In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2661

DAVID HUTCHINS, et al.,

Plaintiffs-Appellees,

v.

DAVID A. CLARKE, JR., et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:07-cv-00526-WEC—William E. Callahan, Jr., Magistrate Judge.

ARGUED JUNE 10, 2011—DECIDED OCTOBER 24, 2011

Before BAUER, FLAUM and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. Milwaukee County Deputy

Sheriff David Hutchins brought an action for comments made by Milwaukee County Sheriff David

Clarke regarding Hutchins’ disciplinary history with

the sheriff’s department. The district court granted the

plaintiffs’ motions for summary judgment, finding that

Sheriff Clarke violated (1) Wisconsin’s Open Records

Law, Wis. Stat. §§ 19.31-19.39; (2) Wisconsin’s Right of

Privacy statute, Wis. Stat. § 995.50; and (3) 42 U.S.C. § 1983
2 No. 10-2661

for retaliation and depriving Hutchins of his First Amendment right to free speech. We reverse the district court

on all three counts.

I. BACKGROUND

This case arises from a pair of on-air phone calls to a

popular Milwaukee, Wisconsin radio show, one from

Hutchins and the other from Sheriff Clarke. On May 17,

2007, a discussion regarding Sheriff Clarke’s avoidance

of certain African-American groups took place on the

“Eric Von Show,” a listener-interactive radio show

which is broadcasted on WMCS AM 1290. On that day,

Hutchins, a routine listener and caller, called the show

in response to the critical comments regarding Sheriff

Clarke’s involvement with an African-American community organization dedicated to reducing crime.

Hutchins was likewise critical of Sheriff Clarke, stating

words to the effect that Sheriff Clarke was not a good fit

for the Milwaukee County Sheriff position. In response

to Hutchins’ comments, Sheriff Clarke called the Eric

Von Show and retorted by calling Hutchins a “slacker”

who did not deserve to be an employee of the sheriff’s

department. Sheriff Clarke expressed the view that

Hutchins was bitter and carried a grudge against him

because of a disciplinary action taken in 2004 by him

against Hutchins. Sheriff Clarke identified this disciplinary action on-air as a step taken as a result of

Hutchins’ “sexual harassment” of another employee. In

actuality, the disciplinary action was for Hutchins’ violation of a department rule that prohibited offensive
No. 10-2661 3

conduct or language toward the public or toward county

officers or employees.

Hutchins and the Milwaukee Deputy Sheriff’s Association filed a complaint alleging that the defendants

violated Hutchins’ First Amendment right to free speech

and both plaintiffs’ First Amendment right of free association by retaliating against the plaintiffs, in violation

of 42 U.S.C. § 1983. The plaintiffs also alleged that the

defendants violated the plaintiffs’ rights under Wisconsin

statutory law, specifically under (1) Wisconsin’s Law

Enforcement Officers’ Bill of Rights, Wis. Stat. §§ 164.015,

164.03; (2) Wisconsin’s Municipal Employment Relations Act, Wis. Stat. § 111.70(2), (3) Wisconsin’s Open

Records Law, Wis. Stat. §§ 19.31-19.39; and (4) Wisconsin’s Right of Privacy statute, Wis. Stat. § 995.50(2)(c).

Both parties filed motions for summary judgment on

all counts. The district court granted summary judgment

in favor of the plaintiffs on (1) their claim under § 1983

for Sheriff Clarke’s disclosure of Hutchins’ disciplinary

history, (2) their claim under Wisconsin’s Open Records

Law, and (3) their claim under Wisconsin’s Right of

Privacy statute. The court granted the defendants’

motions for summary judgment on the remaining claims.

The defendants filed a motion for reconsideration and

the district court issued an order denying the motion.

The defendants have appealed the claims under Wisconsin’s Open Records Law, Wisconsin’s Right of Privacy

statute, and § 1983 for retaliation in Sheriff Clarke’s

disclosure of Hutchins’ disciplinary history.
4 No. 10-2661

II. DISCUSSION

A. Wisconsin’s Open Records Law

The district court granted summary judgment in favor

of Hutchins, finding that Sheriff Clarke violated Wisconsin’s Open Records Law by failing to provide notice

and failing to conduct a balancing test before orally

discussing the contents of Hutchins’ disciplinary file.

