke sued the County and the Sheriff, alleging that he was

terminated because of his political affiliation and that the

termination occurred without due process. The district court

granted summary judgment in favor of the defendants on both
2 No. 15-2162

counts, and Yahnke appeals. We affirm the judgment on the

due process claim but we vacate the judgment on the political

affiliation count and remand for trial.

I.

The Kane County Sheriff’s office hired Yahnke in 1986, and

he worked as a Deputy Sheriff for more than twenty years,

eventually holding the rank of Sergeant. The position of Sheriff

is an elected post in Kane County, and in 2006, then-Sheriff

Kenneth Ramsey opted to retire rather than run for re-election.

Deputy Sheriff Patrick Perez decided to run for the post, and

Yahnke also contemplated entering the race. At the time,

Yahnke told several people about his intention to run and

spoke to a number of people about becoming his campaign

manager and raising funds. Eventually, Yahnke decided not to

run for the office, and Perez, a Democrat, defeated Republican

Kevin Williams, another Deputy Sheriff whom Yahnke had

supported. 

Perez took over the post in December 2006. Earlier that

year, Sheriff Ramsey had approved Yahnke’s request to engage

in secondary employment as the part-time police chief of the

Village of Maple Park. In June 2007, after Sheriff Perez took

office, Yahnke was injured while working as a Deputy Sheriff

and began receiving disability benefits. In July 2007, Perez and

Undersheriff Stephen Ziman advised Yahnke that his secondary employment as Maple Park police chief was suspended

until he could return to work in the Sheriff’s office. But Ziman

allowed Yahnke to continue with some involvement in the

Maple Park position, such as opening the mail. In August 2007,

Yahnke hosted a party at his home attended by almost all of
No. 15-2162 3

the Maple Park police officers. At that event, Yahnke openly

discussed a plan to run for the Sheriff’s position in 2010, the

next election cycle.

Because Yahnke remained on temporary total disability, in

early November 2007, Ziman ordered Yahnke to cease all

secondary employment, including the limited involvement in

Maple Park that Ziman previously allowed. In the meantime,

Perez sought a legal opinion from the County’s State’s Attorney regarding whether Yahnke’s dual employment presented

a conflict of interest. The State’s Attorney consulted with the

Illinois Attorney General and concluded that secondary

employment as chief of the Maple Park police presented a

potential conflict of interest with Yahnke’s job as a Deputy

Sheriff. Later that same month, Sheriff Perez permanently 1

revoked Yahnke’s authorization to act as police chief of Maple

Park.

Sheriff Perez also opened an investigation with the Office

of Professional Standards (“OPS”) into whether Yahnke

continued to work as police chief of Maple Park during the

period that his secondary employment was suspended. The

OPS investigator collected business and public records that

could be construed as evidence that Yahnke had continued to

perform some of his duties as police chief of Maple Park after

November 2007. On October 7, 2008, Sheriff Perez notified

Yahnke in two letters that he was filing charges with the Merit

Commission seeking his removal for cause. In the first letter,

Maple Park is located primarily in Kane County, but straddles the border 1

of neighboring DeKalb County.
4 No. 15-2162

Perez accused Yahnke of violating Merit Commission Rules by

failing to display absolute honesty during an OPS investigative

interview that took place on September 2, 2008, and by failing

to follow the orders of the Sheriff and Undersheriff to cease

secondary employment. In the second letter, Perez charged

Yahnke with failing to display absolute honesty regarding an

OPS investigation into Yahnke’s use of comp time and overtime procedures. The Merit Commission set a hearing date to

review the charges. For reasons we will discuss below, that

hearing never took place. The Sheriff terminated Yahnke’s

employment on October 28, 2008. 

