United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
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.
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).
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.
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.
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.
alleges the following facts in his amended complaint. Dkt.
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. 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.)
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.
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
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.
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.
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.
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.
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.
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
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.)
“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.
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.
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.
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.
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
Repeal of Wis.Stat. § 36.13
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.
Notice of March 16, 2016 hearing
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.
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).
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
Constructive discharge/coerced resignation
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.
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)).
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
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
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.”).
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.
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.
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.
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
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]”).
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.
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.