Rebuttal to:
DEFENDANTS’ BRIEF IN SUPPORT OF THEIR MOTION FOR A PROTECTIVE ORDER
<<
Rebuttal is in red and bracketed.
Also: see rebuttal to
the motion for protective order: (c2-Dkt-62-Rebuttal) Combine into one rebuttal.
>>
Three individually named defendants, Staci Strobl, Deborah Rice, and Janelle Crowley, move the court for an order protecting them from discovery, per Fed. R. Civ. P. 26(c). Grounds for this motion are that the Defendants have good cause to believe a protective order is necessary to avoid annoyance, embarrassment, oppression, and undue burden.
CERTIFICATION
On March 13, 2018, counsel for Defendants and Plaintiff conferred via telephone in an effort to resolve the discovery dispute. Counsel also conferred via email. (Bensky Decl. ¶ 2.)
FACTUAL BACKGROUND
1. Plaintiff Sabina Burton was a tenured professor in the Criminal Justice Department at the University of Wisconsin-Platteville. On February 16, 2018, UW-Platteville Chancellor Dennis Shields recommended the Board of Regents of the University of Wisconsin System (Board) revoke Dr. Burton’s tenure. Chancellor Shields’ tenure revocation recommendation followed a hearing in which a Faculty Appeal Panel found Dr. Burton publicly disclosed confidential personnel information about colleagues and engaged in disrespectful, harassing and intimidating behavior toward colleagues. The Panel unanimously concluded there was clear and convincing evidence to establish just cause for dismissal due to the degree to which Dr. Burton negatively affected the Criminal Justice Department’s, and the university’s, day-to-day functioning. The Board revoked Burton’s tenure on June 7, 2018. (Bensky Decl. Ex. 3.)
2. Burton’s discord with UW-Platteville began in October 2012, when a student reported a non-tenured professor had given her a note during class that said, “Call me tonight!” with his phone number.
<< It was his personal cell phone number,
not his office phone number.>>
The student reported this to Burton, who in turn reported it to the Dean of the college, Elizabeth Throop.
<< Wrong. Burton told Throop initially that there was
an inappropriate note and asked where to report the matter. She then reported the matter to the Dean of
Students per Throop’s instructions.
This is a minor mistake by the defense, but it shows that the defense is
not committed to accuracy in its factual reporting. >>
Within 24 hours, the Criminal Justice Department Chair, Tom Caywood and Throop had investigated the matter and asked the professor to apologize to the entire class, which he did (the professor stated he was giving an example of a
2
“breach” experiment in which people act outside of social norms).
<< I’m glad they finally got this
right. Gibson said it was a breach
experiment. That was his cover
story. It wasn’t a breach experiment.
>>
Ultimately, the professor who had handed out the note was denied tenure. (See Case No. 14-CV-274, Dkt. 62, ¶¶ 41, 44, 45, 51, 53, 54, 57; Dkt. 42, 152:15-16.) << False. He never applied for tenure. Ultimately his contract was non-renewed. Also, the decision to non-renew him had nothing to do with sexual harassment. Also, he is now teaching at another university with nothing in his record to show what he does in class. So, the defense seems to argue that as long as he is someone else’s problem the university bears no responsibility to correct his behavior. >>
There is no evidence that this professor ever repeated his poor behavior.
<< Hah Hah Hah. There is ample
evidence that Gibson was creepy to the bone.
He passed out tests with inappropriate questions (exhibit ZZQ-1) (exhibit ZZQ-2) (exhibit ZZE) . He acted
inappropriately after the sexual harassment breach experiment, but he didn’t
hand out any more notes with that exact wording on them. So, the defense argues that Sabina is a
threat because Gibson learned his lesson?
But he didn’t. This is a weird and creepy argument. >>
UW-Platteville addressed the matter swiftly and thoroughly.
<< But they did not address the matter
appropriately, correctly, legally or in conformance with policy. They “addressed the matter” by swiftly and
thoroughly retaliating against Burton and covering up the matter. >>
3. Despite this outcome, in April 2014, Burton sued the Board, Caywood, and Dean Throop for sex discrimination, retaliation, and a handful of other alleged civil rights violations. In September of 2015, Burton amended her complaint to add Mike Dalecki as a defendant. Dalecki was Burton’s department chair at the time. (See Case No. 14-CV-274, Dkts. 22, 28.) This court granted summary judgment on all claims in that case on March 18, 2016, denied Burton’s motion for reconsideration on June 22, 2016, and on April 10, 2017, the Seventh Circuit upheld the summary judgment decision.
<< This is
true. Burton’s former attorney purposely
botched the case. Even the defendant’s
attorney put the blame on Burton’s former attorney and argued that relevant
evidence and argument could not be used because her attorney had failed to
provide it. But that doesn’t change the
facts of the matter. The court did not
opine that the university handled the matter correctly. The court opined that Burton wasn’t able to prove the retaliation charges with the
evidence and arguments presented to the court.
