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Balogun v. Board of Regents of University of Wisconsin System

United States District Court, W.D. Wisconsin

June 28, 2019

KEHINDE BALOGUN, Plaintiff,
v.
THE BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, KEVIN CHEREK, and BOBBY BURROW, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         Alleging discrimination based on race and national origin, as well as retaliation for complaining about discrimination, a former employee of the University of Wisconsin-Madison, plaintiff Kehinde (“Tony”) Balogun, filed this lawsuit against his former supervisor, Kevin Cherek, Cherek's supervisor, Bobby Burrow, and the University's Board of Regents. Before the court is defendants' motion for summary judgment. Because there is enough evidence from which a reasonable jury could at least find for plaintiff on his retaliation claim, defendant's motion will be denied in part and reserved in part.[1]

         UNDISPUTED FACTS[2]

         A. Background

         Tony Balogun is a black man from Nigeria with an extensive educational and professional background in computers. Following a statewide recruitment effort, Balogun was appointed as an “IS Resource Support Technician Senior” at UW-Madison in the Division of Facilities, Planning and Management (“FP&M”), effective April 23, 2007. As an IS Resource Support Tech Senior, Balogun held the highest level title in his “series, ” meaning he could not be reclassified or promoted without applying and interviewing for a change in series. The posted position summarized his major responsibilities as: (1) “answering computer related support request call[s] from FP&M IT customers”; (2) “resolving problems reported via the calls and entering and updating call status in our call management system”; and (3) “installing, moving and removing computer hardware and peripherals on FP&Ms managed clients and ensuring that the physical devices installed matched the inventory.” Balogun's prior work experience largely overlapped with his responsibilities in this new position.

         When he started, Balogun's position was in the 6-14 pay range, for which he was paid $16.756 per hour. At that time, Wayne Bradley and Kate Mutchler -- who are both white -- were also on the desktop support helpdesk. As an “IS Network Service Senior, ” Bradley was responsible for providing advanced level support for servers and desktops, for which he was paid $28.572/hour.[3] Also an IS Tech Service Senior, Mutchler was paid $21.899/hour. At the end of 2007, Balogun asked his supervisor Cherek, who had participated in his hiring, to reclassify his job because he was doing the same work as Bradley and Mutchler. Cherek informed him that he could not be reclassified. Balogun appeared to accept that response until January 2009.

         After the University of Wisconsin System consolidated various information technology departments in 2008, FP&M became known as Administrative Information Management Services (“AIMS”). Balogun then served on the customer services group in the operations and support services subdivision of AIMS. During this time, when manning the helpdesk, Balogun was responsible for addressing calls, although the parties dispute precisely which calls were his responsibility. The parties agree that Balogun handled approximately 2, 000 calls between 2007 and 2009, when he ceased working at the helpdesk.[4]

         More specifically, during this timeframe, Balogun, Bradley and Mutchler handled the following number of calls:[5]

2007


Calls Handled

Diary Notes


Search Result

Calls Handled (owner)

Search Result

Calls Handled

Balogun

635

630

659

631

Bradley

527

501

553

521

Mutchler

788

663

770

631

2008


Calls Handled

Diary Notes


Search Result

Calls Handled (owner)

Search Result

Calls Handled

Balogun

753

750

902

750

Bradley

836

795

888

795

Mutchler

750

649

748

648

2008


Calls Handled

Diary Notes


Search Result

Calls Handled (owner)

Search Result

Calls Handled

Balogun

753

750

902

750

Bradley

836

795

888

795

Mutchler

750

649

748

648

         On January 7, 2009, Cherek emailed the AIMS Operations and Support Services staff to “clarify a few things” relating to Applix, including that “[t]he person who takes the call is responsible for its resolution.” (Jan. 7, 2009 Email (dkt. #35-3) 1.) The next day, Balogun went to Cherek to point out that his email showed Bradley and he were doing the same work, supporting his position that he should be reclassified. Cherek again disagreed and denied the request. Within days of this exchange, Cherek began criticizing Balogun's performance via email.[6]

         On July 20, 2009, Cherek removed Balogun from the helpdesk. While there is disagreement about what motivated this decision (compare Balogun Decl. (dkt. #35) ¶ 48 with Cherek's Log (dkt. #35-6) 2), Balogun told Cherek at the time that he suspected it was because of his minority status.

