Shannon Lewandowski v. City of Milwaukee

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 7, 2020 *
Decided August 14, 2020
Before
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19-2995
SHANNON LEWANDOWSKI,
Plaintiff-Appellant,
v.
CITY OF MILWAUKEE,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 2:16-cv-01089-WED
William E. Duffin,
Magistrate Judge.
O R D E R
Plaintiff Shannon Lewandowski, a former Milwaukee police officer, alleged that
the Milwaukee Police Department violated Title VII of the Civil Rights Act of 1964 by
discriminating against her on the basis of sex and retaliating against her for opposing
sex discrimination. The district court granted summary judgment for the City of
Milwaukee. We affirm. Our decision should not be interpreted as saying that the City
has definitively shown that no discrimination or retaliation occurred. Rather,
* This court granted the parties' joint motion to waive oral argument. The case is therefore
submitted on the briefs.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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Lewandowski’s litigating tactics have failed to engage with the district court’s
reasoning, and she has failed to show a reversible error on any issue she presented
fairly to the district court.
I. Factual and Procedural Background
A. Facts on Summary Judgment
Our review of a summary judgment is de novo, construing all facts in favor of
the nonmovant (here, Lewandowski). Joll v. Valparaiso Community Schools, 953 F.3d 923,
928 (7th Cir. 2020). Lewandowski was a Milwaukee police officer for seventeen years,
eventually rising to the rank of detective before she was fired in 2015. She says that she
encountered resistance from male officers throughout her career, who assigned her to
“undesirable tasks” and called her names like “pitbull” and “black cloud.”
The particular issues that gave rise to this suit began in the fall of 2014. Another
female officer, a friend of Lewandowski's, had been in a romantic relationship with a
male officer. Lewandowski’s friend shared that things had gone badly wrong when she
tried to end the relationship. The male officer had stalked her, made death threats, and
raped her with his service gun close by. Lewandowski and her friend reported these
incidents to their respective supervisors. However, neither supervisor wanted to
intervene after learning that the male officer was someone prominent in the
department. Lewandowski ultimately helped her friend obtain a temporary restraining
order. Lewandowski says that her help and support for her friend made higher-ups in
the department angry, and they started looking for opportunities to retaliate.
In January 2015, Lewandowski was in a car accident while on duty. This accident
began the chain of events that ultimately led to her termination. On her way to
investigate a reported shooting, Lewandowski took a detour. Lewandowski says that
she went to another police station to help her friend deal with ongoing fallout from her
abusive relationship, and then was on her way to handle the shooting. The City says
that after leaving her friend’s station, Lewandowski next went to try to get her college-
age son out of a traffic stop, and that she told investigators so in the original statement
she gave them. Lewandowski characterizes this story as a lie told to discredit her. She
also argues that any statements she gave at the scene should be discounted as the
product of a head injury she suffered in the collision.
Following the accident, the Milwaukee Police Department opened an
investigation into Lewandowski, alleging misconduct in public office as to the

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possibility that Lewandowski had not been on official department business when the
accident occurred. The investigation later expanded to examine whether Lewandowski
had lied about what she was doing at the time. In December 2015, then-Chief Edward
Flynn found Lewandowski guilty of three violations. He suspended her for a total of 35
days for misconduct and safety violations and fired her for lying.
Lewandowski argues, though, that retaliation began long before her discharge.
For example, she says that she was transferred off her preferred shift in December 2014,
received constant threats from Captain Mike Sgrignuoli that her career was in jeopardy,
was forbidden from taking the lieutenant exam, and was forced to testify in her cases
without pay while on medical leave in early 2015, and that the Department intentionally
dragged out the investigation into her accident far longer than necessary to force her to
remain on unpaid leave. In Lewandowski’s account, her December 2015 discharge was
merely the last in a string of retaliatory and discriminatory actions that supervisors in
the Department had begun at least a year and a half earlier.
B. Procedural History and Jurisdiction
After her discharge, Lewandowski appealed Chief Flynn’s decision to the
Milwaukee Fire and Police Commission. In August 2016, the Commission held a
hearing and issued a written decision sustaining Chief Flynn’s disciplinary decisions,
including the discharge. While the departmental investigation was pending,
Lewandowski filed a charge with the Equal Employment Opportunity Commission on
September 10, 2015; she received a right-to-sue letter on May 16, 2016. Lewandowski
filed this action in federal district court on August 15, 2016. Both parties consented to
magistrate judge jurisdiction on September 15, 2016. After discovery, the City moved
for summary judgment. The district court granted that motion, and Lewandowski has
appealed.
II. Key Arguments Waived
On appeal, Lewandowski argues that the district court mishandled the question
of whether res judicata or collateral estoppel applied to the Fire and Police Commission
decision; failed to follow the Eastern District of Wisconsin Local Rules on summary
judgment and therefore applied the wrong legal standard to her sex discrimination and
retaliation claims; and reiterates her Fourteenth Amendment arguments. We disagree
with her characterization of the district court’s decision and find that Lewandowski’s
tactical choices in the district court preclude her major appellate arguments.

