United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART SUMMARY JUDGMENT
William C. Griesbach, United States District Court Chief
Ann Hatch filed this action alleging that Defendant Brillion
School District (the “District”) discriminated
against her based on her sex and age and retaliated against
her for engaging in protected conduct, in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et seq. (“Title VII”) and the Age
Discrimination in Employment Act, 29 U.S.C. § 621,
et seq. (“ADEA”). Formerly a Middle
School Principal, School Psychologist, and Special Education
Coordinator in the District, Hatch has asserted claims
arising out of her interactions with the District's
Superintendent, Dr. Dominick P. Madison, in the years
preceding the nonrenewal of her employment contract. The case
is before the court on the District's motion for summary
judgment. ECF No. 31. Also before the court is Hatch's
motion for leave to file a memorandum of law in response to
the District's reply brief in support of its motion for
summary judgment. ECF No. 56. The court heard oral argument
on both motions on June 7, 2018. For the reasons set forth
below, Hatch's motion will be granted, and the
District's motion for summary judgment will be
granted-in-part and denied-in-part.
judgment should be granted when the moving party shows that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In other words, the time and expense of
the parties and the court should not be wasted on a trial
when there are no material facts in dispute, one party is
entitled to judgment on those facts, and thus there is
nothing to try. In deciding a motion for summary judgment,
all reasonable inferences are construed in favor of the
nonmoving party. Foley v. City of Lafayette, 359
F.3d 925, 928 (7th Cir. 2004). The party opposing the motion
for summary judgment must “submit evidentiary materials
that set forth specific facts showing that there is a genuine
issue for trial.” Siegel v. Shell Oil Co., 612
F.3d 932, 937 (7th Cir. 2010) (quoted source and internal
quotation marks omitted). “The nonmoving party must do
more than simply show that there is some metaphysical doubt
as to the material facts.” Id. Summary
judgment is properly entered against a party “who fails
to make a showing sufficient to establish the existence of an
element essential to the party's case, and on which that
party will bear the burden of proof at trial.”
Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922
(7th Cir. 2012) (internal quotation marks omitted) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
In this case, the plaintiff bears the burden of proof on each
essential element of her claims; the plaintiff must therefore
show that there is evidence on which a reasonable jury could
find in her favor.
these standards in mind, what follows is the court's
attempt to set out, in the light most favorable to Hatch as
the nonmoving party, the undisputed material facts as gleaned
from the properly submitted evidentiary materials of the
parties. It is important to emphasize this is not a final or
conclusive determination of the facts of the case; these are
the facts if all of the plaintiff's evidence is believed.
IN LIGHT MOST FAVORABLE TO PLAINTIFF
District operates three public schools in the City of
Brillion, Wisconsin: Brillion High School (grades 9-12),
Brillion Middle School (grades 6-8), and Brillion Elementary
School (early childhood and grades 1-5). Def.'s Proposed
Findings of Fact (“DPFOF”), ECF No. 33 ¶ 1.
The District's governing body is the School Board (the
“Board”), which consists of seven members and is
led by a President. Id. ¶ 2. As the body
responsible for all employment decisions involving District
administrators, the Board has final authority regarding
matters such as offers of employment, salary and wage
determination, and the renewal or non-renewal of employment
contracts. Id. ¶ 3. During 2011, Brian Horn
served as President of the Board, and Renee Maeder served as
Vice President. Id. ¶¶ 4, 6. Horn has
served as a member of the Board since 2003, and Maeder served
as a member from 2007 to 2013. Id. Madison became
the District's Superintendent in July 2005. Id.
events that form the basis of Hatch's claims began in
2011 and culminated in Hatch's resignation from her
employment with the District in August 2012. Id.
¶ 8. Her resignation followed the Board's June 18,
2012 decision not to renew her employment contract beyond the
2012-2013 school year. Id. ¶¶ 8, 137. At
the time of her resignation, Hatch had been employed by the
District since 1987. Id. ¶ 8. For the majority
of that time, she held the positions of School Psychologist
and Special Education Coordinator while also serving as the
boys' varsity golf coach. Id. ¶ 10.
became the Middle School Principal in July 2006. Id.
