Witte, Gerhard v. WI Dept Corrections ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3962
GERHARD WITTE,
Plaintiff-Appellant,
v.
WISCONSIN DEPARTMENT OF CORRECTIONS, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03-C-0438-C—Barbara B. Crabb, Chief Judge.
____________
ARGUED JUNE 6, 2005—DECIDED JANUARY 23, 2006
____________
Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. For more than five years, Dr.
Gerhard Witte worked for the Wisconsin Department of
Corrections (DOC) as a physician in the Health Services
Unit (HSU) at the Racine Correctional Institution. Over
that period of time, he was disciplined on several occasions,
and at one point was fired, although he was reinstated after
an arbitrator reviewed that decision. In August 2003,
after yet another incident, Witte took a medical leave
of absence that is still ongoing. Claiming constructive
discharge, as well as retaliation for his exercise of his
First Amendment rights, he filed this suit under 42 U.S.C.
§ 1983 against the Wisconsin Department of Corrections
2 No. 04-3962
and numerous individuals associated with the Department.
The district court granted summary judgment for
all defendants, and we affirm.
I
In 1997, the DOC hired Witte to provide medical services
to inmates in the HSU at its Racine facility. Shortly after
defendant Sheridan D. Ash was hired as the Unit Manager
of the HSU in 1998, tensions arose between Witte and Ash.
Witte believed that Ash’s management of the unit had a
negative effect on the work environment and patient care,
and he expressed these concerns through numerous letters
to various officials at the DOC. Both Witte and Ash com-
plained to their supervisors about the other; eventually,
Ash left the unit in February 2000. Unfortunately, this did
not assuage Witte’s concerns. After Ash’s departure, Witte
continued to write to DOC officials to complain that the
facility was still delivering substandard care. The problem,
Witte thought, was that defendant Kenneth Morgan, the
prison warden, had failed to respond to Witte’s com-
plaints about Ash’s mismanagement.
Defendant Kimberly Russell was hired as Ash’s replace-
ment in October 2000. On January 17, 2001, Witte wrote to
Morgan to praise the selection of Russell and opined that
staff morale at the HSU was the highest since he began
working at the facility. His good-will toward Russell ended,
however, when Russell notified her supervisors that Witte
had violated a rule protecting an inmate’s confidential
information. Upon Witte’s admission that he had indeed
violated the rule, the investigation into the matter was
dropped without any disciplinary action taken. In early
2001, the DOC began receiving a series of complaints from
HSU staff regarding Witte’s behavior toward them. A few
months later, in June of that year, the DOC opened an
No. 04-3962 3
investigation after several nurses from the HSU filed
complaints against Witte alleging sexual harassment.
Established DOC procedure requires that upon receiv-
ing a complaint, management must conduct an investi-
gation and convene a pre-disciplinary hearing with the
employee to determine whether disciplinary action is called
for. As a permanent employee, Witte was covered under a
collective bargaining agreement that requires the DOC to
have “just cause” before taking disciplinary action and
allows the union to grieve any disciplinary action taken
against an employee. If the union is not satisfied with the
result of the grievance, it can take the matter before a
neutral arbitrator.
In Witte’s case, after the required investigation, the
DOC held a pre-disciplinary hearing on July 25, 2001,
addressing his alleged violations of the rules prohibiting
insubordination and harassment. It concluded this time
that disciplinary action was warranted. In the meantime,
defendant Steven Casperson, the Division Administrator of
the DOC, had received information causing him to question
Witte’s ability to practice medicine safely. Accordingly, on
July 31, 2001, Casperson, with the approval of defendant
David E. Burnett, the DOC’s Medical Director, informed
Witte that he was being suspended with pay indefinitely
pending an independent medical examination. Although
Witte contends that the DOC did not have legitimate
reasons for questioning his competence, he did not file a
grievance challenging either the medical examination or the
compulsory leave. After the independent examination, the
Department found that Witte was fit, and it allowed him to
return to work.
While still on leave, Witte was ordered to attend an
investigatory interview to discuss a different set of possible
rule violations in his care and treatment of several inmates.
Witte denied the allegations. His pre-disciplinary hearing
4 No. 04-3962
took place a few days after the interview. After that hear-
ing, on January 25, 2002, DOC fired Witte, citing several
grounds: violations of work rules prohibiting insubordina-
tion; harassment and intimidating behavior; negligence in
the performance of duties; and inaccurate or malicious
statements about staff or inmates.
