Mullin, Ann S. v. Gettinger, Edmond ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3498
ANN S. MULLIN,
Plaintiff-Appellant,
v.
EDMOND GETTINGER, BURTON
WITTHUHN, and ERIC STIFFLER,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 00 C 1346—Michael M. Mihm, Judge.
____________
ARGUED SEPTEMBER 23, 2005—DECIDED JUNE 8, 2006
____________
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Ann S. Mullin sued several
administrators at Western Illinois University, her em-
ployer, charging that they retaliated against her for
expressing speech protected by the First Amendment. A
jury returned a verdict in favor of the defendants on all
counts and Mullin now challenges the judgment for the
second count, claiming errors in jury instructions and in
evidentiary rulings. Because she failed to prove the neces-
sary causal link between her protected speech and the
administrators’ actions, we affirm the judgment.
2 No. 04-3498
I.
Mullin worked as an art professor for the College of Fine
Arts and Communication (“College”) at Western Illinois
University (“Western”) from August 1967 until her March
1, 2002 retirement. In 1997, the College held student-
faculty gatherings called forums at private homes. The
forums provided an opportunity for members of Western’s
arts community to meet in an informal setting and discuss
topics relevant to the arts. Although Mullin did not attend
the forum held on October 28, 1997, an incident at that
event eventually led to the filing of this lawsuit. At the
forum, senior art student Stephanie Butts was discussing
the work of a visiting artist with her professor and faculty
advisor, Jan Clough. The discussion was somewhat tense,
with Clough characterizing the visiting artist as a “whore
in the art world.” Butts sought to defend the artist by
stating that all artists prostituted their work to some
degree. There is considerable disagreement about what was
said in this conversation but everyone agrees that it ended
with Clough saying to Butts words to the effect that, “Well,
okay. Then you’re a whore. I paid you last week, didn’t I?”
Clough, who is female, apparently meant the comments in
jest, and was trying to put the conversation to a friendly
end. Butts took great offense at these remarks, in part
because she had previously confided to Clough that she had
been raped during her freshman year. She left the forum
shortly thereafter. At the same event, art professor Michael
Mahoney used off-color language with students who asked
the professors present to be more blunt in their assess-
ments of the students’ work. According to Mahoney, the
student said, “When our work is fucking shit, would you
please tell us?” and Mahoney replied, “Okay, your work is
fucking shit.” As with the Clough-Butts exchange, there are
quibbles over the exact wording, sequence and intent of
these remarks, but everyone agrees that Clough called
Butts a whore and Mahoney characterized a student’s work
as “fucking shit.”
No. 04-3498 3
Mullin heard about the forum from other students and
heard various renditions of both Clough’s and Mahoney’s
remarks. Mullin was one of Butts’ teachers that semester
and several days after the forum, Butts spoke to Mullin
about the event. Butts was upset and crying when she
described the evening to Mullin, confiding that she felt
Clough had violated her trust about the rape. Butts also
told Mullin that her parents planned to see a lawyer about
what had happened. After this conversation, Mullin con-
sulted her brothers who recommended that she notify the
university about the incident. Approximately three weeks
after the forum, Mullin sent a letter to Edmond Gettinger,
the Chair of the Art Department at Western, with a copy
and cover letter to Donald Spencer, the president of the
university. In the November 17, 1997 letter, Mullin re-
ported that a student revealed to her that Clough had called
the student a whore in front of other students and faculty
at a forum where alcohol was consumed. Mullin also stated
that other students had advised her about Mahoney’s off-
color remark. She said that still other students told her
they had been pulled from class and told by faculty mem-
bers not to talk to anyone about these matters. Mullin
emphasized that she was hesitant to report these events
because she was not present at the forum and thus did not
have personal knowledge of what was said there. She also
indicated that she lacked the resources to properly investi-
gate what actually happened and she did not wish to
adversely affect the pending tenure applications of either
Clough or Mahoney. She explained that she did not know
whether her description of these events was complete or
accurate. She noted that these matters might expose the
university to liability, that the event had been given
extensive notoriety among both students and faculty, and
that she thought the university’s president should be
informed. She remarked that Gettinger must have heard
enough about what had happened to know that he should
inform the president and that the university should respond
4 No. 04-3498
immediately and in a highly visible manner. Because
Gettinger had not yet taken any action, she felt obliged to
raise the issue herself. In the cover letter to Spencer, she
alluded to difficulties with the current leadership of the Art
Department, presumably a reference to Gettinger.
