Opinion
Case No. 12-C-0746
08-28-2014
KIMBERLY A. REICH, Plaintiff, v. SOFTWARE ONE INC., Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND SETTING CASE FOR A FINAL PRETRIAL CONFERENCE
Defendant SoftwareONE, Inc. (SWO), has moved for summary judgment on the sexual harassment and retaliation claims of its former employee, Kimberly Reich. However, on this record, it is difficult to discern what occurred. A jury must decide whether this case is about an intoxicated kiss with two innocuous references to a toothbrush, as Reich claims, or forced physical contact and sexual innuendos by a direct supervisor. Affidavits filed in reply to defendant's motion, stating that the supervisor did not intend a sexual relationship with Reich or that Reich engaged in consensual behavior do not allow the court to resolve genuine issues of material fact. Consequently, the motion will be denied and the parties shall appear for a final pretrial conference.
FINDINGS OF FACT
Plaintiff, Kimberly Reich, a 40-year-old single mother, resides at 33507 Janesville Road, Mukwonago, Wisconsin. (Def.'s Ex. A, Reich Dep. 43.) Over the past 18 years Reich has been employed by an organization in the information technology industry, or owned and operated her own business in marketing and sales while incorporating information and technology. (Reich Decl. ¶ 3; Def.'s Ex. A, Reich Dep. 5-7, 14.)
For purposes of this decision, the pinpoint citation refers to the page number of the deposition transcript rather than the page on which it appears in the record.
SoftwareONE, Inc. is a global software licensing company, with subsidiaries around the world, one such subsidiary is SoftwareONE U.S. ("SWO") located at 20875 Crossroads Circle, Suite 1, Waukesha, Wisconsin, 53186. (Def.'s Answer ¶ 4.) Earlier, SWO had an office at 15700 West Cleveland Avenue, New Berlin, Wisconsin, 53151. (Pl's Compl. ¶ 4.) At all relevant times, Reich worked in SWO's New Berlin office. (ECF No. 19 ¶ 4.)
SWO's business focuses on being a software licensing expertise and providing customers with expert advise, solutions and systems related to obtaining and managing their software needs. (Def.'s Ex. D, 2010 Employee Handbook 1-24.) SWO utilizes a team of upper management, or a leadership team, who directly manage outside sales representatives, called Business Development Managers (BDMs), and inside sales representatives, called Business Development Representatives (BDRs). (ECF No. 19 ¶ 6.)
In the fall of 2010, Reich learned that SWO had an opening for an Inside Sales Manager (ISM) and submitted her resume. (Reich Decl. ¶ 4; Def.'s Ex. A 37.) She was interviewed by several management employees of SWO, including U.S. Vice President Craig Gadberry, who had one vote in the group decision to hire Reich for the management slot. (Def.'s Ex. G, Gadberry Dep. 12.) SWO's Chief Executive Officer and SWO's U.S. President, Patrick Winter, did not interview Reich. (Def.'s Ex. H, Winter Dep. 9; Ex. A , Reich Dep. 41.)
Before offering Reich the position, SWO provided Reich with the ISM job description and a detailed explanation of SWO's goals and expectations. (Reich Decl. ¶ 5; Def.'s Ex. A, Reich Dep. 38-39.) Reich executed SWO's offer letter on October 18, 2010. (Reich Decl. ¶ 6; Def.'s Ex. E.) She began working for SWO on or about November 1, 2010. (Pl.'s Compl. ¶ 5; Ex. E, Oct. 15, 2010 Offer Letter to Reich, SWO 775937-775938.)
Throughout her tenure with SWO, Reich reported directly to Gadberry, who normally worked from the Austin, Texas, office. (Def.'s Ex. G, Gadberrry Dep. 6, 9.) However, Gadberry did work in SWO's New Berlin office approximately five or six times during Reich's employment and only saw her approximately eight times - in the New Berlin office or at SWO leadership meetings. Gadberry met with Reich face-to-face three or four times. (Id. at 17-19.) On the other hand, Gadberry oversaw Reich's work performance but he did not have the singular authority to hire, fire, promote or demote her. (Def.'s Ex. G, Gadberry Dep. 12, 31; Def.'s Ex. H, Winter Dep. 7-8; Def.'s Ex. I, Winter Aff. ¶¶ 9, 10.) Moreover, he did not have input into Reich's later separation from SWO. (Id.)
Reich was a member of the SWO management or leadership team and the inside sales team that she oversaw worked from the New Berlin office. (ECF No. 19 ¶ 17.) She was considered the working peer of Chris Miller, SWO's Director of Sales - North Central U.S. (Def.'s Answer ¶ 6; Def.'s Ex. A, Reich Dep. 67.) Accordingly, Miller had no supervisory authority over Reich, and could not hire, fire, promote or demote her. (Def.'s Ex. H, Winter Dep. 7-8; Def.'s Ex. A, Reich Dep. 67; Def.'s Ex. I, Winter Aff. ¶ 11.) On the other hand, Patrick Winter, the U.S. President of SWO, had the authority to fire, promote or demote Reich. (Def.'s Ex. H, Winter Dep. 7-8; Def.'s Ex. I ¶ 8.)
On November 1, 2010, Reich acknowledged receipt of SWO's Employee Handbook. (Def.'s Ex. A, Reich Dep. 29-31; Def.'s Ex. J, Acknowledgment of Receipt of Handbook, SWO 0775927.) She read and reviewed SWO's Employee Handbook earlier. (Def.'s Ex. A, Reich Dep. 29-31.) The Employee Handbook addresses Harassment, including Sexual Harassment. (Def.'s Ex. D, 2010 Employee Handbook, SWO 0006-0007.) It states, in part:
SoftwareONE is committed to providing a work environment in which employees are treated with courtesy, respect, and dignity. Consequently, sexual harassment in the workplace will not be tolerated. SoftwareONE does not tolerate reprisals against any employee who makes a sexual harassment complaint either. Sexual harassment, whether caused by intentional or unintentional behavior, stated directly or implied through words or actions, is a form of misconduct that undermines the integrity of the employment relationship. No employee - either male or female - should be subject to unsolicited and unwelcome sexual overtures or conduct, either verbal or physical. Sexual harassment includes any conduct which has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive work environment. Sexual harassment includes but is not limited to unwelcome sexual flirtation, innuendo or vulgar body language; unwelcome sexual advances; all physical conduct of an unwelcome nature; unwelcome sexual jokes, statements, gags or pictures in the workplace.(Id.) The 2010 Employee Handbook was applicable to Reich throughout her employment at SWO. (Def.'s Ex. I, Winter Aff. ¶ 16.)
