Wischhoff, Margaret v. City of Madison et al

Filing 57

OPINION & ORDER granting in part and denying in part 15 Motion for Summary Judgment. Signed by District Judge James D. Peterson on 7/9/14. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MARGARET WISCHHOFF,
Plaintiff,

OPINION & ORDER

v.
13-cv-35-jdp
CITY OF MADISON, WISCONSIN,
LARRY NELSON, AL LARSON,
THOMAS HEIKKINEN and
KATHY CRYAN,
Defendants.

Plaintiff, Margaret Wischhoff, was an engineer with the City of Madison Water Utility
from 2002 until she was fired in 2010. Plaintiff contends that her termination
long sequence of gender discrimination,

culminated a

her complaints about the gender discrimination,

and

retaliation for her complaints. She has sued the City of Madison and four of her superiors,
alleging violations of her rights under Title VII of the Civil Rights Act and the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution.
The defendants move for summary judgment on all of plaintiff's claims, contending that
none of the adverse actions that plaintiff faced were motivated by discrimination or retaliation.
Defendants make a plausible case that plaintiff was a demanding and difficult employee who,
ultimately, failed to perform her assigned duties. But plaintiff contends that the full record tells
a different story, in which the defendants documented her alleged deficiencies so that they could
paper over their discrimination and retaliation. The court concludes that, at least for some of
the acts alleged, plaintiff has adduced sufficient evidence to permit a reasonable jury to infer
that she was a victim of discrimination or retaliation.
The defendants'

motion for summary judgment will be denied, in part. Defendants are

entitled to summary judgment that they did not discriminate or retaliate by declining to hire

plaintiff as water supply manager, by failing to reclassify plaintiff's

position to the level of

Engineer 4, or by reassigning her supervisory duties to the newly created construction
position. Defendants'

engineer

motion is otherwise denie~. Plaintiff may proceed to trial to prove her

claims that her temporary assignment to the engineering division, and her subsequent discipline
and

termination,

were motivated

by gender-based

discrimination

or retaliation

for her

complaints about gender-based discrimination.

UNDISPUTED

FACTS

Margaret Wischhoff was hired as an engineer by the City of Madison Water Utility in
2002. She held undergraduate
professional
"Professional

and graduate degrees in civil engineering and she had significant

experience in water supply and groundwater
Engineer,"

which meant

management.

She was certified as a

that she was licensed to sign and seal engineering

drawings. Based on her job duties and her qualifications, plaintiff was hired as an Engineer 3, at
the third step of the four-step professional progression for engineers in the civil service system at
the water utility. She reported to an Engineer 4, Dennis Cawley. Cawley reported to defendant
Al Larson, the principal engineer in the water utility.
In 2004, plaintiff began to experience what she perceived as sex discrimination

from

Larson in her work assignments and in the way he spoke to her. In 2005, plaintiff and two other
women complained to the city's human resources department
about Larson's alleged discrimination.
office would investigate

department

Although plaintiff had hoped that the affirmative action

but keep the complaint

engaged the city engineer, defendant
to investigate.

and the affirmative action office

confidential,

the affirmative

action office

Larry Nelson, and a female engineer from another city

Larson was cleared, but in the process Nelson

plaintiff's allegations of sex discrimination.

2

learned

about

A few months after plaintiff made her discrimination

complaint,

she was offered a

transfer from the water utility to the sewerage section of the city's engineering division. The
proposal was conceived by Larson and Nelson, together with the head of the water utility and
the city's human resource director. At the time, Nelson was the head of the engineering division.
Plaintiff declined the transfer because she did not want to leave the water utility, where she
worked with water supply, the area of her greatest expertise and interest. Because a permanent
transfer required the employee's consent, she remained in the water utility.
In October 2005, plaintiff requested that her position be reclassified to Engineer 4. To
warrant reclassification, two conditions had to be satisfied: first, plaintiff herself had to meet the
professional qualifications; second, the position had to require sufficient high-level independent
work. Plaintiff had the qualifications because she was a certified Professional Engineer. She
contended that although she reported to Crawley, her work was in fact equivalent to Crawley's
and largely independent

of his supervision. In evaluating plaintiff's request for reclassification,

the city's human resource department determined that reclassification would be warranted if the
water utility were reorganized

so that

plaintiff was no longer subordinate

to Crawley.

(Alternatively, the structure should be clarified to show that she was subordinate Crawley, in
which case reclassification would not be warranted.) In response to the analysis of the human
resources department,

Larson designed a new level.4 "construction

engineer" position for

plaintiff, in which she would responsible for overseeing water utility construction

projects.

