Shonda Martin v. Milwaukee County, Wisconsin ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 17-3216 & 18-1060
SHONDA MARTIN,
Plaintiff-Appellee,
v.
MILWAUKEE COUNTY,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Eastern District of Wisconsin.
No. 2:14-CV-200 — J.P. Stadtmueller, Judge.
____________________
ARGUED MAY 24, 2018 — DECIDED SEPTEMBER 14, 2018
____________________
Before MANION and BARRETT, Circuit Judges, and
GETTLEMAN, District Judge. *
MANION, Circuit Judge. Milwaukee County (“County”)
hired Xavier Thicklen in late 2012 to work as a corrections
officer in its jail. County has a zero-tolerance policy
forbidding corrections officers from having any sexual
* Of the United States District Court for the Northern District of
Illinois, sitting by designation.
2 Nos. 17-3216 & 18-1060
contact with inmates. County repeatedly instructed Thicklen
not to engage in any such contact and trained him to avoid it.
Thicklen gave answers to quizzes indicating he understood
the training. But he raped Shonda Martin in jail anyway.
Martin sued him, and sued County for indemnification
under Wisconsin Statute § 895.46. Before, during, and after
trial, County sought judgment as a matter of law that the
assaults were outside the scope of employment and not
susceptible to statutory indemnification. But the district court
allowed a jury to decide the scope issue and allowed the
$6,700,000 award to stand against County via the jury’s
finding that the assaults were in the scope. County appeals.
I. Facts 1
A. Thicklen’s training
Thicklen worked as a corrections officer (a/k/a “guard”) at
the Milwaukee County Jail. County instructed him never to
have sex with inmates under any circumstances. County told
him an inmate’s apparent consent was irrelevant; inmate
consent is impossible given the power imbalance. Milwaukee
County Deputy Inspector James Cox testified corrections
officers are instructed that: 1) sexual contact with an inmate
violates state law; 2) there is no such thing as a consensual
relationship between an officer and an inmate; 3) the Sheriff’s
Office mission opposes officers having sexual contact with
1 We present the facts in the light most favorable to Martin and the
jury’s verdict. Thorne v. Member Select Ins. Co., 882 F.3d 642, 644 (7th Cir.
2018). All quotes in this section are from the trial transcript, unless
otherwise indicated.
Nos. 17-3216 & 18-1060 3
inmates; and 4) the Sheriff’s Office will investigate violations
and prosecute and terminate violators.
Deputy Anne Varick, who worked as a guard at the jail
before Thicklen sexually assaulted Martin, testified inmates
had to obey guards or face discipline, but no part of her duties
allowed her to have any sexual contact with an inmate or to
fabricate reasons to move an inmate. She testified no part of
her training permitted sex as a response to an inmate, or the
use of force as a means to obtain sex from an inmate.
Edward Bailey, a County representative in supervisory
ranks before retiring, told the jury sexual contact between a
corrections officer and an inmate is a heinous crime and an
abdication of law enforcement’s powers. He testified
corrections officers received clear training against it. He
testified about training guides Thicklen would have received
and explained they detailed the criminality of staff having
sexual contact with inmates and the irrelevancy of apparent
consent. Corrections officers were trained not to have any
sexual contact with inmates under any circumstances,
regardless of consent. They were trained such contact is
criminal, unethical, unprofessional, unexcusable, and
unjustifiable. Bailey testified County has a zero-tolerance
policy regarding such sexual contact. He also testified he
would meet with all corrections officers on their graduation
days and present real-life examples of officers who engaged
in unethical and criminal conduct, including sexual contact.
Bailey testified he would have had this conversation with
Thicklen. Bailey also testified Thicklen’s quiz answers
demonstrated his understanding that 1) consent is not a
defense to sexual misconduct; 2) if an inmate “comes on” to
an officer he should tell the inmate the behavior is
4 Nos. 17-3216 & 18-1060
inappropriate, discipline the inmate, and report the incident
to a supervisor; and 3) if a staff member becomes romantically
involved with an inmate he should tell a supervisor of the
problem and the need for assistance. Bailey testified Thicklen
completed the training about sex. At trial, Martin did not
contest Thicklen received this training or gave these answers.
Bailey told the jury the sexual assaults violated Wisconsin
law; Thicklen’s oath and training; the Sheriff’s Office’s goals
and policies; and County’s rules, regulations, and policies.
Bailey’s testimony was blunt: Thicklen “was retained and
employed by Milwaukee County to provide public safety. To
work within our jail in the pursuit of justice. And, in fact, he
went inside the Milwaukee County jail and perpetrated
heinous crimes. That was not work that he was retained to
do.” Bailey said Thicklen was not rendering services County
hired him to perform when he committed these crimes.
