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Demers v. County of Barron

United States District Court, W.D. Wisconsin

May 29, 2019

JAMES DEMERS, Plaintiff,



         After plaintiff James Demers questioned defendant Barron County's practice of not paying jail staff for time spent in a briefing before the start of their shift, he alleges that the County retaliated by initially demoting him and later constructively discharging him in violation of the Fair Labor and Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3). Following discovery, the County filed a motion for summary judgment (dkt. #19), which the court will deny in part because plaintiff has put forth sufficient evidence from which a reasonable jury could conclude that he was demoted because of conduct protected by the FLSA. However, the court will grant defendant's motion to dismiss his constructive discharge claim because plaintiff cannot meet the demanding, objective standard established by the Seventh Circuit based on the limited evidence he has produced.


         A. Background

         James Demers began his employment with the County as a part-time correctional officer for the Sheriff's Department in 2002. A year later, Demers became a full-time employee.

         In July 2010, Sheriff Chris Fitzgerald temporarily appointed Demers Jail Sergeant, then he formally appointed him to that position in December 2010. Jail Sergeants report to the Jail Captain (or Administrator), who in turn reports to the Chief Deputy, who ultimately reports to the Sheriff. Jail Sergeants supervise correctional officers.

         Fitzgerald has been the sheriff of Barron County since August 2008; Chief Deputy Jason Leu has served in that capacity since 2003; and the current Jail Captain, Tim Evenson, has served as such since October 2013. Before Evenson, Ron Baures was Jail Captain from May 2012 to October 2013, with Mark Evans serving in the same role before that.

         As Sheriff, Fitzgerald was responsible for ensuring that policies, procedures and rules of the Sheriff's Department were carried out. As Jail Captain, Evenson was responsible for the overall management of the jail, its staff and operations, including ensuring that shift changeover was completed according to the policy.

         B. Demers' Performance History as Jail Sergeant

         1. Incidents in 2012 and 2013

         In 2012, then Jail Captain Baures had a series of discussions with Sergeant Demers about his performance. On August 1, 2012, Captain Baures spoke with Demers about his improper use of sick time. Specifically, Demers was called out for using sick time to shop at Menards, a home improvement store. Defendant characterizes this event as a “verbal reprimand, ” although Baures' contemporaneous note from that day describe it as “verbal reminder.” (Hanson Decl., Ex. 4 (dkt. #33-4) 1.) During this same time period, Baures also testified at his deposition that he believed Demers was not happy with Baures, did not agree with Baures' decisions and was undermining him. In a note dated December 28, 2012, Captain Baures also purported to summarize a contemporaneous meeting that Sheriff Fitzgerald, Chief Deputy Leu and he had with Demers concerning emails between Demers and other staff members that Baures described as “unprofessional.” (Hanson Decl., Ex. 5 (dkt. #33-5).) The note includes three emails sent by Demers in late December 2012. According to Baures' note, Sheriff Fitzgerald and Deputy Leu informed Demers “that the emails sounded too harsh and basically could have been re-worded to sound more professional.” (Id. at 2.) While Baures noted that Demers seemed “receptive and [was] anticipated to comply with our recommendations, ” Baures also noted that Demers was specifically warned “if such actions continue, he could possible be demoted or other actions taken.” (Id.) Even so, no disciplinary action was taken at that time either.[2] At his deposition, Baures even testified that he believed the issue was addressed and resolved. (Baures Dep. (dkt. #24) 9-10.) Accordingly, Baures did not view his note as a written or verbal warning. (Id.)

         On June 1, 2013, however, Demers did receive a Letter of Discipline from Sheriff Fitzgerald concerning a telephone call he allegedly made to a citizen that was harassing and threatening. (Hanson Decl., Ex. 6 (dkt. #33-6).) As context, the citizen was Demers' former brother-in-law, who Fitzgerald acknowledged “wasn't the most outstanding citizen of Barron County.” (Pl.'s Add'l PFOFs (dkt. #40) ¶ 222.) Still, Demers acknowledged making the phone call and believed the discipline was appropriate.

         2. 2014 and 2015 Performance Evaluations

         Having replaced Baures as Jail Captain in October of 2013, Evenson completed and signed Demers' performance evaluation on March 27, 2014. The evaluation had two options for rating -- meets expectations and needs improvement. In each of the performance objective categories -- customer service, safe working environment, good judgment, works well with others and care of equipment -- Evenson gave Demers a rating of “meets expectations” and also gave an overall performance rating of “meetings expectations.” (Hanson Decl., Ex. 30 (dkt. #33-30).)

