STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

KIMBERLY VENITA GEPHART, Complainant

DEPARTMENT OF CORRECTIONS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200404656, ERD Case No. CR200501467
EEOC Case No. 26G200500377


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:

1. In the last sentence of paragraph 44 of the FINDINGS OF FACT, the name "Lt. Thom" is deleted and "Captain Pearce" is substituted therefor.

2. With respect to paragraph 45 of the FINDINGS OF FACT, on page 11 of the decision, in the last line of the last paragraph 5 the name "Oliver" is deleted and the word "Officer" is substituted therefor.

3. In the first line of paragraph 59 of the FINDINGS OF FACT, the name "Westphal" is deleted and the name "Westfield" is substituted therefor.

4. The first sentence of paragraph 64 of the FINDINGS OF FACT is deleted and the following sentence is substituted therefor:

"In January or February of 2005, Ms. Gephart made the decision to resolve her work problems by working toward moving to Arizona after her husband retired."

5. In the second line of paragraph 67 of the FINDINGS OF FACT, the word "weeks" is deleted and the word "days" is substituted therefor.

6. In the first line of paragraph 69 of the FINDINGS OF FACT, the number "15" is deleted and the number "16" is substituted therefor.

7. With respect to paragraph 86 of the FINDINGS OF FACT, on page 23 in the twelfth line of the first full paragraph the word "say" is deleted and the word "saw" is substituted therefor.

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed November 18, 2009
gephaki . rmd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In a discrimination complaint received by the Equal Rights Division on December 2, 2004 (ERD Case No. CR200404656), Kimberly Gephart alleged that the respondent Department of Corrections discriminated against her in her terms and conditions of employment on the basis of her sex and because she opposed a discriminatory practice under the Wisconsin Fair Employment Act. Subsequently, in a discrimination complaint received by the ERD on April 27, 2005, and amended on September 19, 2005 (ERD Case No. CR20051467), Gephart alleged that the respondent discriminated against her and (constructively) discharged her because she made a complaint under the Act.

Initial determinations of probable cause were issued on both complaints, followed by a hearing on the merits, which was conducted by the ALJ over the course of 10 days. Thereafter, the ALJ issued a decision in which he concluded that Gephart failed to establish by a fair preponderance of the evidence that the DOC violated the Wisconsin Fair Employment Law by discriminating against her in her terms or conditions of employment because of her sex, by discriminating against her because she opposed a discriminatory practice, by discriminating against her because she filed a complaint under the WFEL, or that the DOC had constructively discharged her. Gephart filed a petition for commission review of the ALJ's decision.

While Gephart's petition for review indicated that she was appealing the ALJ's decision in its entirety, Gephart states in her brief to the commission that she "has elected not to pursue the ALJ's decision to dismiss her claims of sex discrimination and retaliation for her initial informal opposition to sex discrimination, which were the subject of her formal complaint filed with the Wisconsin Equal Rights Division on December 2, 2004 (ERD Case No. CR200404656)[.] Her appeal is limited to her second formal complaint of retaliation filed on September 19, 2005 (ERD Case No. CR20051467)." (Italicization emphasis in original.)  (1)

Gephart began employment with the DOC on December 13, 1993, working as a Program Assistant 2 at the Kettle Moraine Correctional Institution. In September 1996, Gephart began working as a Correctional Officer 1 at the Dodge Correctional Institution in Waupun, Wisconsin. Sometime in 1998, Gephart became classified as a Correctional Officer 2.

Prior to December 2004, John Bett was the Warden at DCI. In December 2004, Cathy Jess became the Warden at DCI. Mark Heise was the Deputy Warden at all times relevant herein. Dan Westfield was the Security Director at the relevant time herein. Jon Waltz is the Administrative Captain at DCI. Charles Pearce is the Programs Captain and is responsible for the Segregation Unit, Unit 14 and Unit 20. Pearce's responsibilities also included conducting hearings on Conduct Reports that officers wrote regarding inmate alleged rule violations.

During Gephart's first eight years at DCI she worked as a Utility Officer. In this position, Gephart relieved other correctional officers who were on vacation or had the day off. As a result, Gephart was basically assigned to work in every unit at DCI. During the latter part of 2003, Gephart signed for a permanent post as the dayroom officer for Unit 14. Gephart began working as the Unit 14 dayroom officer in early 2004. Gephart worked on the first shift, from 6 a.m. to 2 p.m.

Unit 14 is an open medium security unit that houses 50 to 55 inmates. The inmates in this unit are there for assessment and evaluation prior to being moved to another facility based upon the availability of beds commensurate with their security level. The Unit 14 inmates are housed in seven rooms, with seven to eight inmates in each room. In addition to the individual rooms, Unit 14 consists of the dayroom, a bath room and hallway.

As the dayroom officer, Gephart was responsible for monitoring inmate activity in unit 14. The other officer on Unit 14 was also responsible for monitoring inmate activity, but this officer's position was more of an administrative position in that this officer was stationed at the front desk and responsible for answering the phone, taking care of the census log, ordering supplies and monitoring clothing distribution.

Incident Reports and Conduct Reports are the primary tools used by the respondent to deal with inmate behavior. Conduct Reports are required when an inmate engages in a major violation of the disciplinary code for inmates, and may be used for minor violations. Conduct Reports result in a disciplinary hearing that may result in a penalty being imposed on the inmate if found guilty. Incident Reports, on the other hand, are used to document occurrences other than violations of the inmate disciplinary code. Incident Reports are sometimes used as an informational tool for other staff. Responses to Incident Reports are up to the security supervisor, and normally do not result in discipline.

During 2004, either Mary Sorenson or Shelly Miescke was stationed at the front desk in Unit 14, but Miescke transferred from this unit sometime prior to November 2004. Sorenson signed off Unit 14 sometime during 2005.

There are normally two first line supervising officers scheduled to work on a shift. The first line supervisors under which Gephart worked as a correctional officer varied, but on most days her first line supervisors would be Lieutenant Brian Thom and either Captain Karen Larsen or Captain John DeHaan. Supervising officers are sometimes referred to as "white shirts" because they wear white shirts, unlike the correctional officers, who wear blue shirts. Thom first began supervising Gephart in late 2002 or 2003.

Gephart's claim of retaliation for filing a formal complaint of discrimination against DOC centers on three events: Thom's December 14, 2004 memo to Westfield; a January 2005 PPD she received and a written reprimand she received on June 7, 2005. Gephart claims that she was constructively discharged because, in addition to the above events which followed her formal discrimination complaint, the respondent willfully ignored her reports of inmate threats and hostility leaving her no choice but to resign from her employment as a correctional officer.

Although Gephart has elected not to appeal the dismissal of her claims of sex discrimination and retaliation in ERD Case No. CR200404656, Gephart has included evidence/allegations related to that case in her statement of facts "in order to place her claim of retaliation for her formal opposition in context." The DOC has likewise done so, asserting that Gephart's relationship with management did not suddenly deteriorate after she filed her complaint in December 2004, there were problems between Gephart and certain management employees prior to Gephart filing that discrimination complaint.

The following represents some of the testimony and evidence regarding what occurred up until Gephart first filed a complaint of discrimination on December 2, 2004 (ERD Case No. CR200404656).

On May 30, 2004, Thom completed a Performance Planning and Development Report (PPD) regarding Gephart's work performance which Gephart signed on June 6, 2004. The PPD listed Gephart's major job duties as responsibility for the security, custody, control and treatment of offenders according to administrative rules, institution policies, post orders and work rules. Thom rated Gephart as "Meets standards" in all areas, except the following areas where Thom rated her as "Exceeds standards": "Recognize need for inspections/searches, conduct them and does appropriate recording"; "Conducts inspections with minimum disruption to offenders"; and "Enforces rules in a fair, firm and consistent manner."

Previously, in a PPD completed by Captain Larsen for Gephart on July 2, 2002, Larsen had rated Gephart as "Meets standards" in all areas, except the following areas where Larsen rated Gephart as "Exceeds standards": "Alert to and responds appropriately to institutional environment"; "Sensitivity to others and their problems, feelings and rights"; "Courteous and tactful" and "Responds positively to constructive criticism and supervision".

Before that, in a PPD completed on May 10, 2000, for Gephart by Rick Rasmussen, a first line supervisor at the time, although Rasmussen had rated Gephart as "Meets standards" in all areas, under the section for Supervisor Comments, Rasmussen also noted that Gephart's "interactions at times, in a given situation tend to escalate the situation. Officer Roehl (2)  shows the attributes of being a high quality Correctional Officer. She needs to place a strong effort on improving her interpersonal relations skills and tactfulness as well as [sensitivity] to the rights, needs, and concerns of the inmates she is supervising."

Thom testified that between May 30, 2004 and June 15, 2004, because of the number of temporary lock ups (TLUs) (3) or incidents that had occurred on Unit 14 he was concerned about what was taking place on Unit 14 so he questioned Officer Shelly Miescke about what was happening on Unit 14. Miescke testified that Thom asked her if she was concerned for her safety working with Gephart because another officer had complained and Thom was wondering if she felt the same way. Miescke recalled Officer Robert Martinez's name being brought up. Miescke told Thom that she was not afraid for her safety.

(The ALJ found that Gephart's sex was not a factor in Thom's decision to question Miescke about Gephart. See finding no. 16.)

In a letter to Thom dated July 5, 2004, Gephart wrote the following:

Wednesday June 15, 2004 you approached one of my fellow staff members in the muster room [where roll call is taken] of Dodge Correctional Institution and proceeded to question this person about my job performance. You made the statement "I am concerned for your safety when you are working with Officer Gephart". This statement was made in a common area of the institution during morning check in. You questioned several other Officers in open areas while other staff and inmates were present. During these encounters you intimated to several of these Officers that Officer R. Martinez had provided you with a statement to the effect that I was deliberately harassing the inmates on Unit 14.

I appreciate the fact that as a Supervisor it is your duty to investigate any and all complaints or questions you might have concerning my job performance, however there is an acceptable way to complete your job duties. A Supervisor has every right to make confidential inquiries and may monitor staff performance by making unit rounds in order to observe job performance. A Supervisor then has every right to give job instruction and or training. Job instruction must of course follow guidelines as mandated by contract and past practices. A Supervisor should not conduct themselves in any manner that causes a subordinate to be harassed.

The questions that you asked and the statements that you made were derogatory and insulting to me. I have been the object of rumors and derogatory remarks from other staff members for the past two weeks. You made no effort to conduct yourself appropriately and have caused me a great deal of suffering and stress because of your unprofessional handling of this matter. You have not made regular rounds on Unit 14 during day shift while I am on duty therefore you have no real conception of how the unit is run.

I am an experienced Officer with 11 years of experience in dealing with inmates, several years of that experience is with medium security inmates, who received a very favorable PPD from you prior to this situation. I resent the implication that I am incapable of performing my duties and I am requesting that any further questions that you have take the form of a professional inquiry, and comments that you have please keep them in the security suite.

Exhibit C-11.

On July 6, 2004, Gephart met with Thom and DeHaan to discuss the issues raised in Gephart's July 5, 2004 letter. Todd Wetzel was present as the union representative. Thom denied ever speaking to anyone concerning Gephart's job performance in an area where other staff was present, denied having told Miescke that he was afraid for Sorenson's safety while working with Gephart and stated that he could not be responsible for anything Martinez might have said or spread around the institution. Notes that Gephart took summarizing the July 6 meeting including the following:

Gephart - You never made statements, which led people to believe that I was not properly performing my job?
Thom - There were concerns on our part as 90% of the conduct reports were from you. Captain DeHaan and myself wondered if the other people up there were not doing their jobs and perhaps pushing everything on you.
Gephart - Of course I write more. I am in the middle of all the inmates in the dayroom, I hear what they say and I monitor the bathroom and hallway. This is where disputes happen.
Thom - The inmates we take off there are highly agitated.
Gephart - That is because in those instances you placed volatile inmates who had not seen psych services on an open unit.
Thom - De-escalation is an issue.
Gephart - I don't argue or escalate, I state that their behavior is unacceptable and I call you. How is this escalation?
Todd Wetzel - Lets get back to the fact that Kim is asking that any investigation be appropriately in the security suite not where inmates or other staff can hear.
Thom - Ah. About this letter, [are you] accusing me of harassing you?
Gephart - Not at this time, however any future incidents will have to be dealt with accordingly. The letter is in accordance with DOC and state employment guidelines. This serves as notice that I want this unprofessional behavior to stop.
Captain DeHaan - Kim you know we can't be everywhere, as supervisors we have to ask people you work with. When you put on that blue shirt you accepted the fact that the people around here were going to talk shit about you, they talk shit about me all the time....

(The ALJ found that Thom did not like the letter that Gephart gave to him on July 6, 2004, or how and what Gephart said during the meeting on July 6; that those two events on July 6 changed how Thom saw Gephart and resulted in his treating her more negatively and his having less trust in her personally and professionally; that Thom went to Westfield and told Westfield he thought Gephart was harassing him and making his job more difficult and uncomfortable and that Westfield told Thom to continue doing his job and to remain professional. See finding no. 20.)

Gephart testified that after the July 6, 2004 meeting, inmates started telling her they had been pulled into the security suite to talk to Thom but that they "didn't say anything to get [her] in trouble, but he's really after you." Gephart recalled that this occurred with inmate "DeCurry" about two weeks after the July 6 meeting. Gephart testified that about 15 minutes after she had called for a TLU for an inmate whom she believed to have been the aggressor in an altercation with DeCurry, Thom called for several other inmates to be sent to the security suite and that when DeCurry came back DeCurry said Thom had questioned the inmates about her and whether or not what she reported happened, really happened.

