STEPHEN J GUNTY, Complainant
CITY OF WAUKESHA, Respondent
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. The first sentence in paragraph 3 of the FINDINGS OF FACT is deleted and the following sentence is substituted therefor:
"Gunty worked for the City of Waukesha from July 2001 through December 31, 2003."
2. Paragraph 19 of the FINDINGS OF FACT is deleted and the following is substituted therefor:
"On the evening of May 6, 2003, Council President Hoelkinger announced that he wanted to create a committee known as the Organizational Structure Review Committee (OSRC) for the purpose of flattening the organization and reducing the pension fund by eliminating staff."
3. The following is inserted as paragraph 20a: "On May 20, 2003, the Common Council voted to create an Organizational Structure Review Committee to evaluate the various departments within the City and to make recommendations for the elimination of certain positions and/or services to help reduce the City's budget and tax levy."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed March 31, 2010
guntyst . rmd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
This case involves a claim by Stephen Gunty that the respondent terminated his employment in retaliation for filing a wage claim against the respondent. The respondent's City Administrator, James Payne, verbally promised to pay Gunty for moving expenses which exceeded the City's moving expense policy. Relying on Payne's promise, Gunty paid for these additional expenses himself and then sought reimbursement from the City. However, the Common Council denied Gunty's reimbursement request, and subsequently the filing of the wage claim.
After an earlier review of this case, which came to the commission following the ALJ's dismissal of Gunty's complaint at the close of Gunty's case, the commission concluded that Gunty had presented sufficient competent evidence to establish a prima facie case of retaliatory discharge and therefore set aside the ALJ's decision and remanded the matter to the ALJ for further proceedings and a new decision.
Gunty now petitions for a review of the decision issued by the ALJ dismissing his complaint following the further proceedings. On appeal, Gunty argues that the commission should reverse the ALJ's decision and find that the respondent violated Wis. Stat. § 109.03 "when it fired him in retaliation for his filing of a wage complaint against the City with the Equal Rights Division."
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.
The above formulation about how an individual goes about proving retaliation under the indirect method represents a new rule in the Seventh Circuit. Rogers, citing Stone v. City of Indianapolis Public Utilities Division, et al., 281 F.3d 640 (7th Cir. 2002). In Stone, the court stated that the cases which adopted the McDonnell Douglas burden-shifting method which says that a plaintiff can establish a prima facie case of retaliation by showing that he or she engaged in protected expression, suffered an adverse employment action and causal connection between the protected expression and adverse action and that the defendant can defeat the plaintiff's prima facie case by producing evidence that the motive for the adverse employment action was not retaliatory unless the plaintiff can come back and show that the alleged nonretaliatory motive was actually pretextual "is McDonnell Douglas-speak, all right, but is out of place." 281 F.3d 642-643.
Explaining why, the court stated "If the plaintiff has produced evidence that he was fired because of his protected expression, he has gone beyond McDonnell Douglas by producing actual evidence of unlawful conduct -- evidence that the firing was in fact retaliation for his complaining about discrimination. ...McDonnell Douglas is designed to give the plaintiff a boost when he has no actual evidence of discrimination (or retaliation) but just some suspicious circumstances. If he can prove that his protected expression caused him to be fired, he doesn't need McDonnell Douglas and it gives him nothing. Id. at 643.
Gunty argues that he has established his case both by way of the direct and the indirect methods of proof.
Gunty argues that he has proved direct evidence of retaliatory discharge by establishing that Alderperson Ralph Lapp, accompanied by Council President Joe Hoelkinger, proclaimed that if Gunty were to file a wage claim against the City "we'll fire the motherfucker"; that within weeks of Gunty's filing of a wage claim, in a move that was a surprise to Mayor Carol Lombardi, City Administrator James Payne and others, Hoelkinger formed a committee with unprecedented powers (the OSRC), to which he appointed Lapp, which committee recommended elimination of Gunty's position only months later, and that the OSRC's recommendation influenced Payne's decision, who had been instructed to await the OSRC's final recommendations before submitting his FY 2004 budget proposal.
