Brown v. Wisconsin Department of Corrections et al

Filing 69

ORDER signed by Judge Pamela Pepper on 1/20/2017 GRANTING 65 defendant Susan Nygren's motion for leave to file supplemental summary judgment argument, VACATING that portion of its 9/20/2016 summary judgment order denying the defendants' motion for summary judgment as to Count IV relating to Susan Nygren in her individual capacity 56 , GRANTING summary judgment in favor of defendant Nygren in her individual capacity as to Count IV, and DISMISSING Susan Nygren as a defendant. (cc: all counsel) (pwm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
FELICIA BROWN,

Case No. 15-CV-843-PP
Plaintiff,

v.
WISCONSIN DEPARTMENT OF CORRECTIONS,
And SUSAN NYGREN,
Defendants.

ORDER GRANTING DEFENDANT SUSAN NYGREN’S MOTION FOR LEAVE
TO FILE SUPPLEMENTAL SUMMARY JUDGMENT ARGUMENT (DKT. NO.
65), VACATING THAT PORTION OF ITS SEPTEMBER 20, 2016 SUMMARY
JUDGMENT ORDER DENYING THE DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AS TO COUNT IV RELATING TO SUSAN NYGREN IN
HER INDIVIDUAL CAPACITY (DKT. NO. 56), GRANTING SUMMARY
JUDGMENT IN FAVOR OF NYGREN IN HER INDIVIDUAL CAPACITY AS TO
COUNT IV, AND DISMISSING SUSAN NYGREN AS A DEFENDANT
_____________________________________________________________________________
On November 11, 2016, defendant Susan Nygren filed a motion for leave
to file additional summary judgment argument. Dkt. No. 65. She also filed a
brief containing new summary judgment arguments. Dkt. No. 66. She filed
these documents after the court denied her original motion for summary
judgment on the individual capacity portion of Count IV of the complaint
(alleging an equal protection claim against her in her official and individual
capacities), dkt. no. 56, and denied her motion to reconsider that ruling, dkt.
no. 61. Defendant Nygren now has fleshed out her motion as to the individual
capacity equal protection claim in Count IV, and the court will grant summary
judgment in her favor as to that claim and dismiss defendant Nygren.

