Waite, Janis v. Wood County, Wisconsin
ORDER granting in part and denying in part 13 defendant's Motion for Summary Judgment. Signed by District Judge William M. Conley on 11/09/2017. (mfh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JANIS S. WAITE,
OPINION AND ORDER
WOOD COUNTY, WISCONSIN,
After approximately a ten and a half year period of employment as a correctional
officer at the Wood County Jail, plaintiff Janis Waite (“Waite”) was fired in April 2013.
Three years later, she sued Wood County, alleging adverse actions and a hostile work
environment based on her sex, as well as retaliation. Following discovery, the County
moved for summary judgment. (Dkt. #13.) For the reasons discussed below, that motion
is granted in part and denied in part.
The parties detail -- and dispute -- much of Waite’s employment history, including
Viewing the facts in the light most favorable to plaintiff as the non-moving party, the following
facts are material and undisputed for purposes of summary judgment, except where noted below.
At the outset, however, the court addresses the rampant use of hearsay objections in the parties’
responses to the proposed findings of fact. By and large these are ill-founded for the following
reasons: (1) the statements are not being offered for the truth of the matter asserted, see Fed. R.
Evid. 801(c); (2) often the statements fall into the category of an opposing party’s statement, see
Fed. R. Evid. 801(d)(2); (3) the statements were records of a regularly conducted activity, see Fed.
R. Evid. 803(6); (4) the statements constituted a present sense impression, see Fed. R. Evid. 803(1);
or (5) the statements are those of then-existing mental, emotional, or physical condition, see Fed.
R. Evid. 803(3). The court will not address these repetitive boilerplate hearsay challenges. While
the parties may raise reasonable objections at trial, the court also reminds counsel that lay witnesses
are permitted to testify to their opinions based on their perception of events, see Fed. R. Evid. 701,
and as such the court will not take lightly to “speculative” objections in response to testimony
clearly based on a witness’s observations. Finally, defendant’s repetitive objection that plaintiff’s
affidavit is “self-serving” is baseless. See Hill v. Tangherlini, 724 F.3d 965, 967 & n.1 (7th Cir. 2013)
events within a few years of her hiring. Because the relevance of earlier events is unclear,
the court will focus its attention on the key events surrounding Waite’s employment and
firing. See Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002) (“In most cases,
when a district court evaluates the question of whether an employee was meeting an
employer’s legitimate employment expectations, the issue is not the employee’s past
performance but ‘whether the employee was performing well at the time of [her]
termination.’” (alteration in original) (quoting Karazanos v. Navistar Intern. Transp. Corp.,
948 F.2d 332, 336 (7th Cir. 1991))); but see id. (“[P]rior job performance ‘evaluations,
standing alone, [do not] create a genuine issue of triable fact when . . . there have been
substantial alterations in the employee’s responsibilities and supervision in the intervening
period.’” (alteration in original) (quoting Fortier v. Ameritech Mobile Commc’ns, Inc., 161 F.3d
1106, 1113 (7th Cir. 1998))).
Waite worked as a correctional officer in the Wood County Sheriff’s Department
Jail Division from October 23, 2002, until she was fired on April 12, 2013. As of March
2013, the Wood County Sheriff’s Department employed nine male and nine female
(explaining that “‘self-serving’ is not an illegitimate basis to denigrate perfectly admissible evidence
through which a party tries to present its side of the story at summary judgment” and overruling
cases “to the extent that they suggest a plaintiff may not rely on ‘self-serving’ evidence to create a
material factual dispute”). The court takes particular pains to point out these basic rules of evidence
in the hopes of avoiding similar abuses of objections in the parties’ pretrial submissions.
Forewarned, any repetition may be the subject of appropriate sanctions.
At the Wood County Jail, potential discipline for correctional officers is first
investigated by the jail sergeant, who reports to the jail administrator; following their
review, a proposed response is submitted to the sheriff for review. During the relevant
period, Theodore Ashbeck was the jail administrator, Angie Jochimsen was the jail sergeant
and Tom Reichert was the sheriff. Other Wood County employees included Ed Reed, the
human resources director, and correctional officers Susanna Knapp, Ron Zager, Matt
Crane, Byron Wirth, and Trzinski.2
B. Waite’s 2012 Performance Review
Waite’s annual evaluations from 2009-2011 indicate that her job performance met
or exceeded requirements (2009-2011 Performance Reviews (dkt. #15-19) 2-7), but her
October 24, 2012 annual review specified that she “[n]eed[ed] some improvement to meet
requirements” regarding organizational ability, job knowledge and dependability, and
criticized her for “not complet[ing] her daily tasks in a timely manner,” “repetitively
ask[ing] basic questions that she knows the answers [to],” and “us[ing] the maximum
number of sick days allowed for the 4th year in a row” (2012 Performance Review (dkt.
#15-20) 2-3). Waite disputes whether this 2012 performance review accurately described
her actual performance, adding that when confronted, her evaluator said that he had been
told to give her that evaluation.
The next day, October 25, 2012, Waite met with the sheriff and undersheriff to
discuss her evaluation.
Waite told them that she considered her evaluation to be
The latter’s first name is not apparent in cited portions of the record.
harassment, adding that she had done everything asked and performed her tasks the same
way that lead correctional officers Wirth and Zager did their tasks. Waite also expressed
surprise that she would have to go through her experience in Adams County again (Waite
Aff. (dkt. #27) ¶ 20), apparently referencing her gender discrimination lawsuit against
another former employer, Adams County, although Waite does not put forward evidence
that the sheriff or undersheriff knew what she meant. The County disputes this account,
asserting instead that she stopped at the sheriff’s office to “blow off steam.” Although not
denying it, Sheriff Reichert also does not recall Waite implying that she was going to bring
a gender discrimination suit, nor her referencing the earlier Adams County lawsuit.
