In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-3962

GERHARD WITTE,

Plaintiff-Appellant,

v.

WISCONSIN DEPARTMENT OF CORRECTIONS, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 03-C-0438-C—Barbara B. Crabb, Chief Judge.

____________

ARGUED JUNE 6, 2005—DECIDED JANUARY 23, 2006

____________

Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. 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
2 No. 04-3962

and numerous individuals associated with the Department.

The district court granted summary judgment for

all defendants, and we affirm.

I

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
No. 04-3962 3

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
4 No. 04-3962

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
No. 04-3962 5

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 predisciplinary 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
6 No. 04-3962

alleged that the defendants violated his due process rights

in the way they handled his disciplinary proceedings and

that he was constructively discharged by being subjected to

a hostile work environment.

The defendants moved for summary judgment on the

retaliation claims. On September 17, 2004, the court

granted the defendants’ motion after concluding that

Witte’s speech was not protected under the federal or

state constitution. Because the defendants did not mention the due process claim in their motion, however, the

court directed Witte to advise the court if he was still

pursuing the claim, and if so, to explain its nature

and scope. Witte responded that the intolerable working

conditions to which the defendants subjected him amounted

to a constructive discharge. He alleged that the defendants

had engaged in “a campaign of harassment,” which included

petty and false allegations against him and sham investigations and disciplinary proceedings. The defendants moved

for summary judgment on this claim. On November 4, 2004,

the court ruled that Witte had not demonstrated that he

had been constructively discharged and that in the alternative, even if defendants’ conduct amounted to a constructive

discharge, Witte was not deprived of due process. Witte

appeals, arguing that the district court erred in granting

summary judgment on his due process and whistle-blower

claims.

II

To prevail on a claim for constructive discharge, a

plaintiff must prove both that the defendant engaged in

“harassing behavior sufficiently severe or pervasive to alter

the conditions of [her] employment,” and that “the abusive

working environment became so intolerable that her

resignation qualified as a fitting response.” Pennsylvania

State Police v. Suders, 542 U.S. 129, 133-34 (2004) (internal
No. 04-3962 7

quotations omitted). Although Suders addressed the topic

of constructive discharge in the context of a Title VII

hostile-environment claim, we have held that the same

general approach applies equally to constructive discharge

claims brought under the due process clause. See Levenstein

v. Salafsky, 414 F.3d 767, 774 (7th Cir. 2005). “Creation of

a hostile work environment is a necessary predicate to a

hostile-environment constructive discharge case.” Suders,

542 U.S. at 149. Working conditions for constructive

discharge must be even more egregious than those that

would support a finding of a hostile work environment;

absent extraordinary circumstances, an employee is

expected to remain employed while seeking redress. Herron

v. DaimlerChrysler Corp., 388 F.3d 293, 303 (7th Cir. 2004).

Witte argues that he meets this demanding test. A trier

of fact could find (he contends) that the defendants engaged

in a conspiracy to cause him relentless stress and anxiety

that ultimately forced him to take a medical leave of

absence, equivalent to a resignation. He claims that the

record is replete with evidence showing that he was subjected to a “steady barrage of false allegations and petty

charges” and sham investigations and pre-disciplinary

proceedings, and he faults the district court for failing to

take full account of these facts in the light most favorable

to him, as it should have done at the summary judgment

stage.

But at the outset, Witte confronts two threshold problems. The first is substantive: he has sued the Wisconsin

Department of Corrections under 42 U.S.C. § 1983, but it is

well established that the “state,” which the DOC is for this

purpose, is not a “person” that may be sued under that

statute. See Will v. Michigan Dept. of State Police, 491 U.S.

58, 66-67 (1989). That reason alone is enough for us to

affirm the district court’s summary judgment in favor of the

DOC. The remainder of our discussion applies only to the

individual defendants. As for them, Witte’s first problem is
8 No. 04-3962

procedural. In reviewing Witte’s claim, the district court

considered only those facts that were presented in a way

that complied with its standing instructions. From this

standpoint, it found that Witte had not done enough to put

the facts proposed by the defendants into dispute. (The

Western District of Wisconsin’s website directs one to a

document entitled “Helpful Tips for Filing a Summary

Judgment Motion in Cases Assigned to Judge Barbara B.

Crabb.” See http://www.wiwd. uscourts.

gov/assets/pdf/bbc_proc_mo_sum_judg.pdf. Chief Judge

Crabb’s “helpful tips” are quite typical of the procedures

normally required by local rule.) All facts necessary to

sustain a party’s position on a motion for summary judgment must be explicitly proposed as findings of fact, and the

judge will not search the record for factual evidence. Each

proposed fact must be set out in a separate, numbered

paragraph, followed by specific references to admissible

evidence that supports it. The non-moving party must

respond to the moving party’s proposed facts by answering

each numbered fact proposed by the moving party in

separate paragraphs, using the same numbering system.

Finally, the judge will accept a fact properly proposed by

one side as undisputed unless the other side properly

responds to the proposed fact and establishes that it is in

dispute. District courts have broad discretion to control the

proceedings before them, and here as elsewhere we review

the district court’s approach only for an abuse of discretion.

Compare Koszola v. Bd. of Educ., City of Chicago, 385 F.3d

1104, 1109 (7th Cir. 2004) (addressing local rules).

