No. 16-2982

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

SABINA BURTON,

Plaintiff-Appellant,

v.

BOARD OF REGENTS OF THE UNIVERSITY

OF WISCONSIN SYSTEM,

THOMAS CAYWOOD, ELIZABETH THROOP, and

MICHAEL DALECKI,

Defendants-Appellees.

Appeal from the United States District Court

For the Western District of Wisconsin

Case No. 14-cv-274

The Honorable Judge James D. Peterson

BRIEF AND APPENDIX OF

PLAINTIFF-APPELLANT SABINA BURTON

ALDERMAN LAW FIRM

/s/ Kimberly Penix

_________________________

Kimberly Penix

Post Office Box 2001

Madison, WI 53701

(608) 620-3529

kimberly@aldermanlawfirm.com

Attorney for Plaintiff-Appellant

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CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Pursuant to Seventh Circuit Rule 26.1, counsel for plaintiff-appellant states:

1. The full name of every party that the attorney represents in this case:

Dr. Sabina Burton

2. The names of all law firms whose partners or associates have appeared for the party in

the case (including proceedings in the district court or before an administrative agency)

or are expected to appear for the party in this court:

Alderman Law Firm (Current)

Hawks Quindel, S.C. (Terminated 4/1/2016)

Fox & Fox, S.C. (Terminated 12/15/2014)

3. The parent corporations and any publicly held companies that own ten percent or more of

the stock of the party represented by the attorneys:

N.A.

Respectfully Submitted this 27th day of September, 2016

ALDERMAN LAW FIRM

/s/ Kimberly Penix

_________________________

Kimberly Penix

Post Office Box 2001

Madison, WI 53701

(608) 620-3529

kimberly@aldermanlawfirm.com

Attorney for Plaintiff-appellant

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ii i

TABLE OF CONTENTS

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT ................................................................... ii

TABLE OF CONTENTS ............................................................................................................... iii

TABLE OF AUTHORITIES ......................................................................................................... iv

JURISDICTIONAL STATEMENT ............................................................................................... 1

STATEMENT OF ISSUES PRESENTED FOR REVIEW ........................................................... 2

STATEMENT OF THE CASE AND FACTS ............................................................................... 2

SUMMARY OF THE ARGUMENT ........................................................................................... 16

STANDARD OF REVIEW .......................................................................................................... 16

ARGUMENT ............................................................................................................................... 17

1. The court erred by restricting Burton’s protected activities, omitting her complaints about

retaliation and discrimination .................................................................................................... 17

2. The court erred by restricting adverse actions against Burton to formal reprimands ........ 21

3. The court obliterated Burton's chance of showing a causal connection by wrongly

circumscribing both protected activities and adverse actions, and ignoring evidence from

which a reasonable jury could find that Plaintiff faced retaliation ........................................... 28

4. The court improperly drew factual inferences in favor of the party moving for summary

judgment ................................................................................................................................... 31

CONCLUSION ............................................................................................................................. 36

CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7)(B) ................................... 37

CIRCUIT RULE 30(d) STATEMENT ......................................................................................... 38

CERTIFICATE OF SERVICE ..................................................................................................... 39

INDEX TO APPENDIX ............................................................................................................... 40

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iv

TABLE OF AUTHORITIES

Cases

Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185 (7th Cir. 1990) .................... 16

Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560 (7th Cir. 1996) ..................................... 32

Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101 (7th Cir. 2012) ....................................... 21

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) ................................................. 17

Carlson v. CSX Transp., Inc., 758 F.3d 819 (7th Cir. 2014) ........................................................ 28

Carothers v. Cnty of Cook, 808 F.3d 1140 (7th Cir. 2015) .......................................................... 16

Casna v. City of Loves Park, 574 F.3d 420 (7th Cir. 2009) .......................................................... 19

Chaib v. State, 744 F.3d 974 (7th Cir. 2014) .......................................................................... 17, 21

Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012) ..................................................................... 36

Daniels v. Brennan, 887 F.2d 783 (7th Cir. 1989) ......................................................................... 1

Gleason v. Mesirow Financial, Inc., 118 F.3d 1134 (7th Cir. 1997) ...................................... 17, 19

Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) .................................................................. 26, 27

Gross v. Ppg Indus. Inc., 636 F.3d 884 (7th Cir. 2011) ................................................................ 16

Hertz v. Luzenac Am., Inc., 370 F.3d 1014 (10th Cir. 2004) ........................................................ 19

Hobbs v. City of Chi., 573 F.3d 454 (7th Cir. 2009) ..................................................................... 27

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) ......................................................... 20

Johnson v. Cambridge Industries, Inc., 325 F.3d 892 (7th Cir. 2003) ......................................... 22

Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317 (7th Cir. 1992) ...................... 31

Lambert v. Peri Formworks Sys., Inc., 723 F.3d 863 (7th Cir. 2013) .......................................... 28

Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720 (7th Cir. 2009) ................................................ 21

Malin v. Hospira, Inc., 762 F.3d 552 (7th Cir. 2014) ................................................................... 31

Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378 (7th Cir. 2012) ............................................ 17

Nagle v. Vill. of Calumet Park, 554 F.3d 1106 (7th Cir. 2009) .................................................... 22

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v

O’Leary v. Accretive Health Inc., 657 F.3d 625 (7th Cir. 2011) .................................................. 17

Petru v. City of Berwyn, 872 F.2d 1359 (7th Cir.1989) .................................................................. 1

Roney v. Illinois Dep’t of Transportation, 474 F.3d 455 (7th Cir. 2007) ..................................... 22

Serafinn v. Local 722, 597 F.3d 908 (7th Cir., 2010) ..................................................................... 1

Silverman v. Bd. of Educ. of Chi., 637 F.3d 729 (7th Cir. 2011) ............................................ 21, 22

Simpson v. Merchants Recovery Bureau, Inc., 171 F.3d 546 (7th Cir. 1999) .............................. 32

Stephens v. Erickson, 569 F.3d 779 (7th Cir. 2009) ..................................................................... 21

Tobey v. Extel/JWP, Inc., 985 F.2d 330 (7th Cir. 1993) ............................................................... 16

Tomanovich v. City of Indianapolis, 457 F.3d 656 (7th Cir. 2006) .............................................. 19

Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir.1987) ................................................................. 25, 26

Other Authorities

Fed. R. Civ. P. 56(a) ..................................................................................................................... 16

Statutes

20 U.S.C. § 1681 ............................................................................................................................. 1

20 U.S.C. § 1681(a) ...................................................................................................................... 20

28 U.S.C. § 1291 ............................................................................................................................. 1

28 U.S.C. § 1343(a)(3) .................................................................................................................... 1

28 U.S.C. §§ 1331 ........................................................................................................................... 1

42 U.S.C. § 1983 ............................................................................................................................. 1

42 U.S.C. § 2000e ........................................................................................................................... 1

42 U.S.C. § 2000e-2(a)(1) ............................................................................................................. 17

42 U.S.C. § 2000e-3(a) ................................................................................................................. 17

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JURISDICTIONAL STATEMENT

1. Jurisdiction of the District Court

In this civil action, Burton alleged that Defendants deprived her of her rights under 42

U.S.C. § 2000e et seq. (Title VII), 20 U.S.C. § 1681 (Title IX), the Equal Protection Clause of

the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983. Therefore,

the U.S. District Court had original jurisdiction over this civil action pursuant to 28 U.S.C. §

1331 and 28 U.S.C. § 1343(a)(3).

2. Jurisdiction of the Court of Appeals

28 U.S.C. § 1291 confers jurisdiction over this appeal on the United States Court of

Appeals. This appeal is taken from a final decision of the U.S. District Court for the Western

District of Wisconsin entered on March 18, 2016, by the Honorable District Judge James D.

Peterson.1 (R. 90). Burton’s Notice of Appeal was timely filed with the District Court on July 20,

2016. (R. 108).

1 The Notice of Appeal, filed by pro se plaintiff-appellant Burton, indicates she appeals the June 22, 2016,

denial of her Rule 59(e) motion to reconsider the final judgment, rather than the March 18, 2016, final

judgment. (R. 106). As noted in the Docketing Statement, Burton requests this Court treat her appeal as

one of the March 18, 2016, order granting summary judgment. (R. 90). See Daniels v. Brennan, 887 F.2d

783, 790 n.6 (7th Cir. 1989) (indicating, “An appeal from a denial of a Rule 59(e) motion is treated as an

appeal from the judgment itself”); See also Petru v. City of Berwyn, 872 F.2d 1359, 1361-62 (7th Cir.

1989) (treating a notice of appeal from denial of Rule 59(e) motion as an appeal of the underlying

judgment); See also Serafinn v. Local 722, 597 F.3d 908, 917 (7th Cir., 2010) (recognizing Petru as

allowing appeals from Rule 59 denials as if from underlying judgments).

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STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Did the court err by restricting Burton’s protected activities, omitting her complaints

about retaliation and discrimination?

2. Did the court err by restricting adverse actions against Burton to formal reprimands?

3. Did the court ignore a myriad of evidence showing a causal connection by wrongly

circumscribing the protected activities and adverse actions it would consider?

4. Did the court improperly draw factual inferences in favor of the party moving for

summary judgment?

STATEMENT OF THE CASE AND FACTS

Background

In 2012, plaintiff-appellant and University of Wisconsin-Platteville (“UWP”) Associate

Professor Dr. Sabina Burton (“Burton”) reported to the administration that a female student had

received a solicitous note from one of Burton’s Criminal Justice (“CJ”) Department colleagues.

Burton later complained that the CJ Chair was retaliating against her for that report and that there

were sex-discriminatory practices in the CJ Department. Every time Burton complained about

being treated unfairly, she was alienated and retaliated against even more, at first by her

department chair but later by the administration as well.

As a result of this mistreatment, Burton filed the complaint initiating the underlying case

on April 14, 2014. (R. 1).2 On November 10, 2015, UWP filed a motion for summary judgment,

arguing that Burton could not succeed on her claims. (R. 44). In opposing summary judgment,

Burton dismissed six of her eight claims, leaving only her two retaliation claims. (R. 57:4). In an

2 References to “R.__:__” refer to the docket (“ECF”) number and page number of items filed as part of

the district court record.

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order dated March 18, 2016, the district court entered summary judgment in favor of UWP on

those two claims. (R. 90:26). This appeal follows.

Facts

In August of 2009, UWP hired Burton as an Assistant Professor within the CJ

Department. (R. 45:7, ¶ 21). She was promoted to Associate Professor on August 26, 2012. (R.

45:8, ¶ 25). On October 10, 2012, a female student approached Burton after receiving an

inappropriate and solicitous note from a male CJ professor. (R. 51-1 (image of the note, App. Ex.

C; R. 51:2 , ¶¶ 7-16). Burton immediately went by the CJ Chair’s (Dr. Thomas Caywood,

hereinafter “Chair Caywood”) office but he was gone for the day. (R. 53-29:1). She emailed the

Dean of Liberal Arts and Education (Elizabeth Throop, hereinafter “Dean Throop”) and, without

providing details, asked whether she should report inappropriate faculty conduct toward a

student to the CJ Chair or to Student Affairs. (R. 53-23:2, App. Ex. D). Dean Throop instructed

Burton to report the incident to the Dean of Students, which Burton did. (R. 53-23:1 (as to Dean

Throop’s instruction); R. 53-29:1 (as to Burton’s report)).

The offending professor claimed he gave the solicitous note to the student as part of a

secret experiment on societal norms. (R. 53-24:3). Dean Throop inquired whether the experiment

had been approved in advance by the Institutional Review Board (“IRB”), as would have been

required. (R. 53-24:3-4). The required approval had neither been sought nor given, so Chair

Caywood said he had approved the experiment. (R. 53-24:3-4 (indicating that no approval was

sought or given); R. 53-28:1 (indicating that Chair Caywood approved the “breach

experiment”)).

Later, the grievance committee found the offending professor had exercised “extremely

poor judgment” as to the note, and expressed doubt that the reason for it was truly academic in

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nature. (R. 53-32:1, App. Ex. E). After the incident, the professor had sent an email to the class

that the grievance committee determined was a “reprehensible… version of slut-shaming.” (R.

53-32:1; R. 51:3-4, ¶¶ 22-26 (the student explaining that the email made her “look like an

idiot”)). Despite the grievance committee’s finding, the record does not reflect that the professor

was either disciplined or reprimanded. (R. 42:7, l. 17-21 (Dean Throop indicates that Burton’s

relevant grievances resulted in “no consequences”).

After the incident, rather than focusing on the professor’s infraction, Chair Caywood

focused on Burton’s reporting of the matter. On October 16, 2012, he unilaterally issued a new

policy on how such complaints should be handled. (R. 53-6). The gist of the new Caywood

Policy was that, “If a student has a complaint about what a faculty/staff member said or did in

class direct the student to come to me immediately. I will try to ascertain what exactly happened

and if necessary forward the complaint to the appropriate persons on campus.” (R. 53-6). The

policy was announced at a departmental meeting the month after the incident, during which

Burton indicated that Caywood “made a big deal about [Burton’s reporting of the note].” (R.

38:261, l. 8-19). Dean Throop later indicated that she did not know “why Caywood did not

manage this conflict and, indeed, why he exacerbated the problem by publicly chastising Burton

for going around him.” (R. 42:106, l. 22-25, p. 107, l. 1-5). On October 17, 2012, human

resources director Jeanne Durr wrote Chair Caywood that “under the circumstances, [Dr. Burton

had] acted quite appropriately.” (R. 53-5). For the remainder of the semester after Burton

reported the solicitous note, Chair Caywood took out his frustration over the incident on Burton.

(R. 37-13:1-2). She reported the reprisal to the administration, to no avail. (R. 37-13:1).

