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Schultz v. County of Chippewa

United States District Court, W.D. Wisconsin

February 15, 2019



          WILLIAM M. CONLEY District Judge

         Plaintiff Elizabeth (Beth) Schultz sued her former employer, the County of Chippewa, as well as the County's Highway Commissioner Brian Kelley and its Paving & Crushing Supervisor Phillip Montwill, claiming she was subjected to a hostile work environment, retaliation and finally constructive discharge, all because of her sex.[1] In response to defendants' motion for summary judgment, Schultz offers evidence that a male colleague was selected for a promotion over her because she had complained about another colleague's treatment of her, which forced her to resign. For the reasons discussed below, defendant's motion will be granted only as to plaintiff's hostile work environment and constructive discharge claims.


         A. Background

         In 2011, Chippewa County hired Beth Schultz as a seasonal employee to drive a truck hauling gravel and hot mix asphalt.[3] The following April, she was hired as an Operator II - Truck Driver and became a full-time employee. Throughout her employment, Schultz was a truck driver or engaged in related activities; in addition to hauling gravel and hot mix, she picked up trash, repaired road signs, plowed snow, and communicated with other drivers to coordinate. (Schultz Dep. (dkt. #24) 12:13-18; Schultz Decl. (dkt. #36) ¶ 4.) Schultz's essential job responsibilities included: (1) “[o]perat[ing] haul trucks and other assigned light and heavy construction equipment, machinery and tools for highway and bridge construction and maintenance, construction and maintenance materials handling and sand and gravel mining”; and (2) “[c]ommunicat[ing] with truck drivers and other operators to coordinate materials handling and delivery.” (Position Description (dkt. #37-1) 1.)[4] She did not have any supervisory responsibilities.

         Defendant Brian Kelley served as the “interim” and then Chippewa County permanent Highway Commissioner after the retirement of Bruce Stelzner in February 2016.[5] Before that, Kelley had been the County's Deputy Highway Commissioner since July, 2014. As Deputy Commissioner, Kelly was the direct supervisor of the other individual defendant, Phillip Montwill.

         Until February or March 2015, Chippewa County's Paving & Crushing Supervisor was Richard Brand. He reported to Deputy Commissioner Kelley as a mid-level manager, supervising 20-22 employees most of the year, including plaintiff Beth Schultz, as well as Kyle Craker and Matt Hartman. Brand gave the dump truck operators their assignments and provided instructions. Upon Brand's retirement in February 2015, defendant Montwill took over as the Paving & Crushing Supervisor.

         Chippewa County sold aggregate and asphalt. Some project bids required the hot mix or aggregate's quality be certified to establish that it was the proper size -- the certification made it “state inspected gravel.”[6] Until June of 2015, Matt Hartman served as an Operator IV-Lab/Timekeeper for the Highway Department, responsible for testing the hot mix and aggregate. Accordingly, Hartman (or his supervisor Brand) would certify the product's quality, including that the testing had been completed correctly.

         Hartman was also responsible for keeping track of the locations and hours worked by the paving crew, plant operators, and truck drivers, which he documented in an Excel spreadsheet. The parties dispute the types of equipment he operated while in this position, including whether he used a backhoe. (Defs.' Resp. to Pl.'s Add'l PFOF (dkt. #40) ¶¶ 25-27.) Regardless, Hartman supervised and worked with Schultz in this role.

         Beginning in 2013, plaintiff Schultz would fill in for Hartman when he was absent, and she also helped record time entries and test the asphalt or aggregate. (Hartman 10/2/18 Dep. (dkt. #27) 18:11-19:24.) More specifically, when Hartman was out, he would ask who wanted to assist with the timekeeping, and Schultz was the only volunteer. Deputy Commissioner Kelley and Supervisor Montwill knew that Schultz filled in when Hartman was absent. When serving as timekeeper, Schultz filled in timecards; prepared crew reports and Excel spreadsheets detailing equipment, time, and material charges, and she attached the receipts to crew reports.

