Congleton, Tracey et al v. Oneida County et al
Filing
47
ORDER denying 41 Motion to Strike by plaintiffs; Granting in part and denying in part 17 Motion for Summary Judgment by defendants. Signed by District Judge William M. Conley on 10/13/2017. (voc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TRACY LYNN CONGLETON and
RITA JOHNSON,
v.
Plaintiffs,
ONEIDA COUNTY, KEITH FABIANSKI,
LISA CHARBARNEAU, JOHN SWEENEY,
GRADY HARTMAN, and MARC NEUMAN,
OPINION AND ORDER
16-cv-412-wmc
Defendants.
Plaintiffs Tracy Lynn Congleton and Rita Johnson, both former employees of the
Oneida County Sheriff’s Department, allege that Keith Fabianski, a fellow jail employee
and, at times during their respective employment, their shift supervisor, subjected them to
hostile treatment because of their sex. Plaintiffs assert claims for hostile work environment
and retaliation against: their employer, the County, in violation of Title VII, 42 U.S.C.
§§ 2000e et seq., and against Fabianski and other individual defendants, who are also
employees of the County, as well as the County itself under Monell v. Department of Social
Services of the City of New York, 436 U.S. 658 (1978), for violations of their rights under the
Equal Protection Clause of the United States Constitution.
Before the court is defendants’ motion for summary judgment, in which defendants
assert a number of bases for judgment in their favor. (Dkt. #17.) 1 For the reasons that
follow, the court will grant summary judgment to defendants on all of plaintiffs’ claims,
Also before the court is plaintiffs’ motion to disregard new arguments in defendants’ reply brief.
(Dkt. #41.) Because the court is unpersuaded by any of these purported “new arguments” in
granting partial summary judgment in defendants’ favor, the court will deny plaintiffs’ motion to
strike as moot.
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save one: plaintiff Congleton’s claim against the County under Title VII for a hostile work
environment. Plaintiff may, therefore, proceed to trial on that claim alone.
UNDISPUTED FACTS 2
A. Defendants
Oneida County is located in North Central Wisconsin and employs approximately
300 individuals, including 91 employees who work for the County’s Sheriff’s Department.
The Sheriff’s Department is responsible for the operation of the County Jail.
Defendant Grady Hartman was hired by the County in 1999 as a Sheriff’s Deputy.
He was promoted to Sergeant in 2006, appointed as Sheriff in 2013 and has won reelection
since that time. Defendant Mark Neuman was hired as Oneida County’s Jail Administrator
on January 21, 2014, replacing Sandra Ladu Ives.
He continues in that role today.
Neuman’s assistant is defendant Keith Fabianski, who was first hired as a Department
Corrections Officer in June 1999, having previously served in the United States Marine
Corps. Fabianski was promoted to Lead Corrections Officer on August 9, 1999. On
November 6, 2013, Fabianski was promoted to Assistant Jail Administrator, the position
he has held to this day.
Defendant Lisa Charbarneau was hired by the County in 1993 as the Employee
Services Manager for the Labor Relations and Employee Services Department. She was
promoted in 2011 to the Human Resources Director. Defendant John Sweeney was hired
Unless otherwise noted, the court finds the following facts to be material and undisputed when
viewed in the light most favorable to the non-moving parties.
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by the County in 1985. He was promoted to Chief Deputy Sheriff in 2000 and remained
in that position until March 2014, when he retired from the Department.
Oneida County Corrections Officers are uniformed members of the Sheriff’s
Department, response for the day-to-day operation of the Jail. Corrections Officers work
under the guidance and direction of Lead Corrections Officers. Lead Corrections Officers,
however, do not have the authority to hire, fire, discipline or discharge Corrections Officers.
Lead Corrections Officers report to the Assistant Jail Administrator and Jail Administrator,
who are themselves supervised by the Chief Deputy and Sheriff. The Sheriff has the
ultimate authority to hire, fire, discipline and discharge Department employees.
B. Plaintiffs
Plaintiff Tracy Congleton applied for a position with the Oneida County Sheriff’s
Department in November 2001. After being offered both her choice of Corrections Officer
and Dispatch positions, she opted for the former and began working for the County on
January 3, 2002. Based on the recommendations of the then-Sheriff and Chief Deputy, as
well as the Jail Administrator and Assistant Jail Administrator Kaye Juel and Sandra Ladu
Ives, respectively, Congleton was promoted to Lead Corrections Officer in April 2012, with
a rank of Sergeant.
Congleton remained in that position, working opposite Lead
Correctional Officer Fabianski, until November 8, 2013, at which time she began working
as a County Child Care Specialist and defendant Fabianski was promoted to Assistant Jail
Administrator. The parties’ dispute the events surrounding her transfer of employment,
but agree that Congleton resigned from her employment with the County on June 24,
2015.
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The County hired plaintiff Rita Johnson as a Corrections Officer on December 6,
1999, and she remained in that role until she was terminated on January 6, 2015. At
various times, Johnson worked as the “acting Sergeant,” whose responsibilities included
supervising then-Lead Corrections Officer Fabianski.
C. Alleged Harassment
The parties agree that defendant Fabianski made no overt gender-related hostile
remarks or slurs.
Instead, plaintiffs claim that Fabianski treated them with hostility
because they were women. Plaintiff Tracy Congleton reports that Fabianski was the first
sergeant under whom she was assigned after six months of training. She found Fabianski
to be “very demeaning, always acting like she did not do things properly,” though she
acknowledges that he always gave her good written reviews. (Pls.’ Add’l PFOFs (dkt. #40)
¶ 14.)
Specifically, Congleton recounts that at the start of her shift, she would say
something like, “Hi, Keith, how are you?,” to which he would respond, “What the fuck
does it matter to you?,” or “Why the fuck do you care?” (Id. at 16.) Congleton also recalls
that if she was having a conversation with another coworker in front of Fabianski, he would
say something like, “Stop . . . interrupting me. You don’t fucking interrupt me. You shut
up. When I’m talking, you don’t interrupt me.” (Id. at 17.)
Congleton also avers that when Fabianski spoke to her in a hostile fashion, their
toes were touching and he would point his finger at her, while saying something like, “If I
fucking wanted you to fucking talk, I’d fucking ask you.” (Id. at ¶ 19.) Congleton further
avers that Fabianski cursed at her in front of inmates, including on one occasion when he
threw his arms up and said, “What the fuck are you doing?” as she escorted an inmate with
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another correctional officer. Congleton represents that she feared for her safety and was
afraid Fabianski might physically assault her.
Congleton represents that these interactions happened at least once or twice a week
during the time Fabianski was supervising her, from approximately 2002 until 2007, except
when Fabianski ignored her completely. She also avers that his behavior never improved
over that five-year period of time.
In contrast, Fabianski denies treating Congleton in a hostile manner. In addition
to disputing Congleton’s account of her interactions with Fabianski, defendants also point
out that during the five-year period at issue from 2007 to 2012, Congleton and Fabianski
rarely had contact at work. In fact, beginning in 2007, Congleton was no longer supervised
by Fabianski; instead, she gained enough seniority to move to a shift supervised by Sergeant
Rita Wege (nee Mertz). After staying on Wege’s shift from 2007 to 2008, Congleton was
asked by then-Jail Administrator Kaye Jule to move to Sergeant Bill Skubal’s shift. In
2012, Officer Congleton’s schedule was again changed so that she worked three days with
one sergeant and three days with another, bringing her back in regular contact with
Fabianski. This contact was also short-lived, however, because Congleton was promoted
in April 2012 to the rank of sergeant and served as a Lead Corrections Officer herself. Still,
Congleton contends that Fabianski was critical and blamed her for things she had not done
even after her promotion.
In addition to experiencing Fabianski’s hostility directly, Congleton also observed
his treatment of other female employees. Specifically, Congleton described an incident
when Fabianski did not send officers into the booking room to help female correctional
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officer Nicole Martinson. At another time, when Martinson asked Fabianski how she was
doing, Fabianski responded, “Who the fuck cares?”
Plaintiff Rita Johnson’s first supervising sergeant was also Fabianski. He remained
her regular shift sergeant for approximately one year. She continued to work under his
supervision “on and off” throughout her career at the Jail. Johnson also avers generally to
the differences in the way Fabianski treated her as compared to male correctional officers.
As an example, she recounts how Fabianski used “awful” language -- “fuck this,” or “fuck
that” -- when speaking to female correctional officers. (Pls.’ Add’l PFOFs (dkt. #34) ¶ 98.)
