Public Rebuttal to 7th Circuit court of Appeals decision: Appeal decision is in italics and rebuttal is in standard font.
A private addendum to this rebuttal is: (Rebuttalto-AppealDecision-section-priv) a username and password is required to access. This addendum contains new evidence and information that may require the courts to re-hear the case.
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐2982
SABINA BURTON,
Plaintiff‐Appellant,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM,
et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 14‐cv‐274 — James D. Peterson, Judge.
____________________
ARGUED JANUARY 19, 2017 — DECIDED MARCH 17, 2017
____________________
Before FLAUM, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Sabina Burton, a professor in the
criminal justice department at the University of Wisconsin‐
Platteville, sued the school’s Board of Regents and three individual
defendants. She claims that her superiors took several
retaliatory actions against her over the course of about two
years. She seeks relief under Title VII of the Civil Rights Act
of 1964 and Title IX of the Education Amendments of 1972.
Case: 16-2982 Document: 40 Filed: 03/17/2017 Pages: 14
2 No. 16‐2982
The district court granted summary judgment to the Board
and the individual defendants. For the reasons set forth below,
we affirm the judgment of the district court.
I. Background
In 2009, Dr. Burton was hired as a tenure‐track professor
in the criminal justice department at the University of Wisconsin‐
Platteville. In January 2012, she was promoted to associate
professor. Later that year, a series of events began to unfold
that eventually led to this litigation.
First, in October 2012, Burton received a complaint from a
student in her department who claimed that another professor
had sexually harassed her. The student was upset that the
professor had handed her a note during class that read “call
me tonight!” and included the professor’s phone number. The
next day, Burton contacted the Dean of the College of Liberal
Arts (which encompasses her department), Elizabeth Throop,
regarding the alleged harassment.
Rebuttal: Incorrect. Dr. Burton contacted Dean Throop the same day she received the note and informed her if it. Her email to Dean Throop was sent about half an hour after Burton received the information from the student (Oct. 10, 2012 (5:01 pm) Dkt 53-23).
Burton then spoke with her
department chair, Thomas Caywood, who broached the subject
with the offending professor.
The professor who wrote the note claimed that it was part
of a “breach experiment,” or an intentional provocation designed
to display to the class social norms by violating them.
The student, however, took it seriously. In any event, Burton
told Caywood that she thought all faculty members should be
made aware whenever a professor conducts such an experiment,
but Caywood didn’t think that was necessary.
Rebuttal: The court fails to mention that such an experiment required IRB approval but the faculty member did not have such approval. Therefore, the reason stated is beyond belief. Dr. Burton asked if the professor had obtained this approval. Why didn’t the court mention this?
Caywood didn’t think it was necessary but he did seem to believe that the excuse given by the offending professor, Dr. Gibson, was true. He believed Dr. Gibson had necessary approval and when he learned otherwise he claimed that he had given the approval. Dr. Caywood was not authorized to give this approval. Why didn’t the court write this? Probably because Attorney Tim Hawks, Dr. Burton’s attorney failed to include this information in the record.
A week
later, Caywood circulated a memo to the department that altered
the procedure for reporting student complaints about
faculty members: professors were now to bring students’
complaints directly to Caywood, rather than going outside of
Case: 16-2982 Document: 40 Filed: 03/17/2017 Pages: 14
No. 16‐2982 3
the department.
Rebuttal: The court failed to include that Dr. Caywood’s “procedure” violated university policy which allows reporting such incidents to a number of different people. Why didn’t the court write this? Probably because Hawks didn’t tell them about it.
The next month, Caywood said at a department
meeting that the change was necessary because someone
had overreacted by bringing a student complaint outside
the department.
Rebuttal: Caywood was wrong to make this claim. He was clearly talking about Dr. Burton. He was presenting new “procedures” that violated university policy and state law. Why didn’t the court mention this?
Overall, Caywood became less collegial towards
Burton, and she viewed the change in departmental
policy as a direct repudiation of her conduct.
Rebuttal: Wow, “less collegial” is the way the court characterizes Dr. Caywood’s actions against Dr. Burton? As if Caywood wasn’t trying to destroy Dr. Burton’s career? Dr. Burton never agreed that Caywood was merely “less collegial” but instead claimed that Dr. Caywood was trying to destroy her and gave numerous examples. This seems to be an opinion of the court based on sketchy facts that were presented to them. They could not have come to this conclusion if they had considered all the evidence Dr. Burton provided to her attorneys.
Around the same time, Throop and Caywood began to
withdraw their support for a cybersecurity curriculum that
Burton had been developing. In April 2012, Burton submitted
(and Caywood signed) a grant application to the National Science
Foundation in an attempt to receive funding for the creation
of a cybersecurity curriculum at the University.
Rebuttal: This is incorrect. The sentence should read “In April 2012, Burton submitted
(and Caywood signed) a grant application to the National Science Foundation in an attempt to receive funding for the creation of a cybersecurity program at the University.” A program is obviously a much larger undertaking than a “curriculum.” A “curriculum” is but a small part of a “program.” Why did the court write “curriculum” vice “program?” Probably because the documents they were given used that phraseology. Why did the court documents use that phraseology? Dr. Burton’s attorney misrepresented Dr. Burton (show how he did so here – maybe write a short story just for this one item).
That application
was rejected, but Burton eventually received a modest
offer from AT&T of $7,000 to fund the cybersecurity program.
Rebuttal: Incorrect. A “curriculum” is but a very small part of a “program.” The NSF proposal was asking for almost a half million dollars to build a “program” whereas the AT&T donation of $7,000 was intended to help Dr. Burton develop a “curriculum.” The NSF proposal was rejected because they do not fund programs that do not have a “curriculum” in place. The $7,000 grant was intended to build a “curriculum” so Dr. Burton could again ask the NSF for a half-million dollar grant to build a “program.” This is an issue that the defense has been trying very hard to confuse and their efforts seem to have worked. The court failed to understand this important aspect of the case.
Caywood and Throop hampered this process after Burton
had reported the alleged harassment of the student in October
2012.
They did more than “hamper” the process. OMG. Look on the timeline to see what they did to destroy Dr. Burton’s cyber-security efforts from Oct 12, 2012 to January 24, 2013. I am awestruck by the word “hamper.” It looks like the court failed to see what occurred. Why didn’t the court see what happened? Possibly because Dr. Burton’s attorneys failed to present the story properly. Doesn’t that sound like misrepresentation?
Specifically, in November Caywood failed to respond to
Burton’s request for a meeting about the grant process.
