Burton v. Bd. of Regents of the Univ. of Wis. Sys.

• Decision Date: 17 March 2017
• Docket Number: No. 16-2982,16-2982
• Parties: Sabina BURTON, Plaintiff-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

851 F.3d 690

Sabina BURTON, Plaintiff-Appellant,

v.BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, et al., Defendants-Appellees.

No. 16-2982

United States Court of Appeals, Seventh Circuit.

Argued January 19, 2017

Decided March 17, 2017

Kimberly Laura Penix, Attorney, Alderman Law Firm, Madison, WI, for Plaintiff-Appellant.

Steven C. Kilpatrick, Attorney, Office of the Attorney General, Madison, WI, for Defendants-Appellees.

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. 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. 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. 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 the department. 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. Overall, Caywood became less collegial towards Burton, and she viewed the change in departmental policy as a direct repudiation of her conduct.

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. That application was rejected, but Burton eventually received a modest offer from AT&T of $7,000 to fund the cybersecurity program.

Caywood and Throop hampered this process after Burton had reported the alleged harassment of the student in October 2012. Specifically, in November Caywood failed to respond to Burton's request for a meeting about the grant process. 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 that the press release said too much because Burton had yet to submit formally any course curricula to the appropriate University committees. Caywood also confronted Burton about inaccuracies (which Caywood had never noticed before) on two websites that Burton had created for the proposed cybersecurity program. Nevertheless, Throop and the 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.

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. Caywood then stepped down as department chair after the 2012—13 academic year, seemingly in part because of conflict with Burton. 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 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. 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). Four days later, Throop sent Burton a "letter of direction" which identified seven events that Throop considered examples of inappropriate behavior by Burton.¹ Throop's letter included five specific directions for Burton to follow. Burton, however, rejected the directions and accused Throop of mischaracterizing the facts. 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. It is unclear from the record whether this complaint has been resolved.

Finally, on December 4, 2014, Throop accused Burton of canceling class without permission. In response, Burton sent an email to all of her students documenting her issues with Throop and Caywood 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. The next day, Burton filed her EEOC charge. 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.

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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 125 S.Ct. 1497, 161 L.Ed.2d 361 (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 , ––– U.S. ––––, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013) (causation standard).

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. 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. Throughout her briefing, Burton relies on facts that appear nowhere in her opposition to the Board's motion for summary judgment below. 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.

That...