Julio de Lima Silva v. State of Wisconsin, Department

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 18-2561 JULIO DE LIMA SILVA, Plaintiff-Appellant, v. STATE OF WISCONSIN, DEPARTMENT OF CORRECTIONS, et al., Defendants-Appellees. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 17-cv-00128 — William M. Conley, Judge. ____________________ ARGUED FEBRUARY 8, 2019 — DECIDED FEBRUARY 22, 2019 ____________________ Before FLAUM, BARRETT, and SCUDDER, Circuit Judges. FLAUM, Circuit Judge. Plaintiff-appellant Julio de Lima Silva, a Brazilian citizen who self-identifies as Latino, worked as a correctional sergeant for the State of Wisconsin, Depart- ment of Corrections (“DOC”). His use of force on an inmate triggered an internal review process and ultimately led to his discharge. The individual defendants—Quala Champagne, the Warden of Wisconsin Correctional Center System 2 No. 18-2561 (“WCCS”), Andrea Bambrough, the Human Resources Direc- tor of WCCS, and David Hicks, a Corrections Unit Supervisor at Columbia Correctional Institution—played various roles in that review process. To challenge his discharge, plaintiff filed this lawsuit, bringing discrimination claims against the DOC under Title VII, 42 U.S.C. § 2000e–2(a)(1), (Count I); against the individual defendants and the DOC under 42 U.S.C. § 1983, alleging a violation of the Equal Protection Clause (Counts II and III, respectively); and against all defendants under 42 U.S.C. § 1981 (Count IV). The district court granted defendants summary judgment on all counts. For the follow- ing reasons, we affirm in part and reverse and remand in part. We reverse the district court’s award of summary judgment to the DOC on plaintiff’s Title VII claim and to Champagne on plaintiff’s equal protection claim brought pursuant to § 1983, and we otherwise affirm the district court’s judgment. I. Background A. Factual Background Plaintiﬀ’s career with the DOC began in the summer of 2012. In his application to the DOC, he identiﬁed his race and ethnicity as Latino. He also indicated that he was from Brazil. On July 1, 2013, he became a correctional sergeant in the Chal- lenge Incarceration Program (“CIP”) at the St. Croix Correc- tional Center (“St. Croix”). Of the approximately thirty em- ployees that comprised the security staﬀ at St. Croix in 2014, plaintiﬀ was the only nonwhite employee. The CIP is an alcohol and drug abuse program that eligible inmates can complete in hopes of receiving early release from their sentences. It is a military-style “boot camp” with strict No. 18-2561 3 rules that are unique to the program. Inmates agree to be sub- ject to these special rules when they enroll in the CIP. 1. Plaintiﬀ’s Use of Force On June 23, 2014, plaintiﬀ worked the night shift with Ser- geant Paul Fulton. While making rounds, Fulton twice ob- served inmate Fernando Haro covering his head in violation of the CIP’s rules. Fulton woke Haro up on both occasions to instruct him to keep his head uncovered. After the second in- struction, Haro used profanities and told Fulton that he was done with the program and wanted to leave, which violated another rule. Plaintiﬀ overheard arguing voices and went to assist Fulton. Plaintiﬀ told Haro to calm down and to follow orders. Eventually, Haro complied. Plaintiﬀ and Fulton then returned to the lower control room where they discussed the situation. At that time, Fulton told plaintiﬀ what had hap- pened with Haro before plaintiﬀ arrived on the scene. Meanwhile, the disturbance between Haro and Fulton had awakened the other inmates, and several of those inmates now needed to use the restroom. In the CIP, inmates may only use the restroom if they request and obtain permission from the oﬃcers. To do so, they must stand in the “position of at- tention” and wait for a correctional sergeant to grant them permission. An inmate is in the “position of attention” when his arms are down at his sides and his feet are in the shape of a “V” with his heels touching. Fulton was in the process of granting individual inmates permission to use the restroom when Haro got up from his bed and, without standing at attention or seeking permission, grabbed his toiletries, and walked toward the restroom. Nei- ther Fulton nor plaintiﬀ granted Haro permission to do so. 4 No. 18-2561 Fulton and plaintiﬀ discussed how Haro’s refusal to follow the CIP’s rules could cause an altercation among inmates given that Haro had cut in line to use the restroom. They de- cided that plaintiﬀ would talk to Haro. As plaintiﬀ approached Haro from behind, he directed Haro to go back to his bunk in a loud voice. 1 When Haro did not comply, plaintiﬀ gave the directive two more times, esca- lating the volume of his voice each time. Plaintiﬀ moved into a position of control behind Haro and observed that Haro was not in the position of attention. Plaintiﬀ told Haro that he had already ordered him to return to his bunk three times and Haro was not in a position of attention. Plaintiﬀ observed Haro look over his shoulder at him and state, “go fuck your- self, you son of a bitch.” Plaintiﬀ perceived this over-the- shoulder glance from Haro as a “target glance,” which is when a subject looks to see where the target is and to assess the target. There is a dispute over what happened after Haro glanced at plaintiﬀ. 2 Plaintiﬀ remembers that Haro clenched his ﬁsts and raised his arms into a ﬁghter stance. Because of this per- ception, plaintiﬀ approached Haro from the back-left side and applied a wrist lock to Haro. When plaintiﬀ felt Haro resist the hold, he decentralized Haro, while telling Haro to “stop resisting.” 3 Plaintiﬀ says he decentralized Haro because he 1 A security camera captured plaintiff’s use of force, but the video does not have audio of the incident. 2 Several DOC employees reviewed the video and developed different opinions about what they saw happen. 