So, it appears that the court felt that the only thing Caywood did to Dr. Burton that injured her efforts to build a cyber-security program was the he once failed to respond to a request for a meeting? Wow. Wow. Where did the court get the idea that Caywood’s failure to respond to one single, solitary email request to meet was the only thing he did to “hamper” Dr. Burton’s efforts to build a cyber security program? Did the court believe this because Dr. Burton’s attorney, Tim Hawks, failed to present the facts in a compelling story? Look at the events from Oct 12, 2012 to Jan 24, 2013 to see what was left out. It is way too much to include here.
Then on January 24, 2013, both Throop and Caywood objected to
the wording in a draft press release prepared by the AT&T
representative. In an email chain that included Burton and the
AT&T representative, Throop and Caywood expressed their
concerns
Rebuttal: Incorrect. Dr. Caywood did not express his concerns in an email to the AT&T representative. The email came from Dean Throop, not Dr. Caywood. Dr. Caywood had sent his “concerns” to Dean Throop and Throop then wrote to the AT&T representative.
that the press release said too much because Burton
had yet to submit formally any course curricula to the appropriate
University committees.
Rebuttal: Incorrect. Dean Throop expressed her concern to the AT&T representative that the press release contained “misrepresentations.” However, Dean Throop never identified any statement in the press release that misrepresented anything. Dean Throop later tried to confuse the issue by mixing up the words “curriculum” and “program.” By allowing this confusion to go uncorrected Dr. Burton’s attorneys seems to have misrepresented her arguments to the court. Dean Throop’s concern on Jan 24, 2012 was that Dr. Burton had 1) misrepresented herself as an expert in cyber-security and 2) that Dr. Burton had made the claim that a cyber security “program” was in existence at UW Platteville. (Put the evidence here).
Niether Throop nor Caywood expressed concern on Jan 24, 2012, that Dr. Burton had yet to formally submit any course curricula to appropriate committees. So how can the court come to this conclusion five years after the fact? I think the defense came up with an elaborate smoke screen idea to confuse the court. I think they coordinated with Dr. Burton’s attorney to allow the smoke screen to cloud the court’s vision by not clarifying it.
The AT&T donation was primarily intended to allow Dr. Burton to create a “curriculum” so that she could later apply again for a much larger grant from NSF to build a “program.” For this reason, the court’s opinion that Dean Throop and Dr. Caywood were concerned that Dr. Burton had not yet formally submitted any course curricula is ludicrous. The court seems to believe that a finished product should be in place before receiving funding to build the product. Since the court can’t possibly hold this opinion it is evident that the court did not understand the purpose of the AT&T grant. By failing to provide the court with this information Dr. Burton’s attorney, Tim Hawks seems to have misrepresented Dr. Burton.
Note from Roger: I saw this coming a mile away. I tried to get Hawks to correct this but he failed to do so. He allowed the defense to confuse this issue despite my best efforts to get him to clarify it. I talked to him about it and sent emails explaining it but somehow it didn’t get into the court documents correctly. (Find my emails to Hawks showing this)
Caywood also confronted Burton
about inaccuracies (which Caywood had never noticed
before) on two websites that Burton had created for the proposed
cybersecurity program.
Rebuttal: Dr. Caywood confronted Dr. Burton about what he said were misrepresentations but they were not. The fact that Dr. Caywood knew that Dr. Burton did not make misrepresentations on the website indicates that he did not believe his admonition of Dr. Burton. How did Dr. Caywood know that his admonishments were not true? 1) He knew that Dr. Burton was an expert in cyber-security and 2) he can read. Because Dr. Caywood can read English he could easily see, as anyone can, that Dr. Burton’s website listed elements of a “proposed” cyber security program and not a cyber security program that was already in existence.
It seems the court did not understand the material issues of this matter. This seems to indicate that Dr. Burton’s former attorney, Tim Hawks, failed to portray the material facts in the case and thereby misrepresented Dr. Burton.
Dr. Caywood did not “confront” Dr. Burton. Confrontation would include the opportunity for Dr. Burton to respond to the accusations but Dr. Burton was never afforded the opportunity to address the false accusations. Caywood emailed scathing and untrue accusations to Dr. Burton and cc’d them to Dean Throop. Dean Throop seems to have believed Dr. Caywood, without ever hearing Dr. Burton’s side of the story, and she withdrew her support of Dr. Burton’s efforts based, in part on Caywood’s scathing letter.
For Dr. Caywood to “notice” something on Jan 24, 2013 that he failed to “notice” when he saw the websites previously there would need to be something on the website for him to “notice.” Dr. Caywood made two untrue allegations about the website 1) that Dr. Burton referred to herself as an “expert” and 2) that Dr. Burton claimed that there was an existing cyber-security program at UW Platteville. Caywood could not have “noticed” these things for the first time on January 24, 2013 because they were never on the website, including Jan 24, 2013. In fact, the court acknowledges in this statement that the websites were for a “proposed” cybersecurity program and not for one that already existed. It seems Dr. Burton’s attorney misrepresented her claims by failing to clarify the issue in court documents.
Nevertheless, Throop and the
Case: 16-2982 Document: 40 Filed: 03/17/2017 Pages: 14
4 No. 16‐2982
AT&T representative ironed out the language of the press release
and Burton received the grant the next day in a public
ceremony attended by the provost of the University.
Rebuttal: Incorrect. Dr. Burton received a ceremonial grant check at the presentation. The grant funds had been deposited in the UW Platteville foundation account a month prior. Dean Throop ordered Dr. Burton to use the funds in a manner inconsistent with the purpose of the grant so Dr. Burton was unable to legally use the funds. As far as Dr. Burton knows the funds are still in the foundation’s account. She has not used the funds except for a small portion used prior to Jan 24, 2013.
Incorrect. The grant was presented on Jan 28, 2013 (Memo-ATTgrantceremony-1-28-13) and not the next day.
In the midst of this, in January 2013 Burton submitted her
application for tenure. It was unanimously granted two
months later. Although Caywood had initially opposed Burton’s
application, he eventually voted in her favor.
The court did not mention the fact that Dr. Burton’s tenure request was initially ignored by the CRST who returned a report stating “no action taken” in regards to her tenure request. After Dr. Burton expended much effort trying to get her request even considered she was finally told that “administrative oversight,” an “office error” and “simply a glitch in process” were the reasons why her tenure request had been overlooked, ignored and simply not processed as it should have been. The real reason why Dr. Burton received tenure was because Aric Dutelle had been given tenure. This argument was not considered by the court so it seems that Dr. Burton’s attorney failed to include this material information thereby misrepresenting his client.
Caywood
then stepped down as department chair after the 2012–13 academic
year,
Rebuttal: Dr. Caywood wrote to the department that he had been “removed” from his position as chair. Dr. Dalecki wrote in his notes that he believed Dr. Caywood had been removed. Dr. Burton pointed out that there was conflicting reports as to Caywood’s “removal” or “stepping down” but she was ignored. The court did not seem to consider the likelihood that Dr. Caywood was “removed.” The court did not mention that Throop considered Caywood to be less than able to run the department at a minimally acceptable level. It seems that the court was not given this information to consider. It seems that Dr. Burton’s attorney misrepresented her by failing to include this information in court documents.
seemingly in part because of conflict with Burton.
