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Congleton v. Oneida County

United States District Court, W.D. Wisconsin

October 13, 2017

TRACY LYNN CONGLETON and RITA JOHNSON, Plaintiffs,
v.
ONEIDA COUNTY, KEITH FABIANSKI, LISA CHARBARNEAU, JOHN SWEENEY, GRADY HARTMAN, and MARC NEUMAN, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY, DISTRICT JUDGE

         Plaintiffs Tracy Lynn Congleton and Rita Johnson, both former employees of the Oneida County Sheriff's Department, allege that Keith Fabianski, a fellow jail employee and, at times during their respective employment, their shift supervisor, subjected them to hostile treatment because of their sex. Plaintiffs assert claims for hostile work environment and retaliation against: their employer, the County, in violation of Title VII, 42 U.S.C. §§ 2000e et seq., and against Fabianski and other individual defendants, who are also employees of the County, as well as the County itself under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), for violations of their rights under the Equal Protection Clause of the United States Constitution.

         Before the court is defendants' motion for summary judgment, in which defendants assert a number of bases for judgment in their favor. (Dkt. #17.)[1] For the reasons that follow, the court will grant summary judgment to defendants on all of plaintiffs' claims, save one: plaintiff Congleton's claim against the County under Title VII for a hostile work environment. Plaintiff may, therefore, proceed to trial on that claim alone.

         UNDISPUTED FACTS[2]

         A. Defendants

         Oneida County is located in North Central Wisconsin and employs approximately 300 individuals, including 91 employees who work for the County's Sheriff's Department. The Sheriff's Department is responsible for the operation of the County Jail.

         Defendant Grady Hartman was hired by the County in 1999 as a Sheriff's Deputy. He was promoted to Sergeant in 2006, appointed as Sheriff in 2013 and has won reelection since that time. Defendant Mark Neuman was hired as Oneida County's Jail Administrator on January 21, 2014, replacing Sandra Ladu Ives. He continues in that role today. Neuman's assistant is defendant Keith Fabianski, who was first hired as a Department Corrections Officer in June 1999, having previously served in the United States Marine Corps. Fabianski was promoted to Lead Corrections Officer on August 9, 1999. On November 6, 2013, Fabianski was promoted to Assistant Jail Administrator, the position he has held to this day.

         Defendant Lisa Charbarneau was hired by the County in 1993 as the Employee Services Manager for the Labor Relations and Employee Services Department. She was promoted in 2011 to the Human Resources Director. Defendant John Sweeney was hired by the County in 1985. He was promoted to Chief Deputy Sheriff in 2000 and remained in that position until March 2014, when he retired from the Department.

         Oneida County Corrections Officers are uniformed members of the Sheriff's Department, response for the day-to-day operation of the Jail. Corrections Officers work under the guidance and direction of Lead Corrections Officers. Lead Corrections Officers, however, do not have the authority to hire, fire, discipline or discharge Corrections Officers. Lead Corrections Officers report to the Assistant Jail Administrator and Jail Administrator, who are themselves supervised by the Chief Deputy and Sheriff. The Sheriff has the ultimate authority to hire, fire, discipline and discharge Department employees.

         B. Plaintiffs

         Plaintiff Tracy Congleton applied for a position with the Oneida County Sheriff's Department in November 2001. After being offered both her choice of Corrections Officer and Dispatch positions, she opted for the former and began working for the County on January 3, 2002. Based on the recommendations of the then-Sheriff and Chief Deputy, as well as the Jail Administrator and Assistant Jail Administrator Kaye Juel and Sandra Ladu Ives, respectively, Congleton was promoted to Lead Corrections Officer in April 2012, with a rank of Sergeant. Congleton remained in that position, working opposite Lead Correctional Officer Fabianski, until November 8, 2013, at which time she began working as a County Child Care Specialist and defendant Fabianski was promoted to Assistant Jail Administrator. The parties' dispute the events surrounding her transfer of employment, but agree that Congleton resigned from her employment with the County on June 24, 2015.

         The County hired plaintiff Rita Johnson as a Corrections Officer on December 6, 1999, and she remained in that role until she was terminated on January 6, 2015. At various times, Johnson worked as the “acting Sergeant, ” whose responsibilities included supervising then-Lead Corrections Officer Fabianski.