Yahnke sued Kane County and Sheriff Perez, asserting that

his termination was in retaliation for exercising his First

Amendment rights, and that he was terminated without due

process, in violation of 42 U.S.C. § 1983. Yahnke asserted he 2

had been terminated because of his political affiliation and

because the Sheriff believed that Yahnke would oppose him in

an election. In the course of discovery in a state court lawsuit

between the same parties, Undersheriff Ziman was questioned

about the Sheriff’s reaction to learning that Yahnke had

engaged in outside employment. Ziman testified:

The words I recall, when it came to disciplining

Sergeant Yahnke, I went to the Sheriff and I said,

You know, he was teaching, he was—we sent

Yahnke also brought a state law claim for retaliatory discharge under the 2

Illinois Workers’ Compensation Act. After granting judgment in favor of

the defendants on the federal claims, the district court declined to exercise

supplemental jurisdiction over the state law claim and dismissed it without

prejudice. 
No. 15-2162 5

Internal Affairs out and they found him teaching,

he’s guilty of that, do you want to give him a letter,

time off or whatever, I went to the Sheriff and asked

him that. I don’t mean to be vulgar here, but he said,

I’m not giving him any time off, I’m firing him. He

thinks he’s going to run for Sheriff against me some

day.

R. 170-3 at 67-68. In opposition to the defendants’ motion for 3

summary judgment, Yahnke cited this testimony as direct

evidence of the Sheriff’s motive for his termination, but the

court did not address this evidence. Instead, the district court

assumed that Yahnke established a prima facie case of First

Amendment retaliation, and turned to the Sheriff’s stated

reasons for firing Yahnke. The court found that Perez had nonretaliatory reasons to terminate Yahnke, namely, that he had

continued his secondary employment after being ordered to

stop, and that he was not absolutely honest in departmental

investigations of his conduct. The court then shiftedtheburden

back to Yahnke to demonstrate that the Sheriff’s stated reasons

were not worthy of credence. The court concluded, again

without addressing the deposition testimony of Undersheriff

Ziman, that Yahnke had failed to produce evidence that the

Sheriff’s stated reasons were a pretext and that the true reason

was Yahnke’s political affiliation or ambitions. The court also

Although Ziman could not recall the precise date of this conversation, by

3

considering the context and construing the record in Yahnke’s favor, it is

apparent that it took place during the time period that the Sheriff was

investigating Yahnke for engaging in secondary employment. It was

therefore within the relevant time frame.
6 No. 15-2162

concluded that Yahnke was provided all the process that was

due in the course of his termination, and that Yahnke waived

certain procedures that were available to him. The court

therefore granted summary judgment in favor of the defendants. Yahnke appeals.

II.

On appeal, Yahnke asserts that the court erred in granting

judgment to the defendants on the First Amendment claim

when he presented direct evidence that the Sheriff terminated

him because of his political activity. Yahnke also notes that, in

shifting the burden to Yahnke to demonstrate that the Sheriff’s

stated reasons were a pretext, the court erroneously required

Yahnke to meet all three parts of a disjunctive standard that

this court applied in Carter v. Chicago State Univ., 778 F.3d 651,

659 (7th Cir. 2015). Yahnke also argues on appeal that the court

erred in granting judgment on his due process claim when the

court disregarded disputed issues of material fact. Finally,

Yahnke asserts that the district court should have granted his

motion to strike the defendants’ Local Rule 56.1 statement of

facts for various violations of that rule. 

We review the district court's grant of summary judgment

de novo, examining the record in the light most favorable to

Yahnke and construing all reasonable inferences from the

evidence in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986); Naficy v. Illinois Dep't of Human Servs., 697 F.3d

504, 509 (7th Cir. 2012); Norman–Nunnery v. Madison Area Tech.

Coll., 625 F.3d 422, 428 (7th Cir. 2010). Summary judgment is

appropriate when there are no genuine disputes of material

fact and the movant is entitled to judgment as a matter of law.
No. 15-2162 7

Fed.R.Civ.P. 56(a); Naficy, 697 F.3d at 509. Anderson, 477 U.S. at

255; McGreal v. Ostrov, 368 F.3d 657, 663 (7th Cir. 2004). 

A.

“The First Amendment generally prohibits government

officials from dismissing or demoting an employee because of

the employee's engagement in constitutionally protected

political activity.” Heffernan v. City of Paterson, New Jersey,

136 S. Ct. 1412, 1416 (2016) (citing Elrod v. Burns, 427 U.S. 347

(1976); and Branti v. Finkel, 445 U.S. 507 (1980)). To make out a

prima facie claim for a violation of First Amendment rights,

public employees must present evidence that (1) their speech

was constitutionally protected; (2) they suffered a deprivation

likely to deter free speech; and (3) their speech was at least a

motivating factor in the employer’s actions. Kidwell v.

Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012); Greene v. Doruff,

660 F.3d 975, 977-78 (7th Cir. 2011); Spiegla v. Hull, 371 F.3d 928,

935 (7th Cir. 2004). The defendants concede that Yahnke’s

political affiliation and desire to run for political office is

protected by the First Amendment. See Branti, 445 U.S. at 516-

17 (to prevail in a First Amendment retaliation claim, it is

sufficient for the plaintiffs to prove that they were dismissed

solely for the reason that they were not affiliated with or

sponsored by a particular political party). There is no dispute

that Yahnke’s termination is the sort of deprivation likely to

deter the exercise of First Amendment rights. See Rutan v.

Republican Party of Illinois, 497 U.S. 62, 73-74 (1990) (dismissal,

denial of transfer, failure to recall after layoff, and refusal to

promote are significant penalties that impermissibly encroach

on First Amendment freedoms unless such practices are
8 No. 15-2162

narrowly tailored to further vital government interests). The

only factor at issue here is whether the Sheriff terminated

Yahnke because of his political affiliation. 

The district court analyzed causation under the burdenshifting framework set out by the Supreme Court in Mt.

Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274

(1977). The Court held that, in proving a First Amendment

claim, the initial burden is on the plaintiff to demonstrate that

his conduct was constitutionally protected and that his conduct

was a substantial or motivating factor in the defendant’s action

against him. The burden then shifts to the defendant to show

that it would have taken the same action even in the absence of

the protected conduct. Mt. Healthy, 429 U.S. at 287. We later

summarized the rule:

[T]he burden of proof relating to causation is divided between the parties in First Amendment tort

cases. To make a prima facie showing of causation the

plaintiff must show only that the defendant's conduct was a sufficient condition of the plaintiff's

injury. The defendant can rebut, but only by showing that his conduct was not a necessary condition of

the harm—the harm would have occurred anyway.

Greene, 660 F.3d at 980. On summary judgment, of course, the

plaintiff’s burden is simply to demonstrate that there is a

genuine issue of material fact on the question of causation. 

The district court assumed (without citing any particular

piece of evidence) that Yahnke met the initial burden of

demonstrating that his political affiliation was a motivating

factor in the Sheriff’s decision to terminate him. The court then
No. 15-2162 9

turned to the Sheriff’s stated permissible, non-political reasons

for terminating Yahnke, namely that he violated regulations

that required him to be honest in all department dealings and

that he had failed to comply with the order that he cease

secondary employment. The court then shifted the burden

back to Yahnke to demonstrate that the Sheriff’s stated reasons

were pretextual, and that the real reason was retaliatory

animus. Thayer v. Chiczewski, 705 F.3d 237, 252 (7th Cir. 2012).

Showing pretext, the court held, required evidence that the

Sheriff’s reasons were “unworthy of credence.” Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). To

establish that the Sheriff’s reasons were not worthy of credence, the court turned to our opinion in Carter v. Chicago State

University, 778 F.3d 651 (7th Cir. 2015). There we held that a

plaintiff could prove that a defendant’s proffered justification

is unworthy of credence by “providing evidence tending to

prove that the employer's proffered reasons are factually

baseless, were not the actual motivation for the discharge in

question, or were insufficient to motivate” the employment

action. Carter, 778 F.3d at 659. Unfortunately, the district court

inadvertently switched out the “or” in that standard for an

“and” and created a conjunctive test rather than a disjunctive

one. Although Yahnke twice pointed out this error in his brief

on appeal, the defendants inexplicably continued to cite the

misquoted language in their response brief. 

In any case, all Yahnke need do at this stage of the proceedings is demonstrate a genuine issue of material fact on the

Sheriff’s intent in firing him. In the context of the Carter case,

Yahnke must demonstrate a genuine issue on any one of three

factors we set out in that case to survive summary judgment.
10 No. 15-2162

Yahnke easily demonstrates a genuine issue on the second

Carter factor by citing the deposition of Undersheriff Ziman.

