Salas v. Wisconsin Dept. of Corrections
| Decision Date | 25 April 2006 |
| Docket Number | No. 05-C-399-C.,05-C-399-C. |
| Parties | Francisco SALAS, Plaintiff, v. WISCONSIN DEPARTMENT OF CORRECTIONS, a state governmental agency; Richard F. Raemisch, individually; William A. Grosshans, individually; Denise A. Symdon, individually; Marie Finley, individually; and Leann Moberly, individually, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
David E. Lasker for Plaintiff.
Richard Moriarty, Assistant Attorney General, Madison, WI, for Defendants.
In this civil action for monetary relief, plaintiff Francisco Salas contends that defendants Richard Raemisch, William Grosshans, Denise Symdon and Leann Moberly, all employees of the Wisconsin Department of Corrections, discriminated and retaliated against him in violation of his rights under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983. Jurisdiction is present under 28 U.S.C. § 1331.
On March 18, 2003, plaintiff was terminated from his position as a Wisconsin Department of Corrections probation and parole agent because of his alleged failure to supervise offender Kevin Hageman and for his alleged falsification of documents relating to Hageman. Although plaintiff concedes that Hageman "fell through the cracks," plaintiff contends that he was not guilty of the violations with which he was charged, and that even if he had been guilty, the punishment imposed upon him was excessive when compared to the discipline imposed upon other employees found guilty of similar infractions. Plaintiff believes his termination was a result of discrimination against him because of his color and national origin and was an act of retaliation against him because of his participation in a government investigation of a discrimination claim filed against the department by one of plaintiff's co-workers.
Before the court is defendants' motion for summary judgment, which will be granted in its entirety. Defendants' motion will be granted with respect to plaintiff's Title VII discrimination and retaliation claims because plaintiff has not introduced evidence sufficient to show that his complaint to the Equal Employment Opportunity Commission (EEOC) was filed within the necessary time limits. The motion will be granted with respect to plaintiff's due process claim because he has not produced evidence supporting his contention that the three pre-disciplinary hearings he received were shams. The motion will be granted with respect to plaintiff's equal protection claim because plaintiff has not adduced evidence demonstrating that he was treated differently from his similarly situated non-Hispanic co-workers or that defendants' decision to terminate his employment was motivated by defendants' animosity toward him because of his national origin. Finally, the motion will be granted with respect to plaintiff's claim that defendants retaliated against him in violation of the First and Fourteenth Amendments because the Fourteenth Amendment does not secure employees from retaliatory conduct and because defendants had no knowledge of plaintiff's protected speech at the time they made the decision to terminate his employment.
Before turning to the undisputed facts, several preliminary matters merit attention. First, in response to plaintiff's submissions in opposition to summary judgment, defendants moved to strike fact witnesses and documentary evidence that they contend were not disclosed to them as required by Fed.R.Civ.P. 26(A)(1). Dfts.' Reply Br., dkt # 32, at 16-21. Plaintiff's counsel, David Lasker, riposted by submitting an affidavit in which he avers that he offered to provide defendants with all relevant information but received no response to his offer. Lasker Aff., dkt. # 37. In response to Lasker's affidavit, defendants have asked to withdraw their Rule 26(A)(1) arguments, reserving them for argument as motions in limine were the case to proceed to trial. Because defendants have abandoned their Rule 26 objections with respect to the motion for summary judgment, I will accept all documents and affidavits submitted by plaintiff without regard to defendants' allegations.
Next, I note that both parties have proposed as fact inferences they have drawn from statements contained in various documents relevant to this lawsuit. The parties do not appear to dispute the texts of the documents at issue; rather, they dispute the inferences to be drawn from them. Where inferential facts proposed by the parties are disputed, but the underlying text is not, I have set forth the undisputed text from which the competing inferences have been drawn. From the parties' proposed findings of fact and from documents authenticated in the record, I find the following facts to be undisputed.