You should report any conduct that results in harassment immediately to the Human Resources Manager (HR Manager). All complaints of sexual harassment will be investigated promptly. SoftwareONE will, to the greatest extent possible, maintain the confidentiality of those involved in the investigation. If the investigation confirms that sexual harassment has occurred, appropriate action will be taken to stop and remedy such conduct. Employees, supervisors, managers and others who violate this policy are subject to corrective action, up to and including discharge. Retaliation on the part of any employee, regardless of their role in the investigative process, will not be tolerated and may be subject to disciplinary action, up to and including discharge.
Any supervisor who receives a complaint of sexual harassment and fails to take the necessary corrective action steps is also subject to the corrective action process, up to and including discharge.
The focus of the inside sales team was placement of licensing software with clients. (Def.'s Ex. A, Reich Dep. 36.) The inside sales team assisted the outside sales team of approximately 70 representatives. (Id.) Reich was to manage and assist approximately 12-15 of SWO's inside salespersons - BDRs - whose responsibilities were to sell SWO's software licensing services from the New Berlin, Wisconsin, office. (Def.'s Ex. K, Job Description for Inside Sales Manager, SWO 775931.) Reich's job duties also included sales leadership to the BDRs, training BDRs, handling escalations and participating directly in complex sales situations, negotiating and/or resolving disputes, ensuring customer satisfaction, and meeting team sales targets and quotas. (Id.)
Reich was expected to have a working knowledge of SWO's business practices, policies and pricing. (Id.) SWO required her to complete various training modules within one year of her employment. (Def.'s Ex. A, Reich Dep. 96-97.) Reich did not complete the licensing training to understand SWO's business prior to her departure, but asserts that Gadberry told her not to concern herself with the training, to get into her position, to understand her staff, and to build synergy between the inside sales team and the outside sales team. (Def.'s Ex. I, Winter Aff. ¶ 17.)
Reich's first allegation of harassment arose out of a meeting in January of 2011, when Winter's shoed foot touched her foot while they sat next to each other at a sales meeting. (Ex. A, Reich Dep. 62.) Reich also alleges that Winter inappropriately complimented her at the same January 2011 meeting by stating "hey, nice boots" and otherwise complimenting her boots or asking why she did not wear boots. (Ex. A, p. 62, line 9-19.) Reich's only in person interaction with Winter was at the January 2011 meeting and perhaps once in the New Berlin office, but she did not consistently interact with him as he is based in Switzerland. (Id. at 65.) Winter was not aware of any complaints that Reich had concerning his "boots" comments until after SWO's investigation began in June 2011. (Ex. I, Winter Aff. ¶ 30.)
The next incident of which Reich complains occurred near the end of February 2011, at a SWO leadership meeting in San Diego. (Pl.'s Compl. ¶ 6; Ex. A, Reich Dep. 70; Reich Decl. ¶ 7.) Reich and other members of the leadership team met for drinks at a local bar after arriving in San Diego. (Reich Decl. ¶ 7.) She and others, including Miller, left the local bar and returned to their hotel. On the short walk back to the hotel, Miller pulled Reich back from the group and attempted to kiss her. Reich immediately pulled away from Miller and asked what he was doing. Miller told her that he used to be a bad boy. (Id.)
Upon arriving at the hotel, Miller and Reich entered an elevator on the way up to their respective hotel rooms. While in the elevator, Miller forcibly pushed her against the wall and stuck his tongue down her throat. (Reich Decl. ¶ 8; Def.'s Ex. A 69-72.) Reich acknowledges that she did not push the elevator emergency button, report the incident to hotel security or slap or push Miller. (Def.'s Ex. A, Reich Dep. 71.) She believes she hyperventilated as the elevator came to a stop on her floor. (Reich Decl. ¶ 8; Def.'s Ex. A, Reich Dep. 69-72.)
After the elevator door opened, Miller insisted that Reich accompany him to his hotel room. (Def's Ex. A, Reich Dep. 72.) Reich refused and was able to exit the elevator. (Id.) Miller followed Reich to her hotel room and stood between Reich and her hotel room door, continuing to insist that Reich accompany him to his hotel room. (Id. at 72-73.) Reich was scared to open her hotel room because she did not want Miller to enter the room. (Id. at 73.) Reich attempted to diffuse the situation by asking Miller what his wife would say and what his kids would say. (Id.) Again, Miller attempted to forcibly kiss Reich while standing outside her hotel room, but Reich stopped him from doing so. (Id. at 74.) Finally, Reich told Miller she would meet him at his room if he would leave her doorway. (Id. at 73.) Reich entered her hotel room and did not leave her room the rest of the night. (Id. at 75.) At the time of this incident between Miller and Reich, both were intoxicated. (Id. at 74.)
Reich also alleges that Miller "gawked" at her at the meeting following their kiss. (Ex. A, Reich Dep. 78.) However, Miller made no other advances or physical contact with her. (Ex. A, Reich Dep. 68.)
On the evening of March 23, 2011, Gadberry and Reich had dinner to discuss her team and SWO's business. (Def.'s Ex. A, Reich Dep. 111-115.) Reich understood that dinner meetings between management leaders at SWO were sometimes necessary. (Id. at 34.) She met Gadberry at his hotel for a drink around 7:30 pm, and accompanied him to dinner. (Id. at 113; Def.'s Ex. EE, March 23-24, 2011, text between Gadberry and Reich, SWO 360246-360259.) After dinner and one or two glasses of wine, Gadberry and Reich drove to his hotel where Reich had "about a quarter" of a glass of wine at the hotel bar while conversing with Gadberry. (Def.'s Ex. A, Reich Dep. 115.) Reich left the hotel bar around midnight, and drove home. (Def.'s Ex. A, Reich Dep. 114-116.)
