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Gray v. Lacke

decided: September 22, 1989.

CHERYLL GRAY, F/K/A CHERYLL LENGYEL, PLAINTIFF-APPELLANT,
v.
JEROME LACKE, STANLEY KLEIN, DAVID NIEMANN, AND DIANE KOHN, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Western District of Wisconsin. No. 88-C-329-S -- John C. Shabaz, Judge. Reported at,.

Cummings and Coffey, Circuit Judges, and Eschbach, Senior Circuit Judge.

Author: Eschbach

ESCHBACH, Senior Circuit Judge

The plaintiff-appellant Cheryll Gray, brought this suit against Jerome Lacke, Stanley Klein, David Niemann, and Diane Kohn, the defendants-appellees, pursuant to 42 U.S.C. § 1983. In her complaint, she alleges that the appellees deprived her of her rights guaranteed by the first and fourteenth amendments to the Constitution. The appellees filed a motion to dismiss, which the district court granted. In dismissing her complaint, the district court ruled that Gray's claims either were barred by Wisconsin's three-year statute of limitations for personal injury or failed to state claims for relief.

On appeal, the appellant raises three primary issues. First, Gray contends that the district court erred in applying Wisconsin's three-year personal injury statute of limitations to her § 1983 claims. Second, she argues that she properly alleges claims for relief under § 1983 for deprivation of her equal protection and due process rights guaranteed by the fourteenth amendment. Finally, Gray claims that she was unlawfully retaliated against by the appellees for her speech and petitions for redress of grievances, which were protected by the first amendment because they touched upon matters of public concern.

In support of the district court's granting of their motion to dismiss, the appellees raise three other issues. They argue that Gray's claims are barred by res judicata and collateral estoppel. Additionally, they claim that Gray's action is barred because she did not timely serve them with the complaint under Wisconsin law. Finally, they contend that some of her claims are barred by a prior settlement agreement. For the reasons discussed below, we affirm in part, reverse in part, and remand for further proceedings.

I. Statement of Facts

Because Gray appeals from the district court's dismissal of her action, we accept all factual allegations contained in her complaint as true. See Fontana v. Elrod, 826 F.2d 729, 731 (7th Cir. 1987); Redfield v. Continental Casualty Corp., 818 F.2d 596, 605-06 (7th Cir. 1987). Therefore, we recite the facts as Gray alleges them in her complaint.

On March 4, 1977, Gray began working as a communications operator with the Technical Services Division of the Dane County Sheriff Department. Gray, along with four other women, became the first group of women hired into nonclerical positions in the Technical Services Division. In July 1979, Gray and two other women who held the position of communications operator filed union grievances on the ground that they received less money than male employees who had previously performed the same duties. Their supervisor, Sergeant Lawrence Larson, became angry with them for filing the grievances. He abused them verbally and threatened to have them dismissed.

In 1979, one of Gray's supervisors, Niemann, made sexual advances toward her during working hours. Niemann informed Gray that her chances for promotion and other employment benefits, which he controlled as manager-in-charge of technical services, depended upon her submission to his sexual advances. He further told Gray that communicator positions would soon be available and that he determined who would get those positions. Gray, however, steadfastly refused Niemann's sexual advances. Gray eventually applied for a position as a communicator. Although she was qualified for the job, she did not receive the promotion.

On February 4, 1980, Gray complained to Niemann and Kohn that one of Gray's supervisors had made submission to his sexual advances a prerequisite to employment benefits. Neither Niemann nor Kohn, however, investigated or addressed Gray's allegation. Instead, Niemann tried to cause Gray's termination from the Dane County Sheriff Department. Although Niemann was unsuccessful, he did cause her to receive a thirty-day suspension without pay for insubordination.

Later that same month, Gray filed a discrimination complaint against Dane County with the Dane County Affirmative Action Commission. Gray filed her complaint on behalf of herself and all other female communications operators. At least one other female communications operator filed a similar complaint. Six months later, Gray filed a sex-discrimination complaint with the State of Wisconsin. After filing her complaint with Wisconsin, a newspaper reporter from Madison interviewed Gray concerning her allegations of sex discrimination at the Dane County Sheriff Department. The newspaper carried an article which repeated her allegations and noted the various complaints and union grievances she had filed. Eventually, Gray and Dane County settled the sex discrimination case that Gray had filed with the State of Wisconsin.

The settling of Gray's complaint did not end her employment woes. In November 1981, Gray applied for a position as an Income Maintenance Worker with Dane County. Although she was qualified for the job, Gray did not receive the position because her supervisors, including each of the appellees, gave negative references regarding her. Sometime between 1981 and 1983, however, Gray apparently changed jobs within the Dane County Sheriff Department and became a jail booking clerk.