Rebuttal: The court does not identify whether they believe the position change was because Burton’s allegations were legitimate or whether they were because Dr. Burton somehow was unreasonable in an unnamed way. This is the sort of thing a court should probably determine before dismissing a complaint rather than making vague statements like this. Dr. Dalecki wrote in his notes “Tom’s (Dr. Tom Caywood’s) removal and my replacing him was a tacit if not overt admission that at least some of her (Dr. Burton’s) complaints were likely valid” (Dkt 34-2 Exh C- Meeting Notes). The court seems to be setting Dr. Burton up by implying that she, and not Dr. Caywood, was at fault for the “conflict” between them. This even though there is no indication that Dr. Burton did anything to cause the conflict except to ask for relief from retaliation by Dr. Caywood. It appears that the court may be implying that Dr. Burton’s protected activities were responsible for the conflict and therefore deserving of the abuse she suffered. This seems to be a failure of judicial judgment. Or, perhaps the court relied on faulty information from Dr. Burton’s attorney. If the latter is the case then we have another indication of misrepresentation.
He was replaced by Michael Dalecki, but Burton’s troubles
did not end there.
On August 13, 2013, Burton filed a charge of discrimination
with the Wisconsin Department of Workforce Development
– Equal Rights Division (ERD). In it, Burton alleged that
(1) Caywood had discriminated against her because of her sex
and retaliated against her for reporting the note incident; (2)
both Throop and the University’s human resources director
(to whom Burton had sent an email
Rebuttal: Dr. Burton sent more than just one email alleging retaliation. She met with Dean Throop and HR director Durr on multiple occasions, requested mediation and made a number of other requests for relief from retaliation (Insert evidence here- also check with the ERD report to see if only one email was mentioned).
complaining of Caywood’s
retaliation) had discriminated against her; (3) Throop
had defamed her (in connection with the AT&T press release);
and (4) the University had been deliberately indifferent to her
grievances.
(Check to make sure there were not other important complaints in the ERD report that the court missed)
After she filed that charge, Dalecki and others
pressured her on multiple occasions to drop her case. Burton
was told that she might have been considered for the positions
of dean or department chair, but that she could not expect to
advance if she continued to engage in litigious behavior.
On April 14, 2014, Burton filed her initial complaint in this
case in the Western District of Wisconsin, alleging both discrimination
and retaliation. Then on October 20, 2014, she
completed an intake questionnaire with the United States
Equal Employment Opportunity Commission (EEOC).
Rebuttal: Dr. Burton identified the following issues in EEOC charge no. is 443-2015-00090C, which she filed on Oct 20, 2014, (Dkt 54-2):
1. The university delayed her requests such as grievance decisions.
2. Chancellor Shields mishandled her grievance against Caywood.
3. That a university attorney gave leading input that steered the committee away from fair consideration in a grievance report.
4. Chancellor Shields applauded Throop’s violation of policy and ignored Dr. Burton’s opposition to Dr. Dalecki’s appointment as chair of the CJ department.
5. That the grievance committee chair didn’t know he was supposed to advertise hearings per Wisconsin Open meetings law. This is indication that grievance hearings were regularly conducted in violation of Wisconsin Open Meetings Law.
6. That the university failed to follow federal mandates about Discrimination and harassment policy.
7. That Provost Den Herder mandated communication training but the training never happened.
8. Chancellor Shields attempted to limit Dr. Burton’s free speech (a violation of the first amendment).
9. Dr. Burton’s voting privileges had been violated repeatedly.
10. Caywood and Dalecki and possibly others, conspired to harass and intimidate Dr. Burton.
11. The chair is accountable only to the dean and not to the department (this violates policy).
12. Dalecki had a tremendous turnover rate of women in his prior department. One of them became suicidal.
13. Dalecki had discriminated against Dr. Burton in an evaluation report.
14. Dalecki uses intimidation to make women nervous and worried. He cultivates madness in women like he is watering a plant.
15. Dalecki assigns junior faculty to prestigious positions while relegating Dr. Burton to lower classes.
16. Dalecki spread rumors that Dr. Burton dropped the ball on a German delegation visit.
17. Dr. Fuller told Dr. Burton that Dalecki and Throop had discussed terminating her employ.
18. Mediators wouldn’t let Dr. Burton tell her side of the story. The university terminated mediation with Dalecki without explanation.
19. Dalecki assigned a class, that Dr. Burton should have been assigned, to a junior instructor.
20. Dalecki gave unreasonable and vague explanations for his adverse actions against Dr. Burton.
21. Dalecki lied on several occasions about issues material to Dr. Burton’s claims.
22. That Dr. Burton had filed a formal grievance against Dalecki and was promised a hearing but that it was delayed indefinitely.
23. Dean Throop violated policy in the search for a chair to replace Dalecki.
24. Dalecki reprimanded Dr. Burton for a written complaint to the chancellor. Dalecki pressured Dr. Burton to withdraw the EEOC complaint.
25. Dalecki refused to honor Dr. Burton’s written contract.
26. Dalecki Purposely misinterprets policy.
27. Votes are rigged.
28. Dr. Burton was not allowed to aid in hiring new members of the dept.
29. Dalecki did not allow Dr. Burton to work to re-shape the Forensic Investigation dept.
30. Dr. Solar excluded Dr. Burton from participating in department affairs, in violation of policy, and lied about it.
31. Dalecki gave unreasonable and vague explanations
32. Dalecki assigned courses unfairly.
33. Dr. Burton was in a pressure cooker designed to make her so miserable that she would give up and leave.
Four days later, Throop sent Burton a “letter of direction”
Rebuttal: Incorrect. Dean Throop sent the Letter of direction to Dr. Burton on 10/29/2014, nine days after Burton had filed the EEOC complaint, not four.
Dr. Burton had made numerous complaints to the agents of the defense in the days and weeks prior to the issuance of the letter of direction. These complaints were protected activity. The court does not seem to have considered these protected activities in their decision. Perhaps this is due to a failure by Dr. Burton’s attorney, Tim Hawks to provide this information in court documents. If so, this seems to be another example of misrepresentation.
which
identified seven events that Throop considered examples of
inappropriate behavior by Burton.