¶ 16. The promotion occurred as part of a plan that
Madison began developing during 2005 and 2006 to restructure
the District's administration by splitting the single,
K-8 principal position into separate principal positions for
the elementary and middle schools. Id. ¶¶
11, 13. Hatch had told Madison that she no longer wanted to
focus exclusively on special education, and Madison
ultimately recommended that the Board hire her for the new
Middle School Principal position. Id. ¶¶
14-15. The Board accepted Madison's recommendation.
Id. ¶¶ 15-16. Hatch characterized her
interactions with Madison as “professional” and
his behavior as “good” during 2005 and 2006,
before her promotion. Id. ¶ 19. The Middle
School Principal role was not a standalone, full-time
position, so Hatch continued to perform her duties as School
Psychologist and, in a reduced capacity, Special Education
Coordinator. Id. ¶¶ 16-18, 20. Together,
those three roles comprised Hatch's full-time position as
a District administrator. Id. ¶ 24.
Madison oversaw all District operations and supervised the
District's administrators, including the school
principals, he was Hatch's direct supervisor following
her promotion to Middle School Principal. Id.
¶¶ 11, 57-58. Madison was thus responsible for
providing an annual written evaluation of her performance, as
required by her employment contract. Id.
¶¶ 54-55; ECF No. 41-4 at 3; see, e.g.,
ECF No. 35-2. When conducting an annual evaluation of a
District principal, Madison asked the principal to create a
list of proposed goals for the upcoming year and to complete
a self-assessment regarding achievement of the previous
year's goals. DPFOF ¶ 55. Madison then reviewed
those materials, prepared a written performance review, and
finalized the principal's goals for the upcoming year.
Id. In January 2011, Madison prepared Hatch's
annual written evaluation assessing whether she achieved her
2010 goals and establishing new goals for 2011. Id.
¶ 59; see also ECF No. 35-2. As part of that
process, Madison also met with Hatch to discuss her 2011
goals. DPFOF ¶ 59.
discussions with Hatch in early 2011 resulted in the
delineation of three goals for her that year: (1) “To
develop practices and programs that promote diminishing
separate building and subject manner”; (2) “To
work with the elementary principal to have RtI [Response to
Intervention] implemented in grades 1-8”; (3) and
“Completion of assessment procedures in the middle
school.” ECF No. 35-2 at 3-4. The purpose of
Hatch's first goal was to reduce the physical and
functional boundaries between the middle school and the
elementary school, which were housed in different buildings.
DPFOF ¶ 62. As possible evidence of progress toward
achieving this goal, the review suggested the establishment
of a “literacy block” in the middle school,
planning for multi-aged classrooms, adjustments to the
8-period daily class schedule, subject specialties done
collaboratively, and team teaching of subjects between both
specialists and classroom teachers. Id. ¶ 66.
Hatch's second goal pertained to the implementation of
“Response to Intervention” (“RtI”), a
program for identifying children with learning and behavioral
problems and providing them with early, effective learning
interventions across several “Tiers” of
increasingly intensive assistance, potentially culminating in
a referral to special education programs. Id. ¶
63. Potential evidence of progress towards achievement of
this goal included every teacher being able to implement Tier
2 and Tier 3 interventions, special education teachers being
assigned as intervention coaches to assist with intervention
application, and significant diminishment of referrals for
learning disabilities. Id. ¶ 67. Finally,
Hatch's third goal pertained to implementing assessments
or other means of measuring student performance in all
courses offered as part of the middle school's
curriculum. Id. ¶ 64. Hatch acknowledges that
all of her 2011 goals were attainable, with the exception of
implementation of a literacy block in the eighth grade, which
did not have appropriate teaching staff available for such a
program. Id. ¶ 68.
series of interactions between Hatch and Madison during
summer 2011 are central to this dispute. At some point in
June 2011, Hatch communicated to Madison her desire to take
Friday, September 2, 2011-the second day of the upcoming
school year-off of work because she planned to attend a
Wisconsin Badgers football game in Madison the night before
to celebrate her fiftieth birthday with family and friends
visiting from out of town. Id. ¶¶ 84, 88.
After Madison denied Hatch's request to take the day off,
Hatch complained to Renee Maeder in her capacity as the
Board's Vice President. Id. ¶ 84. Maeder
counseled Hatch to meet with Madison in person to discuss the
request and explain her reasons for it. Id. ¶
Hatch's conversation with Maeder, Madison and Hatch
exchanged emails about Hatch's request on June 21, 2011.
