Henry, Robert A. v. Jones, Arthur L.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3855
ROBERT A. HENRY,
Plaintiff-Appellant,
v.
ARTHUR L. JONES and CITY OF MILWAUKEE,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 C 1082—J.P. Stadtmueller, Judge.
____________
ARGUED APRIL 9, 2007—DECIDED NOVEMBER 1, 2007
____________
Before EASTERBROOK, Chief Judge, and KANNE and
WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. After a local television station
aired a videotape that showed Officer Robert Henry
shoving an unarmed arrestee in a police station booking
room and then pushing him against a wall and onto a
desk, then-Milwaukee Police Chief Arthur Jones re-
quested an Internal Affairs Division investigation and
ultimately decided to terminate Henry from the Milwaukee
Police Department. Henry, a white male, maintains that
Jones, an African American, fired him because of Henry’s
race. However, because Henry has not presented sufficient
evidence that the decision to terminate him was made on
2 No. 06-3855
account of his race, we affirm the district court’s grant of
summary judgment in favor of the defendants.
I. BACKGROUND
Robert Henry filed this suit against the City of Mil-
waukee and Arthur L. Jones, the chief of police of the City
of Milwaukee from November 18, 1996 to November 18,
2003. We recount the facts that follow in the light most
favorable to Henry, the nonmovant for summary judgment.
On March 20, 2002, Milwaukee police officers Talmer
Wilson and Rodney Young, both African-American males,
arrested Billy Miles, also an African-American male. The
officers brought Miles to the police station where Henry
was working. A video camera located in the booking
room recorded the events at the heart of this suit. The
videotape contains a date and time display, but it did not
record sound.
Accompanied by an officer, Miles entered the booking
room at 2:43 a.m. and sat on a bench while Henry searched
another person. About seven minutes later, the officer
accompanied Miles to the area in front of Henry’s desk.
Miles removed his coat, and the officer briefly searched
him. Miles remained standing in the area to which he
had been brought, a few feet in front of the desk where
Henry was seated. During this time, Henry sat at his desk
completing paperwork while two other officers (presum-
ably Wilson and Young) stood nearby. Although there is
no sound on the video, it is clear that Miles spoke to the
three officers while he stood in front of Henry’s desk, and
he occasionally gestured while doing so.
At 2:54 a.m., Miles gestured towards Henry and briefly
placed his hands on Henry’s desk. This action did not
produce any reaction from the three officers, and Henry
remained seated at his desk while the other two officers
No. 06-3855 3
remained standing, one leaning on a counter. Miles took
a few steps back to where he had been standing and
continued to talk to the officers. At 2:55 a.m., Henry stood
up from his chair and walked around his desk, toward
where Miles was standing. Miles remained as he had been,
standing with his hands at his sides. He did not move
toward Henry.
While Miles’s hands were both down at his sides, Henry
suddenly pushed Miles in the collar bone area. This action
knocked Miles off balance (Henry is taller and bigger than
Miles), and he stumbled backwards. Miles regained his
balance, and, with both hands raised above his head, he
appeared to move toward Henry. At that point, Henry
grabbed Miles near his jaw and pushed him against a
wall, then onto a desk. Several persons then entered the
room, and Miles was led back to the bench in handcuffs.
After Miles had been handcuffed, Henry flexed his right
arm and patted his bicep several times while staring
at Miles. A little later, Miles spit at one of the officers.
Miles was subsequently charged with assault by a prisoner
for spitting at an officer.
On July 16, 2002, a Milwaukee television station aired
portions of the videotape from Miles’s booking. That night,
Jones telephoned Internal Affairs Division (“IAD”) Com-
mander Steven Settinsgaard and asked for an investiga-
tion into Henry’s actions. Settinsgaard watched the video
and briefed Jones on his observations. The two decided
not to take disciplinary action at that point, preferring
instead to have the persons involved interviewed.
Settinsgaard ordered an IAD investigation, and Jones
asked the Milwaukee County District Attorney’s office to
investigate Henry’s conduct.
