902 F.2d 524 (7th Cir. 1990), 89-1523, Sims v. Mulcahy

Docket Nº:89-1523, 89-1639.
Citation:902 F.2d 524
Party Name:Sheila SIMS, Plaintiff-Appellant, Cross-Appellee, v. John MULCAHY, Defendant-Appellee, Cross-Appellant, and City of Madison, Thomas Hischke, Robert Peterson, Jerome Gartner, Robert Birrenkott and Paul Anderson, Defendants-Appellees.
Case Date:May 09, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 524

902 F.2d 524 (7th Cir. 1990)

Sheila SIMS, Plaintiff-Appellant, Cross-Appellee,


John MULCAHY, Defendant-Appellee, Cross-Appellant,


City of Madison, Thomas Hischke, Robert Peterson, Jerome

Gartner, Robert Birrenkott and Paul Anderson,


Nos. 89-1523, 89-1639.

United States Court of Appeals, Seventh Circuit.

May 9, 1990

Argued Dec. 5, 1989.

Page 525

Kathleen A. Wagner, Madison, Wis., for plaintiff-appellant, cross-appellee.

Steven J. Schooler, Lawton & Cates, Bradley D. Armstrong, Michael J. Modl,

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Axley & Brynelson, Madison, Wis., for defendants-appellees, cross-appellant.

Before COFFEY and RIPPLE, Circuit Judges, and DUMBAULD, Senior District Judge. [*]

COFFEY, Circuit Judge.

Plaintiff-Appellant, Sheila Sims, brought this action under 42 U.S.C. Secs. 1981 and 1983, alleging that Defendants-Appellees, the City of Madison, John Mulcahy, Thomas Hischke, Robert Peterson, Jerome Gartner, Robert Birrenkott and Paul Anderson, violated 42 U.S.C. Sec. 1981, as well as the fourth and fourteenth amendments to the United States Constitution in disciplining her for tardiness, in entering her apartment to ascertain her physical well being in connection with one particular incident of tardiness and in subjecting her to racial harassment. The district court entered summary judgment in favor of all defendants on all of the relevant claims except for the claims against John Mulcahy and Paul Anderson with respect to their entry of Sims' residence. Sims proceeded to trial against Mulcahy and Anderson, and a jury found that Mulcahy violated the fourth amendment to the United States Constitution in entering Sims' apartment. 1 However, the jury found that the entry was not racially discriminatory under the Fourteenth Amendment's Equal Protection Clause or 42 U.S.C. Sec. 1981. Following a subsequent trial on the issue of damages, the jury determined that Sims was not entitled to any damages for Mulcahy's entry of her apartment. As a result of Sims' failure to obtain any relief, judgment was entered in favor of Mulcahy and all other defendants dismissing Sims' action with prejudice. Sims appeals from this judgment, while Mulcahy cross-appeals from the district court's refusal to grant him qualified immunity. We affirm.



Sheila Sims is a black woman who has been employed by the City of Madison, Wisconsin, since 1975. Sims has worked as a parking monitor for the City's police department since 1980.

Sims has evidenced a problem with oversleeping that has resulted in a number of reported incidents of tardiness over the years she has been employed as a parking monitor. The City of Madison, Wisconsin, Police Department has a written policy in Section 2-1817 of its Policies and Procedures Manual which provides as follows: "Members of the Department shall be punctual in their reporting for duty at the time designated by their superior officers. Habitual failure to report promptly at the time directed will be deemed neglect of duty." As further defined by the Department's custom and practice, the first instance of tardiness within a 12-month period results in a letter of understanding, two incidents within six months result in a letter of reprimand, and three incidents within a year result in a one-day suspension. Over the years Sims has worked for the Madison Police Department, Sims' tardiness record reveals a number of instances of tardiness that, in the district court's words, have resulted in "a record of tardiness unrivaled by any of her co-workers." Sims v. City of Madison, No. 88-C-524, Memorandum and Order on Summary Judgment at 17 (W.D. Wis. December 19, 1988). We reproduce Sims' tardiness record below:

Date Time Tardy Disciplinary Action Officers Involved

4/3/80 6 minutes AWOP 2 .09 Sgt. Birrenkott

verbal counseling

5/1/80 a few Sgt. Mallov


5/5/80 10 minutes AWOP .16 Sgt. Mallov

verbal counseling

5/6/80 10 minutes AWOP .16 Sgt. Mallov

verbal counseling

7/23/80 10 minutes AWOP .16 Sgt. Birrenkott

verbal reprimand & documentation of

tardiness pattern, dated 7/24/80

7/25/80 8 minutes AWOP .13 Sgt. Birrenkott

letter of reprimand, dated 8/18/80 Sgt. Ninneman

(concerns 8/8/80 incident as well)

8/8/80 4 minutes AWOP .07 Sgt. Birrenkott

letter of reprimand dated 8/18/80 Sgt. Ninneman

6/12/82 5 hours AWOP 5.00 Sgt. Birrenkott

verbal reprimand

2/27/84 5 minutes AWOP .08 Sgt. Birrenkott

verbal reprimand

2/6/85 8 minutes AWOP .13 Sgt. Birrenkott

verbal reprimand

6/8/85 40 minutes AWOP .67 Sgt. Birrenkott

letter of reprimand dated 6/12/85 Lt. Peterson

11/15/85 1 hour, 30 credited for .75 hrs. Sgt. Birrenkott

minutes based on time and a half overtime rate Lt. Peterson

(worked .50 hours rather than 2

hours overtime as required) letter

of reprimand dated 12/5/85

12/2/85 40 minutes AWOP .67 Sgt. Birrenkott

no discipline--see letter dated


5/6/86 4 minutes AWOP .07 Sgt. Birrenkott

1day suspension, given 6/13/86 Lt. Peterson Lt.


