Date: 06-19-2018

Case Style:

Case Number: 17-2687

Judge: Flaum

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois

Plaintiff's Attorney: Tom Crooks

Defendant's Attorney: James Gus Sotos, James Gus Sotos, Elizabeth Kathleen Barton and Jeffrey Neil Given

Description: Plaintiff Scott A. Milliman, Sr. is a
former McHenry County Sheriff’s Deputy. While working for
the McHenry County Sheriff’s Department (“MCSD”),
Milliman gave a deposition in which he accused Sheriff Keith
Nygren of corruption, bribery, securing fraudulent loans,
trafficking illegal aliens, and soliciting the murder of two
individuals. Based upon these allegations, Nygren and his
subordinates referred Milliman to a psychologist to evaluate
2 No. 17‐2687
whether he was fit for duty. The psychologist determined that
Milliman suffered from cognitive and psychological
problems from a previous brain tumor in his right frontal lobe
that rendered him unfit to perform his duties. MCSD
terminated Milliman based upon the results of the fitness
examination, the false allegations against Nygren, and
violations of multiple MCSD General Orders. In response,
Milliman sued Nygren, Nygren’s subordinates, and the
county in federal district court under 42 U.S.C. § 1983.
Milliman claimed that defendants violated his First
Amendment rights by retaliating against him for making
protected speech. The district court granted summary
judgment to defendants on the ground that the fitness‐forduty
examination provided an independent, non‐retaliatory,
non‐pretextual basis for Milliman’s termination. For the
reasons below, we affirm.
I. Background
Milliman became a McHenry County Sheriff’s Deputy on
March 2, 1998. In December 2001, Milliman was diagnosed
with brain cancer. On July 21, 2002, Milliman underwent brain
surgery and went on extended medical leave to recover. Before
returning to work, Dr. Christopher Grote evaluated Milliman
and determined that he was fit for duty. Milliman returned
to MCSD on November 17, 2003.
A. Milliman’s 2010 Deposition
In November 2010, former MCSD Sheriff’s Deputy Zane
Seipler brought a case against MCSD. The details of Seipler’s
suit are not relevant here, other than the fact that Milliman
gave a deposition in the course of the litigation, during which
No. 17‐2687 3
he testified that Nygren and a local businessman, Jose Rivera,
engaged in numerous criminal activities.
First, Milliman maintained that Nygren participated in
bribery schemes. For example, he testified that Rivera told
him about a scheme in which Nygren and Rivera fixed nonvalid‐
driver’s‐license tickets for a $1,000 fee. Additionally,
Milliman claimed Rivera told him that Nygren received a
$10,000 bribe to help an individual reinstate a liquor license,
and that same individual later contributed more than $5,000
cash to Nygren’s sheriff campaign.
Next, Milliman testified that Rivera and Nygren tried to
recruit him into a Small Business Administration (“SBA”)
loan fraud scheme in 2001 or 2002. According to Milliman, Rivera
told him they sent undocumented individuals to a
woman named “Maria” at Elgin State Bank to fill out an application
for an SBA loan. Nygren and Rivera would give
$10,000 of the proceeds to the undocumented individual and
split the remaining proceeds between them. The borrower
would then default on the loan and return to Mexico. Milliman
testified that Nygren and Rivera later moved the scheme
to Home State Bank.
Third, Milliman testified that Rivera and Nygren tried to
recruit him to participate in a scheme to traffic undocumented
immigrants into McHenry County. According to Milliman,
Rivera and Nygren charged $1,100 per person to bring individuals
from Zacatecas, Mexico to an apartment complex in
Woodstock, Illinois.
Finally, Milliman testified that Nygren solicited him to kill
two individuals. Milliman claimed that, in 1999, Nygren
asked him to push retired McHenry County Circuit Judge
4 No. 17‐2687
Conrad Floeter—who at the time was the campaign manager
for Nygren’s opponent for sheriff—in front of a train. Additionally,
Milliman said that in 2009, Nygren asked him to
“hang” David Bachmann, a local internet blogger who made
comments about Nygren, and make sure “that it looks like a
suicide.”
Milliman testified that in 2007, he called Patrick Fitzgerald,
the United States Attorney for the Northern District of Illinois,
and reported Nygren’s criminal conduct. According to
Milliman, he then met with several FBI agents.
