United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
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.
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
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.
following facts are undisputed, except where
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
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.
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
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.
the course of the next year, Barcena made reports about
Benoy's work performance to Ignatoski and
Lefeber. 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.
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.
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.
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.
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.
also met with Hernandez and Alvarez. Both admitted to taking
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.
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 ...