>>
4. As part of case 14-CV-274, Burton’s counsel deposed Chancellor Dennis Shields, Dean Throop, Department chairpersons Caywood and Dalecki, and Professors Deborah Rice, Valerie Stackman, Cheryl Fuller, and HR director John Lohmann.
<< False.
Dr. Burton’s counsel did not depose Chancellor Shields as part of case
14-CV-274. >>
5. Burton filed a new lawsuit against the Board and several colleagues in January 2017. In February 2018, Burton’s counsel issued a deposition notice to Chancellor Dennis Shields, Janelle Crowley, Deborah Rice, Staci Strobl, Patrick Solar, and Michael Dalecki. (Bensky Decl. Ex. 2.)
3
6. On March 12, 2018, Counsel for the Defendants cancelled all but Chancellor Shields’ deposition because, in preparing for the upcoming depositions, Defendants’ counsel learned the extent to which the Plaintiff has subjected the witnesses to cyber-bullying, intimidation, and harassment. Based on this information, defendants’ counsel determined a protective order was necessary to protect the witnesses from further bullying by the Plaintiff.
(Bensky Decl. ¶ 4.)
<< Well, exactly
what did Dr. Burton do that was “cyber bullying?” They are just throwing out a bunch of terrible
sounding words and associating them with Burton to try to convince the judge
that Sabina is terrible, even though she didn’t cyber bully anyone. Sabina didn’t post a website. The website contained true statements. >>
7. In particular, I learned that Burton’s behavior had caused the witnesses extreme stress and that there was particular concern Burton would use their deposition testimony to further harass them by posting the testimony on the Internet, publicly discussing the testimony in a disparaging manner, using the testimony to turn students and other faculty against them, or directly questioning them about the testimony. As this motion explains below, these are behaviors that Burton had previously engaged in.
<< There’s that word again Burton’s
“behavior.” Exactly what did Dr. Burton
“do” that “caused” these witnesses stress?
Did she lie to a hearing panel that Dr. Strobl was about to snap in a
violent way and start shooting people?
Nope, that’s what Strobl did to Burton.
This is absolutely ridiculous. The witnesses are stressed because they don’t
want to answer questions about their lies.
It’s pretty simple. They are claiming stress because they are
concerned about something Burton might do.
Based on what? Burton has not
threatened to do anything to them.
They think their testimony in sworn depositions might be posted on a
public forum, so they want to be protected from the annoyance and embarrassment
of speaking under oath of truth. They
seem to be afraid of perjuring themselves.
They seem to be stressed because they know they lied to the hearing
panel. >>
8. On or around March 13, 2018, counsel for the parties conferred and decided to mutually ask for a stay of the case, for the reasons described in the joint motion, Dkt. 44. Because the litigation was stayed, and because defendants’ anticipated the Plaintiff would amend her complaint if the Board revoked tenure, counsel for the defendants did not file a motion for a protective order at that time.
4
LEGAL STANDARD
The Federal Rules of Civil Procedure instruct that discovery of relevant information may be tempered by burdens of production:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1); Ossola v. Am. Express Co., 149 F. Supp. 3d 934, 936
(N.D. Ill. 2015) (discovery is broad but there is a proportionality aspect to it). “Although there is a strong public policy in favor of disclosure of relevant materials, Rule 26(b)(2) of the Federal Rules of Civil Procedure empowers district courts to limit the scope of discovery for good cause. Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002). Good cause exists when justice requires the protection of a “party or a person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P.
26(c)(1).
District courts exercise broad discretion over discovery disputes. Sattar v. Motorola, Inc., 138 F.3d 1164, 1171 (7th Cir. 1998). “The party opposing discovery has the burden of showing the discovery is overly broad, unduly
5
burdensome, or not relevant.” Arassi v. Weber-Stephen Prod. LLC, No. 13-CV684, 2014 WL 1385336, at *2 (E.D. Wis. Apr. 9, 2014).
GROUNDS FOR PROTECTIVE ORDER
The Seventh Circuit federal courts recognize discovery materials may not be used for any improper purpose, such as making documents available over the Internet as a means to harass, intimidate, and defame witnesses. See Musa-Muaremi v. Florists' Transworld Delivery, Inc., 270 F.R.D. 312, 322
(N.D. Ill. 2010) (citing Standards for Professional Conduct Within the Seventh Federal Judicial Circuit, Lawyers’ Duties to Other Counsel ¶ 10 (“We will not use any form of discovery or discovery scheduling as a means of harassment.”)). Defendants do not suggest that Plaintiff’s counsel is abusing the discovery process. On the contrary, Plaintiff’s counsel has acted with exemplary professionalism at all times during this case. (Bensky Decl. ¶ 2.) Defendants are strictly concerned with the Plaintiff’s demonstrated record of cyberbullying, threats of additional (and baseless) litigation, and personal attacks upon the witnesses she seeks to depose. (Bensky Decl. ¶ 4.)
