In the United States Court of Appeals For the Seventh Circuit No. 04-3962 GERHARD WITTE, Plaintiff-Appellant, v. WISCONSIN DEPARTMENT OF CORRECTIONS, et al., Defendants-Appellees.
No. 04-3962
United States Court of Appeals For the Seventh Circuit
January 23, 2006
Appeal from the United States District Court for the Western District of Wisconsin. No. 03-C-0438-C—Barbara B. Crabb, Chief Judge. ARGUED JUNE 6, 2005—DECIDED JANUARY 23, 2006
OPINION
WOOD, Circuit Judge. For more than five years, Dr. Gerhard Witte worked for the Wisconsin Department of Corrections (DOC) as a physician in the Health Services Unit (HSU) at the Racine Correctional Institution. Over that period of time, he was disciplined on several occasions, and at one point was fired, although he was reinstated after an arbitrator reviewed that decision. In August 2003, after yet another incident, Witte took a medical leave of absence that is still ongoing. Claiming constructive discharge, as well as retaliation for his exercise of his First Amendment rights, he filed this suit under
I
In 1997, the DOC hired Witte to provide medical services to inmates in the HSU at its Racine facility. Shortly after defendant Sheridan D. Ash was hired as the Unit Manager of the HSU in 1998, tensions arose between Witte and Ash. Witte believed that Ash‘s management of the unit had a negative effect on the work environment and patient care, and he expressed these concerns through numerous letters to various officials at the DOC. Both Witte and Ash complained to their supervisors about the other; eventually, Ash left the unit in February 2000. Unfortunately, this did not assuage Witte‘s concerns. After Ash‘s departure, Witte continued to write to DOC officials to complain that the facility was still delivering substandard care. The problem, Witte thought, was that defendant Kenneth Morgan, the prison warden, had failed to respond to Witte‘s complaints about Ash‘s mismanagement.
Defendant Kimberly Russell was hired as Ash‘s replacement in October 2000. On January 17, 2001, Witte wrote to Morgan to praise the selection of Russell and opined that staff morale at the HSU was the highest since he began working at the facility. His good-will toward Russell ended, however, when Russell notified her supervisors that Witte had violated a rule protecting an inmate‘s confidential information. Upon Witte‘s admission that he had indeed violated the rule, the investigation into the matter was dropped without any disciplinary action taken. In early 2001, the DOC began receiving a series of complaints from HSU staff regarding Witte‘s behavior toward them. A few months later, in June of that year, the DOC opened an investigation after several nurses from the HSU filed complaints against Witte alleging sexual harassment.
Established DOC procedure requires that upon receiving a complaint, management must conduct an investigation and convene a pre-disciplinary hearing with the employee to determine whether disciplinary action is called for. As a permanent employee, Witte was covered under a collective bargaining agreement that requires the DOC to have “just cause” before taking disciplinary action and allows the union to grieve any disciplinary action taken against an employee. If the union is not satisfied with the result of the grievance, it can take the matter before a neutral arbitrator.
In Witte‘s case, after the required investigation, the DOC held a pre-disciplinary hearing on July 25, 2001, addressing his alleged violations of the rules prohibiting insubordination and harassment. It concluded this time that disciplinary action
While still on leave, Witte was ordered to attend an investigatory interview to discuss a different set of possible rule violations in his care and treatment of several inmates. Witte denied the allegations. His pre-disciplinary hearing took place a few days after the interview. After that hearing, on January 25, 2002, DOC fired Witte, citing several grounds: violations of work rules prohibiting insubordination; harassment and intimidating behavior; negligence in the performance of duties; and inaccurate or malicious statements about staff or inmates.
Three days later, Witte‘s union filed a grievance on his behalf protesting his discharge, and the matter moved to arbitration. On January 31, 2003, the arbitrator decided that although the DOC had valid grounds for issuing a written reprimand to Witte for insubordination and making a notation in his personnel record of the sexually harassing behavior, it did not have just cause to discharge Witte. The arbitrator ordered the DOC to reinstate Witte and restore to him lost wages and benefits. At the same time, he noted that his decision in no way reflected an endorsement of Witte‘s behavior and attitude. The DOC complied with this order.
On February 19, 2003, the Wisconsin Department of Regulation and Licensing notified Witte that Burnett had filed a complaint against him but that the screening panel had decided not to pursue an investigation into the matter. Witte returned to work on February 24. That same day, Burnett provided him with a document setting forth his job expectations, including directives on the treatment of the staff, and informed him that he would receive regular evaluations in the future. Witte also received three written reprimands for violations that occurred prior to his termination. From February through June, Burnett prepared written evaluations noting that Witte met some expectations but not others. The defendants claim that these evaluations were not disciplinary actions, and Witte did not grieve them or the fact that he was subject to regular evaluations.