As noted in the paragraph above, Gunty's argument that he has established direct evidence of discrimination rests in part on the statement "we'll fire the motherfucker if he files that claim" attributed to Alderperson Lapp. Assistant City Attorney Vincent Moschella told Gunty that he overheard this statement made by an alderperson in a conversation between the City Attorney and the alderperson. Whether or not the attorney-client privilege attached to this statement was a subject of dispute between the parties during the commission's previous review of this case. In its prior decision, the commission noted that for the attorney-client privilege to apply a party had to satisfy the following three-part test: First, the communication must be between a client and his attorney; second, the communication must be confidential in nature; and third, the communication must be made for the purpose of facilitating legal services. The commission concluded that the respondent had failed to establish the third criterion because Moschella did not purport to have any personal knowledge regarding Lapp's purpose in making this threat, and because the statement itself was nothing more than a City official's stated intent that the Common Council would engage in a future unlawful act if Gunty were to file a wage claim.
The respondent argues that when this matter was initially before the commission there was insufficient evidence in the record to establish that the conversation involving Lapp and Hoelkinger in the City Attorney's office was protected by the attorney-client privilege because the ALJ had found the conversation to be privileged, and the identity of the alderperson who made the statement had not been disclosed. The respondent argues that after the commission remanded this matter for further proceedings the identity of the alderperson who stood accused of making the statement was revealed, and that to support the existence of the privilege, it submitted affidavits from Lapp and Hoelkinger, and hearing testimony by Lapp, concerning their motivations in having the conversation with City Attorney Curt Meitz and Assistant City Attorney Moschella. The respondent argues that this evidence establishes that the purpose of the conversation was to solicit legal advice, and that such legal advice was received.
In short, the respondent contends that the commission should revisit its previous ruling on the attorney-client issue.
Gunty appears to present a valid reason as to why the commission should not revisit this issue, however. Namely, that the respondent has at all material times known the identity of the two alderpersons and, consequently, had the ability during the initial hearing in this case to place before the ALJ any and all relevant testimony those two witnesses could have offered. Gunty notes that in April 2005, after facing a litany of objections during an attempt to depose Moschella, he filed a motion to compel with the ALJ seeking an order overruling the privilege objections. Gunty notes that in his supporting brief, he explained that although Moschella had revealed to him a threat uttered by an alderperson, Moschella had not disclosed the identity of the alderperson. However, the respondent opposed that motion, and filed an affidavit by Moschella in which he testified regarding "a statement from an alderperson to the effect that 'we'll fire him if he files a claim' ", but the respondent did not file any affidavit from either Lapp or Hoelkinger, or at any other juncture, advise Gunty or the ALJ that they were the alderpersons in question. Gunty argues that as a result, when he filed his original petition for commission review, neither he nor the Commission knew who had made the threat or the circumstances in which it was made.
Regardless of whether or not the commission should revisit the attorney-client privilege issue, however, the commission concludes that Gunty's claim that he has proved direct evidence of retaliatory discharge fails. There are several reasons. First, even assuming for the sake of argument that Lapp made the threatening statement regarding Gunty's employment and that it could be considered by the commission, a threatening statement made by one alderperson is not evidence that the entire Common Council harbored a retaliatory animus against Gunty. Furthermore, there is absolutely no evidence in the record that Lapp influenced any other alderperson's decision regarding the elimination of Gunty's position, or that any other alderperson was motivated by Gunty's wage claim in their vote on the budget for the 2004 fiscal year.
Second, with respect to the timing of the creation of the OSRC, Hoelkinger explained at the further hearing held in this matter that the following is what prompted his reason for creating the OSRC: That on the respondent's last five budgets he (Hoelkinger) had voted "no"; that he wondered what he was seeing that the other council members were not seeing and what could he do to open up their eyes since he felt the amount of money they were spending is too much; that he was one of the more senior members of the council and understood that the largest part of the budget was compensation paid to employees; that he had sat on the Government Services Review Committee, (1) which had only looked at services and not positions; and that after looking at Wis. Stat. § 62.11(5), regarding the powers of the Common Council, he decided to go forward with looking at the City's staffing.
