Volovsek v. Wisconsin Dept. of Agr.

• Decision Date: 18 September 2003
• Docket Number: No. 02-2074.,02-2074.
• Citation: 344 F.3d 680
• Parties: Judith VOLOVSEK, Plaintiff-Appellant, v. WISCONSIN DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

344 F.3d 680

Judith VOLOVSEK, Plaintiff-Appellant, v. WISCONSIN DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION, Defendant-Appellee.

No. 02-2074.

United States Court of Appeals, Seventh Circuit.

ARGUED February 21, 2003.

DECIDED September 18, 2003.

COPYRIGHT MATERIAL OMITTED

Rex R. Anderegg (Argued), Milwaukee, WI, for Plaintiff-Appellant.

John R. Sweeney (Argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendant-Appellee.

Before CUDAHY, MANION, and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge.

Judith Volovsek claims that she should have been promoted in 1993 but was not because she is a woman. In response to this, she filed a discrimination claim with the State of Wisconsin. The ongoing failure of Volovsek to secure a promotion over the following five years and her unhappiness with how she was being trained and supervised led to two more administrative complaints and, eventually, the present lawsuit under Title VII for sex discrimination and retaliation. Volovsek appeals the grant of summary judgment. She presents sufficient evidence of discrimination with respect to the original 1993 denial of promotion to defeat summary judgment. The remaining claims were properly dismissed on summary judgment. We affirm in part and reverse in part.

I.

On August 12, 1991, Judith Volovsek began working for the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) as a Plant Industry Inspector. As such, she was responsible for inspection, enforcement and education activities relating to the regulation of agricultural treatments as well as storage and loading sites.

Soon after she began work, Volovsek's troubles began. She claims that she was required to move 25 miles to live within her work territory while two of her male colleagues, Robert McGregor and Mark McCloskey (the latter hired after Volovsek), were not required to move. Later during her first-year probationary period, Peter Helmbrecht, Volovsek's supervisor, allegedly made improper statements to her while in Volovsek's home for a training session. From the bathroom, Helmbrecht called out to Volovsek to "come in here and help me find it." During the same visit, Helmbrecht remarked to Volovsek, "I'll bet you are one of those women who climax every time," and "You know I don't get any sex at home." A male coworker corroborated these allegations, recalling Volovsek's contemporaneous reporting of this incident to him.

In June 1992, Volovsek's title changed to Agrichemical Specialist (ACS) as part of a departmental reorganization. The ACS position had three grade levels: Entry, Development and Objective. Volovsek began at the Entry level. According to the DATCP, promotion to a higher grade depended upon the employee's achieving a satisfactory level of knowledge, skill and independence. Therefore, positive performance evaluations were critical to Volovsek's promotion to the next grade level. She eventually attained ACS-Development, but her unrealized goal was either ACS-Objective or Environmental Enforcement Specialist, discussed below.

During 1993, the DATCP assumed primary responsibility for agricultural pesticide spills from the Wisconsin Department of Natural Resources. As a result of the DATCP's new responsibility, it developed the Environmental Enforcement Specialist (EES) position, which was to handle the new responsibilities and which was compensated at several pay grades higher than an ACS. Volovsek and fourteen other ACSs applied for the EES positions.

On June 4, 1993, Ned Zuelsdorf, Bureau Director for the Agricultural Resource Management Division of the DATCP, met with Volovsek and told her that she had been rejected for the EES position, but could reapply when a position became available. Of those who applied, Volovsek and two men were not chosen for the EES positions. Eleven men were promoted to EES. The DATCP claimed that "Volovsek did not compete well" for the position. However, one male chosen for the EES position had less seniority than Volovsek and another had scored lower on the EES application test. Volovsek left the meeting with Zuelsdorf, but returned to request vacation time. Upon reentering the office, she overheard her supervisors, Helmbrecht and David Frederickson, talking about "keeping them barefoot and pregnant." Frederickson also asked her when she was leaving why she hadn't worn her Tyvex suit.¹

Four days later, Volovsek wrote a memo to Zuelsdorf regarding their June 4th meeting, advising him that she believed that she was performing good quality work with duties that were equivalent to those of an EES, and that she should be considered for the EES position. Zuelsdorf responded by telling her that she required too much supervision, citing those inspections in January where she had been accompanied by Hagameier. Two days after Volovsek's memo, Hagameier informed her that Jack Darland, a fellow field inspector, was being given an assignment in her territory because she could not handle it. She was not allowed to work with Darland as is customary when an inspector is assigned to a colleague's territory.