Plaintiff rejected this proposal because she did not want to give up her current blend of both
construction supervision and design duties. The water utility was not restructured at the time,
and plaintiff remained an Engineer 3.

3

In 2007, Nelson became interim general manager of the water utility, where he served
until August 2008. Defendant Kathy Cryan, one of Nelson's direct reports, also came over from
the engineering division to serve temporarily as a water supply manager.

In April 2008, plaintiff applied for the position of water supply manager at the utility.
The position was to be filled through the city's civil service process, through which a number of
applicants

would be certified as qualified and granted interviews. The interviews would be

conducted by a four-member panel, including Larson, Cryan, another man and another woman.
Plaintiff and five male candidates were certified as qualified for the position and interviewed.
Each candidate was scored by the panel on their responses to the same set of questions. One
candidate,

Joel DeMorrett,

was unanimously

ranked highest and was hired for the position.

Plaintiff came in second.

In spring 2008, Nelson restructured water utility job duties by creating the position of
"construction

engineer" at Engineer 2. The new construction

field inspections

engineer took over supervision of

in the water utility. Other water utility engineers retained some supervisory

duties. But the reorganization

left plaintiff with no supervisory duties, and the van that had

been assigned to her to use while supervising field inspectors was reassigned to the water utility
motor pool.

In May 2008, Nelson ordered plaintiff to keep her office door open because Nelson
believed

that

a male co-worker was frequenting

plaintiff's

office and engaging

in social

conversations. No male employees of the water utility had been subject to that requirement.
In summer 2008, one of plaintiff's colleagues, Doug DeMaster, received his professional
engineer certification. DeMaster's job duties already involved sufficient responsibility to warrant
classification

at Engineer 4; he lacked only the professional

engineer certification.

Once he

received it, Larson and Nelson arranged to have DeMaster's position reclassified as an Engineer
4

4, resulting in a wage increase for DeMaster. Plaintiff asked Larson to reclassify her position,
contending that it was warranted because she already had her professional engineer certification.
Larson responded that the water utility did not need any more engineer positions at Level 4. He
suggested that

she petition

the human

resources department

if she were interested

in

reclassification. Plaintiff did not request a human resources reclassification study.
However, plaintiff went to the human resources department, in October 2008, where she
learned that Nelson had recently been there to report that plaintiff was in a sexual relationship
with a co-worker. Plaintiff found out that Nelson had openly discussed this allegation with
members of the human resources office, had discussed it in locations in which it could be
overheard, and had reported it directly to Brad Wirtz, the head of human resources. Plaintiff
went to meet Wirtz to complain that Nelson had been allowed to spread a false rumor about her
sex life. Wirtz, plaintiff, and a third person met to discuss the incident. Wirtz dismissed
plaintiff's concerns as merely a rumor and told her that she should not worry about it. The
meeting ended with Wirtz ordering plaintiff to "get out."
About the same time, Wirtz, Nelson and defendant

Thomas Heikkinen

(who had

recently taken over as general manager of the water utility) met to plan moving plaintiff from
the water utility to the engineering division, headed by Nelson, where she would report to
defendant Kathy Cryan. In exchange, an engineering division employee would be moved to the
water utility. Neither plaintiff nor Cawley, her immediate supervisor, were consulted about the
reassignment to the engineering department.

The move was to be a temporary posting, for

approximately a year, at which plaintiff would be assigned the task of reviewing repairs to the
sewerage system. Although Nelson and Heikkinen described the opportunity

as a "plum" that

was important to the city, plaintiff did not want the assignment because she considered her area
of expertise to be water supply, not sewerage. Over plaintiff's objection, in November 2008 she

5

was moved to the engineering division. During her reassignment, plaintiff was denied access to
her office at the water utility, her keys to the water utility building were disabled, she was not
listed on the water department

phone directory, and she was not permitted to attend any water

utility meetings, including those at which her ongoing projects would be discussed.
Plaintiff ran into difficulties with Cryan almost immediately.
working

at the engineering

division, Cryan gave plaintiff

disciplinary warning about misconduct which, if continued,
termination.
communication

