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Brown v. Wisconsin Department of Corrections

United States District Court, E.D. Wisconsin

September 20, 2016

FELICIA BROWN, Plaintiff,
v.
WISCONSIN DEPARTMENT OF CORRECTIONS and SUSAN NYGREN, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 27)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         Defendants Wisconsin Department of Corrections (“the DOC”) and Susan Nygren seek summary judgment against the plaintiff, Felicia Brown. Dkt. No.

         27. The parties dispute whether the allegations in the complaint rise to the level of actionable conduct for sexual harassment and retaliation claims under Title VII. Dkt. Nos. 31, 47, 50.[1] For the reasons explained below, the court will grant in part and deny in part the defendants' motion for summary judgment.

         I. FACTUAL BACKGROUND [2]

         A. The Plaintiff's Employment at Wisconsin Department of Corrections

         Beginning in May 2009, Guardian HealthStaff, LLC, (“Guardian”)[3] placed the plaintiff, Felicia Brown, at the Racine Correctional Institute (“RCI”) to perform services as a phlebotomist. Dkt. No. 49 at ¶¶4, 7. The plaintiff worked an all-female shift. Dkt. No. 48 at ¶9. As the health services manager at RCI, defendant Susan Nygren (along with Aaisha Shakoor, the health services assistant manager) was responsible for monitoring the plaintiff's performance and attendance. Dkt. No. 49 at ¶¶15-16. The defendants reported any issues concerning the plaintiff's performance to Guardian's staffing consultant, Candy Braatz. Id. at ¶15.

         Throughout the plaintiff's time at RCI, the defendants allege that she had issues with attendance. See e.g., id. at ¶¶17, 32, 34. In February 2010, Guardian noted that the plaintiff had fifteen absences. Id. at ¶17. Guardian alleged, but the plaintiff disputes, that it told the plaintiff that if she was absent without a written doctor's note in the next ninety days, she would be placed on attendance probation. Id. at ¶17. While the defendants do not allege that Guardian actually placed the plaintiff on probation in 2010, in August 2010 Nygren did reach out to Braatz about the plaintiff's unacceptable work performance Id. at ¶18. In 2012, Nygren also had at least two discussions with the plaintiff about her attendance, productivity and performance. Id. at ¶32. Nygren also told Braatz that the plaintiff's work was not acceptable. Id. at ¶18. On February 1, 2012, Guardian placed the plaintiff on probation. Id. at ¶19.

         Around December 2012, a new warden came in and conveyed his concern about employee attendance issues. Id. at ¶33. At the beginning of 2013, Nygren completed a quality control check evaluation on the plaintiff, indicating poor work, initiative and attendance. Id. at ¶34. The evaluation stated that the plaintiff took nineteen sick days in 2012. Id. In late January 2013, Nygren also expressed to Braatz her desire to terminate the plaintiff. Id. at ¶36. Nygren fired the plaintiff on March 11, 2013. Dkt. No. 48 at ¶21.

         B. The Plaintiff's Allegations of Sexual Harassment

         In contrast to the facts recounted by the defendants, the plaintiff alleges that she followed policy for requesting time off work and that her attendance and productivity were on par or better than that of other employees. Id. at ¶28. She argues that she was fired because of her sex and in retaliation for reporting Nygren's behavior. See Dkt No. 1. The plaintiff alleges that Nygren began sexually harassing her at the end of 2010. Dkt. No. 48 at ¶6. She asserts that sometime in December 2010, Nygren kissed the plaintiff on the mouth, and the plaintiff reported it to Braatz. Id. at ¶¶6-7. The plaintiff alleges that during 2011, Nygren made sexual remarks directed at (although not said directly to) the plaintiff on a daily basis concerning her preferences for dating married people, anal sex and sex toys. Id. at ¶9. For example, the plaintiff alleges that early in 2011, Nygren came into the kitchen and said that it smelled like “pussy.” Id. at ¶11. The plaintiff alleges that she verbally reported some of these comments to the assistant manager, Shakoor. Id. at ¶9. She asserts that she was placed on attendance probation as a result of her complaints to Braatz and Shakoor. Id. at ¶26.

