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Burton v. Board of Regents of University of Wisconsin System

United States District Court, W.D. Wisconsin

March 29, 2019

SABINA BURTON, Plaintiff,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, CHANCELLOR DENNIS SHIELDS, JANELLE CROWLEY, DR. STACI STROBL, DEBORAH RICE, DR. MELISSA GORMLEY, DR. ELIZABETH THROOP, ROBERT ATWELL, JOHN ROBERT BEHLING, JOSE DELGADO, DR. TONY EVERS, MICHAEL GREBE, DR. EVE HALL, MIKE JONES, TRACEY KLEIN, REGINA MILLNER, JANICE MUELLER, DREW PETERSEN, CHRIS PETERSON, JASON PLANTE, RYAN RING, BRYAN STEIL, S. MARK TYLER, and GERALD WHITEBURN, Defendants.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Plaintiff 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.

         In a 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.[1]

         Defendants 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.

         ALLEGATIONS OF FACT

         The 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).

         In 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.

         In 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).

         In her 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.[2] 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.

         Burton 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.

         Burton alleges the following in her fourth amended complaint.

         Beginning 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 was denied.

         Beginning 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.

         While 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.

         In 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.

         This 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.

         Burton 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.

         The 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 witness-Chancellor Shields.

         After 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.

         The court will discuss more of Burton's allegations as they become relevant to the analysis.

         ANALYSIS

         A. Overview of the claims

          Burton 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.[3]

         Statutory retaliation

         . The Board of Regents violated Title VII and the Rehabilitation Act by:

• issuing Burton a letter of direction in June 2016
• maintaining her personnel file in a discriminatory manner
• assigning her to a less prestigious teaching schedule in the spring of 2017
• withholding an investigation report from her
• initiating tenure revocation proceedings ...

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