1/4/2020 7:30:00 AM City defendants answer Kingman
wrongful termination lawsuit
Heather Schaefer Of the Northwoods River News
The city of Rhinelander, its mayor Chris Frederickson, city administrator Daniel Guild and the four defendant council members have filed an answer to the wrongful termination lawsuit filed last month by former city public works director Tim Kingman.
Attorney Michael J. King of the Milwaukee law firm of Kasdorf, Lewis & Swietlik S.C., filed the 11-page answer Thursday on behalf of all of the individual defendants - Frederickson, Guild and aldermen Steve Sauer, Ryan Rossing, David Holt and Andrew Larson - as well as the city of Rhinelander.
After confirming the identities and positions of the various defendants, as well as certain events leading to Kingman's June 24, 2019 termination, the defendants' answer consists largely of a list of denials as well as statements that the various defendants "lack information sufficient to admit or deny" certain allegations.
The answer also includes approximately 18 "affirmative or other defenses" to Kingman's allegations.
Plaintiff failed to exhaust his administrative remedies.
Some or all of plaintiff's claims are barred by the applicable statute of limitations.
Plaintiff fails to allege facts sufficient to demonstrate satisfactory job performance.
Plaintiff fails to allege facts sufficient to demonstrate more favorable treatment of similarly situated others.
Plaintiff fails to allege facts sufficient to demonstrate protected activity.
Plaintiff's allegations of protected activity are subjectively and/or objectively unreasonable.
Plaintiff fails to allege facts sufficient to demonstrate adverse employment action.
Some or all defendants acted as they did for legitimate, non-retaliatory business reasons.
Plaintiff's alleged speech was made pursuant to his official duties.
Plaintiff's alleged speech did not involve a matter of public concern.
Some or all defendants' interests in workplace and/or workforce management outweighed plaintiff's interest in plaintiff's alleged speech.
Some or all individual defendants are entitled to qualified immunity.
Plaintiff fails to allege facts sufficient to demonstrate actionable policy or custom on the part of the city.
Plaintiff fails to allege facts sufficient to support his claims against some or all named defendants.
Plaintiff fails to allege facts sufficient to support his claims of damages.
Plaintiff seeks damages beyond those to which he may be entitled, if any.
Plaintiff failed to mitigate his damages, if any.
Plaintiff fails to state a claim upon which relief may be granted.
Kingman filed the lawsuit Dec. 9 in the United States District Court for the Western District of Wisconsin. In his complaint, Kingman alleged his employment with Rhinelander was "wrongfully terminated" and he was "wrongfully retaliated against" after he spoke out about alleged workplace "harassment, intimidation, stifling of speech" and filed an age discrimination complaint with the State of Wisconsin Equal Rights Division.
Kingman is seeking lost wages and benefits as well as both compensatory and punitive damages.
The narrative set forth in Kingman's complaint, authored by attorney William Rettko of Rettko Law Offices S.C. of Brookfield, begins with the April 17, 2018 election of Frederickson and new aldermen Holt, Larson and Rossing. According to the complaint, the newly-elected mayor and aldermen joined with incumbent Sauer "to form a new majority, and eight days later, interim City Administrator Keith Kost resigned."
A few months later, on Sept. 17, 2018, Guild was hired as the city's new administrator "and he suggested and it was implemented from that point going forward that the City move from a committee structure of government to a 'council of the whole' form of government whereby the City would be run solely by the decisions of the majority of Council Persons and the Mayor."
According to Kingman's complaint, a consolidation of power continued through the fall of 2018.
Then came Jan. 28. 2019 when City Council president George Kirby refused to take his seat and attempted to speak at a Common Council meeting as a "taxpayer" to "draw attention to the $13,000 in City funds paid by City Administrator Guild to buy office equipment." (Frederickson had OK'd Guild's furniture purchase).
Kirby was not allowed to speak on the matter because it was not on the agenda for the evening's meeting.
Two days later, Kirby received a letter signed by Frederickson, Sauer, Holt, Rossing, Larson questioning his behavior and raising the prospect of an "uncomfortable" conversation.
"Upon information and belief, on or about January 30, 2019, the Mayor together with Council Persons Larson, Holt, Sauer and Rossing conducted a series of personal communications, emails and communications with each other in private and without prior public notice wherein with the assistance of City Administrator Guild who had drafted a letter which they all agreed to sign off on and send to Council President George Kirby suggesting he resign given recent events, and promising a forthcoming conversation that may be uncomfortable," Rettko wrote.
This letter is the focus of a walking quorum complaint filed by Lakeland Times and River News general manager Heather Holmes. A motion hearing on that matter is scheduled for Jan. 22. It should be noted that Frederickson, Sauer, Holt, Rossing and Larson have steadfastly denied any wrongdoing with respect to the letter.
The narrative continues with Guild's submittal of his annual work plan which included allegations that he had experienced interactions with certain unnamed alderpersons who were drunk. It also alleged bullying behavior on the part of alderpersons.
