Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—7th Cir.: Correctional officer’s termination did not violate constitutional free speech and due process rights, (Jul 28, 2026)

By Nicholas Kaster, J.D.

The Seventh Circuit agreed with the district court that the employee received adequate pre- and post-termination due process.

The Wisconsin Department of Corrections (DOC) did not violate the First and Fourteenth Amendment rights of a correctional officer terminated for violating a work rule by alerting his son to an upcoming search at the DOC facility where his son was incarcerated, the Seventh Circuit ruled, affirming the holding of the court below (Felton v. Johnson, No. 25-1047 (7th Cir. July 27, 2026)).

Phone call. The employee worked as a correctional officer for the Wisconsin DOC for nearly two decades before being fired. According to DOC, he violated a work rule by making a phone call alerting his son to an upcoming search at the Waupun correctional facility where the son was incarcerated.

At the beginning of the half-hour call, the son told his father that Waupun was on lockdown because an inmate had stabbed a correctional officer. The employee responded: “Yeah I know … They trying—they trying to get somebody to volunteer to come over there and shake down the place. Man, ain’t nobody trying to go over there and shake down. I ain’t.” The employee and his son discussed the lockdown for another minute or two before moving on to other subjects including sports and church.

Termination. Two days later, the DOC conducted a search for contraband or a “shakedown” at Waupun. According to a DOC official, the son bragged that his father worked at DOC and shared information about the search. The DOC initiated an investigation where it concluded that the employee had violated DOC policy by informing his son about the upcoming shakedown. Based on the investigation, the DOC terminated the employee.

After the termination, both the employee and his son sued DOC alleging it violated their constitutional rights under the First and Fourteenth Amendments by firing the employee in retaliation for his protected speech and by depriving him of procedural due process. A federal district court in Wisconsin dismissed the son’s retaliation claim through the screening procedure set forth in the Prison Litigation Reform Act, 28 U.S.C. § 1915A. Afterwards, the district court resolved the remaining claims by granting DOC’s motion for summary judgment. The current appeal ensued.

First Amendment retaliation claim. A public employee can make out a First Amendment retaliation claim if the employee: (1) engaged in constitutionally protected speech; (2) suffered a deprivation of a type that is likely to deter protected speech; and (3) that speech was a motivating factor in the deprivation.

The Seventh Circuit’s analysis began and ended with the first element because it concluded that the employee’s comments were not constitutionally protected as a matter of law. To merit constitutional protection in the First Amendment retaliation context, a public employee’s speech must touch on “a matter of public concern.” A matter of public concern means any speech “relating to any matter of political, social, or other concern to the community.” This includes speech of “legitimate news interest; that is, a subject of general interest and of value and concern to the public.” On the flip side, speech is not protected if it involves only “matters of purely private concern.” Relevant here, the Seventh Circuit has found that “speech that concerns personal job-related matters” is not of public concern.

Personal frustration. Taken together, the content, form, and context of the employee’s statements showed that it was private, not public, the appeals court concluded. The statement—that DOC “was trying to get somebody to come over [to Waupun] and shake down the place. Man, ain’t nobody trying to go over there and shake down. I ain’t”—merely conveyed the employee’s personal frustration at the potential inconvenience of having to participate in the shakedown. It did not “relat[e] to any matter of political, social, or other concern” or “general interest” to the public.

The employee also made the statement in the purely private situation of a one-on-one conversation with his son, not in a public or even semi-public setting. Considering all the circumstances, said the court, the employee’s statement was not a matter of public concern. The employee claimed that, because some parts of the call touched on matters of public concern, the entire call—including his statement about the shakedown—was protected, too.

The employee’s position that all statements within a conversation spanning multiple topics automatically receive First Amendment protection just because some of the topics are of public concern found no support in Seventh Circuit caselaw. But even if DOC policy encourages communication on prison phones, said the appeals court, it does not follow that the First Amendment protects every statement that public employees make on prison phone calls. Summary judgment was therefore proper on the First Amendment retaliation claim, the Seventh Circuit ruled.

Procedural due process claim. The Due Process Clause of the Fourteenth Amendment “imposes procedural limitations on a state’s power to take away protected entitlements.” In order to demonstrate a violation of procedural due process, a plaintiff must establish (1) a cognizable liberty or property interest; (2) the deprivation of that interest by some form of state action; and (3) the failure to employ constitutionally adequate procedures.” The issue here was whether the process the employee received before and after his termination was constitutionally adequate. The Seventh Circuit agreed with the district court that it was.

In practice, a public employer satisfies the constitutional requirements of pre-termination process if it “makes the employee aware of the charges he is facing and provides him an adequate opportunity to respond to those charges before he is terminated.” The purpose of this pre-termination process is limited where, as here, post-termination process is available to challenge an employee’s termination. In these cases, the purpose of a pre-termination hearing is not to definitively resolve whether discharge is appropriate, but rather to serve as “an initial check against mistaken decisions.”

The employee’s pre-termination process satisfied these requirements, the Seventh Circuit concluded. The DOC provided him with a pre-disciplinary meeting date, time, notice of charges, and allegations against him and informed him of how his limited defense could be presented. There was no dispute that DOC provided him with written notice of the specific conduct with which he was charged. DOC’s notice informed the employee that he was “alleged to have violated” DOC rules by “provid[ing] information regarding a planned search at Waupun … to an inmate at [Waupun] on December 28, 2019.”

That notice also instructed the employee to appear at a “pre-disciplinary meeting.” At the meeting, the investigators interviewed the employee and gave him a chance to tell his side of the story. This included an opportunity to refute the recorded call, which was the primary evidence against him. On these facts, the employee received both notice and an adequate opportunity to respond to the allegations against him, which satisfied the Constitution’s guarantee of pre-termination process.

Adequate process. DOC also provided adequate process to the employee after his termination. An adequate post-termination remedy “is one that is promptly able to restore the employee to her post.” Here, DOC made available to the employee a lengthy appeals process, which involved three layers of review by state agencies. Although the employee never made it past the first step of the grievance process because he did not file a grievance with DOC, the test is whether adequate process was available, not whether the employee took advantage of it. The Seventh Circuit has held that an employee “cannot refuse to pursue the available state remedies and then come into federal court complaining that he was not afforded due process.” That principle foreclosed the employee’s post-termination process claim.

The employee also argued that the process he received was constitutionally deficient because the entire proceeding was tainted with bias against him. However, to defeat summary judgment on a bias claim, a plaintiff must proffer a “specific foundation of prejudice or prejudgment, such that the probability of actual bias is too high to be constitutionally tolerable.” The employee failed to provide this foundation.

As with the retaliation claim, The Seventh Circuit affirmed the district court’s grant of summary judgment on the employee’s procedural due process claim.

In sum, the employee’s termination did not violate his or his son’s rights under the Constitution, the Seventh Circuit ruled. The decisions of the district court were therefore affirmed.

The case is No. 25-1047.

Judge: Jackson-Akiwumi.

Attorneys: Michele K. Figueroa (Figueroa & Associates) for Stanley L. Felton, Sr., and G'esa Kalafi fka Stanely L. Felton, Jr. Aaron Bibb, Wisconsin Department of Justice, for Steven Johnson, Bret Mierzejewski, and Jeremy Gloudemans.

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