263 F.3d 673 (7th Cir. 2001), 00-2603, Alexander v WI Dept. of Health & Family

Docket Nº:00-2603
Citation:263 F.3d 673
Party Name:Robert E. Alexander, Plaintiff-Appellant, v. Wisconsin Department of Health and Family Services, Susan Moritz, Claire Nagel, et al., Defendants-Appellees.
Case Date:August 27, 2001
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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263 F.3d 673 (7th Cir. 2001)

Robert E. Alexander, Plaintiff-Appellant,


Wisconsin Department of Health and Family Services, Susan Moritz, Claire Nagel, et al., Defendants-Appellees.

No. 00-2603

In the United States Court of Appeals, For the Seventh Circuit

August 27, 2001

Argued November 13, 2000

Appeal from the United States District Court for the Western District of Wisconsin. No. 99 C 429--Barbara B. Crabb, Chief Judge.

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Before Harlington Wood, Jr., Kanne, and Diane P. Wood, Circuit Judges.

Kanne, Circuit Judge.

Robert Alexander sued his former employer, the Wisconsin Department of Health and Family Services (the "Department"), alleging that he was subjected to unlawful race discrimination and retaliation that resulted in his receiving a ten-day suspension from work without pay and, eventually, his termination. Alexander also filed claims against several Department employees for their involvement in his termination, his ten-day suspension, and a five-day suspension that he received

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previously. The defendants filed a motion for summary judgment on all of Alexander's claims. The district court granted this motion, finding that Alexander failed to provide any evidence that the disciplinary action he received was due to his race or in retaliation for his complaining about discrimination in the workplace. Because we find that Alexander is unable to show that the reasons for which he was disciplined were pretext for race discrimination or retaliation, we will affirm the decision of the district court.

I. History

This appeal is from a grant of summary judgment; therefore, we view the facts in the light most favorable to Alexander, the non-moving party, drawing all reasonable inferences in his favor. See EEOC v. Sears Roebuck & Co., 233 F.3d 432, 436-37 (7th Cir. 2000). Alexander, who is African-American, was hired by the Department in February 1992, as a Food Service Worker at the Central Wisconsin Center (the "Center"), a care center for developmentally disabled residents, and worked there until his termination in December 1996. His claims arise from three separate incidents at the Center that resulted in his being subjected to disciplinary action including a five-day suspension, a ten-day suspension, and his eventual termination.

The first of these incidents occurred on August 3, 1995. Alexander was working at the Center in the kitchen area and recalls that it was a very hot day and he was not feeling well. He mentioned to several of his co-workers, including Randy Severin, that he felt dizzy and faint. Severin, who in Alexander's presence had previously referred to African-Americans as "niggers," responded by suggesting something to the effect of "if you are not feeling well, why don't you fucking go home?" Alexander became upset with Severin and the two men exchanged heated words. However, when his supervisor, Paul Scallon, told him to sit down and cool down, Alexander complied by taking a chair and sitting approximately fifteen feet away from Severin. Alexander acknowledges that he was very upset with Severin and that he continued to look at him. Severin then left that area of the kitchen.

Scallon reported the incident to Susan Moritz, Administrator of the Food Service Department at the Center. As an administrator, Mortiz's duties included: hiring, disciplining, and terminating employees; enforcing Department policies and procedures; and supervising food service supervisors and employees. Moritz investigated the incident and arranged a pre-disciplinary meeting with Alexander to discuss the altercation. Following this meeting, Alexander was given a five- day suspension because Moritz believed that he was the aggressor in the incident. Severin was not disciplined.

In February 1996, Alexander asked Moritz if the two of them could meet with Donna Carlson, a unit supervisor Alexander believed was harassing him. Moritz told Alexander to make a list of his allegations with specific issues and dates and that she would set up the meeting thereafter. Alexander never compiled any such list and no meeting was scheduled. Moritz has acknowledged that it is not her usual practice to require an employee to submit such written documentation before an informal meeting.