At 12:05 a.m. on March 24, 2011, Gadberry sent a text to Reich asking if she was okay and if she arrived home. (Def.'s Ex. EE, Text between Gadberry and Reich dated March 23-24, 2011, SWO 360250.) Reich responded that her ".5 mile drive went well :)". (Id.) Gadberry texted back to Reich "shoulda just brought ur toothbrush". (Id.) After the toothbrush comment, the following conversation took place:
Reich: I don't get out much. Cocktails mean sleepyrime [sic] not partytime. Lol(Id. at SWO 360253-360256.) Gadberry never inappropriately touched Reich and never asked Reich for sex. (Ex. A, Reich Dep. 117-118.) Reich never had a conversation with Gadberry to express that the comment about the "toothbrush" was inappropriate and never told any other SWO employee about the "toothbrush" comment, except Oliver Berthold, with whom Reich was having an intimate, sexual relationship prior to May 6, 2011. (Def.'s Ex. A, Reich Dep. 80-81, 119; Def.'s Ex. Q, Grove Dep. 13; Def.'s Ex. R, Davis Dep. 9.)
Gadberry: Sleepytime?
Reich: Yeah I don't get out much so when I have a few cocktails I get tired. A few years ago it may have meant I would party, age does things.
Gadberry: You don't get better with age?
Reich: I do but my tollerance doesnt [sic]. Haha
Gadberry: I'm sure the dogs are happy ur home but
Reich: Yes they're happy but I'm leaving again in 6 hours so they need to stop running around so I can get some sleep
Gadberry: It's 12:24 and you still have some tolerance
Reich: If I had to do anything I could find the strength or tolerance ... Yes. But im more I retested in going to sleep [sic].
Gadberry: You can sleep when ur dead
Later that morning on March 24, Reich was to meet with Gadberry at the New Berlin office to discuss goals for her inside sales team. (Def.'s Ex. A, Reich Dep. 121-122.) However, Gadberry avoided and ignored her while in the New Berlin office. (Id.) He did not meet with Reich that day before flying back to Austin, Texas. (Id.)
On or after March 29, 2011, Reich was informed that she needed to increase her licensing knowledge and to complete her training at SWO, and that Gadberry was invested in her to do so. (Def.'s Ex. L, March 29, 2011, e-mail string between Reich and Gadberry, SWO 0421993; Def.'s Ex. A, Reich Dep. 125-126.) Reich's goals included completion of all training modules for the BDR/BDMs (outside salespersons) required at SWO by September 30, 2011, and passing the MCP and SAM certifications by August 31, 2011, leading to full proficiency in Microsoft licensing. (Def.'s Ex. M, Reich's 2011 SWO goals, SWO 776048-776049.)
Gadberry and Reich were involved in an e-mail string on April 1, 2011, wherein it was contemplated that the two would meet the following week to discuss Reich's goals for her team. (Def.'s Ex. FF, March 31st - April 1st, 2011 e-mail string between Gadberry and Reich, SWO 423206.) In an e-mail, Gadberry said "bring your toothbrush J" (Id.) Reich ignored the comment in her response and referred to goals to be set and ended her message with a ?. (Id.) Afterward, Reich sent a text message to Berchtold informing him that Gadberry had made the toothbrush comments to her. (Reich Decl. ¶ 11, Ex. 2.) Berchtold responded "There is sexual harassment. His stupid. We can talk on Monday." (Id.) At the time, Berchtold was SWO's US Software Asset Management Manager and reported directly to Gadberry. (McDonald Decl. ¶ 2, Ex. 1, Berchtold Dep. 12.)
On April 19, 2011, as a member of the Board, Winter attended a SWO Board of Directors meeting in Switzerland. (Def.'s Ex. H, Winter Dep. 57-60.) No other U.S. based employee attended that Board meeting, and, as of April 19, 2011, to the present, no other employee of the U.S. based SWO is a member of the Board. (Def.'s Ex. I, Winter Aff. ¶ 19.)
At the April 19, 2011, Board meeting it was determined that SWO's U.S. operations were going to be reorganized into six separate territories which would be led and managed by an outside sales director with a team of field representatives, including outside salespersons and inside salespersons. (Def.'s Ex. H, Winter Dep. 58-60.) As a result of the new organizational structure, the inside sales representatives, or BDRs, would report to one of the six territory sales directors, and not an inside sales manager. (Id.) As a consequence of this, Board decision to reorganize the U.S. sales structure, the position of inside sales manager would be eliminated. (Id.; Def.'s Ex. V, April 19, 2011, Board minutes, SWO 776093.)
SWO receives input about management by surveying its employees concerning their feelings about the performance of SWO and its managers. (Def.'s Ex. N, Gadberry Aff. ¶ 7.) By late April, Reich's team of BDR's had completed their U.S. Survey. (Id. at ¶¶ 7-9.) Some of the BDRs managed by Reich commented that Reich had insufficient knowledge of software licensing to support them in selling software licensing. (Def.'s Ex. O, May 2, 2011 e-mail from Gadberry to Reich, 1897-1900.) At least BDR suggested that Reich was absent from work too much to support the team. (Id.)
On May 2, 2011, Gadberry shared some survey results with Reich via e-mail, and offered to assist her by discussing the areas mentioned, supporting her with respect to her team and providing feedback along with input as to areas to improve upon. (Id.; Ex. A, Reich Dep. 7.) Reich responded to Gadberry's e-mail immediately and acknowledged that there was "a lot of information to review and digest - all good information ..." (Def.'s Ex. P, May 2, 2011 e-mail from Reich to Gadberry, 1894-1896.) Reich further acknowledged that she had not completed the licensing training offered by SWO. (Def.'s Ex. A, Reich Dep. 92-93.)
