Lisa Purtue v. Wisconsin Department of Correc

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2706
LISA PURTUE,
Plaintiff-Appellant,
v.
WISCONSIN DEPARTMENT OF CORRECTIONS, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 18-cv-204 — James D. Peterson, Chief Judge.
____________________
ARGUED APRIL 15, 2020 — DECIDED JUNE 26, 2020
____________________
Before MANION, HAMILTON, and BARRETT, Circuit Judges.
BARRETT, Circuit Judge. Lisa Purtue was fired from her job
as a Wisconsin correctional officer for falsely claiming that a
prisoner hit her with an empty snack cake box that he threw
from his cell. Video footage revealed that the box did not in
fact hit Purtue, and, after a review process, the warden dis-
missed her for making a false report in violation of Wisconsin
Department of Corrections policies. Purtue then filed suit, al-
leging that she had been fired because of her sex. But because
2 No. 19-2706
she failed to identify evidence from which a reasonable jury
could draw that inference, we affirm the district court’s entry
of summary judgment against her.
I.
Lisa Purtue was a correctional officer at Dodge Correc-
tional Institution, a state prison that serves as an intake insti-
tution for inmates who are then transferred to longer-term fa-
cilities of varying security levels. The Department of Correc-
tions hired Purtue in 2013, and she worked at Dodge for about
three years before the 2016 incident that led to her dismissal.
In April 2016, Purtue filed an incident report alleging that
an inmate, Joseph Reddick, had thrown an empty box of Little
Debbie snack cakes from his cell, hitting her in the midsection.
According to Purtue, she had opened the “trap”—a slot
through which food is passed—and offered Reddick his med-
ication. Reddick then threw the box out of the trap and hit her,
after which Purtue closed the trap and told Reddick that she
understood the box-throwing to be a refusal. As a result of
Purtue’s report, Reddick was hauled off to segregated deten-
tion, hurling insults at Purtue as he was taken from the cell
block. Per Department guidelines, the prison referred the in-
cident to the Dodge County Sheriff for criminal investigation
and initiated internal disciplinary proceedings against Red-
dick.
At Reddick’s prison disciplinary hearing, he asked the
hearing officer to play a video recording of the incident that
had been captured by a security camera located across from
his cell. The video showed the empty box flying out of Red-
dick’s cell, but it also showed that the box didn’t fly in Pur-
tue’s direction, much less strike her. In light of this evidence,
No. 19-2706 3
the investigators found Reddick not guilty of assault or diso-
beying orders, although he was found guilty of disrespect and
disruptive conduct.
Because of the discrepancy between the video and Pur-
tue’s report, Dodge’s deputy warden opened an investigation
into Purtue. The Department of Correction’s Work Rule 6 pro-
hibits correctional officers from falsifying records or know-
ingly giving false information to prison authorities; violation
of this rule can result in discipline, including termination. To
determine whether Purtue violated Work Rule 6, two investi-
gators interviewed Reddick and Purtue separately. Reddick
stated that he and Purtue had quarreled earlier on the day of
the incident and that he threw the box out of frustration but
purposefully directed it away from Purtue. In her interview,
Purtue reiterated that the box had hit her when she turned
away from the trap and confirmed Reddick’s account of the
earlier disagreement between the two.
Investigators then informed Purtue that her description
was inconsistent with the video. After watching the footage,
Purtue agreed that the box had not hit her—yet she main-
tained that something else must have hit her instead. The in-
vestigators doubted that story because on the video Purtue
did not flinch or otherwise react as if something had struck
her. They referred her case to the warden at Dodge, sending
him the investigation report, the video, and other materials.
The warden decided to skip progressive discipline and
immediately terminate Purtue’s employment. In doing so, he
relied on Work Rule 6 and the Department’s Executive Di-
rective #2, which classifies “[l]ying or providing false infor-
mation” as one of the listed “Serious Acts of Misconduct” that
may result in termination. The warden met with the deputy
4 No. 19-2706
warden, Dodge’s director of human resources, and a repre-
sentative from the Department’s employment relations office,
all of whom agreed with the warden’s recommendation to
skip progressive discipline.