In contrast, Johnson observed him speaking normally with male correctional officers,
calling them “buddy.” If Johnson extended a friendly greeting, Fabianski would respond
with a “[w]hat the fuck is it to ya?” (Id. at ¶ 102.)
Johnson specifically describes an exchange after Fabianski returned from a medical
leave of absence in 2002, but not in uniform. Johnson reports asking what he was doing
back at work, to which he responded, “Fucking here, ain’t I?” He then further said, “If
you have a problem [with me being out of uniform,] take it up with the fucking Jail
Administrator.” (Defs.’ PFOFs (dkt. #19) ¶ 115 (quoting Lopez Decl., Ex. J (dkt. #2410) 5-7); see also Pls.’ Add’l PFOFs (dkt. #34) ¶ 106.) Later that same day, Johnson
overheard Fabianski tell an inmate, “I fly like an eagle and have to work with a fucking
turkey.” (Defs.’ PFOFs (dkt. #19) ¶ 116; Pls.’ Add’l PFOFs (dkt. #34) ¶ 106.) When
Johnson then approached, Fabianski said that he would speak with her later in the radio
room. When Fabianski returned to the locked radio room, he allegedly yelled, “open this
fucking door,” to which Johnson replied, “if you ask nicely[,] I will open it.” (Id.) Fabianski
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then apparently walked away rather than do so. Although that ended the incident, Johnson
maintains it was typical of the dismissive way Fabianski dealt with her, as well as other
female correctional officers.
As another example, Johnson specifically recounts one incident when Fabianski told
Congleton to “Shut the fuck up. I didn’t ask you to talk. There’s sergeants in here.” (Pls.’
Add’l PFOFs (dkt. #34) ¶ 111.) Johnson further recounts an event in December 2013
after Johnson had cleaned and rearranged the break room, and another officer put the
furniture back to its original position. Johnson overheard another officer ask Fabianski
why they could not keep the break room the way Johnson arranged it. Fabianski asked
Johnson to step into his office, at which time he said, “It’s always fucking something with
you. Every day, it’s something. It’s always fucking something with you.” (Pls.’ Add’l
PFOFs (dkt. #34) ¶ 115.) Johnson claims she reported this incidence verbally to the
County’s Employee Services Manager Charbarneau, as well as Neuman, Deputy Sheriff
Sweeney and Sheriff Hartman.
In addition to Congleton and Johnson, Sergeant Rita Wege testified at the ERD
hearing about Fabianski’s interactions with female employees under his supervision,
describing Fabianski as demeaning and reducing female correctional officers to tears. Wege
specifically observed him mistreating Congleton. Wege also heard complaints from other
female officers, Rebecca Hable and Nicole Martinson. As for herself, Wege testified that
she made a report to the Jail Administrator that Fabianski yelled at her in 2008.
Sergeant William Skubal also testified at the ERD hearing that in 2009 and 2010,
there were a few times when Congleton talked to him “about what [Fabianski] was doing
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and [sought] his advice.” (Defs.’ Resp. to Pls.’ PFOFs (dkt. #39) ¶ 179.) In addition,
Skubal acknowledged he observed Fabianski dealing with female correctional officers in a
demeaning tone and using offensive language approximately once or twice every two weeks.
Although he also testified that Fabianski used profanity and had a harsh demeanor with
male employees.
Skubal testified that Fabianski was harsher with female employees.
While Skubal orally complained about Fabianski, those complaints concerned how
Fabianski “treated several of us,” including Skubal himself.
In response, defendants identify times during each plaintiffs’ employment when
they had the option to select shifts, and they both opted to work under Fabianski’s
supervision. (See, e.g., Defs.’ PFOFs (dkt. #19) ¶ 44, 47.) Congleton concedes that prior
to her move to another shift in 2007, she had the option a year or two earlier to move, but
opted to stay on Fabianski’s shift because she would have more holidays off, which she
particularly valued having started a family. Moreover, at the point when she did opt to
transfer shifts, she did so despite the fact that it was the least desirable from a scheduling
standpoint.
On at least one occasion, Congleton also concedes telling Fabianski that she looked
forward to working with him. When supervising plaintiffs, Fabianski always provided
favorable reviews in their performance evaluations. Fabianski even defended Johnson in
2012 when she failed to follow the Department’s paid time off policy, advocating for her
and recommending that she not be disciplined.
Defendants also point out that Johnson asked Fabianski to represent her as a union
steward on two or three occasions, although it appears he was the only steward for
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correctional officers. In 2007, Johnson also asked Fabianski to accompany her when she
confronted another correctional officer about a dispute. During that interaction, Fabianski
stepped in front of Johnson to protect her, telling the other corrections officer to keep his
hands down.
Finally, defendants point to evidence that Congleton and Fabianski
socialized outside of work early in her career, including going to dinner with their respective
spouses and Congletons’ family attending the Fabianskis’ Christmas party.
Defendants further represent that Fabianski also did not get along, at least at times,
with two male employees, Sergeant Skubal and Officer Paul Erlitz, and that other female
employees testified at the hearing that he was not demeaning to female employees.
D. County’s Awareness of Complaints against Fabianski
1. Early Complaints
In 2002, Congleton and other Corrections Officers complained to then Jail
Administrator Juel that Fabianski had a poor attitude and was a difficult supervisor. Juel
and Chief Deputy Sweeney responded by meeting with Fabianski and counseling him on
his attitude and behavior.
Afterward, defendants represent that Fabianski’s work
performance and attitude improved. In response, plaintiffs contend that Johnson alerted
Jail Administrator Juel shortly after his counseling that Fabianski was “back to his same
old games as to how he treats me and Tracy and Dee and Deb and other female officers.”
(Pls.’ Resp. to Defs.’ PFOFs (dkt. #39) ¶ 66 (quoting Lopez Decl., Ex. F (dkt. #24-6) (ERD
hearing transcript) 25.)) Sergeant Skubal similarly testified that Fabianski’s treatment of
female officers never changed for the better. (Id. (citing Lopez Decl., Ex. F (dkt. #24-6)
57).)
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Johnson also represents that during an investigation of another employee’s conduct
in 2001, she told a former Sheriff about Fabianski’s treatment of her. (Pls.’ Resp. to Defs.’
PFOFs (dkt. #39) ¶ 150.) Johnson also contends that she spoke with then-Assistant Jail
Administrator Ladu Ives on at least two occasions about Fabianski’s behavior, but could
not recall the date. 3
2. Fabianski’s Promotion
The Jail Administrator position became open after Juel was killed tragically in a fire
on February 12, 2013.
Oneida County ordinances govern employee promotions,
appointments and the filling of vacant positions. Under the applicable policy, a panel
interviews and scores candidates, with the Sheriff making the final decision. In fact,
Congleton applied for the Jail Administrator positon, but the County hired Ladu Ives, the
then-Assistant Jail Administrator.
As a result of Ladu Ives’ promotion, the Assistant Jail Administrator position
became vacant, and Congleton again applied for that position. Congleton was further
informed that she was the only applicant to pass the written examination for that position.
Instead of offering her the position, however, the Department reposted it. Ultimately, five
Johnson also avers that Ladu Ives was present when she and other female officers met with
attorneys in October 2007 about gender-based harassment at the jail, although she does not claim
to have raised Fabianski’s behavior in particular at that time. For their part, defendants point to
Johnson’s ERD hearing testimony during which she only claims to have complained to Kaye Juel.
(Defs.’ Resp. to Pls.’ Add’l PFOFs (dkt. #39) ¶ 113.) Johnson also contends that in April 2012,
she went to Human Resources Director Charbarneau’s office “due to the harassment at the jail and
specifically Sergeant Fabianski,” at which time she “asked about openings at the courthouse,” but
Johnson stops short of averring that she actually told Charbarneau about harassment. (Pls.’ Add’l
PFOFs (dkt. #34) ¶ 114.) Finally, Charbarneau avers that her only recollection of Johnson
complaining about Fabianski was in connection to the Congleton investigation in November 2013.
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candidates, including Congleton and Fabianski, were asked to interview. Around this time,
Congleton avers that Fabianski stated while looking directly at her, “Once I become jail
administrator, I’m going to fucking start cleaning house.” (Pls.’ PFOFs (dkt. #34) ¶ 29.)
The panel, which included Sheriff Hartman, Deputy Chief Sweeney and Jail Administrator
Ladu Ives, interviewed and independently scored the candidates. Sheriff Hartman then
took each candidate’s raw interview score from each interviewer and averaged them.