Thom testified that prior to November 19, 2004, it was brought to his attention by both inmates and fellow officers that Gephart had either provoked or escalated a situation to the point that a conduct report or TLU had to take place. Thom testified that the officers making these comments were Todd Lockwood, Pat Hodgkins and Robert Martinez. Thom also testified that the staff on Unit 18 (Segregation Unit) where the inmates would be taken for TLU would make comments to the effect that "Officer Gephart was working".

Lockwood, who did TLUs to the Segregation Unit in 2004-2005, testified that the inmates would be complaining about the way Gephart was treating them and the way she was disrespecting them. Lockwood testified that it was his personal opinion that someone was going to get hurt on Unit 14 and that he expressed this to Thom, but could not recall specifically when he had done so.

Pearce, who heard conduct reports regarding alleged inmate behavior, testified that you could tell that something was missing from some of the conduct reports Gephart wrote because they would start off with the inmate already agitated and you wonder why or how he got agitated. Pearce testified that the Unit 18 segregation staff members who were present for those hearings would comment that "Gephart's actions were going to get somebody hurt some day." Pearce testified that the officers making this comment were Floyd DeVries, Ann Walters, Jeff West and Robert Martinez. Further, Pearce testified that one of the complaints by staff was that Gephart followed inmates berating them, confronting them, and that that was one of the problems he saw with her, that she didn't let things go. Pearce testified that instead of letting it go or actually de-escalating something, she escalated problems.

During November 2004 cigarettes were stolen from Officer Dick Barton's backpack causing significant disruption on unit 14. Inmates were prohibited from smoking so cigarettes were valuable contraband. Inmates were threatening each other and informing the officers that this or that inmate had the cigarettes, or that this or that inmate was threatening another inmate. DeHaan directed the officers on Unit 14 to search for the cigarettes. The searches caused an enormous amount of hostility from the inmates who were not involved because they did not want their possessions searched and their little bits of contraband taken away, and in turn, were hostile and threatening the inmates who did possess the cigarettes.

Because of the disturbances created from the searches, on or around November 12, 2004, DeHaan instructed Pearce to move all of inmates on Unit 14 off the unit and replace them with new inmates.

Hodgkins, who as a "5-6 floater" gave breaks to the officers on Unit 14, testified that he had concerns for Gephart's safety because a lot of inmates did not agree with the way she handled things. Hodgkins recalled that on or around November 18, 2004, the inmates were pretty agitated because a brown exchange (exchange of clean underwear for dirty underwear) was done shortly before the inmates were going to recreation. Hodgkins testified that one inmate got really loud and that Gephart told him to go back to his room and shut up and sit down and that Gephart slammed the inmate's door and then the inmate slammed the door. Hodgkins testified that Thom, DeHaan and Pearce asked him what was going on in Unit 14 and that he explained that it was over a brown exchange, that "It didn't need to be. They could have changed them on second shift." Hodgkins testified that it was potentially dangerous on Unit 14 as mad as the inmates were. Hodgkins also testified that when he worked on Unit 14 he had concerns about the way Gephart talked to inmates because she "talked more or less down to them."

Gephart testified that about three days prior to November 16, 2004, an inmate [Favia] from room 5 in Unit 14 gave Sorenson and her a note stating that he was being threatened by the other inmates in his room. Gephart testified that Sorenson told her that she had spoken to Thom and Thom said that he was not going to address the inmate's concerns. Gephart testified that on November 18, 2004, when the inmate approached her and said, "Look, I can't deal with this anymore. They're taking my canteens. They're taking my property", she called Pearce and told him that this inmate was very scared and that the inmates were very agitated and upset with the new rules on Unit 14. Gephart testified that Pearce said, "I'm not doing anything about it, I moved all those inmates up there, it's not my problem," and hung up.

On November 19, 2004, Stephan Kuehn, a building sergeant for Unit 13, which is directly below Unit 14, was stopped by inmate Favia and told by Favia that he did not want to return to Unit 14, that he was being harassed by his roommates who were trying to get him to retaliate against Gephart because of some perceived action that Gephart had taken against the inmates in that room. Pearce testified that he was informed by Thom that the inmate was refusing to go up to Unit 14 because inmates on the unit were planning to retaliate against Gephart due to the confrontational manner in which she performed her job. Pearce testified that he informed Deputy Warden Heise of what was going on, that approximately one week earlier all of the inmates had been removed from Unit 14 due to the "climate problem" on the unit, and that the unit's climate was right back to where it was.

Deputy Warden Heise, who was away from the institution when informed of the situation on Unit 14, testified that Pearce reported that he had fears for Gephart's safety and requested permission to have her removed from the unit at that time for her safety. Heise okayed Pearce's request.

Pearce then called Rene Marquardt, DCI's Human Resources Director, to have her prepare a letter from Warden Bett removing Gephart from her Unit 14 position. The subject of the letter, "Reassignment", was dated November 19, 2004, and read in part as follows:

Effective this date you are being administratively reassigned from Unit 14 Officer to Utility. This is on a temporary basis pending investigation of your involvement in some incidents occurring on Unit 14....You will not be allowed to work on Unit 14 until further notice....

Marquardt signed the letter for Warden Bett in his absence and took it up to Pearce and Thom.

Pearce testified that he conveyed information to Marquardt as to the reasons Gephart was administratively reassigned but did not recall telling Marquardt that Gephardt was going to be investigated. Pearce testified that it was never his intention to investigate Gephart, that as the administrator of the prison that day his job was to get everyone home safe. Marquardt could not recall any of the specifics of the information she was told as reason for the reassignment.

Thom called Officer Teachout to have him serve as a union representative for Gephart and Officer Chris Hilt to relieve Gephart from her position on Unit 14. At about 11 a.m. on November 19, 2004, Teachout and Hilt showed up at Gephart's desk. Gephart testified that Teachout stated, in front of the inmates, "You're being removed from your post right now. You need to bring all of your personal belongings, and I'm supposed to escort you up to the security suite." Gephart testified that she grabbed her coat and things and started walking down the hallway. Gephart testified that inmates were laughing and clapping and cheering and saying, "Whoa, there goes the bitch, don't have to worry about...no more rules...no more". Gephart testified that it was like walking a gauntlet seen in prison movies where they're all hanging out on the bars and they're all shouting at the new guy coming in.

Teachout escorted Gephart to the security suite where Pearce and Thom were waiting. Gephart testified that Thom did most of the talking. Gephart testified that Thom said he removed her from the unit because he feared for her safety, that he had received information from inmate Favia that the inmates were planning on some kind of refusal to follow the rules on the unit, that they were going to rebel and she was the one they were mad at, and that Thom was removing her for that reason.

Gephart testified that the next thing she recalled being told was that Thom felt she was a threat to the security of the institution, that the way she performed her job left her and others in jeopardy. Gephart testified she responded that if he really felt she was a security risk, then she wanted to be placed on administrative leave outside the institution, at which point Pearce jumped in and said, "I'm not placing you on administrative leave. You're going to be here working a 20", which is a special management unit. Gephart testified that the inmates on that unit are the most volatile and hard-to-manage inmates in the institution; that some have special needs and take a lot of medication.

Gephart testified that she asked Pearce if the inmates were threatening her, why wasn't he moving the inmates or locking them up and that Pearce responded, "I just changed out that whole unit because of you and that whole mess with the cigarettes, and I'm not changing inmates again." Gephart testified that the cigarette mess was not her fault. Gephart testified that Pearce was really angry at her; he was really angry and very, very aggressive with his anger.

(The ALJ found that while there was a basis for concern regarding the situation on unit 14, the response to those legitimate concerns was affected by Gephart's dispute with Thom; that Gephart would not have been removed from unit 14 in the manner it was done had she not had conflicts with Thom; that Gephart's sex was not a factor in either the decision to reassign Gephart or the manner in which that was done, nor was there any consideration of any protected behavior in that decision. See findings nos. 31 and 32.)

On or about November 24, 2004, Gephart sent correspondence with a summary of events to Westfield, as she recalled them, based on notes she had written at the time with concerns primarily involving Thom going back to June 2004. See Exhibit C-2. With respect to her meeting with Thom and Pearce after being removed from her position as Unit 14 officer on November 19, 2004, Gephart wrote:

Captain Pearce and Lt. Thom were waiting in the security suite and Captain Pearce stated that I was being removed from my position pending investigation into allegations that I had been abusive to inmates and used inappropriate language to inmates and that I was creating a hazardous environment on the unit. Lt. Thom also stated that I was a security risk and a danger in the institution and that he did not want another New Lisbon (Inmates had beaten an officer) I told both of them that they were the cause of the problem as they refused to recognize that some of the inmates being placed as medium on an open unit were not in fact appropriately placed and by listening to inmate complaints instead [of] interviewing staff working on the unit on a regular basis.

Exhibit C-2, p. 4.

In the November 24, 2004 correspondence to Westfield, Gephart indicates that Pearce was not actually accusing her of the cigarette mess itself, but something else. Gephart wrote:

Captain Pearce said we moved all the inmates on that unit last week because of you and there are still problems up there. I said, "You did not move those inmates because of me. The cigarettes lost were not mine and I searched over and over at your order." Pearce said, "You deliberately caused a problem when I called you by talking on the phone in the dayroom about the inmates involved." I said, "You called me and asked questions, you knew I was on my post. I spoke as quietly as possible and told you that they were all writing kites about the theft. Why didn't you have me relieved if you wanted it to be a confidential conversation?"

Id.

Immediately following the above statement, Gephart wrote:

Lt. Thom then said, "This is for your protection because of the threats we received from the inmates in room 5 against you. You run an excellent unit up there and we need to find out what is going on. We can't move the inmates in 5 without causing more problems on the unit so we are going to move you.

Near the end of Gephart's correspondence, after referring to disruptive inmates being removed by TLU placement or officers requesting their movement to a more secure unit, Gephart stated the following:

However Lt Thom's actions and his comments directly to and in front of inmates have created a hostile work environment for me by allowing the inmates that I am supposed to monitor and supervise to treat me with contempt and disrespect. The inmates made statements and their actions lead me to believe that Lt. Thom led the inmates to believe that I had no supervisory backing and they should disregard my orders. This placed me and all other staff working on the Unit in danger or inmate retaliation. Lt. Thom's actions in effect placed a price on my head, the inmates knew that whoever gave Lt. Thom the right statement would be rewarded and inmate [McAfee] was rewarded by being moved to the barracks unit and within 3 days he was on the transfer list for Racine Correctional Institution. This was the destination of choice for inmate [McAfee].

Lt. Thom never told me to change any rule nor was I given any training or instruction to modify my job performance. In fact Lt. Thom continued to state to my face that I was doing an excellent job. I was never reprimanded by any other supervisor.

Lt. Thom's statements in front of staff undermined my co-Worker's confidence in my abilities to perform my job. The Correctional Institution setting is not the place to feel a lack of confidence in a co-worker. I rely on my co-Worker's to assist me and I have to have confidence in my own abilities to perform if I need to assist my co-Worker's. Lt. Thom has humiliated me and I have been made to feel afraid to perform or take any action if an inmate is aggressive to me, as I fear retaliation by Lt. Thom. I am afraid for my safety as Lt. Thom assigned me to work as a Utility Officer and placed me on the unit where the special management inmates are housed. These are the most difficult and volatile inmates in the institution. Lt. Thom said that I was a security risk and unable perform properly, if he believes this to be true why would he assign me to this unit or any unit or area where I am required to deal with inmates?

Exhibit C-2, p. 5.

Captain Karen Larsen testified that when Gephart left Unit 14 Gephart was reassigned to Utility and that during the period from November 20, 2004 until December 10, 2004, she was the one who primarily assigned Gephart work. Larsen testified that she put Gephart on Unit 20 because Gephart did well there in the past and was familiar with the area. Larsen testified that if she didn't feel Gephart could do a good job, she would never have put Gephart on a place like 19 or 20 because you have vulnerable and psych inmates. Larsen testified that when Gephart had worked Utility, she would most often put Gephart in Units 19, 20, the control center and the towers. Larsen testified that Gephart seemed more patient with newer inmates and/or the special management people that were slow, vulnerable, or some of your psych inmates. Larsen herself had filed a complaint alleging retaliation against DOC during the 90's when she worked at Waupun.

Westfield testified that he received and reviewed the document from Gephart and asked Thom some questions regarding it, but by the time he had received it there was an investigation going on into the incidents on Unit 14. Westfield testified that some of the concerns in the document were some of the very things they were concerned about as far as behavior. Westfield testified that at that point, other than review the document, he did nothing more.

Gephart testified that after calling Westfield, she met with him for about an hour and a half, discussing the issues on Unit 14. Apparently this meeting took place on or about November 29, 2004. Gephart testified that she told Westfield that no one ever told her they wanted her to change the way she did her job; that she had stated several times that it needed to be in writing if there was a problem. Westfield took notes of the discussion. Westfield's notes indicate that Gephart stated she had not been questioned in ten days, that Gephart felt that her performance as an officer was okay, that if they had a problem with what she was doing wrong there should be clear direction and expectations, and that Gephart felt that she was being arbitrarily punished by being removed from the unit and reassigned. See Exhibit R-19.

Westfield testified that on the same day that he spoke to Gephart he believes he went to Pearce, and maybe Thom, to find out what the status of the investigation was and if anybody had talked to Gephart. Westfield testified that he found out that schedules had conflicted, and asked that the investigation get going.

Thom testified that after Gephart was administratively reassigned, "they" investigated the inmate's complaint (Favia's), and that "I would have spoken to the inmates that were in that room on the given day that she was removed from the unit. I would have spoken to the other officers that had worked or have worked with Officer Gephart on Unit 14. I would have watched the climate on Unit 14 in dealing with the officers that were up there in that time span. That's what I would have done."

