You are on page 1of 69

Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (1 of 69)

No. 17-3216 & 18-1060

IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

SHONDA MARTIN,

Plaintiff-Appellee,
v.

MILWAUKEE COUNTY,
WISCONSIN, Defendant-Appellant.

Appeal from the United States District Court


for the Eastern District of Wisconsin, Milwaukee Division
No. 2:14-cv-00200-JPS—The Hon. J.P. Stadtmueller.

RESPONSE BRIEF OF
PLAINTIFF-APPELLEE SHONDA MARTIN

Arthur Loevy
Jon Loevy
Russell Ainsworth
Roshna Bala Keen
Scott Rauscher
Theresa Kleinhaus
Sam Heppell
LOEVY & LOEVY
311 N. Aberdeen Street, Third Floor
Chicago, Illinois 60607
(312) 243-5900
tess@loevy.com
Case:
Case: 17-3216
17-3216 Document:
Document: 35
7-1 Filed:
Filed:04/12/2018
10/27/2017 Pages:
Pages:69
1 (2(1ofof69)
2)
$33($5$1&( CIRCUIT RULE 26.DISCLOSURE STATEMENT

Appellate Court No: 17-3216

Short Caption: Martin v. Milwaukee

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Plaintiff Shonda Martin

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Loevy & Loevy

Shellow Group

(3) If the party or amicus is a corporation:


i) Identify all its parent corporations, if any; and

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:

Attorney's Signature: s/ Russell Ainsworth Date: 10/27/2017


Attorney's Printed Name: Russell Ainsworth

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No

Address: 311 N. Aberdeen, 3rd Floor, Chicago, IL 60607

Phone Number: 312-243-5900 Fax Number: 312-243-5902

E-Mail Address: russell@loevy.com

rev. 01/ *$
Case:
Case: 17-3216
17-3216 Document:
Document: 35
7-2 Filed:
Filed:04/12/2018
10/27/2017 Pages:
Pages:69
1 (3(2ofof69)
2)

CERTIFICATE OF SERVICE
Certificate of Service When All Case Participants Are CM/ECF Participants

October 27, 2017


I hereby certify that on ___________________, I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using
the CM/ECF system. I certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the CM/ECF system.

s/__________________________________
Russell Ainsworth

CERTIFICATE OF SERVICE
Certificate of Service When Not All Case Participants Are CM/ECF Participants

I hereby certify that on ___________________, I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using
the CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the CM/ECF
system.

I further certify that some of the participants in the case are not CM/ECF users. I have
mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third-party commercial carrier for delivery within 3 calendar days, to the following
non-CM/ECF participants:

counsel / party: address:


_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

s/__________________________________
Case:
Case: 17-3216
17-3216 Document:
Document: 35
8-1 Filed:
Filed:04/12/2018
10/27/2017 Pages:
Pages:69
1 (4(1ofof69)
2)
$33($5$1&( CIRCUIT RULE 26.DISCLOSURE STATEMENT

Appellate Court No: 17-3216

Short Caption: Martin v. Milwaukee

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Plaintiff Shonda Martin

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Loevy & Loevy

Shellow Group

(3) If the party or amicus is a corporation:


i) Identify all its parent corporations, if any; and

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:

Attorney's Signature: s/ Theresa Kleinhaus Date: 10/27/2017


Attorney's Printed Name: Theresa Kleinhaus

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No

Address: 311 N. Aberdeen, 3rd Floor, Chicago, IL 60607

Phone Number: 312-243-5900 Fax Number: 312-243-5902

E-Mail Address: tess@loevy.com

rev. 01/ *$
Case:
Case: 17-3216
17-3216 Document:
Document: 35
8-2
3-2 Filed:
Filed:04/12/2018
10/27/2017 Pages:
Pages:69
1 (5(2ofof69)
2)


CERTIFICATE OF SERVICE
Certificate of Service When All Case Participants Are CM/ECF Participants

October 27, 2017


I hereby certify that on ___________________, I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using
the CM/ECF system. I certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the CM/ECF system.

Theresa Kleinhaus
s/__________________________________

CERTIFICATE OF SERVICE
Certificate of Service When Not All Case Participants Are CM/ECF Participants

I hereby certify that on ___________________, I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using
the CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the CM/ECF
system.

I further certify that some of the participants in the case are not CM/ECF users. I have
mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third-party commercial carrier for delivery within 3 calendar days, to the following
non-CM/ECF participants:

counsel / party: address:


_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

s/__________________________________
Case:
Case: 17-3216
17-3216 Document:
Document: 35
6-1 Filed:
Filed:04/12/2018
10/27/2017 Pages:
Pages:69
1 (6(1ofof69)
2)
$33($5$1&( CIRCUIT RULE 26.DISCLOSURE STATEMENT

Appellate Court No: 17-3216

Short Caption: Martin v. Milwaukee

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Plaintiff Shonda Martin

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Loevy & Loevy

Shellow Group

(3) If the party or amicus is a corporation:


i) Identify all its parent corporations, if any; and

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:

Attorney's Signature: s/ Sam Heppell Date: 10/27/2017


Attorney's Printed Name: Sam Heppell

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No

Address: 311 N. Aberdeen, 3rd Floor, Chicago, IL 60607

Phone Number: 312-243-5900 Fax Number: 312-243-5902

E-Mail Address: sam@loevy.com

rev. 01/ *$
Case:
Case: 17-3216
17-3216 Document:
Document: 35
6-2 Filed:
Filed:04/12/2018
10/27/2017 Pages:
Pages:69
1 (7(2ofof69)
2)

CERTIFICATE OF SERVICE
Certificate of Service When All Case Participants Are CM/ECF Participants

I hereby certify that on ___________________, I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using
the CM/ECF system. I certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the CM/ECF system.

s/__________________________________

CERTIFICATE OF SERVICE
Certificate of Service When Not All Case Participants Are CM/ECF Participants

I hereby certify that on ___________________, I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using
the CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the CM/ECF
system.

I further certify that some of the participants in the case are not CM/ECF users. I have
mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third-party commercial carrier for delivery within 3 calendar days, to the following
non-CM/ECF participants:

counsel / party: address:


_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

s/__________________________________
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (8 of 69)
$33($5$1&( CIRCUIT RULE 26.DISCLOSURE STATEMENT

Appellate Court No: 17-3216

Short Caption: Martin v. City of Milwaukee, et al.

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Plaintiff Shonda Martin

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Loevy & Loevy

The Shellow Group

(3) If the party or amicus is a corporation:


i) Identify all its parent corporations, if any; and

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:

Attorney's Signature: /s/ Jonathan Loevy Date: 4/12/2018


Attorney's Printed Name: Jonathan Loevy

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No

Address: 311 N. Aberdeen, 3rd Floor, Chicago, IL 60607

Phone Number: 312-243-5900 Fax Number: 312-243-5902

E-Mail Address: jon@loevy.com

rev. 01/ *$
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (9 of 69)
$33($5$1&( CIRCUIT RULE 26.DISCLOSURE STATEMENT

Appellate Court No: 17-3216

Short Caption: Martin v. City of Milwaukee, et al.

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Plaintiff Shonda Martin

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Loevy & Loevy

The Shellow Group

(3) If the party or amicus is a corporation:


i) Identify all its parent corporations, if any; and

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:

Attorney's Signature: /s/ Arthur Loevy Date: 4/12/2018


Attorney's Printed Name: Arthur Loevy

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No

Address: 311 N. Aberdeen, 3rd Floor, Chicago, IL 60607

Phone Number: 312-243-5900 Fax Number: 312-243-5902

E-Mail Address: arthur@loevy.com

rev. 01/ *$
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (10 of 69)
$33($5$1&( CIRCUIT RULE 26.DISCLOSURE STATEMENT

Appellate Court No: 17-3216

Short Caption: Martin v. City of Milwaukee, et al.

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED


AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Plaintiff Shonda Martin

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Loevy & Loevy

The Shellow Group

(3) If the party or amicus is a corporation:


i) Identify all its parent corporations, if any; and

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:

Attorney's Signature: /s/ Roshna Bala Keen Date: 4/12/2018


Attorney's Printed Name: Roshna Bala Keen

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No

Address: 311 N. Aberdeen, 3rd Floor, Chicago, IL 60607

Phone Number: 312-243-5900 Fax Number: 312-243-5902

E-Mail Address: roshna@loevy.com

rev. 01/ *$
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (11 of 69)
$33($5$1&( CIRCUIT RULE 26.DISCLOSURE STATEMENT

Appellate Court No: 17-3216

Short Caption: Martin v. City of Milwaukee, et al.

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Plaintiff Shonda Martin

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Loevy & Loevy

The Shellow Group

(3) If the party or amicus is a corporation:


i) Identify all its parent corporations, if any; and

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:

Attorney's Signature: /s/ Scott Rauscher Date: 4/12/2018


Attorney's Printed Name: Scott Rauscher

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No

Address: 311 N. Aberdeen, 3rd Floor, Chicago, IL 60607

Phone Number: 312-243-5900 Fax Number: 312-243-5902

E-Mail Address: scott@loevy.com

rev. 01/ *$
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (12 of 69)

TABLE OF CONTENTS

JURISDICTIONAL STATEMENT ........................................................................... 1

ISSUES PRESENTED ................................................................................................ 1

STATEMENT OF THE CASE......................................................................................1

SUMMMARY OF ARGUMENT ................................................................................. 9

ARGUMENT ............................................................................................................... 11

I. Standard of review .................................................................................. 11

II. The jury reasonably concluded that Thicklen acted within the
scope of his employment as a correctional officer when he
assaulted Ms. Martin. .............................................................................. 12

A. Scope of employment under Wisconsin law .......................................... 12

B. Sexual assault—including sexual assault by law enforcement—may


fall within the scope of employment under Wisconsin law .................. 15

C. Ms. Martin presented sufficient evidence at trial from which the jury
rationally concluded that Thicklen acted within the scope of his
employment ............................................................................................ 19

1. The jury could rationally conclude that Thicklen’s conduct was not
“so extraordinary and disconnected from the type of services
ordinarily contemplated” that it fell outside his scope of
employment. ...................................................................................... 20

a. The evidence at trial on the first scope element ........................ 20

b. Sexual assault as a means of exerting power and control ......... 23

2. On this record, the jury could rationally conclude that Thicklen was
motivated, at least in part, by a desire to serve Milwaukee
County. .............................................................................................. 27

a. The evidence at trial on the third scope element ....................... 28

b. The motivation behind the sexual assault ................................. 30


Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (13 of 69)

D. The County’s arguments misconstrue the factual record and


misapprehend the state of Wisconsin law. ............................................ 31

1. The context and circumstances surrounding the sexual assaults are


relevant to the scope of employment issue. ..................................... 32

2. The jury properly considered and rejected the County’s scope


evidence, and nothing about the County’s training regime and zero
tolerance policy places sexual assault outside scope of employment
as a matter of law............................................................................. 36

3. The jury was entitled to consider whether Thicklen’s role as a


correctional officer made his sexual assault possible when
evaluating the scope issue ................................................................ 39

4. The policy behind Wisconsin’s indemnification statute supports


Plaintiff’s scope of employment argument. ...................................... 40

5. The County’s references to inapposite, non-precedential case law do


not demonstrate that the scope inquiry should have been decided as
a matter of law. ................................................................................. 41

E. Because Wisconsin law is settled, this Court need not certify the
question to the Wisconsin Supreme Court. ........................................... 44

III. The district court’s denial of a new trial was not an abuse of
discretion. .................................................................................................. 45

A. The jury’s verdict was not against the manifest weight of the
evidence .................................................................................................. 45

B. The scope of employment jury instruction stated the law completely


and correctly, and even if it had not, no prejudice resulted ................. 46

C. The district court’s denial of a new trial based on the Ivan Boyd
“evidence” was not an abuse of discretion ............................................. 48

CONCLUSION ........................................................................................................... 50
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (14 of 69)

TABLE OF AUTHORITIES

Cases

Antevski v. Volkswagenwerk Aktiengesellschaft, 4 F.3d 537 (7th Cir. 1993) ............... 50