The appellants argue that the district court erred

when it applied Wisconsin’s Open Records Law to

Sheriff Clarke’s oral reference to Hutchins’ disciplinary

record. We agree and can dispose of this issue without

delving much into the district court’s analysis or the

parties’ arguments; Wisconsin’s Open Records Law

simply does not apply to the facts of this particular

case, and the plaintiffs have no claim under the statute.

Wisconsin’s Open Records Law was enacted to provide the public with “the greatest possible information

regarding the affairs of the government and the official

acts of those officers and employees who represent

them.” Wis. Stat. § 19.31. The statute provides that “except

as otherwise provided by law, any requester has a right

to inspect any record.” Wis. Stat. § 19.35(1)(a). With

regard to a record containing information about an employee’s disciplinary history, as in this case, the statute

provides that if the authority decides to permit access to

the requested record, the authority shall serve written

notice on the employee. Wis Stat. § 19.356(2)(a). When

deciding whether to open a record, the authority must

conduct a balancing test to weigh the public interest in

protecting its citizens’ reputations and privacy against the
No. 10-2661 5

The Wisconsin Open Records Law defines a record as: 1

[A]ny material on which written, drawn, printed, spoken,

visual or electromagnetic information is recorded or

preserved, regardless of physical form or characteristics,

which has been created or is being kept by an authority.

“Record” includes, but is not limited to, handwritten, typed

or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts

and optical disks. “Record” does not include drafts, notes,

preliminary computations and like materials prepared

for the originator’s personal use or prepared by the originator in the name of a person for whom the originator is

working; materials which are purely the personal property

of the custodian and have no relation to his or her office;

materials to which access is limited by copyright, patent or

(continued...)

strong public interest in maintaining open records.

Woznicki v. Erickson, 549 N.W.2d 699, 703 (Wis. 1996). Once

the employee receives notice, the employee then has

the option of seeking a court order to restrain the

authority from permitting access to the record. Wis. Stat.

§ 19.356(4).

Here, the facts in the record show that Sheriff Clarke

called into a radio show and, spontaneously or not, discussed details regarding Hutchins’ disciplinary history.

Nothing from this set of facts leads us to the conclusion

that Wisconsin’s Open Records Law should be invoked.

There was no request to inspect Hutchins’ disciplinary

record, no permission granted, and no balancing test

undertaken. Perhaps the plaintiffs themselves said it 1
6 No. 10-2661

(...continued) 1

bequest; and published materials in the possession of an

authority other than a public library which are available

for sale, or which are available for inspection at a public

library.

Wis. Stat. § 19.32(2). Because the Open Records Law is not

applicable, we save the determination of whether Sheriff

Clarke’s oral statement constituted a “record,” as that term

is used in the Open Records Law, for another day.

best in their own motion for summary judgment: “Compounding the problem is the undisputed fact that

nobody sought access to Hutchins’ personnel file in the

first place. As there was no ‘request,’ there was nothing

to ‘balance,’ and the release of such information must

be seen for what it was—an attempt to smear Hutchins

in front of the audience of the Eric Von Show . . . .” While

the plaintiffs have since changed their tune, we find

this initial argument much more persuasive than their

current one.

While Wisconsin courts have not yet considered this

issue, we believe our opinion is consistent with the trajectory of Wisconsin case law. Prior to the decision in

Woznicki v. Erickson, the Open Records Law only authorized a requester to bring an action for mandamus compelling a custodian to release a record under Wis. Stat.

§ 19.37. Woznicki changed this, holding that an employee

who wishes to keep the authority from disclosing the

requested information may also bring an action under

the statute. The Open Records Law was then amended
No. 10-2661 7

to reflect the employee’s right to sue under these circumstances. Hutchins would have us take this a step

further and create a cause of action when the procedures

in the Open Records Law were not followed, thus

turning the statute into some kind of enforceable due

process right. We must reject Hutchins’ interpretation of

the Open Records Law because it vastly expands the

causes of actions under the statute.

