Peden v. City of Milwaukee

• Docket Number: 20-CV-1307
• Decision Date: 07 June 2023
• Parties: MICHAEL S. PEDEN, Plaintiff, v. CITY OF MILWAUKEE, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

1

MICHAEL S. PEDEN, Plaintiff, v. CITY OF MILWAUKEE, et al., Defendants.

No. 20-CV-1307

United States District Court, E.D. Wisconsin

June 7, 2023

DECISION AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

NANCY JOSEPH United States Magistrate Judge

Michael S. Peden, a former acting lieutenant for a medical unit of the Milwaukee Fire Department (“MFD”), sues the City of Milwaukee (the “City”); the County of Milwaukee (the “County”); former City Attorney Grant F. Langley; MFD Chiefs Mark A. Rohlfing and Aaron D Lipski; former Assistant MFD Chief Gerard Washington; MFD employees Aleah Ellis (“Ellis”) and Captain Sharron P. Purifoy; Milwaukee Police Department (“MPD”) employee Billie Ellis (“Officer Ellis”); and MPD Captain Raymond S. Banks, under 42 U.S.C. § 1983 and Wisconsin state law for allegedly violating his rights under the Constitution and state law. (Compl., Docket # 1.)

All of the defendants, divided into three separate groups, move for summary judgment in their favor. The City, along with Rohlfing, Langley, Purifoy, Washington, Banks, Lipski, and Officer Ellis (hereinafter referred to collectively as the “City Defendants”) move for summary judgment as to Peden's claims against them. (Docket # 68.) Aleah Ellis moves for summary judgment as to the claims against her. (Docket # 57.) And finally, the County moves for summary judgment in its favor as well. (Docket # 62.)

For the reasons further explained below, the defendants' motions for summary judgment are granted and the case is dismissed.

FACTS

Peden was employed by the MFD from July 26, 2010 through June 17 2020. (City Defs.' Proposed Findings of Fact (“City DPFOF”) ¶ 3, Docket # 72 and Pl.'s Resp. to City DPFOF ¶ 3, Docket # 78.) From July 26, 2010 to May 24, 2014, Peden worked as a firefighter/paramedic. (Id.) From May 25, 2014 until June 17, 2020, he worked as a Heavy Equipment Operator, performing at times as an acting Lieutenant. (Id.)

The background of Peden's claims relate to Aleah Ellis, who became a firefighter in November 2016. (Declaration of Brianna J. Meyer ¶ 3, Ex. A, Deposition of Aleah Ellis (“Ellis Dep.”) at 6, Docket # 60-1.) During her probationary, or “cub” year, at the MFD, Ellis was stationed at MFD Engine 26, MED 3. (City DPFOF ¶ 7 and Pl.'s Resp. ¶ 7.) When Ellis first began at Engine 26, her direct supervisor was Captain Steve Pokora. (Ellis Dep. at 7, 10.) During a firefighter's probationary year, she is supposed to receive monthly evaluations; however, Ellis did not recall receiving one every single month in her first year. (Id. at 10.) Probationers are evaluated on a scale of one to five in various categories, including knowledge, skills, and abilities, quality of work, and work habits, among others. (Defendant Ellis' Proposed Findings of Fact (“Ellis PFOF”) ¶ 12, Docket # 59 and Pl.'s Resp. to Ellis PFOF ¶ 12, Docket # 83.) Ellis testified that on her first three evaluations, conducted by Captain Pokora, her scores were in the threes or fours. (Ellis Dep. at 11.)

Throughout her time with Engine 26, Ellis alleges that she was subjected to various forms of harassment, including name-calling racial slurs, and hazing. (City DPFOF ¶ 9.) In May 2017 Peden transferred to MFD Engine 26, MED 3, where he was an acting Lieutenant. (City DPFOF ¶ 4 and Pl.'s Resp. ¶ 4.) After he transferred, Peden became Ellis' direct supervisor and was responsible for conducting her monthly evaluations. (Id. ¶ 8.) Peden assisted in drafting a probationary report for Ellis in July 2017. (Id. ¶ 9.) On the July evaluation, Ellis received scores of mostly threes, with a couple of twos. (Declaration of Katherine A. Headley (“Headley Decl.”) ¶¶ 3, 15, Ex. 1, Deposition of Michael S. Peden (“Peden Dep.”) and Ex. 13, Ex. 3 to Peden Dep., Docket # 69 and 69-13.) Peden also performed Ellis' August evaluation, which was reviewed on September 14, 2017. (Ellis PFOF ¶ 19 and Pl.'s Resp. ¶ 19.) Peden called Ellis into his office when the rest of the Engine was out of the station to discuss the evaluation. (Id. ¶¶ 20-21.) Peden had given Ellis all ones and twos on the evaluation, and upon seeing the scores, Ellis began crying. (Id. ¶¶ 22-23.) Ellis alleges that she asked Peden how she could get better scores and that Peden instructed her to follow him. (Id. ¶ 24.) Ellis alleges that Peden called her a “piece of shit” and then sexually assaulted her. (Id. ¶ 25.) Ellis alleges that a second incident of sexual assault occurred on September 20, 2017. (Id. ¶ 26.) Peden maintains that he did not sexually assault Ellis at any time. (Id. ¶ 27.)