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BACKGROUND
The court will not recount the full history of the case. The reader may
find that full history in the court’s September 20, 2016 order granting in part
and denying in part the defendants’ motion for summary judgment. Dkt. No.
56. The following facts are relevant to this order.
The court explained in the original summary judgment decision that in
Count IV of her complaint, the plaintiff alleged that Nygren, individually and in
her official capacity, had violated the plaintiff’s Fourteenth Amendment right to
equal protection. Dkt. No. 56 at 5 (citing dkt. no. 1 at ¶¶41-44). The court
recounted how, in their summary judgment brief, the defendants had argued
“that Count IV, to the extent that it asserts a claim against Nygren in her
official capacity, is barred by the Eleventh Amendment.” Id. at 7 (citing dkt. no.
31 at 3). The court found that the plaintiff had not disputed the defendants’
official capacity argument. Id. (citing the plaintiff’s opposition brief, dkt. no. 47
at 28). For that reason, the court granted summary judgment in favor of
Nygren on Count IV “to the extent that Count IV asserts a claim against Nygren
in her official capacity.” Id. at 8.
In a footnote to that sentence, however, the court stated, “Because the
defendants sought summary judgment on Count IV only to the extent that that
count alleged an official-capacity claim against Nygren, dkt. no. 31 at 24-26,
the court will allow the plaintiff to proceed on [the equal protection] claim
against Nygren in her personal capacity. See also Dkt. No. 50 at 13.” Id. at 8,
n.5.
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Shortly after the court issued that decision, the defendants filed a motion
for reconsideration, asking the court to grant summary judgment in Nygren’s
favor on the equal protection/individual capacity claim, as well. Dkt. No. 59.
The defendants filed that motion under Civil L. R. 7(h), which allows parties to
follow an expedited motion schedule if they are seeking non-dispositive relief.
Id. The court denied the motion, holding that a motion to reconsider a denial of
a motion for summary judgment was not a “non-dispositive” motion, and thus
that Rule 7(h) was not the appropriate mechanism for seeking the relief
defendant Nygren requested. Dkt. No. 61.
At a status conference about a month later, defense counsel told the
court that defendant Nygren planned to file a motion asking for leave to file a
partial motion for summary judgment on the question of whether the plaintiff
ought to be able to proceed on her equal protection claim against Nygren in her
individual capacity. Dkt. No. 64. The court gave Nygren a deadline of November
11, 2016 by which to file that motion, with objections due by December 12 and
replies by January 6, 2017. Id. at 1.
MOTION FOR LEAVE TO FILE SUPPLEMENTAL SUMMARY JUDGMENT
ARGUMENTS
Nygren, as she had told the court at the status conference that she
would do, filed a motion for leave to file a brief containing additional summary
judgment arguments. Dkt. No. 65. In support, Nygren explains that the
defendants had intended their original summary judgment motion and brief to
address all of the plaintiff’s claims against all of the defendants, including the
plaintiff’s equal protection claim against Nygren in her individual capacity. Id.
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at 2. She states that after the court ruled on the summary judgment motion,
she realized that the court did not understand the motion to request summary
judgment on the individual capacity portion of Count IV. Id. Nonetheless, she
points to various phrases in the original summary judgment pleadings which,
she argues, should have tipped the court off that she was seeking summary
judgment on that claim. Id. at 2-4.
Nygren also argues that if the court allows her to a brief containing
additional argument on just this claim, the plaintiff would not be prejudiced;
the parties already have briefed the issues, and the court already has held that
the plaintiff did not submit sufficient evidence to support her claim that the
DOC (Nygren’s employer) subjected the plaintiff to sexual harassment or a
hostile work environment based on her sex. Id. at 4. She points out that this
new brief would not require the court to find any additional facts, and that it
wouldn’t delay the proceedings because the trial date is not until May 8, 2017.
Id. Finally, she argues that if the court were to grant her motion for summary
judgment on the equal protection claim against her, it would avoid jury
confusion, because such a decision would leave only a single Title VII claim
against the Department of Corrections for a jury to decide. Id. at 5. For all of
these reasons, Nygren argues, the court should grant her leave to file a brief
containing additional summary judgment arguments as to the individual
capacity claim.
The plaintiff did not oppose the motion to file a brief containing
additional argument. While the court does not agree with Nygren that the court
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should have had to piece together oblique phrases here and there in the
original pleadings to cobble together a conclusion that Nygren intended to seek
summary judgment on the equal protection claim against her individually, the
court does agree that the plaintiff will not be prejudiced by the supplemental
arguments, that those arguments don’t cause the court to have to make any
additional factual findings, and that they won’t delay the trial of the case. For
all of these reasons, the court will grant Nygren’s motion to file the brief
containing additional summary judgment arguments. Dkt. No. 65.
ANALYSIS OF NEW ARGUMENTS
A.

Summary Judgment Standard

As the court stated in its first summary judgment order, a court must
grant summary judgment when “there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Material facts are those “facts that might affect the outcome of the
suit under the governing law,” and a dispute about a material fact is genuine if
a reasonable jury could find in favor of the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When determining whether summary judgment is appropriate, the court
views all facts and draws all reasonable inferences in favor of the nonmoving
party. Herzog v. Graphic Packaging Int’l, Inc., 742 F.3d 802, 806 (7th Cir.
2014). Nevertheless, “inferences that are supported by only speculation or
conjecture will not default a summary judgment motion.” Id. at 806 (quoting
Tubergen v. St. Vincent Hosp. & Health Care Ctr., Inc., 517 F.3d 470, 473 (7th
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Cir. 2008)). “[A] party will be successful in opposing summary judgment only
when that party presents definite, competent evidence to rebut the motion.”
EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000) (quoting
Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997)). The opposing party cannot
simply rely on allegations or denials in its pleadings; it must also “introduce
affidavits or other evidence setting forth specific facts showing a genuine issue
for trial.” Anders v. Waste Mgm’t of Wis., 463 F.3d 670, 675 (7th Cir. 2006).
Thus, a court appropriately grants summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
B.