Third, while Gunty argues that the creation of the OSRC was a move that was a surprise to the Mayor and Payne, Mayor Lombardi testified that the reason for her surprise was because there was no communication beforehand about the creation of this committee, and that in her opinion, the Common Council did not have the authority "to do micro managing". Payne testified similarly, stating that he felt that the creation of the committee crossed boundaries in the sense that it infringed on historically what had been his role of making staffing recommendations and that he felt that that was his responsibility in conjunction with the Mayor.
Fourth, while Gunty points to Hoelkinger's appointment of Lapp to the committee as having significance, the evidence shows that individuals appointed to the ORSC were various Committee Chairs, including Alderperson DuPont (Finance), Alderperson Lapp (Ordinance and Licensing), Alderperson Becker (Buildings and Grounds), Alderperson Eccleston (Library Board), Alderperson Johnson (Park and Recreation), as well as a government employee, Alderperson Waldenberger.
Fifth, while Gunty argues that the OSRC recommended elimination of his position "only months" after the committee's creation, it was actually nearly five months later on October 1, 2003. Further, the evidence shows that Hoelkinger painstakingly went through each City department to create up-to-date organizational charts, which included not only the job title of the positions but also the names of the individuals holding those positions and the amount of pay and benefits attributable to each position, to provide to the committee members, and that the committee reviewed all of the City's departments for possible personnel cuts over the course of six committee meetings, the first of which was held on June 26, 2003, and the last of which was held on October 1, 2003. In addition, the evidence shows that the OSRC's October 1 recommendation for reduction of staffing included two tiers. In the first tier, the committee recommended that both Gunty's position and that of the Director of Information Technology's positions be eliminated. In the second tier, the committee recommended that nine other vacant positions be considered for elimination.
Sixth, while Payne agreed that the OSRC's recommendation "influenced his decision" to recommend the elimination of Gunty's position, this also fails to provide evidence of retaliation. Payne testified that he had considered eliminating Gunty's position as of September 19, 2003. It was on that date, due to a discovery that the amount of assessed value available for taxation was incorrect, that in addition to those reductions already done and proposed to that point, that there was a need for Payne to request department heads for an additional $750,000 further reduction in services/programs. Payne testified that he was quite certain that he had made up his mind to eliminate Gunty's position before October 1, 2003, although it had not been formalized. Further, Payne testified that he considered the October 1 recommendations from the OSRC in that the committee "had indicated their desire to make that cut was ... if nothing else, it was a way of saying to me, you know my recommendation is going to be approved."
Finally, while Gunty argues that Payne had been instructed to await the OSRC's final recommendations before submitting his FY 2004 budget proposal, this likewise does not provide evidence that Gunty was discharged in retaliation for filing a wage claim, since the reason for the creation of the OSRC in the first place was that it was believed that the Common Council also had the authority to determine City staffing.
With respect to the indirect method of proving retaliation, although Gunty cites a number of Seventh Circuit cases, including Rogers, supra, Gunty sets forth the formulation for proving retaliation that Rogers (and Stone, supra) have noted the Seventh Circuit no longer follows. Gunty argues that he has established a prima facie case of retaliation by showing that: 1) he engaged in statutory protected expression; 2) he suffered an adverse employment action; 3) there is a causal connection between the protected expression and the adverse action; and, further, that he has shown by a preponderance of the evidence that the respondent's articulated reasons for eliminating his position are no more than a pretext for retaliation.
In any case, analyzing Gunty's claim under the pre-Stone methodology also shows that Gunty has failed to prove by a preponderance of the evidence that the respondent eliminated his position in retaliation for his filing of a wage claim against the respondent.