The news segment showing the videotape did not go
unnoticed. On July 22, 2002, about a week after the
television station aired the video, members of the Wiscon-
4 No. 06-3855
sin Legislative Black and Hispanic Caucus wrote Jones
a letter stating that the Caucus would be monitoring
the police department’s response. Five days later, Jones
attended a community meeting where citizens expressed
concern that Henry had mistreated Miles.
In the meantime, Sergeant Michelle Graham oversaw
the IAD investigation, which included interviews of
Henry, Miles, Wilson, Young, and others. Graham sub-
mitted a final report on August 1, 2002. Among other
things, the report states that Henry explained that Miles
had been uncooperative and belligerent and had threat-
ened to spit at him. Henry further stated that he pro-
ceeded around the desk in an attempt to search Miles,
and that Miles had said “Come on” while hawking some-
thing from his throat, leading Henry to push Miles
against the wall to stun him and to stop his actions. In
addition to conducting numerous interviews, Graham
viewed the video before preparing her report. The report
states that although Henry said during an interview that
Miles had balled up his fist as though he would attack
Henry, the video recording did not show Miles ball up his
fist at any time before Henry pushed Miles. The report
concluded that the video showed Henry push Miles at
the base of his neck and collarbone area, causing him to
fall against a wall, and that Miles had not leaned toward
Henry, rolled his shoulders upward, or balled his hands
before Henry contacted him. The report also finds that
after Miles was restrained, Henry rolled his sleeves,
flexed his bicep, and patted his bicep in a taunting manner
while staring at Miles.
At the end of the IAD investigation, Settinsgaard
concluded that Henry had violated a department rule
regarding the treatment of prisoners by initiating
physical contact with Miles by either pushing or strik-
ing him, and then by patting his bicep afterward. He
No. 06-3855 5
also viewed the patting of the bicep as improper taunt-
ing of a prisoner.
Henry was charged with violating a Milwaukee Police
Department rule that states:
Members of the police force are strictly forbidden
to argue with prisoners, to speak to them unneces-
sarily, to address them in obscene or profane
language, or to threaten them. Members of the
police force guilty of unnecessarily striking or
manhandling a prisoner or mistreating them in
any manner shall be subject to dismissal . . . .
Rule 4, Section 2/455.00. Officers Wilson and Young were
charged with witnessing Henry’s mistreatment of Miles
and failing to report it to a supervisor, a violation of
another department rule.
Ten days later, Jones terminated Henry’s employment
(subject to appeal). He reached this decision after review-
ing the videotape of Miles’s booking, reading the IAD
report, and receiving Settinsgaard’s interpretation of the
tape. In Jones’s opinion, Henry violated a department
rule by unnecessarily manhandling and mistreating
Miles, as well as by threatening him, and he concluded
that termination was appropriate. Wilson and Young
received thirty-day suspensions without pay for wit-
nessing Henry’s conduct and failing to report it.
The next month, the District Attorney announced he
would not issue criminal charges against Henry. A Mil-
waukee Police Department report states that a Deputy
District Attorney explained that his office had the video-
tape professionally blown up and digitized. After review-
ing the tape in slow motion, frame by frame, the Deputy
District Attorney concluded that Henry had not placed
his hands around Miles’s neck but instead had his
hands around Miles’s chin, directing Miles’s face away
6 No. 06-3855
from him. The report does not state whether the conduct
it describes refers to the initial shove or to Henry’s subse-
quent hold while he led Miles onto a desk. The report also
states that the Deputy District Attorney believed that
the video showed Miles take a defensive stance with his
right fist clenched when Henry walked around the table.
Henry appealed his termination to the Board of Fire and
Police Commissioners of the City of Milwaukee, and
several persons testified on his behalf. Wilson and Young
testified that before Henry initiated contact with Miles,
they believed Miles was about to spit on Henry and that
Miles did not turn to the wall as Henry had instructed.
Other witnesses, including the author of a training
manual for a Defense and Arrest Tactics course, testified
that they had watched the video and observed nothing
improper in Henry’s behavior. Lieutenant Jay Martyka, an
instructor at the Police Academy, testified that Henry’s
bicep flex could be a form of “verbal judo,” a communica-
tion tool taught at the Academy. The only evidence that
Jones presented in support of Henry’s termination was
the videotape.
