Burks v. Wisconsin Dept. of Transp.

368 F.Supp.2d 914

Pamela J. BURKS, Plaintiff, v. WISCONSIN DEPARTMENT OF TRANSPORTATION, Marcia L. Traska and Mary P. Forlenza, Defendants.

No. 04-C-503-C.

United States District Court, W.D. Wisconsin.

May 11, 2005.

David E. Lasker, for Plaintiff.

Michael J. Losse, Madison, WI, for Defendants.

OPINION AND ORDER

CRABB, District Judge.

This is the second suit that plaintiff Pamela J. Burks has brought in this court. In 2001, she sued her former employer, the Wisconsin Department of Health and Family Services, for race discrimination and retaliation. Burks-Ramnarine v. Wisconsin Dept. of Health and Family Services, Case No. 00-C-535-S (W.D.Wis.2001). Now, she is suing a more recent employer, defendant Wisconsin Department of Transportation, for retaliation, racial discrimination and creation of a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and for discriminating against her and creating a hostile work environment in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). In addition, plaintiff is suing defendants Marcia L. Traska and Mary P. Forlenza under 42 U.S.C. §§ 1981 and 1983 for racial discrimination in violation of her constitutional right to equal protection for retaliation in violation of the First Amendment and for depriving her of due process rights. Jurisdiction is present. 28 U.S.C. § 1331.

For plaintiff, this case boils down to a lack of evidence. She has not proposed facts that would allow a jury to draw a reasonable inference that defendants terminated her for an impermissible reason or stigmatized or mistreated her in any way. Therefore, I must grant defendants' motion for summary judgment in its entirety.

From the parties' proposed findings of fact and the record, I find the following facts to be material and undisputed.

UNDISPUTED FACTS

Plaintiff Pamela J. Burks is of African-American and Hispanic descent. She worked for the Bureau of Transit and Local Roads, Local Transportation Programs and Finance Section (Bureau of Transit) of defendant Wisconsin Department of Transportation, a state agency with its primary office located in Madison, Wisconsin. Plaintiff suffers from permanent hearing impairment, sight impairment and shoulder, neck and spinal cord injuries as a result of an automobile accident on December 5, 1984. These disabilities make it difficult for plaintiff to walk, sit or stand for any extended period of time. At all relevant times defendant Marcia L. Traska was employed by defendant Wisconsin Department of Transportation as a Unit Supervisor in the Bureau of Transit. Traska was plaintiff's immediate supervisor from November 2001 to August 2002. As Unit Supervisor, Traska was responsible for general supervision of staff and administration of the Local Roads Improvement Program, General Transportation Aides, Connecting Highways, Flood Damage Aids, Expressway Aids, County Forest Road Aids and Lift Bridge Aids. Defendant Mary P. Forlenza is a Planning and Analysis Administrator of the Division of Transportation Investment Management at defendant Department of Transportation. Forlenza is responsible for overseeing a ten-person section that provides over $500 million annually in state and federal funds to communities throughout Wisconsin. Forlenza was Traska's supervisor and plaintiff's second line supervisor.

On October 31, 2001, defendant Traska interviewed plaintiff for a programming and planning analyst-4 position in the Bureau of Transit. Defendants Traska and Forlenza considered plaintiff the most highly qualified applicant for the position and they selected her to fill the vacancy. In a written offer dated November 6, 2001, defendant Forlenza advised plaintiff of the Department of Transportation's policy of providing reasonable accommodation, along with the employee's responsibility to contact their supervisor or the department's affirmative action office if the employee requires an accommodation. On November 19, 2001, plaintiff was appointed to the position of Program Manager of the Bureau of Transit and Local Roads (program and planning analyst-4) by defendant Department of Transportation in its Division of Transportation Investment Management. Defendants employed her on a probationary basis. Plaintiff's co-workers included Maria Cole, a program and planning analyst and Wendy Brigham-Abrouq, an information systems data services worker and former program and planning analyst.

Shortly after defendants hired plaintiff, they presented her with a set of three-month goals. On February 19, 2002, they conducted a three-month probation review of plaintiff's progress on her three-month goals and determined that her work was satisfactory.