B. MCSD’s Investigation
Nygren and several of his subordinates received copies of
Milliman’s deposition transcript from the Seipler case. Undersheriff
Andrew Zinke and Commander John Miller investigated
the matter. After reading Milliman’s deposition, Miller
determined that, due to the bizarre nature of the allegations,
Milliman might have been suffering from “psychological difficulties.”
Miller drafted a memorandum recommending that
Milliman be placed on administrative leave and sent for a fitness‐
for‐duty examination and that an independent agency
look into Milliman’s allegations. Miller also noted that he
would look into the FBI’s response to Milliman’s allegations.
Although Miller recommended handling the matter as a medical
issue instead of a disciplinary one, the investigation file
was titled “Termination Review.”
On December 23, 2010, Milliman was placed on administrative
leave and ordered to attend a fitness‐for‐duty psychological
examination with Dr. Robert Meyers. Milliman objected
to Dr. Meyers on the ground that he had a personal reNo.
17‐2687 5
lationship with Nygren and had contributed to Nygren’s campaign.
Instead, Milliman’s counsel requested a neutral examiner.
Defendants chose Dr. Grote, who performed Milliman’s
fitness‐for‐duty examination in 2003.1
Meanwhile, Zinke sent a letter to the FBI requesting information
about its investigation into Milliman’s allegations. In
response, the FBI stated that it could “confirm that Deputy
Milliman has approached our office in the past and provided
information in confidence that he felt may be of interest to the
FBI.” It further stated that “[w]here appropriate, investigation
was conducted to determine the validity of the allegations,”
but that “none of the information provided by Deputy Milliman
was determined to have prosecutive merit.”
C. Dr. Grote’s Fitness‐for‐Duty Examination
On February 12, 2011, Dr. Grote conducted Milliman’s fitness‐
for‐duty examination. In the narrative portion of his report,
Dr. Grote wrote that Milliman was:
Extremely disorganized and “derailed” in interview.
He was over‐inclusive, tangential and very difficult to
follow at certain points in the interview, particularly
when he was describing his allegations about corruption
in McHenry County. It typically would take over
5 minutes for him to describe a specific allegation,
1 There is some dispute about who suggested Dr. Grote as the neutral
examiner. At his deposition, Milliman testified that he provided Dr.
Grote’s name, but Milliman’s counsel wrote a letter to MCSD in which he
just requested “any neutrally chosen psychologist.” Because we must resolve
this conflict in plaintiff’s favor at summary judgment, we assume
that defendants selected Dr. Grote.
6 No. 17‐2687
which I would later summarize for him in 30 seconds
or less to see if this is what he was alleging.
Dr. Grote’s report further stated that Milliman “would typically
veer from one story to another, or make an unclear allegation
about one thing before going on to another unclear allegation.”
Accordingly, Dr. Grote had to provide “structure,”
rephrasing and summarizing Milliman’s statements, “to understand
what [Milliman] was alleging.” Dr. Grote wrote that,
“[a]t other times, there seemed to be a lack of logic, or even
possibly a hypomanic element to some of [Milliman’s]
claims.”
For example, Milliman told Dr. Grote that the FBI agents
got angry with him because he followed them while they followed
another subject. According to Dr. Grote, Milliman’s explanation
of that incident was “incomprehensible.” Milliman
also told Dr. Grote that the purpose of MCSD’s officer exchange
program was to “take over” the town of Zacatecas,
Mexico. Moreover, Milliman claimed that Chipotle took his
idea in creating its restaurant chain. In addition to being difficult
to understand, Dr. Grote found some of Milliman’s stories
“hard to believe.” Nevertheless, it appeared to Dr. Grote
that “[Milliman] believed what he said.”
According to Dr. Grote’s report, Milliman also shared several
personal facts about himself. During the interview, Milliman
told Dr. Grote that following his brain surgery in 2002,
he was no longer able to remember anything from his birth in
1961 until 1996, including his schooling, marriage, or children.
The only thing he could remember was the 1985 Super
Bowl Champion Chicago Bears. Milliman had not mentioned
this memory loss during his 2003 examination. A week after
the interview, Milliman called Dr. Grote and contradicted his
No. 17‐2687 7
prior statement, claiming his memory loss was only between
1980 and 1990. Dr. Grote asked Milliman why he had not mentioned
the memory loss in 2003 and why his account of his
memory loss had changed. Milliman responded that he
“wasn’t aware of these discrepancies in self‐report and didn’t
know what to make of them.”
Milliman also completed several psychological tests and
scored mostly in normal ranges, performing about the same
or better than he did in 2003, with a few key exceptions. Specifically,
Dr. Grote noted that Milliman was “now doing better
on nonverbal ability and nonverbal learning and memory,”
and that “[o]ther cognitive test scores are similar to before.”
