Sabina Burton v. Board of Regents of the Unive ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 5, 2022*
Decided November 15, 2022
Before
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-2910
SABINA LEIGH BURTON, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of
Wisconsin.
v. No. 3:17-cv-00036-jdp
BOARD OF REGENTS OF THE James D. Peterson,
UNIVERSITY OF WISCONSIN Chief Judge.
SYSTEM, et al.,
Defendants-Appellees.
ORDER
Plaintiff Sabina Burton was fired in 2018 from her position as a tenured associate
professor of criminal justice at the University of Wisconsin–Platteville. In this suit, she
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-2910 Page 2
asserts that her discharge was part of a years-long campaign of retaliation against her
for reporting sexual harassment, criticizing the university’s handling of that case, and
exposing what she says has been corruption within her department and the
administration. A prior lawsuit, in which she raised discrimination and retaliation
claims against the university for events through 2015, ended in affirmance of summary
judgment for the defendants. Burton v. Bd. of Regents of Univ. of Wisconsin Sys., 851 F.3d
690, 696 (7th Cir. 2017). This suit addresses the events since 2016 that ended with
Burton’s firing. The district court dismissed certain claims at the pleading stage and
later granted the defendants’ motion for summary judgment on her remaining claims,
including the ones she challenges here: that the university retaliated against her in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and the First
Amendment. We affirm.
Background
We recount the facts in the light most favorable to Burton, the party opposing
summary judgment. Henry v. Hulett, 969 F.3d 769, 776 (7th Cir. 2020) (en banc). Burton
traces the origin of the dispute to 2012, when she reported to Elizabeth Throop, then-
dean of the university’s College of Liberal Arts and Education, that a colleague had
sexually harassed a student. Burton’s colleague was reprimanded and his contract was
not renewed, but he was allowed to stay in his position through the end of the
following school year. Burton regarded the university’s response as inadequate. She
embarked on a campaign to draw attention to the “sexism and corruption” among the
university’s leadership. Her relationship with many colleagues and administrators
soured. In 2014 she sued the university for discrimination and retaliation. See 42 U.S.C.
§§ 2000e-2 & 2000e-3; 20 U.S.C. § 1681(a). The district court concluded that Burton
adduced no evidence to support her claims and entered summary judgment for the
defendants. We affirmed. Burton I, 851 F.3d at 696.
Meanwhile, Burton continued to express dissatisfaction with the university’s
handling of her grievances. She secretly recorded faculty meetings and posted the
recordings or transcripts of them to a website created by her husband to publicize her
efforts. She wrote a letter to the governor complaining that the university’s “very
corrupt, liberal administration” was “mercilessly harassing employees and students.”
She wrote to the Wisconsin attorney general asking for an investigation to be opened.
And she filed grievances against three professors, one of whom she says made a “death
threat” by pretending his finger was a gun and mimicking shooting at her, purportedly
in retaliation for her activism.
No. 20-2910 Page 3
In late 2016, Throop (by this time, serving as interim provost) and Dean Melissa
Gormley drafted a complaint under chapter 4 of Wisconsin’s administrative code to
begin formal dismissal proceedings against Burton. A chapter 4 complaint is the vehicle
for firing tenured faculty members in the University of Wisconsin system. Wis. Admin.
Code § 4.02. Throop and Gormley submitted their complaint to Chancellor Dennis
Shields. The complaint listed a series of grievances against Burton but focused on two
charges: (1) her disclosure of private information by posting recordings of faculty
meetings online, including discussions of tenure, salary, and professor reviews; and (2)
her repeated episodes of disrespectful, harassing, and intimidating behavior toward
colleagues, despite being warned in two formal “letters of direction” to desist. Shields
investigated the complaint and found that there was just cause to dismiss Burton from
her tenured faculty position. After further administrative steps (a hearing before a
faculty committee, review by the University of Wisconsin President, and an appeal to a
Board of Regents subcommittee), the Board of Regents issued a decision in June 2018,
revoking her tenure and firing her.
Burton then petitioned for review in a Wisconsin court. See Wis. Stat. ch. 227. The
circuit court upheld the Board’s decision, and the appellate court affirmed. Burton v. Bd.
of Regents of Univ. of Wisconsin Sys., 966 N.W.2d 270 (Wis. App. 2021).