On May 2, 2002, plaintiff told defendant Forlenza that she was experiencing difficulty with the repetitive task of clipping documents together. In response, Forlenza sent plaintiff an email summarizing their conversation and suggesting alternatives to help resolve her difficulties. In addition, Forlenza asked plaintiff to inform defendant Traska immediately if the suggestions did not meet her needs. On May 7, 2002, plaintiff provided Forlenza with medical documentation that was two years old. Forlenza told plaintiff that the department could not make any decisions about medical accommodations until she submitted current information about her disabilities. On May 14, 2002, plaintiff provided Forlenza with medical documentation with a more recent doctor signature and date, stating that she required large grip writing utensils, a workspace with reduced lighting, an amplified telephone, no bright-colored paper and red, blue and green pens.

On May 15, 2002, defendants Traska and Forlenza met with plaintiff and provided her with a six-month probationary performance evaluation, a copy of which had been provided to plaintiff for review prior to the meeting. The evaluation stated:

Pam's performance over the past three months (mid Feb to mid May) has been uneven and unpredictable — both within the work area, and on several occasions, with local officials. It is recognized this is a very busy time in the LRIP program cycle, but the inconsistent quality of her work and accompanying attitude are not acceptable. She tends to blame others for all mistakes — the unit leader/supervisor, section chief, her fellow program manager, and the LTE who assists in mailing program documents. Most recently, however, it appears Pam is moving in the right direction, and beginning to take more initiative, responsibility and accountability for her work. Therefore, Pam's probation is being extended for three months, during which her performance and ability will be monitored weekly by the unit supervisor.

Plaintiff never disclosed her notes to defendant Traska or offered to do so, even though Traska asked to see them. Plaintiff did not take notes in the manner that defendants Traska and Forlenza preferred.

Also on May 15, 2002, Department of Transportation Safety and Ergonomics Specialist Ruth Ann Whitehorse conducted an ergonomic assessment of plaintiff's workstation. She recommended that in addition to a new chair, plaintiff should raise her computer monitor and add an armrest that attached to her work surface, a copyholder, footrest and a telephone headset. Whitehorse also recommended that plaintiff close the window blinds when necessary to alleviate the glare on her computer screen and that part of her work surface be raised so that she could work while standing. The next day, plaintiff sent Forlenza an email message thanking her for responding promptly to her request for accommodations for her disabilities. By June 28, 2003, with the exception of raising part of her work space that was scheduled for July 29, 2002, the recommended accommodations had been completed.

Despite the efforts of defendant Traska to monitor plaintiff's progress closely, provide her with direct feedback on a regular basis and schedule check-in meetings, plaintiff's performance did not improve. On August 9, 2002, after evaluating plaintiff's performance over the extended three-month probationary period, defendant Traska wrote plaintiff to inform her that she had failed her probation and was being terminated from her program and planning analyst-4 position. Traska cited five particular areas in which plaintiff's performance fell short: 1) failure to meet assigned deadlines; 2) failure to follow up and communicate effectively with local officials; 3) lack of initiative in performing job duties; 4) not following directions and providing deliverables as requested; and 5) not taking personal responsibility for completing work assignments effectively. The letter detailed clear examples and documentation to support the action and was signed by defendant Traska. Defendants Forlenza and Traska decided to terminate plaintiff with agreement from Bureau Director Rod Clark, Division Administrator Ruben Anthony, Bureau Director Susan Christopher, Affirmative Action Officer Demetri Fisher, Attorney Allyn Lepeska, Personnel Specialist Gary Kastorff and Chief Officer of Administrative Services Amy Wazny. Plaintiff filed a discrimination complaint with the Wisconsin State Personnel Commission on February 5, 2003, alleging race and disability discrimination as well as retaliatory discharge.

OPINION

Plaintiff concedes that she does not have a claim under Title VII for a hostile work environment. Plt.'s Br., dkt. # 19, at 2. Therefore, I will address the remaining claims that 1) defendant Wisconsin Department of Transportation discriminated against her because of her race and ethnicity in violation of Title VII; 2) defendant Wisconsin Department of Transportation created a hostile work environment and discriminated against her because of her disabilities in violation of the Rehabilitation Act; 3) defendants Marcia Traska and Mary Forlenza discriminated against her because of her race and ethnicity in violation of...