         C. Alleged Harassment

         The parties agree that defendant Fabianski made no overt gender-related hostile remarks or slurs. Instead, plaintiffs claim that Fabianski treated them with hostility because they were women. Plaintiff Tracy Congleton reports that Fabianski was the first sergeant under whom she was assigned after six months of training. She found Fabianski to be “very demeaning, always acting like she did not do things properly, ” though she acknowledges that he always gave her good written reviews. (Pls.' Add'l PFOFs (dkt. #40) ¶ 14.) Specifically, Congleton recounts that at the start of her shift, she would say something like, “Hi, Keith, how are you?, ” to which he would respond, “What the fuck does it matter to you?, ” or “Why the fuck do you care?” (Id. at 16.) Congleton also recalls that if she was having a conversation with another coworker in front of Fabianski, he would say something like, “Stop . . . interrupting me. You don't fucking interrupt me. You shut up. When I'm talking, you don't interrupt me.” (Id. at 17.)

         Congleton also avers that when Fabianski spoke to her in a hostile fashion, their toes were touching and he would point his finger at her, while saying something like, “If I fucking wanted you to fucking talk, I'd fucking ask you.” (Id. at ¶ 19.) Congleton further avers that Fabianski cursed at her in front of inmates, including on one occasion when he threw his arms up and said, “What the fuck are you doing?” as she escorted an inmate with another correctional officer. Congleton represents that she feared for her safety and was afraid Fabianski might physically assault her.

         Congleton represents that these interactions happened at least once or twice a week during the time Fabianski was supervising her, from approximately 2002 until 2007, except when Fabianski ignored her completely. She also avers that his behavior never improved over that five-year period of time.

         In contrast, Fabianski denies treating Congleton in a hostile manner. In addition to disputing Congleton's account of her interactions with Fabianski, defendants also point out that during the five-year period at issue from 2007 to 2012, Congleton and Fabianski rarely had contact at work. In fact, beginning in 2007, Congleton was no longer supervised by Fabianski; instead, she gained enough seniority to move to a shift supervised by Sergeant Rita Wege (nee Mertz). After staying on Wege's shift from 2007 to 2008, Congleton was asked by then-Jail Administrator Kaye Jule to move to Sergeant Bill Skubal's shift. In 2012, Officer Congleton's schedule was again changed so that she worked three days with one sergeant and three days with another, bringing her back in regular contact with Fabianski. This contact was also short-lived, however, because Congleton was promoted in April 2012 to the rank of sergeant and served as a Lead Corrections Officer herself. Still, Congleton contends that Fabianski was critical and blamed her for things she had not done even after her promotion.

         In addition to experiencing Fabianski's hostility directly, Congleton also observed his treatment of other female employees. Specifically, Congleton described an incident when Fabianski did not send officers into the booking room to help female correctional officer Nicole Martinson. At another time, when Martinson asked Fabianski how she was doing, Fabianski responded, “Who the fuck cares?”

         Plaintiff Rita Johnson's first supervising sergeant was also Fabianski. He remained her regular shift sergeant for approximately one year. She continued to work under his supervision “on and off” throughout her career at the Jail. Johnson also avers generally to the differences in the way Fabianski treated her as compared to male correctional officers. As an example, she recounts how Fabianski used “awful” language -- “fuck this, ” or “fuck that” -- when speaking to female correctional officers. (Pls.' Add'l PFOFs (dkt. #34) ¶ 98.) In contrast, Johnson observed him speaking normally with male correctional officers, calling them “buddy.” If Johnson extended a friendly greeting, Fabianski would respond with a “[w]hat the fuck is it to ya?” (Id. at ¶ 102.)

         Johnson specifically describes an exchange after Fabianski returned from a medical leave of absence in 2002, but not in uniform. Johnson reports asking what he was doing back at work, to which he responded, “Fucking here, ain't I?” He then further said, “If you have a problem [with me being out of uniform, ] take it up with the fucking Jail Administrator.” (Defs.' PFOFs (dkt. #19) ¶ 115 (quoting Lopez Decl., Ex. J (dkt. #24-10) 5-7); see also Pls.' Add'l PFOFs (dkt. #34) ¶ 106.) Later that same day, Johnson overheard Fabianski tell an inmate, “I fly like an eagle and have to work with a fucking turkey.” (Defs.' PFOFs (dkt. #19) ¶ 116; Pls.' Add'l PFOFs (dkt. #34) ¶ 106.) When Johnson then approached, Fabianski said that he would speak with her later in the radio room. When Fabianski returned to the locked radio room, he allegedly yelled, “open this fucking door, ” to which Johnson replied, “if you ask nicely[, ] I will open it.” (Id.) Fabianski then apparently walked away rather than do so. Although that ended the incident, Johnson maintains it was typical of the dismissive way Fabianski dealt with her, as well as other female correctional officers.

