Kmetz v. State Historical Soc.

• Decision Date: 03 February 2004
• Docket Number: No. 03-C-107-C.,03-C-107-C.
• Citation: 304 F.Supp.2d 1108
• Parties: Deborah KMETZ, Plaintiff, v. STATE HISTORICAL SOCIETY (WISCONSIN HISTORICAL SOCIETY), Board of Curators of the State Historical Society of Wisconsin (Wisconsin Historical Society), Director of the State Historical Society of Wisconsin, in his official capacity, George Vogt, in his individual capacity, and Michael Stevens, in his individual and official capacity, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

304 F.Supp.2d 1108

Deborah KMETZ, Plaintiff, v. STATE HISTORICAL SOCIETY (WISCONSIN HISTORICAL SOCIETY), Board of Curators of the State Historical Society of Wisconsin (Wisconsin Historical Society), Director of the State Historical Society of Wisconsin, in his official capacity, George Vogt, in his individual capacity, and Michael Stevens, in his individual and official capacity, Defendants.

No. 03-C-107-C.

United States District Court, W.D. Wisconsin.

February 3, 2004.

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Edward R. Garvey, Madison, WI, for Plaintiff.

Richard Moriarty, Assistant Attorney General, Madison, WI, for Defendants.

OPINION AND ORDER

CRABB, District Judge.

This is a civil action for monetary and injunctive relief brought pursuant to Wis. Stat. § 895.65 and 42 U.S.C. § 1983. Plaintiff Deborah Kmetz contends that defendants George Vogt (the former director of the State Historical Society of Wisconsin), Michael Stevens and the current director of the society, retaliated against her for exercising her right to free speech under the First Amendment by selecting her position for layoff, giving her a negative "Letter of Direction," making negative comments on her performance review and failing to reinstate her when private funding for her position became available. In addition, she asserts that defendants State Historical Society of Wisconsin, Board of Curators of the State Historical Society of Wisconsin, Vogt, Stevens and the current director retaliated against her for disclosing abuses in government authority and substantial waste of government funds. Plaintiff contends that her comments about the society's name change, fusing of identities of the society and a privately funded historical foundation, fiscal mismanagement within the society and defendant Vogt's salary increase negotiations motivated defendants' actions. Before the court are defendants' motion for summary judgment and their motion to exclude the affidavit of Julie Feller. Jurisdiction is present. 28 U.S.C. §§ 1331 and 1367.

Defendants' motion will be granted with respect to plaintiff's claim under Wis. Stat. § 895.65 and plaintiff's complaint against defendants society and board of curators will be dismissed. Plaintiff has not adduced any evidence to show that defendants knew that she had met with state auditors to discuss her concerns of fiscal mismanagement within the society before they took any allegedly retaliatory acts against her. None of plaintiff's other statements constitute a "disclosure." Wis. Stat. § 895.65 is a whistle blower statute and protects public employees against retaliation only for disclosures of certain types of information; it does not protect employees that voice their opinions and offer criticism.

However, plaintiff has shown that her comments addressed matter of public concern and defendants chose not to argue that their interest in promoting the public services their employees perform outweighs plaintiff's interest in commenting on matters of public concern. (Even if defendants fail to make this showing at trial, plaintiff will not be able to recover any damages relating to the letter of direction or for the weekly meetings individually because neither of these acts is sufficiently adverse to support a retaliation claim. However, she may recover for them if she persuades a jury that they form part of a campaign of petty harassment. In addition, plaintiff will not be entitled to injunctive relief unless she shows that defendants Stevens and director have the authority to carry out the relief she seeks.) Therefore, for the purpose of deciding defendants' motion, I conclude that plaintiff's comments are protected under the broader protection afforded by the First Amendment. Defendants' motion will be denied with respect to plaintiff's First Amendment retaliation claim.

As a preliminary matter, I must address defendants' motion to exclude the affidavit of Julie Feller regarding plaintiff's comments at a meeting of the Wisconsin Local History Council on June 15, 2002. (The dispute over the admissibility of this document at this stage is peculiar given that neither party relies on it in making any argument and it does not appear to be material to any of the issues raised on summary judgment.) In her affidavit, Feller avers that she has served as a legal assistant to plaintiff's lawyers and that she has 18 years of experience as a legal assistant. According to the affidavit, Feller transcribed tapes recorded by plaintiff from that meeting; the transcript is attached to the affidavit. Defendants argue that the affidavit lack sufficient foundation for a number of reasons. In response and in an attempt to cure the deficiencies, plaintiff has submitted a supplemental affidavit to which defendants object because it was submitted after the deadline for summary judgment documents.