The Board found that Jones had failed to present any
testimony and had failed to present other evidence suffi-
cient to sustain the chief ’s finding that Henry mistreated,
manhandled, or threatened Miles. The Board also con-
cluded that the chief had failed to present sufficient
evidence that a fair and reasonable effort had been
made to determine whether a rule had been violated.
Henry was subsequently reinstated. Soon thereafter, Jones
issued a press release stating that he had asked the
Federal Bureau of Investigation to investigate whether
Henry’s actions violated federal civil rights statutes. The
United States Department of Justice ultimately found no
evidence of a prosecutable civil rights violation. Henry
took disability leave soon after seeing the press release
announcing that the matter had been referred to the FBI.
No. 06-3855 7
His brief states that he remains on disability with Post-
Traumatic Stress Disorder.
II. ANALYSIS
We review the district court’s grant of summary judg-
ment de novo. Perez v. Illinois, 488 F.3d 773, 776 (7th Cir.
2007). Summary judgment is proper when “the pleadings,
depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). We draw all reasonable infer-
ences from the evidence in the light most favorable to the
non-moving party. Perez, 488 F.3d at 776.
Robert Henry contends that he was terminated from
his position as an officer with the Milwaukee Police
Department because he is white. Title VII prohibits
employers from discriminating against employees on the
basis of race, 42 U.S.C. § 2000e-2(a)(1), and it is well-
settled that the protections of Title VII “are not limited to
members of historically discriminated-against groups.”
Ballance v. City of Springfield, 424 F.3d 614, 617 (7th Cir.
2005). As in any Title VII case, Henry may proceed under
either the “direct” or “indirect” methods of proving dis-
crimination. See id.A. Indirect Method
We turn first to Henry’s argument that he presented a
prima facie case of discrimination under the indirect,
burden-shifting method initially set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). To establish
a prima facie case of racial discrimination in a reverse dis-
crimination suit such as this one, the plaintiff bears the
8 No. 06-3855
burden of establishing: (1) “ ‘background circumstances’
that demonstrate that a particular employer has ‘reason or
inclination to discriminate invidiously against whites’ or
evidence that ‘there is something “fishy” about the facts at
hand’ ”; (2) he was performing his job up to his employer’s
legitimate expectations; (3) he suffered an adverse employ-
ment action; and (4) he was treated less favorably than
similarly-situated individuals who are not members of the
protected class. Phelan v. City of Chicago, 347 F.3d 679,
684-85 (7th Cir. 2003) (quoting Mills v. Health Care
Service Corp., 171 F.3d 450, 457 (7th Cir. 1999)) (quoting
Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993)). Sum-
mary judgment in the defendant’s favor is proper if a
plaintiff fails to set forth a prima facie case. See Burks v.
Wisc. Dep’t of Transp., 464 F.3d 744, 751 (7th Cir. 2006).
If the plaintiff satisfies his initial burden, the burden
shifts to the defendant to present a legitimate, non-
discriminatory reason for the decision. Id. If the defendant
does so, the burden returns to the plaintiff to show that
the defendant’s explanation was pretextual. Id.The district court concluded that summary judgment
was proper because Henry had not demonstrated that
he was treated less favorably than similarly-situated
employees who are not white, and it is with that conclusion
that we begin. Concerned with overly rigid treatment of
the indirect method’s fourth prong, we have explained that
“similarly situated” means only that members of the
comparison group are comparable to the plaintiff “in all
material respects.” Crawford v. Indiana Harbor Belt R.R.
Co., 461 F.3d 844, 846 (7th Cir. 2006). That is, the inquiry
asks only whether “members of the comparison group are
sufficiently comparable to [the plaintiff] to suggest that
[the plaintiff] was singled out for worse treatment.” Id.The similarly situated inquiry is a flexible, common-sense
one that asks, at bottom, whether “there are enough
common factors . . . to allow for a meaningful comparison
No. 06-3855 9
in order to divine whether intentional discrimination was
at play.” Barricks v. Eli Lilly and Co., 481 F.3d 556, 560
(7th Cir. 2007).