         Less than two months later, on September 17, 2009, Cherek divided the customer services group into two teams: incident and field services. The incident team manned the helpdesk, while the field services team handled service requests. Cherek explained that the teams were based on position, so that those with higher level titles and salaries were assigned to the incident management team. In contrast, Balogun was assigned to the field services team with other lower-level titled staff members, while Bradley and Mutchler went to the incidents team. In justifying this decision, Cherek explained that Balogun's position was never intended to be a higher level one, and that Balogun had been assigned higher level work because of staffing shortages. While Balogun remained an IS Resource Support Technician Senior, the amount of time he devoted to major responsibilities changed.[7]Balogun was the only non-student, non-supervisory employee on the field services team, as well as the only minority on that team. Balogun was insulted by his assignment.

         Four days after Cherek announced the division of teams, he met with Balogun to discuss the teams' staffing further. In that meeting, Balogun explained that he felt disrespected by Cherek for not having a separate meeting at the outset, and he further found Cherek's open discussion of everyone's salary and title demoralizing, degrading and demeaning. Cherek responded that this information was publicly available and was not meant as a put down. Balogun also claimed that he felt taken advantage of over the last 2.5 years, adding that his placement as the only minority on the field services team seemed racially-based. Balogun also asked why someone from the incident team was the field services team's lead, to which Cherek responded that that the people with higher-level titles were appropriate leaders. Finally, they discussed and disagreed whether Balogun was having trouble on the helpdesk.

         On October 1, 2009, Cherek and Balogun discussed race issues in the office, during which Balogun stated that he took issue with how the unit was being structured and he planned to speak with a union steward. According to Balogun, Cherek attempted to demote him to a Field Service Technologist position around that time, and when asked why, Cherek said “because we can do it.” Cherek disputes this as well. (Defs.' Resp. to Pl.'s Add'l PFOF (dkt. #46) ¶ 76.) The parties also disagree about what happened at a November 30, 2009, meeting about Balogun's job description. (Id. ¶ 77.) However, there is no disagreement that the time Balogun spent on specific tasks did change in late 2009.

         On October 2, 2009, UW-Madison sought applications for a vacant, permanent IS Technical Services Senior position. After Balogun told Cherek of his intention to apply, however, that position was cancelled, an action defendants attribute to budget cuts but Balogun argues could be construed otherwise. (Defs.' Resp. to Pl.'s Add'l PFOF (dkt. #46) ¶ 81.) Regardless, Cherek posted the position later as a temporary position and Balogun chose not to apply because he could lose his civil service classification if the position did not become permanent. Ultimately, two individuals were hired to IS Technical Professional project positions, one of which became a permanent position.

         B. Formal ERD Complaints

         In light of these developments, Balogun filed an ERD complaint with the Wisconsin Department of Workforce Development on February 22, 2010, alleging that UW-Madison had discriminated against him based on national origin and race by: (1) paying him less than similarly situated white coworkers; (2) refusing to reclassify him to a higher job, even though a similarly situated white coworker had been reclassified; and (3) changing higher level permanent job postings to temporary positions to prevent him from applying. Balogun filed a second complaint on October 6, 2010, alleging that Cherek retaliated against him for filing the first complaint by: (1) criticizing his work; (2) issuing a written reprimand on April 27, 2010; and (3) suspending him for a day.

         The ERD returned initial determinations of “no probable cause” in both cases on May 17, 2011, which Balogun appealed. Those cases were later consolidated and hearings held on April 18 and June 7, 2012, at which five people testified, including Cherek, Burrow, and Balogun. The ERD issued its decision on January 30, 2013, concluding that Balogun had not shown probable cause to believe UW-Madison violated the Wisconsin Fair Employment Act and dismissing both complaints. After the Labor and Industry Review Commission affirmed that decision with minor modifications on April 11, 2014, Balogun timely sought judicial review. Finally, on September 24, 2014, the Dane County Circuit Court issued an oral ruling affirming and dismissing the petitions for review.