<< Dr. Burton has not cyberbullied or
threatened anyone. She has not made
baseless litigation. She has not
personally attacked anyone. She certainly
has not done any of these things to any of the witnesses listed in this
brief. On the contrary, the witnesses
all lied about her to a hearing panel, to an investigator and/or in
writing. What did Dr. Burton “do?” >>
Good cause exists to issue a protective order quashing the deposition
notices for Staci Strobl, Deborah Rice, and Janelle Crowley0F1 because their
1 Originally, professors Mike Dalecki and Pat Solar received deposition notices; however, Plaintiff’s counsel withdrew her requests to depose them. (Bensky Decl. ¶
2.)
<< What? When did we do that? And why?
I don’t remember this conversation.
We want to depose them. They don’t need to be defendants to be
deposed. I don’t understand why we would
withdraw our request to depose them.
Please put them back on the list.
Is Bensky wrong here? What gives? >>
6
testimony is not relevant to the claims that can survive a motion to dismiss, because Burton has in the past used these witnesses’ testimony and words to cyber-bully and publicly shame them, and because Burton has continually harassed and intimidated these witnesses over the course of several years.
<< Dr. Burton did not “cyber
bully” anyone. She made truthful
statements. She has done nothing wrong. Cyber-bullying is wrong. If that were something the administration
were concerned about they would have charged her with cyber-bullying in the complaint
against her, in the statement of charges or in the board’s decision to
terminate her. This is a brand new, out
of the blue allegation. >>
I. The proposed depositions will not lead to relevant information Discovery is broad but a party is limited to discovering information relevant to her lawsuit. The current operative pleading is the Fourth Amended Complaint. (Dkt. 51.) It asserts eight claims against 23 individually-named defendants, including Crowley, Rice, and Strobl, and the Board of Regents. The Defendants have moved to dismiss all but two of Burton’s Title VII retaliation claims and one Rehabilitation Act claim against the Board of Regents, and have moved to dismiss all individual defendants. (Dkts. 56-57.)
While the court has yet to rule on the Defendants’ recent motion to dismiss, dismissal of some claims and some defendants is likely, given Burton’s litigation history: This court’s September 5, 2017 order on the Defendants’ motion to dismiss the First Amended Complaint dismissed six individuals
(including Throop and Strobl – who have been re-named) and several claims. (Dkt. 21 p. 13-16.) Plaintiff’s counsel voluntarily withdrew several claims and three defendants in her Second Amended Complaint after the Defendants’ attorney sent a detailed emailing explaining the legal basis for dismissal. (Bensky Decl. ¶ 5; Dkts. 29, 41.) In Burton’s first lawsuit against the Board
7
and her supervisors (case no. 14-CV-274), she conceded she had no evidence to support several claims and her other claims were dismissed.
<< Incorrect. Burton conceded that the
record did not contain evidence and argument to support her claims. She never conceded that she didn’t have the
evidence. She argues that her former
attorney, Tim Hawks, failed to utilize the evidence and arguments she provided
to him. That is the same argument that Assistant
AG Kilpatrick used at the appeal hearing.
He did not argue that Burton could not provide the evidence but that her
appeal must fail because her attorney had not provided it in time. >>
Given Burton’s history of using the federal courts to air trivial grievances against her colleagues only to withdraw or see them defeated as a matter of law, and her attempts to reassert claims against defendants who have already been dismissed in these proceedings, it is likely the court will dismiss some claims and some defendants from the Fourth Amended Complaint, thereby narrowing the scope of allowable discovery.
As it stands, Burton is allowed to proceed on a retaliation claim based on the Chancellor’s June 3, 2016, letter of direction, and the Defendants did not move to dismiss Burton’s Title VII retaliation claim based on the Chancellor’s initiation of dismissal proceedings or the Board’s June 7, 2018 tenure revocation in the Fourth Amended Complaint. Defendants have also not moved to dismiss Burton’s failure to accommodate Rehabilitation Act claim against the Board based on the hearing panel’s decision to hold the May 25, 2017 hearing despite Burton’s claim that she was too ill to attend. The people Burton seeks to depose—Deborah Rice, Staci Strobl, and Janelle Crowley—had no involvement in these things.
<< It is
stupid to make this argument for so many reasons:
1.
Strobl
a.
stated that Sabina and
her husband were about to snap in a really violent way
and start shooting people. She told this
to a hearing panel who decided she should be fired because of what Strobl
said.
b.
told the hearing panel
that she had been complaining to Throop for a year about Sabina.
c.
Talked to Dr. Roter in
the investigation. Chancellor Shields
depended on the Roter report to make his decisions.
2.
Rice
a.
filed a bogus complaint
against Burton.
b.
She told an investigator
that Burton’s father was a Nazi. This
information was made available to the hearing panel and they made their
decision with this sort of input.
c.
Spread rumors that
Burton was mentally ill, was biased against East Germans and that she wouldn’t
be around much longer. When the HR
director asked her to apologize for these rumors Rice said “Hell no.” xxxxxxxxxxxxxxxxxxxxxxxxxxxx
3.
