Martin Gonzalez v. City of Milwaukee

Filing

Filed opinion of the court by Judge Flaum. AFFIRMED. Diane P. Wood, Chief Judge; Joel M. Flaum, Circuit Judge and Matthew F. Kennelly*, District Court Judge. (*Hon. Matthew F. Kennelly of the Northern District of Illinois, sitting by designation.) [6673685-1] [6673685] [14-2984]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2984
MARTIN GONZALEZ,
Plaintiff-Appellant,
v.
CITY OF MILWAUKEE,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 11-C-1070 — Lynn Adelman, Judge.

____________________
ARGUED APRIL 1, 2015 — DECIDED JUNE 26, 2015
____________________
Before WOOD, Chief Judge, and FLAUM, Circuit Judge, and
KENNELLY, District Judge.
FLAUM, Circuit Judge. Martin Gonzalez was a police officer for the City of Milwaukee from 1995 until 2011. He was
discharged from his employment with the City following an
Hon. Matthew F. Kennelly of the Northern District of Illinois, sitting by
designation.

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incident in January 2011 in which he failed to report for
work. Gonzalez is Caucasian and worked in a predominately African-American police district in Milwaukee, District 4.
Gonzalez alleges that he was discharged because of his race
in violation of Title VII of the Civil Rights Act of 1964.
The district court granted summary judgment in favor of
the City of Milwaukee after denying Gonzalez’s motion to
compel discovery, in which he specifically requested that the
City turn over a District 4 “climate survey.” Gonzalez now
appeals the district court’s denial of his motion to compel.
We affirm.
I. Background
Martin Gonzalez was hired by the City of Milwaukee as a
police officer in 1995. At some point prior to January 2011 (it
is unclear precisely when), Gonzalez was transferred to District 4. 1 Between March 2009 and March 2011, Gonzalez was
disciplined on seven different occasions for various misbehaviors, including: “failure … to abide by the ordinances in
another jurisdiction,” “idling and loafing,” “causing damage
to department property and … fail[ing] to report to [a] supervisor,” “fail[ing] to be courteous toward the public …
and … officiously interfering in the private business of another,” “failing to fully investigate a crime,” and “fail[ing] to
promptly and thoroughly investigate and report a crime.”
Aff. of Franklin Gayle in Supp. of Def.’s Mot. for Summ. J. 1–

1

Gonzalez states that he was hired in 1995, and “began experiencing
workplace problems roughly fourteen years later, after having been
transferred to District 4.” Br. of Pl. Appellant Martin Gonzalez 1.

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2. Gonzalez received discipline ranging from an official reprimand to a ten-day suspension for these infractions.
On January 28, 2011, Gonzalez requested to be off from
work on January 30, but his request was denied. Gonzalez
then submitted a request to switch shifts with another officer, and he informally arranged for another officer to take
his shift. Gonzalez’s formal request, however, was neither
approved nor denied. Gonzalez did not report to work on
the 30th, but neither did his replacement. Gonzalez’s supervising sergeant, Sergeant Flowers, called Gonzalez several
times on the morning of the 30th, but could not reach him.
Sergeant Flowers also could not locate an approved replacement form on file. When Gonzalez eventually returned
Sergeant Flowers’s phone call, Sergeant Flowers ordered
Gonzalez to report to work. Gonzalez told Sergeant Flowers
that he was at an event with his daughter and that he did not
have transportation. Gonzalez did not report to work on
January 30, thereby disobeying Sergeant Flowers’s direct order to do so.
Following this incident, Captain O’Leary, Sergeant Flowers’s supervisor, referred the matter to the Professional Performance Division (PPD) (i.e., internal affairs) for investigation. Following the PPD investigation, Chief of Police Edward Flynn discharged Gonzalez on April 6, 2011. Gonzalez
subsequently requested a due process hearing under Wis.
Stat. § 62.50(17), which was held on September 28 before the
Fire and Police Commission (FPC). At this hearing, Gonzalez
had the opportunity to present and cross-examine witnesses.
The FPC then issued a decision sustaining Gonzalez’s discharge, finding that there was substantial evidence to support the termination.