Meanwhile, Burton had been assisting the CJ Department to become current with respect

to cyber security, a critical component of modern criminal justice departments. (R. 53-19; R. 53-

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20; R. 54-5; R. 54-7). Those efforts were focused on developing a curriculum with a long-term

goal in mind of developing a B.S. program in cyber security at UWP. (R. 53-49:3). The efforts

were cooperative in nature, involving the Director of Sponsored Programs Bob Roberts, Chair

Caywood, and Burton. (R. 54-7:1; R. 53-49:1). On August 10, 2012, a City of Platteville and

UWP feasibility study explained that UWP would, in the future, be “a leader in Forensic Science,

Cyber Security, and Criminalistics.” (R. 101-5:26).

On August 21, 2012, Burton was encouraged by the Chancellor’s office to use the

feedback she received from an April 2012 National Science Foundation (“NSF”) grant

application, which Chair Caywood formally endorsed, to prepare further applications. (R. 53-

49:1; R. 54-6:1). The NSF grant application had been focused on UWP’s efforts to develop an

“Applied Bachelor of Science Degree in Cyber Science with curriculum allowing students to get

certificates and/or minors in cyber security specializations.” (R. 53-49:3).

Having done so, on September 12, 2012, Burton successfully secured a grant from AT&T

for a modest sum ($7,000) that would allow Burton to develop the cyber security curriculum that

would be a starting point for a potential cyber security program at UWP. (R. 37-6; R. 53-8:1).

Chair Caywood did not oppose this effort. (R. 36-12:1). Additionally, in an email thread dated

November 19, 2012, Chair Caywood suggested that Burton develop a certificate program in

cyber security. (R. 53-9). Burton forwarded his suggestion to Dean Throop, who responded,

“Terrific! This sounds like progress. I’m pleased for you.” (R. 53-9). Burton also built webpages

to show potential donors what the program might look like, if funded. (R. 37-2; R. 37-3). She

showed the webpages to Chair Caywood on October 8, 2012. (R. 53-22). He did not voice any

objections at that time and, in fact, showed support for Burton’s efforts as late as October 10,

2012. (Id.; R. 36-12:1).

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Despite Chair Caywood and Dean Throop’s initial showing of support for Burton’s

efforts to build a cyber security curriculum at UWP, the pair’s attitude toward Burton and her

efforts changed after the solicitous note-reporting incident. (R. 53-9; R. 53-49:1; R. 37-5:1; R.

53-4). On January 24, 2016, the duo expressed concern over the AT&T grant application’s

portrayal of the department’s cyber security initiatives. (R. 53-4 (Chair Caywood indicated, “I’m

not aware that the CJ Department approved a cyber security program or the development of

one”); R. 37-7 (Dean Throop indicates, “I have advised [Burton] to stop making representations

about a ‘cyber-security program’”)). Dean Throop suggested to AT&T that perhaps the

ceremony for Burton’s grant be cancelled because of some wording in the draft press release. (R.

53-16:1). But it turned out to be an easy edit, and AT&T was able to update its draft to Dean

Throop’s satisfaction with a quick phone call. (R. 53-16:1). Despite the fuss, the award ceremony

proceeded as planned on January 28, 2013. (R. 36-7:1). Later, it was recommended that Dean

Throop write AT&T to repair the damage done to Burton’s reputation in the kerfuffle, but she

did not. (R. 101-21:2).

Despite previous support and even cooperation, on January 24, 2013, Chair Caywood

wrote a formal letter to Burton to complain that she was putting “the cart before the horse” on

her cyber security efforts. (R. 53-4:1). He complained to Burton that her webpages with the

proposed program milestones were deceptive, even though he had not complained when Burton

showed them to him the previous October. (R. 53-4:1; R. 53-22). Despite all his earlier support,

even of the NSF application for program development, he now “caution[ed]” Burton not to

advertise the pursuit of a cyber security curriculum, explaining “the department” was not in

support. (R. 53-4:2). Of course, Chair Caywood’s gaslighting greatly embarrassed Burton, as he

copied Dean Throop on the letter, and it made Burton look like a rogue professor. (R. 37-5:3).

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In January 2013, Burton became eligible for tenure, and so applied. (R. 45:8, ¶ 28). Chair

Caywood did not support her tenure bid. (R. 36:9, ¶ 25; R. 40:79, l. 5-9; R. 48:15-17 (Chair

Caywood explaining, “Women do not belong in the criminal justice field.”)). Despite Chair

Caywood’s efforts to derail Burton’s campaign, on August 21, 2013, Burton’s tenure bid was

ultimately successful. (R. 45:8, ¶ 28).

On March 28, 2013, while she attempted to get her tenure despite being opposed by the

CJ Chair, Burton complained that Chair Caywood was treating her unfairly, both in retaliation

for the reporting incident described above and as part of his generally sex-unequal campaign. (R.

101-21:1 (explaining Burton’s grievances against Chair Caywood)). On April 12, 2013, a

hearing was held and the grievance committee found that Chair Caywood had “serious[ly]

mishandled” the student complaint and punished Burton for her report, and showed an

“appearance of favoritism toward one of Burton’s male colleagues… [and] some lack of support

for Dr. Burton.” (R. 101-21:1). The committee recommended, in pertinent part, that the Dean of

the College of Liberal Arts and Education write a letter to AT&T to restore Burton’s professional

reputation, that the Criminal Justice department take steps to resolve the dysfunction within the

department and take advantage of Burton’s willingness to be more actively involved in the hiring

of new faculty members. (R. 101-21:2). As discussed infra, however, Burton was nonetheless

excluded from all the search and screen committees formed for the Fall of 2014. (R. 43-6).

Although they were not paneled to do so, the committee further recommended a course of action

for the solicitous note-writing professor, Dr. Gibson, because his actions were “so egregious.”

(R. 53-32:1). The administration did not respond to or act on the grievance committee’s findings

and recommendations.

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On July 10, 2013, Chair Caywood was removed from his position as departmental chair,

and replaced by Mike Dalecki (hereinafter, “Chair Dalecki”). (R. 37-9:1). Chair Dalecki noted,

“Tom [Caywood]’s removal and my replacing him was a tacit if not overt admission that at least

some of her (Burton’s) complaints were likely valid.” (R. 34-2:4). In Dean Throop’s internal

notes, she remarked that Chair Caywood had, indeed, “exacerbated the problem by publicly

chastising Burton for going around him,” with regard to reporting the solicitous note incident.

(R. 42:106, l. 22-25, p. 107, l. 1-5). On August 13, 2013, Burton filed a discrimination charge

with the Equal Rights Division (“ERD”) alleging that Dean Throop and Chair Caywood had

retaliated against her and that the university had failed to address her grievances regarding this

retaliation as well as the sex discrimination in the CJ department. (R. 54-1). In a meeting with

Chair Dalecki on October 17, 2013, he indicated that the Dean may not have confidence in

Burton’s ability to serve as chair in the future based on her complaints, although he conceded

that if he “had [] experienced what she had experienced, [he] might have felt little alternative

other than complaining to higher-ups” as well. (R. 34-2:3-4). He contrasted Burton’s complaints

to being a “team player” and being “someone [they] could trust.” (R. 34-2:4).

On November 6, 2013, Burton complained that the administration had failed to follow the

proper procedures as outlined in Faculty Bylaws (Part III, Article 1) when it replaced Chair

Caywood with Chair Dalecki. (R. 53-33; R. 53-17). On December 2, 2013, a hearing was held,

and the grievance committee found that the chair selection had not been consistent with

university policy. (R. 53-17:1-2). Despite the grievance committee’s findings, it only required

that the proper procedure should be followed in appointing the next department chair. (R. 53-

17:2).

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Throughout 2013, the CJ department was patently dysfunctional, and undergoing

administrative changes in an attempt to get it performing better. (R. 53-17:2; R. 101-21:1). The

grievance committee recommended communication training. (R. 101-21:2). Human resources

recommended diversity and harassment training. (R. 53-36; R. 48:17, l. 14-22). The upper

administration encouraged hiring outside consultants to assist with conflict resolution in the

department. (R. 101-7:1). The mandatory communication training was never conducted, nor was

diversity and harassment training, and outside consultants were never retained. (R. 47:18, l. 10-

18 (Stackman indicated that she did not recall any conversations at the department level about

communication or conflict resolution training); R. 48:17, l. 23-15, p. 18, l. 1-2 (Lohmann

indicates that he did not take any steps to implement diversity and harassment training, nor was

he aware if any such training was ever provided)).

Despite the foregoing, Burton persisted in excelling within the CJ department in the Fall

of 2013. She oversaw the only successful faculty search that produced two new hires. (R. 39:483,

l. 18-25, p. 484, l. 1-2). She taught more courses than required without any increase in her salary.

(R. 39:438, l. 11-25; 439, l. 8-12). Her course evaluations were excellent. (R. 41:159, l. 1-21).

Her relationship with other colleagues has remained collegial. (R. 46:8, l. 2-10 (a colleague

describing her relationship with Burton as “good” and “collegial”); R. 47:21, l. 3-12 (a colleague

describing Burton as “happy-go-lucky”).

In July of 2014, Burton asked to teach in the online graduate program. (R. 34-4:2). Chair

Dalecki said he would not allow her to do so because he anticipated the student minimum would

not be met. (R. 34-4:1). However, the agreement for online course development does not indicate

that a student minimum applies. (R. 53-2). He also said he did not want her teaching it as part of

“load,” although numerous other professors had done so. (R. 34-4; R. 46:24, l. 11-14).

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On October 20, 2014, Burton filed a charge with the EEOC complaining about the

ongoing discrimination and retaliation that she was experiencing at UWP. (R. 54-2). The

following week, on October 28, 2014, Dean Throop sent Burton a Letter of Direction (“LOD”)

complaining about Burton’s “activities.” (R. 37-15:4-6).

• The LOD complained first about Burton’s having made accusations about Chair Dalecki

without factual support or specificity. (R. 37-15:4). Yet, Burton made her allegations

specifically in a series of emails she sent prior to the LOD. (R. 43-6:2; R. 53-13; R. 43-1:2-

4). She could also have presented evidence at a hearing on the matter, if the administration

had not delayed the hearing Burton then requested for many months, to the point of being

rendered moot. (R. 43-12:6-7). Burton further contends, infra, that her complaint had been a

protected activity.

• The LOD complained that Burton had written a departmental email “threatening” the

investigation of allegations of departmental corruption. (R. 37-15:4; R. 37-14:1-2). But no

reasonable reader would interpret Burton’s email as a “threat.” (R. 37-14:1-2, App. Ex. G). It

is more of a conversation point or, liberally construed, a proposition. (R. 37-14:1-2). Burton

further contends, infra, that this discussion on how to rehabilitate the broken CJ Department

in light of the corruption had been a protected activity.

• The LOD complained that Burton had not given more time attending to the German

delegation. (R. 37-15:4). But the German delegation was a guest of the department, and

invited by the International Programs Office. (R. 41:127, l. 22-25; R. 101-13). Burton’s

mother was very ill during that time, and any time Burton spent was unpaid. (R. 34-3).

Burton had already given a considerable amount of time, and allowed transportation, events,

and meals to be paid for by her personal honorarium. (R. 34-3; R. 39:386, l. 5-16).

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• The LOD complained that Burton had asked assistant professor Valerie Stackman to housesit

for her. (R. 37-15:4-5). Stackman defended that Burton had just asked if she would be willing

to watch the house if Burton needed to visit her sick mother. (R. 47:13-14). Stackman had

responded, “Sure,” but did not end up housesitting for Burton. (R. 47:14, l. 11-12). When

Stackman mentioned the possibility to Chair Dalecki in passing, he dissuaded her from

helping Burton, saying that the house could catch on fire. (R. 47:14-15). Burton and

Stackman had a friendly relationship outside of work, as Stackman had asked Burton and

Burton’s husband to stand as witnesses to Stackman’s wedding. (R. 47:39-40). Stackman’s

deposition testimony indicated housesitting was not a big deal to her, as she had previously

baby and house sat for colleagues. (R. 47:15, l. 4-10). However, Dean Throop was informed

about, so she and Chair Dalecki made a big deal out of it, going so far as to use it as an

explanation for their earlier decision to remove Stackman as Burton’s mentee. (R. 53-37:3;

R. 37-15:4-5). Lohmann indicated that, during his time as human resources director at UWP,

he was not aware of any employee who was disciplined for asking a colleague to house sit.

(R. 48:43, l. 2-6). Although Dean Throop’s letter complained that Burton had had “other poor

interactions” with Stackman, this assertion was never explained nor substantiated and, in

fact, was directly controverted by Dr. Stackman’s deposition testimony. (R. 47:31, l. 3-12).

The LOD concludes by complaining that Burton complained about Stackman’s wrongful

removal as Burton’s mentee. (R. 37-15:5; R. 53-37:2). Burton contends, infra, that

complaining about disparate treatment and retaliation in this instance was a protected

activity.

• The LOD complained that Burton had sent a terse email to a staff member. (R. 37-15:5; R

37-11 (the allegedly terse email), App. Ex. H). But Caywood had used equally terse tones in

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the past without reproach and English is not Burton’s first language. (R. 53-29:2 (email from

Dr. Caywood), App. Ex. I; R. 43-8:4; R. 34-2:3 (acknowledging a language barrier in

reference to colloquialisms). A reasonable read of the email indicates that it was not of such a

deplorable character that it should result in a write-up. (App. Ex. H.) Further, the email was

soliciting information to contest a departmental matter, which Burton contends, infra, is a

protected activity.

• The LOD complained about a situation where Burton had complained that Assistant

Professor Dr. Patrick Solar violated university policy in the process of creating a job

advertisement. (R. 37-15:5). Solar admitted the violation, and Burton had indicated it may be

included in his annual report as provided for in the Policies and Procedures for the Criminal

Justice Department (effective August 22, 2011), which are designed to give probationary

faculty members like Solar input to help put them in good standing when they become

eligible for tenure. (R. 53-14:1-2). The LOD characterized Burton as having “threatened” Dr.

