Jurors award employee $1.8M on discrimination and discharge claims

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Federal court jurors returned a $1.8 million verdict for the plaintiff in a lawsuit alleging race and sex discrimination and constructive discharge against defendant Kenneth Black.

The award consisted of $1.5 million as punitive damages and $300,000 to compensate the plaintiff, Gary Wistrom, for the harm caused by the defendant’s conduct.

Judge William Conley entered judgment Oct. 1 in favor of the plaintiff in the total amount of the verdict.

According to court documents, the plaintiff was a white male and former employee of the Wisconsin Department of Veterans Affairs in Madison. He brought claims against the defendant under 42 U.S.C. § 1981 for retaliation, constructive discharge and other employment discrimination based on job reassignment, Equal Protection claims via 42 U.S.C. § 1983 based on race and gender.

The plaintiff alleged Black had reassigned him to a new position within the VA, which constituted discrimination and also led to his constructive discharge. The plaintiff argued that his reassignment constituted discrimination because he had opposed Black’s alleged discriminatory practices against white males.

Specifically, Wistrom was hired by the VA in October 2001 as a limited-term employee. In April 2002, the VA hired him as a permanent employee under the veteran’s preference standard, which was afforded to veterans who are 30 percent or more disabled. Wistrom said he worked as the assistant administrator at the VA’s Wisconsin Veteran’s Home in Union Grove. He said he attended a meeting March 4, 2010, with several other VA personnel, including Black, during which Black allegedly made unsolicited comments regarding his views on how to better serve the veteran community that included words to the effect that the VA employed “too many old white males.”

Wistrom stated that: “As a then 60-year-old white male [he] believed Black’s statement to be unfounded, improper, and discriminatory, in addition to a blatant threat to his status as an employee of the [VA].”

In September 2010, an attorney representing a former VA employee requested an affidavit from Wistrom regarding his knowledge of Black’s alleged statement about “too many old white males” and Wistrom said he submitted a sworn affidavit that included details of that statement. Black allegedly knew about the affidavit and on Oct. 6, 2010, Wistrom was reassigned to the position of director, policy and program compliance, Division of Veterans Homes at the VA’s central office in Madison.

After requesting additional time, Wistrom said he was given until Oct. 26 to report to the reassigned position, but was given no other meaningful information about the reassignment despite multiple requests for such information. Wistrom said he suffered from disabilities which made a commute of more than 200 miles per day to his reassigned position extremely difficult and harmful to his conditions.

Wistrom reported to Madison on Oct. 25 and, after the 108-mile drive there, he reportedly became ill and returned to his home in Kenosha. He determined he could not make the daily commute to Madison and therefore, had no reasonable alternative other than to retire from his employment with the VA. He reportedly submitted his retirement to be effective the close of business Oct. 26. The plaintiff argued he was thus constructively discharged from his employment.

Black filed a motion for summary judgment, arguing that as a matter of law, the plaintiff’s Section 1981 claims could not lie against him as a state actor. He also argued that the undisputed facts would show that the plaintiff could not make out a prima facie case or prove intentional discrimination with regard to any of his claims. The court denied the defendant’s motion for summary judgment.