SCHULZ v. GREEN COUNTY, WISCONSIN

Filing 54

ORDER granting 21 Motion for Summary Judgment by Defendant Green County, Wisconsin. Signed by District Judge William M. Conley on 5/14/2010. (arw)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------S H EIL A SCHULZ, O PIN IO N and ORDER Plaintiff, 0 9 -c v -2 9 8 -w m c 1 v. G R EEN COUNTY, WISCONSIN, D efendan t. --------------------------------------------In this civil action brought under 42 U.S.C. § 1983, plaintiff Sheila Schulz contends that defendant Green County deprived her of a property interest in her job without due process when they moved her court-attached juvenile intake services position into the C o u nty's human services agency. The defendant has moved for summary judgment, arguing (1) that Schulz was never removed from her position, but rather moved over to a new position without a break in employment; and (2) even if she had been removed, it was the result of a legitimate governmental reorganization. The undisputed facts show that the C ou nty's legislative body eliminated Schulz's court-attached position and created a new po sition within another agency's bargaining unit, giving union members a first opportunity at the position. Assuming for purposes of the present motion that Schulz was removed from

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This case was reassigned pursuant a March 31, 2010 administrative order.

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her position, a reasonable jury would be compelled to find the cause was a legitimate go vern m e n t a l reorganization. The court will, therefore, grant defendant's motion for

sum m ary judgment on the grounds that her removal did not impinge on any constitutional right to due process.

U N D IS PU T ED FACTS 2 U nder chapters 48 and 938 of the Wisconsin Statutes, every county must employ at least one juvenile intake worker to provide statutorily defined services related to juveniles. In 1997, plaintiff Sheila Schulz was hired as defendant Green County, Wisconsin's juvenile intake worker. Green County also employed several other part-time workers from time to tim e to assist in the performance of juvenile intake duties. Schulz supervised these workers, m ak in g her the "chief intake worker" within the meaning of Wis. Stat. §§ 48.06(3) and 938.0 6(3 ). In 2001, Schulz was formally promoted to the position of "Director of Juvenile In tak e," taken out of the union and provided with a wage hike. As of December, 2008, S chulz was paid $26.99 an hour for regular work hours and $40.485 an hour for overtime w ork. W iscon sin law allows smaller counties such as Green County to choose whether to provide juvenile intake services through the circuit court or the county department, or both. W is. Stat. §§ 48.06(2) and 938.06(2). From the time Schulz became a juvenile intake

The following facts are derived from the parties' proposed findings of fact and the record viewed in a light most favorable to plaintiff.

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w ork er until January 1, 2009, the juvenile intake position was "court-attached," meaning it w as under the supervision and control of the Green County Circuit Court. On December 9, 2008, the Green County Board of Supervisors passed a resolution eliminating the juvenile intake function within the circuit court effective January 1, 2009, and creating a "Social W orker I/II" position within the Human Services Department with a job description very sim ilar to the court-attached juvenile intake position. At the same time, Dee Jaye Miles, the existing Supervisor in the Children, Youth and Families Unit of the Human Services D epartm ent, was designated the "chief juvenile intake worker" within the meaning of Wis. S tat. §§ 48.06(3) and 938.06(3). W hile there was no requirement that juvenile intake workers be made part of a c o llective bargaining unit, the County made the new Social Worker I/II position part of AFSC M E Local 1162-A. Under the bargaining agreement between Green County and Local 11 62 -A, "[a]ll unit vacancies shall be posted within five (5) working days after the Employer d eterm in es that a vacancy exists which it intends to fill" and "shall be posted for five (5) w o r kin g days" in which union employees are permitted to bid on such vacancies. Dkt. #402, § 7.01. The agreement also provided that "the management of the County and the directi on of employees" remained vested in Green County, including the right to transfer em p lo yees. Dkt. #40-2, § 3.01. G reen County, therefore, posted the new juvenile intake position within the Human S ervices department for 5 days starting on December 10, 2008. No Union employees app lied for the new position and, after the five-day period had ended, Green County's

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C orp ora tion Counsel sent Schulz an application for the new position, encouraging her to app ly. After a two-hour interview, Schulz was offered the new position. When Schulz's court-attached juvenile intake position ended on January 1, 2009, she im m ed iately started her new position, with a lower hourly rate of $19.28 and a loss of s en i o r it y .3

O PIN IO N A s a general rule, a government employee who can be discharged only for "cause" enjoys a constitutionally protected property interest in her employment and may not be rem ov ed from the position without due process. Gilbert v. Homar, 520 U.S. 924, 928 (1997) (citations omitted). Defendant Green County does not deny that, as a juvenile intake w orker, Schulz could only be removed for "cause." Nor does it contend that Schulz was e xten ded any kind of due process at the time her court-attached position was eliminated. Instead, it argues that (1) in immediately placing Schulz in a newly-created position, she was n ever "removed" from her position, and (2) any arguable removal was pursuant to a legitim ate governmental reorganization, eliminating the need for further due process.