Although Wisconsin’s Open Records Law is not applicable here, we note that Hutchins could have (and

in some cases did) brought his complaint under a

number of more applicable theories, including but not

limited to defamation, right of privacy, or retaliation, but

Wisconsin’s Open Records Law has no application here.

While we find Sheriff Clarke’s on-air comments regarding Hutchins’ disciplinary history insensitive, not

to mention inaccurate, we cannot say that his actions

were in violation of Wisconsin’s Open Records Act, and

we reverse the decision of the district court on this issue.

B. Wisconsin’s Right of Privacy Statute

The plaintiffs argue that the defendants invaded

Hutchins’ right of privacy in violation of Wisconsin’s

Right of Privacy statute, Wis. Stat. § 995.50, and the

district court found in favor of the plaintiffs. The relevant

section of the act defines “invasion of privacy” as,

[p]ublicity given to a matter concerning the private

life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either
8 No. 10-2661

While it is true that Wisconsin courts have held that there 2

is not a blanket exemption from public disclosure for records

of closed investigations against a public employee as the

appellants argue, Wisconsin Newspress v. Sch. of Sheboygan, 546

N.W.2d 143, 148 (Wis. 1996), the common-law balancing test

still applies. Just because a disciplinary record may be disclosed does not mean it should be disclosed.

unreasonably or recklessly as to whether there was

a legitimate public interest in the matter involved, or

with actual knowledge that none existed. It is not

an invasion of privacy to communicate any information available to the public as a matter of public record.

Wis. Stat. § 995.50(2)(c).

There is most certainly a question of material fact as to

the first four factors that create the invasion of privacy

claim (which, we note, appear to weigh heavily in favor

of the plaintiffs). However, we do not reach this analysis

because the information communicated is available to

the public as a matter of public record.

The appellants’ argument with regard to the right of

privacy claim is that Hutchins’ disciplinary record is

considered a public record because the record is the

product of a closed investigation, and records of employee misconduct may be released under Wisconsin’s

Open Records Law once the investigation has concluded. The district court addressed this argument and

2

disagreed, stating that Hutchins’ disciplinary file was

not a public record, basing this conclusion on its finding

that Sheriff Clarke violated Wisconsin’s Open Records
No. 10-2661 9

Law by failing to provide notice and conduct a

balancing test.

The district court entangled its analysis of Wisconsin’s

Open Records Law with its analysis under Wisconsin’s

Right of Privacy statute and incorrectly relied on its

procedural finding under the Open Records Law when

determining whether the disciplinary record should

remain closed under the Right of Privacy statute. While

the two statutes are related laws, they are only related

in that a finding under the Open Records Law that a

record should be made public would necessarily mean

that “the information was available to the public as a

matter of public record.” This is true because both

statutes apply the same common-law balancing test

when determining whether a record is “public.” In this

case, however, the district court never made a finding as

to whether the record could be made public under

the Open Records Law (and thus under the Right of

Privacy statute). Instead, it found only that the procedures delineated in the Open Records Law were not

followed. These procedures, however, have no impact on

the question of whether a record is “public” or not;

they are merely procedural, not substantive.

Although the district court’s opinion and the parties’

briefs identified the balancing test as being pertinent to

a public records finding under the Right of Privacy

statute, all failed to adequately apply the balancing

test to the facts in this case. Because the application

of the balancing test is a question of law, we apply our

analysis independently. Milwaukee Journal Sentinel v.
10 No. 10-2661

Wisconsin courts have not defined “public record” in the 3

Privacy Act context. But, Wisconsin common law has

always recognized a concern for the privacy and reputation of

citizens and therefore used a balancing test before making

certain information public. In a decades-old case, the court

noted that:

[T]he right to inspect public documents and records at

common law is not obsolute [sic]. There may be situations

where the harm done to the public interest may outweigh

the right of a member of the public to have access to particular public records or documents. Thus, the one must be

balanced against the other in determining whether to

permit inspection.