C. Waite’s Disciplinary Actions in 2013
In the first part of 2013, Waite’s job problems continued to escalate. She was
disciplined a number of times, including some penalties that were decreased through the
grievance process. Waite alleges that each of these disciplinary actions resulted from a
retaliatory period of intense scrutiny by the Sheriff’s Department.
1. Midnight Request for Time Off in Early January
The first such claim of retaliation began after midnight on January 10, 2013, when
Waite called the jail asking if she could come in late for her shift starting at 7 a.m. that
morning. Waite alleges that she asked to use 2.5 hours of vacation time, while the County
claims she said she was “too drunk” to work and asked for 2.5 hours of sick time. Jail
Administrator Ashbeck called back later to ask how Waite was feeling and told her that he
was reaching out because he had heard she had called in as too drunk to work. Waite told
Ashbeck that that was not true, but rather her company had stayed too late that night.
When Waite arrived at work later that day, she met with Administrator Ashbeck and
When Ashbeck offered to refer her to the employee assistance
program, Waite denied having a drinking problem, explaining that she had been joking
with the staff during the earlier call requesting the time off. Administrator Ashbeck warned
her against starting rumors about herself. She received a “Verbal Reprimand,” which was
reduced to “a non-disciplinary caution” following review of the grievance complaint by the
County HR Director Ed Reed.3
2. Events Leading to a Final Written Warning in February
On February 15, 2013, Waite next received a “Final Written Warning” for events
on January 31 and February 3, 4 and 12. (See Final Written Warning (dkt. #15-23) 2, 4.)
The parties agree that on January 31, Waite was on speakerphone with a member of the
public and that while on the phone, profanity was used, although they disagree by whom.
The County alleges that Waite used profanity, while Waite alleges that another officer,
Matt Crane, did. (See Def.’s Resp. to Pl.’s Resp. to Def.’s PFOF (dkt. #36) ¶ 53.) The
parties also disagree about who witnessed this event.
Regardless, Crane was not
disciplined, and following this event, staff could not use a speakerphone to answer calls.4
Waite alleges that she received a simple “warning,” while the County of Wood Disciplinary Action
Form points out that she signed a “Verbal Reprimand” on February 15, 2013. (See Feb. 15, 2013
Disciplinary Action Form (dkt. #15-21) at 2.) The difference is immaterial since there is no dispute
that the reprimand, which Waite does not dispute signing, was ultimately reduced to a caution.
Waite avers that on March 12, 2013, Officers Wirth and Trzinski nevertheless used a
speakerphone while speaking to a state court judge’s secretary. When Jail Administrator Ashbeck
walked in, Wirth apologized for using the speakerphone, but Waite avers that Ashbeck answered
“I don’t fuckin care.” The County denies this event.
The parties also disagree about the events on February 3 and 4. The County asserts
that on the 3rd, Waite was seen sleeping at work, and Waite told a colleague that she was
having difficulty staying awake and had fallen asleep repeatedly. Waite disputes sleeping
at work, and she denies making those statements because she was not even at work.
Similarly, on the 4th, the County asserts that Waite was again observed sleeping at work,
this time following several failures to respond to a colleague requesting a head count via
radio. Waite disputes this as well, also averring that the 4th was a Monday, which would
have made work too busy for her to fall asleep. Waite also avers that following her request
for recordings of radio transmissions, she was informed that there were none due to an
equipment malfunction.5 Waite further disputes the County’s assertion that she again
admitted to difficulty staying awake following this second incident.
Finally, on February 12, Waite reported to work after taking Vicodin earlier that
morning. The County does not dispute that Waite did so enough hours before work that
it did not impact her work. While the parties disagree who observed Waite’s performance
that day, they agree that Waite told Lead Correctional Officer Wirth about the Vicodin
and that she felt “like an airhead, spacey and tired.” (Def.’s Reply to Pl.’s Resp. PFOF
(dkt. #36) ¶ 61.) They also agree that Waite asked Wirth not to tell anyone and that
The County disputes that she requested radio recordings.
Wirth was reprimanded for not reporting the Vicodin use up the chain of command.6
3. February Meetings with Sergeant Jochimsen and Administrator Ashbeck
The following day, February 13, Waite met with Jail Sergeant Jochimsen. During
the meeting, Waite acknowledged telling Officer Wirth that she had felt “spacey and tired”
the day before and had asked him not to say anything. Waite also admitted to difficulty
focusing at work because of financial issues and to feeling tired all the time. Waite disputes
admitting to falling asleep on February 3 or 4. The parties agree that Waite became upset
during the February 13 meeting, but dispute the reason why. The County asserts Waite
was upset because Jochimsen noted that she had not improved since her last evaluation,
while Waite asserts she became upset because she felt targeted. Specifically, Waite alleges
that she “wanted to know why the male officers were not being talked to about how they
were doing their work.” (Pl.’s Opp’n (dkt. #19) 20). In contrast, the County asserts that
April 12, 2013, was the first time Waite told Ashbeck and Jochimsen that she was being
treated differently from male officers. The parties agree that Waite used profanity to
express her frustrations during the February 13 meeting.