If a supervisor skips progressive discipline, Department
policy requires the employment relations office to prepare a
summary memorandum and to identify disciplinary compar-
ators showing that the infraction warrants termination. The
memorandum identified three comparators for Purtue—one
man and two women—all of whom were fired for lying or
falsifying records. Two division administrators approved the
report, which then went to a “management advisory team”
consisting of an employment relations representative, a rep-
resentative from the Office of Diversity Equality Services, the
Department’s director of personnel and human resources,
and two representatives from the Office of Legal Counsel. All
reviewers agreed that termination was appropriate. After se-
curing final approval from the Department’s deputy secre-
tary, Dodge’s warden fired Purtue for falsifying a report.
Purtue filed this action, asserting claims for sex discrimi-
nation under Title VII and 42 U.S.C. § 1983. To defeat the de-
fendants’ motion for summary judgment, she assembled an
array of circumstantial evidence: She contended that the de-
fendants mischaracterized her statements, uncritically
adopted Reddick’s version of events, and exaggerated the po-
tential consequences that Reddick faced as a result of her mis-
statements. She presented expert testimony from former Wis-
consin Department of Corrections Secretary Ed Wall, who
opined that Purtue’s conduct did not warrant terminating her
employment. And she highlighted a report by a University of
Wisconsin professor showing that Dodge’s termination
No. 19-2706 5
patterns tracked those of the Department as a whole, which
had fired six percent of its female employees versus three per-
cent of its male employees in the five years before Purtue’s
dismissal.
The district court granted summary judgment to the de-
fendants. It determined that the investigation accurately sum-
marized Purtue’s conduct, that Reddick’s version of events
was consistent with the video, and that the defendants cor-
rectly represented the potential negative consequences to
Reddick. It concluded that Wall’s testimony was speculative
and offered nothing more than his opinion that termination
was unwise but not necessarily pretextual. Though the dis-
trict court found the gender disparities in the statistical report
concerning, it concluded that this evidence revealed little
about the defendants’ decision to dismiss Purtue in particular.
After reviewing this evidence, the district court decided that
no reasonable jury could find that Purtue’s dismissal was
based on sex discrimination rather than her violation of Work
Rule 6.
II.
We review the viability of Purtue’s claims de novo, con-
struing facts in her favor as the nonmovant, and “we affirm
the district court only when no reasonable jury could have
found for the plaintiffs.” Johnson v. Advocate Health & Hosps.
Corp., 892 F.3d 887, 893–94 (7th Cir. 2018). We evaluate Pur-
tue’s § 1983 claims under the same standards as her Title VII
claims, so they stand or fall together. De Lima Silva v. Dep't of
Corr., 917 F.3d 546, 559 (7th Cir. 2019).
Purtue emphasizes that she is not relying on the burden-
shifting framework set out in McDonnell Douglas Corp. v.
6 No. 19-2706
Green, 411 U.S. 792 (1973), and she is right that she doesn’t
have to. The familiar McDonnell Douglas approach requires a
plaintiff to make a prima facie case of discrimination, at which
point the burden shifts to the employer to offer a nondiscrim-
inatory motive, and, if the employer does so, the burden shifts
back to the plaintiff to show that the employer’s stated reason
was a pretext. Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 719 (7th
Cir. 2018). But this framework is just one way that a plaintiff
can navigate her way to a jury in a discrimination case. When
a defendant moves for summary judgment, the “singular
question” for the district court is whether the plaintiff has in-
troduced evidence that would “permit a reasonable factfinder
to conclude that the plaintiff’s race, ethnicity, sex, religion, or
other proscribed factor caused the discharge or other adverse
employment action.” Johnson, 892 F.3d at 894 (citation omit-
ted). The plaintiff need not rely on the McDonnell Douglas
method to carry that burden; she may well have other “direct
or circumstantial evidence that supports an inference of inten-
tional discrimination.” Joll v. Valparaiso Cmty. Sch., 953 F.3d
923, 929 (7th Cir. 2020) (citation omitted). For example, plain-
tiffs commonly point to “ambiguous or suggestive comments
or conduct; better treatment of people similarly situated but
for the protected characteristic; and dishonest employer justi-
fications for disparate treatment.” Id.Purtue relies on evidence like this and insists that she has
enough to get to a jury. The district court concluded other-
wise, she says, because it made the mistake of analyzing each
piece of evidence in isolation rather than considering her case
as a whole. See Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765
(7th Cir. 2016) (“Evidence must be considered as a whole, ra-
ther than asking whether any particular piece of evidence
proves the case by itself ….”). But the district court did not
No. 19-2706 7
make that mistake. On the contrary, it surveyed the whole
picture and correctly concluded that no reasonable jury could
find in Purtue’s favor.