Gunty cites a chain of numerous events as inferentially and circumstantially demonstrating a causal connection between his protected activity and the adverse employment action.
For instance, Gunty argues that he was hired into the Human Resources Director position in July 2001 from a field of 30 candidates. While this is true, it does nothing to establish a causal connection to the elimination of his position two and one-half years later.
Gunty argues that he received positive feedback in the Human Resources Director position and was promoted into the newly created position of Director of Administrative Services. However, from the time that Payne hired Gunty, Payne anticipated that Gunty's role would change. Payne had actually wanted Gunty to become an Assistant City Administrator. However, because Payne did not have the Common Council's support for the creation of the Assistant City Administrator position, Payne created the Director of Administrative Services position.
Gunty argues that he performed well in the Director of Administrative Services position and received a performance-based bonus for 2002. However, the respondent has never claimed that Gunty's position was eliminated because of deficiencies in his performance.
Gunty argues that at the December 2002 Common Council meeting, Council President Joe Hoelkinger spoke against his reimbursement request stating that he "already got paid more than enough." (Emphasis in original.) However, Hoelkinger believed that Gunty got paid more than enough because the respondent had paid its police chief about $6,700 for his move to Waukesha from near the North Dakota border, whereas Gunty had been paid (already) around $10,000 for a move from Sparta, Wisconsin to Waukesha. As further reasons for his belief, Hoelkinger testified that the respondent had a moving expense policy, which it had not violated, and that the Common Council was the guardian of taxpayers' money.
Gunty argues that in January 2003 Assistant City Attorney Moschella overheard Alderperson Lapp state words to the effect, "We'll fire that motherfucker if he files a wage claim" and that at the remand hearing Hoelkinger stated that Lapp was "very irate" and referred to Gunty as an "SOB". However, Gunty's argument regarding the threatening words attributed to Lapp and that Lapp was angry over his pursuit of the wage claim fails for the reasons already stated above under the analysis of the direct method of proving retaliation. Namely, that a threatening statement made by one alderman is not evidence that the entire Common Council harbored a retaliatory animus against Gunty, and because there is no evidence that Lapp had influenced any other alderman's decision regarding the elimination of Gunty's position.
Gunty argues that prior to his filing of a wage claim in April 2003, there had never been any suggestion that his position was at risk, but less than three weeks later, on May 6, 2003, Hoelkinger formed the OSRC for the purpose of "flattening the organization" with Lapp named as one of the committee members. The matter of the timing of the creation of the OSRC and the appointments to that committee also fails for the reasons already stated above as the second reason Gunty's claim fails under the direct method of proving retaliation. Further, Hoelkinger testified that what he meant by flattening the organization was eliminating positions or tiers within various departments where employees were performing the same or similar duties.
Gunty's argument that the creation of the OSRC was a surprise to the Mayor and Payne since the Government Services Review Committee had just concluded a study of the level of City services in August 2002 also fail for the reasons discussed above as the second and third reasons Gunty's claim fails under the direct method of proving retaliation.
Gunty argues that a May 15, 2003 memo from the Mayor herself suggests, at least implicitly, that the formulation of the OSRC was related to his moving expense matter because in that memo she challenged the OSRC members to bring out any "skeletons" they might have "in the closet." This argument also fails. Mayor Lombardi testified, unequivocally, that she "had no idea why the committee was created period."
Gunty argues that in a memo (dated September 23, 2003), the Mayor stated that "it continues to be disappointing that 'secret plans' are laid by the OSRC." However, the evidence shows that the Mayor's concern had nothing to do with Gunty. The Mayor testified that her concerns were that: "I had heard no plans. I heard no meeting minutes. I heard nothing" and that with the budget looming, the OSRC's recommendations were needed because the Mayor and Payne needed to know [if] they were going in the same direction and that "All cards come out for true budget consideration by [the] council".