Three days later, Witte’s union filed a grievance on his
behalf protesting his discharge, and the matter moved to
arbitration. On January 31, 2003, the arbitrator decided
that although the DOC had valid grounds for issuing a
written reprimand to Witte for insubordination and making
a notation in his personnel record of the sexually harassing
behavior, it did not have just cause to discharge Witte. The
arbitrator ordered the DOC to reinstate Witte and restore
to him lost wages and benefits. At the same time, he noted
that his decision in no way reflected an endorsement of
Witte’s behavior and attitude. The DOC complied with this
order.
On February 19, 2003, the Wisconsin Department of
Regulation and Licensing notified Witte that Burnett had
filed a complaint against him but that the screening
panel had decided not to pursue an investigation into the
matter. Witte returned to work on February 24. That
same day, Burnett provided him with a document setting
forth his job expectations, including directives on the
treatment of the staff, and informed him that he would
receive regular evaluations in the future. Witte also
received three written reprimands for violations that
occurred prior to his termination. From February through
June, Burnett prepared written evaluations noting that
Witte met some expectations but not others. The defendants
claim that these evaluations were not disciplinary actions,
and Witte did not grieve them or the fact that he was
subject to regular evaluations.
In the spring of 2003, Russell complained that Witte had
threatened to file charges against her with the Nursing
No. 04-3962 5
Examining Board after a dispute between the two. Witte
maintains that it was not a threat, because he actually filed
such a complaint. Around the same time, defendant Jean
Carlson, a nurse-practitioner at the HSU, complained about
Witte’s humiliating behavior toward her. Once again, the
DOC conducted investigations and pre-disciplinary hear-
ings, and it issued Witte two letters of reprimand. Witte did
not file a grievance concerning these reprimands. In the
summer of that year, Burnett conducted an investigative
interview with Witte in response to complaints from the
staff that he failed to sign progress notes and orders,
delayed in seeing inmates, and that he locked the examin-
ing room door while seeing inmates. On August 1, a pre-
disciplinary hearing was held to discuss Witte’s possible
violation of these work rules. One hour into the hearing,
Witte accepted an offer to adjourn the meeting, after he
expressed his discomfort from the stress that he was
experiencing. On his physician’s recommendation, Witte
took a medical leave of absence effective August 1, 2003;
since that time, he has not returned to work. According to
Witte, he will be able to return to work only when the
defendants’ harassing behavior ceases. To date, Witte has
not been discharged from the Racine facility; instead, he is
listed as an employee on administrative leave without pay.
On August 13, 2003, Witte sued the DOC and defen-
dants Ash, Burnett, Carlson, Casperson, James Conte, Jr.
(a security officer at Racine), James Greer (director of the
HSU), Earl Kielley (employment relations chief of DOC’s
Bureau of Personnel and Human Services), Kenneth
Morgan (the warden at Racine), Linda Morgan (housing
unit manager at Racine), Susan Nygren (a nurse at Racine),
and Russell for monetary and injunctive relief under 42
U.S.C. § 1983 and the Wisconsin whistle-blower statute,
Wis. Stat. § 895.65. The complaint alleged that
the defendants had retaliated against him for exercising his
rights under the federal and Wisconsin constitutions. It also
6 No. 04-3962
alleged that the defendants violated his due process rights
in the way they handled his disciplinary proceedings and
that he was constructively discharged by being subjected to
a hostile work environment.
The defendants moved for summary judgment on the
retaliation claims. On September 17, 2004, the court
granted the defendants’ motion after concluding that
Witte’s speech was not protected under the federal or
state constitution. Because the defendants did not men-
tion the due process claim in their motion, however, the
court directed Witte to advise the court if he was still
pursuing the claim, and if so, to explain its nature
and scope. Witte responded that the intolerable working
conditions to which the defendants subjected him amounted
to a constructive discharge. He alleged that the defendants
had engaged in “a campaign of harassment,” which included
petty and false allegations against him and sham investiga-
tions and disciplinary proceedings. The defendants moved
for summary judgment on this claim. On November 4, 2004,
the court ruled that Witte had not demonstrated that he
had been constructively discharged and that in the alterna-
tive, even if defendants’ conduct amounted to a constructive
discharge, Witte was not deprived of due process. Witte
appeals, arguing that the district court erred in granting
summary judgment on his due process and whistle-blower
claims.