Solar, but a reasonable read of the email results in a finding that it is, at worst, harsh, but true.

(R. 37-15:5; R. 53-14:1-2).

• Finally, the LOD complained that Burton had told students they were not required to go to

the department chair with certain kinds of complaints. (R. 37-15:5). However, university

policy lists several appropriate persons to whom victims of sexual harassment may take their

complaints. (R. 40:65-66; R. 53-23:1).

The LOD directed Burton, in effect, to sit down and shut up. (R. 37-15:5-6). Burton, however,

declined to do so. (R. 37-15:7; R. 54-17:1).

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On November 12, 2014, Burton filed a grievance against Dean Throop concerning the

LOD. (R. 37-15:7). Burton requested a hearing on her grievance, and indicated in a rebuttal

document that the LOD was based on complaints that were either not true or admonished her for

exercising her own rights to engage in protected activities. (R. 54-17:2; R. 37-15:30-38). Burton

did not receive a timely grievance hearing so, in December, Burton filed a charge with the Equal

Employment Opportunity Commission (EEOC), alleging that she had experienced intimidation

and disciplinary action “[a]s a result” of filing her first charge of discrimination. (R. 37-15:23; R.

54-2).

On November 13, 2014, the day after Burton filed her responsive grievance regarding the

LOD, Provost Den Herder said publicly at a departmental outing, “Sabina is all alone on a

sinking ship.” (R. 52:3-4, ¶¶ 17, 18). In late November, 2014, Chair Dalecki chastised the

graduate student who reported Herder’s statements to Burton. (R. 52:5, ¶¶ 24-29). This graduate

student then lost his position due to “lack of funds.” (R. 52:6, ¶¶ 31-32).

The following week, Dean Throop emailed Burton and said she had been anonymously

“informed” that Burton had cancelled her last class of the semester to go to Germany. (R. 43-

3:2). The email asked for no confirmation or explanation, instead threatening that the Dean

would be pursuing disciplinary measures against Burton. (R. 43-3:2). However, there was no

factual basis for this allegation and threat; the students confirmed their and Burton’s attendance

in that class. (R. 42:15 l. 22-25, p. 16, l. 1-2; R. 43-3:1; R. 42:124, l. 21-23). On January 5, 2015,

in a formal UWS 6.01 Complaint, Dean Throop complained that Burton’s reaction to her attack

by soliciting her students’ confirmation that she had held classes was sufficient grounds for Dean

Throop’s LOD and ensuing formal complaint about Burton. (R. 37-15:2-3). In her deposition on

October 28, 2015, Throop indicated that CJ Professor Deborah Rice initially informed her that

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Burton had cancelled class. (R. 42:14, l. 6-25). Rice denied that she so informed Dean Throop.

(R. 49:14, l. 8-23).

The hearing Burton had requested on her grievance concerning the LOD was repeatedly

delayed for 11 months against Burton’s wishes. (R. 54-17:3-4). Nearly a year after she filed her

grievance, on October 16, 2015, the grievance committee finally offered to schedule a hearing.

(R. 54-17:4). By this time, Burton had hired counsel and filed the complaint in the instant matter

and, on counsel’s advice, did not avail herself of the hearing. (R. 1).

Having become a persona non grata, Burton was no longer allowed to participate in

prestigious committee or chair assignments. (R. 37-13:3 (in an email dated December 10, 2012,

Chair Caywood denied Burton’s request to chair a search and screen committee); R. 41:35, l. 8-

24 (Dalecki recounts refusing Burton’s request to chair a search and screen committee for one

even one of three new positions)). She was denied membership on multiple search and screen

committees. (R. 37-13:3; R. 41:35, l. 8-24). Following this denial, Burton emailed Dean Throop

on December 10, 2012, indicating that she believed she was being discriminated against based on

her sex. (R. 37-13:2). Even though she was qualified, she was not considered for department

chair because the administration perceived her asserting her rights as being combative. (R. 34-

2:3-4).

There were also many petty slights along the way. She was called crazy. (R. 52:3, ¶ 14).

CJ staff told students that “Burton would not be at UW-Platteville much longer.” (R. 52:3, ¶ 11).

The administration removed Burton’s mentee but refused to give a reason; only months later was

she given the housesitting pretext. (R. 53-37:3; R. 37-15:4-5). Her restorative justice assignment

was taken away and given to a new hire. (R. 41:100, l. 2-5 (Dalecki indicates that Burton worked

on restorative justice); R. 41:100, l. 7-16 (Dalecki indicates he assigned another CJ professor to

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restorative justice because he did not want to “overburden” Burton)). But serving on committees

and performing mentorship responsibilities are necessary to support an application for academic

promotion. (R. 41:30, 36).

On March 18, 2016, the district court issued an order granting summary judgment in

favor of Defendants. (R. 90:26). The court first concluded that Burton’s Title IX claim failed

because Burton “failed to adduce evidence of a materially adverse action.” (R. 90:19). In

reaching this conclusion, the court considered only two potentially adverse actions: (1) Caywood

publicly criticized Burton in the months following her report of student harassment; and (2)

Caywood and Dean Throop withdrew their support of Burton’s efforts to develop a cyber

security program. (R. 90:14).

The court further found that Burton’s Title VII claim failed. (R. 90:19-26). The court first

determined that Burton’s reporting of the note was not a protected activity under Title VII,

because there was no employment relationship between the student and the professor. (R. 90:19-

20). The court next considered whether Burton could state a Title VII claim based on retaliation

following (1) her charge with the ERD on August 13, 2013, and (2) her charge with the EEOC

on December 9, 2014. (R. 90:20). In making this consideration, the court only considered two

potentially adverse actions: (1) during the 2013-14 school year, Dalecki repeatedly pressured

Burton to drop her charges; and (2) between October 2014 and January 2015, Dean Throop took

or threatened to take disciplinary actions against Burton. (R. 90:21-22). The court determined

that Dean Throop’s Letter of Direction and formal complaint to the chancellor are materially

adverse actions, but that there was no causal connection between these items and Burton’s

charges and lawsuit. (R. 90:23-25).

Burton herein appeals.

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SUMMARY OF THE ARGUMENT

In granting the Defendants’ motion for summary judgment, the district court failed to

consider the entirety of the evidence in support of Burton’s claim, instead focusing its

consideration on a few, select events. Summary judgment is only appropriate where all of the

pleadings, depositions, answers to interrogatories and admissions on file, together with the

affidavits, show that “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In this case, it was impossible for

the court to have construed all the facts in a light most favorable to Burton, because it did not

consider Burton’s full account of the facts. Therefore, because the district court only considered

a select, few events and usurped the role of the fact-finder, its decision granting Plaintiffs’

motion to dismiss was in error.

STANDARD OF REVIEW

This Court reviews a district court’s grant of summary judgment using a de novo standard

of review. Gross v. PPG Indus. Inc., 636 F.3d 884, 888 (7th Cir. 2011). That is, this Court will

review the judgment “without deference for the view of the district judge and hence almost as if

the motion had been made to [this Court] directly.” Tobey v. Extel/JWP, Inc., 985 F.2d 330, 332

(7th Cir. 1993) (citing Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1188

(7th Cir. 1990)). In undertaking this review, this Court must “examine the entire record in the

light most favorable to [the nonmoving party].” Carothers v. Cnty of Cook, 808 F.3d 1140, 1147

(7th Cir. 2015) (citation omitted). Summary judgment is appropriate only where there are no

genuine issues of material fact, and judgment is required as a matter of law. Fed. R. Civ. P.

56(a).

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ARGUMENT

For Burton’s claims of retaliation under both Title IX and VII, she must produce

evidence which, when viewed in the light most favorable to her, would permit a reasonable jury

to find that: (1) she engaged in protected activity; (2) Defendants took an adverse action against

her; and (3) there is a causal connection between the protected activity and the adverse action.

Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 388 (7th Cir. 2012). “The showing a

plaintiff must make to set out an adverse employment action required for a retaliation claim is

lower than that required for a discrimination claim; a plaintiff must only show that the

employer’s action would cause a ‘reasonable worker’ to be dissuaded from making or supporting

a charge of discrimination.” Chaib v. State, 744 F.3d 974, 986-987 (7th Cir. 2014) (citing

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).

1. The court erred by restricting Burton’s protected activities, omitting her complaints

about retaliation and discrimination

A. Activities Protected Under Title VII

Title VII prohibits employment discrimination based on sex. 42 U.S.C. § 2000e-2(a)(1).

42 U.S.C. § 2000e-3(a) defines a statutorily protected activity to include opposing a practice

made unlawful by Title VII. Therefore, Burton participated in a protected activity anytime she

“report[ed] or otherwise oppos[ed] conduct prohibited by Title VII” in this instance, employment

discrimination based on sex. See Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1146 (7th

Cir. 1997). Burton is not required to show that the conduct she opposed was in fact a violation of

either statute, as long as her opposition was “based on a good-faith and reasonable belief that

[she] is opposing unlawful conduct.” O’Leary v. Accretive Health Inc., 657 F.3d 625, 631 (7th

Cir. 2011).

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In granting summary judgment, the district court concluded that Burton did not

participate in a protected activity under Title VII when she reported the solicitous note because

“Burton was not opposing an unlawful employment practice.” (R. 90:19-20). However, the

district court found that Burton engaged in protected activity under Title VII when she filed a

complaint with the Equal Rights Division (ERD) on August 13, 2013, alleging that she was

discriminated against because of her sex. (R. 90:21). The district court also considered that

Burton filed a charge of discrimination with the EEOC on December 9, 2014, alleging in

pertinent part that she had experienced retaliation for engaging in activities protected under Title

VII. (R. 90:21). The district court concluded that Burton had properly exhausted her

administrative remedies for retaliation. (R. 90:21).

The district court did not consider whether Burton engaged in any other protected

activities. (R. 90 at 20-21). However, the record in this case indicate that Burton had engaged in

many other activities protected under Title VII:

• On December 10, 2012, Burton emailed Dean Throop, indicating that Chair Caywood

was discriminating against her and other women in the CJ department on the basis of

their sex. (R. 37-13:2).

• In March of 2013, Burton filed a grievance with the Complaints and Grievances

Commission against Chair Caywood for retaliation on the basis of her sex that was heard

on April 12, 2013. (R. 101-21).

• On June 6, 2014, Burton emailed the CJ department and indicated that Dalecki

“artificially mark[ed] Burton lower on teaching performance” due to her sex. (R. 43-1:2).

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• On October 20, 2014, Burton filed a charge of discrimination with the EEOC, alleging

that she was discriminated against in violation of Title VII on the basis of her sex. (R. 54-

2:1, 3).

Burton’s March 2013 grievance and October 20, 2014, charge with the EEOC are

undeniably protected activities. See Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th

Cir. 2006) (citing Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. 1997) (explaining

that “filing an official complaint with an employer may constitute statutorily protected activity

under Title VII” where the complaint “indicate[s] the discrimination occurred because of

sex…”); See Tomanovich, 457 F.3d at 663 (noting that the filing of a charge of discrimination

with the EEOC satisfies the requirement that the plaintiff engage in statutorily protected

activity).

Although less formal, Burton’s emails dated December 10, 2012, and June 6, 2014,

which complained of sex discrimination, were additionally protected activities. See Casna v. City

of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009) (holding, “an informal complaint may

constitute protected activity for purposes of retaliation claims”). In Casna, this Court noted with

approval that other circuits have held that statutorily protected activity can include “voicing

informal complaints to superiors.” Id. (quoting Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015

(10th Cir. 2004) (further citations omitted).

In granting summary judgment and dismissing Burton’s case, the district court did not

consider the additional four activities, discussed supra. Therefore, it considered that Burton’s

protected activities did not begin until August 13, 2013 (with the filing of her ERD complaint),

rather than eight months prior, on December 10, 2012 (with her first email to Dean Throop

indicating that she believed she was being discriminated against on the basis of her sex). As

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described infra in section 2, many of the adverse actions taken against Burton took place during

this eight-month period. However, without acknowledgement that Burton’s protected activities

began on December 10, 2012, the analysis of adverse actions taken against Burton was

improperly limited.

B. Activities Protected Under Title IX

Under Title IX, “no person in the United States shall, on the basis of sex, be excluded

from participation in, be denied the benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).

Although Title IX does not include a separate retaliation provision, “Title IX’s private right of

action encompasses suits for retaliation, because retaliation falls within the statute’s prohibition

of intentional discrimination on the basis of sex.” Jackson v. Birmingham Bd. of Educ., 544 U.S.

167, 178 (2005). Therefore, a plaintiff engages in a protected activity under Title IX where she

protests or opposes sex discrimination in an educational program or activity.

In deciding Defendants’ motion for summary judgment, the district court “assume[d]

without deciding that Burton engaged in protected activity by assisting the student who

complained of harassment” on October 10, 2012. (R. 90:13). The district court also determined

that Burton participated in a protected activity by filing her ERD charge on August 13, 2013,

which alleged in pertinent part that Chair Caywood had retaliated against her for assisting the

student with her complaint. (R. 90:21; R. 54-1:3). However, these were not the only protected

activities that Burton engaged in under Title IX. Additionally:

• On November 17, 2012, in an email to human resources director Jeanne Durr, Burton

requested a meeting to discuss what she described as retaliation by Chair Caywood for

her reporting of the solicitous note. (R. 54-14).

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• On December 10, 2012, in an email to Dean Throop, Burton indicated that Chair

Caywood was retaliating against her for having reported the sexual harassment incident

by (1) asking Burton to step down from a search and screen chair position she was given

in the beginning of the fall semester, (2) denying her request to chair a separate search

and screen. (R. 53-57:1-2).

