United States District Court, E.D. Wisconsin
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY
JUDGMENT (DKT. NOS. 29, 32) AND DENYING AS MOOT DEFENDANT
WAUKESHA COUNTY'S MOTION TO STRIKE (DKT. NO. 85)
PAMELA PEPPER United States District Judge
Wilbur filed a complaint against Waukesha County and the City
of Pewaukee, challenging the City's disbanding of its
police department (by whom he was employed), and the
County's decisions not to hire him as a deputy sheriff in
2009 and 2011. Dkt. No. 1. The plaintiff brought a claim for
retaliation under 42 U.S.C. §1983 against both
defendants (Count I), two claims for retaliation under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e
et seq. (Counts II and IV), and a common law claim
for defamation against both defendants (Count III).
Id. Because plaintiff seeks to impose civil
liability on municipalities under §1983, the court
construes the complaint as bringing these claims under
Monell v. Department of Social Services of the City of
New York, 436 U.S. 658 (1978).
defendants moved for summary judgment on all of the
plaintiff's claims. Dkt. Nos. 29, 32. In his response
briefs, the plaintiff abandoned the defamation claim (Count
III) and his Title VII retaliation claims (Counts II and IV).
Dkt. Nos. 75 at 2 n.1; 76 at 2 n.1. Only the plaintiff's
First Amendment retaliation claim under §1983 remains at
court will grant the defendants' motions for summary
judgment. The plaintiff has failed to demonstrate a genuine
dispute as to whether the City disbanded its police
department in retaliation against him for the exercise of his
right to free speech. Nor has he shown a genuine dispute that
the County's refusal to hire him was motivated by
retaliation against him for the exercise of his free speech
rights. The court will deny the County's motion to
strike, dkt. no. 85, because the court does not need to
strike any material from the record to reach its decision on
the defendants' motions for summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
plaintiff joined the City of Pewaukee police department as a
part-time officer in 1985. Dkt. No. 30 at ¶1. During the
time he was a part-time officer, he also worked in home
construction. Dkt. No. 71 at ¶5. While with the Pewaukee
Police Department, the plaintiff received commendations and
awards. Dkt. No. 71 at ¶6. He received promotions within
the police department, and in February 2008, he became a
full-time sergeant. Dkt. No. 30 at ¶¶ 2-4. The
plaintiff asserts that there were others in the department
who were not happy with the plaintiff's promotion,
feeling that they should have been considered for the
full-time position. Dkt. No. 71 at 2.
than his own deposition, the plaintiff refers to two pieces
of evidence in support of his claim that there were others in
the police department who felt he should not have been
“approved to full-time sergeant status.” Dkt. No.
71 at ¶7. The first exhibit is the minutes of the City
of Pewaukee Fire and Police Commission's February 14,
2008 meeting. Dkt. No. 61-18. Pewaukee Police Chief Gary Bach
spoke at that meeting, explaining to the commission that
he'd converted the plaintiff-who already held the rank of
sergeant-from part-time to full-time, and answering human
resources questions. The minutes make no mention of other
officers being unhappy with the decision. Id. at
second piece of evidence on which the plaintiff relies is the
deposition of one of the other officers, John Kopatich. Dkt.
No. 71 at 2-3. The deposition transcript reveals that
Kopatich was asked whether the plaintiff went from part-time
to full-time status while the two were co-workers at the
department, and he answered in the affirmative. Dkt. No.
74-59 at 14. But when counsel asked Kopatich if he was
“unhappy that [the plaintiff] had gone to full-time
status, ” Kopatich responded, “No.”
Id. When counsel asked whether Kopatich “ha[d]
an opinion one way or the other” about the plaintiff
being made full-time, Kopatich responded, “I thought he
should have been made full-time.” Id.
October 2009, the Pewaukee Common Council passed a resolution
to disband its police department. Dkt. No. 30 at ¶11.
