United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
lawsuit arises out of pro se plaintiff Shannon Brown's
short tenure as an assistant professor at the University of
Wisconsin-Extension in Grant County. Plaintiff says that he
started the job in July 2015 after moving from Pennsylvania
to Wisconsin, but the job did not turn out as he had hoped
and he left in April 2016.
first amended complaint, plaintiff asserted 11 state and
federal causes of actions against the state of Wisconsin and
various public employees for alleged violations of his rights
while he was employed by the University of
Wisconsin-Extension. In an order dated January 25, 2017, dkt.
#36, the court granted in full motions to dismiss filed by
two groups of defendants, but gave plaintiff leave to replead
some of those claims. In response, plaintiff filed a second
amended complaint, dropping some claims and defendants and
adding several new defendants. Dkt. #38.
motions to dismiss are now before the court, one filed by the
state employees (defendants Matthew Hanson and Jason Beier),
dkt. #48, and one filed by the Grant County employees
(defendants Robert Keeney, John Patcle, Patrick Schroeder,
Grant Loy, Mark Stead, Roger Guthrie and Daniel Timmerman),
dkt. #50. In response to these motions, plaintiff filed both
a brief in opposition and a “notice of voluntary
partial dismissal.” Dkt. ##52 and 55. The claims and
defendants listed in the notice already were omitted from the
second amended complaint, with the exception of the claims
against defendant Jason Beier. Accordingly, I will dismiss
all claims against that defendant.
second amended complaint includes claims raising two federal
legal theories and two state law legal theories, so
jurisdiction arises under both 28 U.S.C. § 1331 (federal
question jurisdiction) and 28 U.S.C. § 1367
(supplemental jurisdiction for related state law claims).
First, plaintiff says that various defendants violated the
First Amendment by retaliating against him in various way
because he complained that “significant amounts of . .
. educational programming funds were [being] directed to
non-educational tasks.” Sec. Am. Cpt. ¶ 79, dkt.
#38. Second, plaintiff says that defendants violated the
privileges and immunities clause because they had “a
policy and practice of impermissible discriminatory animus
towards out-of-state persons such as Plaintiff.”
Id. at ¶ 95. Third, plaintiff says that
defendant Robert Keeney defamed him by “impl[ying] that
Plaintiff submitted an improper payment voucher.”
Id. at ¶ 98. Fourth, plaintiff says that
defendants tortiously interfered with his employment contract
in multiple ways.
reviewed the second amended complaint and the briefs
submitted by the parties, I conclude that plaintiff has
stated a claim upon which relief may be granted against
defendant Hanson for retaliation under the First Amendment.
Plaintiff has adequately alleged that defendant Hanson
threatened to terminate his employment contract because
plaintiff engaged in protected speech. In addition, I will
allow plaintiff to proceed on a claim for tortious
interference with a contract against defendants John Patcle,
Patrick Schroeder, Grant Loy, Mark Stead, Roger Guthrie and
Daniel Timmerman. Although that claim presents a closer
question, I conclude that plaintiff has plausibly alleged
that defendants intentionally interfered with his contract
with the University of Wisconsin-Extension by diverting his
attention to administrative tasks. However, for the reasons
discussed below, I am dismissing the second amended complaint
as to all other claims.
Summary of allegations
alleges that, shortly after he was hired, the Wisconsin
legislature made a “significant budget cut” to
the University of Wisconsin-Extension. Sec. Am. Cpt. ¶
37, dkt. #38. As a result, the dean of UW-Extension informed
faculty in a video broadcast that they “needed to
re-focus educational programming.” Id. at
¶ 39. After this, plaintiff became responsible for a
number of “non-educational, Grant County government,
administrative tasks.” Id. at ¶ 40.
Plaintiff does not say where the directive to perform more
administrative tasks came from, but elsewhere in his
complaint, he says that defendant Stead, a county employee,
“directed” him “to spend 40% time” on
certain tasks for Grant County, which suggests that the
directives came at least in part from Grant County staff.
Although plaintiff says that he was employed by the
University of Wisconsin-Extension alone, he says that he was
“accountable” to Grant County, id. at
¶ 20, though he does not explain the extent to which the
county had authority over him.
administrative tasks that plaintiff was required to perform
included reviewing vouchers for county expenses,
administering county tourism grants and managing
“tourism brochure development.” Id. at
¶ 40. Plaintiff objected to these requirements,
believing that it was “a significant misdirection of
state and federal educational programing resources.”
Id. He complained not only about his own situation,
but what he believed to be “a wider problem” at
the UW-Extension. Id. at ¶ 83.
addition, plaintiff complained that the “county
tasks” included “apparent illegality, violations
of state policy and financial discrepancies.”
