Melgaard, Michael v. Harrenstein, Bryan

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MICHAEL MELGAARD,
Plaintiff,
v.
WISCONSIN DEPARTMENT OF NATURAL
RESOURCES, BRYAN HARRENSTEIN, and
JEREMY PEERY,
Defendants.
OPINION and ORDER
24-cv-561-jdp
Plaintiff Michael Melgaard was a lieutenant conservation warden for defendant
Wisconsin Department of Natural Resources. Melgaard testified in support of his colleague’s
age and sex discrimination complaint against DNR, and he alleges that DNR retaliated against
him because of it.
Melgaard brings First Amendment retaliation claims under 42 U.S.C. § 1983 against
his supervisors at DNR, defendants Bryan Harrenstein and Jeremy Peery. He also brings a
retaliatory hostile work environment claim against DNR under Title VII of the Civil Rights Act
of 1964. He seeks compensatory and punitive damages.
Defendants move for summary judgment, Dkt. 26, and the court will grant their
motion. Melgaard’s First Amendment retaliation claims are barred by sovereign immunity
because he seeks damages arising from his employment with the state. His Title VII claim fails
on the merits because he has not shown that DNR’s conduct was so severe or pervasive that it
altered the terms and conditions of his employment.
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BACKGROUND
In 2017, defendant Wisconsin Department of Natural Resources hired plaintiff Michael
Melgaard as a lieutenant conservation warden for its Division of Public Safety and Resource
Protection. In October 2020, Melgaard competed for a promotion to a captain regional warden
position. One of Melgaard’s coworkers also sought the promotion. Neither Melgaard nor his
coworker received the promotion. Instead, defendant Bryan Harrenstein was promoted to
captain and became Melgaard’s immediate supervisor. Defendant Jeremy Peery became
Harrenstein’s supervisor. After Melgaard did not receive the promotion, he filed an age
discrimination complaint against DNR with Wisconsin’s Equal Rights Division. Melgaard’s
coworker also filed an age and sex discrimination complaint against DNR. Melgaard supported
his coworker in her decision to file the complaint and in her prosecution of it.
Melgaard’s decision to support his coworker’s discrimination complaint is the protected
activity at the core of this lawsuit. He contends that he was retaliated against for this protected
activity in three ways: he was (1) investigated for possibly violating DNR’s COVID-19 policies;
(2) issued a Letter of Expectations explaining these policies and advising him of his work
responsibilities; and (3) given a negative performance review, part of which referenced his
violation of the COVID-19 policies.
A. Investigation
In the fall of 2021, following a lack of staff compliance with DNR’s COVID-19 safety
protocols, DNR decided that further reports of violations needed to be investigated. On
November 15, 2021, a member of DNR leadership issued a memorandum to all conservation
wardens stating that “employees traveling by motor vehicle must ride alone in vehicles,” unless
a safety issue made driving separately impossible. Dkt. 45, ¶ 52.
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On November 16, 2021, Melgaard told Harrenstein over the phone that he was riding
in a vehicle with another conservation warden. After the phone call with Melgaard, Harrenstein
contacted Human Resources about Melgaard’s potential violation of the COVID-19 policies.
He spoke with Andrea Augle, an employment relations specialist, who determined that an
investigation 	was 	warranted. 	DNR 	investigated 	Melgaard’s 	conduct 	from 	mid- 	to
late-December 2021. On January 2, 2022, Harrenstein, Augle, and Peery met regarding the
investigation. They determined that no formal disciplinary action against Melgaard was
necessary. The next day, Melgaard received a letter confirming DNR’s decision.
B. Letter of Expectations
On February 4, 2022, DNR issued Melgaard a Letter of Expectations. These types of
letters are not considered to be disciplinary, and they do not affect an employee’s cumulative
disciplinary record. Harrenstein drafted it. Melgaard’s Letter of Expectations provided him
additional guidance regarding DNR’s COVID-19 policies and DNR’s expectations for him in
his supervisory role.
C. Performance review
On September 30, 2022, Harrenstein reviewed Melgaard’s performance for the
2021–22 year. Melgaard received all “Solid Performance” and “Exceeds Expectations” ratings
for the individual performance objectives. But he received “Progress Necessary” ratings for
three DNR performance objectives, apparently a further consequence from the COVID-19
policy problem. To explain Melgaard’s “Progress Necessary” rating, Harrenstein wrote: “During
this review period Mike made a decision that went against guidance provided by Division/Dept.
leadership. Mike did not take ownership of this decision when the mistake was addressed and
attributed his mistake to unclear guidance.” Id., ¶ 136.