However, Milliman’s verbal skills were in the “borderline impaired
range” and “[h]is lack of ‘general knowledge’ … was
rather striking.” For instance, “he answered that the sun rose
in the west, that Brazil was on the continent of Spain, etc.” In
addition, Milliman scored poorly on the Rey Complex Figure
test, which is “consistent” with frontal lobe dysfunction.
Dr. Grote also discussed Milliman’s results on the Minnesota
Multiphasic Personality Inventory‐2 (“MMPI‐2”). Milliman’s
results were consistent with “significant feelings and
symptoms of paranoia, feelings of being persecuted, disorganized
or dysfunctional cognition and emotions, and difficulty
working with figures of authority.” Dr. Grote explained
that “[i]n 2003, he had shown a significant elevation on only
one of the critical scales (scale 4); thus his current MMPI‐2
profile shows more evidence of psychiatric problems and
symptoms than in 2003.” In comparing Milliman’s 2003 and
2011 results, Dr. Grote also noted that “the 2003 evaluation
did not indicate the disorganization now seen in conversation
8 No. 17‐2687
and on some testing, nor in 2003 was there any reference to
claimed loss of autobiographical memories.”
At his deposition in this case, Dr. Grote testified that, due
to the prospect of Milliman losing his job, his MMPI‐2 score
could have reflected his present mental state rather than a
longstanding permanent trait. However, Dr. Grote also clarified
that Milliman’s feelings on the day in question could not
completely explain his MMPI‐2 results.
Dr. Grote also interviewed several “collaterals” in Milliman’s
life, including Miller and Nygren. Miller told Dr. Grote
that he was unaware of any basis for Milliman’s allegations.
He also informed Dr. Grote that the retirement age for deputies
was fifty (Milliman’s age at the time) and that Milliman
had disability options. Miller said he sometimes questioned
whether Milliman was being honest, citing as an example Milliman’s
claims in an unrelated class action lawsuit in which
Milliman was a plaintiff.
In addition, Miller forwarded Dr. Grote a report from the
Algonquin Police Department detailing an incident involving
Milliman while he was on administrative leave. According to
the report, Milliman and an individual named Mrs. Prate
were studying for a real estate exam at Mrs. Prate’s house.
Mrs. Prate’s husband entered the house and “overheard his
wife and Mr. Milliman discussing their affair and their plan
to have Mr. Prate killed and how this would affect the titling
of the Prate home.” Miller did not send Dr. Grote the supplemental
police report, which explained that, in fact, Milliman
was just discussing a hypothetical question in his real estate
textbook about ownership of property after sudden death.
Miller also sent Dr. Grote a memorandum in which he wrote
that, to his knowledge, the FBI might have met with Milliman
No. 17‐2687 9
in 2007 but did not conduct an investigation into his claims.2
Miller said in his memorandum that he would look into it further.
Meanwhile, Nygren told Dr. Grote that “Milliman made
false claims that had no basis, and as such that his office could
initiate termination proceedings if no extenuating circumstances
(such as a disabling condition) could explain the making
of these claims.” Nygren knew that Milliman had previously
been treated for a brain tumor and wanted to know if
his allegations were the result of a medical or psychological
condition.
When Dr. Grote asked Milliman for another deputy who
could give Milliman’s side of the story, Milliman told him to
talk to Deputy Bodden. Bodden told Dr. Grote that he “was
not aware of any particular problems with Mr. Milliman’s performance
as a deputy, but did mention that his memory could
be ‘goofy’ at time[s].” For example, Bodden explained that
Milliman could remember the make and model of a car involved
in a crime from five years ago, but could not remember
if he was supposed to work the next day.
Dr. Grote also spoke to Milliman’s wife. She said she did
not witness any change in Milliman’s behavior after his surgery.
She also said that, until the previous year, she had not
been aware of Milliman’s association with the FBI. When
asked about her husband’s memory loss, she said that after
his brain surgery he lost his memory of the 1980s.
2 Miller denies sending the memorandum to Dr. Grote. However, the
first page of the memorandum was found in Dr. Grote’s file. We resolve
this dispute in plaintiff’s favor for purposes of summary judgment.
10 No. 17‐2687
As a result of his overall examination, Dr. Grote concluded
that “Milliman is judged to now have cognitive and psychological
problems that seem to significantly interfere with his
ability to effectively work as a deputy sheriff … consistent
with the effects of his having had a right frontal lobe (insula
cortex) brain tumor along with chemotherapy and radiation.”