3An officer “decentralizes” an inmate when he physically directs an inmate to the floor. No. 18-2561 5 thought that a potential attack was imminent. Plaintiﬀ also says he attempted to control the speed of Haro’s descent by using a circular motion. It is undisputed that Haro was not injured during the decentralizing process. While Haro was on the ground, plaintiﬀ positioned him- self at Haro’s side, with his knee on the ground. Both of plain- tiﬀ’s hands cupped Haro’s arm in a compliance hold. Plaintiﬀ asked Haro if he was okay, to which Haro replied yes, and plaintiﬀ oﬀered Haro medical assistance. Still on the ground, Haro engaged in “passive resistance” 4 by commenting to plaintiﬀ that “this is all bullshit,” calling plaintiﬀ ma’am, and using profanities. As a result, plaintiﬀ kept Haro on the ground to calm him down. Fulton, who had arrived on the scene, did not feel that plaintiﬀ had Haro on the ground too long. Once Haro calmed down (and over two minutes had passed), plaintiﬀ advised Haro that he would assist Haro to his feet, they would go to the lower barracks group room, and Haro would wait there until Captain Scott Grady arrived to talk to him about what had happened. Plaintiﬀ then escorted Haro to the lower barracks group room. Plaintiﬀ did not place handcuﬀs on Haro because he felt he had total control of him. 5 Plaintiﬀ did not advise Haro that he could ﬁle a grievance— plaintiﬀ says he was not trained to give such advice after a use 4 Division of Adult Institution (“DAI”) Policy #306.07.01 defines “pas- sive resistance” as “[r]esistance from a subject which does not physically counteract staff’s attempt at control and which does not create a risk of bodily harm to the staff or to another.” 5 Both Captain Grady and Superintendent JoAnn Skalski confirmed that there was no requirement at St. Croix in June of 2014 that correctional officers had to use handcuffs after decentralizing an inmate. 6 No. 18-2561 of force. It was his understanding that the supervisor would provide this information to the inmate. When Grady reported for work at approximately 5:00 AM on June 23, 2014, plaintiﬀ told Grady what had occurred. Grady instructed plaintiﬀ to write an incident report. Plaintiﬀ had already started working on the incident report before Grady reported for work and he completed it at around 5:30 AM. Grady read plaintiﬀ’s incident report and thought there were discrepancies between what plaintiﬀ had told him and what plaintiﬀ had written in the report. This prompted Grady to email Superintendent JoAnn Skalski about the incident. Skalski, in turn, directed Grady to look at the video of the in- cident. After reviewing the video, Grady became concerned with the way plaintiﬀ approached and handled Haro. One month later, Skalski contacted Human Resources to report the incident. Soon thereafter, Warden Quala Cham- pagne watched the video of the incident and had similar con- cerns. Defendants put plaintiﬀ on administrative suspension on July 25, 2014—more than one month after the incident oc- curred. 2. Plaintiﬀ’s Personnel Investigation Champagne ordered a personnel investigation of plain- tiﬀ’s use of force—it was her practice to do so whenever she received a report that a DOC employee violated a work rule. During a personnel investigation, investigators review mate- rials, conduct interviews, and draft a report of their ﬁndings. In practice, a personnel investigation results in a packet of eight documents and a recommendation about whether the No. 18-2561 7 facts support any work-rule violations. At the end, if the ap- pointing authority (here, Champagne) believes there is prob- able cause to discipline an employee, the personnel investiga- tion packet is transferred to the Employment Relations Spe- cialists for review. Champagne assigned Maria Silao-Johnson and Jeﬀ Jaeger, superintendents at other correctional facilities, to conduct plaintiﬀ’s personnel investigation. After reviewing video of the incident, neither Silao-Johnson nor Jaeger saw Haro as- sume a ﬁghter stance. Plaintiﬀ says Jaeger laughed at his ac- cent and called him a “liar” during their interview on August 20, 2014. Jaeger thought plaintiﬀ was being untruthful when plaintiﬀ wrote in his incident report: “Due to poor illumina- tion, his clenched ﬁst. I originally just secured his left arm. I had him by his wrist but he was struggling with me and then I decentralized him.” Once they completed the investigation, Silao-Johnson and Jaeger drafted a “Summary of Investigation.” This report con- cluded that plaintiﬀ potentially violated Work Rule #2 for us- ing excessive force, Work Rule #6 for providing false infor- mation during the investigation, and Work Rule #11 for threatening or attempting to inﬂict bodily harm on an inmate without provocation or reasonable justiﬁcation. It also deter- mined that plaintiﬀ may have violated executive and admin- istrative directives regarding the proper use of force. In turn, David Hicks, as the Employment Relations Spe- cialist on the case, reviewed the personnel investigation packet and determined the investigation was thorough, unbi- ased, and complete. He presented his ﬁndings to the Infrac- tion Review Team (“IRT”) and recommended that the case proceed to a predisciplinary meeting. The purpose of the IRT 8 No. 18-2561 is to ensure that the DOC consistently administers discipline. It reviews the personnel investigation interview and other rel- evant evidence in order to decide if work rules were in fact violated and whether a predisciplinary meeting should fol- low. If the IRT decides work rules were violated, the matter proceeds to the Disciplinary Action Review Team (“DART”). In plaintiﬀ’s case, Champagne, Bambrough, and a security director were on the IRT. They decided that plaintiﬀ used ex- cessive force when other options were available to him. As a result, Hicks searched Human Resources’s disciplinary data- base in order to prepare a list of other employees who have incurred discipline for similar misconduct. The DART uses that list, which includes information about the individual em- ployee’s rule violation, discipline received, rank, and employ- ing institution, as a general guide while it evaluates the rele- vant employee’s rule violation(s). At the end of its review pro- cess, the DART determines if discipline is going to be imposed and, if so, at what level. Ultimately, the appointing authority decides what level of discipline to impose. At plaintiﬀ’s DART meeting, which involved the same IRT members, Hicks gave examples where correctional oﬃcers had engaged in excessive use of force and had not been termi- nated. There was only one incident after 2010 where excessive use of force resulted in the oﬃcer’s termination. 6 According to Hicks, the DART had a long discussion about these other discipline cases and members of the DART indicated that maybe the other cases should have resulted in termination. 