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Fritz v. Evers

United States District Court, W.D. Wisconsin

September 6, 2017

MARK A. FRITZ, Plaintiff,
TONY EVERS, Wisconsin State Superintendent of Public Instruction, Defendant.



         For over a year, the Department of Public Instruction's (“DPI”) publicly-accessible website listed plaintiff Mark Fritz, an educator licensed in Wisconsin by the Superintendent of Public Instruction, as “under investigation.” In this lawsuit, Fritz claims this long-term listing denied him equal protection and due process because: (1) DPI did not actually investigate the underlying allegations against him, and (2) he was neither provided notice nor an opportunity for a hearing to address the allegations. Tony Evers, named defendant in his official capacity as DPI's superintendent, moves to dismiss plaintiff's claims for failure to state cognizable constitutional claims. (Dkt. #6.) For the reasons explained below, the court agrees and will dismiss plaintiff's claims in their entirety.


         At all times relevant to this lawsuit, plaintiff Mark Fritz was an educator licensed by the state of Wisconsin. In approximately March of 2012, the Racine Unified School District (“RUSD”) submitted a complaint concerning Fritz to the Wisconsin Superintendent of Public Instruction, Tony Evers, as the head of DPI.[2] Shortly after that, DPI posted on its website that Fritz was “under investigation.” Under certain circumstances, Wis.Stat. § 115.31, requires the superintendent to investigate reports concerning licensed educators and publish the name of the individual subject to investigation. More specifically, the statute states in part that:

Upon receiving a report under sub. (3) relating to a person licensed by the state superintendent, the state superintendent shall investigate to determine whether to initiate revocation proceedings. The state superintendent shall post on the department's Internet site the name of the licensee who is under investigation. During the investigation the state superintendent shall keep confidential all information pertaining to the investigation except the fact that an investigation is being conducted and the date of the revocation hearing.

Wis. Stat. § 115.31(6)(b). The statute further requires an “administrator, ” defined as “the chief administrative officer of an educational agency, ”[3] §115.31(1)(a), to report a licensed person to the superintendent when:

1. The person is charged with a crime under ch. 948 [“Crimes Against Children”], including a crime specified under s. 948.015 [“Other offenses against children”], a felony with a maximum term of imprisonment of at least 5 years or a crime in which the victim was a child.
2. The person is convicted of a crime described under subd. 1 or of 4th degree sexual assault under s. 940.225(3m).
3. The person is dismissed, or his or her contract is not renewed, by the employer based in whole or in part on evidence that the person engaged in immoral conduct.[4]
4. The person resigns and the administrator has a reasonable suspicion that the resignation relates to the person having engaged in immoral conduct.

Wis. Stat. § 115.31(3)(a).

         Several different times during the following year, Fritz requested information from DPI about the posted investigation, but his requests were ignored. In or around July of 2013, DPI finally informed Fritz that its investigation would not be completed before the end of that year.

         On August 8, 2013, Fritz asked DPI to schedule a formal hearing on the underlying complaint and posted investigation. Less than three weeks later, on August 27, 2013, DPI responded to Fritz's request by issuing a decision that the complaint lacked probable cause and delisting Fritz as “under investigation” from its website.

         The damage, however, had already been done. Between at least March of 2012 through August of 2013, Fritz was denied employment by prospective employers as a result of his being listed as under investigation, and multiple employers informed him of that fact.[5] Fritz asserts that those denials were consistent with the policy, practice or custom of many Wisconsin schools to prohibit the hiring of educators listed as under investigation. According to Fritz, DPI did not actually investigate RUSD's report despite listing him as under investigation. Otherwise, it would have immediately discovered that it was baseless.


         “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief can be granted.” Diamond Ctr., Inc. v. Leslie's Jewelry Mfg. Corp., 562 F.Supp.2d 1009, 1013 (W.D. Wis. 2008). In “[e]valuating the sufficiency of the complaint, [the court] construes it in the light most favorable to the nonmoving party, accept[s] well-[pled] facts as true, and draw[s] all inferences in [his] favor.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013). The plaintiff need not provide detailed factual allegations, but must provide “enough facts to raise [the claim] above the level of mere speculation.” Riley v. Vilsack, 665 F.Supp.2d 994, 997 (W.D. Wis. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'”)). A plaintiff must provide enough facts to state a claim that is plausible on its face and to allow the “court to infer more ...

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