Fabianski received the highest overall average score; Congleton received the third highest
score. During the hiring process, Congleton never raised any concerns about Fabianski’s
candidacy with anyone at the County. Ultimately, Hartman decided, and the panel agreed,
that Fabianski was the most qualified applicant. He was promoted to the role of Assistant
Jail Administrator on November 6, 2013.
3. Other, Pre-November 2013 reports
Defendants contend that Congleton complained to no one at the County about
Fabianski’s alleged discrimination based on her gender before the date Fabianski was
promoted to Assistant Jail Administrator instead of Congleton.
Although Congleton
acknowledges that she did not lodge a formal complaint under the County’s or
Department’s harassment policies before then, she purports to have complained to
supervisors about Fabianski well before November 2013.
Specifically, Congleton
represents that she spoke about Fabianski’s discrimination and/or harassment when Sandra
Ladu Ives was still the Assistant Jail Administrator, and that Ladu Ives had herself
witnessed the harassment on several occasions well before that, when she was a corrections
officer.
Congleton also avers that she later told Jail Administrator Kaye Jule about
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Fabianski’s harassment on several occasions. At some point, Congleton contends that she
no longer felt comfortable reporting harassment to Ladu Ives after Jule’s untimely death in
February 2013 because of “how the relationship between Keith [Fabianski] and Sandra
[Ladu Ives] had developed.” (Pl.’s Resp. to Defs.’ PFOFs (dkt. #39) ¶ 67 (citing Olson
Decl., Ex. A (dkt. #37-1) 2-3).) Congleton admits, however, that she did not complain
about harassment based on her gender to then-Deputy Sheriff Sweeney, Sheriff Hartman,
the County Human Resources Director Lisa Charbarneau, or any other County Human
Resources employee before November 8, 2013.
E. Congleton’s Formal November 2013 Complaint of Harassment and
Charbarneau’s Investigation
On November 8, 2013, the day Congleton learned that she was not selected for the
Assistant Jail Administrator, she met with Charbarneau. The parties sort of dispute the
specific content of their conversation. Congleton contends that she relayed: how upset
she was about the decision to promote Fabianski; her belief that Fabianski and Ladu Ives
had conspired to have Fabianski promoted; and that she did not want to be supervised by
Fabianski. Congleton also reports asking to be demoted so that she would have somebody
with a sergeant’s rank between her and Fabianski. Defendants emphasize that Congleton
did not provide any specific examples, only stating generally that Fabianski talked to her
in a “harsh manner.” (Defs.’ PFOFs (dkt. #19) ¶ 109.) In response, Congleton represents
that she told Charbarneau “[e]verything that [she] could remember,” citing her ERD
testimony, but fails to provide any details as to what she told or did not tell Charbarneau
about Fabianski’s alleged harassment. (Pls.’ Resp. to Defs.’ PFOFs (dkt. #39) ¶ 109.)
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Congleton also urged Charbarneau to speak with Johnson and another employee Debra
Nelson about Fabianski’s behavior.
After learning that Congleton would be uncomfortable working under Fabianski,
Charbarneau placed her on administrative leave to allow the County to investigate the
allegations. At that time, Charbarneau also indicated that there was an opening available
in the County child support office for which Charbarneau believed Congleton was more
than qualified.
Charbarneau’s investigation lasted approximately five days. Plaintiffs point out that
there are no written guidelines on how to conduct an investigation, and Charbarneau had
no training on how to do so. Plaintiffs generally challenge the sufficiency of Charbarneau’s
investigation, pointing out in particular that she did not ask: about the frequency of any
harassment; whether there was other witnesses to it; and for records to substantiate the
harassment.
Plaintiffs also criticize Charbarneau for not following up with potential
witnesses who had heard complaints about the harassment.
Even so, Charbarneau represents that she spoke with five individuals, including
Congleton and purported co-complainers Johnson and Nelson. Defendants contend that
Johnson reported only the one incident in 2002, following Fabianski’s return from a
medical leave of absence, not in uniform. Plaintiffs dispute that Johnson only reported
this one incident, stating that she reported the same things she testified about at the ERD
hearing. (Pls.’ Resp. to Defs.’ PFOFs (dkt. #39) ¶ 115; Pls.’ Add’l PFOFs (dkt. #34) ¶
119.) As to her conversation with Charbarneau, Johnson also does not dispute reporting
that Fabianski defended her when another corrections officer yelled at her, nor that she
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complained more extensively about other Department employees.
During Charbarneau’s discussion with Nelson, Charbarneau acknowledges being
told that Fabianski “generally spoke to women differently, [but Nelson] could not provide
any incidents of Fabianski’s behavior,” other than the 2002 incident that Johnson
described, and one other exchange on a date she could not recall, when Nelson asked
Fabianski, “What did I do to piss you off?” to which he allegedly replied ,“You fucking
showed up.” (Defs.’ PFOFs (dkt. #19) ¶ 121.)
Charbarneau represents that the other individuals she interviewed “stated that
Fabianski was sometimes rude, but he acted that way with everyone regardless of gender.”
(Defs.’ PFOFs (dkt. #19) ¶ 122 (citing Charbarneau Decl. (dkt. #21) ¶ 48).) However,
Charbarneau, does not identify the “other” individuals with whom she spoke, and plaintiffs
dispute whether she actually spoke with anyone else.
Before Congleton’s November 8 complaint, Sergeant William Skubal also met with
Charbarneau on October 14 to express concerns about Fabianski becoming the Assistant
Jail Administrator, and specifically, a concern that Ladu Ives was helping Fabianski apply
for the position. Skubal further complained that Fabianski was rude to him personally,
but he did not provide any information supporting a claim that Fabianski treated women
any differently than he treated men. Plaintiffs dispute this, pointing to Skubal’s oral report
to Charbarneau in 2009 or 2010 about “Mr. Fabianski’s treatment of female corrections
officers.”
(Pls.’ Resp. to Defs.’ PFOFs (dkt. #39) ¶ 124.)
Nevertheless, defendants
maintain that Skubal’s complaints in 2013 were about Fabianski’s behavior generally, not
specifically about his treatment of female employees.
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Based on these interviews, Charbarneau ultimately found that Fabianski sometimes
used profanity and was rude, but that he spoke to men and women in the same manner.
She further concluded that Fabianski’s use of profanity was common in the Jail among and
between men and women. In light of Congleton’s failure to raise concerns before she was
passed over for promotion, as well as the few, specific instances of alleged unfair behavior,
Charbarneau concluded that Fabianski’s behavior was not gender-related, did not violate
County policy and did not constitute harassment or discrimination of Congleton.
However, Charbarneau did not memorialize her findings in a written report, purporting to
have followed the advice of the County’s attorney not to do so.
Charbarneau did, however, advise Congleton of the outcome of her investigation on
November 15, 2013. She also advised Congleton that Sheriff Hartman wanted her to stay
in the Lead Corrections Officer position. Congleton represents that Charbarneau also
advised her that the County’s attorney thought it might be best for her to take the child
support position, which Congleton opted to do, even though it paid significantly less.
Charbarneau granted Congleton’s request and arranged for her transfer to a position with
Child Support Enforcement, effective November 18, 2013. Congleton then worked in that
position for almost 1½ years when on until June 24, 2015, she voluntarily resigned to work
for another employer.
F. Johnson’s Termination
In January 2014, a departing employee advised Sheriff Hartman during her exit
interview that she felt Officer Johnson had a negative attitude, and she found it hard to
work with her. Johnson’s direct supervisor, Hubert Lawson, had also received complaints
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regarding Johnson’s attitude from her coworkers, and he relayed that information to
Fabianski, who, in turn, passed it along to Neuman, sometime shortly after Neuman had
been hired to replace Ladu Ives as the Jail Administrator.
On January 23, 2014, Jail Administrator Neuman and his Assistant Fabianski met
with Johnson to address these complaints. Defendants contend that Neuman told Johnson
that he had noted a pattern of her not getting along with coworkers, and he expected she
would cooperate and improve her attitude. While Johnson purports to dispute this, her
account does not contradict defendants’ proposed facts. Instead, Johnson contends that
Neuman told her (on what she points out was only his second day on the job) that she was
“not a team player and that he would not have that in his department.” Johnson inferred
Neumann was making a “reference to [her] previous complaints about Sergeant Fabianski
which she had made to Juel and Charbarneau.” (Pls.’ Resp. to Defs.’ PFOFs (dkt. #39) ¶
162.) When asked if she had a problem with any coworkers or supervisors, Johnson also
avers that she specifically told Neumann of her “history with Sergeant Fabianski,”
including that she had previously complained to Juel and Charbarneau, but nothing had
been done. (Id.)
