Harley-Davidson Inc and the United Steelworkers (USW) union, which represents the motorcycle maker’s workers in Milwaukee and Tomahawk, Wisconsin, have agreed to extend the current labor agreement through April 14, the union said on Tuesday.

By Lorene D. Park, J.D.

A Latino sergeant purportedly fired for using excessive force on an inmate and being untruthful about it raised triable issues on his Title VII claim against the employer and equal protection claim against the warden because she only suspended a white sergeant who engaged in similar conduct.

A correctional sergeant, who is a Brazilian citizen and self-identifies as Latino, had his Title VII claim against the Wisconsin department of corrections (DOC) revived on appeal because a jury could find that a white sergeant who also used excessive force on an inmate was sufficiently comparable and that he was treated more favorably because he wasn’t fired like the employee was. Also reversing summary judgment on the employee’s equal protection claim against the warden, the Seventh Circuit found that given her shifting reasons for the decision and other factors, a reasonable jury could find she terminated him because of his race or national origin, which would violate clearly established law (De Lima Silva v. State of Wisconsin, February 22, 2019, Flaum, J.).

Hired in 2012 as a correctional sergeant, the employee was the only nonwhite individual on the correctional center’s security staff of 30 individuals. He worked in the “Challenge Incarceration Program” (CIP), a “boot camp” alcohol and drug abuse program for inmates hoping for early release. To be in the program, inmates agreed to follow strict, military-style rules.

June 2014 incident. One night in June 2014, another sergeant saw an inmate covering his head in violation of CIP rules and told him to comply. The inmate used profanities, violating another rule. The employee overheard them, went to assist, and the inmate calmed down. However, the noise woke other inmates who asked to use the restroom. That required standing at attention until granted permission. Several inmates complied but the inmate who caused the ruckus grabbed his toiletry bag and headed for the restroom. The two sergeants discussed that his cutting the line might cause altercations, so the employee approached the problem inmate from behind, directing him to return to his cell. Things escalated, and the inmate swore at the employee, who perceived a threat and took him to the ground. It is undisputed the inmate was not injured.

Suspension. The employee reported the incident to the supervisor and wrote an incident report. The supervisor perceived discrepancies between what the employee said and what he wrote, so he emailed the superintendent. He also reviewed the video, as did the warden, and both were concerned by what they saw. The employee was put on administrative suspension on July 25, one month after the incident.

Investigations. As was her standard practice, the warden assigned two superintendents from other facilities to investigate. Both reviewed the video and neither saw the inmate assume a fighter position as the employee reported. One investigator allegedly laughed at the employee’s accent and called him a “liar” in an interview. The investigators reported that the employee potentially violated three work rules: using excessive force, providing false information, and threatening or attempting to inflict bodily harm on an inmate without justification.

An employee relations specialist reviewed the investigatory materials and found the investigation to be thorough and unbiased. The matter was submitted to an infraction review team, which included the warden, and which found that excessive force was used. The case then went to the disciplinary action review team, which discussed how similar cases were handled. Finally, a management advisory team (MAT) reviewed whether the warden could impose discipline above the policy recommendation. It ordinarily takes six violations before an employee is discharged, and any skip in the progression of discipline would usually require another MAT review.

Separate from the personnel review, the warden also requested an independent “Use of Force” review, where experts determine if the use of force was appropriate. Here, the experts reviewed the video and conducted interviews. They concluded the inmate was not an immediate threat, the employee had the opportunity to disengage, and he used unreasonable force.

Employee terminated. The employee was fired, which was a significant skip in the progression of discipline. The warden’s termination letter listed three rule violations and stated: “Although you have not had any disciplinary action within the last 12 months, based on the seriousness of your violations, I have just cause to escalate progressive discipline to termination.”

Comparator. About a month before the employee’s incident, a white sergeant pushed an inmate into a wall several times and grabbed the inmate’s head with both hands because the inmate was not standing at attention and was laughing. The sergeant did not file an incident report or notify a supervisor, but instead prepared a “learning instruction” that omitted his use of force, which was on surveillance video. He was subject to a personnel investigation which found that he violated three work rules (two were the same as the employee) but he was not cited for providing false information, and the warden suspended him without pay for one day.

Reinstatement. The employee appealed to the Wisconsin Employee Relations Commission, and the WERC chairman ordered the DOC to reinstate him with no loss of seniority and to pay lost wages and benefits. The chairman rejected two of the purported rule violations, finding no support for the claim that the employee threatened or attempted to inflict bodily harm on the inmate or that he falsified records. Thus, the only basis for discipline was a violation of Work Rule #2, and the chairman decided the DOC didn’t carry its burden of providing a violation because it relied on speculative testimony by an expert, its witnesses offered different opinions on what is expected after a use of force, and there were inconsistencies in how DOC enforced its rules (in other incidents, staff used excessive force but were not terminated).

Lawsuit. The employee filed suit against the DOC and several individuals alleging violation of the equal protection clause and race discrimination. Granting summary judgment against his race discrimination claims under Title VII and Section 1981, the court found that the record did not support an inference that the white comparator’s conduct was comparable because the use of force review found the employee’s use of force was unreasonable and he was not truthful. The court also found that the employee could not show pretext.

Comparator raises triable issue. Reversing on the Title VII claim against the DOC and the Section 1983 equal protection claim against the warden, the appeals court found triable issues based on the treatment of the employee versus his comparator. First, he established that the white sergeant who repeatedly pushed an inmate into a wall and grabbed his head, engaged in similar misconduct but was only suspended for a day. While there were some distinctions, both officers used force on inmates who were violating CIP rules and neither inmate was injured.

The DOC argued that the comparator was different because he did not lie during the investigation, but the court pointed out that his “learning instruction” didn’t mention his use of force at all, and “[s]uch a glaring omission would tend to show that the author was less than forthright.”

Also, while the DOC tried to explain the difference in punishment by relying on the warden’s honest belief that the employee’s use of force was more extreme than the white sergeant’s, a reasonable jury could find pretext because the warden’s explanations evolved over time. Indeed, the latest explanation (that the employee’s use of force was more serious) first surfaced at summary judgment. Also, the warden’s conclusions that the comparator mitigated the offense by informing colleagues and offering medical assistance was not based on any factual record. He did not do those things; the employee did.

As further evidence of pretext, the DOC charged the employee with falsifying records (which was not supported by the record) but did not charge the comparator. The DOC’s explanation was that the warden believed the comparator when he said he omitted his use of force from his report because he did not remember using force. But to the appeals court, it was “difficult to square defendants’ mistrust of plaintiff’s reporting when they easily accepted [the comparator’s] reporting despite its similar flaws.” The court noted that the video of the employee’s incident does not establish exactly what transpired between the employee and the inmate, include what the inmate said and did that allegedly caused the employee to perceive a threat.

Warden not shielded by immunity. Based on the foregoing, the court revived the Title VII claim against DOC and Section 1983 claim against the warden. Eleventh Amendment immunity barred the equal protection claim against the DOC. However, the warden was not entitled to qualified immunity because a jury could find that she terminated the employee because of his race and national origin, and such actions would have violated clearly established law.

Other claims fail. Summary judgment was affirmed as to the claims against other individuals involved at different points in the personnel investigation because the employee did not develop any arguments about their involvement in the termination decision.