In support of his conclusion, Dr. Grote cited Milliman’s: (1)
disorganized conversation consistent with frontal lobe dysfunction;
(2) disorganization and impairment on some tests of
cognitive ability, also consistent with frontal lobe dysfunction;
(3) autobiographical memory loss and “shifting claims” of
memory loss that are “suggestive of psychiatric impairment,
possibly secondary to brain dysfunction”; (4) abnormal
MMPI‐2 profile that is “suggestive of significant psychiatric
impairment, particularly of feelings of paranoia and dysfunctional
thoughts and emotions, and a lack of insight on his
part,” which is “likely at least partially secondary to his
frontal lobe dysfunction”; and (5) poor judgment, as reflected
by his uncorroborated allegations of corruption and conspiracy
and the incident at the Prate residence. Dr. Grote further
noted that Milliman’s “problems with judgment, disorganization
and communication all would seem to interfere with his
work duties and all are consistent with the effects of his illness
and treatment.”
Dr. Grote acknowledged that “[t]he final interpretation of
Mr. Milliman’s behavior and allegations could change somewhat
in the future, depending on what, if anything, might
later be revealed from the FBI files, other ‘undercover’ operations
alleged to be ongoing, or new/conclusive information
about what really happened at the Prate residence.” However,
Dr. Grote also wrote that “new or different information that
No. 17‐2687 11
might come out in the future would not ‘undo’ the problems
seen at present.”
D. Milliman’s Termination
After receiving Dr. Grote’s report, Nygren and the MCSD
encouraged Milliman to retire with disability benefits in lieu
of termination. However, Milliman did not submit the required
disability paperwork. As a result, Milliman was terminated
for: (1) making false allegations against Nygren in the
Seipler deposition; (2) violating multiple MCSD General Orders;
and (3) being unfit to perform his duties as a deputy.
E. The Present Litigation
On December 9, 2011, Milliman filed a § 1983 lawsuit
against Nygren, Zinke, Miller, and other officers. He alleged
that defendants retaliated against him for his 2010 deposition
testimony in violation of the First Amendment; interfered
with his freedom of association in violation of the First
Amendment; and engaged in a civil conspiracy to do the same
under state law. Milliman also brought a Monell claim against
Nygren in his official capacity as the final policymaker responsible
for his termination.
In response to a subpoena, the FBI produced 187 pages of
heavily redacted documents. Those documents show that
Milliman brought all of the complaints mentioned in his 2010
deposition testimony, and many more, to the FBI’s attention.
In 2006, Milliman began working as a cooperating witness for
the FBI. He wore a recording device and attempted to get Rivera
and Nygren to make incriminating statements. However,
Milliman was unable to elicit any such statements, and he
stopped working with the FBI in 2009. The FBI concluded that
all of his claims lacked prosecutive merit.
12 No. 17‐2687
During his deposition for this case, Milliman testified to
the same allegations of criminal conduct that he discussed in
the Seipler case. For example, to support an inference of an
SBA loan fraud scheme involving Nygren and Rivera, he
pointed to a 2010 consent order between Elgin State Bank and
the Federal Deposit Insurance Corporation. However, he admitted
that he could not point to an example of a loan that
would support his allegations, and he conceded that he did
not fully understand what the consent order was about. In response
to a subpoena, Elgin State Bank stated it did not have
any relationship with any of the individuals alleged to be involved.
Milliman similarly pointed to a 2010 agreement between
Home State Bank and the Comptroller of the Currency to support
an inference of fraudulent SBA loan activity at that bank.
However, the CEO of Home State Bank, Steve Slack, testified
that he had no knowledge of an SBA loan fraud scheme and
that the bank did not possess documents that would reflect
such a scheme. Rather, Slack testified that the agreement between
Home State Bank and the Comptroller was the result of
the 2008 financial crisis and addressed all aspects of their
banking practices—not SBA loans in particular. Nevertheless,
Slack agreed that it would be possible for individuals to defraud
the bank by procuring SBA loans.
Rivera testified that he knew an individual named Maria
Villareal who had worked at both banks. Rivera further testified
that he had personally received loans from Home State
Bank in excess of the value of his real estate holdings. Based
upon Rivera’s personal loan history, Milliman testified that
one could infer fraudulent loan activity. However, Milliman
No. 17‐2687 13
admitted at his deposition that Rivera’s loans could have been
legitimate.
