United States District Court, E.D. Wisconsin
DENISE GABLER and PETER A. PFAU, Plaintiffs,
CITY OF MILWAUKEE, Defendant.
DECISION AND ORDER
ADELMAN District Judge.
Gabler and Peter Pfau bring this action alleging that their
employer, the City of Milwaukee, retaliated against them in
violation of Title VII of the Civil Rights Act of 1964 for
opposing unlawful and discriminatory employment
practices. Defendant moves for summary judgment. I
must grant summary judgment on each claim on which summary
judgment is sought “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). In addressing a summary judgment motion, “[t]he
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
have worked for the Milwaukee Police Department (MPD) since
the 1990s. By 2007, they had both been transferred to the
MPD's Police Academy, where they worked as instructors in
the Firearms Section.
years, plaintiffs worked with another instructor named Ted
Puente. Pfau describes Puente as a “bully” who
“always called [him] gay” and “would go on
his computer, . . . photo-crop [Pfau's] face on guys
running in drag or guys doing sexual acts, ” and post
“that around the office where everyone could
see.” Pfau Dep., Pfau Decl. Ex. 1, ECF No. 80-1, at
64:11, 70:6, 109:10-:15. Gabler says that, “[d]aily, .
. . if not several times a day, ” Puente addressed her
using terms like “cunt, ” “clam, ”
“dumb bitch, ” and “whore” and that
he made “comments about [her] fertility issues”
and “adopting children, ” such as
“don't get any nigger babies, they all do crack and
you'll end up with a crack baby.” Gabler Dep.,
Gabler Decl. Ex. 2, ECF No. 78-1, at 59:14-:15, 62:5,
140:12-:24. Sergeant Joseph Seitz, supervisor of the firearms
instructors in 2012, says that Puente “called [him] a
Jew” in order “to stimulate [him] to spend more
money.” See Seitz Dep., Gabler Decl. Ex. 6,
ECF No. 78-7, at 10:15, 11:1-12.
and others at the Academy also describe threatening or unsafe
behavior by Puente. Pfau says, “[Puente] would be in
cleaning one of his guns, . . . and he would point it at me,
. . . and go, ‘Do you wonder if it's
loaded?'” Pfau Dep., supra, at 326:8-:13.
Seitz says that Puente “muzzle swept [him] once,
” though he doesn't “know if it was
intentional or not.” Seitz Dep., supra, at
16:19-17:4. Gabler heard “rumors that [Puente] had . .
. threaten[ed] to kill people in [the] unit.” Gabler
Dep., supra, at 24:4-:5.
11, 2012, Puente got into an argument with another instructor
in the Firearms Section office, where plaintiffs, Seitz, and
others were working. Pfau and Seitz tried to “lighten
the mood” by playing video clips on their computers.
See Seitz Dep., supra, at 20:14-21:14.
Then, Puente said, “[T]hat's it, motherfucker,
you're the first one I'm going to kill, ”
Gabler Dep., supra, at 29:15-:17, or
“something to [that] effect, ” see Seitz
Dep., supra, at 21:15-:17 (“[Y]ou're the
first one I'm going to take out . . . .”); Pfau
Dep., supra, at 34:21-:22 (“You're the
first one I'm going to fucking kill.”), which they
took as a threat directed toward Pfau, see Id. at
36:3-:5; Gabler Dep., supra, at 39:15-:19; Seitz
Dep., supra, at 21:19-:20. The MPD suspended Puente
the next day and transferred him from the Academy to a
position in MPD District 7 a few weeks later.
2012 and into 2013, plaintiffs had to attend review sessions
on departmental policy and were interviewed by the MPD's
Internal Affairs Division (IAD), which investigated the May
11, 2012, incident, as well as a cross-complaint that Puente
filed against Pfau alleging harassment. Plaintiffs felt
ostracized by their co-workers and like their superiors were
marginalizing and minimizing their concerns about
Puente's harassment, his threat against Pfau, and the
MPD's response. During this time, Pfau had a training
request denied and his name was removed, without explanation,
from the schedule to work at Milwaukee's Juneteenth Day
festival, which he had done for years.
March 2013, plaintiffs filed charges with the U.S. Equal
Employment Opportunity Commission (EEOC) and the Wisconsin
Department of Workforce Development's Equal Rights
Division (ERD) alleging sexual harassment by Puente and
ongoing retaliation by the MPD.
April 2013, Sergeant Justin Sebestyen, who had replaced Seitz
as plaintiffs' supervisor, wrote a memo to the director
of the Academy, Captain Victor Beecher, accusing Gabler of
inappropriate “verbal outbursts” about her
“workload, ” among other things. See
Beecher Dep. Ex. 58, ECF No. 80-22. That September and the
following January, Sebestyen filed performance reviews
criticizing Gabler for “express[ing] her displeasure
verbally” and recommending that she be “cognizant
of her negative verbalization when around her co-workers and
speak with a supervisor if concerns arise.”
See Gabler Decl. Ex. E, ECF No. 78-15; Gabler Decl.
Ex. G, ECF No. 78-17.
December 2013, plaintiffs received notice of their right to
sue from the EEOC. Soon thereafter, a sergeant from IAD told
Pfau that Ted Puente's brother, then a Milwaukee
alderman, had complained to the MPD about Pfau staring at him
in a way that made him “uncomfortable” and
“scared.” See Pfau Dep., supra,
at 163:14-164:4. The sergeant indicated that “someone
of high rank” would talk to the alderman and
“squash” his complaint. Id. at
January 2014, Pfau planned to attend a weeklong firearms
trade show and training event in Las Vegas but had to cancel
those plans when he was transferred from the Academy to MPD
District 3. Pfau met with Captain Jason Smith in District 3
and told Smith that he would like to join “the bicycle
unit.” Id. at 190:8-:10. Within a few months,
Pfau took an open bike position “in the Marquette
Area.” See Id. at 192:1-:13. Gabler heard that
she was supposed to be on the same transfer order as Pfau,
but her Academy replacement got injured, so she was never
March 2014, plaintiffs filed their complaint in this action,
and local news outlets like the Milwaukee Journal
Sentinel publicized their allegations. Soon thereafter,
a supervisor called Pfau at home and told him that he was
“back on the squad car” and “no longer on
the bikes.” See Pfau Dep., supra, at
195:12-197:13. Gabler was on maternity leave at the time.
April 2014, Gabler returned from maternity leave needing a
place to pump breastmilk twice a day. At first, she used a
locked closet near the gym in the Academy building, which
required that she go to the front office to get the key and
then return the key when she was done. See Gabler
Dep., supra, at 91:12-:22. After about two weeks,
Sebestyen told her to “stay out of the front office,
” to “stop walking around the building, ”
and not to “leave the floor”-that is, the
basement of the building, where the firearms range is
located-which “posed a problem” because the
closet where Gabler had been pumping was on a different
floor, as was the locker ...