II
To prevail on a claim for constructive discharge, a
plaintiff must prove both that the defendant engaged in
“harassing behavior sufficiently severe or pervasive to alter
the conditions of [her] employment,” and that “the abusive
working environment became so intolerable that her
resignation qualified as a fitting response.” Pennsylvania
State Police v. Suders, 542 U.S. 129, 133-34 (2004) (internal
No. 04-3962 7
quotations omitted). Although Suders addressed the topic
of constructive discharge in the context of a Title VII
hostile-environment claim, we have held that the same
general approach applies equally to constructive discharge
claims brought under the due process clause. See Levenstein
v. Salafsky, 414 F.3d 767, 774 (7th Cir. 2005). “Creation of
a hostile work environment is a necessary predicate to a
hostile-environment constructive discharge case.” Suders,
542 U.S. at 149. Working conditions for constructive
discharge must be even more egregious than those that
would support a finding of a hostile work environment;
absent extraordinary circumstances, an employee is
expected to remain employed while seeking redress. Herron
v. DaimlerChrysler Corp., 388 F.3d 293, 303 (7th Cir. 2004).
Witte argues that he meets this demanding test. A trier
of fact could find (he contends) that the defendants engaged
in a conspiracy to cause him relentless stress and anxiety
that ultimately forced him to take a medical leave of
absence, equivalent to a resignation. He claims that the
record is replete with evidence showing that he was sub-
jected to a “steady barrage of false allegations and petty
charges” and sham investigations and pre-disciplinary
proceedings, and he faults the district court for failing to
take full account of these facts in the light most favorable
to him, as it should have done at the summary judgment
stage.
But at the outset, Witte confronts two threshold prob-
lems. The first is substantive: he has sued the Wisconsin
Department of Corrections under 42 U.S.C. § 1983, but it is
well established that the “state,” which the DOC is for this
purpose, is not a “person” that may be sued under that
statute. See Will v. Michigan Dept. of State Police, 491 U.S.
58, 66-67 (1989). That reason alone is enough for us to
affirm the district court’s summary judgment in favor of the
DOC. The remainder of our discussion applies only to the
individual defendants. As for them, Witte’s first problem is
8 No. 04-3962
procedural. In reviewing Witte’s claim, the district court
considered only those facts that were presented in a way
that complied with its standing instructions. From this
standpoint, it found that Witte had not done enough to put
the facts proposed by the defendants into dispute. (The
Western District of Wisconsin’s website directs one to a
document entitled “Helpful Tips for Filing a Summary
Judgment Motion in Cases Assigned to Judge Barbara B.
Crabb.” See http://www.wiwd. uscourts.
gov/assets/pdf/bbc_proc_mo_sum_judg.pdf. Chief Judge
Crabb’s “helpful tips” are quite typical of the procedures
normally required by local rule.) All facts necessary to
sustain a party’s position on a motion for summary judg-
ment must be explicitly proposed as findings of fact, and the
judge will not search the record for factual evidence. Each
proposed fact must be set out in a separate, numbered
paragraph, followed by specific references to admissible
evidence that supports it. The non-moving party must
respond to the moving party’s proposed facts by answering
each numbered fact proposed by the moving party in
separate paragraphs, using the same numbering system.
Finally, the judge will accept a fact properly proposed by
one side as undisputed unless the other side properly
responds to the proposed fact and establishes that it is in
dispute. District courts have broad discretion to control the
proceedings before them, and here as elsewhere we review
the district court’s approach only for an abuse of discretion.
Compare Koszola v. Bd. of Educ., City of Chicago, 385 F.3d
1104, 1109 (7th Cir. 2004) (addressing local rules).
The court found that Witte’s statement of facts did not
comply with its requirements. Most of Witte’s responses to
the defendants’ proposed facts were off point. In some
instances, the evidence to which he cited did not demon-
strate a real dispute. More seriously, Witte cited to evidence
in the record that was inadmissible hearsay, or he simply
repeated his contentions instead of pointing to evidentiary
No. 04-3962 9
support for them. For example, in response to the defen-
dants’ proposed facts describing each investigation and
disciplinary action taken, Witte said only that they con-
cerned “false and petty allegations,” and that
the proceedings were pretextual. He cited to his own affi-
davit which repeated the same statements without any
reference to evidence. This is not the kind of statement
on personal knowledge that may properly be considered
in an affidavit. Instead, it is just a self-serving conclu-
sion that is insufficient by itself to defeat a motion for
summary judgment. See Albiero v. City of Kankakee, 246
F.3d 927, 933 (7th Cir. 2001). Thus, we find that the court
did not abuse its discretion when it limited its review to the
proposed facts that complied with its instructions.
Based on the facts properly before the district court, we
too find that no reasonable trier of fact could find that Witte
was constructively discharged. We accept as true that from
2000 on, he was subjected to a steady stream of complaints,
disciplinary proceedings, and the occasional sanction. But
Witte presented no evidence that would support a finding
that the defendants took these actions solely to harass him.