Arias v. Allegretti, 2008 WL 191185 (N.D. Ill. Jan. 22, 2008) ..................................... 18
Behrendt v. Gulf Underwriters Ins. Co., 318 Wis. 2d 622 (2009) ............................. 34,35
Bell v. City of Milwaukee, 536 F.Supp. 462 (E.D. Wis. 1982) ....................................... 14
Block v. Gomez, 201 Wis. 2d 795 (Ct. App. 1996) ................................................ 13,27,38
Brown v. Argenbright Sec., Inc., 782 A.2d 752 (D.C. 2001) .......................................... 18
Burzlaff v. Thoroughbred Motorsports, Inc., 758 F.3d 841 (7th Cir. 2014) .................. 46
Byrd v. Illinois Dep’t of Pub. Health, 423 F.3d 696 (7th Cir. 2005) .............................. 46
Carney v. White, 843 F. Supp. 462 (E.D. Wis. 1994) ..................................................... 17
City of Memphis v. Roberts, 528 S.W.2d 201 (Tenn. 1975) ........................................... 40
Clarett v. Roberts, 657 F.3d 664 (7th Cir. 2011)............................................................ 46
Desotelle v. Cont’l Cas. Co., 136 Wis. 2d 13 (Ct. App.1986)………………………….passim
Doe v. City of Chicago, 360 F.3d 667 (7th Cir. 2004) .................................................... 18
Doe v. Clavijo, 72 F. Supp. 3d 910 (N.D. Ill. 2014)........................................................ 18
Doe v. Lee, 943 F.Supp. 2d 870 (N.D. Ill. 2013) ............................................................. 18
Doe v. Roe, No. 2013 WL 2421771 (N.D. Ill. Jun. 3, 2013)............................................ 18
Doe v. St. Francis, 834 F.Supp. 2d 889 (E.D. Wis. 2011). ............................................. 38
Doe v. State, 76 A.3d 774 (Del. 2013) ............................................................................. 18
Doe v. Time Warner Cable, 2007 WL 4143226 (E.D. Wis. Nov. 19, 2007) ............... 34,35
Dorsey v. Givens, 209 F. Supp. 2d 850 (N.D. Ill. 2001) ................................................. 26
Emmel v. Coca-Cola Bottling Co., 95 F.3d 627 (7th Cir. 1996) .................................... 11
Estate of Watts v. Heine, 2008 WL 4058032 (E.D. Wis. Aug. 26, 2008) ................. passim
Graham v. Sauke Prairie Police Com’n, 915 F.2d 1085 (7th Cir. 1990) ................ passim
Hibma v. Odegaard, 769 F.2d 1147 (7th Cir. 1985) ............................................... passim
J.K.J. v. Polk Cty. Sheriff’s Dep’t, 2016 WL 6956662 (W.D. Wis. Nov. 28, 2016) ... 42,43
Javier v. City of Milwaukee, 670 F.3d 823 (7th Cir. 2012) .................................... passim
Korntved v. Advanced Healthcare, S.C., 286 Wis. 2d 499 (Ct. App. 2005) ................... 38
Lemons v. City of Milwaukee, 2016 WL 3746571 (E.D. Wis. July 8, 2016) .................. 17
Lola M. v. City of Milwaukee, 2002 WL 234234 (Wis. Ct. App. Feb. 19, 2002) ....... 43,44
Lyon v. Carey, 533 F.2d 649 (D.C. Cir. 1976) ................................................................ 26
Olson v. Connerly, 156 Wis. 2d 488 (1990) ............................................................. passim
Mary M. v. City of Los Angeles, 54 Cal.3d 202 (1991) ................................................... 18
Nealy v. Nelson No. 11-C-541, Dkt. 168 (E.D. Wis. Jan. 6, 2014)................................. 17
Parrish v. Luckie, 963 F.2d 201 (8th Cir. 1992) ............................................................ 26
Perez v. Cty. of Ozaukee, 178 Wis. 2d 591 (Ct. App. 1993) ....................................... 37,45
Rankins v. Howard, 2012 WL 5932029 (E.D. Wis. Nov. 27, 2012) ..................... 17,36,41
S.V. v. Kratz, 2012 WL 5833185 (E.D. Wis. Nov. 16, 2012) ................................ 14,37,42
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (15 of 69)

Stephenson v. Universal Metrics, Inc., 247 Wis. 2d 349 (Ct. App. 2001) ............... passim
Sylvester v. SOS Children’s Villages Illinois, Inc., 453 F.3d 900 (7th Cir. 2006) ........ 28
Tapia v. City of Greenwood, 965 F.2d 336 (7th Cir. 1992) ............................................ 11
Venson v. Altamirano, 749 F.3d 641 (7th Cir. 2014). ............................................... 11,49
Wickens v. Shell Oil Co., 620 F.3d 747 (7th Cir. 2010) ................................................. 49
Willis v. Lepine, 687 F.3d 826 (7th Cir. 2012) ............................................................... 11
Wilson v. City of Chicago, 900 F. Supp. 1015 (N.D. Ill. 1995) ...................................... 24
Statutes

Wis. Stat. § 821.01.......................................................................................................... 44


Wis. Stat. § 940.255........................................................................................................ 26
Rules

Fed. R. Civ. P. 60 .................................................................................................. 11,48,49


Other Authorities

Restatement (Second) of Agency, §236 .....................................................................30


World Health Organization, Guidelines for Medico-Legal Care for Victims of
Sexual Violence (2003).......................................................................................... 25,31
Jan Welch & Fiona Mason, Rape and Sexual Assault, 334 BRIT. MED. J. 1154
(June 2007)............................................................................................................ 25,31
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (16 of 69)

JURISDICTIONAL STATEMENT

The jurisdictional statement contained in the County’s 1 brief, App. Br. at

1-2, is both complete and correct.

ISSUES PRESENTED

1. Whether it was rational for the jury to conclude that a

correctional officer charged with controlling, disciplining, and using force

against detainees acted within the scope of his employment when he sexually

assaulted a detainee on five occasions while on duty at the jail.

2. Whether the jury’s verdict that the correctional officer acted

within the scope of his employment was against the manifest weight of the

evidence.

3. Whether the district court abused its discretion when it denied

the County’s motion for a new trial based on a challenge to the scope of

employment instruction blessed by this Court in Javier v. City of Milwaukee.

4. Whether the district court abused its discretion when it denied the

County’s motion for a new trial based on a post-trial affidavit from a witness

that was known to all parties pre-trial.

STATEMENT OF THE CASE

Shortly after arriving at the Milwaukee County Jail, 19-year-old

Shonda Martin learned she was pregnant. Tr. 47. 2 She was fearful, but

excited. Id. However, her excitement soon turned to horror when Milwaukee

1 Plaintiff will refer to Defendant-Appellant Milwaukee County as “the County,”


and will cite to its brief as App. Br.
2 The trial transcript is in the record at R.264-66 and is consecutively paginated.

Plaintiff cites to pages of the transcript as Tr. [page number].


1
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (17 of 69)

County Jail officer Xavier Thicklen raped her five times—three times during

her pregnancy, once within days of giving birth, and once a short few weeks

after her daughter was born. Id. at 48:1-5; 48:18-20, 49:14-18, 50:16-51:1,

51:5-7, 51:20-24, 54:6-8, 56:12-17, 57:24-58:1, 58:20-23.

Ms. Martin was in trouble at the jail often and complained about the

jail conditions frequently. Id. at 114:11-115:19. She had six disciplinary

incidents in her first two months at the jail, was sent to “max custody” more

than once, and filed 15 separate grievances about the conditions. Id. She was

a detainee who asserted herself at the jail. Id.

Thicklen was a guard assigned to the jail, and specifically assigned to

guard Plaintiff. Correctional officers like Thicklen controlled all detainees’

movements and activities at the jail. Id. at 52:13-53:4; 174:1-7. For example,

correctional officers controlled when detainees could leave their cells, wash,

eat, use the phone, and whether and when they could see visitors. Id. at 52:13-

53:4. They were responsible, at all times while on duty, to prevent detainees

from escaping, from possessing contraband, and from violating jail rules. Id.

at 220:18-221:3. To carry out these duties, guards were empowered to use

force against detainees, give commands to detainees, and control all aspects of

their lives. Id. It was under these auspices, while empowered and required to

control and supervise Ms. Martin, that Thicklen sexually assaulted her. Id. at

218:13-220:2, 220:14-25, 174:8-9, 174:17-175:1.

Thicklen did not appear for trial. Evidence of his intent, therefore, was

presented to the jury by way of inferences based on the surrounding facts.

2
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (18 of 69)

The first sexual assault: Vaginal penetration in a jail clinic cell

During the first sexual assault, Thicklen was working “medical

security” and escorted Ms. Martin from her housing pod to the jail clinic. Id.

at 48:1-5; 48:18-20. Ms. Martin could not go to a medical appointment by

herself because all detainees were constantly controlled by a correctional

officer and could not move throughout the jail unaccompanied. Id. at 48:9-14.

While Ms. Martin was in a cell, Thicklen approached her and put his hand

down Ms. Martin’s pants, touching her vagina. Id. at 49:14-18. Ms. Martin

was “very shocked.” Id. at 49:15-21.

The second sexual assault:


Anal rape in an attorney booth while five months pregnant

During the second sexual assault, Ms. Martin was brought from her

housing pod into a hallway where Thicklen was stationed. Id. at 50:16-51:1,

51:5-7. Thicklen then told Ms. Martin to go into an attorney booth and she

complied. Id. at 51:12-16. Thicklen then told her “we’re fuckin,’” told her they

would be having anal intercourse, and proceeded to rape her. Id. at 51:20-24.

The anal rape left Ms. Martin “in pain, belittled, [and feeling] dirty.” Id.

at 52:3-4. Ms. Martin wanted to get away from Thicklen, but because of his job

at the jail, she could not escape him. Id. at 53:5-10.

The third sexual assault: Vaginal rape while eight months pregnant

When Ms. Martin was nearly eight months pregnant and feeling sick,

Thicklen made her climb onto a table and vaginally raped her until she bled.

Id. at 54:6-8, 56:12-17, 57:24-58:1, 58:20-23. At that time, Thicklen was

working as a “floor control” officer—controlling the doors of a particular jail

3
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (19 of 69)

floor, as well as access to the hallways of that floor, the elevator, and attorney

booths. Id. at 53:19-54:2. By that point in her pregnancy, Ms. Martin was

feeling “fat,” “sick” and “emotionally drained.” Id. at 54:8-9. She felt she could

not say no to Thicklen’s demands because of his role at the jail. Id. at 57:10-

15. Thicklen emphasized to Ms. Martin that he was wearing gray, the color of

officers’ uniforms, and she was in blue, the color of detainee uniforms; Ms.

Martin took this to mean that he was demonstrating power and authority over

her. Id. at 54:21-55:4. He ordered Ms. Martin to get up on the table and

remove her clothing. Id. at 56:12-13, 57:20-22. He then violently raped her,

causing her to bleed. Id. at 57:23-58:1. While Thicklen was raping Ms. Martin

she was scared of what could happen to her and her child. Id. at 58:6-8. As a

result of the violent rape, Ms. Martin began bleeding from her vagina and was

hospitalized to treat her pre-term labor symptoms. Id. at 58:10-59:4.

Ms. Martin was aware that Thicklen could discipline her at will, up to

and including locking her in her cell for 23 hours per day and requiring that

she eat nutraloaf, a concoction of ground up food that Ms. Martin feared would

be inadequate during pregnancy. Id. at 55:19-56:4, 86:3-14.

The fourth sexual assault: Four days after giving birth

Four days after giving birth to her daughter, Ms. Martin was housed in

the jail infirmary where Thicklen was working. Id. at 77:11-18. Ms. Martin

was “exhausted,” “in pain,” “sick,” and suffering from a fever of 106 degrees.