On February 15, Waite met with Jail Administrator Ashbeck, as well as sheriff
department investigator Shawn Becker. During the meeting, Waite received a verbal
reprimand for her post-midnight call on January 10 and a “Final Written Warning.” At
That same day, Waite also told a Wisconsin Rapids officer to “keep [his] pants on” and called
him a “crabass” over the intercom system in response to his displeasure at having to wait for the
sally port doors to open. (Def.’s Reply to Pl.’s Resp. PFOF (dkt. #26) ¶ 65.) The parties disagree
whether Ashbeck sent an apology letter to the Wisconsin Rapids Police Chief. The parties also
dispute whether there were complaints about delayed responses of phone and intercom calls, and
delays in gaining access to the jail while Waite was on door control duty.
this meeting, Waite avers that she again complained about unfair treatment, identifying
complaints about Officers Zager, Crane and Wirth not doing their jobs that resulted in no
discipline. Waite further maintains that Ashbeck responded that he was not concerned
about them, only about her. In response, the County contends that Waite again failed to
identify disparate treatment based on sex as a concern at this meeting, and Ashbeck
actually responded that he was focusing on her employment situation during that meeting
and would separately address complaints about the other officers.
During a conversation on February 19, Waite further avers that she informed
Sergeant Jochimsen that she had contacted a lawyer to save her job. Following Waite’s
receipt of the Final Written Warning, Waite also filed a formal grievance, which resulted
in the dismissal of some of the alleged violations, although the reprimand remained as a
Final Written Warning.7 The parties disagree whether Waite was required to participate
in the employee assistance program, but agree that she received remedial training on her
responsibilities as a correctional officer for five days (February 16-21, 2013).
4. Two More Verbal Reprimands
Waite received two, additional Verbal Reprimands for her conduct on February 27.
First, she faxed three pages to the clerk of the Juneau County Court on behalf of a neighbor,
who was involved in a child support proceeding, using a Wood County fax machine. For
The letter from Reed reviewing the Final Written Warning is dated April 12, 2013, the date on
which Waite was terminated, supporting the possible inference that the letter was merely to support
her firing. While the County disputes this as self-serving, speculative hearsay, the court agrees that
this is an inference that a reasonable trier of fact might reach.
this, she received a Verbal Reprimand for using department property for personal purposes
without getting permission first. The parties agree that Section 104.15.B of the Rules of
Conduct states that “Employees shall not use any department property for private purposes
unless permission is first obtained from the Sheriff or his designee,” although Waite
contends, with support from Officer Wirth, that this section was not followed. In response
to Waite’s assertion that “[e]mployees commonly used department equipment for personal
purpose[s] and were not required to get permission,” Wood County asserts that this was
only because no one reported other personal use contemporaneously for investigation,
emphasizing that there was still a policy requiring advanced permission. The “corrective
action” listed on the disciplinary action form was that “[p]rior to using department
property or equipment CO Waite will get permission from administration.” (Mar. 1
Disciplinary Action Form #1 (dkt. #15-27) 2.)
The second reprimand resulted from Waite providing a receipt to a person who
wanted to deposit $100 into an inmate’s account and crediting that amount to the account,
despite not yet receiving the $100. Waite explains that she did not collect the money
because Officer Zager did and then handed it to her, but the County asserts this was only
because Zager stopped the visitor to collect the money. Regardless, the parties agree that
the typical protocol for depositing funds is for the correctional officer to collect the money
before crediting the deposit and issuing a receipt, and Waite failed to follow this protocol.
They likewise agree that the corrective action identified on the disciplinary action form
was for Waite to “attach the money to the receipt being kept by the Wood County Jail to
assure she has collected the money prior to giving a customer/visitor/inmate a receipt.”
(Mar. 1 Disciplinary Action Form #2 (dkt. #15-28) 2.)8
5. Waite Is Suspended for Locking Herself in a Cell with an Inmate
The parties agree that on March 14, 2013, Waite got locked in a cell with an inmate,
but disagree about the circumstances surrounding this event.
Waite avers that this
happened inadvertently; she had her radio and keys with her; she was in no danger; and
there were other correctional officers nearby laughing at her. In response, the County does
not concede that the occurrence was inadvertent, contests that she had neither her radio
nor her keys, and disputes her assertion of other officers being nearby. Additionally, the
County asserts that Waite banged on the cell door and yelled to get herself released. The
parties also disagree about the seriousness of this event. There is no dispute that Waite
received a one-day suspension.
At the time, Waite told Sergeant Jochimsen and Administrator Ashbeck that others
had previously locked themselves in cells with inmates. The parties dispute whether the
County investigated this claim and whether that investigation resulted in no specifically
identifiable occurrences. The County has identified three correctional officers (two male
and one female) who subsequently received verbal reprimands for locking themselves in
Waite also claims that there were frequent problems with the accuracy of inmate accounts, but
that no one else was disciplined for improper handling of inmate account monies. She specifically
refers the court to one such situation from March 12, 2013, in which the sheriff’s secretary informed
Beyer of a $400 error in an inmate’s account that had to be replaced with money from petty cash.
The County disputes this. The only error the County acknowledges was discovered through an
audit, which determined that a button was pressed twice, such that reversing the charge corrected
the error and no discipline was warranted. The County also suggests that Waite herself may have
made multiple entries into the accounting software resulting in an excess of $128, but that she was
not disciplined because an investigation could not figure out what had happened.
cells with inmates in October 2013 and May 2014.9
Waite then met with Sheriff Reichert on March 15, 2013. Waite contends that she
claimed the disciplinary action against her was the result of discrimination based on her
sex, specifically identifying correctional officers Crane and Zager as having locked
themselves in cells in the past. The County disputes that Waite told Reichert either of
those things. Waite also told Reichert about other correctional officers allowing inmates
to escape by leaving cell doors open -- without discipline -- and that a visitor had discovered
Jail Administrator Ashbeck had put his gun in his gun locker but left the key in the locker
door -- also without discipline. The County disputes all of these allegations as well. Waite
further told Sheriff Reichert that she did not expect to have to endure the same kind of
discriminatory treatment she endured in Adams County and that Reichert could stop it,
explaining that her treatment was differential, discriminatory and unfair, constituted
harassment, and created a hostile work environment. Finally, Waite told him that she had
contacted an attorney. The County disputes these allegations as well.