Crowley
a.
failed to do her
job. Sabina asked her for help and she
didn’t. She told an investigator that
Burton had filed four grievances against Rice when she had filed only one. She lied to Burke. The Burke report was forged. Crowley was the person identified as the
recipient of the Burke report. >>
Chancellor Shields was responsible for the June 3, 2016 letter of direction and initiation of tenure revocation proceedings and the hearing panel was responsible for scheduling the hearing. (See Bensky Decl. Exs. 3, 14.) Therefore, their deposition testimony is not relevant. << This is absurd. Of course it is relevant. >>
8
II. Burton’s use of litigation procedures to harass her colleagues warrants a court order protecting them from being compelled to participate in discovery
Burton has proven she will stop at nothing to harass and intimidate her colleagues. In fact, she and her husband created a website—
<< False.
Her husband created the website.
>>
UniversityCorruption.com—detailing a timeline of Burton’s every grievance against UW-Platteville and her colleagues, with hyperlinks to documents, deposition testimony, court exhibits, and surreptitious recordings of meetings and conversations with colleagues. (See Bensky Decl. Exs. 10, 13.) The Burtons even posted a receipt for a firearm that Burton’s husband purchased to allegedly protect himself from Burton’s colleague, Pat Solar. (Bensky Decl. Ex. 9.)
<< That’s perfectly legal. Solar
threatened Roger and Dr. Burton with “consequences of his choosing.” What does that mean to you? Time to defend yourself. Take a look at Pat Fuller’s website: https://www.facebook.com/ptforever, https://archive.is/Bj7YL >>
While Burton has every right to pursue claims in which she has met the very low threshold of surviving a motion to dismiss, the Federal Rules of Civil Procedure do not allow her to wage terror on her colleagues when their deposition testimony will have little if no bearing on the outcome of her
claims.1F[1] << I agree, Burton has no right to “wage terror.” She also has no intention of doing so. She never has. That’s ridiculous. >>
Burton’s treatment of the current department chair, Dr. Staci Strobl, has been particularly egregious. During the tenure revocation proceedings, Strobl testified she felt fearful of Burton’s behavior. << Poor little wall flower Strobl. If she were so afraid of Burton why would she say such terrible things about Burton in the hearing? Someone who is afraid of someone else generally won’t say things that will get them fired unfairly. How does the defense claim that Burton committed “egregiousness” just because Strobl “felt fearful?” That’s ridiculous. Burton has been feeling fearful since October 2012. She can lie about Burton in a hearing, retaliate against her by taking her off a grant application but can’t even come to a cross-examination hearing? Look at what they have done to Burton. She still showed up. It took a toll on her too. The lies by people like Strobl and Rice and Crowley took a toll. >>
The Burtons then used excerpts << Roger Burton was the webmaster of the website. Dr. Burton didn’t upload anything to it. She was not involved in it. >>
9
of this testimony to disparage Strobl on social media, accuse her of violating the law, and then sue her in federal court for defamation. (See Dkt. 29 p. 28 ¶ 286.)2F[2]
<< This sentence is confusing. Defense seems to be arguing that Burton’s
allegation that Strobl “intentionally made an outrageous and false claim about
PLAINTIFF” in a federal lawsuit is reason to protect Strobl from testifying
about the factual nature of her statement.
This makes no sense at all, unless one is trying to cover up the truth.
>>
(A defamation claim of this nature is borderline frivolous under Wisconsin conditional privilege law because the complained of statements were made during quasi-judicial proceedings. See, e.g., Converters Equip. Corp.
v. Condes Corp., 80 Wis. 2d 257, 264, 258 N.W.2d 712 (1977); Olson v. 3M Co.,
188 Wis. 2d 25, 36–37, 523 N.W.2d 578 (Ct. App. 1994) (citing Zinda v. La Pac. Corp., 149 Wis.2d 913, 921–22, 440 N.W.2d 548, 552 (1989)).
<< Whether or not the defamation claim is
continued does not affect the allegation that the statements made were
outrageous and false. That is where
deposition comes into play. The
statements need to be examined.
>>
Burton has also used her colleagues’ testimony that was provided in the course of litigation or administrative proceedings to publicly shame them, misrepresent them, and pit them against one another. For example, Strobl testified during Burton’s May 25, 2017 tenure revocation hearing that she was fearful of Roger Burton because of escalating verbal animosity and his
“everybody is against me” attitude. After this testimony, Sabina Burton posted Strobl’s comments on social media and announced that Strobl was frightened of Roger Burton because he is a former Marine and Gulf War Vet—an allegation Burton pulled out of the blue. << How do they know whether this was out of the blue? Strobl knew that Dr. Burton’s husband was a former Marine. A deposition might clear this up. >>
(Bensky Decl. ¶ 10, Ex. 6.) People, some of whom identified themselves as Platteville students, commented on
10
Burton’s post. << Dr. Burton limits her facebook friends to people who are not students. She has several former students on her facebook page. Her facebook page was not open to the world as the universitycorruption.com website was. >> The comments include, “OMG Very Unprofessional. I certainly could not trust her research or lectures now that I see how easily she embraces cheap bias. Disgraceful in an academic!” Another commenter referred to Strobl as an “ignorant twat.” To this comment, Dr. Burton replied, “Strobl’s spitefulness is based on his military service and the fact that he airs our grievances in a controlled manner through universitycorruption.com.” (Bensky Decl. Ex. 6.)