Ziman reported to the Sheriff that an investigator had discovered that Yahnke was teaching during the period of time that

he was prohibited from engaging in secondary employment.

The Undersheriff asked whether the Sheriff wanted to “give

him a letter, time off or whatever,” ostensibly referring to a

written reprimand or a suspension, both of which were options

under the progressive discipline system of the Collective

Bargaining Agreement. See R. 150-4 at 22. As we noted above,

the Sheriff replied, “I’m not giving him any time off, I’m firing

him. He thinks he’s going to run for Sheriff against me some

day.” A finder of fact crediting Ziman’s version of the conversation could easily find that the Sheriff fired Yahnke because of

his political ambitions and his political opposition to the

Sheriff, a motive for the termination that is impermissible

under the First Amendment. Construing that conversation in

favor of Yahnke, it is clear that, even if Yahnke had violated

department rules, lesser forms of discipline were available and

were suggested as appropriate by the Undersheriff. The finder

of fact could conclude that Sheriff Perez rejected these lesser

sanctions in favor of termination because Yahnke expressed a

desire to run against the Sheriff, and that the proffered reasons

were not the actual motivation for the discharge. On the

causation issue, that is more than enough to defeat summary

judgment, and a trial must be held to determine the Sheriff’s

true motivation. We vacate the judgment on the First Amendment claim and remand for trial.
No. 15-2162 11

B.

We affirm, however, the district court’s judgment on

Yahnke’s due process claim. In the second count of his complaint, Yahnke alleged that he had a protected property

interest in his continued employment with Kane County and

that he was not afforded due process when the Sheriff terminated his employment. “The fundamental requirement of due

process is the opportunity to be heard ‘at a meaningful time

and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S.

319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965)). In analyzing a procedural due process claim, we must

first determine whether the plaintiff was deprived of a protected interest and then determine what process is due. Bryn

Mawr Care, Inc. v. Sebelius, 749 F.3d 592, 598 (7th Cir. 2014);

Pugel v. Board of Trustees of Univ. of Ill., 378 F.3d 659, 662 (7th

Cir. 2004). The parties do not dispute that Yahnke had a

protected property interest in his continued employment with

the County; a Collective Bargaining Agreement and the Kane

County Sheriff’s Merit Commission Rules and Regulations

made Yahnke a tenured deputy subject to the Merit Commission. We therefore focus on the process that was due.

Under the Merit Commission Rules, a hearing must

commence within thirty days after the Sheriff files a written

complaint with the Merit Commission seeking removal of an

employee unless the employee waives the thirty day requirement or elects arbitration instead of a hearing. As we noted

above, on October 7, 2008, the Sheriff notified Yahnke that he

was filing charges with the Merit Commission seeking

Yahnke’s termination. On October 15, 2008, the Merit Commis-
12 No. 15-2162

sion sent a letter to Yahnke informing him that it had received

the Sheriff’s charges and request for termination. That same

letter notified Yahnke that the Merit Commission had scheduled the requisite hearing for October 27, 2008. 

Also on October 15, 2008, a lawyer from Yahnke’s union

filed a “Step Three" grievance on Yahnke’s behalf (hereafter

“Step Three Grievance”). The terms of the Collective Bargaining Agreement provide for a four-step grievance process. In

Step One, the employee may raise a grievance in writing with

the employee’s immediate supervisor. In the case of County

employees such as Yahnke, that grievance is referred to the

Sheriff. If unresolved at Step One, the grievance proceeds to

Step Two, which encompasses review by the County Human

Resources Director. If necessary, at Step Three, the grievance

must be presented by the union to the Sheriff or his designee

or the County Board Chairman. If still unresolved, at Step

Four, the union must notify the Sheriff in writing of the intent

to go to arbitration. But Merit Commission employees such as

Yahnke may, as an alternative to review by the Merit Commission, skip directly to Step Three:

The discipline of Merit Commission employees shall

have as an alternative to review by the Merit Commission be subject to review by the provisions of

Step Three of the Grievance Procedure. Within the

time provided for in Step Four of the Grievance

Procedure for appealing the decisions of the Sheriff,

the Union may file a request for arbitration under

the provisions of Step Four of the Grievance Procedure. If no such request is made, then the employee
No. 15-2162 13

shall be deemed to have elected to proceed under

the terms of the rules of the Merit Commission.