Cryan's

letter

of

instruction

complained

Shortly after she began

a "letter of instruction,"

a pre-

could lead to discipline, including
about

plaintiff's

attitude

and

with her coworkers. Plaintiff denied the alleged deficiencies in an extended

email to Cryan and she filed a complaint with the City's Equal Rights Division. Sometime later,
during a meeting to discuss plaintiff's job performance problems, plaintiff brought a recorder to
the meeting. She was ordered by Cryan not to record the meeting, but Cryan believed that
plaintiff

had surreptitiously

attempted

to do so. Plaintiff

denied that allegation,

but she

nevertheless was given a formal discipline for disobeying Cryan's order.
In spring of 2009, Cryan put plaintiff on a formal "Performance

Improvement

Plan"

(PIP). The PIP listed detailed tasks that plaintiff was to complete, with standards and timelines
for completing them. Plaintiff denied the deficiencies that were alleged against her as the basis
for the PIP in a lengthy correspondence.

The PIP required plaintiff to make detailed reports of

her work progress and subjected her to close oversight by Cryan, who continued to assert that
plaintiff's

performance

was substandard.

Plaintiff disputed

Cryan's criticism of her work in

writing.
As a result of workplace stress, plaintiff suffered physical symptoms that required medical
care. Her physician recommended

that she take a medical leave and in the summer of 2009, she

did so. In her absence, Adam Wiederhoeft,

a junior water utility engineer, was temporarily
6

posted to the engineering division to complete the tasks plaintiff had been assigned. Although
the parties dispute what work Wiederhoeft was actually assigned to do, he did not suffer the
same restrictions that plaintiff did during the temporary posting. He retained his office and
access to the water utility building, and he was allowed to continue participating in water utility
meetings.
Plaintiff returned to work in August 2009. Prior to her return, she contacted Larson to
indicate that unless she were instructed otherwise, she would return to her office at the water
utility. Hearing no contrary instruction, she reported to the water utility and began to work, not
under Cawley's supervision, but under Larson's. Larson immediately placed plaintiff on a new
PIP, which he administered. Plaintiff was given four specific assignments and strict time budgets
to complete them. Larson and Heikkinen

made consistently

critical progress reports, and

plaintiff was terminated at the end of the six-month PIP. The reasons given were that she had
failed to complete two wellhead protection

plan assignments and had failed to begin two

standard operating procedure assignments. Plaintiff disputed the criticism of her work and she
submitted detailed progress reports tracking her efforts on the projects. Plaintiff contends that
comparable wellhead protection plan assignments had taken years to complete and that the
hours budget that she had been given under her PIP were grossly inadequate to complete those
tasks. She contends that she made significant progress on the goals set for her.

ANALYSIS
Title VII of the Civil Rights Act prohibits workplace discrimination on the basis of sex,
and it prohibits retaliation against an employee who asserts her Title VII rights. 42 U.S.c.

SS 2000e, et seq. To prevail on her claims here, plaintiff would have to show that she suffered
significant negative treatment (an "adverse employment action" in the jargon of discrimination

7

law) and that the adverse action was either because of her sex, or that it was in retaliation

for

the assertion of her rights.l
Proving that an adverse action is the result of discrimination
difficult because discriminators

or retaliation

is often

are not typically open about their motives. Accordingly,

to

sharpen the difficult factual inquiry, cases applying Title VII have developed a burden-shifting
framework in which an employee may prove discrimination

through either a "direct" or an

"indirect" method. Proof of retaliation is similarly difficult to obtain and the methods of proving
retaliation are similar to those for proving the discrimination

itself.

Under the direct method, a plaintiff must show that (1) she is a member of a protected
class; (2) she suffered an adverse employment

action; and (3) the adverse action was taken

because of her membership in the protected class. The direct method requires proof that points
directly to a discriminatory

reason for the action. Burks v. Wisconsin Department of Transportation,

464 F.3d 744, 751, n.3 (7th Cir. 2006). The direct method, however, will rarely involve direct
evidence, such as admission that the action was discriminatory.
method will involve some "convincing mosaic" of circumstantial

More commonly,

the direct

evidence that would allow the

jury to infer that the action was taken for a discriminatory reason. Id.
The indirect method

evolved from McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), and the cases following it. The indirect method does not require evidence that points
directly to a discriminatory
discrimination

purpose.