State ex rel. Youmans v. Owens, 137 N.W.2d 470, 474 (Wis. 1966).

Wisconsin courts have repeated this fundamental principle

in nearly every public records case. See, e.g., Woznicki,

549 N.W.2d at 701; Wisconsin Newspress, 546 N.W.2d at 147;

Newspapers, Inc. v. Breier, 279 N.W.2d 179, 187 (Wis. 1979).

Wisconsin Dep’t of Admin., 768 N.W.2d 700, 708 (Wis. 2009)

(citing Wisconsin Newspress, 546 N.W.2d at 149).3

In order to determine whether Hutchins’ disciplinary

history is “information available to the public as a

matter of public record,” we weigh the public interest

in protecting its citizens’ reputations and privacy against

the strong public interest in maintaining open records,

considering the relevant factors to determine whether

the surrounding factual circumstances create an “exceptional case” not governed by the strong presumption of

openness. Hempel v. City of Baraboo, 699 N.W.2d 551, 567

(Wis. 2005). When applying the common-law balancing

test, our consideration is not of personal embarrass-
No. 10-2661 11

ment and damage to reputation, but whether disclosure

would affect any public interest. Zellner v. Cedarburg Sch.

Dist., 731 N.W.2d 240, 252 (Wis. 2007); Linzmeyer v.

Forcey, 646 N.W.2d 811, 820 (Wis. 2002) (“[T]he public

interest in protecting individuals’ privacy and reputation

arises from the public effects of the failure to honor the

individual’s privacy interests, and not the individual’s

concern about embarrassment.”).

After balancing the two interests in this case, we find

that the public interest in disclosure of this information

is not outweighed by the public interest in maintaining

it as a closed record. Many of the factors that favor nondisclosure of police officers’ personnel files are not

present in Hutchins’ case. See Hempel, 699 N.W.2d at 568-

70 (records pertaining to internal investigations may be

withheld from the public when they are the result of

a confidential investigation and disclosure would discourage other police officers and employees within the

police department from providing potentially damaging

information about a colleague); State ex rel. Journal /Sentinel,

Inc., Anne Bothwell v. Arreola, 558 N.W.2d 670, 676-77

(Wis. Ct. App. 1996) (the release of disciplinary files

might hamper the police department’s ability to conduct

an effective investigation against an accused officer);

Law Offices of William A. Pangman & Associates, S.C. v.

Zellmer, 473 N.W.2d 538, 545 (Wis. Ct. App. 1991) (disclosure of personnel records would have a “chilling effect”

on law enforcement because officers might make fewer

arrests if they knew their personnel files might be

made public as a result of the arrest); Law Offices of

William A. Pangman & Associates v. Stigler, 468 N.W.2d
12 No. 10-2661

Generally, this problem can be addressed by simply redacting 4

the identities of a victim or any individuals interviewed in

the investigation.

We note that Wisconsin cases “indicate a legislative recogni- 5

tion of a public policy interest in generally denying access to

the personnel files of police officers,” Village of Butler, 472

N.W.2d at 584, but there have been cases where police officers’ and police department employees’ disciplinary files have

been disclosed. See, e.g., Local 2489 AFSCME, AFL-CIO v. Rock

County, 689 N.W.2d 644 (Wis. Ct. App. 2004); Arreola,

558 N.W.2d 670; Isthmus Publishing Co. Inc. v. City of Madison

Police Dep’t, 1995 WL 819176 (Wis. Cir. Ct. 1995).

784, 789 (Wis. Ct. App. 1991) (release of records would

endanger officer engaged in undercover work); Village of

Butler v. Cohen, 472 N.W.2d 579, 584 (Wis. App. 1991)

((1) the possibility of cross-examination of matters in

personnel records might impair police officer’s ability or

willingness to testify in court, and (2) fewer qualified

candidates would accept employment in a position

where they could expect their personnel files are

regularly open for public review).

Nevertheless, some factors favoring non-disclosure do

apply. For example, the release of Hutchins’ disciplinary

file could jeopardize the personal privacy of the employee

who made the complaint about his offensive conduct.