R. 150, Ex. 4 at 23-24.

In Yahnke’s Step Three Grievance, the union noted that

Yahnke had been the subject of an extensive investigation

regarding his secondary employment, and that Yahnke had

grieved the central issues of his right to maintain secondary

employment. The Step Three Grievance also noted that

Yahnke’s prior grievance had proceeded to the point of

arbitration but that the Sheriff had changed legal counsel and

forced a continuance of the arbitration. The Sheriff then placed

Yahnke on administrative leave before notifying him on

October 9, 2008 that the Sheriff was sending the matter to the

Merit Commission with a request for termination. At that

point, the Sheriff’s office stopped paying Yahnke. Yahnke

asserted that these actions violated the Collective Bargaining

Agreement because: (1) the order to cease secondary employment was illegal and arbitrary, and the Sheriff’s continuance of

the arbitration worked to Yahnke’s detriment; (2) the Sheriff

placed Yahnke in illegal unpaid status prior to a termination

hearing with the Merit Board; (3) Yahnke was not provided an

appropriate complaint as required by the CollectiveBargaining

Agreement; (4) the discipline was given without just cause,

based on an illegal order, and was not progressive or corrective; and (5) the discipline was a politically motivated act of

retaliation. In the box on the grievance form for “relief sought,”

Yahnke’sunionrepresentative wrote, “Stay any discipline until

the outcome of the grievance arbitration addressing the central

issue of the O.P.S. investigation.” R. 150, Ex. 7. 
14 No. 15-2162

A week later, the union lawyer representing Yahnke sent a

letter to the chairman of the Merit Commission stating:

I have been made aware of a letter that you have

sent to ... Yahnke, concerning a Merit Commission

hearing this coming Monday October 27, 2008.

Pursuant to ... the Collective Bargaining Agreement

... Yahnke has exercised his alternative to review by

the Merit Commission by provision of step 3 of the

Grievance Procedure. The step 3 grievance was filed

... on October 15, 2008. ... In the event the Chairman

denies the grievance, Sergeant Yahnke wishes to

proceed to step 4 of the grievance process under the

Collective Bargaining agreement with his intent to

go to independent arbitration.

R. 150, Ex. 15. 

On October 28, the Sheriff again sent Yahnke a series of

letters setting forth his purported violations, and stating in

relevant part:

The violations of these general orders warrant your

dismissal as a Deputy Peace Officer Sergeant. Based

on my authority under the terms of 55 ILCS 5/3-

8014, and since you have waived your right to a

Merit Commission hearing and filed notice of your

intent to go to independent arbitration, I am terminating your employment with the Kane County

Sheriff’s Department, effective immediately.

R. 150, Ex. 8. At a Merit Commission meeting that same day,

Undersheriff Ziman “advised the Commission that Sgt. Steven
No. 15-2162 15

Yahnke has been fired and requested arbitration. The Commission will not be hearing the case.” R. 150, Ex. 9.

And indeed the Commission never heard the case. Nor did

it go to arbitration, even though the union sought to compel

arbitration on Yahnke’s behalf in state court. As the Illinois

Appellate Court explained, when Yahnke attempted to set up

the arbitration hearing, Sheriff Perez responded that the Step

Three Grievance had been resolved and he did not agree to

arbitrate it. Policemen’s Benevolent Labor Comm. v. County of

Kane, 2012 IL App (2d) 120009-U, 2012 WL 6969132 (Ill. App.

Ct. 2012). Perez took the position that Yahnke’s October 15

grievance had been resolved when Yahnke “was sent his check

for the time off work he claimed prior to his termination.”

Yahnke conceded in the state court proceeding that the

termination did not occur until October 28, and that his

October 15 Step Three Grievance was not filed with regard to

the October 28 termination letter. The Sheriff argued that

Yahnke had not filed a grievance specifically challenging his

termination. The Appellate Court affirmed the trial court’s

conclusion that, once the October 15 grievance was resolved,

nothing was left to arbitrate, and the October 15 grievance was

insufficient to challenge the termination.