The parties agree that Waite told Sheriff Reichert at the March 15 meeting that she
would not be facing discipline if she were male. (Waite Aff. (dkt. #27) ¶ 63). Waite
alleges that Reichert responded that “the last time [he] looked it was obvious [she] w[as]
still a woman.” (Id. ¶ 64.) The County does not dispute that Sheriff Reichert made this
statement, but contends he did so in October 2012 and denies any discriminatory intent.
(See Def.’s Resp. PFOF (dkt. #27) ¶ 94.)
Waite does not dispute these events, but argues that the warnings were prompted by her complaint
of disparate treatment before the ERD.
6. Waite Is Suspended for Using Department Office Equipment for
Personal Use without Permission
On March 17, 2013, after calling in sick earlier that day, Waite was in the jail
around 11 p.m. At this time, she was apparently in civilian clothes and printing documents
from the computer system and using the department copy machine without getting
Waite agrees that an August 2008 directive sent to correctional officers
provided that they were “not [to] come into the compound after [their] normal working
hours wearing civilian attire,” but disagrees that it was enforced. In addition, Waite again
disputes that prior permission was required, alleging that it was common for staff to use
department equipment for personal purposes without prior permission.10
Waite received a three-day suspension, which was justified in part by the previous
warning that she needed permission to use department property for personal purposes.
The resulting disciplinary action form further warned Waite that “[a]ny further violation
of Wood County Policy, Wood County Jail Procedures, Directives or Work Rules may
result in termination.”
(Mar. 20 Disciplinary Action Form (dkt. #15-33) 3.)
disciplinary action form also instructed that she “refrain from intimidating fellow coworkers because of recent disciplinary action,” and if she had “comments or concerns as a
result of recent discipline she will address those concerns to administration and not other
correction[s] staff.” (Id.)
The parties agree that the documents being printed and copied were related to a workplace
grievance, but disagree whether that made them “work-related” and whether she had permission
from HR Director Reed to copy them, or even whether he was able to provide permission.
D. Waite Is Terminated for Involvement in Razor Collection
The parties agree that the policy established by the sheriff’s department governs the
distribution and collection of razors to inmates, including that a list be created detailing
inmates who received a razor, with those inmates’ names then crossed out as razors are
That list is only discarded once all the razors have been collected.
correctional officer who did not distribute the razors collects one, he or she must ensure it
is documented on the razor list. Failure to follow this protocol is considered a serious
safety-related rule violation.
As with many of the other material claims of misconduct in this case, the parties
disagree about what happened on April 1 and 3, 2013. The County states that on April 1,
an inmate returned a razor to Officer Knapp, indicating that Waite “didn’t pick this one
up with the others.” (Def.’s Reply to Pl.’s Resp. PFOF (dkt. #36) ¶ 116.) Knapp searched
for the razor list but could not find it. Knapp also told Waite about the razor she had
received, but Waite did not respond. Sergeant Jochimsen then determined that Waite had
not been assigned to razor collection, but had collected “3 of the 4 razors from J Block and
threw out the razor list.” (April 12 Disciplinary Action Form (dkt. #15-34) 2.)11 Waite
denies any involvement with razors on April 1, including throwing out the razor list. She
avers instead that the Trust Fund Charges Record shows she was only briefly in the cell
block where Officer Knapp collected the razor, and then only to assist a nurse. Waite
further avers that Officers Knapp and Wirth did not get the trust fund entries list and did
The Disciplinary Action Form does not explain how Jochimsen came to these conclusions.
not report that a razor was missing. Finally, Waite disputes Jochimsen’s findings. The
parties agree that based on Sergeant Jochimsen’s investigation, Waite received a five-day
Turning to April 3, the parties agree that an inmate surrendered two razors to
Officer Knapp while she was passing out lunch trays, and Knapp again claimed to be unable
to locate either of the razor lists that had been created that day.12 Waite does not dispute
that Knapp asked her if she had discarded the lists and that Waite did not answer. Knapp
reported this to a supervisor. Waite disputes that an ensuing investigation led her to admit
to discarding a razor list on April 3, and she denies doing so. Waite also points out that
Officers Knapp and Zager failed to retrieve the trust fund entries list and failed to report
the missing razors. In contrast, the County alleges that an investigation determined Waite
had failed to follow safety protocols on April 3 by discarding the razor list before all the
razors had been collected, which again created a serious safety hazard. Waite disputes
these findings, but agrees that the findings led to her termination on April 12, 2013.
E. Grievance Process and Alleged Continuing Retaliation
Along with her union representative John Spiegelhoff, Waite met with HR Director
Reed on April 4, 2013, to discuss her grievance disputing the January and February
discipline. In addition to discussing the bases for that discipline, Waite emphasized during
the meeting that she was a good employee, as evidenced by her working past the conclusion
of her shift without seeking compensation. The parties dispute Reed’s motivation in doing
The parties agree that there were two lists created on April 3, 2013 so that a copy could be used
at each end of the jail as the razors were collected.
so, but agree that he then asked that she detail the days and hours she worked beyond her
shift over the past two years and that she do so within ten working days. Waite was also
told failure to provide the information within that timeframe would subject her to further
discipline -- specifically, termination.13
Waite’s Union Representative Spiegelhoff also attended a grievance meeting on
April 30, 2013, to discuss her use of the copy machine in March. Spiegelhoff purports to
having recorded that meeting, unbeknownst to HR Director Reed.14 Waite avers that Reed
acknowledged responsibility for Waite making the copies that resulted in her suspension
and that Reed had implicitly given her permission to use the copy machine by asking her
for copies of those materials. These allegations, too, are denied by the County, although
that grievance was discussed at a County Board Executive committee meeting, at which
Waite claimed Reed had acknowledged giving consent to her making copies. Reed denied
that. Waite then acknowledged the grievance meeting had been recorded.