After that meeting, Johnson contacted Charbarneau to emphasize again that she
was still interested in a transfer outside of the Sheriff’s Department, because she was
convinced that the new jail administration (Neumann and Fabianski) was going to look for
a way to get rid of her. This conversation was actually a follow-up to Johnson’s previous
request for a transfer, to which Charbarneau advised that she should apply for any open
positions.
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Eleven months later, on November 17, 2014, after working nearly half her shift,
Johnson provided her supervisor, Sergeant Dave Hollands, a doctor’s note stating that she
was ill and should not work on November 17 and 18. Johnson explains that the doctor’s
note was precipitated by a rash on her shoulder that was getting worse during the course
of her shift. She nevertheless continued to work on the 17th, but did not report to work
on November 18 and was not scheduled to work November 19 or 20. On November 21,
Johnson called in sick to work at approximately 1:00 p.m., about five and one-half hour
before the start of her scheduled shift.
On November 17, Johnson was also notified that she was scheduled for a mandatory
overtime shift on November 30. 4
On November 24, Johnson called Fabianski and,
according to defendants, stated that she could not work that overtime shift because her
son, who was living on a military base in North Carolina, was visiting for a week. Johnson
contends that she did not say that she could not work, but instead requested that Fabianski
find a substitute. Regardless, Fabianski told her that he was going on vacation and directed
her to contact Neuman.
The parties dispute the specifics after that, but suffice it to say that Neuman and
Johnson never connected.
Instead, on November 24, Neuman left her a voicemail
instructing her to work the mandatory overnight shift on the 30th and to contact him if
she had any questions. Rather than try to reach Newman again, Johnson then called
Butzlaff, the County Support Services Administrator, and attempted to reach Chief
Because of staff shortages, ordering mandatory overtime is often required to meet Wisconsin’s jail
staffing requirements.
4
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Deputy Dan Hess or Sheriff Hartman. Ultimately, there is no dispute that none of these
individuals excused her from working the November 30 overnight shift.
On November 30, Johnson called in sick and failed to report to work. Given this
history, Neuman suspected she was not ill, but had called in sick to continue the visit with
her son. Johnson claims, however, that she was experiencing flu-like symptoms, including
nausea and diarrhea. In addition to questioning the legitimacy of her excuse, Neuman also
believed that Johnson violated the chain of command by calling the Chief Deputy, rather
than communicating with Neuman directly as he had instructed. Given his belief that
Johnson was abusing sick leave, he commenced an investigation. Johnson contends that
Neuman simply saw this as an opportunity to get rid of her.
As part of his investigation, Neuman interviewed Johnson on December 3, 2014,
and ultimately concluded that Johnson had lied to him during the investigation. Neuman
also found that she had failed to accept responsibility for her actions, was insubordinate
by not communicating directly with him, and had abused sick leave. Johnson disputed
Neuman’s findings and met with him again on December 22, after which Neuman updated
his report and provided it to Sheriff Hartman.
Hartman then conducted his own investigation, including a meeting with Johnson
on December 30. At that time, he was unaware that Johnson made any complaints of
gender discrimination against Fabianski during her employment. Hartman also concluded
that:
(1) Johnson had lied during the investigation; and (2) she had violated the
Department’s policies and procedures by abusing sick leave.
terminated Johnson’s employment effective January 6, 2015.
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As a result, Hartman
In response, Johnson filed a grievance. During that process, Johnson did not allege
that she was terminated for discriminatory or retaliatory reasons. A hearing was held on
Johnson’s grievance on April 10, 2015. On April 22, the Hearing Officer denied her
grievance and upheld her termination.
G. Anti-Harassment Policies
Both the County and the Department maintain Anti-Harassment policies, which
state that they have zero tolerance for discrimination and harassment. (Charbarneau Decl.,
Exs. B, C (dkt. ##21-2, 21-3).) Employees receive a copy of the County’s policy when
hired, and employees receive both County and Department policies during orientation. In
addition, the policies are on the Department’s internet and can be accessed at any time.
Under the County’s policy, any individual who believes that they are the victim of
harassment is required to notify his or her supervisor, unless the supervisor is the harasser,
in which case the supervisor’s supervisor should be notified.
If an employee is
uncomfortable notifying any supervisor, he or she is directed to contact the County Labor
Relations and Employee Services Department.
Under the Department’s policy, an
individual who has been sexually harassed is directed to contact “any supervisor with whom
they have confidence.”
(Charbarneau Decl., Ex. C (dkt. #21-3) 1.)
The County
investigates all complaints and, if substantiated, appropriate disciplinary action is taken.
OPINION
Plaintiffs assert claims for (1) hostile work environment under Title VII; (2)
retaliation under Title VII; and (3) equal protection violations under § 1983 based on the
19
same alleged sex discrimination and retaliation. The Title VII claims are brought against
Oneida County, as plaintiffs’ former employer, and the § 1983 claim is brought against the
individual defendants and against the County under Monell v. Dept. of Social Services of the
City of New York, 436 U.S. 658 (1978). Defendants raise several bases for summary
judgment, which the court addresses in turn below.
I. Statute of Limitations
Defendants seek to dismiss plaintiffs’ Title VII hostile work environment claims as
untimely. Under Title VII, a plaintiff must file a charge with the EEOC or the appropriate
state agency -- here the Wisconsin Equal Rights Department (“ERD”) -- “within 300 days
of the alleged discriminatory act or unlawful practice.” Riley v. Elkhart Cmty. Sch., 829 F.3d
886, 890 (7th Cir. 2016) (citing 42 U.S.C. § 2000e–5(e)(1)).
Congleton filed a
discrimination complaint with the ERD against the County on February 17, 2014, thus
her claim encompasses events dating back to April 24, 2013. Johnson filed her complaint
on August 7, 2015, encompassing claims dating back to October 10, 2014.
In response, plaintiffs concede that Johnson’s Title VII hostile work environment
claim is time-barred. (Pls.’ Opp’n (dkt. #32) 6.) Plaintiffs, however, argue that “a subset”
of Congleton’s claims are actionable because “Charbarneau’s sham investigation and
improper exoneration of Fabianski in November, 2013 and Congleton’s constructive
demotion, are all within the limitations period.” (Id. at 9.) Even though Fabianski’s alleged
harassment of Congleton for the most part dates back to the early and mid 2000s, “a
violation of Title VII that is based on a claim of harassment by a coworker doesn’t occur
until the employer has failed to take reasonable steps to bring the harassment to an end.”
20
Frazier v. Delco Elecs. Corp., 263 F.3d 663, 666 (7th Cir. 2001). In other words, “only when
it becomes clear that the employer has failed to resolve it in a timely fashion does the
statute of limitations begin to run.” Id. Therefore, plaintiffs reason that the clock for
purposes of Congleton’s hostile work environment claim did not begin to run until
November 15, 2013, when Charbarneau informed Congleton of the results of her
investigation and Congleton decided to accept the transfer to a lower paying job.
To this, defendants offer a convoluted reply, essentially arguing that the statute of
limitations should not be tolled by Charbarneau’s investigation. (Defs.’ Reply (dkt. #38)
10.) To be fair, plaintiffs also cite to cases involving the tolling of the statute of limitations.
(Pls.’ Opp’n (dkt. #32) 10.) This case, however, does not involve the tolling, which may
be appropriate in cases where the plaintiff was lulled into believing that the employer was
attempting to take remedial actions. See Frazier, 263 F.3d at 666. Instead, plaintiff
Congleton’s ERD complaint was filed within 300 days of Charbarneau’s notification of the
results
of
her
investigation,
finding
Congleton’s
complaints
about
Fabianski
unsubstantiated.
Defendants persist that Congleton claims, and therefore was aware of, Fabianski’s
behavior dating back to 2002. (Defs.’ Reply (dkt. #38) 11.) While this argument would
certainly seem to carry weight with respect to the scope of her claims under § 1983 against
Fabianski as discussed later, Congleton’s Title VII claim is triggered by the date the employer
fails to take corrective action, not when the alleged harassment began. See Frazier, 263 F.3d
at 666 (statute of limitations begins to run “only when it becomes clear that the employer
21
has failed to resolve it in a timely fashion”). 5
Accordingly, the court will grant summary judgment to defendants on Johnson’s
Title VII hostile work environment claim as time-barred, but must deny defendants’
motion as to its statutory limitations defense as to Congleton’s claim. Defendants only
pursue a statute of limitations defense with respect to plaintiffs’ Title VII hostile work
environment claim in its summary judgment submissions, and not, as far as the court can
tell, with respect to the § 1983 equal protection claims brought against the individual
defendants. The statute of limitations for the § 1983 claims is significantly longer at six
years than that provided under Title VII. See Gray v. Lacke, 885 F.2d 399, 408-09 (7th
Cir. 1989) (citing Wis. Stat. § 893.53, providing statute of limitations for personal rights
actions). Still, in their opposition brief, plaintiffs concede that the relevant period of time
for their equal protection claims is the six-year period of time before commencement of
this action, in other words, alleged harassment after June 14, 2010. (See Pls.’ Opp’n (dkt.
