Hamm v. Weyauwega Milk Products, Inc.

• Decision Date: 09 May 2002
• Docket Number: No. 00-C-1283.,00-C-1283.
• Citation: 199 F.Supp.2d 878
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Michael HAMM, Plaintiff, v. WEYAUWEGA MILK PRODUCTS, INC., Defendant.

199 F.Supp.2d 878

Michael HAMM, Plaintiff, v. WEYAUWEGA MILK PRODUCTS, INC., Defendant.

No. 00-C-1283.

United States District Court, E.D. Wisconsin.

May 9, 2002.

Ryan M. Benson, Stevens Point, WI, for Plaintiff.

Lauri D. Morris, Madison, WI, for Defendant.

DECISION AND ORDER RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

CALLAHAN, United States Magistrate Judge.

I. PROCEDURAL BACKGROUND

In this action, filed on September 22, 2000, the plaintiff, Michael Hamm ("Hamm"), alleges that the defendant, Weyauwega Milk Products, Inc. ("Weyauwega"), discriminated against him on the basis of his sex, creating a hostile work environment, and retaliated against him, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

Currently pending before the court is defendant Weyauwega's motion for summary judgment filed pursuant to Federal Rule of Civil Procedure 56, alleging that there are no issues of material fact to be resolved and that judgment as a matter of law should be granted in its favor. Hamm filed a response in opposition to Weyauwega's motion for summary judgment. Subsequently, Weyauwega filed a reply. Weyauwega was also given leave by the court to file a supplemental brief in support of its motion for summary judgment, including two additional proposed findings of fact.

This court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, federal question jurisdiction. Venue in the Eastern District of Wisconsin is proper pursuant to 28 U.S.C. § 1391. All parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General L.R. 73.1 (E.D.Wis.). The defendant's motion for summary judgment is fully briefed and ready for resolution. For the reasons which follow, Weyauwega's motion for summary judgment will be granted.

II. FACTUAL BACKGROUND

In support of its motion for summary judgment, the defendant filed a set of proposed findings of fact ("DPFOF"). The plaintiff subsequently submitted his own proposed findings of fact ("PPFOF") and was allowed, by leave of court, to file a late response to the defendant's proposed findings of fact ("Pl.'s Resp. to DPFOF"). The defendant then filed responses to the plaintiff's proposed findings of fact ("Def.'s Resp. to PPFOF") and was permitted, by leave of court, to file additional proposed findings of fact ("Def.'s Add'l PFOF"). A review of those submissions reveals the following to be the material, undisputed (unless otherwise indicated) facts in this case.

Plaintiff Michael Hamm was employed by Weyauwega from July 1992 until July 1999. (DPFOF ¶ 1; PPFOF ¶ 6.) Hamm held numerous positions during his employment with Weyauwega, which employs approximately 170 people. (DPFOF ¶ 2; PPFOF ¶ 80.) The Weyauwega plant was almost exclusively male; no women worked in the 640 room, the whey department, or in intake, which are all areas of the plant where Hamm worked and encountered difficulties with his coworkers. (DPFOF ¶ 88.) Although there were others, Hamm alleges that the two coworkers who harassed him most frequently were Dean Bohringer and Fred Kivisto. (PPFOF ¶ 14.)

On January 15, 1998, Hamm filed his first written complaint with Weyauwega detailing incidents during which one of Hamm's coworkers, Dean Bohringer ("Bohringer"), threatened Hamm. (Pl's Resp. to DPFOF ¶ 11.) Specifically, Hamm reported that Bohringer threatened that if Hamm did not do his job correctly he would "kick [Hamm's] ass to make [Hamm] do so." (DPFOF ¶ 12.) Hamm also reported an incident in the break room during which Bohringer threw open the break room door, "started cursing and swearing at him" for failing to replace the empty barrel of foam clean, and subsequently threw a chemical barrel,¹ "bitching and screaming how [Hamm] was a worthless piece of shit and [Hamm] should quit." (DPFOF ¶ 13; Pl's Resp. to DPFOF ¶ 13.) Hamm acknowledged that he yelled back at Bohringer during the incident. (DPFOF ¶ 14.) Hamm alleged that, during a third incident, Bohringer blew up at Hamm because Bohringer believed that Hamm was screwing up equipment and was not working quickly enough. (DPFOF ¶ 15.) In response to Hamm's complaint, Weyauwega subsequently instructed Bohringer to "cut down on his swearing when he is mad" and asked Hamm to reduce the amount of time he visited with other employees and to follow plant procedures more closely, which both employees agreed to do. (DPFOF ¶¶ 17, 18.)

