Percy Taylor v. Joseph Ways

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20-1410

PERCY TAYLOR,

Plaintiff-Appellee,

v.

JOSEPH WAYS and ZELDA WHITTLER,

Defendants-Appellants.

____________________

No. 20-1411

PERCY TAYLOR,

Plaintiff-Appellee,

v.

GREGORY ERNST,

Defendant-Appellant.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:13-cv-01856 — Mary M. Rowland, Judge.

____________________

ARGUED OCTOBER 29, 2020 — DECIDED JUNE 2, 2021

____________________

2 Nos. 20-1410 & 20-1411

Before FLAUM, KANNE, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Plaintiff Percy Taylor was fired

from his job as a police officer with the Cook County Sheriff’s

Office. Taylor contends it was because of his race. He has sued

the Sheriff’s Office under Title VII of the Civil Rights Act of

1964 and defendants Joseph Ways, Zelda Whittler, and Greg-

ory Ernst under 42 U.S.C. § 1983 for violating the Equal Pro-

tection Clause of the Fourteenth Amendment. Defendants

maintain that Taylor was terminated for having fired pellets

with an air rifle at his neighbor in March 2011, a charge that

Taylor denies.

Defendant Ernst was the lead investigator assigned to Tay-

lor’s case. Taylor offers evidence that Ernst engineered his fir-

ing based on racial animosity. Taylor also asserts that defend-

ants Ways and Whittler, who are or were senior officials in the

Sheriff’s Office, are liable because they both reviewed Ernst’s

final report of his investigation and endorsed his recommen-

dation that Taylor be fired.

The district court denied the individual defendants’ mo-

tions for summary judgment based on the defense of qualified

immunity, and they have brought these interlocutory appeals

of those denials. As we explain below, the district court cor-

rectly denied qualified immunity to Ernst. The district court

erred, however, in denying qualified immunity to Ways and

Whittler. We therefore affirm in No. 20-1411 and reverse in

No. 20-1410, and remand the case to the district court, where

Taylor’s Title VII claim remains pending.

I. Factual and Procedural Background

In reviewing a denial of summary judgment based on

qualified immunity, we are limited to deciding questions of

Nos. 20-1410 & 20-1411 3

law, so we recount the facts as stated by the district court in

its assessment of the summary judgment record and give the

plaintiff the benefit of his evidence and favorable inferences

from it. Estate of Clark v. Walker, 865 F.3d 544, 547 (7th Cir.

2017); White v. Gerardot, 509 F.3d 829, 833 (7th Cir. 2007) (ac-

cepting plaintiff’s version of the facts or the facts the district

court assumed as the source of undisputed facts for a quali-

fied immunity appeal); Knox v. Smith, 342 F.3d 651, 656 (7th

Cir. 2003) (accepting plaintiff’s version of facts for a qualified

immunity appeal).

A. The Facts for Summary Judgment

1. The Reported Shooting Incident

On March 8, 2011, Harold Woolfolk was working on a

pickup truck that belonged to his neighbor, Mary Wolfe, at

her residence in Chicago, Illinois. Woolfolk claims to have

been inside the truck when he heard numerous “poofs” and

saw several “splats” on Wolfe’s windshield. According to

Woolfolk, he saw another neighbor, plaintiff Percy Taylor,

pointing a BB gun out of the third-floor window of the build-

ing facing the rear of Wolfe’s property.

Wolfe called 911 and reported that someone had shot at

the windshield of her truck. The Chicago Police Department

(CPD) dispatched two officers to her home. One officer ob-

served that nine shots had struck the vehicle. 1 CPD turned the

1 The record states that the officer observed that “shots” had struck the

vehicle. The ambiguity of the term “shots” reflects an ongoing dispute in

this case: were these shots from an air-powered BB gun? Another sort of

air rifle? A handgun or other firearm? And were any officers—from the

CPD or the Sheriff’s Office—attuned to the fact that these distinctions

4 Nos. 20-1410 & 20-1411

investigation over to the Sheriff’s Office because the subject

was a Sheriff’s Office employee, plaintiff Taylor.

2. Ernst’s Investigation of the Shooting Incident

The following day, March 9, Ernst and two other investi-

gators for the Sheriff’s Office of Professional Responsibility,

or OPR, visited Wolfe’s home to interview her and Woolfolk

and to photograph Wolfe’s truck. The three officers observed

what appeared to be nine pellet or shot marks on Wolfe’s

truck. Woolfolk identified Taylor as the man who had shot at

him. Woolfolk also said that he wanted to press charges

against Taylor. Ernst and another officer took Taylor into cus-

tody.

On March 10, Ernst obtained a search warrant for Taylor’s

vehicle and residence behind Wolfe’s residence. The officers

did not recover a BB gun or ammunition during their

searches.

OPR Investigator George Avet has testified that during the

search, Ernst used racial slurs, saying that Taylor “lived like a

n****r” and referring to Taylor as a “porch monkey.” Avet tes-

tified that Ernst used the word “n****r” a total of two to five

times while at Taylor’s residence. Avet also testified that, back

at OPR headquarters, Ernst was upset that the search of Tay-

lor’s home and vehicle had failed to produce a weapon and

declared: “We’re [going] to get this n****r.”

Taylor, meanwhile, denied shooting at either Wolfe’s truck

or Woolfolk. He told OPR investigators that he was at the gro-

cery store when the alleged shooting occurred. Upon review

might help resolve Woolfolk’s and Taylor’s competing accounts of the

shooting incident?

Nos. 20-1410 & 20-1411 5

of video surveillance from the grocery store, investigators de-

termined that it was at least possible for Taylor to have fired

the reported shots and arrived at the store when he did.

On March 16, Wolfe and Woolfolk signed criminal com-

plaints against Taylor for aggravated assault and criminal

damage to property. These criminal charges were ultimately

dismissed. While investigating the alleged shooting, Ernst

also learned that Taylor had been arrested for and convicted

of driving under the influence in Missouri in 1999 while he

was a deputy sheriff.

3. The Loudermill Hearing

On March 22, Taylor attended a so-called Loudermill hear-

ing about the shooting and DUI incidents. 2 Ernst testified for

the Sheriff’s Office. Taylor was asked whether he had reported

his DUI conviction to the Sheriff’s Office. Taylor told the

Loudermill board that he had reported his arrest and convic-

tion to Sergeant Mpistolarides in 1999. The Loudermill board

voted to suspend Taylor with pay pending Merit Board ac-

tion.