B. Martin’s incarceration
Martin arrived at the jail in February 2013 at the age of 19.
She soon learned she was pregnant. She testified she could not
control her activities or movements in jail; the guards did.
Thicklen raped Martin in jail. He had sexual contact with her
three times while she was pregnant, including vaginal
intercourse, and two times after delivery. Regarding the first
sexual assault, Martin testified that on April 12, 2013, Thicklen
came to her housing pod and said she had a medical
appointment. By then, County had employed Thicklen for
approximately six months. He took her and three other female
inmates to the jail clinic. He put her alone in a cell near the
clinic and put the other three together in an adjacent cell. He
returned to Martin’s temporary cell and sexually assaulted
her. She was shocked. She testified she “kind of led it on.”
Nos. 17-3216 & 18-1060 5
On July 11, 2013, a jail staff member told her she had an
attorney visit. Thicklen took her to an attorney booth. He told
her “we’re f*ckin’” and sexually assaulted her. She testified
she did “[n]ot really” want to engage in that sexual encounter,
but she “didn’t dispute it … .” No attorney appeared in the
booth. Martin assumed the “attorney visit” was fake. At least
after the second sexual encounter with Thicklen, Martin
definitively did not want to have any further encounters with
him. But she could not avoid him.
On September 7, 2013, Thicklen took her to an attorney
booth for another “attorney visit” that did not happen. He
told her again “we’re f*ckin’.” She said, “absolutely not.
Please. I can’t. I’m sick. I’m not feeling well. Don’t want to do
this. I don’t want to have anything to do with you.” He told
her he was in gray and she was in blue, and his co-workers
would believe him and not her. Corrections officers wore
gray. Inmates wore blue. She understood him to mean “he’s
in authority and … he has power over me.” She understood
him to mean his co-workers would believe anything he said;
he could falsely say she tried to grab or hit him, or tried to
take his taser or gun, and she would be punished. She was
worried about “max status”: isolation for 23 hours a day on
nutraloaf, which is like “dog food.”2 She testified, “I believed
everything he said. … I knew that his authority over me
would trump anything that I said.” He ordered her to get on
the table. She did not think she could say no. He vaginally
raped her. She was scared, mad, and confused. The rape
caused her to bleed. She entered preterm labor and had to go
to the hospital. Fear stopped her from reporting. The hospital
2See Prude v. Clarke, 675 F.3d 732, 733 (7th Cir. 2012) (“Nutriloaf … is
a bad-tasting food given to prisoners as a form of punishment … .”).
6 Nos. 17-3216 & 18-1060
stopped the bleeding and contractions. She returned to jail
that night. About a month later, on October 4, 2013, Martin
went into labor and returned to the hospital. She was shackled
by her leg and wrist throughout virtually her entire
hospitalization, even during most of the delivery process. The
child was born in good health. Martin had to leave her baby
with family and return to jail on October 6, 2013.
Four days after delivery, Thicklen sexually assaulted
Martin a fourth time in her room in the jail infirmary. She felt
violated and sick. She did not feel she could stop it. On
November 15, 2013, he took her to a holding cell near the
medical clinic. He sexually assaulted her a fifth time. She did
not see any medical professional on that occasion.
Martin testified that during each sexual assault, Thicklen
was in uniform, armed, and on duty working for County. All
five assaults occurred in jail. Every time, he had to use his
keys, power, and authority. He told her he would be fired if
people found out. He took steps to hide the assaults. For
example, he assaulted her off camera. Finally, on December 3,
2013, she reported the sexual assaults when she was
concerned he possibly gave her a disease which spread to her
child. An investigation began that day. She was transferred
the next day. Thicklen was dismissed and prosecuted.
II. Procedural Posture
Martin sued Thicklen and County. Count I asserted a
claim under 42 U.S.C. § 1983 for violation of the Fourteenth
Amendment’s due process clause, arising out of the sexual
assaults. Count II asserted a claim arising out of the shackling
during delivery. Count III brought a claim for failure to
intervene. Count IV brought a claim against County for
Nos. 17-3216 & 18-1060 7
indemnification under Wisconsin Statute § 895.46 for the
sexual assaults. County moved for summary judgment on
Counts I, III, and IV. County argued, among other things, that
as a matter of law Martin could not establish Thicklen was
acting within the scope of employment when he sexually
assaulted her. The district court granted summary judgment
to County on Counts I and III but denied summary judgment
on Count IV, concluding material issues of fact existed about
whether Thicklen was acting within the scope of his
employment when he sexually assaulted Martin. County
sought—but the district court denied—leave immediately to
appeal the denial of summary judgment on indemnification.