See State ex rel. Ledford v. Turcotte, 536 N.W.2d 130, 132

(Wis. Ct. App. 1995). And there is a valid concern about 4

the impact of disclosing personnel files on intra-department morale. Zellmer, 473 N.W.2d at 543.5
No. 10-2661 13

See also Isthmus Publishing Co., 1995 WL 819176, at *12 6

(“Clearly police personnel have a privacy interest in keeping

reports of misconduct secret. But the interest of society in

scrutinizing the uses to which police personnel put their

powers weighs more heavily. This has been the holding

of many previous cases including Youmans and Ledford.”).

The public policies favoring disclosure include (1) the

intent of Wisconsin’s Open Records Law states that

“[t]he denial of public access generally is contrary to the

public interest, and only in an exceptional case may

access be denied,” Wis. Stat. § 19.31; (2) the public has a

particularly strong interest in being informed about its

public officials, especially in the case of law enforcement

officers, Local 2489, 689 N.W.2d at 654; and (3) the public

has entrusted its police officers to protect the community

from any wrongdoings, and the misconduct for which

Hutchins’ was disciplined “occurred in the location

where the public has entrusted [the employees] to work

and during the performance of [their] public duties, and

therefore should be more subject to public scrutiny,”

Linzmeyer, 646 N.W.2d at 819.6

In addition to these factors, which have been identified

in Wisconsin cases, there are additional relevant facts

favoring disclosure in this case. Whether the county

sheriff is performing his job in a satisfactory manner is

particularly relevant to the public interest. Criticism of

the sheriff’s performance, especially from an individual

who freely identified himself on-air as a deputy within

the sheriff’s department, gives the public a heightened

interest in the origin and motives behind that criticism.
14 No. 10-2661

We note that it is problematic when a government

employer openly discusses his employees’ disciplinary

files, and Wisconsin’s Right of Privacy statute remains a

viable form of relief. However, in this case, after applying

the common-law balancing test to Hutchins’ disciplinary

file, we conclude that there is no genuine public interest

in keeping the record closed to the public. Hutchins’

claim under Wisconsin’s Right of Privacy statute fails.

C. Unlawful Retaliation Under the First Amendment

The plaintiffs argue that Sheriff Clarke retaliated

against Hutchins for his comments on the Eric Von Show

when he disclosed Hutchins’ disciplinary history on the

radio show, and that this retaliation was in violation

of 42 U.S.C. § 1983 as a deprivation of Hutchins’ First

Amendment rights. The district court found that all the

elements of the § 1983 claim were satisfied, using the

purported Open Records Law violation as grounds for

finding an adverse action. We disagree.

It is well established that a public employee retains

First Amendment rights to free speech. Pickering v. Bd. of

Educ., 391 U.S. 563, 568 (1968); Vargas-Harrison v. Racine

Unified Sch. Dist., 272 F.3d 964, 970 (7th Cir. 2001). As a

general rule, the government cannot retaliate against its

employees for engaging in constitutionally protected

speech. Vargas, 272 F.3d at 970. When a plaintiff brings

a § 1983 claim for retaliation in violation of First Amendment rights in the employment context, our analysis

involves three steps. First, the court must determine

whether the employee’s speech was constitutionally
No. 10-2661 15

In Power, we stated that: 7

Not section 1983, but the federal statutes, such as Title VII

of the Civil Rights Act of 1964, that forbid invidious discrimination in employment, limit their protection to

victims of “adverse employment action,” which is judicial

(continued...)

protected under the Connick-Pickering test. Phelan v. Cook

County, 463 F.3d 773, 790 (7th Cir. 2006). Second, the

plaintiff must establish that the speech was a substantial or motivating factor in the alleged retaliatory action.

Id. Finally, if the plaintiff satisfies the first two steps,

the defendant has an opportunity to establish that the

same action would have been taken in the absence

of the employee’s protected speech. Id. The dispute in

this case centers around the second factor.

