Doe v. Saftig

• Decision Date: 11 May 2011
• Docket Number: Case No. 09-C-1176
• Parties: K.H. JANE DOE, Plaintiff, v. NICOLE SAFTIG, CITY OF NEW BERLIN, and ZURICH AMERICAN INSURANCE COMPANY, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

K.H. JANE DOE, Plaintiff,

v. NICOLE SAFTIG, CITY OF NEW BERLIN, andZURICH AMERICAN INSURANCE COMPANY, Defendants.

Case No. 09-C-1176

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

SO ORDERED: May 11, 2011

DECISION AND ORDER

I. PROCEDURAL BACKGROUND

On November 30, 2009, the plaintiff filed this action against the defendants in the Circuit Court for Waukesha County, Wisconsin. The defendants removed the case to federal court on December 22, 2009, based on the plaintiff's federal claims under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681 et seq., and the Fourteenth Amendment. The action was assigned to this court and the parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General L.R. 73 (E.D. Wis.).

The plaintiff asserts seven causes of action. With regard to federal claims, the plaintiff alleges that defendant Nicole Saftig ("Saftig") violated the FCRA by disclosing the plaintiff's credit information and also violated the "due process and equal protection provisions of the Fourteenth Amendment... as enforced through 42 U.S.C. § 1983." (Am. Compl. 20, 22.) Additionally, the plaintiff asserts the following state law claims: (1) violation of the plaintiff's right to privacy pursuant to Wis. Stat.§ 995.50(2)(a) and (c); (2) intentional and negligent infliction of emotional distress; and (3) violation of the "due process and equal protection provisions of Article I §§ 1, 9 and 22 of the Wisconsin Declaration of Rights."¹ (Am. Compl. ¶¶ 19, 21, 23.)

In addition to her substantive claims, the plaintiff alleges that defendant City of New Berlin ("New Berlin") is responsible for the actions Saftig committed within the scope of her employment, pursuant to Wis. Stat. § 895.46. (Am. Compl. ¶ 24.) The plaintiff also asserts that Zurich American Insurance Company ("Zurich") is responsible for insuring the liabilities of both Saftig and New Berlin, pursuant to Wis. Stat. § 803.04(2)(a). (Am. Compl. ¶¶ 25, 26.)

On December 6, 2010, the defendants filed a motion for summary judgment seeking to dismiss all of the plaintiff's claims. The defendants' motion is now fully briefed and is ready for resolution by the court. For the reasons that follow, the defendants' motion will be granted in part and denied in part.

II. FACTUAL BACKGROUND

In accordance with the provisions of Civil L.R. 56(b)(1)(C) (E.D. Wis.), the defendants' motion for summary judgment was accompanied by a set of proposed findings of fact. The plaintiff filed responses to the proposed findings of fact set forth by the defendants. The plaintiff also filed additional proposed findings of fact, and the defendants filed its responses thereto. Before discussing the factual background of the case, the court will address the defendants' objection to the plaintiff's reliance on the New Berlin Police and Fire Commission Findings of Fact.

The plaintiff cites to the New Berlin Police and Fire Commission Findings of Fact in several of her responses to the defendants' proposed findings of fact and in the plaintiff's own proposed findings of fact. The defendants object to the plaintiff's use of the Commission's Findings of Fact, arguing thatthey are inadmissible.

Although the Commission's Findings of Fact are potentially hearsay, they may be admissible pursuant to Fed. R. Evid. 803(8)(C), which provides for admission of "factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness." See Allen v. Chicago Transit Auth., 317 F.3d 696, 700 (7th Cir. 2003) (finding an investigative report of a public agency admissible and further stating that the weight given to such evidence "is for the jury to decide, not the judge in ruling on a motion for summary judgment.").

For purposes of the defendants' motion for summary judgment, the court finds no reason to believe that the Commission's Findings of Fact "lack trustworthiness". The defendants allege that the factual findings are based on a "flawed process" and should therefore be disregarded. However, the defendants themselves cite to several portions of the Commission's factual findings to support the defendants' proposed findings of fact. For the present purposes, I find the Commission's Findings of Fact admissible. However, this decision has no bearing on the court's decision to admit or exclude the findings should the case proceed to trial. See Halloway v. Milwaukee Cnty., 180 F.3d 820, 827 n.9 (7th Cir. 1999) ("Administrative findings are sometimes admissible as evidence. Nevertheless, the district court retains significant discretion as to whether such material ought to be admitted.") (citations omitted).

A review of the parties' respective proposed findings and the responses thereto reveal that, for purposes of the court's treatment of the defendants' motion, the following are the facts that are relevant to the disposition of the motion for partial summary judgment.