The case went to jury trial. Thicklen did not appear.
Martin’s only claim against him at trial was her § 1983 claim
for the sexual assaults. Her only surviving claims against
County at trial were her claim for indemnification under §
895.46 regarding the sexual assaults and her § 1983 claim for
shackling during delivery. County moved for judgment as a
matter of law pursuant to Rule 50(a) during trial but the court
allowed the case to go to the jury, which returned a verdict in
favor of Martin on her § 1983 claim against Thicklen and on
her indemnification claim against County. The jury awarded
$1,700,000 in compensation and $5,000,000 in punitive
damages. The jury returned a verdict in favor of County on
the shackling claim, which Martin does not appeal.
County renewed its motion for judgment as a matter of
law pursuant to Rule 50(b) and moved for a new trial
pursuant to Rule 59. County argued that Martin failed as a
matter of law to establish Thicklen was acting within the
scope of his employment, that the verdict in Martin’s favor on
this issue was against the manifest weight of the evidence,
8 Nos. 17-3216 & 18-1060
and that the court erred in instructing the jury on scope of
employment. The court denied that motion. County appeals
under No. 17-3216 and raises two issues. County argues it is
entitled to judgment as a matter of law on the indemnification
claim. Alternatively, County argues it is entitled to a new trial
on the indemnification claim because the jury’s verdict is
against the manifest weight of the evidence and the court
erred in instructing the jury.
And now, another surprise. County also filed a second
post-verdict motion seeking a new trial or relief from the
judgment based on newly discovered evidence that Martin
and Ivan Boyd (the father of her child) framed Thicklen, and
the sexual assaults never happened. The court denied that
motion. County appeals under No. 18-1060 and argues it is
entitled to a new trial or relief from the judgment. The two
appeals (17-3216 and 18-1060) are consolidated.
III. Discussion
A. Standard of review
County tried and failed several times to take the issue of
whether Thicklen sexually assaulted Martin in the scope of his
employment away from the jury. We review the denial of a
Rule 50 motion for judgment as a matter of law de novo.
Thorne, 882 F.3d at 644. We consider “whether the evidence
presented, combined with all reasonable inferences
permissibly drawn therefrom, is sufficient to support the
verdict when viewed in the light most favorable to the party
against whom the motion is directed.” Lane v. Hardee’s Food
Sys., Inc., 184 F.3d 705, 707 (7th Cir. 1999). “Judgment as a
matter of law is proper if ‘a reasonable jury would not have a
legally sufficient evidentiary basis to find for the party on that
Nos. 17-3216 & 18-1060 9
issue.’” Lawson v. Sun Microsystems, Inc., 791 F.3d 754, 761 (7th
Cir. 2015) (quoting Fed. R. Civ. P. 50(a)(1)). Without assessing
credibility or weighing evidence, we construe the evidence in
favor of the party who won before the jury. Thorne, 882 F.3d
at 644. But a verdict supported by no evidence or a mere
scintilla of evidence will not stand. Id.
B. Scope of employment for statutory indemnification
1. Wisconsin Statute § 895.46
County argues Martin failed as a matter of law to establish
Thicklen sexually assaulted her within the scope of
employment. It argues no reasonable jury could find he was
within the scope when he sexually assaulted her because it
did not employ him to perform that kind of conduct and
because the assaults were not actuated by a purpose to serve
it. It seeks judgment as a matter of law on her indemnification
claim under Wisconsin Statute § 895.46, which states:
If the defendant in any action or special
proceeding is a public officer or employee and
is proceeded against in an official capacity or is
proceeded against as an individual because of
acts committed while carrying out duties as an
officer or employee and the jury or the court
finds that the defendant was acting within the
scope of employment, the judgment as to
damages and costs entered against the officer or
employee … in excess of any insurance
applicable to the officer or employee shall be
paid by the state or political subdivision of
which the defendant is an officer or employee.
