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Poke v. The City of La Crosse

United States District Court, W.D. Wisconsin

January 13, 2020

NATHAN POKE, Plaintiff,
v.
THE CITY OF LA CROSSE, WISCONSIN, and RON TISCHER, Defendants.

          OPINION AND ORDER

          STEPHEN L. CROCKER MAGISTRATE JUDGE.

         Plaintiff Nathan Poke, a former member of the La Crosse, Wisconsin, Police Department, brings this civil damages action against his former employer and its police chief, alleging that they discriminated against him on the basis of his race when they placed him on leave and relieved him of his most significant duties, and then investigated him and constructively discharged him from his employment by forcing him to resign. Poke asserts causes of action under Title VII, the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983, and 42 U.S.C. § 1981. Defendants have moved for partial summary judgment on Poke's claim that he was constructively discharged. Dkt. 20. Because I agree that the circumstances surrounding Poke's resignation do not constitute constructive discharge, I am granting defendants' motion.

         Considering the evidence in the light most favorable to Poke, I find the following facts, solely for the purpose of deciding the instant motion:

         FACTS

         Nathan Poke began as a police officer with the City of La Crosse Police Department on August 23, 2011. At all times relevant to this suit, defendant Ron Tischer served as La Crosse's Chief of Police.

         In 2015, Poke applied for and was assigned a job as a Neighborhood Resource Officer. He was assigned to the same squad car as Officer Dan Ulrich, who was white. Soon thereafter, Poke began to notice a pattern of questionable behavior on the part of Officer Ulrich, and he reported this behavior to his direct supervisor, Sgt. Andy Dittman. The La Crosse Police Department commenced an investigation of Officer Ulrich, but also commenced an investigation of Poke. On or about September 11, 2015, Poke was placed on administrative leave, but Officer Ulrich was not. Chief Tischer informed Poke that he was being placed on administrative leave “based on the seriousness of recently reported allegations of multiple policy violations.”

         In January 2016, Poke contacted the police union and obtained a union lawyer to represent him at an interview by the City's lawyer. The interview took place on January 7, 2016, and lasted several hours. Although the City's lawyer asked Poke some questions about his complaints about Officer Ulrich, most of the questions involved alleged misconduct by Poke.

         Around that time, the union lawyer, Andrew Schauer, told Poke that he had learned from the City's lawyer that the City was intent on terminating Poke's employment. Poke and Schauer discussed the likely unfavorable publicity that would result if the Police Chief instituted discharge proceedings before the Police and Fire Commission and how that would hurt Poke's future employability as a police officer, regardless of the outcome of the proceedings. Poke and Attorney Schauer were of the opinion that the Police and Fire Commission would almost certainly support the Chief of Police in a discharge case, even if it was weak. Accordingly, believing there was no chance to preserve his employment and reputation if he went through the disciplinary proceeding, Poke authorized his lawyers to negotiate the terms of his resignation with the City.

         On August 10 and 11, 2016, respectively, the City's representative and Poke signed a “Separation Agreement, Waiver and Release” that effectuated the termination of Poke's employment with the City of La Crosse. Poke agreed to release all legal claims against the City, including any claims for wrongful or retaliatory discharge, but the parties expressly agreed that this would “not bar Employee from pursuing any legal claim alleging race discrimination against the City.”[1]

         On January 14, 2019, Poke filed this lawsuit, alleging that defendants discriminated against him on the basis of his race when “he was placed on leave and relieved of his most significant duties, and then investigated and constructively discharged from his employment.” Complaint, dkt. 1, ¶¶ 501-503. Poke further alleged that “his resignation pursuant to this [Separation Agreement] was a constructive discharge, since [he] resigned only in order to avoid certain termination for alleged misconduct.” Id. at ¶ 4142.

         OPINION

         To be entitled to damages on his claims for race discrimination, Poke must show, among other things, that he suffered an adverse employment action. Nacify v. Illinois Dept. of Human Services, 697 F.3d 504, 509 (7th Cir. 2012); Greer v. Amesqua, 212 F.3d 358, 370 (7th Cir. 2000). Poke alleges four adverse employment actions: (1) placement on leave; (2) demotion in job duties; (3) being subject to an investigation; and (4) constructive discharge. A constructive discharge occurs when the plaintiff shows that his working conditions had become so intolerable that he was forced to resign. Pennsylvania State Police v. Suders, 542 U.S. 129, 147 (2004). The inquiry is objective, viewed from the standpoint of a reasonable person in the employee's position. Id. at 141. Defendants are entitled to summary judgment on Poke's constructive discharge claim if they can show the absence of any genuine dispute of material fact and that they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).

         The Court of Appeals for the Seventh Circuit has recognized two forms of constructive discharge: (1) when a plaintiff resigns due to alleged discriminatory harassment; and (2) when an employer “acts in a manner so as to have communicated to a reasonable employee that she will be terminated, and the plaintiff employee resigns[.]” Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 679-80 (7th Cir. 2010) (quoting E.E.O.C. v. Univ. of Chicago Hosps., 276 F.3d 326, 332 (7th Cir. 2002)). A plaintiff seeking to establish the first form of constructive discharge must show “working conditions even more egregious than that required for a hostile work environment claim because employees are generally expected to remain employed while seeking redress, thereby allowing an employer to address a situation before it causes the employee to quit.” Id. at 679 (citation omitted). Examples of “egregious” working conditions that go beyond a hostile working environment generally include threats to personal safety. Chapin, 621 F.3d at 679 (citing Porter v. Erie Foods, Int'l, Inc., 576 F.3d 629, 640 (7th Cir. 2009) (claim for constructive discharge possible where harassment included repeated use of noose and implied threats of physical violence); Taylor v. W & S Life Ins. Co., 966 F.2d 1188, 1198-99 (7th Cir. 1992) (constructive discharge where supervisor made racial jokes and brandished a firearm, held it to the plaintiff's head, then took a photo and made racial jokes about it at a staff meeting)); see also Brooms v. Regal Tube Co., 881 F.2d 412, 417 (7th Cir. 1989) (finding constructive discharge where the employee's human resource manager repeatedly showed her racist pornographic photos and made threatening comments to her, including a threat to kill her). Poke has not presented evidence of conditions that even approach this high threshold.

         Instead, Poke appears to be pursuing the second type of constructive discharge claim, i.e., that his employer acted in a manner so as to have communicated to a reasonable employee that he will be terminated. However, “only at-will employees can show constructive discharge under this approach.” Ulrey v. Reichhart, 941 F.3d 255, 262 n.2 (7th Cir. 2019). Employees like Poke who enjoy due process protections “cannot assume that the start of termination proceedings will result in termination” and resign ...


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