Thom also testified that he may not have spoken with Sorenson; that he was not sure if Pearce spoke with Sorenson "because we were both doing the investigation or the (inaudible)."

(The ALJ found that no investigation was conducted about the situation in Unit 14 after Gephart's removal; that all decisions regarding the extent, or lack thereof, of an investigation were made prior to DCI learning of Gephart's [December 2, 2004] complaint; that DCI did not consider Gephart's sex or any protected behavior she may have engaged in decisions regarding the scope of the investigation. See finding no. 39.)
 

DISCUSSION

Gephart's claim of retaliation for filing a formal complaint of discrimination focuses on a December 14, 2004 letter that Lt. Thom sent to Security Director Westfield, a PPD that she received on January 18, 2005, and a written reprimand that she received on June 7, 2005, based on a Conduct and Incident Report she filed in April 2005. Those matters are discussed below.

A claim of retaliation, like other discrimination claims, may be proven using either the direct or the indirect method of proof. Under the direct method of proof in a retaliation claim a complainant must show that he or she: (1) engaged in statutorily protected activity; (2) suffered an adverse action taken by the employer; and (3) a causal connection exists between the two. See, e.g., Tomanovich v. City of Indianapolis et al., 457 F.3d 656 (7th Cir. 2006) citing Moser v. Ind. Dep't of Corr., 406 F.3d 895, 903 (7th Cir. 2005); Sitar v. Ind. Dep't. of Transp., 344 F.3d 720 (7th Cir. 2003) citing Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002). Under the direct method, there are two types of permissible evidence: (1) direct evidence, i.e., evidence that does not require drawing an inference from evidence to the proposition that it is offered to establish; and (2) circumstantial evidence, i.e., evidence which does require drawing inferences. See, e.g., Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900 (7th Cir. 2006); Rogers v. City of Chicago, 320 F.3d 748 (7th Cir. 2003). Under the first type of direct evidence, the evidence "essentially requires an admission by the decisionmaker that his actions were based upon the prohibited animus." Rogers (quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000)). The second type of direct evidence, circumstantial evidence, "consists of ambiguous statements, suspicious timing, discrimination against other employees, and other pieces of evidence none conclusive in itself but together composing a convincing mosaic of discrimination against the plaintiff." Sylvester, supra. (quoting Troupe v. May Dep't Stores Co., 20 F.3d 734, 737 (7th Cir. 1994)).

To prove a claim of retaliation under the indirect method, the complainant must establish a prima facie case of retaliation by showing that he or she: (1) engaged in statutorily protected activity; (2) met the employer's legitimate expectations; (3) suffered an adverse employment action; and (4) was treated less favorably than a similarly situated employee who did not engage in statutorily protected activity. Tomanovich, supra (citing Moser, supra.). A similarly situated employee is one who is "directly comparable to [the complainant] in all material respects." (Rogers, supra)(quoting Grayson v. Oneill, 308 F.3d 808, 819 (7th Cir. 2002)). "The prima facie case, and particularly its fourth prong, are meant to identify situations where the 'actions taken by the employer *** if unexplained, are more likely than not based on considerations of impermissible factors.' " Karim v. H & M Int'l Transp., Inc., 2009 U.S. Dis. LEXIS 91179 (quoting Humphries v. CBOCS West, Inc. 474 F.3d 387 (7th Cir. 2007). If the complainant establishes a prima facie case, the burden of production shifts to the employer to present evidence of a non-discriminatory reason for its employment action. Tomanovich, supra. If the employer meets its burden, the burden shifts back to the complainant to demonstrate that the employer's reason is pretextual. Id.

While the direct method of proof is ordinarily more onerous than the indirect method of proof, it is the complainant's only recourse if the complainant cannot prove that he or she was treated differently than a similarly situated employee. Sylvester, supra; Rogers, supra.

On appeal, from the ALJ's dismissal of her claim for retaliation for filing a formal complaint of discrimination, Gephart argues that within days of learning that she had filed a formal complaint with the ERD Lt. Thom sent Security Director Westfield a memo in which he falsely accused her of being the subject of a "large number of inmate complaints (11.6 investigations)" and of being "unprofessional" and demonstrating a "lack of tact" when working with inmates.

Gephart's formal complaint of discrimination against DOC was filed with the Equal Rights Division on December 2, 2004. Thom learned of Gephart's discrimination complaint on or before December 13, 2004.

In a memo to Westfield dated December 14, 2004, and signed by Thom and Pearce, Thom stated, in part as follows:

On 11/19/04 Officer Gephart was Administratively removed from her post as Unit 14 Officer #2 and placed into a Utility post on 1st shift. The removal was based on several reports from fellow Security staff expressing concern for her safety and the safety of others as well as a large number of Inmate complaints (11.6 investigations) of Officer Gephart. Captain Pearce and I met with Officer Gephart and Officer Teachout, Tim (Union Rep.) on 11/19/04 to inform her of the removal and to inform her that we would be investigating the incidents in question.

During the initial meeting we informed Officer Gephart of the circumstance behind the decision (unprofessionalism, escalating the situation, use of tact, etc.) and that she would be reassigned until the investigation was complete....

On 12/14/04 Captain Pearce and I met with Officer Gephart and Officer Teachout Tim (Union Rep.) to inform her of the outcome of the investigation and to reinstate her as Unit 14 Officer #2. I informed Officer Gephart that we (Administration) feel that she performs the technical aspects of her job very well and that was appreciated; however, the way she performed that job is what raised our concerns. We received information from Officer Gephart's peers along with verbal statements made by inmates and on individual Inmate Complaints concerning her confrontational demeanor and lack of professionalism and tact...

The ALJ made the following findings with respect to Thom's December 14, 2004 memo:

46. There were no 11.6 Investigations claiming misconduct by Ms. Gephart on December 14, 2004. Lt. Thom knew there were no 11.6 investigations of Ms. Gephart when he wrote the letter on December 14, 2004.

47. Mr. Westfield had knowledge independent of the memo from Lt. Thom regarding 11.6 Investigations, knew there were not a "large amount" of inmate complaints about Ms. Gephart, and did not rely upon Lt. Thom's representation regarding 11.6 Investigations in making future decisions regarding Ms. Gephart. Furthermore, [Mr.] Westfield did not consider the December 14, 2004 letter from Lt. Thom in any future action regarding Ms. Gephart and put it in a place where other individuals would neither see, nor use, that letter.

Additionally, in his Memorandum Opinion, the ALJ stated: "...while [Gephart's] return [to Unit 14] and the memo were partially because of the complaint, the return to Unit 14 was not alleged as a disciplinary act in the complaint and neither her return to Unit 14 nor Lt. Thom's misstatement in the memo were proven to be factors in subsequent employment actions by DCI." ALJ mem. op. p. 28.

Gephart argues that the ALJ erroneously found that whether the investigation actually occurred was irrelevant since the existence or non-existence of any investigation preceded her ERD complaint because Thom's statement to Westfield that an investigation did, in fact, occur clearly post-dated her complaint. Gephart argues that despite explicit findings by the ALJ that Thom had knowingly lied about the 11.6 investigations and that the memo was motivated in part by her complaint, the ALJ refused to rule in her favor, erroneously concluding that because Thom's intentional "misstatement" was not used as the basis for any subsequent employment actions there was no violation of Wis. Stat. § 111.322(3).
 

Did Thom's December 14, 2004 memo constitute an adverse action against Gephart?

The parties dispute whether Thom's memo constituted an adverse employment action. Gephart argues that it is well settled that a complainant need not prove a material adverse job action as that term has been defined under Title VII (4)   in order to prove a retaliation claim under the Fair Employment Law. Gephart argues that the only requirement imposed by LIRC is that the action not be de minimus, citing Pluskota v. Alverno College (LIRC, 10/21/05) and Post v. Mauston School Dist. (LIRC, 08/28/02). In Post, the commission held the complainant failed to prove that her reassignment from her 5th grade teaching position to a 7th and 8th grade teaching position was due to her age, and in divergent concurring opinions discussed whether a complainant must show a material adverse employment action in order to establish a prima facie case under the WFEA. In Pluskota, the commission held that the complainant failed to prove that she was treated less favorably in her terms and conditions of employment and that her termination was reasonably justified based on the manner in which she conducted herself in the workplace, not her marital status. Gephart also cites Muenzenberger v. County of Monroe (LIRC, 08/13/98) and Foust v. City of Oshkosh Police Dep't. (LIRC, 04/09/98), as support. In Muenzenberger, the commission noted that the supervisor's negative note or performance evaluation constituted a permanent record of poor performance, that subsequent supervisors otherwise unfamiliar with an employee's performance could rely on the document to form an unfavorable opinion of the employee and that the employee was denied a salary increase as a direct result of the evaluation. In Foust, the commission noted that a written notation of an officer's performance deficiencies, although not a formal means of discipline, was placed in the officer's file and could be grieved through the union.

Gephart argues that being falsely accused of being the subject of "a large number" of 11.6 investigations in an official memo to the head of security at DCI was hardly de minimus because an 11.6 investigation is a special investigation involving an allegation of staff misconduct that may result in disciplinary action. Gephart argues that even one such complaint -- let alone a large number of them--could very easily cause a superior to form an unfavorable impression of an employee, and here it apparently caused Westfield to form an unfavorable impression of Gephart because Westfield subsequently ordered Thom and the two other security supervisors to address her alleged deficient interactions with inmates in an "accelerated"5(5) PPD. Gephart also notes that Westfield testified that Thom's statement about the 11.6 investigations was not a favorable statement and that he would not want his work record to reflect this is this were not true.

Thom's memo, however, falls short of constituting an adverse employment action under the circumstances presented in this case. There are several reasons. First of all, the evidence shows that Westfield was the person responsible for any 11.6 investigations, and that Westfield had personal knowledge that there were no 11.6 investigations involving Gephart. T. Day 10, pp. 977-978. Furthermore, as discussed more fully below, contrary to argument by Gephart, the evidence fails to show that Thom's memo caused Westfield to form an unfavorable impression of Gephart and to therefore order Thom and the other security supervisors to prepare an "accelerated" PPD for Gephart. Second, while it is true Westfield stated he would not want "his work record" to reflect there were a large number of 11.6 investigations if this were not true, Westfield also testified that Thom's memo was an internal memo written to him that he would maintain as part of his records, that it was more of an informational type thing and that it is not shared. Furthermore, unlike the situation in Foust, in addition to there being no evidence that Thom's memo could be grieved through the union, Thom's memo was not part of a personnel file, not something anybody else would look at or consider for any other reason, and was not used for any further evaluations or further consideration or anything else other than to determine whether Gephart could be returned to Unit 14. T. Day 10, pp. 998-999. Third, unlike the situation in Muenzenberger, Thom's memo had absolutely no affect on Gephart's terms and conditions of employment.

Gephart cites Pearce's testimony that he never conducted an investigation into the incidents in question and that he never had any intention of doing so, along with Thom's testimony that he never spoke to Gephart or Sorenson, the other Unit 14 officer, as evidence that an investigation was never conducted. However, there was other evidence presented on this issue. Thom testified that between November 19, 2004, when Gephart was removed from Unit 14, and December 14, 2004, besides speaking to the inmates, he would have spoken to other officers that had worked or have worked with officer Gephart on Unit 14 and he would have watched the climate on Unit 14 in dealing with the officers that were up there in that time span. T. Day 3, pp. 23-24. Gephart argues that testimony about what Thom "would have" done is not evidence that he did, in fact, do something. However, testimony of Hodgkins and Mike Beck indicates that Thom was investigating Gephart's interaction with the inmates. Hodgkins, a "5-6 floater" that gave breaks to Units 14 and 1, testified that he was asked to write up a report of an incident involving Gephart and some inmates on Unit 14 that occurred on November 18, 2004, but that a day or two later Thom said to him, "I can't order you to write [Gephart] up" and that he (Hodgkins) responded, "I'm not going to because I don't believe in writing up blue shirts." T. Day 7, p. 484. Also, Michael Beck, an inmate complaint examiner at DCI, testified that on November 19, 2004, after Hodgkins informed him that he would be receiving complaints from inmates who were upset about the actions of Gephart from the day before, that he asked Thom and Pearce if they were doing anything about it and was told "they were reviewing the incident at this point." T. Day 9, pp. 766-767. Furthermore, Gephart herself testified that on December 14, 2004, when she was returned to Unit 14, she asked Thom what kind of investigation he had done and if Thom had talked to anybody she worked with that Thom responded that " 'we had other people that we talked to that (inaudible) and didn't --' he didn't want to, like go in depth." T. Day 5, pp. 60-61.

Gephart also argues that the December 14, 2004 memo statements that she demonstrated unprofessionalism and a lack of tack in her interactions with inmates and was escalating the situation were false because the undisputed evidence showed that neither Thom nor Pearce ever personally observed her do or say anything to an inmate that was unprofessional, inappropriate or that they thought escalated a situation with an inmate. Gephart argues that the only evidence supporting these allegations was Pearce's testimony that Officers Floyd Devries, Todd Lockwood and Robert Martinez, who worked with Pearce in segregation, and after inmate conduct hearings upon learning that it was Gephart who wrote the conduct report, would result in "eye rolling", statements like "that figures" and "she's going to get somebody hurt someday." Gephart argues that moreover, these officers rarely if ever worked with her on Unit 14 and thus had no personal first-hand knowledge of how she interacted with an inmate.