4. Ernst’s Report of Investigation

On April 11, Ernst submitted his Report of Investigation to

the other defendants here, OPR Executive Director Joseph

Ways and Cook County Undersheriff Zelda Whittler. As part

of his investigation, Ernst contacted Sergeant Mpistolarides,

who told Ernst that Taylor had not reported his 1999 DUI

2 See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985) (holding

that public employee with property interest in his job had federal due pro-

cess right to notice and opportunity to respond before he could be removed

from his job even if more elaborate hearing was available after removal).

6 Nos. 20-1410 & 20-1411

arrest and conviction. (Taylor maintains that he reported both

offenses to the Sheriff’s Office.) In his Report, Ernst recom-

mended that Taylor be terminated from his position on ac-

count of the shooting incident and the failure to report his

DUI arrest and conviction.

Ernst’s Report failed to mention potentially exculpatory

evidence, including Woolfolk’s extensive criminal history and

the complicated personal history between Woolfolk and Tay-

lor. For example, Taylor had previously reported Woolfolk for

theft, including stealing Taylor’s television and a drain-clean-

ing cable. And on the day that Taylor was arrested, Taylor had

spoken with a city sanitation worker about Woolfolk’s unau-

thorized use of Taylor’s trash cans to dump Woolfolk’s own

trash. Ernst’s Report also failed to mention that no weapon

was recovered from the search of Taylor’s residence or vehi-

cle. His Report further failed to note the lack of physical evi-

dence—including recovered pellets—that might have corrob-

orated Woolfolk’s account.

OPR investigators noted the following damage to Wolfe’s

truck: (i) four strike marks on the windshield, possibly cre-

ated by pellets; (ii) one possible gunshot hole in the right edge

of the hood; (iii) one possible gunshot hole in the front right

headlamp; (iv) three possible gunshot holes in the front left

turn signal that had penetrated the engine compartment; and

(v) a strike mark on the interior left wheel well. The investiga-

tors searched the engine compartment for projectiles but were

unable to locate any. Plaintiff’s police expert Robert Johnson

opined that it is difficult to explain the lack of recovered pro-

jectiles if the incident occurred as Woolfolk claimed.

Johnson also noted what seems like a fundamental prob-

lem with Ernst’s account: the damage to the headlights and

Nos. 20-1410 & 20-1411 7

windshield of Wolfe’s truck could not have occurred with

someone firing from the third-floor window of Taylor’s resi-

dence. According to Johnson, the rear end of the truck was

facing the third-floor window at the time of the alleged shoot-

ing. Any shots fired from Taylor’s window should have hit the

rear of the truck—not the already damaged front. Ernst ar-

gues that he did not learn until years later that the truck had

been moved, though this fact strikes us as so elementary that

it’s hard to understand how professional investigators would

not have asked about it.

5. The Holbrook Memo

After Ernst submitted his report, Police Chief Dewayne

Holbrook sent a memo to Undersheriff Whittler noting his

concerns about certain weaknesses in the investigation.

Holbrook explained that Ernst’s investigation left too many

questions unanswered. The memo also revealed that prior to

the Loudermill hearing, the Sheriff’s Office was “put off time

and again in response to its requests to view the investigatory

file prior to the hearing” and received only “some” of the re-

quested evidence at 5:00 pm on March 21—the evening before

the hearing.

The Sheriff’s Office insists that even if Ernst’s Report failed

to cover all the available information, the office received the

“entire file” and the investigation involved input and evi-

dence from others, not just Ernst. Whittler testified that, in

general, her recommendation for officer discipline would be

based on the contents of the entire OPR file. But she also tes-

tified that the OPR’s function is to investigate and recommend

discipline consistent with past practice, while her role as “the

final signature” was to ensure that the investigators met the

standard for sustaining a case. In other words, at the “final

8 Nos. 20-1410 & 20-1411

signature” stage of the disciplinary process, Whittler said, she

did not generally assess the weight of the evidence in the re-

port. Ways testified similarly that his custom was to review

reports such as Ernst’s “for correctness, completeness, and

thoroughness.” Neither Ways nor Whittler stated that they re-

viewed and considered Taylor’s entire OPR file or that they

independently investigated the information supplied by

Ernst. Critical for these appeals, however, Taylor has offered

no evidence of racial animus on the part of Ways or Whittler,

nor any evidence that they knew of any racial animus on the

part of Ernst.

6. The Merit Board Proceedings

On April 18, 2011, following review of Ernst’s Report,

Ways sustained the charges and recommended Taylor’s ter-

mination. On April 27 and 28, both Ways and Whittler signed

off on the Report as part of the “Command Channel Review”

process. Seven months later, in October 2011, a formal com-

plaint was filed with the Merit Board charging Taylor with

misconduct for the shooting incident and his alleged failure

to report the DUI arrest and conviction. Pending resolution,

Taylor was assigned to work in the Court Services Division.

On February 27, 2013, the Merit Board conducted an evi-

dentiary hearing. Ernst testified that Taylor’s conduct violated

the Sheriff’s Office’s general orders, rules, and regulations.

Taylor has testified that before the hearing, Ernst threatened

him: “You better quit, n****r.” On October 30, 2013, the Merit

Board issued its decision, ordering that Taylor be removed

from his position effective immediately. 3

3 In September 2011, Taylor was involved in two unrelated incidents that

resulted in separate Loudermill hearings and separate complaints filed

Nos. 20-1410 & 20-1411 9

B. This Lawsuit

On March 8, 2013, Taylor filed this suit against Cook

County, the Sheriff’s Office, Cook County Sheriff Thomas J.

Dart, Ways, Whittler, Ernst, and other individual defendants

asserting claims under Title VII of the Civil Rights Act of 1964

and 42 U.S.C. § 1983. Defendants filed motions for summary

judgment on all claims.

The district court denied summary judgment on three of

Taylor’s claims: (i) his Title VII race discrimination claim

against the Sheriff’s Office; (ii) the § 1983 equal protection race

discrimination claim against Ernst, Ways, and Whittler; and

(iii) an indemnification claim against Cook County. Only Tay-

lor’s § 1983 equal protection claim is at issue in these interloc-

utory appeals. The district court denied qualified immunity

to the three individual defendants, citing evidence of Ernst’s

racial animus and his heavy involvement in the disciplinary

proceedings, and Ways’ and Whittler’s respective roles as fi-

nal decision-makers. Taylor v. Cook County Sheriff’s Office, 442

F. Supp. 3d 1031, 1050 (N.D. Ill. 2020). We address first Ernst

and then Ways and Whittler, considering first the scope of our

jurisdiction and then the merits of the qualified immunity de-

fenses.

with the Merit Board. The first incident involved a misdemeanor battery

allegation against Taylor and the second involved an allegation that Tay-

lor had threatened a Cook County employee. The complaints were dis-

missed after Taylor’s termination in October 2013. The Sheriff’s Office

later sought reinstatement of both complaints. Since those complaints are

not at issue in these appeals, we do not discuss them further.

