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Waite v. Wood County

United States District Court, W.D. Wisconsin

November 9, 2017

JANIS S. WAITE, Plaintiff,
v.
WOOD COUNTY, WISCONSIN, Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         After approximately a ten and a half year period of employment as a correctional officer at the Wood County Jail, plaintiff Janis Waite (“Waite”) was fired in April 2013. Three years later, she sued Wood County, alleging adverse actions and a hostile work environment based on her sex, as well as retaliation. Following discovery, the County moved for summary judgment. (Dkt. #13.) For the reasons discussed below, that motion is granted in part and denied in part.

         UNDISPUTED FACTS[1]

The parties detail -- and dispute -- much of Waite's employment history, including events within a few years of her hiring. Because the relevance of earlier events is unclear, the court will focus its attention on the key events surrounding Waite's employment and firing. See Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002) (“In most cases, when a district court evaluates the question of whether an employee was meeting an employer's legitimate employment expectations, the issue is not the employee's past performance but ‘whether the employee was performing well at the time of [her] termination.'” (alteration in original) (quoting Karazanos v. Navistar Intern. Transp. Corp., 948 F.2d 332, 336 (7th Cir. 1991))); but see Id. (“[P]rior job performance ‘evaluations, standing alone, [do not] create a genuine issue of triable fact when . . . there have been substantial alterations in the employee's responsibilities and supervision in the intervening period.'” (alteration in original) (quoting Fortier v. Ameritech Mobile Commc'ns, Inc., 161 F.3d 1106, 1113 (7th Cir. 1998))).

         A. Background

         Waite worked as a correctional officer in the Wood County Sheriff's Department Jail Division from October 23, 2002, until she was fired on April 12, 2013. As of March 2013, the Wood County Sheriff's Department employed nine male and nine female correctional officers.

         At the Wood County Jail, potential discipline for correctional officers is first investigated by the jail sergeant, who reports to the jail administrator; following their review, a proposed response is submitted to the sheriff for review. During the relevant period, Theodore Ashbeck was the jail administrator, Angie Jochimsen was the jail sergeant and Tom Reichert was the sheriff. Other Wood County employees included Ed Reed, the human resources director, and correctional officers Susanna Knapp, Ron Zager, Matt Crane, Byron Wirth, and Trzinski.[2]

         B. Waite's 2012 Performance Review

         Waite's annual evaluations from 2009-2011 indicate that her job performance met or exceeded requirements (2009-2011 Performance Reviews (dkt. #15-19) 2-7), but her October 24, 2012 annual review specified that she “[n]eed[ed] some improvement to meet requirements” regarding organizational ability, job knowledge and dependability, and criticized her for “not complet[ing] her daily tasks in a timely manner, ” “repetitively ask[ing] basic questions that she knows the answers [to], ” and “us[ing] the maximum number of sick days allowed for the 4th year in a row” (2012 Performance Review (dkt. #15-20) 2-3). Waite disputes whether this 2012 performance review accurately described her actual performance, adding that when confronted, her evaluator said that he had been told to give her that evaluation.

         The next day, October 25, 2012, Waite met with the sheriff and undersheriff to discuss her evaluation. Waite told them that she considered her evaluation to be harassment, adding that she had done everything asked and performed her tasks the same way that lead correctional officers Wirth and Zager did their tasks. Waite also expressed surprise that she would have to go through her experience in Adams County again (Waite Aff. (dkt. #27) ¶ 20), apparently referencing her gender discrimination lawsuit against another former employer, Adams County, although Waite does not put forward evidence that the sheriff or undersheriff knew what she meant. The County disputes this account, asserting instead that she stopped at the sheriff's office to “blow off steam.” Although not denying it, Sheriff Reichert also does not recall Waite implying that she was going to bring a gender discrimination suit, nor her referencing the earlier Adams County lawsuit.

         C. Waite's Disciplinary Actions in 2013

         In the first part of 2013, Waite's job problems continued to escalate. She was disciplined a number of times, including some penalties that were decreased through the grievance process. Waite alleges that each of these disciplinary actions resulted from a retaliatory period of intense scrutiny by the Sheriff's Department.

