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Carne v. Daley

United States District Court, W.D. Wisconsin

December 20, 2019

JAMES J. DALEY, Defendant.



         Plaintiff Danielle Carne, a laid-off staff attorney at the Wisconsin Employment Relations Commission (“WERC”), asserts First Amendment and Equal Protection Clause claims against her former supervisor, defendant James Daley, who is now WERC's sole Commissioner. Before the court is defendant's motion for summary judgment. (Dkt. #24.) For the reasons that follow, the court will grant the motion in part and deny the motion in part. More specifically, the court will grant defendant's motion as to the First Amendment claim based on protected speech and the Equal Protection claim, but will deny it as to plaintiff's First Amendment political affiliation claim.


         A. Overview of The Parties

         Plaintiff Danielle Carne was a staff attorney at WERC, an agency of the State of Wisconsin that ironically enough provides dispute resolution and services pertaining to labor and employment matters. Staff Attorneys at WERC act as mediators, arbitrators, and hearing examiners in a wide range of workplace disputes involving a broad selection of public and private sector employers and employees.

         Carne identifies as a “liberal” who aligns herself with the Democratic Party. She began working in Wisconsin state government in 2006. Carne first worked as a staff attorney with WERC from 2006 to 2013. In June 2013, she assumed the position of Chief Legal Counsel in the Wisconsin Office of State Employment Relations (“OSER), and in January 2015, Carne was promoted to Deputy Director of OSER. That same year, however, the Wisconsin Legislature passed 2015 Wisconsin Act 55 (the 2015-2017 Biennial Budget Bill), which among other things abolished OSER. After overseeing the transition of OSER functions into the newly created Division of Personnel Management (“DPM”) within the Department of Administration (“DOA”), Carne left her position at DPM to return to WERC as a staff attorney in January 2016 and remained in that position until being terminated through layoff in January 2018.

         Defendant James Daley (“Daley”) began working for the Wisconsin state government in June 2015 when Governor Walker appointed him as a Commissioner at WERC. For purposes of this motion, Daley does not dispute that he is a “conservative” and aligns himself with the Republican Party. Daley is now the Chair of WERC, a position he has held since September 23, 2017. As a consequence, Daley was Carne's supervisor from that date until her termination in January 2018. In his capacity as Chair, Daley also has authority to make employment decisions including hiring, reprimanding, and terminating WERC employees.

         B. Events Surrounding Act 150

         On October 1, 2015, Act 150 was introduced before the Wisconsin Senate. The bill proposed significant changes to the state civil service system. Among other changes, it allowed department heads to determine layoffs based on performance and discipline records rather than restricting these decisions to seniority. Hiring and reinstatement procedures were also affected, and timelines were established to expeditiously process civil service appeals. Governor Walker's administration supported Act 150.

         At OSER, Carne had served as one of the key personnel executives in the state working on matters related to the introduction of 2015 Wisconsin Act 150. After Act 150 was introduced in the Wisconsin legislature, the Governor's office directed state agencies to consolidate direct technical or functional concerns or questions in one place. Carne served as the clearinghouse for the functional or technical feedback in her capacity as deputy chair of DPM, and she compiled the technical feedback into a document that was sent to the Governor's office on October 8, 2015. In addition to functional concerns, Carne confided in Greg Gracz, her boss, that other agencies had supplied policy-based feedback as well. Gracz then directed Carne to document any policy-based feedback she received in a separate memo. On October 15, 2015, Gracz then personally delivered this memo unsigned to the Governor's Chief of Staff Rich Zipperer, the Governor's Legislative Liaison Cindy Polzein, and DOA Secretary Scott Neitzel.

         Voting along party lines, the Wisconsin Legislature ultimately passed the civil service bill on January 20, 2016. Governor Walker signed the bill into law on February 12, 2016, at the offices of ManPowerGroup.