10 Nos. 20-1410 & 20-1411

II. Defendant Ernst’s Appeal

A. Scope of Appellate Jurisdiction

We begin with appellate jurisdiction, which Taylor insists

we lack entirely. A denial of qualified immunity can be ap-

pealed only “to the extent that it turns on an issue of law.”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). When the denial

stems from a finding that material facts are disputed, how-

ever, the officer’s claim of immunity and the merits of the

plaintiff’s claim that his rights have been violated can blend

together. Estate of Davis v. Ortiz, 987 F.3d 635, 639–40 (7th Cir.

2021).

In these cases, because “fact-related legal issues” can dom-

inate the immunity defense, the appellant must be willing to

set aside his version of the facts and accept for the interlocu-

tory appeal the facts as the district court assumed them or in

the light most favorable to the non-moving party. Id. at 639,

quoting Johnson v. Jones, 515 U.S. 304, 314 (1995); see also Jones

v. Clark, 630 F.3d 677, 680 (7th Cir. 2011) (rejecting “back-door

effort to contest the facts” in an interlocutory appeal of a de-

nial of qualified immunity). Put another way, if the appel-

lant’s supposedly legal arguments are “dependent upon, and

inseparable from, disputed facts,” appellate jurisdiction is

lacking. Gant v. Hartman, 924 F.3d 445, 449 (7th Cir. 2019),

quoting White, 509 F.3d at 835. If, however, the appellant’s le-

gal arguments can be separated from his version of the facts,

we may review the purely legal question “whether a given set

of undisputed facts demonstrates a violation of clearly estab-

lished law.” Estate of Davis, 987 F.3d at 639–40, quoting John-

son, 515 U.S. at 319.

Nos. 20-1410 & 20-1411 11

Ernst raises both legal and factual arguments to invoke

qualified immunity. The legal arguments give us jurisdiction

over his appeal, but at this stage of the case, we may not con-

sider his factual arguments. For example, Ernst argues that

his actions were not the proximate cause of Taylor’s termina-

tion, and he contends that he did not exert any influence on

the decisions of Ways or Whittler. He also argues that the

Merit Board, following a formal, adversarial hearing, termi-

nated Taylor based on the evidence presented, independent

of any racial animus on his part. Ernst acknowledges that

proximate cause is generally an issue of fact, but he argues

that the facts surrounding the cause of Taylor’s firing are not

in dispute. We read the record differently.

Leaving aside the broader question whether an issue of

proximate cause is ever suitable for an interlocutory appeal of

a denial of qualified immunity, the facts surrounding the

cause of Taylor’s firing are disputed, as the district court

found. We may not decide as a matter of law and in an inter-

locutory appeal that Ernst and his (presumed) racial animus

did not influence Ways’ or Whittler’s recommendations or the

Merit Board’s decision to terminate Taylor. We thus lack juris-

diction over Ernst’s causation arguments. See, e.g., Koh v. Us-

tich, 933 F.3d 836, 848 (7th Cir. 2019) (reiterating that causation

arguments are beyond the scope of appellate jurisdiction in

an interlocutory appeal of a denial of qualified immunity);

Jackson v. Curry, 888 F.3d 259, 266 (7th Cir. 2018) (“We pres-

ently lack jurisdiction over the superseding-cause issue as it

is not a pure legal question related to qualified immunity.”).

Next, in a variation on the proximate cause argument,

Ernst argues that none of the evidence concerning his alleged

racial animus against Taylor could transform his “reasonable”

12 Nos. 20-1410 & 20-1411

termination recommendation into an equal protection viola-

tion. This is a non-starter. The evidence of Ernst’s racial slurs

during the OPR investigation and just before the Merit Board

hearing would allow a reasonable jury to infer that he acted

out of racial animus. The district court found disputed issues

of fact on whether Ernst’s (presumed) racial animus caused

Taylor’s termination. We lack jurisdiction to consider this var-

iation on a factual argument. See Gant, 924 F.3d at 451 (dis-

missing interlocutory appeal of a denial of qualified immun-

ity because appellant’s argument relied on disputed fact);

Jackson, 888 F.3d at 262 (“[D]efendants cannot immediately

appeal factual determinations regarding qualified immun-

ity.”); Gutierrez v. Kermon, 722 F.3d 1003, 1014 (7th Cir. 2013)

(dismissing interlocutory appeal based on “a genuine factual

dispute in need of a jury’s attention”).

Ernst argues that none of the evidence of his racial animus

undermines his reasonable belief that Taylor committed the

crimes of aggravated battery and criminal damage to prop-

erty. He argues that the Holbrook memo, at most, catalogues

“subjective investigative deficiencies” that he had no consti-

tutional duty to investigate once he had probable cause to ar-

rest Taylor. This argument both misses the mark and falls out-

side our jurisdiction in this interlocutory appeal.

For purposes of summary judgment, the district court as-

sumed that Ernst had probable cause to arrest Taylor on

March 9, 2011, the day after the reported shooting incident.

We assume so as well. But the relevant legal question in this

appeal is whether probable cause to arrest Taylor on March 9

provides Ernst a complete defense for racially discriminatory

actions in the later OPR investigation of Taylor and the pro-

ceedings that led to Taylor’s termination. That question is

Nos. 20-1410 & 20-1411 13

embedded in the larger issue of qualified immunity for Ernst

discussed below.

B. Merits of Qualified Immunity for Ernst

Qualified immunity “protects government officials ‘from

liability for civil damages insofar as their conduct does not vi-

olate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Pearson v.

Callahan, 555 U.S. 223, 231 (2009), quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). On summary judgment, the qualified

immunity defense depends on two questions: “(1) whether

the facts, taken in the light most favorable to the plaintiff,

show that the defendant violated a constitutional right; and

(2) whether the constitutional right was clearly established at

[that] time.” Estate of Clark v. Walker, 865 F.3d 544, 550 (7th Cir.

2017), quoting Gonzalez v. City of Elgin, 578 F.3d 526, 540 (7th

Cir. 2009). If the answer to either question is no, the defendant

official is entitled to summary judgment. Gibbs v. Lomas, 755

F.3d 529, 537 (7th Cir. 2014). We may choose which prong to

address first. Pearson, 555 U.S. at 236; Whitlock v. Brueggemann,

682 F.3d 567, 580 (7th Cir. 2012). When a district court denies

summary judgment based on qualified immunity, our review

of legal issues is both permitted and de novo. Levin v. Madi-

gan, 692 F.3d 607, 622 (7th Cir. 2012).

