Taylor v. Ways

• Decision Date: 02 June 2021
• Docket Number: No. 20-1410, No. 20-1411,20-1410
• Citation: 999 F.3d 478
• Parties: Percy TAYLOR, Plaintiff-Appellee, v. Joseph WAYS and Zelda Whittler, Defendants-Appellants. Percy Taylor, Plaintiff-Appellee, v. Gregory Ernst, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

999 F.3d 478

Percy TAYLOR, Plaintiff-Appellee,

v.Joseph WAYS and Zelda Whittler, Defendants-Appellants.

Percy Taylor, Plaintiff-Appellee,

v.Gregory Ernst, Defendant-Appellant.

No. 20-1410

No. 20-1411

United States Court of Appeals, Seventh Circuit.

Argued October 29, 2020

Decided June 2, 2021

Peter Vincent Bustamante, Attorney, Law Office of Peter V. Bustamante, Chicago, IL, Richard Forest Linden, Attorney, Law Offices of Richard Linden, Chicago, IL, for Plaintiff - Appellee.

Vincent M. Rizzo, Attorney, Gretchen Harris Sperry, Attorney, Hinshaw & Culbertson LLP, Chicago, IL, for Defendants - Appellants Ways and Whittler.

Andrew J. Grill, Rock, Fusco & Connelly, Chicago, IL for Defendant - Appellant Ernst.

Before Flaum, Kanne, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

PlaintiffPercy Taylor was fired from his job as a police officer with the Cook County Sheriff's Office.Taylor contends it was because of his race.He has sued the Sheriff's Office under Title VII of the Civil Rights Act of 1964 and defendantsJoseph Ways, Zelda Whittler, and Gregory Ernst under 42 U.S.C. § 1983 for violating the Equal Protection Clause of the Fourteenth Amendment.Defendants maintain that Taylor was terminated for having fired pellets with an air rifle at his neighbor in March 2011, a charge that Taylor denies.

Defendant Ernst was the lead investigator assigned to Taylor's case.Taylor offers evidence that Ernst engineered his firing based on racial animosity.Taylor also asserts that defendants Ways and Whittler, who are or were senior officials in the Sheriff's Office, are liable because they both reviewed Ernst's final report of his investigation and endorsed his recommendation that Taylor be fired.

The district court denied the individual defendants’ motions for summary judgment based on the defense of qualified immunity, and they have brought these interlocutory appeals of those denials.As we explain below, the district court correctly denied qualified immunity to Ernst.The district court erred, however, in denying qualified immunity to Ways and Whittler.We therefore affirm in No. 20-1411 and reverse in No. 20-1410, and remand the case to the district court, where Taylor's Title VII claim remains pending.

I.Factual and Procedural Background

In reviewing a denial of summary judgment based on qualified immunity, we are limited to deciding questions of law, so we recount the facts as stated by the district court in its assessment of the summary judgment record and give the plaintiff the benefit of his evidence and favorable inferences from it.Estate of Clark v. Walker , 865 F.3d 544, 547(7th Cir.2017);White v. Gerardot , 509 F.3d 829, 833(7th Cir.2007)(accepting plaintiff's version of the facts or the facts the district court assumed as the source of undisputed facts for a qualified immunity appeal);Knox v. Smith , 342 F.3d 651, 656(7th Cir.2003)(accepting plaintiff's version of facts for a qualified immunity appeal).

A.The Facts for Summary Judgment

1.The Reported Shooting Incident

On March 8, 2011, Harold Woolfolk was working on a pickup truck that belonged to his neighbor, Mary Wolfe, at her residence in Chicago, Illinois.Woolfolk claims to have been inside the truck when he heard numerous "poofs" and saw several "splats" on Wolfe's windshield.According to Woolfolk, he saw another neighbor, plaintiffPercy Taylor, pointing a BB gun out of the third-floor window of the building facing the rear of Wolfe's property.

Wolfe called 911 and reported that someone had shot at the windshield of her truck.The Chicago Police Department(CPD) dispatched two officers to her home.One officer observed that nine shots had struck the vehicle.¹CPD turned the investigation over to the Sheriff's Office because the subject was a Sheriff's Office employee, plaintiff Taylor.

2.Ernst's Investigation of the Shooting Incident

The following day, March 9, Ernst and two other investigators for the Sheriff's Office of Professional Responsibility, or OPR, visited Wolfe's home to interview her and Woolfolk and to photograph Wolfe's truck.The three officers observed what appeared to be nine pellet or shot marks on Wolfe's truck.Woolfolk identified Taylor as the man who had shot at him.Woolfolk also said that he wanted to press charges against Taylor.Ernst and another officer took Taylor into custody.