<< Finally, the defense finally
points to something that they claim Dr. Burton actually “did.” Wow.
Ok, well, I think I’d need to see this facebook
post. One point is that this statement
makes clear that the website was Roger Burton’s website, not Dr. Burton’s. So, this statement invalidates the defense’s
argument that Dr. Burton posted anything on UniversityCorruption.com. She posted on facebook. He posted on the website. Dr. Burton did not call Dr. Strobl an
“ignorant twat,” someone else did. How
is that relevant anyway? Dr. Burton did
not write “OMG Very Unprofessional. I certainly could not trust her research or
lectures now that I see how easily she embraces cheap bias. Disgraceful in an
academic!” Someone else wrote that, not
Dr. Burton. Dr. Strobl did not explain
what led her to believe that the Burton’s are about ready to snap and start
shooting people. Dr. Burton is entitled
to her opinions on facebook. It is Dr. Burton’s opinion that Dr. Strobl
based her comments on these two things 1) the universitycorruption.com website
(which seems very accurate) and 2) that her husband is a former Marine Corps
fighter pilot. Based on a prior
conversation Burton had with Strobl her opinion was that part of Strobl’s
statement was based on her husband’s former service as a Marine Officer. Dr. Strobl did indeed make those statements
of which Burton referred. So, truth is
her defense. Strobl cannot claim embarrassment
and oppression if someone repeats what she has said. The only problem I see with this is that
Sabina made the statement that she knew why Strobl made the statements. But, how can Sabina know that for sure. The only way would be to cross-examine
Strobl, but the administration did not provide that opportunity. So, this touches on another constitutional violation
of Dr. Burton’s right to cross-examine the witness. >>
The comments demonstrate just how damaging Burton’s social media
postings are.
<< Wait a second. How do those comments demonstrate
damage? There is no damage in the
comments. That’s absurd. Stating that someone made a social media
posting does not demonstrate damage.
There was no harm. There was also
no violation of any rule. Dr. Burton is allowed to post messages on her facebook
page, just like millions of other users.
>>
If Strobl is compelled to sit for a deposition, she will be compelled to answer questions under oath, which in turn is likely to subject her to more cyber-bullying from Burton. << Where is the connection here? One facebook post indicates an inability to control online content? Ridiculous. Dr. Burton will promise not to post Dr. Strobl’s testimony on facebook if she will come testify. Good grief. >>
And it is cyber-bullying. << Ridiculous >> Those words are not used lightly. Burton has accused Strobl, on social media, of disrespecting veterans— a claim that is totally unfounded. She has done so by taking testimony Strobl gave during a May 25, 2017 hearing out of context, posting it publicly, and stating her unsubstantiated opinion about it as fact.
<< She made a posting to a limited number
of friends on facebook. She had an opinion about Strobl’s
motives. She did not state, as fact,
that she knows what is in Strobl’s head.
Because Strobl refused to be cross-examined Burton was unable to ask her
why she believed, in her professional and educated opinion, that Burton and her
decorated Marine husband were about to snap in a really
violent way and start shooting people.
>>
The few student comments are just one indication of how harmful Burton’s actions are to Strobl personally and to her career as an educator and criminal justice scholar. << There were no student comments (verify this). The comments were from people who were friends with Burton. She didn’t have any current students as friends on her facebook page. A few comments do not amount to damage at all. Certainly not enough to warrant letting Strobl skip testifying. >>
Compounding this issue, on November 16, 2017, Plaintiff’s husband Roger Burton emailed Strobl a letter demanding she retract the testimony she gave on May 25 and apologize to him. In this letter he accused her of violating
11
Wis. Stat. §§ 943.30(4) and 942.01(1) because she made statements that injure him. He went on to say,
I believe you intentionally made these comments in a malicious attempt to influence the official action of public officers against my wife.
Your testimony threatens my business as a real estate professional and could expose me and my family to physical harm.
…
I ask you to write, and appropriately distribute, a retraction and apology that is both sincere and satisfactory to me. I request that you do so within seven calendar days.
(Bensky Decl. Ex. 7.) Strobl provided testimony in a quasi-judicial setting and six months later was accused of committing crimes. One month after that, Sabina Burton sent Strobl a similar letter accusing Strobl of committing a crime and demanding a retraction of her testimony. (Bensky Decl. Ex. 8.) Then, on December 28, 2017, Burton amended her complaint in this case to include a defamation action against Strobl that was only voluntarily dismissed because Burton did not file a notice of claim.
<< So, the defense seems to be
arguing that Dr. Strobl, who lied to the hearing panel, should be protected
from explaining why she lied because Dr. Burton and her husband believed Strobl
committed a crime by lying, and told her so.
These arguments undergird the whole reason why Strobl’s testimony is
necessary. Let’s find out why she
lied. That is material to the
case. The hearing panel acted on these
lies. If Strobl has a good reason for
the lies she told to the hearing panel the court should know of them. Otherwise there can only be speculation and
opinion about her motive. >>
Sadly, Burton’s
bullying of Strobl did not stop there. <<
Ridiculous. Burton was
bullied, not the other way around.
