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Schumacher v. Scholz

United States District Court, W.D. Wisconsin

August 23, 2016

RANDY SCHOLZ, in his individual and official capacities, and LINCOLN COUNTY, WISCONSIN, Defendants.


          BARBARA B. CRABB District Judge.

         Plaintiff Kurt Schumacher has filed this civil lawsuit under 42 U.S.C. § 1983 against defendants Randy Scholz and Lincoln County, Wisconsin. He contends that defendants violated his Fourteenth Amendment rights by removing him from his position as a social worker without affording him adequate due process before and after his removal. Defendants have filed a motion for summary judgment on all of plaintiff’s claims, which I am granting. Although I conclude that plaintiff had a protected interest in his position as a social worker, the pre-termination hearing afforded him all the process he was due under the circumstances. Therefore, defendants did not violate plaintiff’s constitutional rights when they removed him from his position.

         From the parties’ summary judgment materials and the record before the court, I find that the following facts are not subject to genuine dispute.


         Plaintiff Kurt Schumacher was employed as a Social Worker/Intake Worker by defendant Lincoln County, Wisconsin, from October 1993 until he was removed from his position in May 2015. The series of events leading to plaintiff’s removal began in early February 2015, when one of his co-workers, Sarah Brandner, reported to defendant Randy Scholz that plaintiff had called her “nicknames.” Scholz, who was employed as Lincoln County’s “Administrative Coordinator, ” interviewed plaintiff about his interactions with Brandner. During this interview, plaintiff admitted that he had occasionally referred to Brandner as “the hall monitor” and “sheriff, ” but stated that these nicknames were chosen for no reason other than that he often saw Brandner in the hall. Plaintiff characterized his use of nicknames as part of a “lighthearted game” and told Scholz that Brandner herself had used the same nicknames when referring to plaintiff.

         On February 23, 2015, Scholz formally interviewed Brandner regarding plaintiff’s and Brander’s interactions. Brandner confirmed that “hall monitor” and “sheriff” were the only two nicknames that plaintiff had used and that she had also used them to refer to plaintiff. However, Brandner became emotional during the interview and stated that she did not consider their use of nicknames to be a game. She also said that the only reason she used the nicknames to refer to plaintiff was to “defend herself.” After this interview, Scholz decided to place plaintiff on paid administrative leave while he conducted a further investigation into plaintiff’s workplace behavior and his interactions with coworkers.

         On March 3, 2015, Scholz met with plaintiff and informed him that he believed plaintiff had been “untruthful” during the investigation and that his conduct toward Brandner was “inappropriate.” (Although it is not entirely clear from the record, it appears that the only “untruths” were plaintiff’s statements that (1) he believed that he and Brandner were friends, which Brandner denied; and (2) he believed that a number of his fellow employees heard the two call each other nicknames, but only one employee would confirm that the two used nicknames.) Scholz told plaintiff that if he did not resign and sign a severance agreement releasing all claims against defendants, Scholz would initiate removal proceedings under Wis.Stat. § 17.16, which sets forth the procedure for terminating certain public employees, including appointed Social Workers/Intake Workers such as plaintiff. Plaintiff was given 21 days to decide whether to accept the severance agreement. During this time period, plaintiff’s paid leave was converted to unpaid leave. (Plaintiff filed a grievance challenging the decision to place him on unpaid leave, but this grievance was denied as untimely.)

         While plaintiff was on unpaid administrative leave and considering whether to accept the severance agreement, Scholz inspected plaintiff’s work computer. After searching plaintiff’s work email, Scholz found a number of emails that he believed violated Lincoln County’s electronic communications policy because they were “disparaging or harassing” with respect to “race, sex, sexual orientation, disability, age, religious beliefs, or national origin.” For example, one email plaintiff received from a friend included a picture of a voluptuous blonde woman at a TSA checkpoint with the caption, “I’m Predicting a TSA Pat-Down.” Generally speaking, plaintiff was merely a passive recipient of these emails; when he received them, he immediately forwarded them from his work email to his personal email.

         On April 8, 2015, after plaintiff’s opportunity to sign the severance agreement had passed, defendant Scholz initiated removal proceedings in accordance with Wis.Stat. § 17.16 by filing “verified charges” against plaintiff. Specifically, Scholz alleged that plaintiff had used a “derogatory” nickname to refer to Brandner, failed to be “truthful” during the subsequent investigation into his interactions with Brandner and had used Lincoln County’s computer system to send and receive “disparaging or harassing” emails. The charges also included two prior incidents, one in May 2012 and one in May 2014, when plaintiff was disciplined for “inappropriate and unprofessional behavior” towards coworkers. This unprofessional behavior included criticizing certain coworkers’ “subpar” performance and holding himself out as having supervisory authority over these employees.

         On April 9, 2015 plaintiff was formally notified of the charges against him and informed that a “Removal Hearing” would be held on April 20, 2015 before the Social Services Committee of the Lincoln County Board of Supervisors, which retained outside counsel, James P. Gerlach, to assist it in conducting the hearing. At plaintiff’s request, the committee agreed to reschedule the hearing for May 4, 2015 so long as he waived any right to challenge defendants’ decision to place him on unpaid administrative leave pending his removal hearing. More than a week prior to the hearing, counsel for Lincoln County provided plaintiff’s counsel a copy of all of the exhibits defendant Lincoln County intended to present at the hearing, as well as a list of all witnesses it intended to call.

         During the eight-hour hearing, the committee heard testimony from plaintiff, Scholz, Brandner and two of plaintiff’s former co-workers. Plaintiff was given an opportunity to cross-examine all of the witnesses testifying against him and present any evidence in his defense. At the conclusion of the hearing, the committee voted unanimously to remove plaintiff from employment. In its “Statement of Cause” explaining its decision, the committee stated that plaintiff’s use of nicknames when referring to Brandner was derogatory and violated the “Performance Improvement Plan” and “Return to Work Contracts” he agreed to follow after the 2012 and 2014 incidents for which plaintiff had been disciplined. Moreover, the committee found that plaintiff had engaged in an “egregious violation of the Lincoln County Personnel Policy as it relates to his personal use of his work computer.” The committee’s decision was based on its consideration of all of these incidents and the totality of the evidence presented regarding plaintiff’s conduct.

         After the committee issued its decision, plaintiff did not file a lawsuit seeking certiorari review in any state court. Instead, plaintiff filed this action challenging as unconstitutional the process employed in rendering the decision.


         A. Le ...

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