#32) 6 (“Thus, each Plaintiff can reach back to Fabianski’s harassment of her, which was
occurring during this six-year limitations period, i.e., after June 14, 2010, six years before
this action was commenced.”).)
As described above in the fact section, plaintiffs’
allegations of harassment by Fabianski largely concern the period of 2002 to 2007 for
Congleton and the early 2000s for Johnson. For the reasons explained below, this timing
In proposing findings of facts, plaintiffs stress earlier complaints about Fabianski in 2002, as well
as more recent complaints preceding the November 2013 investigation. Curiously, however, other
than acknowledging earlier complaints that were not specific to gender harassment lodged against
Fabianski in 2002, defendants dispute any earlier awareness of plaintiffs’ sex harassment claims.
As a result, the court must assume that defendants are not arguing that Congleton’s Title VII claim
is time-barred because she previously informed the County of her concerns and the County failed
to take corrective action at that time.
5
22
dynamic proves fatal for plaintiffs’ equal protection claims asserted against Fabianski
individually.
II. Merits of Title VII Hostile Work Environment Claim and Equal Protection
Clause Claim
Next, defendants argue that plaintiffs failed to put forth sufficient evidence from
which a reasonable jury could find harassment implicating Title VII and the Equal
Protection Clause. For the most part, the parties agree that the same standard of proof
governs plaintiffs’ Title VII hostile work environment claim and their equal protection
claims against individual defendants brought under 42 U.S.C. § 1983, though plaintiffs
acknowledge that their § 1983 claim also requires proof of “discriminatory intent.” (See
Defs.’ Opening Br. (dkt. #18) 36 (citing Williams v. Seniff, 342 F.3d 774, 788-89 n.13 (7th
Cir. 2003); Pls.’ Opp’n (dkt. #32) 26 (quoting Murray v. Chi. Transit Auth., 252 F.3d 880,
887 (7th Cir. 2001).) 6 Because the statute of limitations defense argument was specific to
the Title VII claim, and therefore only bars plaintiff Johnson’s claim under Title VII, the
court must consider defendants’ merits-based challenges to both plaintiffs’ claims.
“Title VII prohibits the creation of a hostile work environment.” Orton-Bell v.
Indiana, 759 F.3d 768, 773 (7th Cir. 2014) (quoting Vance v. Ball State Univ., ––– U.S. ––
––, 133 S. Ct. 2434, 2441 (2013)); see also Valentine v. City of Chi., 452 F.3d 670, 682 (7th
Cir. 2006) (“Sexual harassment by a state employer constitutes sex discrimination in
Of course, there are other differences. For the § 1983 claims, plaintiffs need not show a basis for
employer liability, unless pursuing a claim under Monell, which plaintiffs withdrew in their
opposition brief. (Pls.’ Opp’n (dkt. #32) 9.) Moreover, a showing that plaintiffs’ sex was simply a
“motivating factor” in, rather than a “but for” cause of, Fabianski’s alleged harassment might still
form a sufficient basis for some relief under Title VII. See 42 U.S.C. § 2000e-2(m).
6
23
violation of the equal protection clause.”). In order to avoid summary judgment on a
hostile work environment claim, “a plaintiff must establish four elements: (1) the work
environment must have been both subjectively and objectively offensive; (2) her gender
must have been the cause of the harassment; (3) the conduct must have been severe or
pervasive; and (4) there must be a basis for employer liability.” Orton-Bell, 759 F.3d at 773
(internal quotation marks omitted) (quoting Chaib v. Indiana, 744 F.3d 974, 985 (7th Cir.
2014)).
A. Subjectively and Objectively Offensive; Severe or Pervasive
Because the parties’ arguments as to whether Fabianski’s behavior was objectively
offensive (part of the first prong) and severe or pervasive (the third prong) overlap, the
court will consider these two elements together. Defendants contend that Fabianski’s
behavior was neither subjectively nor objectively offensive and that it was neither severe
nor pervasive. In support of their position that Fabianski’s behavior was not subjectively
offensive, defendants point to evidence in the record that: (1) at times, plaintiffs opted to
work under his supervision; (2) sometimes Fabianski was nice to them, including (a) with
respect to Johnson, acting as her union representative or otherwise supporting her in
confronting other co-workers, and (b) with respect to Congleton, socializing with her and
her husband, offering gifts to her children, which she accepted, and inviting her and her
family to family holiday parties; and (3) he provided positive performance reviews of both
plaintiffs. (Defs.’ Opening Br. (dkt. #18) 26-27.)
Nevertheless, as detailed above, Congleton testified at the ERD hearing in detail
that Fabianski frequently and consistently spoke to her in a demeaning manner, recounting
24
Fabianski’s use of derogatory language to address her. Specifically, Congleton testified that
while he was supervising her, Fabianski spoke to her in a derogatory manner once or twice
a week, and provided examples of Fabianski responding, “What the fuck does it matter to
you?,” or “Why the fuck do you care?” Each of these responses were supposedly prompted
by no more than simply asking him how he was doing, as were responses like “shut up”
and to stop “fucking interrupt[ing] me,” among other purported statements. Congleton
also represents that when Fabianski spoke to her in this manner, he would do so in close
proximity, with their toes touching and his finger pointed at her. Congleton further
testified that she feared for her safety and was concerned that Fabianski might physically
assault her during these exchanges. A reasonable jury could credit her testimony and find
that she found this treatment subjectively offensive.
Plaintiff Johnson’s testimony is far less detailed, relying on her observations
generally of differences in the way Fabianski treated her and the way he treated male
correctional officers, as well as recounting Fabianski being demeaning to women and using
“awful” language, including “fuck this,” or “fuck that,” when speaking to female
correctional officers, in contrast to how he spoke with male correctional officers. Johnson
recalled a specific event in 2002 -- the so-called “radio room” incident -- during which
Fabianski allegedly cursed at her after pointing out that he was not in uniform and referred
to her as a “fucking turkey.” There was also the bizarre comment by Fabianski in December
2013, after Johnson had rearranged the furniture in the break room. Unlike Congleton,
however, other than to testify to these specific instances, Johnson, failed to quantify the
frequency of the harassment in any meaningful way, or describe how the alleged
25
harassment made her feel. On this record, the court is hard-pressed to conclude that a
reasonable jury could find that the conduct was subjectively offensive.
Defendants also challenge whether a reasonable jury could find Fabianski’s alleged
behavior objectively offensive and severe or pervasive, largely on the basis that the specific
incidents were too few and isolated to meet this requirement. (Defs.’ Opening Br. (dkt.
#18) 27-28.) As described above, for purposes of Congleton’s Title VII claim, the court
may consider the full history of Fabianski’s interactions with Congleton, including the
period from 2002 through 2007, when Fabianski was her direct supervisor on her regularly
scheduled shift. For purposes of the plaintiffs’ respective equal protection claims asserted
against Fabianski individually, however, plaintiffs concede that only instances of
harassment after June 2010 are relevant.
On the objectively offensive prong, “[c]ourts look to several factors to determine
whether alleged harassment is objectively offensive, including the frequency of the conduct;
its severity; whether it was physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interfered with the alleged victim’s work
performance.” Kampmier v. Emeritus Corp., 472 F.3d 930, 941 (7th Cir. 2007) (citing
Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806–07 (7th Cir. 2000)); see Smith v. Sheahan,
189 F.3d 529, 533–34 (7th Cir. 1999) (citing same factors for determining whether the
conduct is severe or pervasive).
The main thrust of defendants’ argument is that plaintiffs’ allegations of harassment
and offensive behavior are too “general” to survive summary judgment.
Contrary to
defendant’s assertions, plaintiffs’ allegations are not like those present in Albiero v. City of
26
Kankakee, 246 F.3d 927, 933 (7th Cir. 2001), in which plaintiff Albiero simply stated
generally that he was treated differently than other similarly situated landlords, without
providing evidence in support. The plaintiffs here described specific statements made by
Fabianski, and compared his treatment of them and other female correctional officers with
that of male co-workers. Moreover, in Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013),
the Seventh Circuit expressly overruled Albiero and other cases “to the extent that they
suggest a plaintiff may not rely on ‘self-serving’ evidence to create a material factual
dispute.” Id. at 968.