The parties submit numerous facts related to whether (1) transferring juvenile intake serv ices to the Human Services Department was a good idea and/or motivated by an unjustified d i s s a tis fa ctio n with Schulz. There is a related dispute over the claimed justification and legality u n d e r state law for Green County to conduct a closed meeting to deliberate on the transfer before th e Board of Supervisors passed the resolution moving the juvenile intake worker position. For the r e aso n s which follow, the Board's motive for passing the resolution cannot be considered and, th erefo re, these facts are immaterial. For this reason, it is unnecessary to attempt to untangle the p a r tie s ' related factual disputes.

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A . Removal From Position In denying the County's motion to dismiss, this court concluded the allegations in the com plaint allowed an inference to be drawn that someone else in the department was given the position of "chief" juvenile intake worker, suggesting that the reorganization may have been a "sham" set up to remove Schulz from that position. Dkt. #18 at 5-6. On summary ju dgm en t, however, plaintiff does not rely on a theory that her loss of status as "chief" of juven ile intake triggered due process rights, and in fact waives that theory 4 . Instead, plaintiff argues that she was "removed" from her position, rather than demoted. While Schulz did not experience a break in employment by the County as she moved from the court-attached position to a position in the Human Services department, plaintiff po ints out that a new juvenile intake position was created and union members were allowed a right of first refusal before Schulz was even permitted to apply for and ultimately receive the job. Plaintiff reasonably argues that this could not have happened if Schulz still "had" the job. Moreover, Schulz lost not only her original hourly rate, but also her seniority when she entered the new position. All of these facts would lead to the conclusion that Schulz had been removed from her earlier position, though perhaps not whether that removal amounted to a legal "discharge" requiring individual due process given that Schulz's employment by the County

In support of its summary judgment motion, defendant contends that Schulz did no t have a due process right to retain her status as chief juvenile intake worker, only a right to receive process before removal from her juvenile intake position. Plaintiff does not di sp u te that argument. Wojtas v. Capital Guardian Trust Co., 477 F.3d 924, 926 (7th Cir. 20 07 ) (failure to oppose argument operates as waiver).

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con tinued uninterrupted. The end result of defendant's reorganization was that plaintiff continued working for defendant, although at lower pay and with less seniority. As a general r u le, employment decisions that do not "terminate or abridge" an employment, but only reduce work responsibilities or amenities, do not give rise to a federal right to due process rights. Rode v. Dellarciprete, 845 F.2d 1195, 1205 (3d Cir. 1988); Brown v. Brienen, 722 F.2d 36 0, 364 (7th Cir.1983). As the Court of Appeals for the Seventh Circuit pointed out in B row n, 722 F.2d at 364-65, "[o]nly interests substantial enough to warrant the protection of federal law and federal courts are Fourteenth Amendment property interests." It is hard to see how an action with an end result equivalent to demotion could create a federally pro tected property interest, even if an employee's position was technically "eliminated" in the process. H o w e ver, it is not necessary to look beyond the technical nature of the "deprivation" in this case because the undisputed facts compel a legal finding that Schulz's removal was the result of a legitimate reorganization in the government. Dane County v. McCartney, 166 W is. 2d 956, 968-69, 480 N.W.2d 830, 835-36 (Ct. App. 1992).

B. Government Reorganization As the Wisconsin Supreme Court recognized many years ago, the property interest affo rded by removal-for-cause employment statutes, such as the one protecting juvenile intake workers, does not protect an employee from losing her job as a result of "good-faith reorgan ization ." State ex rel. Thein v. City of Milwaukee, 229 Wis. 12, 18, 281 N.W. 653, 656