Four days after receiving Gadberry's May 2, 2011, feedback, Reich approached Tim Grove, Director of Sales Operations for SWO, and her peer, to talk about the illness of her father, issues with managing her team, and a text she had received from Gadberry. (Def.'s Ex. Q, Grove Dep. 11, 13-14.) Reich described the text from Gadberry in detail and explained that she perceived the toothbrush comments as sexually inappropriate. (Reich Decl. ¶ 13.) She also told Grove that Gadberry had begun treating her negatively after she ignored his requests and that Gadberry refused to sign off on her team's goals. (Id.) According to Reich, during this conversation she told Grove that Chris Miller had forcibly kissed her in an elevator and prevented her from entering a hotel room while attending a manger's conference in San Diego earlier in the year. (Id.) Grove was not in a supervisory role with respect to Reich and had no input in her separation from SWO. (Id. at 12, 15, 22.)
On May 6, 2011, Reich had lunch with peer employee, James Davis, SWO's Finance Director, at which time she mentioned Gadberry's text message concerning a toothbrush. (Def.'s Ex. R, Davis Dep. -9, 11; Reich Decl. ¶ 14.) Reich showed Davis the text message she had received from Gadberry that remained on her cellular telephone. (Reich Decl. ¶ 14.) Reich also told Davis about a kiss between her and her SWO peer, Chris Miller. (Id.) Davis later told Reich to delete any text messages she had received from him because he was fearful of losing his job. (Def.'s Ex. 1, Reich Dep. 53, McDonald Decl. ¶ 3, Ex. 2; Davis Dep. 23.)
On May 10, 2011, Colleen Paavola, SWO's Human Resources Manager, inquired of Reich whether she planned to attend the upcoming U.S. Leadership meeting in Cincinnati, Ohio. (Def.'s Ex. S, Paavola Dep. 8, 22.) After discussing work issues, Reich told Paavola that Gadberry sent her a text about a toothbrush and explained the events leading up to the text as well as the contents of the message and the e-mail. (Reich Decl. ¶ 15.) Reich made it clear that she considered the text message to be sexually inappropriate and referenced the e-mail where Gadberry was being "harsh" with respect to feedback on work performance. (Id.) During the meeting, Reich also told Paavola about Miller's conduct at the leadership meeting in San Diego. (Id.) Paavola told Reich "If you make a formal complaint, it will only make things worse for you. Do you have any proof?" (Id.) Paavola then told Reich that they should share a room during the upcoming meeting in Ohio and to stick by Paavola to make sure nothing would happen to her. (Id.) Paavola did not disclose what Reich told her during their conversation with any other person, and traveled to the U.S. Leadership meeting on Tuesday, May 17, 2011. (Def.s Ex. T, Paavola Aff. ¶ 7.)
Gadberry, Miller and Winter were not in the New Berlin office between May 10, 2011 and May 18, 2011. (Def.'s Ex. T, Paavola Aff. ¶ 8.) Due to the illness of her father, Reich took personal time off on Thursday, May 12 and Friday, May 13, 2011, and her last day in the SWO office was May 17, 2011. (Def.'s Ex. T, Paavola Aff. ¶ 11; Def.'s Ex. U, May 18, 2011 e-mail from Donovan Sampson to Reich, SWO 0360090; Def.'s Ex. A, Reich Dep. 46.) Reich did not travel to the U.S. Leadership meeting in Cincinnati, Ohio, on May 17, 2011, and did not attend the meeting on May 18, 2011. (Def.'s Ex. A, Reich Dep. 47.)
Winter informed Gadberry of the Board's decision to reorganize SWO's U.S. sales structure immediately prior to a U.S. leadership meeting that took place on May 18, 2011, in Cincinnati, Ohio. (Def.'s Ex. H, Winter Dep. 59-60; Ex. I, Winter Aff. ¶¶ 20, 21.) During the May 18, 2011, leadership meeting, Winter announced to the U.S. leaders who were present that Reich's Inside Sales Manager position was eliminated. (Def.'s Ex. I, Winter Aff. ¶ 19.) To date, there is still no inside sales manager position at SWO. (Def.'s Ex. H, Winter Dep. 51.) Prior to the announcement, Gadberry had no knowledge that Reich's ISM position was eliminated. (Ex. N, Gadberry Aff. ¶ 13.)
James Davis, SWO's Finance Director, attended the May 18, 2011, U.S. Leadership meeting. (Def.'s Ex. W, Agenda/Minutes - SWO US Leadership Meeting.) According to Reich, Davis sent her a text message that Gadberry and Paavola were soliciting information from other directors concerning her job performance and pitting other directors against her. Davis told Reich to watch her back and that Gadberry wanted to "fire her." (Def. Ex. A, Reich Dep. 53-55.)
During the evening hours of May 18, 2011, Reich asked Winter to meet her privately to discuss some concerns about her SWO position. (Def.'s Ex. Z, May 18, 2011, e-mail string between Reich and Winter, SWO 421166.) Winter replied when he landed and indicated that he could call her that evening or meet with her the morning of May 19, 2011. (Id.) At 11:05 pm on May 18, Reich indicated that she would reach out to Winter on May 19, 2011, for an alternative time. (Id.)
On May 19, 2011, at 11:02 am, Reich sent an e-mail to Paavola with a copy to Winter stating "[t]his is my documented formal complaint of sexual harassment directed towards me by Chris Miller and Craig Gadberry. I have documented the instances of sexual harassment towards me by these individuals and can share with you at the proper time." (Def.'s Ex. AA, May 19, 2011 e-mail string between Reich and Paavola.)
Reich requested and received personal time off ("PTO") approval, did not work on May 19, 2011, and remained on personal time off, with pay, from May 19, 2011 through July 5, 2011. (Def.'s Ex. AA, May 19, 2011, email from Reich requesting PTO, SWO 0360494; Def.'s Ex. A, Reich Dep. 59.) Paavola acknowledged receipt of the May 19th complaint on May 20, 2011, at 1:00 pm, informed Reich that a formal investigation would occur and scheduled an initial meeting when Reich would confer with Winter and Paavola. (Def.'s Ex. AA.) Reich requested a meeting on May 25, 2011, instead and also asked for and received additional personal time off on May 23 and 24, 2011. (ECF No. 19 ¶ 77.)
