United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
Sabina Burton was formerly a tenured associate professor of
criminal justice at the University of Wisconsin-Platteville
(UWP). This lawsuit concerns alleged discrimination and
retaliation that she experienced after she assisted a UWP
student in reporting an allegation of sexual harassment by
another UWP professor in 2012.
previous order, the court dismissed all of Burton's
claims under Federal Rule of Civil Procedure 12(b)(6) except
one-a Title VII retaliation claim against the Board of
Regents. Dkt. 21. Since then, Burton has amended her
complaint several times, in part to take into account new
allegedly retaliatory actions, including her termination from
UWP. Dkt. 29; Dkt. 41; Dkt. 51. She is now asserting claims
for retaliation under Title VII, the Rehabilitation Act, and
the First Amendment; disability discrimination under the
Rehabilitation Act and the Equal Protection Clause;
national-origin discrimination under Title VII and the Equal
Protection Clause; failure to accommodate her disability
under the Rehabilitation Act; and denial of due process under
the Fourteenth Amendment.
have once again moved to dismiss many of Burton's claims
under Rule 12(b)(6) for failure to state a claim upon which
relief can be granted. Dkt. 56. The court will grant
defendants' motion in part: Burton's
hostile-work-environment and procedural due process claims
will be dismissed in full. Her Title VII retaliation claims
will be dismissed in part. The court will deny
defendants' motion on the remaining claims.
court draws the following facts from Burton's fourth
amended complaint, Dkt. 51, and accepts them as true for the
purpose of deciding defendants' motion. Parungao v.
Comm. Health Sys., Inc., 858 F.3d 452, 457 (7th Cir.
2017). The court draws facts about the procedural history of
the case from Burton's first lawsuit against UWP,
Burton v. Bd. of Regents of the Univ. of Wis. Sys.
(Burton I), No. 14-cv-274 (W.D. Wis. filed Apr. 14,
2014), and the court's prior 12(b)(6) order in this case,
Burton v. Bd. of Regents of the Univ. of Wis. Sys.,
No. 17-cv-36-JDP, 2017 WL 3891702 (W.D. Wis. Sept. 5, 2017).
2012, Burton reported an incident of alleged sexual
harassment of a student by a fellow professor to defendant
Elizabeth Throop, then-dean of UWP's College of Liberal
Arts and Education. In the months following this report, UWP
faculty and staff took several acts that Burton perceived as
retaliatory, such as making veiled criticisms of the way that
she had handled the student's complaint and withdrawing
support from a cybersecurity program that she was developing.
Burton filed complaints with the Wisconsin Department of
Workforce Development-Equal Rights Division and the Equal
Employment Opportunity Commission, alleging that she was
being retaliated against for engaging in protected activity.
In April 2014, Burton filed Burton I in this court,
alleging discrimination and retaliation by the Board of
Regents, Throop, and two other UWP employees.
March 2016, this court granted summary judgment in favor of
defendants and dismissed Burton I. See 171
F.Supp.3d 830. The court did so because Burton conceded that
she could not succeed on many of her claims and adduced no
evidence that she suffered materially adverse actions as a
result of filing charges of discrimination and bringing the
lawsuit. Id. at 833-34. The court also determined
that Burton's advocacy on behalf of the student was not
protected activity within the meaning of Title VII, because
the student was not an employee of the university and
therefore “Burton was not opposing an unlawful
employment practice, which is a required element of
the retaliation claim” under Title VII. Id. at
843. Burton appealed; the Seventh Circuit affirmed. See
Burton v. Bd. of Regents of the Univ. of Wis. Sys., 851
F.3d 690 (7th Cir. 2017).
original complaint in this case, Burton alleged that she
experienced discrimination and harassment from her UWP
colleagues in the aftermath of Burton I. Defendants
moved to dismiss Burton's first amended complaint under
Federal Rule of Civil Procedure 12(b)(6). Dkt. 15. The court
granted that motion on all but one claim: a Title VII
retaliation claim against the Board of Regents. See
Burton, 2017 WL 3891702, at *4-6. After that
ruling, the sole remaining issue was whether Burton's
Title VII-protected activity (i.e., filing Burton I
and reporting a colleague's threatening hand gesture) was
the but-for cause of the “letter of direction”
that Burton received from defendant Dennis Shields, the UWP
chancellor, in June 2016.
then sought leave to file second, third, and fourth amended
complaints, asserting new theories of liability and adding
new allegations and claims in light of new events, including
her termination. Defendants did not oppose these requests, so
the court granted them.
alleges the following in her fourth amended complaint.
in November of 2014, Deborah Rice, a fellow professor in the
criminal justice department, began “making a series of
false and/or discriminatory statements” about Burton.
Dkt. 51, ¶ 107. Specifically, in November 2014, Rice
stated that Burton “is prejudiced against East
Germans” and “had a mental illness.”
Id. ¶¶ 113, 131. (Burton is German, and
does not have a mental illness.) Also, while Burton was out
on FMLA leave in the spring of 2015 due to an ulcer
condition, Rice “questioned the legitimacy” of
that leave to multiple UWP faculty and staff. Id.