Rebuttal: The court opines that Throop considered the allegations in the letter of direction to be inappropriate “behaviors” by Dr. Burton however, this is has not been determined. Dr. Burton’s alleged that Throop’s examples of supposed inappropriate “behavior” were based on lies or protected activity. Dr. Burton’s allegations have never been addressed or considered. Dr. Burton asked for a grievance hearing to address this issue but the university failed to give her a hearing, thereby violating policy and law. After waiting for a hearing for eleven months, Dr. Burton’s attorney, Tim Hawks, advised her to withdraw the grievance request and allow the court to decide on the letter of direction. However, the court did not address the validity of the letter of direction. Dr. Burton has contended from the very day that she received the letter of direction that the letter of direction violated her due process rights (exhibit 570b), [UW-P 005845].
Dean Throop did not consider the “behaviors” noted in the letter to be inappropriate. She wanted Dr. Burton to stop complaining and so she issued a letter of direction filled with false accusations and improper directives. The administration refused to allow a grievance hearing to consider Dr. Burton’s claims because they knew Dr. Burton was right and that Dean Throop was wrong to issue the letter. It was a cover up letter of direction. If the court could not determine this by reading court documents, which appears to be the case, then it seems that Dr. Burton’s attorney failed to adequately represent her interests.
1 Throop’s letter included
five specific directions for Burton to follow. Burton, however,
rejected the directions
Rebuttal: Incorrect. Less than two weeks after receipt of the letter of direction Dr. Burton told Dean Throop “I am sorry, but I cannot accept your letter of direction dated Oct 28, 2014 and delivered on Oct 29, 2014. I have filed a grievance against you concerning your letter of direction and look forward to resolving the issues soon” Dkt 37-15 (exhibit B), (exhibit 583). The grievance hearing was repeatedly promised but Dr. Burton was never afforded a hearing to address the letter of direction.
Dr. Burton did not “reject” the letter of direction but insisted that she be afforded a grievance hearing before she would accept them. There is a difference and the court should have considered this. If court documents did not make this clear to the court, as seems to be the case, then it seems that Dr. Burton’s attorney, Tim Hawks, misrepresented her.
and accused Throop of mischaracterizing
the facts.
Rebuttal: Incorrect. Dr. Burton did not accuse Dean Throop of simply “mischaracterizing the facts.” She filed a grievance against Dean Throop which laid out much more. By reducing Dr. Burton’s grievance to three words the court oversimplifies the gravity of Dr. Burton’s allegations against Dean Throop. Dr. Burton formally filed a grievance against Dean Throop in an email to Dr. Balachandran (Dkt 54-17), (exhibit 600). Attached files were her rebuttal to the letter of direction Dkt 37-15 (exhibit I) and supporting files (exhibits 571, 571f, 600a, 600b) (Appendix XV). Updates to the rebuttal is (interactive exhibit i571f). Updates to (interactive exhibit i600a).
If the court was not able to grasp the elements of the grievance, as seems to be the case, then it seems that Dr. Burton’s attorney, Tim Hawks, misrepresented Dr. Burton.
Afterwards, Throop filed a complaint against
Burton with the chancellor of the Board of Regents pursuant
to Wis. Admin. Code UWS § 6.01, asking for a formal letter of
reprimand.
Rebuttal: The formal complaint came after the fabricated class cancellation allegation. The court seems to imply that the complaint was a result of Dr. Burton’s “behaviors” identified in the letter of direction but it was not. The UWS 6.01 complaint was issued by Throop on January 5, 2015. However, Dean Throop planned to issue the complaint on even as she issued the letter of direction. October 29, 2014 8:44 AM - (RE_Letter-of-Direction), October 29, 2014 8:55:54 AM (Subpoena-Throop). These emails string indicate that Throop planned to file a chapter 6 complaint against Burton on or before Oct 29, 2014. However, Throop did not deliver the Chapter 6 complaint until January 5, 2015, over two months later. In her chapter 6 complaint she did not include any allegations for any actions by Dr. Burton before October 29, 2014. This indicates that Dean Throop’s Chapter 6 complaint was a premeditated abuse of power. She already knew she would file the complaint and just needed to include true things Burton actually did in a complaint. Throop didn’t need Burton’s actions did to be violations of any legitimate rule, policy or law but just something Dr. Burton would admit to having done. This seems to be Throop’s twisted definition of what the court refers to as a “basis of fact.” Dr. Burton’s case is replete with examples of this overreach.
It seems that Throop was planning to retaliate for something(s) that had occurred prior to October 29, 2014 8:44 AM but she needed to use Burton’s “behaviors” that were not protected by law. So, it seems, she fabricated ridiculous directives to apply to only Dr. Burton, and waited for Burton to do something, anything, that she could spin into a violation of her unfair directions, which Burton had rejected as violation of due process (Subpoena-Throop).
On December 15, 2014 5:38 PM – Throop wrote an email to Lohmann saying “(I am going to have to file a Ch. 6 Complaint against [Burton]) (Ch6ComplaintDec15-2014). This shows that her accusation that Burton cancelled class (which was sent after this email) was pretext to give her reason to fire Burton. It also demonstrates that her statement in the deposition was perjury (Dkt 42 pg 114-115). She did want to fire Burton.
It is unclear from the record whether this complaint
has been resolved.
Rebuttal: Chancellor Shields ordered an immediate investigation into Dean Throop’s bogus allegations against Dr. Burton. The investigation was conducted By Dr. Barraclough and a report dated Nov 24, 2015 exists with no signature. Dr. Burton did not receive this report until December 9, 2016 12:41 PM, after involving the AG’s office in the process. Dr. Burton had made numerous requests to view the report but her requests were denied until Dec 9, 2016. Dr. Burton contends that the report is not an original report from Dr. Barraclough. Evidence suggests that the report was “edited” by a third person after Dr. Barraclough submitted his report (Barraclough_Report-email), (Barraclough_Report-not-signed), (Barraclough_Report-Rebuttal).
Chancellor Shields dismissed Dean Throop’s chapter 6 complaint on 8-31-16 (Chancellor-8-31-16-letter). Dr. Burton responded to the Chancellor’s letter (ResponsetoChancellorLtr-8-31-16-email), attached was (ResponsetoChancellorLtr-8-31-16). Updated rebuttal: (ResponsetoChancellorLtr-8-31-16-a)
Finally, on December 4, 2014, Throop accused Burton of
canceling class without permission.
Rebuttal: Incorrect. Dean Throop falsely accused Burton of cancelling class without permission on Tuesday, December 16, 2014 4:51 PM -Dkt 42-78, Dkt 37-15 (exhibit J). Dkt 43-3 BENSKY EXHIBIT AAAA – 002 Dkt 41-42.
In response, Burton sent
an email to all of her students
Rebuttal: Incorrect. Dr. Burton sent an email to the students who had attended her two classes on the day in which she had been accused of cancelling class (about 60 students total).
documenting her issues with
Throop and Caywood
Rebuttal: Incorrect. The court’s statement implies that Dr. Burton sent voluminous documentation about her issues with Throop and Caywood but that is not the case. Dr. Burton did not mention Dr. Caywood’s name. By connecting Dr. Caywood’s name to this email the court is admitting that Dr. Caywood was the person Dr. Burton referred to when she stated “I have been mercilessly harassed since then for my actions in assisting that student.” The court seems to agree that Dr. Caywood mercilessly harassed Dr. Burton. So, why did they uphold the dismissal?
