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December 10, 2019

10/24/2017 7:30:00 AM
Magistrate narrows scope of plaintiff's claims

Jamie Taylor
River News Reporter

A federal lawsuit filed by a former Oneida County corrections officer alleging sexual harassment and gender discrimination by her supervisor is set for trial next month in the U.S. District Court for the Western District of Wisconsin, but the scope of the case has been narrowed considerably following a pretrial ruling.

Tracey Congleton and Rita Johnson filed the lawsuit June 14, 2016 claiming their rights under the Civil Rights Act of 1964, the Equal Protection Clause of the 14th Amendment to the U.S. Constitution and the Civil Rights Act of 1871 had been violated. The suit names Oneida County, Oneida County Sheriff Grady Hartman, corrections lieutenant Keith Fabianski, county human resource director Lisa Charbarneau, former chief deputy John Sweeney and jail administrator Mark Neuman as defendants.

Attorney Jeff Scott Olson of Madison is representing both women in the lawsuit while the county and the other defendants are represented by attorneys John A. Haase and Rebeca M. Lopez.

Numerous motions and pleadings were filed by Haase and Lopez seeking to have various parts of the case dismissed.

In an opinion and order handed down Oct. 13, federal magistrate judge William L. Conley granted the county's motion for summary judgment on all of Johnson's claims and all but one of Congleton's claims. Conley dismissed all claims except for the allegation that Congleton was subjected to a hostile work environment in violation of Title VII. This means the jury will hear evidence on this claim only.

In order to avoid summary judgment on a hostile work environment claim, the plaintiffs were required to establish four elements: (1) the work environment must have been both subjectively and objectively offensive; (2) her gender must have been the cause of the harassment; (3) the conduct must have been severe or pervasive; and (4) there must be a basis for employer liability.

Conley found Congleton had established all four elements.

A former corrections sergeant, Congleton filed a sex discrimination complaint in February 2014 claiming she had been harassed, belittled and subjected to a hostile workplace because of her sex her entire career by Fabianski, who had been her supervisor. Her complaint states Fabianski's treatment of woman throughout the sheriff's department was uniformly bad. She also claimed she had been passed over for a promotion to assistant jail administrator because of her gender. She argued the county lowered the qualifications for the assistant jail administrator position - after she had applied and was deemed the only qualified candidate - so another jail employee, Fabianski, could apply. Fabianski was eventually given the promotion.

In her complaint, Congleton alleges she went to Charbarneau with her complaints about Fabianski's behavior and was told an investigation would be conducted. The complaint alleges Charbarneau performed only a cursory investigation and did not question any witnesses, other than Johnson, who could corroborate Congleton's claims.

After Fabianski was promoted to assistant jail administrator and was again Congleton's supervisor, she took a voluntary reduction in rank from sergeant to corrections officer so there would be a layer of supervision between them. She later transferred to another county department, at another reduction of pay, to get out of the stressful job at the sheriff's department, the complaint states.

Johnson made similar claims of sex-based discrimination and treatment.

She claims she went to then jail administrator Kay Juel "on more than one occasion" about Fabianski's "demeaning and disrespectful manner toward her." Juel, who has since passed away, reportedly promised Johnson something would be done, but "Fabianski's conduct toward female corrections officers never improved," the complaint states.

According to the complaint, Johnson went to Charbarneau with a request to transfer to another job out of the sheriff's department because of the work environment Fabianski had created. She also talked to new jail administrator Neuman who, in turn, said Johnson was not a "team player" and that "he would not have that in his department."

Johnson was terminated from her job on Jan. 6, 2015 for allegedly abusing the sick leave policy and lying about it. Johnson claims in her suit that the termination was in retaliation for her making sex-based discrimination and harassment complaints against Fabianski.

Both plaintiffs were seeking compensatory and punitive damages, interest, costs and attorney fees.

In his order, Conley ruled that the arguments the county raised in its motion for summary judgment against the plaintiffs claims under the Civil Rights Act of 1964, the Equal Protection Clause of the 14th Amendment to the U.S. Constitution and the Civil Rights Act of 1871 were well supported by case law.

He also agreed, in part, with the defense argument that Congleton's claims were outside of the statute of limitations.

However, Conley ruled that the county's attorneys were basing that claim on the wrong starting point for the time period.

"Even though Fabianski's alleged harassment of Congleton for the most part dates back to the early and mid 2000s, 'a violation of Title VII that is based on a claim of harassment by a coworker doesn't occur until the employer has failed to take reasonable steps to bring the harassment to an end.' Frazier v. Delco Elecs. Corp., 263 F.3d 663, 666 (7th Cir. 2001)," Conley wrote in the opinion. "In other words, 'only when it becomes clear that the employer has failed to resolve it in a timely fashion does the statute of limitations begin to run.' Id. Therefore, plaintiffs reason that the clock for purposes of Congleton's hostile work environment claim did not begin to run until November 15, 2013, when Charbarneau informed Congleton of the results of her investigation and Congleton decided to accept the transfer to a lower paying job."

He later clarified that Congleton's Title VII claim is actually triggered by the date the employer (Oneida County) failed to take corrective action, not when the alleged harassment began. He did, however, grant a defense motion for summary judgment on Johnson's Title VII claims because they were outside that window.

"Defendants only pursue a statute of limitations defense with respect to plaintiffs' Title VII hostile work environment claim in its summary judgment submissions, and not, as far as the court can tell, with respect to the § 1983 equal protection claims brought against the individual defendants. The statute of limitations for the § 1983 claims is significantly longer at six years than that provided under Title VII," he wrote.

That distinction means any alleged harassment after June 14, 2010 is actionable, he wrote. A trial on the hostile work environment claim is set for Nov. 13.

Jamie Taylor may be reached via email at

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