6Hicks only considered incidents after 2010 because the work rules changed in 2010. No. 18-2561 9 Finally, plaintiﬀ’s case was sent to a Management Advi- sory Team (“MAT”) to review whether the appointing author- ity could impose a discipline above the policy recommenda- tion. Under DOC policy, discipline should be assigned ac- cording to the progression schedule outlined in Executive Di- rective #2. For example, a ﬁrst violation results in a written reprimand and a second violation results in a one-day sus- pension without pay. Based on this schedule, it ordinarily takes six violations before an employee’s punishment would warrant discharge. And according to state human resources rules eﬀective in 2014, discipline involving a ﬁve-day suspen- sion or greater, or any skips in the progression, would un- dergo an additional review by a MAT. To prepare the MAT to review plaintiﬀ’s case, Hicks drafted a summary document showing plaintiﬀ’s seniority date, classiﬁcation, where he worked, any prior discipline, any performance evaluations, what the appointing authority was requesting, why it was requested, and whether or not plaintiﬀ had acted like that in the past. As discussed below, plaintiﬀ ultimately received discipline that required a signiﬁ- cant skip in the progression. 3. Plaintiﬀ’s Use of Force Review Separate from the personnel investigation, Champagne also requested an independent “Use of Force Review,” wherein experts determine if the use of force was appropriate and proper. The experts review incident reports written about 10 No. 18-2561 the incident, view videos or photos related to the incident, and conduct interviews. Experts Jason Achterberg, the Security Director at Stanley Correctional Institution, and Hans Kuster, a Captain at Osh- kosh Correctional Institution, reviewed plaintiﬀ’s use of force. Their review consisted of conducting a site visit to learn more about the CIP, watching the video of the incident, and inter- viewing plaintiﬀ and Fulton. In his interview with these ex- perts, plaintiﬀ explained that he saw Haro give him a target glance and that he felt Haro was going to hit him. Achterberg and Kuster, however, felt plaintiﬀ had the opportunity to dis- engage; they did not feel that Haro was an immediate threat. Accordingly, they concluded that plaintiﬀ used unreasonable force to control Haro and they submitted a report to that eﬀect to Champagne. 4. Plaintiﬀ’s Discharge Champagne sent plaintiﬀ a letter dated December 22, 2014, informing him that he was discharged from his employ- ment at the DOC. She explained that the basis for the dis- charge was his violation of three DOC Work Rules: Work Rule #2: Failure to comply with written policies and procedures including but not lim- ited to Executive Directives and Administrative Directives; and Work Rule #6: Falsiﬁcation of records, know- ingly giving false information or knowingly permitting, encouraging or directing others to do so. Failing to provide truthful, accurate and complete information when required; and No. 18-2561 11 Work Rule #11: Threatening, attempting or in- ﬂicting bodily harm on another employee, in- mate, juvenile, oﬀender or the public. The letter further explained that the decision to charge him with these rule violations stemmed from information learned through the personnel investigation. In relevant part, the let- ter described the decentralization and concluded that this was a use of “excessive force” in violation of DAI Policy #306.07.01: Use of Force 7 and DAI Policy #306.07.02: Princi- ples of Subject Control. 8 The letter also stated that the incident report plaintiﬀ ﬁlled out “did not provide accurate infor- mation of the events leading up to [his] use of force” because the video evidence showed the inmate in the position of at- tention and did not support plaintiﬀ’s claim that the inmate assumed a “ﬁght position.” Finally, the letter concluded: “Alt- hough you have not had any disciplinary action within the last 12 months, based on the seriousness of your violations, I have just cause to escalate progressive discipline to termina- tion.” 7 This policy describes the use of force generally; it defines “[n]on- deadly force” as that “[f]orce which the user reasonably believes will not create a substantial risk of causing death or great bodily injury to another.” And it permits correctional staff to use nondeadly force “if the user of force reasonably believes it is immediately necessary to realize one of” several defined purposes. The defined purposes include, among others: to pre- vent death or bodily injury to oneself or another; to prevent unlawful damage to property; to control a disruptive inmate; and to enforce a DOC rule, a posted policy or procedure, or an order of staff member. 8 The “Principles of Subject Control” policy refers to a system of ver- balization skills and physical alternatives that enhance security for staff and inmates. 12 No. 18-2561 Champagne was the ﬁnal decisionmaker with respect to the discipline imposed on plaintiﬀ. 5. A Coworker’s Use of Force On May 15, 2014, approximately one month before plain- tiﬀ’s interaction with Haro, another oﬃcer—Terry Korte— used force on another inmate at St. Croix. Korte is a white cor- rectional sergeant and a citizen of the United States. Speciﬁ- cally, Korte pushed an inmate into a wall several times and grabbed the inmate’s head with both hands because the in- mate was not standing in the position of attention and the in- mate was laughing in violation of the CIP’s rules. 9 Korte did not place the inmate in handcuﬀs. After the incident, Korte did not ﬁle an incident report or immediately notify a super- visor. 10 Instead, Korte prepared a “learning instruction,” a form in which the author describes what he observed. Nota- bly, Korte’s learning instruction did not contain any infor- mation about Korte pushing the inmate into the wall or grab- bing the inmate’s head. There was a personnel investigation into Korte’s use of force. 11 As part of the investigation, Korte and some inmates sat for interviews. Korte explained in his interview that he did not remember pushing the inmate into the wall or grabbing the inmate’s head, as the video indicated. Ultimately, the in- vestigators determined that Korte violated Work Rules #2, #4, 9Surveillance video also captured Korte’s use of force, but that video is not in the record. 10 At his deposition, Korte explained that there was no supervisor on duty for him to notify. 11 Champagne and Bambrough were also on the IRT and the DART in Korte’s case. No. 18-2561 13 and #11. The investigation summary does not cite Korte for providing false information, even though his learning instruc- tion omits any description of how he used force. Champagne was the ﬁnal decisionmaker as to Korte’s punishment. She sent him a letter, dated August 14, 2014, in- forming him that he was being suspended without pay for one day. The basis for the suspension was his violations of three DOC Work Rules #2, #4, and #11. Work Rule #4 states: “Negligence in the performance of assigned duties or failure to exercise good judgment in dealing with employees, juve- niles, oﬀenders or the public.” The letter then described the use of force Korte applied: “You began verbally interacting with the inmate; however, you continued to place your hands on the inmate, pushing him into the wall several times, and on one occasion during your interaction, you grabbed the in- mate by the head with both hands.” It did not, however, state that Korte’s actions constituted excessive use of force or a vi- olation of DAI Policy #306.07.01: Use of Force. The letter ex- plained that although Korte did not have a disciplinary action within the preceding year, and although the schedule of pro- gression indicated that a written reprimand would be the ap- propriate punishment, the seriousness of his misconduct war- ranted the harsher punishment of a one-day suspension. 