United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
Jessica Pelzek and her husband, plaintiff Rodney Pelzek,
worked as correctional officers at Oakhill Correctional
Institution (OCI), which is operated by defendant Wisconsin
Department of Corrections (DOC). The court will refer to the
plaintiffs by their first names.
an infrequent drinker, became severely intoxicated at an
OCI-sponsored golf outing for employees and their guests. She
alleges that a co-worker had sexual contact with her while
she was so intoxicated that she was incapable of consenting,
and thus the contact constitutes a sexual assault. She
reported the incident to management, but the DOC failed to
punish the co-worker or even investigate her allegations. She
says that the DOC's inaction, and the workplace rumors
and insults that she endured after the golf outing, created a
hostile work environment that resulted in her constructive
discharge. Rodney alleges that he faced a hostile work
environment because of his association with Jessica, and that
he, too, was constructively discharged. Plaintiffs have sued
the DOC under Title VII of the Civil Rights Act of 1964,
which prohibits workplace discrimination on the basis of sex.
moves for summary judgment. Dkt. 16. The court will grant the
motion. Jessica has no memory of the events at the golf
outing, and witnesses at the golf outing do not corroborate
her allegation that she and her co-worker had sexual contact.
She has not adduced admissible evidence that she was sexually
assaulted or that she experienced unwelcome sexual contact at
the golf outing. The rumors and insults that she says she
endured in the aftermath of the golf outing do not rise to
the level of a hostile work environment, nor can she show
that the rumors and gossip were because of her sex, rather
than the result of her own conduct at the golf outing. And
because Rodney's claim derives from Jessica's, his
claim fails as well.
Pelzeks move to strike portions of the DOC's reply brief
for raising a new argument not made in their original brief.
Dkt. 44. The DOC did not respond to the Pelzeks' motion
to strike, so the court will grant it as unopposed.
following facts are undisputed, except where noted.
May 26, 2016 golf outing
2016, Jessica Pelzek was a social worker at OCI, a prison
located in Fitchburg, Wisconsin. Her husband, Rodney, also
worked at OCI, as a correctional sergeant.
year, OCI's Employee Enhancement Committee sponsored a
golf outing for DOC employees and their families and friends.
Employees were not required to attend the outing, and if they
were scheduled to work during the outing, they had to arrange
to take time off to attend. The 2016 outing took place at
Coachman's Golf Resort in Edgerton, Wisconsin.
did not attend the OCI golf outing in 2016, but Jessica did.
She believed that the warden, security director, and her
supervisor would be there, along with others from OCI
management, and she hoped to use the outing as a networking
opportunity. She arranged to take vacation leave on May 26
and 27 and arrived at Coachman's on the morning of May 26
in time for golf portion of the event, which began around
was not a regular drinker. Jessica has no recollection of the
golf event after she checked in and traded her drink tickets
for two drinks. According to James Younger, a colleague who
shared a golf cart with her, Jessica started with two large
cans of Mike's Harder Lemonade, and she ordered more
drinks from the drink cart during the round of golf. Jessica
was already showing signs of intoxication by the time she
finished her first drink. By midway through the round, she
was too intoxicated to golf. Her colleagues told her to stay
in the golf cart so that she wouldn't hurt or embarrass
herself. Jessica was stumbling, falling, and slurring her
words. Some colleagues testified that Jessica was being
flirtatious and “touchy” with her colleagues.
golf, the participants gathered for lunch and the
presentation of awards. By that point, Jessica was so
intoxicated that she had vomited. Jessica's colleagues
testified that she continued being flirtatious with people at
the lunch, walking up to them, trying to hug them, and even
propositioning them and touching them inappropriately.
Jessica continued to behave in a sexually inappropriate
manner as the day wore on. Multiple colleagues testified that
they tried to avoid her because of how drunk she was.
the lunch and awards, Jessica encountered James Nyhus in the
Coachman's bar. Nyhus was a correctional sergeant at OCI,
but he typically worked second or third shift, whereas
Jessica worked first shift, so they did not have much contact
on the job. Nyhus had drunk moderately but was not
intoxicated. He and Jessica played darts in the bar with a
group of their colleagues. At some point, he and Jessica
walked through a set of doors to an area near the bathroom,
where they sat on a bench, talked, and kissed. Nyhus
estimates that they spent less than five minutes kissing
before they were spotted by one of their colleagues. Jessica
and Nyhus then returned to the bar. Nyhus says that Jessica
told him she wanted to go for a walk, so they walked outside
to a fenced-in area behind the bar by some dumpsters.
facts do not show exactly what happened between Jessica and
Nyhus by the dumpsters. Nyhus testified that they were
“standing there talking” and that he
“do[esn't] remember” whether they kissed.