The complaint narrative also includes the Feb. 21 altercation between alderperson Dawn Rog and the city's IT contractor. The contractor alleged Rog had screamed at her and pushed her. Her complaint was reviewed by Oneida County district attorney Mike Schiek who ultimately chose not to file charges.
In the lawsuit, Kingman claims the altercation prompted an unexpected staff meeting.
"Following the incident between Rog and the IT Consultant, but on that same day, City Administrator Guild had an unannounced meeting with City Staff that was also attended by the Mayor and City's Police Chief wherein Guild informed staff that they were not to follow instructions of any one Council member nor of the City Attorney (Carrie Miljevich) as she had clearly picked sides and was not acting on behalf of her client which was the 'majority' of the Council, and they were to all act only upon written instruction provided by the 'majority' of the common council," Kingman's complaint states.
According to the complaint, Kingman also alleges he met with Guild and the mayor on Feb. 22 to express concern about the new instructions.
"Kingman met with City Administrator Guild and the Mayor after learning of the City Administrator's meeting and instructions to City Staff, and informed them that meeting was highly disruptive, inappropriate and concerning as staff viewed this speech as harassment, intimidation, and workplace retaliation," the complaint states.
According to the complaint, Kingman claims Guild and Frederickson advised him that his concerns had no merit.
Kingman's response was to advise that if they did not take corrective action he would take further action to get this corrected, Rettko wrote.
In March, Kingman began talking to colleagues about their experiences and drafting a Statement of No Confidence in Guild. Ultimately, the city clerk, assistant city clerk, utility clerk and an administrative assistant joined Kingman in signing the statement.
On March 11, Kingman presented the document to the Common Council during the public comment portion of that evening's meeting. After noting he was speaking as a citizen on his own time, Kingman stated that Guild "had created of a hostile work environment explaining that intimidation and fear of retribution existed and controlled the workplace."
According to the complaint, no immediate action was taken to resolve the concerns raised in the Statement of No Confidence. Eventually, the complaint explains, Kingman was advised that attorney James Macy and Mr. Rick Hermus were engaged by the city to investigating the matter. He was also advised that Macy and Hermus wanted to meet with him. However, according to the complaint, Kingman refused to participate in the interview because "the matter was going to be handled in secret instead of open session before the common council..."
Moving to the events of April and May 2019, the complaint details the termination of Miljevich's contract and Kingman's decision to file an age discrimination and retaliation complaint with the State of Wisconsin Equal Rights Division.
The complaint also details an alleged lunchroom incident on April 4 "wherein numerous (Department of Public Works) employees were involved in yelling insults at each other."
"On April 17, 2019, Kingman notified City Administrator Guild among others that one of the DPW workers involved in the April 4, 2019 lunchroom disruption incident was refusing to complete the required documentation or to speak to Kingman about the incident and would only speak to the City Administrator," the complaint states. "As such, Kingman suggested that with the City Administrator's approval, Kingman would issue a written/verbal warning and close the matter as the other three employees involved had been interviewed and received verbal warnings."
Five days later, on April 22, "seven employees of the DPW, together with a former DPW employee, attended the common council meeting and expressed they had been subject to conditions of harassment and retaliation in the workplace and had been for years and they feared for their jobs," the complaint states. "On April 23, 2019, Kingman notified the Mayor that four of the employees speaking on April 22, 2019 had filed a complaint with the City in the past and all four matters were addressed timely with simple clarifications and or work adjustments used to resolve them, however, there were no pending complaints and would instruct their foreman to issue verbal warnings to follow City policy by providing complaints before making comment."
"On April 25, 2019, the Foreman notified Kingman he was not going to issue verbal warnings to the 7 employees who spoke out at City Hall as they were not on City time when they spoke at the common council meeting to which Kingman responded that he would seek appropriate legal guidance before taking action although the workplace rules required the reporting of intimidation, harassment and/or retaliation before raising the issues outside of the workplace," the complaint reads. "On April 25, 2019, Kingman then emailed the Mayor and City Administrator asking for legal direction on what action if any should be taken on the events of April 22, 2019."
A week later, Kingman sent another email to the mayor and others, the complaint states.
This email contained 20 questions regarding Facebook posts "in which Guild made special notice supporting the seven DPW workers who spoke out at the April 22, 2019 Common Council meeting claiming Harassment within the DPW by thanking them for their courage, candor and commitment to the City and expressing their desire to have the workplace culture improved, causing Kingman to ask why there hadn't been a response to the Statement of No Confidence as of yet as the five persons signing off on that statement had already dwindled to four."
In early May, there was another attempt to schedule an interview of Kingman by the Macy/Hermus team, however Kingman once again refused to participate on the grounds the "Macy/Hermus team did not seem to be impartial."
An interview ultimately took place on May 23, the complaint states.