On May 24, 2011, Paavola sent Reich an e-mail indicating that attorney Meg Kurlinski would conduct the investigation into sexual harassment allegations. (Def.'s Ex. BB, May 24, 2011 e-mail from Paavola to Reich, SWO 422251.) That same day, Reich sent Margaret Kurlkinski, SWO's attorney, an e-mail requesting to reschedule the May 25th meeting on the recommendation of her doctor that she take more time off from work due to being shaken up from what had transpired from filing the sexual harassment complaint. Reich expressed her desire to meet the following week and to provide information to Kurlinski by e-mail and asked for additional personal time off. (Def.'s Ex. CC, May 22, 2011 e-mail from Reich to Kurlinski, SWO 422394.) The requests were approved and June 1, 2011, was set for a meeting outside the offices of SWO. (Id.)
In June of 2011, Kurlinski performed an investigation of Reich's allegations by interviewing Reich, Miller, Winter, Paavola, and Gadberry, as well as other employees of SWO. (Def.'s Ex. DD, June 29, 2011 e-mail from Kurlinski with attached memorandum, SWO 149-152.) Although Paavola and Winter were initially going to perform the investigation, neither participated except to be interviewed. (Def.'s Ex. H, Winter Dep. 18; Def.'s Ex. S, Paavola Dep. 33.) Paavola was not a supervisor of Reich, and did not have the authority to hire or fire SWO personnel. (Ex. S, Paavola Dep. 17-18.)
At the conclusion of the investigation, Kurlinski determined that Reich had not been subjected to behavior that rose to the level of unlawful sexual harassment and was unable to determine that the perceived increased criticisms of Reich's performance by Gadberry were the result of Reich's rebuffing Miller's and Gadberry's alleged sexual advances. (Ex. DD, E-mail from Kurlinski dated May 22, 2011, SWO 150-152.) However, Kurlinski confirmed that Reich and Miller kissed once, and that Gadberry used poor judgment in the words he selected for a text and email. (Id.) Additionally, Kurlinski confirmed that Gadberry's critiques of Reich's work performance were consistent with the critiques of Reich's performance by other SWO employees. (Id.)
SWO reissued its anti-harassment policy to all its employees and provided Gadberry and Miller with individualized training with regard to the company's harassment policy. (Id.; Ex. I, Winter Aff. ¶¶ 36, 37.) Winter received a copy of the re-issued anti-harassment policy in July of 2011 and reviewed it. (Ex. T, Paavola Aff. ¶15; Ex. I, Winter Aff. ¶ 35.) Gadberry completed individualized training on August 24, 2011, and Miller completed individualized training on August 18, 2011. (Ex. I, Winter Aff. ¶¶ 36, 37.)
On June 17, 2011, Reich requested that she be placed into the position of Director U.S. VAR Assist Partner Manager, and that she no longer report to Gadberry. Alternatively, she requested 2 ½ years severance pay in exchange for full release of liability against SWO. (Def's Ex. GG, June 17, 2011, e-mail from Reich to Kurlinski, SWO 94-95; Def.'s Ex. H, Winter Dep. 25.) Before that the position had been filled by at least two other employees. (Id.) The VAR Assist Partner Manager position was a current position whereas the VAR Partner Manager Position was a new position. (Id.)
Upon conclusion of the investigation, on June 29, 2011, SWO offered Reich the option of returning to work in the new position of VAR Partner Manager, reporting to Peter Ellis with duties and responsibilities including managing and supporting the existing VAR partner relationships through the United States, acquiring a new IT partner to become SWO VAR partner, supporting SoftwareONE's field sales team with their partner engagement, establishing annual business plans with SoftwareONE's strategic VAR partners, and traveling up to 25% of work time. (Def.'s Ex. DD, E-mail from Kurlinski with attached memorandum dated June 29, 2011, SWO 150-152; Ex. H, Winter Dep. 21.) As VAR Partner Manager, Reich would receive the same pay and benefits as she had in the Inside Sales Manager role. (Id.) Alternatively, Winter determined that SWO would provide Reich a severance package effective July 1, 2011, consisting of two months base salary, a neutral letter of recommendation and release of liability. (Id., Ex. H, at p. 21, lines 1-16.)
On July 1, 2011, Reich sent a lengthy e-mail to Kurlinski with a copy to Winter. It read, in part:
I have had time to think about the two options you've proposed regarding my employment. I must say that I am disappointed in these options, as I believe neither option is reasonable in light of the treatment I've endured at the(Def's. Ex. HH, July 1, 2011 email from Reich to Kurlinski, SWO 153-154.)
company; even most recently. There is no question that I was sexually harassed at work and that I was treated poorly by my boss after rejecting his sexual advances. To say otherwise is baffling, which is why I was and am so shocked by the results of the investigation. Not to mention the complete disregard for my complaint to Human Resources and three other Directors. It seems as if my complaints and allegations were ignored.
It is my understanding that I must choose between the nominal severance that was provided and going back to work but in a "new" position. I cannot accept the severance because I have a family to support and will not be able to find a similar paying job within the two months. Therefore, it appears that I am forced to come back to work in the role offered, VAR Assist Partner Manager. As I had mentioned, I am very fearful of accepting this position. Margaret, you told me that Patrick created this position however, currently Peter Ellis holds this role and prior to him Brian Fuher held this position; so I am confused why it is being called a new position and why I am told it was created specifically for my return.
Margaret, as discussed yesterday and through the various recent emails I have forwarded your way, the team in New Berlin have been subjected to statements painting me in a less than favorable light. Peter Ellis reached out to individuals and told them if they heard from me, they needed to report it immediately to him. In addition, Software ONE has reached out to a VAR Partner (one that I would be assigned to manage), stating that there are issues with my employement [sic] and asking if they had heard anything about me. It seems unreasonable to not have a job description, goals, expectations, duties, etc., prior to starting in a different role within the organization. Further, the memo I received with the two offers states that I am to report to Peter Ellis, the individual discussed above and a person who reports directly to Craig, the person about whom I complained of sexual harassment. From my perspective it looks like the company is setting me up to fail in this position.
Having said that, I will return to Software One and perform my job to the same high standards as before. I simply ask that the company provide me with a job description, goals, expectations, duties, etc., prior to my return so I know exactly what is expected of me in this role. Due to the environment that has been created by both Craig and Peter with regards to the New Berlin team (Management and staff alike), I would like the option to work from home with access to the office; similarly to how our remote U.S. staff and global teams work. It would be greatly appreciated if this information would be sent to me prior to returning to work on July 5th.