• In March of 2013, Burton filed a grievance arguing, in pertinent part, that Chair Caywood

retaliated against her for having reported the sexual harassment by withdrawing support

for her cyber security initiatives just before Burton was scheduled to receive the AT&T

grant. (R. 101-21:1). Given that UWP stopped supporting Burton’s professional

initiatives, Burton was unable to use the funds in a manner consistent with the grant’s

express terms, and the “bulk” of the grant remains unused. (R. 37-5:1; R. 37-6; R.

42:134, l. 21-25, p. 135, l. 1).

Under the same analysis as for Title VII, supra, these all constituted protected activities.

2. The court erred by restricting adverse actions against Burton to formal reprimands

The standard for materiality is the same in Title IX and Title VII claims. See Lucero v.

Nettle Creek Sch. Corp., 566 F.3d 720, 728-729 (7th Cir. 2009). In a retaliation claim, an adverse

action “is one that a reasonable employee would find to be materially adverse such that the

employee would be dissuaded from engaging in the protected activity.” Silverman v. Bd. of Educ.

of City of Chi., 637 F.3d 729, 740 (7th Cir. 2011) (citations and internal quotation marks

omitted). While “not everything that makes an employee unhappy” is an adverse action, “the

definition of an adverse employment action is generous.” Brown v. Advocate S. Suburban Hosp.,

700 F.3d 1101, 1106-07 (7th Cir. 2012) (quoting Stephens v. Erickson, 569 F.3d 779, 790 (7th

Cir. 2009)); Chaib, 744 F.3d at 982 (quoting Nagle v. Vill. of Calumet Park, 554 F.3d 1106,

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1116-1117 (7th Cir. 2009); see also, Johnson v. Cambridge Industries, Inc., 325 F.3d 892, 902

(7th Cir. 2003) (recognizing the “more generous standard that governs retaliation claims”).

In considering Burton’s Title IX claim, the district court considered only two adverse

actions against Burton – criticism for reporting the solicitous note incident and withdrawal of

support for her cyber security initiative. (R. 90:14-15). Indeed, these were the two categories of

adverse actions laid out in Burton’s opposition to summary judgment. (R. 57:8-17). However,

the record and Burton’s pleadings are rife with other actions by Defendants that a reasonable

factfinder could conclude might “dissuade [employees] from engaging in the protected activity.”

Silverman, 637 F.3d at 740 (quoting Roney v. Illinois Dep’t of Transportation, 474 F.3d 455, 461

(7th Cir. 2007). The most egregious of these actions include:

• On October 16, 2012, Chair Caywood implemented a policy in response to Burton’s

reporting of the solicitous note. (R. 53-6). Chair Caywood announced this new policy at a

departmental meeting during which he complained about the way Burton reported the

solicitous note. (R. 38:261, l. 8-19; R. 42:106, l. 22-25, p. 107, l. 1-5). He later indicated

he should, in retrospect, probably should apologize. (R. 40:50, l. 3-5).

• In November, 2012, generally, Caywood “publicly chastised” Burton for having reported

the solicitous note to the administration and correspondingly showed “lack of support for

Dr. Burton.” (R. 42:106, l. 22-25, p. 107, l. 1-5; R. 101-21:1 (findings of UWP

Complaints & Grievances Commission)).

• On December 10, 2012, Caywood denied Burton’s request to chair a search and screen

committee. (R. 37-13:3). In his deposition, Dalecki admitted that he refused Burton’s

request to chair a search committee for even one of three new faculty members. (R.

41:35, l. 19-24).

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• On January 24, 2013, Chair Caywood wrote Burton a long letter to complain about the

website she made with proposed milestones for a cyber security program, effectively

shutting down her efforts to get grants and develop curriculum because he asserted “the

department” was not in support of her efforts. (R. 53-4 (Chair Caywood indicated, “I’m

not aware that the CJ Department approved a cyber security program or the development

of one”)). Chair Caywood’s letter came three months after Burton showed him the

webpages; in the interim had been the solicitous note-reporting incident and his reprisal

for her chosen course of action. (R. 53-22; R. 53-22; R. 53-29:1).

• On January 24, 2013, Dean Throop told Burton to stop talking about any cyber security

program, even though these initiatives had previously been supported by Chair Caywood

and the College Dean. (R. 37-7; R. 53-49:1).

• Between January and March 2013, Caywood publicly opposed Burton’s bid for tenure.

(R. 36:9, ¶ 25[RB1] ; R. 40:79, l. 5-9).

• On April 12, 2013, the grievance committee made findings that Caywood had favored

one of Burton’s male colleagues and shown her a lack of support. (R. 101-21:1). The

administration ignored the findings and took no action. (R. 47:18, l. 10-18; R. 48:17-18).

• When Caywood was finally replaced by Dalecki as departmental chair, which Dalecki

considered “a tacit if not overt admission that at least some of her (Burton’s) complaints

were likely valid,” the tenor of Burton’s treatment did not change, as she was now urged

to drop an April 13, 2013, Equal Rights Division complaint about Caywood’s

mistreatment. (R. 34-2 (notes taken by Dr. Dalecki from mentoring meetings with

Burton)).

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• Further, when the administration did replace Caywood, it did so in violation of university

policy and did not consider Burton. (R. 53-17:2). Burton complained, and the grievance

committee determined she was right, but the administration again ignored Burton and the

committee’s findings. (R. 53-17:2 as to the committee’s findings; R. 41:5, l. 8-14

(Dalecki served as interim chair from 2013 to 2015)).

• On August 7, 2014, Chair Dalecki removed Burton’s assignment to mentor a young

professor, Stackman, without explanation. (R. 53-37:2). In Dean Throops’s October 28,

2014 Letter of Direction, Dean Throop indicated that Stackman was removed because

Burton asked Stackman to house-sit and Burton engaged in “other poor interactions with”

the mentee which Dean Throop did not describe. (R. 37-15:4-5). This reasoning is

demonstrably pretextual, given that (1) this was not the reason given to Burton when her

mentorship was initially dissolved (R. 53-37:2-3), (2) Stackman was unaware of any poor

interactions between her and Burton (R. 47:31, l. 3-12), (3) Stackman and Burton had an

extra-professional relationship in that Burton was invited to witness Stackman’s marriage

(R. 47:39, l. 25, p. 40, l. 1-2), and (4) housesitting for colleagues had never presented an

issue for anyone other than Burton (R. 48:43, l. 2-6).

• On October 28, 2014, eight days after Burton’s EEOC charge was filed, Dean Throop

wrote Burton a Letter of Direction (“LOD”) complaining about Burton’s “activities.” (R.

37-15:4-6). On November 12, 2014, Burton requested a hearing on a grievance she filed

concerning the LOD that was never granted. (R. 54-17:2; R. 39:358, l. 9-18).

• On November 13, 2014, departmental colleagues and members of the administration

were on an outing and said nasty things about Burton in front of a group of UWP

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employees and students, which got back to Burton and was greatly embarrassing. (R.

52:3 ¶¶ 13-17).

• On December 16, 2014, Dean Throop accused Burton of having cancelled class and said

she would be disciplined, without any investigation. (R. 43-3:2). When Burton shared this

information with the students in the process of getting confirmation that she had, indeed,

conducted class, Dean Throop used this response as something to hold against Burton and

disciplined her. (R. 37-15:2).

• On January 5, 2015, Dean Throop’s October 28, 2014, Letter of Direction was attached to

and converted to a formal UWS 6.01 Complaint. (R. 37-15:1). The administration quickly

responded to Throop, assigning an investigator by January 15, 2015, and tasking him to

complete his report by February 2, 2015. (R. 42-77:2). The administration nonetheless

delayed Burton’s requested hearing on the Letter of Direction for 11 months, denying her

due process on challenging Dean Throop’s complaints. (R. 54-17:1, 4).

Considered in a light most favorable to Burton, this evidence establishes that Burton was

subjected to a multitude of materially adverse actions beginning on October 16, 2012. Whether

the reasons given for these adverse actions were pretextual or well-founded should have been left

for a jury to decide.

In a Ninth Circuit case, the plaintiff filed the first of six formal complaints with the EPA's

Office of Civil Rights in May 1979. Yartzoff v. Thomas, 809 F.2d 1371, 1373 (9th Cir.1987).

Starting in August 1979, Yartzoff's supervisors transferred several job duties away from him and

said he had become uncooperative. Id. Yartzoff filed two lawsuits in federal district court. Id. at

1373. The district court granted summary judgment against Yartzoff, which was overturned as to

the retaliation counts on appeal. Id. The Ninth Circuit cautioned that the evidence of causal

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connection was “weak,” that the EPA had presented “strong evidence… showing legitimate

reasons for its actions,” but nonetheless held in Yartzoff’s favor. Id. at 1378. It explained:

Although the EPA introduced affidavits of co-workers attesting to Yartzoff's

alleged uncooperative behavior, Yartzoff should be afforded an opportunity to

cross-examine these individuals and allow the factfinder to weigh the evidence to

determine whether the allegations of uncooperativeness were justified.

Id. at 1377-78.

That case is analogous to the instant case, except that there are many more adverse

actions against Burton when the facts are construed in her favor. As with Yartzoff, Burton filed

numerous complaints of discrimination and retaliation against her departmental superiors,

starting in March of 2013, when Burton filed a grievance against Caywood for retaliation (R.

101-21). As in Yartzoff, superiors transferred several job duties away from Burton and said she

had become uncooperative. (R. 43-6:1; R. 37-15:1). As Yartzoff was denied a reclassification to a

higher GS level, Burton was denied the opportunity to meaningfully participate in departmental

manners[RB2] . (R. 43-6:1). Finally, the district courts in both cases failed to recognize that Burton and

Yartzoff are entitled to have a factfinder weigh whether the reasons given for these adverse

actions were pretextual or well-founded.

In the Eleventh Circuit, doctors employed at a Department of Veterans Affairs (“VA”)

hospital alleged that administrators created a retaliatory hostile work environment by spreading

rumors about them, soliciting adverse reports about them from other employees, and warning

others that the VA “would not settle frivolous complaints and lawyers would not run the

hospital.” Gowski v. Peake, 682 F.3d 1299, 1305 (11th Cir. 2012). On appeal, the Eleventh

Circuit confirmed that judgment as a matter of law against the doctors was correctly denied. Id.

at 1313. The court recognized that whether the harassment is “severe or pervasive” contains an

objective and a subjective component. Id. at 1312. The Court recognized that this determination

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can only be made by “looking at all the circumstances,” and that, “[I]f there is substantial

conflict in the evidence, such that reasonable and fair-minded persons in the exercise of impartial

judgment might reach different conclusions, the motion [for judgment as a matter of law] must

be denied.” Id. at 1311-1312 (citations and quotation marks omitted).

Burton has put forward evidence of an unrelenting string of conduct that resulted in

damage to Burton’s career, as well as a hostile and uncomfortable workplace for Burton far

beyond what is a fair or legal response to her asserting her own rights. Withdrawal of support

from Burton’s cyber security initiatives, as well as the removal or exclusion of Burton from

department committees, mentoring opportunities, and the potential to serve as department chair,

significantly limited Burton’s career opportunities. Dean Throop’s email to AT&T damaged

Burton’s reputation and potential ability to maintain and increase grants in the future. Burton has

been inappropriately and professionally lambasted in front of peers and students alike. A

reasonable jury could find that, taken together, these incidents were “more disruptive than a mere

inconvenience or alteration of job responsibilities,” which is necessary to establish materially

adverse employment action. Hobbs v. City of Chi., 573 F.3d 454, 463-64 (7th Cir. 2009). For a

jury to believe otherwise – that all those actions were mere “petty slights,” “minor annoyances,”

and in the tenure of occurrences that “often take place at work and that all employees

experience” – would be a best possible scenario for Defendants, but should not be decided as a

matter of law. (R. 90:17).

Similarly, the court unfairly discounted the significance of the sudden withdrawal of

support for Burton’s professional project of assisting UWP in developing a cyber security

program. Before the solicitous note incident, Burton was encouraged to use the April 2012 NSF

grant application to prepare further applications. (R. 54-6:1). Chair Caywood had formally

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endorsed the application, which listed Burton as the Project Director and was geared exclusively

toward developing a cyber science B.S.N. degree and corresponding minor. (R. 53-49). When

Burton fell out of favor with Caywood from the solicitous note incident, he pulled the plug on

her by suddenly saying his “department” did not support her. (R. 53-4). This greatly undermined

the work she had been doing thus far, and led to the end of her efforts to institute the program.

The district court in this case improperly curtailed the adverse actions that Burton

experienced and substituted its judgment for the factfinder that the University “did not take any

materially adverse actions against Burton.” (R. 90:13). This conclusion, however, was made

without the proper deference to the breadth of Burton’s allegations through the course of

litigation and, therefore, was fundamentally flawed. Burton’s complaints have been ignored by

UWP every step of the way, and she respectfully requests the opportunity to present them to a

factfinder, as a reasonable jury may agree that UWP’s actions against her were adverse in nature.

3. The court obliterated Burton’s chance of showing a causal connection by wrongly

circumscribing both protected activities and adverse actions, and ignoring evidence

from which a reasonable jury could find that Plaintiff faced retaliation

A plaintiff in a retaliation case under Title VII or Title IX must show that her protected

activity was the “but for” cause of an adverse action, which “means that the adverse action

would not have happened without the activity.” Carlson v. CSX Transp., Inc., 758 F.3d 819, 828

n.1 (7th Cir. 2014). She may show causation via circumstantial evidence, which can include

suspicious timing, ambiguous statements, similarly situated employees who were treated

differently, pretextual reasons for the adverse employment action, “and other bits and pieces

from which an inference of retaliatory intent might be drawn.” Lambert v. Peri Formworks Sys.,

Inc., 723 F.3d 863, 869 (7th Cir. 2013).

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Burton has presented evidence that, when viewed in a light most favorable to her, could

allow a jury to conclude that the foregoing adverse actions had a causal relationship to her

protected activities. The district court in this case took just a couple of Burton’s protected

activities, and just a couple of the actions against her, and found there was no evidence to

support causal links between that very small sampling. However, a broader and fairer reading of

these two categories would allow the following to be considered as evidence of the causal

connection.

