Owens v. Ragland

• Decision Date: 12 April 2004
• Docket Number: No. 03-C-369-C.,03-C-369-C.
• Citation: 313 F.Supp.2d 939
• Parties: Selinda OWENS, Plaintiff, v. Enis RAGLAND, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

313 F.Supp.2d 939

Selinda OWENS, Plaintiff, v. Enis RAGLAND, Defendant.

No. 03-C-369-C.

United States District Court, W.D. Wisconsin.

April 12, 2004.

Robert J. Gingras, for Plaintiff.

John M. Moore, Bell, Gierhart & Moore, S.C., Madison, WI, for Defendant.

OPINION AND ORDER

CRABB, District Judge.

This is a civil action for monetary and injunctive relief, brought pursuant to 42 U.S.C. § 1983. Plaintiff Selinda Owens contends that defendant Enis Ragland sexually harassed her in violation of the equal protection clause of the Fourteenth Amendment and then retaliated against her when she complained about it, in violation of the First Amendment. Jurisdiction is present under 28 U.S.C. § 1331.

Defendant has moved for summary judgment on both of plaintiff's claims. The motion will be denied as to plaintiff's equal protection claim and granted with respect to her free speech claim. Defendant's sole argument with respect to plaintiff's equal protection claim is that she has failed to create a genuine issue of material fact as to her claim that defendant harassed her because of her sex. However, I disagree with defendant that harassment based on personal attraction cannot also be based on sex. Viewing the evidence in the light most favorable to plaintiff, a reasonable jury could find that defendant would not have exhibited the same conduct toward plaintiff if she were a man. Accordingly, defendant's motion for summary judgment will be denied with respect to this claim.

With respect to the retaliation claims, plaintiff has identified eight actions in her brief that she alleges defendant took against her because of her complaints about sexual harassment. Each of these claims fail because they are based on inadmissible evidence, because plaintiff has failed to show that the actions were sufficiently adverse to implicate the First Amendment or because plaintiff has failed to adduce evidence that defendant took the actions he did for a retaliatory reason.

Before I set forth the undisputed facts, I note that plaintiff supports several of her proposed findings of fact with nothing more than the allegations in her complaint. E.g., PPFOF, dkt. # 23, ¶¶ 100-02, 110, 116, 120-21, 146, 168. As defendant points out, the general rule is that a plaintiff may not rely on the allegations in her complaint in opposing a motion for summary judgment, at least if the allegations are not admitted in the defendant's answer. Sparing v. Village of Olympia Fields, 266 F.3d 684, 692 (7th Cir.2001). There is a limited exception: when a complaint is verified, a court will treat it as an affidavit and may consider it so long as it otherwise meets the criteria for admissibility. Ford v. Wilson, 90 F.3d 245, 246-47 (7th Cir.1996).

In this case, plaintiff did not declare under penalty of perjury that the allegations in her complaint were true. However, she argues that the court may consider these allegations regardless unless defendant has submitted admissible evidence that contradicts the allegations. She relies on a sentence in the advisory committee notes to Rule 56: "Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented."

It is difficult to see the logic of plaintiff's argument. Defendant is not required to contradict inadmissible evidence; he only has to object to its admissibility. Plaintiff suggests a rule that would allow courts to consider inadmissible evidence even when the opposing side objected to it unless the other party could adduce evidence showing that the inadmissible evidence was false. Rule 56 does not require such an absurd result. It is true, as the advisory committee notes state, that defendant has the initial burden to show that he is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, this rule has no bearing on the admissibility of a particular piece of evidence. It means only that defendant cannot prevail on his summary judgment motion if he does not support his motion with any evidence or argument. Accordingly, I have not considered any of plaintiff's proposed findings of fact that derive solely from her complaint.

UNDISPUTED FACTS

A. Plaintiff's and Defendant's Relationship

In 1996, plaintiff Selinda Owens began working as a secretary in the affirmative action office for the City of Madison. She was later promoted to the position of an equal opportunity assistant and then reclassified as an equal opportunity analyst. From 1997 to April 2003, defendant Enis Ragland was the chief of staff for Susan Bauman, Madison's mayor. Plaintiff met defendant when he was the mayor's chief of staff. Defendant would visit the affirmative action office at least once a week between 1997 and 2000. Defendant's job responsibilities did not include affirmative action.