Taylor alleges that the defendants violated his equal pro-

tection rights under the Fourteenth Amendment by terminat-

ing his employment based on his race. The Equal Protection

Clause prohibits intentional racial discrimination by state and

local officials, and a person who is subjected to such discrim-

ination may seek relief under 42 U.S.C. § 1983. Majeske v. Fra-

ternal Order of Police, Local Lodge No. 7, 94 F.3d 307, 311 (7th

14 Nos. 20-1410 & 20-1411

Cir. 1996); Ratliff v. City of Milwaukee, 795 F.2d 612, 624 (7th

Cir. 1986).

1. Step One: Violation of a Constitutional Right

The district court found that Taylor presented sufficient

evidence that a reasonable jury could find that Ernst, moti-

vated by racial animus, caused Taylor’s firing. Ernst argues he

is entitled to qualified immunity because the law was not

clearly established that an official with his investigatory re-

sponsibilities, but without decision-making authority, could

be held liable on a “cat’s paw” theory for race-motivated fir-

ing. Ernst also argues that the district court erred by refusing

to consider the non-discriminatory rationale that he provided

in defense of his termination recommendation: that the prob-

able cause he had to arrest Taylor immunized him for any-

thing that happened later. We consider these arguments in

turn.

For his claim against Ernst as an individual, Taylor relies

on the cat’s paw theory of liability used so often in employ-

ment discrimination cases. The theory takes its name from

one of Aesop’s fables. E.g., Staub v. Proctor Hosp., 562 U.S. 411,

415 n.1 (2011); Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir.

2004); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990).

Taylor’s theory is that Ernst’s racial animus poisoned the in-

vestigation against him and that Ways, Whittler, and the

Merit Board failed to take sufficient steps of their own to re-

move the taint of Ernst’s racial animus. In response, Ernst ar-

gues, in effect, that as the monkey who used Ways, Whittler,

and the Merit Board as his cat’s paw, he is shielded from in-

dividual liability under § 1983. We disagree.

Nos. 20-1410 & 20-1411 15

In 2012 we observed that a cat’s paw theory would sup-

port imposing individual liability under § 1983 on subordi-

nate government employees who act with unlawful motives

to cause the actual decision-makers to take action against an-

other employee. Smith v. Bray, 681 F.3d 888, 898 (7th Cir. 2012),

overruled on other grounds by Ortiz v. Werner Enters., Inc., 834

F.3d 760, 764–66 (7th Cir. 2016). We noted that at least five

other circuits had held or said as much. Id. at 898–99 (collect-

ing cases). 4 So despite Ernst’s non-supervisory role, he is not

4 In Smith, we cited Tejada–Batista v. Morales, 424 F.3d 97, 102 (1st Cir. 2005)

(affirming jury verdict against subordinate law enforcement officers who,

to retaliate against plaintiff for engaging in protected First Amendment

activity, recommended his discharge; the “properly motivated” decision-

maker “does not insulate[] the ill-motivated subordinate” who “is a but-

for cause of the firing”); Maestas v. Segura, 416 F.3d 1182, 1191 (10th Cir.

2005) (“While Segura made the final decision to transfer Plaintiffs, Pratt,

though a subordinate, might be liable if he possessed a retaliatory motive

which set in motion the events that ultimately led to Plaintiffs’ transfers.

In this case, Pratt did not set in motion the chain of events which ultimately

led to Plaintiffs’ transfers.”) (citations omitted); Strahan v. Kirkland, 287

F.3d 821, 826 (9th Cir. 2002) (“Even if the ultimate decision-maker can es-

tablish that the adverse action was not in retaliation for protected conduct,

a subordinate with a retaliatory motive can be liable ‘if an improper motive sets

in motion the events that lead to termination that would not otherwise

occur … . [A] subordinate cannot use the nonretaliatory motive of a supe-

rior as a shield against liability if that superior never would have consid-

ered a dismissal but for the subordinate’s retaliatory conduct.’”) (empha-

sis added), quoting Gilbrook v. City of Westminster, 177 F.3d 839, 854–55 (9th

Cir. 1999); Darnell v. Ford, 903 F.2d 556, 561–62 (8th Cir. 1990) (affirming

jury verdict against defendant, a subordinate patrol major who investi-

gated the conduct of and recommended the demotion of a captain, for vi-

olating the captain’s First Amendment right of association); Saye v. St.

Vrain Valley Sch. Dist. RE–1J, 785 F.2d 862 (10th Cir. 1986) (reversing di-

rected verdict for defendant school district and defendant principal in § 1983

retaliation action brought by teacher because she presented evidence that

16 Nos. 20-1410 & 20-1411

insulated from individual liability under § 1983 so long as

Taylor can prove that Ernst’s discriminatory motive was a fac-

tor in bringing about his termination. See id. Taylor has pre-

sented just such evidence: evidence of Ernst’s racial animus

toward Taylor and evidence of Ernst’s significant role in the

investigative and disciplinary proceedings that brought about

Taylor’s termination.

Ernst emphasizes his “subordinate” role, but that cannot

defeat the cat’s paw theory, which assumes from the begin-

ning the (alleged) bad actor’s subordinate role. That’s the

whole point: someone who is not the final decision-maker

causes the termination or other adverse action for an unlawful

motive by manipulating the final decision. Ernst has not cited

any authority that would support limiting application of the

well-established cat’s paw theory to any particular levels in

employers’ hierarchical organizations, and we see no reason

to do so.

principal had recommended her non-renewal in retaliation for her union

participation, that the superintendent “relied on [the principal’s] recom-

mendation to a substantial extent in presenting the matter to the School

Board,” and that “School Board members … relied completely on the rec-

ommendations of the administration in voting not to renew” plaintiff’s

contract); and Professional Ass’n of Coll. Educators v. El Paso County Cmty.

Coll. Dist., 730 F.2d 258, 266 (5th Cir. 1984) (upholding liability under

§ 1983 of college president who recommended discharge of faculty mem-

bers in retaliation for First Amendment activity where board of trustees

followed that recommendation, and holding that “[i]t is not necessary that

the improper motive be the final link in the chain of causation: if an im-

proper motive sets in motion the events that lead to termination that

would not otherwise occur, intermediate step[s] in the chain of causation

do not necessarily defeat the plaintiff’s claim”) (internal quotation marks

omitted).