10 Nos. 17-3216 & 18-1060
Wis. Stat. § 895.46(1)(a). At trial, Martin’s only claim against
County based on Thicklen’s conduct stemmed from this
statute; she sought indemnification at trial on no other
ground, and the district court had granted County summary
judgment on her other claims against it arising from the
sexual assaults. Wisconsin law controls the issue of whether
the sexual assaults were in the scope of employment. See
Hibma v. Odegaard, 769 F.2d 1147, 1152 (7th Cir. 1985). The
district court recognized this. It determined relevant cases
conflicted. But the district court did not follow what it thought
the Wisconsin Supreme Court would do—as required, In re:
Zimmer, Nexgen Knee Implant Prods. Liab. Litig., 884 F.3d 746,
751 (7th Cir. 2018) (recognizing that when interpreting state
law, a federal court must determine how the state’s highest
court would rule). Instead, the district court decided to follow
the case with the most closely analogous facts, 3 which it
determined to be Estate of Watts v. Heine, No. 07-CV-644, 2008
3The court gave no citation for the idea that if state law is unsettled it
should follow any case with the closest facts. But even such a rule would
point to J.K.J. v. Polk County Sheriff’s Department. There, a court issued a
decision three days before the summary judgment decision in the case
before us. J.K.J. involved facts arguably much closer to our case. J.K.J. held
no reasonable jury could infer a jailer’s sexual assaults (including
intercourse) of a detainee were intended for a legitimate purpose. J.K.J.,
No. 15-cv-428-wmc, 2016 WL 6956662, at *4 (W.D. Wis. Nov. 28, 2016). So
he was outside the scope. Although that decision involved insurance and
not § 895.46, the same scope analysis obtains. Indeed, in a later decision in
the same case the court held the § 895.46 indemnification claim failed as a
matter of law because the jailer was outside the scope. J.K.J. v. Polk Cty.,
No. 15-cv-428-wmc, 2017 WL 28093, at *13 (W.D. Wis. Jan. 1, 2017). We do
not fault the court here for not following J.K.J. as precedent (it wasn’t
binding) or for not following J.K.J. as having the closest facts (that isn’t the
rule). The quest is to follow what the Wisconsin Supreme Court would do.
Nos. 17-3216 & 18-1060 11
WL 4058032 (E.D. Wis. Aug. 26, 2008), 4 one of its own
decisions. 5
4 Estate of Watts involved sexual assault in the Milwaukee County Jail
but does not control. Besides being a decision by a federal district court,
not the Wisconsin Supreme Court, there are other concerns. One, that case
concludes: “A reasonable trier of fact could find that Heine’s sexual
misconduct was not wholly disconnected from the scope of his
employment.” Estate of Watts, 2008 WL 4058032, at *4. But the Wisconsin
Supreme Court has not used “not wholly disconnected” as a test for §
895.46 scope. Concluding an act is wholly disconnected from employment
removes it from scope. See Seidl v. Knop, 182 N.W. 980, 981 (Wis. 1921) (“the
arrangement … was a wholly disconnected act of Reese’s employment”).
But concluding an act is not wholly disconnected from employment is
insufficient to put the act in scope. Such a bare conclusion does not, for
example, consider intent. J.K.J. criticized Estate of Watts for that. J.K.J., 2016
WL 6956662, at *5 (“To the extent the court in Estate of Watts focused on
the deputy sheriff’s position, rather than his intent, its holding appears
inconsistent with the Wisconsin Supreme Court’s decision in Olson, which
expressly disavows cases that ‘eliminate the employee’s intent as a factor’
in a scope of agency analysis, because ‘they are inconsistent with what we
have said here and are thus incorrect under Wisconsin law.’”). Two, Estate
of Watts also concludes: “A jury could conclude that his supervision of and
interaction with inmates … was part of his job and the sexual assault was
only made possible by virtue of his status as a deputy sheriff.” Estate of
Watts, 2008 WL 4058032, at *4. Of course supervision and interaction were
parts of the job. Plaintiff did not sue for that. And the “made possible”
theory is insufficient. J.K.J., 2016 WL 6956662, at *5–6; see S.V. v. Kratz, No.
10-C-0919, 2012 WL 5833185, at *6 (E.D. Wis. Nov. 16, 2012) (“[I]t is
irrelevant that the opportunity … arose as a result of his position … .”); see
also Gallun v. Soccer U.S.A., Inc., 516 N.W.2d 789, 1994 WL 133053, at *3
(Wis. Ct. App. 1994) (“The fact that Nelson’s conduct occurred within the
time and space of his employment, and the fact that without his
employment he would not have had the opportunity … are inadequate to
carry the conduct within the scope of employment.”).
5 We are reviewing the court’s denial of County’s motion for judgment
as a matter of law under Rule 50, not the denial of the motion for summary
12 Nos. 17-3216 & 18-1060
To the contrary, we find Wisconsin law sufficiently clear.
