Dahm v. Flynn
| Decision Date | 24 June 1993 |
| Docket Number | No. 92-C-529-C.,92-C-529-C. |
| Citation | 825 F. Supp. 224 |
| Parties | Cyneth K. DAHM, Plaintiff, v. William F. FLYNN, Jr., Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
Richard V. Graylow, Lawton & Cates, Madison, WI, for Cyneth K. Dahm.
Richard Moriarty, Asst. Atty. Gen., Madison, WI, for William F. Flynn, Jr.
In this civil action brought pursuant to § 1983, a former employee of the Wisconsin Lottery charges that the former director of the Lottery retaliated against her for raising questions about agency morale at a legislative audit hearing.
The case is before the court on the parties' cross-motions for summary judgment and plaintiff's request for an interlocutory order dismissing certain affirmative defenses. I conclude that plaintiff has failed to show that the actions taken allegedly by defendant were of a kind that would tend to chill a reasonable person's exercise of her First Amendment rights, and therefore she has failed to establish a deprivation of constitutional magnitude. Defendant's motion for summary judgment will be granted.
To succeed on a motion for summary judgment, the moving party must show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Indiana Grocery, Inc. v. Super Valu Stores, Inc., 864 F.2d 1409, 1412 (7th Cir.1989). When the moving party succeeds in showing the absence of a genuine issue as to any material fact, the opposing party must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991). The opposing party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Also, if a party fails to make a showing sufficient to establish the existence of an essential element on which that party will bear the burden of proof at trial, summary judgment for the opposing party is proper. Id. at 322, 106 S.Ct. at 2552.
For the purpose of this motion only, I find from the parties' proposed findings of fact that the following material facts are not in dispute.1
Defendant Flynn was executive director of the lottery from its inception in January 1988 to September 30, 1992. Prior to becoming executive director, Flynn had been deputy director of the Colorado Lottery. He had no experience with personnel policies or practices of Wisconsin state agencies.
Plaintiff was employed as personnel director at the Wisconsin Lottery from April 4, 1988 until April 3, 1992. Plaintiff's position was in the personnel services bureau, one of five bureaus within the Administration and Operations Division, one of five divisions within the lottery. Plaintiff reported to and was supervised by the Director of the Administration & Operations Division, a position occupied by Bernard Mrazik from February 1988 to December 1991. Mrazik had prior experience in running Wisconsin state agencies and defendant Flynn allowed him relatively free rein in his position.
Plaintiff was responsible for the recruitment and hiring of employees for all the classified positions in the Lottery. She either wrote or reviewed all position descriptions and was involved in interviewing and orienting new employees. The position description defining plaintiff's role as personnel director included a wide variety of personnel-related duties, among which were the staffing and classification of positions, employee relations and grievance processing, affirmative action, employee assistance, training, and ensuring agency compliance with civil service regulations. Pursuant to her job description, plaintiff was to report to Mrazik concerning all her job duties except affirmative action issues, for which she was to report to defendant Flynn.
From April 1988 to February 1991, plaintiff accompanied Mrazik approximately once a month to his meetings with defendant. In this period, plaintiff met approximately once a week at a regularly scheduled meeting with representatives from the other bureaus within Administration and Operations.
On December 20, 1988, as a result of her work at the lottery, plaintiff received an honorable mention for an award for outstanding female employees in state service. On June 19, 1990, plaintiff received a performance evaluation from Mrazik in which he stated her performance was above satisfactory. On or about June 26, 1990, plaintiff received an "Exceptional Performance Award," at which time defendant Flynn sent Plaintiff a cover letter recognizing her outstanding work performance. Nonetheless, after plaintiff was hired, it was Flynn's belief that she had difficulty in writing position descriptions, had not taken appropriate steps in hiring an accountant and had mishandled several reclassification requests.