Madison initiated the conversation: “In looking at your
calendar, we obviously did not communicate regarding time off
on September 2nd. As it is the 2nd day of school, I see it as
important that you are here and not off due to a Badger game
the night before.” ECF No. 35-5 at 2. Hatch responded:
I did miss understand as you indicated to me while we were
discussing this in Tiffanie's office that you did not
tell me I could not have this day off but it was your
preference I not take it off. I was also not clear in
communicating with you that my birthday celebration begins
with the game but other activities have been planned in my
honor on Friday as well. I have family coming from DC and KC
for this celebration. I am aware you set my working days, but
I do want my communications with you to be clear.
Id. Madison replied: “Fine. Take the fucking
day off.” Id. Hatch ultimately did take
September 2, 2011, off of work. Id. ¶ 107.
29, 2011, Hatch called Maeder at work to report the language
in Madison's reply email, characterizing it as rude and
harassing. DPFOF ¶¶ 91. Maeder later went to the
middle school and spoke with Hatch, who gave her a copy of
the email exchange. Id. ¶ 93. After receiving a
copy of the emails from Hatch, Maeder called Board President
Brian Horn to notify him about the emails. Id.
¶ 94. Horn called Hatch to apologize for Madison's
conduct and informed her that he would investigate the
matter. Id. ¶ 95. In reporting Madison's
conduct to Horn and Maeder, Hatch also alleged that Madison
had acted inappropriately towards other District employees,
specifically Tiffanie Nigbor and Margie Bauknecht.
Id. ¶ 96. Horn contacted both, and Maeder also
contacted Nigbor to follow up on Hatch's insinuation that
Nigbor left her position as Elementary School Principal not
for family reasons, as she told the Board, but because of
Madison's inappropriate behavior. Id.
¶¶ 97-98, 101. After inquiring into Hatch's
complaint, Horn and Maeder met with Madison at the District
office on July 12, 2011, to discuss his profane email to
Hatch. Id. ¶ 102. They directed him to refrain
from using profanity in his email communications and
instructed him to apologize to Hatch, which he did on July
18, 2011, although Hatch felt it was disingenuous and forced.
Id. ¶¶ 105-06; ECF No. 34-6 at 26; ECF No.
34-2 at 19.
meantime, while Horn and Maeder were following up on
Hatch's complaint over Madison's email but before
they met with Madison about it, Madison met with Hatch on
July 11, 2011, ostensibly as part of a mid-year review of her
progress toward achieving her 2011 goals. DPFOF ¶ 77.
Madison had never given an administrator a mid-year review,
and Hatch had never received one throughout twenty-four years
in the District. Pl.'s Proposed Additional Facts
(“PPAF”), ECF No. 40 ¶ 43. Treating the
mid-year review as confidential, Madison neither shared it
with the Board nor placed a copy in Hatch's personnel
file at that time. DPFOF ¶ 74.
asserts that Madison began the July 11 meeting by telling her
that complaints to Board members would not be tolerated and
that she had to make him look good in front of the Board.
PPAF ¶ 42. Madison also told her during the meeting that
she would never coach golf in the district again, an activity
that Madison knew was a source of pride and enjoyment for
Hatch. Id. ¶ 15, 42.
all of Madison's evaluations of Hatch were positive prior
to 2011, the mid-year review listed several deficiencies that
Madison observed in Hatch's progress towards achieving
her annual goals. DPFOF ¶ 34; ECF No. 35-4. Expressing
“major concern” about her progress on her first
goal, Madison observed that Hatch had “done very little
to diminish . . . separation, ” noting that she had not
visited a school with a 5th/6th grade multi-age classroom,
had not utilized existing multi-age teachers in the District,
and had told parents that the Superintendent (rather than the
principal) was responsible for removing students from
multi-age classrooms. ECF No. 35-4 at 2. Madison also
observed that Hatch had made only “minimal”
progress towards assigning Middle School teachers as
intervention coaches. Id. at 3. The review concluded
with a summary of Madison's concerns:
During the course of the first six months of this calendar
year review cycle, Ms. Hatch has demonstrated inadequate
progress toward the goals set out for her. She has had
several avenues to achieving her goals presented to her and
she has not responded positively to these opportunities. Ms.