Bullies are the ones who get rid of people, not the ones who are gotten
rid of. This is backwards and
absurd. >>
Burton has written to university officials and at least one journalist accusing Strobl of cronyism, favoritism, unprofessional behavior, misrepresentation, sexism, and referring to Strobl as unqualified for her position. (Bensky Decl. Ex. 16.) Burton’s
12
demonstrated behavior shows that a deposition would further subject Strobl to additional bullying. << Burton did not refer to Strobl as unqualified for her position by legitimate standards but by the standard that was applied to Burton. Burton has evidence and can support her allegations of Strobl’s actions. At the time Burton sent this email she had been unfairly accused by Deb Rice and was being processed for dismissal unfairly. She is now represented by attorneys and expects fairer treatment in the courts than she received in the kangaroo UW Platteville appeal process. Dr. Strobl needs to testify to explain her comments to the hearing panel on 5-25-17. >>
This has to stop.
Burton’s behavior against Rice is similarly disturbing. Strobl, as Rice’s supervisor, testified during the May 25, 2017 hearing:
[Burton] had been on this campaign that Deb Rice was very, very terrible. It made Deb very uncomfortable. Deb felt unsafe in her workplace. She often came and sat in my office and asked me to help her with his problem, and I tried to do that throughout my time here. It was upsetting to her. It was very, very upsetting to her….
<< So, the defense
uses testimony from one witness who wants off the hot seat as reason to let
another witness of the hotseat.
Hmmm. That doesn’t seem
right. Dr. Burton argues that Strobl and
Rice both lied. This argument is like
defining the word “innocent” by saying “innocent is the act of being
innocent.” It id ridiculous. >>
(Bensky Decl. Ex. 15, 63:1-7.) Strobl further explained that after Rice’s father died, Burton left a Hallmark card in Rice’s university mailbox that said, ‘I’m sorry that your father passed away. This is how I felt in 2012,’ or something of that nature.” In the context of Burton having spoken very poorly and publicly about Rice over the course of several years, the card was disturbing. (Bensky Decl. Ex. 15 p. 63:15-64:18.)
<< So, Burton’s condolence card is
evidence of her bullying? Seriously? This is an outlandish comment for Strobl to
make. The card was never produced. The card was a sincere effort by Burton to
help Rice get past what she knew was a very difficult time for her. Burton had recently been through it
herself. In what world is a condolence
card “bullying?” What????? >>
Burton has sued Rice in federal court for allegedly making stray remarks about Burton’s behavior and ethnicity even though Rice, who is an academic staff member, has no control over the terms or conditions of Burton’s employment. << Rice filed a complaint against Burton that was designed to get her fired. The Chancellor would have fired her using the Rice complaint except that Burton went public and the Chancellor dismissed Rice’s complaint. >> (Bensky Decl. Ex. 15, 62:1-3.) Burton has refused to be associated with Rice, and told Strobl that Rice is a very mean person who has defamed her. Burton further told Strobl, “Rice is close to Dalecki and was clearly against you becoming chair. She shouldn't even be working for this department
13
anymore as defamation is a crime in WI,” in an effort to alienate Rice from Strobl, Rice’s direct supervisor. (Dkt. 58-1.)
<< Wrong. Burton told Strobl about those things because 1) they were true and 2) because Burton wanted relief from Rice’s harassment. Burton wanted Strobl to do something to get Rice to stop lying about her and spreading false rumors about her. That is a protected activity. Burton was a whistleblower. She pointed out a violation of law and asked Strobl to act accordingly. This was not any silly attempt to alienate Strobl and Rice. But there had been many conversations clearly alienating people from Burton. For example: Dalecki’s audio recorded discussion with Jacobus. >>
Burton has likewise vilified Elizabeth Throop. During Throop’s deposition in Burton I, Throop testified that Rice reported to Throop and Dalecki that two students had told her (Rice) that Burton had canceled the last day of class to fly to Germany. (14-CV-274, Dkt. 42, 14:6-15:13.) Rice, during her deposition, said she told Dalecki that two students had told her that Burton was going to Germany on Friday, but Rice denied telling Throop that Burton had cancelled class. (14-CV-274, Dkt. 49, 15:11-21.) From this discrepancy, Burton determined that either Throop or Rice had lied under oath, and reported this to the Board of Regents. (Bensky Decl. Ex. 12.) At the same time, Burton has used this very statement as ammunition against Rice in her federal complaints. (Dkt. 51 ¶¶ 126, 130, 156; See also Dkt. 58-1) (“Rice also falsely and with malice reported to Dean Throop that I had cancelled class which resulted in disciplinary actions against me.”)
<< Wow.
They really want to go there?