         On May 29, 2015, Jail Captain Evenson also completed Demers' annual performance evaluation. For this review, there were four possible ratings: exceeds expectations, achieved expectations, developing performance and did not achieve performance. The No. of performance objective categories for this evaluation was expanded to nine. For each of these, Evenson rated him as achieved expectations, specifically commenting under the category “interpersonal skills / teamwork / commitment” that Demers “works well with staff, promotes teamwork.” (Id., Ex. 28 (dkt. #33-28).) For other categories, Evenson provided similar positive comments, such as “[a]lways willing to try new things, ” “communicates well, ” and “[v]alued member of the department.” (Id.)

         3. Incidents in 2016

         However, employment matters worsened substantially for Demers during 2016. On February 29, 2016, Jail Captain Evenson and Deputy Chief Leu met with Sergeant Demers to discuss a “negative atmosphere” on his shift. (Def.'s PFOFs (dkt. #21) ¶ 36.) Demers does not dispute that this meeting took place, but disputes that there was actually a “negative atmosphere” during his shift. If true, Demers nonetheless acknowledged that he would take the blame for that. During the February 29 meeting, Captain Evenson instructed Demers to communicate with him more, or at minimum Demers understood following this meeting that if there were issues going on in the jail, he should communicate with Evenson about those issues. Again, however, documentation of this meeting is not labeled as a verbal or written warning. (Hanson Decl., Ex. 7 (dkt. #33-7).)

         a. Body Cameras

         On March 9, 2016, Jail Captain Evenson and Chief Deputy Leu also met with Sergeant Demers, along with corrections officers Tammy Luther and Chad Smith, about their failure to wear body cameras. In January 2016, Sheriff Fitzgerald had issued a directive that body cameras were to be worn by all Department personnel while on duty, including jail officers and sergeants, whose cameras were to be turned on whenever they had contact with an inmate. While Demers testified at his deposition that he understood this directive, a report revealed that two jail officers on his shift, Luther and Smith, had not activated their body cameras during multiple shifts. In addition, Demers had not been wearing his body camera, at least on March 10. As he testified at his deposition, he forgot to put it on.

         The Sheriff's Department has a Policy and Procedures Manual, sections of which are relevant to the parties' dispute. With respect to the body camera requirement, Policy 200-1-3 Insubordination requires employees to follow orders of their commanding officers. Specifically, the policy provides that “[f]ailure to follow orders and show proper respect for the authority and rank of commanding officers constitutes insubordination and will not be tolerated.” (Def.'s PFOFs (dkt. #21) ¶ 18 (quoting Hanson Decl., Ex. 2 (dkt. #33-2) 3).) Insubordination is defined as “[d]isobedience of a lawful order or directive, whether written or oral.” (Pl.'s Resp. to Def.'s PFOFs (dkt. #41) ¶ 18 (citing Hanson Decl., Ex. 2 (dkt. #33-2) 3).) The policies and procedures also provide that “[t]he maintenance of the department's command structure is every employee's responsibility regardless of rank or position.” (Id. at ¶ 19 (quoting Hanson Decl., Ex. 2 (dkt. #33-2) 3).)

         On March 10, 2016, Demers was issued a Written Reprimand, stating that he was being reprimanded for failing to follow the body camera policy and for insubordination. (Hanson Decl., Ex. 8 (dkt. #33-8).) The last sentence of the document stated, “I am also informing you that any further incidents of this nature will result in more serious sanctions, which may include demotion or termination.” (Id.) The Written Reprimand was signed by Captain Evenson and Sergeant Demers. While Demers does not dispute any of this, he points out that the same report prompting the meeting on March 9 indicated that two other officers on his shift were using their body cameras as directed. At the time of this written reprimand, Demers further points out that Deputy Chief Leu did not have any discussions with Evenson about demoting Demers.

         b. Shift Turnover

         The Policy and Procedure Manual also contains a “Correction Officer Post Orders” section, identified as Policy C-900. The policy defines “Shift Turnover” as “the off-going officer informs the on-coming officer of pertinent information regarding the previous shift or any areas of concern or problems relevant to the management of the housing unit, post assigned, or facility as a while. (Hanson Decl., Ex. 11 (dkt. #33-11) 1.) “Shift Briefing” is defined as “gathering of an on-coming shift and a shift supervisor for the relay of pertinent information, special assignments or activities that need to be performed on an upcoming shift.” (Id.) A subsection sets forth the policy for staffing post positions, and provides in pertinent part, “[a]ll personnel shall arrive at a shift briefing and be ready to be assigned a post position at the start of their assigned shift.” (Id. at 3)

         During the time relevant to plaintiff's claims, the schedule for shifts was three days on; two days off; two days on; and three days off. For example, a jail sergeant or officer would work Friday, Saturday and Sunday, have Monday and Tuesday off, then work Wednesday and Thursday, and have Friday, Saturday and Sunday off. Shifts for jail sergeants were 12 hours in length from 6:00 a.m. to 6:00 p.m. for the day shift or from 6:00 p.m. to 6:00 a.m. for the night shift. Jail officers also worked 12 hours, but their shifts started and ended at 6:30, rather than 6:00.