From a personal standpoint, a welcome back letter from Patrick going to all of US in hopes of repairing falsehoods about my absence would be appreciated; considering Craig emailed all of them and told them all to NOT
contact me. In addition, I would like restorative justice; similar to that of mediation between Craig, Chris and myself.
Kurlinski, on behalf of SWO, responded on July 5, 2011, providing more details about the new VAR Assist Partner Manager position, and indicating that Reich would be treated like other SWO employees for the announcement of the position and would not receive a "welcome back letter" and that there would not be a "restorative justice" mediation session. (Def.'s Ex. II, July 5, 2011 e-mail from Kurlinski to Reich, SWO 160.) SWO asked Reich to respond to its offer of the position by July 7, 2011, at 5:00 pm. (Id.)
On July 6, 2011, Kurlinski sent a position description to Reich relating to the VAR Assist Partner Manager position. (Def.'s Ex. JJ, July 6, 2011 e-mail and attachment from Kurlinski to Reich, SWO 179-180.) That position was not the position being offered to Reich. (Def.'s Ex. JJ.) That same day, Reich sent a four-page, single-spaced e-mail to Kurlinski with a copy to Winter addressing the findings and conclusions of Kurlinski's investigation into the sexual harassment complaint, the contradictory and confusing information being provided to her by SWO relative to the new VAR Partner Manager position, and Kurlinski's July 5th e-mail. (Def.'s Ex. KK, July 6, 2011 e-mail from Reich to Kurlinski, SWO 172-175.) Reich indicated SWO's refusal to work with her increased her fear that she was being "set up to fail" in the new job. (Id.) She expressed concern that the duties, responsibilities and goals of the new job had not been defined or explained to her. (Reich Decl. ¶ 25.) Reich also asked "How will I be assured that I am not being set up to fail in this position and suggestions from SWO on how they, as an organization, and in accordance with their harassment policy, will protect me from future retaliation and offer security within my new role[?]" (Def.'s Ex. KK.) Kurlinski acknowledged receipt of Reich's July 6, 2011 e-mail on the same day, and indicated that she needed to review it with SWO, and that, in the meantime, she should not return to work. (Def.'s Ex. A, Reich Dep. 127; Def.'s Ex. KK.)
On July 8, 2011, Winter sent an e-mail to Reich with an attached memorandum stating that Reich had "missed two deadlines to accept the offer" of the VAR Partner Manager position, that Reich's "rejection of the offer is inconsistent with the Company's operation, that he understood the "July 5 e-mail to be a rejection of the return-to work alternative offered to [Reich] on June 29, and "as a result, [Reich's] employment with [SWO] will end, effective today, July 8, 2011." (Def.'s Ex. F.) However, Reich's July 1, 2011, e-mail said that she would return to work and perform her job "to the same high standards as before." (Def.'s Ex. HH.) Reich needed a job to support her and her daughter and wanted to remain employed with SWO. (Reich Decl. ¶ 21.)
On July 13, 2011, Reich sent Winter an e-mail with an attached memorandum responding to his July 8, 2011, memorandum terminating her employment. (Reich Decl. ¶ 25.) Reich's memorandum explained that she had accepted the VAR Partner Manager position offered to her by SWO and urged Winter to review the June 1st and June 6th correspondence with Kurlinski for confirmation. (Id.) Winter responded on July 15, 2011, that his July 8th memorandum was accurate. (Reich Decl. ¶¶ 25, 26, Ex. 4.)
SWO's VAR Partner Manager position is occupied and is held by another female employee. (Def.'s Ex. H, Winter Dep. 22.) Reich could not have returned to the ISM position because it has been eliminated. (Id. at 51.) Winter sent a memorandum to all U.S. employees advising them of the elimination of the Inside Sales Manager position and the reorganization. (Def's Ex. H, Winter Dep. 52-53; Def.'s Ex. LL, memorandum from Patrick Winter, SWO 370323.) However, Reich learned of the reorganization after she was terminated. (Def.'s Ex. A, Reich Dep. 23.)
On September 21, 2011, Reich filed a claim of sex discrimination in the Equal Rights Division alleging harassment and retaliation based on sexual harassment by Gadberry, Miller, and Winter, and the termination of her position at SWO. (Def.'s Ex. MM, Reich's ERD claim.) Reich received an EEOC case number and subsequently dismissed her Workforce claim. (Def.'s Ex. NN, May 4, 2012 notice of dismissal of Workforce Development claim.)
On July 18, 2012, a Right to Sue letter was issued on request because more than 180 days had passed since the filing of the charge and the EEOC ceased processing Reich's charge. (Def.'s Ex. OO, Right to Sue letter.) Reich initiated this action on July 20, 2012. (Def.'s Ex. C.)
CONCLUSIONS OF LAW
Summary judgment is proper when the pleadings, discovery, and disclosures establish that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Winsley v. Cook Cnty., 563 F.3d 598, 602-03 (7th Cir. 2009); Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the burden of establishing the absence of fact issues. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997) (citing Celotex, 477 U.S. at 323). A genuine dispute as to a material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Attica, Indiana, 259 F.3d 619, 625 (7th Cir. 2001). Moreover, a "court may not assess the credibility of witnesses, choose between competing inferences or balance the relative weight of conflicting evidence; it must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in favor of the non-moving party." Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2014).
In her brief in opposition to summary judgment, Reich argues three theories: hostile work environment, quid pro quo sexual harassment, and retaliation. To survive summary judgment on a hostile work environment claim, she must come forward with sufficient evidence to create a genuine issue of material fact on the four elements (1) the work environment must have been 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. See Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 383 (7th Cir. 2012).
SWO argues that Reich's claims must fail because she cannot establish that the "Gadberry texts and emails, the Miller kiss or the Winter foot touch and boots comment were so severe and pervasive to create a hostile work environment." "To rise to the level of an actionable hostile work environment, the complained-of conduct must have been sufficiently severe or pervasive to have altered the conditions of her employment such that it created an abusive working environment." Passananti v. Cook Cnty., 689 F.3d 655, 667 (7th Cir. 2012). The court considers the totality of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Turner v. The Saloon, Ltd., 595 F.3d 679, 684-85 (7th Cir. 2010). Additionally, the court must assess the conduct at issue both objectively and subjectively. See Passananti, 689 F.3d at 667. "That is, the plaintiff must subjectively believe that the harassment was sufficiently severe or pervasive to have altered the working environment, and the harassment must also be sufficiently severe or pervasive, from the standpoint of a reasonable person, to create a hostile work environment." Turner, 595 F.3d at 685.