This opens a whole can of worms for them that they don’t want opened. We have much to offer here that will show a
lot of malice and corruption. Too much
to write here. >>
Burton, either herself or through her husband, has also been responsible for disseminating false information about the university and its faculty to students and others. For example, in March of 2017, a flyer was handed out to students and others outside the university-wide annual lecture. << How is Dr. Burton or her husband responsible for a flyer that was passed out at a venue they didn’t attend? This is absurd. Neither Dr. Burton nor her husband passed out flyers at this event. They are not responsible for any comments on those flyers. They know nothing of this. >> (Bensky Decl. Ex. 4.) Hundreds of students, faculty, staff, and community members were in attendance to hear Colonel Eileen Collins, who was the first woman to pilot an
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American spacecraft. The flyer advertised the Website Mr. Burton manages, called “universitycurruption.com” and one of Burton’s Facebook pages, facebook.com/PIOSvsINJUSTICE.
<< Facebook.com/PIOSvsINJUSTICE.
is not, and has never been one of Burton’s facebook
pages. It seems to have been established
by UW Platteville students. But it was
not created by Dr. Burton or by her husband.
They are not responsible for anything posted on this site. Good grief.
The defense is just making the assumption that
this was Burton’s posting with no evidence.
They are wrong. >>
The flyer alleged UW-Platteville’s Criminal Justice Program was covering up crime, that student victims of sexual harassment and sexual violence and their advocates are silenced, and divulged details of alleged crimes by administrator, legal professionals and employees; and how they are rewarded/protected, among other things.
<< The flyer was not from Dr. Burton or
her husband. Again
I ask, what did Burton “do?” Not
this. >>
Similarly, Burton advertised UniversityCorruption.com on a Wiki page about academic jobs. Here, Burton asserted that UW-Platteville students are not safe and neither are faculty members who come to their aid. (Bensky Decl. Ex. 5.)
<< Dr. Burton did not do this. It is true that UW-Platteville students are
not safe and neither are faculty members who come to
their aid. That’s not a false
statement. Just look at what happened
to Dr. Burton. There’s your
evidence. The corrupt administration
targets people who report sexual harassment and faculty who support
victims. The administration makes
unfounded allegations like this with no support for their statements. (Take a look at Bensky Decl
Ex 5 to see what this is about – I’ve not heard of this before.) >>
This is but another example of the false accusations Burton has made that reflect poorly on her colleagues, and upon Crowley in particular, as the Human Resources director. << Again, Dr. Burton didn’t write it and it’s true. >>
Throughout four years of litigation, Burton has not given any examples of situations (other than her October 2012 complaints, addressed in the first lawsuit) where UW-Platteville allegedly mis-handled a sexual harassment complaint or “silenced” victims of sexual harassment and sexual violence.
<< Wow.
No examples? Wow. What do they think the website was filled
with? My goodness. Examples of silencing advocates of victims of
sexual harassment abound. Burton didn’t
bring up the evidence she has of mishandling of sexual abuse issues because she
was protecting the identity of the victims.
Good grief. This is getting
tiring. They are trying to convince the
judge that Burton’s claims are wrong so they can
eliminate this opportunity for Burton to prove her claims right. That’s putting the cart before the
horse. >>
And despite engaging the Platteville Police Department, the
Department of Justice’s Division of Criminal Investigation, Governor Scott
Walker, and the federal district courts, Burton has not substantiated that
there have been any “crimes” committed by “administrators, legal professionals
and employees.” <<
Well, we have tons of evidence.
Good grief. >>
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Nor has she substantiated allegations that the university silenced victims of sexual harassment and sexual violence.
<< Why would Burton need to substantiate
something she hasn’t been saying? She
claims that the administration has been harassing her for her advocacy of a
student victim of sexual harassment, not that the university silenced victims
of sexual harassment and sexual violence.
This statement has no bearing on the request to keep witnesses from
testifying. >>
Burton’s outright lies have caused substantial distress and harm to Strobl, Rice, and Crowley (amongst many others).
<< What they are doing here is to try to
come up with support for Chancellor Shields’ blanket statement that Burton
misrepresented the sexual harassment incident.
They seem to be testing the water to see what we will do with these
allegations. Of course
we must deny the ones that Sabina didn’t do.
It is amazing. Sabina says “They violated the law by lying” and then they claim
that her allegation is a lie itself, even though it is true. This is so backward. Our legal system needs an overhaul. Good grief.
This is just getting drowned by a sea of ink. >>
Now, with her discovery requests, she seeks to continue dragging them through the mud. << No, she seeks to get some answers from them by asking questions like “What makes you think Dr. Burton and her husband are about to start shooting people? Good grief. >>
Burton’s First Amendment rights may extend to disseminating flyers, but UW-Platteville faculty and staff—particularly those in the criminal justice department—should not be compelled by Burton to contribute to the information that Burton will turn around and use against the defendants, witnesses, and the university to cyber-bully, publicly shame, and harass.
<< Good grief. >>
Absent a court order, the Plaintiff has every right to post documents that have been publicly filed in federal court on the Internet.
<< Wow, this is an IMPORTANT
statement. We can use this to support our
argument that they fired Sabina in violation of the First Amendment. They claimed that she was fired because she
posted the audios online. >>
However, the First Amendment does not give her the right to compel statements of witnesses through depositions so she may post bits and pieces on the Internet next to disparaging opinion statements, call people liars, and send letters accusing colleagues of crimes because of their testimony.
