McKenzie v. Milwaukee County

• Decision Date: 23 August 2004
• Docket Number: No. 03-4136.,03-4136.
• Citation: 381 F.3d 619
• Parties: Kerri A. McKENZIE, Plaintiff-Appellant, v. MILWAUKEE COUNTY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

381 F.3d 619

Kerri A. McKENZIE, Plaintiff-Appellant, v. MILWAUKEE COUNTY, et al., Defendants-Appellees.

No. 03-4136.

United States Court of Appeals, Seventh Circuit.

Argued April 6, 2004.

Decided August 23, 2004.

Appeal from the United States District Court for the Eastern District of Wisconsin, Rudolph T. Randa, Chief Judge.

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William R. Rettko (argued), Rettko Law Offices, Brookfield, WI, for Plaintiff-Appellant.

James R. Scott, Lisa M. Bergersen (argued), Lindner & Marsack, Milwaukee, WI, for Defendants-Appellees.

Before RIPPLE, KANNE, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Kerri A. McKenzie, a Milwaukee County sheriff's deputy, sued her employer alleging employment discrimination and violations of her Equal Protection and First Amendment rights. The district court granted summary judgment to her employer, and McKenzie appeals. We affirm.

Because this case comes to us on review of summary judgment, we view the facts in the record and all inferences from those facts in the light most favorable to McKenzie. See Sullivan v. Ramirez, 360 F.3d 692, 696 (7th Cir.2004). McKenzie became a sheriff's deputy in 1994 and was assigned to guard duty at the county jail. In 1999 she was reassigned to the Drug Enforcement Unit, where she worked as an undercover detective investigating drug crimes. The Drug Enforcement Unit was part of the Criminal Investigation Bureau ("CIB"), which in 2000 became headed by George Paras, an experienced narcotics officer who was known as a demanding boss. Paras was also part of a clique known as the "good old boys"; he used this network to reward those he liked and ostracize those he disliked. McKenzie had been friends with Paras's predecessor, Joe Delaney, who did not get along with Paras, and she feared Paras might hold this against her. She had a "gut feeling" that she might encounter trouble with Paras, so she decided to keep a diary documenting all of their interactions. Shortly after he started, Paras commented to McKenzie and a male officer that "they would be on the next transfer list" if they did not immediately greet him when he walked into the office. The male officer interpreted Paras's comments as a joke, but McKenzie did not.

At the time that Paras took charge of the bureau, McKenzie was the lead investigator in a large-scale undercover drug investigation. Paras began to develop numerous concerns about the case, including the pace of the investigation, which began several months earlier. He was also concerned that the case depended heavily on a sole informant, and that the main target was from Mexico, making him a flight risk. In January 2001 Paras called a meeting to discuss the status of the investigation, during which he questioned McKenzie about the case. McKenzie viewed the meeting as essentially a "firing squad" intended to embarrass her and undermine her authority. At the end of the meeting, Paras told McKenzie to focus all of her time on the investigation, and he also assigned two experienced narcotics officers to assist her. Shortly after this meeting, Paras, who was terminally ill with bone cancer, began missing a considerable amount of work, and he and McKenzie had little direct contact for the next four months.

In May 2001 Paras called another meeting to discuss the status of McKenzie's investigation. McKenzie decided to secretly tape-record the meeting because she had heard rumors that Paras was impatient that the investigation had not yet been completed. During the meeting, McKenzie reported her progress on the case, and Paras and other officers asked her questions. At one point during the meeting, Paras told McKenzie, who was standing during her presentation, to sit down. She said "no." Viewing Paras's questions as another attempt to undermine her authority over the investigation, she told him that the case was hers and that she was passionate about it. Paras again told her to sit down, and she complied.

After the meeting, Paras informed Captain Rodney Richards that he wanted McKenzie reassigned. Paras was angry about her conduct during the meeting because he viewed it as disrespectful, and he also believed that she was not properly handling the undercover investigation. Richards talked Paras out of reassigning McKenzie until the investigation was completed. Later that day, Richards talked with McKenzie about the incident at the meeting. He stated that he did not know what the "problem" was between McKenzie and Paras. He said, "I don't know if it's a gender thing, I don't know if it's a blonde thing, I don't know if it's a Joe Delaney thing" — referring to Paras's predecessor. McKenzie responded that she had been "on the defensive" during the meeting because she thought she was not getting the same respect as her male colleagues. She stated that she had no "bone to pick" with Paras and that she wanted simply to be left alone to do her job. Richards told her to stay focused on her case and avoid challenging Paras.