On April 25, 1989, plaintiff distributed a statement to all employees of the Wisconsin Lottery detailing the procedures for handling reclassification requests. A reclassification is a personnel action which permits state employees to raise their civil service classification to reflect a logical and gradual increase in the amount or complexity of duties performed by the employee. Reclassification entails an upward adjustment in salary. Requests are assigned an effective date commencing with the first date of the pay period subsequent to filing. For any reclassification request that is ultimately approved backpay is calculated from this effective date. Plaintiff considered the reclassification audits she performed at the lottery to be more complex and time-consuming than in her previous experience because the lottery positions were new and each position had yet to be established as part of an automatic progression series.
Out of 145 positions at the Wisconsin Lottery, 26 reclassification requests were received during 1989. Plaintiff and her assistant, Kathy Gerber, completed auditing only two of those requests by the end of 1989 (with two other employees having transferred to other agencies). During 1990, plaintiff and Gerber completed audits for 17 of the requests made in 1989 and two of 19 requests made in 1990.
Plaintiff met regularly with employees to answer questions regarding personnel issues. By mid-1989, the number of employee meetings had become a daily occurrence. Employees expressed dissatisfaction with management, particularly, that supervisors disregarded their questions in a hostile and non-conciliatory manner. It was plaintiff's opinion that the repeated conflicts between supervisors and employees were resulting in declining employee morale at the lottery. In response, plaintiff proposed to create an employee handbook that would include an approved grievance procedure.
In mid-1990, the Legislative Audit Bureau conducted a program audit of the lottery. As part of its audit report, the bureau describes issues raised during program audits that the Audit Director determines to be of legislative and public interest. Two lottery employees interviewed initially by the bureau alleged the existence of an employee morale problem stemming from management practices and indicated to the bureau personnel that plaintiff was attempting to address employee dissatisfaction. Following this lead, the Audit Director, Patrick Cooper, and Laura Sausen, an audit program analyst, approached plaintiff, stating only that they wished to interview her pursuant to a routine audit.
Dahm met with Sausen and Cooper at the lottery on or about September 28, 1990. When asked about employee morale, plaintiff stated that a problem existed. She told Cooper that the source of low employee morale stemmed in part from: (1) Flynn's refusal to approve or deny reclassification audit recommendations completed by Dahm; (2) Flynn's refusal to approve an employee manual that included a grievance procedure; and (3) Flynn's refusal to discontinue use of an applicant personal history statement that lottery legal counsel had advised was likely in violation of the Wisconsin Fair Employment Act. In addition, plaintiff stated that she understood from discussions with lottery employees that the treatment of employees by supervisors was damaging morale. Plaintiff did not express dissatisfaction with the terms of her own work. After the meeting, plaintiff told lottery legal counsel Michael Liethen that Sausen and Cooper were available to speak with other employees concerning the audit.
The lottery audit report released to the public on January 24, 1991 contained a section describing the employee morale problem. During Cooper's tenure at the Legislative Audit Bureau, he has been involved in conducting approximately seventy program audits, fifty of which he directed. The lottery audit report was only the second released by Cooper that included a section on employee morale. Bureau officials included this section only after conducting thirty additional interviews with lottery employees to ascertain (1) that a consistent pattern of complaints and concerns existed; and (2) that this pattern had at least the potential to affect the performance of the lottery adversely.
Bureau auditors noted the following as common problems cited by employees: (1) lack of interest by top managers in staff concerns and opinions; (2) rigid adherence to the chain of command; and (3) an environment of intimidation and lack of recognition of staff contributions. The auditors identified the following management practices to be among the sources of employee grievances: (1) positions held vacant for too long; (2) lack of movement on reclassification requests; (3) perceived abuse by top...
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Dahm v. Flynn, 93-2614
...specific in identifying how Flynn retaliated against her and that Flynn's actions were not materially adverse as a matter of law, 825 F.Supp. 224. I. We accept the following facts as true for purposes of our discussion, setting aside certain factual disputes and construing the record in a l......