The appellants argue that the retaliatory action Hutchins

complains of—the on-air disclosure of his disciplinary

history—is not an “adverse employment action” to

support his § 1983 retaliation claim. The district court

addressed this concern, recognizing that Sheriff Clarke’s

comments on the Eric Von Show did not relate to the

conditions of Hutchins’ employment, but nevertheless

completed the analysis and found the action to be sufficiently adverse.

A § 1983 retaliation claim does not require an adverse employment action within the same meaning as other

anti-discrimination statutes. Spiegla v. Hull, 371 F.3d 928,

941 (7th Cir. 2004); Power v. Summers, 226 F.3d 815, 820

(7th Cir. 2000). We have explained that what was meant

7
16 No. 10-2661

(...continued) 7

shorthand (the term does not appear in the statutes themselves) for the fact that these statutes require the plaintiff

to prove that the employer’s action of which he is complaining altered the terms or conditions of his

employment . . . . Any deprivation of a legal right under

color of law that is likely to deter the exercise of free

speech, whether by an employee or anyone else, is actionable . . . [if] the circumstances are such as to make such

a refusal an effective deterrent to the exercise of a fragile

liberty. 226 F.3d at 820.

by “adverse employment action” in the § 1983 context is

that the action of which the employee is complaining must

be sufficiently adverse to deter the exercise of the individual’s right to free speech. Power, 226 F.3d at 820-21. Therefore, Hutchins need only show that Sheriff Clarke’s

disclosure was sufficiently adverse to chill his free speech.

While the district court used the purported Open Records Law violation as a basis for finding an adverse

employment action and, consequently, a § 1983 violation, we cannot conclude that Sheriff Clarke violated

Wisconsin’s Open Records Law, so we disagree with the

district court’s reasoning and undertake our own

analysis on the matter.

The appellants say that in undertaking this analysis, the

court must take into consideration Sheriff Clarke’s own

right to free speech, and they are correct. We cannot

afford one party his right to free speech while discounting

the rights of the other party. Other circuits and courts

within our circuit have addressed this situation—where
No. 10-2661 17

the alleged retaliatory action is in itself speech—by

limiting a finding of an adverse action only to situations

where the defendant’s speech is threatening, harassing,

or intimidating. See Owens v. Ragland, 313 F.Supp.2d

939, 949 (W.D. Wis. 2004); Suarez Corp. Indus. v. McGraw,

202 F.3d 676, 687 (4th Cir. 2000) (“[W]here a public official’s alleged retaliation is in the nature of speech, in the

absence of threat, coercion, or intimidation intimating

that punishment, sanction, or adverse regulatory action

will imminently follow, such speech does not adversely affect a citizen’s First Amendment rights, even

if defamatory.”).

Here, Sheriff Clarke called the Eric Von Show and

expressed his opinion that Hutchins’ criticism was a

result of Hutchins carrying a grudge against him for a

past disciplinary action. Sheriff Clarke then went on to

discuss that disciplinary action. Sheriff Clarke’s comments

about Hutchins’ disciplinary history pertain to a past

disciplinary action and in no way intimate any future

disciplinary action against Hutchins with regard to that

closed matter. Sheriff Clark’s disclosure of Hutchins’

disciplinary history did not constitute a threat, coercion,

or intimidation that punishment, sanction, or adverse

regulatory action would immediately follow, and so

were not actionable under § 1983. Even if some “harassment and ridicule” might be retaliatory speech

under § 1983 (See Bart v. Telford, 677 F.2d 622, 625 (7th

Cir. 1982)), Sheriff Clark’s statements did not rise to

that level.

The appellees direct our attention to the Sixth Circuit,

which has heard cases in which a public official has
18 No. 10-2661

responded to an individual’s criticism by revealing intimate and embarrassing details about that individual.

See, e.g., Bloch v. Ribar, 156 F.3d 673, 679-80 (6th Cir. 1998).

