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Wilbur v. County of Waukesha

United States District Court, E.D. Wisconsin

March 23, 2017

GENE WILBUR, Plaintiff,
v.
COUNTY OF WAUKESHA AND CITY OF PEWAUKEE, Defendants.

          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)

          HON. PAMELA PEPPER United States District Judge

         Gene 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).

         Both 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 issue.

         The 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The 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.

         Other 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 1-2.

         The 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.

         In 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 ¶12.

         A. City's Explanation for Disbanding Police Department

         According 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.

         B. The Plaintiff's Explanation for the Disbanding of the Department

         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.

         A 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.

         The 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. at 5.

         The 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.

         The 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.

         C. Waukesha County's Hiring Requirement

         Waukesha 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.

         D. The Plaintiff's First Application

         Nineteen 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.

         Despite 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.

         A panel 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.

         The 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 deposition testimony.

         The 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[1] 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.

         E. Audit and Investigation

         After 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 at ¶57.

         Sheriff 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.

         In a 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.

         Captain 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.

         The 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.

         The 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 ¶¶86-89.

         F. Plaintiff's Second Application

         On June 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. 46-60.

         Because 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, 2011. Id.

         In 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 ΒΆ101. 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 ...


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