6/1/87 1 hour, AWOP 1.58 Lt. Peterson

35 minutes letter of reprimand dated 6/26/87

In her attempts to establish the City's racially discriminatory application of its tardiness policy, Sims compared her tardiness to that of Sharon Benson, a white woman employed as a parking monitor for the City of Madison. Benson had presented to the police department a physician's statement in September 1981 that indicated that she had been diagnosed as manic-depressive, a factor in her tardiness. Benson's tardiness record over the same period as Sims was the following:

Date Time Disciplinary Action Officers Involved


10/13/80 30 AWOP .50 Sgt. Birrenkott


verbal counseling

12/1/80 5 minutes AWOP .08 Sgt. Birrenkott

verbal reprimand

2/13/81 15 AWOP .25 Lt. Johnson


verbal reprimand

9/12/81 50 AWOP .83 Sgt. Gritzmacher


(physician's slip)

10/5/81 5 minutes AWOP .08 Sgt. Birrenkott

verbal reprimand Lt. Johnson

10/12/81 20 AWOP .33 Sgt. Birrenkott


documented counseling session dated


7/25/83 1 hour, AWOP 1.75, written reprimand Sgt. Birrenkott

3 45 (includes 8/6/83 incident) (note: Lt. Johnson

minutes Benson called in, but was denied Capt. Hischke

compensatory time)

8/6/83 2 hours, AWOP 2.80 Sgt. Birrenkott

48 written reprimand Lt. Johnson Capt.

minutes Hiscke

2/28/86 3 minutes credited for 2.93 Sgt. Birrenkott

hours, based on time and a half

overtime rate (worked 1.95 hours

rather than 2 hours overtime as


Sims also compared her tardiness record to that of Theresa Johnson Bultman, apparently a white woman, who had incidents of .75 hours' tardiness, 5.5 hours' tardiness and 1.75 hours' tardiness during the year 1980. There is no record of any written reprimand concerning this tardiness.

The response of the police department to Sims' June 8, 1985, tardiness is particularly significant to this case. On that date Sims did not report at her required 7:45 a.m. reporting time. Even though Sergeant Jerome Gartner, the officer-in-charge, was acting as Sims' immediate supervisor that day he was not Sims' regular supervisor and was unaware of Sims' employment history and her prior tardiness record. Because Sims failed to notify the department of her tardiness prior to her 7:45 a.m. reporting time, Sergeant Gartner asked parking monitors Debra Foster and Sharon Benson why Sims had not reported to work at 7:45. Benson told Gartner that Sims had been having some problem with oversleeping and that Sims was somewhat depressed. Gartner then telephoned Sims' residence but was unable to make contact with her. Officer John Mulcahy reported to Gartner around 8 a.m., and Gartner advised Mulcahy that Sims was absent and that he was concerned about her. Officer Mulcahy was also unfamiliar with Sims' work and tardiness records. Sergeant Gartner told Mulcahy that he would again attempt to make contact with Sims via telephone, but that if he was unable to contact her he might ask Mulcahy to check Sims' residence. At that time he gave Mulcahy the address of Sims' residence. Gartner attempted unsuccessfully to contact Sims a second time via telephone. Gartner next notified the dispatcher that Officer Mulcahy should check Sims' residence but did not request that Mulcahy enter Sims' apartment.

Upon arriving at Sims' apartment building, Mulcahy knocked on Sims' apartment door and at this time encountered Paul Anderson, the resident manager of Sims' apartment building. Anderson asked Officer Mulcahy if he could be of assistance and Mulcahy stated that Sims, an employee of the police department, had not arrived for work and that Mulcahy was attempting

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to determine whether she was at home. Anderson told Officer Mulcahy that he had a pass key for the apartment and asked if Mulcahy wished to go inside Sims' apartment to verify whether Sims was present. Officer Mulcahy hesitated at first but speculated privately as to whether Sims might have been injured or ill inside the apartment and was of the opinion that a quick search of the apartment would be appropriate. Anderson unlocked the apartment door for Officer Mulcahy who entered the apartment, looked at the areas he could easily observe and departed from the premises. Officer Mulcahy neither filed a report contemporaneously nor otherwise advised others within the police department that he had entered Sims' apartment.

No evidence was presented during trial of any written Madison Police Department policy concerning the questions of dispatching officers to a tardy employee's home or entry into that employee's home. Sergeant Gartner did testify that the officer-in-charge considers the relevant circumstances in determining whether a tardy employee's residence should be checked and testified that the information he received from Parking Monitor Sharon Benson concerning Sims' present problems of oversleeping, depression and...

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