Defendants similarly cite Bordelon v. Board of Education of the City of Chicago, 811 F.3d
984, 991 (7th Cir. 2016), for support, but that case is also distinguishable. In Bordelon,
the Seventh Circuit affirmed the district court’s decision to disregard the plaintiff’s general
statement that older principals were treated in a discriminatory manner without offering
“specific facts” to support this conclusion. If plaintiffs simply said, Fabianski treated
women differently than men, than the court would agree that this testimony would be
conclusory, and insufficient to move this case past summary judgment, but plaintiffs (or at
least Congleton) attribute specific statements to Fabianski and affirmatively aver that he
did not use that same or similar language in addressing male co-workers.
Defendants also argue that plaintiffs’ allegations are similar to those in McKenzie v.
Milwaukee County, 381 F.3d 619, 625 (7th Cir. 2004), in which the court found that the
alleged harassment was not objectively offensive to support a hostile work environment
claim. The court agrees that if Fabianski were simply “standoffish” or “unfriendly,” like
the defendant in McKenzie, then the evidence would be insufficient to establish an
27
objectively hostile work environment, id. at 625, but again, Congleton avers that Fabianski
cursed at her, standing in close proximity, on at least a weekly basis, over a several year
period of time. See Valentine v. City of Chi., 452 F.3d 670, 681-82 (7th Cir. 2006) (relying
on evidence that the alleged harassment was “very frequent,” “humiliating,” and that the
“remarks were stated directly to the plaintiff,” instead of simply heard secondhand
sufficient to find the objectively offensive element satisfied for purposes of summary
judgment). At least on the record before it on summary judgment, therefore, the court
finds that Congleton’s account provides a sufficient basis for a reasonable jury to find
Fabianski’s conduct objectively offensive and sufficiently severe or pervasive to support a
Title VII hostile work environment claim.
As defendants point out, however, Congleton’s regular interactions with Fabianski
ceased in 2007; after that, while she worked a sporadic overtime shift on his watch, he was
no longer the supervisor on her regularly-scheduled shift, except for a short period of time
in 2012 when the schedule changed and Congleton had to a few days a week with
Fabianski. 7 At most, therefore, Congleton raises a concern about a possible hostile work
environment after Fabianski’s promotion to the Assistant Jail Administrator position.
Congleton’s delay in raising a formal complaint with her employer or bringing a claim
against Fabianski earlier is understandable: she managed to gain seniority and move off of
Fabianski’s shift, thus distancing herself from her alleged harasser. Only when Fabianski
was to be promoted to a role that would again place her in his supervisory path on a regular
Congleton does not provide any specific examples of harassing behavior during this period of
time.
7
28
basis did Congleton sound the alarm. Indeed, her fear of renewed harassment may have
been well-founded given her history with Congleton, and especially in light of her
testimony that Fabianski stated, looking directly at her, “Once I become jail administrator,
I’m going to fucking start cleaning house.” (Pls.’ PFOFs (dkt. #34) ¶ 29.) Still, in the
absence of other, more overt, sexist, or explicit threats or evidence of regular contact with
Fabianski during the period of time relevant to her equal protection claim, Congleton’s
general concern and this lone, more contemporaneous statement forms an insufficient basis
for a reasonable jury to find that Fabianski’s alleged conduct was objectively offensive after
June 2010.
As for Johnson, even if the court were to consider the full history of her interactions
with Fabianski, as opposed to just the period after June 2010, her evidence falls far short
of demonstrating an equal protection claim.
As detailed above, Johnson alleges that
Fabianski treated female employees differently than male employees, and with respect to
his treatment of her, recounts two instances -- one in 2002 and one in 2013 -- when he
spoke to her in a disparaging manner. On this record, the court concludes that a reasonable
jury could not find his behavior objectively offense, nor alternatively, sufficiently severe or
pervasive to support her remaining equal protection claim.
B. Plaintiffs’ Sex as Reason for Harassment
In this case, plaintiffs do not contend that Fabianski made sex-specific, derogatory
comments to them; rather, they contend that his offensive behavior was motivated by the
fact that they are women. Contrary to defendant’s apparent suggestion, however,
29
Harassing conduct need not be motivated by sexual desire to
support an inference of discrimination on the basis of sex. A
trier of fact might reasonably find such discrimination, for
example, if a female victim is harassed in 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. . . . Whatever evidentiary route
the plaintiff chooses to follow, he or she must always prove that
the conduct at issue was not merely tinged with offensive
sexual connotations, but actually constituted “discrimina[tion] .
. . because of . . . sex. ”
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998).
In support of their motion for summary judgment, defendants point to evidence
that: (1) Fabianski was “at times, rude and did not get along with several male employees
during period of his employment with the County”; and (2) “it is well documented that
Fabianski got along with and treated female employees, including the Plaintiffs, with
respect.” (Defs.’ Opening Br. (dkt. #18) 31.) In contrast, plaintiff Congleton points to
her own experience, as well as those of other women. This included not just the testimony
of plaintiff that Fabianski did treat women more harshly than men but observations of
other co-workers - - namely Sergeant Bill Skubal and Sergeant Rita Wege. Specifically,
plaintiffs recount differential treatment in how he greeted and otherwise interacted with
some female correctional officers - - treating them harshly in front of inmates and other
correctional officers.
While the record would certainly support a finding that Fabianski got along well
with female officers supervising him, this does not necessarily foreclose a finding that he
treated female correctional officers that he supervised in a more disparaging manner then
their male counterparts. See Bohen v. City of E. Chi., Ind., 799 F.2d 1180, 1187 (7th Cir.
30
1986) (“An equal protection plaintiff therefore need not prove a discriminatory policy
against an entire class; discrimination against the plaintiff because of her membership in
the class is by itself enough.”). The court is reminded of the late Green Bay Packer
defensive lineman Henry Jordan’s description of his Hall-of-Fame coach Vince Lombardi,
“He treats us all the same – - like dogs.” 8 Perhaps the jury will find that Fabianski acted
similarly, being equally rude to both men and women in subordinate positions. On the
record at summary judgment, however, plaintiff Congleton has put forth sufficient
evidence from which a reasonable jury might conclude that Congleton’s sex was at least a
motivating factor for differentially adverse treatment, thereby supporting her Title VII
hostile work environment claim.
C. Employer Liability
Finally, defendants argue that “the County cannot be liable to Plaintiffs on their
hostile work environment claims because they failed to report the alleged harassment when
it was allegedly happening.” (Defs.’ Opening Br. (dkt. #18) 34.) Of course, only the
County, as plaintiffs’ employer, can be held liable for a hostile work environment claim
under Title VII. See, e.g., Sattar v. Motorola, Inc., 138 F.3d 1164, 1168 (7th Cir. 1998).
But to demonstrate a Title VII hostile work environment claim, the County is correct that
Jerry Kramer, Winning Wasn’t Everything, N.Y. Times, Jan. 24, 1997, available at
www.nytimes.com/ref/Opinion/06opclassic.html. While this line has been oft quoted, it is quoted
here from an opinion piece by Jordan’s teammate and author, Jerry Kramer, published in the New
York Times. Kramer goes on to observe, “It was a funny line, but wildly inaccurate. Lombardi’s
genius was that he treated us all differently.” Id. Whether or not liable, the case against the County
may or may not turn on whether the trier of fact finds that Fabianski appreciated the value in the
latter.
8
31
Congleton must put forth sufficient evidence from which a reasonable jury could find a
basis for employer liability. Specifically, Congleton must show either “(1) that a supervisor
participated in the harassment that created the hostile work environment or (2) that [the
employer] was negligent in discovering or remedying harassment by his coworkers.”
Montgomery v. Am. Airlines, 626 F.3d 382, 390 (7th Cir. 2010) (emphasis added).
While Fabianski was the lead corrections officers and, thus, Congleton’s regularlyscheduled shift supervisor for roughly a five-year period of time, he was not her “supervisor”
for purposes of analyzing employer liability under Title VII. See Vance, 133 S. Ct. at 2439
(limiting the definition of “supervisor” to those who have the authority to effect a
“significant change in employment status, such as hiring, firing, failing to promote
reassignment with significantly different responsibilities, or a decision causing a significant
change in benefits”). This leaves only a single avenue for liability under Title VII: the
County “failed to have and enforce a reasonable policy for preventing harassment.”