Before applying for the dispatcher position with the City of New Berlin Police Department ("Police Department"), the plaintiff was a nail technician and owned her own salon for approximatelyten years at various locations in Hales Corners, Wisconsin and New Berlin, Wisconsin. (Defendants' Proposed Findings of Fact ("DPFOF") ¶ 6.) She learned about the open dispatcher position with the Police Department from a client, New Berlin Police Officer Jean Morris ("Morris"). (DPFOF ¶ 7.)

The plaintiff applied for employment as a dispatcher with the Police Department on or about February 1, 2008. (DPFOF ¶ 5.) After completing the initial interview process, New Berlin Police Chief Joseph Rieder ("Rieder") contacted the plaintiff in July 2008 to inform her that the Police Department wanted to hire her to fill an open emergency dispatcher position. (DPFOF ¶ 10.) To complete the hiring process, the Police Department required the plaintiff to undergo a background check. (DPFOF ¶ 11.) This task was delegated to Saftig, a police officer with the Police Department. (DPFOF ¶¶ 2, 15.)

The Police Department conducts background investigations of all prospective candidates for employment. (DPFOF ¶ 12.) The background investigations involve interviews with the prospective candidate, screening of her prior employment history, and scrutiny of her financial status. (DPFOF ¶ 12.) The investigations also include contact with neighbors, acquaintances, and employers, as well as medical screenings and examinations. (DPFOF ¶ 12.)

The Police Department created a rule to protect the sensitive nature of information that members of the Police Department may learn during the discharge of their duties. (DPFOF ¶ 14.) One such rule, Rule 1.37 provides, in relevant part, as follows:

Dissemination of Information. Personnel will treat the official business and records of the department as confidential. Information regarding official business and records will be disseminated only to those for whom it is intended, in accordance with established departmental procedures.... Personnel will not divulge the identity of persons giving confidential information except as authorized by proper authority.

(DPFOF ¶ 14.) This rule is applicable to the conduct of personal background checks on prospective

employees. (DPFOF ¶ 14.)

Before her background check, the plaintiff consulted Morris regarding a gastric bypass surgery the plaintiff received in Mexico. (DPFOF ¶ 17.) The surgery resulted in a followup surgery in the United States due to surgical complications, and caused the plaintiff to have high credit card debt to pay for the surgeries, which were not covered by insurance. (DPFOF ¶ 17.) Morris felt the information would not be a problem as long as the plaintiff had paid her medical bills. (DPFOF ¶ 19.) Morris consulted her husband, without the plaintiff's permission, who is a Captain with the Police Department and he agreed that the financial issues surrounding the surgery would not be an issue in the hiring process. (DPFOF ¶ 20.)

She also told approximately two to four clients, in addition to Morris, about the circumstances surrounding the surgery in Mexico. (DPFOF ¶ 21.) The plaintiff also disclosed the gastric bypass procedure with Sherrie Callies and Shelly Haas, both of whom the plaintiff listed as references on her job application with the Police Department. (DPFOF ¶ 22.)

Lieutenant Jeff Hingiss ran the plaintiff's credit report before her interview with Saftig. (DPFOF ¶ 24.) Hingiss noticed a high level of personal debt. (DPFOF ¶ 24.) Hingiss provided this information to Saftig. (DPFOF ¶ 24.)

Saftig interviewed the plaintiff on or about July 11, 2008. (DPFOF ¶ 25.) During the course of the background interview, Saftig asked the plaintiff about the reasons for her high level of personal debt. (DPFOF ¶ 25.) The plaintiff told Saftig about the medical procedure in Mexico, which required further medical treatment in the United States. (DPFOF ¶ 25.) The procedure and the resulting treatment caused a high level of personal debt for the plaintiff because the procedure was elective and therefore not covered by insurance. (DPFOF ¶ 25.) The plaintiff told Saftig to limit her discussion of the information with only those who were involved in the employment decision-making process. (DPFOF ¶ 26.)

Medical bills and medical information obtained during the background investigation process are to be shared only with those departmental personnel who are in a "need to know" position. (DPFOF ¶ 27.) In the plaintiff's case, the people in the "need to know" position were Sergeant Park, Sergeant Godec, Captain Morris, Captain Zsohar, Chief Rieder and Lt. Hingiss. (DPFOF ¶ 27.) Saftig told Lt. Hingiss that the plaintiff's medical procedures were the reason for her high credit card debt. (DPFOF ¶ 27.)

During the background investigation, Saftig contacted the plaintiff's references, some of whom mentioned that the plaintiff had a gastric bypass...