         B. Schultz's Testing Experience

         When not filling in for Hartman, Schultz worked in the lab with him. Hartman trained Schultz on timekeeping and testing. As a result, she began performing aggregate testing daily when Hartman was absent, but also conducted testing when Hartman was present. She initially assisted approximately once a week in 2013, but later performed parts of the testing herself. The parties dispute whether she ran entire tests by herself in 2014 and 2015. (Defs.' Resp. to Pl.'s Add'l PFOF (dkt. #40) ¶ 46.) As to hot mix testing, it is undisputed that Schultz began assisting Hartman in 2014. In 2014 and 2015, she assisted with testing a couple times a month. The parties also dispute whether she independently ran these tests. (Id. at ¶ 50.)

         In March 2015, it is undisputed that Schultz attended training and became certified in aggregate testing. Other County employees, including Kyle Craker, also became certified. Schultz then became certified in hot mix testing.[7] Chippewa County paid for and arranged these trainings. Brand explained that Schultz was sent to these trainings so that if she replaced Hartman upon his retirement, she would be knowledgeable.

         There is conflicting testimony about whether Hartman told Montwill that Schultz performed testing independently or that she was always supervised while working in the lab. (Compare Hartman 10/22/18 Dep. (dkt. #30) 4:2-5:17 with Montwill Dep. (dkt. #23)

         39:5-40:5.) There is no dispute, however, that Hartman testified that he informed Montwill that Schultz was “very capable” of handling asphalt and aggregate testing. (Hartman 10/22/18 Dep. (dkt. #30) 5:9-17.)

         C. Schultz's Interactions with Webber

         Since 2005, Daniel Webber has worked as a truck driver for Chippewa County. During the summer months, Webber and Schultz would have daily contact, and during the winter, they had weekly contact because they were assigned to different sheds. In October or December 2014 when Schultz was filling in for Hartman, she made the rounds asking the truck drivers about their work location preferences. When she got to Webber, he rolled up his window and would not acknowledge her. He then disappeared with Bonnie Tylee, who also refused to take direction from Schultz. Schultz informed Kelley that she could not get all the sand hauled because she was down two trucks since Webber would not take direction from her.[8] Kelley noted that there were issues with Webber not wanting to run equipment and said that he would talk to Webber. (Schultz 4/19/17 Dep. (dkt. #24) 35:23-36:10, 36:24-37:4.) While Schultz did not know about any actions taken following her conversation with Kelley, Webber called Schultz the next day, and told her that “you're not my boss, I don't take orders from you” and “you don't belong in the lab, you belong in your truck. That's not your job.” (Schultz 4/19/17 Dep. (dkt. #24) 37:10-38:5.) Around this time, Webber was heard commenting to Brand “that's what happens when you hire a woman” (Hartman 10/2/18 Dep. (dkt. #27) 44:25-45:3), although he denies making that statement (Webber Dep. (dkt. #26) 18:10-13).

         For the last year and a half or so of Schultz's employment with Chippewa County, Webber generally stopped speaking to her. (Id. at 34:5-8.) Chippewa County truck drivers delivering materials to worksites communicate with later-arriving trucks about the jobsite, including driving instructions or directions, road conditions, project status, and safety information. Schultz contends that Webber refused to provide her with this information during this time. (Schultz Decl. (dkt. #36) ¶ 11.) Webber himself remembers communicating with Schultz only once via CB radio during that time period. (Id. at 49:12-20.) According to Schultz, that communication was an exception: from fall 2014 through August 20, 2015, Webber did not answer Schultz's attempts to communicate with him via CB radio. (Schultz Decl. (dkt. #36) ¶ 6.) Regardless, after October 2014, the only communication between Webber and Schultz was an occasional text. The parties agree that Webber did not harass Schultz via radio.