During a recruitment event at the police and fire academy in September 2017, Ellis spoke with Assistant Chief Brian Smith about her concerns regarding her treatment at Engine 26. (City DPFOF ¶ 23 and Pl.'s Resp. ¶ 23.) Ellis had previously spoken about these concerns with then-Assistant Chief Brian Schwengel. (Id. ¶ 24.) On October 3, 2017, Ellis reported the incidents of non-sexual harassment to then-Assistant Chief Washington. (Ellis PFOF ¶ 29.) Specifically, she made various individual complaints about her colleague's behavior, including reporting that Peden treated her poorly on runs and in quarters, made both sexist and racist comments, called her a “piece of shit cub,” ordered her to cook all day despite her medical issues, and yelled at her in front of the entire crew. (Id. ¶ 30.) Ellis did not, however, report the alleged sexual assaults. (Id. ¶ 31.) Washington initiated a MFD investigation into the harassment allegations in October 2017. (Id. ¶ 32.)

After reporting the allegations of harassment, Ellis was temporarily transferred to Engine 38, MED 19, Captain Purifoy's firehouse, and Peden was placed on paid suspension effective October 3, 2017. (Id. ¶¶ 34-35.) Captain Purifoy had been one of Ellis' cadet instructors in 2014 and 2015. (Ellis. Dep. at 8; Ellis PFOF ¶ 38.) On October 26, 2017, Ellis had another meeting with Assistant Chief Washington, but this time she was accompanied by Captain Purifoy. (Ellis PFOF ¶ 36 and Pl.'s Resp. ¶ 36.) Also present at the October 26 meeting were Assistant Chief Dave Votis and Debra Webber. (Id. ¶ 40.) Ellis testified that she was not at all prepared for what took place at the meeting; she described going through a four-hour meeting with a panel of people, getting interrogated about what happened. (Id. ¶ 50.)

At a certain point during the October 26, 2017 meeting, Ellis and Captain Purifoy were left alone in the meeting room. (Id. ¶ 42.) The recording device in the meeting room was left on during this time. (Id. ¶ 43.) While alone in the meeting room, Captain Purifoy and Ellis had a brief conversation. (Id. ¶ 44.) Captain Purifoy told Ellis to describe the environment as “hostile” because “that's exactly what it was.” (Id. ¶¶ 45-46.) Captain Purifoy also testified that she told Ellis that she wished she would have prepared her for the interview because she knew it would be emotional having to relive her experience. (Id. ¶¶ 47-48.) Ellis testified that she replied to Captain Purifoy's comment about preparation with “I wish you would have.” (Id. ¶ 49.) Ellis did not disclose the alleged sexual assaults by Peden during the October 16, 2017 meeting. (Id. ¶ 52.) Ellis testified that she chose not to report the alleged sexual assaults at that time because she was embarrassed, amongst other reasons. (Id. ¶ 53.) Thus, at the time Assistant Chief Washington initiated the internal investigation, he was unaware of the sexual assault allegations against Peden. (Id. ¶ 54.)

While the Milwaukee Fire Department was conducting its internal investigation, ChiefRohlfing received three anonymous letters at his private residence. (Id. ¶¶ 99-100.) Collectively, the letters expressed disgust for the conduct targeted at Ellis, certain members of Engine 26, and the reputation of those firefighters. (Id. ¶ 101.) Ellis asserts that she did not author any of the anonymous letters and does not have any knowledge of who did author them. (Id. ¶ 102.)

Around Thanksgiving 2017, Ellis disclosed the alleged assaults to fellow firefighter Jason Strzelecki, who Ellis was dating at the time. (Id. ¶¶ 10, 62.) Strzelecki called Ellis' mother, Officer Ellis, around December 1, 2017 and informed her about the alleged assaults. (Id. ¶ 61.) After speaking to Strzelecki, Officer Ellis spoke to Captain Banks, Officer Ellis' superior, and Officer Banks told her that Ellis would have to report any crime. (Id. ¶¶ 6365.) Officer Ellis told Captain Banks that Ellis was reluctant to come forward, so Banks suggested that they reach out to someone Ellis was close with to determine whether Ellis wanted to report the alleged crimes. (Id. ¶ 66.) Captain Banks and Officer Ellis eventually agreed to contact Captain Purifoy. (Id. ¶ 67.) Captain Banks called Captain Purifoy the night of December 1, and Captain Purifoy agreed to speak to Ellis. (Id. ¶¶ 68-69.)

Thus on December 1, 2017, Ellis received a phone call from Captain Purifoy. (Id. ¶ 57.) Ellis asserts that Captain Purifoy told her that she had heard that Peden was bragging about sexual relationships with Ellis in the firehouse (id. ¶ 58); however, unbeknownst to Ellis, Purifoy's call was not based on any bragging by Peden (id. ¶ 60). Captain Purifoy told Ellis that if Ellis did not inform her mother, Officer Ellis, what was going on, Captain Purifoy would inform her. (Id. ¶ 59.) After receiving Captain Purifoy's phone call, Ellis called Officer Ellis and disclosed that she had been sexually assaulted. (Id. ¶ 71.) On the morning of December 2, 2017, Officer Ellis and Ellis drove together to the academy to report the alleged assaults. (Id. ¶ 75.) Captain Banks arranged for Detective Steve Wells from the Sensitive Crimes Division to speak with Ellis. (Id. ¶ 78.) During the...