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Benoy v. Board of Regents of University of Wisconsin System

United States District Court, W.D. Wisconsin

February 14, 2019

MARTHA BENOY, Plaintiff,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, Defendant.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Plaintiff Martha Benoy was a custodian for University Housing at the University of Wisconsin-Madison. She alleges that she was fired in retaliation for opposing sex discrimination, in violation of Title VII of the Civil Rights Act. Defendant Board of Regents of the University of Wisconsin System has filed a motion for summary judgment, Dkt. 21, which is now briefed and ready for decision.

         The court will grant the motion. The undisputed facts show that Benoy was fired because her supervisors believed that she was involved in stealing a chair from an apartment. No reasonable jury could find that this reason was pretextual or that her opposition to sex discrimination influenced the decision to fire her.

         Also before the court is Benoy's motion for leave to amend the complaint and add a claim for retaliation for opposing race discrimination in violation of 42 U.S.C. § 1981. Dkt. 16. The motion is untimely, but even if it weren't, the amendment is futile. It does not matter whether Benoy's protected activity is framed as opposition to sex discrimination or opposition to race discrimination. Either way, there is no causal link to her termination.

         UNDISPUTED FACTS

         The following facts are undisputed, except where noted.[1]

         Benoy started working as a custodian for University Housing in 2008. And in 2011, she was assigned to work at University Apartments, a department within University Housing that provides apartments for graduate students and students with families.

         Benoy is Latina. In May 2014, she filed a grievance with three other Latino custodians, Elida Senn, Ricardo Victor, and Noelia Hernandez. The grievance said that their supervisor, Mario Barcena, was unfairly scrutinizing Latinos and assigning them the “hardest” apartments. Dkt. 40, ¶ 12. In response, Kelly Ignatoski, the director of university housing, met with Barcena and the group. On June 17, Ignatoski wrote a memo that set new guidelines for how Barcena should interact with his staff in the future. Dkt. 24-1. But Ignatoski continued to receive the same type of complaints about Barcena, so she spoke to him again about how his behavior was being perceived by his employees.

         Barcena did not think that he deserved to be disciplined for race discrimination. He voiced his “discomfort with this whole thing” to Ignatoski. Dkt. 30 (Barcena Dep. 39:13-16). He also told Benoy and the other employees about “everything that he was going to do to” the employees as revenge for the group grievance, Dkt. 28 (Benoy Dep. 47:15-48:16), but Benoy cannot remember any specific threats.

         After the group complaint, Benoy and two other employees also told Ignatoski “multiple times” that Barcena was sexually harassing them. Dkt. 28 (Benoy dep. 56:9-19). (The parties do not say when or how often these discussions occurred.) Benoy cannot recall the details about what she told Ignatoski, except for one time when she complained that Barcena grabbed Hernandez's buttocks and told Benoy that she needed “a shot from a man.” Id. at 56:23-58:16. Benoy and her coworkers also spoke to Gebriel Lefeber, the director of apartment facilities, about Barcena's sexual harassment.

         Over the course of the next year, Barcena made reports about Benoy's work performance to Ignatoski and Lefeber.[2] He said that Benoy was generally a good worker, but that sometimes she had an attitude and would not do her work. Dkt. 30 (Barcena Dep. 47:12-48:12). It's not clear from the record how often Barcena criticized Benoy's work, except for Barcena's testimony that he talked to Ignatoski and Lefeber about Benoy “from time to time.” Id. at 48:10-12.

         On October 30, 2015, a resident in University Apartments notified Lefeber that two patio chairs had gone missing from his porch. He told Lefeber that he saw two Hispanic female custodians sitting in his chairs earlier in the day. In response, Ignatoski and Lefeber opened an investigation. Although the incident involved Barcena's employees, Ignatoski chose not to involve Barcena because of tensions between him and his subordinates.

         After seeing photographs, the resident identified Benoy and Elvira Alvarez as the two custodians who sat in his chairs the day they were stolen. Three days later, one chair was found in the back of a utility vehicle assigned to Alvarez. The other was found in a vacant apartment unit that Benoy was assigned to clean with her work partner, Noelia Hernandez. The apartment was about 540 square feet, and, except for the stolen chair, unfurnished.

         Benoy was aware that University Housing had a zero-tolerance theft policy. The unauthorized removal of any property belonging to students, residents, or guests is considered theft. And if an employee is discovered stealing, he or she may be terminated, even if it is the first offense. Under the policy, it does not matter whether an employee took property off the worksite or simply took the property to another apartment.

         A week after finding the chairs, Lefeber met with Benoy and told her that she was being investigated for possible theft. Benoy verified that she had been working in the apartment unit where the chair was found, and she admitted that she had sat in a resident's chair without the owner's permission (University Housing policy requires workers to use university-owned chairs while on breaks). Benoy was placed on paid administrative leave pending the results of the investigation.

         Lefeber also met with Hernandez and Alvarez. Both admitted to taking the chairs.

         On November 24, both Lefeber and Ignatoski met with Benoy. Benoy complained that she was being investigated because she is Latina. She said that she didn't know who took the chairs, that she did not know who put the chair in the apartment unit, and that she did not even see the chair when she was in the apartment unit. She acknowledged that she was work partners with Hernandez, and that Benoy and Hernandez shared a utility vehicle at work.

         On January 6, Ignatoski and Lefeber met with Brenda Krueger, the director of human resources, and they decided to fire Benoy. It's undisputed that all three supervisors agreed on this decision, Dkt. 41, ¶ 73, but the parties dispute whether Ignatoski was the primary decisionmaker. Dkt. 40, ¶ 32. The university says that all three came to the decision together. But Benoy contends that Ignatoski made the initial decision, and that Lefeber then agreed with it because Ignatoski was her boss. See Dkt. 29 (Lefeber Dep. 38:4-12). In ...


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