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Coleman v. City of Wausau

United States District Court, W.D. Wisconsin

June 18, 2018

JANET M. COLEMAN, Plaintiff,
v.
CITY OF WAUSAU, Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         Pro se plaintiff Janet Coleman filed suit against her former employer, the City of Wausau, claiming discrimination based on race, sex, age, and religion, as well as claims for a hostile work environment and retaliation. Plaintiff further asserts claims for violation of her due process rights arising out of her termination. Before the court is defendant's motion for summary judgment as to all of these claims, except as to denial of due process. (Dkt. #10.) While plaintiff submitted a brief in opposition to defendant's motion, she cites no specific, admissible evidence contradicting defendant's proposed facts, choosing instead to rely on her complaint, which is not verified (sworn to as true under penalty of perjury).[1] She also did not submit an affidavit or declaration setting forth her personal knowledge. Despite the court's specific warnings in the preliminary pretrial conference order (see e.g., dkt. #9 at 7) as to the consequences and defendant's reliance thereon (see dkt. #17 at 1), this court would normally accept the factual assertions in a pro se plaintiff's complaint as her own to the extent conceivably based on personal knowledge.[2] In this case, the result is the same even if plaintiff had submitted a sworn statement detailing the allegations contained in the complaint. Accordingly, defendant's motion will be granted. Although the City did not formally move against plaintiff's due process claims, there also appears to be no factual or legal basis for them. Accordingly, plaintifwill be given until July 11, 2018, to advise why the court should not also grant summary judgment on her remaining due process claims consistent with Fed.R.Civ.P. 56(f).

         UNDISPUTED FACTS[3]

         A. Coleman's Employment with Metro Ride

         Plaintiff Janet M. Coleman is 59-year-old, African American woman, who worked as a bus operator for the City's Metro Ride subdivision. Metro Ride provides public transit within the city and surrounding area. Coleman was hired in November of 1999 and fired on June 3, 2014. (Coleman Dep. (dkt. #14) 19:9-11.) During her employment, she was the only African American woman employed by Metro Ride and one of the older employees. Her direct supervisor was Steve Brinkman, who is Caucasian.

         As a bus operator, Coleman's main task was to drive a public bus safely along the bus route, making scheduled stops along the way, while complying with traffic regulations and Metro Ride policies. (Job Description (dkt. #13-2) 2.) In addition to having a Wisconsin commercial driver's license, Coleman was expected to be “punctual, reliable and maintain regular attendance in order to contribute individually to the efficient and effective delivery of transportation service to the general public.” (Id. at 2-3.) These requirements are consistent with Metro Ride's need to provide punctual and reliable service to its customers or risk loss of business and ultimately operational failure. (See Burek Aff. (dkt. #13) ¶ 23.) The importance of reliable and punctual services is highlighted by the fact that passengers frequently transfer from one bus to another, with each transfer often being time-sensitive. (See id.)

         From January 2010 through June 2014, Metro Ride issued 34 formal reprimands to bus operators for tardiness or being absent without permission. (Discipline Review Chart (dkt. #13-25) 2-3.) Of these, 16 received verbal reprimands, 9 received written reprimands, and 9 received suspensions. (Id.) The employees who received these disciplinary actions fit the following demographics: 12 white men, 1 black man, 1 white woman, and 1 black woman (Coleman). (Id.) Coleman received the most -- seven --reprimands for being tardy; a white man, Adrian Rinehart-Balfe received five; and the other individuals listed each received no more than three reprimands. (Discipline Review Chart (dkt. #13-25) 2-3.)

         Bus drivers are covered by a collective bargaining agreement between Local 1168, Amalgamated Transit Union (the “Union”) and the City. (Burek Aff. (dkt. #13) ¶ 10; see also Coleman Dep. (dkt. #14) 77:10-12.) That CBA gives management “the sole right to operate its operations, ” including to discipline or discharge “for just cause, ” to “take whatever action [is] necessary to comply with State and Federal Law, ” and to “establish work rules.” (CBA (dkt. #13-6) 6-7.)