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Gonzalez states that the environment of District 4
“turned hostile toward non-African Americans” after Chief
Flynn promoted Captain O’Leary—who is AfricanAmerican—and assigned O’Leary to District 4. Gonzalez argues that he overheard Captain O’Leary refer to District 4 as
his “chocolate city,” and mention that he wanted District 4 to
be a “chocolate island.” Gonzalez alleges that Sergeant
Flowers—who is also African-American—made similar
comments. Gonzalez contends that Captain O’Leary transferred a number of Caucasian officers out of District 4, but
transferred almost no African-American officers out of the
District. The City of Milwaukee contends that Gonzalez’s
claims about transfers are factually inaccurate.
Gonzalez further alleges that in District 4, Captain
O’Leary and Sergeant Flowers treated Caucasian officers differently than African-American officers. Specifically, Gonzalez alleges that Caucasian officers were scrutinized more
closely than African-American officers, and that Sergeant
Flowers would “talk down” to Caucasian officers by saying
things like, “what are you doing here at the station?”, “why
aren’t you working?”, and “get out of my station.” Gonzalez
further claims that Caucasian officers were frequently singled out for not completing their reports faster, whereas African-American officers were not. Gonzalez also claims that
Caucasian officers were frequently told to finish their reports
at a later time and to get back on the street, while AfricanAmerican officers were permitted to work on their reports
without comment.
To aid his claim of racial discrimination, Gonzalez refers
to a comparator officer—Officer Truman Dodd—to support
his allegation that he was treated unfairly following the Jan-

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uary 30 incident. Officer Dodd is African-American, also
works in District 4, and was also under the supervision of
Captain O’Leary during the relevant time period. On March
24, 2011, Officer Dodd notified the late shift lieutenant that
he was boarding a plane because his daughter had been in a
school bus accident in Atlanta, and he was going there to be
with her. Officer Dodd informed the late shift lieutenant that
he, therefore, would not be able to make his noon shift.
When Officer Dodd did not report to work, his noon shift
lieutenant called him to find out where he was (apparently
the late shift lieutenant had not conveyed the information),
and Officer Dodd explained the situation. The noon shift
lieutenant advised Officer Dodd that he should have called
again to update the department about his status, but he was
not disciplined. Captain O’Leary determined that Officer
Dodd would not be paid for the day of work that he missed,
and that he would be granted three discretionary days off.
Prior to March 24, Officer Dodd did not have any history of
disciplinary actions.
On November 8, 2011, Gonzalez filed a complaint against
the City of Milwaukee, the Milwaukee Police Department,
and the Milwaukee Board of Fire & Police Commissioners,
alleging claims under Title VII of the Civil Rights Act of
1964, and the Equal Protection Clause, as well as claims under 42 U.S.C. §§ 1981 and 1983. The district court dismissed
both the Milwaukee Police Department and the Milwaukee
Board of Fire & Police Commissioners from the suit in April
2012. After several extensions of the discovery deadline, the
district court set the final discovery deadline for May 30,
2013, and the deadline for dispositive motions for June 15
(written discovery closed earlier on October 15, 2012). On
June 14, 2013, Gonzalez filed a motion to compel discovery

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requesting, among other things, a document that the parties
refer to as a “climate survey” of District 4 (as we will discuss
in detail below, neither party fully explains what is contained in this survey or when it was conducted). In his motion to compel, Gonzalez claimed that he had, earlier in the
discovery process, requested:
Any and all documents that relate to or pertain
to any complaints of discrimination from January 2, 2005 to the present, including Plaintiff’s
complaint of discrimination, against Defendant, including those documents relating to investigations conducted by Defendant into
complaints of discrimination against Defendant.
Pl.’s Mot. to Compel Disc. and Supporting Mem. of Law 18.
At some point after this original request, it seems, Gonzalez
became aware of the District 4 climate survey (although it is
unclear exactly how or when). Referencing this discovery
and his request, Gonzalez stated in his motion to compel:
Plaintiff asked for additional information about
investigations into discrimination. Defendant
acknowledges the existence of an investigation
into discrimination at District 4. However, Defendant now refuses to provide any information about the investigation because “the
request is untimely and does not tie back to
any original discovery demand … .”
Id. at 19. The City responded to Gonzalez’s motion to compel, stating the following about the climate survey:

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On May 8, 2013 (past the written discovery
deadline), Plaintiff’s counsel asked for a copy
of an open discrimination investigation at District 4. While this is the District that Gonzalez
worked in, he incorrectly assumed that this investigation was about a “discrimination complaint.” The request was untimely and does
not tie back to request number 26 because it is
not a “discrimination” complaint, but a “climate survey investigation,” it post-dates Gonzalez’s termination, and he no longer works
there or has participated in “the climate” for
over two years.
Resp. Br. in Opp’n to Pl.’s Mot. to Compel 10.
It is undisputed that Gonzalez first made a specific request for this survey on May 8, 2013, 2 which was past the
deadline for written discovery, but before the deadline for
all other discovery and before the deadline for dispositive
motions. It is also apparent that Gonzalez attempted to procure this survey through an open records request on May 22.
The City of Milwaukee denied this request, citing the fact
that the request involved an open investigation. On July 15,
the City moved for summary judgment on all of Gonzalez’s
claims. On July 30, the district court denied Gonzalez’s motion to compel production of the climate survey, but gave

2

In his opening brief, Gonzalez states that he first became aware of the
climate survey in March 2013. However, Gonzalez clarifies in his reply
brief that this was an error, and that he did not request the survey until
May 2013.