Montgomery, 626 F.3d at 391 (quoting Doe v. Oberweis Dairy, 456 F.3d 704, 716 (7th Cir.
2006)).
As best the court can discern, defendants’ argument on this prong hinges on the
County’s harassment policy defense. The Seventh Circuit has explained that:
When no tangible employment action is taken against the
employee in the course of the harassment, an employer may
raise an affirmative defense to liability that must be proved by
a preponderance of the evidence. The defense comprises two
necessary elements: (a) that the employer exercised reasonable
care to prevent and correct promptly any sexually harassing
behavior, and (b) that the plaintiff-employee unreasonably
failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm
otherwise.
32
Passananti v. Cook County, 689 F.3d 655, 670 (7th Cir. 2012),
Taking these two requirements out of order, defendants contend that summary
judgment is warranted because Congleton delayed in formally complaining about
Fabianski’s treatment of her. Certainly, Congleton’s delay in raising a concern sufficient
to place the County on notice of a harassment (at least based on her sex) may limit the
scope of her damages, as even plaintiff appears to concede in her opposition brief. (See
Pls.’ Opp’n (dkt. #32) 9 (conceding that only “a subset” of Congleton’s claims are
actionable, and specifically describing “Charbarneau’s sham investigation and improper
exoneration of Fabianski in November, 2013 and Congleton’s constructive demotion,” as
being within the limitations period).) In other words, Congleton will not be able to claim
damages based on the harassment she experienced from roughly 2002 through 2007
because the County was not aware of the harassment at that time. Instead, Congleton’s
damages claim will be limited to the injury she suffered based on the County’s alleged
failure to conduct a reasonable investigation and forcing her transfer to a lower paying job.
As for proof that “the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior,” defendants principally argue that any
investigative action triggers the defense. (Defs.’ Reply (dkt. #38) 18-19.) In support,
defendants direct the court to Montgomery v. American Airlines, 626 F.3d 382 (7th Cir.
2010), in which the court explained that “[a]n employer can generally avoid liability for a
hostile work environment if it promptly investigates complaints made by the plaintiff and
acted to stop the harassing behavior.” Montgomery, 626 F.3d at 392. Defendants represent
that in Montgomery, the Seventh Circuit affirmed “summary judgment for employer that
33
conducted a prompt investigation of the employee’s complaint and determined that
employee was not subject to discrimination.” (Defs.’ Reply (dkt. #38) 19.) Not true. 9 In
Montgomery, the court affirmed summary judgment on the basis that the plaintiff had failed
to “explicitly complain[] about racial harassment and racial discrimination” or offer
evidence “allowing a reasonable inference of the alleged racial harassment.” Id. at 391-92.
In other words, the fact that the employer in Montgomery simply acted promptly to conduct
an investigation was not dispositive; rather, it was the fact that the plaintiff failed to alert
his employer of racial harassment that warranted summary judgment.
In contrast here, Congleton adequately advised Charbarneau of her complaint of
harassment based on sex and the names of others who would substantiate her claim. While
Charbarneau promptly commenced an investigation, she ultimately concluded the
Congleton’s complaint was unsubstantiated.
Based on this and the testimony of
differential treatment, therefore, a trier of fact might find that the County failed to take
adequate steps to prevent the alleged harassment.
Of course, a reasonable jury may
ultimately credit Charbarneau’s original finding on the evidence before her, but the mere
fact that she conducted an investigation does not insulate the County from liability under
Title VII. On the contrary, requiring a trial to decide this issue is consistent with the
Supreme Court case originally setting forth this affirmative defense. See Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 72 (1986) (rejecting the employer’s argument that “the mere
existence of a grievance procedure and a policy against discrimination, coupled with
respondent’s failure to invoke that procedure, must insulate petitioner from liability.
9
The court expects better of counsel going forward.
34
While those facts are plainly relevant, the situation before us demonstrates why they are
not necessarily dispositive.”).
III. Section 1983 Equal Protection Clause Claims Against Other Individual
Defendants
In addition to the Title VII claim brought against the County, plaintiffs also assert
equal protection claims against the individual defendants under 42 U.S.C. § 1983. Having
determined that plaintiffs have failed to put forth sufficient evidence to support a finding
that defendant Fabianski’s behavior was objectively offensive and severe or pervasive
during the relevant period of time for statute of limitations purposes to find him
individually liable, the court need only address defendants’ arguments for judgment in
favor of the other individual defendants. 10
In their opposition brief, plaintiffs withdraw their § 1983 claims against the County
and individual defendants Sweeney and Hartman. (Pls.’ Opp’n (dkt. #32) 9.) As for
defendants Charbarneau and Neuman, they contend that these claims fail for lack of
evidence of harassment. (Defs.’ Opening Br. (dkt. #18) 39.) A central tenant of any §
Defendants also assert that plaintiffs’ claims against Fabianski fail because he was not acting
under color of state law. The court rejects this basis for summary judgment for two main reasons:
(1) defendants conflate the supervisory requirement for purposes of implicating employer liability
under Title VII with the color of state law requirement under § 1983, see Sommerfield v. City of Chi.,
No. 08 C 3025, 2011 WL 4553021, at *2 (N.D. Ill. Sept. 29, 2011) (explaining that “the relevant
inquiry under §§ 1981 and 1983 is whether [defendant] was acting under the color of state law,
not whether he was a supervisor”); and (2) plaintiffs put forth sufficient evidence that Fabianski
acted in his role as the Lead Corrections Officer, rank as sergeant and ultimately Assistant Jail
Administrator in carrying out his alleged offensive behavior towards plaintiffs and other women, see
Dean v. Parker, No. 07-C-492, 2008 WL 5101692, at *12 (E.D. Wis. Nov. 25, 2008) (finding
defendant’s “position as a sergeant correctional officer gave [defendant] a certain measure of
authority over [plaintiff],” even though defendant was not plaintiff’s “supervisor in a traditional
sense”).
10
35
1983 claim is that “a plaintiff must establish defendants’ personal responsibility for the
claimed deprivation of a constitutional right.” Crowder v. Lash, 687 F.2d 996, 1005 (7th
Cir. 1982). Any claim asserted against Charbarneau and Neuman must, therefore, be
based on their own actions or inactions, not that of Fabianski’s. Sanville v. McCaughtry,
266 F.3d 724, 740 (7th Cir. 2001) (“A defendant will be deemed to have sufficient
personal responsibility if he directed the conduct causing the constitutional violation, or if
it occurred with his knowledge or consent.” (internal citation and quotation marks
omitted)).
Tellingly, plaintiffs’ response to this argument is limited to one sentence, quoting
Bohen v. City of East Chicago, Indiana, 799 F.2d 1180, 1187 (7th Cir. 1986), plaintiffs
maintain that an equal protection claim can arise “by showing that the conscious failure of
the employer to protect the plaintiff from the abusive conditions created by fellow
employees amounted to intentional discrimination.” (Pls.’ Opp’n (dkt. #32) 39.) The
language on which plaintiffs rely comes from a discussion of the requirement of
demonstrating employer liability under Title VII. Bohen, 799 F.2d at 1187 (citing as
“accord” Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)). In a separate section of the
Bohen opinion, the Seventh Circuit sets forth the proper standard under § 1983 for
demonstrating municipal liability, namely that “actions of a state entity’s employees are
attributed to the state entity itself if those actions are in furtherance of the entity’s policy
or custom.” Id. at 1188 (internal citation and quotation marks omitted). Regardless of
whether Bohen could be read as suggesting a different standard of liability for a
governmental employer under § 1983, however, Bohen does not address the standard for
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individual liability of other employees who are not alleged to have engaged in harassment
themselves.
Even fully crediting plaintiffs’ theory that Charbarneau’s investigation was
insufficient, plaintiffs have put forth no evidence permitting a rational trier of fact to find
that Charbarneau’s conduct amounts to deliberate indifference, necessary to satisfy the
personal responsibility requirement under § 1983.
As for Johnson’s claim against
defendant Neuman, he was not even hired by the County to take over the position of Jail
Administrator until after Charbarneau’s investigation, and well after all of Fabianski’s
alleged harassment of Johnson (or, at least, Johnson failed to come forward with any
evidence of harassment extending into 2014). In fact, the timing simply does not allow
for a theory that he acted with deliberate indifference in failing to correct Fabianski’s
behavior.
Moreover, Johnson failed to put forth evidence that Neuman personally
discriminated against her based on sex. Instead, Johnson claims that Neuman retaliated
against her for complaining about harassment, but that claim also fails as a matter of law
for the reasons described below.
