Byrd v. Wis. Dep't of Veterans Affairs

• Decision Date: 03 April 2015
• Docket Number: No. 13–cv–714–jdp.,13–cv–714–jdp.
• Citation: 98 F.Supp.3d 972
• Parties: Rose M. BYRD, Plaintiff, v. WISCONSIN DEPARTMENT OF VETERANS AFFAIRS, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

98 F.Supp.3d 972

Rose M. BYRD, Plaintiff

v.WISCONSIN DEPARTMENT OF VETERANS AFFAIRS, Defendant.

No. 13–cv–714–jdp.

United States District Court, W.D. Wisconsin.

Signed April 3, 2015.

Rose Byrd, Madison, WI, Pro Se.

John R. Sweeney, Anne Maryse Bensky, Wisconsin Department of Justice, Madison, WI, for Defendant.

OPINION & ORDER

JAMES D. PETERSON, District Judge.

Plaintiff Rose Byrd worked briefly as an administrative assistant for an agency within defendant Wisconsin Department of Veterans Affairs (DVA). Byrd alleges that during her three weeks at the agency, another employee sexually harassed her by sitting too close to her during training, making inappropriate physical contact with her, and commenting on the way she smelled. DVA denies any harassment and asserts that Byrd was a deficient employee because she did not complete assigned tasks on time, she failed to apply the training that she received, and she misrepresented her position to third parties. DVA fired Byrd less than a month after hiring her. Byrd filed suit in this court under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. She alleges quid pro quo sexual harassment, hostile work environment, and retaliation.

DVA has moved for summary judgment on all three claims. Dkt. 53. DVA has also moved to dismiss this case as a sanction for Byrd's discovery violations. Dkt. 68. I will deny DVA's motion to dismiss because, although Byrd has been difficult and uncooperative throughout, her non-compliance is not so severe as to warrant the ultimate sanction of dismissal. I will grant DVA's motion for summary judgment on Byrd's claims for quid pro quo sexual harassment and for retaliation. But Byrd has adduced some evidence to support her hostile work environment claim. Because Byrd did not identify this evidence in her brief, I will give DVA an opportunity to respond to it before ruling definitively on that claim. For now, however, the parties should assume that this case will go to trial on Byrd's hostile work environment claim.

UNDISPUTED FACTS

Although Byrd was originally represented by an attorney, she is now proceeding pro se, and thus I will give her some leeway in compliance with procedural requirements. Substantively, however, even a pro se plaintiff must cooperate in discovery and she must come forward with admissible evidence to meet a defendant's motion for summary judgment. Byrd's opposition to DVA's motion for summary judgment has the forgivable technical imperfections typical of a pro se litigant, but it is also substantively deficient.

To raise a genuine dispute of fact, Byrd must have evidence to support her version. She cannot raise a genuine dispute merely by denying the truth of a fact proposed and supported by DVA. Byrd has failed to genuinely dispute most of DVA's proposed facts, despite receiving a pretrial conference order with directions for how to do so. Dkt. 9, at 14. I recently reminded Byrd of these instructions and I provided her with a second copy of the pretrial directions. Dkt. 75 and Dkt. 75–1. For some of DVA's proposed facts, Byrd simply fails to identify evidence of record that supports her alternate version. See, e.g., Dkt. 76, at 4–5, 8–10, 13, 16–18, 20–22. For other facts, the evidence that Byrd cites does not actually support her alternate version. For still other facts, Byrd's “dispute” does not respond to the proposed fact, it merely offers tangential information. These same problems plague Byrd's own proposed findings of fact, Dkt. 81, most of which DVA has moved to strike. Byrd had ample warning that even though she is proceeding pro se, I would accept DVA's proposed facts as true if she failed to properly respond to them. Dkt. 9, at 11 and Dkt. 75–1, at 2. Thus, where the record does not obviously contradict DVA's proposed facts, I will accept those facts as undisputed. See Yancick v. Hanna Steel Corp., 653 F.3d 532, 543–44 (7th Cir.2011) (“[E]mployment discrimination cases are extremely fact-intensive, and neither appellate courts nor district courts are obliged in our adversary system to scour the record looking for factual disputes.”) (internal citations and quotation marks omitted).