With that factual background in place, the district court

analyzed Yahnke’s due process claim. The court noted that

Yahnke had entered into an Agreed Order to waive his right to

proceed before the Merit Commission and instead elected to

proceed to arbitration under the Collective Bargaining Agreement. R. 163, Ex. 5. But having waived the Merit Commission

hearing, Yahnke did not follow up and file a grievance related

to his October 28 termination. The court noted that Yahnke had
16 No. 15-2162

adequate procedures available andsimply didnotfollow them.

The court therefore granted judgment in favor of the defendants on the due process claim.

On appeal, Yahnke argues that, under the Merit Commission Rules, he must be afforded a hearing before the Merit

Commission unless he waives the thirty day requirement or

elects arbitration instead of a hearing. Yahnke contends that

the Sheriff conceded that Yahnke had requested arbitration

and that Yahnke had “filed notice of [his] intent to go to

independent arbitration.” Yahnke contends that the Sheriff

could not have withdrawn the Merit Commission charges

unless the Sheriff also accepted that Yahnke had already

properly filed his request for arbitration of his termination.

Moreover, the Collective Bargaining Agreement provides that

if an employee does not file a grievance, he or she is deemed to

elect to proceed under the rules of the Merit Commission.

Yahnke faults the district court for concluding that he was

required to file an additional grievance specifically directed at

his termination; by Yahnke’s reasoning, the October 15

grievance was sufficient to preserve his right to arbitrate his

termination and the Sheriff had already conceded that it was

sufficient.The Sheriff’s laterrefusal to arbitrate the termination

was a reversal of his earlier concession that Yahnke had

followed the proper procedures. According to Yahnke, this

creates a disputed issue of material fact, namely, why the

Sheriff told the Merit Commission that Yahnke had requested

arbitration and that the Sheriff therefore would withdraw the

Merit Commission charges so that the parties could proceed to

arbitration. According to Yahnke, the answer is that the Sheriff
No. 15-2162 17

took these actions so that Yahnke would have no means of

obtaining a hearing on his termination.

Although there may be a factual dispute regarding why the

Sheriff told the Merit Commission that Yahnke was waiving

his hearing in favor of arbitration, that dispute is not material

to Yahnke’s due process claim. It is the actions that Yahnke

took and, more importantly, did not take, that led to his

procedural bind. A process existed for Yahnke to challenge his

termination: he could have had a hearing before the Merit

Commission or he could have filed a grievance against his

termination and proceeded to arbitration. But he waived the

Merit Commission hearing when his union lawyer sent a letter

to the Merit Commission, and then he failed to file a grievance

that was adequate to challenge his termination. He may have

thought that the October 15 grievance was adequate, but by his

own concession, and by the findings of the Illinois courts, that

grievance was not specifically addressed to the termination,

which occurred two weeks after the Step Three Grievance was

filed. Yahnke essentially argues the Sheriff’s statements that

Yahnke had filed his intention to go to arbitration are conclusive on the issue. But the Sheriff’s characterization of events to

the Merit Commission could neither preserve nor waive

Yahnke’s arbitration rights. Only Yahnke could preserve his

rights, and the Illinois courts found that he failed to do so

when he neglected to file a grievance specifically challenging

his termination. There is no evidence that the Sheriff prevented

him from obtaining a hearing. Due process was available;

Yahnke simply failed to perfect his request for arbitration. The

district court therefore did not err in granting judgment to the

defendants on the due process claim.
18 No. 15-2162

III.

The district court also denied Yahnke’s motion to strike the

defendants’ Local Rule 56.1 Statement of Facts. But the

propriety of that decision is now moot in relation to Yahnke’s

First Amendment claim because we are remanding for trial. As

for Yahnke’s due process claim, we have relied only on

undisputed facts and on Yahnke’s version of the facts in

affirming the district court’s grant of judgment in favor of the

defendants. We will therefore not address the issue further. In

sum, we vacate the judgment in part and remand for a trial on

Yahnke’s claim under the First Amendment. We affirm the

judgment as to the due process claim. Each party will bear its

own costs on appeal.

AFFIRMED IN PART; 

VACATED AND REMANDED IN PART.