The record does not support Gephart's arguments. To begin, nowhere in Thom's December 14, 2004 memo does Thom state that he (or Pearce) had personally observed the actions by Gephart mentioned in the memo. What Thom states in the memo is that Gephart's removal was "based on several reports from fellow Security staff expressing concern for her safety and the safety of others" and that "We received information from Officer Gephart's peers along with verbal statements made by inmates and on individual Inmate Complaints concerning her confrontational demeanor and lack of professionalism and tact". Furthermore, the record contains substantial evidence to support these statements. For example, Lockwood, who did TLU escorts to the segregation unit during 2004 and 2005, testified that when giving TLU escorts from Unit 14 he noticed that the inmates "were pretty upset. They'd be complaining about the way [Gephart] was treating them, the way she was talking to them, disrespecting them like sort of thing." T. Day 7, pp. 321-322. Lockwood testified that when Gephart was on Unit 14, "It always seemed to be on edge...the climate of the unit was pretty tense"; that his personal opinion "was that someone was going to get hurt on that unit" and that he expressed this to Thom. Id. Gephart argues that Lockwood's testimony has no probative value because he testified that he had never actually worked with her and could not recall when he had complained to Thom. While Lockwood did testify that he could not specifically recall when he had expressed his concerns about Unit 14 to Thom, the TLU escorts from Unit 14 of which he spoke were during 2004 and 2005.

Also, Officer Hodgkins testified about Gephart's interaction with inmates. Hodgkins testified that he had an opportunity to work with Gephart because as a "5-6 floater" he gave breaks to Units 14 and 1 and would go up to Unit 14 twice a day for 20 to 25 minutes. Hodgkins testified that he had concerns for Gephart's safety because a lot of the inmates didn't agree with the way she handled situations up there. Hodgkins testified that on November 18, 2004, the day before Gephart's removal from Unit 14, the inmates were pretty agitated when he came to the unit. Hodgkins testified that one inmate got really loud, that Gephart told the inmate "to go back to his room and shut up and sit down" and then there was slamming of doors by the inmate and Gephart. T. Day 7, p. 451. Hodgkins testified that this inmate stated, "She can't talk to me like a little kid" and that he told the inmate to just "cool it" and that the inmate could talk to a white shirt when the inmate went to the chow hall. Hodgkins testified that later in the chow hall the inmate said he talked to a white shirt, and that after chow was done Lt. Thom and Captains DeHaan and Pearce asked him what was going on in the unit. Id. at 452-453. Hodgkins testified that he explained that all this was over a brown exchange and that "It didn't need to be. They could have changed them on second shift." Hodgkins testified that because he was asked to write a report up on Gephart he responded that the only way he would was if he was ordered to do so. Hodgkins testified that he then talked to two union representatives, wrote down what he recalled taking place on Unit 14 and showed it to a union rep who told him if they asked for it then he would have to give it up.

Gephart apparently argues that she never told an inmate to "shut up" (or to go to his cell and that she slammed the door on the inmate) because not one of the three inmates who filed complaints against her on November 18 reported she had said "shut up" (citing Exhibit C-33) and because Hodgkins also testified that he never told the white shirts that she said "shut up." However, two of the complaints filed against Gephart by inmates on November 18, 2004, contain allegations that Gephart had slammed the door. Gephart herself testified that she "didn't recall" slamming any doors. T. Day 4, p. 52. Further, Hodgkins testified that he let Gephart read what he had written about what occurred on November 18 and that Gephart responded, "I didn't say that", to which he replied, "You did say shut up and go sit down on your bed." T. Day 7, p. 456.

Gephart is correct that several witnesses did provide favorable testimony about her performance as a correctional officer. Miescke, who had worked with Gephart until sometime before Gephart's November 14, 2004 administrative reassignment, testified that Gephart was very firm, fair and steady in her interactions with the inmates. T. Day 1, p. 61. Christine Hilt, who worked as a relief officer on Unit 14, testified that Gephart was always very polite, by the book, calm, professional and consistent when dealing with inmates. Id. at 84. Sergeant Michael Hammer testified that Gephart did her job like it was meant to be. Id. at 111. Sergeant Kuehn testified that he did not have any concerns about Gephart as an officer, that he never had any problems with Gephart. T. Day 9, pp. 727; 739. Sergeant Schleicher testified that Gephart did what she was supposed to do and carried out her duties, and that he thought she was a good worker and he liked working with her. Id. at 131; 136.

However, Miescke also testified that Gephart sometimes lacked tact with some of the inmates and did not end the conversation with an inmate soon enough, which possibly led to the inmate becoming more agitated. T. Day 1, pp. 73-74. Hilt only observed Gephart's performance for two 30-minute periods. T. Day 1, p. 89. Sorenson, who worked with Gephart during 2004 and until sometime in 2005, testified that she felt Gephart occasionally escalated situations with inmates, sometimes had problems interacting with inmates, and that she signed off Unit 14 in part because she did not want to work with Gephart. T. Day 3, pp. 18-19. Hammer testified that he only worked on the same days as Gephart once or twice a week, that he sometimes went up to Unit 14 and sometimes did not and that when he did go up to Unit 14 he usually did not physically see what Gephart was doing. T. Day 1, p. 118. Kuehn testified that he only worked as the Unit 13 sergeant a couple days a week and only worked with Gephart occasionally because of their days off. Schleicher, who got up to Unit 14 one or two times per day, testified that he probably did complain about Gephart to someone. Schleicher testified that the complaint that he usually had was that Gephart was too aggressive in her searches, that it upset the inmates and the atmosphere of the place, that inmates complained to him about the way Gephart talked to them and that Gephart had a lot of conflicts with inmates. Id. at 136; 147; 158; 160.

Gephart's claim that she was retaliated against for filing a formal discrimination based upon Thom's December 14, 2004 memo to Security Director Westfield fails under the direct method of proof because she has not shown that this memo constituted an adverse employment action against her. Gephart's claim about this memo also fails under the indirect method of proof because she has not established a prima facie case of retaliation. Gephart has not shown that she was meeting the employer's legitimate expectations or that she was treated less favorably than a similarly situated employee who did not engage in statutorily protected activity.  
 

The January 18, 2005 PPD

On January 18, 2005, Thom, Larsen and DeHaan met with Gephart to present her a PPD. In this PPD (Exhibit C-20, last PPD) Gephart was rated as "Does not meet standard" in three areas: "Conducts inspections with minimum disruption to offenders", "Courteous and tactful", and "Responds positively to constructive criticism and supervision". The following comments appear in the Results and Comments section regarding inspections:

While conducting...searches Officer Gephart routinely runs into conflicts on how she treats inmates and their property. This often times leads to verbal altercations with the inmate. Officer Gephart needs to work on remaining tactful and maintain her professionalism.

The following comments were listed regarding the two other areas:

Officer Gephart is normally courteous and tactful, although she becomes defensive and resistive when constructive criticism is offered by Supervisors. Officer Gephart needs to work on not personalizing issues that arise in the course of her duties.

In addition, the PPD also included the following Supervisor Comments:

The areas of concern include but are not limited to her interpersonal skills when dealing with inmates and staff, as well as her ability to deal with constructive criticism and conflict concerning her performance of certain job duties. These job duties include documenting on an Inmate Conduct Reports (sic) a rule infraction such as "altered razor blades" (deemed a Major rule violation) or "damage or alteration of property" for destruction of state property, instead Officer Gephart is choosing to write an Incident Report. In the past Officer Gephart documented these types of rule infractions on the proper forms without having to be informed to do so by a Supervisor. Officer Gephart has in the past demonstrated the ability to make sound decisions and document incidents appropriately. The Institutions (sic) position is to assist Officer Gephart in returning to the level of performance that she has demonstrated in the past. The Training Captain is attempting to schedule Officer Gephart for training in the following areas when they become available: Verbal Judo, Conflict resolution.

Gephart argues that the January 2005 PPD was retaliatory because PPD's were usually conducted only once a year on the employee's anniversary date (her annual PPD was not due until May 2005) and that it was not normal that three supervisors had signed the PPD. However, Westfield testified that he requested the security supervisors to do this PPD because of Gephart's concerns that she had not been given any directions or expectations or informed of what she was doing wrong. Westfield's written notes taken during his meeting with Gephart corroborates the fact that these were the concerns expressed by Gephart. See Exhibit R-19. Westfield testified that in his conversation with Gephart after receiving her letter dated November 24, 2004, because Gephart indicated that she did not believe there were any problems with her performance and that she had no clear direction on what she was doing wrong, he asked that all three of the first shift supervisors participate in putting together a PPD reflecting the views of all of the supervisors for the purpose of setting out some clear expectations and clear directions on what she was doing wrong. T. Day 9, pp. 909-910. Gephart herself testified that in her meeting with Westfield she told Westfield that no one ever told her they wanted a change in the way she did her job, and that if there was a problem she needed it in writing. T. Day 4, p. 57. Further, Westfield testified that he asked all three supervisors to sign the PPD because he felt it would be most appropriate because Gephart felt she was being singled out by Thom and that Thom was purposefully asking questions about her, which led Gephart to believe she was being harassed by him regarding her performance. T. Day 9, p. 910. Westfield further testified that the three supervisors were assigned to the first shift as a group and rotated on that shift on days off, talked on a daily basis, understood the issues and the climate, and thus the PPD would have been a fair and accurate reflection of Gephart's day-to-day performance having all three participate. Id.

Deputy Warden Heise testified that in discussion with Westfield it was felt appropriate that the primary supervisors working with Gephart should be part of the January 2005 PPD process because they were the people on the shift that regularly supervised Gephart, that it was felt important that they had a consistent approach to helping Gephart with her performance, and that this could best be served by all of the supervisors meeting with Gephart and having a complete understanding as to what was required and needed to be done. T. Day 8, p. 513. Warden Jess testified that she had discussions with Westfield and Heise about who should present the January 2005 PPD to Gephart and who should sign it. T. Day 10, pp. 1041-1042. Jess testified that she said a female needed to be involved so Larsen was assigned and that they had the other two supervisors involved because they were all first shift supervisors, since Gephart worked first shift, and it wasn't one supervisor making the decision. Id. at 1042. Also, Rene Marquardt testified that she was involved with Gephart's January 2005 PPD. T. Day 10, p. 1131. Marquardt testified that she was involved in the decision about having all three supervisors sign the PPD, that she (Marquardt) knew that Gephart had filed a complaint against Thom and they were careful about that because they didn't want Gephart to feel this was all Thom; that Gephart's other supervisors on first shift also had some concerns regarding her interactions with inmates. Id. at 1131-1132.

Gephart argues that the January 2005 PPD presented to her was the first PPD where she had been rated as not meeting standards. Gephart points out that in a previous PPD prepared by Larsen in May 2002, Larsen had rated her as exceeding standards in the areas of "interpersonal relationships" including being "sensitive to others and their problems," being "courteous and tactful," and "responding positively to constructive criticism and supervision", and that in a May 2004 PPD, Thom had rated her as exceeding standards in the area of conducting room searches, noting that she "caused minimum disruption to the inmates", and in the area of enforcing rules in a fair, firm and consistent manner, noting that she "treated all inmates in the regards, not giving special treatment to a single one," and that Thom concluded that she did "an excellent job." Gephart argues that the PPD conducted in January 2005 demonstrated a very substantial change in her employer's assessment of her job performance, giving rise to a strong inference of a retaliatory motivation.

Larsen testified, however, that all three of them (herself, DeHaan and Thom) had input into the January 2005 PPD, that all three of them came up with the PPD. T. Day 9, pp. 866-868. Further, the only concern that Larsen expressed about the PPD had to do with the part about Gephart not getting along with supervisors. Id. at 867. Larsen testified that Gephart did get along with her and DeHaan, that the problem was not usually taking direction from them, it normally was supervisors other than them telling Gephart what to do, which could have been Thom or Pearce or anybody else that was working. Id. at 867-868. Further, Larsen testified that she recalled sitting in a conduct hearing with Pearce when there was a discussion about Gephart writing quite a few tickets (conduct reports) and something about maybe there being a way Gephart could handle situations differently, and Larsen was asked if she had any suggestions on how to go about it. Id. at 884. Larsen testified that she thought maybe if someone other than a supervisor say something so it wouldn't look or feel like discipline, maybe it would be more receptive. Id. In addition, with respect to Gephart's 2002 PPD, Larsen testified that if Gephart was showing impatience with inmates this is something she would have addressed on a PPD but she did not address that in that PPD "at the time". Id. at 892. Also, with respect to Larsen's 2002 comment that Gephart "understands the need for regular searches and shakedowns, completing these searches with minimal disruptions to the general flow of the unit operation", Larsen indicated the best way to explain what she meant by that was, "the unit didn't have a lot of (inaudible) complaints that things were -- from inmates during that time frame that they felt that they were being treated unfairly..." Id. at 892-893.

While Thom had rated Gephart as exceeding standards with respect to "Conducts inspections with minimum disruption to offenders", and with respect to "Enforces rules in a fair, firm and consistent manner" in his May 2004 PPD, Thom also testified that between May 30, 2004 and June 15, 2004, because of the number of TLUs or incidents that had occurred on unit 14, he was concerned about what was taking place on unit 14 so he questioned Officer Shelly Miescke about what was happening on unit 14. T. Day 2, p. 224. Indeed, Gephart's notes taken of her July 6, 2004 meeting with Thom and DeHaan reflect Thom's concerns. Gephart's notes state, in part as follows:

Thom - There were concerns on our part as 90% of the conduct reports were from you. Captain DeHaan and myself wondered if the other people up there were not doing their jobs and perhaps pushing everything on you.

Gephart - Of course I write more. I am in the middle of all the inmates in the dayroom, I hear what they say and I monitor the bathroom and hallway. This is where disputes happen.

Thom - The inmates we take off there are highly agitated.

