Dahm v. Flynn, 93-2614

• Decision Date: 24 July 1995
• Docket Number: No. 93-2614,93-2614
• Citation: 60 F.3d 253
• Parties: Cyneth K. DAHM, Plaintiff-Appellant, v. William F. FLYNN, Jr., in both his individual and official capacities, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 253

60 F.3d 253

Cyneth K. DAHM, Plaintiff-Appellant,

v.

William F. FLYNN, Jr., in both his individual and official

capacities, Defendant-Appellee.

No. 93-2614.

United States Court of Appeals, Seventh Circuit.

Argued April 11, 1994.

Decided Nov. 23, 1994.

As Amended on Denial of Rehearing July 24, 1995.

John C. Talis (argued), Richard V. Graylow, Lawton & Cates, Madison, WI, for plaintiff-appellant.

Richard Briles Moriarty (argued), Wisconsin Dept. of Justice, Madison, WI, for defendant-appellee.

Before CUDAHY, EASTERBROOK, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Cyneth Dahm, the personnel director of the Wisconsin Lottery from 1988 through 1992, brought this action against William F. Flynn, Jr., the Executive Director of the Wisconsin Lottery, for money damages, injunctive relief, and declaratory relief pursuant to 42 U.S.C. Sec. 1983. Dahm claims that Flynn took a series of retaliatory steps against Dahm because Dahm was critical of Flynn when she testified before the Joint Audit Committee of the Wisconsin legislature regarding low employee morale within the Lottery. The district court granted summary judgment in favor of Flynn, holding that Dahm was insufficiently 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. Background

We accept the following facts as true for purposes of our discussion, setting aside certain factual disputes and construing the record in a light favorable to Dahm.

In January of 1988, defendant William F. Flynn, Jr. began employment as Executive Director of the newly-created Wisconsin Lottery. A month thereafter, the Lottery hired Bernard Mrazik as Director of the Administration & Operations Division. Mrazik, who was to work with Flynn in creating an organizational plan for the Lottery, hired plaintiff Cyneth Dahm as the personnel director for the Lottery effective April 5, 1988, with the approval of Flynn.

As the personnel director, Dahm initially spent half of her time administering the personnel program of the Lottery, splitting her remaining time between the following activities: 1) performing affirmative action duties; 2) assisting in employee relations, including involvement in grievance meetings and settlements; 3) assisting in employee training and evaluation; 4) coordinating the employee assistance program; 5) developing policy and procedure, including the creation of an employee handbook; 6) supervising two personnel assistants; and 7) performing as directed special assignments relating to personnel. An important part of Dahm's duties included the processing of employee reclassification requests, which in essence are requests for promotion and back pay. Dahm directly reported to Mrazik regarding all of these duties except affirmative action, for which she reported directly to Flynn. In performing this broad range of duties, Dahm's performance never was rated as less than satisfactory, and once during her tenure she received an Exceptional Performance Award from Flynn.

As part of her employee relations duties, employees often would ask Dahm questions related to personnel issues. In mid-1989, the frequency and intensity of Dahm's meetings with employees increased substantially. On a daily basis, employees expressed their frustrations to Dahm regarding management at the Lottery. Those meetings were endemic of an agency-wide employee morale problem that continued to worsen through mid-1990.

In mid-1990, pursuant to state statute the Legislative Audit Bureau (the LAB), a nonpartisan investigatory arm of the Joint Legislative Audit Committee of the Wisconsin legislature, began conducting a program audit of the Lottery. Investigations by the LAB uncovered the morale problems at the Lottery, and the LAB contacted Dahm to obtain more information regarding employee morale. The LAB interviewed Dahm, and she provided information regarding the Lottery's ability to meet its statutory goals. In January of 1991 the LAB issued a written report which included a section detailing employee morale problems in the Lottery.

After the LAB issued its written report, Dahm agreed to testify at a February 26, 1991 hearing on the report before the Joint Audit Committee (JAC) of the Wisconsin legislature. Dahm testified at the JAC hearing that low employee morale remained a large problem at the Lottery, and she attributed those difficulties to management, including Flynn. Specifically, Dahm stated that "Bill Flynn is aware that fear and intimidation are widespread in our agency and that much of it can be traced to management style."