The resolution provided that the City would contract with the
Waukesha County for the Sheriff's Department for police
services, starting in January 1, 2010. Id. at
City's Explanation for Disbanding Police
to the City, there were several reasons for the decision to
disband the police department. The City was facing a
significant budget shortfall, id. at ¶6, and
that shortfall was expected to climb, id. at
¶7. The City indicates that there was no police chief
(as the plaintiff's version of events will show, police
chief Gary Bach was suspended, and there was an acting chief
at the time of the disbanding), and the mayor believed that
because of strife in the leadership, the department was
inefficient and ineffective. Id. at ¶8. The
mayor thought that by disbanding the police department, and
contracting with the County for police services, the City
would obtain more effective and efficient services at a lower
cost. Id. at 9-10. The mayor cast the deciding vote
in favor of the resolution. Id. at ¶13. The
department disbanded on December 31, 2009, id. at
¶19, and the plaintiff's employment with the City
ended that same day, id. at 20.
The Plaintiff's Explanation for the Disbanding of the
plaintiff begins his version of the events surrounding the
disbanding of the police department with an article that
appeared in the Lake Country Reporter newspaper on August 30,
2005. Dkt. No. 74-10. The article reported that during a pig
roast at a bar attended by some off-duty Pewaukee police
officers, on-duty Pewaukee officers responded to a report of
a bar fight. Id. at 1. By the conclusion of the
events of that evening, a man had been ejected from the bar,
and accusations were being exchanged about who was
responsible for the dust-up-the man or the police.
Id. at 2.
couple of years later, in April 2007, another media outlet
reported that the Pewaukee police chief, Gary Bach, would be
suspended for ten days without pay for using
“unacceptable and derogatory terms when referring to
females and minorities.” Dkt. No. 73-14. Days after the
article appeared, a sergeant with the Pewaukee police
department sent an e-mail to the Pewaukee mayor, alleging
that he had been harassed by a number of members of the
police department. Dkt. No. 61-31. There followed citizen
complaints, investigations, lawsuits and John Doe proceedings
involving various members of the police department-including
some whom the plaintiff had identified as later being unhappy
with Chief Bach having made him full-time. Dkt. No. 71 at
¶¶14-35. The plaintiff himself says that he
complained to the acting police chief, Daniel Meister, about
officers who had claimed to have seniority over him because
they were full-time and he was part-time. Dkt. No. 64-7 at 5.
plaintiff asserts that in the midst of this turmoil-in
November 2008-Chief Bach initiated a John Doe investigation
“of potentially criminal conduct by various employees
of the City of Pewaukee's Police Department, not
including Plaintiff.” Dkt. No. 71 at ¶25. In
support of this claim, he relies on a newspaper clipping-the
exhibit reflects neither the date nor the identity of the
publication-reporting that Bach had requested the John Doe,
and that Kopatich had allegedly illegally tape recorded Bach
to “get the embattled chief fired.” Dkt. No.
61-38. He also relies on Kopatich's deposition; Kopatich
testified that Bach had opened a John Doe investigation,
which had resulted in criminal charges being brought against
Kopatich, then dropped. Dkt. No. 74-59 at 7. During the
deposition, Kopatich testified that while his relationship
with Chief Bach had been good in the beginning, but that
“towards the end of his tenure . . . him and I began
not seeing eye to eye on certain things.” Id.
plaintiff alleges that the reason the mayor of Pewaukee
decided to disband the police department was “because
of ongoing investigations and litigation in the City of
Pewaukee's Police Department, including investigations of
Plaintiff and former Chief Bach . . . .” Dkt. No. 71 at
11. In support of this assertion, he provides a copy of an
e-mail from acting police chief Daniel Meister, to
“Police Dept, ” dated September 25, 2009, in
which Meister opined that the department was being disbanded
due to the investigations and personnel issues. Dkt. No.
74-52. The plaintiff also points to a portion of the
deposition of Pewaukee Alderman Dale R. Noll, in which Noll
indicates that while Chief Bach was on administrative leave,
“we”-presumably he and the other members of the
common council-talked about “areas of concern within
the [police] department, ” such as investigations. Dkt.
No. 74-143 at 3. The plaintiff provides the deposition of
City of Pewaukee administrator Tammy LaBorde, who testified
that at the common council meeting at which the mayor
discussed disbanding the police department, the mayor
provided council members with a document summarizing the
issues going on in the police department in September 2009.
