Former sergeant loses appeal in O’Donnell Park case

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A former Milwaukee County jail sergeant who claimed Sheriff David Clarke gave him a profane tongue-lashing after he complained about working at the O’Donnell Park scene in 2010 lost his appeal Monday.

Richard Graber, the former vice president of the Milwaukee Deputy Sheriffs’ Association, sued Clarke and Milwaukee County in November 2011, claiming the sheriff violated Graber’s free speech rights and the Wisconsin Law Enforcement Bill of Rights.

Following a bench trial, Eastern District of Wisconsin Magistrate Judge William Callahan threw the case out in May 2013. The 7th U.S. Circuit Court of Appeals affirmed Callahan’s decision Monday, holding that Graber was not engaged in political activity at the time.

The lawsuit stems from Graber’s complaints and actions about jail deputies who were required to work overtime to secure the scene at O’Donnell Park on June 24, 2010. That day, a piece of the parking garage’s façade fell and killed Jared Kellner, 15, and wounded two others.

According to the 7th Circuit’s decision (PDF), deputies complained to Graber about having to work at the scene after already putting in a full shift. Graber called the union president, who told him to handle it.

Graber eventually complained to Deputy Inspector Kevin Nyklewicz, who, on the basis of what he felt was insubordinate behavior, took the matter to Inspector Edward Bailey.

Bailey told Clarke, who then met with both men June 26 to discuss Graber’s remarks, according to the decision. According to Graber, Clarke swore at him repeatedly, calling him an “organizational terrorist” and a “cancer to the agency.”

Graber received a seven-day suspension in November 2010. Though the suspension was the result of a matter that preceded the O’Donnell Park-related confrontation, according to the decision, Graber claimed it, as well as Clarke’s words at the June meeting, were retaliation for being involved in the union. The suspension later was overturned.

In Monday’s decision, authored by Judge William Bauer, the court drew a distinction between the discussions with the two deputies – who talked to Graber because of his involvement in the union – and Nyklewicz – who did not. The court ruled that Clarke’s meeting was not as a result of the meeting with the deputies, but rather the deputy inspector.

“Clarke’s belittling ‘dress down’ of Graber, even when considered an actionable offense, was due to the aggressive and insubordinate manner in which Graber spoke to Nyklewicz,” according to the decision. “It was not the result of any protected speech in which Graber engaged.”

Graham Wiemer, an attorney with MacGillis Wiemer LLC, Wauwatosa representing Graber, did not immediately return a phone call Tuesday.

Oyvind Wistrom, an attorney with Lindner & Marsack SC, Milwaukee representing Clarke and the county, said he and his clients were happy with the decision. Follow @eheisigWLJ