Ross v. Bd. of Regents of Univ. Of Wisconsin Sys.
| Decision Date | 03 September 2009 |
| Docket Number | Case No. 08-CV-230. |
| Citation | 655 F.Supp.2d 895 |
| Parties | Howard L. ROSS, Plaintiff, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, Richard J. Telfer, James W. Freer, Indra Mohabir and Martha D. Saunders, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Andrew J. Parrish, Robert J. Kasieta, Kasieta Legal Group LLC, Madison, WI, for Plaintiff.
Richard Duane Harlow, Nadim Sahar, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, for Defendants.
On March 14, 2008, Howard L. Ross ("Ross") filed a summons and complaint against the Board of Regents of the University of Wisconsin System ("Board of Regents"), as well as four current or former administrative officials at the University of Wisconsin—Whitewater ("UWW"). The complaint alleges the following: (1) that defendants unlawfully discriminated and retaliated against Ross in his employment on the basis of race in violation of Title VII of the Civil Rights Act of 1964; (2) that defendants Richard J. Telfer ("Telfer"), James W. Freer ("Freer"), Indra Mohabir ("Mohabir") and Martha D. Saunders ("Saunders") acted under color of state law to deprive Ross of equal protection and due process of law under the Fourteenth Amendment, in violation of 42 U.S.C. § 1983; (3) that Telfer, Freer, Mohabir, and Saunders acted under color of state law to violate the First Amendment by retaliating against Ross for exercising his free speech rights, also in violation of 42 U.S.C. § 1983; and (4) that Telfer, Freer and Mohabir conspired to deny Ross equal protection of the laws under the Fourteenth Amendment in violation of 42 U.S.C. § 1985(3).
On April 9, 2008, defendants filed a joint answer and the Board of Regents asserted counterclaims against Ross for breach of fiduciary duty and intentional misrepresentation. On February 16, 2009, Ross filed a motion for summary judgment on the Board of Regents' counterclaims. (Docket # 31). On February 17, 2009, defendants filed their own motion for summary judgment on the claims asserted in Ross's complaint. (Docket # 37). Ross also filed two motions to strike portions of several affidavits submitted by defendants. Before addressing these motions, the court reviews the background facts of this case.
Ross, an African-American male, joined UWW as dean of the college of letters and science and professor of philosophy and religious studies in 1993. (Plaintiff's Proposed Findings of Fact ("PPFF") ¶ 15, Docket #33; Plaintiff's Additional Proposed Findings of Fact ("PAPFF") ¶ 1, Docket ##'s 57, 83). As dean, Ross acted as the administrative head of the college of letters and sciences, managing an annual budget of $11 million. (PPFF ¶ 17; Defendants' Additional Proposed Findings of Fact ("DAPFF") ¶ 28, Docket # 70). The controversy in this case stems from Ross's use of a university credit card known as a procurement card ("procard"). (PAPFF ¶ 21).
In the mid-nineties, UWW began issuing procards to its administrators and faculty to streamline the procurement process for smaller purchases of goods and services. (PAPFF ¶¶ 21, 23).1 Procards generally had a $5,000.00 credit limit, and administrators could use their procards like a credit card to make purchases without preapproval from UWW's purchasing department. (PAPFF ¶ 23). Procard holders were required, however, to keep a purchase log along with the original receipts and invoices, and to reconcile the purchase log with monthly billing statements generated by the credit card company which issued the procard. (PAPFF ¶¶ 25-26). Ross received his procard in 1996. (PPFF ¶ 32). Soon after acquiring the procard, Ross authorized several staff members in his office to use the procard, and delegated responsibility for monitoring procard purchases to the associate dean, Mary Pinkerton ("Pinkerton"). (PPFF ¶ 34; PAPFF ¶¶ 30, 33). Therefore, it was Pinkerton who actually kept the procard purchase log and reconciled logged purchases with the monthly billing statements.2 (PAPFF ¶¶ 32, 34).
In 1999, UWW created an internal audit department to act as an independent reviewer of university finances. (PAPFF ¶ 39; Defendants' Proposed Findings of Fact ("DPFF") ¶ 17, Docket #39) The internal audit department was meant to operate independently of other UWW departments, and reported directly to the UWW chancellor and administrators. (DPFF ¶¶ 17, 18; PAPFF ¶ 41). Freer, then vice chancellor for administrative affairs at UWW, had oversight authority over the audit department, and helped create a charter and policies to govern audit procedures at the university. (DPFF ¶ 6; PAPFF ¶¶ 40-41). According to a document purporting to be UWW's internal audit charter and policies, a copy of which Ross's expert attached to his report, UWW policies required that an audit be a collaborative effort between the auditor and management of the audited department. For example, the auditor was to provide notice to each department to be audited before commencing an audit. (PAPFF ¶ 43). The policies also required that the auditor set up an entrance conference with managers of the department to be audited, and conduct interim meetings with officials of the audited department to provide updates on the audit findings. (PAPFF ¶¶ 42-46). The policies further state that the auditor should provide a draft of the audit report to appropriate managers of the audited department, hold an exit conference with those officials, and provide thirty days for personnel of the audited department to respond to the draft report. (PAPFF ¶¶ 47-50). Finally, the policies state that the final audit report was to include any revisions made by the auditor, as well as any responses to the auditors recommendations made by the audited department. (PAPFF ¶ 51; Marrasco Aff. Ex. C, Docket # 58).