We agree that Henry failed to introduce evidence that
he was treated less favorably than similarly-situated
officers who were not white. Although Henry points to
several African-American police officers whose discipline
fell short of termination, none are sufficiently comparable
to suggest that Henry was singled out for harsher treat-
ment. First, Henry turns our attention to Officers Wilson
and Young, the two African-American officers involved in
Miles’s arrest and booking. Miles stated during an IAD
investigation interview that on the night he was booked,
Young elbowed him in the nose and Wilson punched him
in the head. If substantiated, then the officers’ continued
employment might give rise to an inference that the
defendants treated Henry less favorably than comparable
non-white officers. But here, the decision not to dis-
cipline the two officers based on Miles’s story does not
suggest that Henry was terminated because he is white.
Wilson and Young both adamantly deny striking Miles,
and, significantly, there is no corroboration whatsoever
to support Miles’s story that Wilson and Young inappro-
priately struck him. No other person supported the
story, and there is no medical or other evidence consistent
with Miles’s account—Miles’s story stands alone.
Henry’s conduct, however, was captured on videotape
and shown on the evening news. The tape shows Henry
suddenly pushing Miles while Miles has his arms at his
sides and then shoving him against a wall and onto a
desk. Moreover, the video shown on the news, which had
been trained on Henry and Miles for several minutes
before Henry grabbed Miles, does not evidence any physi-
cal provocation on Miles’s part. Instead, Miles stood with
his arms at his sides, a few feet in front of Henry’s desk,
and, as the IAD report found, he did not make any move-
10 No. 06-3855
ment toward Henry before Henry pushed him. The pres-
ence of a tape suggesting that an officer used force
against an arrested person without provocation can
present a far different call for discipline than an unsup-
ported story of excessive force by two officers. Moreover,
Henry acknowledges that Jones was motivated by the
negative publicity surrounding the incident, and only
Henry’s actions were shown on television. As a result,
the defendants’ decision to suspend Officers Wilson and
Young for thirty days for failing to report Henry’s treat-
ment of Miles does not give rise to an inference of racial
discrimination.
Henry also points to Officer Allen Perry, another
African-American officer. Officer Perry drew a “smiley
face” on a prisoner in a hospital and received a one-day
suspension. Drawing on a prisoner, although a form of
misconduct under the police department’s rules, is simply
not comparable to the sudden force Henry used on Miles.
Next, Henry cites Officer Michael Rousseau, who re-
ceived a one-day suspension for failing to report his use
of force. Notably, although the IAD investigated both
Rousseau and Henry for using excessive force against a
prisoner, the IAD concluded that Rousseau’s use of force
was appropriate, and Jones was justified in treating
Rousseau and Henry differently based on the different
conclusions reached after the IAD investigations. Finally,
Henry points to Officer Willie Murphy. After Murphy
was struck by a car and dragged down the street, he
discharged a firearm at the vehicle after it was moving
away and received a ten-day suspension (reduced to five
days on appeal). Although discharging the firearm also
apparently violated a departmental rule, physical force
had been used against Officer Murphy before he acted.
Before Henry struck Miles, in contrast, no force had
been used against him, nor had any movement been
made toward him. In sum, none of the officers to whom
No. 06-3855 11
Henry points mistreated arrestees under circumstances
comparable to those here.
For similar reasons, our recent decision in Pantoja v.