Burton filed this federal suit before she was fired, but in the operative
complaint—as relevant for this appeal—she proceeded on retaliation claims under Title
VII and the First Amendment and a denial-of-due-process claim under the Fourteenth
Amendment. Her due-process claim was dismissed on the pleadings. The university
moved for summary judgment on the remaining claims, arguing, among other things,
that most of Burton’s claims were barred by claim or issue preclusion based on the state
trial court’s order upholding the Board of Regents’ decision and Burton’s previous
federal case.
The district court granted the defendants’ motion for summary judgment. On the
Title VII retaliation claim, the court found that Burton failed to offer evidence that any
of her statutorily protected activities was a but-for cause of the adverse actions she
suffered. The court found that her First Amendment retaliation claims were precluded
by the state trial court’s decision and that they also failed on the merits because she did
not offer evidence that her First Amendment-protected activities (her August 2015 letter
to the governor, the complaints she lodged in August 2016 against Shields and Throop
for retaliation and other such violations, and the December 2016 email to the Wisconsin
attorney general’s office asserting that the university was violating open records laws)
No. 20-2910 Page 4
played any causal role in her discipline and discharge. The court added that it would be
“grossly unfair” to allow Burton to expand her First Amendment claim beyond the
three protected activities she named in her fourth amended complaint. See Anderson v.
Donahoe, 699 F.3d 989, 997 (7th Cir. 2012). In any event, the court wrote, her expansive
view of her First Amendment rights is untenable since the rights of public employees
are limited by the rules set forth in Garcetti v. Caballos, 547 U.S. 410 (2006), and Hatcher v.
Bd. of Trustees of Southern Illinois Univ., 829 F.3d 531 (7th Cir. 2016), overruled on other
grounds by Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016).
Analysis
Burton first challenges the district court’s resolution of her Title VII retaliation
claim. She argues that the court overlooked evidence that her protected activities were
causally linked to the University’s adverse actions, a required element in a Title VII
retaliation claim. See Poullard v. McDonald, 829 F.3d 844, 856 (7th Cir. 2016). Burton
points, for instance, to her report of the finger-gun gesture that was mentioned in the
letter of direction, and to other actions—her complaints against professors and her
email objecting to the letter of direction—that were cited as evidence in the formal
charges that led to her dismissal.
Even if we assume that she properly developed these arguments in the district
court, they lack merit. The anti-retaliation provision of Title VII prevents employers
from discriminating against employees for opposing an unlawful practice. 42 U.S.C.
§ 2000e-3. But as the district court said, it does not “immunize[] Burton from the
consequences of her grossly unprofessional conduct.” Put differently, the University
can lawfully discipline her for expressing a Title VII grievance in a way that egregiously
violates neutral professional rules or norms. E.g., McDonnell Douglas Corp. v. Green, 411
U.S. 792, 794 (1973) (refusal to hire plaintiff based on participation in civil rights protests
that illegally blocked traffic access to employer and locked doors of employer’s building
was justified, but plaintiff was entitled to try to prove stated legitimate, non-retaliatory
reason was a pretext for unlawful retaliation).
We agree with the district court that Burton offered no evidence that the
defendants were motivated by a retaliatory animus. See Teruggi v. CIT Group/Capital
Fin., Inc., 709 F.3d 654, 661 (7th Cir. 2013). Indeed, the undisputed evidence shows that
they were motivated by the manner in which she expressed her objections, including
the breaches of privacy and confidentiality for university personnel matters. No
evidence supports a finding that the defendants objected to the content of her
objections. It is one thing to report a colleague for making a violent hand gesture; it is
No. 20-2910 Page 5
another to announce publicly that you are receiving “death threats” from a colleague
based solely on a hand gesture. Similarly, Burton disregards the distinction that she was
punished for refusing to follow the dean’s letter of direction, not for saying that it
violated her rights.