Id. at 78:1-2, 79:3-4. Thicklen was working as the infirmary guard, and was

responsible for “everything” in the infirmary. Id. at 78:14-17. He let nurses in

4
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (20 of 69)

and out of the infirmary and determined when detainees were allowed in and

out of their cells. Id. at 78:14-17.

Ms. Martin was separated from her baby shortly after her birth, and

therefore could not nurse. As a result, her breasts were painfully swollen; to

reduce the swelling and ease her pain, a nurse had prescribed warm

compresses. Id. at 79:12-17. As a detainee, Ms. Martin was not permitted to

warm the compress in the microwave herself. Id. at 79:4-8. Instead, Ms.

Martin had to ask, Thicklen, her rapist, to warm the compress for her. Id. at

79:5-8. There was no other officer she could ask. Id. at 79:18-20. After Ms.

Martin handed Thicklen the compress, he instructed her to go into her cell. Id.

at 79:10-11. Thicklen then came into the cell and ordered her onto her knees

to perform oral sex. Id. at 79:21-80:2. She complied with his order. Id.

The fourth assault left Ms. Martin “violated[,] . . . belittled, . . . sad[,] . .

. angry, and . . . sick.” Id. at 81:8-9. She did not feel she could stop Thicklen

and she was forced to see him continuously in the infirmary that day and the

following day. Id. at 81:10-11, 20-23.

The fifth sexual assault: Six weeks after giving birth

Six weeks after Ms. Martin gave birth, Thicklen again forced her to

perform oral sex in the jail clinic holding cell. Id. at 84:18-19. At that time,

Thicklen was “responsible for going to collect detainees from their housing

unit, bringing them to the clinic, waiting [until] after their appointment and

then taking them back [to their housing units].” Id. at 83:4-9. Ms. Martin had

no option to resist Thicklen’s orders when he told her to go to the medical

5
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (21 of 69)

clinic. Id. at 83:10-12. Thicklen placed Ms. Martin in a holding cell and

ordered her to get on her knees and perform oral sex. Id. at 84:15-19. She

complied with his order. Id. at 85:1-2. She described the psychological torture

of wondering, “is this ever going to stop? Am I ever going to get away from

him?” Id. at 85:3-6. She had no hope of avoiding her rapist because she lived

at the jail and he worked there. Id. at 85:21-22, 87:4-6.

Ms. Martin reports the sexual assaults

After the fifth assault, Ms. Martin began to fear that Officer Thicklen

had given her a sexually transmitted disease. Id. at 87:18-19. She was

alarmed at her physical symptoms and believed she may have given her

newborn daughter a venereal disease; she feared for her daughter’s life. Id. at

87:18-21. As a result, she overcame her fear of speaking out against a guard

who controlled all aspects of her life and reported the rapes. Id. at 87:17-88:4.

Aftermath of the rapes

As a result of the five sexual assaults, Ms. Martin suffered nightmares,

insomnia, weight fluctuations, sadness, and depression. Id. at 88:16-90:2.

After the rapes, she frequently burst into tears, and feared falling asleep

because when she closed her eyes she would see Thicklen and would have

nightmares about Thicklen harming her. Id. at 88:16-89:8. Most painfully, Ms.

Martin blamed herself for being raped and felt she had “let her daughter

down” because she was raped while pregnant. Id. at 90:19-91:10. The five

sexual assaults have continued to devastate her. Id. at 91:14-16.

6
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (22 of 69)

Duties of correctional officers at the Jail

Correctional officers at Milwaukee County Jail are authorized to use

force against detainees. Id. at 220:14-17. Correctional officers have authority

to discipline detainees, such as locking a detainee in her cell for 23 hours per

day. Id. at 174:8-9, 174:17-175:1. Correctional officers are required to control

the movements of detainees so that they do not escape. Id. at 220:22-23.

Correctional officers are required to be present and watch over the detainees

at all times. Id. at 220:19-221:7.

Correctional officers are required to make sure the detainees go to

particular destinations within the jail and to “escort” them to those locations,

such as the clinic, the infirmary, or the attorney booth. Id. at 219:2-20. If an

officer orders a detainee to go to a particular location, the detainee has no

choice but to comply. Id. at 219:21-220:2. Correctional officers are trained that

they have discretion in how to fulfill their duties. Id. at 325:6-9.

Jury finding on indemnification

Ms. Martin brought suit alleging that Thicklen violated her

constitutional rights when he committed the sexual assaults, and that he

acted within the scope of his employment when he did so. The indemnification

claim read as follows: “Claim Number 2. Indemnification against the County

of Milwaukee[.] . . . Was Xavier D. Thicklen acting within the scope of his

employment for the County of Milwaukee when he violated Shonda Martin’s

constitutional rights?” R. 259 at 3. The jury answered this question “Yes.” Id.

7
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (23 of 69)

Ivan Boyd seeks $40,000 to state that


Plaintiff’s claims against Thicklen were fabricated

After trial, Plaintiff’s ex-boyfriend Ivan Boyd requested that the

County pay him $40,000 for a sworn statement (and made a similar offer to

make a deal to Plaintiff’s counsel, see R. 313-6) alleging that he and Ms.

Martin somehow framed Thicklen for sexual assault with the help of two

unwitting Milwaukee jail guards. R. 300, 301-6. According to Boyd, this plan

was hatched by means of shouting back and forth with Martin through an air

vent connecting their adjacent cells, aided by a now-deceased third-party who

supposedly paid-off Thicklen. R. 300. Boyd claims that there were letters

documenting the scheme, but he says those are now lost. Id.

Ivan Boyd has been known to the County—and known to be claiming to

have information that would exonerate Thicklen—since at least October 2014

when the County first investigated Ms. Martin’s complaint against Thicklen.

(R. 313-1, 313-2 at 86:2-23). The County then included Boyd on its witness list

(R. 313-3 & 313-4). The County chose not to depose Boyd or call him at trial.

8
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (24 of 69)

SUMMARY OF ARGUMENT

The County granted Thicklen great authority and discretion to control

all aspects of Ms. Martin’s movement within the Jail, to discipline Ms. Martin,

and to use force against her. The jury inferred from the evidence that the

sexual assaults he perpetrated on Ms. Martin, horrific though they were,

nonetheless constituted acts within the scope of Thicklen’s employment. That

finding was both rational and consistent with Wisconsin law.

Under Wisconsin law, there is no categorical bar to sexual assault

falling within the scope of one’s employment. See Olson v. Connerly, 156 Wis.

2d 488, 494-496, 502 (1990) (whether defendant physician’s sexual assault fell

within the scope of his employment was a question for the jury); Desotelle v.

Cont’l Cas. Co., 136 Wis. 2d 13, 27 (Ct. App. 1986), abrogated on other grounds

by Kruckenberg v. Harvey, 279 Wis. 2d 520 (2005) (“[W]whether [the deputy]

was acting in the scope of his employment when he [sexually assaulted the

plaintiff] was an issue of material fact.”); see also Graham v. Sauke Prairie

Police Com’n, 915 F.2d 1085, 1094-95 (7th Cir. 1990) (under Desotelle and

Olson, question whether sexual assault is within scope of employment is one

for the jury in Wisconsin). Wisconsin courts recognize that determining scope

of employment is a fact-intensive question based on the work assigned and the

context in which it is performed. Where, as here, there is no direct evidence of

the employee’s intent, a jury is required to infer intent based on the

circumstances in which the assault occurred. Desotelle, 136 Wis. 2d at 28.

9
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (25 of 69)

That Thicklen’s abhorrent misconduct was prohibited and illegal is

relevant, but does not control the outcome here. Javier v. City of Milwaukee,

670 F.3d 823, 829 (7th Cir. 2012) (in Wisconsin, an employee can be acting

“within the scope of employment even if [he] acts intentionally or criminally”).

Certainly, there was evidence in the record that pointed in the County’s favor,

and the jury could have drawn other inferences and rationally concluded that

Thicklen was acting outside the scope of his employment. But the jury was

entitled to find that Thicklen’s use of force against Plaintiff through sexual

violence was intertwined with his duties as a jail guard such that it was not

“so extraordinary and disconnected from the type of services ordinarily

contemplated” by his job duties, see Desotelle, 136 Wis. 2d at 28, and that the

circumstantial evidence established that he was motivated, “at least in part,

by a purpose to serve [his] employer,” Olson, 156 Wis. 2d at 500.

An impartial jury found that Thicklen acted within the scope of his

employment. The jury’s finding was rational, rooted in the evidence, and just.

There is no basis in law or fact to disturb it on appeal; none of the County’s

arguments are availing.

10
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (26 of 69)

ARGUMENT

I. Standard of review

This Court reviews the denial of a motion for judgment as a matter of

law under Federal Rule of Civil Procedure 50 de novo. Emmel v. Coca-Cola

Bottling Co., 95 F.3d 627, 29 (7th Cir. 1996). The Court limits its inquiry to

“whether the evidence presented, combined with all reasonable inferences

permissibly drawn therefrom, is sufficient to support the verdict when viewed

in the light most favorable to the party against whom the motion is

directed.” Tapia v. City of Greenwood, 965 F.2d 336, 338 (7th Cir. 1992). This

Court will overturn a judgment for the plaintiff only if it concludes that “no

rational jury could have found for the plaintiff.” Emmel, 95 F.3d at 630.

This Court reviews a denial of a motion for a new trial under Federal

Rule of Civil Procedure 59 for an abuse of discretion. Venson v. Altamirano,

749 F.3d 641, 656 (7th Cir. 2014). A new trial is only appropriate if the jury’s

verdict is against the manifest weight of the evidence or if the trial was in

some way unfair to the moving party. Id.

This Court reviews a district court’s denial of a motion for a new trial

under Federal Rule of Civil Procedure 60 for an abuse of discretion. Willis v.

Lepine, 687 F.3d 826, 833 (7th Cir. 2012). A district court abuses its discretion

under Rule 60 only if “no reasonable person could agree with the district

court’s decision.” Id.

11
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (27 of 69)

II. The jury reasonably concluded that Thicklen acted within the
scope of his employment as a correctional officer when he
assaulted Ms. Martin.

Well-settled Wisconsin law requires the scope of employment question

to proceed to the jury where disputes of fact exist. In this case, the jury

reasonably resolved those disputes of fact in Plaintiff’s favor because

Thicklen’s physical assaults were not disconnected from his authority to use

force against detainees at the jail and because, based on the circumstantial

evidence surrounding the assaults, the attacks were motivated at least in part

by a desire to serve the County. The jury verdict should stand.

A. Scope of employment under Wisconsin law

In order to prevail on her indemnification claim against the County,

pursuant to Section 895.46 of the Wisconsin Statutes, Plaintiff had to convince

the jury that Thicklen acted within the scope of his employment when he

assaulted Ms. Martin. When interpreting the extent of this indemnification

provision, the Wisconsin Supreme Court has “uniformly followed a broad

interpretation,” Olson, 156 Wis. 2d at 500, n.12 , which requires recognizing

that the scope of employment concept has an expansive reach.

Under Wisconsin law, the jury could find Thicklen acted within the

scope of his employment if it credited sufficient evidence to establish that his

conduct:

(1) was not “so extraordinary and disconnected from the type of services

ordinarily contemplated” by his job duties, see Desotelle, 136 Wis. 2d at

28;

12
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (28 of 69)

(2) “occur[red] substantially within the authorized time and space

limits,”see Olson, 156 Wis. 2d at 499, n.10 (1990); and

(3) was motivated, “at least in part, by a purpose to serve [his]

employer,” id. at 500.

The County does not challenge the evidence on authorized time and space

limits, but argues Plaintiff failed to present legally sufficient evidence on the

first and third elements. 3

“Normally, the scope-of-employment issue is presented to the jury

because it entails factual questions on an employee’s intent and purpose,” and

“for a court to remove this question from the jury’s consideration and to rule

as a matter of law that an employee’s conduct fell outside the scope of

employment, the evidence presented must support only that conclusion.”

Block v. Gomez, 201 Wis. 2d 795, 804-05 (Ct. App. 1996) (emphasis added). See

also Stephenson v. Universal Metrics, Inc., 247 Wis. 2d 349, 361 (Ct. App.