Reed wrote a letter characterizing the recording as “a serious breach of good faith”
and an apparent “direct violation of the ‘Use of Electronic Recording Devices’ policy.”
(Aug. 7, 2013 Letter (dkt. #15-40) 2.) Reed informed Waite that disciplinary proceedings
related to the recording would be “held in abeyance,” since Waite had already been
While plaintiff would make much of a subsequent email in which Administrator Ashbeck and
Sheriff Reichert reference the possibility of bringing criminal charges against her for falsifying her
overtime compensation request, no charges followed. Even so, the County claims that her
submission included requests for days she did not work, hours she had already been paid for, and
Defendant does not dispute that Waite represented having the recording, although it notes the
recording was not been produced by plaintiff and that defendant was advised that the recording
“no longer exists.”
terminated, but should she be reinstated, that matter would be referred to her supervisor
and an investigation could also lead to discipline or termination. (Id.)
F. Wood County’s History of Discipline of Other Officers
While the parties agree that thirteen other correctional officers were disciplined
between January 1, 2010 and July 10, 2015, Waite alleges that they received lesser
punishments for similar -- or worse -- missteps, including:
Andreas Netz received a 30-day suspension for directing that a jail door remain
open to improve ventilation, resulting in the escape of a prisoner.
Thomas Wolosek received a 10-day suspension for failing to follow the
department’s communication policy, resulting in a prisoner being improperly
released for 10 days. This occurred a month after Wolosek received a 5-day
suspension for witnessing inappropriate sexual activities by inmates and
providing commentary instead of reporting the incident to administration.
David Beyer received a 3-day suspension for failing to intervene in the
aforementioned inappropriate inmate sexual activities, as well as a 1-day
suspension for sending an inmate to the hospital because of stomach pains
without informing anyone nor following up on his condition costing the County
Alan Marcoux received a 3-day suspension after admitting that he failed to
perform checks inside prisoner cells for the better part of a year.
Michael Guilfoyle received a 3-day suspension after removing shackles from a
prisoner, who then pushed him and escaped.
The County agrees that it handed out these instances of discipline, but distinguishes them
from Waite’s based on the officers’ disciplinary records, the jail’s progressive discipline
format, and other factors. There is no dispute that Waite was the only officer terminated
during this timeframe, although another female officer apparently chose to resign in lieu
of being terminated for smuggling contraband into the jail.
Waite compiled a list of seven other instances in 2013 where she observed her
colleagues -- both male and female -- using department computers for personal purposes.
She alleges that they were not disciplined. The County objects to the relevance of this,
since there is no evidence it had constructive knowledge of these events.
Plaintiff asserts adverse action and hostile work environment claims based on her
sex, as well as retaliation for complaining about this discrimination. Defendant moves for
summary judgment, arguing that plaintiff cannot make a prima facie showing, and even if
she could, defendant had an appropriate, non-discriminatory basis for terminating her.
Defendant also asserts that she cannot prove retaliation during or after her employment.
Summary judgment is appropriate where the moving party establishes “that there is
no genuine dispute as to any material fact” and it “is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). At this stage, evidence is viewed “in the light most favorable
to the non-moving party,” but the “‘court may not assess the credibility of witnesses,
choose between competing inferences or balance the relative weight of conflicting
evidence.’” Orton-Bell v. Indiana, 759 F.3d 768, 773 (7th Cir. 2014) (citing Abdullahi v.
City of Madison, 423 F.3d 763, 769, 773 (7th Cir. 2005)).
Under this standard, defendant does not begin to clear the first hurdle to plaintiff’s
pre-termination retaliation and discrimination claims, for which there are numerous,
material factual disputes precluding summary judgment, including whether defendant’s
reason for firing her was pretextual. Still, summary judgment will be granted on plaintiff’s
hostile work environment and post-termination retaliation claims.
I. Plaintiff’s Sex Discrimination Claim
Title VII prohibits employers from discriminating “against any individual . . .
because of such individual’s race, color, religion, sex, or national origin.”
§2000e-2(a). In an employment discrimination case, the question at summary judgment
is “whether the evidence would permit a reasonable factfinder to conclude that the
plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or
other adverse employment action[,]” with “all evidence belong[ing] in a single pile and . . .
evaluated as a whole.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765-66 (7th Cir. 2016).
Put another way, “has the non-moving party produced sufficient evidence to support a jury
verdict of intentional discrimination?” David v. Board of Trs. Of Cmty. Coll. Dist. No. 508,
846 F.3d 216, 224 (7th Cir. 2017).
Defendant seeks summary judgment on the basis that plaintiff has failed to put
forth sufficient evidence to demonstrate that she was disciplined and ultimately terminated
because of her sex. While the Seventh Circuit has endorsed collapsing the direct and
indirect methods, the McDonnell Douglas framework may still be useful. Ortiz, 834 F.3d at
765-66.15 Under the McDonnell Douglas framework, the plaintiff must establish a prima
facie case of discrimination by establishing that “‘(1) she is a member of a protected class,
(2) she performed reasonably on the job in accord with her employer[’s] legitimate
For example, in David, the Seventh Circuit concluded that the plaintiff had not put forward
sufficient evidence on her disparate pay claim under Title VII and the ADEA, finding in part
because her selected comparators were not comparable (based on job requirements); the court also
looked at all the evidence outside the McDonnell Douglas paradigm, concluding that there was
nothing in the record to support an inference that the decisions of the community college were
based on David’s race, sex, or age. 846 F.3d at 227-29.
