Ashman v. Barrows

• Decision Date: 23 February 2006
• Docket Number: No. 05-3098.,05-3098.
• Citation: 438 F.3d 781
• Parties: Wanda L. ASHMAN, Plaintiff-Appellant, v. Richard BARROWS, Janine Jensen, and Board of Regents of the University of Wisconsin System, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

438 F.3d 781

Wanda L. ASHMAN, Plaintiff-Appellant, v. Richard BARROWS, Janine Jensen, and Board of Regents of the University of Wisconsin System, Defendants-Appellees.

No. 05-3098.

United States Court of Appeals, Seventh Circuit.

Argued January 12, 2006.

Decided February 23, 2006.

Mary E. Kennelly (argued), Fox & Fox, Monona, WI, for Plaintiff-Appellant.

John R. Sweeney (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

After Wanda Ashman spent 14 years as a "limited term employee" (LTE) at the University of Wisconsin in Madison, she convinced her superiors that her job should be made permanent and should include the benefits which go with permanent employment. A hiring process was put in place, apparently with the intent that Ashman be hired as a part-time permanent employee. The process broke down, however, because at about the same time that a job was being created for her, Ashman took her fight for better conditions for LTEs to the chancellor of the university and to a local newspaper. The result was that someone else got the newly created, now-permanent job. Ashman sued under 42 U.S.C. § 1983, contending that the defendants retaliated against her for speaking out about the issue of the university's treatment of LTEs, in violation of her First Amendment rights. The defendants moved for summary judgment and the district court granted the motion. Today we resolve Ashman's appeal of that decision.

Ashman's employment with the College of Agriculture and Life Sciences (CALS) at the university began in 1986. In 1992, she began working with a computer program called the Degree Automated Reporting System (DARS). She was also responsible for maintaining the department's Web site. It was in September 2000 that Ashman talked with her supervisors— defendants Richard Barrows, the associate dean of the CALS, and Janine Jensen, the student services coordinator of the Department of Academic Student Affairs for CALS—claiming that her job was undervalued and undercompensated. She had not received a raise in her hourly wage for over 8 years, and she was an LTE for 14 years. Barrows and Jensen agreed to convert her position to a permanent part-time position. To comply with hiring procedures, they had to develop a job description and post the position for contractual transfers. Ashman gave them a copy of her resumé, a description of the essential responsibilities of her job, and a list of qualifications or skills needed in the job. She estimated that 50 percent of her time was with the degree reporting system and 50 percent with webmaster duties.

Apparently, the whole point of the recruitment process was to create a permanent position which would reflect Ashman's job duties and then to give her the job. She acknowledges that this purpose may have been a questionable practice under the state civil service rules, but, she says, we should not hold that against her. Ashman's position was reclassified to Information Services (IS) Resources Technician and "posted" on April 18, 2001.

At about this time, the plan to give Ashman the job started to unravel. On April 3, 2001, Ashman met with Chancellor John Wiley and members of the Student and Labor Action Coalition to discuss the plight of LTEs at the university and possible legislation to eliminate the oxymoron of long-time, limited term positions and to make the positions permanent. Ashman discussed her view that the university misused LTEs in general.

The next day, Ashman told Barrows and Jensen about the meeting with Chancellor Wiley. She told them that even though her position was going to be made permanent, she wanted to help other LTEs. She also told them that it was possible that there would be an article in Isthmus, a local newspaper, about the topics covered in the meeting; she warned Barrows and Jensen that she was not sure whether the article would be factual or inflammatory. Also, in May, Ashman met with members of the Coalition and Wisconsin State Representative Jean Hundertmark regarding the university's use of LTEs.

On June 22, the Isthmus article was published. It stated, "Wanda Ashman is fed up. For nearly nine years she has been employed `in training' as a computer code writer for the UW-Madison College of Agriculture" and that the UW was being "dishonest and irresponsible by not classifying her and others like her as permanent employees." The article pointed out that LTEs do not receive benefits such as health care, paid vacation or sick days, and retirement savings.

After the article was published, Jensen told one of Ashman's coworkers, Sue Gisler, that Barrows was "really furious and angry" about the article, a fact Gisler also observed for herself. Gisler heard Barrows complain at staff meetings that Ashman had "made the college look bad." Another of Ashman's coworkers, Sue Brusveen, also heard Barrows say he was not happy about the story in Isthmus. Both Gisler and Brusveen said that Barrows treated Ashman differently after she called attention to the LTE issue. Both women concluded that Ashman did not get the position as IS Resources Technician because of her complaints.

On June 19, Barrows and Jensen cancelled recruitment for the position. The reason they gave for their action was that they were going to adopt a proposal from the Department of Information Technology (DoIT) for a data base Web site. This, they said, would require revamping the position. Ashman, however, contends that the change would make little difference in job duties because DoIT would set up the data base and the technician would have little to do but update it. Barrows and Jensen also changed the job description; the percentages of time spent on the duties of the job were changed—and in a way which did not make sense to Ashman. Ashman informed Barrows of her concerns about the new job description. Nevertheless, the revised job description was forwarded to Human Resources to be used as a basis for developing an examination for the position.

In July, Barrows sent a memo to the Human Resource office asking that both he and Jensen be removed from the hiring process for the IS Resources Technician position. There is evidence, however, that Jensen did not withdraw from the hiring process but participated in the development of the examination. The degree of her participation is disputed. Ultimately, the examination was prepared and consisted simply of an "objective inventory questionnaire," in which applicants were asked whether they possessed certain kinds of knowledge, skills, and experience. Ashman ranked 20th out of 34 persons taking the exam and was not among the top 10 candidates, who were invited to interview for the position....