A few days later Paras met with both McKenzie and her sergeant, Fred Hagedorn, and told her that he was upset about her conduct during the meeting. He explained that he thought she had been uncooperative ever since he took charge of the bureau, and added that if she had spoken to other command staff the way she spoke to him during the meeting, she would have had her "head handed to her." Paras then left, and McKenzie continued to discuss the issue with Sergeant Hagedorn, telling him of her concern that Paras disliked her because she was a female overseeing a large investigation. At one point Hagedorn stated, "George thinks women are only good for fucking."¹ The meeting concluded with Hagedorn telling McKenzie that Paras would not "be around forever."

In June 2001 McKenzie's undercover investigation came to fruition, and several suspects were arrested. Officers also seized a kilogram of cocaine and several vehicles. When McKenzie returned to the office after the arrests, Paras congratulated her and told her she did a good job, but she perceived his comments to be "sarcastic" and "half-hearted."

On August 7, 2001, Captain Richards informed McKenzie that she was being transferred to the patrol bureau. When she asked why, Richards replied that Paras believed she had a "poor attitude." McKenzie stated that she had been treated unfairly and told Richards that she had been keeping a "book" on the events of the past few months, gesturing with her index finger and thumb that the book was about an inch thick. Richards asked if he was in the book, and McKenzie replied that he and numerous other command staff were mentioned in the book. Richards became angry, believing that McKenzie was trying to threaten or intimidate him into reconsidering her transfer.

The following day, Richards conveyed the incident to Paras, who then met with McKenzie and asked her about the book. She responded that she did not have it with her but that it was "somewhat of a daybook" detailing her interactions with various staff during the past six months. Paras immediately walked McKenzie down to the Office of Professional Standards, where she was interviewed by two officers about the book. During the interview, she did not reveal the precise contents of the book except to characterize it as a "personal diary" containing information about her personal life.

Upon returning to her office, she was told that due to her transfer she was required to turn in her weapon, cell phone, pager, and the keys to her undercover vehicle. Another officer escorted her through the office while she closed her files and gathered her belongings, but she was not permitted to retrieve any personal items from her vehicle. On her way out of the office, McKenzie met with Sheriff Leverett Baldwin, who asked her about the book she had been keeping. She replied that the book was essentially a "personal diary." Sheriff Baldwin told McKenzie that he understood she wanted to be reassigned to the "courts and auxiliary" bureau. She replied that she would prefer to be transferred to another area within the detective bureau, but Sheriff Baldwin stated, "That's not an option for you." He told her that if she wanted to go to courts, she would be reassigned to courts, and that the transfer was effective immediately. McKenzie ultimately received a written reprimand for her conduct during the meeting with Captain Richards, because officials concluded that she had mentioned the book to Richards in an attempt to intimidate or coerce him into allowing her to stay in the drug unit.

After obtaining a right-to-sue letter from the U.S. Equal Employment Opportunity Commission, McKenzie in April 2002 filed a complaint against Milwaukee County, Sheriff Baldwin, Paras (by that time deceased), Richards, and Hagedorn. She raised hostile work environment and disparate treatment claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; an Equal Protection claim also based on gender discrimination; and a First Amendment claim alleging unlawful retaliation based on her speech, namely, the book she kept detailing her workplace interactions.

The district court granted summary judgment to the defendants on each claim. As for her Title VII claims, the court determined that McKenzie failed to establish that her work environment was objectively hostile or that she suffered a materially adverse employment action. For the same reasons, her Equal Protection claim also failed. As for her First Amendment claim, the court concluded that McKenzie's book was not constitutionally protected, nor was it a motivating factor in the decision to reassign her, since she was notified of her reassignment before she ever revealed the existence of the book to her superiors. The court accordingly awarded summary judgment to the defendants.

We review the district court's grant of summary judgment de novo. Volovsek v. Wis. Dep't of Agr., Trade & Consumer Prot., 344 F.3d 680, 686 ...