Gunty argues that despite Mayor Lombardi's and Payne's objections to the creation of the OSRC, that committee went forward with its review of departmental staffing issues in the summer and into the fall of 2003. The nature and reasons for the Mayor and Payne's objection to the OSRC have already been pointed out above.
Gunty argues that on October 6, 2003, five days after the OSRC's recommendation to eliminate his position, Payne issued his recommendation to eliminate his position; that Payne himself testified that there was no document in existence prior to October 6 which reflected any indication that he was contemplating such recommendation; that at the initial and remand hearings Payne testified that his recommendation was at least in part due to the OSRC's recommendation; and that when asked why Payne had recommended elimination of his position, Payne responded, "What's the point?" As already noted above, however, Payne testified that although his recommendation had not been formalized, he was quite certain that he had made up his mind to eliminate Gunty's position before October 1, 2003, and that he considered the October 1 recommendations from the OSRC in that the committee's desire to make that cut was a way of saying to him that his recommendation is going to be approved. Further, although there may be an absence of any document in existence prior to October 6 reflecting contemplation of the elimination of Gunty's position, in addition to Payne's testimony that he was already considering the elimination of Gunty's position as of September 19, 2003, Gunty himself acknowledges that on September 19, 2003, Payne came into his office and presented him with a six-month severance package. As the record clearly shows, Payne had been supportive of Gunty's wage claim and had fought aggressively for Gunty as he sought an additional reimbursement for moving expenses from the City of Waukesha. Furthermore, Payne testified that he was never pressured by anyone on the Common Council to eliminate Gunty's position. Finally, with respect to Payne's "What's the point?" comment, Payne explained that his comment was reflective of the fact that he had decided to proceed with the recommendation of eliminating Gunty's position because there were so many things coming together in terms of the budget and Gunty's desire to "move on [to find another job elsewhere]."
Gunty also argues that the elimination of his position saved the City only "about three one-thousands of one percentage point" in a 2004 fiscal year budget totaling over 37 million dollars, an amount the Mayor conceded was insignificant. However, while a savings of $105,000 by eliminating Gunty's position may appear insignificant in the context of a 37 million dollar budget, if Payne had submitted a budget that included Gunty's salary, the budget would have been $36,859,310, with a corresponding tax rate of $9.47, which would have been 2 cents higher than the tax rate of the $9.45 per thousand of assessed value that had been specifically requested by the Common Council. Further, while the Mayor testified that $105,000 was not significant in the context of a 37 million dollar budget, Payne testified that he believed that a cut of $105,000 was significant. Further, Hoelkinger testified that he recalled that there had been significant Council debate in the past regarding expenditures involving significantly less than $105,000, sometimes as little as a few thousand dollars.
Finally, as evidence of a causal connection between his wage complaint and the elimination of his position, Gunty argues that after the Common Council had acted on the budget, Hoelkinger approached him and said "that the elimination of [Gunty's] position was nothing personal to [Hoelkinger] although it may be with other Aldermen." Actually, through an offer of proof at the initial hearing, Gunty claimed that what Hoelkinger told him was "that it was nothing personal and he wasn't motivated by the wage claim, although it may have been a factor with other Aldermen." In any case, at the remand hearing Hoelkinger testified that he just wanted to convey to Gunty that his decisions were strictly based on policy and the business, that he was speaking for himself, and that with respect to other members he had no idea what their motives were. Moreover, with respect to other Council members, Hoelkinger testified he had never had any discussions with any aldermen regarding their motivation with respect to Gunty, nor was he trying to convey that he had knowledge that other aldermen had other motives with respect to the budget and Gunty's position.
For all of the reasons stated above, the record fails to support Gunty's claim that a causal connection exists between his protected activity and the adverse employment action.
Assuming for the sake of argument that Gunty has established a prima facie case of retaliation under the pre-Stone indirect method of proving retaliation, however, Gunty has failed to establish by a preponderance of the evidence that the respondent's legitimate, nondiscriminatory reasons articulated for the elimination of his position are pretextual.