3The County argues that the concept of “good faith” is incorporated into the
concept of scope of employment under Wisconsin law. App. Br. at 19. That is incorrect. As
this Court has previously explained,

[i]n 1973, the [Wisconsin] legislature deleted the requirement that a public officer
or employee act in good faith in order to be indemnified. In place of the good faith
requirement, the statute now requires an employee or public official to act ‘within
the scope of employment.’ The statute’s good faith requirement made it difficult,
but not impossible, for an employee who committed an intentional tort to obtain
indemnity. . . . Now an employee can act without good faith and still have acted
within the scope of employment. . . . Thus, by changing the good faith requirement
to a scope of employment requirement, the Wisconsin legislature has evidenced an
intent to expand the indemnity statute to cover more intentional tort actions; the
legislature has not evidenced an intent to eliminate intentional tort actions from
the coverage of the indemnity statute.

Graham, 915 F.2d at 1092 (internal citations omitted). Accordingly, whether Thicklen’s
actions were in good faith is entirely irrelevant to the analysis here.
13
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (29 of 69)

2001) (“[W]hether an employee acts within the scope of his or her employment

is generally a fact issue to be decided by a jury” and “a question of intent can

rarely be resolved . . . as a matter of law.”); S.V. v. Kratz, No. 10-C-0919, 2012

WL 5833185, at *5 (E.D. Wis. Nov. 16, 2012) (acknowledging that “[i]f the acts

alleged are unclear or can be reasonably viewed as furthering a purpose other

than the employee’s own sexual desires, summary judgment would be

inappropriate”).

An employee may be acting within the scope of employment even when

misusing or abusing his authority. Hibma v. Odegaard, 769 F.2d 1147, 1153

(7th Cir. 1985) (a defendant’s actions may be within the scope of employment

even if some of the actions were for his own benefit and others intended to

carry out his employer’s objectives through improper means) (citing Bell v.

City of Milwaukee, 536 F.Supp. 462 (E.D. Wis. 1982)).

In order for the conduct to be “actuated by a purpose to serve the

employer,” the employee need only be motivated in the slightest degree by a

desire to serve the employer. See Olson, 156 W. 2d 499 (holding that, while

“[t]here is no requirement that serving the employer must be the employee’s

only purpose or even the employee’s primary purpose,” conduct will fall

outside the scope of employment “if it is motivated entirely by the employee’s

own purposes”) (emphasis added). Where, as in this case, no direct evidence of

intent is available, the jury must make inferences from the circumstantial

evidence. Desotelle, 136 Wis. 2d at 28 (“The question as to whether

[defendant] was acting within the scope of his employment must be

14
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (30 of 69)

determined by examining the inferences arising from the surrounding

evidence because no direct evidence on this issue is reflected by the record.”).

B. Sexual assault—including sexual assault by law


enforcement—may fall within the scope of employment under
Wisconsin law.

Wisconsin case law recognizes that sexual assault may fall within the

scope of employment. In Olson v. Connerly, a case involving allegations that a

physician had engaged in sexual misconduct with a patient, the Supreme

Court of Wisconsin upheld the jury’s authority to resolve whether the

physician was acting within the scope of his employment. 156 Wis. 2d at 494-

496, 502 (holding that the trial court erred when it set aside the jury’s scope

verdict, affirming that it was proper to submit to the jury the question of

whether defendant physician’s sexual assault fell within the scope of his

employment, rather than deciding the issue as a matter of law).

In particular, Wisconsin law also recognizes that sexual assault

committed by a law enforcement officer may fall within the scope of

employment and therefore should be left for a jury to determine. See Desotelle,

136 Wis. 2d at 27-28. In Desotelle, a sheriff’s deputy, purportedly investigating

underage drinking, placed a woman in his squad car where he sexually

assaulted her. Id. at 18. The woman sued for false imprisonment, and a jury

was asked to determine whether the deputy was acting within the scope of his

employment. Id. at 18-20. Notably, the court in Desotelle rejected the

argument that it should overturn the jury’s finding and rule on scope of

employment as a matter of law, noting the “binding” authority from the

15
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (31 of 69)

Wisconsin Supreme Court that “whether [the deputy] was acting in the scope

of his employment when he [assaulted the plaintiff] was an issue of material

fact” that must be resolved by the factfinder. Id. at 27. The court explained

that “the questions as to whether [the deputy] was acting within the scope of

his employment must be determined by examining the inferences arising from

the surrounding evidence because no direct evidence on this issue is reflected

by the record.” Id. at 28. Accordingly, under Wisconsin law, whether sexual

assault is within the scope of employment is a context-specific question, based

on inferences drawn from the circumstances, which necessarily require a

factfinder to decide.

In Graham, this Court aptly described the import of Desotelle and its

firm guidance that scope of employment questions, even in sexual assault

cases, are properly submitted to the jury:

The undisputed facts of Desotelle . . . permit inferences leading to


opposite, but reasonable conclusions. A jury could reasonably
conclude that the deputy’s “investigation” of underage drinking was a
mere pretext to further his own objective of sexual gratification and
thus, the sexual assault was wholly disconnected from the
performance of his ordinary duties. Alternatively, a jury could
reasonably conclude that the deputy’s investigation of underage
drinking was an activity for which he was hired and the sexual
assault was made possibly only by virtue of his status as a police
officer.

915 F.2d at 1094-95. Tellingly, the County completely ignores this highly

relevant Seventh Circuit precedent: Desotelle appears nowhere in the

County’s brief, and its only citation to Graham is on the subsidiary (and

undisputed) point that the color of law analysis is not coterminous with scope

of employment. App. Br. at 45.


16
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (32 of 69)

Numerous federal courts interpreting Wisconsin law have likewise held

that sexual assault may be within scope of employment, including assaults by

law enforcement officers. See Lemons v. City of Milwaukee, No. 13-C-0331,

2016 WL 3746571, at *24 (E.D. Wis. July 8, 2016) (“That rape is not a

legitimate law enforcement goal does not prevent an officer’s act of rape from

falling within his scope of employment.”); Carney v. White, 843 F. Supp. 462,

480 (E.D. Wis. 1994) (fact issue on scope of employment where police officer

allegedly committed sexual assault); Rankins v. Howard, No. 11-CV-1153,

2012 WL 5932029, at *3 (E.D. Wis. Nov. 27, 2012) (denying summary

judgment on indemnification in case alleging sexual assault by correctional

officer); Estate of Watts v. Heine, No. 7-CV-644, 2008 WL 4058032, at *4 (E.D.

Wis. Aug. 26, 2008) (in case alleging sexual assault by correctional officer, “[a]

reasonable trier of fact could find that [the officer’s] sexual misconduct was

not wholly disconnected from the scope of his employment”); Nealy v. Nelson,

No. 11-C-541, Dkt. No. 168 at 13 (E.D. Wis. Jan. 6, 2014) (denying summary

judgment on scope of employment issue in case involving alleged sexual

assault by plaintiff’s social worker).

These cases applying Wisconsin law fall squarely within the pattern of

courts in this Circuit and across the Country which have concluded that

sexual assault by law enforcement officers may fall within the scope of their

employment, because law enforcement officers are uniquely charged with

exercising force and control over civilians in a manner unlike any other type of

employee in our society. As this Court has explained,

17
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (33 of 69)

[i]t is not that being a police officer creates access that facilitates the
commission of intentional torts. That is true of many employments. A
meter reader gains access to homes by virtue of his employment by
the electric company, but if he steals something from the home the
theft is not deemed to be within the scope of his employment. The
difference between him and other intentional tortfeasors is slight.
The situation of a police officer, however, is significantly different
from that of a meter reader. The officer is armed, has authority to
arrest that is considerably broader than the authority of a private
person to make a “citizen’s arrest,” has access to all sorts of personal
information, is an authority figure trained to develop and project an
intimidating aura, and may seem to be above the law (“I am 911”)”.

Doe v. City of Chicago, 360 F.3d 667, 671 (7th Cir. 2004) (internal citations

omitted). See also Mary M. v. City of Los Angeles, 54 Cal.3d 202 (1991) (“Police

officers occupy a unique position of trust in our society. They are responsible

for enforcing the law and protecting society from criminal acts. They are given

the authority to detain and to arrest and, when necessary, to use deadly force.

As visible symbols of that formidable power, an officer is furnished a

distinctively marked car, a uniform, a badge, and a gun.”); Doe v. Clavijo, 72

F. Supp. 3d 910, 915 (N.D. Ill. 2014) (noting the distinct nature of a police

officer’s duties and declining to find that sexual assault by an on-duty police

officer fell outside his scope of employment as a matter of law); Doe v. Roe, No.

12 C 9213, 2013 WL 2421771, at *3-*5 (N.D. Ill. Jun. 3, 2013) (a reasonable

person could conclude that the officer’s sexual assault was within the scope of

his employment); Doe v. Lee, 943 F.Supp.2d 870, 880 (N.D. Ill. 2013) (whether

sexual assault by police officer was within scope of employment was a jury

question); Arias v. Allegretti, No. 05 C 5940, 2008 WL 191185, at *5-*6 (N.D.

Ill. Jan. 22, 2008) (same). Doe v. State, 76 A.3d 774, 777 (Del. 2013) (same);

Brown v. Argenbright Sec., Inc., 782 A.2d 752, 758-59 (D.C. 2001) (“While it is
18
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (34 of 69)

probable that the vast majority of sexual assaults arise from purely personal

motives, it is nevertheless possible that an employee’s conduct may amount to

a sexual assault and still be ‘actuated, at least in part, by a desire to serve the

employer’s interest.’”) (emphasis in original).

Courts across the country—including the Wisconsin Court of Appeals

and this Court—have held for years that a jury can properly find sexual

assault by a law enforcement officer to be within the scope of employment.

And if anything, the role of a police officer contemplated in those cases

involves less authority to control bodily movements and use force against

others than that of a correctional officer. The jury in this case simply applied

the same reasoning as the courts, to a situation where even greater use of

force is contemplated as part of the job duties, and found that Thicklen’s

sexual assault was within the scope of his employment. In light of this

precedent, this was an appropriate matter for the jury’s consideration and its

verdict should stand.

C. Ms. Martin presented sufficient evidence at trial from which


the jury rationally concluded that Thicklen acted within the
scope of his employment.

In considering the scope of employment question, the jury received

evidence that Thicklen’s job was to control Ms. Martin’s bodily movements,

use force against her as he deemed fit, discipline her, and control her daily

activities. The jury also learned that Ms. Martin was an assertive prisoner

who spoke her mind and had been frequently disciplined. Likewise, the jury

heard that Thicklen made direct reference to his role as a jail guard and his

19
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (35 of 69)

authority over Ms. Martin at the time that he assaulted her, making it more

likely that he considered the assaults part of his responsibility to control and

subdue her. Based on this evidence, the jury reasonably concluded that

Thicklen acted in the scope of his employment.

1. The jury could rationally conclude that Thicklen’s


conduct was not “so extraordinary and disconnected
from the type of services ordinarily contemplated” that
it fell outside the scope of his employment.

In order to sustain the verdict on the first element of the scope of

employment test, Ms. Martin need only point to evidence adduced at trial that

would permit a reasonable jury to infer that, at the time Thicklen sexually

assaulted her, his conduct was not “so extraordinary and disconnected from

the type of services ordinarily contemplated” by his job duties, Desotelle, 136

Wis. 2d at 28, even if he acted in a manner that grossly abused his authority

or even acted criminally, Hibma, 769 F.2d at 1153; Javier, 670 F.3d at 829.

a. The evidence at trial on the first scope element

The jury heard extensive evidence at trial about Thicklen’s job duties

and powers as a correctional officer at the Milwaukee County Jail, much of

which was uncontested and supplied by witnesses under the County’s control.