         As another example, Johnson specifically recounts one incident when Fabianski told Congleton to “Shut the fuck up. I didn't ask you to talk. There's sergeants in here.” (Pls.' Add'l PFOFs (dkt. #34) ¶ 111.) Johnson further recounts an event in December 2013 after Johnson had cleaned and rearranged the break room, and another officer put the furniture back to its original position. Johnson overheard another officer ask Fabianski why they could not keep the break room the way Johnson arranged it. Fabianski asked Johnson to step into his office, at which time he said, “It's always fucking something with you. Every day, it's something. It's always fucking something with you.” (Pls.' Add'l PFOFs (dkt. #34) ¶ 115.) Johnson claims she reported this incidence verbally to the County's Employee Services Manager Charbarneau, as well as Neuman, Deputy Sheriff Sweeney and Sheriff Hartman.

         In addition to Congleton and Johnson, Sergeant Rita Wege testified at the ERD hearing about Fabianski's interactions with female employees under his supervision, describing Fabianski as demeaning and reducing female correctional officers to tears. Wege specifically observed him mistreating Congleton. Wege also heard complaints from other female officers, Rebecca Hable and Nicole Martinson. As for herself, Wege testified that she made a report to the Jail Administrator that Fabianski yelled at her in 2008.

         Sergeant William Skubal also testified at the ERD hearing that in 2009 and 2010, there were a few times when Congleton talked to him “about what [Fabianski] was doing and [sought] his advice.” (Defs.' Resp. to Pls.' PFOFs (dkt. #39) ¶ 179.) In addition, Skubal acknowledged he observed Fabianski dealing with female correctional officers in a demeaning tone and using offensive language approximately once or twice every two weeks. Although he also testified that Fabianski used profanity and had a harsh demeanor with male employees. Skubal testified that Fabianski was harsher with female employees. While Skubal orally complained about Fabianski, those complaints concerned how Fabianski “treated several of us, ” including Skubal himself.

         In response, defendants identify times during each plaintiffs' employment when they had the option to select shifts, and they both opted to work under Fabianski's supervision. (See, e.g., Defs.' PFOFs (dkt. #19) ¶ 44, 47.) Congleton concedes that prior to her move to another shift in 2007, she had the option a year or two earlier to move, but opted to stay on Fabianski's shift because she would have more holidays off, which she particularly valued having started a family. Moreover, at the point when she did opt to transfer shifts, she did so despite the fact that it was the least desirable from a scheduling standpoint.

         On at least one occasion, Congleton also concedes telling Fabianski that she looked forward to working with him. When supervising plaintiffs, Fabianski always provided favorable reviews in their performance evaluations. Fabianski even defended Johnson in 2012 when she failed to follow the Department's paid time off policy, advocating for her and recommending that she not be disciplined.

         Defendants also point out that Johnson asked Fabianski to represent her as a union steward on two or three occasions, although it appears he was the only steward for correctional officers. In 2007, Johnson also asked Fabianski to accompany her when she confronted another correctional officer about a dispute. During that interaction, Fabianski stepped in front of Johnson to protect her, telling the other corrections officer to keep his hands down. Finally, defendants point to evidence that Congleton and Fabianski socialized outside of work early in her career, including going to dinner with their respective spouses and Congletons' family attending the Fabianskis' Christmas party.

         Defendants further represent that Fabianski also did not get along, at least at times, with two male employees, Sergeant Skubal and Officer Paul Erlitz, and that other female employees testified at the hearing that he was not demeaning to female employees.

         D. County's Awareness of Complaints against Fabianski

         1. Early Complaints

         In 2002, Congleton and other Corrections Officers complained to then Jail Administrator Juel that Fabianski had a poor attitude and was a difficult supervisor. Juel and Chief Deputy Sweeney responded by meeting with Fabianski and counseling him on his attitude and behavior. Afterward, defendants represent that Fabianski's work performance and attitude improved. In response, plaintiffs contend that Johnson alerted Jail Administrator Juel shortly after his counseling that Fabianski was “back to his same old games as to how he treats me and Tracy and Dee and Deb and other female officers.” (Pls.' Resp. to Defs.' PFOFs (dkt. #39) ¶ 66 (quoting Lopez Decl., Ex. F (dkt. #24-6) (ERD hearing transcript) 25.)) Sergeant Skubal similarly testified that Fabianski's treatment of female officers never changed for the better. (Id. (citing Lopez Decl., Ex. F (dkt. #24-6) 57).)

