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Lewandowski v. City of Milwaukee

United States District Court, E.D. Wisconsin

September 12, 2019



          William E. Duffin U.S. Magistrate Judge.

         Plaintiff Shannon Lewandowski was discharged from her position as a detective with the Milwaukee Police Department on December 16, 2015. In this action, she brings claims of employment discrimination and retaliation, as well as claims for violations of the First and Fourteenth Amendment. Her former employer, defendant City of Milwaukee, has moved for summary judgment. That motion is fully briefed and ready for resolution. All parties have consented to the jurisdiction of a magistrate judge.

         1. BACKGROUND

         Lewandowski was an employee of the City of Milwaukee in the Milwaukee Police Department (MPD) and most recently held the rank of detective. (ECF No. 88, ¶ 1.)

         On January 19, 2015, while on duty and operating a department owned vehicle, Lewandowski was involved in an auto collision with a vehicle owned and operated by a civilian. (ECF No. 88, ¶ 2.) Soon thereafter, the MPD Internal Affairs Division (IAD) opened an internal investigation targeting Lewandowski regarding an allegation of misconduct in public office as it related to the circumstances surrounding the auto collision-specifically, whether Lewandowski was operating her department vehicle according to state law and department policy, and whether she was responding to official department business at the time of the collision. (ECF No. 88, ¶¶ 4-5.)

         Several months later, on or around November 2015, the IAD expanded its investigation to look into an allegation that Lewandowski was not forthright and candid in connection with the accident investigation and related internal investigation. (ECF No. 88, ¶ 7.) Edward Flynn, Milwaukee's Chief of Police from 2008 to 2018 (ECF No. 88, ¶ 49), was the final decision-maker regarding discipline decisions, including suspension, demotion and discharge of sworn members of the MPD (ECF No. 88, ¶ 50). Chief Flynn reviewed the internal investigation against Lewandowski. (ECF No. 88, ¶ 51.) On or about December 16, 2015, Chief Flynn found Lewandowski guilty of three violations of department policies. (ECF No. 88, ¶ 9.) Having found Lewandowski guilty of the three charges, the Chief issued a five-day suspension relating to the charge that Lewandowski failed to use her time to accomplish the mission of the MPD, a 30-day suspension relating to the charge that she failed to operate a department vehicle in a safe manner, and discharge for the charge of failure to be forthright and candid in connection with an administrative inquiry or report. (ECF No. 88, ¶¶ 10, 53.)

         Lewandowski appealed the Chief's decision to the Milwaukee Fire and Police Commission (the Commission). (ECF No. 88, ¶ 12.) The Commission held a hearing on Lewandowski's appeal on August 10 and 11, 2016. (ECF No. 88, ¶ 13.) Applying the seven “just cause” factors found in Wis.Stat. § 62.50, the Commission unanimously found that Lewandowski was guilty of all of the charges filed against her and that the discipline imposed by the Chief, including the discharge, should be sustained. (ECF No. 88, ¶ 17.)

         According to the Commission's written decision, between 12:30 and 1:00 AM on January 19, 2015 (the day of the accident), Detective Juanita Carr was assigned by Lieutenant Sean Hanley to assist in a shooting investigation. (ECF No. 80-6, ¶¶ 3-4.) Hanley instructed Carr to go to the shooting victim's residence and attempt to recover a firearm. (ECF No. 80-6, ¶ 4.) He told her to not go alone, but to go quickly before the victim was released from the hospital. (ECF No. 80-6, ¶ 4.)

         Lewandowski agreed to go with Carr. But rather than going directly to the shooting victim's residence as instructed, and without getting prior approval from anyone, Lewandowski decided to first go to another district station to meet with a female police officer, Melanie Beasley, to discuss a personal matter and Beasley's interest in getting a restraining order against another police officer. (ECF No. 80-6, ¶ 8.)

         In the first statement she gave to investigators, Lewandowski said that on their way to meet Beasley she received a call from her nineteen-year-old son, Jordan Lewandowski, who told her that he had just been stopped by the police near the University of Wisconsin - Milwaukee (UWM). Lewandowski decided to drive to UWM to meet her son and told him to call her back once he had more information as to specifically where he was. (ECF No. 80-6, ¶ 8.) She was driving an unmarked squad car at 15-miles-per-hour above the speed limit and activated its emergency lights to get other cars to move out her way when another vehicle failed to stop at a red light and struck the squad. (ECF No. 80-6, ¶¶ 8, 27.) Lewandowski later said that the reason her emergency lights were activated at the time of the accident was because she turned them on to signal to a car not to pull out in front of her and must have left them on.

         Lewandowski later denied telling investigators she was going to meet her son, insisting that everyone who said she had said this had either misunderstood her or was lying. (ECF No. 80-6, ¶ 15.) But the police officer who had stopped Jordan, who did not work for MPD, testified that Jordan told him that his mother was on her way to meet them. And a sergeant at the scene of the accident told a responding lieutenant that Lewandowski had told others that she was on her way to meet her son by UWM when the accident occurred. (ECF No. 80-6, ¶ 6.) Finally, Lewandowski acknowledged that she asked Jordan to call her back once he knew where he was, which the Commission concluded supported the testimony of other witnesses that Lewandowski said she intended to meet him. (ECF No. 80-6, ¶¶ 15, 29(2).)