Nos. 20-1410 & 20-1411 17

“Unmistakable evidence of racial animus,” such as a de-

fendant’s use of racial epithets or slurs, makes for a “simple

analysis.” LaRiviere v. Bd. of Trustees of Southern Illinois Univ.,

926 F.3d 356, 359 (7th Cir. 2019); see also Dandy v. United Parcel

Serv., Inc., 388 F.3d 263, 272 (7th Cir. 2004) (“Racial epithets or

stray remarks may be direct or circumstantial evidence of in-

tentional discrimination if they are sufficiently connected to

the employment decision[.]”). Taylor has presented testimony

from OPR Investigator George Avet that Ernst used racial

slurs against Taylor at multiple points during the 2011 OPR

investigation into the shooting incident. Further, Taylor testi-

fied that prior to the February 2013 Merit Board hearing, Ernst

used a racial slur while telling Taylor to quit his job. This is

“unmistakable” evidence—which we must credit at this stage

of the case—of Ernst’s intent to discriminate and indeed

makes for a simple analysis.

Taylor has also presented sufficient evidence that Ernst

played a key role in the investigative and administrative pro-

ceedings that led to his termination. Let’s start with the obvi-

ous. In March 2011, Ernst was the senior and lead investigator

assigned to the OPR investigation of the shooting incident. He

drafted and obtained the warrant to search Taylor’s residence

and vehicle and authored the Report of Investigation, which

Ways and Whittler reviewed as part of the disciplinary pro-

cess.

As author of the Report, Ernst decided what evidence was

presented and what evidence was left out or simply left unin-

vestigated. We are particularly concerned by Johnson’s opin-

ion that any shots fired from the third-floor window of Tay-

lor’s residence could not have damaged the headlights and

windshield of Wolfe’s truck because the rear end of the truck

18 Nos. 20-1410 & 20-1411

was facing that window at the time of the shooting. If this is

true, Woolfolk’s account of the shooting and the results of

Ernst’s subsequent investigation are at odds with reality.

When we combine these two strands of evidence—Ernst’s

racial animus and his extensive involvement in Taylor’s ter-

mination—the case turns on genuine issues of material fact. A

reasonable juror might conclude that Ernst did not like Taylor

because of his race and deliberately slanted the OPR investi-

gation to force him out of the Sheriff’s Office. A reasonable

juror could also accept Ernst’s explanation that he in fact har-

bored no racial animus and that the events and charges un-

derlying his investigation and Report provide a sound non-

discriminatory reason for recommending termination. The

dispute precludes summary judgment for Ernst.

Ernst’s second argument is based on the undisputed facts

showing that he had probable cause to arrest Taylor on

March 9, 2011 based on Woolfolk’s and Wolfe’s statements as

witnesses. He cites our line of precedents holding that a police

officer does not violate the Fourth Amendment by arresting a

person if she has probable cause for the arrest, and that an

officer with probable cause ordinarily may proceed with an

arrest without further investigating potentially exculpatory

evidence. See, e.g., Matthews v. City of East St. Louis, 675 F.3d

703, 707 (7th Cir. 2012) (“[O]nce an officer has probable cause,

he need not seek out exculpatory evidence. Here, probable

cause was established by [the witness’s statement], therefore

[the officer] need not continue to investigate.”); Beauchamp v.

City of Noblesville, 320 F.3d 733, 743 (7th Cir. 2003) (collecting

cases supporting proposition that “complaint of a single wit-

ness or putative victim alone generally is sufficient to estab-

lish probable cause to arrest unless the complaint would lead

Nos. 20-1410 & 20-1411 19

a reasonable officer to be suspicious, in which case the officer

has a further duty to investigate”).

This line of precedents does not apply to Taylor’s equal

protection claim about his allegedly race-based termination.

A patrol officer is not a judge. Once she has probable cause to

arrest, the Fourth Amendment allows her to make the arrest

and leave it to others in the criminal justice system to sort out

conflicting evidence. The situation here is entirely different.

Taylor is not challenging his arrest. He is challenging his ter-

mination. Ernst took the lead in an investigation that contin-

ued for weeks after Taylor’s arrest, and Ernst’s involvement

in the case continued for years, at least through the Merit

Board hearing in 2013. If his racial animus toward Taylor led

him to conceal or turn a blind eye to exculpatory evidence

during that longer investigation, and if his actions caused

Taylor’s termination, the Equal Protection Clause reaches

such actions. See de Lima Silva v. Department of Corrections, 917

F.3d 546, 565 (7th Cir. 2019) (“It is well-established that termi-

nating an employee on the basis of his protected status—in-

cluding race or national origin—violates the Equal Protection

Clause of the Fourteenth Amendment.”); cf. Coleman v. Do-

nahoe, 667 F.3d 835, 859 (7th Cir. 2012) (reversing summary

judgment for Postal Service on plaintiff’s Title VII claim of

race discrimination where evidence of selective enforcement

of discipline created material fact dispute as to whether Postal

Service’s stated reason for terminating plaintiff was pre-

textual).

2. Step Two: Clearly Established Law in 2011 and 2013

Under the facts asserted by Taylor and relied upon by the

district court, Ernst violated clearly established law. “A right

is clearly established when, at the time of the challenged

20 Nos. 20-1410 & 20-1411

conduct, the contours of a right are sufficiently clear that

every reasonable official would have understood that what he

is doing violates that right.” Hernandez v. Foster, 657 F.3d 463,

473–74 (7th Cir. 2011) (cleaned up), quoting Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011). In 2011 and 2013, when the events

took place, it was clearly established that a government offi-

cial violates the Equal Protection Clause of the Fourteenth

Amendment by using his official powers to cause a colleague

to be fired on the basis of race. See de Lima Silva, 917 F.3d at

565.

Any reasonable official in Ernst’s position would have

known that intentional racial discrimination toward another

employee was unconstitutional. And what Taylor alleges

against Ernst is textbook racial discrimination. The word

“n****r,” used by Ernst, a white man, aimed at Taylor on sev-

eral separate occasions, reflects a uniquely virulent strain of

racism, long recognized by the federal courts as capable of

having a “highly disturbing impact on the listener.” Hrobowski

v. Worthington Steel Co., 358 F.3d 473, 477 (7th Cir. 2004); cf.

Virginia v. Black, 538 U.S. 343, 354–55 (2003) (noting associa-

tion of the word “n****r” with Ku Klux Klan’s campaign of

racial violence and intimidation).