In the spring of 2003, Russell complained that Witte had threatened to file charges against her with the Nursing Examining Board after a dispute between the two. Witte maintains that it was not a threat, because he actually filed such a complaint. Around the same time, defendant Jean Carlson, a nurse-practitioner at the HSU, complained about Witte‘s humiliating behavior toward her. Once again, the DOC conducted investigations and pre-disciplinary hearings, and it issued Witte two letters of reprimand. Witte did not file a grievance concerning these reprimands. In the summer of that year, Burnett conducted an investigative interview with Witte in response to complaints from the staff that he failed to sign progress notes and orders, delayed in seeing inmates, and that he locked the examining room door while seeing inmates. On August 1, a pre-disciplinary hearing was held
On August 13, 2003, Witte sued the DOC and defendants Ash, Burnett, Carlson, Casperson, James Conte, Jr. (a security officer at Racine), James Greer (director of the HSU), Earl Kielley (employment relations chief of DOC‘s Bureau of Personnel and Human Services), Kenneth Morgan (the warden at Racine), Linda Morgan (housing unit manager at Racine), Susan Nygren (a nurse at Racine), and Russell for monetary and injunctive relief under
The defendants moved for summary judgment on the retaliation claims. On September 17, 2004, the court granted the defendants’ motion after concluding that Witte‘s speech was not protected under the federal or state constitution. Because the defendants did not mention the due process claim in their motion, however, the court directed Witte to advise the court if he was still pursuing the claim, and if so, to explain its nature and scope. Witte responded that the intolerable working conditions to which the defendants subjected him amounted to a constructive discharge. He alleged that the defendants had engaged in “a campaign of harassment,” which included petty and false allegations against him and sham investigations and disciplinary proceedings. The defendants moved for summary judgment on this claim. On November 4, 2004, the court ruled that Witte had not demonstrated that he had been constructively discharged and that in the alternative, even if defendants’ conduct amounted to a constructive discharge, Witte was not deprived of due process. Witte appeals, arguing that the district court erred in granting summary judgment on his due process and whistle-blower claims.
II
To prevail on a claim for constructive discharge, a plaintiff must prove both that the defendant engaged in “harassing behavior sufficiently severe or pervasive to alter the conditions of [her] employment,” and that “the abusive working environment became so intolerable that her resignation qualified as a fitting response.” Pennsylvania State Police v. Suders, 542 U.S. 129, 133-34 (2004) (internal quotations omitted). Although Suders addressed the topic of constructive discharge in the context of a
Witte argues that he meets this demanding test. A trier of fact could find (he contends) that the defendants engaged in a conspiracy to cause him relentless stress and anxiety that ultimately forced him to take a medical leave of absence, equivalent to a resignation. He claims that the record is replete with evidence showing that he was subjected to a “steady barrage of false allegations and petty charges” and sham investigations and pre-disciplinary proceedings, and he faults the district court for failing to take full account of these facts in the light most favorable to him, as it should have done at the summary judgment stage.
But at the outset, Witte confronts two threshold problems. The first is substantive: he has sued the Wisconsin Department of Corrections under
The court found that Witte‘s statement of facts did not comply with its requirements. Most of Witte‘s responses to the defendants’ proposed facts were off point. In some instances, the evidence to which he cited did not demonstrate a real dispute. More seriously, Witte cited to evidence in the record that was inadmissible hearsay, or he simply repeated his contentions instead of pointing to evidentiary support for them. For example, in response to the defendants’ proposed facts describing each investigation and disciplinary action taken, Witte said only that they
Based on the facts properly before the district court, we too find that no reasonable trier of fact could find that Witte was constructively discharged. We accept as true that from 2000 on, he was subjected to a steady stream of complaints, disciplinary proceedings, and the occasional sanction. But Witte presented no evidence that would support a finding that the defendants took these actions solely to harass him. Instead, the record shows that the defendants were responding to complaints from both inmates and the HSU staff. Witte does not even claim that the DOC violated its own policies when it looked into the various matters. His constructive discharge claim thus fails at the threshold: he cannot show, as Suders requires, that the defendants created a hostile work environment to begin with. See Suders, 542 U.S. at 149. (We note that there is also a serious question whether he satisfies the “discharge” element of this claim, given the fact that he stands ready to return to work as soon as the defendants “cease their hostile actions once and for all.” Given our conclusion with respect to this theory, we have no need to resolve this point.)
III
Witte also appears to be challenging the procedures that DOC used in connection with his alleged constructive discharge. Given our conclusion that he was not constructively discharged at all, these procedural claims must also fail. Even if we gave Witte the benefit of the doubt on the discharge question, however, his procedural complaints are without merit. It is undisputed that he had the right to file a grievance after any of the alleged harassing disciplinary charges, but (with the exception of the successful grievance that resulted in his reinstatement) he never did so. Importantly, he never filed a grievance after he took his extended medical leave of absence allegedly because he concluded that he had constructively been discharged. Witte concedes that he is entitled to a pre-disciplinary hearing if and when he returns to work. There is nothing in this record to suggest that such a hearing would be futile, or, more importantly, that the post-termination procedures available to him would be unavailing. See generally Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
Perhaps the most telling fact for this purpose is Witte‘s failure to take advantage of the preventive and corrective opportunities available to him, such as filing a grievance with his union. He was successful when he grieved his termination before the arbitrator and has presented no evidence that another appearance before an arbitrator would be a sham proceeding. As the district court observed, citing Wozniak v. Conry, 236 F.3d 888, 890 (7th Cir. 2001), “[o]ne who has spurned an invitation to explain himself can‘t complain that he has been deprived of an opportunity to be heard.” That describes Witte‘s situation perfectly. The district court‘s summary judgment for the defendants was
IV
Finally, we consider Witte‘s attempt to present a retaliation claim, under either the First Amendment or Wisconsin‘s whistle-blower statute,
Although the question of how properly to interpret the state statute may be an interesting one, we need not resolve it here. As the defendants point out, Witte failed to raise this theory in his brief in opposition to the defendants’ motion for summary judgment. Instead, he relied exclusively on the argument that he had engaged in protected speech. The defendants certainly so understood his position, because they wrote in their reply brief in the district court that “Plaintiff does not contest and, therefore, concedes Defendants’ position that free speech rights under the Wisconsin and United States Constitutions are coextensive and that therefore Plaintiff‘s claims stand or fall on the same legal analysis. Plaintiff does not contest, and therefore, concedes Defendants’ position that if Witte‘s speech is not constitutionally protected, his claim under
We agree with the defendants that Witte forfeited his alternative argument under
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
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Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—1-23-06