Next, Burton challenges the district court’s determination that her First
Amendment retaliation claims are precluded by her unsuccessful state-court challenge
to the Board of Regents’ decision to fire her. The district court ruled that these claims
were “inextricably linked” to the facts of her state-court case, and that she raised free-
speech and academic-freedom arguments that the state court rejected. Burton argues
that the doctrine of claim preclusion does not apply because she was prevented from
joining any federal claims in her Wisconsin case, which was a petition for review of an
administrative action. See Wis. Stat. ch. 227.52.
Whether Burton was prohibited from joining federal claims in her state case is
not apparent on the record before us. Under Wisconsin law, all claims arising from the
same transaction, or “natural grouping” of “operative facts,” must be brought together,
regardless of the legal theories involved. Teske, 928 N.W.2d at 561. We have previously
recognized an exception for some Title VII claims in federal court in the wake of
Wisconsin administrative proceedings. Patzer v. Bd. of Regents of Univ. of Wisconsin Sys.,
763 F.2d 851, 858 (7th Cir. 1985) (Wisconsin judgment affirming state administrative
decision did not bar plaintiff from bringing Title VII action for supplementary remedies
in federal court).
But we need not resolve the matter of claim preclusion because the district court
also ruled against Burton on the merits of this claim. The court determined that Burton
failed to offer evidence from which a jury could infer that her First Amendment-
protected speech caused her discipline and discharge. A plaintiff seeking to establish a
First Amendment retaliation claim must present evidence that her speech was at least a
motivating factor in the government’s actions. See Bless v. Cook County Sheriff’s Office,
9 F.4th 565, 571 (7th Cir. 2021).
Burton challenges this ruling by asserting that the university’s stated reasons for
firing her were pretextual for several reasons. Most are raised for the first time on
appeal, so they are not properly before us, see Fednav Int'l Ltd. v. Continental Ins. Co., 624
F.3d 834, 841 (7th Cir. 2010), but we can address them quickly. Burton contends that the
defendants gave shifting reasons for her dismissal, that there were some inconsistencies
in the defendants’ statements (she claims they often lied), and that her dismissal
proceedings violated school policy in several ways. But the undisputed facts show that
No. 20-2910 Page 6
defendants have consistently maintained that they fired her for publishing recordings
of private meetings and acting unprofessionally. They gave different examples of this at
different times, and there were minor inaccuracies in their testimony, but those minor
differences are not sufficient to defeat summary judgment. Henning v. O'Leary, 477 F.3d
492, 496 (7th Cir. 2007) (affirming summary judgment for officers in excessive force
case; minor inconsistencies among officers’ accounts of event were not sufficient to
defeat summary judgment).
Burton also challenges the district court’s conclusion that the scope of her free-
speech rights was limited by the Supreme Court’s decision in Garcetti v. Caballos.
Garcetti held that public employees are protected by the First Amendment only when
they speak as private citizens on a matter of public concern, not when they speak
pursuant to their official responsibilities. 547 U.S. at 424–45. Burton argues that her
circumstances are distinguishable because (1) her tenured professorship endowed her
with expectations of academic freedom not present for most public employees; and
(2) she complained about sexual-harassment policy as a private citizen on a matter of
public concern.
The district court rightly explained that we concluded otherwise in Hatcher v. Bd.
of Trustees of Southern Illinois Univ. In Hatcher, we applied the rule in Garcetti to a similar
First Amendment claim by a professor at a public university and concluded that her
report of sexual harassment of a student was not protected speech because it was
employment-related. 829 F.3d at 539. Burton maintains that she reported the
harassment on her own initiative, unlike the professor in Hatcher who believed she was
required to report the harassment as part of her job. But as we said in Hatcher, even
“unsolicited reports of misconduct” at the workplace that go “above and beyond” an
employee’s duties can be part of the job and are not protected by the First Amendment.
Id.
Finally, in her reply brief, Burton attempts to challenge the dismissal of her due-
process claim, but she forfeited this claim by not developing an argument in her initial
appellate brief. See Scheidler v. Indiana, 914 F.3d 535, 540 (7th Cir. 2019) (claims not
raised are forfeited); Johnson v. Prentice, 29 F.4th 895, 903 (7th Cir. 2022) (forfeiture
applies equally to pro se litigants). Burton raises several other arguments, but they also
lack merit. The judgment of the district court is
AFFIRMED.