Next, to support his allegations regarding the ticket‐fixing
scheme, Milliman produced McHenry County Court records
showing forty‐four examples of criminal charges being dismissed
or significantly reduced for individuals who made
campaign contributions to Nygren. However, there are often
long time gaps between the campaign contribution and the
dropping of charges. Milliman admitted that he did not speak
with any individual on the list, nor did he speak with any
prosecutor regarding the decisions behind the dismissed tickets.
Likewise, with respect to the $10,000 bribe to reinstate a
liquor license, Milliman testified that he did not see Rivera
give Nygren $10,000, did not speak with Nygren about it, and
knew of no witnesses to the scheme. Milliman further admitted
that it is possible it never happened.
Next, Milliman retracted his claim that Nygren solicited
him to murder Judge Floeter. However, he maintained that
Nygren asked him to hang David Bachmann. Milliman testified
that he immediately reported this solicitation to the FBI
and was given a wired key fob to bring with him the next time
he met with Nygren. However, Milliman testified that Nygren
did not ask him to murder Bachmann the next time they
met because he “was probably tipped off.”
As proof of the human trafficking scheme, Milliman testified
that in 2007 he met a truck driver from Zacatecas, Mexico
who said Jose Rivera brought him into the country. Milliman
admitted that the man did not tell him that he gave Rivera any
money, and called it a “guess” that this man was part of Rivera’s
illegal trafficking scheme. Milliman also testified that
the manager of Stone Lake Apartment Complex told him that
14 No. 17‐2687
the complex was heavily populated with individuals from Zacatecas.
F. Dr. Dawkins’s Expert Report
Milliman retained a clinical psychologist, Marva P. Dawkins,
as an expert to review Dr. Grote’s report. Dr. Dawkins
has conducted or supervised more than 3,000 fitness‐for‐duty
examinations in her career. To prepare her expert report, Dr.
Dawkins reviewed Dr. Grote’s documents and held a twohour
interview with Milliman.
Dr. Dawkins concluded that Dr. Grote placed too much
weight on the corruption allegations and the department’s
opinions of Milliman. According to Dr. Dawkins, Dr. Grote
should have relied more on the objective test results, which
she interpreted to be similar to the results from the 2003 test.
Although Dr. Dawkins acknowledged that the MMPI‐2 results
showed abnormalities compared to 2003, she believed
that the results were more likely situational than due to psychiatric
impairment. With respect to Milliman’s disorganized
and derailed manner in conversation, Dr. Dawkins opined
that this was not corroborated by the test data or collateral
sources. Dr. Dawkins further believed that Dr. Grote failed to
explain how and to what extent Milliman’s amnesia would interfere
with his job duties. Nevertheless, Dr. Dawkins did not
state that Dr. Grote’s ultimate conclusion was incorrect or that
Milliman was, in fact, fit for duty.
G. The District Court’s Summary Judgment Order
On August 7, 2017, the district court granted summary
judgment for defendants on all claims, ruling that Dr. Grote’s
No. 17‐2687 15
report provided an independent, non‐retaliatory, non‐pretextual
reason for Milliman’s termination. This appeal followed.
II. Discussion
We review the district court’s grant of summary judgment
de novo. Swetlik v. Crawford, 738 F.3d 818, 826 (7th Cir. 2013).
Summary judgment is appropriate if there is no genuine dispute
of material fact and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). “In applying this
standard we draw all reasonable inferences and resolve factual
disputes in favor of the nonmoving party ….” Malen v.
MTD Prods., Inc., 628 F.3d 296, 303 (7th Cir. 2010).
A. First Amendment Retaliation Claim3
“The First Amendment, incorporated against the states
through the Fourteenth Amendment, shields government
employees from retaliation for engaging in protected speech.”
Diadenko v. Folino, 741 F.3d 751, 755 (7th Cir. 2013). To prevail
on a First Amendment retaliation claim, “a public employee
must show that: (1) she engaged in constitutionally protected
speech; (2) she suffered a deprivation because of her employer’s
action; and (3) her protected speech was a but‐for
cause of the employer’s action.” Id.
With respect to the third factor, a plaintiff must “show that
a violation of his First Amendment rights was a motivating
factor of the harm he’s complaining of.” Thayer v. Chiczewski,
705 F.3d 237, 251 (7th Cir. 2012) (internal quotation marks
3 Milliman’s freedom of association claim also arises under the First
Amendment and is analyzed under the same legal test. Therefore, it rises
or falls with his retaliation claim.