Dr. Burton sent a short email trying to protect herself from a false accusation that was intended to get her fired to the only people on the planet who could verify her attendance in class.
and asking for the students’ help in
proving that she had in fact held class on that day. When the
students responded that class had occurred, Throop did not
discipline Burton.
Rebuttal: Rather than apologize for falsely accusing Dr. Burton of cancelling class Dean Throop filed a chapter 6 complaint for Dr. Burton’s actions in protecting herself. If that isn’t discipline I don’t know what is. This statement is so outlandish I can’t even wrap my head around it. Perhaps the court meant to write “Throop did not discipline Burton for class cancellation.” But she sure as heck disciplined Burton.
The next day, Burton filed her EEOC
charge.
Rebuttal: Incorrect. Burton filed her EEOC complaint on October 20, 2014. The court seems to be confused.
She filed the second amended complaint in this case
on September 11, 2015, and the district court granted summary
judgment to the Board on March 18, 2016.2 Burton
timely appealed.
1 As Burton conceded at oral argument, the record does not show that
Throop or anyone else at the University was aware of the intake questionnaire
when the letter of direction was issued.
If the record does not show this, then there is a problem with the record. Also, why is it up to Dr. Burton to show that the university was aware of the EEOC complaint when she had been complaining of serious retaliation on numerous occasions, all of which were protected activities. If the court could not ascertain this by the record then it is due to a failure by Dr. Burton’s former attorney, Tim Hawks. This is indication of misrepresentation. Also, Attorney Lattis probably knew of the EEOC complaint before it was stamped received by the university. Also, consider who stamps documents such as the EEOC complaint that was stamped on Oct 30, 2014, the administration. What is to keep a corrupt administration from stamping it a few days after they receive it so as to remove any proof that the complaint had been filed. When was it sent to the administration?
2 In her response to the defendants’ motion for summary judgment
below, Burton dismissed all of her original claims except for retaliation
claims under Title VII and Title IX. She also apparently pursues claims
only against the Board of Regents, so we will refer to the defendants
simply as the Board.
When did Burton drop claims against Caywood, Throop and Dalecki? That’s news to Dr. Burton. If this was done, it was done without Dr. Burton’s approval or knowledge. What document drops her retaliation claims against Dalecki, Throop and Caywood? If there exists one then it seems Dr. Burton’s former attorney, Tim Hawks misrepresented her.
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6 No. 16‐2982
II. Analysis
A. Standard of Review
We review the district court’s decision to grant summary
judgment to the Board de novo. Brunson v. Murray, 843 F.3d
698, 704 (7th Cir. 2016). Summary judgment is appropriate
where “there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). We view all evidence in the light most
favorable to Burton, who was the party opposing the motion
below. Brunson, 843 F.3d at 704. The Board is entitled to summary
judgment if Burton cannot present sufficient evidence
to create a dispute of material fact regarding any essential element
of her legal claims on which she bears the burden of
proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
B. Title VII and Title IX Framework
Both Title VII of the Civil Rights Act of 1964 and Title IX
of the Education Amendments of 1972 permit plaintiffs to
bring causes of action for retaliation. See 42 U.S.C. § 2000e‐
3(a) (Title VII); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167,
173–74 (2005) (Title IX). The elements of those claims are the
same: Burton must produce enough evidence for a reasonable
jury to conclude that (1) she engaged in a statutorily protected
activity; (2) the Board took a materially adverse action against
her; and (3) there existed a but‐for causal connection between
the two. Milligan v. Bd. of Trs., 686 F.3d 378, 388 (7th Cir. 2012);
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013)
(causation standard).
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No. 16‐2982 7
C. Waiver of Certain Arguments
One threshold matter that we must address is Burton’s attempt
to inject more facts into the case on appeal than she presented
to the district court. Burton claims that the district
court erred by limiting its analysis to certain alleged protected
activities and materially adverse actions. She says that if the
district court had considered everything, it would have found
that she engaged in more protected activities and suffered
more significant adverse employment actions.
Burton’s problem is that she did not make these broad arguments
to the district court.
Rebuttal: This is indication that Dr. Burton’s former attorneys failed to make these broad arguments and therefore misrepresented her.
For example, on the Title IX
claim she argues that the district court should have considered
a litany of potential materially adverse employment actions.
Yet she presented only two to the district court: Caywood’s
reaction to her reporting of the note incident and Caywood’s
and Throop’s supposed withdrawal of support for her
cybersecurity curriculum.
Rebuttal: Dr. Burton’s former attorney, Tim Hawks, failed to provide any more than two adverse actions despite a large list of adverse actions and urging to file the case on the basis of the “thousand small cuts” case law. On 8-29-15 – Tim Hawks stopped by Dr. Burton’s house for discussion. One thing Roger brought up was the case law for “Thousand Small Cuts.” (Appendix V) discusses it. Here are links to articles about it: http://www.employmentlawmatters.net/2012/06/articles/title-vii/hostile-environment/all-federal-court-circuits-now-recognize-a-cause-of-action-for-retaliatory-hostile-work-environment/ Archived as: http://archive.is/TvXns
http://www3.ce9.uscourts.gov/jury-instructions/node/176 Archived as: http://archive.is/ksUoL
Dr. Burton made clear to her attorney, Tim Hawks, that she wanted him to show many adverse actions. Failure to do so shows misrepresentation by her attorney.
Throughout her briefing, Burton
relies on facts that appear nowhere in her opposition to the
Board’s motion for summary judgment below.
Rebuttal: Dr. Burton’s attorney, Tim Hawks, failed to give Dr. Burton opportunity to respond to the findings of facts presented by the defense. Mr. Hawks filed some of the documents without Dr. Burton ever seeing them. Mr. Hawks failed to include some of Dr. Burton’s responses. Mr. Hawks seems to have terribly misrepresented Dr. Burton.
Dr. Burton submitted many facts that her attorney failed to include in the opposition to summary judgment in her request for reconsideration. She relied on some of these in her appeal.
It appears that
she made a strategic decision in the district court to focus on
the strongest points in her case and omit the rest.
Rebuttal: Dr. Burton made a strategic decision, which she relayed to her attorney, to focus on the “thousand small cuts” argument. She told her attorney to include all of the thousand injustices she suffered in her arguments. Mr. Hawks did not do what his client asked him to do, instead focusing on two adverse actions alone.
“Caywood’s reaction to her reporting of the note incident” was not one of the stongest of the arguments. It was one of the small cuts.