Dkt. No. 74-149 at 1-3.
plaintiff disputes that the City was facing financial
difficulties at the time it was considering disbanding the
police department. Dkt. No. 71 at 12. He refers to a document
entitled “2009 Budget Update as of July 27, 2009,
” which shows estimated revenue of some $11 million
dollars against estimated expenditures of $11.9 million, for
a shortfall of over $888, 000. Dkt. No. 74-58. This document
also reflects the presence of some funds-possibly $200, 000;
the document is hard to read-for “Possible Transfer
from Green Space Fund.” Id. at 2. He also
supplies a letter from the public works director to City
Administrator LaBorde, dated July 13, 2009, in which he
explains why using money from other funds to take up the
budget shortfall could have negative tax consequences. Dkt.
No. 74-53. He cites to the deposition of Alderman Noll, who
testified that the common council had discussed, in
connection with disbanding the police department, its
anticipated budget shortfall for 2009 and 2010. Dkt. No.
74-143 at 1. The plaintiff also points to a March 28, 2011
article in the Lake Country Reporter which indicated that the
City ended the year 2010 with a surplus that might exceed
$1.6 million. Dkt. No. 74-55. Finally, he relies on a
February 7, 2015 article in the Waukesha Freeman, talking
about the City's 2006 expenditure of $2.6 million to
purchase land for parks and open spaces. Dkt. No. 74-56.
Waukesha County's Hiring Requirement
County Enrolled Ordinance 149-35 governed the educational
requirements for deputy sheriffs hired after July 31, 1994.
Dkt. No. 47 at ¶21. The ordinance referenced the
Wisconsin Department of Justice standard requiring law
enforcement to have either an associate degree or a minimum
of sixty “fully accredited college level
credits.” Id. The ordinance required that the
training and experience requirements for individuals hired as
deputy sheriffs for Waukesha County included having
“either an associate degree or a minimum of 60 college
level credits.” Id.
The Plaintiff's First Application
former City of Pewaukee police officers, including the
plaintiff, applied for employment as deputy sheriffs with the
Waukesha County Sheriff's Department after the disbanding
of the Pewaukee police department. Id. at ¶32.
The plaintiff submitted an electronic application for the
position of deputy sheriff. Id. at ¶38. In
answer to the specific application question, “Do you
possess sixty (60) semester credits of post high school
education or an Associates Degree from an accredited
university, college, or technical school?, ” the
plaintiff answered, “No.” Id. at
¶39. The plaintiff asserts that on two separate
occasions, Sylvana Radmer-a human resources analyst with
Waukesha County-told him that he didn't need to have the
sixty credits, but that because he had been
“grandfathered by Wisconsin Training and Standards,
” the sheriff would need to request a waiver from the
Waukesha County Board. Dkt. No. 61-29 at 1 (unsigned
document, presumably prepared by the plaintiff). Radmer, on
the other hand, states that her only involvement with the
plaintiff in the first interview process was her
participation in the interviews. Dkt. No. 46 at 3.
the fact that the plaintiff did not have the required degree
or sixty credits, the County allowed him to go through the
process with the other applicants, and gave him a deadline of
January 1, 2010 to show proof that he'd taken the sixty
credits. Dkt. No. 47 at ¶44. According to the County,
Waukesha County Sheriff Daniel Trawicki was under the
impression that the plaintiff was “accumulating this
data, ” and encouraged the plaintiff to get the college
credits, because he thought the plaintiff “would be a
good employee.” Id.
of four County employees interviewed all nineteen applicants
for the position of deputy sheriff, including the plaintiff;
the plaintiff interviewed on November 17, 2009. Id.
at ¶¶45-46. Of the nineteen candidates, the
plaintiff and one other applicant received the lowest scores
from the panel. Id. at ¶50. The panel did not
recommend that the sheriff's department hire the
plaintiff, id. at ¶51, because he did not have
the required sixty college credits, id. at ¶53.
The plaintiff did not obtain the sixty credits by January 1,
2010, so Sheriff Trawicki made the decision not to hire him.