Gephart - That is because in those instances you placed volatile inmates who had not seen psych services on an open unit.

Thom - De-escalation is an issue.

Exhibit C-2 (emphasis added.)

In fact, Gephart's notes (Exhibit C-2) not only provide evidence of Thom's concerns as to what was happening on Unit 14, they also substantiate concerns about Gephart's "ability to deal with constructive criticism" as expressed in Gephart's January 2005 PPD. For instance, with respect to the meeting Gephart had with Thom and DeHaan on July 6, 2004, Gephart's notes show that when Thom commented that the inmates being taken off Unit 14 were "highly agitated", Gephart responded, "That is because in those instances you placed volatile inmates who had not seen psych services on an open unit." Id. at 2 (emphasis added). Gephart's notes also show that during her meeting on November 19, 2004, with Thom and Pearce after being removed as the Unit 14 officer that when Thom stated she was a security risk and a danger to the institution and did not want another New Lisbon (where inmates had beaten an officer), Gephart responded by telling "both of them that they were the cause of the problem as they refused to recognize that some of the inmates being placed as medium on an open unit were not appropriately placed and by listening to inmate complaints instead [of] interviewing staff working on the unit on a regular basis." Id. at p. 4 (emphasis added). Thom (nor DeHaan or Pearce) were responsible for placing inmates on Unit 14. That was the function of the Assessment and Evaluation Unit at DCI. T. Day 9, pp. 811-812; Day 10, pp. 989-990. Similarly, in Gephart's July 5, 2004 letter to Thom she criticizes the manner in which Thom went about inquiring of staff about her performance, stated that she was an experienced officer with 11 years of experience and stated that she resented the implication that she was incapable of performing her duties.

Further, Thom also testified that prior to November 19, 2004, it was brought to his attention by both inmates and fellow officers that Gephart had either provoked or escalated a situation to the point that a conduct report or TLU had to take place. Thom testified that the officers making these comments were Todd Lockwood, Pat Hodgkins and Martinez. Thom also testified that the staff on unit 18 (segregation unit) where the inmates would be taken for TLU would make comments to the effect that "Officer Gephart was working". T. Day 3, pp. 56-58.

Gephart argues that the ALJ ignored her testimony (T. Day 4, pp. 78-79) that Larsen told her in May 2005 that "They want me to do another PPD for you, but I'm not going do. Thom can do his own dirty work." Gephart argues that Larsen's reference to this follow-up PPD as "Thom's dirty work" shows without a doubt that her first negative PPD was in fact motivated by retaliatory considerations as opposed to any legitimate concern over her job performance.

It is true that Larsen testified that she "may have" told Gephart that she was instructed to do another PPD for Gephart, and that Larsen testified that she "may have" told Gephart that she wasn't going to do Thom's dirty work or words to that effect. T. Day 9, p. 869; 893-894. However, Gephart's assertion that Larsen's reference to this follow-up PPD shows without a doubt that the January 2005 PPD was in fact motivated by retaliatory considerations as opposed to any legitimate concern over her job performance is unpersuasive. There are several reasons. First, based upon Larsen's hearing testimony, Larsen's comment about not doing Thom's "dirty work" could not have been intended as an expression that the request that Larsen do another PPD was motivated by retaliation. Second, for Larsen to have been asked to do a PPD in May 2005 is not something that can be viewed as unexpected or unreasonable. Indeed, Warden Jess, who was involved in the discussions with Westfield and Deputy Warden Heise about having the January 2005 PPD done, testified that a female needed to be involved then. Further, there was the matter which occurred in mid-April 2005 involving Gephart and Thom, discussed infra. Third, the testimony cited above by Lockwood, Hodgkins, Miescke, Schleicher and Larsen herself, which need not be repeated here, all substantiate the fact that the performance issues expressed in the January 2005 PPD were legitimate concerns. Further, the concern about Gephart's ability to accept constructive criticism is evident based on Gephart's July 5, 2004 memo to Thom and in her notes dated November 24, 2004, which she sent to Westfield. In addition, because the evidence also shows that following Gephart's meeting with Thom and Pearce on December 14, 2004, that Gephart wrote fewer Conduct Reports than she had been previously writing, wrote Incident Reports for inmate conduct when she should have written Conduct Reports and in Conduct Reports she wrote stated that she was ordered to write the report, this supports the PPD's expressed concerns about documenting incidents appropriately.

Assuming for purposes of argument that the January 18, 2005 PPD constituted an adverse employment action, the evidence of record directly refutes any causal connection between Gephart's filing of a formal complaint of discrimination and the PPD that she received on January 18, 2005. Gephart's claim about this PPD also fails under the indirect method of proof because she has not established a prima facie case of retaliation. Gephart has not shown that she was meeting the employer's legitimate expectations or that she was treated less favorably than a similarly situated employee who did not engage in statutorily protected activity.
 

Gephart's written reprimand

On April 16, 2005, Gephart was working on Unit 14 with Officer Michael Tolsma when inmate Green complained that his padlock was missing. Gephart told Green to search for the lock again to verify that it was missing and that if it indeed was missing he would have to pay $12 to get it replaced. Gephart testified that Green got upset, accused her of taking his lock and when walking back to his room "sneezed the word bitch (i.e., "Shish-bitch") " a couple of times. Gephart testified that she and Tolsma kind of turned their heads aside and laughed. Gephart testified she said to Tolsma, "You heard that, right", and that Tolsma said, "Yeah. What do you expect? That's the kind of mentality here." Gephart testified that she relayed what happened to Sergeant Hammer when Hammer came up to make his rounds, and Hammer said Green had been a problem moving to chow and back and asked why they hadn't "locked Green up." Gephart testified she responded, "Well, he's pretty much borderline behavior. If we locked up everyone who acted that way we wouldn't have anybody on the unit", but Hammer thought Green should be locked up and Hammer called Thom. Gephart testified that Hammer called her, told her that he wanted to TLU Green and to write the conduct report, but Thom would not let him. Gephart testified that a few minutes later, Thom called and asked, "Are you writing a conduct report?", and that she responded no because she felt Green's behavior was borderline. Gephart testified that Thom said, "No. I want a conduct report. Sergeant Hammer relayed his behavior to me, and, if he acted in that way, you need to write a conduct report." Gephart testified that she asked what Thom wanted her to write the conduct for and that Thom said, "You can write in on the behaviors that Sergeant Hammer told me about", to which she replied, "Well, I can't verify all those behaviors. The only thing that I can tell you that he did is sneeze 'bitch'." Gephart testified Thom then said, "Then that's what you have to write the conduct report on."

Thom went up to Unit 14 to TLU Green with two escort officers, Teachout and Tim Cullen. Gephart was sitting at the front desk writing the conduct report on Green. Officer Ruth Vree had relieved Tolsma and was in the dayroom area. Gephart testified that when Thom arrived he told Teachout and Cullen, "You two stay here. I'll take care of this" or words to that effect and then went down and entered Green's room. Teachout and Cullen remained behind the gate but next to Gephart's desk. Gephart testified that after about three minutes of watching down the hall and Thom didn't come out she commented to Teachout and Cullen, "Why did he do that? Why is he in there by himself? I don't really like this."

Gephart testified that this was not something she had ever seen done before, that usually when a TLU is done the two officers and the supervisor go down to the room and the supervisor observes everything the officers do and directs them. Gephart testified that it's a safety factor for everyone.

Gephart testified that she continued looking down the hall and could see Vree moving around at the end of hall by the desk and that Vree went over in the direction of the TV. Gephart testified that from the time that Thom went into the room to the time he exited, her eyes were on the hallway and that she would have seen if anyone other than Thom had gone into the room. Gephart testified that other than Thom she did not see anyone go into Green's room.

Gephart testified that other than Thom, she did not see anyone go into the room "until Thom was coming out." Gephart testified that when she saw Thom coming out, he had the inmate "and she saw Vree come up the hallway, grab the inmate's bag of possessions and follow Thom." Gephart testified that she "never saw Vree go into the room until Thom was coming out."

Gephart testified that she talked to Sergeant Hammer about the TLU done by Thom, asked if he'd ever seen that before, and that Hammer said "No, that wasn't proper procedure." Gephart testified that she also talked to Teachout about it and that Teachout said there was nothing he could do about it and, "Just don't worry about it. Sooner or later, he'll learn not to do it."

The conduct report that Gephart completed on April 16, 2005, on inmate Green read as follows:

On the above stated time (10 a.m.) and date Inmate...Green...approached the officer's desk on Unit 14 and stated, "I need a new lock. Someone came in my room and stole my lock." I COII Gephart told inmate Green that if he lost his lock he would have to pay to have it replaced. Inmate Green then said "Why do I have to pay you stole it." I then told inmate Green to go back to his room. Inmate Green went to his room opened the door and loudly said "Bitch". Inmate Green pretended to sneeze after he said Bitch. Both I and COII Tolsma saw and heard this. I searched for the missing lock but could not find

Exhibit C-6, p. 8.

Gephart testified that the next day (April 17, 2005) when Officer Vree gave the morning break she told Vree how uncomfortable she was because Thom had ordered her to write the conduct report and then done a TLU in a manner that wasn't normal. Gephart testified that she was worried that in some way, she was going to end up in trouble and that she thought she should write an incident report about the TLU, and that way everything that happened was on the record and no one could say anything different later. Gephart testified that when she spoke to Vree during the morning Vree said, "Do what you have to do, just leave me out of it."

The Incident Report Gephart completed on April 17 reads as follows:

On the above stated time (12:30 p.m.) and date Lt. Thom, Officer Cullen and Officer Tim Teachout arrive on Unit 14 to remove Inmate...Green...to Unit 18 for TLU placement. Inmate Green had been argumentative throughout the morning and was upset about being placed in TLU. Inmate Green was in cell #3 along with the six inmates who are housed with Green in cell #3 and inmate Green's lock was missing.

Lt. Thom told Officers Teachout and Cullen to remain behind the unit security gate and Lt. Thom proceeded to enter cell #3 alone leaving the door partially closed. Lt. Thom was in cell #3 for several minutes, [neither] escort officer was able to observe Lt. Thom during the time he was in cell #3. Lt. Thom eventually exited the cell and escorted Inmate Green to the security gate. At this point Lt. Thom allowed Officers Teachout and Cullen to assist.

Lt. Thom's actions were a [breach] of security practices. I felt very uncomfortable when Lt. Thom entered a cell without escort officers to observe and assist. EOR.

Exhibit C-6, pp. 6-7.

Gephart showed the Incident Report to Vree when Vree came up to give the second break on April 17, 2005. Gephart testified that Vree said, "You know I'm going to say I was in there." Gephart testified that she said, "What are you talking about?" and that Vree said, "I'm telling you I'm going to say I was in that room with Lieutenant Thom." Gephart testified that she said, "But you weren't. I never saw you go in that room. It didn't happen" and that Vree said, "Well, you should have seen me." Gephart testified that she told Vree she "wasn't going to write in the report that she did see her go into the room because I never saw it, and, as far as I was concerned from my observations, it never happened, and I was leaving the incident report as it stood because she hadn't said anything prior to that."

On April 17, 2005, Thom responded to the Incident Report stating:

This document is not accurate. Officer Vree R. was present in Room #3 for the majority of the time that I (Lt. Thom) was in the room. Officer Vree carried the inmate[']s property from the room.

In a memorandum to Jess, Heise and Westfield dated April 18, 2005, Thom wrote, in part, as follows:

I then walked to Unit 14 with Officers Tim Teachout and Tim Cullen as escort staff. Officer Teachout asked if I wanted them to proceed to the inmate[']s room with me and I directed them to both stay by the Officers['] desk and that I would talk to the inmate and bring him out there to have restraints applied.

Officer Ruth Vree (Cobra 74) was relieving Officer Tolsma at this time and entered inmate Green's room (3) with me. [Inmate] Green was extremely compliant while packing his property and walked out to the Officers desk area without any incident. Officer Vree carried his property and some Institution books out to the desk area for inmate Green.

Exhibit C-6, p. 10.

On April 18, 2005, Westfield ordered Captain Waltz to follow up on the Incident Report because Thom had represented that the report was not accurate as written.

Waltz conducted the investigation into Gephart's incident report about Thom's TLU of Green.

On April 18, 2005, Waltz interviewed Vree and Tolsma. Waltz's interview with Vree included the following questions and answers:

3) Did Lt Thom go in Green's room and who else went with him?
A) Lt Thom went into Green's room. He told the other 2 officers to stay up front.

4) Were you in the room with him?
A) I went into the room after he entered. I was in the dayroom and went to the room. Gephart showed me the IR [Incident Report] and I told her that I was in the room and why was she doing this and putting me in the middle. She stated she didn't know and said, "you really were in the room?" I told her again that I was in the room and she responded that she didn't see me.

Waltz also interview with Tolsma included the following questions and answers:

6)Did you hear or see [Green] say "bitch"?
A) I didn't hear him say bitch. I didn't have any problems with him. I was surprised that they locked him up. I didn't hear him sneeze.

7) I read the part in the CR-both I and COII M. Tolsma saw and heard this-and then asked him about it.
A) That's wrong! I didn't hear or see that shit. He wasn't a problem for me. (Officer Tolsma appeared upset that he was named in the report supporting something that he said didn't happen.)

On April 20, 2005, Waltz issued an Employee Disciplinary Investigation report, which contained a summary of his investigation and a recommendation regarding both Gephart's Conduct Report on inmate Green and her Incident Report on Thom. Included in Waltz's summary was the following:

In the incident Report, Officer Gephart claims that Lt. Thom went into the inmate's room without any Officer assistance and that this was a [breach] of Security. However, Lt. Thom states that Officer Ruth Vree was with him in the room...and this is verified by Officer Vree....Officer Vree also states that Officer Gephart showed her the incident report before it was submitted and that she told Officer Gephart that she (Officer Vree) was in the room with Lt. Thom and why was she doing this and putting her (Officer Vree) in the middle....Even though Officer Gephart now had personal knowledge that Officer Vree was in the room with Lt. Thom, she still submitted the report with the false information and attempted to use this same information to question Lt. Thom's actions.

