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7th Circuit: Officer Fired After Controversial Arrest Loses Claim

By Abigail S. Crouse  11/23/2007

11/23/07 3:22 PM

7th Circuit: Officer Fired After Controversial Arrest Loses Claim

By Abigail S. Crouse

A white Milwaukee police officer, who was videotaped shoving and taunting an unarmed black arrestee, was unable to show that he was fired because of his race, according to the 7th U.S. Circuit Court of Appeals .

The officer argued that circumstantial evidence, including the fact that his firing followed media publicity and activism by a local Hispanic and black group, demonstrated that race was a motivating factor in his termination. The appeals court dismissed the officer’s Title VII claim, however, holding that the evidence did not demonstrate that the police chief, who is black, was motivated by race when he made the decision to fire the officer.

Robert Henry was involved in the booking of a black arrestee named Billy Miles. A videotape recording of the booking, which did not include audio, shows that at one point, Miles had both of his hands at his sides when Henry suddenly pushed him in the collarbone area. Shortly thereafter, Henry grabbed Miles near his jaw and shoved him. Several persons then entered the room, handcuffed Miles and led him back to a bench. After Miles had been handcuffed, Henry flexed his arm and patted his bicep while staring at Miles.

A few months later, a local television station aired portions of the videotape of Miles’ booking. That night, Police Chief Arthur Jones requested an internal investigation into Henry’s actions. Approximately one week later, members of the Wisconsin Legislative Black and Hispanic Caucus wrote Jones a letter stating that they would be monitoring the department’s response to Henry’s conduct.

The Milwaukee Police Department Internal Affairs conducted an investigation of the incident and concluded that Henry had violated a department rule on the treatment of prisoners. Ten days later, after reviewing the videotape and reading the investigative report, Jones decided to terminate Henry’s employment.

Henry appealed to the Milwaukee Board of Fire and Police Commissioners and several persons testified on his behalf. The board disagreed with internal affairs’ findings and found that there was no evidence that Henry had acted inappropriately. The board reinstated Henry to his former position.

Henry later sued Jones and the police department claiming employment discrimination.

The court held that Henry could not present any evidence that would allow a reasonable jury to find that race was a motivating factor in his termination. Although Henry presented evidence of incidents of black officers who had engaged in misconduct toward arrestees but were not terminated, the court held that these officers were not similarly situated to Henry because their conduct was either unconfirmed or less serious than Henry’s conduct.

The 7th Circuit also held that the publicity surrounding Henry’s conduct did not establish that he was terminated because of his race. The court reasoned that “politicians routinely respond to bad press on television, but it is not a violation of Title VII to take advantage of a situation to gain political favor.” The court pointed to the fact that Jones had declined to comment on the issue or to make a decision regarding termination until after the internal investigation was complete as evidence that Jones was not motivated by race.

Henry v. Jones , 7th Cir., No. 06-3855 (Nov. 1, 2007).

Professional Pointer: Publicity of racially sensitive allegations of employee misconduct requires a careful response from employers. This case demonstrates the importance of conducting fair and neutral investigations into reports of employee misconduct and waiting until the investigation is complete before making a disciplinary decision.
Abigail S. Crouse is an attorney with the Minneapolis-based law firm of Gray Plant Mooty , the exclusive Minnesota affiliate of the Employment Law Alliance .

Related Resource:

SHRM Investigations Toolkit

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SHRM Online Workplace Law Focus Area

Editor’s Note: This article should not be construed as legal advice.

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