Shonda Martin v. Milwaukee County, Wisconsin
904 F.3d 544
7th Cir.2018Background
- Xavier Thicklen, a Milwaukee County jail corrections officer, repeatedly received zero‑tolerance training forbidding any sexual contact with inmates and answered quizzes showing understanding.
- Between April and November 2013 Thicklen sexually assaulted inmate Shonda Martin multiple times while in uniform, armed, on duty, using his authority, and off camera; Martin later reported the assaults and Thicklen was dismissed and prosecuted.
- Martin sued Thicklen under 42 U.S.C. § 1983 and sued Milwaukee County for indemnification under Wisconsin Statute § 895.46; the district court granted summary judgment to County on most claims but allowed the indemnification claim to proceed to jury.
- A jury found Thicklen liable and awarded Martin $6.7 million, and found County liable for indemnification under § 895.46; County renewed Rule 50/59 motions and raised newly discovered evidence alleging fabrication.
- The Seventh Circuit reviewed whether, as a matter of Wisconsin law, Thicklen’s sexual assaults were within the scope of employment for purposes of § 895.46 and whether judgment as a matter of law was required.
Issues
| Issue | Plaintiff's Argument (Martin) | Defendant's Argument (County) | Held |
|---|---|---|---|
| Whether Thicklen’s sexual assaults were within the scope of employment under Wis. Stat. § 895.46 | The assaults occurred on duty, in uniform, in the jail, using keys/authority, so a jury could find they were connected to employment | Sexual assaults were criminal, expressly prohibited by training and policy, motivated by purely personal purposes, so not within scope | Reversed: assaults were not within the scope as a matter of law; County entitled to judgment on indemnification |
| Whether intent to serve employer can be inferred from opportunity created by position | Martin argued opportunity and authority provided by his position supported inference of connection to employment | County argued opportunity alone is insufficient; intent must be at least partly to serve employer | Held: opportunity alone is insufficient; uncontested evidence showed purely personal motives, so no purpose to serve employer |
| Whether jury instruction or factual disputes required submission to jury | Martin relied on jury’s credibility determinations and inferences from facts to support scope finding | County argued undisputed training and intent evidence foreclosed reasonable jury finding scope | Held: facts undisputed and inferences only support one conclusion—assaults outside scope—so JMOL appropriate; no need to address instruction error |
| Whether newly discovered evidence of alleged fabrication warranted new trial or relief | County presented post‑verdict allegations that Martin and another framed Thicklen | Martin had no trial evidence supporting fabrication defense at time of trial | Held: Court did not reach fraud merits because reversal on indemnification moots County’s need to relitigate; judgment for County entered on indemnification claim |
Key Cases Cited
- Cameron v. City of Milwaukee, 307 N.W.2d 164 (Wis. 1981) (distinguishes § 1983 “color of law” from § 895.46 scope; adopts respondeat superior scope tests)
- Olson v. Connerly, 457 N.W.2d 479 (Wis. 1990) (scope test: conduct outside scope if different in kind, far beyond time/space, or too little actuated by purpose to serve employer)
- Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984) (applying Wisconsin scope principles; acts may be within scope if dual motives serve employer objectives)
- Hibma v. Odegaard, 769 F.2d 1147 (7th Cir. 1985) (applying Wisconsin law where officers’ actions served dual purposes; denial of employer JNOV reversed)
- Graham v. Sauk Prairie Police Comm’n, 915 F.2d 1085 (7th Cir. 1990) (applies Olson and Cameron; upholds that scope is fact question but can be decided as matter of law when only one inference is reasonable)