In the Conduct Report, Officer Gephart claims that she talked to Inmate Green about his lock and told him to go back to his room and that when he entered his room, he sneezed out the word "bitch" towards her. She goes on to say that Officer Tolsma saw and heard this. Officer Tolsma's interview...does not support any of this and actually states that it was a "good" day on Unit 14 and that Inmate Green was not a problem. Officer Tolsma states that he was with Officer Gephart most of the day...[and] that he did not hear her talk to Inmate Green about the lock, hear her tell him to go to his room, or hear him call her a "bitch"....Officer Gephart did not verify any of the information in the conduct report with Officer Tolsma before she submitted it with him as a witness and in the process, submitted false information.

Exhibit C-6, p. 3.

On the following page, Waltz listed the following as the possible DOC work rule(s) violated:

#6-Falsifying records, knowingly giving false information, or knowingly permitting, encouraging or directing others to do so. Failure to provide truthful, accurate and complete information when required.

#7-Making false, inaccurate or malicious statements about employees.

On April 25, 2005, Waltz interviewed Gephart.6(6) Wetzel was present with Gephart as her union representative. Captain Karen Larsen was also present. Waltz's interview with Gephart included the following questions and answers:

3) Why did you submit the [incident] report even after she [Vree] told you that she was in the room?
A) I didn't feel that it conflicted with what I saw. He was in the room several minutes alone. I don't ever recall seeing a supervisor going into a room alone. Especially on a TLU.

4) Does a Supervisor have the discretion to go into a room on the unit to deal with a situation?
A) I don't know.

5) Are they (Supervisors) the ones who make the decision?
A) Generally speaking, even the bad ones. My opinion.

6) So Lt Thom had the right and the authority to go into the room by himself?
A) I have no idea. Supervisors operate on a different set of rules and I'm not familiar with what they are.

7) One thing that both Supervisors and line staff operate the same on, is to submit accurate reports. Correct?
A) Correct. That is why I won't put in a report something I didn't see.

8) You had first-hand knowledge that Officer Vree was in the room and submitted a report that didn't mention this. Why would you do that?
A) I didn't have first-hand knowledge. Ruth told me, but I didn't see her go in there. He was in a few minutes and I was concerned.
...
11) Officer Tolsma reports that the conduct report is not accurate. Comments?
A) I don't know what he is talking about. He was sitting right there when the inmate came and accused me of stealing his lock. I told him that we could get him a new one for $12. The inmate went back to his room and twice sneezed, "Bitch". I asked Tolsma if he saw that and we both laughed. I thought he saw it. I didn't intend on writing a conduct report, Lt Thom told me to.

12) Why would Officer Tolsma say it didn't happen?
A) I have no idea.

13) Maybe because it didn't happen?
A) It happened.

14) Did you ask Officer Tolsma if you could put him as a witness?
A) It never occurred to me to ask him because he was sitting right there.
...
16) Prior, you said that you wouldn't put anything in a report that you didn't see, but on this occasion you put Officer Tolsma as a witness to something without knowing if he saw it or not. Why?
A) Inmate was talking to both of us and Tolsma talked to him. I saw and heard Tolsma be a witness.

17) Did you ask Tolsma if he witnessed the same things as you?
A) When I asked Tolsma if he saw what he said, he just laughed, so I assumed that he saw what I did. He was in the same hearing range that I was....

A Pre-Disciplinary Meeting with Gephart was scheduled for April 27, 2005. Wetzel again appeared as Gephart's union representative. A Pre-Disciplinary Meeting is an opportunity for an individual to provide additional information that may mitigate any discipline that may occur. At this meeting, Wetzel presented Sergeant Hammer and Officers Teachout and Cullen as witnesses, and inquired as to why they had not been interviewed. The Pre-Disciplinary Meeting was therefore postponed until Hammer, Teachout and Cullen could be interviewed.

Waltz interviewed Hammer later during the morning on April 27. Hammer's interview included the following questions and answers:

3) What do you know about him [inmate Green]? Observe or told about? By who?
A) Kim came downstairs and told me that there were two guys (Green was one) who wanted off the unit....A half hour later I went upstairs....Another inmate was talking to Kim and Mike, not Inmate Green. I went to the dayroom where they were and told the inmate to go to his room and had Green come out. We talked about him strong arming the swampers.7(7) I sent him back to his room and had the other guy come back out. Had the same conversation about strong arming with him-Inmate Gilbertson (swamper)-but he wouldn't say Green was doing it. He then left and we were talking. Kim explained to me about Inmate Green sneezing and saying bitch. So I went downstairs and called Lt Thom. I told him that I would write a CR for strong arming, but didn't have proof. Thom said we could lock up for strong arming or investigation for it. Or write up for saying, "bitch", but it wasn't [seen] by me (Sgt Hammer). Thom then called Kim and said he was coming to place the inmate in TLU. I went back upstairs after they took Green to TLU. We were talking about the sneezing bitch thing and I swear that heard Mike (Officer Tolsma) say that he heard it. She (Kim) was then telling us how they did the TLU and I shook my head and said that wasn't the way to do it. She said Thom did it by himself....
...
5) Were you present for the incident involving Inmate Green that allegedly happened on 4-16-05 at 10:00AM?
A) No, I was not present for the sneezing incident. Kim only talked to me about Green and the sneezing stuff.

6) Were you present for the TLU?
A) No.

On April 28, 2005, Waltz interviewed Cullen and then Teachout. Cullen responded to initial questions acknowledging that he went to Unit 14 on April 16, 2005, for a TLU escort with Thom, and that he stayed at the gate by the desk with Teachout and Gephart. Cullen's interview included the following questions and answers:

7) Did you see Officer Ruth Vree?
A) No. I was listening and watching. Looking down the hallway. What is this all about? It all turned out OK. Lt. Thom isn't stupid, he had it under control. There was no yelling or problem. This inmate wasn't creating a problem, he was at ease. When [Thom] brought him out, the inmate was no problem. I'm sure that Brian had talked to him.

9) Were you aware that Officer Vree went into the room with him?
A) No, but I was more watching everything else. Lt Thom had it under control...
...
11) Were either yourself or Officer Teachout concerned that Lt Thom went into the room?
A) Neither of us talked about it. I wasn't concerned. Gephart did ask me later or the next day if I felt that it was strange that Thom went in by himself. I blew it off because it wasn't a big deal to me. It was strange that she came and talked to me about it.

Teachout responded to initial questions acknowledging that he went to Unit 14 on April 16, 2005, for a TLU escort with Thom and that Thom told him to stay at the gate. Teachout's interview then included the following questions and answers:

4) Did Lt Thom go to the room by himself?
A) I believe so. Gephart was at the desk writing a conduct report and would look down the hallway once in awhile.

5) Where did you stay? Who else with you?
A) Gate by the desk. There with Officer Terry Cullen, Officer Gephart and there was another officer on the unit. The other officer was milling around between the room and hallway.

6) Did you see anyone else?
A) I now recall the other officer being Ruth Vree. She was on the unit and milling around between the desk area and the room. In the hallway.

7) Do you think that it was unusual that Lt Thom went to the room by himself?
A) No, but maybe we should have gone with him. But we have gone to the Barracks for TLUs and the Supervisor brings the inmate out to us to be cuffed. Depends on the situation.

8) Were you aware that Officer Vree went into the room with him?
A) Just saw her milling around. Don't recall her going in the room.

9) Were either yourself or Officer Cullen concerned that Lt Thom went into the room?
A) No, I was not.

On May 12, 2005, Gephart's Pre-Disciplinary Meeting was convened with Gephart, Wetzel and Larsen present. Gephart presented a written statement titled "Disciplinary Hearing Response", but there were no other statements by Wetzel or Gephart. In her 3-page written response, Gephart pled not guilty to charges that the Conduct and Incident Reports submitted by her were false reports that were submitted with malicious intent and explained why she had submitted each of the reports. Gephart stated the following in the last two paragraphs of her response:

DOC policy regarding Incident Reports has always been to write exactly what you see and know to be true. That is what I have done. Reports or statements from different staff on any single event will be different. This is human nature, no two people have the same perspective. It is the job of the investigating officer to compile the information and reach a conclusion. My goal in writing the incident report was to save the institution and Lt. Thom from future problems. My personal opinion of any staff member does not affect the way I respond to a situation. Proper security demands caution and safety, we cannot afford to become complacent or disregard caution. This is true for line staff and supervisors. I have dedicated myself to the preservation of the security of the institution and the safety of the staff therefore I was justified and it was right to bring Lt. Thom's actions to the attention of his superiors in order to insure that proper security procedures were being followed. If I am guilty of the charges as stated then it is apparent that it is the intention of management that caution and security be ignored and that is what I will do forthwith.

I view this attempt [to] question my veracity as a continuation of the discrimination and harassment I have suffered at this institution since June of 2004.

On May 12, 2005, Waltz recommended that Gephart be disciplined.

On June 7, 2005, Warden Jess signed a written reprimand issued to Gephart. The written reprimand was issued for violating DOC work rule #6. The reprimand identified the conduct report Gephart submitted regarding inmate Green and the incident report Gephart submitted regarding the method Thom used to remove Green from the unit to place him in TLU. Specifically, with respect to inmate Green, the reprimand noted that according to Tolsma, he did not hear the inmate call Gephart a "bitch", that Gephart identified Tolsma as a witness in the conduct report and that Gephart did not verify any of the information concerning what he may or may not have witnessed, prior to submitting it; that due to the conflicting information in the report as compared with the information provided by a staff witness, the conduct report had to later be dismissed. With respect to Thom, the reprimand stated that prior to submitting the report, Gephart had her coworker review the report, at which time the coworker told Gephart she was present in the room and asked why Gephart was filing the report, and Gephart proceeded to submit the report and did not include this information in the report, making Gephart's report incomplete.

The ALJ made the following findings regarding Gephart's written reprimand:

80. The report submitted by Captain Waltz [April 20, 2005, Employee Disciplinary Investigation] was not in any way by Ms. Gephart's...having filed a complaint with the Equal Rights Division.
...
88. On June 7, 2005, Warden Cathy Jess gave Ms. Gephart a written reprimand for violating work rule #6...The letter giving Ms. Gephart a written reprimand mirrors Captain Waltz's report dated April 20, 2005, and makes no reference to other statements indicating Lt. Thom went into Inmate Green's room by himself and Sgt. Hammer's statement that supported Ms. Gephart on many points.

89. Warden Jess made the decision to support Lt. Thom and Captain Waltz's conclusions/claims that Ms. Gephart violated work rule #6 despite clear information to the contrary. Warden Jess did not consider Ms. Gephart's...having filed a complaint against DOC in making that decision.

The ALJ stated the following in his Memorandum Opinion:

There were no major incidents after Ms. Gephart was given the PP&DR until April, when Ms. Gephart decided to...file an Incident Report about Lt. Thom's conduct after Lt. Thom instructed her to write a Conduct Report. In all the evidence presented, no other Incident Report filed by an officer regarding the behavior of a superior is to be found. Ms. Gephart's decision to file the Incident Report is very odd, and strongly suggests that she had decided to move to Arizona by April 18, 2005. Ms. Gephart stated (in Complainant's Exhibit 6) that she wrote the Incident Report in part because of her active discrimination complaint. Allowing the complaint to affect her decision regarding whether to file an Incident Report certainly would not be protected under the WFEL, or proper under DCI rules. Moreover, there is no evidence that she filed Incident Reports regarding what would appear to be greater misbehavior of other coWorker's, like where she claimed Officer Vree told inmates twice to disregard her orders (Page 153, 2/26/07). Ms. Gephart, by choosing to ignore Officer Vree's comments, going through with her report despite Officer Vree's comments, not mentioning Officer Vree's comment in her report, and ending her statement during the investigation by saying: "it is apparent that it is the intention of management that caution and security be ignored and that is what I will do forthwith" demonstrated a serious lack of judgment and poor attitude.

It is not surprising that Ms. Gephart was disciplined, nor does Ms. Gephart's behavior seem to have given DCI any real choice. It appears that DCI chose to ignore testimony of witnesses that supported Ms. Gephart's story in order to secure that discipline, and that Officer Tolsma and Officer Vree chose to lie to protect their supervisors, but neither action was evidence of the alleged discipline. (Officer Vree and Tolsma appeared to both be more interested in self-preservation than in a strict concern for the truth.)

Ms. Gephart appears to argue that it somehow surprising or evidence of discrimination for her to be treated differently than Lt. Thom (which she was), one of her supervisors. Supervisors and subordinates are regularly treated differently by employers. That is no evidence of discrimination or retaliation. She had a significant role in creating and continuing her personal dispute with Lt. Thom. There were consequences to her as a result, fair or not. That does not mean the law was violated.

Gephart argues that the letter of reprimand issued to her for alleged falsification of DOC documents was clearly retaliatory. Gephart argues that the evidence overwhelmingly established that it was Lt. Thom--not she--who lied about inmate Green's TLU. Gephart asserts that although Vree testified that she was in the room with Thom, Teachout contradicted her testimony stating, "The only thing I can recall is she never went in the room." T. Day 8, p. 630 (Emphasis in original.)