Rather, the indirect

method

allows plaintiff

to show

by pointing to appropriate "comparators," that is, employees not in the protected

class, but otherwise comparable, who did not face the adverse action. If plaintiff makes this
Because plaintiff's employer is a government entity, she also brings claims for violation of her
rights under the Equal Protection Clause of the Fourteenth Amendment to the Constitution.
The parties agree that the analysis of plaintiff's Equal Protection Clause claims is the same as
her Title VII claims. The statutes of limitations are slightly different, but not in any way
material to this opinion.
I

8

prima facie case, the burden shifts to the employer to show a legitimate, non-discriminatory
reason for singling out plaintiff for adverse action. If the employer makes that showing, then the
burden shifts back to the employee to demonstrate that the proffered reason is a pretext. If
plaintiff succeeds in showing that the proffered reason was a pretext, a reasonable jury may draw
the inference that employer's true purpose was discriminatory. Despite the apparent precision of
burden-shifting approach, courts may consider the evidence in plaintiff's prima facie case also as
evidence of pretext. See, e.g. Coleman v. Donahoe, 667 F.3d 835, 862-63 (7th Cir. 2012) (Wood,

J., concurring)

(advocating for the abandonment of the burden-shifting framework in favor of a

flexible, common-sense approach).
Summary judgment is appropriate if a moving party "shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). To avoid summary judgment here, plaintiff "must set forth
specific facts showing that there is a genuine issue for trial." Id. A party may not simply rely on
the allegations in its pleadings to create such a dispute, but must "demonstrate that the record,
taken as a whole, could permit a rational finder of fact to rule in [its] favor." Johnson v. City of
Fort Wayne, Ind., 91 F.3d 922, 931 (7th Cir. 1996).
Plaintiff contends that seven actions are sufficiently adverse and either discriminatory or
retaliatory:
1. The selection (by Nelson, Cryan, and Larson) of DeMorrett
supply manager position;

for the water

2. Nelson stripping plaintiff of her
construction engineer position;

creating

supervisory

duties

by

3. Larson declining to support reclassification of plaintiff's position in 2008;
9

the

4. Heikkinen and Nelson reassigning plaintiff to the engineering division for the
sewerage project in October, 2008;
5. Cryan discriminating and retaliating
assignments, discipline, and evaluations;

against

plaintiff

6. Heikkinen and Larson discriminating and retaliating
unfair assignments and evaluations; and

via inappropriate

against plaintiff

via

7. Heikkinen's termination of plaintiff.
Plaintiff appeals to a combination of both the direct and indirect methods to prove her case.
The defendants

acknowledge

engaged in at least some protected

that plaintiff is within

a protected

class and that she

activities in asserting her rights under Title VII. The

defendants

acknowledge that the failure to hire plaintiff for the water supply manager and her

termination

are sufficiently adverse to constitute actionable adverse actions under Title VII, but

they contend that most of the others are not. Defendants offer documents and testimony that, if
credited by the trier of fact, would demonstrate

that plaintiff was not satisfactorily performing

her duties once she was transferred to the engineering department
the defendants'
discriminatory

central argument

for the sewerage project. But

is that none of the complained-of

actions were taken for

or retaliatory purposes.

Thus, to survive summary judgment, plaintiff must adduce sufficient evidence to allow a
reasonable jury to infer that one or more of the defendants

took one of the actions of which

plaintiff complains for discriminatory or retaliatory purposes.
A. The selection of DeMorrett for the water supply manager position
Plaintiff contends that she was the victim of discrimination

when DeMorrett

was hired

as the water supply manager in 2008. Plaintiff has made out a prima facie case of discrimination
under the indirect method:

as a woman she was a member of a protected class; she was certified

as qualified for the job by the human resources department;

10

and the position went to a man.

But the city offers compelling evidence of a legitimate non-discriminatory

reason for

DeMorrett's hiring. DeMorrett was ranked highest by each of the four members of the interview
panel, including its two female members. Plaintiff contends that the defendants'
pretext because she was more qualified than DeMorrett.

reason is a

But the evidence plaintiff cites to

support this argument shows only her own qualifications, not DeMorrett's. Dkt. 43, ~ 11. With
no evidence in the record to show that plaintiff was more qualified than DeMorrett, plaintiff has
failed to raise a genuine dispute of fact concerning DeMorrett's allegedly inferior qualifications.
The undisputed

evidence is that DeMorrett

was hired through the City's standard

process and that he was unanimously selected by an interview panel with two men and two
women as the most qualified candidate. Accordingly, defendants

are entitled to summary

judgment as to this alleged act of discrimination. Plaintiff will not be allowed to proceed to trial
on the theory that she was the victim of discrimination or retaliation when DeMorrett was hired
as the water supply manager.
B. Nelson's reassignment of plaintiff's supervisory duties
Plaintiff contends that she suffered a discriminatory adverse action when Nelson created
the position of construction