Id. at ¶54. The sheriff “did not consult
or communicate with anyone from the City of Pewaukee”
in making this decision. Id.
plaintiff disputes this fact, claiming that the City
communicated with the sheriff's department about him and
scotched his chances of being hired. He claims-citing only to
his own deposition testimony-that “Sheriff Trawicki
knew that Plaintiff supported Chief Bach while most of the
rest of the Pewaukee Police Department was trying to get him
out of the department, because Sheriff Trawicki and Plaintiff
discussed those events as they unfolded.” Dkt. No. 71
at ¶54. He alleges-again, citing to his own deposition
testimony and, oddly, the Wisconsin Professional Police
Association Contract for the years 2008-2010, dkt. no.
73-5-that “[i]n retaliation for Plaintiff's refusal
to lie about or take negative action against Chief Bach,
Defendant City of Pewaukee interfered with Plaintiff's
application to Defendant Waukesha County Sheriff's
Department, resulting in Defendant Waukesha County's
denial of his application.” Dkt. No. 71 at ¶55. He
asserts that of the nineteen former Pewaukee officers who
applied to be sheriff's deputies, sixteen were hired.
Id. at ¶56. He states that “of those that
applied and completed the process, only two were not
hired”-the plaintiff and “Cher Sneider.”
Id. He claims that both he and Sneider
“supported Chief Bach.” Id. The evidence
he cites in support of these contentions is his own
plaintiff also claims that Sheriff Trawicki “told City
of Pewaukee resident Tim Toman, ‘I didn't hire [the
plaintiff] because the City [of Pewaukee] didn't ask me
to.'” Dkt. No. 71 at ¶60. The sources the
plaintiff cites for this fact are the plaintiff's own
declaration and deposition. Dkt. No. 64-6 at 28. The
plaintiff cites to the minutes of a November 17, 2009
“Personnel Committee” meeting (apparently the
personnel committee of the Waukesha County Board), in which
the sheriff responded to a committee member's question
about whether former Pewaukee officers, if hired, would be
assigned to work in Pewaukee. Dkt. No. 61-7 at 1-2. According
to the minutes, the sheriff responded that “[s]ome
officers do not want to work in the City of Pewaukee and the
City of Pewaukee does not want some of their former employees
working in their area.” The minutes go on to report
that the sheriff said that “[i]f people want to work in
the City of Pewaukee and the City of Pewaukee wants them,
they will work there. The City of Pewaukee officers will have
many opportunities to choose from.” Id. at 2.
Audit and Investigation
the County began to provide police services for the City,
Sheriff Trawicki noticed discrepancies in the property room
of the City's former police department. Dkt. No. 47 at
¶70. For example, he was “surprised at the number
of vehicles [the Pewaukee Police Department had] for the size
of the Department.” Id. The sheriff also
thought that “the amount of ammunition was
disproportionately large, ” and there were silencers
missing. Id. He also observed that that there were
items in the property room that either had not been disposed
of properly, or had not been properly identified.
Id. The plaintiff asserts that he was alleged to
have been the cause of some of the discrepancies. Dkt. No. 69
Trawicki asked the Walworth County Sheriff's Department
to perform an independent investigation and audit, focusing
on the property room and concerns involving missing sound
suppressors, the purchase of ammunition for personal use, and
seized weapons found in inventory. Dkt. No. 47 at
¶¶70-71. Two members of the Walworth County
Sheriff's Department, Captain Dana Nigbor and Detective
Robert Schiltz, interviewed the plaintiff several times in
connection with the investigation. Id. at ¶72.
report dated April 19, 2010, Captain Nigbor explained her
findings with respect to the three areas of concern: (1) two
missing sound suppressors; (2) ammunition; and (3) weapons
and inventory of weapons. Id. at ¶74. The
County's proposed findings of fact do not go into detail
about Nigbor's findings. But the County attached
Nigbor's reports-and there were many-to her affidavit.
Dkt. No. 49-1 through 49-28. Those reports indicate that the
plaintiff was implicated in missing inventory, including
allegations that he might have been trading or selling
weapons or weapons accessories from the property room.
See Dkt. No. 49-19. Some of the people who told
Nigbor that the plaintiff had been involved in wrongdoing
were some of the people the plaintiff says were displeased
with his full-time status-including John Kopatich.