Gephart argues that as for the "sneezing bitch", she absolutely had no reason to fabricate the comment and then write a conduct report about it; she only wrote the conduct report because Thom ordered her to, and that Thom admitted that he did order her to write it up. Gephart argues that it is thus absolutely incredible that DCI then accused Gephart of "knowingly falsifying" the report and disciplined her for it. Gephart argues that "the thin reed" on which DCI based this accusation was the statement of Tolsma that inmate Green was no trouble that day and that he never heard him say "bitch" or sneeze; however, Tolsma's statement was directly contradicted by Sergeant Hammer, who said, "We were talking about the sneezing bitch thing and I swear that I heard Mike (Tolsma) say that he heard it. T. Day 2, p. 117.

Gephart argues that the evidence also established that Thom's actions were unsafe and a breach of security practices. Gephart points out that Sergeant Hammer testified unequivocally that that "ain't the way it's supposed to be done." T. Day 2, p. 114. Gephart also points out that Teachout and Cullen testified that they were apprehensive about the lock-up; that they could not see into the room from where they were ordered to stand. T. Day 8, pp. 602-603; T. Day 7, pp. 286-287. Gephart further notes that even respondent's own witness, Vree, claimed that she purportedly entered the room because she thought it was unsafe for Thom to be in there alone with six or seven inmates. T. Day 7, pp. 442-443.

Gephart argues that the ALJ correctly found that both Vree and Tolsma had lied to "protect their supervisors" and that the DCI had ignored the testimony of witnesses favorable to Gephart in order to "secure" her discipline; however, rather than reasonably concluding that this was retaliation the ALJ bent over backwards to find a reason to rule for the respondent. Gephart argues that the ALJ reasoned that by choosing to ignore Vree's comments and ending her (Gephart's) statement during the investigation by saying, "it is apparent that it is the intention of management that caution and security be ignored and that is what I will do forthwith", Gephart purportedly demonstrated a serious lack of judgment and poor attitude and that "It is not surprising that Ms. Gephart was disciplined, nor does Ms. Gephart's behavior seem to have given DCI any real choice."

Gephart argues that this was misleading. It suggested that Gephart's statement was a factor in her discipline when it was not. Gephart argues that there was absolutely no evidence that this statement had anything to do with the DCI's decision to discipline her or to issue a letter of reprimand. Gephart argues that there was no reference to this statement in the letter of reprimand itself and there was no testimony about it at the hearing; in fact, there was no evidence that anyone in DCI management even read Gephart's Disciplinary Hearing Response or considered it in any way when they disciplined her. Gephart argues that it was thus plain error for the ALJ to uphold her discipline on this basis and to rule against her on her claim of retaliation. Gephart argues that under the logic of the McDonnell-Douglas paradigm she must be given a full and fair opportunity to demonstrate pretext; that she can hardly demonstrate that this particular justification for her discipline was a pretext if she did not know about it until after the ALJ issued his decision. Gephart argues that deciding her retaliation claim on a basis never previously disclosed to her, nor litigated by the parties at the hearing also violated her right to due process and fair play guaranteed by Wisconsin Statute Chapter 227, citing Bracegirdle v. State Dept. of Regulation and Licensing, 159 Wis. 2d 402, 464 N.W.2d 111 (Ct. App. 1990)(Fundamental fairness required that the board decide Bracegirdle's "guilt" or "innocence" of the charges against her, not charges based on the board's interpretation of Wis. Admin. Code sec. N. 7.04(4), announced for the first time in its decision). Gephart argues that the same reasoning applies here. In addition, Gephart argues that it is the role of the ALJ to assess whether a respondent honestly believes the reason it (emphasis in original) has advanced for a disciplinary action or whether it is a pretext for discrimination, it is not the role of the ALJ to supply post hoc a reason the respondent never thought to advance.

The commission agrees, to the extent that the ALJ decided Gephart's retaliation claim on a basis never previously disclosed to her, nor litigated by the parties at the hearing, that this was improper.

Gephart has established that she engaged in statutorily protected activity by filing a discrimination complaint against the respondent on December 2, 2004, and that she suffered an adverse employment action when she received a written reprimand on June 7, 2005. However, Gephart has failed to establish by a preponderance of the evidence that her discrimination complaint is what motivated DOC to issue her the written reprimand. The evidence fails to establish a causal connection between Gephart's filing of a complaint and the written reprimand. First of all, more than six months had elapsed between the time Gephart filed her complaint and the time she was issued the written reprimand. As the period of time separating the two events lengthens, the hint of causation weakens. Davidson v. Midelfort Clinic, 133 F.3d 499 (7th Cir. 1998)(no causal inference where employee was terminated five months after filing EEOC complaint even though complaint was still pending) citing McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796-97 (7th Cir. 1997). See also, Filipovich v. K & R Express Sys., Inc., 176 F.3d 390 (7th Cir. 1999)(four months negates causal connection). Furthermore, the fact that Gephart has not established that the intervening events of Thom's December 14, 2004 memo to Westfield and the January 2005 PPD constituted retaliatory actions against her further reduces any suspicion of a causal connection between Gephart's filing of a complaint and her receiving a written reprimand.

As noted above, however, other types of circumstantial evidence besides the timing of events are available to establish a causal connection under the direct method of proof including, ambiguous statements, discrimination against other employees, and other pieces of evidence none conclusive in itself but together composing a convincing mosaic of discrimination against the plaintiff.

Gephart called several female correctional officers as witnesses to testify in her behalf at the hearing in this matter. They included Shelly Miescke, Christine Hilt, Mary Sorenson and Julie Alt. Other than Alt, however, no other female who testified asserted that she had any problems with Lt. Thom or that she believed she had been discriminated against by the respondent. Alt asserted that she complained to management that Thom was treating her differently than he treated males, that she received write-ups unfairly, that she was continually getting written up by Lt. Thom and that Thom was one of the reasons why she left DCI in August 2005 and transferred to Oakhill, another correctional institution. Alt also asserted that Officer Lockwood (a male with whom Alt had previously been in a personal relationship) and Gephart were both late for work and should have been written up, but that Thom did not write either of them up because she believed that Thom did not want to write up Lockwood. Further, Alt asserted that Sergeant Nehmer called her a "fucking cunt", that she reported this to Thom but Nehmer was not disciplined. The record does not support Alt's assertions.

The only incident Alt identified being written up for by Thom, however, involved an incident when Alt woke up late for work, called in and spoke to Thom, who told her he would connect her to the person she was to relieve so they could do an "instant trade" so Alt wouldn't be late, but then when she got to work Thom told her they were not accepting the trade. Further, Alt admitted that trades have to be done by 6, and that Captain DeHaan had told Thom that the trade occurred after 6, so it could not be done. Further, Alt did not know for a fact that Lockwood had not gotten written for being late. However, even assuming that neither Lockwood nor Gephart had been written up, Alt's belief as to why Lockwood was not written up is mere speculation. In addition, Alt admits that when she reported what Nehmer had allegedly called her, Thom told her an investigation had to be done and that afterwards when she and Nehmer were called into the office Thom said that he couldn't prove anything, that they should get along and that Thom had possibly talked to them about professionalism.

Furthermore, Marquardt, DCI's H.R. Director, testified that Alt had complained to her about several different supervisors including Captain Larsen, that she (Marquardt) reviews all disciplinary reports before employees are disciplined, that all of Alt's issues were attendance- or use of sick leave-related, that Marquardt herself issued Alt one write-up, that Waltz issued one, that DeHaan issued one and that Thom issued two. In addition, Captain Larsen, who had supervised Alt at times, testified that Alt had mood swings and had conflicts with numerous supervisors and other officers.

Moreover, Alt admitted that she currently has a discrimination complaint against DOC arising from matters at Oakhill Correctional Institution and that she has gotten write-ups since she's been at Oakhill.

Also, as noted above, Gephart claims that she was issued the letter of reprimand for alleged falsification of DOC documents; that DCI accused her of "knowingly falsifying" the Conduct Report about inmate Green "sneezing bitch" and that with respect to the Incident Report the evidence overwhelmingly established that it was Lt. Thom, not she who lied about Green's TLU. However, it is not true that DOC issued Gephart a written reprimand for falsifying information and lying. Specifically, with respect to the Conduct Report, after noting what had occurred according to Gephart and what occurred according to Tolsma, the reprimand stated as follows: "You identified Tolsma as a witness in the conduct report, and did not verify any of the information concerning what he may or may not have witnessed, prior to submitting it. This conduct report was used as the basis for inmate Green to be placed in temporary lock-up (TLU). Due to the conflicting information in the report as compared with the information provided by a staff witness, the conduct report had to later be dismissed." (Emphasis added.) With respect to the Incident Report, after noting what Gephart stated in the report, the reprimand stated as follows: "Prior to submitting the report, you had your coworker review your report, at which time she told you that she was present in the room with Lt. Thom and asked why you were filing this report. You proceeded to submit the report, after having been given this information, and did not include the information in your report, making it incomplete." See Exhibit C-6, p. 1 (Emphasis added.)

While it true that Gephart's reprimand indicates that it was for failure to verify what an identified witness had witnessed prior to submitting her Conduct Report and submitting an incomplete Incident Report, and not for falsifying information and lying, the commission acknowledges that the respondent's stated reason for the reprimand is not entirely without suspicion. Indeed, the ALJ found that Warden Cathy Jess made the decision to support Lt. Thom and Captain Waltz's conclusions/claims that Gephart violated work rule #6 despite clear information to the contrary, and in his memorandum opinion stated that it was his opinion that it appeared the respondent chose to ignore testimony of witnesses that supported Gephart's story in order to secure her discipline and that Tolsma and Vree chose to lie to protect their supervisor. However, this does not provide sufficient enough reason to conclude that the real reason for the written reprimand was Gephart's filing of a discrimination complaint. It is not adequate for a complainant to present evidence which simply raises the suggestion or possibility that a prohibited motivation was at work. A complainant bears the burden of demonstrating by a preponderance of the evidence that the respondent's actions were based upon prohibited factors." Connor v. Heckel's, Inc. (LIRC, 03/31/05).

Gephart has not shown by a preponderance of the evidence that her complaint of discrimination was a motivating factor in the respondent's decision to issue her the written reprimand. First of all, the focus of the reprimand was Gephart's report writing. The evidence shows, as correctly noted by the ALJ, that after Gephart's return to Unit 14 on December 14, 2004, that with respect to report writing Gephart functioned in ways that she knew, or should have known, were contrary to the interests of DCI including writing Incident Reports for inmate conduct when she should have written Conduct Reports and putting in Conduct Reports, which she knew would be given to inmates, that she was ordered to write the report. These issues were discussed with Gephart during the course of her employment at DCI and litigated by the parties at the hearing. In this respect, given Gephart's unsatisfactory performance with respect to report writing, it is not surprising that Gephart was issued the written reprimand. Second, the fact that Tolsma and Vree lied to protect Lt. Thom provides no reason to believe that a retaliatory motive is what prompted the issuance of the reprimand. Third, Gephart has not shown that she was treated less favorably than a similarly situated employee who did not engage in statutorily protected activity. Fourth, there is no evidence which suggests that Captain Waltz had a retaliatory motive in recommending that Gephart be disciplined, or that Warden Jess, a female and the individual that ultimately decided to issue the reprimand, had a retaliatory motive in issuing her the reprimand.

For all of the above-stated reasons, Gephart has failed to establish by a preponderance of the evidence, under either the direct or indirect method of proof, that it was her complaint of discrimination that motivated the respondent's decision to issue her the written reprimand.
 

Constructive discharge

Gephart claims that she was constructively discharged because after her return to Unit 14 on December 14, 2004, the respondent willfully ignored her reports of inmate threats and hostility leaving her no choice but to resign from her employment as a correctional officer.

To find a constructive discharge it must be established that, due to a discriminatory reason, the employee's working conditions are rendered so difficult or unpleasant that a reasonable person would feel compelled to resign. Cole v. Northland College (LIRC, 03/19/01); Sarazin v. W & G Transport (LIRC, 03/09/99); Waedekin v. Marquette University (LIRC, 03/05/91), citing Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61 (5th Cir. 1980); Jorgenson v. Ferrellgas, Inc. (LIRC, 01/10/92).

Further, the question of whether certain conduct was severe enough to warrant a finding of constructive discharge is reached only when there is a finding that the conduct caused the quitting; persons alleging constructive discharge must show that the action by the employer caused their departure. Hager v. Gunderson Lutheran (LIRC, 03/10/98); Riley v. American Family Mutual Ins. (LIRC, 03/30/92).

The evidence fails to support Gephart's claim that she was constructively discharged.

Gephart testified that after she returned to Unit 14 inmates made comments that they knew how to get rid of her-they would write complaints and that all they had to do was to talk to the white shirts (T. Day 4, p. 68)-and that on December 29, 2004, she found a piece of paper in an inmate's room which disturbed her because it had the words "investigation, internal enforcement" and Lt. Thom's name on it. Id. Gephart testified that on February 1, 2005, an inmate threatened her and told her he knew how to take care of me--all he had to do was inform supervisors. T. Day 4, p. 70. Gephart alleges that although it was not unusual for inmates to be disruptive or make statements like "Fuck you, bitch", there was a change in the tone and frequency of such statements after she returned to Unit 14. T. Day 5, pp. 131-132.