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Melgaard filed a rebuttal to the performance review with the Bureau of Human
Resources. He contended that the performance review contained inaccuracies and untrue
claims, and he requested that the “Progress Necessary” ratings be changed to “Solid
Performance” ratings. On December 23, 2022, the Bureau rejected Melgaard’s rebuttal and
determined that the performance review was justified.
On March 7, 2023, Melgaard emailed Harrenstein that he was retiring. Before Melgaard
retired, Harrenstein conducted a final performance review for Melgaard. The final performance
review included all “Successful Performance” ratings. Melgaard’s last day of work at DNR was
March 27, 2023. He officially retired on January 9, 2024.
The court will discuss additional facts as they become relevant to the analysis.
ANALYSIS
Melgaard brings First Amendment retaliation claims against Harrenstein and Peery
under § 1983. He also brings a retaliation claim against DNR under Title VII. Melgaard
contends that defendants took three actions against him in retaliation for supporting his
coworker’s discrimination complaint. Melgaard concedes that none of these actions are
sufficient on their own to support a retaliation claim. But he argues that they had the
cumulative effect of creating a retaliatory hostile work environment.
Defendants move for summary judgment on the entire complaint. Dkt. 26. This court
will grant their motion if the material facts are undisputed and defendants are entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). The court will view the summary judgment
evidence in the light most favorable to Melgaard and draw all reasonable inferences in his favor.
Lesiv v. Ill. Cent. R.R. Co., 39 F.4th 903, 908 (7th Cir. 2022). But it is Melgaard’s burden to
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provide sufficient evidence for a jury to return a verdict in his favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986).
A. First Amendment retaliation claims against Harrenstein and Peery
Defendants raise a threshold issue: whether Melgaard’s First Amendment retaliation
claims against Harrenstein and Peery are barred by sovereign immunity. See Dkt. 31, at 10–13.
The court need not address the merits of Melgaard’s First Amendment retaliation claims
because the sovereign immunity issue is dispositive.
1. 	Sovereign immunity principles
Sovereign immunity is “the privilege of the sovereign not to be sued without its
consent.” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 253 (2011). The Eleventh
Amendment recognizes this privilege and generally prohibits private parties from suing states
in federal court absent their consent. See Driftless Area Land Conservancy v. Valcq, 16 F.4th 508,
520 (7th Cir. 2021); Gerlach v. Rokita, 95 F.4th 493, 498 (7th Cir. 2024).
There is an exception: Congress may abrogate the states’ sovereign immunity by
exercising its power under the Fourteenth Amendment to authorize such lawsuits. See Coll. Sav.
Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). Congress
abrogated the states’ sovereign immunity when it enacted Title VII. See Nanda v. Bd. of Trs. of
Univ. of Ill., 303 F.3d 817, 831 (7th Cir. 2002). But it did not do so when it enacted § 1983.
See Quern v. Jordan, 440 U.S. 332, 342–44 (1979). As a result, states cannot be sued under
§ 1983 without their consent. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66–67 (1989).
A state’s sovereign immunity extends to state officials when they are sued in their
official capacity because those lawsuits are “against the official’s office,” and so, are “no
different from a suit against the State itself.” Id. at 71. In contrast, private parties can typically
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sue state officials in their individual capacities without raising sovereign immunity concerns.
See Hafer v. Melo, 502 U.S. 21, 31 (1991).
But even when private parties sue state officials in their individual capacities, courts
must consider whether those claims “demonstrably [have] the identical effect as [claims]
against the state.” Luder v. Endicott, 253 F.3d 1020, 1023 (7th Cir. 2001) (emphasis omitted);
see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984). Individual-capacity
claims are effectively against the state when the state would (or should) pay a judgment in the
plaintiff’s favor. See Gerlach, 95 F.4th at 501; Lenea v. Lane, 882 F.2d 1171, 1178 (7th Cir.
1989). If a plaintiff’s individual-capacity claims are effectively against the state, sovereign
immunity bars those claims, Luder, 253 F.3d at 1023, and courts must dismiss them without
prejudice, see McHugh v. Ill. Dep’t of Transp., 55 F.4th 529, 532–35 (7th Cir. 2022); Morgan v.
Fed. Bureau of Prisons, 129 F.4th 1043, 1052 (7th Cir. 2025).
2. 	Seventh Circuit caselaw
A pair of Seventh Circuit cases illustrates the principle that individual-capacity claims
are effectively claims against the state itself, and thus barred by sovereign immunity, when they
seek to recover the benefits of state employment.