American NTN Bearing Manufacturing Corp., 495 F.3d
840 (7th Cir. 2007), would not help Henry. There, we
stated that in a termination case, “Once an employee can
show (in the sense of raising an issue of material fact
at the summary judgment stage) that he is meeting his
employer’s legitimate expectations (the second element),
then the fact that the employer needs to find another
person to perform that job after the employee is gone
raises the same inference of discrimination that the
continuation of a search does in the hiring situation.” Id.
at 846. In Pantoja, rather than contending that he was
meeting his employer’s legitimate expectations, the
plaintiff maintained that he was subject to particularly
strict employment standards because of his race. Id. at
847. We concluded that the plaintiff had not offered any
evidence that the employer’s expectations were tailored
to race, as the plaintiff ’s misconduct was more egregious
than that of the employees to whom he pointed. Id.Similarly here, Henry has not put forth evidence suf-
ficient to support a finding that his employer tailored its
expectations to race. His conduct was more egregious
than that of the non-white officers he highlights. We
agree with the district court that Henry did not demon-
strate a prima facie case of discrimination on the basis
of race under the indirect method, and, therefore, that
he cannot avoid summary judgment on that basis.
B. Direct Method
Alternatively, a Title VII plaintiff can survive sum-
mary judgment by proceeding under the direct method
of proving racial discrimination. See Luks v. Baxter
Healthcare Corp., 467 F.3d 1049, 1052 (7th Cir. 2006). To
12 No. 06-3855
avoid summary judgment under the direct method, Henry
must introduce evidence showing that the decision to
terminate him was motivated by animus based upon his
race. See Sun v. Bd. of Trustees of Univ. of Ill., 473 F.3d
799, 812 (7th Cir. 2007). Although labeled the “direct”
method of proof, this method “is not limited to near-
admissions by the employer that its decisions were based
on a proscribed criterion (e.g., ‘You’re too old to work
here.’), but also includes circumstantial evidence which
suggests discrimination albeit through a longer chain of
inferences.” Luks, 467 F.3d at 1052. A plaintiff may
use direct evidence, circumstantial evidence, or a com-
bination of the two when proceeding under the direct
method. Lewis v. City of Chicago, 496 F.3d 645, 651 (7th
Cir. 2007). Circumstantial evidence of intentional dis-
crimination can include: “(1) suspicious timing, ambiguous
oral or written statements, or behavior toward or com-
ments directed at other employees in the protected group;
(2) evidence, whether or not rigorously statistical, that
similarly situated employees outside the protected class
received systematically better treatment; and (3) evidence
that the employee was qualified for the job in question
but was passed over in favor of a person outside the
protected class and the employer’s reason is a pretext
for discrimination.” Hemsworth v. Quotesmith.Com, Inc.,
476 F.3d 487, 491 (7th Cir. 2007) (citations omitted).
Henry agrees that this case does not involve an admis-
sion by his employer that he was terminated on account of
his race. Instead, he points to several circumstances which,
he maintains, suggest that he was terminated because he
is white. We disagree. Even when viewing together all the
circumstances to which Henry points, he has failed to
produce sufficient evidence that Jones decided to terminate
his employment because of his race.
We begin with Henry’s contention that the publicity
surrounding Miles’s booking suggests that Henry was
No. 06-3855 13
improperly terminated. He emphasizes, for one, that
the defendants initiated the Internal Affairs Division
investigation into the conduct that ultimately led to
Henry’s dismissal only after a local television station
aired a videotape of the booking on its newscast. More-
over, he points out, Jones attended a community meeting
where citizens expressed concern about the treatment
Miles had received while in custody, and a newspaper
published a letter from the Wisconsin Legislative Black
and Hispanic Caucus stating that the Caucus would be
carefully observing the police department’s response to
the issue. Henry suggests that Jones was contemplating
a run for mayor and that political aspirations motivated
him to terminate Henry after the booking was publicized.
Jones may or may not have been motivated by political
dreams or by the publicity that surrounded the booking.
But whether those were his motivations does not matter.
At issue here is whether Henry has presented sufficient
evidence that race motivated the decision to terminate
him, not whether political goodwill or fear of bad publicity
was the impetus for Jones’s decision. Politicians rou-
tinely respond to bad press they receive on television,
but it is not a violation of Title VII to take advantage of
a situation to gain political favor. As to Jones’s presence
at the community meeting, we note also that even Henry
acknowledges that during the ninety minutes that Jones
fielded questions and complaints from the audience,
Jones declined to comment on the videotape until an
internal investigation had been completed and promised
“everyone in the room the officer will have a fair investiga-
tion.” Declining to comment does not suggest racial
animus.
