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Brown v. State

United States District Court, W.D. Wisconsin

January 26, 2017


          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Pro se plaintiff Shannon Brown was an assistant professor for the University of Wisconsin-Extension in Grant County in 2015 and 2016 in a tenure-track position. He alleges that, after he objected to “the use of faculty resources for non-educational programming, ” he was subjected to harassment and attempts to fire him. Dkt. 14, at ¶ 32. Ultimately, Brown gave notice that he “could no longer continue providing services” and left his employment with UW-Extension. Id. at ¶ 55.

         In his amended complaint, Brown raises eleven claims: (1) “due process, ” (2) “ex post facto law, ” (3) “state impairment of the obligation of contracts, ” (4) “hostile work environment, ” (5) “whistle-blower retaliation, ” (6) “speech retaliation, ” (7) “defamation, ” (8) “tortious interference with a contract, ” (9) “breach of contract, ” (10) “fraud, ” and (11) “privileges and immunities clause.” Because Brown filed his amended complaint before any of the defendants filed an answer, he was entitled to amend without leave of court, Fed.R.Civ.P. 15(a)(1), so I have ignored the original complaint. Anderson v. Donahoe, 699 F.3d 989, 997 (7th Cir. 2012).

         The court has jurisdiction to hear Brown's federal claims under 28 U.S.C. § 1331 (relating to federal questions) and his state law claims under the supplemental jurisdiction statute, 28 U.S.C. § 1367. Brown also cites the diversity jurisdiction statute, 28 U.S.C. § 1332, but he does not include any allegations about the parties' citizenship in his amended complaint, so he has not satisfied the requirements for diversity jurisdiction.

         In two separate motions, all of the defendants have moved to dismiss all of Brown's claims. One motion was filed by individuals and entities associated with the state of Wisconsin (“the state defendants”), Dkt. 18, and one was filed by defendants Grant County and Robert Keeney (“the county defendants”), Dkt. 24. The state defendants later filed what they called an “amended” motion to dismiss, Dkt. 35, but it is more accurately called a notice because it does not change the scope of the original motion. Rather, defendants simply wish to clarify that their motion applies to defendants Robin Vos and Mary Lazich because their original motion was ambiguous on that point.

         In response to defendants' motions, Brown has abandoned his claim for “ex post facto law, ” so I need not consider that claim. For the reasons discussed below, I conclude that Brown has failed to state a claim upon which relief may be granted as to any of his other claims. The common problem with many of Brown's claims is that the allegations of wrongdoing are so vague that it is impossible to tell exactly what each defendant did to harm him. Rule 8 of the Federal Rules of Civil Procedure requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” I will give Brown a final opportunity to replead those claims that could be fixed with additional facts. If Brown chooses to amend his complaint, he must tell a simple, clear story about what each defendant did to violate his rights.

         Brown alleges the following facts in his amended complaint. Dkt. 14.


         In 2015, plaintiff Shannon Brown moved from Pennsylvania to Wisconsin to take a job as an assistant professor for the University of Wisconsin-Extension in Grant County.[2] Brown was “on a statutory-tenure track with a five-year, renewable contract pending tenure.” Dkt. 14, at ¶ 21. (Brown does not describe any of the terms of the contract.)

         In July 2015, less than two weeks after Brown started his job, the Wisconsin legislature and the governor passed 2015 Wisconsin Act 55, which imposed new budget cuts and repealed Wis.Stat. § 36.13, the statute governing tenure for state faculty.

         After the repeal, defendant Cathy Sandeen, the chancellor of UW-Extension, visited Grant County, expressing the desire to “regionalize” the functions of UW-Extension. Around the same time, defendant Richard Klemme, the dean of UW-Extension, informed the faculty of “the need to re-focus educational programming in light of the recent budget reductions.” Dkt. 14, at ¶ 28. (Brown does not provide any details in his amended complaint about the way that educational programming was changed.) In response to the changes, Brown complained to “supervisors and administrators” that his job “involved substantial, non-educational, administrative tasks for Grant County and significant County budget administrative oversight rather than educational programming.” Id. at ¶ 29.

         In mid-August 2015, Brown “was notified” (by whom he does not say) that individuals “from Grant County” wanted to terminate his employment. Id. at ¶ 30. Brown was later notified (again, by whom he does not say) that the county cannot “summarily fire” a faculty member. Id. at ¶ 31. In response, Brown “provided discrete, written notice of the use of faculty resources for non-educational programming to supervisors.” Id. at ¶ 32.

         “Grant County continued [the] abuse, harassment, bullying, and intimidation of Plaintiff through September and October including statements at public meetings.” Id. at ¶ 34. (Brown does not provide any additional description of the alleged conduct. His use of the word ‘continued' suggests the existence of earlier harassment, but he does not provide any examples.) The “Administration” for UW-Extension was “fully aware” of this conduct, but it “took no apparent curative or prophylactic action.” Id. at ¶ 35.