Hatch needs to take the next six month [sic] and refocus on
her goals. Effort needs to be made to develop systematic
approaches to address student learning issues in her building
including means to promote collaboration toward student
learning, breaking down of barriers between subjects and
grade levels, more teamwork between regular and special
education, and clear means of leading how to identify
learning goals and measures of those goals.
Id. at 3-4. Madison also contends that to increase
the time available for Hatch to focus on her administrative
duties, he relieved her of responsibility for implementing
changes in the middle school Language Arts curriculum and of
her duties as the boys' varsity golf coach. Id.
at 3; DPFOF ¶ 79.
August 30, 2011, Hatch's former attorney sent Horn a
letter alleging that Madison violated Hatch's First
Amendment rights by issuing the negative mid-year review in
retaliation for Hatch's complaint to Horn and Maeder
regarding the email. Id. ¶ 108; ECF No. 34-7.
The letter made no claim that Madison's actions reflected
retaliation based on her gender or sex, nor did the letter
recount Hatch's claim that Madison started off the
meeting by warning her that complaints to the Board would not
be tolerated and telling her she would never coach golf in
the district again. DPFOF ¶ 109; ECF No. 34-7. In
response, Horn issued a memorandum on behalf of the Board on
September 21, 2011, stating that the Board had reviewed the
letter from Hatch's attorney and determined that no
further action was necessary because Madison had already
apologized for his inappropriate email. Id. ¶
110; ECF No. 34-6.
accounts, these events during summer 2011 led to a breakdown
in trust and communication between Madison and Hatch and
limited the effectiveness and cooperation of the
administrative team as a whole. DPFOF ¶ 126 (no
dispute). By January 2012, Hatch and Madison sharply diverged
in their assessment of whether Hatch achieved her 2011 goals.
In her self-assessment, Hatch listed eleven actions (and
three ideas discussed) that she thought reflected evidence of
progress towards achieving her first goal, seven actions
reflecting progress towards her second goal, and one action
reflecting progress toward her third. ECF No. 34-6 at 24-25.
But in his written evaluation dated January 26, 2012, Madison
concluded that Hatch “did not reflect on her goal
achievement in a manner that was authentic or accurate”
and therefore had “not shown evidence that she is able
[to] critically assess her own performance.” ECF No.
42-10 at 2. Listing shortcomings in Hatch's progress
toward achieving each of the three goals, Madison concluded
that she met neither her first nor her second goal and made
only partial progress towards meeting the third. Id.
at 2-3. Although Hatch had suggested goals in two new
categories for 2012, Madison reassigned her first and second
goals from the previous year on the ground that they
“are still critical and attention must be given to
them.” Id. at 4. Madison did assign a new
third goal: “Mathematic Differentiation instruction is
implemented in grades 5-8.” Id. Overall,
Madison concluded that “[t]he evidence is clear that
Ms. Hatch has not been successful as an innovative,
educational leader in her current position.”
Id. at 2.
brought his concerns about Hatch's performance to the
Board in May 2012. DPFOF ¶ 127. He presented the Board
with information regarding Hatch's performance reviews,
as well as deficiencies in her effort and progress towards
completing her goals. Id. At a closed session of the
Board on May 14, 2012, Madison then recommended nonrenewal of
Hatch's employment contract as a District administrator.
Id. ¶ 128. The nonrenewal of an educational
contract is a serious, adverse employment action. PPAF ¶
51. Wisconsin law affords a person whose contract is
recommended for nonrenewal the right to a full hearing before
the district board. Wis.Stat. 118.24. During his time as
Superintendent in Brillion, for example, Madison has never
hired anyone whose contract was previously nonrenewed.
Id.Based on Madison's recommendation, the Board
directed him to deliver Hatch a preliminary notice of
consideration of nonrenewal of her contract. DPFOF ¶
gave Hatch notice of the Board's decision by letter dated
May 16, 2012. The letter advised Hatch that pursuant to
Section 118.24(7) of the Wisconsin Statutes, she had the
right to request either a public or private hearing before
the Board on the decision. The letter explained that she
would be provided the reasons for the nonrenewal decision
prior to the hearing and would have the right to
representation by counsel of her choice. The letter also