Dameion Perkins v. Milwaukee County ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 7, 2019
Decided August 27, 2019
Before
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 18-3710
DAMEION PERKINS, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 18-CV-179-JPS
MILWAUKEE COUNTY, et al., J. P. Stadtmueller,
Defendants-Appellees. Judge.
ORDER
Dameion Perkins publicly protested after a Milwaukee police officer killed his
brother. He later applied for a position with Milwaukee Transit Services, Inc. (MTS), but
the company did not hire him. After he learned that a hiring manager had said that
MTS would not hire him because of his family’s protests, he sued Milwaukee County
for violating his First Amendment rights. But Perkins sued the wrong entity, and he
lacks evidence that his protected activity was the reason that MTS did not hire him.
Thus, we affirm the judgment.
Before turning to the facts, we first address Perkins’s argument that the district
judge abused his discretion by ruling that Perkins’s responses to the defendants’
No. 18-3710 Page 2
proposed findings of fact violated the local rules. We review a district judge’s decision
regarding compliance with local rules for an abuse of discretion. Curtis v. Costco
Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015).
Eastern District of Wisconsin Local Rule 56 requires a party opposing summary
judgment to file “a concise response” to the moving party’s statement of facts,
“including, in the case of any disagreement, specific references to the affidavits,
declarations, parts of the record, and other supporting materials relied upon.” CIV. L.R.
56(b)(i) (E.D. Wis.). In Perkins’s disagreements with the defendants’ proposed findings
of fact, he simply wrote “DENY” and cross-referenced numerous paragraphs from his
own proposed facts—often 10–15 of his own paragraphs, and in some places as many as
41 or even all 94. This method left the district judge to piece together the nature of
Perkins’s objections. The judge concluded that Perkins’s response did not comply with
the local rules because Perkins did not include any explanation of the basis for his
disputes, and he ruled that Perkins therefore had admitted the defendants’ facts.
Perkins argues that the judge’s ruling of noncompliance in this case was an abuse
of discretion because his attorney has responded to motions for summary judgment in
this way before multiple other judges in the Eastern District of Wisconsin without issue.
But the test for abuse of discretion is not whether the district judge might have decided
differently, but whether the judge’s ruling was unreasonable. Eskridge v. Cook Cty.,
577 F.3d 806, 810 (7th Cir. 2009). District judges are not required to piece together a
litigant’s arguments, see D.Z. v. Buell, 796 F.3d 749, 756 (7th Cir. 2015), and they are
permitted to require strict compliance with local rules, Benuzzi v. Bd. of Educ. of Chi.,
647 F.3d 652, 655 (7th Cir. 2011). Because Perkins did not identify his disagreements
with specificity, the district judge did not abuse his discretion by ruling that Perkins
had admitted the defendants’ statement of facts.
Accepting the defendants’ facts as admitted, we recite those facts in the light
most favorable to Perkins and draw all inferences in his favor. Benuzzi, 647 F.3d at 656.
A Milwaukee police officer killed Perkins’s brother, Dontre Hamilton, prompting
Perkins to travel the country and speak to the media about police violence against black
men. Years later, Perkins applied for a union job with MTS as a bus cleaner/tanker.
Milwaukee County contracts with MTS, a private nonprofit company, to operate the
Milwaukee County Transit System. MTS, not the County, employs all transit staff.
No. 18-3710 Page 3
As part of his application, Perkins had a phone screening with a recruiter at MTS.
The recruiter ultimately decided not to continue the hiring process with Perkins because
Perkins spoke negatively about his employer. After the call, the recruiter told the hiring
manager, Sandra Goins-Jones, about Perkins’s familial relationship, which had come up
in the phone conversation. Goins-Jones then took Perkins’s file from the recruiter and
said that MTS would not hire Perkins because MTS is a transportation company and
Perkins’s family had stopped traffic during their protests.
Goins-Jones discussed Perkins’s application with Sylvia Radmer, the director of
human resources for MTS, and said that she would not hire Perkins because of his
family’s protests. Radmer told Goins-Jones that involvement in protests was not an
appropriate reason to deny employment.
Weeks later, Goins-Jones repeated to the union president that she could not hire
Perkins because of his family’s protests. The president relayed this statement to Perkins,
who began calling Goins-Jones to follow up on his application. Goins-Jones mentioned
these calls to Radmer, and Radmer told her to send Perkins a letter that MTS was
considering other candidates.
Perkins also called Radmer and told her that MTS had not hired him because of
his family’s protests. Radmer consulted with Sandra Kellner, the chief administrative
officer of MTS, and the two decided to meet with Perkins to investigate what he had
heard. Before the meeting, Radmer reviewed the recruiter’s notes from the phone call.
Radmer and Kellner then met with Perkins and told him that MTS had not hired him
because the recruiter had recommended against it. They also told him that his rejection
was not based on his protests or family and that they would investigate why he had
been told that it was.
Perkins sued Milwaukee County, Radmer, and Kellner under 42 U.S.C. § 1983 for
violating his First Amendment rights of free speech and free association. He did not sue
MTS. On the defendants’ motion for summary judgment, the judge concluded that
Perkins did not show that either Radmer or Kellner set personnel policy and that
Perkins therefore could not hold the County liable under Monell v. Dep't of Soc. Servs. of
N.Y., 436 U.S. 658, 694 (1978). As for Radmer and Kellner’s individual liability, the judge
determined that Perkins had not submitted evidence of any specific instance of
protected speech and therefore could not establish a prima facie case of retaliation.