         In May 2016, however, local newspapers ran stories about Carne's unsigned memo. On Sunday, May 1, 2016, the Milwaukee Journal Sentinel ran an article titled, “Report Shows Concerns within Walker Administration about Civil Service Changes.” The article cited a memorandum delivered to the Governor's office on October 16, 2015, which “strongly criticized” Act 150. The same day, the Wisconsin State Journal's front-page article was similarly headlined, “HR Slams Civil Service Changes.” It, too, stated that a memorandum to the Governor's office “shows the proposal was deeply controversial even among some on Walker's own administration.” Neither article named the memo's author. The Wisconsin State Journal provided key details about the author's work history, including that the author had worked at DPM within DOA but left for another job in the state government.

         Carne never publicly revealed she authored the memorandum. Though Daley disputes knowing Carne wrote the unsigned memo, he admits that someone at WERC told him around the time of the media reports that they thought Carne authored the memo. (Daley Dep. (dkt. #10) 63.) Moreover, there is also no dispute that Daley knew Carne previously worked at OSER and DPM before she returned to WERC. In fact, Daley was a commissioner at WERC when Carne returned to the department in January 2016.

         C. Carne Returns to WERC

         As a staff attorney, Carne returned to WERC in a classified, non-political, non-policy making position. At the time Carne first began her employment with WERC in 2006, the agency was headed by a three-person commission. With the consent of the Senate, the Commissioners were appointed by the Governor for six-year terms. The Governor also designated one commissioner to serve as Chair of WERC for a two-year term. In May 2011, during Carne's fifth year of employment at WERC, Republican Governor Scott Walker appointed Attorney James Scott to serve as Chair of WERC.

         When Carne resumed her employment in January 2016, Scott was still Chair of WERC, while Rodney Pasch and Daley were the other two Commissioners. Pasch had been appointed in 2011 before Carne's earlier departure; and as noted above, Daley had become a Commissioner in 2015, just before her return. At that time, Peter Davis was serving as Chief Legal Counsel for the agency, a position he had occupied for decades and Raleigh Jones and Karl Hanson were Staff Attorneys. Jones has worked for WERC since 1982 and has held the staff attorney position for 20 years. Hanson was hired in July 2015 and, as described below, left WERC for a position at the Wisconsin Department of Justice in August 2017. Carol Lynch acted as office manager, and Dawn Clark served as the paralegal for WERC. Including Commissioners, attorneys, and support staff, there were a total of ten employees at WERC.

         When Carne returned to WERC, Davis introduced her to the staff, including Daley. Both Daley and Carne agree this was the sole, in-person interaction between them during Carne's time at WERC from 2016 to 2018. Although Carne and Daley disagree as to who was responsible for making friendly overtures and claim the other party was coldly hostile at some point or another while working at WERC, they agree that neither party made significant attempts to establish a collegial relationship. (Carne Dep. (dkt. #18) 70:11-13; Daley Dep. (dkt. #10) 75:19-23.) The parties communicated mainly through other staff members or by email.

         D. Daley's View of Carne

         As Chair of WERC, Scott was instrumental in rehiring Carne. In contrast, Scott recalls that Daley opposed Carne's rehiring. Specifically, as Scott testified at his deposition, Daley told him, “Why are you bringing that lefty back here or that liberal? We don't need her.” (Scott Dep. (dkt. #21) 17.)[2] However, Daley disputes that he opposed Carne's rehiring itself, instead maintaining that he opposed the procedure Scott used to rehire Carne, which did not include advertising the position and selecting from a pool of candidates. (Daley Dep. (dkt #10) 49.)

         Scott also represents that on more than one occasion, Daley told him that Carne could not be trusted. (Scott Dep. (dkt. #21) 45-46; id. at 62 (testifying that Daley told him that Carne could not be trusted “[m]ultiple times, you know, two, three, but I couldn't put a number on it”). In turn, Daley acknowledges making this statement on one occasion. (Daley Dep. (dkt. #10) 19.) Scott also testified at this deposition that Carne was the only WERC employee Daley reported distrusting, which Scott attributed to Carne's being a professional woman and Daley feeling inadequate around her.[3] In addition, on August 29, 2017, at a gathering to celebrate staff attorney Hanson's last day of employment with WERC, Carne arrived about 10 minutes late. When she arrived, Daley abruptly left. Afterward, Carne avers that Scott questioned her about Daley's departure. When Carne could not explain it, Scott responded: “He's okay with [WERC paralegal] Dawn and [WERC office manager] Carol, but that's because they're at a fairly low level. But he doesn't like you because you're a professional.” (Pl.'s PFOFs (dkt. #25) ¶ 62 (citing Carne Decl. (dkt. #36) ¶ 45).)[4]

