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Silva v. State, Department of Corrections

United States Court of Appeals, Seventh Circuit

February 22, 2019

Julio de Lima Silva, Plaintiff-Appellant,
State of Wisconsin, Department of Corrections, et al., Defendants-Appellees.

          Argued February 8, 2019

          Appeal from the United States District Court for the Western District of Wisconsin. No. 17-cv-00128 - William M. Conley, Judge.

          Before Flaum, Barrett, and Scudder, Circuit Judges.

          Flaum, Circuit Judge

         Plaintiff-appellant Julio de Lima Silva, a Brazilian citizen who self-identifies as Latino, worked as a correctional sergeant for the State of Wisconsin, Department of Corrections ("DOC"). His use of force on an inmate triggered an internal review process and ultimately led to his discharge. The individual defendants-Quala Champagne, the Warden of Wisconsin Correctional Center System ("WCCS"), Andrea Bambrough, the Human Resources Director of WCCS, and David Hicks, a Corrections Unit Supervisor at Columbia Correctional Institution-played various roles in that review process. To challenge his discharge, plaintiff filed this lawsuit, bringing discrimination claims against the DOC under Title VII, 42 U.S.C. § 2000e-2(a)(1), (Count I); against the individual defendants and the DOC under 42 U.S.C. § 1983, alleging a violation of the Equal Protection Clause (Counts II and III, respectively); and against all defendants under 42 U.S.C. § 1981 (Count IV). The district court granted defendants summary judgment on all counts. For the following reasons, we affirm in part and reverse and remand in part. We reverse the district court's award of summary judgment to the DOC on plaintiff's Title VII claim and to Champagne on plaintiff's equal protection claim brought pursuant to § 1983, and we otherwise affirm the district court's judgment.

         I. Background

         A. Factual Background

         Plaintiff's career with the DOC began in the summer of 2012. In his application to the DOC, he identified his race and ethnicity as Latino. He also indicated that he was from Brazil. On July 1, 2013, he became a correctional sergeant in the Challenge Incarceration Program ("CIP") at the St. Croix Correctional Center ("St. Croix"). Of the approximately thirty employees that comprised the security staff at St. Croix in 2014, plaintiff was the only nonwhite employee.

         The CIP is an alcohol and drug abuse program that eligible inmates can complete in hopes of receiving early release from their sentences. It is a military-style "boot camp" with strict rules that are unique to the program. Inmates agree to be subject to these special rules when they enroll in the CIP.

         1. Plaintiff's Use of Force

         On June 23, 2014, plaintiff worked the night shift with Sergeant Paul Fulton. While making rounds, Fulton twice observed inmate Fernando Haro covering his head in violation of the CIP's rules. Fulton woke Haro up on both occasions to instruct him to keep his head uncovered. After the second instruction, Haro used profanities and told Fulton that he was done with the program and wanted to leave, which violated another rule. Plaintiff overheard arguing voices and went to assist Fulton. Plaintiff told Haro to calm down and to follow orders. Eventually, Haro complied. Plaintiff and Fulton then returned to the lower control room where they discussed the situation. At that time, Fulton told plaintiff what had happened with Haro before plaintiff arrived on the scene.

         Meanwhile, the disturbance between Haro and Fulton had awakened the other inmates, and several of those inmates now needed to use the restroom. In the CIP, inmates may only use the restroom if they request and obtain permission from the officers. To do so, they must stand in the "position of attention" and wait for a correctional sergeant to grant them permission. An inmate is in the "position of attention" when his arms are down at his sides and his feet are in the shape of a "V" with his heels touching.

         Fulton was in the process of granting individual inmates permission to use the restroom when Haro got up from his bed and, without standing at attention or seeking permission, grabbed his toiletries, and walked toward the restroom. Neither Fulton nor plaintiff granted Haro permission to do so. Fulton and plaintiff discussed how Haro's refusal to follow the CIP's rules could cause an altercation among inmates given that Haro had cut in line to use the restroom. They decided that plaintiff would talk to Haro.

