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Gabler v. City of Milwaukee

United States District Court, E.D. Wisconsin

May 7, 2018



          LYNN ADELMAN District Judge.

         Denise 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.[1] 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 (1986).

         I. BACKGROUND

         Plaintiffs 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.

         For 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.

         Plaintiffs 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.

         On May 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.

         Throughout 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.

         In 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.

         In 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.

         In 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 164:19-165:12.

         In 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 transferred.

         In 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.

         In 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 ...

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