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Brown v. Hanson

United States District Court, W.D. Wisconsin

June 19, 2017



          BARBARA B. CRABB District Judge.

         This 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.

         In his 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.

         Two new 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.

         Plaintiff's 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.

         Having 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.


         A. Retaliation

         1. Summary of allegations

         Plaintiff 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.

         The 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.

         In 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, '” id.;
• 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.

         2. Elements of First Amendment retaliation claim

         A 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).

         Defendant 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.

         3. Protected speech

         “A 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.

         Defendant 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 concern.)

         Plaintiff's 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.

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