Elbe v. Wausau Hosp. Center

• Citation: 606 F. Supp. 1491
• Decision Date: 22 April 1985
• Docket Number: No. 84-C-443,84-C-468.,84-C-443
• Parties: Joyce ELBE, Plaintiff, v. The WAUSAU HOSPITAL CENTER, Sandra Roe, Ronald Fought and other Unnamed, Unknown Co-Conspirators, Defendants. Karen HENSCHEL, Plaintiff, v. The WAUSAU HOSPITAL CENTER, Terence O'Rourke, John Olinger, Thomas Killian, Phil Aulwes, Mark Laurent and Peter Menor, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

606 F. Supp. 1491

Joyce ELBE, Plaintiff, v. The WAUSAU HOSPITAL CENTER, Sandra Roe, Ronald Fought and other Unnamed, Unknown Co-Conspirators, Defendants.

Karen HENSCHEL, Plaintiff, v. The WAUSAU HOSPITAL CENTER, Terence O'Rourke, John Olinger, Thomas Killian, Phil Aulwes, Mark Laurent and Peter Menor, Defendant.

Nos. 84-C-443, 84-C-468.

United States District Court, W.D. Wisconsin.

April 22, 1985.

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Michael R. Fox and Terence S. Hawkins, Fox Law Offices, S.C., Madison, Wis., for plaintiffs.

Peter L. Hessert, Tinkham, Smith, Bliss, Patterson, Richards & Hessert, Wausau, Wis., for defendants.

CRABB, Chief Judge.

These cases are before the court in a somewhat complicated posture. Defendants have moved to dismiss the complaints for failure to state a claim or for summary judgment. For the most part, defendants raise legal issues concerning whether the facts alleged by plaintiffs fail to state a claim upon which relief can be granted. With respect to plaintiff Henschel's age discrimination claim, defendants also contend that they are entitled to summary judgment on the undisputed facts. Defendants have submitted matters outside the pleading in support of their motion. With respect to plaintiff Henschel's age discrimination claim I will consider those factual matters, and thus I will treat defendants' motion with respect to that claim as a motion for summary judgment. See Rule 12(b) of the Federal Rules of Civil Procedure.¹ With respect to plaintiff Henschel's other claims and plaintiff Elbe's claims, I will not consider the factual material presented by defendants and will treat the motions as motions to dismiss for failure to state a claim under Rule 12(b)(6).

Plaintiffs have submitted motions for leave to amend their complaints and have attached proposed amended complaints. In response, defendants have suggested that because the issues raised in their motions are potentially dispositive, I should first rule on their motions before addressing plaintiffs' motions to amend. However, certain allegations in the amended complaints are relevant to asserted pleading deficiencies in the original complaints. Moreover, many of the legal issues raised by defendants apply with equal force to the original and amended complaints. Defendants do not raise any other arguments in opposition to plaintiffs' motions for leave to amend the complaints, and under Rule 15(a), leave to amend is to be "freely given when justice so requires." Therefore, I will grant plaintiffs' motions for leave to amend the complaints, with certain exceptions that will be noted.

Because several of the legal issues raised by defendants are common to both cases, I will deal with both cases together. I do not express any opinion as to whether these cases should be consolidated for pretrial purposes or at trial.

There is jurisdiction over plaintiffs' claims under 29 U.S.C. § 626(c) and 28 U.S.C. § 1343. There is also diversity jurisdiction over plaintiff Henschel's state law claims under 28 U.S.C. § 1332, while plaintiff Elbe alleges pendent jurisdiction over her state law claims.

Accepting the allegations of plaintiffs' amended complaints as true for the purpose of ruling on defendants' motions to dismiss, I find the following facts.

FACTS

Plaintiff Elbe was born on December 22, 1940. At all times relevant to this case she was over the age of 40. Plaintiff Elbe has been employed by defendant Wausau Hospital Center since August 22, 1962.

Plaintiff Henschel was employed by defendant Wausau Hospital Center as a radiologic technologist starting in June, 1974 and continuing through March 8, 1982, at which time her employment was terminated by defendant Wausau Hospital Center.

In June, 1981, a full-time registered nurse's position became available in defendant Wausau Hospital Center's emergency room. Plaintiff Elbe applied for the position, was qualified for promotion to the position, but did not receive it. The person who received promotion to the position was under the age of 40.

On September 23, 1981, plaintiff Elbe filed a charge with the State of Wisconsin Equal Rights Division, charge no. 81-03887, alleging that defendant Wausau Hospital Center had discriminated against her on the basis of her age by denying her the registered nurse position. This charge was also filed with the United States Equal Employment Opportunity Commission.