On March 10, Ernst obtained a search warrant for Taylor's vehicle and residence behind Wolfe's residence.The officers did not recover a BB gun or ammunition during their searches.

OPR Investigator George Avet has testified that during the search, Ernst used racial slurs, saying that Taylor "lived like a n****r" and referring to Taylor as a "porch monkey."Avet testified that Ernst used the word "n****r" a total of two to five times while at Taylor's residence.Avet also testified that, back at OPR headquarters, Ernst was upset that the search of Taylor's home and vehicle had failed to produce a weapon and declared: "We're [going] to get this n****r."

Taylor, meanwhile, denied shooting at either Wolfe's truck or Woolfolk.He told OPR investigators that he was at the grocery store when the alleged shooting occurred.Upon review of video surveillance from the grocery store, investigators determined that it was at least possible for Taylor to have fired the reported shots and arrived at the store when he did.

On March 16, Wolfe and Woolfolk signed criminal complaints against Taylor for aggravated assault and criminal damage to property.These criminal charges were ultimately dismissed.While investigating the alleged shooting, Ernst also learned that Taylor had been arrested for and convicted of driving under the influence in Missouri in 1999 while he was a deputy sheriff.

3.The Loudermill Hearing

On March 22, Taylor attended a so-called Loudermill hearing about the shooting and DUI incidents.²Ernst testified for the Sheriff's Office.Taylor was asked whether he had reported his DUI conviction to the Sheriff's Office.Taylor told the Loudermill board that he had reported his arrest and conviction to Sergeant Mpistolarides in 1999.The Loudermill board voted to suspend Taylor with pay pending Merit Board action.

4.Ernst's Report of Investigation

On April 11, Ernst submitted his Report of Investigation to the other defendants here, OPR Executive Director Joseph Ways and Cook County UndersheriffZelda Whittler.As part of his investigation, Ernst contacted Sergeant Mpistolarides, who told Ernst that Taylor had not reported his 1999 DUI arrest and conviction.(Taylor maintains that he reported both offenses to the Sheriff's Office.)In his Report, Ernst recommended that Taylor be terminated from his position on account of the shooting incident and the failure to report his DUI arrest and conviction.

Ernst's Report failed to mention potentially exculpatory evidence, including Woolfolk's extensive criminal history and the complicated personal history between Woolfolk and Taylor.For example, Taylor had previously reported Woolfolk for theft, including stealing Taylor's television and a drain-cleaning cable.And on the day that Taylor was arrested, Taylor had spoken with a city sanitation worker about Woolfolk's unauthorized use of Taylor's trash cans to dump Woolfolk's own trash.Ernst's Report also failed to mention that no weapon was recovered from the search of Taylor's residence or vehicle.His Report further failed to note the lack of physical evidence—including recovered pellets— that might have corroborated Woolfolk's account.

OPR investigators noted the following damage to Wolfe's truck: (i) four strike marks on the windshield, possibly created by pellets; (ii) one possible gunshot hole in the right edge of the hood; (iii) one possible gunshot hole in the front right headlamp; (iv) three possible gunshot holes in the front left turn signal that had penetrated the engine compartment; and (v) a strike mark on the interior left wheel well.The investigators searched the engine compartment for projectiles but were unable to locate any.Plaintiff's police expert Robert Johnson opined that it is difficult to explain the lack of recovered projectiles if the incident occurred as Woolfolk claimed.

Johnson also noted what seems like a fundamental problem with Ernst's account: the damage to the headlights and windshield of Wolfe's truck could not have occurred with someone firing from the third-floor window of Taylor's residence.According to Johnson, the rear end of the truck was facing the third-floor window at the time of the alleged shooting.Any shots fired from Taylor's window should have hit the rear of the truck— not the already damaged front.Ernst argues that he did not learn until years later that the truck had been moved, though this fact strikes us as so elementary that it's hard to understand how professional investigators would not have asked about it.

5.The Holbrook Memo

After Ernst submitted his report, Police Chief Dewayne Holbrook sent a memo to Undersheriff Whittler noting his concerns about certain weaknesses in the investigation.Holbrook explained that Ernst's investigation left too many questions unanswered.The memo also revealed that prior to the Loudermill hearing, the Sheriff's Office was "put off time and again in response to its requests to view the investigatory file prior to the hearing" and received only "some" of the requested evidence at 5:00 pm on March 21—the evening before the hearing.

The Sheriff's Office insists that even if Ernst's Report failed to cover all the available information, the office received the "entire file" and the investigation involved input and evidence from others, not just Ernst.Whittler testified that, in general, her recommendation for officer discipline would be based on the contents of the entire OPR file.But she also testified that the OPR's function is to investigate and recommend discipline consistent with past practice, while her role as "the final signature" was to ensure that the...