engineer which had the effect of stripping plaintiff of all her

supervisory duties. Previously plaintiff's job duties included both design work and supervision of
field inspectors, but after the creation of the construction engineer position, she supervised no
one. Plaintiff contends that male engineers in the water utility continued to have supervisory
responsibilities even after the creation of the construction

engineer position. The defendants

contend that the reassignment of plaintiff's supervisory duties to the construction engineer is
not an actionable adverse action and that it was not undertaken for any discriminatory reason.
Plaintiff did not want to give up her supervisory duties, but as defendants point out, "not
everything that makes an employee unhappy is an actionable adverse action." Nichols v. S. Ill.
11

Univ.-Edwardsville, 510 F.3d 772,780
909, 911 (7th Cir. 2004)).

(7th Cir. 2007) (citing O'Neal v. CifY of Chicago, 392 F.3d

For purposes of Title VII, there are three general categories of

actionable, materially adverse employment actions:
(1) cases in which the employee's compensation,
or

other

including

financial

terms

termination;

of

employment

fringe benefits,
are

diminished,

(2) cases in which a nominally

transfer with no change in financial terms significantly
the employee's career prospects by preventing
skills and experience,

requirements

is not

moved

to

of her present

which she works are changed
humiliating,
significantly

reduces

her from using her

so that the skills are likely to atrophy

her career is likely to be stunted;
employee

lateral

degrading,

and (3) cases in which the

a different

job altered,

job

or

the

but the conditions

skill
in

in a way that subjects her to a

unsafe,

negative alteration

and

unhealthful,

or

otherwise

in her workplace environment.

Id.
In this case, plaintiff's compensation,

benefits or the financial terms of her employment

were not downgraded as a result of the creation of the construction
she remained

an Engineer 3. Thus, the question is whether

engineer position because

the change reduced her career

prospects by preventing her from using her skills so that they would atrophy, or whether the
change in conditions subjected her to humiliating, degrading or otherwise significantly negative
alteration in her workplace environment.

Plaintiff adduces no evidence that would show that her

career prospects would be limited as a result of the assignment of her supervisory duties to the
construction

engineer. Although plaintiff had recently completed the city's supervisory academy,

plaintiff adduces no evidence that the reassignment of construction

supervision would have any

long-term impact on her career prospects with the city. Although certain of the male engineers
in the utility retained some supervisory responsibilities, with minor exceptions all supervision of
field inspections was reassigned to the new construction

12

engineer. Plaintiff retained her design

responsibilities, which she apparently regarded as more important because she had previously
declined the opportunity to concentrate on construction supervision. There is no evidence that
as a result of the creation of the construction engineer position, plaintiff was subjected to any
humiliating,

degrading, unsafe, unhealthful

or other significantly negative alteration in her

workplace environment. Accordingly, the creation of the construction engineer position, and the
resulting reassignment of some of plaintiff's duties to that position, is not an actionable adverse
employment action.
Nor does the evidence support plaintiff's contention that the restructuring of the water
utility was undertaken

for a discriminatory purpose. Plaintiff makes essentially two arguments

that the creation of the construction

engineer position was undertaken

for discriminatory

purposes. First, she apparently relies on comparator evidence, that is, the fact that the other
male engineers in the water utility retained some supervisory duties. Second, she argues that the
city deviated from its usual hiring policies by putting Tammy Buss into the position of
construction engineer when Buss lacked one of the essential qualifications. But, considered in
context, neither of these arguments is persuasive. First, as for the comparator evidence, the court
understands plaintiff to have invoked this evidence to show through the indirect method that
Nelson's true motive was discrimination. But the comparators are not similarly situated.

The

male engineers who retained some supervisory duties were differently positioned. For example,
plaintiff's supervisor, Cawley, retained supervisory duties after the reassignment because he was
positioned at a higher level than plaintiff and had engineers subordinate to him. But even if
there were proper comparator evidence, the effect of that evidence is simply to shift the burden
to the city to provide a legitimate, non-discriminatory reason for the restructuring. The city has
done so. The construction engineer position was created to address problems with water utility
field inspections.

13

Plaintiff's attempt

to discredit this explanation

as pretext fails. Plaintiff contends that

Tammy Buss was installed in the position without qualifications which demonstrates
city's proffered reason was a pretext and that the true motive was discrimination.
fails because assigning plaintiff's
intent to discriminate
Moreover,

This argument

supervisory duties to another woman hardly demonstrates

against women by denying them supervisory roles in the water utility.