6. Plaintiﬀ’s WERC Hearing Plaintiﬀ appealed the termination of his employment un- der Wisconsin Statute § 230.44 for review by the Wisconsin Employment Relations Commission (“WERC”). A two-day hearing before WERC Chairman James Scott followed. On the ﬁrst day of the hearing, August 12, 2015, the following wit- nesses appeared: Haro, Fulton, Grady, Silao-Johnson, Achter- berg, Bambrough, Champagne, Hicks, and Skalski. On the 14 No. 18-2561 second day of the hearing, August 13, 2015, the parties ques- tioned plaintiﬀ. On March 9, 2016, Chairman Scott issued his Decision and Order, ordering the DOC to reinstate plaintiﬀ to his position without loss of seniority and to pay plaintiﬀ all lost wages and beneﬁts less any interim earnings. In order to reach that re- sult, Chairman Scott made several pertinent ﬁndings. He re- jected plaintiﬀ’s purported violation of Work Rule #11 for a threat or attempt to inﬂict bodily harm because the record did not support Haro’s claim of injury resulting from the incident. He also rejected the purported violation of Work Rule #6 for falsiﬁcation of records because he determined “the video is not conclusive as to what Haro was doing immediately before the ‘destabilization,’” so the video could not “directly contra- dict[]” plaintiﬀ’s version of the events. Thus, he concluded the only basis for discipline was Work Rule #2. Chairman Scott then examined that purported violation more closely. He decided that the DOC did not carry its bur- den of proving that plaintiﬀ violated Work Rule #2 because: (1) the DOC relied on speculative testimony from Achterberg about the use of force; (2) the DOC’s witnesses had diﬀerent opinions about the custom or expectation of using handcuﬀs after a use of force, which led him to conclude that an error of judgment in interpreting such “a complex set of policies” does not create just cause for discharge; (3) Champagne’s explana- tion of the diﬀerence in treatment between plaintiﬀ’s and Korte’s use of force was “less than convincing” because it turned on plaintiﬀ’s decision to wait ﬁfteen minutes until his supervisor’s shift started before reporting the incident, and not on the relative violence of the two uses of force; (4) there were inconsistencies in the DOC’s application of its rules and No. 18-2561 15 policies, as Hicks’s research uncovered incidents where staﬀ had used excessive force and were not terminated, but the DOC did not present evidence about the details of those inci- dents; and (5) the six-month delay between the incident and plaintiﬀ’s discharge suggested the DOC discharged plaintiﬀ only “to avoid criticism of the delay.” Then, on July 28, 2016, Chairman Scott issued a Decision and Order on plaintiﬀ’s request for fees and costs. In order to award fees and costs, he had to decide whether the DOC was “substantially justiﬁed,” as deﬁned by Wisconsin Statute § 227.485(2)(f), in taking its position that it had just cause to discharge plaintiﬀ. To prove its position was substantially jus- tiﬁed, the DOC had to demonstrate that its decision had a rea- sonable basis in truth for the facts alleged, a reasonable basis in law for the theory promulgated, and that there was a rea- sonable connection between the facts alleged and the legal theory advanced. Sheely v. Wis. Dep’t of Health & Soc. Servs., 442 N.W.2d 1, 9 (Wis. 1989). Chairman Scott decided the DOC could not substantially justify its position (to discharge plain- tiﬀ) because the results of the DOC’s personnel investigation were inconclusive. And Chairman Scott further explained: DOC’s apparent inability to substantially justify its position is compounded by its inexplicable diﬀerence in treatment between [plaintiﬀ] and coworker Terry Korte…. As discussed in the de- cision on the merits, the explanation for the dif- ference in treatment was nonsensical. DOC completely undermined its case by oﬀering this transparently false explanation for an obvious diﬀerential in treatment. But for that position this could arguably be a case where DOC made 16 No. 18-2561 a judgment call on a relatively close case. The inexplicable diﬀerential in treatment leads to the conclusion that there was no reasonable ba- sis in truth for the facts as alleged. B. Procedural Background Plaintiﬀ ﬁled his complaint in federal court on February 21, 2017. He amended his compliant twice. The second amended complaint, ﬁled on June 30, 2017, is the operative complaint; it includes four counts: Count I alleges discrimina- tion under Title VII against the DOC; Counts II and III allege, pursuant to § 1983, a violation of the Equal Protection Clause of the Fourteenth Amendment against the individual defend- ants and the DOC; and Count IV alleges discrimination under § 1981 against all defendants. Defendants ﬁled a motion for summary judgment on March 2, 2018, arguing that plaintiﬀ lacked evidence to prove intentional discrimination under Title VII or § 1983. Plaintiﬀ ﬁled his response on March 23, 2018, arguing that Korte is a similarly-situated employee and that defendants’ diﬀering treatment of him and Korte is evidence he was terminated based on his race or national origin, and that defendants’ prof- fered nondiscriminatory reasons for his discharge were pre- textual. Defendants ﬁled their reply on April 23, 2018. The district court issued its decision on June 19, 2018, granting summary judgment for defendants. The court de- cided that the record did not support an inference that Korte’s conduct was comparable to plaintiﬀ’s because the personnel investigation and the use of force review found that plaintiﬀ’s use of force was unreasonable, and that plaintiﬀ was not truthful when interviewed. And even if a reasonable jury No. 18-2561 17 could ﬁnd similar conduct, the court reasoned that plaintiﬀ had not established that defendants’ proﬀered reasons for his discharge were pretextual. This appeal followed. II. Discussion “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). We review a grant of summary judgment de novo, drawing all reasonable inferences for the nonmoving party and viewing the record in the light most favorable to the nonmoving party. Barbera v. Pearson Educ., Inc., 906 F.3d 621, 628 (7th Cir. 2018). We may aﬃrm the grant of summary judgment on any ground supported by the record, as long as the parties adequately presented the issue before the district court and the nonmoving party had an opportunity to contest it. O’Brien v. Caterpillar Inc., 900 F.3d 923, 928 (7th Cir. 2018). A. Discrimination Claims The complaint alleges race and national origin discrimina- tion in violation of Title VII and the Equal Protection Clause of the Fourteenth Amendment. Under Title VII, it is unlawful for an employer to “discriminate against any individual ... be- cause of such individual’s race ... or national origin.” 