“Caywood’s and Throop’s supposed withdrawal of support for her cybersecurity curriculum” was not a supposed withdrawal but a provable withdrawal. It was one of the major adverse actions but certainly not one of only two. Mr. Hawks did not provide the court with evidence that Dr. Burton had provided to him to prove this point.
Failure of the university to provide Dr. Burton with due process in the form of Grievance hearings was probably the most serious violation of Dr. Burton’s rights. It caused the bogus letter of direction to be held against her throughout the process of this case as though it was legitimate when, in fact, it is bogus. Mr. Hawks failed to articulate Dr. Burton’s repeated assertions that she her rights had been violated.
The court seems to have missed the errata that Dr. Burton demanded Mr. Hawks to file after he had submitted the response to request for summary judgment. In the errata Mr. Hawks very poorly pointed out that Dr. Burton’s due process rights had been denied but failed, obviously, to make a compelling case for his client. This seems to be a case of willful misrepresentation by Mr. Hawks. I wonder if he was bribed or threatened to get this done.
That decision was not necessarily a bad one, but it does
preclude her reliance here on the facts omitted below. For one,
she had the burden of identifying protected activities and materially
adverse actions in opposition to summary judgment
before the district court. See Ellis v. CCA of Tenn. LLC, 650 F.3d
640, 649 (7th Cir. 2011). The district court was necessarily limited
to arguments presented in Burton’s opposition brief. After
all, “a lawsuit is not a game of hunt the peanut.
Rebuttal: Dr. Burton recognizes that scattering evidence around is not the right way to present a case. Dr. Burton blames her former attorney, Tim Hawks, for failing to present a cogent brief for review by the district court. His failures manifested themselves in consideration by the appellate court to deny Dr. Burton her right to be heard by a jury.
Employment
discrimination cases are extremely fact‐intensive, and
neither appellate courts nor district courts are ‘obliged in our
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8 No. 16‐2982
adversary system to scour the record looking for factual disputes
… .’” Greer v. Bd. of Educ., 267 F.3d 723, 727 (7th Cir. 2001)
(quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921‒22
(7th Cir. 1993)).
Instead, “[i]t is a well‐settled rule that a party opposing a
summary judgment motion must inform the trial judge of the
reasons, legal or factual, why summary judgment should not
be entered.” Liberles v. Cook Cty., 709 F.2d 1122, 1126 (7th Cir.
1983). “If [the nonmoving party] does not do so, and loses the
motion, it cannot raise such reasons on appeal.” Id. This rule
prevents Burton from raising specific factual arguments that
were absent from her briefing below even though her general
claims were plainly before the court. See Fednav Int’l Ltd. v.
Cont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010) (“[A] party has
waived the ability to make a specific argument for the first
time on appeal when the party failed to present that specific
argument to the district court, even though the issue may
have been before the district court in more general terms.”).
Thus, Burton is limited to the facts laid out in Part I above and
to the particular protected activities and adverse actions that
she argued below.
Rebuttal: Dr. Burton’s former attorney, Tim Hawks, failed in many ways to represent Dr. Burton. His misrepresentation caused her to lose summary judgment and the appeal.
We now proceed to the merits of her Title
IX and Title VII claims.
D. Title IX Claim
The Board concedes on appeal that Burton’s actions in reporting
the allegedly inappropriate in‐class note were protected
activities under Title IX. As Burton did not raise any
further protected activities below, we move on to assess
whether any alleged actions by Burton’s superiors in the wake
of the note incident were materially adverse to her. As noted
above, Burton raised two potential adverse actions: (1) the
supposed criticisms of Burton after she reported the note; and
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No. 16‐2982 9
(2) the apparent withdrawal of support for Burton’s cybersecurity
initiative.
First, we emphasize that “[n]ot everything that makes an
employee unhappy is an actionable adverse action.” Brown v.
Advocate S. Suburban Hosp., 700 F.3d 1101, 1106 (7th Cir. 2012)
(quoting Stephens v. Erickson, 569 F.3d 779, 790 (7th Cir. 2009)).
Rather, “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., 637 F.3d 729, 740 (7th Cir. 2011) (citations
and internal quotation marks omitted); see also Lucero v.
Nettle Creek Sch. Corp., 566 F.3d 720, 729 (7th Cir. 2009). In other
words, it does not include “those petty slights or minor annoyances
that often take place at work and that all employees
experience.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006).
Like the district court, we conclude that neither of Burton’s
proffered adverse actions rises to the level of materiality necessary
to form the basis of a Title IX retaliation claim. With
respect to the post‐note criticism, the record does not support
Burton’s claims. Caywood never expressly denounced the
way Burton handled the situation. Instead, he merely presented
a new policy for handling similar problems in the future.
Even if we were to construe Caywood’s rollout of the
new policy as an implicit reprimand, that would not be sufficient
to be a materially adverse action either. See Chaib v. Indiana,
744 F.3d 974, 987 (7th Cir. 2014), overruled on other
grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir.
2016). As in Chaib, there was no showing that any reprimand
(or any lack of collegiality on the part of Caywood) caused
any subsequent consequences for Burton’s employment. See
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10 No. 16‐2982
also Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 602 (7th Cir. 2009)
(“[W]ritten reprimands without any changes in the terms or
conditions of [an employee’s] employment are not adverse
employment actions.”). Indeed, Burton unanimously received
tenure just months after the incident.
The same is true of the disagreement over the cybersecurity
program at the University. The most the record shows is
that Throop and Caywood were concerned that the language
of the AT&T press release may have been over‐representing
the progress of the cybersecurity curriculum that Burton had
been developing, and that Caywood was concerned about
some errors on websites that Burton had created. Yet Throop
approved the press release the same day that the dispute began,
and Burton received the AT&T grant in a public ceremony
attended by the provost and vice chancellor of the University.
Once again, Burton received tenure within months of
this incident and can point to no material consequences resulting
from it. While she may have perceived that Throop
and Caywood had retaliated against her, these actions simply
do not rise to the level of a materially adverse employment
action protected by Title IX. Therefore, like the district court,
we need not engage in any causation analysis. The district
court correctly granted summary judgment to the Board on
the Title IX retaliation claim.
E. Title VII Claim
With respect to the Title VII claim, the Board concedes
both that Burton undertook protected activities (filing charges
with the Wisconsin ERD and the EEOC and filing this lawsuit)
and was subjected to materially adverse employment actions
(Throop’s letter of direction and subsequent complaint to the
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No. 16‐2982 11
chancellor).3 Burton didn’t raise any other protected activities
below, so she has forfeited the chance to do so now. But she
did present two further adverse actions to the district court:
(1) the repeated pressuring by Dalecki and others to drop the
discrimination charges;
Rebuttal: What? Dr. Burton never pointed to Dalecki’s pressure to drop the lawsuit as an adverse action. She mentioned it to show that he was pressuring her to drop the lawsuit.
and (2) Throop’s threat of discipline
in retaliation for the allegedly canceled class on December 4,
2013.