2. Wisconsin Supreme Court precedent
A leading case is Cameron v. City of Milwaukee, 307 N.W.2d
164 (Wis. 1981). There, two “off duty” police officers cruised
through Milwaukee in the early morning hours in civilian
clothes. They challenged and fought with a group from
another car, leading to the arrest of that group. A federal
district court concluded the police officers violated the
constitutional rights of the occupants of the other car. The
police officers sued the City for § 895.46 indemnification,
arguing their conduct was in the scope. The state trial court
granted summary judgment for the City, and the appellate
court affirmed.
But the Wisconsin Supreme Court reversed. It held “color
of law” for 42 U.S.C. § 1983 purposes is not identical to “scope
of employment” for Wisconsin Statute § 895.46 purposes.
Color is broader than scope. Observing “scope of
employment” comes from respondeat superior, the court
harked back to its decisions in Scott v. Min-Aqua Bats Water Ski
Club, 255 N.W.2d 536 (Wis. 1977), and Seidl v. Knop, 182 N.W.
980 (Wis. 1921), for the scope test: “The act cannot be deemed
to be within the course of the employment unless, upon
looking at it, it can fairly be said to be a natural, not
disconnected and not extraordinary, part or incident of the
service contemplated.” Cameron, 307 N.W.2d at 168. The court
also cited Prosser favorably: Scope includes “those acts which
are ‘so closely connected with what the servant is employed
to do, and so fairly and reasonably incidental to it, that they
judgment. But in denying the Rule 50 motion, the court relied on its
summary judgment decision.
Nos. 17-3216 & 18-1060 13
may be regarded as methods, even though quite improper
ones, of carrying out the objectives of the employment.’
Prosser, Law of Torts, (4th ed.) pp. 460-61, sec. 70 (hornbook
series).” Cameron, 307 N.W.2d at 168–69. The court decided
reasonable inferences could lead to either scope conclusion,
so further proceedings were necessary.
Another leading case is Olson v. Connerly, 457 N.W.2d 479
(Wis. 1990). There, defendant/physician Connerly blurred
many lines. The University of Wisconsin Medical School
employed him and plaintiff/medical assistant Olson, who
worked together. Connerly soon became Olson’s regular
physician. Then he became her mental health counselor. Then
they started seeing each other even more, including over
lunch. Eventually they engaged in four or five instances of
sexual contact, including intercourse. Olson sued Connerly.
Olson testified at trial she believed Connerly intended
these sexual encounters to be therapeutic, but there was no
evidence Connerly told her this, and he testified he did not
intend the sexual encounters to be medical care. He testified
that at the time he felt he was falling in love with her.
Wisconsin’s Attorney General refused to defend Connerly,
but appeared at trial to argue the sexual contact was not
within the scope of Connerly’s employment under § 895.46.
The trial judge instructed the jury to consider whether
Connerly was actuated by a purpose to serve his employer or
whether he had stepped aside from his employer’s business
to accomplish his own independent purpose. Olson, 457
N.W.2d at 481. The jury determined Connerly was not acting
within the scope of his employment during the sexual
encounters. The case reached Wisconsin’s highest court.
14 Nos. 17-3216 & 18-1060
The Wisconsin Supreme Court observed it is proper to
look to scope cases outside the context of § 895.46 in defining
“scope of employment” as used in § 895.46. The court
concluded its scope cases “have always deemed significant
the employee’s intent at the time the acts in question were
committed.” Id. at 483. The court found its decision in Finsland
v. Phillips Petroleum Co., 204 N.W.2d 1 (Wis. 1973), instructive.
There, the court articulated the controlling factors in scope
cases: “Conduct of a servant is not within the scope of
employment if it is different in kind from that authorized, far
beyond the authorized time or space limits, or too little
actuated by a purpose to serve the master.” Finsland, 204
N.W.2d at 6 (quoting Restatement, 1 Agency 2d, page 504, §
228(2)). The Olson court concluded that “in resolving scope of
employment questions, consideration must be given to
whether the employee was actuated, at least in part, by a
purpose to serve his or her employer.” Olson, 457 N.W.2d at
479. “[A]n employee’s conduct is not within the scope of his
or her employment if it is too little actuated by a purpose to
serve the employer or if it is motivated entirely by the
employee’s own purposes (that is, the employee stepped
aside from the prosecution of the employer’s business to
accomplish an independent purpose of his or her own).” Id.
at 483. So the jury instruction was proper.