University administration failed to grant Burton timely hearings on her multiple

grievances, failed to release results of the investigations, and failed to mediate. CJ Chair Dalecki

encouraged Burton to drop the lawsuit. Burton was not considered for the department chair

position when it became available because of her complaints. Dean Throop additionally

developed a pattern of overreacting to situations involving Burton that caused Burton significant

anxiety. This was particularly apparent when Dean Throop threatened to discipline Burton for

allegedly cancelling class without first simply asking Burton about the unfounded anonymous

report. It was also apparent when Dean Throop rashly suggested that the AT&T grant ceremony

be cancelled at the last-minute because of some minor wording that needed revision in the draft

press release.

Moreover, Dean Throop’s listed concerns in her Letter of Direction and corresponding

Complaint almost all concern complaints that Burton has made against UWP and its

administration. Dean Throop ignored Burton’s right to raise certain concerns to the

administration. Moreover, the LOD and Complaint mischaracterizes Burton’s actions as more

serious than they were. For example, the LOD indicated that Burton “demand[ed]” that Dr.

Stackman house-sit for her, and that Burton “threaten[ed]” Dr. Solar on his tenure application.

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(R. 37-15:4-5). In reality, Burton only asked Dr. Stackman to house-sit if she had to go see her

sick mother, and her email to Dr. Solar merely informed him that his violation of policy would

be included in his annual evaluation (harsh, perhaps, but within the purview of official process).

Additionally, Dean Throop’s concern that Burton violated “standard operating procedure” by

informing students to take certain kinds of complaints to someone other than the interim

department chair was unfounded, because UWP policy indicates that students with such

complaints can discuss them with the dean of academic affairs. (R. 40:65-66; R. 53-23:1).

It is against this backdrop that things unraveled for Burton at work, as she faced

accumulating retaliation and poor treatment by Chair Caywood and, later, other members of the

administration. This retaliation was not merely a result of her reporting of the solicitous note, as

the district court would characterize Burton’s argument. Rather, as Burton asserted her rights to

be free from retaliation by Chair Caywood, those assertions themselves generated their own

adverse reactions.

The district court further found “the timing of Throops’s Letter of Direction also

undercuts an inference of retaliatory animus,” because “about six months passed between

Burton’s protected activity and Dean Throop’s October 2014 letter of direction.” (R. 90:25).

However, this letter was not the first adverse action that Burton complained of, nor was the last

protected activity from six months prior. In fact, only eight days passed between Burton’s filing

of a charge with the EEOC on October 20, 2014, and Dean Throop’s Letter of Direction dated

October 28, 2014. (R. 54-2:1; R. 37-15:4).

Indeed, according to Dean Throop, Chair Caywood “publicly chastised” Burton for her

reporting of the note as early as November of 2012. (R. 42:106, l. 22-25). Moreover, “if the time

interval standing alone is long enough to weaken an inference of retaliation, the plaintiff is

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entitled to rely on other circumstantial evidence to support her claim.” Malin v. Hospira, Inc.,

762 F.3d 552, 560 (7th Cir. 2014); See also Juarez v. Ameritech Mobile Communications, Inc.,

957 F.2d 317, 321-22 (7th Cir. 1992) (considering the timing of plaintiff’s complaints together

with other circumstantial evidence of retaliatory motive).

In the same way that Chair Caywood supported the development of a cyber security

program before the solicitous note incident, but later acted like that was just Burton’s private

fantasy, the evidence can be interpreted to indicate that Dean Throop similarly changed her tone

in response to Burton’s protected complaints. For instance, at the onset of the solicitous note

incident, Dean Throop took a stand and indicated that “such a note could be rightly interpreted as

sexual harassment regardless of intent.” (R. 36-5:6). Fast-forward to the depositions in this case,

however, after Burton’s formal actions against the University, and Throop dismissed the note as

a “complaint of a biased student,” adding, “It was not a sexual advance.” (R. 42:114, l. 23-25, p.

115, l. 1-2).

Had the court not circumscribed the protected activities taken by Burton, as well as the

adverse actions taken against Burton, it would have likely found that, taken in a light most

favorable to Burton, a genuine issue of material fact exists as to whether there was a causal

connection between them. Given this genuine issue of material fact, summary judgment was

inappropriate, and the issue of causation should have been left for a jury to decide.

4. The court improperly drew factual inferences in favor of the party moving for

summary judgment

Summary judgment is only appropriate where the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits show “there is no genuine

dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.

R. Civ. P. 56(a). The district court must construe all facts in the light most favorable to the

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nonmoving party and draw all reasonable inferences in favor of that party when determining

whether a genuine issue of material fact exists. See Bombard v. Fort Wayne Newspapers, Inc., 92

F.3d 560, 562 (7th Cir. 1996).

Importantly, it was impossible for the district court to have construed all the facts in a

light most favorable to Burton because the court did not consider Burton’s full account of the

facts. See Simpson v. Merchants Recovery Bureau, Inc., 171 F.3d 546, 551 (7th Cir. 1999)

(explaining that the district court could not construe all facts in Simpson’s favor where Simpson

was “never afforded the opportunity to present her account of the facts”). Simpson differs from

the instant case in that the Simpson court entered summary judgment sua sponte. Id. at 547.

However, the court’s failure to consider much of the record before it had the same impact at the

district court’s sua sponte grant of summary judgment in Simpson in that it prevented Burton

from having her full side of the story be considered in the summary judgment proceedings.

The district court’s findings of fact, descriptions of the incidents, and choice of wording

all indicate that it drew many improper factual inferences, and failed to view the evidence in a

light most favorable to Burton, which is required on summary judgment. For example:

• The district court indicated that Gibson properly apologized to the entire class concerning

the solicitous note. (R. 90:3 (indicating, “Caywood . . . advised the professor to send an

apology to the entire class, which he did”). This was contrary to the grievance

committee’s finding that Gibson’s “apology” email “failed to debrief his class” and

constituted a “reprehensible . . . version of slut-shaming.” (R. 53-32:1).

• Similarly, the district court referred to Gibson as the “breach-experimenting professor,”

which resolved the factual question of whether the note was a “breach experiment” (even

in light of obvious ludicrousness of this explanation from the record), rather than

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resolving the factual question in Burton’s favor that this was a legitimate and

inappropriate faculty advance on a student. (R. 90:3; R. 53-32:1-2).

• In the context of discussing Chair Caywood’s new policy on how complaints such as the

note incident should be handled, the district court characterized such issues as “harmless

matters.” (R. 90:4). This characterization ignored Dean Throop’s acknowledgment that

“[the solicitous note] could well be a significant HR and Title IX issue.” (R. 53-24:3).

• The district court characterized Burton’s November 17, 2012, complaint against Chair

Caywood as “ongoing bitterness.” (R. 90:5). This characterization ignored Burton’s

actual complaint that she “fe[lt] retaliated against” by Chair Caywood based on her

handling of the solicitous note. (R. 54-14).

• The district court consistently indicated that Burton merely “perceived” hostility and

other negative actions towards her, indicating that it was not construing the facts in her

favor. (R. 90:2, 4, 5, 7, 19). This ignored Dean Throop’s indication that Chair Caywood’s

initial response to the note was “disturb[ing],” and Chair Dalecki’s admission that Chair

Caywood’s removal was a “tacit if not overt admission” that Burton’s complaints were

valid. (R. 53-24:3; R. 34-2:4).

• The district court explained that Burton “is not immune from supervision and discipline.”

(R. 90:2). This ignored Burton’s statutory right to be immune from discipline where it

arises from her participation in statutorily protected activities. Moreover, there are no

allegations that Burton has actually violated any university policy and, in this respect,

Burton should be immune from discipline.

• The district court characterized Burton’s grievances concerning Dalecki’s violations of

university policy and law as “disagreements” on various matters. (R. 90:8). In reality,

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these grievances were a mechanism through which Burton lodged serious complaints

arguing that her statutory rights to be free from discrimination and retaliation were

violated.

• The district court determined that the graduate student who told Burton about the

negative public comments made about her lost his position “because of insufficient

funds.” (R. 90:8). Had the district court construed the facts in a light most favorable to

Burton, it would have considered that the lack of funds was pretextual, and a result of the

student’s having reported the negative things said about Burton to Burton.

• The district court unfairly characterized Burton’s various issues with Dean Throop as a

mere “conflict,” which downplayed the seriousness of Burton’s claims of retaliation and

ignores the breadth of evidence on record. (R. 90:8).

• The district court concluded, “The record demonstrates that Throop had a factual basis

for her conclusions” in the LOD. (R. 90:25). Even a cursory review of the record

indicates that this was not the case. For example, the LOD indicated that Stackman was

removed as Burton’s mentee due to “poor interactions” between Stackman and Burton

that Throop does not further describe. (R. 37-15:4-5). The record shows that Stackman is

unaware of any such “poor interactions.” (R. 47:31, l. 3-12). The LOD indicates that

Burton had too-vaguely complained about Chair Daleckis’ mistreatment of her. (R. 37-

15:4). Yet, the record shows that Burton has clearly laid out her complaints on multiple

occasions. (R. 43-6:1; R. 53-13). The LOD complained about an email that Burton

“threatened” the investigation of allegations of departmental corruption. (R. 37-15:4; R.

37-14:1-2). However, the record reveals that this was merely a suggestion. (R. 37-14:1-

2). The LOD indicated that Burton did not give enough time attending to the German

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delegation. (R. 37-15:4). However, the record shows that the German delegation was

invited by the International Programs Office, and was a guest of the department. (R.

41:127, l. 22-25; R. 101-13). The record further shows that Burton’s mother was very ill

that weekend, and any time she would have spent would have gone unpaid. (R. 34-3).

The LOD indicated that Burton sent a terse email to a staff member. (R. 37-15:5; R. 37-

11). However, a reasonable read of the email does not indicate it is of such a deplorable

character that it should result in a write-up, and Burton is a non-native English speaker.

(R. 37-11). The LOD indicated that Burton complained about a violation of university

policy by Assistant Professor Dr. Patrick Solar. (R. 37-15:5). The record reveals that

Solar admitted the violation, and Burton simply informed him that the violation may be

included in the annual report on Burton’s opinion of him, which she was required to file

annually until he would become eligible for tenure. (R. 53-14:1-2; R. 34-1:8). The LOD

finally indicated that Burton told students they were not required to go to the department

chair with certain kinds of complaints. (R. 37-15:5). The record indicates that Burton’s

advice was in line with university policy. (R. 40:65-66; R. 53-23:1).

• The district court determined that “Caywood’s public criticism of how Burton handled

the student incident was not a materially adverse action.” (R. 90:16). This was directly

contradictory to Dean Throop’s indication that Chair Caywood had “exacerbated the

problem by publicly chastising Burton,” as well as Chair Dalecki’s indication that Chair

Caywood’s removal was “a tacit if not overt admission that at least some of [Burton’s]

complaints were valid.” (R. 42:106, l. 22-25, p. 107, l. 1-5; R. 34-2:4).

• The district court indicated, “Federal courts do not second guess [internal business and

personnel decisions] absent some evidence that the employer’s decisions was ‘completely

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unreasonable.’” However, the proper standard for determining a motion for summary

judgment asks whether “there is no genuine dispute as to any material fact.” Fed. R. Civ.

P. 56(a).

In light of these factual inferences, it is clear that the district court did not apply the

proper standard in deciding Defendants’ motion for summary judgment. It did not “resolv[e] all

evidentiary conflicts in [Burton]’s favor and accord[] [Burton] the benefit of all reasonable

inferences that may be drawn from the record.” Coleman v. Donahoe, 667 F.3d 835, 842 (7th

Cir. 2012). Therefore, this court should reverse the district court’s grant of summary judgment

and remand the case to be considered under the appropriate standard.

CONCLUSION

For the forgoing reasons, the District Court’s grant of summary judgment should be

reversed and this matter should be remanded to the district court for further proceedings.

Respectfully Submitted this 27th day of September, 2016

ALDERMAN LAW FIRM

/s/ Kimberly Penix

_________________________

Kimberly Penix

Post Office Box 2001

Madison, WI 53701

(608) 620-3529

kimberly@aldermanlawfirm.com

Attorney for Plaintiff-Appellant

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3 7

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,

TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS

1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)

because this brief contains 10,775 words, excluding the parts of the brief exempted by

Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the

type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared

in a proportionally spaced typeface using Microsoft Word for Mac 2011 in Times New

Roman font, size 12.

Respectfully Submitted this 27th day of September, 2016

ALDERMAN LAW FIRM

/s/ Kimberly Penix

_________________________

Kimberly Penix

Post Office Box 2001

Madison, WI 53701

(608) 620-3529

kimberly@aldermanlawfirm.com

Attorney for Plaintiff-appellant

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3 8

CIRCUIT RULE 30(d) STATEMENT

Pursuant to Circuit Rule 30(d), counsel certifies that all material required by Circuit Rule

30(a) and (b) are included in the Appendix of Appellant

Dated this 27th day of September, 2016

/s/ Kimberly Penix

_________________________

Kimberly Penix

Post Office Box 2001

Madison, WI 53701

(608) 620-3529

kimberly@aldermanlawfirm.com

Attorney for Plaintiff-appellant

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CERTIFICATE OF SERVICE

I hereby certify that on September 27, 2016, I electronically filed the foregoing with the

Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the

CM/ECF system. I certify that all participants in the case are registered with CM/ECF users and

that service will be accomplished by the CM/ECF system.