expectations, (3) despite her reasonable performance, she was subjected to an adverse
employment action, and (4) similarly situated employees outside of her protected class
were treated more favorably by the employer.’” David, 846 F.3d at 225 (alteration in
original) (quoting Andrews v. CBOCS West, Inc., 743 F.3d 230, 234 (7th Cir. 2014),
overruled on other grounds by Ortiz, 834 F.3d at 765). Once the plaintiff has made this initial
showing, the employer must put forth a nondiscriminatory, legitimate reason for the
adverse employment action; and if it does so, then the plaintiff must show that the
employer’s explanation is pretextual. Id. (quoting Andrews, 743 F.3d at 234). For example,
where the severity of the adverse action is incongruous to the alleged infraction -- such that
the employer is “swatting a fly with a sledge hammer” -- this may be evidence of pretext.
Stalter v. Wal–Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir. 1999) (recognizing that pretext
can be established by showing that the employer's purported reasons were insufficient to
motivate the adverse employment action).
Here, the parties agree that Waite, as a woman, is a member of a protected class,
and they agree that she was subject to adverse action,16 but disagree as to whether she met
the defendant’s employer’s legitimate expectations and whether she was treated worse than
her similarly-situated male colleagues. These two factors actually merge, as they do here,
because plaintiff has produced enough evidence to “raise an inference that [her] employer
applied its legitimate employment expectations in a disparate manner (i.e., applied
expectations to similarly situated male . . . employees in a more favorable manner),” which
Defendant emphasizes its reliance on a progressive discipline policy, but does not clearly
articulate the position that this prevents plaintiff from establishing the element of adverse action.
allows plaintiff to make her prima facie case. Peele v. Country Mut. Ins. Co., 288 F.3d 319,
329 (7th Cir. 2002).17 Moreover, the analysis in determining whether employees are
“similarly situated” is “flexible, common-sense, and factual.” David, 846 F.3d at 225-26
(quoting Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir. 2012)). As the Seventh Circuit
Similarly situated employees must be directly comparable to
the plaintiff in all material respects, but they need not have
identical employment files. So long as the distinctions between the
plaintiff and the proposed comparators are not so significant that they
render the comparison effectively useless, the similarly situated
requirement is satisfied. Which factors are material is a casespecific inquiry that depends on the specifics of the defendant’s
decision and the stated reason for it.
Good v. Univ. of Chic., 673 F.3d 670, 675-76 (7th Cir. 2012) (emphasis added) (internal
citations and quotation marks omitted), overruled on other grounds by Ortiz, 834 F.3d at 76465.
As for meeting her employer’s job expectations, plaintiff argues that a reasonable
jury could conclude that she did so based on her pre-2012 evaluations alone, which largely
show that her performance met or exceeded requirements.
Moreover, there is no
For example, the Seventh Circuit affirmed summary judgment in Peele because the plaintiff failed
to show that her poor job performance (the alleged reason for firing her) was pretextual. Among
other things, plaintiff argued that the evidence was weak and denied her performance was materially
deficient; compared her performance reviews to other employees to show disparate application of
the employment expectations; and alleged that the company was trying to cut costs by removing
older workers and that her supervisor wanted a younger, maler office. 288 F.3d at 327-28.
Nevertheless, the Seventh Circuit found the evidence of the plaintiff’s worsening job performance
to be overwhelming: she had received nine written evaluations critical of her performance and she
did not challenge the accuracy of these criticisms. Id. at 328. The court declined to consider earlier,
positive evaluations because the plaintiff had changed job titles and responsibilities. Id. at 329.
Finally, the court concluded that she failed to identify similarly situated colleagues outside her
protected class who had been treated better. Id. at 330-31.
suggestion that Waite’s job title or the bulk of her responsibilities changed before 2012.
While defendant relies on her 2012 evaluation and the alleged behavior warranting
repeated disciplinary actions in 2013 to prove that her performance failed to meet these
expectations, plaintiff has credibly disputed the accuracy of that evaluation and of the
allegations underlying much of her later discipline. Additionally, plaintiff can credibly
argue on this record that much of her disciplinary record constituted retaliation for her
complaints of harassment, unless the jury disbelieves her claim that she complained to her
supervisor about sex discrimination early and often. There are, therefore, factual disputes
as to whether plaintiff met her employer’s reasonable expectations of job performance.
This conclusion is strengthened by considering the defendant’s treatment of
plaintiff’s male colleagues. Typically, to establish that a colleague is “similarly situated,” a
plaintiff must show that her “comparator”: “(1) dealt with the same supervisor, (2) w[as]
subject to the same standards, and (3) engaged in similar conduct without such
differentiating or mitigating circumstances as would distinguish [his] conduct or the
employer’s treatment of [him].”
