Davis v. Wisconsin Dept. of Corrections

• Decision Date: 27 April 2006
• Docket Number: No. 05-1946.,05-1946.
• Citation: 445 F.3d 971
• Parties: Lonnie DAVIS, Jr., Plaintiff-Appellee, v. WISCONSIN DEPARTMENT OF CORRECTIONS, Thomas E. Karlen, and Kathryn Long, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

445 F.3d 971

Lonnie DAVIS, Jr., Plaintiff-Appellee, v. WISCONSIN DEPARTMENT OF CORRECTIONS, Thomas E. Karlen, and Kathryn Long, Defendants-Appellants.

No. 05-1946.

United States Court of Appeals, Seventh Circuit.

Argued September 22, 2005.

Decided April 27, 2006.

Francis M. Doherty (argued), Hale, Skemp, Hanson & Skemp, Lacrosse, WI, for Plaintiff-Appellee.

John R. Sweeney (argued), Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Defendant-Appellant.

Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Lonnie Davis, Jr. is an African-American who has worked for the Wisconsin Department of Corrections ("DOC") at its Jackson Correctional Institution ("JCI") in Black River Falls since 1997. He began his employment as a correctional officer and was promoted to the rank of sergeant in 1999. Following allegations that he harassed a female coworker in 2001, the DOC — acting through defendants Thomas Karlen (JCI's warden) and Kathryn Long (JCI's human resources director) — demoted Davis to the rank of "Correctional Officer B." Davis sued the DOC, Karlen, and Long (among others dismissed before trial) under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et seq.), 42 U.S.C. § 1981, and 42 U.S.C. § 1983, alleging they demoted him because of his race, and that the DOC unlawfully tolerated a racially hostile work environment. The district court disposed of Davis's hostile work environment claim and dismissed several defendants at the summary judgment stage, and Davis proceeded to a jury trial on his Title VII claim against the DOC and his § 1983 claim against Karlen and Long. The jury returned a verdict for Davis against all three defendants, and the defendants then moved unsuccessfully for judgment as a matter of law under FED. R. CIV. P. 50 or, in the alternative, for a new trial under FED. R. CIV. P. 59. On appeal, the defendants challenge the district court's denial of their Rule 50 and 59 motions. We affirm.

I. Background

This appeal challenges the sufficiency of the evidence to support the verdict in Davis's favor, so a detailed recounting of that evidence is warranted, and we view it in the light most favorable to the jury's verdict. Harvey v. Office of Banks & Real Estate, 377 F.3d 698, 701 (7th Cir.2004). During Davis's first four years of employment at JCI, he consistently received satisfactory performance evaluations, and there is no evidence he committed any work rule violations during that period. Robin Boyd was a white, female social worker who worked at JCI in the same building as Davis — the "X Building." On August 24, 2001, Boyd complained to her supervisor, Unit Manager Steve Dougherty that on August 22 Davis told her he wanted to yell at her before she left her shift and instructed her to sit down in a chair in the X Building's officers' station. Boyd told Dougherty that Davis then sat down in a chair facing her, grabbed both arms of her chair, pulled her toward him until their knees were touching, and refused to let her get up. Boyd could not remember how long Davis held her chair, and the record does not indicate whether she ever gave an account of what Davis said to her. She did say that while Davis detained her in the chair, he said to Correctional Officer Stephanie Buck, who was passing by, "You better get up in front of that fan, girl, before you pass out because I'd hate to do mouth-to-mouth on you in front of the inmates."

Boyd also accused Davis of the following: being overprotective of her and other female coworkers; asking her if she would ever have an affair; undermining her authority by correcting her in front of inmates; telling her that if she smiled at him, she was flirting, and that if she moved around too much, she was teasing the inmates; telling her he could tell when a woman was menstruating; and telling her about his reverse vasectomy. Boyd did not testify at trial, but portions of her deposition containing these allegations were read into the record at trial.

Human Resources Director Long and Susan Waters, an equal opportunity specialist from the DOC's Office of Diversity and Employee Services, investigated the August 22 incident and Boyd's other allegations against Davis. Warden Karlen testified that he brought in Waters from the Office of Diversity because he "wanted a fair look at everything" and because Davis was African-American.