However, numerous witnesses testified that the inmate behavior complained of by Gephart was typical inmate behavior. For example, Officer Teachout testified that numerous times he's heard, "I'm going to file an inmate complaint against you" when an inmate was upset with him; that it's fairly common for inmates to say, "I'm going to tell a white shirt on you." T. Day 8, p. 596. Officer DeVries testified that inmates "often do say I'm going to write an inmate complaint about you." Id. at 639. Sergeant Kuehn testified that "all the time if inmates are unhappy with you they will say, 'I'm going to file an inmate complaint against you"; that it's common for them to say, "I'm going to talk to a white shirt about you' " and that if a conduct report on an inmate gets dismissed "They'll rub it right in your face saying, 'See, you can't do anything to me'. It happens all the time." T. Day 9, pp. 731-732; 736. Captain Larsen testified that "it's common for an inmate to gloat over getting a conduct report dismissed." Id. at 878. Security Director Westfield testified that inmates will frequently say to a staff person, "I'm going to write an inmate complaint on you", that "Inmates frequently will make threats to try and intimidate staff into either taking a certain action or not taking an action. That's criminal behavior, thinking." Id. at 941. Warden Jess testified that "some inmates may go back and rub it in an officer's face if the inmate gets a conduct report dismissed." T. Day 10, p. 1057.

Also, Gephart admits that the piece of paper that said "Lieutenant Thom" and "internal investigation" did not mention her name. T. Day 5, p. 155-156.

Gephart testified that on January 6, 2005, inmate Lanier cornered her after she had removed some contraband from his room and was moving his hands up and down striking her knuckles with his fingernails and saying, "I want a white shirt and the white shirts will talk to me." Gephart alleges that the inmate was only given a minor discipline and placed on a unit across the hallway from Unit 14. Gephart testified subsequently when she was on Unit 13, this inmate said, "There she is. That's the one I was telling you about. I guess I showed you. I told you they'd listen". Id. at 68-69. Gephart testified that she feared for her safety; that she spoke to Westfield about concern for her safety in her November 2004 meeting with him and on December 14, 2004, with Thom and Pearce when she was returned to Unit 14.

Westfield reviewed the Conduct Report on inmate Lanier written by Gephart. Exhibit C-25, p. 10. Westfield testified that there were initially four charges but he struck the "Battery" charge because it did not meet the definition of battery as listed in the Administrative Code (i.e., intentionally cause bodily harm); that there was nothing in the Conduct Report that caused him to believe a battery had occurred. T. Day 9, pp. 930-931. Westfield testified that a hearing was held and that Lanier was found guilty of disruptive conduct, but not guilt of disobeying orders and threats. Id. at 932. Gephart admitted that inmate Lanier was TLUed for one day, given 10 days of room confinement and placed on a different unit from Gephart that was separated by a door. T. Day 5, p. 131. Pearce testified that he and Ann Krueger were the hearing officers for Gephart's Conduct Report on Lanier, that he imposed the discipline in that case and that the discipline imposed was consistent with what he imposed in other situations. T. Day 9, pp. 835-839.

Further, Westfield testified that he had discussions with the security supervisors and agreed that it would be safe to return Gephart to Unit 14. T. Day 10, p. 980. Pearce testified that Westfield asked his opinion about Gephart going back to Unit 14. T. Day 9, p. 822. Pearce testified that he told Westfield that most, if not all, of the inmates that had been on that unit, should probably be off the unit; that he (Pearce) was pretty confident there weren't many, if any, of the inmates left from the November incident still housed on the unit; that there is a high turnover rate in that unit. T. Day 9, p. 822.

Gephart testified that "In January after it became clear to her that the respondent wasn't going to address the problems that [she] had discussed with them", she saw her family doctor and was referred to Dr. Scannell. T. Day 5, pp. 107-108. Dr. Scannell is a psychotherapist with over 40 years experience. Dr. Scannell used to be a priest and from around 1969 to 1972 he worked as a chaplain in Milwaukee city jails. Gephart testified that she couldn't quit crying, that she was crying all the time.

Dr. Scannell's notes show that his first therapy session with Gephart was January 6, 2005. Dr. Scannell testified that Gephart "had identified [that] the presenting problem actually began when she was walked off -- officially walked off the unit by a lieutenant, and she mentioned that the inmates were cheering and was hollering and yelling, and she was humiliated, publically embarrassed during that time." T. Day 4, p. 11. Dr. Scannell's notes state that the presenting problem was "being publicly humiliated in front of other staff & inmates by being publicly 'walked off' under guard for alleged misconduct." Exhibit C-29. Dr. Scannell testified that in his very first notes of when Gephart came to see him, his diagnosis was that Gephart was expressing what's called "an adjustment disorder with mixed emotional features, anxiety and depression or stress (inaudible), emotions that were very strong." T. Day 4, p. 10.

However, while Dr. Scannell testified that he diagnosed Gephart as expressing an adjustment disorder with mixed emotional feature, Dr. Scannell also identified the presenting problem as being "publicly 'walked' off under guard for alleged misconduct"; admitted that he did not know who physically walked Gephart off the unit; testified that Gephart never said anything about being removed from the unit because of threats against her from the inmates; and that he believed that Gephart "was walked off the unit for just punishment (inaudible) walked off the unit publically." T. Day 4, pp. 11; 54-55; Exhibit C-29. The evidence shows, however, that Officer Teachout, a unit representative, escorted Gephart off Unit 14 to the security room to meet with Lt. Thom and Captain Pearce, and that the reason for Gephart's removal was because of concerns for her safety (because of information that the inmates were planning some kind of refusal to follow the unit rules) and about her interaction with inmates.

Gephart testified that about five days before receiving her January 2005 PPD she wrote a letter to Warden Jess expressing concerns for her safety and others. T. Day 5, p. 128. Gephart testified that she dropped the letter off with Jess' assistant. Id. at 135. However, Warden Jess testified that she did not recall receiving a letter from Gephart regarding her employment at DCI. T. Day 10, pp. 1038-1039. Jess testified that inmates have said they had written to her which she had not received, but not staff. Id. at 1041. Gephart did not have (or make) a copy of the letter. T. Day 5, p. 128.

Gephart testified that in March 2005 she found that she was actually being left alone on Unit 14 quite often, a unit where there's supposed to be two officers, which concerned her. Id. at 101-102. Gephart testified that one day Floyd DeVries said he was going to get coffee and left the unit for about an hour. Id. at 102. Gephart testified that she was down on Unit 13 talking to a sergeant and Officer Mark Henning walked by and said, "You better get back up to your unit. Down here you just got a target on your back." Id. at 100. Gephart testified that Sergeant Mitchell Rohr was always making comments that Thom "was out to get her" when Thom would stop to read the paper, and that one morning Rohr said the officers were "taking up a pool about which day it would be that I get beaten up by an inmate." Id. at 100-101.

However, Captain Larsen, who did the majority of the scheduling for Unit 14, testified that the number of officers on Unit 14 were "one or two depending on...what's going on...sometimes if there is training there might be just one officer." T. Day 9, p. 887. DeVries testified that leaving the unit for an hour is not something that he would do unless he was relieved by somebody and that he would tell them if he would be gone for an hour. T. Day 8, p. 633. DeVries testified that he did not ever recall leaving the unit unless he was relieved. Id. Mark Henning testified that he made the comment that Gephart better get back upstairs, you have a target on your back, but that he was just kidding with Gephart. Id. at 557-558. Rohr, who was a roving patrol officer during 2004-2005, denied ever observing Thom stopping by to read the newspaper, denied ever making a comment that Thom was out to get her and stated that he never once heard Thom make a single reference regarding an update about what was going on with Gephart. T. Day 7, p. 295.

Gephart testified that Pearce and other supervisors and officers that she had worked with for a long time tended to avoid her in the hallway; that when Pearce passed her in the hallway, if there was anyone near her in the hallway, Pearce would deliberately look at them, say good morning, how are you and walk right past her. T. Day 5, p. 193; Day 6, p. 203. Gephart testified that the other supervisors just didn't say anything to her. T. Day 6, p. 203. However, Pearce testified that he and Gephart didn't talk a lot. It was really professional, job-related. T. Day 9, p. 830. Larsen testified that her relationship with Gephart was friendly, that she thought they liked each other and that they did a few things socially outside the office. Id. at 865. Westfield testified that he had no day-to-day interaction with Gephart, that his interaction with Gephart was the same as he would have with any other officer for the most part. T. Day 10, p. 984. Thom testified that after July 2004 he had a discussion with Westfield about how to handle the situation and was told to be professional, that he didn't ignore Gephart and didn't avoid her, he dealt with her strictly on a need-to-be basis. T. Day 10, pp. 1002-1003. (DeHaan was not called as a witness.) The other witnesses, sergeants and officers, also all denied shunning Gephart. Also, Gephart admitted that Thom, Larsen and DeHaan did not come up to Unit 14 very often or for very long and that Pearce never came up to Unit 14. T. Day 5, pp. 189-192.

Gephart submitted a letter of resignation to the respondent dated July 19, 2005. Exhibit C-26. In September 2005 Gephart started working as a correctional officer for the Arizona Department of Corrections. Gephart first applied for a position there in January 2005 and had an interview with the Arizona DOC in February 2005. Gephart testified that she was told she could "start in March" but said that she could not "leave and be there in three days." T. Day 5, p. 111. Gephart placed her home in Wisconsin on the market for sale for one week in March 2005, withdrew it, and then placed it on the market again in May 2005.

Gephart's husband retired from his position at the Kettle Moraine Correctional Institution in May or June 2005. Gephart testified that prior to the events she testified about in this matter, including being "walked off the unit on November 19, 2004," she had had no plans to move to Arizona. T. Day 5, pp. 105-106. Gephart testified that at the very least she wanted to stay in Wisconsin working at DCI at leas until her son graduated from high school; that had it not been for what she claims to a hostile work environment and retaliation, she would have continued working at DCI at least another eight years (when her house was paid off). Id. at 106-107. Gephart's son was age 14.

However, Officer Pflueger, who worked with Gephart when Gephart worked as a Utility Officer, testified that in conversations with Gephart before Gephart signed for a permanent job (i.e., late 2003), that during these conversations Gephart indicated that she was looking to move to Arizona when Gephart's son could decide whether he wanted to live with mom or dad [Gephart's ex-husband] and Gephart's current husband retired. T. Day 8, p. 541-542.

Finally, the record includes the following evidence: Gephart never tried to obtain a transfer to a different shift, different unit or different institution. T. Day 5, pp. 139-140; 142. Gephart lived in Fond du Lac when she worked at DCI and the following correctional institutions were within that area: Kettle Moraine; Taycheedah; Oshkosh; Waupun and John Berg Center. Id. at 139. Gephart testified that she never applied for positions at any of these other institutions because what happened at DCI would follow her. Id. at 140. Gephart testified that you have to have seniority to get posts at other institutions and that she did not recall any posts being available. Id. at 140-141. On direct examination Gephart testified that at a mediation session with DOC on January 4, 2005, they made it clear that DOC would not assist with a change in shift or institution. T. Day 6, p. 239. Gephart also testified that she never applied for a long-term family or medical leave because she was concerned about having mental comp leave on her record. T. Day 5, p. 109-110.

However, the record also includes the following evidence: Officer Teachout, Gephart's union representative, testified that he suggested to Gephart during their first meeting (November 2004) with Thom and Pearce that she go to a different shift, different institution, but Gephart never got back to him one way or another. T. Day 8, pp. 586-587. On cross-examination, Gephart admitted that at the January 4, 2005 mediation session she may have said that she was not interested in working at any other institution, other shift or any other supervisor because she was very upset. T. Day 6, p. 241. DCI's Human Resources Director, Rene Marquardt acknowledged that union contracts have to be followed but testified that if an individual really wanted to work somewhere else she helped them by calling other institutions to find out if they have openings. T. Day 10, p. 1139. Marquardt also testified that a person taking a medical stress leave would not signify them as being unable to get promotions or to keep their job. Id. at pp. 1113-1114.

 

cc:
Attorney Mary E. Kennelly
Attorney Deborah Rychlowski


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Footnotes:

(1)( Back ) Gephart's complaint in ERD Case No. CR200404656 was directed at Lt. Thom and included allegations that: Around the end of January 2004, Gephart requested that Thom stop making offensive comments about Lieutenant L. Pobanz and Captain Karen Larsen; when Pobanz, a lesbian, had forgotten to relay a third shift sick call to Thom, Thom commented, "I am not surprised, she [Pobanz] is too busy visiting on units looking for a girlfriend"; when Thom was working with Captain Larsen, on many occasions Thom commented to Gephart, "I am working alone again, what do you expect when you work with a woman. I guess I shouldn't say that to you since you are one of her girls"; on June 10, 2004, Thom began questioning male officers about any temporary lock ups [TLUs] she requested, however, Thom never questioned her concerning any TLU requested by a male officer; and that after being required to search for cigarettes that two male officers lost or had stolen Thom removed her from her position because the inmates had filed complaints against her whereas the male officers that lost the cigarettes and never even reported their lost were not even verbally reprimanded, much less removed from their posts.

(2)( Back ) Roehl was Gephart's surname prior to her marriage in 2001 to Dennis Gephart.

(3)( Back ) Inmates can be placed in TLU for disciplinary and other reasons.

(4)( Back ) See e.g., Smart v. Ball State Univ., 89 F.3d 437 (7th Cir. 1996) (Under Title VII, "[W]hile adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that an 'irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.' ")

(5)( Back ) There is no such thing as an "accelerated" PPD. There are concentrated PPDs. A concentrated PPD is like putting a permanent employee on probation. T. Day 10, p. 1114. Concentrated PPDs require the approval of the Secretary's office and before an employee can be placed on a concentrated PPD there has to be documented demonstrated attempts to correct the employee's behavior. Id. at 1115.

(6)( Back ) Waltz testified that there were two ways to proceed in making his report: write the report and present it to the individual, or, hold the interviews make and make the report based on the interviews and then show it to the individual. T. Day 9, pp. 706; 714.

(7)( Back ) A "swamper" is an inmate who has a job cleaning the units. Swampers receive extra privileges.

 


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