Buss was one of the complainants

Larson, so placing Buss in the construction
that the restructuring

that the

in the 2005 discrimination

complaint

engineer position also undermines

against

any suggestion

was motivated by retaliation for the 2005 complaint. In sum, there is no

credible evidence to suggest that the creation of the construction

engineer position and the

resulting reassignment of plaintiff's field inspection supervision duties were motivated by either
discrimination

or retaliation.

C. Larson's failure to support reclassification of plaintiff's position
Plaintiff contends that in 2008, Larson failed to support her reclassification to Engineer
4 for discriminatory
DeMaster's

or retaliatory

reasons.

Plaintiff

contends

reclassification to Engineer 4, and Adam Wiederhoeft's

that

Larson's

support

for

reclassification to Engineer

2 and then 3, suggests that his failure to support her reclassification is gender discrimination.
Plaintiff appears to offer DeMaster and Wiederhoeft
discrimination.

But plaintiff does not show that DeMaster

similar. DeMaster

worked

Engineer 4. But DeMaster

in a position

as comparators

and Wiederhoeft

of responsibility

himself lacked the requisite

as indirect proof of

that

warranted

credentials.

are sufficiently
classification

Once he received his

professional engineer certification,

he had the credentials to warrant reclassification,

both

were met. Plaintiff

criteria

Wiederhoeft's

for reclassification
reclassification

adduces

no evidence

and thus

to show how

up through the lower levels of the civil service classification

comparable to her request to be reclassified to the highest level.

14

at

is

The parties agree that plaintiff had the credentials to warrant reclassification to Engineer
4. But her position did not have sufficient independence to warrant that level, as the city's
human resources department had previously determined. Larson suggested that plaintiff again
seek reclassification of her position through the human resources department, but she did not
pursue reclassification.
Under these circumstances, no reasonable jury could conclude that Larson had prevented
plaintiff's

reclassification

to Engineer 4, or that

his lack of effort to arrange plaintiff's

reclassification was motivated by discrimination or retaliation.
D. Plaintiff's

reassignment

to the engineering

division

Plaintiff contends that her reassignment to the sewerage project at the engineering
department

was an adverse action undertaken

for discriminatory or retaliatory purposes. The

defendants contend that a temporary reassignment is not an actionable adverse action and that
the purpose in assigning plaintiff to this task was not motivated by discrimination or retaliation.
Although a temporary reassignment is not generally an actionable adverse action, it can
be if the assignment diminishes the employee's career prospects or is humiliating or degrading.
Nichols, 510 F.3d at 780. The question of whether an action is sufficiently adverse to be
actionable is ordinarily one for the jury. Williams v. Bristol Myers Squibb Co., 85 F.3d 270, 27374 (7th Cir. 1993). In this case, plaintiff has adduced evidence sufficient to submit the question
to a jury.
Plaintiff's

temporary,

though

extended,

assignment

to a sewerage project

at the

engineering division was not in the area of her expertise, which was water supply. Because the
temporary

assignment

did not exploit plaintiff's

specialized skills, the assignment was a

significant deviation from her career progression. By placing her outside the area of her
expertise, as well as her primary interests, the temporary assignment may have diminished her

15

career prospects. More important,

plaintiff was also subjected to humiliating

and degrading

restrictions during the assignment: she was deprived of access to her office at the water utility
building; her keys to the water utility building were disabled; she was removed from the
telephone directory of the water utility; and she was prohibited from attending water utility staff
meetings, including those that involved ongoing projects to which she would presumably return.
Plaintiff's

temporary

assignment

to the sewerage project

in the engineering

division was

effectively an exile, and a reasonable jury could conclude that she had suffered an adverse
employment action.
Whether
discriminatory

plaintiff's
or retaliatory

assignment

to

the

engineering

division

purposes is a closer call. Defendants

was

undertaken

for

contend that the sewerage

assignment was an important project for the city and that the defendants who made the decision
to assign plaintiff to the project, Heikkinen

and Nelson, had no reason to discriminate

or

retaliate against plaintiff. Plaintiff relies on both the direct and indirect approaches to establish a
discriminatory or retaliatory motive.
For the direct method,

plaintiff contends

that suspicious timing suggests retaliation

because her assignment to the engineering division immediately followed her complaint to the
human resources office abo.ut Nelson spreading rumors about her alleged romantic relationship.
Suspicious timing is circumstantial
discriminatory

evidence that tends to support an inference of retaliatory or

behavior. Coleman, 667 F.3d at 860. Defendants

contend that the decision to

assign plaintiff to the engineering division was already in process by the time plaintiff made her
complaint to the human resources department.