         In late November 2015, Brown asked the “Administration” for reassignment because of “the hostile work environment” and because of “continuing demands to support significant, non-educational programming, in apparent conflict with law and policy, with threats of job loss for ‘non-cooperation.'” Id. at ¶ 35. When no reassignment was available, Brown asked for severance pay instead. Defendant Matthew Hanson, the southwest regional director, informed Brown “that no mechanism was available to him to permit severance, ” but directed Brown to contact defendant Jason Beier, assistant vice chancellor for human resources. Id. at ¶ 37. However, Beier stated that “no mechanism existed for severance without a lawsuit.” Id. at ¶ 38.

         In January 2016, defendant Hanson admitted to Brown that he “knew of the pending reorganization plan and faculty regionalization” before Brown was hired. Id. at ¶ 40.

         At an unspecified time, “Grant County made comments about only hiring ‘locals' in the future.” Id. at ¶ 41. In January 2016, the county “worked directly” with defendant Hanson “to re-hire a ‘local' staff member” after a staff member from out-of-state left. Id.

         On March 16, 2016, Brown was scheduled for an annual faculty review. Ten minutes before the review was scheduled to begin, Brown “was notified” in a “closed-door meeting” that “the County” was going to attend the review, that “the County” was “claiming issues” with Brown, and that the “University of Wisconsin Extension Administration” was threatening the possibility that Brown could lose his appointment under the “60 day clause” of his contract. Id. at ¶ 44. (Brown does not explain what the “60-day clause” is.) Brown chose not to proceed with the faculty review, but he asked to be present at any meeting if he was going to be discussed.

         Two hours later, “supervisory faculty” told Brown that his “continuing with the County and Extension” would be discussed. Id. at ¶ 46. The “Administration” and defendant Robert Keeney “immediately” held a hearing about the “issues” raised by unknown individuals. Id. (Brown does not provide Keeney's title or otherwise explain who he is. The county defendants say that Keeney is the Grant County board chairman.)

         At the “hearing, ” defendant Hanson began questioning Brown, but Brown stated that he would not answer any questions. Defendant Keeney “admitt[ed] that no material issues existed with the Plaintiff” and that there were “challenges posed by the recent budget cuts” that required “changes.” Id. at ¶ 49. However, Keeney “insinuated” that Brown had submitted an “improper” invoice to the county, even though he knew the allegation to be false. Id. at ¶¶ 49-51. Staff members attending the hearing objected to the insinuation.

         Brown discussed “the situation” with “faculty representatives.” Id. at ¶ 53. After that discussion, Brown determined that using the faculty grievance process would be “futil[e].” Id.

         Two days later, Brown left for a vacation. When he returned, he submitted a written notice to the “Administration” that he “could no longer continue providing services.” Id. at ¶ 55. Defendant Hanson accepted the notice.


         A. Due process

         In his amended complaint, Brown identifies two ways that his due process rights were violated: (1) the repeal of Wis.Stat. § 36.13, a statue governing tenure and granting other rights to state faculty members; and (2) the failure to provide adequate notice before a hearing regarding Brown's employment on March 16, 2016. Brown's amended complaint does not state a claim under either theory.

         Much of Brown's argument that he was denied due process seems to rest on an assumption that the due process clause is a general entitlement to be treated fairly by all government officials in every circumstance. Although it is certainly true that fairness is a primary goal of the due process clause, Lassiter v. Dep't of Soc. Servs. of Durham Cty., N. C., 452 U.S. 18, 24 (1981), a claim under that clause has particular elements that Brown largely ignores. In particular, a Brown must show two things to prevail on any claim under the due process clause: (1) he was deprived of “liberty” or “property” within the meaning of the clause; and (2) he did not receive the process he was due before or after the deprivation occurred. Abcarian v. McDonald, 617 F.3d 931, 941 (7th Cir. 2010). Neither of Brown's due process claims satisfies both elements.

         1. Repeal of Wis.Stat. § 36.13

         Brown's first due process claim regarding the repeal of § 36.13 fails for the obvious reason that a person is not due any individualized process in the context of legislation. Dibble v. Quinn, 793 F.3d 803, 813-14 (7th Cir. 2015); Muscarello v. Winnebago Cty. Bd., 702 F.3d 909, 914 (7th Cir. 2012). Rather, as the courts in Muscarello and Dibble pointed out, the Supreme Court concluded long ago that a person who may be affected by a change in the law must rely on the legislative process to protect his interests. Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915) (“General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.”). In Dibble, 793 F.3d at 810, the court applied this rule to reject the claim of a government employee who was challenging a legislative change to the terms of his employment. Because that is exactly what Brown is trying to do in this case, I am dismissing his due process claim as it applies to his challenge to § 36.13.