Reich has presented evidence upon which a reasonable jury could find that the conduct of Miller, a director at SWO, and Gadberry was sufficiently severe to create both a subjectively and objectively hostile work environment. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986). It is important to recall that harassing conduct does not need to be severe as well as pervasive. Jackson v. County of Racine, 474 F.3d 493, 499 (7th Cir. 2007)(citing Cerros v. Steel Tech., Inc., 398 F.3d 944, 950 (7th Cir.2005)). One instance of conduct that is sufficiently severe may be enough to sustain a hostile work environment claim. See Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir.1999).
Viewing the evidence in the light most favorable to Reich, as the court must at this stage, Miller forcibly pushed Reich against the wall of an elevator and "stuck his tongue" down her throat. Reich has stated that she "immediately started to hyperventilate" before Miller proceeded to forcibly kiss her a second time. In addition, Gadberry sent Reich two texts with sexual innuendos, suggesting that she bring her toothbrush and that she improves with age. She avers that she was "shocked and appalled," in the wake of these communications, that she was uncomfortable because the texts were coming from her boss, and that she was afraid. Moreover, Reich also complained to Berchtold, Davis, Groves, Paavola, and Winter. In addition, Reich concluded that Gadberry began avoiding her and acting negatively because she ignored his sexual advances. A reasonable jury could find that this evidence satisfies the subjective prong of Reich's claim. See Worth v. Tyer, 276 F.3d 249, 267 (7th Cir .2001); Turner, 595 F.3d at 685.
Additionally, Reich has presented sufficient evidence to show that the harassment was severe or pervasive enough to create an objectively hostile work environment. Drawing the line between what is and is not objectively hostile is often difficult. See Turner, 595 F.3d at 686. Mindful of SWO's arguments regarding the weight of the evidence, the record includes proof of a physical threat - the forcible push of Reich against a wall to engage in unwanted sexual contact. The Seventh Circuit has recognized that touching "an intimate body part" constitutes one of the most severe forms of harassment. Id. , 595 F.3d at 686. Indeed, a co-worker's forcible kiss and attempt to unfasten the target's bra were acts sufficiently severe to create a hostile work environment. Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808-09 (7th Cir. 2000)("Having a co-worker insert his tongue into one's mouth without invitation and having one's brassiere nearly removed is not conduct that would be anticipated in the workplace.") In so holding, the Seventh Circuit explained that physical conduct lies on a continuum just as verbal harassment and that there are some forms of harassment that are relatively minor such as a hand on the shoulder, a brief hug or a peck on the cheek. Id.
On the other hand, when harassment "moves beyond the sort of casual contact which (if it were consensual) might be expected between friendly co-workers, and manifests "in more intimate, intrusive forms of contact, it becomes increasingly difficult to write the conduct off as a pedestrian annoyance." Id. Hence, the unwelcome, forcible contact - combined with sexual innuendos in texts from a direct supervisor and the highest ranking corporate officer in SWO's U.S. operations - as described in this record create a genuine issue of material fact as to whether a reasonable person would find Reich's work environment hostile or abusive. See, e.g., Turner, 595 F.3d at 686.
Nevertheless, to survive summary judgment, Reich must establish a valid basis for imposing employer liability. See Lambert v. Peri Formworks Sys., Inc., 723 F.3d 863, 866-867 (7th Cir. 2013). Two bases for imposing employer liability exist under Title VII. If a "supervisor" commits the alleged harassment and it culminates in a tangible employment action, the employer is strictly liable for the harassment, subject to any available affirmative defenses. See Vance v. Ball State Univ., — U.S. —, 133 S. Ct. 2434, 2439, 186 L. Ed. 2d 565 (2013); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998). If the alleged harasser is the victim's co-worker, the employer is liable only if it was negligent in discovering or remedying the harassment. See Vance, 133 S. Ct. at 2439; see also Lambert, 723 F.3d at 866.
A "supervisor" for purposes of vicarious liability under Title VII is an individual empowered "to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Vance, 133 S. Ct. at 2443 (internal quotation marks omitted). Miller does not qualify as supervisor for purposes of vicarious liability under Title VII; however, Reich reported directly to Gadberry. He was her immediate supervisor and, as such, had input in decisions to promote, demote, discipline or terminate Reich. Reich has come forward with evidence that Gadberry avoided her, refused to sign off on her team's goals, solicited negative feedback, and "pitted" other directors against her.
Although there is no evidence that Gadberry was involved in the decision to terminate Reich's position after she arguably accepted the newly created position, SWO would have to assert an affirmative defense that it exercised reasonable care or diligence to prevent and correct harassing behavior and that Reich failed to take advantage of any preventive or corrective opportunities to avoid harm. If SWO establishes both of these, it is not liable for Gadberry's conduct. Burlington Indus. Inc., 524 U.S. at 765. Reich has created genuine issues of material fact as to whether SWO exercised reasonable care to prevent and correct harassing behavior as it appears that SWO did not commence an investigation after Reich first reported her concerns. Instead, the investigation commenced after Reich filed a written complaint.
On the other hand, the court notes that Miller was Reich's peer and was not a supervisor when Reich says he forcibly pushed her and stuck his tongue down her throat. Hence, Reich must establish that SWO was negligent in discovering or remedying Miller's harassment. See Vance, 133 S. Ct. at 2439; see also Lambert, 723 F.3d at 866. Consequently, Reich must show that SWO had notice of Miller's behavior. "Notice that is sufficient to trigger employer liability must be given to either someone with authority to take corrective action or, at a minimum, someone who could 'reasonably be expected to refer the complaint up the ladder to the employee authorized to act on it.'" Lambert, 723 F.3d at 866-67 (quoting Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1037 (7th Cir. 1998)). If the employer has established procedures for reporting complaints of harassment, "the complainant ordinarily should follow that policy in order to provide notice sufficient for the employer to be held responsible, unless the policy itself is subject to attack." Id., 723 F.3d at 867. The focus of the notice inquiry remains on whether the complainant adequately alerted his employer to the harassment, "not whether [the complainant] followed the letter of the reporting procedures set out in the employer's harassment policy." Cerros, 398 F.3d at 952-53.