         As plaintiff approached Haro from behind, he directed Haro to go back to his bunk in a loud voice.[1] When Haro did not comply, plaintiff gave the directive two more times, escalating the volume of his voice each time. Plaintiff moved into a position of control behind Haro and observed that Haro was not in the position of attention. Plaintiff told Haro that he had already ordered him to return to his bunk three times and Haro was not in a position of attention. Plaintiff observed Haro look over his shoulder at him and state, "go fuck yourself, you son of a bitch." Plaintiff perceived this over-the-shoulder glance from Haro as a "target glance," which is when a subject looks to see where the target is and to assess the target.

         There is a dispute over what happened after Haro glanced at plaintiff.[2] Plaintiff remembers that Haro clenched his fists and raised his arms into a fighter stance. Because of this perception, plaintiff approached Haro from the back-left side and applied a wrist lock to Haro. When plaintiff felt Haro resist the hold, he decentralized Haro, while telling Haro to "stop resisting."[3] Plaintiff says he decentralized Haro because he thought that a potential attack was imminent. Plaintiff also says he attempted to control the speed of Haro's descent by using a circular motion. It is undisputed that Haro was not injured during the decentralizing process.

         While Haro was on the ground, plaintiff positioned himself at Haro's side, with his knee on the ground. Both of plaintiff's hands cupped Haro's arm in a compliance hold. Plaintiff asked Haro if he was okay, to which Haro replied yes, and plaintiff offered Haro medical assistance. Still on the ground, Haro engaged in "passive resistance"[4] by commenting to plaintiff that "this is all bullshit," calling plaintiff ma'am, and using profanities. As a result, plaintiff kept Haro on the ground to calm him down. Fulton, who had arrived on the scene, did not feel that plaintiff had Haro on the ground too long.

         Once Haro calmed down (and over two minutes had passed), plaintiff advised Haro that he would assist Haro to his feet, they would go to the lower barracks group room, and Haro would wait there until Captain Scott Grady arrived to talk to him about what had happened. Plaintiff then escorted Haro to the lower barracks group room. Plaintiff did not place handcuffs on Haro because he felt he had total control of him.[5]Plaintiff did not advise Haro that he could file a grievance- plaintiff says he was not trained to give such advice after a use of force. It was his understanding that the supervisor would provide this information to the inmate.

         When Grady reported for work at approximately 5:00 AM on June 23, 2014, plaintiff told Grady what had occurred. Grady instructed plaintiff to write an incident report. Plaintiff had already started working on the incident report before Grady reported for work and he completed it at around 5:30 AM.

         Grady read plaintiff's incident report and thought there were discrepancies between what plaintiff had told him and what plaintiff had written in the report. This prompted Grady to email Superintendent JoAnn Skalski about the incident. Skalski, in turn, directed Grady to look at the video of the incident. After reviewing the video, Grady became concerned with the way plaintiff approached and handled Haro.

         One month later, Skalski contacted Human Resources to report the incident. Soon thereafter, Warden Quala Champagne watched the video of the incident and had similar concerns. Defendants put plaintiff on administrative suspension on July 25, 2014-more than one month after the incident occurred.

         2. Plaintiff's Personnel Investigation

         Champagne ordered a personnel investigation of plaintiff's use of force-it was her practice to do so whenever she received a report that a DOC employee violated a work rule. During a personnel investigation, investigators review materials, conduct interviews, and draft a report of their findings. In practice, a personnel investigation results in a packet of eight documents and a recommendation about whether the facts support any work-rule violations. At the end, if the appointing authority (here, Champagne) believes there is probable cause to discipline an employee, the personnel investigation packet is transferred to the Employment Relations Specialists for review.

         Champagne assigned Maria Silao-Johnson and Jeff Jaeger, superintendents at other correctional facilities, to conduct plaintiff's personnel investigation. After reviewing video of the incident, neither Silao-Johnson nor Jaeger saw Haro assume a fighter stance. Plaintiff says Jaeger laughed at his accent and called him a "liar" during their interview on August 20, 2014. Jaeger thought plaintiff was being untruthful when plaintiff wrote in his incident report: "Due to poor illumination, his clenched fist. I originally just secured his left arm. I had him by his wrist but he was struggling with me and then I decentralized him."