         2. Notice of March 16, 2016 hearing

         Brown's claim that he did not receive sufficient notice before the March 16, 2016 hearing fails on the first element, which requires him to show that he was deprived of a “property interest” or “liberty interest.” Abcarian, 617 F.3d at 941. A public employee may have a property interest in his job if he has a “legitimate expectation of continued employment, ” which often is shown “through contractual language limiting the [employer]'s discretion to fire” him. Meade v. Moraine Valley Cmty. Coll., 770 F.3d 680, 686 (7th Cir. 2014). Brown does not say in his amended complaint whether his contract or anything else limited the ability of his employer to fire him. However, in one of his briefs, he alleges that UW-Extension policy prohibits even probationary employees like him from being dismissed without just cause, Dkt. 31, at 32, which is the type of language that generally is sufficient to create a property interest. Powers v. Richards, 549 F.3d 505, 511 (7th Cir. 2008). A plaintiff may elaborate his allegations in a brief in order to defeat a motion to dismiss, Smith v. Dart, 803 F.3d 304, 311 (7th Cir. 2015), so I will accept this allegation as true for the purpose of the pending motions.

         This does not get Brown very far because his amended complaint does not include allegations that any of the defendants deprived him of whatever property interest he had. In particular, he does not allege that any of the defendants fired him. Rather, he alleges that he chose to stop working for UW-Extension. This is a problem because “[a] public employee who voluntarily resigns cannot complain about a lack of due process.” Palka v. Shelton, 623 F.3d 447, 453 (7th Cir. 2010).

         Brown offers two reasons why his decision to leave his employment is not fatal to his due process claim. First, he says that his departure from UW-Extension was not truly voluntary. Second, he says that the end of his employment at UW-Extension was not the only harm he suffered. In particular, he says in his brief that “manufactured issues” harmed his professional reputation and affected his future employment. Dkt. 31, at 33. Brown did not include either of these claims in his amended complaint, but, again, he was entitled to include new allegations in his brief, Smith, 803 F.3d at 311, so I will consider whether the new allegations state a claim upon which relief may be granted.

         3. Constructive discharge/coerced resignation

         Brown contends that his decision to leave UW-Extension should not be treated as a voluntary resignation because he was constructively discharged. Brown relies solely on Wisconsin state law to support his claim for constructive discharge, e.g., Strozinsky v. Sch. Dist. of Brown Deer, 2000 WI 97, 237 Wis.2d 19, 614 N.W.2d 443, but Brown's due process claim arises under federal law, so it is federal law that controls. Boyd v. Owen, 481 F.3d 520, 524 (7th Cir. 2007). Federal law does recognize a claim for constructive discharge under the due process clause, but Brown has not stated a claim under that standard.

         To prevail on a constructive discharge claim, a plaintiff must show that he was subjected to “harassing behavior sufficiently severe or pervasive to alter the conditions of her employment, and that the abusive working environment became so intolerable that [his] resignation qualified as a fitting response.” Levenstein v. Salafsky, 414 F.3d 767, 774 (7th Cir. 2005) (internal quotations omitted). “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.” Witte v. Wisconsin Dep't of Corr., 434 F.3d 1031, 1035-36 (7th Cir. 2006) (overruled on other grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013)).

         Although Brown alleges that he was “harassed” and “bullied, ” he includes no allegations in his amended complaint or his briefs suggesting that his treatment was “egregious” or “extraordinary.” In any event, Brown does not allege that he quit because of any bullying that he faced. In fact, it is unclear from the argument sections of Brown's briefs exactly why he believes he was constructively discharged. However, in his “Summary of Factual Background” in his brief in opposition to the state defendants' motion to dismiss, he alleges that he was being “forced to violate the law as a condition of his employment” by “misreport[ing] significant amounts of time designated by state and federal law for educational programming but in fact spent on administrative services for Grant County.” Dkt. #31, at 6.

         This allegation seems to evoke a slightly different theory, “coerced resignation, ” which “may in certain circumstances form the basis of a due-process claim.” Palka, 623 F.3d at 453. “[C]oerced resignation is characterized by the presence of a Hobson's choice in which the employee must resign or suffer severe consequences, such as facing criminal charges.” Id. In Brown's case, he seems to be alleging that he faced the choice of resigning or breaking the law.