After this testimony, the nature of Dahm's duties began to change. Among other areas, Dahm's involvement in position staffing, the personnel management program, employee relations, exam development and administration, and the processing of sexual harassment claims was reduced. Certain tasks formerly within her purview were, according to Dahm, delegated by her superiors to Dahm's assistants. Correspondingly, Dahm was given increased responsibility for the processing of pending reclassification requests. Over the course of time, a backlog of reclassification requests had built up, and Dahm was asked to expedite the processing of those requests. Dahm was also required to begin documenting her daily telephone calls and her meetings with Lottery employees. Dahm attributes each of these actions to Flynn. Although the parties dispute the extent to which Flynn had a hand in the assignment of tasks to Dahm, we find the record sufficient to support the inference that Flynn, through Mrazik and Mrazik's successor, Maureen Hlavacek, did involve himself in the restructuring of Dahm's activities, and for present purposes we shall assume that he did. ¹

Dahm perceived Flynn's actions as a de-skilling of her position, culminating in the proposed elimination of her position under a legislative proposal for the creation of the new Wisconsin Gaming Commission. Although Flynn opposed the elimination of Dahm's position (as well as his own), Dahm left the Lottery and sought other employment. Dahm filed suit against Flynn under 42 U.S.C. Sec. 1983, claiming that Flynn de-skilled her position in retaliation for the exercise of her First Amendment right to testify before the JAC. The district court granted summary judgment in favor of Flynn because Dahm had not been sufficiently specific in detailing the adverse actions Flynn took against her, and because the changes in Dahm's responsibilities did not connote demotion or punishment. Dahm now appeals from the district court decision granting summary judgment against her.

II. Analysis

We review the decision of the district court to grant summary judgment in favor of Flynn to determine whether, "after drawing all reasonable inferences in favor of the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Konowitz v. Schnadig Corp., 965 F.2d 230, 232 (7th Cir.1992); see Fed.R.Civ.P. 56(c). One basis for the decision of the district court was Dahm's lack of specificity in identifying how Flynn retaliated against her. The district court's opinion, however, provides an excellent summary of what we believe to be reasonably specific allegations of retaliation:

After her testimony of February 26, plaintiff accompanied Mrazik to only one personnel meeting with Flynn, whereas prior to her testimony she did so once a month; she never met with Flynn alone concerning affirmative action issues, whereas she had met with him once before her testimony; she was excluded from personnel issues involved in the reorganization of the sales division in July 1991 and from involvement with the defense of a pending Fair Labor Standards Act lawsuit; she was removed from the process of filling an attorney position at the lottery; she was prohibited from contacting district sales managers directly concerning the interpretation of work rules, which she had done prior to her testimony; and her roles in handling employee grievances and affirmative action issues were diminished. In addition, Flynn ceased consideration and implementation of a proposed employee handbook in part because Dahm was its author; Mrazik wrote plaintiff memoranda criticizing her performance; and certain personnel work was delegated directly to Dahm's assistant, undermining plaintiff's supervisory role.

The district court reasonably found a few of these actions to be trivial, such as not meeting with Flynn regarding affirmative action issues, Dahm having only met with Flynn one time prior to her testimony. Nevertheless, a fairly lengthy list that evidences an erosion of many of Dahm's work responsibilities remains. In fact, with the exception of the processing of reclassification requests, Flynn reassigned nearly all of Dahm's duties. We believe that for the purposes of a motion for summary judgment, one reasonably can infer that there exists a genuine issue of material fact regarding whether Flynn's actions were more than trivial.

The district court also expressed a more fundamental difficulty with Dahm's claim, namely that the shifting nature of Dahm's responsibilities within the confines of her job description cannot be characterized as "a materially adverse change in the terms and conditions of employment...." Crady v. Liberty Nat. Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir.1993). On one level, we agree with the district court, as this was not an obviously adverse action, such as termination, demotion, or a loss in benefits or salary. See id. at 135. Nor did Flynn strip Dahm of all of her duties, leaving her with nothing to do but read a good book--doing so would be adverse for all but those completely devoid of ambition or the need to be challenged. See id. at 136 ("significantly diminished material responsibilities" actionable). Rather, Flynn reduced many of Dahm's responsibilities...