16 No. 17‐2687
omitted) (quoting Greene v. Doruff, 660 F.3d 975, 977 (7th Cir.
2011)). After the plaintiff makes that showing, “the burden
shifts to the defendant to show that the harm would have occurred
anyway.” Id. at 251–52 (quoting Greene, 660 F.3d at 977).
“Once a defendant produces evidence that the same decision
would have been made in the absence of the protected speech,
the burden shifts back to the plaintiff to demonstrate that the
proffered reason was pretextual and that the real reason was
retaliatory animus.” Id. at 252. “At the summary judgment
stage, this means a plaintiff must produce evidence upon
which a rational finder of fact could infer that the defendant’s
proffered reason is a lie.” Id. (quoting Zellner v. Herrick, 639
F.3d 371, 379 (7th Cir. 2011)).
Ordinarily, “the persuasiveness of an employer’s nonretaliatory
explanation … is ‘for the finder of fact to assess.’”
Massey v. Johnson, 457 F.3d 711, 719 (7th Cir. 2006) (quoting
Venters v. City of Delphi, 123 F.3d 956, 973 (7th Cir. 1997)).
However, “summary judgment should be granted when, in
light of the defendant’s unrebutted evidence, ‘the court can
say without reservation that a reasonable finder of fact would
be compelled to credit the employer’s case on this point.’” Id.
(quoting Venters, 123 F.3d at 973). “We have repeatedly
emphasized that when ‘assessing a plaintiff’s claim that an
employer’s explanation is pretextual, we do not … secondguess[]
an employer’s facially legitimate business decisions.’”
Lord v. High Voltage Software, Inc., 839 F.3d 556, 564 (7th Cir.
2016) (alterations in original) (quoting Argyropoulos v. City of
Alton, 539 F.3d 724, 736 (7th Cir. 2008)). “An employer’s
reasons for firing an employee can be ‘foolish or trivial or even
baseless,’ as long as they are ‘honestly believed.’” Id. (quoting
Culver v. Gorman & Co., 416 F.3d 540, 547 (7th Cir. 2005)).
No. 17‐2687 17
Here, Milliman’s speech was clearly a motivating factor in
defendants’ decision to terminate his employment. Indeed,
the termination letter identifies Milliman’s false accusations
as one of the reasons for his termination. However, defendants
argue that Milliman would have been fired anyway because
they honestly believed, based upon Dr. Grote’s psychological
report, that Milliman was unfit to perform his duties.
Plaintiff does not dispute that defendants have met their burden
at the second step. Therefore, the question is whether Milliman
has produced sufficient evidence from which a jury
could reasonably infer that defendants’ proffered reason is
pretextual.
To meet this burden, Milliman claims that a jury could reasonably
find that Dr. Grote’s conclusions were not independent.
This is so, Milliman argues, because defendants deliberately
gave Dr. Grote false, misleading, and irrelevant information
in an attempt to influence his decision in various
ways. Specifically, Milliman points to the following statements
and communications:
1. Miller told Dr. Grote he had concerns about Milliman’s
honesty arising out of an unrelated class action
lawsuit in which Milliman was a plaintiff;
2. Miller sent Dr. Grote a memorandum in which he
wrote that, to his knowledge, the FBI had not conducted
an investigation into Milliman’s claims;
3. Miller told Dr. Grote that Milliman was eligible for
retirement and could go on disability;
4. Miller forwarded Dr. Grote an incomplete set of police
reports indicating that Milliman was overheard
planning to kill Mr. Prate, but did not forward a
18 No. 17‐2687
supplemental report which showed that, in fact,
Milliman was just discussing a hypothetical question
in his real estate textbook; and
5. Nygren told Dr. Grote that Milliman’s claims were
false, and that he could therefore be terminated unless
extenuating circumstances, such as a disabling
condition, could explain his allegations.
Milliman argues that these communications were intended to
attack Milliman’s credibility and persuade Dr. Grote that Milliman
would be better off if he was found unfit.4
Contrary to plaintiff’s assertion, these statements do not
undermine the independence of Dr. Grote’s conclusion that
Milliman was unfit for duty. True, Dr. Grote cited Milliman’s
“bad judgment” with respect to the uncorroborated conspiracy
allegations and the Prate incident as one of the reasons for
his fitness determination. Dr. Grote also acknowledged that
“[t]he final interpretation of Mr. Milliman’s behavior and allegations
could change somewhat in the future, depending on
what, if anything, might later be revealed from the FBI files,
other ‘undercover’ operations alleged to be ongoing, or
new/conclusive information about what really happened at
the Prate residence.” Critically, however, Dr. Grote stated in
his report that “new or different information that might come
4 Milliman does not claim that it was improper for Dr. Grote to speak
to Miller and Nygren as part of his examination. Indeed, even Dr. Dawkins
testified that it was appropriate for Dr. Grote to get “collateral information”
because “[h]e needed to have some corroboration from people
who knew the deputy.” Dr. Grote also spoke to individuals who would
give Milliman’s side of the story, including Milliman’s wife, Deputy Bodden,
and Milliman’s attorney.