In August 1999, plaintiff sent defendant an email at work thanking him (the email does not indicate what the thanks is for). Defendant responded, "You are welcome, now what do I get back in return."

Plaintiff and defendant went to lunch at least two or three times. In September 1999, defendant sent an email to plaintiff with the message, "I am still waiting for my lunch." He also wrote, "But I don't have a problem buying you lunch." Also in September 1999, defendant sent two emails to several African American female city employees. The emails were titled, "Black Women are Wonderful" and "Nothing Like a Black Man."

At a conference in 2000, defendant met with plaintiff in her hotel room to discuss a residency requirement that plaintiff needed to meet to obtain a promotion. He sat next to her on the bed, placed his hands on her shoulders and said that he would look out for her if she would look out for him. Plaintiff later sent an email to defendant with the subject line, "THANKS." In the body of the email, plaintiff wrote, "YOU DA MAN." In response, defendant wrote, "I could be that's up to you."

At some point before October 2000, defendant asked plaintiff for a hug. Although she did hug him, she thought it was odd that he asked.

(The remaining facts surrounding plaintiff's sexual harassment claim are disputed. These facts will be discussed in the opinion as necessary.)

B. Complaints of Harassment

In October 2000, plaintiff approached Kirbie Mack, the director of the affirmative action department, to complain about defendant. Mack is defendant's sister-in-law. Plaintiff told Mack that defendant repeatedly called her about matters not related to work, sent her inappropriate emails and made sexually explicit comments that made her uncomfortable. For example, plaintiff told Mack that defendant had suggested that plaintiff perform oral sex on him in his office and that he said to her, "I could make you come without having sex with you." Plaintiff gave Mack several emails that defendant had sent her.

After several conversations, Mack told plaintiff that Mack had to report the complaint because she could be subject to liability if she did not. Mack met with Bauman soon after this. (The parties dispute the contents of Mack's and Bauman's discussion.) Bauman then met with defendant. She told him that Mack had "expressed concerns" to her about defendant's spending too much time with employees in the affirmative action office. Bauman asked defendant not to go to that office unless he had business there.

Mary Ann Stalcup, the human resources director, interviewed plaintiff about her complaint on May 13, 2003. Stalcup spoke with the mayor, recommending a full investigation.

C. Changes in the Affirmative Action Office

Mack took another job in February 2003. Just before she left, Mack told plaintiff that she was going to recommend a reclassification of plaintiff's job. When an employee is performing job duties beyond those outlined in her job description, the employee's supervisor should request a reclassification of her position, which is usually accompanied by a pay increase. In order to obtain reclassification for a position, the employee seeking reclassification or the department head must draft a document identifying the additional responsibilities that justify a reclassification. The department head must then ask the human resources department to conduct a study. If human resources recommends a change, the personnel board, the board of estimates and the common council must approve the decision. Mack met with Larry Oaks in human resources about the possibility of reclassifying plaintiff's position. Plaintiff gave Mack a description of her job responsibilities. When Mack left the office, plaintiff believed that the human resources department was considering her reclassification request. Plaintiff spoke to Oaks about a reclassification of her position, but she does not remember what Oaks said.

Norman Davis was appointed on an interim basis as director of the affirmative action office after Mack left. In April 2003, David Cieslewicz was inaugurated as mayor of the City of Madison. Defendant became the director of the affirmative action office on April 21, 2003.

D. Defendant Learns of Plaintiff's Allegations

On April 25, 2003, defendant received a call from Janet Peraino in the mayor's office. Peraino told defendant that a local newspaper reporter was inquiring whether a complaint had been filed against defendant in connection with emails that he had sent. Defendant understood that it was plaintiff who was alleging sexual harassment. After the conversation was finished, defendant went to speak with plaintiff. He told her that the press had been asking him about sexual harassment. He was concerned about the inquiry because it related to his character and profession.

E. Events in the Office After Defendant Became Director of Affirmative Action

When defendant became director of the affirmative action office, he sent out an email directive stating that plaint...