That evidence established that correctional officers like Thicklen:

-were issued a uniform and equipped with a Taser, Tr. 55:9-12, 175:8-
20;
-were required to be physically present near the detainees to watch over
them and prevent their escape, id. at 220:18-221:7;
-were required to be physically present near the detainees to ensure
they did not access contraband, id.;
-were required to be physically present near the detainees to control
their behavior and ensure their compliance with jail rules, id.;
20
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (36 of 69)

-were responsible for controlling detainees’ movement within the jail,


id. at 52:13-19, 173:17-25, 219:2-220:2;
-had control over detainees’ daily hygiene, id. at 52:20-53:4;
-had control over detainees’ meal times, id.;
-had control over when detainees were let out of their cells, id.;
-had control over detainees’ access to the telephone, id.;
-had control over whether and when detainees were permited to see
visitors, id.;
-had authority to give commands to detainees, which detainees were
not free to disobey, id. at, 218:13-219:1;
-were empowered to issue immediate discipline to detainees, id. at
174:8-175:1;
-were able to report detainees for long-term discipline, including placing
them on “max status” during which they would be confined to their cells
for 23 hours per day, restrained in handcuffs during the one hour they
were let out, and forced to eat Nutraloaf (a “terrible” food like “dog
food”), id. at 55:9-56:1, 86:9-14, 174:10-16, 175:2-7; and
-were authorized to use force on detainees, including making violent
physical contact with a detainee’s body without her consent, id. at
220:10-17.

This evidence, and the reasonable inferences available from it, allowed the

jury to conclude that a correctional officer’s job duties gave him extensive

control over every aspect of a detainee’s activities, including where she went

in the jail and what she did when she got there. Officers exercised that control

by giving commands to detainees, and were empowered to issue discipline as a

means of enforcing obedience to their commands. An officer’s control over a

detainee was ultimately backed up by the threat of force if the detainee was

non-compliant or acted out.

The jury also heard detailed evidence that during each of the five

assaults, Thicklen acted consistently with his wide-ranging authority as a

correctional officer—albeit in a way that unquestionably abused that

21
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (37 of 69)

authority. During these assaults, Thicklen:

-was on duty in his role as a correctional officer, wearing his County-


issued uniform and equipped with a Taser, id. at 55:9-13, 86:15-21;
-in his capacity as floor control officer, clinic officer, and infirmary
officer, directed Ms. Martin to and required her to remain in the parts
of the jail where he assaulted her, id. at 47:24-48:14, 50:16-51:7, 53:11-
54:2, 78:8-20, 82:25-83:12, 176:14-177:25;
-in his capacity as infirmary officer, used his control over Ms. Martin’s
medical care and his access to her infirmary cell to perpetrate one of the
assaults, id. at 78:13-20, 79:2-80:3;
-remained in close physical proximity to Ms. Martin and exercised strict
control over her behavior, id. at 54:14-57:12, 79:21-81:5, 84:12-19;
-used his authority as a correctional officer to issue commands that Ms.
Martin was required to submit to, including directing where and how
he required her to place her body and what sexual acts he required her
to perform, id.;
-used his authority to impose discipline on Ms. Martin to secure
compliance with these commands, id.;
-made direct reference to the authority that he wielded over Ms. Martin
when she tried to resist his assaults, telling her “I’m in gray and you’re
in blue”—a reference to the colors of his guard uniform and her jail
clothing—which she understood to mean that Thicklen was telling her
that “he’s in authority” and “he has power over me,” id. at 54:15-55:4;
and
-repeatedly used force against Ms. Martin, making violent physical
contact with her body without her consent, including one assault that
was so violent he dislodged her mucus plug making her bleed, id. at
49:12-21, 51:20-52:7, 57:10-58:23, 79:21-80:3, 84:16-85:2.

In short, there was ample evidence from which the jury could, and did,

reasonably conclude that Thicklen’s conduct when he assaulted Ms. Martin

was not “so extraordinary and disconnected from the type of services

ordinarily contemplated” by his job duties, Desotelle, 136 Wis. 2d at 28—and

that his actions, although a shocking misuse of the authority conferred upon

him as a County employee, nonetheless represented an exercise of that

authority such that his actions fell within the scope of his employment,
22
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (38 of 69)

Hibma, 769 F.2d at 1153. 4

b. Sexual assault as a means of exerting power and control

The County fails to acknowledge this extensive evidence establishing

that a correctional officer’s duties involved guarding detainees and preventing

their escape, controlling their movements and behavior, issuing commands,

and compelling compliance with those commands and with jail rules by

wielding the threat of discipline and ultimately the threat of force. Indeed, in

their brief they boldly claim that Plaintiff “introduced no evidence to establish

that Thicklen’s actions were within the scope of his employment, other than

that the assaults occurred within the Jail while Thicklen was on duty.” App.

Br. at 49. The litany of evidence listed above, combined with that listed below

on the third “intent” element, puts that misperception swiftly to rest.

Instead of acknowledging the true state of the trial record on this point,

the County claims that Thicklen’s duties were simply to “keep detainees safe

and secure” and that sexual assault has nothing to do with detainee safety. Id.

at 33. However, the jury was entitled to reject the County’s assertion that the

jail was a caring place where the guards’ primary concern was the safety of

4 The County argues that merely engaging in acts that are similar to the
employee’s duties will not place the conduct within the scope of employment if “the
objective circumstances do not support a reasonable inference that the employee took the
actions for the employer’s benefit.” App. Br. at 40. This is correct, but confusingly
conflates the first and third elements of the scope of employment test. Because all three
elements must be met, if there is no evidence to support a finding that the employee
acted, even to a small degree, out of an intent to serve his employer’s interest (the third
element), then the conduct falls necessarily outside of scope. As discussed below, this is
not the case here. However, actions “that are closely analogous to an employee’s assigned
responsibilities,” id., are highly relevant to establishing the first element of the test: that
the challenged conduct was sufficiently similar to the employee’s job duties.

23
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (39 of 69)

the detainees, as exemplified by the requirement that Ms. Martin be shackled

during childbirth. See, e.g., Tr. 222:21-227:11. It was entirely rational for the

jury instead to determine that maintaining authority and control over the

detainees was the jail guards’ primary purpose, and that they managed this

daunting responsibility by threat of discipline and use of force.

The County misconstrues Thicklen’s duties to conceal a harsh reality:

the use of force against detainees is never “safe and secure” for those

detainees, but the community entrusts correctional officers to do so anyway,

in order to maintain control in the jail and to protect the public. And the

implication of the County’s argument goes far beyond sexual assault: using

excessive force against detainees also does not keep them “safe and secure,”

but such instances routinely are judged to be within the scope of a guard’s

employment. Cf. Wilson v. City of Chicago, 900 F. Supp. 1015, 1029-31 (N.D.

Ill. 1995) (beating and torture incident to police interrogation is within the

scope of employment). It was not irrational for the jury to conclude that

Thicklen was employed to control detainees through threat of discipline and

use of force, and that he was doing so when he sexually assaulted Ms. Martin.

Furthermore, the County’s argument that Thicklen was not acting in a

manner related to his jail guard job duties when he assaulted Ms. Martin

requires accepting the fallacy that sexual violence is categorically different

from other forms of violence. App. Br. at 16-17 (arguing that use of force does

not include sexual assault). On this logic, violence committed using a penis is

categorically different than violence committed using a fist, such that, at least

24
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (40 of 69)

in the correctional context, the latter would almost always fall within scope,

while the former (in the County’s view) as a matter of law could not. There is

no logical basis for this distinction. If the motive is to control the detainee, it

makes no difference what body part is used or whether the actor derives

pleasure from the violence.

As discussed above, exercising power and control over detainees lies at

the core of the job duties of a correctional officer. It is well-established that

sexual assault is frequently if not primarily a manifestation of that same

dynamic—the attempted exercise of power and control by one individual over

another. See, e.g., Jan Welch & Fiona Mason, Rape and Sexual Assault, 334

BRIT. MED. J. 1154, 1154 (June 2007), available at https://www.ncbi.nlm.

nih.gov/pmc/articles/PMC1885326/ (“Perpetrators [of sexual assault] are . . .

often motivated by power and control.”); World Health Organization,

Guidelines for Medico-Legal Care for Victims of Sexual Violence, 9 (2003)

(hereinafter WHO Guidelines for Victims of Sexual Violence), available at

http://www.who.int/violence_injury_prevention/resources/publications/en/guid

elines_chap2.pdf (“Sexual violence is an aggressive act. The underlying factors

in many sexually violent acts are power and control, not, as is widely

perceived, a craving for sex.”).

The fact that sexual assault is different from consensual sex engaged in

for pleasure, and represents an act of power and control, is neither a new nor

controversial idea. Courts have long recognized that categorically

distinguishing sexualized violence from other violence makes little sense.

25
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (41 of 69)

Lyon v. Carey, 533 F.2d 649, 655 (D.C. Cir. 1976) (“Should the entire case be

taken from the jury because, instead of a rod of wood (as in Dilli), in addition

to weapons of steel (as in Tarman); and in addition to his hands (as in

Munick), Carey also employed a sexual weapon a rod of flesh and blood in the

pursuit of a job-related controversy? The answer is, No.”); Parrish v. Luckie,

963 F.2d 201, 205 (8th Cir. 1992) (“According to [the argument advanced by

defendants], if a man whips his child with an extension cord, then dons his

police uniform and beats up a prisoner, then locks a female prisoner in his

squad car and forces her to perform oral sex on him, the acts are unrelated. It

is clear, however, all of these acts constitute crimes of violence. First degree

sexual assault is, first and foremost, a crime of violence.”); Dorsey v. Givens,

209 F. Supp. 2d 850, 852 (N.D. Ill. 2001) (“Sexual molestation and a physical

beating can both be manifestations of a desire to exercise domination and

power.”). The separation of sexual assault from other forms of violence is an

artificial one, and one that is not maintained in other arenas, such as in the

criminal context. See, e.g., Wis. Stat. § 940.255(2)(a) (defining “sexual assault”

as an act of sexual contact involving the “use or threat of force”). As an act of

violence, sexual assault cannot be neatly separated out from other types of

force. It was well within the jury’s range of rational conclusions to recognize

this reality and to infer from the facts surrounding Thicklen’s assaults that

these acts were used to control and subdue Ms. Martin, and were therefore

not “so extraordinary and disconnected” from the type of force jail guards are

authorized to use to control detainees. Desotelle, 136 Wis. 2d at 28.

26
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (42 of 69)

2. On this record, the jury could rationally conclude that


Thicklen was motivated, at least in part, by a desire to
serve Milwaukee County.

Regarding the third scope element, the jury’s determination that

Thicklen was motivated, at least in part, by a desire to serve Milwaukee

County was not irrational. The law recognizes that employees may act with a

dual purpose and that one purpose may be intended to serve the employer

while the other does not, even if it is disproportionately so. In order for

Plaintiff to prevail on this aspect of the scope test, there need only be

sufficient evidence for the jury to find that Thicklen was motivated in the

slightest degree by the intent to serve his employer. See Olson, 156 Wis. 2d at

499-500 (“There is no requirement that serving the employer must be the

employee’s only purpose or even the employee’s primary purpose,” and

conduct will fall outside of scope only “if it is motivated entirely by the

employee’s own purposes.”). For the County to obtain judgment as a matter of

law, it must establish that Thicklen was motivated entirely by his own

purposes and the evidence at trial must support only that conclusion. Block,

201 Wis. 2d at 804-805 (“Normally, the scope-of-employment issue is

presented to the jury because it entails factual questions on an employee’s

intent and purpose . . . . [T]o rule as a matter of law that an employee’s

conduct fell outside the scope of employment, the evidence presented must

support only that conclusion.”). These cases are consistent with The

Restatement, which states that “[t]he fact that the predominant motive of the

servant is to benefit himself or a third person does not prevent the act from

27
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (43 of 69)

being within the scope of employment.” Olson, 156 Wis. 2d at 499, n.11

(quoting Restatement (Second) of Agency, §236, Comment b). In other words,

an employee may act with dual purposes and still act squarely within the

scope of employment. See Hibma, 769 F.2d at 1153.

a. The evidence at trial on the third scope element

Thicklen was absent at trial and no direct evidence was introduced of

his subjective intent when he was assaulting Ms. Martin, either by deposition

transcript, written statement, or other such evidence. As a result, the jury

was required to determine his intent based on inferences from the

circumstances of the assaults, Thicklen’s behavior and statements during

those assaults (as testified to in detail by Ms. Martin), and testimony from

other jail guards and their supervisors about the duties and powers of officers

at the Milwaukee County Jail.