After receiving Mullin’s letter, Gettinger contacted James
Butterworth, the Dean of the College. Butterworth told
Gettinger that Mullin’s letter had been forwarded to the
president and that Mullin had questioned Gettinger’s
competence to run the Art Department in a separate letter
to the president. Gettinger was aware that a group of
faculty in the Art Department was seeking to have him
removed as Chair. Butterworth supported Gettinger as
Chair. In December 1997, Butterworth met with Butts’
parents, apologized, and told them there would be an
investigation. Thereafter, with the approval of President
Spencer and Western Provost Burton Witthuhn,
Butterworth conducted an evaluation of the Art Department
and an investigation into the forum incident. As a result of
the evaluation and investigation, Butterworth issued a
Department Report (“Butterworth Report”) on January 20,
1998. The Butterworth Report did not specifically mention
the October 28, 1997 forum, but did allude to allegations of
sexual misconduct and drinking at Art Department events.
The Butterworth Report noted that eight faculty members
supported Gettinger as Chair and seven indicated non-
support. Butterworth recommended to Spencer and
Witthuhn that, among other things, Gettinger continue as
Chair, alcohol was to be eliminated from all future under-
graduate forums or gatherings, and the Chair was to
schedule a meeting to review with all current students the
university’s policy on sexual harassment. Moreover, faculty
were to receive a copy of the policy for their records and
compliance. Butts’ parents saw the Butterworth Report and
wrote a letter to Gettinger expressing their dissatisfaction.
Gettinger responded with a February 26, 1998 letter telling
No. 04-3498 5
them that the university was continuing to review the
matter.
Faculty at Western typically were assigned the classes
they would teach one year before a semester started. By the
time the Butterworth Report was issued, the Spring 1998
semester was already underway and the Fall 1998 classes
had already been assigned. Mullin was on sabbatical for the
Spring 1999 semester. Thus, Fall 1999 was the first semes-
ter following Mullin’s letter to Gettinger that Gettinger had
an opportunity to assign Mullin’s class schedule. For that
semester, Gettinger assigned Mullin to teach only entry
level courses, contrary to the mix of entry and upper level
courses she had previously taught. He also reduced her
committee assignments from four to one for the Fall 1999
semester. According to Gettinger, he assigned Mullin to
these core, entry level classes because there had been
significant turnover in the Art Department faculty and he
needed her to cover these classes; he noted that he consid-
ered Mullin to be one of his strongest teachers. Other
faculty members testified that committee assignments were
typically open to anyone who would volunteer for them. On
April 14, 1999, Mullin filed a grievance complaining about
her assignment to entry level classes and the reduction in
committee assignments. She met with Witthuhn and
Associate Provost Eric Stiffler to discuss her grievance. At
this meeting, Stiffler suggested that Mullin consider
retirement as a resolution to her grievance. Mullin, then
fifty-nine, replied that she would be happy to retire depend-
ing on her benefits. Mullin wanted to retire with her
maximum eighty percent annuity benefit.
Thereafter, Mullin requested a report showing her sick
leave accrual to date. Mullin feared that accounting errors
in her sick leave accrual would result in a reduction of her
retirement benefits. In May 1999, Becky Mahr, a human
resources officer working in the provost’s office generated a
computer report (“Mahr Report”) showing Mullin’s sick
6 No. 04-3498
leave accrual and use during her more than thirty years at
Western. The system used to track this accrual changed
many times between 1967 and 1999 and the Mahr Report
appeared to Mullin to contain inconsistencies and errors.
When she asked for clarification of her benefits, she was
dissatisfied with the responses Witthuhn and Stiffler
provided. Stiffler referred her to Nancy Sherer, Western’s
benefits manager. Sherer was responsible for entering sick
leave data into a State University Retirement System
(“SURS”) program that then calculated certain retirement
benefits which were based in part on the employee’s
unused/unpaid sick leave. Sherer testified that when
retiring employees challenged their sick leave calculations,
she referred them to Becky Mahr, who was the person in
the provost’s office responsible for calculating sick days for
all employees. Mullin met with Sherer, Mahr, Stiffler and
Witthuhn in 1999 to discuss her retirement benefits. The
defendants took the position that, under the applicable
collective bargaining agreement, Mullin could not accumu-
late more than 300 days of sick leave. Moreover, the
defendants believed that Mullin had not yet met that 300
day limit as of the 1999 discussions. Using Western’s
calculations, Mullin was not eligible for the maximum 80%
retirement benefit in 1999, and did not become eligible for
that benefit until March 2002. Mullin believed that she
could accumulate more than 300 days of sick leave for the
purpose of calculating her retirement benefits and that she
had in fact accumulated more than 600 days of sick leave in
her many years of service at Western. Unable to reach a
satisfactory resolution with Western over her retirement
benefits, Mullin worked until 2002 in order to collect the
benefits that she believed were due to her in 1999.