Dated this 27th day of September, 2016

/s/ Kimberly Penix

_________________________

Kimberly Penix

Post Office Box 2001

Madison, WI 53701

(608) 620-3529

kimberly@aldermanlawfirm.com

Attorney for Plaintiff-appellant

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4 0

INDEX TO APPENDIX

1. Contents Required by Circuit Rule 30(a)

Exhibit A: Opinion & Order Entered March 18, 2016

Granting Defendants’ Motion for Summary Judgment

United States District Court for the Western District of Wisconsin

2. Additional Contents Allowed by Circuit Rule 30(b)

Exhibit B: Opinion & Order Entered June 22, 2016

Denying Plaintiff’s Motion for Reconsideration

United States District Court for the Western District of Wisconsin

Exhibit C: Zupec Note

R. 51-1

Exhibit D: Email Dated October 10, 2012

R. 53-23

Exhibit E: Addendum to the Burton-Caywood Grievance Dated April 17, 2013

R. 53-32

Exhibit F: Dean Throop’s Chronological List of Events in CJ since June 2012

R. 101-20

Exhibit G: Email Dated June 5, 2014

R. 37-14

Exhibit H: Email Dated October 7, 2014

R. 37-11

Exhibit I: Email Dated October 17, 2012

R. 53-29

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

SABINA BURTON,

Plaintiff,

v.

BOARD OF REGENTS OF THE UNIVERSITY

OF WISCONSIN SYSTEM,

THOMAS CAYWOOD, ELIZABETH THROOP, and

MICHAEL DALECKI,

Defendants.

OPINION & ORDER

14-cv-274-jdp

Plaintiff Sabina Burton is now a tenured associate professor of criminal justice at the

University of Wisconsin-Platteville (UWP). Several years ago, Burton advocated for a student

who complained of sexual harassment at the hands of another UWP professor. Burton

contends that, as a consequence of her advocacy for this student and her subsequent efforts

to assert her own rights, she has faced discrimination and retaliation from UWP colleagues

and administrators. She brings this suit against defendant Board of Regents of the University

of Wisconsin System (the entity responsible for UWP) and three employees of UWP.

Burton’s complaint alleged multiple causes of action under four federal laws: Title VII

of the Civil Rights Act of 1964; Title IX of the Education Amendments of 1972; the Equal

Pay Act; and the Equal Protection Clause of the Fourteenth Amendment. Defendants have

moved for summary judgment on all claims. In response, Burton has conceded that she

cannot succeed on many of her claims, leaving two retaliation claims that Burton regards as

the heart of this suit. First, Burton contends that she faced retaliation for assisting the

student with her sexual harassment complaint, in violation of Title VII and Title IX. Second,

Burton contends that, also in violation of Title VII, she faced retaliation for asserting her own

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Opening Brief

EXHIBIT A

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rights by filing a charge of discrimination with the Wisconsin Department of Workforce

Development-Equal Rights Division (ERD) and by filing this lawsuit.

Title VII and Title XI prohibit retaliating against an individual who asserts her rights

in employment and education, respectively. But neither law requires—or, frankly, permits—a

federal court to referee every dispute generated by the friction of day-to-day operations in

university departments. As this opinion explains, Burton perceived slights and a lack of

collegiality, and she felt personal embarrassment at the hands of her colleagues. But those are

not materially adverse actions, and they do not amount to actionable retaliation. Burton also

received a formal letter of direction, which led to a disciplinary complaint. Although these

were adverse actions, Burton has not adduced evidence to show a causal link to her protected

activity (i.e., filing a charge of discrimination and bringing this lawsuit).

As a university faculty member, Burton works with a high degree of autonomy. But

she is not immune from supervision and discipline. Federal courts are properly reluctant to

second-guess the personnel decisions of university administrators, and Burton has given this

court no reason to do so here. Defendants are entitled to summary judgment.

UNDISPUTED FACTS

Except where noted, the following facts are undisputed.1

Burton began working at UWP in 2009, as a tenure-track assistant professor in the

criminal justice department, which is part of the College of Liberal Arts and Education.

1 Several of Burton’s citations to the record in her proposed findings of fact are incorrect. The

errors appear to be careless ones: the wrong paragraph of an affidavit, or an incorrect docket

number. Defendants have compounded the problem by objecting to the proposed facts as

unsupported, rather than providing the correct citation (which is obvious in most cases).

Because these facts are not actually in dispute, the court includes them in this opinion.

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Burton was a successful faculty member, and in January 2012, she was promoted to associate

professor. At the time, defendant Thomas Caywood was chair of the criminal justice

department. Defendant Elizabeth Throop became dean of the College in June 2012.

The trouble starts in October 2012. One of Burton’s colleagues in the criminal justice

department was lecturing on the subject of “breach experiments,” which are essentially

provocations designed to display social norms by violating them so that they can be studied.

The professor demonstrated a breach experiment: in plain view of the class, he handed a

female student a note that read “Call me tonight‼” and included his cell phone number.

Dkt. 51-1. The student did not recognize the exchange as a demonstration, and she was upset

by the note. Later that day, she sought out Burton to talk about the incident. Afterwards,

Burton emailed dean Throop, alerting her to the apparent harassment of the student. Throop

suggested that the student speak to the dean of students.

The next day, Burton followed up on the student’s complaint and spoke with

Caywood. Burton also forwarded to Caywood an email that she had received from the

student the night before, with an image of the note. Burton indicated that she would contact

student affairs, but she did not tell Caywood that she had already emailed Throop. Caywood

spoke with the breach-experimenting professor that day, learned that the note had been part

of a demonstration, and advised the professor to send an apology to the entire class, which he

did. When Caywood emailed Burton to explain the situation, Burton suggested that

department faculty be informed about all such experiments in the future. Caywood

responded that this was not necessary and that if students had problems with faculty

members, then they needed to come see him to sort out those problems.

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Word got around to administrative personnel at UWP, including the chancellor, the

provost, and the human resources department. Over the next two days, Throop emailed

Caywood to express her serious concerns with the experiment and with Caywood’s response

to it. Throop also emailed Burton—who, by this point, had become the student’s informal

liaison and advocate—asking her to assure the student that the matter would be taken

seriously and resolved as quickly as possible. When Caywood asked to interview the student

to find out what happened, the director of human resources told him to drop the issue

because her office would handle it. The parties do not explain how UWP eventually resolved

the incident, but the resolution of the underlying complaint is not relevant to Burton’s claims

in this case.

In the following months, Burton experienced what she perceived to be unwarranted

public criticism for the way that she had handled the student’s complaint. For example, about

one week after the incident, Caywood prepared a memo outlining the steps that faculty

members should take if a student came to them with a problem concerning another faculty

member. The memo instructed that students should first contact the faculty member in

person to resolve the issue directly, if the problem was along the lines of a low grade or poor

attendance. For complaints about what a faculty member said or did, students were to come

directly to Caywood. For behavior that could potentially amount to criminal conduct, faculty

members were to contact campus police. Caywood circulated this memo to the members of

the criminal justice department.

At a department meeting in November 2012, Caywood reiterated his instruction that

student issues should be brought to his attention so that harmless matters did not go all the

way to the provost. Burton felt that the announcement was a veiled public reprimand from

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her department chair, and she emailed the director of human resources at UWP to request a

meeting. She wrote that Caywood’s comments were in retaliation against her for assisting the

student and that she could not accept Caywood’s “ongoing bitterness.” Dkt. 54-14.

About the same time, Burton perceived a sudden loss of support from Caywood and

Throop regarding Burton’s efforts to develop a new curriculum in cybersecurity, which

Burton, Caywood, and others had been working on since February 2012. The project would

involve an extended process. Establishing a new course required approval from the college

curriculum committee, and then approval of the university curriculum committee. A new

emphasis, program, major, or minor, would ultimately need approval from the Board of

Regents. As a preliminary step, Burton and Caywood had worked together on a grant

application to the National Science Foundation to secure substantial funding for the

cybersecurity curriculum, although the application was unsuccessful.

In the fall of 2012, Burton secured an informal offer from AT&T of a modest amount

of private funding for the cybercrime program. In the formal written application to AT&T,

Burton wrote that UWP would use the money “[t]o support the development and

implementation of a cyber-security curriculum for undergraduate and graduate students.”

Dkt. 37-1, at 2. The application also indicated that UWP was “in the process of developing a

curriculum for cyber-security,” and that a milestone of the project would be to develop and

implement an undergraduate cyber-security course by February 2013. Id. at 2-3.

Throop and Caywood were concerned with how Burton was portraying the status of

UWP’s cybersecurity program. In January 2013 (three months after the student harassment

incident), an AT&T representative drafted a press release to announce the company’s

donation. The representative sent the release to Burton, who edited the draft and returned it

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the next morning. Burton attached her edits to an email on which Caywood and Throop were

copied. As edited, the release referred to “the development of a new cyber security program,”

and to a “new course . . . expected to be available to undergraduate students beginning spring

of 2012.” Dkt. 36-7, at 1.2 But Burton had not yet formally submitted any proposed

cybersecurity courses to the college curriculum committee or to the university curriculum

committee.

Throop responded to the draft press release in an email to Burton, Caywood, and

AT&T’s representative, writing that: “This press release concerns me deeply. There are a

number of highly inaccurate--indeed, misleading--statements regarding the status of cybersecurity

curricula at the University of Wisconsin-Platteville. I am not confident that the

ceremony being planned is wise given this.” Dkt. 53-16, at 1. Caywood also responded to

Burton’s email, noting similar concerns and cautioning Burton “on how [she was] presenting

[her] ideas and visions in the media.” Dkt. 53-4, at 2. Later that same day, however, Throop

emailed Burton and Caywood to explain that she and the AT&T representative had talked

over the phone and agreed to additional revisions that would alleviate Throop’s concerns. On

January 30, 2013, AT&T presented $7,000 to Burton in a public ceremony.

Around the same time, Caywood and Throop also identified issues with two websites

that Burton had created, both of which discussed a cybersecurity program at UWP. Caywood

and Throop felt that these websites inaccurately suggested that UWP had developed or was

actively developing a cybercrime program. Throop tried to arrange a meeting with Burton and

2 The press release was drafted to go out on January 28, 2013. Dkt. 36-7, at 1. Thus, the

reference to “spring of 2012” appears to have been a typo, although the parties do not

address the discrepancy.

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Caywood to discuss the issues with the websites and the AT&T funding, but Burton refused

to meet.

In January 2013, at her earliest eligibility, Burton applied for tenure. She was granted

tenure, effective for the 2013-14 academic year. Burton thus enjoyed substantial job security:

tenure extends for an unlimited period, and tenured faculty can be dismissed only for just

cause and only after due notice and a hearing. See Wis. Admin. Code UWS § 4.01.

In August 2013, Burton filed a discrimination charge with the ERD. The charge

alleged that: (1) Caywood had discriminated against her because she was a woman and

retaliated against her for reporting the student harassment; (2) Throop and the human

resources director had discriminated against her; (3) Throop had defamed her; and (4) the

university had been deliberately indifferent to her grievances.

In the summer of 2013, Caywood stepped down, and defendant Michael Dalecki

became interim chair of the criminal justice department. But the change of chair did not end

Burton’s frustrations. After Burton filed her charge with the ERD, she continued to

experience what she perceived to be hostile treatment at the hands of her colleagues and

supervisors. For example, Dalecki had several conversations with Burton, during which he

encouraged her to drop her ERD charge and lawsuit and expressed disappointment or told

Burton to “get over it” each time she refused to do so.3 Dalecki also told Burton that she

could not expect to file a lawsuit without suffering consequences, reminding her to think

about how her actions would affect her chances of eventually becoming chair of the criminal

justice department. At least one other faculty member also pressured Burton to drop her suit,

3 Defendants dispute what exactly Dalecki said, and they contend that Burton has taken his

comments out of context. But there is no dispute that Dalecki encouraged Burton to drop her

claims.

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indicating that Burton would be “dean material,” but not if she continued to challenge

administrators.

Burton continued to disagree with Dalecki and others throughout the 2013-14

academic year and into the summer. The disagreements concerned committee appointments,

personnel changes, and departmental management. In addition, Dalecki chastised a graduate

student who shared with Burton comments about her that he had overheard a department

staff member make at a social event. The graduate student later lost his position because of

insufficient funds. Burton contends that all of these actions were in retaliation for her filing a

charge with the ERD and a lawsuit in this court.

Burton also had run-ins with Throop. Their conflict came to a head in October 2014,

when Throop wrote Burton a letter of direction. The letter identified seven events that

Throop described as showing “a consistent pattern of unprofessional and inappropriate

behavior.” Dkt. 37-15, at 5. In brief, Throop was concerned that Burton had:

􀁸 accused Dalecki of misconduct without a factual basis for doing

so, and made these accusations public by emailing the entire

department, the provost, and the chancellor;

􀁸 written an inflammatory email to the entire department

incorrectly accusing a recently resigned colleague of unethical

behavior and implying that she would ask the Wisconsin

Attorney General to investigate;

􀁸 abruptly passed off responsibility for a visit from colleagues in

Germany after having organized the visit;

􀁸 asked a new assistant professor who had been Burton’s mentee

to house-sit for Burton during the summer (which Throop felt

was unprofessional, given Burton’s seniority over the mentee);

􀁸 sent an email to a staff member using an unnecessarily

accusatory and unprofessional tone;

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􀁸 threatened a junior faculty member with consequences to his

future bid for tenure because Burton incorrectly believed that he

had improperly carried out his duties as the chair of a

committee; and

􀁸 encouraged students to bypass the department chair with

complaints against other professors because he was biased.

Throop concluded the letter by providing Burton with five specific directions, and she warned

Burton that failure to follow the directions would result in disciplinary action.

Burton responded to the letter of direction in writing. She generally disagreed with

Throop’s summary of the relevant facts, and she flatly refused to accept any of Throop’s

directions. Given Burton’s refusal to cooperate, Throop filed a complaint with the chancellor

on January 5, 2015, pursuant to Wis. Admin. Code UWS § 6.01.4 Throop asked the

chancellor to write Burton a formal letter of reprimand that would be placed in her personnel

file. At this point, it is not clear from the record whether Throop’s complaint has been

resolved, nor what discipline, if any, Burton has received.