As its articulated reasons for the termination of Gunty's employment, the respondent states that it was due to the FY 2004 budgetary constraints, and Payne's belief that Gunty's position was unnecessary and had not worked out as Payne had envisioned.
Citing the commission's decision in Sult v. Jerry's Enterprises, Inc. (LIRC, 02/08/08), Gunty notes that "A plaintiff may demonstrate his (or her) employer's reason is pretextual, i.e., that it is 'deceit to cover one's own tracks,' by showing 'the reason (1) had no basis in fact; (2) did not actually motivate [the adverse employment action]; or (3) was insufficient to motivate [the adverse employment action].' " (Internal citations omitted.)
Gunty argues that applying these principles, it is clear that the reasons the City offers for firing him are no more than pretext.
Gunty argues that as to the alleged cost-saving motive, it is undisputed that the City saved only $105,000 of a $37,000,000 budget by eliminating his position. Gunty argues that it is simply not credible "to believe that Hoelkinger and Lapp's OSRC, and the City's Common Council, acted as they did only in order to achieve the miniscule savings the City ultimately realized. This lack of believability is made still more apparent by the fact that only Gunty was harmed by this purportedly benign process."
First of all, it is undisputed that the City's FY 2004 budget process was particularly difficult. The Common Council had ordered that Payne submit a proposed budget with a tax levy of $9.45 per thousand of assessed value, the same tax levy that had been approved for FY 2003. In addition, the message being sent by the State legislature was that the budget constraints the State was facing were due to out of control spending at the local level and therefore there were going to be constraints put on local government. Furthermore, just weeks before Payne was to submit the budget to the Common Council, it was discovered that the amount of the assessed value available for taxation was incorrect, resulting in a need for an additional $750,000 in further cuts.
While Gunty expresses incredulity about the respondent's cost-saving motivation because "only [he] was harmed by this purportedly benign process", the evidence shows that the OSRC's recommendations on October 1, 2003, were not limited to only the elimination of Gunty's position. The OSRC's first tier recommendation was to eliminate not only Gunty's position but also Vic Janka's position as the Director of Information Technology. In addition, a second tier recommendation of the OSRC was that Payne evaluate and make a recommendation to the Personnel Committee concerning the possible elimination of nine other additional positions, although those were vacant positions.
Janka, whose position the OSRC had recommended for elimination, had not filed a wage claim against the respondent. Further, although ultimately a decision was made to not eliminate Janka's position, the evidence shows that this was due to the efforts of Alderpersons Kathleen Cummings and M. Finman that the Director of Information Technology position was not eliminated. Cummings felt that it was unwise to eliminate that position because the IT Director position undertook projects for every department and because there was no plan for those projects after the elimination of the position. In the words of Cummings, eliminating the IT Director position "without a plan would be irresponsible."
Finally, as noted above, while a savings of $105,000 by eliminating Gunty's position may appear insignificant in the context of a $37,000,000 budget, if Payne had submitted a budget that included Gunty's position, the corresponding mill rate would have been $9.47 per thousand of assessed value, rather than the $9.45 mill rate that had been requested by the Common Council. Furthermore, Payne testified that he considered a cut of $105,000 as significant, and Hoelkinger recalled there having been significant Council debate in the past regarding expenditures involving sometimes as little as a few thousand dollars.
As for his position not working out as Payne had envisioned, Gunty argues that despite his having done everything asked of him and performed well in the position of Director of Administrative services, the City would have one believe, based on Payne's testimony, that only 17 months after he began in this position, Payne had concluded that Gunty's position was not what he had envisioned and therefore recommended to the Common Council that the position be eliminated. Gunty argues that this claim has no basis in fact. Gunty argues that there is not one piece of contemporaneous evidence that supports Payne's claim that Gunty's position was not working out as he had contemplated that it would; that Payne's assertion about his position not working out was first uttered years after the fact.