Orton-Bell, 759 F.3d at 777 (alteration in original)
(quoting Coleman, 667 F.3d at 847 (internal quotation marks omitted)). Here, plaintiff
cites a number of examples of male correctional officers who appear similarly situated but
punished less harshly for similar or worse behavior. For instance, the three correctional
officers who were disciplined for locking themselves in cells with inmates received only
verbal reprimands.18 Similarly, other male correctional officers appear to have received
suspensions -- not terminations -- for actions that permitted prisoners to escape or be
improperly released, while plaintiff was terminated for her disputed role in the collection
Likewise, plaintiff was suspended for using a department computer and copy
machine, yet her former colleague testified that: it was common for employees to use the
copy machine to copy personal materials and to use the computers for personal internet
browsing; he was unaware of anyone other than plaintiff being reprimanded for using the
copy machine; and he had used the copy machine after work without consequence. (Wirth
Tr. (dkt. #23) 5-7.) Plaintiff also can testify about the personal use of office equipment
that she witnessed.19 As for her three-day suspension, it was the same length as male
correctional officers’ suspensions for: unshackling a prisoner and permitting his escape;
failing to perform cell checks for most of a year; and failing to intervene in inappropriate
sexual activities of inmates -- all of which appear far more serious than photocopying and
The fact that one of the verbally reprimanded officers was female may cut against plaintiff’s claim
that she was targeted because of her sex, supporting instead the theory that she was targeted for
other, unprotected reasons, a theory not without support. (See Pl.’s Opp’n (dkt. #19) 4 (“A jury
could reasonably find that Lt. Ashbeck as the new jail administrator wanted to establish his
authority as a supervisor and selected Waite, a divorced woman whose performance had been
criticized earlier in her employment[,] to establish his reputation as a supervisor . . . .”).) Notably,
Title VII only protects against harassment and discrimination on the basis of an enumerated
protected status, like sex, not on the basis of other grounds, even if unsavory.
Plaintiff similarly details instances where her colleagues used profanity or talked about drinking
without rebuke as support for her retaliation claim, although reliance on some of the logs appear to
be hearsay within hearsay and were not considered by the court. Plaintiff’s list of her colleagues
using the office equipment for personal purposes differs from those concerning use of profanity and
discussing drinking because this list is not based on out-of-court statements. Further, this list is
different in that it likely falls into the present sense impression exception to the bar against hearsay.
printing twelve pages on plaintiff’s night off, especially when the copies appear work related
anyway. (See Wood County Discipline Summary (dkt. #15-31) 1-2; Pl.’s Opp’n (dkt.
#19) 40, 52.) Similarly, her five-day suspension was the same length as that of a male
officer who was being disciplined for witnessing inappropriate sexual activities by inmates
and providing commentary over the radio, instead of reporting the event, compared to
Waite’s disputed role in razor collection. (See Pl.’s Opp’n (dkt. #19) 52.) This evidence
could also be used by a jury to find that defendant’s stated reason for firing plaintiff was
Finally, there is no reason to believe that the male correctional officers answered to
a different supervisor. On the contrary, it appears that there was one jail sergeant, jail
administrator and county sheriff.
Nor were the officers governed by different codes of
conduct. Plaintiff’s infractions appear to be either similar or markedly less serious than
those of her male counterparts; defendant’s arguments that facts distinguish the male
correctional officers from plaintiff may prevail at trial, but not summary judgment.
Accordingly, plaintiff’s sex discrimination claims will proceed.
II. Plaintiff’s Hostile Work Environment Claim
A plaintiff must establish four elements to avoid summary judgment on a hostile
work environment claim: “(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 v. Indiana, 759 F.3d 768, 773 (7th Cir. 2014) (quoting Chaib v.
Indiana, 744 F.3d 974, 985 (7th Cir. 2014)). Waite has failed to make this necessary
showing. See Johnson v. Cambridge Indus., Inc., 325 F.3d. 892, 901 (7th Cir. 2003) (noting
that “summary judgment is the ‘put up or shut up’ moment in a lawsuit, when a party must
show what evidence it has that would convince a trier of fact to accept its version of events”
(internal citation and quotation marks omitted)). Instead, in response to defendant’s
motion for summary judgment on her hostile work environment claim, Waite simply
argues that the County failed to “allege that Waite was not subjected to a hostile work
environment by its repeated discipline of Waite and threats of still further discipline . . . .
Thus, it must be found for purpose[s] of its summary judgment motion that the County . . .
subjected her to a hostile work environment.” (Pl.’s Opp’n (dkt. #19) 34.)
Even if the court were willing to undertake plaintiff’s job of marshalling evidence of
a hostile work environment, the court can find none here. Instead, plaintiff marshals
evidence of a straightforward sex discrimination claim that apparently began in earnest in
the last few months of her employment and for the most part after she herself had raised
a specter of sex discrimination. Not only is there no evidence of any subtle or overt sexual
harassment or hostility towards her or other female officers on this record, even in the last
few months of her employment, she offers no evidence of such conduct. This does not
come close to the necessary showing to stave off summary judgment on plaintiff’s hostile
work environment claim.
III. Plaintiff’s Retaliation Claim
Title VII would be rather toothless if it did not “protect persons not just from
certain forms of job discrimination [and harassment], but [also] 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). A plaintiff can only
prevail on a retaliation claim if she proves that she: “(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.” Congleton v. Oneida Cty., No. 16-cv-412-wmc, 2017 WL 4621117, at *16 (W.D.
Wis. Oct. 13, 2017) (citing Cullom v. Brown, 209 F.3d 1035, 1040 (7th Cir. 2000)). This
requires the plaintiff to have complained about discrimination based on a protected class;
failing to indicate a connection to a protected status -- either explicitly or through facts
establishing that inference -- is insufficient.
Orton-Bell, 759 F.3d at 776 (quoting
Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006)) (affirming summary
judgment on retaliation claim where plaintiff failed to link complaint to protected status
as a woman, such that complaint could not be basis for retaliation claim); see also Miller,
203 F.3d at 1007-08 (explaining that “[a]n employee, of course, need not use the words
‘pregnancy discrimination’ to bring her speech within Title VII’s retaliation protections.