In sum, Olson reiterated in the context of § 895.46
Wisconsin’s time-worn test for scope: Conduct is not in the
scope if it is different in kind from that authorized, far beyond
the authorized time or space, or too little actuated by a
purpose to serve the employer. Id. at 483. Serving the
employer need not be the employee’s only or primary
purpose for the conduct to be in the scope. Id. But if the
Nos. 17-3216 & 18-1060 15
conduct is “too little actuated by a purpose to serve the
employer” then it is outside the scope. Id. 6
3. Seventh Circuit precedent
We have applied the Wisconsin Supreme Court’s
interpretation of “scope of employment” in § 895.46 many
times. In Bell v. City of Milwaukee, two police officers pursued
an unarmed man fleeing a traffic stop. Bell, 746 F.2d 1205, 1215
(7th Cir. 1984), overruled on other grounds by Russ v. Watts, 414
F.3d 783 (7th Cir. 2005). Officer Grady’s “gun discharged,”
killing Bell. Id. at 1215. Grady planted a knife in Bell’s right
hand and closed the hand around it. The two officers
concocted a cover story. But Bell’s sister insisted he did not
6 Wisconsin’s intermediate court is in accord. See Thiele v. Robinson, 913
N.W.2d 233, 2018 WL 526721, at *6 (Wis. Ct. App. 2018) (affirming
summary judgment as act was outside employment scope for insurance
coverage as a matter of law under Olson: “All of Robinson’s alleged
conduct was obviously to further his personal interest (a sexual
relationship) and not in the interest of [the employer].”); Lola M. v. City of
Milwaukee, 642 N.W.2d 646, 2002 WL 234234, at *3 (Wis. Ct. App. 2002)
(affirming summary judgment because officer’s sexual assaults were
outside scope as a matter of law as he “[o]bviously” intended to serve
himself and “unquestionably” not the City), pet. for rev. denied, 254 Wis. 2d
263 (Wis. 2002); Block v. Gomez, 549 N.W.2d 783, 788 (Wis. Ct. App. 1996)
(affirming decision after evidence but before deliberation that sexual
assault was outside scope for vicarious liability as a matter of law as it was
not partially actuated to serve employer); Desotelle v. Cont’l Cas. Co., 400
N.W.2d 524 (Wis. Ct. App. 1986), abrogated on other grounds by Kruckenberg
v. Harvey, 694 N.W.2d 879, 893–94 (Wis. 2005); Crawford v. City of Ashland,
396 N.W.2d 781, 784 (Wis. Ct. App. 1986) (“Limiting [§ 895.46’s] protection
to only that conduct that is within the scope of employment ensures that
the statute would not protect a public employee who engages in
outrageous or criminal conduct. By definition, such conduct would not be
within the scope of employment.”).
16 Nos. 17-3216 & 18-1060
own that knife and he was left-handed. The City contested its
responsibility to indemnify Grady under § 895.46 by arguing
his actions were outside the scope because he lied during the
investigation and perjured himself. The district court held
Grady was in the scope so the City had to indemnify him. Bell
v. City of Milwaukee, 536 F. Supp. 462, 478 (E.D. Wis. 1982), aff’d
in part and rev’d in part, Bell, 746 F.2d 1205. The district court
acknowledged that under Wisconsin law, bad faith may be
relevant to the scope analysis, and quoted Cameron’s “so
closely connected” test for scope. Id. at 478. The district court
concluded Grady had dual motives. His actions were
designed to further his own objective of escaping punishment
and to further his employer’s objectives. “He was performing
his duties as a police officer but used quite improper methods
of carrying out those duties.” Id. We affirmed that part of the
district court’s decision. Bell, 746 F.2d at 1271.
In Hibma, we again applied the Wisconsin Supreme
Court’s interpretation of “scope of employment” in § 895.46.
There, three deputies framed Hibma for burglaries they
committed. Hibma, 769 F.2d at 1149–51. We quoted the
Scott/Seidl and Cameron/Prosser tests. Id. at 1152. Akin to Bell,
we concluded the deputies investigated, reported, and
testified, and we concluded their actions were designed to
serve the dual purposes of furthering their own objectives and
their employer’s objectives. Id. at 1153. We held the district
court erred in granting the employer judgment
notwithstanding the verdict. Id.
Our first major decision in this context after Olson was
Graham v. Sauk Prairie Police Commission, 915 F.2d 1085 (7th
Cir. 1990). There, a police officer shot and killed a non-fleeing,
non-threatening suspect lying face down with his hands
Nos. 17-3216 & 18-1060 17
cuffed. Graham, 915 F.2d at 1088. The district court held the
employers had to indemnify. We quoted the two parallel
scope tests articulated in Cameron: the “natural, not
disconnected” test and the “closely connected” test. Id. at
1093. And we quoted at length the then-recent Olson
decision’s emphasis on intent: “‘an employee’s conduct is not
within the scope of his or her employment if it is too little
actuated by a purpose to serve the employer or if it is
motivated entirely by the employee’s own purposes.’” Id.