That circuit recognizes that in some cases where the

alleged retaliation is speech, causing “embarrassment,

humiliation, and emotional distress” that is damaging

to the plaintiff may be actionable under § 1983, regardless

of any lack of threat. Id. at 679-80. Even if we were to

follow this thinking, Hutchins’ case differs greatly from

those cases. In Bloch, the plaintiff, a rape victim, was

interviewed by a newspaper about the lack of progress

in the rape investigation and her statements were published in articles that were critical of the county sheriff’s

department. In response to the articles, the county sheriff

held a public press conference, where he released “highly

personal and extremely humiliating details” of the rape

that even the plaintiff’s husband had not been made

aware. Sheriff Clarke’s comments do not rise to the level

of the comments made in Bloch.

The record demonstrates that Sheriff Clarke’s retaliatory conduct in discussing Hutchins’ disciplinary

history was not accompanied by threat, coercion, or

intimidation intimating punishment. Accordingly, it is

not actionable under § 1983, and we reverse the decision

of the district court.

D. Pleadings 

The appellants argue that the plaintiffs did not plead

a violation of the Wisconsin Open Records Law, nor

did they plead a statutory right of privacy claim. We
No. 10-2661 19

will address each in turn and will not reverse unless we

have found the district court has abused its broad discretion to constructively amend a complaint. See

Sunstream Jet Express, Inc. v. Int’l Air Service Co., Ltd., 734

F.2d 1258, 1272 (7th Cir. 1984).

As for the Wisconsin Open Records Law, the appellants argue that the plaintiffs never raised the issue

until they submitted a reply brief in support of the plaintiffs’ motion for summary judgment. The district

court recognized that the plaintiffs’ complaint did not

formally state a cause of action under Wisconsin’s

Open Records Law, but cited to the well-known rule that

a pleading can be constructively amended when both

parties expressly or impliedly consent to the constructive

amendment. See Fed. R. Civ. P. 15(b); Matter of Prescott,

805 F.2d 719, 725 (7th Cir. 1986). The test for consent is

“whether the opposing party had a fair opportunity to

defend and whether he could have presented additional

evidence had he known sooner the substance of the

amendment.” Matter of Prescott, 805 F.2d at 725 (quoting

Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456

(10th Cir. 1982)). Here, we are satisfied that the complaint was constructively amended to include an Open

Records Law violation, as the defendants impliedly

consented to litigating the issue. The plaintiffs plainly

stated in their own brief in opposition to defendants’

motion for summary judgment and in support of plaintiffs’ motion for summary judgment that Sheriff

Clarke violated Wis. Stat. §§ 19.31-19.39. Furthermore,

the defendants were not unfamiliar with the substance

of the Open Records Law; they used the statute as their
20 No. 10-2661

own defense to the plaintiffs’ right of privacy claim in

their own brief and reply brief in support of their

motion for summary judgment. The district court did

not abuse its discretion in finding that the parties consented to the constructive amendment of the pleadings

to include a claim under Wisconsin’s Open Records Law.

The appellants also argue that the plaintiffs did not

plead a statutory right of privacy claim under Wis. Stat.

§ 995.50 with specificity because the claim was initially

classified as “liberty interest-right of privacy.” Again, we

are satisfied that the complaint was constructively

amended to include a privacy violation under the Wisconsin statute. The ad damnum clause in the plaintiffs’

complaint states that the defendants violated Hutchins’

privacy rights under Wis. Stat. § 995.50. Also, the defendants address the elements of the plaintiffs’ § 995.50

claim in their brief in response to the plaintiffs’ motion for

summary judgment. The district court did not abuse

its discretion in finding that the parties consented to

the constructive amendment of the pleadings to include

a claim for a right of privacy violation under Wis.

Stat. § 995.50.

III. CONCLUSION

For the reasons stated above, we REVERSE the

decision of the district court and REMAND for further

proceedings consistent with the findings expressed herein.
No. 10-2661 21

WILLIAMS, Circuit Judge, concurring. I join the

majority’s opinion in full except as to Part II.C. I agree

that, given the facts of this case, Sheriff Clarke’s discussion of Hutchins’s disciplinary history is not actionable under § 1983. I write separately to note that I do not

read the majority’s opinion to overturn our circuit’s longstanding recognition that retaliatory speech may be

actionable under § 1983 if it is likely to deter a person

of ordinary firmness from exercising his First Amendment rights, even if not accompanied by a threat,

coercion, or intimidation intimating punishment.