"Guild telephoned Kingman to request his presence at a meeting with him, and upon getting to Guild's office, Kingman discovered Macy and Hermus were waiting to interview him which caused Kingman to call the Mayor and demand that the Mayor order him to participate, but before the Mayor did so, Macy stated that was enough as he was authorized to perform this interview and the Kingman interview was then conducted," Rettko wrote.
On June 3, Kingman was again ordered to report to Guild's office "where he met with Guild and the Mayor at which time he was provided notice that he was being placed on Administrative Leave and was no longer allowed to be on City property or allowed to communicate with any employee of the City unless authorized by the Mayor or City Administrator Guild to do so," Rettko wrote.
Three weeks later, the four defendant aldermen voted to terminate Kingman's employment.
The other four alderpersons, Kirby, Lee Emmer, Tom Kelly and Dawn Rog, voted in opposition, leaving the council deadlocked. Frederickson broke the tie and Kingman was fired.
In July, following his termination, Kingman requested his entire personnel file be forwarded to his attorney. This resulted in the discovery that the file had been "inappropriately removed" from City Hall, Rettko notes.
"Guild responded to this request on July 24, 2019 with what the City then had in Kingman's personnel file which amounted to a total of 19 pages. On or about August 1, 2019, Guild indicated that the documents sent to Kingman's attorney was really an inadvertent response to (River News reporter) Jamie Taylor's July 23, 2019 request and it was discovered that Kingman's personnel file had been inappropriately removed from the City files," the complaint reads.
(The River News did not receive the 19 pages, raising additional questions).
In August, Kingman took a new job as a public works director in a community in southern Wisconsin. However, the mystery surrounding the file continued.
"On August 20, 2019, the City sent Kingman's attorney all responsive documents they could locate on Kingman's personnel file which again amounted to the 19 documents previously provided on July 24th, and there was no document detailing any investigation into prior complaints made over the last several years by DPW workers against Kingman which were determined to be without basis," the complaint states.
This was followed by another Facebook post from Guild, the complaint states.
"In late September, Guild posted on his Facebook page that Kingman while being the Public Works Director for Rhinelander made it an official practice that all gates, buildings and doors at the City's wastewater treatment plant were left unlocked every night and city ratepayers should stay tuned as more developments would be disclosed in the coming weeks," Rettko wrote.
Several weeks later, on Oct. 30, Kingman reported to the police department in his new community for a planned discussion about city business. However, when he arrived he was met by detectives with the Rhinelander Police Department, the complaint states.
The Rhinelander officers "interrogated Kingman on allegations of allowing a preferred private business gaining access to Rhinelander Public Works facilities after hours and not billing them for every service provided by Rhinelander," the complaint states. "During the October 30, 2019 interrogation, the Rhinelander Detectives made it clear that even though Kingman denied all such allegations they were convinced he had done the things alleged and were going to persuade that he be criminally charged."
As of this writing, Kingman has not been charged with any crime.
The complaint ends with Rettko arguing that it was Kingman's decision to speak out about workplace misconduct and to file an age discrimination claim - protected speech under the First Amendment - that resulted in the wrongful termination of his employment and has forced him "to continually fight ongoing false allegations of criminal activity."
"The City has in the past and continues to engage in a practice of retaliatory isolationism, discipline, and discharge of its employees and council members who do not always agree with the 'majority' rule as a way to prohibit speech protected by the First Amendment of the United States Constitution and has retaliated against employees and Council members for exercising their First Amendment free speech rights...," the complaint states.
"Kingman engaged in protected speech by speaking on workplace harassment, intimidation and retribution all of which is a matter of public concern which was a substantial and motivating factor in the defendants' decision and subsequent actions to terminate Kingman, to inappropriately remove exonerating documents from Kingman's personnel file regarding prior complaints made by DPW workers that turned out to have no basis, to make up a bogus complaint about Kingman's department also being hostile, with fear of retribution and to terminate him for allegedly demanding supervisors under him to terminate the seven employees who spoke out at the April 22, 2019 Common Council meeting, and to continue with allegations of criminal activity," the complaint alleges. "Had Kingman not engaged in this form of protected speech, he would not have been terminated or forced to defend against false allegations of criminal activity by the defendants."
In addition to being a defendant in this lawsuit, Guild has been referred to in police affidavits as a "person of interest" with respect to an ongoing Oneida County sheriff's department's investigation into alleged misconduct in public office and tampering with public records.
Search warrants obtained in connection with that investigation were executed at City Hall Nov. 21.
However, as of this writing, no charges have been filed against anyone with respect to the sheriff's department investigation.
The Northwoods River News | Walker Communications, LLC 232 S. Courtney Street, Rhinelander, WI 54501 | Office (715) 365-6397 | Fax (715) 365-6361
Corporate billing office: The Lakeland Times / Lakeland Printing Inc. | P.O. Box 790, Minocqua, WI 54548 | (715) 356-5236 | Fax (715) 358-2121 Members of the Wisconsin Newspaper Association, Wisconsin Community Papers, Rhinelander Area Chamber of Commerce, Minocqua Area Chamber of Commerce