42 U.S.C. § 2000e–2(a)(1); see also Lauderdale v. Ill. Dep’t of Human Servs., 876 F.3d 904, 909 (7th Cir. 2017). Similarly, the Equal Protec- tion Clause protects against intentional discrimination on the basis of race or national origin, and 42 U.S.C. § 1983 provides an employee subjected to such discrimination a path to relief. See Lauderdale, 876 F.3d at 909–10. We evaluate discrimination claims brought under both Title VII and § 1983 using the same 18 No. 18-2561 standard. Egonmwan v. Cook Cty. Sheriﬀ’s Dep’t, 602 F.3d 845, 850 n.7 (7th Cir. 2010). 12 Discrimination claims may survive summary judgment when a plaintiﬀ presents evidence that permits a reasonable factﬁnder to conclude that the employer took an adverse ac- tion against the employee because of the employee’s race or national origin. See Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). In deciding motions for summary judg- ment, courts must consider the evidence as a whole. See id. Here, plaintiﬀ seeks to establish discrimination by pre- senting evidence that despite the similarity between his mis- conduct and Korte’s, the DOC, acting through Champagne, gave plaintiﬀ a more severe punishment. In addition to this comparative evidence, plaintiﬀ argues that the nondiscrimi- natory reasons defendants gave for deciding to discharge him were merely a guise to cover defendants’ discriminatory dis- cipline. 1. Comparable Misconduct Discrimination may be inferred when an employer treats an employee in a protected class less favorably than it treats a similarly-situated employee outside that class. Coleman v. Do- nahoe, 667 F.3d 835, 846 (7th Cir. 2012). To determine whether 12 We aﬃrm the district court’s grant of summary judgment in favor of all defendants on plaintiﬀ’s 42 U.S.C. § 1981 claim. Section 1981 “pro- hibits race discrimination in the making and enforcing of contracts.” O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). But, § 1981 “does not create a private right of action against state actors.” Campbell v. Forest Pres. Dist. of Cook Cty., 752 F.3d 665, 671 (7th Cir. 2014). Ra- ther, § 1983 is “the exclusive remedy for violations of § 1981 committed by state actors.” Id. No. 18-2561 19 employees are similarly situated, courts ask “whether the other employees’ situations were similar enough to the plain- tiﬀ’s that it is reasonable to infer, in the absence of some other explanation, that the diﬀerent treatment was a result of race or some other unlawful basis.” Luster v. Ill. Dep’t of Corr., 652 F.3d 726, 730 (7th Cir. 2011). In cases such as this, where the plaintiﬀ alleges the employer disciplined him more harshly than his comparator, “‘the most-relevant similarities are those between the employees’ alleged misconduct, performance standards, and disciplining supervisor,’ rather than job de- scription and duties.” Coleman, 667 F.3d at 849 (quoting Rodg- ers v. White, 657 F.3d 511, 518 (7th Cir. 2011)). “[T]he critical question is whether [the employees] have engaged in conduct of comparable seriousness.” Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 689 (7th Cir. 2007). Conduct may be comparably serious if it violates the same rule or is of a similar nature. Id. Plaintiﬀ maintains that the underlying misconduct in his case is comparable to Korte’s, and as a result, the discrepancy in the charges he and Korte received is evidence that he was discharged because of his race and national origin. Defend- ants disagree that Korte engaged in similar misconduct. They compare the investigatory and disciplinary documents in plaintiﬀ’s case to those in Korte’s case. While both personnel investigations found that plaintiﬀ and Korte violated Work Rule #2 for failing to comply with policies and Work Rule #11 for threatening, attempting to inﬂict, or inﬂicting bodily harm on an inmate, only plaintiﬀ’s personnel investigation found a violation of Work Rule #6 for falsifying records. Korte did not receive that charge. Relatedly, only plaintiﬀ’s discharge letter 20 No. 18-2561 referenced the use of “excessive force” and a violation of DAI Policy #306.07.01: Use of Force. Whether plaintiﬀ and Korte were charged with violating the same set of rules is not dispositive. Plaintiﬀ may establish that his use of force was as serious as Korte’s by showing that their misconduct was of a similar nature. See Peirick, 510 F.3d at 689. On this point, plaintiﬀ prevails. Korte pushed an inmate into a wall several times and grabbed the inmate by the head after the inmate refused to stand in line and was laughing. Plaintiﬀ decentralized an in- mate after the inmate had recently ignored two separate or- ders from Fulton, disregarded policy by cutting in line to use the restroom, ignored plaintiﬀ’s verbal commands, and gave plaintiﬀ a target glance while stating expletives. Plaintiﬀ also held the inmate on the ground for approximately two minutes until the inmate stopped his “passive resistance.” Although there are distinctions between the circum- stances leading up to each oﬃcer’s use of force and the way in which each oﬃcer used force, both oﬃcers used force on inmates who were violating the CIP’s rules, and fortunately, neither inmate sustained injuries. It is not for us to determine whether either oﬃcer’s use of force was appropriate. We only decide whether Korte is a useful comparator in a discrimina- tion analysis. And while we do not condone either plaintiﬀ’s or Korte’s actions, we note that plaintiﬀ was dealing with a less compliant inmate than Korte was, which meant the need for a response in plaintiﬀ’s case was arguably greater than in Korte’s case. Both oﬃcers responded by restricting the in- mates’ movement—Korte forced the inmate’s body into a wall and plaintiﬀ forced the inmate’s body onto the ground. It is undisputed that plaintiﬀ incapacitated his inmate longer than No. 18-2561 21 Korte did, but it is also undisputed that