The illegality of Ernst’s alleged conduct was obvious long

before these events in 2011 and 2013. In Auriemma v. Rice, for

example, we said that any “police chief who thought he could

demote and promote only along allegedly clear racial lines

could not be a reasonable police chief.” 910 F.2d 1449, 1457

(7th Cir. 1990) (en banc). In Auriemma, eighteen white Chicago

police officers alleged that they were demoted by a black for-

mer police superintendent on account of their race. Id. at 1451.

In determining the second step of the qualified immunity

Nos. 20-1410 & 20-1411 21

analysis, whether the constitutional right allegedly violated

was clearly established in the 1980s, we explained that the

kind of racial discrimination alleged by the white officers—

intentional racial discrimination—“ha[d] not just recently been

found to be unsupportable.” Id. at 1455; see also Mohr v. Chi-

cago Sch. Reform Bd. of Trs., 99 F. Supp. 2d 934, 940 (N.D. Ill.

2000) (“[A]ny reasonable administrator would know that in-

tentional racism was illegal[.]”).

Ernst, however, argues that the second prong of the qual-

ified immunity inquiry requires precedent tied to more par-

ticularized facts. He argues that the district court incorrectly

denied qualified immunity based on the “broad principle that

terminating an employee on the basis of his race violates

equal protection.” According to Ernst, in 2011 and 2013, it was

not clearly established that a subordinate employee could be held

liable for unlawful efforts to cause the termination of another

employee.

Ernst’s argument asks the wrong question about qualified

immunity. The question is not whether rules of individual lia-

bility for the conduct were clearly established at the time. The

question is whether the wrongfulness of the defendant’s conduct

was clearly established. Armstrong v. Daily, 786 F.3d 529, 556

(7th Cir. 2015) (“The issue is not whether issues concerning

the availability of a remedy are settled. The qualified immunity

defense focuses instead on whether the official defendant’s

conduct violated a clearly established constitutional right.”);

Fields v. Wharrie, 740 F.3d 1107, 1114 (7th Cir. 2014) (in decid-

ing immunity, “the focus is on his conduct, not on whether

that conduct gave rise to a tort in a particular case”). The Su-

preme Court has repeatedly described the defense of quali-

fied immunity in terms of whether the defendant official’s

22 Nos. 20-1410 & 20-1411

“actions” or “conduct” violated clearly established law, not in

terms of whether a defendant should have realized he would

be held civilly liable for his actions or conduct. E.g., Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (“conduct”); Behrens v. Pelle-

tier, 516 U.S. 299, 305 (1996) (“conduct”); Anderson v.

Creighton, 483 U.S. 635, 638 (1987) (“actions”); Mitchell v. For-

syth, 472 U.S. 511, 528 (1985) (“actions”); Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982) (“conduct”).

By 2011, a veritable river of precedents established that

public employees may not discriminate against other employ-

ees on the basis of race. E.g., Pilditch v. Bd. of Educ. of City of

Chicago, 3 F.3d 1113, 1116 (7th Cir. 1993) (intentional reverse

racial discrimination by black city council members against

white principal would violate Equal Protection Clause); Au-

riemma, 910 F.2d at 1455 (emphasizing that intentional dis-

crimination alleged against white officers “ha[d] not just re-

cently been found to be unsupportable”); Ratliff v. City of Mil-

waukee, 795 F.2d 612, 624 (7th Cir. 1986) (where plaintiff al-

leged racial discrimination by police academy supervisors,

we reiterated that “the Fourteenth Amendment … grant[s]

‘public sector employees independent rights to be free of em-

ployment discrimination’”), quoting Trigg v. Fort Wayne Cmty.

Schs., 766 F.2d 299, 302 (7th Cir. 1985); see also Washington v.

Davis, 426 U.S. 229, 239 (1976) (“The central purpose of the

Equal Protection Clause of the Fourteenth Amendment is the

prevention of official conduct discriminating on the basis of

race.”); Hunt v. City of Markham, 219 F.3d 649, 652, 655 (7th Cir.

2000) (statements by black mayor reflecting racial animus to-

ward constructively discharged white police officers were ev-

idence of impermissible discrimination in violation of 42

U.S.C. § 1981).

Nos. 20-1410 & 20-1411 23

Based on the district court’s analysis of the summary judg-

ment evidence, we must assume here that Ernst acted out of

racial animus and that his actions caused Taylor’s termina-

tion. Any reasonable public employee, and certainly any pub-

lic employee responsible for investigating other employees

for disciplinary purposes, would have known he could not act

on the basis of racial animus. Ernst simply has not offered a

plausible argument to the effect that a reasonable police of-

ficer in 2011 could have thought he could engineer a col-

league’s termination because of his race without violating the

Constitution.

In addition, while precedent tied to particularized facts

can indicate that a point of law is clearly established, the Su-

preme Court does not demand a case directly on point.

Thompson v. Cope, 900 F.3d 414, 422 (7th Cir. 2018); see also

Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020) (reiterating that “a

general constitutional rule already identified in the decisional

law may apply with obvious clarity to the specific conduct in

question”), quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002).

There “can be the rare ‘obvious case,’ where the unlawfulness

of the officer’s conduct is sufficiently clear even though exist-

ing precedent does not address similar circumstances.” Dis-

trict of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018), quoting

Brosseau v. Hagen, 543 U.S. 194, 199 (2004); see also Denius v.

Dunlap, 209 F.3d 944, 951 (7th Cir. 2000) (“In some rare cases,

where the constitutional violation is patently obvious, the

plaintiff may not be required to present the court with any

analogous cases, as widespread compliance with a clearly ap-

parent law may have prevented the issue from previously be-

ing litigated.”); Elliot-Park v. Manglona, 592 F.3d 1003, 1008–09

(9th Cir. 2010) (because non-discrimination principle in equal

protection cases is “so clear,” there does not need to be a prior

24 Nos. 20-1410 & 20-1411

case with materially similar facts for a right to be clearly es-

tablished). If the cited cases on race discrimination in public

employment decisions were not enough, the facts we must as-

sume would qualify this case as that rare, obvious case. Based

on the wealth of case law on the unlawfulness of race discrim-

ination in the employment context, Ernst had “fair and clear

warning” in 2011 and 2013 that he was violating the Constitu-

tion. Thompson, 900 F.3d at 422, quoting White v. Pauly, 137 S.

Ct. 548, 552 (2017). We therefore affirm denial of summary

judgment for Ernst. 5

III. The Appeal of Ways and Whittler

A. Scope of Appellate Jurisdiction

Whether Ways and Whittler are entitled to qualified im-

munity also turns on a question of law, and we have jurisdic-

tion over their appeal. Unlike Ernst’s appeal, Ways and Whit-

tler’s core argument does not rely on disputed issues of fact.