         The rules governing the bus operator position are outlined in the Metro Ride Operator's Manual and Discipline Guide, which is given to each employee at hiring and with each update. The most recent version of the Discipline Guide leading up the events in this case was distributed in April 2010. When four or more violations occur within six months, the Operator's Manual explains that the employee is subject to a written reprimand or suspension on the fourth offense and to suspension or dismissal on the fifth. (Discipline Guide (dkt. #13-5) 4.)

         Over the course of her 14½ year tenure, Coleman received 20 verbal reprimands, 18 written reprimands, and one suspension. (See Disciplinary History (dkt. #13-7) 1; Disciplinary History Pt. 2 (dkt. #13-8) 1; Disciplinary History Pt. 3 (dkt. #13-9) 1.) By April 2014, Coleman had received at least four reprimands within the prior six-month period and she was informed on April 23, 2014, that any additional formal reprimands before the middle of June would result in her termination. (See Coleman Dep. (dkt. #14) 36:14-18 (testifying that the “meeting was to address . . . the fact that [she] had . . . five occurrences within a six-month period, and that was grounds for termination”).) Specifically, from the middle of December through the middle of April, Coleman received written or verbal reprimands for (1) failing to stop at a railroad crossing in violation of law, showing poor judgment; (2) failing to notice that the tail of her bus hit a disabled stationary vehicle; and (3) four instances of arriving to work late, ranging from one minute to twenty minutes late. (Disciplinary History (dkt. #13-7) 3; Disciplinary History Pt. 2 (dkt. #13- 8) 2-5; Disciplinary History Pt. 3 (dkt. #13-9) 2.) Coleman acknowledges that the discipline she received for coming in late was not discriminatory. (Coleman Dep. (dkt. #14) 60:4-10.)

         Coleman received a final discipline -- resulting in her termination -- for failing to notify her employer that her commercial driver's license was suspended and then driving the bus six times with the suspended license. (Disciplinary History Pt. 3 (dkt. #13-9) 3, 5.) The Operator's Manual required employees “immediately” to report if “a C.D.L. is refused, revoked, suspended, or lost.” (Operator's Manual (dkt. #13-4) § 2.02.) Coleman driving buses without the appropriate licensure exposed Metro Ride and the City to the risk of significant liability. (Burek Aff. (dkt. #13) ¶ 17.)

         B. Grievance Process

         Following her termination, Coleman met with her Union representative and inquired why she did not have representation, “how come the union ha[d]n't stepped in, ” why she “didn't have a chance to defend [her]self, ” and why she “didn't have a chance to give evidence or anything” before she was terminated. (Coleman Dep. (dkt. #14) 77:21-78:15.) The Union filed a grievance on her behalf on June 12, 2014, which the City denied six days later, noting that much of the dispute concerned the validity of the suspension of her commercial driver's license.[4] (See Grievance Step 1 (dkt. #13-14) 2, 5.) In part, the City relied on Coleman's statements during the grievance meeting, which confirmed her knowledge of the suspended license. (Id.) The Union then pursued “step 2” of the grievance process on June 25, 2014, which was denied on August 1, 2014. (Grievance Step 2 (dkt. #13-15) 4; Grievance Step 2 Pt. 2 (dkt. #13-16) 3.) The Union proceeded to “step 3, ” which required review by the City's Human Resources Committee, but that appeal was considered untimely. (See Grievance Step 3 (dkt. #13-17) 1.) The City also denied Coleman's grievance on the merits. (Id.) Almost a month later, on October 5, 2014, the Union “decided to not move the grievance onto Step 4.” (Grievance Step 4 (dkt. #13-21) 1.) Coleman was at the Union meeting where the members voted against proceeding, which would have required the Union to provide her an attorney. (Coleman Dep. (dkt. #13) 95:24-96:25.)