Rebuttal: Wrong. Dr. Burton didn’t call the threat of discipline an adverse action but that it was a sign of how the administration fabricates allegations against her. She claimed that the Chapter 6 complaint against her was an adverse action.
The district court properly concluded that the pressure
to drop the suit could not have amounted to a materially adverse
action because these statements “did not cause [Burton]
any injury.” Dunn v. Washington Cty. Hosp., 429 F.3d 689, 692
(7th Cir. 2005).4 For a similar reason, unfulfilled threats of discipline
related to the accusation that Burton canceled class are
not actionable. See Poullard v. McDonald, 829 F.3d 844, 856‒57
(7th Cir. 2016) (recognizing that unfulfilled threats are not materially
adverse actions for the purpose of a Title VII retaliation
claim).
Rebuttal: I’m sorry, but these cases must not be good matches for this situation. The court doesn’t seem to understand what happened. That is probably because Mr. Hawks failed to present the facts properly and misrepresented Dr. Burton.
So we are left with the task of determining whether the
record contains enough evidence for a reasonable jury to conclude
that the admitted protected activities were the but‐for
cause of the admitted adverse actions. Without direct evi‐
3 We follow the parties’ briefing in presenting the claims separately
under Title IX and Title VII. The parties appear to agree that the facts surrounding
the in‐class note incident would not state a Title VII claim because
of the lack of employment relationship between Burton and the reporting
student. We need not consider whether they are right, because the
elements of a Title VII and Title IX retaliation claim are the same.
4 Even the comments noting that Burton could have been dean or department
chair material if she were not so litigious don’t amount to an
adverse action. There is no indication that Burton ever sought those positions
or that she was otherwise under consideration apart from the stray
comments. In other words, the comments caused Burton no injury.
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12 No. 16‐2982
dence of causation, Burton must rely on circumstantial evidence
like suspicious timing, ambiguous statements, treatment
of similarly‐situated employees, and any other relevant
information that could permit an inference of retaliation. See
Lambert v. Peri Formworks Sys., Inc., 723 F.3d 863, 869 (7th Cir.
2013). It’s also true that actions that were not in and of themselves
materially adverse, such as unfulfilled threats, may still
be evidence of retaliatory motive for actionable actions.
Poullard, 829 F.3d at 857. But the dispositive question remains
whether a reasonable jury could find a but‐for causal link between
the protected activities and adverse actions at issue.
And because the Board has presented non‐retaliatory reasons
for Throop’s conduct, the true question is whether the proffered
reasons were pretext for retaliation. See Majors v. Gen.
Elec. Co., 714 F.3d 527, 539 (7th Cir. 2013).
We agree with the district court on this point as well. First,
the timing of the letter of direction is not suggestive of retaliatory
motive.
Rebuttal: Ok, I see what is going on. The appeal court just says “hey, we don’t care what actually happened. We only care what your attorney said happened and it doesn’t matter what other evidence you provide, we’re just not even going to look at it.” I guess that’s the way the law works. So, where do we go from here? Is there any justice? Well, I guess we can write a book about this. I guess we can try to make a case that Attorney Hawks misrepresented Dr. Burton. I think that will be an easy thing to do if we are allowed to show what actually happened and compare that with what Mr. Hawks told the court happened. That won’t fix the real problem though. The real problem is that the administration covered up an incident of sexual harassment and retaliated against a vocal advocate for student rights. How is winning a lawsuit against Hawks for misrepresentation going to fix that problem? Maybe we can get enough money to pursue other injustices by the administration and force change that way?
The last potential protected activity here was
the filing of this lawsuit in April 2014, six months before
Throop sent the letter of direction. Burton has not provided
any evidence that bridges the significant time gap between
her final protected activity and Throop’s adverse action.
Rebuttal: Sure, if the court can only consider two or three protected activities out of the hundreds of requests for fair treatment and pleas for help Dr. Burton sent then it makes sense that the court can’t see the causal connection. Justice is blind. If they can’t see Dr. Burton begging for help in this audio of a meeting she had with Dean Throop and HR director Durr then of course they can’t see the causal connections (A1 - Meet- Durr and Throop - 1-29-13). Why didn’t Mr. Hawks provide this audio as evidence of a protected activity? There were many other protected activities he failed to include in the court documents. There were also many adverse actions he failed to include.
The defense has a team of attorneys who are well trained in covering up these sorts of things. Attorney Jennifer Sloan Lattis seems to be extremely willing to bend laws and skirt ethical limitations in order to win cases like this. I wonder if she bribed Mr. Hawks, or threatened him. Dr. Burton wasn’t just fighting the defense in an adversarial legal system. I believe she was also fighting her own attorney and he stabbed us in the back.
5
5 Moreover, as the district court noted, “Throop sought and obtained
an equity adjustment to Burton’s salary in March 2014.”
Rebuttal: Equity adjustments are not normally given unless the employee specifically requests the adjustment. We believe Dean Throop gave Burton the equity adjustment as a bribe. If the court could not glean that from court documents then this is another example of Mr. Hawks’ failure to present the facts cogently.
Burton v. Bd. of
Regents, 171 F. Supp. 3d 830, 846 (W.D. Wis. 2016). This occurred between
the filing of Burton’s ERD charge and the initial complaint in this case.
Such positive intervention in between two instances of protected activity
at least somewhat undermines Burton’s retaliation theory.
Rebuttal: Mr. Hawks failed to present to the court that the university involved attorneys from the beginning of this issue. It is not much of a stretch to believe that one of those attorneys, perhaps Jennifer Sloan Lattis, decided that it would make their case easier to win in court if they gave Burton a bonus of some sort, to show the court that they were not retaliating when in fact they were. Just because they gave her more money doesn’t mean they were not trying to make her working environment so miserable she would leave. Why didn’t Mr. Hawks present this as an argument? Who knows. Maybe we should sue him for misrepresentation and ask him.
See Albrechtsen
v. Bd. of Regents, 309 F.3d 433, 437‒38 (7th Cir. 2002).
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No. 16‐2982 13
While the six‐month gap does not preclude Burton’s claim as
a matter of law, it does substantially weaken it.6
Moreover, the record demonstrates that Throop had a factual
basis for each of the allegations she leveled against Burton
in the letter of direction, and Burton failed to provide evidence
that the allegations were pretextual.
Rebuttal: The record is flawed if it shows that Throop had a factual basis for her allegations. A young boy tells his brother the sky is blue. Then the older boy beats up his younger brother. When their mother comes home the younger brother tells his mom what happened with tears streaming down his face. The older boy says “I beat him up because he said the sky is blue.” Does the older boy’s excuse for beating up his brother have a basis in fact? If not, then Dean Throop’s allegations had no basis in fact either. This is so simple. Only by misleading the court and covering up the truth could the defense win this argument. Mr. Hawks didn’t get this point across to the court. Why? I suspect he was bribed or threatened.