During the summer of 1998, following Hamm's first complaint to Weyauwega, Weyauwega managers documented a number of errors made by Hamm in performing his work duties, including punching in early (June 20, 1998), failing to wash the recon tank (July 16, 1998), damaging a milk truck by backing it into a beam and driving trucks too fast (August 12, 1998.) (DPFOF ¶ 29.) Additionally, on August 14, 1998, one of Hamm's supervisors, Darwin Handschke ("Handschke"), reported that he had observed Hamm spending too much time talking with his co-worker, Jeff Zietlow ("Zietlow"), specifically that he saw Hamm talking to Zietlow three times within about one hour and that Hamm left as soon as he saw Handschke. (DPFOF ¶ 20.) Handschke also noted that Hamm failed to complete his job prior to leaving for the day on August 15, 1998. (DPFOF ¶ 21.) Above all, one of Hamm's coworkers, Michael Roemer ("Roemer"), wrote a letter to management dated August 14, 1998, detailing the "games" he perceived that Hamm played during work time and relating incidents of horseplay involving missing time cards, games with Roemer's can of soup, dirty underwear in Roemer's locker, and Hamm's use of chemicals to clean the lunchroom tables while Roemer was trying to eat lunch. (DPFOF ¶¶ 22, 23.) Roemer concluded his letter by expressing his suspicion that Hamm was involved in much of the horseplay that occurred in the plant. (DPFOF ¶ 24.)

Weyauwega subsequently gave Hamm a final written warning letter on August 18, 1998, instructing Hamm (1) to stop the horseplay in which he was involved, (2) to stop talking with Zietlow other than for job-related activities, and (3) to cooperate with fellow employees and act as a team player. (DPFOF ¶ 25.) The letter concluded: "If you fail to change your ways to improve, or if we have any complaints about any horseplay, or pranks taking place, or if you are seen talking with Jeff Zietlow in any production areas or the intake while on duty and punched in for work and this is non-work related, we will have no choice but to terminate your employment from Weyauwega Milk Products, Inc." (DPFOF ¶ 26.)

After receiving the final written warning letter, on August 20, 1998, Hamm filed a complaint with the City of Weyauwega Police Department² regarding incidents at work, reporting to Chief Larry Strauss that he was being verbally abused at Weyauwega, that coworkers were picking on him, yelling at him, complaining that he was not doing his job, and turning his machines off and on. (DPFOF ¶ 41.)

Hamm also filed initial charges with the Wisconsin Equal Rights Division ("ERD") on September 3, 1998 regarding his claims of sexual harassment and retaliation. (PPFOF ¶ 1.) Hamm stated that the "basis" for the ERD complaint was "sex/malehertosexual [sic] Marital Status — single." (PPFOF ¶ 40.) In the charges filed with the ERD, Hamm alleged, among other things, that he had "faggot" written on his locker, that he was called a faggot, bisexual, and Girl Scout³ by Bohringer, that he had "been threatened to be killed, have [his] neck snapped, [and] had things thrown at [him]" by Bohringer, and that when he brought these incidents to management's attention he was given a final written warning for talking to Zietlow, "a person also perceived as gay by that certain individual." (DPFOF ¶ 27.) Hamm also stated that he believed he was retaliated against "for telling the office of [Bohringer] screaming and yelling at me referring to me as gay, faggot, Girl Scout and bisexual and always threatening to harm my body and mind." (DPFOF ¶ 28.)

Although the timing is unclear, it is uncontradicted that there was a rumor circulating at the Weyauwega plant that Hamm and Zietlow were lovers and that employees believed that there was something funny about Hamm's relationship with Zietlow. (DPFOF ¶ 50; Pl.'s Resp. to DPFOF ¶ 50; DPFOF ¶ 52; see PPFOF ¶ 9 (stating that co-workers thought Zietlow and Hamm had a homosexual relationship).) Weyauwega employees thought it odd for Hamm to buy presents for Zietlow, including a four-wheeler about which a dispute over ownership subsequently arose. (DPFOF ¶¶ 47, 53.) Additionally, Hamm's coworkers questioned him about whether he had a girlfriend and why he was not married. (PPFOF ¶ 8.)

To address the issues raised by Hamm in his complaints, Weyauwega set up a meeting for October 5, 1998 between Weyauwega's Vice President, Richard Wagner ("Wagner"), Weyauwega's MIS & Human Resources Director, Don Kallas ("Kallas"), Weyauwega's Plant Manager, Dan Stearns ("Stearns"), Bohringer and Hamm. (DPFOF ¶ 31; PPFOF ¶ 47.) At the meeting, Bohringer apologized to Hamm for getting angry and swearing at him and Hamm agreed to focus on performing his job correctly. (DPFOF ¶¶ 32, 33.) Hamm then requested that Bohringer apologize to Zietlow as well. (DPFOF ¶ 34.) When Zietlow was subsequently called into the meeting, Bohringer apologized to him. (DPFOF ¶ 34.) Kallas placed a call to the ERD at the end of the meeting and requested a form for Hamm to withdraw his complaint. (DPFOF ¶ 35; Pl.'s Resp. to DPFOF ¶ 35.) Kallas then handed the phone to Hamm who indicated to the ERD that he had decided to withdraw the complaint. (Pl.'s Resp. to DPFOF ¶ 35.) Hamm later contacted the ERD stating that he had decided not to withdraw the complaint. (Pl.'s Resp. to DPFOF ¶ 35; PPFOF ¶ 49.)

On October 13, 1998, Weyauwega wrote Hamm a letter agreeing to rescind the final written warning that Hamm had received in August 1998. (DPFOF ¶ 38.) And Hamm wrote a letter to the ERD on or about October 19, 1998...