We have long recognized such claims. For example, in

Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982), the

plaintiff complained of a “campaign of petty harassments” designed to punish her for having run for public

office and endorsing a candidate at a press conference

following the primary election. Among other things, she

was allegedly ridiculed for bringing a birthday cake to

her office to celebrate a co-worker’s birthday. Finding

that a “campaign of harassment which though trivial

in detail may have been substantial in gross,” we reversed

the district court’s dismissal of the complaint and remanded for a factual determination of whether the

alleged “campaign reached the threshold of actionability

under section 1983.” Id. at 625.

We reiterated this point in DeGuiseppe v. Village of

Bellwood, 68 F.3d 187, 192 (7th Cir. 1995), by explaining

that “even minor forms of retaliation” such as “diminished responsibilities” or “false accusations” can be

actionable under the First Amendment if sufficiently
22 No. 10-2661

adverse to chill employee speech on matters of public

concern. Since then, we have consistently applied this

standard. E.g., Fairley v. Fermaint, 482 F.3d 897, 903 (7th Cir.

2007) (“Suppose the white guards at a prison mercilessly

harass the black guards and make their lives miserable, or

suppose the men demean the women. Such misconduct

may be actionable under the Constitution.”); Massey v.

Johnson, 457 F.3d 711, 721 (7th Cir. 2006) (“In the first

amendment context, harassment . . . may be actionable if

it is designed to deter a public employee’s free speech.”);

Tierney v. Vahle, 304 F.3d 734, 740 (7th Cir. 2002)

(“[D]efamation inflicts sufficient harm on its victim to

count as retaliation . . . .”).

Our standard for actionable retaliatory speech was

acknowledged with approval by the Supreme Court in

Rutan v. Republican Party of Illinois. 497 U.S. 62, 76 n.8

(1990) (“[T]he First Amendment . . . protects state employees . . . from ‘even an act of retaliation as trivial as failing

to hold a birthday party for a public employee . . . when

intended to punish her for exercising her free speech

rights.’ ” (quoting Rutan v. Republican Party of Ill., 868

F.2d 943, 954 n.4 (7th Cir. 1989) (citing Bart, 677 F.2d at

622))). And it has been adopted or reaffirmed by a

majority of our sister circuits. See, e.g., Welch v. Ciampa,

542 F.3d 927, 937 (1st Cir. 2008) (recognizing retaliatory

harassment may be actionable under objective test);

Coszalter v. City of Salem, 320 F.3d 968, 976 (9th Cir. 2003)

(same); Naucke v. City of Park Hills, 284 F.3d 923, 928 (8th

Cir. 2002) (same); Toolasprashad v. Bureau of Prisons, 286

F.3d 576, 584-85 (D.C. Cir. 2002) (same); Bloch v. Ribar, 156

F.3d 673, 679-80 (6th Cir. 1998) (same); Bernheim v. Litt, 79
No. 10-2661 23

F.3d 318, 325-26 (2d Cir. 1996) (same). But see McLaughlin

v. Watson, 271 F.3d 566, 573-74 (3d Cir. 2001) (holding

that speech must be a threat or coercion to be actionable); Colson v. Grohman, 174 F.3d 498, 513-14 (5th Cir.

1999) (holding that, in the First Amendment employment

context, harassing speech must constitute “constructive

adverse employment action” to be actionable); cf. Keenan

v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002) (recognizing

that outside of the employment context, speech that

would “chill a person of ordinary firmness” is actionable). Indeed, even the Fourth Circuit case cited by the

majority accepts that retaliatory speech that is “sufficiently embarrassing, humiliating, or emotionally distressful” may be “one possible exception” to its rule

requiring a threat of punishment for cognizability.

Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 688 (4th

Cir. 2000).

In light of our enduring recognition that harassing

retaliatory speech may be actionable under § 1983,

I write separately to make clear that the majority’s

position neither deviates from nor disturbs this wellsettled position. Given the facts of this case, I—like the

majority—do not believe that Sheriff Clarke’s statements rise to the level of actionability. I therefore concur.

10-24-11