On October 18, 2000, Mullin filed suit against Gettinger,
Witthuhn, Butterworth and Stiffler, alleging that they
retaliated against her for exercising her First Amendment
No. 04-3498 7
rights.1 See 28 U.S.C. § 1983. A jury found in favor of all of
the defendants, and Mullin filed a motion for a new trial
with respect to her retaliation claims against Witthuhn and
Stiffler for their failure to correct obvious errors in the
calculation of her sick leave and retirement benefits, and
their refusal to give her a proper accounting of her benefits.
The district court denied the motion and Mullin appeals.
II.
On appeal, Mullin argues that the district court erred
in instructing the jury as follows: “The Court finds as a
matter of law that Section 27.7 of the Collective Bargaining
Agreement in place at Western Illinois University at the
times in question places a limit of 300 on the number of sick
leave days that can be accrued.” Mullin also contests
another jury instruction and several evidentiary rulings
made at trial. The defendants counter that the
jury instructions were correct, that there were no errors
in any evidentiary rulings, and that any errors were
harmless because Mullin provided insufficient evidence that
Witthuhn and Stiffler harbored the requisite retaliatory
motive. We need not address the jury instructions or
evidentiary rulings because the defendants are correct that
Mullin has provided insufficient evidence of retaliatory
intent.
In order to prove her First Amendment retaliation claim,
Mullin must show that her speech was on a matter of public
concern, and that this protected speech was a motivating
factor in the defendants’ retaliatory action. Spiegla v. Hull,
371 F.3d 928, 942 (7th Cir. 2004); Klunk v. County of St.
1
Mullin also alleged certain state law claims which were
dismissed before trial. She does not appeal those dismissals
and we therefore do not address them.
8 No. 04-3498
Joseph, 170 F.3d 772, 775 (7th Cir. 1999). A “motivating
factor does not amount to a but-for factor or to the only
factor, but is rather a factor that motivated the defendant’s
actions.” Spiegla, 371 F.3d at 942. This proof can be met by
showing that the protected speech caused, or at least played
a substantial part in, the employer’s decision to take
adverse employment action against the plaintiff. Spiegla,
371 F.3d at 943; Klunk, 170 F.3d at 775. Once the plaintiff
proves that an improper purpose was a motivating factor,
the burden shifts to the defendant to prove by a preponder-
ance of the evidence that the same actions would have
occurred in the absence of the protected speech. Spiegla,
371 F.3d at 943.
The issue here is proof of motivation. Mullin’s motiva-
tion evidence is insufficient. She relies in part on the timing
of the defendants’ actions. A plaintiff may demonstrate
improper motive with evidence that an adverse employment
action “took place on the heels of protected activity.” Dey v.
Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994).
Mullin contends that the 1999 refusal to correct the Mahr
Report was the defendants’ first opportunity to act against
her after she sent the November 1997 letter. Moreover, she
urges us to start the clock not in 1997 but rather in Febru-
ary 1998, when Gettinger, with Witthuhn’s approval, sent
a letter to the Butts family stating that the investigation
was continuing. But that February 1998 date is irrelevant;
the clock begins when the defendants learned of Mullin’s
protected speech, and Mullin agrees that Witthuhn and
Stiffler learned about her November 17, 1997 letter shortly
after she sent it. In any case, the time gap between Mullin’s
1997 letter or Gettinger’s February 1998 letter and any
1999 action by Witthuhn and Stiffler is too attenuated to
provide evidence that Mullin’s letter motivated their
actions. Witthuhn and Stiffler learned of Mullin’s letter at
least one year before they took any action against her. Once
the grievance process began, they worked with Mullin for
No. 04-3498 9
several weeks to resolve her grievance before the sick leave
calculation became an issue. Witthuhn and Stiffler had
opportunities during that year and during those discussions
to retaliate against Mullin if they were so inclined. Instead,
they suggested early retirement to Mullin, a solution to
which she readily agreed on the condition that her benefits
were adequate. This is hardly evidence that the defendants
were motivated by retaliation. Moreover, the fact that a
plaintiff’s protected speech may precede an adverse employ-
ment decision alone does not establish causation. Cromley
v. Board of Educ. of Lockport Township High School Dist.