Another incident occurred in December 2014, when Throop incorrectly accused

Burton of cancelling a class without permission. Throop emailed Burton about the canceled

class, and she copied Dalecki (but no one else). The email was terse, and it concluded by

stating that “I will be forced to pursue disciplinary measures as a result.” Dkt. 43-3, at 2.

Throop’s information turned out to be incorrect: Burton had not cancelled class. But rather

than responding directly to Throop to explain, Burton sent an email to her class:

4 This provision establishes complaint procedures for “conduct by a faculty member which

violates university rules or policies . . . , but which [is] not serious enough to warrant

dismissal proceedings.” Wis. Admin. Code UWS § 6.01.

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Dear Student,

Dean Throop falsely accused me of canceling my class last

Friday and wants to fire me over it. Please see the email below to

see her extremely harsh and false accusations.

I ask that you please reply to this email with your confirmation

that I did teach my class last Friday, Dec 12, 2014 to prove to

Dean Throop that I did not cancel the class. This is extremely

important for me. Dean Throop wants to fire me. If you came to

class on Friday, Dec 12, 2014 you know that I was there. Dean

Throop wants to discipline me for not being at the class. She is

just looking for reasons to “discipline” me. Your confirmation

that I was in class on that day will convince her that she has her

facts wrong and could save me from severe discipline that I don’t

deserve.

Why does Dean Throop want to hurt me you ask? Well, since I

am asking you for an honest response I will give you an honest

answer to this question.

On Oct 11, 2012 a female student came to me with a complaint

of a sexual advance by a male faculty member. I helped the

student report the complaint to Student Affairs. I have been

mercilessly harassed since then for my actions in assisting that

student.

I have tried to keep students out of this conversation but the

Dean has put me in a position where I need students to confirm

my presence in my classes last Friday. I need your help. Please

reply to this email as soon as you can with your confirmation

that I was in class on Friday, Dec 12, 2014.

Thank you so much.

Id. at 1. Several students responded that Burton had taught her class, and Burton forwarded

at least one of the responses to Throop, Dalecki, the provost, the chancellor, and human

resources. Throop did not discipline Burton for cancelling class.

Burton pursued several grievances to address these issues with UWP administrators.

Those efforts were unsuccessful, and so Burton filed suit in this court on April 14, 2014.

Dkt. 1. Burton filed a second amended complaint on September 11, 2015. Dkt. 28. The

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court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331, because

Burton’s claims arise under federal law.

ANALYSIS

Burton’s second amended complaint alleged multiple causes of action, some against

the Board of Regents, some against Caywood, some against dean Throop, and some against

Dalecki. Defendants have moved for summary judgment on all causes of action. Dkt. 32.

Burton’s brief in opposition to defendants’ motion concedes to dismissal of most of the

causes of action, with the exception of the retaliation claims that she brings against the Board

of Regents as the legal entity that runs UWP and employs her. Dkt. 57, at 4.

Summary judgment is appropriate if defendants show “that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit

under the governing law will properly preclude the entry of summary judgment.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Defendants are entitled to summary judgment

on a claim if they show that Burton lacks evidence to support an essential element on which

she bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To avoid

summary judgment, Burton “must set forth specific facts showing that there is a genuine

issue for trial.” Id. She may not simply rely on the allegations in her pleadings to create such

a dispute, but must “demonstrate that the record, taken as a whole, could permit a rational

finder of fact to rule in [her] favor.” Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir.

1996).

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A. Retaliation for supporting the student’s harassment complaint

Burton alleges that defendants retaliated against her for supporting the student who

complained of harassment in October 2012. Burton contends that this retaliation violates

both Title IX (which prohibits forms of sex discrimination in education), Dkt. 28, ¶¶ 202-05,

and Title VII (which prohibits workplace discrimination), id. ¶¶ 199-201.

1. Title IX

Under Title IX, “[n]o person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to discrimination

under any education program or activity receiving Federal financial assistance.” 20 U.S.C.

§ 1681(a). Unlike Title VII, Title IX does not include a separate retaliation provision.

Nevertheless, “Title IX’s private right of action encompasses suits for retaliation, because

retaliation falls within the statute’s prohibition of intentional discrimination on the basis of

sex.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 178 (2005).

Courts apply Title VII’s retaliation framework to evaluate retaliation claims under

Title IX. Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 388 (7th Cir. 2012). Under this

framework, a plaintiff can prove her retaliation claim using either the direct method of proof

or the indirect method of proof. Id. Burton is proceeding via the direct method.5 Burton must

therefore adduce evidence that: (1) she engaged in protected activity under Title IX;

(2) defendants took an adverse action against her; and (3) there is a causal connection

between her protected activity and the adverse action. Cung Hnin v. TOA (USA), LLC, 751

5 Burton does not explicitly forgo the indirect method. But she does not contend that she

“was treated less favorably than similarly situated employees who did not engage in

statutorily protected activity,” which is an essential element of a prima facie case under the

indirect method. Turner v. The Saloon, Ltd., 595 F.3d 679, 688 (7th Cir. 2010).

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F.3d 499, 508 (7th Cir. 2014). The court will assume without deciding that Burton engaged

in protected activity by assisting the student who complained of harassment. But even so, the

evidence of record confirms that defendants did not take any materially adverse actions

against Burton. Because Burton cannot establish a necessary element, defendants are entitled

to summary judgment on Burton’s Title IX retaliation claim.

a. Preemption

Before turning to the merits, the court addresses defendants’ preliminary argument

that Burton’s Title IX claim is preempted by Title VII. Defendants rely on the general rule

that “Title VII’s own remedial mechanisms are the only ones available to protect the rights

created by Title VII.” Yasiri v. Bd. of Regents of Univ. of Wis. Sys., No. 99-cv-0051, 2000 WL

34230253, at *8 (W.D. Wis. Jan. 28, 2000) (quoting Waid v. Merrill Area Pub. Sch., 91 F.3d

857, 862 (7th Cir. 1996), abrogated by Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246

(2009)). According to defendants, Burton cannot pursue a Title IX claim in this case because

she is seeking redress for injuries that she suffered in the context of her employment. The

court disagrees.

Defendants’ expansive reading of the preemption rule would run headlong into the

Supreme Court’s decision in Jackson, which allowed a teacher to bring a retaliation claim

under Title IX based on allegations that he received negative performance reviews and was

removed from a coaching position in retaliation for complaining about unequal funding for a

girls basketball team. 544 U.S. at 171. Burton’s case is analogous in all material respects: she

helped a student address sexual harassment by a professor, and then she suffered unfavorable

employment actions. It is irrelevant that Burton was not personally subjected to

discrimination under an education program because Title IX “is broadly worded; it does not

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require that the victim of the retaliation must also be the victim of the discrimination that is

the subject of the original complaint.” Id. at 179.

The authority that defendants cite does not support preempting Burton’s Title IX

claim. For example, defendants invoke Ludlow v. Northwestern University, in which another

district court concluded that “Congress did not intend that Title IX serve as an additional

protection against gender-based discrimination regardless of the available remedies under

Title VII.” No. 14-cv-4614, 2015 WL 5116867, at *4 (N.D. Ill. Aug. 28, 2015) (citations

and internal quotation marks omitted). But Ludlow was not a retaliation case; it involved a

professor who alleged that his university discriminated against him on the basis of his gender

by investigating him for sexual assault and treating him differently in the investigation than it

did the female student who had complained of assault. Id. at *1-3. The same is true for many

of the decisions that defendants cite to support their preemption arguments. These cases

involved allegations of direct sex discrimination, not retaliation for conduct that Title IX

protects. See, e.g., Waid, 91 F.3d at 860 (teacher denied full-time position because of her sex);

Blazquez v. Bd. of Educ. of Chi., No. 05-cv-4389, 2006 WL 3320538, at *11 (N.D. Ill. Nov. 14,

2006) (teacher denied an aide because of her sex).

Title VII does not preempt Burton’s Title IX retaliation claim. The court turns to the

merits of that claim.

b. Materially adverse action

Burton identifies what she contends are two materially adverse actions that

constituted retaliation under Title IX: (1) Caywood publically criticized Burton in the

months following her report of student harassment; and (2) Caywood and dean Throop

withdrew their support of Burton’s efforts to develop a cybercrime curriculum. Dkt. 57, at

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10-19. Based on the undisputed facts of this case, no reasonable jury could conclude that

either action was materially adverse.

The standard for materiality is the same in Title IX and Title VII cases. See Lucero v.

Nettle Creek Sch. Corp., 566 F.3d 720, 728-29 (7th Cir. 2009). “Not everything that makes an

employee unhappy is an actionable adverse action.” Brown v. Advocate S. Suburban Hosp., 700

F.3d 1101, 1106-07 (7th Cir. 2012) (quoting Stephens v. Erickson, 569 F.3d 779, 790 (7th

Cir. 2009)). “Because an adverse employment action under Title VII’s retaliation provision

must be ‘materially’ adverse, it is important to separate significant from trivial harms.” Id.

(citations and internal quotation marks omitted). Thus, “[i]n a retaliation case, an adverse

action is one that a reasonable employee would find to be materially adverse such that the

employee would be dissuaded from engaging in the protected activity.” Silverman v. Bd. of

Educ. of Chi., 637 F.3d 729, 740 (7th Cir. 2011) (citations and internal quotation marks

omitted). None of the adverse actions that Burton identifies for her Title IX claim satisfy

these requirements.

Burton proposes a lenient standard for determining whether defendants’ actions were

materially adverse because her protected conduct in this case was altruistic: she was not

complaining about harassment that she suffered, but was instead helping someone else handle

harassment. Indeed, the Seventh Circuit has recognized that “it takes less to deter an

altruistic act than to deter a self-interested one.” Washington v. Ill. Dep’t of Revenue, 420 F.3d

658, 662 (7th Cir. 2005); see also Herrnreiter v. Chi. Hous. Auth., 315 F.3d 742, 746 (7th Cir.

2002). But even under Burton’s proposed standard, she has not identified conduct that rises

to the level of actionable retaliation.

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Caywood’s public criticism of how Burton handled the student incident was not a

materially adverse action. According to Burton, Caywood’s new policy was obviously

intended to criticize or reprimand her because it directed faculty to handle student

complaints differently from the way that she handled the incident in October 2012. As

Burton paraphrases, Caywood announced to the department that someone had “made a big

deal out of a student complaint and before notifying him took it all the way to the provost.”

Dkt. 54-14. But the evidence of record is that Caywood developed a policy for how faculty

should handle issues that students had with professors because he believed that the lack of

instruction was at least partly responsible for how the student incident had been handled—or

“mishandled,” to use Caywood’s words. Dkt. 36, ¶ 31. The policy did not expressly denounce

the way that Burton addressed the incident; it merely established a different procedure for

responding to similar events in the future. Dkt. 53-6.

The other instances of Caywood being less than collegial to Burton do not to amount

to actionable retaliation. For example, Burton takes issue with Caywood “tersely asking her

for a timeline and identities of those to whom she had spoken” about the student incident.

Dkt. 57, at 11. But Caywood’s email simply sought information; he did not accuse Burton of

wrongdoing or express concerns over how she handled the situation. Dkt. 53-29. And once

the director of human resources explained to Caywood that he was not to investigate further,

Caywood dropped the issue. Dkt. 36, ¶ 30 and Dkt. 53-5.

Burton also vaguely alludes to Caywood having significant discretionary power over

the lives and career prospects of faculty members by virtue of having been the chair of the

department. Dkt. 57, at 11-12. She contends that in light of the power imbalance,

Caywood’s implicit criticism was particularly troubling for her. But tellingly, Burton does not

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base her Title IX retaliation claim on any adverse decisions that Caywood made that affected

her career. In fact, in November 2012—the same month as his alleged reprimand—Caywood

approved Burton’s request to take on an additional course (and receive additional

compensation). Two months later, Caywood approved Burton’s request to use department

funds to take students to a conference. And finally, Caywood supported Burton’s successful

bid for early tenure in 2013.

The court will accept Burton’s recollection that Caywood publicly expressed irritation

at her making a big deal out of the student complaint. But no reasonable jury could conclude

that the lone statement would deter professors from helping students report sexual

harassment in the future. Quite the opposite: Caywood’s purpose was to give faculty in his

department a uniform procedure for addressing student complaints. Dkt. 36, ¶ 31.

Construing the new policy as an implicit reprimand—as Burton asserts it was—does not

change the analysis. “Even under the more generous standard that governs retaliation claims,

a reprimand without more is not an adverse employment action.” Chaib v. Indiana, 744 F.3d

974, 987 (7th Cir.), cert. denied, 135 S. Ct. 159 (2014) (citations and internal quotation

marks omitted).

Burton’s dissatisfaction with how Caywood presented the policy and treated her in

the months following the student incident is essentially a complaint about the “petty slights

or minor annoyances that often take place at work and that all employees experience,” but

which do not qualify as materially adverse actions. Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 68 (2006). Neither a bruised ego, nor a lone instance of public humiliation

constitutes actionable retaliatory conduct. Flaherty v. Gas Research Inst., 31 F.3d 451, 457

(7th Cir. 1994); Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883, 885-86 (7th Cir. 1989).

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Burton therefore cannot base a Title IX retaliation claim on Caywood’s response to how she

handled the student incident.

For substantially similar reasons, Burton’s consternation over Throop and Caywood’s

response to the AT&T press release cannot support her Title IX claim either. The evidence of

record contradicts Burton’s assertion that Throop and Caywood damaged her reputation by

informing the AT&T representative that the draft press release was unacceptable. Throop’s

email was direct: it conveyed her concern about misleading statements that described the

status of the cybersecurity curricula at UWP. But the email was not accusatory or

disparaging. Throop did not attribute the misstatements to Burton—or to anyone, for that

matter. Dkt. 53-16, at 1.