At the time of the August 22 incident between Davis and Boyd, Correctional Officers Sharon Nawrocki and Stephanie Buck were also present in the officers' station. Buck testified at trial that she was working in the X Building that day moving inmates to other units. This required her to walk repeatedly from one end of the officers' station to the other — apparently a fairly narrow space — and other workers, including Boyd, were in her way. She observed the conversation between Davis and Boyd and said that it was "[n]o louder than you'd have to speak in that environment." She says she never saw Davis restrain Boyd. Although she did see Davis touch Boyd's chair, Buck said he did so only to clear a path for her (Buck) as she did her work. According to Buck, the "mouth-to-mouth" comment was not sexual in nature, and she "never thought twice about it. It was hot out and I was running like crazy," she explained. She said she had gone up to the "tower" where there was no ventilation and it was about 100 degrees; by the time she got back down to the officers' station, she was sweating. "And [Davis] had, for my own health reasons was concerned and said, `You need to slow down,' and something to that effect, `you know, I wouldn't want you to pass out, you know,'" Buck testified.

Buck's trial testimony was at odds with what the DOC said she told Long and Waters when they interviewed her on August 31, 2001. According to the DOC's notes from that interview, Buck said she was frustrated by the "mouth-to-mouth" comment and that it made her job more difficult. The DOC's notes also indicated Buck said that on August 22 she observed Davis speaking loudly to Boyd while facing her and keeping his hands on the two arms of Boyd's chair. "I felt sorry for her. She was there — it must have been an hour sitting there — and the conversation seemed so intense, just knowing him from here — if something is bothering him, he won't let it go," Buck reportedly told the investigators. When asked about these discrepancies at trial, Buck testified that the DOC's interview notes inaccurately recorded the statements she gave to Long and Waters. She stood by her trial testimony.

Long and Waters interviewed Nawrocki on August 30. Nawrocki was present in the X Building officers' station at the time of the August 22 conversation between Davis and Boyd, but she said she tries to mind her own business and had not noticed any long, loud conversation. According to Nawrocki, Boyd apologized to her that day about "the conversation," and Nawrocki said she did not know what Boyd was talking about. When asked about Boyd's allegations that Davis engaged in various forms of inappropriate conduct, Nawrocki said she had never seen Davis behave that way. Nawrocki's trial testimony was substantially consistent with the DOC's notes from her investigatory interview in August 2001. The only real difference was that at trial Nawrocki said she told Long and Waters during her interview that she did hear a loud conversation on August 22, but she maintained that it was not a conversation between Davis and Boyd.

Long and Waters also interviewed several other JCI employees who corroborated most of Boyd's allegations against Davis. Although none of these "corroborators" testified at trial, Long testified that she credited their version of the facts and discounted Buck and Nawrocki's defense of Davis when she recommended his demotion.

After discussing her investigation with Warden Karlen, Long drafted a five-page memorandum recommending that Davis be demoted for harassing Boyd. Relying on the interviews with JCI employees who corroborated most of Boyd's complaints, the memo concluded that Davis violated DOC Work Rule 13, which prohibits "intimidating, interfering with, harassing, (including sexual or racial harassment), demeaning, or using abusive language in dealing with others." The memo cited Davis's "mouth-to-mouth" comment to Buck as an example of the need for discipline, even though Long testified that she did not think the comment constituted sexual harassment, and stated at her deposition that "at the time [she didn't] know that it came across in any way that seemed inappropriate." Most importantly (for reasons that will become clear), the memo stated that Davis's breach of Work Rule 13 was a category B violation. Karlen testified that he personally reviewed the memo before approving it.

The DOC had a progressive discipline policy in place in 2001. According to that policy — introduced into evidence at trial — the first instance of a category B violation of Work Rule 13 should be punished by a written reprimand, a second violation by a one-day suspension without pay, and a third violation by a three-day suspension without pay. Violations of Work Rule 13 that fell into the more serious category C could be punished by "severe discipline up to and including discharge for the first offense." The memo drafted by Long and approved by Karlen recommended that Davis be demoted for his first category B violation of Work Rule 13, so on its face it was not in keeping with the DOC's policy of progressive discipline. If Long and Karlen had applied the policy as written, Davis would have received only a written reprimand.

The record contains evidence that two white JCI sergeants, Richard Laxton and Richard Malchow, committed category B violations of Work Rule 13 and received lesser discipline than Davis. Malchow violated Work Rule 7 in addition to Work Rule 13. Laxton's violation was his third category B violation within a...