         The claim that I have just described bears no resemblance to the claim in Brown's amended complaint and it has no relevance to much of the argument in Brown's brief related to his due process claim. If Brown's claim is that defendants forced him to resign because they were requiring him to break the law, then it is irrelevant what kind of notice he received before the March 16, 2016 hearing because Brown's claim would be that he was entitled to resign as soon as defendants began requiring him to break the law, which was allegedly months before the hearing occurred. Further, the point of the hearing was not to determine whether defendants were requiring him to submit false reports. And even if that had been the point of the hearing, the allegations in the amended complaint suggest that Brown forfeited any claim about the adequacy of the hearing he received by resigning before the process could be completed. Levenstein, 414 F.3d at 774-75 (“Once . . . a process starts, for whatever reason, it is incumbent on the University to decide whether the complaints have merit, and if so, to decide what remedy is appropriate. If the complaints were made in bad faith or cannot be supported by the facts, the accused professor will be exonerated, which is the best that can be done even if he might have wished that the process had never begun in the first place.”).

         Although Brown's amended complaint does not state a claim under his theory that defendants failed to provide him adequate notice of the hearing in March 2016, it may be possible for him to proceed under a theory that defendants coerced him into resigning by requiring him to break the law. Neither side cites any relevant authority on the issue, but it is reasonable to infer at the pleading stage that being required to violate the law could qualify as a coerced resignation.

         The general rule is that a plaintiff should be given leave to amend when his complaint is dismissed for failing to provide sufficient notice of a claim. U.S. v. $196, 969.00 U.S. Currency, 719 F.3d 644, 647 (7th Cir. 2013) (“[P]arties usually get a chance for a do over of a complaint that fails to state a claim but may be reparable.”). Although Brown has already had an opportunity to file an amended complaint and provide additional allegations in his briefs, because he is proceeding pro se, I will give him one more chance to raise a claim that one or more of the defendants violated his right to due process by coercing him into leaving his employment.

         Although Brown may have identified a potentially viable legal theory, this proposed claim still has a number of problems that he will have to fix if he chooses to file another amended complaint. First, even in his brief, Brown does not explain exactly what he was required to do that violated the law. He says that he was required to “misreport” his time, but he does not explain what that means and he does not identify any laws that prohibited whatever he was being required to do. Brown will have to explain this.

         Second, Brown does not identify a particular defendant who required him to break the law. This is a problem because a defendant cannot be held liable for a constitutional violation unless he or she was personally involved in the alleged conduct. Kuhn v. Goodlow, 678 F.3d 552, 555-56 (7th Cir. 2012). Further, under federal pleading rules, “[e]ach defendant is entitled to know what he or she did that is asserted to be wrongful.” Bank of America, N.A. v. Knight, 725 F.3d 815, 818 (7th Cir. 2013). If Brown does not connect the alleged constitutional violation with a particular defendant, the claim will not survive. He cannot sue the state of Wisconsin for a violation of the due process clause or any other constitutional provision because the state is not a “person” within the meaning of 42 U.S.C. § 1983, the statute that authorizes a cause of action for constitutional violations. Thomas v. Illinois, 697 F.3d 612, 613-14 (7th Cir. 2012). If Brown wishes to bring a claim against a municipality such as Grant County, he will have to allege facts that the county has a policy, custom, or practice that caused the constitutional violation. Dixon v. Cty. of Cook, 819 F.3d 343, 348 (7th Cir. 2016), allegations that his amended complaint are lacking.

         Finally, I note that there is some tension between a claim that Brown was coerced into resigning because he was forced to break the law and his allegation that he decided to leave his job after the March 16, 2016 hearing. Brown does not allege that anyone asked him to break the law at the hearing, so this calls into question his true reason for leaving. Some of Brown's allegations suggest that he left because he concluded that his termination was a foregone conclusion. Dkt. 14, at ¶ 53 (after March 16, 2016 hearing, Brown determined that using faculty grievance process would be “futil[e]”).

         None of the parties discuss these inconsistencies in their briefs, so it would be premature to resolve the issue now. However, Brown should be prepared to clarify his allegations if he chooses to file another amended complaint. If Brown intended to assert a claim that he was constructively discharged because one of more of the defendants made it clear to him that his termination was imminent, that claim would have failed as well. In the context of Title VII of the Civil Rights Act of 1964, a former employer may bring a claim for constructive discharge “[w]hen an employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated. EEOC v. Univ. of Chicago Hosps., 276 F.3d 326, 332 (7th Cir. 2002). I am not aware of any authority applying this standard to a claim under the due process clause, but even if it does apply, Brown has not alleged facts supporting the view that his termination was inevitable. If Brown intends to raise that type of constructive discharge theory in a new complaint, he will have to explain more clearly why he believed even before the process was complete that he was going to be fired.

         4. Stigma claim

         The second due process claim that Brown raises for the first time in his briefs is that defendants harmed his reputation. Reputational harm may trigger the protections of the due process clause under certain circumstances. Meade, 770 F.3d at 688; Abcarian, 617 F.3d at 941. Brown calls this a “property right, ” but case law recognizes reputational harm as potentially implicating a person's liberty, not his property. Meade, 770 F.3d at 688; Hannemann v. Southern Door Cty. Sch. Dist., ...

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