Ways and Whittler argue that they were “innocent offi-

cials” who lacked knowledge of Ernst’s discriminatory pur-

pose. Their respective termination recommendations, then,

were not based on Taylor’s race. This argument, despite Tay-

lor’s protests, does not rely on the many disputed facts.

5 We disagree with Taylor’s arguments that Ernst waived some of the ar-

guments he makes on appeal. While his arguments on appeal have shifted,

they have done so in response to the district court’s reasoning. In effect,

the district court “opened the door” to Ernst’s argument on appeal by

denying qualified immunity on a basis not clearly presented by the par-

ties’ arguments in the district court. See Allison v. Ticor Title Ins. Co., 979

F.2d 1187, 1194 (7th Cir. 1992). A “party may attack the legal theory on

which the district court based its decision,” and that is precisely what

Ernst has done on appeal. Id., citing Hedge v. County of Tippecanoe, 890 F.2d

4, 8 (7th Cir. 1989), and Toney v. Burris, 829 F.2d 622, 626–27 (7th Cir. 1987).

Nos. 20-1410 & 20-1411 25

Taylor, for example, disputes the conclusions underlying

Ernst’s Report. He denies firing a BB gun at either Woolfolk

or Wolfe’s truck. He denies failing to report his 1999 DUI ar-

rest and conviction to the Sheriff’s Office. And he argues that

termination was “extraordinarily severe” as compared to dis-

cipline in similar cases with other Sheriff’s Office personnel.

But none of Taylor’s disputed facts—including his denial of

the underlying misconduct—have any bearing on Ways and

Whittler’s principal defense, which is that they bore no racial

animus of their own and lacked knowledge of Ernst’s racial

animus toward Taylor.

Taylor also argues that the material facts of Ways’ and

Whittler’s respective roles in his termination are disputed.

Most significantly, he argues that whether Ernst had any in-

fluence over Ways’ and Whittler’s respective termination rec-

ommendations, whether Whittler merely rubber-stamped

Ernst’s Report, and whether Ways or Whittler attempted to

corroborate the results of the OPR investigation remain in dis-

pute. These factual disputes may be important for Taylor’s Ti-

tle VII claim against the Sheriff’s Office as an employer, but

liability on a § 1983 equal protection claim is decided one per-

son at a time. E.g., Estate of Perry v. Wenzel, 872 F.3d 439, 459

(7th Cir. 2017). These disputes are not material to the individ-

ual claims against Ways and Whittler. And that is the crux of

Ways and Whittler’s argument: that they are entitled to qual-

ified immunity unless Taylor has evidence that they (i) were

themselves motivated by race; (ii) knew of Ernst’s racial ani-

mus and did nothing about it; or (iii) turned a blind eye to

26 Nos. 20-1410 & 20-1411

warnings of Ernst’s racial animus. In sum, their argument is a

legal question that we may consider here. 6

B. Merits of Qualified Immunity for Ways and Whittler

For constitutional violations under § 1983, “a government

official ‘is only liable for his or her own misconduct.’” Locke v.

Haessig, 788 F.3d 662, 669 (7th Cir. 2015), quoting Ashcroft v.

Iqbal, 556 U.S. 662, 677 (2009). There is no such thing as re-

spondeat superior liability for government officials under

§ 1983. E.g., Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir.

1988). The supervisor is therefore liable only if she was per-

sonally involved in the constitutional violation. Gill v. City of

Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017). Personal involve-

ment in a subordinate’s constitutional violation requires su-

pervisors to “know about the conduct and facilitate it, ap-

prove it, condone it, or turn a blind eye for fear of what they

might see.” Matthews, 675 F.3d at 708, quoting Jones, 856 F.2d

at 992–93; see also Doe v. Purdue Univ., 928 F.3d 652, 664 (7th

Cir. 2019) (stating same). Put another way, personal involve-

ment in the equal protection context requires specific intent to

discriminate. Locke, 788 F.3d at 669.

The facts of the often-cited Ashcroft v. Iqbal illustrate this

point. Javaid Iqbal, a Pakistani Muslim, was arrested and de-

tained by federal officials in the wake of the 9/11 terrorist at-

tacks. He alleged that he was deprived of several constitu-

tional protections while in federal custody. 556 U.S. at 666. Iq-

bal named several federal officials as defendants, including

correctional officers with whom he had day-to-day contact,

6 Taylor argues that Ways and Whittler also waived some of the argu-

ments they raise on appeal. We disagree. Ways and Whittler sufficiently

raised their “innocent official” defense in the district court.

Nos. 20-1410 & 20-1411 27

prison wardens, and most notably, then-Attorney General

John Ashcroft and then-Director of the FBI Robert Mueller. Id.

at 666, 668.

Iqbal alleged that his jailors “kicked him in the stomach,

punched him in the face, and dragged him across his cell

without justification, subjected him to serial strip and body-

cavity searches,” and refused to let him pray because there

would be “[n]o prayers for terrorists.” Id. at 668 (cleaned up).

As to Ashcroft and Mueller, however, Iqbal alleged only that

they adopted an unconstitutional policy that subjected “high-

interest” detainees such as himself to harsh conditions of con-

finement based on race, religion, or national origin. Id. at 667–

69. Iqbal alleged that Ashcroft was the “principal architect” of

the unconstitutional policy, while Mueller was “instrumental

in [its] adoption, promulgation, and implementation.” Id. at

669.

The Supreme Court explained that while Iqbal’s account

of his prison conditions, could, if proved, demonstrate consti-

tutional violations by some governmental actors, he had not

plausibly alleged that Ashcroft and Mueller were personally

involved in those violations. Id. at 668–69, 682–83. Iqbal’s com-

plaint was devoid of factual allegations that plausibly sug-

gested discriminatory intent on the part of Ashcroft or

Mueller. Id. at 683. So, even accepting the truth of the allega-

tion that Ashcroft and Mueller had adopted the restrictive

confinement policy for post-9/11 detainees, that allegation did

not support a plausible claim of purposeful discrimination on

account of race, religion, or national origin. Id. On the facts

alleged by Iqbal, the arrests engineered by Ashcroft and over-

seen by Mueller were “likely lawful and justified by [a] non-

discriminatory intent to detain aliens who were illegally

28 Nos. 20-1410 & 20-1411

present in the United States and who had potential connec-

tions to those who committed terrorist acts.” Id. at 682. 7

For Ways and Whittler to be held liable for racial discrim-

ination, then, Taylor needed to offer evidence that they acted

on the basis of his race. See Iqbal, 556 U.S. at 683; Locke, 788

F.3d at 669. They need not have participated directly in the

constitutional deprivation, but the allegations must amount

to more than vicarious liability for Ernst’s unlawful actions.