The decision to order an IAD investigation after seeing
the videotape of the booking also does not suggest that
race motivated the decision to terminate Henry. Henry
argues on the one hand that the decision to dismiss him
14 No. 06-3855
was a “rush to judgment” and on the other that he should
have been terminated sooner if his actions were egregious.
We would be hard-pressed to say that the police chief ’s
decision to wait for the results of the investigation before
terminating Henry suggests a racial motivation for his
firing. And even though other officers interviewed during
the investigation supported Henry’s account, the IAD
report concluded that the videotape showed Henry initiat-
ing contact without provocation and that Henry had
taunted Miles by patting his bicep after Miles was
handcuffed. We do not find anything suspicious in the
decision to impose discipline only after the investiga-
tion was complete.
Significant distinctions exist between a District Attor-
ney’s investigation into whether a person has committed a
crime and the IAD’s investigation of whether an
officer violates a department rule, and we are not per-
suaded that Jones’s refusal to rescind the discipline after
the District Attorney’s office declined to press charges
suggests that Henry’s race motivated the chief ’s decision.
Henry also points to Jones’s public announcement that
he was referring the case to the Federal Bureau of In-
vestigation even though the Board of Fire and Police
Commissioners had determined that Henry acted appropri-
ately. That a press release was issued announcing the
referral could suggest that Henry is correct when he
maintains that publicity surrounding the incident moti-
vated the chief. But if so, that is not enough to establish a
Title VII violation. Or, looking to the IAD report (which
was apparently not before the Board) and videotape, Jones
might have believed that Henry had acted improperly
and that the FBI would interpret Henry’s actions differ-
ently than the Board and District Attorney’s office had. In
short, there are many possibilities for Jones’s announce-
ment, but none in this record suggests that race motivated
the referral.
No. 06-3855 15
Henry also points to a jury’s conclusion during an earlier
suit that the City of Milwaukee and Jones discriminated
against seventeen white male police lieutenants on the
basis of race or gender when they did not receive promo-
tions to captain. Alexander v. City of Milwaukee, No. 03-C-
611 (E.D. Wis. Mar. 29, 2005), aff ’d, 474 F.3d 437 (7th Cir.
2007). That lawsuit, which involved decisions about
qualifications and the extent to which an employer
should promote gender and racial diversity in its leader-
ship, concerned different questions than the one here—
whether the defendants disciplined a white officer more
harshly than they would a minority officer for the use of
force against an arrested person. More importantly, the
result of that suit is not enough to suggest that the
termination decision here was made on the basis of race,
especially when the defendants acknowledge that the
negative publicity surrounding the airing of the tape led
to the termination decision.
The other circumstances to which Henry points do not
warrant significant comment. He contends that Jones’s
failure to appear at Henry’s appeal hearing constitutes
evidence of intentional discrimination, but we do not see
the connection. He also argues that Jones was somehow
unqualified to conclude whether Henry had violated the
department’s rule regarding mistreatment of prisoners
because the chief was not a certified “defense and arrest
tactics instructor.” First, Jones had the benefit of thorough
investigation and analysis from an officer who had been
trained in the use of force, Sergeant Graham, the author
of the IAD report. Second, as police chief, Jones was
responsible for the conduct of his officers, see Wis. Stat.
§ 62.50(23), and it strains credulity to contend that he
could not make disciplinary decisions based on a sub-
ordinate officer’s actions.
The essence of Henry’s argument is that the police
chief made a mistake when he ordered Henry terminated,
16 No. 06-3855
and so a Title VII violation must have occurred. But there
are many “mistaken” personnel decisions that do not
violate federal law. See, e.g., Guerrero v. Ashcroft, 253 F.3d
309, 314 (7th Cir. 2001). The decision in this case, whether
correct or not, does not raise a triable question as to
whether it was made on account of Henry’s race.
III. CONCLUSION
For the foregoing reasons, the district court’s grant of
summary judgment in favor of the defendants is AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-1-07