205, 17 F.3d 1059, 1068 (7th Cir.), cert. denied, 513 U.S. 816(1994). See also Oest v. Illinois Dept. of Corr., 240 F.3d 605,
616 (7th Cir. 2001) (the inference of causation weakens as
the time between the protected expression and the adverse
action increases thus requiring additional proof of a causal
nexus).
The remaining focus of Mullin’s retaliation theory seems
to be that the Mahr Report was so incorrect that the refusal
to fix the numbers must have been motivated by retaliatory
intent. But this spin is simply not supported by the evi-
dence. As far as Witthuhn and Stiffler knew, Mahr used the
most accurate data available to calculate Mullin’s sick
leave. Mullin certainly has not presented any evidence
casting doubt on the sincerity of that belief. Mahr, Sherer,
Witthuhn and Stiffler all believed that they were correct-
ly interpreting the Collective Bargaining Agreement as
limiting sick leave accrual to 300 days. The district court
also interpreted the contract this way. This interpretation,
even if it was incorrect (an issue we need not decide) was
not so incorrect as to cast suspicion on the motives of
Witthuhn and Stiffler. Mullin argues that she simply
wanted Witthuhn and Stiffler to acknowledge to SURS that
her sick leave number was possibly incorrect and then let
SURS decide how to calculate it. Witthuhn and Stiffler were
unwilling to do this, believing it was their responsibility to
certify the correct number to SURS. Mullin herself concedes
10 No. 04-3498
that the defendants had a statutory duty to certify her sick
leave to SURS. See 40 ILCS 5/15-113.4. Although Witthuhn
and Stiffler did not have complete confidence in the accu-
racy of the number produced in the Mahr Report, they did
not believe that Mullin had more accurate information than
that used by Mahr. Again, Mullin has no evidence casting
doubt on the sincerity of these beliefs.
We see no way to construe Mullin’s evidence as indicative
of a retaliatory intent. Mullin’s letter was addressed in
large part to concerns with the Art Department. Mullin has
drawn no connection between persons in the Art Depart-
ment who may have been offended by her letter
and Witthuhn and Stiffler. These two defendants were
Western University administrators, far removed from the
intrigues of the Art Department. Their role in these events
was to suggest retirement as a resolution to Mullin’s
grievance, and to determine, with the help of their staff,
what retirement benefits were due to Mullin. The fact that
they may have calculated these benefits incorrectly is not
evidence that their errors were motivated by Mullin’s
protected speech. Mullin suggests that Witthuhn and
Stiffler “acted in concert” because they consulted each other
on her grievance and sick leave, they both met with Mullin
and suggested retirement as a resolution to the grievance,
and they both refused to correct the Mahr Report. None of
these facts are relevant to the defendants’ motivation in
refusing to correct any discrepancies in the Mahr Report.
Indeed, Mullin concedes that Witthuhn and Stiffler
refused to correct the Mahr Report because they believed it
was reliable but then contends that, “The fact that
Witthuhn and Stiffler did not get it right when they refused
to correct the gross errors in the Mahr Report is determina-
tive on the issue of pretext.” Reply Brief at 9-10. Normally
we do not consider the issue of pretext until it appears that
the adverse action was motivated by an improper purpose,
shifting the burden to the defendant to demonstrate that
No. 04-3498 11
the action would have been taken even in the absence of the
improper motive. Mullin has no evidence of an improper
motive and so there is no burden on the defendants to
explain their actions. Cromley, 17 F.3d at 1068 (“The
defendant does not have to prove a legitimate reason for
taking adverse action against the plaintiff until the plaintiff
has come forth with sufficient evidence to support a prima
facie case of substantial motivation.”) Nonetheless, in the
course of discovery and the trial, Witthuhn and Stiffler
explained the reasons for their actions. Those reasons are
wholly unrelated to Mullin’s protected speech. Pretext may
be proven with evidence that the defendants’ stated reasons
for an employment action were factually baseless, were not
the actual motivation for the adverse employment action, or
were insufficient to motivate the adverse employment
action. Ajayi v. Aramark Bus. Services, Inc., 336 F.3d 520,
534 (7th Cir. 2003). None of Mullin’s evidence raises a
question of fact on the issue of pretext. In short, Mullin has
no evidence that Witthuhn or Stiffler were motivated by
retaliation. That lack of evidence dooms Mullin’s
case against Witthuhn and Stiffler.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-8-06