The court found that Witte’s statement of facts did not

comply with its requirements. Most of Witte’s responses to

the defendants’ proposed facts were off point. In some

instances, the evidence to which he cited did not demonstrate a real dispute. More seriously, Witte cited to evidence

in the record that was inadmissible hearsay, or he simply

repeated his contentions instead of pointing to evidentiary
No. 04-3962 9

support for them. For example, in response to the defendants’ proposed facts describing each investigation and

disciplinary action taken, Witte said only that they concerned “false and petty allegations,” and that

the proceedings were pretextual. He cited to his own affidavit which repeated the same statements without any

reference to evidence. This is not the kind of statement

on personal knowledge that may properly be considered

in an affidavit. Instead, it is just a self-serving conclusion that is insufficient by itself to defeat a motion for

summary judgment. See Albiero v. City of Kankakee, 246

F.3d 927, 933 (7th Cir. 2001). Thus, we find that the court

did not abuse its discretion when it limited its review to the

proposed facts that complied with its instructions.

Based on the facts properly before the district court, we

too find that no reasonable trier of fact could find that Witte

was constructively discharged. We accept as true that from

2000 on, he was subjected to a steady stream of complaints,

disciplinary proceedings, and the occasional sanction. But

Witte presented no evidence that would support a finding

that the defendants took these actions solely to harass him.

Instead, the record shows that the defendants were responding to complaints from both inmates and the HSU

staff. Witte does not even claim that the DOC violated its

own policies when it looked into the various matters. His

constructive discharge claim thus fails at the threshold: he

cannot show, as Suders requires, that the defendants

created a hostile work environment to begin with. See

Suders, 542 U.S. at 149. (We note that there is also a

serious question whether he satisfies the “discharge”

element of this claim, given the fact that he stands ready to

return to work as soon as the defendants “cease their

hostile actions once and for all.” Given our conclusion with

respect to this theory, we have no need to resolve this

point.)
10 No. 04-3962

III

Witte also appears to be challenging the procedures that

DOC used in connection with his alleged constructive discharge. Given our conclusion that he was not constructively

discharged at all, these procedural claims must also fail.

Even if we gave Witte the benefit of the doubt on the

discharge question, however, his procedural complaints are

without merit. It is undisputed that he had the right to file

a grievance after any of the alleged harassing disciplinary

charges, but (with the exception of the successful grievance

that resulted in his reinstatement) he never did so. Importantly, he never filed a grievance after he took his extended

medical leave of absence allegedly because he concluded

that he had constructively been discharged. Witte concedes

that he is entitled to a pre-disciplinary hearing if and when

he returns to work. There is nothing in this record to

suggest that such a hearing would be futile, or, more

importantly, that the post-termination procedures available

to him would be unavailing. See generally Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532 (1985).

Perhaps the most telling fact for this purpose is

Witte’s failure to take advantage of the preventive and

corrective opportunities available to him, such as filing

a grievance with his union. He was successful when he

grieved his termination before the arbitrator and has

presented no evidence that another appearance before an

arbitrator would be a sham proceeding. As the district court

observed, citing Wozniak v. Conry, 236 F.3d 888, 890 (7th

Cir. 2001), “[o]ne who has spurned an invitation to explain

himself can’t complain that he has been deprived of an

opportunity to be heard.” That describes Witte’s situation

perfectly. The district court’s summary judgment for the

defendants was equally correct if we understand his

argument as a procedural one.
No. 04-3962 11

IV

Finally, we consider Witte’s attempt to present a retaliation claim, under either the First Amendment or Wisconsin’s whistle-blower statute, Wis. Stat. § 895.65. The

district court dismissed this claim on the grounds that

Witte’s speech was not protected under either the federal or

the state constitution. Witte concedes this point, which

eliminates any chance for relief under § 1983 and the First

Amendment. He argues, however, that the court failed to

consider an alternative ground for relief under the Wisconsin statute, namely, retaliation because “the employer or

employer’s agent believes that the employee so exercised his

or her [First Amendment or Wis. Const. Art. I, sec. 3]

rights.” Wis. Stat. § 895.65(2). Witte argues that even if the

employee’s speech is unprotected, the statute protects the

employee when the employer retaliates against him under

the mistaken belief that the speech was protected. The

defendants do not read the statute this way. In their view,

the word “believes” modifies the word “employee,” and thus

the phrase means that as long as protected speech is

involved, the statute protects an employee who had not

engaged in the specified conduct but was subject to retaliation because the employer erroneously thought that he

(rather than another person) had done so.

Although the question of how properly to interpret the

state statute may be an interesting one, we need not resolve

it here. As the defendants point out, Witte failed to raise

this theory in his brief in opposition to the defendants’

motion for summary judgment. Instead, he relied exclusively on the argument that he had engaged in protected

speech. The defendants certainly so understood his position,

because they wrote in their reply brief in the district court

that “Plaintiff does not contest and, therefore, concedes

Defendants’ position that free speech rights under the

Wisconsin and United States Constitutions are coextensive

and that therefore Plaintiff’s claims stand or fall on the
12 No. 04-3962

same legal analysis. Plaintiff does not contest, and therefore, concedes Defendants’ position that if Witte’s speech is

not constitutionally protected, his claim under Wis. Stat.

§ 895.65(1) also fails.” Witte apparently mentioned the new

theory in the last four pages of his rebuttal brief, but those

pages are missing from the record. The omission is unimportant, however, because this was too late in any event to

raise a new theory.

We agree with the defendants that Witte forfeited his

alternative argument under § 895.65(2). By failing to

raise it in his brief opposing summary judgment, he lost the

opportunity to urge it in both the district court and this

court. See Schoenfeld v. Apfel, 237 F.3d 788, 793 (7th Cir.

2001); United States v. Andreas, 150 F.3d 766, 769 (7th Cir.

1998).

The judgment of the district court is AFFIRMED.
No. 04-3962 13

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-23-06