(quoting Olson, 457 N.W.2d at 483). After distinguishing
Cameron and Desotelle, we concluded a jury could not
reasonably find the officer’s conduct was too little actuated by
a purpose to serve his employer. We concluded the officer was
within the scope. Id. at 1095–96.
In sum, we have adhered to Wisconsin law regarding
“scope of employment” in § 895.46. We tracked it through its
reemphasis on intent and purpose. We have been willing to
decide the issue as a matter of law, and we have left it for the
jury when appropriate.
4. Analysis
Generally, scope of employment is a fact issue. See
Stephenson v. Universal Metrics, Inc., 633 N.W.2d 707, 713 (Wis.
Ct. App. 2001). But, as the district court here correctly noted,
when the facts are undisputed, and all reasonable inferences
therefrom lead to but one conclusion, judgment as a matter of
law is appropriate and required. “Wisconsin courts have
stated that it is proper to decide the scope of employment
issue on a motion for summary judgment as long as the
underlying facts are not in dispute and reasonable inferences
leading to conflicting results cannot be drawn from the
undisputed facts.” Graham, 915 F.2d at 1093 (citing Cameron,
18 Nos. 17-3216 & 18-1060
307 N.W.2d at 169–70, and Desotelle, 400 N.W.2d at 529). Here,
we have the benefit of a trial record, which reflects essentially
the same evidence as that raised at the summary judgment
stage. See Martin v. Cty. of Milwaukee, No. 14-CV-200-JPS, 2017
WL 4326512, at *3 (E.D. Wis. Sept. 28, 2017) (order under
appeal here, noting that the district court previously denied
summary judgment to County regarding scope and noting
“the evidence adduced at trial was not materially different
than that presented at the dispositive motion stage”).
Courts have phrased the scope test for § 895.46 in slightly
different but compatible ways. We distill the test to its essence.
An act is not in the scope unless it is a natural, not
disconnected and not extraordinary, part or incident of the
services contemplated. An act is not in the scope if it is
different in kind from that authorized, far beyond the
authorized time or space, or too little actuated by a purpose
to serve the employer. But an act is in the scope if it is so
closely connected with the employment objectives, and so
fairly and reasonably incidental to them, that it may be
regarded as a method, even if improper, of carrying out the
employment objectives. We must consider the employee’s
intent and purpose, in light of subjective and objective
circumstances.
Here, we may take it as granted that the sexual assaults
occurred during the authorized time and space limits of
Thicklen’s employment (although there may be some
question about whether Thicklen was actually authorized to
be in the particular locations of the sexual assaults at the times
he perpetrated them).
But even when viewing the evidence in the light most
favorable to Martin and the verdict, we hold no reasonable
Nos. 17-3216 & 18-1060 19
jury could find the sexual assaults were in the scope of his
employment. No reasonable jury could conclude the sexual
assaults were natural, connected, ordinary parts or incidents
of contemplated services; were of the same or similar kind of
conduct as that Thicklen was employed to perform; or were
actuated even to a slight degree by a purpose to serve County.
No reasonable jury could conclude the sexual assaults were
connected with the employment objectives (much less closely
connected) or incidental to them in any way. No reasonable
jury could regard the sexual assaults as improper methods of
carrying out employment objectives. The evidence negates
the verdict.
Uncontested evidence at trial demonstrated County
thoroughly trained Thicklen not to have sexual contact with
inmates. County expressly forbade him from having sexual
contact with an inmate under any circumstances, regardless
of apparent consent. County’s training warned him that such
sexual contact violates state law and the Sheriff’s Office’s
mission. County not only instructed him not to rape inmates;
it also trained him how to avoid or reject any opportunity or
invitation to engage in any sort of sexual encounter with
inmates. For example, if an inmate “comes on” to him, he
should tell the inmate the behavior is inappropriate,
discipline the inmate, and report the incident to a supervisor.
Thicklen even answered quizzes demonstrating his
understanding. Martin presented no evidence at trial that this
training was deficient or that Thicklen did not understand it. 7
7 The district court presciently noted at trial, outside the jury’s
presence: “And if the evidence shows that he was trained not to become
involved in this sort of activity, and that it was indeed criminal conduct,
20 Nos. 17-3216 & 18-1060
Martin failed to offer any evidence the sexual assaults were
natural, connected, ordinary parts or incidents of the services
contemplated. She presented no evidence from which a
reasonable jury could conclude these sexual assaults were
similar to guarding inmates. And she presented no evidence
from which a reasonable jury could conclude the sexual
assaults were actuated in any way by a purpose to serve
County.