On September 19, 1983, Gray voluntarily transferred to the Records Department of the Sheriff Department because Klein represented to her that the transfer would be for only six months and that she would receive valuable computer training. Contrary to Klein's representations, Gray was not allowed to work with computers in the Records Department, and her requests for computer training were denied. Instead, supervisor Kohn assigned Gray to duties which were beneath her job classification. Kohn watched Gray's work much more closely than other employees, held Gray to a higher standard of performance than Gray's coworkers, and meticulously kept track of Gray's activities in a file. Moreover, Kohn tried to turn Gray's coworkers against her by encouraging them to complain about Gray. A few months later, Gray filed a union grievance on behalf of herself and other jail booking clerks, all of whom were female, alleging that they were paid less than male employees who had previously performed the same duties. In her grievance, Gray requested that the jail booking clerks be reclassified and paid at a higher wage level. The parties eventually settled this grievance, and Gray and her coworkers became classified at a higher rate of pay.

After being in the Records Department for more than six months, Gray requested a transfer back to her position as a jail booking clerk. Although Klein had represented to her that her stint in the Records Department would last only six months, each of the appellees, including Klein, participated in denying her requests to transfer. In November 1984, Gray again tried to leave the Records Department of the Dane County Sheriff Department. This time she applied for the position of paralegal with the Dane County District Attorney's Office. This position would have been a promotion for Gray, giving her an increase in salary and employment benefits. Although Gray was qualified for the job, she did not get it because the appellees provided negative references regarding her. Two months later, Gray again requested a transfer back to her position as a jail booking clerk. The appellees denied her request.

Starting in March 1985, the appellees altered Gray's work schedule in order to eliminate her work breaks and shorten her lunch period. In response, Gray filed yet another grievance concerning her working conditions. While her grievance was pending, Gray continued to have difficulty in getting along with her supervisors. The appellees reprimanded her both orally and in writing, and they selectively enforced work rules against her in an invidious manner. On one occasion, Kohn and Niemann questioned Gray about a conversation she had with a coworker the previous day. During their questioning, Kohn and Niemann spoke to Gray in an abusive and threatening manner. Their meeting ended only after Gray agreed, under protest, to provide a written statement describing the contents of her conversation with her coworker.

On May 14, 1985, Gray's grievance reached the Personnel Committee of the Dane County Board of Supervisors. The Personnel Committee recommended that Lacke reassign Gray so that she would not be supervised by Kohn and Niemann and would be performing tasks commensurate with her job level. Although Lacke was reluctant at first, he finally reassigned Gray back to her former position as a jail booking clerk. Upon reassignment, her direct supervisor was Klein, who immediately directed a sergeant to watch Gray's work and report back to him.

In June 1985, Gray applied for a position as an Administrative Services Supervisor I at the Dane County Hospital and Home. Although she was qualified for the job, she did not get this promotion because the appellees provided negative references about her. Later that month, Gray filed another sex-discrimination complaint with the State of Wisconsin. Her filing of a complaint, however, did not deter the appellees. Instead, they continued to harass her at work. Klein directed other supervisors to file written complaints about Gray, and Lacke had her sick-leave checked. Moreover, she was denied overtime work when she wanted it and was forced to work overtime when it was inconvenient for her.

On April 18, 1988, Gray filed this lawsuit in the district court, alleging that the appellees had deprived her of her rights guaranteed by the first and fourteenth amendments to the Constitution in violation of 42 U.S.C. § 1983.*fn1 She sued the appellees in both their individual and official capacities. The appellees moved to dismiss her complaint for the following reasons: (1) the complaint failed to state a claim for relief; (2) Gray's claims are barred by prior settlement agreements; (3) her claims are barred by res judicata and collateral estoppel; and (4) most of Gray's claims are barred by the applicable statute of limitations. The district court granted the motion to dismiss on various grounds. First, the court found that her suit against the appellees in their official capacities was barred by res judicata, although she could still maintain her suit against them in their individual capacities. Second, the district court found that Wisconsin's three-year statute of limitations for personal injury barred all claims arising from the appellees' acts taken prior to April 18, 1985. Finally, the court found that the rest of her action failed to state claims for relief under § 1983.

II. Res Judicata and Collateral Estoppel

The appellees argue that the principles of res judicata and collateral estoppel preclude Gray from maintaining this action. They contend that this action was already unsuccessfully litigated by her in a prior suit against Dane County. See Gray v. County of Dane, 854 F.2d 179 (7th Cir. 1988). In that suit, Gray sued Dane County under § 1983 and Title VII for sexual harassment, wage discrimination, and retaliation based on similar allegations to those contained in her complaint in this lawsuit. Because Gray failed to show that the alleged discrimination and retaliation she suffered was due to a policy or custom of Dane County, the district court dismissed her action for failure to state a claim. The district court also ruled that Gray had failed to show a deprivation of her equal protection or first amendment rights. Our court sued the district court solely on the basis that her complaint failed to show that the alleged discriminatory ...


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