IV. Retaliation Claims
A. Title VII Claim
Title VII also “protects persons not just from certain forms of job discrimination
[and harassment], but from retaliation for complaining about the types of discrimination
it prohibits.” Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000); 42
U.S.C. § 2000e–3(a). To prevail on a claim of retaliation, a plaintiff must prove that she:
37
(1) opposed an unlawful employment practice under Title VII; (2) was the object of an
adverse employment action; and (3) the adverse employment action was caused by her
opposition to the unlawful employment practice. Cullom v. Brown, 209 F.3d 1035, 1040
(7th Cir. 2000).
Defendants contend that summary judgment is warranted on plaintiff Congleton’s
Title VII retaliation claim because no evidence was advanced to permit a finding that “she
suffered an adverse employment action or any causal connection between her protected
activity and the alleged adverse action.” (Defs.’ Opening Br. (dkt. #18) 45.) In particular,
defendants argue that her decision to transfer to another department within the County
was plainly voluntary, rather than the result of an adverse employment action.
Anticipating plaintiff’s assertion that her demotion was not voluntary, but rather
constituted a “constructive demotion” (similar to a “constructive discharge”), defendants
argue in the alternative that this claim fails because there is no evidence of her being
harassed at the time she elected to transfer to another department. Rather, Congleton
simply anticipated harassment by Fabianski based on his promotion.
Whether or not Congleton’s demotion ultimately constitutes a “constructive
demotion” is a moot point in any event, because her claim clearly fails on the third prong,
which requires proof that the adverse employment action was caused by her opposition to
the unlawful employment practice. Here, Congleton has failed to put forth any such
evidence.
Other than using the language “retaliatory” in the context of describing a
“constructive demotion claim as a damages issue,” Congleton has even failed to develop an
argument that the County retaliated against her for complaining about Fabianski’s
38
harassment by requiring her to transfer. (See Pls.’ Opp’n (dkt. #32) 40-41.) At most,
Congleton can argue that her decision to transfer to another department was because of
the County’s failure to take action against Fabianski. Accordingly, while Congleton may
proceed with her straight-up Title VII hostile work environment claim, and seek damages
based on a constructive demotion theory, there is no basis for finding that the County
retaliated because she complained about harassment. 11
Johnson’s claim similarly fails. In support, Johnson points to a conversation with
Neuman, shortly after he stepped into the Jail Administrator position, in which he told
her, she was “not a team player and that he would not have that in his department,” and
from which Johnson inferred, “[t]his was a reference to [her] previous complaints about
Sergeant Fabianski which she had made to Juel and Charbarneau.” (Pls.’ Resp. to Defs.’
PFOFs (dkt. #39) ¶ 162.) Johnson also avers that when asked if she had a problem with
any coworkers or supervisors, she specifically told him of her “history with Sergeant
Fabianski,” including that she had previously complained to Juel and Charbarneau, but
nothing had been done. (Id.)
Even crediting Johnson’s account and all reasonable inferences from it, however, she
fails to raise a genuine issue of material fact from which a reasonable jury could conclude
that the County’s termination of Johnson’s employment almost a year later was not due to
Theoretically perhaps, Congleton might have argued that by offering her the option of
transferring to a different, lower position rather than work under Fabianski, the County was acting
in a retaliatory fashion, but without first finding that the County should have credited Congleton’s
claims of harassment, an element of her hostile work environment claim, the County’s offer -- itself
responding to Congleton’s request -- was simply one of accommodation, not retaliation.
11
39
abuse of the sick leave policy nor that the evidence of her abuse of sick time and
insubordination was a pretext. Indeed, Johnson’s termination occurred one year after she
complained about Fabianski’s behavior (or, perhaps more appropriately characterized,
participated in Congleton’s complaint), and ten months after Neuman told her to be a
team player. Even if a trier of fact could infer after this length of time without any further
intervening incidents that her complaints about Fabianski’s harassment motivated
Neuman’s decision to investigate her sick leave and begin the process for terminating her
employment, plaintiff has failed to put forth evidence demonstrating that but for her
engaging in protected activity, she would not have been terminated. Univ. of Texas Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013) (“Title VII retaliation claims require
proof that the desire to retaliate was the but-for cause of the challenged employment
action.”). To the contrary, the undisputed facts that Sheriff Hartman was not aware of
Johnson’s complaints about Fabianski, and that he conducted his own investigation into
her abuse of sick leave policy before terminating her forecloses a finding of but-for
causation, which would undermine even a “cat’s paw” theory of liability. See, e.g., Woods
v. City of Berwyn, 803 F.3d 865, 870 (7th Cir. 2015) (“[T]he chain of causation can be
broken if the unbiased decision-maker conducts a meaningful and independent
investigation of the information being supplied by the biased employee.” (internal citation
and quotation marks omitted)). In other words, Johnson has failed to raise a genuine issue
of fact that her abuse of sick leave and insubordination did not provide an independent,
legitimate basis for her termination.
40
B. Equal Protection Claim
Plaintiffs lastly bring a claim against the County for retaliation based on plaintiffs’
respective separation from their jail employment. (Pls.’ Opp’n (dkt. #32) 7.) These claims
fail for the same reason as plaintiffs’ Title VII retaliation claim, and for two other
independent reasons. First, having withdrawn any Monell claim against the County for sex
discrimination under the Equal Protection Clause, plaintiffs fail to put forth any evidence
that plaintiffs’ injuries can be traced to a policy, custom or practice. This dooms any claim
asserted against the County for retaliation under the Equal Protection Clause. Second,
and perhaps more critically, there is no basis in the case law for an equal protection
retaliation claim.
To their credit, plaintiffs concede that this theory is “novel.” (Pls.’ Opp’n (dkt.
#32) 7-8.) The Seventh Circuit has repeatedly held that “the right to be free from
retaliation may be vindicated under the First Amendment or Title VII, but not the equal
protection clause.” Boyd v. Ill. State Police, 384 F.3d 888, 898 (7th Cir. 2004) (emphasis
added); see also Grossbaum v. Indianapolis–Marion County Bldg. Auth., 100 F.3d 1287, 1296
n.8 (7th Cir. 1996) (“We do not imply, however, that retaliation claims arise under the
Equal Protection Clause. That clause does not establish a general right to be free from
retaliation.”); Gray v. Lacke, 885 F.2d 399, 414 (7th Cir. 1989) (“Gray’s right to be free
from retaliation for protesting sexual harassment and sex discrimination is a right created
by Title VII, not the equal protection clause.”).
Recognizing this line of cases, plaintiffs nevertheless argue that the Supreme Court’s
more recent opinion in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), opens
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the door to an equal protection retaliation claim. In Jackson, the Court held that Title IX
contemplates a claim for retaliation. Id. at 173-74. Plaintiffs rely on language in that
opinion stating that “retaliation is discrimination ‘on the basis of sex’ because it is an
intentional response to the nature of the complaint: an allegation of sex discrimination.”
Id. There is no indication, however, that the Court intended its holding to extend beyond
the specific Title IX claim at issue in Jackson.
Regardless, courts have reiterated since Jackson that a retaliation claim under the
Equal Protection Clause is not available, including the Seventh Circuit. See, e.g., Tate v.
Ancell, 551 F. App’x 877, 898 (7th Cir. 2014) (“[W]e have repeatedly held that retaliation
for one’s efforts to oppose unlawful discrimination may be redressed under the First
Amendment or Title VII, but not under the equal protection clause of the Fourteenth
Amendment.”); Burton v. Ark. Sec’y of State, 737 F.3d 1219, 1236 n.7 (8th Cir. 2013) (citing
Boyd for proposition that there is no retaliation claim under the equal protection clause);
Gibbons v. Vill. of Sauk Vill., No. 15 CV 4950, 2016 WL 1746160, at *3 (N.D. Ill. May 3,
2016) (same).
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ORDER
IT IS ORDERED that:
1) Defendants Oneida County, Keith Fabianski, Lisa Charbarneau, John Sweeney,
Grady Hartman and Marc Neuman’s motion for summary judgment (dkt. #17)
is GRANTED IN PART AND DENIED IN PART. The motion is denied with
respect to plaintiff Tracy Congleton’s Title VII hostile work environment claim
asserted against defendant Oneida County; in all other respects, the motion is
granted.
2) Plaintiffs Tracy Congleton and Rita Johnson’s motion to strike portions of
defendants’ reply brief (dkt. #41) is DENIED as unnecessary.
Entered this 13th day of October, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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