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(1938). Not surprisingly, plaintiff would focus on the requirement that a reorganization be "legitim ate" or in "good faith," arguing that the reorganization defense does not apply if the govern m ent has an improper motive for a reorganization, such as "ousting an incumbent." Id . The "good faith" requirement, however, must be considered in light of another rule that preven ts a court from considering the motives of a municipality's legislative body. State ex rel. Miller v. Baxter, 171 Wis. 193, 196-98, 176 N.W. 770 (1920); Banach v. City of M ilw au kee, 31 Wis. 2d 320, 327, 143 N.W.2d 13 (1966). In Miller, 171 Wis. at 197, 176 N.W. 770, the Wisconsin Supreme Court reversed the trial court's ruling in favor of a city relator that had been dismissed "not . . . in the interest of economy or for the purpose of having the police force reorganized" but "for the purpose of evading [for-cause] provisions." The Wisconsin Supreme Court concluded that it was enough that the relator's office "no longer existed," explaining that the common co un cil's motive in enacting the ordinance that led to the elimination of that office "is not a proper subject of judicial inquiry." Id. at 196, 198, 176 N.W. 770 (citation omitted). G iving appropriate deference to the Wisconsin Supreme Court's articulated standard, as well as recognizing the court's decided limitations in ascribing motives to the legislative pro cess, this court is led to the same conclusion, at least on the record here5 . Cf. Felde v.

The result might be different if there were evidence that the County Board acted on the basis of Schulz's race, age, or other suspect classification. But there is no such evidence here. Indeed, even the motives plaintiff would ascribe to the Board can only be guessed at since no challenge was brought against the Board's decision to discuss the issue o f reorganization in closed session, a remedy plaintiff admits was available to, but not pursu ed by, her in the state courts under the Wisconsin Open Meetings Law, Wis. Stat. § 1 9 .8 1 et seq.

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Tow n of Brookfield, 570 F. Supp. 2d 1070, 1075 (E.D. Wis. 2008) (concluding from Miller that a municipality's reorganization "is a sham only if it does not actually occur"). First, the C o un ty Board of Supervisors articulated a plausible explanation for moving the intake po sition (cost savings), whether plaintiff agrees or not. Second, the County implemented the move. Third, though unnecessary, the County ultimately moved Schulz to the new po sition . Under these circumstances, no reasonable jury could conclude that the County's m ovem ent of the juvenile intake position was all a sham to rid itself of Schulz. P lain tiff argues that the court should determine whether Schulz's "position was actually abolished," and if not, conclude that no reorganization occurred. Plt.'s Br., dkt. # 36, at 8. However, framing the question that way is not helpful to Schulz. By "actually ab olish ed ," plaintiff must mean something more than the elimination of a given position; there is no question that Schulz's original position, as it then existed (outside the de p ar tm ent), was eliminated. Indeed, plaintiff is here because she was moved into a new p o sitio n , with different pay, seniority and supervision. Although informally the relocation of Schulz's can be called a "transfer," what defendant did was eliminate the court-attached po sition and create a new position. What plaintiff seems to be arguing is that the court should ask whether the reo rganizatio n was nothing more than "giving a new title to a position involving the same d u ties." Unger v. Gregory, 249 Wis. 161, 163, 23 N.W.2d 480 (1946). But that is not helpful either, because the basis for scrutinizing such a "change in name only with no change in duties" would again require a determination as to whether a new position has been created

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in "bad faith" or with improper motive by one County's legislative body. Id. (citing Thein, 22 9 Wis. 12, 281 N.W. 653). As explained above, bad faith cannot be a consideration in a due process claim because the reorganization came from the County's legislative body, at least on this record. Plaintiff's final argument is that the Board's reorganization did not cause the removal (an d therefore due process was required) because Schulz did not have to be removed from her position to effectuate the reorganization. There are actually two arguments here: (1) the juvenile intake position did not have to be part of the bargaining unit; and (2) even if it did, th e position did not have to be "vacated" (Schulz could have been left in the position, avo iding the union's right of first refusal for a "vacancy)". Plaintiff is wrong on both counts. As to the first point, the new position the Board created was part of the bargaining unit; it do es not matter that the Board had the option of relocating the juvenile intake position in a way that could keep it outside the bargaining unit. As to the second point, the Board of Supervisors is to blame for the creation of the vacan cy (and the subsequent requirement that union employees get a right of first refusal). Plaintiff contends that defendant could have simply transferred Schulz along with the po sition to avoid creating a "vacancy," but this ignores what the Board did when it relocated the juvenile intake position. The Board eliminated Schulz's original court-attached position and created a new position. It was the Board's decision to create a new position within the bargain ing unit that led to the creation of a vacancy and Schulz's removal. In other words, th e Board's reorganization did cause the removal.

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Because Schulz's property interest in her position as juvenile intake worker does not pro tect her from removal pursuant to an actual reorganization ordered by the County's legislative body, her due process claim must fail.

ORDER IT IS ORDERED that the motion for summary judgment filed by defendant Green C ou nty, Wisconsin, dkt. #21, is GRANTED. judgm ent for defendant and close this case. E n tered this 14t h day of May, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ W IL L IA M M. CONLEY D istrict Judge The clerk of court is directed to enter

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