         C. Coleman's Allegations

         The heart of Coleman's race discrimination claim dates further back to an incident from 2009, involving her bringing her bus into the garage.[5] The process of bringing a bus into the garage takes about three minutes. The parties disagree about when the driver needs to exit the bus: the City contends that the driver needs to get out to close the door, while Coleman contends that the driver needs to get out to open the door. According to the City, on one occasion in 2009, Coleman drove her bus into the garage and shouted to Steve Brinkman “Hey Steve, go close the door for me.” He responded “If you're too lazy to get out and close it yourself, I'll do it, but don't order me to do it.” (Burek Aff. (dkt. #13) ¶ 29.)[6] According to Coleman, she was about to pull her bus into the garage when she saw Brinkman getting out of his car. He did not offer, so she asked him if he was going to open the door for her; he responded by calling her lazy and opening the door. (Coleman Dep. (dkt. #14) 44:8-25, 45:22-46:9, 47:3-4.) Coleman acknowledged that “lazy” is “not a racial comment” on its own, rather, she argues that it is reflective of “the mentality of some people about African American people, that they're just lazy people.” (Id. at 46:10-13.)[7]The parties agree that Coleman complained to the Union, resulting in a meeting to address her concern and the comment. Brinkman received training and apologized to Coleman. (Burek Aff. (dkt. #13) ¶ 29.)

         Because of this 2009 incident, Coleman claims that Brickman retaliated against her. Specifically, when she returned from leave after a slip and fall in February 2014, more than four years later, Coleman contends that Brinkman retaliated by ignoring and then yelling at her after she asked him for supplies while he was counting money. (Coleman Dep. (dkt. #14) 38:21-39:3, 39:11-15, 39:18-40:22, 42:17-43:8.) After complaining about Brinkman's behavior to a supervisor, Coleman was instructed to tell Peter Burek, the transit operations manager, which she did. (Id. 40:23-41:5.) Burek then purported to speak with Brinkman, who reported that he thought Coleman had asked something else. Regardless, Brinkman was not required to apologize. (Id. 41:6-42:4.) Explaining that Brinkman had “a reputation” for “picking on the black kids” riding his bus, “writing reports up on them and getting them kicked off the bus, ” Coleman also claims that Brinkman's behavior was racially motivated. (Id. 54:10-55:19, 56:23-57:14.)[8]

         Coleman also complains that Brinkman monitored her job performance more closely than her colleagues' performance, and his scrutiny made her uncomfortable. (See Id. 31:1-32:10.) When she complained to her Union representative, Coleman was advised to speak with Greg Seubert, the transit director. In an April 2014, meeting with Burek and Seubert, Coleman was informed that they had asked Brinkman to observe her because of a complaint that she started late. (See Compl. (dkt. #1) 4.) Coleman's colleagues typically arrived for sign-in at 1:45 p.m., while Coleman was typically the last to report, often arriving at 1:50 on the dot.[9] (Burek Aff. (dkt. #13) ¶ 25; Compl. (dkt. #1) 4 (“I would report for my position at the start time and not before.” (capitalization altered)).) Coleman would clean her bus before taking it out, making her miss the shuttle, so that she needed to drive a bus up to her route to arrive on time. (See Coleman Dep. (dkt. #14) 60:19-63:2.) Coleman acknowledged that Brinkman did not like her. (Id. 54:7-9.)

         Coleman also questions whether religious discrimination contributed to her termination based on a complaint Metro Ride received in August 2013, concerning a conversation she had with someone on her bus about marriage, with references to the bible. (Compl. (dkt. #1) 6 (“Now I've lost my position, so that puts me in a position to ask the question did my view on the bible an[d] marriage contribute to my termination?” (capitalization altered)).) While Coleman alleges that this conversation was with a friend and concerned the friend's impending marriage, the parties agree that a complaint was made about this bus conversation.[10] Moreover, Coleman contends that Burek complained about her reportedly “preaching” during the conversation, while Coleman was merely “exercising a religious right on . . . city transportation.” (Id. 73:22-74:10.) Coleman further alleges that the resulting discipline she received is part of why she was fired, but that is contradicted by her disciplinary file. (Compare Coleman Dep. (dkt. #14) 75:15-17 (“Q: So it's part of the reason for your termination; correct? A. Part of my reason for termination.”) with Disciplinary History Pt. 3 (dkt. #13-9) 5 (noting that the discipline on June 3, 2014 for failing to report her suspended license “will be your sixth (6) formal discipline in less than six months”) and id. at 7 (showing “Improper or Unnecessary Conversation with Passenger” in August as the eighth disciplinary action).)[11]

         Finally, plaintiff also alleges that about a year after she began working, a mechanic smacked her rear; she went to management and was informed it was ...


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