United States District Court, E.D. Wisconsin
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
Wisconsin Department of Corrections (“the DOC”)
and Susan Nygren seek summary judgment against the plaintiff,
Felicia Brown. Dkt. No.
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,
For the reasons explained below, the court will grant in part
and deny in part the defendants' motion for summary
FACTUAL BACKGROUND 
The Plaintiff's Employment at Wisconsin Department of
in May 2009, Guardian HealthStaff, LLC,
(“Guardian”) 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.
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.
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.
The Plaintiff's Allegations of Sexual
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.
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.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
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
The Commencement of Litigation
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.
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.
SUMMARY JUDGMENT STANDARD
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
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).
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.
plaintiff does not dispute two of these arguments. In her
brief in opposition to the motion for summary judgment, the
[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