No. 17‐2687 19
out in the future would not ‘undo’ the problems seen at present.”
Moreover, Dr. Grote cited several additional reasons to
support his conclusion that Milliman was unfit. Those reasons
include: Milliman’s disorganized and derailed conversation
during the interview; his impairment on some of the cognitive
tests; his conflicting self‐reports of memory loss; and his abnormal
test results on the MMPI‐2. All of these factors are consistent
with frontal lobe dysfunction resulting from Milliman’s
brain tumor, chemotherapy, and radiation. Thus, Dr.
Grote’s conclusion did not depend upon Milliman’s credibility,
5 the truth of Milliman’s accusations against Nygren, the
FBI’s investigation into those allegations, or what actually
happened at the Prate residence.
Nor did Miller and Nygren’s statements about Milliman’s
potential termination, retirement eligibility, and disability
benefits influence Dr. Grote’s fitness finding. If anything,
these statements indicate that defendants believed they could
terminate plaintiff’s employment regardless of Dr. Grote’s conclusion.
If so, defendants would not need to pressure Dr.
Grote to manufacture a pretextual reason to fire Milliman.
Furthermore, although Dr. Grote referenced these statements
when summarizing his interviews with Nygren and Miller,
he never relied on them as a reason for finding Milliman unfit.
Given the numerous other reasons cited by Dr. Grote, a jury
5 Although both Miller and Nygren expressed concerns about Milliman’s
honesty, it seems Dr. Grote found Milliman credible. In his report,
Dr. Grote said that Milliman “always seemed to answer questions in a way
that he found to be truthful and accurate.” Dr. Grote also noted that,
“[w]hile it is possible that [Milliman] was deliberately lying to me some
or all of the time, it instead appeared to me that he believed what he said.”
20 No. 17‐2687
could not reasonably infer that these statements—which comprise
just two sentences in a thorough sixteen‐page report—
improperly influenced his overall conclusion.
Next, Milliman argues that a jury could reasonably infer
Dr. Grote’s report is pretextual because the results of the psychological
testing were nearly identical to the results in 2003
when Milliman was found fit for duty. Not so. Although the
2003 and 2011 results are largely the same, Dr. Grote found
that there was a meaningful difference in Milliman’s scores
on two sub‐tests of the MMPI‐2. Specifically, Dr. Grote opined
that Milliman’s results on those sub‐tests showed “feelings of
paranoia and dysfunctional thoughts and emotions, and lack
of insight.”
Milliman asserts that his MMPI‐2 results did not indicate
a permanent psychological trait, but simply reflected his mental
state on the day in question. To support that assertion, he
points to Dr. Grote’s testimony that Milliman’s MMPI‐2
scores might have been partially explained by the threat of
being terminated. However, Dr. Grote also stated that this
could not completely explain Milliman’s test results. In other
words, the test results reflected, at least to some degree, an
underlying psychological condition.
Moreover, even if the MMPI‐2 results were driven in part
by a temporary mental state, there were numerous other indicators
of frontal lobe dysfunction. Therefore, any potential
misreading of the MMPI‐2 does not undermine Dr. Grote’s
overarching conclusion that Milliman has “cognitive and psychological
problems that are consistent with the effects of his
having had a right frontal lobe (insula cortex) brain tumor
along with chemotherapy and radiation.” More importantly,
it does not weaken the defendants’ reasonable reliance on Dr.
No. 17‐2687 21
Grote’s conclusion that Milliman had “cognitive and psychological
problems that seem to significantly interfere with his
ability to effectively work as a deputy sheriff.” Having
learned of this fact “that would lead to a legitimate discharge,
we cannot require the employer to ignore the information.”
See Koziara v. BNSF Ry. Co., 840 F.3d 873, 875 (7th Cir. 2016)
(quoting McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352,
362 (1995)).