         Consistent with the description above, Scott also testified at his deposition that Daley referred to Carne “several times” as “[t]hat lefty” and he also recalled Daley referring to Carne as an “extreme liberal or dangerous liberal.” (Scott Dep. (dkt. #21) 16-17, 61-62.) At his deposition, Daley testified that it was “possible” that he referred to Carne as a lefty, which he also testified meant left-of-center or liberal, but disputes that he formed an opinion about Carne's political views while she worked at WERC. (Daley Dep. (dkt. #10) 17-18.) Daley also acknowledged calling office manager Lynch and Davis lefties. Scott even testified that, “Jim Daley indicated he wanted to be rid of Danielle Carne because she was a liberal, an extreme liberal, a lefty” (id. at 74), and that Daley made the statements about Carne at the same time he said, “[w]e've got to get rid of her.” (Id. at 98.) However, Scott also testified that this was his “presumption or supposition, ” and this testimony may have been limited to his view of Daley's reaction to Carne's lay-off plan as described below. (Id. at 75.)

         In addition to Carne's political affiliation (and perhaps sex), Daley had concerns about Carne's close relationship with Scott. Davis testified at his deposition that Scott and Carne had a very good relationship, and Jones testified that Carne had Scott “wrapped around her finger.” (Jones Dep. (dkt. #11) 14.) As a joint commissioner, Daley testified that he felt Carne ignored him and Rodney Pasch in their capacities and focused solely on communicating with Chairman Scott. After Scott's departure, office manager Lynch testified that Carne remained in her office with her door closed, no longer having Scott as a conversation partner. Jones and Davis testified that they also noticed a change in her behavior after Daley became chair. (Def.'s PFOFs (dkt. #27) ¶ 99.)

         E. WERC Restructuring

         The 2017-2019 Biennial Budget Bill proposed restructuring WERC. It eliminated two commissioner positions and the chief legal counsel position. Furthermore, the bill limited the number of staff attorneys to three. Even before the bill's passage, the then Chief Legal Counsel at WERC, Davis, had announced his intention to “bump back” to a staff attorney position should the budget bill pass. This bump back would then leave WERC with four staff attorneys and funding for only three full-time equivalent (“FTE”) positions.

         State agencies facing imminent layoffs were required to create a “layoff plan, ” detailing how it will handle reductions in force. The parties had discussed a layoff plan that Carne proposed in the summer of 2017 with Chairman Scott's approval. Carne's plan would have avoided a staff attorney layoff by implementing the following changes: Davis would reduce his appointment to .50 FTE; Carne and Jones would each reduce their appointments to .75 FTE; and Hanson would remain at 1.0 FTE. Evidently, this plan was not accepted by DPM. Director of the State Budget Office Waylon Hurlburt and DPM Administrator Greg Gracz drafted a memo indicating that due to the pending Budget Bill voluntary reductions were being blocked. However, Staff Attorney Hanson transferred to the Department of Justice in August 2017 before the passage of 2017-2019 Biennial Budget Bill, making that plan moot.

         After the legislature passed the budget bill on September 21, 2017, Davis bumped back to a staff attorney as predicted, bringing the total staff attorneys back to three, the number required under the bill. Governor Walker appointed Daley as Chair and the lone Commissioner of WERC on September 23, 2017.

         F. Daley's Performance

         Carne avers that she experienced no performance issues at WERC from 2006 to 2013.[5] She received pay increases and organized a statewide conference on labor relations for advocates and neutrals. While employed by WERC, Carne also served as an adjunct professor at the University of Wisconsin Law School, a position she still holds. Further, Carne avers that ...

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