The Honorable Ruben Castillo, of the Northern District



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.



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’
2 No. 11-1929

union meetings. Roughly during that same time period,

Kidwell also committed several violations of departmental policy and was punished accordingly with,

among other things, a written reprimand and a twoday 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 department 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 judgment 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 investigations.
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 apparently 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 informant’s bond with a judge and complained to Defendant
4 No. 11-1929

Larry Thomason, Director of Danville’s Public Safety

Department. Concerned about the future of the relationship between the police department and the state’s attorney’s office, Thomason initiated an investigation into

Kidwell’s actions. Although Kidwell was found not to

have violated any police department rules, the department nevertheless changed its policy to forbid such

backroom dealings with judges in the future.

Kidwell’s first purported act of protected speech occurred 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 informant’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 department, 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.
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 someone 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 department’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
6 No. 11-1929

units under the investigations section. Specifically,

because the patrol section was in need of more command 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 investigations 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
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 department. 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 concerned 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, September 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
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 investigation, 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 identification, asked questions, and inquired about videotapes.

Kramer conveyed his concern that Kidwell was interfering 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
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 advance. (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 restrictions 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 suspension 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 ensuing 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
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 investigation 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 members, 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 November 2008, to treat obsessive-compulsive disorder.

Kidwell disclosed this information, albeit belatedly,

because under departmental policy police officers must
No. 11-1929 11

disclose to their supervisors when they are taking medication. As a result of Kidwell’s medication disclosure,

on January 26, 2009, Thomason ordered Kidwell to undergo 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-dutyrelated 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 evaluation, but Dr. Higginbotham refused to work with

Kidwell any further because of a dispute that occurred

when Kidwell’s worker’s compensation attorney subpoenaed 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 evaluation (along with all of his medical records) turned over
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, eventually 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. Campion’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 highspeed 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
No. 11-1929 13

Directors Miller and Richard violated his First Amendment rights by retaliating against him because of his

speeches during the union meetings of February and

August 2008. The district court granted summary judgment 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 construe 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 summary 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 deprivation likely to deter free speech; and (3) his speech was

at least a motivating factor in the employer’s actions.”
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 summary 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
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 stillsurviving 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 summary judgment, the burden of proof is split between

the parties. Initially, to establish a prima facie case of retaliation, the plaintiff must produce evidence that his

speech was at least a motivating factor—or, in philosophi-
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 between the parties, instead requiring Kidwell to satisfy the butfor 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 butfor 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
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 retaliatory motive.

A. Suspicious Timing

Kidwell argues that the alleged retaliatory employment actions taken against him leading up to the decision to seek his termination amounted to “progressive

discipline” and were close enough in time to his purportedly protected speech to allow a reasonable fact

finder to infer that the actions were taken because of
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 September 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 summary 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 determination “depends on context.” Loudermilk, 636 F.3d at 315.

Of course, “[t]he closer two events are, the more likely
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 protected 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 argument, 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 protected speech and the several alleged retaliatory employment 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 protected speech occurred on August 8, 2008, yet the next

alleged retaliatory act taken against him after that

union meeting occurred approximately five weeks later,
20 No. 11-1929

when he was suspended for two days for violating departmental policy when transporting an explosive device. 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 disciplined or terminated for inappropriate workplace behavior.” 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 intervening circumstances led to the negative responses

that he incurred.

That the department took the first negative response, issuing Kidwell a written reprimand for his “headhunting” comment, cannot be surprising; not only was

that comment insubordinate and a violation of departmental 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 . . . .”
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 informants 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 department 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 contemplating 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
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 exploding.” Therefore, this ill-advised journey—the facts

of which are not in dispute—was unquestionably dangerous 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-
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 continued 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
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 purportedly 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 employment 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 requirements of the Uniform Police Officers’ Disciplinary Act

(“UPODA”), 50 Ill. Comp. Stat. 725/1, et seq., when it
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 “systematic abandonment of its hiring policies is circumstantial 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). Moreover, 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
26 No. 11-1929

rest. See id. 725/3.1-.11. UPODA defines an “interrogation” 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). Importantly, this definition “does not include questioning (1) as

part of an informal inquiry or (2) relating to minor infractions 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-
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 violations were a pretext for a retaliatory motive instead of

simply errors. Without more, Kidwell’s conclusory argument fails.

Moreover, Kidwell cannot establish that his questioning 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 investigation 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 supervisory 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 suspension. 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
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. Therefore, 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 conversation was at best an “informal inquiry,” and therefore 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 investigating his role in the accident that occurred during

the high-speed car chase. The Danville Police Department 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 investigated by either the Vermilion County Sheriff’s Department or the Illinois State Police.” Although the accident certainly resulted in serious injury and major

property damage, Kidwell argues that Thomason’s appointment of Detective Stark—a Danville police officer—

to head the ensuing investigation violated departmental policy and therefore is evidence of a retaliatory

motive.

Detective Stark’s appointment was undoubtedly a

technical violation of the written policy terms. But
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 retaliatory 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 acknowledged that “an employer’s failure to follow policies . . .

may show . . . that the employer’s asserted reason

for termination (deficient performance) might be pretextual.” Fortier, 161 F.3d at 1114. In that case, however, 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
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, admonished verbally, and suspended for two days. Like

the employer in Fortier, here the police department

officials had determined—independently of the highspeed chase accident investigation—that Kidwell’s performance was seriously deficient. Under such circumstances, 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 purportedly protected speech, and because significant intervening 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-
No. 11-1929 31

cedure to raise an inference of retaliation. For these reasons, we AFFIRM.

5-22-12