         This lack of communication extended to Webber getting up and leaving when Schultz entered a room, even if Webber was in the middle of a conversation. Schultz contends that when around her, Webber would snicker. Further, Schultz maintains that many of her colleagues were more cautious and reserved in their dealings with her if Webber was around. (Id. at ¶ 36.) Despite the County custom of keeping trucks in a line, with them loading and going out in that order, Webber also had other employees load before Schultz even though it was her turn. (Schultz 4/19/17 Dep. (dkt. #24) 25:14-26:10.)

         Finally, Schultz complains about a handful of statements made by Webber: (1) “we only have four more months to work with her” when she walked in the button house, after which Webber left and another employee laughed (Id. at 31:15-32:4); (2) statements about her giving Brand a blowjob or sleeping with him (Schultz 10/2/18 Dep. (dkt. #25) 62:3-14; Schultz 4/19/17 Dep. (dkt. #24) 30:19-31:5);[9] (3) a sarcastic suggestion in spring 2015 to Brand that “we should hire more women” while frustrated that Schultz had not reloaded her truck (Webber Dep. (dkt. #26) 18:17-19:7, 21:5-22:9); and (4) following Schultz's return to work after a domestic violence incident, Webber loudly said “I can see why her boyfriend beats her” as she walked by (Schultz 4/19/17 Dep. (dkt. #24) 28:9-29:9).[10]Schultz also contends that at Webber's direction, Bonnie Tylee went to the Safety Committee with concerns about Schultz's workers' compensation claim while she was on leave. (Schultz 10/2/18 Dep. (dkt. #25) 78:23-79:14.)

         In addition to her ongoing issues with Webber, Schultz now asserts generally that her colleagues often made off-color comments or told dirty jokes; one colleague stored Playboy magazines and hung a poster of a naked woman in the Cornell shed; and another kept dirty magazines and air fresheners shaped like naked women in his truck, which Schultz drove. (Schultz 4.19/17 Dep. (dkt. #24) 50:19-52:5, 52:16-25, 53:25-54:16, 54:23-56:5; 58:4-10.)

         D. Replacing Hartman

         In June 2015, Hartman retired from his position as Operator IV-Lab Timekeeper. At that time, the Highway Department had a number of different Operator IV positions with different designations. When the applicant search officially began, the goal was to look internally and externally, although the external search occurred first.[11] Deputy Commissioner Kelley and Montwill were responsible for deciding who to hire.

         1. Job Description

         The job description for the Operator IV-Lab Timekeeper position specified that “[e]quipment operating experience preferred.” (Operator IV-Lab Timekeeper Position Description (dkt. #21-2) 2.) On the NEOGOV posting for this position, it listed ten minimum qualifications, including: (1) “[m]inimum three (3) years['] experience in roadway materials testing”; (2) “[e]quipment operating experience preferred”; (3) ability “to operate a variety of equipment relating to construction and maintenance of roads and bridges”; and (4) “[c]ertifications as determined by the County based on the position.” (NEOGOV Posting (dkt. #37-4) 2.) The NEOGOV posting did, however, describe the position's job duties as “includ[ing] the ability to use a variety of heavy equipment for the construction and maintenance of roads and bridges.” (Id. at 1.)

         In May or June 2015, then Highway Commissioner Stelzner reviewed the position's written job description. The parties dispute whether the ability to operate a backhoe was a required qualification for this position. (Compare Operator IV-Lab Timekeeper Position Description (dkt. #21-2) 3 with NEOGOV Posting (dkt. #37-4) 1-3 and Stelzner Decl. (dkt. #35) ¶ 7.)[12] Likewise, the parties disagree about whether Hartman operated -- or was proficient in operating -- a backhoe while in the Operator IV-Lab Timekeeper position.[13](Defs.' Resp. to Pl.'s Add'l PFOF (dkt. #40) ¶¶ 125-26.) The parties agree that Schultz could not run a backhoe.

         2. Schultz's Application and Interviews

         Defendant Montwill called Schultz to tell her to apply for Hartman's job while she was on workers' comp leave.[14] She immediately completed the online application, and hers ended up being the only application received for the Operator IV-Lab Timekeeper ...

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