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Thursday, July 24, 2014 |  Madison, WI: 63.0° F  A Few Clouds
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Madison Water Utility workers allege bias, retaliation
In one case, state finds probable cause to believe city broke the law

Borchardt: 'What's going on down there?'
Borchardt: 'What's going on down there?'
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Asked for his assessment of what is happening to his client, Madison Water Utility employee Peggy Wischhoff, attorney Jeff Scott Olson doesn't hold back: "They're trying to either give her a nervous breakdown or set her up for firing, one or the other."

In a complaint filed in March with the state Equal Rights Division, Olson alleges that the city discriminated against Wischhoff on the basis of sex and retaliated when she complained. The complaint itemizes some of what Olson calls "literally dozens of unfair behaviors and statements being made on an almost daily basis."

Another Water Utility employee, Nickolas Malacara, filed an ERD complaint in June, alleging discrimination on the basis of race, and retaliation.

Neither complaint has been adjudicated to a conclusion, but Wischhoff's complaint has led to a finding of probable cause.

Former Madison Ald. Dorothy Borchardt is troubled by what she's heard of turmoil at the Water Utility, where recurring problems led to the ouster of general manager David Denig-Chakroff in 2007. Most accounts suggest that morale within the agency has improved, but Borchardt wonders.

"What's going on down there?" she asks. "Have we really fixed anything, or are we just going after city employees?"

As Isthmus reported last year ("Allegations Fly at Madison Water Utility," 12/18/08), several Water Utility workers filed complaints with the city's Civil Rights Department, alleging discrimination. These included complaints from Wischhoff and Malacara, alleging that then-City Engineer Larry Nelson made untruthful comments about them. (In its earlier accounts, Isthmus did not name the employees; it is doing so now because they have filed Equal Rights Division complaints, a public process.)

Some of the assertions in these complaints were inaccurate or overstated, but an investigation by the mayor's office did find that Nelson "tested the bounds of confidentiality" in the remarks he admitted making ("Cieslewicz's Office Closes Door on Complaints," 1/9/09).

The mayor's office and Civil Rights Department agreed there was no evidence of discrimination or retaliation in any of the complaints from Water Utility employees ("Bias Complaints Circling the Drain," 1/8/09).

That judgment has been cast into question by the ERD, which in July found probable cause (PDF) to believe that the city's treatment of Wischhoff violated Wisconsin's Fair Employment Act.

Equal Rights Officer Catherine Manakas wrote in her decision that the city's decision to strip Wischhoff of supervisory duties "appears to be discriminatory under the act." She also said the city "has not provided believable evidence" that Wischhoff's reclassification was not discriminatory.

A hearing was ordered but no date has been set. Olson, a veteran civil rights attorney, says probable cause is found in only about 25% of ERD complaints. He's not surprised the probe by the city's Civil Rights Department exonerated city officials.

"[Such offices] exist to siphon off energy that might otherwise be employed productively," he says. "They never end up pointing a finger of blame at the entity that feeds them, and they never take corrective action."

Early this month, Olson filed another complaint, alleging that Wischhoff "has endured ongoing harassment, discrimination and retaliation" since filing her earlier complaints. This has caused "extreme amounts of stress and anxiety."

The new complaint charges that Wischhoff has been subjected to unfair work rules, unmanageable workloads and unreasonable evaluations. It says she's been denied assistance and opportunities offered to male coworkers, and made to perform an "extreme amount of typing" that has led to a diagnosis of carpal tunnel syndrome in both wrists.

Asked about employee bias complaints, Water Utility spokeswoman Gail Gawenda says, "I don't have a clue and nobody around here would."

City Human Resources director Brad Wirtz, to whom Gawenda deferred, was unaware of the probable cause finding or the latest ERD complaint until contacted by Isthmus. But he says, based on what he knows of the matter, "I can't imagine how anyone could find [Wischhoff's] reassignment was done in a discriminatory manner." He adds that after a hearing is held, "I'll assume you'll find a different conclusion."

Madison risk manager Eric Veum says that, as of Nov. 12, the city's insurer has paid $7,967 to a local law firm to defend the city against Wischhoff's complaint, and $2,547 in connection with Malacara's complaint. (The city also spent $29,526 to successfully defend against a bias lawsuit brought by Malacara in 2000.) These legal fees are paid by the insurer, not the city, but can affect premiums.

Borchardt is concerned about these costs and what the complaints say about the city's work environment. "What I'm hearing is that if you complain, you're on the list," she says. "I want to get to the bottom of it."

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