Id. at ¶ 42. Examples of “alleged
illegalities” included “submitting apparently
inaccurate invoices to the State for payment, ”
“pressure to submit inaccurate time sheets to the
State, ” “copyright infringement/theft of
services, ” “tampering with official
records” and “approving alleged improper payment
of government expenses.” Id. Plaintiff does
not explain the way in which invoices were “inaccurate,
” what sort of “tampering” occurred, the
nature of the “copyright infringement” or how any
payments were “improper.” Plaintiff alleges in
his summary of claims that he suffered retaliation in the
following ways as a result of his speech:
• sometime before October 2015, unknown Grant County
employees informed Bev Doll and Ted Bay (who plaintiff
identifies as “county department co-chairs” and
part of his “reporting structure, ” id.
at ¶ 19.d) that they had “issues” with
plaintiff because of his speech and wanted him to be fired,
id. at ¶¶ 84.a and 84.b;
• on March 16, 2016, just before plaintiff's faculty
review was scheduled to begin, defendant Matthew Hanson (the
Southwest Regional Director of the UW-Extension) discussed
unspecified “issues” that unnamed individuals had
with plaintiff, id. at ¶¶ 58 and 84.c;
• on March 16, 2016, defendant Hanson allowed county
employees to attend plaintiff's faculty review and to
question plaintiff during the review, in violation of school
policy, id. at 59 and 84.c;
• on March 16, 2016, defendant Hanson “threatened
the possibility of Plaintiff's losing his faculty
appointment under the alleged ‘60-day clause,
• on March 16, 2016, during plaintiff's faculty
review, defendant Keeney alleged that plaintiff
“submitted an improper payment voucher, ”
id. at ¶ 84.e;
• on March 17, 2016, defendant Hanson sent plaintiff an
email stating that Hanson “wished to discuss
withdrawing support from Plaintiff, ending plaintiff's
employment, ” id. at ¶ 84.d.
Elements of First Amendment retaliation claim
plaintiff must show three things to prevail on a retaliation
claim under the First Amendment. First, he must show that he
engaged in speech or conduct that is protected by the First
Amendment. Second, he must have suffered a deprivation that
likely would deter future First Amendment activity. Third,
his protected activity must be “at least a motivating
factor” in the defendants' actions. Graber v.
Clarke, 763 F.3d 888, 894 (7th Cir. 2014); Woodruff
v. Mason, 542 F.3d 545, 551 (7th Cir. 2008).
Hanson challenges plaintiff's claims on both the first
and second elements. The county defendants focus on the
second element, but also discuss the third element. I will
consider each argument in turn.
public employee's speech is constitutionally protected
only when he speaks ‘as a citizen' on matters of
public concern.” Roake v. Forest Preserve District
of Cook County, 849 F.3d 342, 346 (7th Cir. 2017). If he
speaks “pursuant to his official duties, ”
id. (alteration omitted), or simply out of
“pure personal interest, ” Kristofek v.
Village of Orland Hills, 832 F.3d 785, 794 (7th Cir.
2016), the speech is not protected.
Hanson devotes only one paragraph of his brief to this issue,
stating without elaboration that plaintiff's complaints
about “misdirection of resources” were made
“as an employee [rather than a citizen] on a matter of
personal concern.” Hanson Br., dkt. #49, at 10.
Certainly, plaintiff's allegations suggest strongly that
a significant motivation for his speech was his personal
dissatisfaction with his job duties. However, Hanson ignores
the allegations that plaintiff complained generally about
what he viewed to be a statewide problem and about what he
viewed to be a threat to the educational mission of the UW-
Extension. (I do not consider plaintiff's allegations
about “illegalities” because those are too vague
to allow a determination whether they raise issues of public
allegations regarding improper use of public money and the
operation of the UW-Extension are sufficient at the pleading
stage to show that plaintiff was engaging in protected
speech. Wainscott v. Henry, 315 F.3d 844, 849 (7th
Cir. 2003) ("An employee's ability to highlight the
misuse of public funds or breaches of public trust is a
critical weapon in the fight against government corruption
and inefficiency."). Speech that criticizes the
operation of the government can be speech on a matter of
public concern, even when the plaintiff is motivated in part
by personal interests. Kristofek, 832 F.3d at 795.
If the facts show at summary judgment or trial that plaintiff
was not complaining about governmental misconduct and was
only complaining about perceived personal mistreatment, then
this claim may be subject to dismissal, but plaintiff's
allegations are adequate at the pleading stage to show that
he spoke as a citizen on a matter of public concern.