Felde v. Milwaukee Cnty.

• Decision Date: 05 February 2021
• Docket Number: Case No. 18-CV-84
• Parties: DOUGLAS W. FELDE, Plaintiff, v. MILWAUKEE COUNTY, CHRISTOPHER LUKAS, KENNETH SKOWRONSKI, TIMOTHY BROWN, and MARCUS BROWN, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

DOUGLAS W. FELDE, Plaintiff, v. MILWAUKEE COUNTY, CHRISTOPHER LUKAS,KENNETH SKOWRONSKI,TIMOTHY BROWN, and MARCUS BROWN, Defendants.

Case No. 18-CV-84

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

February 5, 2021

DECISION AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

Douglas W. Felde filed a lawsuit against Milwaukee County (the "County") alleging violation of 42 U.S.C. § 2000e et seq. ("Title VII"); the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12203(a)-(b), as amended; and the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq. (Am. Compl., Docket # 20.) Felde also sued four individual employees and former employees under the Equal Protection Clause of the Fourteenth Amendment via 28 U.S.C. § 1983. (Id.) The County filed a motion for summary judgment (Docket # 50), and the other defendants filed a joint motion for summary judgment (Docket # 51). After careful review of the record and for the reasons explained below, while I sympathize with Felde, who credibly alleges an extremely unpleasant and often degrading work environment, I must grant both motions.

BACKGROUND

Felde worked for Milwaukee County as an airport maintenance worker at General Mitchell International Airport ("GMIA") from November 4, 2004 until he retired on April 22, 2016. (Plaintiff's Proposed Findings of Fact ("PPFOF") ¶ 1, Docket # 74 and Defendants' Resp. to PPFOF ("Defs.' Resp.") ¶ 1, Docket # 81.) Felde had worked for the County in other positions since March 1991 and transferred to GMIA with thirteen years of seniority. (Defendants' Proposed Findings of Fact ("DPFOF") ¶¶ 1-4, Docket # 65 and Plaintiff's Resp. to DPFOF ("Pl.'s Resp.") ¶ 1-4, Docket # 71.) More seniority allowed an employee to have preferential shift selection, assignments, and vacations. (Id. ¶ 4.) Felde retired on April 22, 2016. (PPFOF ¶ 1 and Defs.' Resp. ¶ 1.)

Felde currently identifies as a gay man, but never told any co-workers that he was gay. (PPFOF ¶ 2 and Defs.' Resp. ¶ 2.) Additionally, Felde has been diagnosed with bipolar disorder since at least 2007. (PPFOF ¶ 94 and Defs.' Resp. ¶ 94.) Felde began therapy in 2012 and held himself out to his therapist as being heterosexual. (DPFOF ¶ 6 and Pl.'s Resp. ¶ 6.)

Alleged Sexual Harassment/Hostile Work Environment

Felde alleges chronic harassment during his employment at GMIA in the form of name-calling, offensive remarks, and physical aggression. He catalogues dozens of actions by dozens of individuals over more than eleven years, virtually all of which he alleges were motivated by his sexual orientation or failure to conform to gender stereotypes. (PPFOF ¶¶ 3-83.) Felde alleges that this mistreatment made his employment so intolerable that he had to take early retirement in 2016. (Id. ¶ 92.)

Felde complained to supervisors about mistreatment by co-workers several times during his employment. In November 2005, he filed a written complaint with a manager, defendant Christopher Lukas, about an obscene gesture and profane language directed toward him. (PPFOF ¶ 12 and Defs.' Resp. ¶ 12.)

In January 2012, Felde reported being called sexually derogatory names, being questioned about his sexual preferences, being verbally and physically bullied by co-workers, and having his personal property vandalized. (PPFOF ¶¶ 31-33 and Defs.' Resp. ¶¶ 31-33.) In February 2012, Felde disclosed further incidents, including one in which co-worker Dushon Wilson allegedly hit Felde on the head with his penis. (PPFOF ¶¶ 34-35 and Defs.' Resp. ¶¶ 34-35.)

Felde claims that in 2013 he told a supervisor, defendant Kenneth Skowronski, that his coworkers were ridiculing his biking clothes and making offensive and demeaning remarks about the fit of his biking clothes and his state of undress in the locker room, taunting him with remarks insinuating that Felde was gay. (PPFOF ¶ 54 and Defs.' Resp. ¶ 54.)

In December 2014, Felde told Skowronski about two recent actions by co-workers as well as other incidents that had occurred in the past. (PPFOF ¶¶ 59-60 and Defs.' Resp. ¶¶ 59-60.) On February 20, 2015, Felde filed a grievance requesting a meeting to discuss the allegedly hostile work environment. (PPFOF ¶ 69 and Defs.' Resp. ¶ 69.) On April 27, 2015, Felde met with County Human Resources representative Lisa Terry and presented a six-page statement detailing perceived mistreatment throughout his employment. (PPFOF ¶ 73 and Defs.' Resp. ¶ 73.)