<< The Attorney’s oath states
“I will employ, for the purpose of maintaining
the causes confided to me, such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by
any artifice or false statement of fact or law.” The above sentence seeks to mislead a judge
by artifice. Dr. Burton has never
attempted to use the First Amendment to compel any witnesses to testify. It is ridiculous artifice. The statement implies that Burton wants the
witnesses to testify for the express purpose of disparaging them, calling them
liars and accusing them of crimes. If
they lie they are liars. If they commit crimes then they have committed crimes. Dr. Burton wants them to testify so she can
get her job back and so she can protect sexual harassment victims. The defense is way off base. >>
It goes without saying that Burton’s behavior is personally upsetting to the people that Burton seeks to depose and it has cut deeply into the Criminal Justice Department’s ability to manage operations and maintain positive working relationships.
<< Most of the allegations of Burton’s
“behavior” was actually actions by other people. Burton’s behavior is professional and
reasonable. She deserves to hear the
answers to the questions she will ask in deposition. The witnesses are upset because they have lied
and don’t want to have to answer tough questions under oath. Denying Burton’s right to cross-examine them
would be wrong. >>
But it’s the Burtons’ misuse of compelled statements—
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deposition and hearing testimony—that warrants an order protecting Strobl, Rice, and Crowley from being deposed in this case.
<< What misuse of compelled statements
are we talking about? This is
ridiculous. >>
No witness should be compelled to testify under oath and face this type of intimidation.
<< So, a suspected
serial killer should not be compelled to testify if he is afraid his testimony
will be posted on someone’s facebook page? That seems to be what the defense is saying,
and it is absurd. >>
Under no circumstances should Strobl, Rice, or Crowley be compelled to provide testimony at a deposition.
<< There is no legitimate reason to deny Dr. Burton’s right to depose these witnesses. The weak and flimsy rationale and the false allegations in this brief, even if they were true, which they are not, wouldn’t meet any reasonable standard to deny Burton the right to depose these witnesses.
Anything Burton could possibly need regarding her lawsuit has already been said during the revocation hearing and in documents.
<< No way. For example:
Why did Dr. Strobl say that Dr. Burton and her husband were about to
snap and start shooting people? This
would be an important question to answer.
There are many other important and relevant questions that need to be
asked of these deposes. The hearings on
the university level were ridiculously short and unfair. Burton was not allowed to cross-examine
witnesses and a hearing was conducted in her absence in violation of
constitutional law. >>
III. Burton has access to all relevant information she needs
Three adverse actions underlie Burton’s retaliation claims: the June 3, 2016 letter of direction, Chancellor Shield’s initiation of tenure revocation proceedings, and the tenure revocation decision. Chancellor Shields, who is available for deposition, was involved in the first two decisions and recommended the Board’s action on the third. Crowley, Strobl, and Rice have no knowledge of any of these actions.
<< Strobl was a
very vocal witness in the appeal hearing and the hearing panel based its
decision on her testimony. Burton was
not allowed to cross-examine her in violation of policy and law. Crowley was instrumental in denying Burton’s
right to a grievance hearing. She needs
to explain why Burton’s requests for hearings were denied. Rice filed a false and frivolous complaint
against Burton and was rewarded for it.
She needs to explain why she filed those charges. The hearing panel heard that Burton is a
terrible person because she sent a condolence card to a colleague. That card has not been produced. What did it really say? What did Rice think about it? Why?
There are so many other questions that these people should be compelled
to answer. >>
As for the hearing body’s decision to proceed with the May 25 hearing, that decision came from the hearing body itself, and Burton has received all correspondence related to Burton’s request to postpone the hearing (it was either initiated by her, received by her, or made part of the hearing record, which has been filed in Grant County circuit court). << Attorney Lattis asked the hearing panel to violate Dr. Burton’s constitutional right to be present for the hearing. >>
Depositions of Strobl, Rice, and Crowley would not yield any relevant information and are unlikely to lead to admissible evidence. << Baloney. >>
The depositions
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would, however, lead to more undue stress, harassment, and bullying by Burton.
<< Wrong.
Burton has not bullied or harassed anyone. For goodness sake, she’s the one who was
fired. Good grief. It might be stressful for witnesses to testify
under oath. That is not a reason to deny
Dr. Burton’s right to question them under oath. She is due this right
so it is not undue stress, but very due.
>>
CONCLUSION
For the reasons stated, the Defendants ask this court to enter an order prohibiting Burton from deposing Janelle Crowley, Staci Strobl, and Deborah
Rice, and prohibiting her from issuing any written discovery to them.
<< Dr. Burton asks
the court to allow her to depose these witnesses. >>
Dated: September 6, 2018.
Respectfully submitted,
BRAD D. SCHIMEL
Wisconsin Attorney General
/s/
Anne Bensky
ANNE M. BENSKY
Assistant Attorney General
State Bar #1069210
Attorneys for Defendants
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 264-9451 (Bensky) (608) 267-8906 (Fax)
benskyam@doj.state.wi.us
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