Generally speaking, the absence of direct evidence is unremarkable,

and juries routinely decide issues based upon circumstantial evidence. See

Sylvester v. SOS Children’s Villages Illinois, Inc., 453 F.3d 900, 903 (7th Cir.

2006) (“The distinction between direct and circumstantial evidence is . . .

irrelevant to assessing the strength of a party’s case,” and “[f]rom the relevant

standpoint—that of probative value— ‘direct’ and ‘circumstantial’ evidence are

the same in principle.”). However, given that circumstantial evidence requires

inferences to be drawn, which (where competing inferences are available) is a

task reserved for the jury, Thicklen’s absence and both sides’ resulting

reliance on circumstantial evidence helps illustrate why scope of employment

28
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (44 of 69)

was incapable of resolution as a matter of law. See Stephenson, 247 Wis. 2d at

361 (holding that, when considering scope of employment, “a question of

intent can rarely be resolved . . . as a matter of law”).

All of the evidence discussed in the context of the first scope element,

supra, was also evidence that a reasonable jury could look to in evaluating

Thicklen’s intent. The fact that the manner in which Thicklen carried out his

assaults relied heavily on the use of his power and authority as a correctional

officer permits an inference that he was motivated, at least in part, by job-

related considerations at that time. The County had an interest in controlling

the behavior of its detainees, and preventing them from escaping the jail,

accessing contraband or acting in a disruptive manner. To meet those

interests, the County empowered its officers to exert control over detainees,

equipping them with symbols and tools of authority and power (a uniform and

Taser) and conferring on them the authority to command the obedience of

detainees, backed up by the threat of discipline and use of force. See supra.

When Thicklen assaulted Ms. Martin, he did not permit her to act

disruptively, or allow her into situations where there was a risk of escape or a

risk she could access contraband. He maintained strict control over her

movements and behavior throughout the duration of each of the assaults,

commanding her obedience. When she wavered, he reminded her in stark

terms that it was his role to command and her role to obey—”I’m in gray and

you’re in blue”—a power dynamic blessed and indeed created by the County.

It was entirely rational for the jury to conclude, on these facts, that even while

29
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (45 of 69)

committing heinous acts of assault Thicklen was motivated, in part, to serve

the County’s interest in controlling the behavior of the detainees.

These facts alone would be sufficient to support the jury’s verdict, but

there were additional facts specific to Ms. Martin which provided additional

inferences that Thicklen was motivated to serve the County’s interest.

Specifically, the trial record reflected that Ms. Martin was a detainee who

caused trouble at the jail, and complained about the jail conditions frequently.

Tr. at 114:11-115:19. She had six disciplinary incidents in her first two

months at the jail, was sent to “max custody” more than once, and filed 15

separate grievances about the conditions. Id. She was a person who spoke up

at the jail and asserted herself. Id. A rational jury could conclude that

Thicklen assaulted Ms. Martin in order to exert his authority and enforce the

County’s interest in disciplining a detainee he perceived to be troublesome

and who required bringing into line. That the means he chose to do so violated

County policy, and that he may simultaneously have been motivated by

personal interests, does not render this inference unavailable or irrational.

b. The motivation behind sexual assault

The County’s argument essentially requires accepting that, whenever

an assault has a sexual component, as a matter of law the only intent he could

conceivably have is purely personal. As discussed repeatedly above, Wisconsin

law holds the opposite. But such a proposition also fails as a matter of

common sense and lived human experience (vital tools with which the law

assumes juries are equipped to deploy in their task). It is a long-rejected myth

30
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (46 of 69)

that the perpetrators of sexual assault are exclusively, or even frequently,

motivated purely by sexual desire. See WHO Guidelines for Victims of Sexual

Violence at 9-10 (“Work with sexual offenders has confirmed that the

motivating factor for sexual violence is not sexual desire. Although sexuality

and aggression are involved in all forms of sexual violence, sex is merely the

medium used to express various types of non-sexual feelings such as . . . a

need to control, dominate and assert power . . . .”); Welch & Mason, Rape and

Sexual Assault, 334 BRIT. MED. J. at 1154 ((“Perpetrators [of sexual assault]

are . . . often motivated by power and control.”).

Sexual assailants are frequently motivated by power and control. The

County empowered its jail guards to exercise power and control over

detainees. It was not unreasonable for the jury to infer that Thicklen was

motivated, in part, to serve the County when he assaulted Ms. Martin.

D. The County’s arguments misconstrue the factual record and


misapprehend the state of Wisconsin law.

Contrary to the County’s assertions, as the fact-finder, the jury was

entitled to glean evidence about Thicklen’s intentions from the context

surrounding the assaults, and to reject as unpersuasive the County’s evidence

that sexual assault was against County policy. Furthermore, the public policy

behind the indemnification statute supports Ms. Martin’s position. Finally,

Wisconsin law on scope of employment is well-settled and there is no basis on

which to certify the question to the Wisconsin Supreme Court. The jury

verdict should stand.

31
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (47 of 69)

1. The context and circumstances surrounding the sexual


assaults are relevant to the scope of employment issue.

The County asserts that the jury should not have considered the

context of the assaults—the duties Thicklen was performing, his status as an

on-duty officer, the fact that he was at work. App. Br. at 37-41. In doing so,

they misconstrue the point of the cases they cite. Those cases stand only for

the proposition that an employee’s motivation to serve his employer in the

moments leading up to the challenged misconduct does not conclusively

establish his motivation at the moment of that misconduct—in other words,

that it is possible for an employee’s motivation to change even for that short

duration and bring those acts outside the scope of his employment. However,

nothing in those cases suggests that the surrounding conduct is irrelevant or

that it cannot be considered as circumstantial evidence of an employee’s

motivation at the moment of the challenged misconduct. Indeed, Wisconsin

precedent indicates that considering the surrounding circumstances is

necessary—at least in situations where, as here, there is no direct evidence of

the employee’s motivation, and the jury’s inquiry is necessarily entirely based

on inference and circumstance. See Desotelle, 136 Wis. 2d at 28 (“The question

as to whether [defendant] was acting within the scope of his employment must

be determined by examining the inferences arising from the surrounding

evidence because no direct evidence on this issue is reflected by the record.”).

Graham is instructive on this point. 915 F.2d at 1087-88. In Graham,

an on-duty police officer responded to a radio call that a driver was in

possession of a controlled substance. Id. The officer shot the handcuffed driver
32
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (48 of 69)

in the back of the head at point-blank range. Id. at 1088. This Court found the

officer was acting within the scope of his employment as a matter of law by

looking to the facts surrounding the murder. Id. at 1095 (considering all of the

evidence and concluding “we do not believe a jury could reasonably conclude

that Mueller’s conduct was ‘too little actuated by a purpose to serve [his]

employer’ or that his conduct was ‘motivated entirely by [his] own purposes’”).

Like this Court in Graham, the jurors in this case were entitled to

consider the surrounding circumstances—such as the fact that Thicklen was

on duty and in uniform when he raped Ms. Martin, while performing the

duties of a correctional officer. For example, during the fourth assault,

Thicklen raped Ms. Martin during the course of providing her with medical

care—bringing warm compresses into her infirmary cell. Tr. 78:24-80:3, 99:20-

100:3. Jail guards assigned to the infirmary had authority and control over

detainees there, and Thicklen was assigned to be the only person that Ms.

Martin could ask to get the warm compresses she needed. Id. at 78:13-20,

79:18-20. Thicklen used this control over Ms. Martin’s medical care to isolate

her in her cell in order to rape her. Id. at 79:2-80:3.

The County argues that the time and space of the rapes—at Thicklen’s

workplace and Ms. Martin’s state-mandated residence—is not enough to

render the acts within the scope of employment. App. Br. at 37-39. The

County is right that the location of the tortious act alone is not enough to

place the conduct within the scope of employment, but the jury was certainly

permitted to consider the context of the assaults to deduce Thicklen’s

33
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (49 of 69)

motivation. Suppose Thicklen had raped another correctional officer at the jail

rather than a detainee. Because Thicklen had no responsibility to guard his

peers and no authority over them, no one would argue that the choice to

commit the rape of a co-worker at work was evidence that Thicklen acted

within the scope of employment. Here, however, Thicklen raped the very

category of person he was charged with controlling and disciplining at work.

There was nothing irrational about the jury’s consideration of this factor.

Moreover, given that Thicklen did not testify, the circumstantial evidence

provided by the context of his actions takes on even greater meaning here. In

these circumstances, a rational jury could find that his very choice to rape a

detainee he was charged with guarding at his place of employment—not once

but five times—was intertwined with his employment as a guard at the

Milwaukee County Jail and was itself meaningful evidence of his motive.

Similarly, the cases relied upon by the County for this point are

unavailing. See App. Br. at 23, citing Behrendt v. Gulf Underwriters Ins. Co.,

318 Wis. 2d 622 (2009) and Doe v. Time Warner Cable, No. 07-C-781, 2007 WL

4143226 (E.D. Wis. Nov. 19, 2007). Behrendt simply stands for the non-

controversial proposition that the tortious conduct must be actuated by a

desire to serve the employer “at the time of the act alleged.” 318 Wis. 2d at

643. Behrendt does not come close to holding, as the County contends, that the

jury could not look at circumstances preceding or following the tortious

conduct in order to determine scope of employment. Id. at 642-44. The

County’s reliance on Behrendt is a stretch–it cherry-picked the phrase “at the

34
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (50 of 69)

moment” from Behrendt where it had no particular legal significance–and

demonstrates the complete absence of case law supporting its position here.

The County also points to Time Warner Cable, wherein the district

court (without citation) announced that the “overall context” of the tort is

irrelevant to the third element of the scope test. App. Br. at 41 (citing Time

Warner Cable, 2007 WL 4143226, at *3). Read properly, the court was simply

stating that the context did not matter based on the facts of that case because

“the same analysis would apply even if the two had been at work and engaged

in work at the time.” Id. (emphasis in original). Any other reading of Time

Warner Cable would flatly contradict both logic and Wisconsin law.

Simply put, Wisconsin law did not require the jury to completely

disregard the fact that Thicklen assaulted Ms. Martin at work, while on duty,

in uniform, and armed. To the contrary, Desotelle instructs that the

surrounding context is precisely the type of circumstantial evidence a jury

must rely on, particularly where no direct evidence as to motivation is

available. Desotelle, 136 Wis. 2d at 28; see also Graham, 915 F.2d at 1095.

Regardless, even if the County were right, and there was some

requirement that the entire context of the assaults be stripped away in order

to determine if the sexual contact alone was within the scope of employment,

Ms. Martin should still prevail. Here, the jury could have found that Thicklen

was simultaneously controlling Ms. Martin by using force in the service of his

employer (as his job in law enforcement permitted him to do), even if the

violence was sexualized, and also acting for his own interests as well. Tr. at

35
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (51 of 69)

220:18-221:7 (“part of [the] job was just to guard the detainees,” with their

presence to prevent escape, ensure they did not access serious contraband,

and control their behavior); Hibma, 769 F.2d at 1153 (an employees’ actions

can be “designed to further their own objectives” as well as to further the

objective of the employer).

The County argues that if Thicklen had a momentary shift in attitude

at the time of the assaults, then they were not within scope. App. Br. at 23-24.

But the evidence would have to conclusively establish, with all inferences in

Plaintiff’s favor, that the “momentary shift” was solely for a personal endeavor

with no secondary purpose whatsoever. A rational jury could have concluded

that Thicklen was both acting as a guard controlling Ms. Martin’s movements

as well as acting from some personal motive. So long as there were two

possible interpretations of the evidence, the judgment must stand.

2. The jury properly considered and rejected the County’s


scope evidence, and nothing about the County’s
training regime and zero tolerance policy places sexual
assault outside scope of employment as a matter of law.

