United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
Lisa Purtue was a correctional officer at Dodge Correctional
Institution (DCI), a prison within the Wisconsin Department
of Corrections (DOC). She was fired for making a false
statement in a conduct report, but Purtue says that her
termination was really motivated by sex discrimination.
Purtue is suing the DOC under Title VII of the Civil Rights
Act, and she is suing the individual decisionmakers under 42
U.S.C. § 1983 and the Equal Protection Clause of the
move for summary judgment, contending that Purtue was fired
for violating an important work rule and no reasonable jury
could find that defendants discriminated against her on the
basis of sex. Dkt. 19. In their reply brief, defendants
criticized one of Purtue's experts, former DOC secretary
Ed Wall. In response, Purtue filed a document styled as a
motion in limine to allow Wall's testimony. Dkt. 54.
Purtue's motion would be more aptly described as a
sur-reply, and the court will consider it. The court will
also consider Wall's testimony, but it doesn't
support Purtue's claim.
strongest evidence is a statistical analysis showing that the
DOC terminates women at higher rates than men. The
statistical correlation suggests that gender bias affects
some DOC decisionmaking. But Purtue has failed to adduce
evidence that gender bias was a motivating factor in her
case. Video evidence confirms that Purtue made a false
statement in a conduct report. Purtue adduces Wall's
opinion to show that her offense did not require termination,
but Purtue cannot prove discrimination by second-guessing her
employer's discretionary decisions. Despite the
statistical evidence, Purdue does not cite any similarly
situated male employee who was treated more favorably than
she was. And Purtue has failed to adduce any other evidence
that would show that her false conduct report was merely a
pretext for discrimination. The court must grant
following facts are undisputed, except where noted.
hired Purtue in 2013. She was assigned to DCI shortly after
her hire, and she continued to work at DCI as a corrections
officer until her termination in 2016. She performed well
until the incident that led to her termination.
April 11, 2016, Purtue told her supervising unit sergeant
that prisoner Joseph Reddick had hit her with an empty box of
Little Debbie snack cakes. As a result, Reddick was placed in
Reddick was moved to segregation, Purtue wrote a disciplinary
conduct report that charged Reddick with (1) assault on an
employee, (2) disrespect, (3) disruptive conduct, and (4)
disobeying orders. In the report, Purtue described the
On April 11, 2016, I, Officer L. Purtue was dispensing
medication when I came upon cell 6. As I opened the trap,
inmate Reddick, Joseph . . . was offered medication, he, in
turn, threw a box at me which hit my midsection. I then
closed the trap, taking that as a refusal. . . . I, Officer
Purtue, was not injured physically as a result.
Dkt. 52, ¶ 14. In accordance with DOC guidelines, the
incident was referred to the Dodge County Sherriff for
possible criminal investigation.
who receive a conduct report for a major offense are entitled
to a hearing, during which the inmate can present evidence to
a hearing officer. As part of Reddick's hearing, the
hearing officer reviewed video from the security camera
across the cell range from Reddick's cell. See Dkt. 30
(video of incident). The video shows that a Little Debbie box
was tossed out of Reddick's cell. But the box does not
fly in Purtue's direction, and it does not strike Purtue
as she stated in the conduct report. Reddick was found guilty
of disrespect and disruptive conduct, but he was found not
guilty of assault on an employee and disobeying orders.
on the discrepancies between the video and Purtue's
conduct report, defendant Deputy Warden Cheryl Eplett opened
an investigation into Purtue's conduct. DOC Work Rule 6
prohibits employees from falsifying records or knowingly
giving false information. Dkt. 52, ¶ 20. Purtue had
received a copy of these rules when she started working for
the DOC. Eplett assigned Kristine McElligott (who is not a
defendant) and defendant Captain Joseph Falke to conduct the
investigation. Neither Falke nor McElligott knew Purtue
before the investigation.
the investigation, Falke and McElligott interviewed both
Reddick and Purtue. Reddick told them that he had gotten into
an argument with Purtue earlier that day and was still upset
about it when Purtue came to his cell during medication pass.
Reddick said he tossed the box out of his cell in
frustration. But he claimed that he purposely threw the box
away from Purtue and that he did not intend to hit her.
told the investigators that when she arrived at Reddick's
cell during medication pass, she asked Reddick if he wanted
medication and opened the trap door. She said that when she
opened the trap a box flew out and hit her. When the
investigators asked Purtue to describe in detail what she saw
during the incident, Purtue said, “All I saw was a box
being thrown out at me. It hit me.” Dkt. 52, ¶ 49.
She said she was turned towards the medication cart when the
box hit her in the midsection and “flew off to the
side.” Dkt. 30-1, at 5. Purtue also confirmed that she
had previous negative interactions with Reddick, including
the argument earlier that day.
investigators told Purtue that her description of the
incident was inconsistent with the video, and they showed the
video to Purtue. After watching the video, Purtue agreed that
the box did not hit her. But she insisted that she felt
something hit her during the incident. No. other objects are
visible in the video, and the video does not show Purtue
reacting as if she had been struck by an object. Falke and
McElligott filed a report summarizing the interview and
stating that Purtue had potentially violated DOC Work Rule 6
against falsifying records. Dkt. 30-1, at 9.
and another captain held a pre-disciplinary meeting with
Purtue, at which they read the report and gave Purtue an
opportunity to provide any mitigating explanation. Purtue
said that there were some inconsistencies in the report, but
she did not explain what they were. Purtue claimed that she
had believed at the time of the incident that she had been
struck by the box, but that she was actually hit by something
William Pollard, the warden at DCI, received a copy of the
investigation report, the video, and all other exhibits used
in the investigation. Under DOC disciplinary policy, lying or
providing false information to DOC management is a serious
act of misconduct for which the DOC may impose severe
discipline, including immediate discharge. Dkt. 32-2, at 8.
Pollard made the decision to skip progressive discipline in
this case and proceed directly to termination. (The parties
do not fully explain the DOC's procedures for progressive
discipline, but they agree that DOC policy gives supervisors
the discretion to skip progressive discipline and immediately
terminate employees for “lying or providing false
information to management” or “forging or
fraudulently making or altering official documents.”
Dkt. 52, ¶ 112.)
met with deputy warden Eplett and DCI's director of human
resources, defendant Shauna Uecker. Also at the meeting was
defendant Kelli Brown, a representative from the DOC's
employment relations office. After reviewing the
investigation materials, all three agreed with Pollard's
recommendation to skip progressive discipline and proceed
directly to termination.
human resources director, Uecker initiated the procedures for
terminating Purtue. She filled out and signed a
“disciplinary action routing slip.” Dkt. 32-5.
She then gave the slip to deputy warden Eplett, who signed it
and forwarded it to Brown at the DOC's central office.
wrote and attached a memorandum explaining why she believed
Purtue's actions warranted termination. The memorandum
essentially adopted the findings in Falke and
McElligott's report. As required by DOC policy, Brown
also obtained disciplinary comparators to confirm that
termination was appropriate for Purtue's behavior. Brown
cited the records of three other DOC employees (one male and
two female) who had been terminated without progressive
discipline for lying or falsifying records. Dkt. 32-5, at 3.
One woman “failed to provide truthful info and knew
offender was in the community and not serving jail
time.” The other two employees provided false