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Gonzalez until September 13, 2013 to take any depositions,
related to the survey or otherwise. The district court subsequently denied the City’s summary judgment motion without prejudice on August 9, 2013, and allowed it to refile its
motion on October 1, 2013. On August 14, 2014, the district
court granted summary judgment in favor of the City on all
of Gonzalez’s claims. Gonzalez appealed the district court’s
summary judgment ruling, as well as the district court’s denial of his motion to compel discovery. At oral argument,
however, Gonzalez conceded that his appeal of the district
court’s summary judgment ruling, on the current record,
lacked merit and abandoned all arguments to the contrary.
(Gonzalez implicitly argues that if we reverse the district
court’s denial of his motion to compel and permit discovery
of the climate survey, the survey will provide him with sufficient information to support his discrimination claims so
as to survive summary judgment.) Thus, we will only address the district court’s denial of Gonzalez’s motion to
compel.
II. Discussion
We review a district court’s decision to deny a motion to
compel for abuse of discretion. James v. Hyatt Regency Chi.,
707 F.3d 775, 784 (7th Cir. 2013) (citing Kalis v. ColgatePalmolive Co., 231 F.3d 1049, 1056 (7th Cir. 2000)). We will
only reverse a district court’s ruling after a clear showing
that the denial of discovery resulted in actual and substantial
prejudice. Id. (citing Packman v. Chi. Tribune Co., 267 F.3d 628,
646 (7th Cir. 2001)).
Gonzalez argues that the district court abused its discretion in denying his motion to compel because “the relevancy
of [the climate survey] is so obvious that there is little need

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to further belabor the matter.” Br. of Pl. Appellant Martin
Gonzalez 18. Gonzalez seems to rest his claim of discrimination on the theory that the environment of District 4 was
“hostile” to non–African Americans, and that this led to a
pattern of Caucasian police officers being scrutinized more
closely and disciplined more severely than AfricanAmerican officers; this environment, Gonzalez claims, ultimately led to his termination. He bolsters this theory by
pointing to statements made by other officers in District 4
echoing similar concerns, as well as comparator evidence
involving Officer Dodd. It would seem, then, that a survey
about the climate or environment of District 4 might further
support Gonzalez’s claim of widespread discriminatory discipline and treatment in District 4.
However, Gonzalez’s request for the climate survey was
made after the close of written discovery. He does not explain the lateness of his request, and the district court did
not abuse its discretion in overruling his contention that the
request was encompassed within his earlier request for documents relating to complaints of discrimination. (We have,
in previous cases, considered the lateness of a discovery request in concluding that the district court did not abuse its
discretion in denying a motion to compel discovery material.
See Packman, 267 F.3d at 647.) Additionally, very little is
known about the discovery that Gonzalez seeks, making it
difficult to analyze the extent to which he was prejudiced by
its non-disclosure, if at all. We do not know, precisely, when
or why this survey was conducted. 3 We do not know wheth3

The only indication regarding the timing of the climate survey is the
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er the survey is still ongoing, or whether it has concluded.
And other than knowing that the survey involves the “climate” of District 4, we know very little about the survey’s
substance. 4 While one could argue that the reason we know
so little about the survey is precisely because the district
court denied Gonzalez’s motion to compel, it is also apparent that Gonzalez neglected to use all available avenues to
find out more specific information about the climate survey,
which may have aided him in his request, or at the very least
his arguments on appeal. For example, Gonzalez could have
taken advantage of the district court’s ruling allowing him to
take any depositions through September 13, 2013 in order to
find out more about the survey and whether it was relevant
to his claims. He did not do so, nor does he explain this lack
of diligence. As a result, we are left to only speculate about
the contents of the climate survey and its potential impact on
Gonzalez’s case. Thus, Gonzalez does not demonstrate how
the district court abused its discretion in denying his motion
to compel, nor does he satisfy the prejudice requirement.

compel that the survey was conducted two years after Gonzalez’s discharge from the department. See Resp. Br. in Opp’n to Pl.’s Mot. to Compel 10.
4

Gonzalez represents that he learned through his open records request
that the survey “was initiated by Sergeant Sebastian Raclaw of the Professional Performance Division [PPD] and pertained to the experiences
of District 4 officers with the supervision and leadership of Captain Jerome O’Leary … . It also reveals the survey pertained to an investigation
of a possible criminal offense or misconduct by O’Leary.” Reply Br. of Pl.
Appellant Martin Gonzalez 4–5.

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Given the lateness of Gonzalez’s request, his lack of diligence in obtaining information about the climate survey, as
well as his inability to show how he was prejudiced by the
district court’s ruling, we find that the district court did not
abuse its discretion in denying Gonzalez’s motion to compel
discovery.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
denial of Gonzalez’s motion to compel discovery.