         Prior to April 2016, the practice was for jail officers to come in early to receive their shift passdown. That practice, however, was not in accordance with written policy, or at least not with the written policy set forth above, which did not state that jail officers should come in before their shift time for shift passdown. Moreover, the length of time conducting passdown varied depending on issues that needed to be communicated.

         On March 9, 2016, the same day that he met with Captain Evenson and Deputy Chief Leu to discuss staff members' failure to wear body cameras, Demers sent the following email to County Administrator Jeff French:

I have been working here for 14 years. I have asked this question in the past with no real answer. As jail staff, we are required to be here 15 minutes before our shifts so we can get the passdown from the shift that is on duty. We don't get paid for this 15 minutes that we are required to be here. Why don't we get paid for this time?

(Hanson Decl., Ex. 9 (dkt. #33-9).)[3] French responded to Demers' email that he did not know the answer, but copied Jail Captain Evenson and Human Resources Director Rachel Richie on his response to see if they could respond.

         On March 11, 2016, Captain Evenson responded to the email, stating that he knew “some staff . . . show up early but this is not a requirement I have made.” (Hanson Decl., Ex. 15 (dkt. #33-15) 3.) However, he also acknowledged that “when the control officer is being relieved in central control, information does need to get passed to the next officer coming in, ” and “[t]his probably does take a few minutes to do so, conceivably someone might be here for a few minutes extra to accomplish this.” (Id.) Nevertheless, Evenson concluded by stating, “[t]here is no standing order to come in early for 15 minutes but th[ere] is an expectation that information will be passed from one shift to the next for the safety and security of staff and the facility.” (Id.)

         Around this same time, County Administrator French and HR Director Richie met to discuss whether they needed to determine what the actual passdown procedure was. Richie then conducted her own investigation by talking to Chief Deputy Leu and Jail Captain Evenson. They reported to her that correctional officers were coming in early, but would also leave early, so it was a wash. Nonetheless, Richie reported to French that she believed there was a problem with how the Sheriff's Department personnel were being paid -- or, more accurately, not being paid -- for this “passdown time.” In contrast, Leu continued to believe that there was not a problem.

         On March 20, Demers responded to Captain Evenson's email, acknowledging what he was saying, but stating, “[i]f you ask most staff, they will tell you [that] we have been told to be here 15 minutes before our shifts for passdown.” (Id. at 2.) He further acknowledged that Captain Evenson may not have told staff this, but reported that others did. After reviewing the Policy and Procedures Manual again, Demers went on to observe that: “[W]e have been doing shift change wrong. If we do it the way it states in the Policy and Procedure Manual[, ] we won't have a problem anymore.” (Id.) Demers acknowledged that this would mean the sergeants will not overlap for passdown; rather, he suggested the incoming sergeant would use the first 30 minutes of his or her shift (beginning at either 6:00 or 18:00) to “read all the necessary log from the shift/shifts previous.” (Id.) When the correctional officers arrive at 6:30 or 18:30, the sergeant could then brief the incoming officers, rather than having the outgoing officers do it. Demers ended this email with the following, “I'm just saying that the way it is done now we are not getting paid for the 15 minutes we all arrive early for work. I would like you to look at this and I would like this change to start right away. This does make sense [with] how it is set up in our Policy and Procedure Manual.” (Id.)

         Jail Captain Evenson acknowledged that he read Demers' March 20 email and understood that Demers wanted to change things -- specifically, he understood that Demers wanted to eliminate the 15 minutes staff was coming in early -- but Evenson also testified at his deposition that he did not completely understand Demers' email. While there is a dispute at to whether Evenson and Demers discussed the content of his email before a March 14, 2016, meeting, there appears to be no disputed that Evenson and Demers discussed the March 10 email he had sent to French at the March 14 meeting. Captain Evenson reiterated to Demers that he didn't require people to come in early, but if they chose to, he did not object. Evenson felt that meeting constituted “counseling for his going outside the chain of command, because Demers should have raised the compensation question for passdown time with him directly, but he did not consider it “discipline.”

         On March 22, 2016, Captain Evenson formally responded to Demers' March 10 email, copying all jail sergeants.[4]

I can only expect everyone to follow what is in the policy. The policy is that sergeants/OIC will be here from 0600 to 1800 and the officers will be here for 0630 to 1830. . . . It is the sergeant's responsibility to read all the necessary logs and update the staff coming in at 0630 or 1830. It is the staffs' responsibility to be in their assigned post by the start of their shift and to be there until their shift ends.

(Id.)[5] Evenson also noted, “As you pointed out[, ] there is policy in place to account for shift pass-down without the overlap in shifts and this is what the staff is expected to follow. I know that many people show up early on their own and this makes pass-down easier and more personably one-to-one. This is ...

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