Consider first the Seventh Circuit’s decision in Omosegbon v. Wells, 335 F.3d 668 (7th
Cir. 2003). In that case, Indiana State University chose not to renew Omosegbon’s contract as
an untenured junior faculty member. Omosegbon, 335 F.3d at 671. As most relevant here,
Omosegbon sued university officials in their individual capacities under § 1983, contending
that they deprived him of his rights to due process and academic freedom. See id. at 671–73.
The Seventh Circuit held that Omosegbon could not bring claims under § 1983 against these
individuals in their individual capacities. See id. at 673. The court reasoned that Omosegbon
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sought “backpay and other forms of monetary compensation based on an employment
contract,” and the university officials were not “parties to the contract in their individual
capacity.” Id. The court concluded that it was “inescapable that any resulting judgment will be
paid by the state rather than the individual defendants,” so Omosegbon’s claims against the
university officials were not bona fide individual-capacity claims. Id.
Second, consider the Seventh Circuit’s decision in Haynes v. Indiana University, 902 F.3d
724 (7th Cir. 2018). The plaintiff in Haynes, an assistant professor at Indiana University, lost
his bid for tenure. Haynes, 902 F.3d at 728. As most relevant here, Haynes sued university
administrators in their individual capacities under 42 U.S.C. § 1981, contending that he was
denied tenure because of his race. See id. at 729. The Seventh Circuit held that Haynes’s
individual-capacity claims against the university administrators were barred by sovereign
immunity. See id. at 732. The court reasoned that Haynes was “materially the same” as
Omosegbon because the university administrators “were not parties to Haynes’s employment
contract in their individual capacities,” so the court had “no reason to believe that they, rather
than the University, would foot the bill for a resulting judgment.” Id.
This court recently applied Omosegbon and Haynes in its decision in Hoffman v. Board of
Regents of University of Wisconsin System, No. 23-cv-853-jdp, 2025 WL 1504376 (W.D. Wis.
May 27, 2025). The plaintiff in Hoffman, a white woman, was appointed as the interim director
of the University of Wisconsin–Eau Claire’s Multicultural Student Services department.
See Hoffman, 2025 WL 1504376, at *1–2. Hoffman’s supervisor removed her from this interim
position after her appointment was criticized by students, faculty, and staff; Hoffman was also
transferred to another department and removed as an instructor of a general education course.
See id. at *2–3. As most relevant here, Hoffman sued the university’s chancellor and its
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affirmative action coordinator, asserting hostile work environment, discrimination, and
retaliation claims against them under § 1981 and § 1983. See id. at *3. This court held that
Hoffman’s individual-capacity claims were barred by sovereign immunity. See id. at *4. This
court reasoned that Hoffman’s individual-capacity claims were “identical to Omosegbon and
Haynes in all material respects, because she assert[ed] that [the chancellor] and [the affirmative
action coordinator] denied Hoffman employment opportunities she would have received from
the state in the absence of race discrimination.” Id. at *5.
An underlying principle drives the sovereign immunity analysis in Omosegbon, Haynes,
and 	Hoffman: 	sovereign 	immunity 	bars 	a 	state-employed 	plaintiff 	from 	bringing
individual-capacity claims against state-employed supervisors or coworkers who deprived him
of rights, benefits, or opportunities arising from his employment relationship with the state. In
those circumstances, plaintiffs do not bring bona fide individual-capacity claims against
individual defendants; instead, the claims are effectively against the state itself because they
seek to recover the value of their state employment. The court will apply this principle to this
case.
3. 	Application to Melgaard’s case
Melgaard contends that Harrenstein and Peery retaliated against him for supporting his
coworker’s discrimination complaint, violating his First Amendment rights. See Dkt. 41, at
11–20. But Melgaard’s substantive argument is that his employment relationship with the state
entitled him to a retaliation-free work environment, and his work environment would have
been free from retaliation if not for Harrenstein and Peery’s actions. Melgaard’s individual-
capacity claims against Harrenstein and Peery are identical to those in Omosegbon, Haynes, and
Hoffman in all material respects—Melgaard, a state employee, seeks damages from other state
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employees because they interfered with his employment. As a result, his First Amendment
retaliation claims against Harrenstein and Peery are barred by sovereign immunity. The court
will dismiss those claims without prejudice.
Melgaard resists this conclusion for two reasons, neither of which are persuasive.
First, he contends that Wisconsin would be responsible for paying a judgment in his
favor only because it has chosen to indemnify state employees. See Dkt. 41, at 7–9; Wis. Stat.