Gunty's argument that it is not credible that Payne concluded only 17 months after he began in the Director of Administrative Services position that the position was not what he had envisioned fails.
It is undisputed that it was Payne's intention that Gunty would become an assistant city manager. Gunty himself admitted that before he was hired as the HR Director, Payne had expressed to him a future vision of how this position might evolve, and that subsequently with the creation of the Administrative Services Director position Payne's vision became a little more concrete in that Payne had a desire to create an Assistant City Administrator position. Payne testified that while Gunty performed the Director of Administrative Services job well, it didn't meet Payne's expectations because Payne was interested in having the assistant city manager position. As explained by Payne, "I just felt that the assistant [city] administrator had more direct line authority in some ways or was more directly associated with my position as city administrator, and, therefore, would have more authority, more impact, more direct accountability to me in some way. ...I think it was...somewhat a perceptional issue...as well as the issue of not having some responsibilities that are not getting involved with some of the responsibilities that I was hoping for. Again, not for any reason on [Gunty's] part, but just because organizationally, it wasn't working out."
Furthermore, with respect to contemporaneous evidence to support Payne's claim that Gunty's position was not working out as he had contemplated that it would, as noted by the respondent, included in the record is Payne's December 2003 legal memorandum to the City's HR Committee setting forth Payne's reasons why the position had not worked out as envisioned. In that memorandum, Payne wrote in part as follows:
The Administrative Services Director (ASD) position was newly created in 2002. It arose out of vacancies in two Director level positions, those of Comptroller and H.R. Director. In fact, the incumbent [Gunty] was originally hired as the H.R. Director with the intent of transforming the position to ASD at the appropriate time. Once transformed it was envisioned the position would assume the higher level responsibilities of the Comptroller and H.R. Director and routine duties would be assigned to management level position. Over time even broader duties would be added to include oversight of other internal departments and functions such as information technology and printing. Currently, only the financial and human resources functions have been placed under this administrative oversight umbrella.
As is reflected in the 2004 recommended budget I believe that so long as these two functions are the major functions of the ASD position, and given the problems associated with the fiscal situation in 2004, it is appropriate to eliminate this position. Most of the higher level functions of the position such as long range planning and strategic leadership can be assumed by the City Administrator position. In fact, there has been little division of responsibility between the CA and the ASD functions thus far. ...
(Respondent's Exhibit 44.)
Gunty argues that this document is irrelevant to the question of retaliation as it is dated December 12, 2003, two months after Payne's October 6, 2003 budget transmittal memorandum. Gunty argues that it is much more likely that Payne's alleged belief that his position was not working out as planned is that Payne "saw the handwriting on the wall" when, on October 1, 2003, the OSRC recommended elimination of the Director of Administrative Services position.
Gunty's argument is unpersuasive. Payne testified that he had considered eliminating Gunty's position as of September 19, 2003. It was on that date, due to a discovery that the amount of assessed value available for taxation was incorrect, that in addition to those reductions already done and proposed to that point that there was a need for Payne to request department heads for an additional $750,000 further reduction in services/programs. Payne testified that he was quite certain that he had made up his mind to eliminate Gunty's position before October 1, 2003, although it had not been formalized. Further, Payne testified that he considered the October 1 recommendations from the OSRC in that the committee "had indicated their desire to make that cut was ... if nothing else, it was a way of saying to me, you know my recommendation is going to be approved." Moreover, the fact that on September 19, 2003, Payne had presented Gunty with a 6-month severance package is further evidence that Payne was contemplating the elimination of Gunty's position prior to October 1, 2003.
Furthermore, Gunty himself admits that Payne was in the best position to evaluate the need for the Director of Administrative Services position. In addition, Gunty admits that he had no knowledge that Payne wanted to retaliate against him for filing a wage claim. Indeed, the evidence is clear that, in fact, Payne had been very supportive of Gunty pursuing the additional moving expense claim.
cc:
Attorney Aaron N. Halstead
Attorney Oyvind Wistrom
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