The Equal Protection Claim Against Nygren

The plaintiff captioned Count IV of the complaint “Violating Plaintiff’s
Right to Equal Protection of Laws Pursuant to 42 U.S.C. § 1983.” Dkt. No. 1 at
10. The count alleges that Nygren violated the Equal Protection Clause of the
Fourteenth Amendment by “subjecting Plaintiff to unwanted sexual
harassment and a sexually hostile work environment on the basis of her sex
(female), recommending Plaintiff’s termination, and causing the termination of
Plaintiff’s employment because of her sex (female) . . . .” Id. at ¶42.
The Equal Protection Clause of the Fourteenth Amendment holds that a
state shall not deny any person equal protection of the laws. The Seventh
Circuit has held that “[s]exual harassment by a state employer constitutes sex
discrimination in violation of the equal protection clause.” Valentine v. City of
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Chicago, 452 F.3d 670, 682 (7th Cir. 2006). A plaintiff may bring an equal
protection claim based on sexual harassment under 42 U.S.C. §1983. Id.
To prove such an equal protection claim under §1983, a plaintiff first
must prove that the state employer subjected her to sexual harassment. If she
successfully proves that, the court then asks whether the sexual harassment
constituted “intentional discrimination.” Bohen v City of East Chicago, Ind.,
799 F.2d 1180, 1187 (7th Cir. 1986). It is a defense to an equal protection
claim “if the employer can show that the harassment suffered by the plaintiff
was directed at the plaintiff because of factors personal to her and not because
she is a woman.” Id. (citation omitted).
In the summary judgment order, the court found that the plaintiff could
not prevail on her Title VII claims that Nygren and others harassed her or
subjected her to a hostile work environment because she was female. The court
explained,
The plaintiff worked on an all-female shift. The DOC
employees who subjected her to the unwelcome comments and
behaviors all were women—Susan Nygren, Debra Nutting and Lisa
Baker. The evidence before the court contains no references to the
presence of men during any of these incidents.
Dkt. No. 56 at 12. For this reason, the court found, the plaintiff could not
present any evidence that Nygren and the others harassed the plaintiff or
subjected her to a hostile work environment because she was a woman,
because she had no opportunity to observe how they treated men. Thus, she
could not present evidence that in harassing her or subjecting her to a hostile
work environment, Nygren and the others treated her differently than they
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treated men. Id. at 13-14. Because the plaintiff could not show that Nygren and
the others harassed her or created a hostile work environment because she
was female, the court found that she could not prevail on those claims.
In the brief containing supplemental arguments, Nygren makes a
number of arguments, but only one is determinative of the court’s decision on
her request that the court grant her summary judgment on the individual
capacity equal protection claim. She argues that “the comments and conduct of
Nygren . . . were not done for sexual gratification.” Dkt. No. 66 at 15. She
emphasizes what the court had found with regard to the other defendants: that
the plaintiff “has no evidence suggesting that Nygren . . . treated males better
than her,” id., or that Nygren harassed her because she was female.
The court agrees with Nygren’s implied argument: because the same
liability standards that govern Title VII claims govern §1983 claims, the court’s
conclusion as to the plaintiff’s Title VII claims is dispositive as to the equal
protection claim raised under §1983. The Seventh Circuit has held that “[w]hen
the plaintiff alleges intentional discrimination, . . . it is clear that the same
standards in general govern liability under sections 1981, 1983, and Title VII.”
Friedel v. City of Madison, 832 F.2d 965, 971 (7th Cir. 1987). See also, Davis v.
Wisconsin Dep't of Corr., 445 F.3d 971, 976 (7th Cir. 2006) (“The same
standards for proving intentional racial discrimination apply to Title VII and §
1983 equal protection claims.”) (citation omitted). So—if a plaintiff cannot
survive summary judgment on a Title VII sexual harassment claim, she cannot
survive summary judgment on a §1983 equal protection claim based on sexual
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harassment. See, e.g., Hildebrandt v. Illinois Dep't of Nat. Res., 347 F.3d 1014,
1036–37 (7th Cir. 2003) (“Thus, the non-compensatory § 1983 claims against
the individual defendants can be dismissed on the same basis as the Title VII
claims: [the plaintiff] has failed to set forth a prima facie case of discriminatory
treatment or of hostile work environment harassment.”); Huri v. Office of the
Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 835 (7th Cir.
2015) (“When a plaintiff uses § 1983 as a parallel remedy to a Title VII
harassment claim, the prima facie elements to establish liability are the same
under both statutes. Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183,
192 (1st Cir.2003) (collecting cases).”); Titus v. Illinois Dep't of Transp., No. 11
C 944, 2014 WL 625700, at *6 (N.D. Ill. Feb. 18, 2014) (“Therefore, because the
Court has held that a reasonable jury could not find that Defendants violated
Title VII, the Court also holds that a reasonable jury could not find that
Defendants violated Titus's constitutional rights.”); Bowman-Farrell v. Coop.
Educ. Serv. Agency 8, No. 02-C-818, 2007 WL 3046283, at *30 (E.D. Wis. Oct.