¶ 152. In April 2016, Burton reported these comments to
defendant Janelle Crowley (UWP's director of human
resources), Staci Strobl (chair of the criminal justice
department), and various members of the UWP Complaints and
Grievances Commission. Chancellor Shields became aware of the
comments shortly thereafter. Burton requested a grievance
hearing against Rice based on these comments, but her request
in August 2016, UWP officials began investigating Burton
based a complaint lodged by Rice. Burton says that defendants
took these actions to retaliate against her for her prior
protected activity. This investigation caused Burton
significant stress, which in turn exacerbated Burton's
painful ulcer disorder. Burton emailed Crowley with a note
from her doctor asking that the investigation be postponed
for four weeks “to lower the chance of serious health
consequences.” Dkt. 51, ¶ 189. Crowley, acting as
an agent of the Board of Regents, denied this request, and
stated that the investigation would move forward even if
Burton was not able to participate.
this investigation was pending, Burton suffered additional
setbacks at work. One of Burton's colleagues in the
criminal justice department, Patrick Solar, demanded that
Burton's husband remove references to Solar from his
website, and Rice made additional false and harassing
comments about Burton. In September 2016, Rice stated that
that Burton “had previously lied about having Jewish
heritage” and that her “father had a relationship
with Nazis.” Id. ¶¶ 118, 122. In
October 2016, she repeated those allegations. Id.
¶¶ 116, 118, 146. She also stated that Burton is
“frequently bizarre, ” that her decision to
travel to Germany for the weekend was “manic and
irrational, ” that Burton “has a mental health
disorder that is undiagnosed and untreated, ” and that
she is “unstable, ” “narcissistic, ”
and “has frequent episodes of manic behavior.”
Id. ¶¶ 134, 140, 143, 148, 149. Burton was
also assigned a less prestigious teaching schedule for the
spring 2017 term. Burton complained about harassment and
retaliation to defendant Melissa Gormley (the interim dean of
the College of Liberal Arts and Education at UWP) in November
and December of 2016, asking her to intervene; Gormley did
not do so.
December 2016, Gormley and Elizabeth Throop (the acting
provost and vice chancellor for academic affairs at UWP)
learned that Burton had sent a letter to the Wisconsin
Attorney General's office complaining about a culture of
corruption and retaliation at UWP. In response to this letter
and other allegations against Burton, Gormley and Throop
filed a complaint with Chancellor Shields seeking
Burton's tenure revocation and dismissal from UWP. They
accused Burton of violating various laws and ethical
practices by publishing audio recordings and transcripts of
criminal justice department meetings; harassing,
intimidating, and threatening her co-workers and ignoring
directives to stop doing so; and involving students in her
personal grievances-charges that Burton disputes or denies.
complaint triggered proceedings under the administrative
rules for dismissing tenured faculty members in the
University of Wisconsin system. See Wis. Admin. Code
UWS § 4.01 et seq. In January 2017, Chancellor
Shields suspended Burton from her teaching duties and banned
her from campus pending the outcome of the administrative
proceedings. UWP officials also refused to authorize Burton
to continue teaching as an adjunct at UW-Milwaukee, causing
Burton to lose expected income.
requested a hearing in front of an appeals panel, as provided
under Wisconsin Administrative Code UWS § 4.04. The five
members chosen to serve on the appeals panel were biased
against her and had already made up their minds concerning
her tenure revocation and termination before the hearing took
place. The hearing proceeded over the course of three days:
May 25, September 19, and November 30, 2017. Burton requested
that the hearings proceed in half-day increments to
accommodate her ulcer symptoms, but her request was ignored.
Burton had a particularly bad ulcer flare-up on the night
before the May 25 hearing and was unable to attend as a
result. The appeals panel proceeded without Burton, giving
her no chance to confront or cross-examine the witnesses who
testified against her.
September 19 and November 30 hearings suffered from
procedural defects. Witnesses were not sworn, nor were they
sequestered while other witnesses testified. The appeals
panel did not give Burton enough time to adequately present
her defense, she was unable to present all of the testimony
she wanted to, and she was only able to cross-examine one
the hearing, the appeals panel recommended that Burton be
terminated. Chancellor Shields concurred in the
recommendation and sent it to the president of the University
of Wisconsin system and the Board of Regents. On June 8,
2018, the Board of Regents issued its decision terminating
Burton and revoking her tenure.
court will discuss more of Burton's allegations as they
become relevant to the analysis.
Overview of the claims
does not clearly set out the scope of her claims in her
546-paragraph complaint, and her brief in opposition to
defendants' motion to dismiss does little to clarify
things. The theory that animates her case is that UWP
undertook a campaign of retaliation against her based on her
2012 sexual harassment-related advocacy (the central issue in
Burton I) and the various protected activities she
engaged in along the way. But she also asserts new
discrimination-based theories. Although many of the new
claims are not developed, the court will set forth below its
understanding of the scope of the claims asserted in
Burton's fourth amended complaint.
Board of Regents violated Title VII and the Rehabilitation
• issuing Burton a letter of direction in June 2016
• maintaining her personnel file in a discriminatory
• assigning her to a less prestigious teaching schedule
in the spring of 2017
• withholding an investigation report from her
• initiating tenure revocation proceedings ...