During the relevant time period, Milwaukee County's Sexual Harassment Policy described the procedures for reporting harassment as follows:

If you feel you have been sexually harassed by an employee, manager, elected official, customer, vendor, or contractor, or if you have observed such conduct in the workplace, please follow the procedures below:

• Report the problem to your supervisor, a higher-level manager within your business line, Human Resources, or the Employee Relations Hotline (278-2000). There are many people who are in a position to help - but it is difficult to help if the problem is not reported.

• Maintain confidentiality. During the investigation, we will ask all parties to keep information that is shared confidential. This is in the best interest of all parties who may be affected by or included in the investigation.

• Inform Human Resources if you feel you are being retaliated against as a result of reporting the sexual harassment. Retaliation against the complainant or witnesses will not be tolerated.

• Consider using our employee assistance program. United Healthcare offers free professional counseling to employees who need guidance and counseling during difficult situations. The program is not a substitute for reporting the incident to Milwaukee County, but it exists to help you deal with the emotional and stressful implications of these types of problems.

Once an incident is reported, Human Resources will ensure a prompt and thorough investigation. The investigation may include interviews with the person who feels harassed, the accused harasser, and witnesses, as appropriate. Every effort will be made to keep all complaints and the details of the situation as confidential as possible. However, it may be necessary to share information with others on a "need to know" basis during the investigation.

(Declaration of Scott Brown ("Brown Decl.") ¶ 3, Ex. A at 3, Docket # 52-1.) The policy also required managers to report and act on problems, as follows:

If you see or hear of unacceptable behavior within or outside of your work group - whether by a manager, employee, elected official, customer, vendor, or contractor - it is your responsibility to report and act on that behavior promptly. Your knowledge of inappropriate behavior may result in County liability if prompt and appropriate action is not taken.

(Id.) The policy reiterated that managers were to "[r]eport the behavior to Human Resources so that the problem can be investigated immediately." (Id. at 4.)

Alleged Failure to Accommodate

In January 2012, Felde disclosed to Lukas and County Human Resources Coordinator Sean Moore that he had bipolar disorder. (PPFOF ¶¶ 114-15 and Defs.' Resp.¶¶ 114-15.) Felde did not request any accommodation for his bipolar disorder at that time. (DPFOF Resp. ¶ 43 and Pl.'s Resp. ¶ 43.) Lukas and Moore later asked Felde if he needed an accommodation and he said no; Felde indicated that he had just wanted to make them aware of it. (DPFOF ¶ 45 and Pl.'s Resp. ¶ 45.)

In 2014 and 2015, Felde unsuccessfully requested to be assigned to Timmerman Airport. (PPFOF ¶ 65 and Defs.' Resp. ¶ 65.) Felde asserts that he told Skowronski and Lukas in December 2014 that he had bipolar disorder and that the environment at GMIA was exacerbating it, and requested to be assigned to Timmerman Airport as an accommodation. (PPFOF ¶¶ 61, 65 and Defs.' Resp. ¶¶ 61, 65.) Felde filed grievances on January 29, 2015 and February 25, 2015 about not being assigned to Timmerman. (PPFOF ¶ 69 and Defs.' Resp. ¶ 69.) Neither grievance mentioned bipolar disorder, disability, or accommodations. (Id.) During a meeting with Lukas and County Human Resources representative Luis Padilla on November 4, 2015, Felde claims to have again asked Lukas, unsuccessfully, to reassign him to Timmerman as an accommodation for his disability. (PPFOF ¶ 85 and Defs.' Resp. ¶ 85.)

Procedural History

Felde filed an intake questionnaire with the Equal Employment Opportunity Commission ("EEOC") in March 2015 and a charge of discrimination on April 26, 2015. (EEOC Charge No. 443-2015-00628, Brown Decl. ¶ 9, Ex. G, Docket # 52-7.) Felde filed a second EEOC intake questionnaire on February 1, 2016 and a charge of discrimination with the Wisconsin Equal Rights Division on March 21, 2017. (EEOC Charge No. 443-2017-00456, Brown Decl. ¶ 10, Ex. H, Docket # 52-8.) A right-to-sue letter was issued for thelatter charge on October 23, 2017. (Am. Compl. Ex. 4, Docket # 20-4.) A right-to-sue letter was issued for the earlier charge on March 6, 2018. (Am. Compl. Ex. 3, Docket # 20-3.)

Felde filed a complaint in this court on January 16, 2018 (Compl., Docket # 1) and an amended complaint on April 20, 2018 (Am. Compl., Docket # 20). The Defendants filed their motions for summary judgment on November 15, 2019. (Docket # 50, Docket # 51.) The motions are now fully briefed and ready for resolution.

The Defendants also filed a motion to strike the declarations of Sean Tourtillot (Docket # 67) and Kurt Zunker (Docket # 68), asserting that portions of these declarations are inadmissible hearsay and lack proper foundation. (Docket # 79.) The declarations are immaterial to the dispositive issues on summary judgment; as I explain where relevant, even if considered, they do not change the outcome. Therefore, I will deny the motion to strike as moot.

SUMMARY JUDGMENT STANDARD

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law....