         C. Balogun's Work Performance & Disciplinary History

         Throughout Balogun's employment, Cherek served as his supervisor and completed Balogun's performance evaluations. Before the period starting on May 1, 2013, Balogun's overall performance was rated as satisfactory, although earlier evaluations noted concerns about difficulties he had accepting the team leader, focusing on details, and knowing when to consult senior technicians. Only after filing his ERD complaints did Balogun begin to receive a number of formal disciplinary actions. On April 27, 2010, he received a written reprimand for not following instructions after failing to recognize and inform his team leader when he was unable to complete an installation in one trip. On July 29, 2010, he also received a one-day suspension for violating the same rule -- this time for refusing to provide requested information to his team leader in a timely fashion. This suspension followed an email from Cory Chancellor asking Balogun what he was working on and Balogun responding that his assignments could be seen on the Applix system. Cherek asked Balogun to email that information to Chancellor, which Balogun did, cc'ing Cherek within 24 hours.

         Balogun next received a three-day suspension on March 7, 2011, for again violating the same work rule, but this time for insubordination because he failed to attend a field services team meeting. Balogun acknowledges skipping that meeting, believing it was degrading to work with students instead of peers in terms of education and age. He received yet another one-day suspension on January 29, 2013, for insubordination after refusing to assist with an assigned task -- unloading a shipment of computers. Again, he felt that as the oldest, most senior member of the team -- and the only minority -- he should not have been asked to perform the task, especially with student workers available to do it instead.

         On September 12, 2013, Balogun was once again suspended for failing to provide accurate/complete information when requested and for negligence in the performance of his duties. The September 12 disciplinary letter explains Balogun delivered a laptop to Peter Hoonakker that was not fully configured, resulting in Hoonakker asking someone else to complete the task. Additionally, when Balogun moved several computers to a different work group, two proved unusable because they could not access the network, resulting in a request that Balogun not work on their projects in the future. (Sept. 12, 2013 Letter (dkt. #25-1) 27.)[8]

         Despite ongoing issues since 2010, it was not until Balogun's evaluation for the period May 1, 2013, through June 30, 2014, that his overall performance was rated unsatisfactory. That evaluation is dated September 25, 2014 -- one day following the Dane County Circuit Court's affirmance and dismissal of Balogun's administrative claims for discrimination and retaliation. In particular, this evaluation noted that Balogun struggled to notify his team lead when facing problems he could not resolve, was being outperformed by students, failed to follow established procedures, declined to use available resources, and failed to keep the call tracking application updated. Not surprisingly, plaintiff disputes the accuracy of this annual evaluation.

         On September 26, 2014, Cherek and Balogun met to discuss the evaluation, although they strongly disagree about the substantive discussion at that meeting. Balogun contends Cherek told him that: (1) his career at UW was over, so if he wanted to get ahead, he should leave; (2) he was being placed on a concentrated improvement plan that would involve monthly meetings with Cherek and HR; and (3) Cherek was going to increase his own scrutiny, meeting with him every week. Cherek disputes making any of these statements. (Balogun Decl. (dkt. #35) ¶ 109; Cherek Suppl. Decl. (dkt. #48) ¶¶ 2, 4-6.)[9] The parties further disagree whether Balogun asked for -- and whether Cherek had any -- proof that Balogun was being outperformed by students. (Balogun Decl. (dkt. #35) ¶ 116; Cherek Suppl. Decl. (dkt. #48) ¶ 8; see generally Performance Tracking Spreadsheet (dkt. #48-4).)

         The parties agree that during this September 26, 2014, meeting, Balogun and Cherek discussed a goal for Balogun of delivering 10-12 computers a week. Balogun contends he protested, asserting that such a goal was impossible and adding that 4-5 computers was more reasonable, and even then, only when a major project was underway. Defendants contend that Balogun only questioned whether he could deliver 10 computers a week. (Defs.' Resp. to Pl.'s Add'l PFOF (dkt. #46) ¶ 127.) Relatedly, defendants contend that Balogun and Cherek had agreed back in January 2009 that building a computer should take no more than one business day, but on average only 3-4 hours.

         Regardless, the parties agree that Cherek gave Balogun an unsigned copy of the evaluation to add rebuttal comments, which he did. Evaluations are normally signed by the supervisor and scanned into a personnel file. When Balogun returned the evaluation and his rebuttal, Cherek said that he would meet with human resources to review it. Balogun did not hear anything and was not provided a copy of the signed evaluation. A concentrated improvement plan was not implemented and there were no weekly meetings with Cherek. On February 23, 2015, Balogun requested a copy of his personnel file. He received a complete copy of his file, which did not include his September 2014 performance evaluation, although the personnel file now contains this evaluation and rebuttal.

         D. ...


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