Indeed, the district
court stated that Burton did not dispute the truth of the
allegations,
Rebuttal: In the story of the boy who said the sky is blue. Would his mother ask him “did you say the sky is blue?” And if he answered “yes, I said the sky is blue” would his mother say “well, since you didn’t dispute the truth of your brother’s story I won’t discipline him?” I think we can all see that an element of truth in an allegation is not enough to say that it has a basis of truth or that it is truthful. An allegation of right doing is not worthy of a letter of direction. It seems insane that I must point this out. Dean Throop alleged that Dr. Burton did some things that were not worthy of discipline, did not violate any policy, rule, law or even guideline. Meanwhile the university violated policy and law in their attempts to deprive Dr. Burton of the opportunity to address the bogus allegations.
only “how Throop perceived and characterized
those events, and whether Throop should have accepted Burton’s
explanations for each of them.”
Rebuttal: Burton didn’t dispute how Throop perceived and characterized events. She wanted a grievance hearing to address the letter of direction to get it removed from her personnel file. The grievance hearing was denied her. The university violated law in doing so. This was not a matter of mischaracterizations but a matter of violation of law.
Burton, 171 F. Supp. 3d
846. These are exactly the type of personnel management decisions
that federal courts do not second‐guess.
The court should not be required to second-guess the decisions of grievance committees but they should definitely step in if a grievance hearing is denied and due process is violated. If the court was unaware of the administration’s violations it is probably because Mr. Hawks failed in his duties to represent Dr. Burton.
We intervene
only where “an employer’s reason for [an adverse action] is
without factual basis or is completely unreasonable.”
Rebuttal: I can’t imagine anything more completely unreasonable than the admonitions Dean Throop wrote in the letter of direction. The court probably should have seen how outlandish, ludicrous and unreasonable the letter of direction was but they didn’t. Probably the reason they didn’t see it was because Mr. Hawks failed to present the facts in a manner to demonstrate this to the court. He also failed to force the administration to give Dr. Burton her requested hearings.
Hobgood
v. Ill. Gaming Bd., 731 F.3d 635, 646 (7th Cir. 2013). This is
plainly not such a situation. Burton has not presented sufficient
evidence of pretext, and as a result she cannot establish
but‐for causation.
There is no evidence in the record that Throop’s complaint
against Burton was retaliation for her protected activity, but
there is evidence that Burton decided not to heed any of the
“direction” contained in the letter.
Rebuttal: There is also evidence that the university failed to give Dr. Burton a hearing when she requested one. This is a violation of law. Mr. Hawks failed to get this point across to the court.
Then, as now, Burton
6 As indicated in Part I, Burton conceded at oral argument that the
record does not indicate that Throop or anyone else at the University knew
that Burton had completed an intake questionnaire with the EEOC four
days before the letter of direction issued.
Rebuttal: It was nine days before the issuance of the letter, not four.
It is insane that the court will not look at all of the other protected activities of Dr. Burton. This is ridiculous. Look at the timeline and you can see that Mr. Hawks had ample evidence that he could have provided to show that the letter of direction was a direct result of protected activity. If he didn’t do so, it was misrepresentation.
This gap in the record is particularly
harmful to Burton’s claim, because in order to be liable for Title VII
retaliation, “the employer must have had actual knowledge of the protected
activity” at issue.
Rebuttal: They probably knew about the EEOC complaint. Even if they didn’t, they knew about all the other complaints Dr. Burton had levied. In particular, there is an Oct, 2, 2014 email listed in the letter of direction that admonishes Dr. Burton for a protected activity. The fact that this email was not listed in court documents as a protected activity by Mr. Hawks demonstrates his misrepresentation.
Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1122
(7th Cir. 2009). Without evidence establishing actual knowledge, the timing
of the intake questionnaire is irrelevant.
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14 No. 16‐2982
simply argues that Throop should never have written the letter.
But once again, pretext “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.”
Harden v. Marion Cty. Sheriff’s Dep’t, 799 F.3d 857, 864 (7th Cir.
2015) (quoting Argyropoulos v. City of Alton, 539 F.3d 724, 735
(7th Cir. 2008)). There is no evidence that either the letter of
Direction
Rebuttal: The letter of direction was replete with lies. Claiming that asking a colleague to house sit, for example, is ridiculous. Dr. Burton was never given opportunity to address the lies in a grievance hearing. The university violated law by denying the hearings.
or Burton’s subsequent complaint were such lies.
Rebuttal: I assume the court is referring to Dean Throop’s complaint against Dr. Burton on Jan 5, 2015 and not any complaint that Dr. Burton submitted. Throop’s complaint against Burton was full of lies too. Mr. Hawks failed to present this information.
No
reasonable jury could find that either the letter of direction or
the subsequent complaint were caused by Burton’s protected
activities, rather than legitimate disagreements between Burton
and Throop.
Rebuttal: Maybe it is true that a reasonable jury who listens to Mr. Hawks present Dr. Burton’s case would side with the defense. But if they did it would be because Mr. Hawks kept from them, as he did the court, the most material information in this case. Mr. Hawks misrepresented Dr. Burton and this is why her case did not survive summary judgment or the appeal.
Therefore, the district court properly granted
summary judgment to the Board on Burton’s Title VII claim.
III. Conclusion
Professor Burton undoubtedly feels that she has been
treated unfairly by some of her superiors at the University because
she reported alleged harassment and proceeded with
this case. Yet the record does not support her claims.
Rebuttal: The record does not support her claims because her attorney misrepresented her claims to the record.
During
the relevant period, Burton was granted tenure by a unanimous
vote and the University held a public ceremony celebrating
Burton’s receipt of a grant from AT&T.
Rebuttal: Dean Throop forbade Dr. Burton to use the grant funds legally so she has not been able to use them.
Dean Throop
even sought an upward salary adjustment for her after she
had brought a charge with the Wisconsin ERD.
Rebuttal: Salary adjustments are not normally given unless the employee asks for the adjustment. Dr. Burton did not ask for the adjustment. Dean Throop gave the adjustment as a bribe, to get Dr. Burton to drop the lawsuit. Mr. Hawks failed to make this point on the record.
Burton’s frustrations
may be significant, but they do not amount to actionable
retaliation under either Title VII or Title IX.
Rebuttal: If the court only considers the two events presented above they are probably right. However, Dr. Burton presented much much more to Mr. Hawks and he failed to provide her evidence to the court or to fairly represent her.
Therefore,
the district court correctly granted summary judgment to the
Board.
AFFIRMED.
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