In response to plaintiff Elbe's filing of the age discrimination charge, defendants Fought and Roe formed a conspiracy to discriminate against persons over the age of 40 and to intimidate witnesses in the proceedings on Elbe's age discrimination charge.

On October 1, 1981, Rosemary Walden, a nurse employed by defendant Wausau Hospital Center, filed a complaint with the Equal Rights Division of the Department of Industry, Labor, and Human Relations against defendant Wausau Hospital Center alleging that she was discriminated against on the basis of her sex and age with regard to a position as a diagnostic radiology technologist.

Defendants O'Rourke, Killian, Aulwes, Olinger, Laurent, and Menor became aware of the complaints of both Elbe and Walden shortly after they were filed with the Equal Rights Division. On or before February 1, 1982, these defendants learned that plaintiff Henschel had been identified as a witness on behalf of Rosemary Walden in connection with Walden's complaint with the Equal Rights Division. At some time before February 24, 1982, these defendants learned that plaintiff Henschel had been identified as a witness on behalf of plaintiff Elbe in connection with plaintiff Elbe's age discrimination charge.²

In response to the identification of plaintiff Henschel as a witness on behalf of plaintiff Elbe, defendants O'Rourke, Killian, Aulwes, Olinger, Laurent, and Menor formed a conspiracy to intimidate, harass or retaliate against witnesses testifying on behalf of Rosemary Walden and plaintiff Elbe in connection with their discrimination complaints.

Subsequent to the filing of the Elbe and Walden complaints and the initial determination that plaintiff Henschel was a witness for Rosemary Walden, defendant Laurent, with the knowing assistance of the other individual defendants, solicited from other employees information critical of or damaging to plaintiff Henschel with the illegal purpose of using that information to retaliate against her for her participation in Equal Rights Division proceedings and to deter her from rendering further assistance to Walden or Elbe. This solicitation included a series of meetings held between February 24 and March 1, 1982, with former radiologic technology students who had interned or worked in the hospital's radiology department. In those meetings, defendant Laurent attempted to secure complaints with regard to the work performance of plaintiff Henschel and two other women who had been identified as witnesses for Walden and plaintiff Elbe. Although the students complained about other hospital employees who had not been named as witnesses, no action was taken against these employees.

On or about March 4, 1982, pursuant to the common plan of the conspiracy, defendants Laurent, Killian, and Menor met with plaintiff Henschel and two other women identified as witnesses in the Elbe and Walden cases. The purpose of this meeting was to discuss with the witnesses the criticisms which Laurent had solicited.

In the meeting of March 4, 1982, plaintiff Henschel, alone among the three witnesses, defended her job performance. On March 4, 1982, defendant Laurent met with defendant Olinger and the other individual defendants, at which time he recommended that plaintiff Henschel, but not the other witnesses, be disciplined.

On or about March 8, 1982, plaintiff Henschel was terminated from her employment with the Wausau Hospital Center. Her termination was affected without following the hospital's written disciplinary procedures, which provided for "step" or "progressive" discipline in all but the most egregious cases of misconduct. The "step" or "progressive" disciplinary policy had been followed in the cases of all male employees subjected to discipline.

Plaintiff Henschel has complied with 29 U.S.C. § 626(d) and 29 U.S.C. § 633(b), which require that a plaintiff must file a notice of intent to sue with the Equal Employment Opportunity Commission and with state equal employment agencies at least sixty days before filing suit and no more than three hundred days after the alleged unlawful practice occurred.

Pursuant to their conspiracy, on or about September, 1982, defendants Fought, Roe, and the unnamed defendants participated in making a decision to reduce plaintiff Elbe's working hours in retaliation for her filing of the age discrimination charge.

Subsequent to the reduction in plaintiff Elbe's hours, a position as head nurse of Wausau Hospital Center's out-patient surgery department opened. Plaintiff Elbe applied for the head nurse position for which she was qualified. Elbe was denied promotion to the head nurse position, and the position was given to a person under the age of 40. Elbe was more qualified than the person who was selected for the position and she met all of the minimum qualifications for that position.

As a result of having been denied the out-patient surgery position, plaintiff Elbe filed an additional charge of discrimination with the State Equal Rights Division, charge no. 83-00773, on April 25, 1983.

Defendants Roe, Fought, and the unnamed defendants became aware of this second discrimination charge soon after it was filed. Pursuant to the common agreement of the conspiracy described above, defendant Roe, plaintiff Elbe's immediate supervisor, embarked on a campaign of harassment directed to the plaintiff, which harassment took the form of groundless complaints about Elbe's work performance and supervision far closer, and criticism more exacting than that visited on any of Roe's other...