§ 895.46(1). Melgaard is correct that a state’s decision to indemnify its employees, by itself,
“does not transform a suit against individual defendants into a suit against the sovereign.”
Benning v. Bd. of Regents of Regency Univs., 928 F.2d 775, 779 (7th Cir. 1991). The fact that a
state indemnifies its employees is irrelevant to the sovereign immunity analysis “because it is
the voluntary choice of the state, not a cost forced on it by the federal-court suit.” Luder,
253 F.3d at 1023 (citations omitted). But even when states indemnify their employees, courts
faced with individual-capacity claims against state employees still must consider whether the
claims “may really and substantially be against the state.” Id. If they are, then those claims are
barred by sovereign immunity. See Kraege v. Busalacchi, No. 09-cv-352-vis, 687 F. Supp. 2d 834,
837 (W.D. Wis. 2009) (Crabb, J.).
Second, Melgaard contends that the individual-capacity claims in Omosegbon and Haynes
were barred by sovereign immunity because the plaintiffs in those cases sought back pay, a
form of equitable relief. See Dkt. 41, at 10–11. Melgaard says this case is different because he
seeks only legal relief, namely compensatory damages for lost income, injury to his personal
reputation, mental and emotional distress, as well as punitive damages. See id. But the type of
relief doesn’t matter. When a plaintiff’s individual-capacity claims are effectively against the
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state, claims for relief against the state are barred by sovereign immunity, even if that relief is
compensatory in nature. See Gerlach, 95 F.4th at 500–01.
Melgaard’s First Amendment retaliation claims against Harrenstein and Peery are
barred by sovereign immunity. The court will dismiss those claims without prejudice.
B. Title VII claim against DNR
Melgaard purports to bring a retaliation claim against DNR under Title VII. See Dkt.
15, ¶ 503; Dkt. 41, at 26–28.1 But he concedes that none of DNR’s three actions were
sufficiently adverse to support a Title VII retaliation claim on their own. See Dkt. 41, at 22. In
the retaliation-claim context, courts generally consider each alleged retaliatory act to determine
whether it is sufficiently adverse. See Lewis v. Wilkie, 909 F.3d 858, 868 n.3 (7th Cir. 2018).
But Melgaard wants the court to consider the cumulative effect of DNR’s allegedly
retaliatory actions. See Dkt. 41, at 27. Lewis suggests that the cumulative effect is best
understood as a retaliatory hostile work environment claim rather than a retaliation claim. For
a hostile work environment claim, the question is “whether the aggregate effect of all [three]
incidents constituted a ‘sufficiently severe or pervasive’ hostile environment.” Lewis, 909 F.3d
at 868 n.3. Melgaard must show that DNR’s actions were “so severe or pervasive so as to affect
the terms and conditions of employment.” Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d
887, 901 (7th Cir. 2018); see Flanagan v. Off. of Chief Judge of Cir. Ct. of Cook Cnty., 893 F.3d
372, 375 (7th Cir. 2018) (per curiam).
1 In their opening brief, defendants say that “Melgaard intends to claim constructive discharge.”
Dkt. 31, at 30. But Melgaard disavows that he is bringing a constructive discharge claim in his
opposition brief, describing the constructive discharge issue as strictly a remedies question.
See Dkt. 41, at 28.
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The terms and conditions of Melgaard’s employment never changed. Melgaard received
modest negative feedback three times after he violated a DNR policy. It is undisputed that
(1) DNR 	determined 	that 	no 	formal 	disciplinary 	action 	was 	warranted 	following 	its
investigation into Melgaard; (2) Melgaard’s title, supervisory role, compensation, and benefits
all 	remained 	the 	same 	following 	his 	Letter 	of 	Expectations; 	and 	(3) Melgaard’s 	work
responsibilities did not change, and he was not placed on an improvement plan after his
negative performance review. No reasonable jury could find that three minor incidents over the
course of ten months constituted the kind of severe and pervasive harassment that would affect
the terms and conditions of Melgaard’s employment. Melgaard’s retaliatory hostile work
environment claim fails.
ORDER
IT IS ORDERED that:
1. 	Defendants Wisconsin Department of Natural Resources, Bryan Harrenstein, and
Jeremy Peery’s motion for summary judgment, Dkt. 26, is GRANTED. Plaintiff
Michael Melgaard’s First Amendment retaliation claims against Harrenstein and
Peery 	are 	dismissed 	without 	prejudice. 	Melgaard’s 	retaliatory 	hostile 	work
environment claim against DNR is dismissed with prejudice.
2. 	The clerk of court is directed to enter judgment in favor of defendants and close this
case.
Entered November 24, 2025.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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