But defendants

take too narrow a view of the

potential causal chain leading to plaintiff's reassignment. The decision to assign plaintiff to the
engineering division was not yet final when she made her complaint to human resources, and
thus her complaint may have been one factor in sending her to the engineering division. Also, by

16

the time Nelson and Heikkenen began planning the transfer, Nelson had already decided that
plaintiff was engaged in a romantic relationship with a coworker, which had prompted Nelson to
require plaintiff to keep her door open at all times, and had sent Nelson to the human resources
department to complain about the relationship. The timing of the transfer to the engineering
division could suggest to a reasonable jury that Nelson was looking for a way to get plaintiff out
of the water utility because of his concern with plaintiff's romantic life, and that Nelson's
concern with plaintiff's romantic life was a form of sex-based discrimination. Although plaintiff's
2005 complaint against Larson was three years old by this time, a jury could infer that Nelson
harbored a belief that plaintiff was difficult to manage because of her willingness to voice
complaints about gender discrimination.

Taken as a whole, the circumstances would allow a

reasonable jury to infer that Nelson was motivated to isolate plaintiff in an assignment away
from the water utility for both discriminatory

and retaliatory reasons, and that Heikkenen

helped effectuate Nelson's plan.
Plaintiff also has evidence to prove discrimination through the indirect method in the
form of a comparator, Adam Wiederhoeft. Wiederhoeft was a junior engineer who was assigned
temporarily to the engineering division, allegedly to complete the assignments that plaintiff had
failed to complete. The parties dispute

the actual work Wiederhoeft

performed

at the

engineering division. But there is no dispute that, during his temporary assignment, he retained
access to his water utility workspace and telephone, that he remained on the water utility phone
list, and that he continued to attend water utility meetings. He also continued to work on some
of his water utility

projects

during his temporary

posting

at the engineering

division.

Wiederhoeft was also asked whether he would take the temporary assignment beforehand. The
defendants

contend that the difference between plaintiff's treatment

minor and that Wiederhoeft

and Wiederhoeft's

are

is not a reasonable comparator. But a comparator need not be
17

identical; the comparator
discrimination

only needs to be like in enough material respects to be suggestive of

or retaliation.

Coleman, 667 F.3d at 851-52. Whether

a comparator

is similarly

situated to a plaintiff is generally a question of fact for the jury. Srail v. Village of Lisle, 588 F.3d
940, 945 (7th Cir. 2009).
treatment

and plaintiff's

Although

the defendants

as not significant,

dismiss the differences

they offer no authority

between

for that argument.

his
A

reasonable jury could find that the restrictions that plaintiff endured during her assignment to
the engineering division were humiliating and degrading, and it is undisputed

that Wiederhoeft,

a less senior engineer, did not suffer them.
In sum, there is circumstantial
that

plaintiff's

discriminatory

temporary

evidence that would allow a reasonable jury to conclude

reassignment

to

the

sewerage

project

was

undertaken

for

or retaliatory purposes.

E. Cryan's supervision and criticism of plaintiff at the engineering division
Once she was assigned to the engineering
supervision

of defendant

division, plaintiff was placed under the

Cathy Cryan. Plaintiff complains

that Cryan subjected

sequence of unfair actions, including the letter of instruction,
recording a meeting, erratic and unreasonable

an unjustified

work assignments,

her to a

discipline

for

and the PIP. Defendants

concede, at least implicitly, that the discipline and the PIP constitute

adverse employment

actions. Defendants contend that these actions were justified and, in any case, not motivated by
retaliation or discrimination.
It is not clear whether
Cryan's treatment

plaintiff invokes the direct or indirect method

was discriminatory

or retaliatory. To make out a retaliation

to prove that
case under the

direct method, plaintiff must show that (1) she engaged in a protected activity; (2) she suffered
an adverse employment action, and (3) there is a causal connection between her activity and the
adverse action. Coleman, 667 F.3d. at 859. To make out a prima facie retaliation case under the

