Federal appeals court rejects former police officer’s retaliation claim

Thursday, January 13, 2000

A former police officer in Madison, Wis., failed to prove that the chief of police and other town officials retaliated against him after he called for an investigation of fellow officers, a federal appeals court has ruled.

Christian F. Thomsen, a former patrol sergeant, was fired in August 1994, six months after he filed a investigation request with the city's Police and Fire Commission, asking the commission to examine the activities of two police detectives.

Thomsen and three others alleged that the detectives were improperly depositing funds believed to be drug-related into the town treasury.

Three days after he filed the investigation request, Thomsen received his first reprimand in eight years on the job. From February until April, Thomsen was reprimanded three times for what he claims were minor offenses: failing to update his operations manual; failing to follow seniority order in filling a sick leave vacancy; and violating the dress code by wearing a short-sleeved shirt to work.

Wayne Romeis, the chief of police, terminated Thomsen in August, allegedly because the officer had requested a light-duty assignment and there were no light-duty assignments available.

Thomsen filed suit in state court, alleging that the firing was done in retaliation for his investigation request and that the action violated his First Amendment free-speech rights.

After the case, Thomsen v. Romeis, was moved to federal court, a judge dismissed the lawsuit in 1997, finding that Thomsen had failed to show a causal connection between his protected speech and his dismissal.

On appeal, the 7th U.S. Circuit Court of Appeals agreed with lower court, finding that Thomsen had failed to meet his burden of proof in showing that unlawful retaliation occurred.

The appeals court noted that a plaintiff in a First Amendment retaliation case must show that his conduct was constitutionally protected and was a “substantial” factor in the defendants' decision to discharge him.

The 7th Circuit found that Thomsen had established that his conduct in seeking the investigation was constitutionally protected.

However, the appeals court also determined in its Jan. 6 opinion that Thomsen had failed to show sufficient evidence that his constitutionally protected conduct motivated the discharge.

The court noted that the “timing of these events [reprimands] do appear suspicious.” However, the court determined that “Thomsen failed to demonstrate how the disciplinary warnings were related to his actual discharge, even though the warnings occurred very shortly after he filed his RFI [request for investigation].”

The court concluded that it would not “second-guess” the employer's decision because “this court is not a super-personnel department weighing the prudence of employment decisions.”

James Bartzen, attorney for Romeis, said: “The timing of the events in this case are not suspicious. The termination followed his admitted breach of department policy. I believe in the First Amendment, but this was not a case of retaliation against someone for their First Amendment rights.”

Calls placed to Thomsen's attorney were not returned.