Reich has submitted evidence that she complained to three directors: Berchtold, Grove and Davis. Reich told Berchtold about Miller shortly after the incident in February of 2011, and about the Gadberry texts on April 4, 2011. Reich spoke with Grove about Miller and Gadberry on May 6, 2011, and with Davis on May 6, 2011. In addition, she complained to Paavola, SWO's Human Resources Manager, on May 10, 2011. To the extent that the statements of these corporate actors may qualify as an exception to hearsay and consequently admissible, there is evidence that they perceived the conduct Reich described to be harassment; recommended that Reich take steps to protect herself; and suggested that complaining could make Reich's situation worse. Thus, a jury must decide whether SWO was negligent in discovering or remedying any harassment that occurred after Reich's initial reports to the various managers or directors identified above.
Additionally, Reich has argued that she is asserting a claim of quid pro quo sexual harassment although the claim is not stated in the complaint. Quid pro quo sexual harassment "occurs in situations where submission to sexual demands is made a condition of tangible employment benefits." Bryson v. Chicago State Univ., 96 F.3d 912, 915 (7th Cir. 1996). Such a theory of harassment requires a plaintiff to show: "(1) that she or he is a member of a protected group, (2) the sexual advances were unwelcome, (3) the harassment was sexually motivated, (4) the employee's reaction to the supervisor's advances affected a tangible aspect of her employment, and (5) respondeat superior has been established." Id. at 915 (emphasis added).
Reich has come forward with evidence establishing that she was a member of protected group and that she received a text message and an e-mail containing sexual innuendos from her direct supervisor - the Vice President of SWO's U.S. operations. However, this is not the type of evidence that would support a quid pro quo claim, because there is no evidence that Gadberry made sexual demands or requested sexual favors that were tied to the elimination of Reich's ISM position. It is undisputed that on April 19, 2011, the SWO Board determined that it would reorganize the U.S. operations and eliminate Reich's ISM position, and that Gadberry had no knowledge that Reich's position had been eliminated prior to May 18, 2011. Assuming Reich accepted the new position, there is no evidence that Gadberry participated in Winter's decision to terminate her on July 8, 2011. Nevertheless, Reich may proceed on her hostile work environment claim.
As a final matter, Reich alleges retaliation. To avoid summary judgment, Reich can proceed under the direct or the indirect method of proof. Tomanovich v. City of Indianapolis, 457 F.3d 656, 662-63 (7th Cir. 2006). Using the direct method of proof, Reich must show that "(1) she engaged in statutorily protected activity; (2) suffered an adverse employment action taken by the employer; and (3) there was a causal connection between the two." See Northington v. H & M Int'l, 712 F.3d 1062, 1065 (7th Cir. 2013). On the other hand, the indirect method of proof requires a prima facie case of retaliation by showing that: (1) she lodged a complaint about harassment; (2) she suffered a materially adverse action; (3) she was meeting her employer's legitimate expectations; and (4) she was treated less favorably than similarly-situated employees who did not complain. Rogers v. City of Chicago, 320 F.3d 748, 754 (7th Cir.2003).
Under the direct method, Reich has evidence that she filed a complaint of sexual harassment and that SWO terminated her employment after she accepted the new position. The key is whether the protected activity was a but-for cause of the adverse employment actions. See University of Tex. Sw. Med. Ctr. v. Nassar, — U.S. —, —, 133 S. Ct. 2517, 2533, 186 L. Ed .2d 503 (2013). That is, she must prove that "the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." Id.; see also Hobgood v. Illinois Gaming Bd., 731 F.3d 635, 643 (7th Cir. 2013).
There is a genuine issue of material fact as to whether SWO terminated Reich's employment after she complained of sexual harassment. There is no dispute that there was a reorganization of SWO that included the elimination of the ISM position. On the other hand, Reich was offered another position within SWO. She raised her harassment claims with Paavola on May 10, 2011, at which time Paavola responded that raising the claims would make things worse for Reich. Notwithstanding Paavola's warning, Reich filed her formal complaint on May 19, 2011, and SWO's subsequent investigation continued through June 29, 2011.
Reich offered to resolve the complaint on June 17, 2011, with a severance or by returning to SWO as a Director U.S. VAR Assist. In response, Kurlinski made a clear offer to Reich to pay her a severance or to allow her to continue in the new VAR Partner Manager position. Reich responded that she could not accept the severance and therefore would be forced to return in the role of VAR Assist Partner Manager. Her e-mail stated:
Having said that, I will return to Software One and perform my job to the same high standards as before. I simply ask that the company provide me with a job description, goals, expectations, duties, etc. Prior to my return so I know exactly what is expected of me in this role. Due to the environment that has been created by both Craig and Peter with regards to the New Berlin teamKurlinkski's secretary sent the wrong job description, which prompted Reich to send another e-mail addressing the investigation and expressing her concern that she was being set up to fail in a new position. Kurlinksi replied "I just received this and will need to review it with the Company. In the meantime, we ask that you not return to work. I will be in touch." Whether the July 8, 2011, memorandum from Winter was an acceptance of resignation or a carefully orchestrated termination by SWO is a question of fact that cannot be resolved on this record. Consequently,
(Management and staff alike), I would like the option to work from home with access to the office; similarly to how our remote U.S. staff and global teams work. It would be greatly appreciated if this information would be sent to me prior to returning to work on July 5th.
IT IS ORDERED that defendant's motion for summary judgment is denied. Plaintiff may proceed to trial on her hostile work environment and retaliation claims.
IT IS FURTHER ORDERED that the parties shall appear for a final pretrial conference on October 21, 2014, at 2:30 p.m., in Courtroom 222.
Dated at Milwaukee, Wisconsin, this 28th day of August, 2014.
BY THE COURT
/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. DISTRICT JUDGE