Instead, the record shows that the defendants were re-
sponding to complaints from both inmates and the HSU
staff. Witte does not even claim that the DOC violated its
own policies when it looked into the various matters. His
constructive discharge claim thus fails at the threshold: he
cannot show, as Suders requires, that the defendants
created a hostile work environment to begin with. See
Suders, 542 U.S. at 149. (We note that there is also a
serious question whether he satisfies the “discharge”
element of this claim, given the fact that he stands ready to
return to work as soon as the defendants “cease their
hostile actions once and for all.” Given our conclusion with
respect to this theory, we have no need to resolve this
point.)
10 No. 04-3962
III
Witte also appears to be challenging the procedures that
DOC used in connection with his alleged constructive dis-
charge. Given our conclusion that he was not constructively
discharged at all, these procedural claims must also fail.
Even if we gave Witte the benefit of the doubt on the
discharge question, however, his procedural complaints are
without merit. It is undisputed that he had the right to file
a grievance after any of the alleged harassing disciplinary
charges, but (with the exception of the successful grievance
that resulted in his reinstatement) he never did so. Impor-
tantly, he never filed a grievance after he took his extended
medical leave of absence allegedly because he concluded
that he had constructively been discharged. Witte concedes
that he is entitled to a pre-disciplinary hearing if and when
he returns to work. There is nothing in this record to
suggest that such a hearing would be futile, or, more
importantly, that the post-termination procedures available
to him would be unavailing. See generally Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532 (1985).
Perhaps the most telling fact for this purpose is
Witte’s failure to take advantage of the preventive and
corrective opportunities available to him, such as filing
a grievance with his union. He was successful when he
grieved his termination before the arbitrator and has
presented no evidence that another appearance before an
arbitrator would be a sham proceeding. As the district court
observed, citing Wozniak v. Conry, 236 F.3d 888, 890 (7th
Cir. 2001), “[o]ne who has spurned an invitation to explain
himself can’t complain that he has been deprived of an
opportunity to be heard.” That describes Witte’s situation
perfectly. The district court’s summary judgment for the
defendants was equally correct if we understand his
argument as a procedural one.
No. 04-3962 11
IV
Finally, we consider Witte’s attempt to present a retalia-
tion claim, under either the First Amendment or Wiscon-
sin’s whistle-blower statute, Wis. Stat. § 895.65. The
district court dismissed this claim on the grounds that
Witte’s speech was not protected under either the federal or
the state constitution. Witte concedes this point, which
eliminates any chance for relief under § 1983 and the First
Amendment. He argues, however, that the court failed to
consider an alternative ground for relief under the Wiscon-
sin statute, namely, retaliation because “the employer or
employer’s agent believes that the employee so exercised his
or her [First Amendment or Wis. Const. Art. I, sec. 3]
rights.” Wis. Stat. § 895.65(2). Witte argues that even if the
employee’s speech is unprotected, the statute protects the
employee when the employer retaliates against him under
the mistaken belief that the speech was protected. The
defendants do not read the statute this way. In their view,
the word “believes” modifies the word “employee,” and thus
the phrase means that as long as protected speech is
involved, the statute protects an employee who had not
engaged in the specified conduct but was subject to retalia-
tion because the employer erroneously thought that he
(rather than another person) had done so.
Although the question of how properly to interpret the
state statute may be an interesting one, we need not resolve
it here. As the defendants point out, Witte failed to raise
this theory in his brief in opposition to the defendants’
motion for summary judgment. Instead, he relied exclu-
sively on the argument that he had engaged in protected
speech. The defendants certainly so understood his position,
because they wrote in their reply brief in the district court
that “Plaintiff does not contest and, therefore, concedes
Defendants’ position that free speech rights under the
Wisconsin and United States Constitutions are coextensive
and that therefore Plaintiff’s claims stand or fall on the
12 No. 04-3962
same legal analysis. Plaintiff does not contest, and there-
fore, concedes Defendants’ position that if Witte’s speech is
not constitutionally protected, his claim under Wis. Stat.
§ 895.65(1) also fails.” Witte apparently mentioned the new
theory in the last four pages of his rebuttal brief, but those
pages are missing from the record. The omission is unim-
portant, however, because this was too late in any event to
raise a new theory.
We agree with the defendants that Witte forfeited his
alternative argument under § 895.65(2). By failing to
raise it in his brief opposing summary judgment, he lost the
opportunity to urge it in both the district court and this
court. See Schoenfeld v. Apfel, 237 F.3d 788, 793 (7th Cir.
2001); United States v. Andreas, 150 F.3d 766, 769 (7th Cir.
1998).
The judgment of the district court is AFFIRMED.
No. 04-3962 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-23-06