But she has to at least say something to indicate her pregnancy is an issue. An employee
can honestly believe she is the object of discrimination, but if she never mentions it, a claim
of retaliation is not implicated, for an employer cannot retaliate when it is unaware of any
Accordingly, the question here boils down to “whether an employer has acted in
such a way that ‘well might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.’” Porter v. City of Chic., 700 F.3d 944, 957 (7th Cir. 2012)
(quoting Thompson v. N. Am. Stairless, LP, 131 S.Ct. 863, 868 (2011)). While defendant
contends that Waite did not claim that she was being treated differently as compared to
male officers until April 12, 2013, that is a hotly disputed, material issue of fact. Plaintiff
claims that she lodged such a complaint at least by the end of October 2012, following her
first unsatisfactory performance review. Specifically, on October 25, 2012, she reports
personally meeting with the sheriff and undersheriff and informing them that she
considered the negative comments in her evaluation to be harassment, adding that she did
not expect to have to go through what she had in Adams County again. Even so, this
meeting cannot be the basis for her retaliation claim, because she has yet to offer any
evidence establishing that the sheriff or undersheriff knew what had happened to her in
Adams County or her sex discrimination lawsuit. Without this, plaintiff cannot establish
that she complained about discrimination based on sex.
Her claim that this initial
complaint led to a retaliatory “campaign of intense scrutiny” thus fails, at least on the
record at summary judgment.
Still, that was just the first time plaintiff reports complaining about harassment
based on sex. On February 13, 2013, Waite alleges that during her meeting with Jail
Sargent Jochimsen she became upset because she was being held to a higher standard than
the male officers, whose work was not being similarly examined. This type of alleged
statement would provide sufficient information for Jochimsen to infer that Waite was
complaining about being discriminated against based on her sex. See Orton-Bell, 759 F.3d
at 776 (“a ‘complainant must indicate the discrimination occurred because of sex . . . .
Merely complaining in general terms of discrimination or harassment, without indicating
a connection to a protected class or providing facts sufficient to create that inference, is
insufficient.’” (quoting Tomanovich, 457 F.3d at 663)). Moreover, two days later, plaintiff
received a verbal reprimand and a final written warning, followed shortly by two more
verbal reprimands, two suspensions and, finally, termination. Considering some of the
bases for these disciplinary actions -- such as faxing three pages or using office equipment
to provide requested documents to human resources -- and their timing in relation to her
complaint of sex discrimination, a jury could reasonably find that these acts of discipline
were retaliatory in nature. Indeed, this finding would be buttressed here by plaintiff’s
account of her February 15, 2013, meeting at which she received a verbal reprimand and
the final written warning.
In particular, she claims to have identified three male
correctional officers who were not being punished despite not doing their jobs, to which
Jail Administrator Ashbeck responded that he was only concerned about her, and not about
them. While Ashbeck may well, as he now claims, have been speaking only of his focus of
that meeting, that was not plaintiff’s understanding and, when viewed in context, it may
not be the jury’s.
Plaintiff also claims that she was retaliated against after her employment was
terminated.20 Only “post-termination acts of retaliation that have a nexus to employment
are actionable under Title VII,” such that former employees can sue if they are complaining
Contrary to plaintiff’s assertion that defendant did not seek dismissal of her post-termination
retaliation claim -- all while acknowledging defendant’s request for its dismissal (see Pl.’s Opp’n
(dkt. #19) 2) -- defendant did seek summary judgment on the basis that plaintiff could not establish
that her former employer hampered her possible future employment (see Def.’s Summ. J. Br. (dkt.
#14) 29-30; Def.’s Reply (dkt. #35) 39-40). By simply incorrectly asserting that defendant failed
to “develop argument” and declining to address that claim, plaintiff again missed her opportunity
to marshal evidence countering defendant’s affirmative request for summary judgment.
that retaliation “impinges on their future employment prospects or otherwise has a nexus
to employment.” Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 888, 891 (7th Cir. 1996). As
seen in Veprinsky, acts of a former employer hampering a former employee’s job search or
injuring a former employee’s relationship with a new employer may be actionable, however
there must be some concrete injury. Id. at 894-95; see also Moreno-Nicholas v. City of
Indianapolis, No. IP 98-1398-C H/G, 2000 WL 1701970 at *6 (S.D. Ind. Oct. 26, 2000)
(“Allowing a former employee to proceed with a post-employment retaliation claim without
evidence that the challenged conduct actually caused any harm would . . . provide remedies
to former employees in situations where current employees would have none.”).
Plaintiff’s post-termination claim appears to rely heavily on the August 7, 2013
letter from HR Director Reed regarding Spiegelhoff’s recording of a grievance meeting
without prior notice or authorization. The letter calls this recording “a serious breach of
good faith” and an apparent “direct violation of the ‘Use of Electronic Recording Devices’
policy,” explaining that “[s]ince your employment has been terminated this matter will be
held in abeyance. However, if your employment is reinstated this matter will be referred
to your supervisor for possible disciplinary action to and including possible termination of
you reemployment.” (Aug. 7, 2013 Letter (dkt. #15-40) 2.) No reasonable jury could
find that this letter caused any harm -- material or otherwise -- to plaintiff’s future
employment prospects, except perhaps to the prospects of future employment with
defendant if reinstated by the court, which will be addressed at the final pretrial conference.
The threat of referring the alleged policy violation to her supervisor if she were to be
reinstated did not injure her chances of future employment elsewhere and is too remote to
constitute harm as relating to possible future employment with Wood County.
Accordingly, the court will grant summary judgment to defendant on any post-termination
retaliation claim, but not on the pre-termination, which is limited as set forth above.
IT IS ORDERED that Defendant’s motion for summary judgment (dkt. #13) is
GRANTED IN PART AND DENIED IN PART as set forth above.
Entered this 9th day of November, 2017.
BY THE COURT:
WILLIAM M. CONLEY
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