         At the hearing before the Commission Lewandowski attacked the credibility of many of the witnesses involved. For example, she attempted to impeach a lieutenant by claiming he was lying when he said he visited her in the hospital. But Lewandowski's claim was contradicted by witnesses who saw the lieutenant at the hospital, including Lewandowski's own son.

         The Commission concluded that, “[w]hen Lewandowski agreed to assist Carr with her assignment, she effectively put herself on the assignment and was obligated to carry it out in a timely fashion. When Lewandowski chose to go to two other locations prior to completing the assignment, she was pushing off the assignment without permission and into overtime. Detectives are not permitted to change or rearrange their assignments without permission from a supervisor.” (ECF No. 80-6, ¶ 9.) She violated department policies by failing to promptly complete the assignment and deciding instead to first go meet with Beasley, and then again changing course to go meet with her son. Even at the hearing Lewandowski did not initially acknowledge that she understood and agreed that a detective is obligated to follow directives from superiors. (ECF No. 80-6, ¶ 31.) But, most significantly, the Commission concluded that Lewandowski was lying when she later denied she was on her way to meet with her son when the accident occurred. The Commission also found there was also reason to believe that Lewandowski testified falsely about hearing that Carr had been dispatched to a hospital. (ECF No. 80-6, ¶ 29(3).)

         The Commission stated, “the need for police officers to follow the directives of their supervisors, obey the rules governing the use of police vehicles, and most importantly, be truthful in the performance of their duties, in writing official reports, and in answering question[s] during an inquiry, is self-evident.… [U]ntruthfulness damages the effectiveness of the police department particularly and law enforcement generally, to be credible and convincing. The seriousness of this violation cannot be understated.” (ECF No. 80-6, ¶ 31.)

         Lewandowski filed this action on August 15, 2016, four days after the Commission's decision affirming her termination. (ECF Nos. 1; 88, ¶ 17.) Her complaint has three claims. First, it alleges that the City “unlawfully discriminated, harassed and retaliated against Plaintiff on the basis of her sex in violation of her equal employment rights and equal protection rights under the First and Fourteenth Amendments to the United States Constitution, as protected by 42 U.S.C. §§ 1983, 1988 et al.” (ECF No. 1, ¶ 199.) Second, it alleges that the City “discriminated against Plaintiff based on her sex in her terms and conditions of employment and in terminating her in intentional and/or reckless disregard of her federally protected rights under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. §2000e et seq.” (Id., ¶ 202.) And it alleges that the City “intentionally retaliated against Plaintiff in the terms and conditions of her employment and by terminating her employment for opposing sex discrimination in the workplace in intentional and/or reckless disregard of her federally protected rights under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. §2000e-3 et seq.” (Id., ¶ 205.)

         On October 7, 2016, the City moved to stay this lawsuit pending a written decision from the Commission and resolution of Lewandowski's appeal of the Commission's decision to the Milwaukee County Circuit Court. (ECF No. 12.) That motion was granted. (ECF No. 15.)

         Lewandowski then appealed the Commission's decision to the Milwaukee County Circuit Court. On June 6, 2017, the Circuit Court affirmed the Commission's decision. (ECF No. 88, ¶ 34.) Lewandowski appealed that decision to the Wisconsin Court of Appeals, but the appeal was dismissed for failure to pay the filing fee. (ECF No. 88, ¶ 37.)

         On October 23, 2017, this court lifted its stay. (ECF No. 27.)

         The City gives several reasons why it is entitled to summary judgment: (1) the Title VII and § 1983 claims are barred as a result of issue preclusion; (2) the § 1983 claim is also barred as a result of claim preclusion; (3) the Title VII sex discrimination claim fails on its merits; (4) the Title VII retaliation claim fails on its merits; and (5) there is no evidence that a policy or custom of the City caused an alleged constitutional violation.


         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” only if it “might affect the outcome of the suit” and a dispute is “genuine” only if a reasonable factfinder could return a verdict for the non-movant. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). In resolving a motion for summary judgment, the court is to “construe all evidence and draw all reasonable inferences from the evidence in” favor of the non-movant. E.Y. v. United States, 758 F.3d 861, 863 (7th Cir. 2014) (citing Gil v. Reed, 535 F.3d 551, 556 (7th Cir. 2008); Del Raso v. United States, 244 F.3d 567, 570 (7th Cir. 2001)). “The controlling question is whether a reasonable trier of fact could find in favor of the non-moving party on the evidence submitted in support of and [in] opposition to the motion for summary judgment.” White v. City of Chi., 829 F.3d 837, 841 (7th Cir. 2016).

         3. ...

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