plaintiﬀ kept the in- mate on the ground because the inmate was engaging in pas- sive resistance. There is no indication that the inmate on which Korte used force passively resisted him. On balance, we view these use of force incidents as having a similar na- ture. Defendants maintain that Korte is not a useful comparator because unlike plaintiﬀ, Korte did not lie during his personnel investigation when asked about his conduct. Defendants base their position that Korte did not lie on the following question and answer series during his personnel investigation: The in- terviewer asked Korte: “Do you recall grabbing [the inmate] by the face?” and Korte responded: “No, did I? I know you have it on camera, did I really do that? Uh, no.” Such testi- mony either shows that Korte equivocated in responding to the question or that he did not remember his actions; it does not prove that Korte did not lie during an investigation. More- over, the record shows that when Korte ﬁlled out the “learn- ing instruction” after the incident, he declined or forgot to in- clude any mention of how he pushed an inmate into the wall and grabbed the inmate’s head. Such a glaring omission would tend to show that the author was less than forthright. As a result, it is not the case that Korte’s reporting of his use of force was so thorough and forthcoming that it renders him ineligible to serve as a comparator here. To the extent defend- ants believed there were discrepancies in plaintiﬀ’s reporting of his use of force, discrepancies of a similar nature also ex- isted in Korte’s reports. Consequently, a reasonable jury could conclude that plaintiﬀ and Korte engaged in comparably serious conduct. 22 No. 18-2561 In turn, we consider whether there is a legitimate nondiscrim- inatory reason behind defendants’ decision to discharge plaintiﬀ for his use of force, but only to suspend Korte for one day for his use of force. 2. Pretext for Discriminatory Charges and Punishment An inference of discrimination may follow when the em- ployer’s purported nondiscriminatory reason for taking an adverse action against the employee was pretextual, meaning it was “a lie” or “a phony reason.” Smith v. Chi. Transit Auth., 806 F.3d 900, 905 (7th Cir. 2015) (quotation marks and citation omitted). To show pretext, plaintiﬀ must “identify such weak- nesses, implausibilities, inconsistencies, or contradictions” in defendants’ stated reasons for their allegedly discriminatory actions “that a reasonable person could ﬁnd [it] unworthy of credence.” Coleman, 667 F.3d at 852–53 (alteration in original) (quoting Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007)). In other words, a plaintiﬀ would not succeed on her dis- crimination claim if the employer “honestly believed” its stated rationale for its adverse employment action, even if this honest belief was “foolish, trivial, or baseless.” Id. at 853 (quoting Boumehdi, 489 F.3d at 792). But, a plaintiﬀ would win her case if she showed that “the stated reason, even if actually present to the mind of the employer, wasn’t what induced [the employer] to take the challenged employment action,” because that would constitute pretext. Id. (quoting Forrester v. Rauland–Borg Corp., 453 F.3d 416, 418 (7th Cir. 2006)); see also O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011) (“The question is not whether the employer’s stated rea- No. 18-2561 23 son was inaccurate or unfair, but whether the employer hon- estly believed the reasons it has oﬀered to explain the dis- charge.”). To explain the diﬀerences in plaintiﬀ’s and Korte’s charges and punishment, defendants rely on Champagne’s belief that plaintiﬀ’s use of force was more extreme than Korte’s, and the number of investigators and reviewers who found plaintiﬀ’s use of force to be unreasonable. Plaintiﬀ challenges defend- ants’ ability to argue that their reasons were not pretextual in light of Chairman Scott’s ﬁndings and conclusions. 13 Alterna- tively, plaintiﬀ argues that a reasonable jury could ﬁnd pre- text because Champagne’s explanations for the diﬀerent dis- ciplinary decisions evolved over time and defendants’ rea- sons for charging plaintiﬀ with falsifying documents were di- vorced from the factual record. i. Issue Preclusion Given Chairman Scott’s ﬁndings and conclusions that there was “no credible evidence” to show plaintiﬀ violated Work Rules #6 and #11, there was insuﬃcient evidence to show that plaintiﬀ violated Work Rule #2, “Champagne[’s] explanation for the diﬀerences in treatment between [plaintiﬀ and Korte was] less than convincing,” and the DOC’s position was not “substantially justiﬁed,” plaintiﬀ argues that issue 13 Plaintiff acknowledges that issue preclusion does not apply to his Title VII claim. See Univ. of Tenn. v. Elliott, 478 U.S. 788, 796 (1986) (“Con- gress did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims.”). 24 No. 18-2561 preclusion bars defendants from arguing that they had legiti- mate and nondiscriminatory reasons for discharging him. We disagree. Issue preclusion seeks to “conserv[e] judicial resources[] and foste[r] reliance on judicial action by minimizing the pos- sibility of inconsistent decisions.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (alterations in original) (quoting Montana v. United States, 440 U.S. 147, 153–54 (1979)). It prohibits parties from relitigating an issue after a court considered the parties’ arguments on that issue and resolved it in a manner that was essential to the court’s judgment. Id. Federal courts apply the preclusion law of the state where the judgment was rendered, here Wisconsin. See 28 U.S.C. § 1738; Adams v. Adams, 738 F.3d 861, 865 (7th Cir. 2013). In Wisconsin there are two prerequi- sites for issue preclusion to apply: (1) “the question of fact or law that is sought to be precluded actually must have been litigated in a previous action and [have been] necessary to the judgment”; and (2) the court must determine “whether it is fundamentally fair to employ issue preclusion given the cir- cumstances of the particular case at hand.” First Weber Grp., Inc. v. Horsfall, 738 F.3d 767, 773 (7th Cir. 2013) (alteration in original) (quoting Mrozek v. Intra Fin. Corp., 699 N.W.2d 54, 61 (Wis. 2005)). To start, Champagne was not an adversary in the WERC proceeding, meaning she was not aﬀorded an opportunity to litigate the issues plaintiﬀ raised there. Furthermore, there was no identity of issues that were actually litigated. Chair- man Scott opined that Champagne’s descriptions of why she disciplined plaintiﬀ more harshly than Korte were not credi- ble, but he did so in the context of deciding whether plaintiﬀ’s discharge was supported by “just