Dkt. 9 (Nyhus Dep. 64:13-14, 21). Although Jessica came to
believe that she and Nyhus had sexual contact, she has no
memory of any of it. Michael Rear, an OCI correctional
officer, testified that around 4:00 p.m., he saw Jessica and
Nyhus walk behind the fence to the dumpster area. Rear walked
nearer to the fence; he could see through the gap between the
fence and the ground that Nyhus's and Jessica's feet
were close together.
couldn't see what Nyhus and Jessica were doing, but he
“thought it was something that shouldn't have been
happening, ” Dkt. 11 (Rear Dep. 36:18-19), so he tossed
a cup of ice water over the top of the fence to get their
attention and said “Nyhus, I'm friends with
[Rodney] Pelzek, and I'm going to tell him.”
Id. at 48:24-25. Nyhus testified that he came out
from behind the fence to talk to Rear, but that Rear would
not talk to him. Dkt. 9 (Nyhus Dep. 70:6-71:1). Rear
testified that Nyhus did not attempt to speak with him and
that he did not see him emerge from the dumpster area. Dkt.
11 (Rear Dep. 38:12-14). Nyhus went back to the dumpsters
where Jessica was, and Rear left Coachman's shortly
thereafter without attempting to intervene further.
Eventually, Nyhus and Jessica ended up going back into the
testified that he offered to drive Jessica home, but she
refused, so he left her at Coachman's. Jessica called
Younger to ask him to take her home, but he declined. Jessica
called Rodney three times around 7:45 p.m.; he called back at
8:19 p.m. At 8:30, Rodney arrived at Coachman's and
pulled up next to Jessica's vehicle in the parking lot.
Jessica was sitting in the driver's seat of her car. It
took her almost a minute to notice Rodney's arrival, and
when she did she got out of her car and stumbled to
Rodney's, forgetting her purse and keys in the process.
She smelled of alcohol and had slurred speech. Rodney took
Jessica home and put her to bed.
Aftermath of the golf outing at OCI
31, 2016, five days after the golf outing, Rodney received a
series of text messages from Jim Logan, a correctional
sergeant at OCI who had been at the golf outing. Logan told
Rodney that he had “heard about something that was
concerning” related to the OCI golf event, and advised
him to speak with Wade Chapman, an OCI correctional officer
and Nyhus's roommate. Dkt. 38-3. Logan then called Rodney
and they spoke for ten minutes. Based on this phone call,
Rodney came to believe that Chapman was saying that
“people were bragging about taking sexual advantage of
[his] intoxicated wife at the OCI golf event.” Dkt. 38,
¶ 5. Rodney began calling around to other OCI employees
that he thought might have more information, but he
wasn't able to learn anything new before his work shift
started at 3:00 p.m. Before he left for work, he talked to
Jessica about what he had heard from Logan.
Rodney's shift on May 31, he learned that Rear had
information about what had happened at the golf event. Rear
and Rodney spoke on the phone, and Rear told Rodney that
Jessica had been severely intoxicated and falling over, that
everybody was laughing at her, and that he had seen Jessica
and Nyhus behind the dumpsters and thought they were doing
“something sexual.” Dkt. 42, ¶ 76. When he
got off the phone with Rear, Rodney spoke with a handful of
other OCI employees, who told him similar rumors about
Jessica's behavior during the golf outing. Rodney was so
distressed by the stories that he felt ill and ultimately
went home sick around 7:00 p.m.
night, Rodney and Jessica went to the Emergency Department at
the VA Hospital to have Jessica tested for “date rape
drugs.” They were told that such a drug administered on
May 26 would no longer be detectable in her system. (Jessica
does not allege in this case that she was actually drugged.)
Jessica returned to work following the golf outing (the exact
date is not clear), she sensed that her colleagues were
avoiding her. Correctional officers refused to look her in
the eye when she went into their units to meet with inmates.
At one point, Stacey Bitter, a roving sergeant who travels
between each of OCI's 11 units, came to Jessica's
office and told her that staff in various units were
laughing, joking, and saying “really bad things”
about what happened at the golf outing, and that the rumor
was that “she and Nyhus had made out and something
sexual happened.” Dkt. 10 (J. Pelzek Dep. 16:22-24).
Another sergeant, Sergeant Radtke, told her that thanks to
her he wasn't “the drunk of the institution
anymore.” Id. 62:24- 25.
1, Jessica emailed Nyhus using her work email. She wrote:
I don't remember half the day. I think I was roofied or
something. I ended up going to the Dr. and was diagnosed with
Transient Global Amnesia. I was completely out of character
and in any state of mind; would not have been the way I was
as I have been told. I do remember talking with you vaguely,
but that's all. I apologize if I said or did something. I
legitimately do not remember. Lots of rumors, and [Rodney]
Pelzek has been getting text messages and calls from a lot ...