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Witte v. Wisconsin Dep't of Corrections

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.

The opinion of the court was delivered by: Wood, Circuit Judge.


Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.

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 42 U.S.C. § 1983 against the Wisconsin Department of Corrections and numerous individuals associated with the Department. The district court granted summary judgment for all defendants, and we affirm.


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 was warranted. In the meantime, defendant Steven Casperson, the Division Administrator of the DOC, had received information causing him to question Witte's ability to practice medicine safely. Accordingly, on July 31, 2001, Casperson, with the approval of defendant David E. Burnett, the DOC's Medical Director, informed Witte that he was being suspended with pay indefinitely pending an independent medical examination. Although Witte contends that the DOC did not have legitimate reasons for questioning his competence, he did not file a grievance challenging either the medical examination or the compulsory leave. After the independent examination, the Department found that Witte was fit, and it allowed him to return to work.

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 to discuss Witte's possible violation of these work rules. One hour into the hearing, Witte accepted an offer to adjourn the meeting, after he expressed his discomfort from the stress that he was experiencing. On his physician's recommendation, Witte took a medical leave of absence effective August 1, 2003; since that time, he has not returned to work. According to Witte, he will be able to return to work only when the defendants' harassing behavior ceases. To date, Witte has not been discharged from the Racine facility; instead, he is listed as an employee on administrative leave without pay.

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 42 U.S.C. § 1983 and the Wisconsin whistle-blower statute, Wis. Stat. § 895.65. The complaint alleged that the defendants had retaliated against him for exercising his rights under the federal and Wisconsin constitutions. It also alleged that the ...

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