         Once they completed the investigation, Silao-Johnson and Jaeger drafted a "Summary of Investigation." This report concluded that plaintiff potentially violated Work Rule #2 for using excessive force, Work Rule #6 for providing false information during the investigation, and Work Rule #11 for threatening or attempting to inflict bodily harm on an inmate without provocation or reasonable justification. It also determined that plaintiff may have violated executive and administrative directives regarding the proper use of force.

         In turn, David Hicks, as the Employment Relations Specialist on the case, reviewed the personnel investigation packet and determined the investigation was thorough, unbiased, and complete. He presented his findings to the Infraction Review Team ("IRT") and recommended that the case proceed to a predisciplinary meeting. The purpose of the IRT is to ensure that the DOC consistently administers discipline. It reviews the personnel investigation interview and other relevant evidence in order to decide if work rules were in fact violated and whether a predisciplinary meeting should follow. If the IRT decides work rules were violated, the matter proceeds to the Disciplinary Action Review Team ("DART").

         In plaintiff's case, Champagne, Bambrough, and a security director were on the IRT. They decided that plaintiff used excessive force when other options were available to him. As a result, Hicks searched Human Resources's disciplinary database in order to prepare a list of other employees who have incurred discipline for similar misconduct. The DART uses that list, which includes information about the individual employee's rule violation, discipline received, rank, and employing institution, as a general guide while it evaluates the relevant employee's rule violation(s). At the end of its review process, the DART determines if discipline is going to be imposed and, if so, at what level. Ultimately, the appointing authority decides what level of discipline to impose.

         At plaintiff's DART meeting, which involved the same IRT members, Hicks gave examples where correctional officers had engaged in excessive use of force and had not been terminated. There was only one incident after 2010 where excessive use of force resulted in the officer's termination.[6] According to Hicks, the DART had a long discussion about these other discipline cases and members of the DART indicated that maybe the other cases should have resulted in termination.

         Finally, plaintiff's case was sent to a Management Advisory Team ("MAT") to review whether the appointing authority could impose a discipline above the policy recommendation. Under DOC policy, discipline should be assigned according to the progression schedule outlined in Executive Directive #2. For example, a first violation results in a written reprimand and a second violation results in a one-day suspension without pay. Based on this schedule, it ordinarily takes six violations before an employee's punishment would warrant discharge. And according to state human resources rules effective in 2014, discipline involving a five-day suspension or greater, or any skips in the progression, would undergo an additional review by a MAT.

         To prepare the MAT to review plaintiff's case, Hicks drafted a summary document showing plaintiff's seniority date, classification, where he worked, any prior discipline, any performance evaluations, what the appointing authority was requesting, why it was requested, and whether or not plaintiff had acted like that in the past. As discussed below, plaintiff ultimately received discipline that required a significant skip in the progression.

         3. Plaintiff's Use of Force Review

         Separate from the personnel investigation, Champagne also requested an independent "Use of Force Review," wherein experts determine if the use of force was appropriate and proper. The experts review incident reports written about the incident, view videos or photos related to the incident, and conduct interviews.

         Experts Jason Achterberg, the Security Director at Stanley Correctional Institution, and Hans Kuster, a Captain at Osh-kosh Correctional Institution, reviewed plaintiff's use of force. Their review consisted of conducting a site visit to learn more about the CIP, watching the video of the incident, and interviewing plaintiff and Fulton. In his interview with these experts, plaintiff explained that he saw Haro give him a target glance and that he felt Haro was going to hit him. Achterberg and Kuster, however, felt plaintiff had the opportunity to disengage; they did not feel that Haro was an immediate threat. Accordingly, they concluded that plaintiff used unreasonable force to control Haro and they submitted a report to that effect to Champagne.

         4. ...

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