We’ll start with the incident itself: Purtue contends that
the prison’s justification for her firing was dishonest. In her
telling, the defendants overstated the potential consequences
to Reddick from her false report, given that he was likely to
be found guilty of a disciplinary violation (albeit a different
one) anyway. But Purtue misunderstands the defendants’ po-
sition. They don’t claim to have relied on the punishment
Reddick faced at Dodge. Rather, they note that the assault al-
legation posed especially significant potential consequences
to Reddick, including possible criminal prosecution. Most im-
portantly, they highlight that, because Dodge is an intake in-
stitution, Reddick’s assault of a corrections officer might have
led to his assignment to a maximum-security facility. That’s a
serious consequence, and one more likely to result from an
allegation of assault than from an allegation of disruptive be-
havior. Purtue counters that her report might not have caused
Reddick to be sent to such a facility because the higher-ups at
Dodge—whom she accuses of being dishonest—would have
concluded that the severity of her reported assault did not re-
quire such an outcome. Maybe so. But the possibility that
Reddick might have escaped the worst outcome does not
mean that the defendants lied about the precariousness of the
position in which Purtue put him.
In any event, Purtue’s culpability, not Reddick’s fate, was
the stated reason for her dismissal. And Purtue does not deny
that she was culpable for this offense. On the contrary, it’s un-
disputed that she made a false report, that making a false re-
port was an offense for which she could be dismissed under
8 No. 19-2706
the Department’s rules, and that false reports are considered
serious because of the potential negative effect on prisoners
writ large rather than the consequences in a particular case.
Significantly, Purtue does not dispute that a false report could
result in a prisoner being sent to a maximum-security facility
and that Dodge has an interest in deterring false reports for
that reason. So despite Purtue’s efforts to show otherwise, this
is not a situation in which the punishment was grossly out of
proportion to the offense. Cf. Stalter v. Wal-Mart Stores, Inc.,
195 F.3d 285, 290 (7th Cir. 1999) (questioning the sincerity of
an employer’s stated reason when “the punishment of termi-
nation was grossly excessive in light of the alleged infraction
of eating a handful of taco chips”).
Wall’s expert testimony does not undercut this conclusion.
Purtue emphasizes his observation that the Department in-
consistently made termination decisions, as well as his con-
clusion that Purtue could not have expected to be fired for her
conduct. But even if Wall is right about that, he didn’t dispute
that filing a false report violated Department rules or that the
Department could legitimately consider such a violation to be
serious. Though he might have exercised his discretion differ-
ently when he was Secretary, his testimony doesn’t support
an inference that the Department acted so far outside the
bounds of normal procedures that its justification for dismiss-
ing Purtue was pretextual.
The report showing disparate dismissal rates of female
and male employees does not save Purtue’s case either. To
raise an inference of discrimination, statistical comparators
“must be ‘directly comparable’ to the plaintiff ‘in all material
respects,’” though “they need not be identical in every con-
ceivable way.” Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir.
No. 19-2706 9
2012) (citation omitted). The statistics on which Purtue relies
are unhelpful because they do not reveal why any employee
in the study was fired—which makes it impossible to deter-
mine how many of the fired employees were comparable to
Purtue in the respect that matters most. To address this weak-
ness, Purtue identifies particular employees who made false
statements but were not fired. Yet she runs into the same
problem: she fails to show that the supposed comparators are
actually comparable. All but one of the employees that she
identifies worked at facilities other than Dodge, so the disci-
plinary determination fell mostly to different decisionmakers.
And while the lone comparator who worked at Dodge was
disciplined but not fired for making a “false, inaccurate state-
ment,” Purtue concedes that she has no information that
would permit her to compare the seriousness of his offense to
hers.
In sum, Purtue has not identified evidence tending to in-
dicate that Dodge did anything other than fire her for her ad-
mitted violation of Department rules. No reasonable jury
could infer that Dodge discriminated against her because of
her sex, so the district court was right to enter summary judg-
ment in favor of the defendants. We AFFIRM its judgment.