The County’s remaining arguments about scope boil down to one theme:

Thicklen was trained not to rape, so therefore Thicklen’s assaults were

necessarily outside the scope of his employment. See, e.g., App. Br. at 33-34.

The County dutifully recounts Thicklen’s training and the County’s purported

‘zero tolerance’ policy. 5 Id. at 7-8. But as this Court has explained, in

Wisconsin and elsewhere, it is a “fully accurate statement[] of the law” that an

A ‘zero tolerance’ policy with a less-than-stellar track record. See, e.g., Rankins,
5

2012 WL 5932029; Estate of Watts, 2008 WL 4058032.


36
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (52 of 69)

employee can be acting “within the scope of employment even if [he] acts

intentionally or criminally.” Javier, 670 F.3d at 829; see also Graham, 915

F.2d at 1092 (applying Olson and affirming district court decision that police

officer’s murder was within scope of employment as a matter of law).

Whenever civil liability is alleged against an employee, it will always be true

that the specific conduct complained of was not what that employee was

trained and employed to do: employers are not in the business of hiring

employees to drive negligently and cause car crashes, for example, yet are

routinely found liable for those acts as falling within the scope of employment.

But in the County’s view, as long as a correctional officer knows rape is

illegal and was not hired to rape—which is the likely scenario for every

correctional officer anywhere—then a sexual assault can never be within the

scope of employment. Not only that, but it would mean every instance of

sexual assault, excessive force, indeed every act that contravenes the County’s

policies would be outside the scope–a proposition that is plainly not the law.

Desotelle, 136 Wis. 2d at 27-28; Olson, 156 Wis. 2d at 494; Stephenson, 247

Wis. 2d at 361 (“[W]hether an employee acts within the scope of his or her

employment is generally a fact issue to be decided by a jury.”); Perez v. Cty. of

Ozaukee, 178 Wis. 2d 591 (Ct. App. 1993). While the County cites cases where

the sexual assaults were found to be outside the scope of employment, none of

these cases stand for the proposition that conduct which violates an

employer’s policy is necessarily outside the scope of employment. See, e.g.,

Kratz, 2012 WL 5833185, at *5 (employee rule violations may be powerful

37
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (53 of 69)

evidence regarding scope of employment but do not single-handedly determine

whether the activities were within the scope of employment); App. Br. at 24-

26, 35 (citing Block, 201 Wis. 2d at 807; Korntved v. Advanced Healthcare,

S.C., 286 Wis. 2d 499 (Ct. App. 2005); Doe v. St. Francis, 834 F.Supp. 2d 889,

901 (E.D. Wis. 2011). 6

In Korntved, unlike this case, it was undisputed that there was no

evidence that the tortfeasor intended to serve her employer in any way at the

time of the wrongdoing. 286 Wis. 2d at 509-10. Here, the jury was asked to

review competing evidence and could have concluded that Thicklen was

motivated both by a desire to serve the County and by his own motives.

In Block, a therapist conducted a romantic relationship with a patient

outside of work which culminated in the therapist moving in with the patient.

549 N.W. 2d at 785. Tellingly, unlike here, the tortfeasor in Block testified,

and thus there existed direct evidence of his subjective intent. Id.

Finally, while St. Francis also cited the existence of a policy forbidding

teachers from sexual relationships with students, the court looked to evidence

far beyond the policy—such as the fact that the relationship took place outside

school hours, off-campus, and at the teacher’s home. 834 F. Supp.2d at 901.

6 Likewise, the County also asserts that Thicklen “actively hid his sexual contacts
with Martin from the Sherriff’s Office.” App. Br. at 33. But evidence that Thicklen tried to
conceal his assaults is only another way of saying he understood that they may violate jail
policy. The jury was entitled to conclude that he was both motivated by a desire to serve
his employer—by acting at work to control the bodily movements of Ms. Martin—while
simultaneously violating a jail policy. In short, the idea that an employee could be serving
the employer’s interests overall while also breaking individual rules is not foreign to
juries and the jury was entitled to reach this conclusion.

38
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (54 of 69)

The County notes that the sexual assaults did not actually fulfill a

purpose of Milwaukee County Jail. App. Br. at 33. But, of course, whether the

assaults actually served the employer is not part of the scope of employment

test. The test looks at the employee’s motivation to serve the employer, not the

result of the action. Olson, 156 Wis. 2d at 499; Desotelle, 136 Wis. 2d at 28.

While the resultant benefit to the employer may shed light on the employee’s

intent, the actual benefit to the employer is by no means dispositive.

The County was entitled to present evidence that Thicklen knew that

sexual contact was a violation of jail rules, just as Ms. Martin was entitled to

demonstrate that Thicklen was responsible for controlling Ms. Martin’s

movements. The jury was properly charged and there is nothing irrational

about its conclusion that Thicklen acted with a dual motive.

3. The jury was entitled to consider whether Thicklen’s


role as a correctional officer made his sexual assaults
possible when evaluating the scope issue.

The County complains that the jury may have considered whether

Thicklen’s position at the jail made the sexual assaults possible. App. Br. at

42. While the County is correct that the fact Thicklen’s conduct was “made

possible by virtue of his employment” does not conclusively establish that it

was within scope, id. at 38, (and Ms. Martin makes no such argument) there

is nothing improper about admitting such evidence. See Graham, 915 F.2d at

1094–95 (“a jury could reasonably conclude that the deputy’s investigation of

underage drinking was an activity for which he was hired and the sexual

assault was made possible only by virtue of his status as a police officer”);

39
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (55 of 69)

Estate of Watts, 2008 WL 4056317, at *2 (reasonable trier of fact could

conclude that Heine’s supervision of and interaction with detainees, both

inside and outside of their cells, was part of his job and the sexual assault was

only made possible by virtue of his status as a deputy sheriff).

Considering how the employee gained access to the victim is simply a

matter of determining the nature of the employment relationship between the

jail (and the community that supports it), the correctional officer, and the

victim. Such evidence is properly weighed in deciding the context in which the

rapes occurred.

4. The policy behind Wisconsin’s indemnification statute


supports Plaintiff’s scope of employment argument.

The County argues that the indemnification statute was intended to

benefit public officials and not injured plaintiffs. App. Br. at 19. The County

badly misses the mark. Courts recognize that indemnification statutes also

reflect the principle that where a community entrusts law enforcement with

the power to do violence and law enforcement abuses that power, the

community should bear the cost of those damages rather than innocent tort

victims. See, e.g., City of Memphis v. Roberts, 528 S.W.2d 201, 205 (Tenn.

1975) (explaining that an indemnification statute is intended to protect both

public employees and the public).

The public benefits from having certain members of society

incarcerated and, in order to derive this benefit, the community hires

correctional officers and imbues them with unique powers that other members

of society do not have. In granting correctional officers such tremendous and


40
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (56 of 69)

unique power over the daily lives of detainees, the community undertakes

substantial risk that the officers will abuse that power. It may mitigate the

risk with rules telling correctional officers that sexual assault is “not

tolerated.” But those mitigation efforts may fail, as they have in the past.

Rankins, 2012 WL 5932029; Estate of Watts, 2008 WL 4058032. Under those

circumstances, the indemnification statute properly shifts the burden of such

failures from the victim, Ms. Martin, to the public.

Moreover, Defendant’s argument—that indemnification is disfavored in

order to discourage individuals from committing torts—is wrong. Rather, a

plethora of criminal laws exist to deter individuals from committing

misconduct of the nature that occurred here. Requiring indemnification would

most effectively deter abuses by instilling a financial interest in the entity

best able to prevent such wrongdoing: the employer. That employer gains a

financial motivation to curb the opportunities for misconduct that were

utilized here, such as so-called “blind spots” outside the view of cameras.

Regardless, the intended beneficiary of the statute is irrelevant; the only issue

is whether the trial record contains sufficient factual support for the jury’s

verdict, which it did.

5. The County’s references to inapposite, non-precedential


case law do not demonstrate that the scope inquiry
should have been decided as a matter of law.

The County points out that in some cases the scope question has been

determined by courts as a matter of law. App. Br. at 28-29. But simply

because, in other factual scenarios, scope can be determined as a matter of

41
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (57 of 69)

law does not mean that it should have been in this case. Indeed, to adopt that

approach would amount to holding that sexual assault can never be within

the scope of one’s employment, which would directly contradict Wisconsin law.

Desotelle, 136 Wis. 2d at 28. 7 Each of the cases cited by the County is readily

distinguishable.

The County’s reliance on S.V. v. Kratz is misplaced. In Kratz, a male

prosecutor made sexual advances toward a female crime victim via thirty

unwelcomely lascivious text messages at off hours unrelated to any criminal

prosecution. 2012 WL 5833185, at *1-*2. Accordingly, the only available

inference from the evidence was that the prosecutor intended to procure a

purely personal sexual relationship and without any intent, no matter how

slight, of serving his employer. Id., at *6.

In fact, in reaching its conclusion on the specific facts of the

prosecutor’s misconduct, the court explicitly recognized that sexual

misconduct can fall within scope of employment:

This is not to say that the mere fact that a governmental officer or
employee is accused of sexual misconduct removes him from the
protection of the indemnification statute as a matter of law. If the
acts alleged are unclear or can be reasonably viewed as furthering a
purpose other than the employee’s own sexual desires, summary
judgment would be inappropriate.

7 The County may argue that under this logic, because on duty officers are always
guarding detainees, then all sexual assaults by correctional officers will be within the
scope of employment as a matter of law. But that interpretation is misleading. In cases
like Polk County—where direct evidence supported a finding that the correctional officer
was not actuated even in the slightest degree by a desire to serve his employer—officers
who commit sexual assault at work still would not have acted in the scope of their
employment, by their own admission. In the absence of such direct evidence, however, a
jury must make inferences based on a correctional officer’s duties and determine whether
a motive to serve the County’s interests by guarding the inmate played any role.
42
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (58 of 69)

Id., at *5.

The County’s reliance on J.K.J. v. Polk County is similarly misplaced.

App. Br. at 28-29. Crucially, in contrast with this case (as well as with

Desotelle), in Polk County direct evidence of the employee’s motivation and

state of mind was available and dispositive: “When [the correctional officer]

engaged in sexual interactions with plaintiffs, he testified at his deposition

that he did so for the sole purpose of his own personal gratification, and not

for any reason that served the interests of Polk County.” J.K.J. v. Polk Cty.

Sheriff’s Dep’t, No. 15-CV-428, 2016 WL 6956662, at *2, *6 (W.D. Wis. Nov.

28, 2016). The court acknowledged that an employee may act with a dual

motive—”both to further the purposes of employment and to further his or her

own interests.” Id. at *6 (emphasis in original).

The County also cites an unpublished, non-precedential opinion in

which a Wisconsin court found a police officer did not act within the scope of

his employment when sexually assaulting a woman. App. Br. at 27 (citing

Lola M. v. City of Milwaukee, 2002 WL 234234 (Wis. Ct. App. Feb. 19, 2002)).

However, the court articulated no meaningful reasoning for its holding

in Lola M.—it simply recited the facts of the case and concluded that

“obviously” the officer was acting to serve himself and not the City and

“unquestionably” acted outside the scope of his employment. Lola M., 2002

WL 234234 at *3 (declaring the activities outside the scope of employment

without considering the possibility that the officer was motivated both by his

own objectives and those of the City). To the extent it might have had any

43
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (59 of 69)

persuasive value, the Lola M. court’s perfunctory conclusion and utter lack of

analysis renders it unhelpful here.

The County’s point seems to be that in other cases, 8 based on other

facts, courts have found sexual assault to be outside the scope of employment

as a matter of law. But nothing in Wisconsin law—including the litany of

cases cited in the County’s brief—precluded a jury from considering the scope

of employment question in this case.9

E. Because Wisconsin law is settled, this Court need not certify


the question to the Wisconsin Supreme Court.