Volovsek filed her first sex discrimination complaint with the Wisconsin Personnel Commission (WPC) on June 16, 1993 (1993 Complaint). The complaint cited both denial of promotion to ACS-Objective and denial of promotion to EES. Section 3 of the complaint notified complainants that unless they wrote "no," their complaint "may be filed with other agencies." Volovsek left section 3 blank thereby permitting WPC to file her complaint with other agencies. Sometime after the complaint was filed, Volovsek was promoted to ACS-Development where she remained until she was terminated in 1998.

Several instances of alleged discrimination or retaliation occurred subsequent to Volovsek's 1993 Complaint. In August 1993, a memo criticizing her work was placed in her personnel file without her knowledge. Later that year or in early 1994, Volovsek's colleague Robert McGregor overheard what he believed to be a conversation about Volovsek in which her supervisors were told to collect documentation against an employee. Volovsek alleges that soon after that discussion, criticism, conflicting advice and complaints for failing to perform functions that were outside the realm of her training ensued. Volovsek has provided evidence (mostly in the form of her affidavit) disputing many of the negative performance evaluations and criticisms that she has received since 1994.

Also in 1994, a new DATCP policy required that ACSs work out of commercial office space instead of their homes. ACSs were permitted to choose their own office locations contingent upon Department of Administration approval. Volovsek submitted a memo to Frederickson with three potential locations, but Frederickson never forwarded the memo on to the Department of Administration. Volovsek argues that this was intentional, while the DATCP indicates that the lapse was a simple oversight. Subsequently, Volovsek was assigned an office 25 miles away from her home. However, she never worked in that office because she personally notified the Department of Administration of the space she had located less than a mile from her home.

A new policy also required that ACSs be issued desktop computers instead of the laptops they were currently using. The ACSs were instructed that, upon receipt of the desktops, the laptops should be returned. Volovsek contends that while awaiting her desktop, her supervisor, Luis Delgado, called and "berated her for not turning in her laptop."

Two additional events occurred in May 1995 leading up to Volovsek's second WPC complaint. First, the DATCP allegedly did not acknowledge on her annual performance review some of Volovsek's work that was completed during that review period (i.e., public speaking and instruction she had performed). In addition, work summaries produced by the DATCP allegedly did not include all the hours she had worked. Volovsek argues that these were intentional omissions, but the DATCP claims that a change in the system for recording inspectors' summaries caused the omissions. The DATCP asserts that other employees were also affected and that the errors were promptly corrected. At her performance review, Volovsek requested that Delgado promote her to ACS-Objective. Delgado replied, "Oh, so you can be bought."

The second event during that period was the issuance of a memo by Division Administrator Nicholas Neher to Volovsek, instructing her to discuss her cases only with her supervisors and not with other inspectors. This memo was not issued to any of Volovsek's colleagues, and another ACS stated that it is common procedure to communicate with other inspectors. Volovsek contends that this was an attempt to isolate her from her peers. After the memo had been issued, Volovsek alleges that she called the main office to discuss a work-related issue with a specialist, but the specialist refused to provide Volovsek with an answer. The DATCP insists that the memo was sent because Volovsek had received information from her peers that conflicted with instructions from her supervisors. The memo also noted the removal of three critical letters that Volovsek claims were improperly inserted in her file.

Volovsek filed her second sex discrimination charge with the WPC on May 23, 1995 (1995 Complaint), for the DATCP's failure to promote her to ACS-Objective and for her supervisor's negative performance evaluations. This complaint form contained a note section that invited complainants to check a box if they wanted the WPC to forward a copy of the complaint to the Equal Employment Opportunity Commission (EEOC). Volovsek checked that box, and it appears that this complaint was filed concurrently with the EEOC.

Soon after her second WPC charge, Volovsek contends that additional discriminatory and retaliatory incidents followed. She argues that her supervisors were intentionally not...