The second incident for which Alexander was disciplined took place approximately seven months later on February 29, 1996. According to Alexander, his primary responsibility at work that day was to stack trays coming off the tray line in the kitchen area. The tray line was particularly busy, and there was no time for Alexander to step away from the line in order to strap tray carts, another aspect of his job. Whenever the tray line momentarily

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stopped, however, Alexander used that time to strap carts. Alexander strapped approximately seven carts that were taken downstairs by his co-worker, Jalene Roth, before his supervisor, Donna Carlson, arrived in the area of the line. Carlson's visit to the tray line area of the kitchen was prompted by a report that Alexander was not doing his job. When she arrived, Alexander was working on the tray line, and it was obvious that the line was operating too quickly. Despite the fact that Alexander was busy working, and other employees were available to help strap carts, Alexander contends that Carlson singled him out, criticized him for not strapping carts, and accused him of not doing his job.

Alexander says that he asked Carlson to help, by saying something to the effect of "Can't you help strap some carts?" Although Alexander insists that his statement was a good faith request for assistance, Carlson responded to Alexander's request by shouting at him, yelling that strapping carts was his job, not hers, and that he had better strap carts right away, or else it would be insubordination. Alexander claims that he continued to remove trays from the line to keep it from stopping, but that as soon as it did stop, he began to strap the cart closest to him. This was not fast enough for Carlson, however, and she sent Alexander home for insubordination.

Carlson reported the incident to Moritz, who investigated the exchange and held a pre-disciplinary meeting on March 4, 1996. Sandra Bohling and Jalene Roth, both of whom were union representatives and witnesses to the incident, accompanied Alexander to the meeting, along with a lawyer from the NAACP, and department affirmative action officer Robert Bentley. Moritz asked George Bancroft, the Director of Institution Management Services, and Robin Gruchow, the Center's personnel specialist, to attend the meeting. At the meeting, Alexander denied any wrongdoing, and Bohling and Roth expressed their view that Alexander had been mistreated by Carlson. Moritz concluded, however, that Carlson's description of the incident was more credible, and she recommended that Alexander be disciplined. Alexander subsequently received a ten-day suspension without pay.

On the same day as the pre-disciplinary meeting, Alexander filed an informal complaint with Bentley, alleging that Carlson and Moritz discriminated against him on the basis of race. In his complaint, Alexander listed fourteen different acts that he considered to be evidence of racial discrimination. Following up on Alexander's complaint, Bentley sent written questionnaires regarding the allegations to Carlson and Moritz in April and May of 1996. Carlson was also given the option of answering the questionnaire in person. Carlson showed the questionnaire to Brian Fancher, the human resources director at the Center, seeking advice in how to respond. Fancher reviewed the questionnaire and became concerned because he considered the questions to be hostile and somewhat accusatory. He also thought it was unusual for an affirmative action officer to use written questionnaires as opposed to conducting personal interviews. Gruchow also believed that Bentley's investigation procedure was unusual. Fancher approached Bentley to discuss the manner in which he was investigating Alexander's complaint. In response to Fancher's inquiry, Bentley asked Fancher to put any questions he had about the investigation in writing along with an explanation of his need to know the answer to those questions. Thereafter, Fancher sought guidance on how to proceed from Department Administration, and he instructed Moritz and Carlson to wait to answer the questionnaires until he received a response. Bentley concluded

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his investigation before Fancher received any directive, however, and Bentley's report was completed without input from Carlson or Moritz.

Bentley submitted the results of his investigation to division administrator, Tom Alt, in a memorandum dated June 26, 1996. His report indicated that he believed that Alexander had been subjected to harassing behavior and he recommended that disciplinary action be taken against Carlson and Moritz for their treatment of Alexander. No such action was taken, however, because the department concluded that the lack of input from Carlson and Moritz rendered the report incomplete and therefore unreliable.

On October 9, 1996, Alexander filed a charge of discrimination with the Wisconsin Personnel Commission, alleging that he was subjected to discrimination and harassment at the Center because of his race. The complaint was cross-filed with the EEOC and Alexander received a right to sue letter. The Department learned of the complaint on October 23, 1996.

The third and final incident that led to Alexander's termination took place eight months later on October 24, 1996. Melodie Stumpf, a co-worker of Alexander, accused him of making a throat-slashing gesture at her while passing her in the hall at work. Alexander does not remember passing Stumpf in the hall at work and contends that if he did, he did not say anything to her or make any...

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