See, e.g., Carmody, 893 F.3d at 403. Taylor’s evidence falls

short.

7 Several recent examples from this circuit illustrate Iqbal’s core teaching:

that a plaintiff must allege direct liability to maintain an individual claim

under § 1983. In Locke v. Haessig, we held that evidence of a defendant su-

pervisor’s retaliation against plaintiff for reporting sexual harassment,

when combined with evidence of failure to intervene or investigate plain-

tiff’s claims of sexual harassment, was enough to support an inference of

an intent to discriminate. 788 F.3d at 671–72. Critically, plaintiff offered

evidence that tended to show that the supervisor’s response to his com-

plaints amounted to more than mere inaction. Id. Conversely, in Gill v. City

of Milwaukee, the plaintiff failed to allege that the defendant police chief

either knew about or was personally involved in the Fifth and Fourteenth

Amendment violations alleged against two detectives under his supervi-

sion. 850 F.3d at 344. The complaint alleged that the police chief failed to

train the detectives adequately and was “deliberately and recklessly indif-

ferent” to their conduct. Id. This was not enough to maintain a claim for

individual liability under § 1983. Id.; see also Carmody v. Bd. of Trs. of Univ.

of Illinois, 893 F.3d 397, 403 (7th Cir. 2018) (summary judgment appropriate

where plaintiff’s arguments in favor of individual liability under § 1983

for university president and associate provost amounted to respondeat su-

perior liability); Horshaw v. Casper, 910 F.3d 1027, 1029 (7th Cir. 2018) (“Li-

ability under § 1983 is direct rather than vicarious; supervisors are respon-

sible for their own acts but not for those of subordinates, or for failing to

ensure that subordinates carry out their tasks correctly.”).

Nos. 20-1410 & 20-1411 29

In denying these defendants’ motion for summary judg-

ment, the district court emphasized their respective roles as

nearly final decision-makers. Ways, the court noted, sustained

the charges and termination recommendation against Taylor,

and Whittler both concurred with the termination recommen-

dation and served as the final signature on the Ernst-led OPR

investigation. Analogizing this case to de Lima Silva v. Depart-

ment of Corrections, 917 F.3d 546 (7th Cir. 2019), the district

court concluded that Ways and Whittler were not entitled to

qualified immunity.

We disagree with the district court’s analysis for two rea-

sons. First, the district court relied on evidence that Ways and

Whittler played key roles in approving Ernst’s termination,

which does not seem to be in dispute. That evidence does not

signal, however, that either Ways or Whittler harbored any

racial animus against Taylor or anyone else, or that they knew

or suspected that Ernst was motivated by race. Indeed, when

asked during oral argument to identify the “best evidence”

that Ways and/or Whittler knew of Ernst’s bias, Taylor’s attor-

ney responded that “they knew of the deficiencies in the in-

vestigation—or at least Whittler did.” An allegation that the

supervisor had knowledge of a deficiency is not, without

more, enough to maintain an individual liability claim under

§ 1983. See Horshaw, 910 F.3d at 1029; Carmody, 893 F.3d at 403.

Second, the district court’s reliance on de Lima Silva is in-

apposite. The plaintiff was a Latino correctional sergeant

whose use of force on an inmate triggered an internal review

process that ultimately led to his termination. 917 F.3d at 551.

In response, de Lima Silva sued Warden Quala Champagne

under § 1983 for violating the Equal Protection Clause. The

district court granted summary judgment in favor of Warden

30 Nos. 20-1410 & 20-1411

Champagne, but we reversed, finding that de Lima Silva had

provided sufficient evidence from which a reasonable jury

could infer Warden Champagne was personally involved in

de Lima Silva’s constitutional deprivation, his termination on

the basis of race. See id. at 559–64.

Warden Champagne was much more involved with de

Lima Silva’s case than Ways and Whittler were in Taylor’s

case. Warden Champagne ordered the initial personnel inves-

tigation into de Lima Silva (as was her custom) and assigned

two superintendents to conduct the investigation. Id. at 553–

54. She requested an independent “Use of Force Review” and

served on two of the three committees administering disci-

pline in de Lima Silva’s case. Id. at 554–55. Finally, as the ap-

pointing authority, she was the sole final decision-maker for

the discipline—if any—ultimately imposed on de Lima Silva.

Id. at 556. This evidence of her unmistakable influence at

nearly every level of the investigative process, combined with

other evidence that the charges against de Lima Silva were

pretextual (and that the warden knew the charges were pre-

textual), was sufficient to defeat summary judgment on the

issue of personal involvement. Id. at 562–63. 8

Taylor has not presented comparable evidence showing

that Ways and/or Whittler were similarly involved at each

level of the investigation and the discipline process. On

8 De Lima Silva offered evidence that Warden Champagne’s reasons for

discharging him had shifted over time and that the latest explanation—

that de Lima Silva’s use of force was more serious than that of a white

correctional sergeant who had received a one-day suspension—first sur-

faced at summary judgment. 917 F.3d at 556–57, 562–63. We also found

that a jury could deem Warden Champagne’s stated rationale to be pre-

textual. Id. at 563–64.

Nos. 20-1410 & 20-1411 31

appeal, Taylor argues that Ways and Whittler failed to con-

duct meaningful reviews of the entire OPR file involving the

shooting and DUI incidents, that they failed to investigate in-

dependently the information provided by Ernst, and that

Chief Holbrook identified weaknesses in Ernst’s investigation

to Whittler and she still declined to investigate them. This ev-

idence and these arguments may be highly relevant to Tay-

lor’s cat’s paw Title VII claim, and they may show that Ways

and Whittler did not perform well in Taylor’s case. But none

of these arguments or evidence supports a reasonable infer-

ence that they acted on the basis of race, as needed to prove

they violated the Equal Protection Clause.

Because Taylor has failed to present evidence of Ways’ or

Whittler’s personal involvement in his alleged constitutional

deprivation, we need not reach the second prong of the qual-

ified immunity inquiry. We reverse the district court’s denial

of qualified immunity with respect to Ways and Whittler.

The denial of summary judgment on Ways’ and Whittler’s

qualified immunity defense in No. 20-1410 is REVERSED, and

the denial of summary judgment on Ernst’s qualified immun-

ity defense in No. 20-1411 is AFFIRMED. The case is re-

manded to the district court for further proceedings con-

sistent with this opinion.