Around the same time the internal audit department was set up, UWW began to conduct a series of audits of its operations. In 1999, UWW conducted an internal audit of procard use throughout the university. (PPFF ¶ 35; PAPFF ¶ 53; DPFF ¶ 19). The 1999 audit report found several procard holders, including Ross, to be non-compliant with UWW procard policies on purchases and record keeping. (PAPFF ¶ 54). The 1999 report found that Ross had improperly allowed Wisconsin sales tax totaling $1.64 to be charged on tax-exempt procard purchases. (PPFF ¶ 36; PAPFF ¶ 57; DPFF ¶ 19).
In 2000, the internal audit department conducted further audits of all UWW departments to verify procard holders were following UWW record keeping requirements. (DPFF ¶ 20; PPFF ¶ 39). Ross's procard was again among those audited. (PPFF ¶ 39). The 2000 audits revealed improper record keeping and purchases on multiple procards. (PAPFF ¶ 60). While Ross claims to have never received the 2000 audit report, Ross admits that he received two memoranda identifying procard purchases for which the auditor requested further documentation. (DPFF ¶ 22; PPFF ¶¶ 40-41; PAPFF ¶ 63). Ross met with Freer and Michael Klink ("Klink"), who was at that time UWW's internal auditor, to discuss the results of the 2000 audit. (DPFF ¶ 16; PPFF ¶ 42). Ross also provided at least two written responses explaining the undocumented purchases noted in the 2000 audit report. (PPFF ¶ 43; PAPFF ¶ 64; DPFF ¶ 26). In his correspondence with the internal audit department, Ross stated that he would make sure that receipts were provided for every procard purchase in the future. (DPFF ¶ 23). After the 2000 audit was completed, Klink sent a memo to Ross informing him that he would continue to monitor Ross's procard purchases over the next few months to ensure compliance with UWW's record keeping rules, and that he would report the results of his monitoring to the chancellor and provost. (DPFF ¶¶ 24-25; PPFF ¶ 45). The parties dispute whether Ross adequately addressed all of the recommendations and record keeping deficiencies cited in the 2000 audit report.
In 2003, the administrator of UWW's procurement card program, Mike Hirschfield ("Hirschfield"), conducted what defendants call a "comprehensive review" of procard holders in the college of letters and sciences. (DPFF ¶ 30; PPFF ¶ 46; PAPFF ¶ 67). As part of that review, an auditor interviewed Pinkerton, presumably to obtain information on the use of Ross's procard. (PPFF ¶ 47; PAPFF ¶ 68). The results of the review were summarized in a report, which was provided to Pinkerton. (PPFF ¶ 48; PAPFF ¶ 71). The report found that records documenting Ross's procard purchases were inadequate, and that Ross's procard had charges for individual meals and sales tax that did not comply with UWW procard policies. (PPFF ¶ 50; PAPFF ¶ 69; DPFF ¶ 30). The administrator responsible for the review, however, concluded that overall procard compliance was "good." (PAPFF ¶ 70). After the 2003 review, Ross was not disciplined by UWW officials in any way, and he kept his procard. (PPFF ¶ 51).
In 2004, Hirschfield conducted another audit of Ross's procard purchases as part of a routine audit of the dean's office. (PPFF ¶ 52; DPFF ¶ 31). As part of the audit, Pinkerton was interviewed again, and an audit report was generated. (PPFF ¶ 53; PAPFF ¶ 79). The 2004 report found that record keeping for purchases made on Ross's procard was not compliant with UWW policies, including charges related to Ross's cell phone service, alcohol purchases, upgraded hotel rooms, flowers, and On-Star service.3 (PPFF ¶ 56). On December 21, 2004, Hirschfield sent a memorandum to Randy Marnocha ("Marnocha"), then an associate vice chancellor, recommending "removal" of Ross's procard for "non-compliance purchasing." (PPFF ¶ 59; PAPFF ¶ 80). Around the same time, Freer was also made aware of Hirschfield's findings and recommendation. (DPFF ¶ 31).
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