Plaintiff Francisco Salas is a 58-year-old Hispanic male who was born July 28, 1947. From January 27, 1986, until March 18, 2004, plaintiff was employed by the Wisconsin Department of Corrections.
Defendant Wisconsin Department of Corrections is a state agency whose primary office is located in Madison, Wisconsin.
Defendant Richard Raemisch is Deputy Secretary of the Department of Corrections.
Defendant William Grosshans was the administrator of the Wisconsin Department of Corrections Division of Community Corrections from March 16, 1997 to January 5, 2003, and has been the division's assistant administrator since January 5, 2003. From January 5, 2003, until February 3, 2003, he concurrently served as acting administrator.
Defendant Denise Symdon served as Regional Chief of Region I of the Wisconsin Department of Corrections Division of Community Corrections from May 7, 2000, to June 20, 2004. She has been the assistant administrator of the Division of Adult Institutions since June 20, 2004.
Defendant Marie Finley was Assistant Regional Chief of the Division of Community Corrections before her retirement on September 30, 2004.
Defendant Leann Moberly was a field supervisor for the Division of Community Corrections in Janesville, Wisconsin from May 4, 2003, to May 16, 2004. From May 15, 2004 to the present, she has been a field supervision in Madison, Wisconsin.
From January 1986 to June 1989, plaintiff was employed by the Wisconsin Department of Corrections Division of Adult Institutions as a correctional officer. He was promoted to the position of Social Worker in June 1989, Social Worker 2 in June 1991 and Social Worker 3 in June 1993. While employed with the Department of Adult Institutions, plaintiff trained all newly hired social workers entering the prisons. He was the team leader for the Emergency Response Unit's hostage negotiation team. In addition, he helped develop the NEXUS drug and alcohol treatment program. In August 1993, plaintiff became a Licensed Social Worker, certified by the Wisconsin Board of Social Workers, Marriage and Family Therapists and Professional Counselors.
In October 1995, plaintiff was transferred to the Division of Community Corrections as a Senior Probation and Parole Agent. In that position, plaintiff co-facilitated sex offender, anger management and cognitive intervention treatment groups. On October 7, 2001, plaintiff transferred to Unit 113 of the Madison, Wisconsin office of the Division of Community Corrections. As a community corrections agent, plaintiff was a member of the American Federation of State, County and Municipal Employees, a labor union representing employees of the Wisconsin Department of Corrections. Under the terms of the union's contract with the department, union members could be terminated only for just cause.
For some time prior to June 30, 2002, the Wisconsin Department of Corrections maintained a contract with the BI Corporation (a Colorado-based telephone service company) to provide call-in reporting for low-risk inmates on probation supervision. Offenders in the program reported to the Department of Corrections by calling the BI Corporation and responding to telephone prompts. Offenders would be billed for each phone call; money collected from the phone charges was used to fund the program and pay the offenders'"supervision fees." One of the offenders who participated in the BI program was Kevin Hageman, a low-level offender on probation for the purpose of insuring he paid his court-ordered restitution. Hageman stopped making restitution payments on February 22, 2001.
When an offender failed to call as required by the terms of his probation, the BI Program would notify the department of the offender's failure to report. A letter would be sent to the offender warning him to send a check to his agent to cover the missed fees and not to miss any further calls. The letters bore the name and telephone number of the agent assigned to supervise the offender. (The parties seem to dispute whether the letters were generated and mailed to offenders automatically or whether individual probation and parole agents prompted the letters to be sent.)
When plaintiff transferred to the Madison office of the Division of Community Corrections in October 2001, he assumed responsibility for Case Load # 11311, which included approximately 350 offenders on BI supervision in Green, Rock and Dane Counties. When the BI program ended in June 2002, plaintiff transferred from Unit 113 to Unit 102. (The parties dispute whether plaintiff retained responsibility for the BI offenders assigned to him before the BI program ended.)
In September 2002, the offenders who resided in Dane County and who had participated in the BI program were divided among the agents in Unit 102. Approximately ten cases were assigned to each agent. As plaintiff began entering the cases newly assigned to him...
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