In addition, Milliman argues that a jury could reasonably
conclude that Dr. Grote’s conclusion is pretextual based upon
Dr. Dawkins’s expert report. However, while Dr. Dawkins
critiqued Dr. Grote’s methodology—namely, his reliance on
outside information instead of objective findings—she does
not dispute Dr. Grote’s ultimate conclusion. In other words,
despite reviewing all of the same information and documents
reviewed by Dr. Grote, Dr. Dawkins does not opine that Milliman
was in fact fit for duty.
Regardless, Dr. Dawkins’s criticisms were not available to
defendants when they decided to terminate Milliman, and
thus do not show that defendants’ reliance on Dr. Grote’s report
was disingenuous. “Pretext involves more than just
faulty reasoning or mistaken judgment on the part of the employer;
it is [a] lie, specifically a phony reason for some action.”
Lord, 839 F.3d at 564 (alteration in original) (internal
quotation marks omitted) (quoting Argyropoulos, 539 F.3d at
736). Dr. Dawkins’s criticisms may show that Dr. Grote’s report
was a “foolish or trivial or even baseless” ground upon
which to terminate plaintiff. Id. (quoting Culver, 416 F.3d at
547). However, that does not challenge defendants’ assertion
that, based upon Dr. Grote’s report, they honestly believed
22 No. 17‐2687
Milliman was unfit for duty. See id. In light of that honest belief,
defendants had a legitimate non‐retaliatory reason to terminate
Milliman, and we may not “second‐guess” that decision.
Id. (quoting Argyropoulos, 539 F.3d at 736).
Finally, Milliman argues that a jury could question
whether Milliman’s fitness examination was ordered in good
faith because he received a “standard” rating in his last annual
performance review. However, we recently cited “many
instances of public safety agencies requiring psychological
evaluations of their employees.” Freelain v. Vill. of Oak Park,
888 F.3d 895, 903 (7th Cir. 2018). In particular, we stressed the
importance of such precautionary measures in the law enforcement
context due to “the risks posed by an officer who is
not well enough to work.” Id. Here, plaintiff’s bizarre allegations
of widespread corruption, human trafficking, and solicitation
of murder by the Sheriff were certainly enough to put
defendants on notice of a potential mental health issue. Thus,
defendants properly referred Milliman for a psychological
evaluation.6
6 Plaintiff also notes that MCSD’s internal file was titled “Termination
Review,” thus implying that Milliman’s fate was somehow preordained.
Plaintiff’s concern is overstated. A termination “review” implies precisely
that—an “assessment of something with the intention of instituting
change if necessary.” Review, English Oxford Dictionaries, https://en.oxforddictionaries.
com/definition/review (last visited June 14, 2018) (emphasis
added). It does not declare an inescapable outcome. Moreover,
plaintiff’s argument misses the central issue. It is undisputed that, following
Milliman’s 2010 deposition, his future at MCSD was in doubt. That
fact, however, does not speak to the critical question in this case—i.e., why
defendants ultimately fired plaintiff. Of course, defendants could not terNo.
17‐2687 23
In sum, Milliman has not produced evidence from which
a jury could reasonably conclude that defendants’ proffered
reason for his termination—Dr. Grote’s finding that he was
unfit for duty—was pretextual. Having failed to do so, there
is no genuine dispute of material fact on this issue for trial.
Because Milliman would have been fired based on his fitnessfor‐
duty examination even absent the protected speech, he
cannot establish the requisite “causal connection between unconstitutional
motive and resulting harm.” Thayer, 705 F.3d at
252 (quoting Hartman v. Moore, 547 U.S. 250, 260 (2006)).
Therefore, his First Amendment claims must fail.
B. Derivative Claims
Milliman’s state law conspiracy claim and Monell claim are
derivative of his First Amendment claims. Because his First
Amendment claims fail, defendants are also entitled to summary
judgment on his derivative claims.

* * *
minate plaintiff because of his protected speech. However, they could terminate
plaintiff if they honestly believed he was suffering from psychological
difficulties that interfered with his work duties. Therefore, the title
of MCSD’s internal file, standing alone, is unavailing. In any event, for the
reasons explained supra, the only reasonable conclusion to draw from the
record is that defendants ultimately relied upon Dr. Grote’s fitness‐forduty
findings. Plaintiff has not produced any evidence from which a jury
could reasonably infer that Dr. Grote even saw, let alone was unreasonably
influenced by, the title of the internal file.

Outcome: For the foregoing reasons, we AFFIRM the judgment of the
district court.

Plaintiff's Experts:

Defendant's Experts:

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