17, 2007) (citations omitted). (“Bowman also raises an equal protection claim
against Kellogg, but this will be dismissed for the same reasons she failed to
establish a Title VII claim.”).
In her opposition to the supplemental arguments, the plaintiff
emphasizes many of the facts she emphasized in her opposition to the original
motion. She asserts again that she was upset by Nygren’s behavior, that she
found it offensive, that it made her uncomfortable, that it shocked her, that it
humiliated her. She argues that “there is ample evidence in the record that the
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harassment Nygren subjected [the plaintiff] to was both subjectively and
objectively offensive.” Dkt. No. 67 at 5. In its summary judgment decision, the
court accepted all of these assertions as true for the purposes of deciding the
summary judgment motion. Dkt. No. 56 at 14.
As the court explained, however, and as it reiterates here, the question is
not whether the defendant’s conduct was offensive, or upsetting, or crude, or
humiliating. The question is whether the offensive conduct took place because
she was a woman. The plaintiff states in her opposition that she “felt that she
was subjected to this treatment because of her sex.” Dkt. No. 67 at 5. But her
feeling that Nygren harassed her because of her sex is not sufficient to defeat a
motion for summary judgment; she must present more than inferences
supported by speculation or conjecture.
The plaintiff strongly emphasizes the Seventh Circuit’s statement in
Passanti v. Cook County, 689 F.3d 655, 664 (7th Cir. 2012) that “words or
conduct demonstrating ‘anti-female animus’ can support a sexual harassment
claim based on a hostile work environment.” (Citation omitted) Id.at 8-9. She
lists numerous cases in which courts have found that specific words (such as
“bitch” or “whore”) are “sex-based” for the purposes of finding liability for
sexual harassment. Id. at 9. But Nygren did not use any of these arguably
female-linked words against the plaintiff. The plaintiff argues that Nygren did
use a female-specific word, “pussy,” in front of her. Id. at 10. But she does not
allege that Nygren used this term to refer to her, or even directed the remark
containing the word to her. She argues that Nygren used “gender-specific
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words, such as ‘partner.’” Id. The court disagrees that the word “partner” is a
“gender-specific” word; one might argue it is decidedly gender-neutral.
What the plaintiff really alleges in her complaint, and argued in her
opposition to the motion for summary judgment, and argues in her opposition
to the new motion, is that Nygren and the others used sexual language and
engaged in sexual behavior—as in language and behavior related to the act of
sex—around her. She states, in her opposition to the supplemental arguments,
that “Nygren made known her sexual preferences for females and then engaged
in sexual conduct towards [the plaintiff], a female.” Id. at 10.
It is true that the Supreme Court has held that “if there were credible
evidence that the harasser was homosexual,” a reasonable jury might conclude
that the harasser would not have made “explicit or implicit proposals of sexual
activity” if the person being harassed were not of the same sex. Oncale v.
Sunowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). In such a situation,
a female plaintiff might present evidence that she was harassed by showing
that she was subjected to “such sex-specific and derogatory terms by another
woman as to make it clear that the harasser is motivated by general hostility to
the presence of women in the workplace . . . or [she might] offer direct
comparative evidence about how the alleged harasser treated members of both
sexes in a mixed-sex workplace.” Id. at 80-81. But again, the court has no
evidence before it to support the plaintiff’s claim that Nygren had a sexual
preference for females. The plaintiff appears to assume this, but her
assumption is just that—an assumption. The plaintiff has not presented the
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“definite, competent evidence” that the Seventh Circuit requires. EEOC v.
Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000) (quoting Smith v.
Severn, 129 F.3d 419, 427 (7th Cir. 1997)).
Because the plaintiff has not presented the court with evidence to show
that Nygren harassed her because she is female, she cannot survive summary
judgment on her claim that Nygren violated her civil rights by sexually
harassing her.
CONCLUSION
The court GRANTS the defendant Nygren’s motion for leave to file
supplemental summary judgment argument. Dkt. No. 65. The court VACATES
that portion of its September 20, 2016 summary judgment order allowing the
plaintiff to proceed on Count IV to the extent that it alleges an equal protection
claim against Nygren in her individual capacity. Dkt. No. 56, p. 22, final two
lines of the order before the date. The court GRANTS summary judgment in
favor of the defendants as to Count IV, including as to defendant Nygren on the
claim against her in her individual capacity. The court ORDERS that defendant
Susan Nygren is DISMISSED from the case. The court ORDERS that the
claims remaining for trial are the retaliation claim alleged against defendant

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Department of Corrections in Count III, and the declaratory judgment claim in
Count II as it relates to the retaliation claim in Count III.
Dated in Milwaukee, Wisconsin this 20th day of January, 2017.

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