Thicklen did not appear at trial. Martin did not introduce
any testimony from him. The uncontested evidence showed
he did not subjectively intend in any way to benefit his
employer. He told her he would be fired if people learned. He
took steps to avoid cameras. He threatened that if she
reported the sexual abuse people would believe him. She
feared punishment. No evidence or reasonable inferences
remotely suggested he intended to benefit his employer. To
the contrary, all evidence and inferences pointed to purely
personal goals. A reasonable inference is he intended to
obtain personal sexual pleasure from the assaults. Martin
argues he might have intended to exert power, dominion, and
control over her by sexually assaulting her. But that inference,
while reasonable, still does not bring the sexual assaults
within the scope because under that theory he would still
have pursued purely personal goals. Any power, dominion,
and control asserted or achieved through these sexual
assaults would “belong to” and “benefit” only him, not
County, on these facts. Olson reminds us that an employee’s
being “at least partially actuated by a purpose to serve the
employer” is a sine qua non of scope. Olson, 457 N.W.2d at 483.
that may be the proverbial straw that broke the camel’s back that removes
the conduct from being within the scope of employment.”
Nos. 17-3216 & 18-1060 21
Intent is not just one of several factors to put in a balancing
test.
The undisputed facts and reasonable inferences point
ineluctably to the conclusions that Thicklen’s abhorrent acts
were in no way actuated by a purpose to serve County. He
raped Martin for purely personal reasons, the rapes did not
benefit County but harmed it, he knew the rapes did not serve
County, and the rapes were outside the scope. As the district
court correctly observed: “Of course, each discreet sex act has
nothing to do with being a correctional officer.” Doe v. Cty. of
Milwaukee, 225 F. Supp. 3d 790, 807 (E.D. Wis. 2016) (order
denying motion for summary judgment on indemnification).
Martin presented no evidence at trial that the sexual abuse
was similar in kind to work Thicklen was employed to
perform. This case is distinguishable from cases involving
excessive force by police officers. Some force, even deadly
force, is sometimes permissible for police officers. But the
rapes in this case were not part of a spectrum of conduct that
shades into permissible zones. Inmate rape by a guard usually
involves no gray areas. See S.V. v. Kratz, No. 10-C-0919, 2012
WL 5833185, at *4 (E.D. Wis. Nov. 16, 2012) (Granting
Wisconsin summary judgment against § 895.46
indemnification of a prosecutor who solicited sex from a
victim; noting that in cases of sexual misconduct “it is often
easier to draw bright lines because there is no spectrum of
acceptable behavior”; and collecting cases finding sexually
motivated acts to be outside the scope as a matter of law.). In
Johnson v. Cook County, we recognized that under Illinois law,
sexual assault categorically is never within the scope. Johnson,
526 Fed. Appx. 692, 697 (7th Cir. 2013). Wisconsin law comes
close to that, but does not go so far. So we do not go so far.
22 Nos. 17-3216 & 18-1060
Nor need we. We do not hold sexual assault could never be
within the scope. We simply conclude that on these facts, even
when viewed most favorably to Martin and the verdict, no
reasonable jury could find these sexual assaults were within
the scope.
As an aside, we note our conclusion is consistent with the
Wisconsin Supreme Court’s understanding of the public
policy behind § 895.46. Wisconsin courts have determined
that the purpose of the statutory indemnification is to enable
public employees to perform their duties without fear of
having to pay out of pocket for such performance. See
Crawford, 396 N.W.2d at 784. Indemnification here would not
further this purpose. We have sympathy for Martin, who loses
perhaps her best chance to collect the judgment. But § 895.46
does not make public employers absolute insurers against all
wrongs.
III. Conclusion
Martin did not introduce any evidence from which a
reasonable jury could conclude the sexual assaults were of the
same or similar kind of conduct as that which County
employed Thicklen to perform. Nor did she introduce any
evidence from which a reasonable jury could conclude the
sexual assaults were actuated even to a slight degree by a
purpose to serve County. Either failing is fatal to her
indemnification claim. She failed as a matter of law to sustain
her burden. Therefore, County was entitled to judgment as a
matter of law on indemnification. The district court erred by
denying the Rule 50 motion. We need not address entitlement
to a new trial or instructional error. As Thicklen is not party
to this appeal, and as we reverse the only judgment against
Nos. 17-3216 & 18-1060 23
County arising from the sexual assaults, we need not address
the evidence of fraud.
We REVERSE and VACATE the judgment against County
for indemnification and REMAND with instructions to enter
judgment for County on that claim.