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The district court began by addressing issue preclusion briefly. The City had
argued before the district court that the doctrine of issue preclusion covered all the
issues in the case because the Fire and Police Commission decided several key factual
issues against Lewandowski. The City also argued that claim preclusion barred
Lewandowski’s constitutional claims. The district court declined to decide these issues
at all because it found that Lewandowski’s case failed on the merits. Lewandowski’s
detailed arguments on appeal as to res judicata and collateral estoppel are beside the
point. These arguments might have become relevant for a reply brief if the City had
argued in the appellee’s brief that issue preclusion provided an alternative ground for
affirmance, but that did not happen.
On the merits of the sex discrimination claim, the district court recognized that
Lewandowski had tried to prove her claim under the McDonnell Douglas Corp. v. Green
burden-shifting framework for circumstantial proof. 411 U.S. 792, 802 (1973). The court
applied our reasoning from Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016),
saying: “If the plaintiff presents evidence from which a reasonable finder of fact could
conclude that the plaintiff’s sex caused the discharge or discipline, the court must deny
the defendant’s motion for summary judgment.” The court recognized that
Lewandowski as a female is a member of a protected class and that she suffered an
adverse employment action. But it found that Lewandowski failed to establish a prima
facie case of discrimination because she had not shown that a similarly situated male
employee had been treated more favorably.
Most critically, the district court observed: “Lewandowski’s brief does not
contain any material discussion of similarly situated employees,” and that it only stated
that “Male employees who committed worse offenses than Plaintiff were not
terminated.” The district court examined Lewandowski’s supporting declarations
closely but did not find any admissible evidence regarding comparators. Critical
information came from news stories or things Lewandowski had heard from other
officers. The court pointed out correctly that it could not consider inadmissible hearsay,
over proper objections, in deciding summary judgment. It also noted that Lewandowski
had failed to include information needed to determine whether various named
individuals were indeed proper comparators, such as dates of employment, rank,
supervisor, and details as to their misconduct.
Lewandowski’s showing as to her retaliation claim fared no better. The district
court began by recognizing the proper legal standard for evaluating a retaliation claim,
observing that a prima facie retaliation case can be made via either the “direct” or
“indirect” method. See Swyear v. Fare Foods Corp., 911 F.3d 874, 885 (7th Cir. 2018). The

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court noted: “Lewandowski does not articulate under which method she is proceeding”
and went ahead to analyze her arguments under both methods. The court again found
that Lewandowski had not raised any genuine issues of material fact on her retaliation
claim.
Again, the critical problem for the district court was that plaintiff’s brief
opposing summary judgment did not provide details of any protected complaints,
which can be especially important in cases like this where an employee has had
numerous disputes with her employer. A retaliation claim requires identification of
complaints or other protected activity that rely on the relevant statute or that address
discrimination prohibited by law. Title VII does not protect every complaint by a
woman to management. It protects only those complaints or other protected activity
raising claims of sex discrimination, for example. Nevertheless, in an apparent effort to
be as fair as possible to Lewandowski, the district court walked through everything else
that might support her argument, such as her Fire and Police Commission complaint,
the comparators she offered in support of her sex discrimination claim, and so forth, but
found nothing supported by admissible evidence that raised a genuine issue of material
fact.
Lewandowski’s constitutional equal protection arguments suffered from the
same problems. Though she asserted them, she did not develop them separately, saying
only that, “As both the Title VII sex discrimination and 42 U.S.C. § 1983 equal
protection claim based on sex require the same evidence, these claims are analyzed
together below.” And she neither named an individual defendant, raised any kind of
Monell argument, nor identified any comparators. See Monell v. Dep't of Soc. Servs., 436
U.S. 658 (1978); see also Daniel v. Cook County, 833 F.3d 728, 734 (7th Cir. 2016).
Near the end of its analysis of the retaliation claim, the court emphasized: “It is
the plaintiff’s obligation to articulate how the evidence supports the elements of her
claim. Offering a conclusion and then citing to a string of proposed findings of fact is
not enough.” This comment summarizes why Lewandowski has not preserved her sex
discrimination, retaliation, and constitutional arguments for our review. As we have
recently observed: “Generally, failing to bring an argument to the district court means
that you waive that argument on appeal.” Soo Line Railroad Co. v. Consolidated Rail Corp.,
965 F.3d 596 (7th Cir. 2020), citing Wheeler v. Hronopoulos, 891 F.3d 1072, 1073 (7th Cir.
2018) (quotations omitted). Though we do not require the argument to be “present in all
its particulars” and parties may develop arguments more fully on appeal, the critical
point is that “a conclusory argument that amounts to little more than an assertion does

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not preserve a question for our review.” Id., citing Lawson v. Sun Microsystems, Inc., 791
F.3d 754, 761 (7th Cir. 2015), and Betco Corp. v. Peacock, 876 F.3d 306, 309 (7th Cir. 2017).
We agree with the district court that Lewandowski’s arguments before the
district court were conclusory. On appeal she does not recognize and address the
possibility of waiver or meaningfully engage with the district court’s reasoning. She
focused her brief instead on a mistaken interpretation of the Eastern District of
Wisconsin’s Local Rules under which she argued that the City had failed to respond
properly in the district court to her opposition to its motion for summary judgment. See
Jaworski v. Master Hand Contractors, Inc., 882 F.3d 686, 690 (7th Cir. 2018) (“The purpose
of an appeal is to evaluate the reasoning and result reached by the district court.”). Her
brief on appeal faults the City for having failed to dispute her assertions of fact
opposing summary judgment. But the summary judgment standard makes it pointless
to dispute the non-moving party’s assertions of fact, other than by arguing they are not
actually supported by admissible evidence.
We are not holding that no sex discrimination or retaliation has occurred within
the Milwaukee Police Department. Rather, our application of principles of waiver here
emphasizes that the plaintiff bears the burden of proof. A district court is entitled to
expect a party moving for or opposing summary judgment to lay out her arguments
and the supporting, admissible evidence in sufficient detail that the court is not forced
to construct the arguments itself.
The judgment of the district court is AFFIRMED.

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