         The plaintiff contends that despite her reporting Nygren's behavior to Braatz and Shakoor, the harassment continued. See e.g., id. at ¶¶12, 14; but see id. at ¶14 (disputing whether the behavior stopped after Braatz spoke with Nygren). In October 2012, the plaintiff states that one of Nygren's friends slapped the plaintiff's butt and said “hot damn” in front of Nygren. Id. at ¶12.[4]The plaintiff says that she reported this incident to Shakoor and Braatz. Id. Shakoor then took leave at the end of October 2012, and did not return until after the plaintiff's termination. Id. at ¶22. Sometime in December 2012 (the parties dispute the timing), Nygren kissed the plaintiff on the forehead. Id. at ¶14. The plaintiff alleges that Nygren then exposed her own bra and breasts to the plaintiff. Id. In response to the plaintiff asking her why she continued to kiss the plaintiff, Nygren said that the plaintiff was cute, and said that “if [the plaintiff and Nygren] were partners, [Nygren] could put [the plaintiff] on [Nygren's] health insurance.” Id. The plaintiff reported this incident to Braatz. Id. at ¶17. The plaintiff contends that a month later, in January 2013, Nygren gave the plaintiff a bad quality control evaluation, dkt. no. 49 at ¶34, and indicated that she wanted to terminate the plaintiff, id. at ¶36. Shortly after, another friend of Nygren's asked the plaintiff if she wanted to buy a “cum” rag. Dkt. No. 48 at ¶18. The plaintiff alleges that enduring these physical and verbal occurrences throughout her time at RCI caused her great emotional stress, and even began to affect her work, because while drawing an inmate's blood, the plaintiff would tense up if Nygren walked by (in fear of another physical altercation). Id. at ¶¶16, 19.

         The defendants terminated the plaintiff on March 11, 2013, and she filed an EEOC charge on March 21, 2013. Id. at ¶¶21, 29. The office of Diversity and Employee Services subsequently began investigating allegations of Nygren's sexual assaults on employees. Id. at ¶32.

         C. The Commencement of Litigation

         The plaintiff filed her complaint on July 13, 2015. Dkt. No. 1. She alleged four causes of action. Id. Count I alleges that the DOC engaged in employment discrimination based on sex, in violation of Title VII, 42 U.S.C. §2000(e) et seq. Id. at ¶¶27-32. Count II seeks a declaratory judgment that the DOC engaged in unlawful employment practices in violation of Title VII. Id. at ¶36. Count III alleges that the DOC engaged in retaliation in violation of Title VII. Id. at ¶¶37-40. Count IV alleges that Nygren violated the plaintiff's Fourteenth Amendment right to equal protection, in violation of 42 U.S.C. §1983. Id. at ¶¶41-44. In her prayer for relief, the plaintiff seeks, among other things, back pay, front pay, compensatory damages, punitive damages, pre-and post-judgment interest, and reimbursements for benefits and expenses. Id. at page 11.

         On June 15, 2016, Nygren and the DOC filed this motion for summary judgment. Dkt. No. 27. The parties have fully briefed the motion. Dkt. Nos. 31, 47, 50. The court will grant summary judgment in favor of the DOC on Count I, and in favor of Nygren in her official capacity on Count IV. The court will deny the DOC's motion for summary judgment on Counts II and III, and allow Count IV to proceed to trial against Nygren in her personal capacity.

         II. SUMMARY JUDGMENT STANDARD

         A court must grant summary judgment when “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those “facts that might affect the outcome of the suit under the governing law, ” and a dispute about a material fact is genuine if a reasonable jury could find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         When determining whether summary judgment is appropriate, the court views all facts and draws all reasonable inferences in favor of the nonmoving party. Herzog v. Graphic Packaging Int'l, Inc., 742 F.3d 802, 806 (7th Cir. 2014). Nevertheless, “inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.” Id. at 806 (quoting Tubergen v. St. Vincent Hosp. & Health Care Ctr., Inc., 517 F.3d 470, 473 (7th Cir. 2008)). “[A] party will be successful in opposing summary judgment only when that party presents definite, competent evidence to rebut the motion.” EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000)(quoting Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997)). The opposing party cannot simply rely on allegations or denials in its pleadings; it must also “introduce affidavits or other evidence setting forth specific facts showing a genuine issue for trial.” Anders v. Waste Mgm't of Wis., 463 F.3d 670, 675 (7th Cir. 2006). Thus, a court appropriately grants summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         III. DISCUSSION

         The defendants' brief in support of the summary judgment motion raises four issues. Dkt. No. 31. First, the defendants argue that the plaintiff cannot sustain her hostile work environment claims, because any unwelcome conduct was not severe, was not pervasive, and was not the result of her sex. Id. at 2. Second, they argue that the plaintiff cannot prevail on her retaliation and disparate treatment claims, because she cannot show a causal connection between her dismissal and her sex. Id. Third, they argue that Count IV, to the extent that it asserts a claim against Nygren in her official capacity, is barred by the Eleventh Amendment. Id. at 3. Finally, they argue that under federal law, government agencies are not liable for punitive damages under Title VII. Id.

         The plaintiff does not dispute two of these arguments. In her brief in opposition to the motion for summary judgment, the plaintiff stated,

[The plaintiff] filed her law suit against Nygren in both her individual capacity and her official capacity. While the Eleventh Amendment may bar suits in federal court brought by private parties against state officers in their official capacities seeking forms of relief other than prospective, [the plaintiff] is still entitled to monetary and punitive ...

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