cause” under Wisconsin No. 18-2561 25 civil service laws and whether the DOC’s position was “sub- stantially justiﬁed.” Chairman Scott was not considering the precise issue of pretext—whether the employer lied to cover up a discriminatory purpose. Finally, plaintiﬀ did not carry his burden of proving that (despite the above issues) preclu- sion here would be “fundamentally fair.” See Paige K.B. ex rel. Peterson v. Steven G.B., 594 N.W.2d 370, 375 (Wis. 1999). Issue preclusion does not apply here. ii. Champagne’s Explanations As evidence of pretext, plaintiﬀ notes that Champagne’s reasoning for discharging him has shifted over time, and that the latest explanation—that his use of force was more serious than Korte’s—ﬁrst surfaced at summary judgment. At her deposition on July 21, 2015, Champagne explained why, within a one-month span, she suspended Korte for one day but terminated plaintiﬀ after both oﬃcers used force on inmates. She said: “[Korte] provide[d] information in the re- port as to what happened,” notiﬁed a supervisor, and oﬀered the inmate medical attention. Then, at the WERC hearing on August 12, 2015, Champagne gave new reasons for her deci- sions: Korte “recognized that he was not following our proto- cols,” he “stopped his behavior and brought it to light with his colleagues to make sure they were informed,” he “re- moved himself from the situation,” he “informed the inmate of his rights in relation to grieving it,” and plaintiﬀ waited ﬁf- teen minutes before reporting his use of force to a supervisor. In the declaration she ﬁled in this lawsuit on March 2, 2018, she stated: “It is my opinion that the gravity of the force Korte used was not the same as the force [plaintiﬀ] used” because “Korte was verbalizing with the inmate,” he “disengaged” af- 26 No. 18-2561 ter using force, he “admitted almost immediately that his be- havior was not appropriate,” and he “immediately reported the incident”; plaintiﬀ “has never, to my knowledge, recog- nized that his conduct was wrong.” Finally, at her deposition on March 15, 2018, Champagne both restated some reasons she had previously given—Korte immediately informed his colleagues and supervisor, oﬀered the inmate medical assis- tance, and told the inmate that he could write a grievance or a complaint, while plaintiﬀ did not take any of those steps— and she also added a new reason: plaintiﬀ used force without provocation while Korte used force after provocation. We agree with plaintiﬀ’s position. A reasonable jury could conclude that Champagne’s evolving explanations support an inference of pretext. See Castro v. DeVry Univ., Inc., 786 F.3d 559, 577 (7th Cir. 2015) (“As a general rule, a reasonable trier of fact can infer pretext from an employer’s shifting or incon- sistent explanations.”). Indeed, Chairman Scott, writing on behalf of an independent agency, characterized Champagne’s ever-changing reasoning as “less than convincing” and “non- sensical.” Another problem with Champagne’s reasoning, in our view, is that it is founded on incorrect factual premises. Based on the undisputed record: Korte did not ﬁll out an incident report, plaintiﬀ did; and Korte did not notify a supervisor about his use of force, plaintiﬀ did. Additionally, Champagne said the basis for her belief that Korte immediately notiﬁed colleagues, oﬀered the inmate medical assistance, and in- formed the inmate of his right to ﬁle a grievance, was that such information appeared in the documents from the per- sonnel investigation. This belief was unfounded. None of the documents in the personnel investigation indicate that Korte No. 18-2561 27 did those things. By contrast, plaintiﬀ notiﬁed the supervisor as soon as he arrived on duty after the incident. Furthermore, plaintiﬀ asserts (and we accept as true) that he verbally of- fered medical assistance to the inmate, but the inmate de- clined it. And ﬁnally, plaintiﬀ says he was not trained to ad- vise inmates of their right to ﬁle a grievance after a use of force; it was his understanding that the supervisor would pro- vide this information. If Champagne’s logic about what an of- ﬁcer can do in mitigation before, during, and after a use of force had been applied accurately to the facts in the record, plaintiﬀ should have been given more credit in the review of his misconduct. Instead, Champagne appears to have given Korte the beneﬁt of the doubt while depriving plaintiﬀ of his share. Defendants respond that Champagne’s testimony, even if based on incorrect factual premises, is not evidence that she is lying about the reason she decided to terminate plaintiﬀ. And defendants attempt to focus the court’s attention on the reasons Champagne gave in plaintiﬀ’s discharge letter, noting that those reasons “are consistent with the video and at least ten other people.” But as Chairman Scott opined, “[t]he video is at best inconclusive as to whether the raising of Haro’s arms signaled an attempt to initiate a ﬁght or whether the ‘target glance’ occurred.” And we do not agree with the premise of defendants’ argument—that because other people believed that plaintiﬀ used excessive force, Champagne’s decision to terminate plaintiﬀ could not have been discriminatory. A rea- sonable jury could ﬁnd that Champagne’s reasoning was too detached from the actual facts involved in the two uses of force. From this ﬁnding, a reasonable jury could infer that Champagne’s proﬀered reasons were pretextual. 28 No. 18-2561 iii. The Falsiﬁcation Charge As further evidence of pretext, plaintiﬀ raises the issue of defendants’ decision to charge him with falsifying documents when defendants did not bring the same charge against Korte. Plaintiﬀ had begun ﬁlling out an incident report before in- forming Grady about his use of force, and he completed that form before the end of his shift. He received the falsifying doc- uments charge because defendants believed there were dis- crepancies between his descriptions in the incident report and what they saw in the video. By contrast, Korte wrote a learn- ing instruction instead of ﬁlling out an incident report, and not once did he describe his use of force in that learning in- struction. Defendants did not charge Korte with falsiﬁcation because he told the personnel investigators that he did not re- member using force on the inmate, and Champagne believed that response was truthful. Bambrough also indicated she was not concerned by Korte’s response. It is diﬃcult to square defendants’ mistrust of plaintiﬀ’s reporting when they easily accepted Korte’s reporting despite its similar ﬂaws. As we noted above, the video does not estab- lish what exactly transpired between plaintiﬀ and Haro—the video does not