The County contends that Wisconsin law is unsettled, and thus it

should certify the question to the Wisconsin Supreme Court. App. Br. at 47-

48. Because Wisconsin law contains controlling precedent, certification is

unnecessary. The Supreme Court of Wisconsin may only answer certified

questions of law if there are “questions of law of this state which may be

determinative of the cause . . . as to which it appears to the certifying court

there is no controlling precedent in the decisions of the supreme court and the

court of appeals of this state.” Wis. Stat. § 821.01.

Tellingly, throughout its brief the County ignores controlling precedent,

and then pretends that Wisconsin law is “unclear or unsettled.” App. Br. at

8 Johnson v. Cook County, cited by the County, arose under Illinois law, which (in
contrast to Wisconsin law) holds that sexual assault is never within the scope of
employment. 526 Fed.Appx. 692, 693 (7th Cir. 2013). Moreover, Johnson involved a jail
medical technician, not “a jail or prison guard,” as Defendant claims. App. Br. at 29, n.1
9 The County cites a series of other Wisconsin and federal cases which are

inapposite because they do not involve law enforcement. App. Br. at 27-29 (citing cases
involving teachers, therapists, and counselors working on behalf of private employers).
None of these cases are persuasive because none dealt with employees charged with
controlling the movements of their victims.
44
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (60 of 69)

47. Under Desotelle, 136 Wis. 2d at 28 and Olson, 156 Wis. 2d at 494, however,

Wisconsin courts have re-affirmed that where questions of fact exist, they are

for the jury to resolve. See Stephenson, 247 Wis. 2d at 361 (“[W]hether an

employee acts within the scope of his or her employment is generally a fact

issue to be decided by a jury.”); Perez, 178 Wis. 2d at 591. Wisconsin law is

neither ambiguous nor conflicting, and thus there is no basis on which to

certify a question of law.

III. The district court’s denial of a new trial was not an abuse of
discretion.

The district court properly denied the County’s motion for a new trial

because the verdict was supported by the evidence and the jury instructions

were an accurate and complete recitation of the applicable law. Likewise, the

County submitted no newly discovered evidence or evidence of fraud. The

jury’s verdict should not be disturbed.

A. The jury’s verdict was not against the manifest weight of the
evidence.

The County’s entire argument on this score is that Plaintiff supposedly

did not offer any evidence in support of her claim. App. Br. at 48-49. As

demonstrated exhaustively in section II.C., supra, Plaintiff introduced

sufficient evidence from which a jury could find that Thicklen acted in the

scope of his employment. The district court’s denial of Defendant’s Rule 50

motion was proper.

45
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (61 of 69)

B. The scope of employment jury instruction stated the law


completely and correctly, and even if it had not, no prejudice
resulted.

This Court reviews de novo whether the jury instructions fairly and

accurately summarized the law. Clarett v. Roberts, 657 F.3d 664, 672 (7th Cir.

2011). The County argues that the scope of employment jury instruction was

so misleading and prejudicial that it warrants a new trial. App. Br. at 50.

However, courts are afforded “substantial discretion” in crafting jury

instructions, including whether and to what extent to modify a state’s pattern

instructions. See Burzlaff v. Thoroughbred Motorsports, Inc., 758 F.3d 841,

845-46 (7th Cir. 2014). To achieve the relief it seeks, the County must show

not only that the instruction “misstate[d] the law or fail[ed] to convey the

relevant legal principles in full,” but also that the deficiencies were so serious

they misled the jury, causing prejudice. Byrd v. Illinois Dep’t of Pub. Health,

423 F.3d 696, 705 (7th Cir. 2005). The County can show neither.

The County argues that the district court committed reversible error by

providing the jury instruction endorsed by this Court in Javier, 670 F.3d at

831-32. In Javier, this Court remanded for a new trial to include an

instruction that employees can act within scope “even if the officer acts

intentionally or criminally,” because absent that clarification the instruction

was materially incomplete. Id. at 829-30.

According to the County, the district court’s use of the Javier

instruction was misleading because it did not also include an instruction that

whether an employee acts intentionally or criminally is relevant to the scope

46
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (62 of 69)

analysis. App. Br. at 51. But the Seventh Circuit in Javier required inclusion

of the ‘intentionally or criminally’ language because “[t]he concept is not

intuitive.” 670 F.3d at 830. The idea that a criminal act could nevertheless be

found to be the kind of work an employee was hired to perform, and was

intended to serve the employer, is legally correct yet not obvious to a jury

applying common sense and logic. In contrast, the instruction the County

complains was missing—that a knowing violation of an employer’s training

and policies or the criminal law is relevant to determining whether the

employee’s conduct was of the kind he was hired to perform—is a matter of

simple logic and common sense that the jury required no instruction to

understand. In fact, that is the default assumption of a lay jury which this

Court found was too strong and needed to be mitigated by the inclusion of the

Javier language.

Regardless, the County loses because the scope instruction signaled to

the jury that the County’s training and policy evidence was probative on

scope:

[Thicklen acted] within the scope of his employment when he is


performing work or rendering services in obedience to the express
orders or direction of his employer, or doing that which is warranted
within the terms of his express or implied authority, considering the
nature of the services required, the instructions which he has
received, and the circumstances under which his work is being done
or the services are being rendered.

R. 257 at 15-16 (emphasis added). Told to consider whether Thicklen was or

was not “in obedience to” the County’s “express orders or direction,” and to

“consider[] . . . the instructions which he has received,” the jury was expressly

47
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (63 of 69)

directed to consider the type of evidence the County now complains the jury

would not have known was relevant. The argument that there was error fails.

Even if the County could somehow make the case that the scope

instruction was misleading, there was no prejudice. With virtually every

witness at trial, the County pressed the point that sexual contact with

detainees was criminal and totally prohibited by its policies and training. Tr.

at 418:23-419:4, 419:11-21. There is no basis in the scope instruction to

overturn the jury’s verdict.

C. The district court’s denial of a new trial based on the Ivan


Boyd “evidence” was not an abuse of discretion.

The County argues that the district court acted contrary to law and

abused its discretion in failing to grant a new trial under Federal Rule of Civil

Procedure 60 based on post-trial “evidence.” App. Br. at 55-60. The purported

“new evidence” amounts to an incredible affidavit, produced post-trial, from

Plaintiff’s ex-boyfriend. Id. Boyd requested that the County pay him $40,000

for his sworn statement (and made a similar offer to make a deal to Plaintiff’s

counsel see R. 313-6), in which he alleges that he and Ms. Martin somehow

framed Thicklen for sexual assault with the help of two unwitting Milwaukee

jail guards. R. 300, 301-6. But the County knew that Boyd claimed to have

information that would exonerate Thicklen since at least October 2014. See R.

313-1, 313-2 at 86:2-23. The County included Boyd on its witness list in this

lawsuit, see R. 313-3, 313-4 (showing the County adopting Thicklen’s witness

list which included Boyd), and then chose not to call him at trial. Now, stung

by an unexpected jury verdict, the County claims Boyd’s latest version of this
48
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (64 of 69)

same story constitutes evidence of fraud and newly discovered evidence which,

despite its diligence, the County did not and could not have obtained before

trial. The district court did not err in denying the County a new trial under

these circumstances.

Rule 60 permits a party to seek relief from a judgment on various

grounds, including “newly discovered evidence that, with reasonable diligence,

could not have been discovered in time to move for a new trial under Rule

59(b),” and “fraud . . . , misrepresentation, or misconduct by an opposing

party.” Fed. R. Civ. P. 60(b)(2), (b)(3). Relief under Rule 60 “is an

extraordinary remedy and is granted only in exceptional circumstances.”

Wickens v. Shell Oil Co., 620 F.3d 747, 759 (7th Cir. 2010) (quotation omitted).

First, the County cannot demonstrate any fraud “by the opposing

party.” Venson, 749 F.3d at 651. The County does not argue, because it

cannot, that Plaintiff impeded the County’s awareness of or access to Boyd.

App. Br. at 55-60. Accordingly, the district court did not err in finding that no

fraud occurred and no new trial was warranted on that basis.

Second, the County cannot demonstrate that Boyd’s “evidence” is newly

discovered. The text of Rule 60(b)(2) limits its application to situations where

there is “newly discovered evidence that, with reasonable diligence, could not

have been discovered” earlier. Here, the County knew about Boyd before the

lawsuit commenced, R. 313-1, 313-2 at 86:2-23, included him on its witness

list, R. 313-3, 313-4, and then failed to call him at trial. Where, as here, the

purported new evidence is an affidavit from a trial witness, courts are

49
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (65 of 69)

particularly skeptical of the claim that the information could not have been

discovered with reasonable diligence. See, e.g., Antevski v. Volkswagenwerk

Aktiengesellschaft, 4 F.3d 537, 540 (7th Cir. 1993) (affirming district court

denial of new trial where plaintiff obtained post-trial affidavit implying that

trial testimony was perjured).

The district court’s denial of a new trial based on Boyd’s affidavit

should be affirmed.

CONCLUSION

For the reasons explained above, Plaintiff respectfully submits that this

Court should affirm the judgment entered in this case and the district court’s

denial of the County’s motions.

50
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (66 of 69)

Dated: April 13, 2018

RESPECTFULLY SUBMITTED,

/s/ Theresa Kleinhaus


Counsel for Plaintiff-Appellee

Arthur Loevy
Jon Loevy
Russell Ainsworth
Roshna Bala Keen
Scott Rauscher
Theresa Kleinhaus
Sam Heppell
LOEVY & LOEVY
311 N. Aberdeen Street, Third Floor
Chicago, Illinois 60607
(312) 243-5900
tess@loevy.com

51
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (67 of 69)

CERTIFICATE OF COMPLIANCE

1. This brief complies with the length requirements of Fed. R. App. P.

32(a)(7)(B), as modified by Cir. R. 32(c), permitting Appellee to file a response

brief of no more than 14,000 words, because this brief contains 13,875 words,

excluding the parts of the brief exempted by Fed. R. App. P. 32(f).

2. This brief complies with the typeface and type style requirements of Fed.

R. App. P. 32(a)(5) and (6), as modified by Cir. R. 32(b), because this brief has

been prepared in a proportionally spaced typeface using Microsoft Word 2010 in

Century Schoolbook 12-point font.

/s/ Theresa Kleinhaus


Counsel for Plaintiff-Appellee

Arthur Loevy
Jon Loevy
Russell Ainsworth
Roshna Bala Keen
Scott Rauscher
Theresa Kleinhaus
Sam Heppell
LOEVY & LOEVY
311 N. Aberdeen Street, Third Floor
Chicago, Illinois 60607
(312) 243-5900
tess@loevy.com

52
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (68 of 69)

CERTIFICATE OF SERVICE

I, Theresa Kleinhaus, an attorney, certify that on April 13, 2018, I served

the Brief of Plaintiff-Appellee Shonda Martin on all counsel of record for

Defendant- Appellant via the Court’s CM/ECF system.

/s/ Theresa Kleinhaus


Counsel for Plaintiff-Appellee

Arthur Loevy
Jon Loevy
Russell Ainsworth
Roshna Bala Keen
Scott Rauscher
Theresa Kleinhaus
Sam Heppell
LOEVY & LOEVY
311 N. Aberdeen Street, Third Floor
Chicago, Illinois 60607
(312) 243-5900
tess@loevy.com

53
Case: 17-3216 Document: 35 Filed: 04/12/2018 Pages: 69 (69 of 69)


CERTIFICATE OF SERVICE
Certificate of Service When All Case Participants Are CM/ECF Participants

April 13, 2018


I hereby certify that on ___________________, I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using
the CM/ECF system. I certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the CM/ECF system.

s/__________________________________
Theresa Kleinhaus

CERTIFICATE OF SERVICE
Certificate of Service When Not All Case Participants Are CM/ECF Participants

I hereby certify that on ___________________, I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using
the CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the CM/ECF
system.

I further certify that some of the participants in the case are not CM/ECF users. I have
mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third-party commercial carrier for delivery within 3 calendar days, to the following
non-CM/ECF participants:

counsel / party: address:


_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

_____________________________________ _____________________________________

s/__________________________________