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Pelzek v. Wisconsin Department of Corrections

United States District Court, W.D. Wisconsin

June 28, 2019

JESSICA PELZEK and RODNEY PELZEK, Plaintiffs,
v.
WISCONSIN DEPARTMENT OF CORRECTIONS, Defendant.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Plaintiff 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.

         Jessica, 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.

         The DOC 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.

         The 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.

         UNDISPUTED FACTS

         The following facts are undisputed, except where noted.

         A. May 26, 2016 golf outing

         In May 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.

         Every 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.

         Rodney 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 9:00 a.m.

         Jessica 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.

         After 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.

         After 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.

         The 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.

         Rear 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 bar.

         Nyhus 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.

         B. Aftermath of the golf outing at OCI

         On May 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.

         During 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.

         That 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.)

         When 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.

         On June 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 ...

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