record who said what to whom or when, and the video does not clearly show what subtle movements plaintiﬀ or Haro made. Such details would be necessary to evaluate whether plaintiﬀ falsely reported what prompted him to use force and the way in which he used force. It is de- fendants’ prerogative to evaluate the veracity of their em- ployee’s narratives, but where defendants do so inconsist- ently, red ﬂags arise. See Loudermilk v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir. 2011) (“[A]n employer who advances a ﬁshy reason takes the risk that disbelief of the reason will support No. 18-2561 29 an inference that it is a pretext for discrimination.”). A reason- able jury could conclude that defendants charged plaintiﬀ with falsiﬁcation because of his race or national origin, not be- cause defendants truly believed that plaintiﬀ was intention- ally inaccurate in his reporting of his use of force. * * * For the foregoing reasons, we agree that plaintiﬀ raised a triable issue of fact as to whether the nondiscriminatory rea- sons defendants gave for terminating plaintiﬀ were pre- textual, and whether the real reason he did not receive a one- day suspension—or some other punishment short of dis- charge—was because he is Latino and a Brazilian citizen. As a result, we reverse the district court’s award of summary judgment to the DOC on plaintiﬀ’s Title VII claim and to Champagne on plaintiﬀ’s equal protection claim brought un- der § 1983. We do not reach the same conclusion as to Bambrough and Hicks because other than noting that they were each actors at diﬀerent points in the personnel investigation, plaintiﬀ did not develop any arguments about their personal involvement in the decision to discharge him. Therefore, we aﬃrm the dis- trict court’s decision to award summary judgment to Bam- brough and Hicks. See Carmody v. Bd. of Trs. of Univ. of Ill., 893 F.3d 397, 402–03 (7th Cir. 2018) (liability under § 1983 requires evidence of personal involvement in the alleged discrimina- tion). B. Eleventh Amendment Turning next to plaintiﬀ’s equal protection allegations against the DOC, defendants argue that the Eleventh Amend- ment immunizes them from claims brought pursuant to 30 No. 18-2561 § 1983. While defendants raise this argument for the ﬁrst time on appeal, we may forgive the waiver of an Eleventh Amend- ment defense given that the defense is based on comity. Hig- gins v. Mississippi, 217 F.3d 951, 953–54 (7th Cir. 2000). “The Eleventh Amendment bars private litigants’ suits against non- consenting states in federal courts, with the exception of causes of action where Congress has abrogated the states’ tra- ditional immunity through its powers under the Fourteenth Amendment.” Joseph v. Bd. of Regents of Univ. of Wis. Sys., 432 F.3d 746, 748 (7th Cir. 2005). This immunity extends to state agencies and state oﬃcials in their oﬃcial capacities. Id. There is no dispute that the DOC is a nonconsenting state agency, and Congress has not abrogated Wisconsin’s Eleventh Amendment immunity for plaintiﬀ’s claims brought pursu- ant to § 1983. 14 Therefore, the Eleventh Amendment bars plaintiﬀ’s equal protection claim against the DOC. 15 C. Qualiﬁed Immunity Finally, though the individual defendants did not assert a qualiﬁed immunity defense in their motion for summary 14Congress has abrogated state sovereign immunity with respect to Title VII. See Carmody, 893 F.3d at 403 (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976)). Thus, the Eleventh Amendment does not bar plaintiff’s Title VII claims. 15Defendants also argue that plaintiff may not pursue his equal pro- tection claim against the DOC because it is not a “person” under § 1983. See Duncan v. State of Wis. Dep’t of Health & Family Servs., 166 F.3d 930, 935 (7th Cir. 1999) (“[N]either the state agency itself nor the state employees in their official capacity can be sued for retrospective monetary relief, for the simple reason that the state is not a ‘person’ for purposes of 42 U.S.C. § 1983.”). We agree this is an alternate basis from which we may affirm the district court’s summary judgment decision as to this claim (Count III). No. 18-2561 31 judgment, they did raise it in their answer to plaintiﬀ’s second amended complaint. Plaintiﬀ does not challenge their ability to raise this defense on appeal. As Champagne is the only re- maining individual defendant, we need only consider whether qualiﬁed immunity shields her from liability on plaintiﬀ’s equal protection claim. Qualiﬁed immunity protects an oﬃcial from money dam- ages “unless a plaintiﬀ pleads facts showing (1) that the oﬃ- cial violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). A right is clearly established when existing precedent places it “be- yond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quot- ing Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). In short, “im- munity protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Id. (quoting Mullenix, 136 S. Ct. at 308). Defendants argue that not a single case existed as of De- cember 2014, when Champagne decided to terminate plain- tiﬀ, that would have alerted her that this scenario was uncon- stitutional. We disagree. Plaintiﬀ presented suﬃcient evi- dence such that a reasonable jury could ﬁnd that Champagne terminated plaintiﬀ because of his race and national origin. And if a jury draws that inference, it is of course true that Champagne’s actions would violate clearly established law. It is well-established that terminating an employee on the basis of his protected status—including race or national origin—vi- olates the Equal Protection Clause of the Fourteenth Amend- ment. Cf. Lauderdale, 876 F.3d at 909 (citing Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp., 743 F.3d 569, 577 (7th Cir. 2014); 32 No. 18-2561 Burks v. Wis. Dep't of Transp., 464 F.3d 744 (7th Cir. 2006)); Cole- man, 667 F.3d at 859. Therefore, qualiﬁed immunity does not shield Champagne from liability here. III. Conclusion For the foregoing reasons, we AFFIRM in part and REVERSE and REMAND in part the judgment of the district court. We af- firm the district court’s decision to award summary judgment to Bambrough and Hicks on plaintiff’s claims brought pursu- ant to § 1983 (Count II); to the DOC on plaintiff’s claims brought pursuant to § 1983 (Count III); and to all defendants on plaintiff’s § 1981 claim (Count IV). But we reverse and re- mand the district court’s decision involving plaintiff’s Title VII claim against the DOC (Count I) and equal protection claim against Champagne brought under § 1983 (Count II).

Julio de Lima Silva v. State of Wisconsin, Department

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