         Johnson also represents that during an investigation of another employee's conduct in 2001, she told a former Sheriff about Fabianski's treatment of her. (Pls.' Resp. to Defs.' PFOFs (dkt. #39) ¶ 150.) Johnson also contends that she spoke with then-Assistant Jail Administrator Ladu Ives on at least two occasions about Fabianski's behavior, but could not recall the date.[3]

         2. Fabianski's Promotion

         The Jail Administrator position became open after Juel was killed tragically in a fire on February 12, 2013. Oneida County ordinances govern employee promotions, appointments and the filling of vacant positions. Under the applicable policy, a panel interviews and scores candidates, with the Sheriff making the final decision. In fact, Congleton applied for the Jail Administrator positon, but the County hired Ladu Ives, the then-Assistant Jail Administrator.

         As a result of Ladu Ives' promotion, the Assistant Jail Administrator position became vacant, and Congleton again applied for that position. Congleton was further informed that she was the only applicant to pass the written examination for that position. Instead of offering her the position, however, the Department reposted it. Ultimately, five candidates, including Congleton and Fabianski, were asked to interview. Around this time, Congleton avers that Fabianski stated while looking directly at her, “Once I become jail administrator, I'm going to fucking start cleaning house.” (Pls.' PFOFs (dkt. #34) ¶ 29.) The panel, which included Sheriff Hartman, Deputy Chief Sweeney and Jail Administrator Ladu Ives, interviewed and independently scored the candidates. Sheriff Hartman then took each candidate's raw interview score from each interviewer and averaged them. Fabianski received the highest overall average score; Congleton received the third highest score. During the hiring process, Congleton never raised any concerns about Fabianski's candidacy with anyone at the County. Ultimately, Hartman decided, and the panel agreed, that Fabianski was the most qualified applicant. He was promoted to the role of Assistant Jail Administrator on November 6, 2013.

         3. Other, Pre-November 2013 reports

         Defendants contend that Congleton complained to no one at the County about Fabianski's alleged discrimination based on her gender before the date Fabianski was promoted to Assistant Jail Administrator instead of Congleton. Although Congleton acknowledges that she did not lodge a formal complaint under the County's or Department's harassment policies before then, she purports to have complained to supervisors about Fabianski well before November 2013. Specifically, Congleton represents that she spoke about Fabianski's discrimination and/or harassment when Sandra Ladu Ives was still the Assistant Jail Administrator, and that Ladu Ives had herself witnessed the harassment on several occasions well before that, when she was a corrections officer. Congleton also avers that she later told Jail Administrator Kaye Jule about Fabianski's harassment on several occasions. At some point, Congleton contends that she no longer felt comfortable reporting harassment to Ladu Ives after Jule's untimely death in February 2013 because of “how the relationship between Keith [Fabianski] and Sandra [Ladu Ives] had developed.” (Pl.'s Resp. to Defs.' PFOFs (dkt. #39) ¶ 67 (citing Olson Decl., Ex. A (dkt. #37-1) 2-3).) Congleton admits, however, that she did not complain about harassment based on her gender to then-Deputy Sheriff Sweeney, Sheriff Hartman, the County Human Resources Director Lisa Charbarneau, or any other County Human Resources employee before November 8, 2013.

         E. Congleton's Formal November 2013 Complaint of Harassment and Charbarneau's Investigation

         On November 8, 2013, the day Congleton learned that she was not selected for the Assistant Jail Administrator, she met with Charbarneau. The parties sort of dispute the specific content of their conversation. Congleton contends that she relayed: how upset she was about the decision to promote Fabianski; her belief that Fabianski and Ladu Ives had conspired to have Fabianski promoted; and that she did not want to be supervised by Fabianski. Congleton also reports asking to be demoted so that she would have somebody with a sergeant's rank between her and Fabianski. Defendants emphasize that Congleton did not provide any specific examples, only stating generally that Fabianski talked to her in a “harsh manner.” (Defs.' PFOFs (dkt. #19) ¶ 109.) In response, Congleton represents that she told Charbarneau “[e]verything that [she] could remember, ” citing her ERD testimony, but fails to provide any details as to what she told or did not tell Charbarneau about Fabianski's alleged harassment. (Pls.' Resp. to Defs.' PFOFs (dkt. #39) ¶ 109.) Congleton also urged Charbarneau to speak with Johnson and another employee Debra Nelson about Fabianski's behavior.

         After learning that Congleton would be uncomfortable working under Fabianski, Charbarneau placed her on administrative leave to allow the County to investigate the allegations. At that time, Charbarneau also indicated that there was an opening available in the County child ...


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