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indirect method, plaintiff must show that (1) she engaged in a protected activity; (2) she
suffered an adverse employment action; (3) she was performing her job satisfactorily; and (4) no
similarly situated employee who did not engage in the activity suffered an adverse employment
action. Squibb v. Memorial Med. Ctr., 497 F.3d 775, 786 (7th Cir. 2007). Under either method,
the most critical issue is whether plaintiff was performing her job satisfactorily (an element of
her prima facie case under the indirect method) or whether Cryan's discipline and criticism of
her was sincere or a pretext (evidence of the causal connection under the direct method).
Defendants
attitude,

contend that Cryan's criticism of plaintiff was justified: she had a poor

was insubordinate,

and did not do her assignments. In considering whether this

justification is a pretext under the direct method, it does not matter whether Cryan's treatment
of plaintiff was unfair or her criticism inaccurate. Coleman, 667 F.3d at 852-53. All that matters
is that Cryan honestly believed that plaintiff warranted Cryan's discipline and criticism, and
that that was why Cryan gave it. Id. To show that Cryan's treatment was pretextual, plaintiff
must '''identify

such weaknesses, implausibilities,

inconsistencies,

or contradictions'

[City's account] 'that a reasonable person could find [it] unworthy of credence.'''

in the

Id. If the

stated reasons were not really what induced Cryan to criticize and discipline plaintiff, the
reasons are a pretext. Id. Plaintiff raises a genuine dispute as to whether Cryan's discipline and
criticism was justified. Plaintiff's testimony and the contemporaneous records of her objections
to Cryan's criticism (e.g., Dkt. 44-21), if credited, would allow a jury to find that Cryan's
discipline and criticism were not merely unfair or inaccurate, but falsely trumped up for an
ulterior motive.
Looking at the issue under the indirect method, if plaintiff's evidence is believed, she was
meeting the legitimate expectations

of her employer. She makes out a prima facie case of

retaliation if she establishes the fourth element, that is, if no similarly situated employee who

19

did not engage in the protected

activity suffered an adverse employment

action. Plaintiff has

made that showing, because Cryan had never placed any city employee under a PIP.
Plaintiff has no evidence that Cryan personally was motivated

to discriminate

against

plaintiff. Plaintiff's theory is that Cryan was in cahoots with Nelson, who was motivated

to

discriminate and retaliate. A reasonable jury could believe plaintiff's rebuttal of Cryan's criticism
of plaintiff and her work, which would allow the jury to infer that the management
utility and the engineering department
evidence
reasonable

of the water

harbored gender-based animosity toward plaintiff. The

against Cryan is more attenuated

than

that

against

jury could conclude that Cryan willingly participated

Larson and Nelson,
in Larson's

but a

and Nelson's

retaliation against plaintiff.
F. Plaintiff's return to the water utility and her termination
After her medical leave, plaintiff returned to work at the water utility but not under
Crawley's supervision. Instead, plaintiff was supervised directly by Larson who immediately put
her on a new PIP. Plaintiff was given four specific assignments and she was required to submit
detailed progress reports. Larson and Heikkinen were uniformly critical of her work, which she
,
contends was grossly unfair and motivated by discrimination or retaliation. She was terminated
at the end of the six-month PIP for failing to meet its objectives.
The analysis of plaintiff's treatment

when she returned to the water utility follows the

same principles as the analysis of her treatment

by Cryan at the engineering division. Plaintiff

has adduced evidence to raise a genuine dispute of fact as to whether her assignments under the
PIP were reasonable ones, and whether the criticism of her performance was sincere or trumped
up. She has evidence to suggest that the wellhead assignments could not have been completed
within the deadlines she was given. She also has evidence that shows her own diligence in
attempting to complete her assignments. If the jury credits her evidence, it could decide that the

20

PIP, and the criticism of her work under the PIP, were merely pretexts. Coupled with the other
evidence

of record

termination,

on summary

judgment,

particularly

the jury could conclude that management

division harbored gender-based

the timing

of the

PIP and her

of the water utility and the engineering

animosity toward plaintiff, which was the true motivation

for

her termination.

ORDER
IT IS ORDERED that:
1) Defendants motion for summary judgment is GRANTED with respect to plaintiff's
allegations that she was unlawfully discriminated or retaliated against by defendants'
declining to hire plaintiff as water supply manager; failing to reclassify plaintiff's
position to the level of Engineer 4; and reassigning her supervisory duties to the
construction engineer position.
2) Defendants' motion is otherwise DENIED. Plaintiff may proceed to trial to prove her
claims that her temporary assignment to the engineering division, and her subsequent
discipline and termination, were motivated by gender-based discrimination or by
retaliation for her complaints about gender-based discrimination.

Entered this 9th day of July, 2014.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge

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