Brian R. NANAVATY, Plaintiff-Appellant, v. CITY OF INDIANAPOLIS, et al., Defendants-Appellees, 44 F. App'x 7

ORDER Brian R. Nanavaty brought this civil rights action, see 42 U.S.C. § 1983, alleging that officials of the Indianapolis Police Department refused to promote him because he spoke to the media about police misconduct. We affirm. Nanavaty joined the Department as an officer in 1984. He was promoted to sergeant in 1988 and to lieutenant in 1992. In September 1995 the police chief appointed Nanavaty deputy chief. Unlike merit-based positions such as sergeant, lieutenant, major, and captain, deputy chiefs are appointed and serve at the discretion of the chief.

In January 1997 a new police chief, Michael Zunk, demoted Nanavaty to lieutenant. In February 1998 a television reporter interviewed Nanavaty regarding a past investigation of corrupt police officers. During the interview Nanavaty remarked that he was not surprised that officer misconduct went unnoticed in the Department. Zunk was disappointed by these comments. In February 1999 Nanavaty filed a grievance alleging that Zunk had treated him unfairly by forcing him to supervise two shifts of officers and by refusing his request for an audit of work assignments. The grievance, however, was denied.

In early 1999 Zunk appointed several officers to major but did not select Nanavaty. In September 1999 Nanavaty brought this First Amendment action alleging that the Department and several of its officials (including Zunk) unlawfully retaliated against him by failing to promote him due to his media interview. In December 2001 the district court entered

summary judgment in favor of the defendants. After Nanavaty filed his notice of appeal, the Department promoted him to captain. In his appeal brief Nanavaty (represented on appeal by different counsel) does not explain how the district court erred by entering

summary judgment. Instead he iterates the allegations contained in his complaint, asserting that the defendants failed to promote him in retaliation for his comments to the media. Nanavaty’s brief is rife with assertions that the defendants vowed never to promote him to any position.

But while this appeal was pending, Nanavaty was promoted to captain, leading to a bizarre concession at page five of his brief: “Since Nanavaty’s attainment of the number one spot on the promotion list, no person has been promoted to the rank of captain. (Except that Nanavaty has actually recently been promoted to Captain).” Nanavaty’s counsel apparently drafted the crux of his brief before he learned of the promotion. Now this claim is moot. Instead of dropping his appeal, however, Nanavaty persists in attacking the district court’s entry of

summary judgment on his claim that the defendants’ failure to promote him to major was unlawful retaliation. As an employer, government entities have an interest in regulating speech that differs from their interest in regulating the speech of citizens. See Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick v. Myers, 461 U.S. 138, 150-51, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Myers v. Hasara, 226 F.3d 821, 825-26 (7th Cir.2000).

Pickering requires this court to ask (1) whether the speech addresses a matter of public concern; and (2) whether the employee’s interest in expression trumps the employer’s interest in promoting efficient public service. Pickering, 391 U.S. at 568, 88 S.Ct. 1731.

The Pickering analysis, however, does not control situations in which policy-making employees criticize office policies. “[Djrawing from the principles established in the closely analogous patronage cases, we have recognized that the First Amendment does not prohibit the discharge of a policy-making employee when that individual has engaged in speech on a matter of public concern in a manner that is critical of superiors or their policies.” Vargas-Harrison v. Racine Unified Sch. Dist. 272 F.3d 964, 971 (7th Cir.2001); see also Warzon v. Drew, 60 F.3d 1234, 1239 (7th Cir. 1995); Wilbur v.

Mahan, 3 F.3d 214, 219 (7th Cir.1993). Relying on this precedent, the district court concluded that “major” is a policy-making position and that Nanavaty*s comments were critical of his supervisors. On appeal, however, Nanavaty does not assert that the district court erred in reaching this conclusion (or better yet, explain how the court erred); he has therefore waived any challenge on appeal. See Senese v. Chi. Area I.B. of T. Pension Fund, 237 F.3d 819, 823 (7th Cir.2001). Waiver notwithstanding, the court correctly concluded that the Department’s failure to promote Nanavaty to major was permissible.

There is no dispute in the record that “major” is a pokey-making position. And although not addressed by either party, Nanavaty’s comments were critical of his superiors. Nanavaty stated that he was not surprised that the actions of an officer charged with murder “skpped through the system” and that an immediate supervisor had faked to investigate allegations made against the officer. AFFIRMED. . Nanavaty alleged other acts of retaliation and other causes of action not relevant to his appeal.