Defendants have correctly recited the general rule that after the summary judgment briefing period has ended, a party may not supplement an affidavit with information that was known to them at the time they filed the original. E.g., Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269-70 (7th Cir.1996). However, this standard applies to new evidence and information relating to the merits of the issues presented in the summary judgment briefs; it does not apply to evidence relating exclusively to the admissibility of certain evidence. Other district courts have reached this conclusion in published opinions. See, e.g., Heary Bros. Lightning Protection Co., Inc. v. Lightning Protection Institute, 287 F.Supp.2d 1038, 1061-62, 1074 (D.Ariz.2003) (relying on supplemental affidavit filed after motion to exclude and summary judgment briefing period to buttress foundation of original); Berlyn, Inc. v. Gazette Newspapers, Inc., 214 F.Supp.2d 530, 539 (D.Md.2002) (same). Evidence regarding admissibility is properly submitted during briefing on admissibility; this is the logical counterpart to the rule stated by defendants.

Defendants argue that even if the court considers plaintiff's supplemental affidavit, the Feller transcript is inadmissible because it is "transparently deficient as an accurate record of what it purports to be." Dfts.' Reply Br. Supp. Mot. to Excl., dkt. # 83, at 5. First, they argue, plaintiff's supplemental affidavit does not identify plaintiff's method of recording the meeting and therefore, plaintiff has failed to establish that the recordings are reliable. Defendants ignore plaintiff's averments that the tape recorder she used was in proper operating condition at the time and that her recollection of the meeting supports the accuracy of Feller's transcription of her comments.

The Court of Appeals for the Seventh Circuit has adopted a relaxed standard for authentication of an audio recording. In Stringel v. Methodist Hospital of Indiana, Inc., 89 F.3d 415, 419 (7th Cir.1996), it held that authenticity may be established by the testimony of an eyewitness that the recording is consistent with his or her recollection. Because authenticity of the transcript follows the normal rules for the recording, 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 901.05[5] (2d ed.1997), plaintiff's testimony that the transcript is consistent with her recollection of her statements at the meeting is sufficient to authenticate the transcript.

Second, defendants note that plaintiff's affidavit indicates that she recorded the meeting on "four tapes" but the transcript is only four double-spaced pages. They argue that the four pages cannot possibly be the full transcript if the recording covered four tapes. However, Feller states in her affidavit that the four pages of transcript are only a portion of the full transcript; she does not represent the four pages as being a complete record of the entire meeting. A party is entitled to exclude irrelevant portions of a full document so long as the exclusion does not distort the evidence. See, e.g., United States v. Sanders, 962 F.2d 660, 678 (7th Cir.1992) (extracted portions of tape recording played before jury). Defendants Stevens and Vogt were both present at the meeting and would have reason to know if plaintiff had distorted her comments by omitting context, yet they neither argue that the extraction is a distortion nor identify any omitted information regarding context. Although they argue that Feller's affidavit does not indicate that the transcript includes all the statements plaintiff made at that meeting, they do not suggest that the letter of direction that defendant Stevens gave plaintiff regarding her comments at the meeting referred to any statement she may have made other than the ones in the transcript. Thus, any other comments plaintiff may have made at the meeting appear to be irrelevant to this case.

From the parties' combined proposed findings of fact, I find the following to be material and undisputed.

UNDISPUTED FACTS

A. The Parties

Plaintiff was employed at the state historical society's office of local history from 1979 until she was laid off on June 29, 2002. (Plaintiff was one of only two employees in the local history office; Thomas McKay was the other). In 1986, she became a local history specialist. In that position, she was responsible for providing support services for local historical societies and serving as their liaison to the Wisconsin Council for Local History. All of her annual performance evaluations indicate that she was meeting or exceeding her employer's expectations.

Defendant society is a membership organization and an agency of the state of Wisconsin. It has 12,240 members. The acting director of the society is Bob Thomasgard. Defendant board of curators governs defendant society and appoints its director but does not manage its daily affairs. Patricia Boge has been a...