Byrd began working for DVA on October 12, 2010, and unless otherwise noted, all of the relevant events occurred in 2010. She was hired as a limited term employee, and her title was Operations Program Associate. Byrd worked for the State Approving Agency, a section of DVA's Bureau of Programs and Services Division. That agency evaluates, approves, and monitors educational institutions that receive federal funds for students attending under the GI Bill. During Byrd's employment, the agency had four other full-time employees: Nina Smithback, Roger Boeker, Nancy Warner, and Chris Schuldes. Smithback and Boeker were Education Consultants, who evaluated and monitored the educational institutions with which the office interacted. Warner was an Operations Program Associate, and she provided administrative support to the Education Consultants. Schuldes supervised the office, although he also had other duties elsewhere in DVA. Schuldes's predecessor was Joseph Bertalan, who hired Byrd but left his position shortly thereafter to pursue a different job within DVA. Bertalan's only interaction with the State Approving Agency during the relevant time period was to assist with drafting the annual contract between the agency and the United States Department of Veterans Affairs.

Byrd was hired to provide administrative support to the Education Consultants. Her responsibilities included providing technical assistance to approved institutions, composing and proof-reading letters, maintaining a database of all approved schools in Wisconsin, and performing research or completing other duties as assigned by Smithback and Boeker. During the first few weeks of her employment, the Education Consultants trained her on how to perform these duties. During this training, Boeker allegedly harassed Byrd by sitting too close to her and pressing his arm against hers. In response, Byrd suggested to Boeker that they relocate her training sessions to the conference room, where there would be more space.

Later during Byrd's first week, Boeker went to Schuldes to inform him that Byrd was having difficulty completing the training. Schuldes called Byrd into his office. During their meeting, Byrd told Schuldes that she “was having a very difficult time working with Roger Boeker. And specifically ... that the proximity of working with him was very harassing.” Dkt. 49 (Byrd Dep. 94:2–5). Byrd requested that her training sessions be held in the conference room, rather than at her desk, and Schuldes approved the request.

In addition to the training sessions, Boeker had regular contact with Byrd when he retrieved files from Byrd's work area. Byrd alleges that when he did so, Boeker would shove his crotch and buttocks against her shoulder. Byrd also recounts comments that Boeker made about the way she smelled. The parties dispute what exactly Boeker said, but they agree that a DVA employee in a different (but connected) office, Gundy Metz, had allergies that could be triggered by strong fragrances or perfumes. DVA contends that Boeker relayed this information to Byrd and told her that the scent she wore was strong so she might want to “tone it down.” Dkt. 87, at 23–24. Immediately after the incident, Byrd sent Boeker an e-mail. In pertinent part, she wrote:

Hi Roger:

I am responding to your comments a few minutes ago about you “noticed smelling me as I went by ...”

I want you to know that I thought your comments were highly inappropriate to me as a reference to “... Gundy's allergies ...”

Dkt. 61–1, at 28 (alterations in original).

Byrd asked Schuldes if she could relocate her workspace. Schuldes agreed. But there was a miscommunication about moving Byrd's computer because IT personnel took the machine, held it for three days, and then returned it to her original desk on October 27. Byrd moved the computer to the correct desk, and went to the IT employee responsible, Mark Soleimani, to inquire about his reasons for returning the computer to the wrong desk. Byrd and Soleimani returned to the office together where, according to Byrd, Soleimani became very hostile toward her. He took the computer from Byrd's new desk, returned it to her old cubicle, and yelled at her that she did not have the authority to move computer equipment. Byrd wrote an e-mail to Schuldes the next day, expressing her “concern ... that Mark violated the WDVA's policy concerning violent behavior in the workplace. His conduct was very hostile, violent, and senseless.” Dkt. 81–4, at 20.

Byrd had a second confrontation with Soleimani on October 29, this time because Byrd took it upon herself to move a computer speaker from another desk onto her own. In another email to Schuldes, Byrd relayed that Soleimani had again been hostile, disrespectful, and rude toward her by saying that she did not have authority to move computer equipment. Byrd concluded her e-mail by stating “I have already submitted a Complaint to you regarding Mr. Soleimani whom I don't know and have never met except for his hostilities I've reported and I am reporting now. Please let me know if I should refer my Complaint regarding Mr. Soleimani to a higher authority within WDVA.” Id. at 21.

Byrd's employment with DVA did not last long. She did not complete tasks on time and did not apply the training that Boeker and Smithback provided to her.¹

In addition, Boeker and Warner both received complaints from educational institutions regarding the tone and content of official correspondence from Byrd.² Finally, Byrd routinely focused on tasks or duties that were outside the scope of the administrative support position for which she was hired, despite instructions from Boeker and Schuldes not to do so. In his deposition, Boeker described Byrd's work as “unfocused, small volume, [and] infected with ... opinion that was unsubstantiated by her...