         1. Midnight Request for Time Off in Early January

         The first such claim of retaliation began after midnight on January 10, 2013, when Waite called the jail asking if she could come in late for her shift starting at 7 a.m. that morning. Waite alleges that she asked to use 2.5 hours of vacation time, while the County claims she said she was “too drunk” to work and asked for 2.5 hours of sick time. Jail Administrator Ashbeck called back later to ask how Waite was feeling and told her that he was reaching out because he had heard she had called in as too drunk to work. Waite told Ashbeck that that was not true, but rather her company had stayed too late that night. When Waite arrived at work later that day, she met with Administrator Ashbeck and Sergeant Jochimsen. When Ashbeck offered to refer her to the employee assistance program, Waite denied having a drinking problem, explaining that she had been joking with the staff during the earlier call requesting the time off. Administrator Ashbeck warned her against starting rumors about herself. She received a “Verbal Reprimand, ” which was reduced to “a non-disciplinary caution” following review of the grievance complaint by the County HR Director Ed Reed.[3]

         2. Events Leading to a Final Written Warning in February

         On February 15, 2013, Waite next received a “Final Written Warning” for events on January 31 and February 3, 4 and 12. (See Final Written Warning (dkt. #15-23) 2, 4.) The parties agree that on January 31, Waite was on speakerphone with a member of the public and that while on the phone, profanity was used, although they disagree by whom. The County alleges that Waite used profanity, while Waite alleges that another officer, Matt Crane, did. (See Def.'s Resp. to Pl.'s Resp. to Def.'s PFOF (dkt. #36) ¶ 53.) The parties also disagree about who witnessed this event. Regardless, Crane was not disciplined, and following this event, staff could not use a speakerphone to answer calls.[4]

         The parties also disagree about the events on February 3 and 4. The County asserts that on the 3rd, Waite was seen sleeping at work, and Waite told a colleague that she was having difficulty staying awake and had fallen asleep repeatedly. Waite disputes sleeping at work, and she denies making those statements because she was not even at work. Similarly, on the 4th, the County asserts that Waite was again observed sleeping at work, this time following several failures to respond to a colleague requesting a head count via radio. Waite disputes this as well, also averring that the 4th was a Monday, which would have made work too busy for her to fall asleep. Waite also avers that following her request for recordings of radio transmissions, she was informed that there were none due to an equipment malfunction.[5] Waite further disputes the County's assertion that she again admitted to difficulty staying awake following this second incident.

         Finally, on February 12, Waite reported to work after taking Vicodin earlier that morning. The County does not dispute that Waite did so enough hours before work that it did not impact her work. While the parties disagree who observed Waite's performance that day, they agree that Waite told Lead Correctional Officer Wirth about the Vicodin and that she felt “like an airhead, spacey and tired.” (Def.'s Reply to Pl.'s Resp. PFOF (dkt. #36) ¶ 61.) They also agree that Waite asked Wirth not to tell anyone and that Wirth was reprimanded for not reporting the Vicodin use up the chain of command.[6]

         3. February Meetings with Sergeant Jochimsen and Administrator Ashbeck

         The following day, February 13, Waite met with Jail Sergeant Jochimsen. During the meeting, Waite acknowledged telling Officer Wirth that she had felt “spacey and tired” the day before and had asked him not to say anything. Waite also admitted to difficulty focusing at work because of financial issues and to feeling tired all the time. Waite disputes admitting to falling asleep on February 3 or 4. The parties agree that Waite became upset during the February 13 meeting, but dispute the reason why. The County asserts Waite was upset because Jochimsen noted that she had not improved since her last evaluation, while Waite asserts she became upset because she felt targeted. Specifically, Waite alleges that she “wanted to know why the male officers were not being talked to about how they were doing their work.” (Pl.'s Opp'n (dkt. #19) 20). In contrast, the County asserts that April 12, 2013, was the first time Waite told Ashbeck and Jochimsen that she was being treated differently from male officers. The parties agree that Waite used profanity to express her frustrations during the February 13 meeting.

         On February 15, Waite met with Jail Administrator Ashbeck, as well as sheriff department investigator Shawn Becker. During the meeting, Waite received a verbal reprimand for her post-midnight call on January 10 and a “Final Written Warning.” At this meeting, Waite avers that she again complained about unfair treatment, identifying complaints about Officers Zager, Crane and Wirth not doing their jobs that resulted in no discipline. Waite further maintains that Ashbeck responded that he was not concerned about them, only about her. In response, the County contends that Waite again failed to identify disparate treatment based on sex as a concern at this meeting, and Ashbeck actually responded that he was focusing on her employment situation during that meeting and would separately address complaints about the other officers.