Although Burton speculates that the situation damaged her reputation with AT&T, as

well as with a state legislator, she has not adduced admissible evidence to support her

speculation. To the contrary, the entire controversy was short-lived. Ten minutes after her

first email, Throop sent a second email explaining that the AT&T representative would edit

the press release to alleviate her concerns. AT&T went through with the donation, and

Burton received the check at a public ceremony. There is no evidence in the record that

Burton later tried, unsuccessfully, to obtain additional funding from AT&T, nor is there

evidence that the state legislator or anyone else refused to work with Burton because of the

incident with the AT&T press release.

Caywood’s email concerning the press release and the representations about UWP’s

cybersecurity curricula that appeared on Burton’s websites was stern, and he ended the

message by cautioning Burton about how she was presenting her ideas in the media or on the

Internet. Dkt. 53-4, at 2. But the email was essentially constructive. Caywood explained the

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steps for developing a new curriculum, described the last time that the department had

undertaken such a project, and gave Burton specific examples of the statements that she had

made that were, in his opinion, inaccurate. Id. at 1-2. Burton does not contend that Caywood

sent the email to anyone else or voiced his concerns to Burton’s peers or supervisors. Thus,

other than her own disappointment or disagreement with Caywood’s opinion, Burton has not

adduced evidence of negative consequences that she experienced because of the email.

Rather, in the midst of what Burton perceived as hostility, she was awarded tenure. Under

these circumstances, no reasonable jury could agree with Burton that Throop’s email or

Caywood’s email (or the two combined) would have dissuaded future efforts to assist

students with potential harassment.

Burton has failed to adduce evidence of a materially adverse action, an essential

element of her Title IX claim. Defendants are therefore entitled to summary judgment on

Burton’s retaliation claim under Title IX.

2. Title VII

Burton also contends that the retaliation that she faced for helping the female student

violates Title VII. As with her Title IX claim, Burton must adduce evidence of three elements

to make a prima facie case of retaliation under Title VII: (1) protected activity; (2) a

materially adverse action; and (3) a causal connection. Cung Hnin, 751 F.3d at 508. The

court has already concluded that Burton did not suffer a materially adverse action in response

to assisting the student. But this claim fails for a second reason as well: Burton did not

engage in an activity protected under Title VII when she assisted the student.

Title VII prohibits employers from retaliating against employees who engage in

statutorily protected activity. 42 U.S.C. § 2000e-3(a). Here, Burton cannot assert a Title VII

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retaliation claim based on these allegations because there was no employment relationship

between the student and the professor and because Burton was not complaining that she

herself was harassed. Thus, Burton was not opposing an unlawful employment practice, which

is a required element of a retaliation claim under § 2000e-3(a). Burton does not respond to

defendants’ argument, essentially conceding the point. See Cincinnati Ins. Co. v. E. Atl. Ins. Co.,

260 F.3d 742, 747 (7th Cir. 2001). Defendants are therefore entitled to summary judgment

on Burton’s claim that she faced retaliation for helping the student in violation of Title VII.

B. Retaliation for Burton’s own charges of discrimination

Burton also alleges that defendants retaliated against her for filing charges of

discrimination and this lawsuit. There are two administrative charges at issue in this case.

The first charge, which Burton filed with the ERD on August 13, 2013, alleged that she had

been discriminated against because of her sex and retaliated against for assisting the student

with her complaint. Dkt. 54-1. The second charge, which Burton filed with the Equal

Employment Opportunity Commission (EEOC) on December 9, 2014, alleged that she had

experienced intimidation and disciplinary action “[a]s a result” of filing her first charge of

discrimination. Dkt. 54-2.

1. Exhaustion

The court again starts with a preliminary issue before turning to the merits of this

retaliation claim. Defendants acknowledge that filing a charge is a protected activity under

Title VII. But they contend that Burton’s second charge did not provide enough detail to

fulfill her obligation to exhaust administrative remedies before filing a federal lawsuit. See

Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994) (“As a general rule, a Title

VII plaintiff cannot bring claims in a lawsuit that were not included in her EEOC charge.”).

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Specifically, defendants argue that the second charge did not identify the adverse or

disciplinary actions that Burton suffered in retaliation for filing her first charge.

Burton disagrees, asserting that her second charge gave adequate notice of her claims.

In the second filing, Burton charged sex discrimination and retaliation beginning on April 15,

2009, and continuing through October 28, 2014 (the date of dean Throop’s letter of

direction). Dkt. 54-2, at 11. Burton also complained of a “continuing action.” Id. Defendants

are correct that the charge does not identify Throop or Dalecki as the retaliators, but Burton

indicated that she had “been subjected to intimidation and disciplinary action,” id., which are

the two adverse actions that she complains of in this lawsuit. Regardless, Burton’s intake

questionnaire and supplement to her second charge provided plenty of details about the

retaliation that she wanted the agency to investigate. These materials satisfy a plaintiff’s

obligation to exhaust her claims, so long as it is clear that she intended for the agency to

investigate her allegations. Vela v. Village of Sauk Village, 218 F.3d 661, 664 (7th Cir. 2000).

Such is the case here.

Burton engaged in protected activity when she filed her first charge in August 2013.

Burton’s second charge exhausted her administrative remedies for the retaliation that she

suffered after filing the first charge. Burton has satisfied the exhaustion requirement, and the

court turns to the merits of her claim.

2. Materially adverse actions

Burton identifies two categories of adverse actions that she suffered in retaliation for

filing a charge of discrimination and beginning this lawsuit: (1) during the 2013-14 school

year, Dalecki repeatedly pressured Burton to drop her charges; and (2) between October

2014 and January 2015, dean Throop took or threatened to take disciplinary actions against

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Burton. Dkt. 57, at 23-24. No reasonable jury could conclude that Dalecki’s conduct toward

Burton was materially adverse. The same is true for one instance in which Throop threatened

Burton with discipline, but later rescinded that threat. The two instances in which Throop

actually pursued discipline, however, qualify as materially adverse actions.

Again, the same standard of materiality applies: “an adverse action is one that a

reasonable employee would find to be materially adverse such that the employee would be

dissuaded from engaging in the protected activity.” Silverman, 637 F.3d at 740 (citations and

internal quotation marks omitted).

According to Burton, Dalecki began pressuring her to drop her lawsuit in October

2013. Burton emphasizes that, in context, Dalecki’s statements could reasonably be

construed as threats. And by “context,” Burton means that Dalecki was the chair of her

department and had been appointed by Throop over the objections of several members of the

department. Calling Dalecki’s actions “threats” overstates the evidence; Burton did not go

that far during her deposition, instead testifying that Dalecki “tried to convince [her] that it

would be in [her] best interest to let go of it.” Dkt. 39 (Burton Dep. 451:19-20). But even

accepting Burton’s characterization, Dalecki’s statements do not qualify as materially adverse

actions because nothing ever came of them. “[I]t is well established that unfulfilled threats

that result in no material harm cannot be considered an adverse employment action under

Title VII.” Hottenroth v. Village of Slinger, 388 F.3d 1015, 1030 (7th Cir. 2004) (citing Ajayi v.

Aramark Bus. Servs., Inc., 336 F.3d 520, 531 (7th Cir. 2003)); see also Dunn v. Wash. Cty.

Hosp., 429 F.3d 689, 692 (7th Cir. 2005) (“Almost all of what Dunn characterizes as

‘retaliation’ is verbal requests from Coy to withdraw her complaint of sexual harassment. . . .

Yet his statements did not cause Dunn any injury (that is to say, no adverse employment

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action occurred).”). Burton has adduced evidence that Dalecki pressured her to drop her

charges, lawsuits, and grievances. But without more, this pressure is not materially adverse.

Burton cannot base her Title VII retaliation claim on Dalecki’s statements.

For the same reasons, Burton cannot base her Title VII retaliation claim on Throop’s

December 2014 email threatening to discipline her for cancelling class. Although being falsely

accused of cancelling class may have caused Burton some anxiety, she was not disciplined and

was able to quickly and easily refute Throop’s accusation. Thus, just as Dalecki’s unfulfilled

threats to block Burton from advancing her career do not qualify as materially adverse

actions, neither does Throop’s unfulfilled threat of discipline.

This leaves Throop’s letter of direction and formal complaint to the chancellor, which

defendants acknowledge are “arguably materially adverse actions.” Dkt. 63, at 9-10. The

court agrees: a formal letter of direction and a request for discipline could certainly dissuade

an employee from filing a charge of discrimination or a federal lawsuit. Burton has identified

a materially adverse action (or set of actions) on which to base a Title VII retaliation claim.

3. Causal connection

For the final element of Burton’s prima facie case, she must adduce evidence of a

causal connection between her charge and later lawsuit and dean Throop’s letter of direction

and § 6.01 complaint. A plaintiff in a Title VII retaliation case must show that her protected

activity was the “but for” cause of an adverse action, which “means that the adverse action

would not have happened without the activity.” Carlson v. CSX Transp., Inc., 758 F.3d 819,

828 n.1 (7th Cir. 2014).

Burton does not have direct evidence of Throop’s motives and must therefore adduce

circumstantial evidence of retaliatory animus. Circumstantial evidence can include suspicious

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timing, ambiguous statements, similarly situated employees who were treated differently,

pretextual reasons for the adverse employment action, “and other bits and pieces from which

an inference of retaliatory intent might be drawn.” Lambert v. Peri Formworks Sys., Inc., 723

F.3d 863, 869 (7th Cir. 2013). In this case, Burton relies on evidence of pretext: she

contends that the allegations in Throop’s letter of direction were so obviously false that they

must have been a cover for retaliatory animus. Dkt. 57, at 29-30. The court disagrees.

Burton responded to the letter of direction by disputing Throop’s factual assertions

and accusing Throop of misconduct. See generally Dkt. 37-15, at 30-38. She takes the same

approach in opposing defendants’ motion for summary judgment, essentially inviting the

court to determine whether Throop was right or wrong to write Burton the letter. But this is

not the court’s role in a Title VII case. Federal courts “do not evaluate whether the stated

reason [for an adverse action] was inaccurate or unfair.” Harden v. Marion Cty. Sheriff’s Dep’t,

799 F.3d 857, 864 (7th Cir. 2015) (citations and internal quotation marks omitted). Rather,

courts look for evidence of pretext, which “involves more than just faulty reasoning or

mistaken judgment on the part of the employer; it is a lie, specifically a phony reason for

some action.” Id. (citations and internal quotation marks omitted). Thus, the court’s task

here is to determine whether Burton has adduced evidence from which a reasonable jury

could conclude that Throop did not sincerely believe the reasons that she gave for writing the

letter of direction and pursuing further discipline.

Throop’s letter of direction identified specific conduct or correspondence that, in

Throop’s opinion, demonstrated Burton’s unprofessional behavior. Throop attached some of

the pertinent correspondence to the § 6.01 complaint, and she also referred to the conduct

outlined in the letter of direction. By and large, Burton did not dispute then (and does not

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dispute now) that she wrote the emails that Throop described or that she took the actions

that Throop identified. See, e.g., Dkt. 37-12; Dkt. 37-14; Dkt. 37-15, at 8-29; Dkt. 54-11.

What Burton wants to challenge is how Throop perceived and characterized those events, and

whether Throop should have accepted Burton’s explanations for each of them. But these are

the types of internal business and personnel decisions which federal courts do not second

guess, absent some evidence that the employer’s decision was “completely unreasonable.”

Hobgood v. Ill. Gaming Bd., 731 F.3d 635, 646 (7th Cir. 2013). Here, the record demonstrates

that Throop had a factual basis for her conclusions. Burton’s mere disagreement with

Throop’s decisions and with how Throop viewed Burton’s conduct is not evidence of pretext.

The timing of Throop’s letter of direction also undercuts an inference of retaliatory

animus. Burton filed her first charge of discrimination in August 2013, and she filed this

lawsuit against Throop in April 2014. This means that about six months passed between

Burton’s protected activity and Throop’s October 2014 letter of direction. The gap itself is

not dispositive because “a long time interval between protected activity and adverse

employment action may weaken but does not conclusively bar an inference of retaliation.”

Malin v. Hospira, Inc., 762 F.3d 552, 560 (7th Cir. 2014), reh’g denied, (Sept. 16, 2014). But,

as defendants point out, Throop independently took actions that benefited Burton during the

period between her first charge and the letter of direction. Specifically, Throop sought and

obtained an equity adjustment to Burton’s salary in March 2014. Such intervening beneficial

treatment undermines a plaintiff’s assertion of retaliatory animus. See, e.g., Albrechtsen v. Bd. of

Regents of Univ. of Wis. Sys., 309 F.3d 433, 437 (7th Cir. 2002).

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Burton cannot establish that Throop’s letter of direction and later disciplinary

complaint were a pretext for retaliation. Summary judgment is appropriate on Burton’s Title

VII claim of retaliation for filing charges of discrimination and this lawsuit.

C. Conclusion

Burton’s department, like almost any workplace, has its abrasive personalities, and the

department produces its share of annoyances and disputes. Burton has found herself at the

center of such conflicts over the past few years. But employers are entitled to manage, and

even reprimand, their employees. Federal courts are not personnel departments, and federal

retaliation law does not impose liability for every slight that an employee experiences. In this

case, Burton has not adduced evidence from which a reasonable jury could find that

defendants retaliated against her. Defendants are therefore entitled to summary judgment.

ORDER

IT IS ORDERED that:

1. Defendants Board of Regents of the University of Wisconsin System, Thomas

Caywood, Elizabeth Throop, and Michael Dalecki’s motion for summary

judgment, Dkt. 32, is GRANTED.

2. The clerk of court is directed to enter judgment in favor of defendants and close

this case.

Entered March 17, 2016.

BY THE COURT:

/s/

________________________________________

JAMES D. PETERSON

District Judge

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 [RB1]Wrong citation  -  It should be (R. 40-12:5 para 3)

 [RB2]Change to:

 

matters