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Purtue v. State of Wisconsin Department of Corrections

United States District Court, W.D. Wisconsin

August 16, 2019

LISA PURTUE, Plaintiff,
v.
STATE OF WISCONSIN DEPARTMENT OF CORRECTIONS, SHAWNA UECKER, CHERYL EPLETT, WILLIAM POLLARD, JIM SCHWOCHERT, MARC CLEMENTS, KELLI BROWN, KARI BEIER, TONJA HESSELBERG, WINN COLLINS, MAKDA FESSAHAYE, CATHY JESS, and JOSEPH FALKE, Defendants.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Plaintiff 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 Fourteenth Amendment.

         Defendants 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.

         Purtue's 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 defendants' motion.

         UNDISPUTED FACTS

         The following facts are undisputed, except where noted.

         The DOC 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.

         On 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 segregation.

         After 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 incident:

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.

         Inmates 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.

         Based 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.

         During 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.

         Purtue 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.

         The 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.

         Falke 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 else.

         Defendant 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.)

         Pollard 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.

         As the 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.

         Brown 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 ...


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