No. 18-3710 Page 4
On appeal, Perkins argues that the County is the proper defendant under § 1983
because it is the “controlling municipality” of MTS and that MTS is not subject to suit
under § 1983 because it is a private company. Perkins is wrong for several reasons. First,
Milwaukee County was not involved in the events at issue. Perkins does not appear to
dispute this, but nonetheless believes that the County can be held liable simply because
it owns the buses and finances MTS. Second, “a private corporation that has contracted
to provide essential government services is subject to at least the same rules that apply
to public entities,” which includes the rules allowing liability for state actors for
violating federal constitutional rights. Glisson v. Ind. Dep't of Corr., 849 F.3d 372, 378–79
(7th Cir. 2017); Shields v. Ill. Dep't of Corr., 746 F.3d 782, 789 (7th Cir. 2014). Perkins
insists that the relationship between the County and MTS allows him to sue the County
for the wrongdoing of MTS employees. But the relationship between the two means the
opposite: as the operator—and hiring authority—of the transit system, MTS itself can be
sued under § 1983. See Papapetropoulous v. Milwaukee Transp. Servs., Inc., 795 F.2d 591,
597 n.9 (7th Cir. 1986) (in suit against MTS, allegation that County owns MTS establishes
state action under § 1983 for purposes of motion to dismiss).
This has been pointed out repeatedly to Perkins (and his lawyer) throughout the
litigation, but he has held fast to his belief that he had no choice but to sue the County
despite its total lack of involvement. The Wisconsin decisions that Perkins cites do not
help him, either. They are from cases in which the court was deciding whether the
plaintiffs had properly complied with a state statute specific to transit-related
personal-injury suits. The statute requires plaintiffs to file notice of their claims with the
municipality before suing either MTS or the County. See WIS. STAT. §§ 345.05, 893.80;
Blamer v. Milwaukee Cty. Transit Sys., 434 N.W.2d 623 (Wis. Ct. App. 1988) (unpublished)
(affirming dismissal because plaintiff had not filed required notice with County); Zinke
v. Milwaukee Transp. Servs., Inc., 299 N.W.2d 600, 603 (Wis. Ct. App. 1980) (same).
Given the more fundamental problem that Perkins sued the wrong entity, the
district judge’s and the parties’ discussion of Monell is immaterial. Because respondeat
superior liability does not exist under § 1983, Monell permits the liability of a municipal
corporation (or its functional equivalent) only if its own policy or custom caused the
violation. 436 U.S. at 694. A plaintiff can establish that causation by showing that his
rights were violated because of an official policy, an established custom, or a decision
by a final policymaker. Glisson, 849 F.3d at 379; Shields, 746 F.3d at 790. But these
avenues to proving causation presuppose that the person who violated the plaintiff’s
rights is an agent of the defendant entity. No matter which person—Radmer, Kellner,
Goins-Jones, or the recruiter—is responsible for the allegedly unconstitutional rejection
No. 18-3710 Page 5
of Perkins’s employment application, that person worked for MTS, not the County.
Nothing in Monell changes the fundamental principle that the defendant in a § 1983 suit
must have been personally involved in the deprivation of a constitutional right.
See Wilson v. Warren Cty., 830 F.3d 464, 469 (7th Cir. 2016). Only MTS employees or MTS
itself, by virtue of an official policy, could satisfy that requirement in this case. But
Perkins has deliberately chosen not to sue MTS, however ill-advised that strategy.
Next, Perkins argues that summary judgment for Radmer and Kellner was
improper because they participated in and ratified the decision not to hire him because
he engaged in protected activity. To succeed on a First Amendment retaliation claim
under § 1983, Perkins must show that (1) he engaged in constitutionally protected
speech; (2) he “suffered a deprivation likely to deter free speech”; and (3) his speech
was a motivating factor in the employer’s decision. Yahnke v. Kane Cty., 823 F.3d 1066,
1070 (7th Cir. 2016). The parties do not dispute the second element.
Faced with the defendants’ argument that Perkins did not submit any evidence
about protected activity, Perkins points to his testimony that he made public
appearances and spoke about police violence. He also asks us to take judicial notice of
four news stories that mention his name and discuss the protests. Media reports offered
for the truth of the matter asserted—that Perkins engaged in protected speech—are
inadmissible hearsay. See Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 761 (7th Cir. 2013).
And if they are offered for another purpose, such as showing the defendants’ state of
mind when they rejected Perkins’s employment application, Perkins would need to
establish that the defendants had seen them. See Wackett v. City of Beaver Dam, 642 F.3d
578, 582 (7th Cir. 2011). Either way, he cannot submit new evidence opposing summary
judgment for the first time on appeal. Packer v. Trs. of Ind. Univ. Sch. of Med., 800 F.3d
843, 849 (7th Cir. 2015).
Regardless, Perkins did not raise any genuine issue of material fact with respect
to whether his protected speech motivated either Radmer or Kellner to nix his hiring—
to the extent that either was responsible for the hiring decision. The evidence shows
that Radmer consistently opposed considering Perkins’s First Amendment activity in the
hiring process and directed Goins-Jones not to take it into account. Kellner was not
involved in any of the early decisions. When Radmer and Kellner finally reviewed
Perkins’s application and the recruiter’s notes and met with Perkins, they supported, for
non-retaliatory reasons, the decision not to hire him. Therefore, Perkins did not submit
sufficient evidence for a reasonable jury to find a causal connection between his protests
No. 18-3710 Page 6
and MTS’s hiring decision, and summary judgment with respect to the individual
defendants was appropriate. See Massey v. Johnson, 457 F.3d 711, 718–19 (7th Cir. 2006).
AFFIRMED