         During a conversation on February 19, Waite further avers that she informed Sergeant Jochimsen that she had contacted a lawyer to save her job. Following Waite's receipt of the Final Written Warning, Waite also filed a formal grievance, which resulted in the dismissal of some of the alleged violations, although the reprimand remained as a Final Written Warning.[7] The parties disagree whether Waite was required to participate in the employee assistance program, but agree that she received remedial training on her responsibilities as a correctional officer for five days (February 16-21, 2013).

         4. Two More Verbal Reprimands

         Waite received two, additional Verbal Reprimands for her conduct on February 27. First, she faxed three pages to the clerk of the Juneau County Court on behalf of a neighbor, who was involved in a child support proceeding, using a Wood County fax machine. For this, she received a Verbal Reprimand for using department property for personal purposes without getting permission first. The parties agree that Section 104.15.B of the Rules of Conduct states that “Employees shall not use any department property for private purposes unless permission is first obtained from the Sheriff or his designee, ” although Waite contends, with support from Officer Wirth, that this section was not followed. In response to Waite's assertion that “[e]mployees commonly used department equipment for personal purpose[s] and were not required to get permission, ” Wood County asserts that this was only because no one reported other personal use contemporaneously for investigation, emphasizing that there was still a policy requiring advanced permission. The “corrective action” listed on the disciplinary action form was that “[p]rior to using department property or equipment CO Waite will get permission from administration.” (Mar. 1 Disciplinary Action Form #1 (dkt. #15-27) 2.)

         The second reprimand resulted from Waite providing a receipt to a person who wanted to deposit $100 into an inmate's account and crediting that amount to the account, despite not yet receiving the $100. Waite explains that she did not collect the money because Officer Zager did and then handed it to her, but the County asserts this was only because Zager stopped the visitor to collect the money. Regardless, the parties agree that the typical protocol for depositing funds is for the correctional officer to collect the money before crediting the deposit and issuing a receipt, and Waite failed to follow this protocol. They likewise agree that the corrective action identified on the disciplinary action form was for Waite to “attach the money to the receipt being kept by the Wood County Jail to assure she has collected the money prior to giving a customer/visitor/inmate a receipt.” (Mar. 1 Disciplinary Action Form #2 (dkt. #15-28) 2.)[8]

         5. Waite Is Suspended for Locking Herself in a Cell with an Inmate

         The parties agree that on March 14, 2013, Waite got locked in a cell with an inmate, but disagree about the circumstances surrounding this event. Waite avers that this happened inadvertently; she had her radio and keys with her; she was in no danger; and there were other correctional officers nearby laughing at her. In response, the County does not concede that the occurrence was inadvertent, contests that she had neither her radio nor her keys, and disputes her assertion of other officers being nearby. Additionally, the County asserts that Waite banged on the cell door and yelled to get herself released. The parties also disagree about the seriousness of this event. There is no dispute that Waite received a one-day suspension.

         At the time, Waite told Sergeant Jochimsen and Administrator Ashbeck that others had previously locked themselves in cells with inmates. The parties dispute whether the County investigated this claim and whether that investigation resulted in no specifically identifiable occurrences. The County has identified three correctional officers (two male and one female) who subsequently received verbal reprimands for locking themselves in cells with inmates in October 2013 and May 2014.[9]

         Waite then met with Sheriff Reichert on March 15, 2013. Waite contends that she claimed the disciplinary action against her was the result of discrimination based on her sex, specifically identifying correctional officers Crane and Zager as having locked themselves in cells in the past. The County disputes that Waite told Reichert either of those things. Waite also told Reichert about other correctional officers allowing inmates to escape by leaving cell doors open -- without discipline -- and that a visitor had discovered Jail Administrator Ashbeck had put his gun in his gun locker but left the key in the locker door -- also without discipline. The County disputes all of these allegations as well. Waite further told Sheriff Reichert that she did not expect to have to endure the same kind of discriminatory treatment she endured in Adams County and that Reichert could stop it, explaining ...


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