Id. at 11.
Nigbor gave her reports and investigative file to the
Waukesha County District Attorney, Brad Schimel, who decided
not to issue charges. Dkt. No. 47 at ¶78. The County
attached Attorney Schimel's letter to Nigbor and her
colleague, explaining why he'd declined to issue charges.
Dkt. No. 49-29. Attorney Schimel concluded that while the
plaintiff had purchased one of the missing suppressors, it
later had been found in “a drawer in the office of the
municipal judge” and recovered, and that the plaintiff
had an application pending for a federal permit for the
suppressor. Id. at 2. He also found no evidence that
the plaintiff possessed the suppressor after he left the
Pewaukee police department. Id. at 3. Attorney
Schimel addressed some other irregularities surrounding the
Pewaukee Police Department's handling of its firearms
inventory, but concluded that these were policy issues and
did not rise to the level of criminal violations.
Id. at 3-5.
Sheriff's Department then asked Captain Nigbor to
investigate the bidding process for a seized vehicle that the
plaintiff had purchased with a sealed bid at auction. Dkt.
No. 47 at ¶75. On June 24, 2010, Captain Nigbor issued a
supplemental report, addressing her investigation into the
auctioned car. Id. ¶76. Attorney Schimel
addressed this issue in his letter, as well. Dkt. No. 49-29.
He concluded that the fact that the plaintiff purchased a
seized car through a sealed auction process may have violated
some City policy, but it did not constitute a criminal
violation (and he noted that he had been told of other City
employees violating the same policy). Id. at 6.
plaintiff asserts-with no evidentiary support other than his
own deposition-that Nigbor's report did not reflect a
fair investigation, but was a “witch hunt.” Dkt.
No. 69 at 17-18. He indicates that several former Pewaukee
employees, including former chief Gary Bach and former acting
chief Daniel Meister, provided him with letters responding to
the “lies” in Nigbor's report. Id.
at ¶72. The County responds that after Nigbor's
reports were released, the plaintiff never contacted Captain
Nigbor to advise her that the report was incorrect or
mistaken in any way. Dkt. No. 47. at ¶79. The plaintiff
indicates that he met with Attorney Schimel “to discuss
his concerns about the investigation by Walworth
County.” Dkt. No. 69 at ¶70. Later, the plaintiff
and the Lake Country Reporter obtained the investigative file
using public records requests. Dkt. No. 47 at
Plaintiff's Second Application
15, 2011, Sylvana Radmer received a letter from the plaintiff
requesting that she re-activate his application for a
position as a deputy sheriff. Id. at ¶97. The
plaintiff included with his letter a transcript from
Concordia University. Id.; Dkt. No. 46-6. The
plaintiff asserts-in an unsigned, unsworn document-that he
obtained the sixty credits, and informed Radmer of this fact
in writing in that June 25, 2011 letter. Dkt. No. 61-29 at 3.
The Concordia transcript, while difficult to read, indicates
that the plaintiff had sixty “hours.” Dkt. No.
the plaintiff's letters “were connected with the
contract with the City of Pewaukee, ” Radmer consulted
the County's human resources manager, James Richter. Dkt.
No. 46 at ¶11. Richter advised Radmer to inform the
plaintiff that the contract “was concluded, ” and
that the plaintiff would need to go through the normal
selection process. Id. Radmer explained this
decision to the plaintiff in a letter dated September 7,
November 2011, the County began recruiting to fill “an
eligibility list” for deputy sheriff positions.
Id. at ¶12. The ad for the recruitment
indicated that applicants needed to have a high school
diploma or GED and sixty credits of college education or an
associate degree “by December 15, 2011.” Dkt. No.
46-9. The ad also informed potential applicants that
“[a] written exam and physical ability test will be
administered.” Id. The plaintiff again applied
to become a deputy sheriff. Dkt. No. 47 at ¶100. The
County contacted the plaintiff to schedule a time for him to
take the written test, but he did not respond. Id.
at ¶101. In a letter to Radmer dated December 2, 2011,
the plaintiff explained that he had not scheduled a time to
take the written test because none of the other City of
Pewaukee police officers who ...