Walker v. Board of Regents of Univ. Of Wis. System

Decision Date07 January 2004
Docket NumberNo. 03-C-66-C.,03-C-66-C.
Citation300 F.Supp.2d 836
PartiesSharon WALKER, Plaintiff, v. BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM and David Markee, Chancellor of the University of Wisconsin-Platteville, Defendants.
CourtU.S. District Court — Western District of Wisconsin

David E. Rohrer, for Plaintiff.

Michael J. Losse, Assistant Attorney General, Madison, WI, for Defendants.


CRABB, District Judge.

In this civil action for monetary, declaratory and injunctive relief, plaintiff Sharon Walker contends that defendants David Markee and the Board of Regents of the University of Wisconsin System refused to renew her contract because of her race and sex and in retaliation for exercising her First Amendment rights. Plaintiff brings her claims under 42 U.S.C. §§ 1981 and 1983 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e.

I conclude that there are genuine issues of material fact with respect to plaintiff's race and sex discrimination claims. A reasonable jury could find the reasons articulated by defendants for terminating plaintiff are pretexts for discrimination. With respect to plaintiff's retaliation claims, I conclude that three of the five statements relied on by plaintiff are matters of public concern and are protected by the First Amendment. However, with one exception, plaintiff has failed to adduce sufficient evidence to allow a reasonable jury to infer that her speech motivated defendant Markee's decision. Accordingly, defendants' motion for summary judgment will be granted in part and denied in part.

Before setting forth the undisputed facts, there are a number of preliminary issues that I must address. First is plaintiff's motion to strike the affidavits of Ann Lydecker, Chancellor of the University of Wisconsin-River Falls, and George Brooks, Associate Vice-President for Human Resources of the University of Wisconsin system. In these affidavits, Lydecker and Brooks give their "expert" opinion on the issue "whether a `reasonable' chancellor could nonrenew the contract of an assistant dean in the circumstances of [this] case, and especially given the tenuous nature of plaintiff's employment." Dfts.' Br., dkt. # 46, at 2. Plaintiff argues that the affidavits should be stricken because Brooks's and Lydecker's opinions are neither relevant nor reliable.

I agree with plaintiff that a third party's assessment of defendants' reasonableness is not relevant, at least for the purpose of defendants' motion for summary judgment. As defendants themselves recognize in their briefs on the merits, it does not matter whether defendant Markee's decision not to renew plaintiff's contract was reasonable. Title VII, § 1981 and § 1983 do not prohibit foolishness or caprice, only discrimination and retaliation for exercising federally protected rights. The Court of Appeals for the Seventh Circuit has held repeatedly that a plaintiff cannot prove an employer's discriminatory intent by adducing evidence that its decision was "mistaken, ill considered or foolish." Jordan v. Summers, 205 F.3d 337, 343 (7th Cir.2000); see also Grayson v. O'Neill, 308 F.3d 808, 820 (7th Cir.2002) ("[W]e are not concerned with the correctness or desirability of reasons offered for employment decisions."); Grube v. Lau Industries, 257 F.3d 723, 730 (7th Cir.2001) ("A pretext for discrimination means more than an unusual act; it means something worse than a business error."); Kulumani v. Blue Cross Blue Shield Association, 224 F.3d 681, 685 (7th Cir.2000) (pretext "means a dishonest explanation, a lie rather than an oddity or an error"); Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976, 979 (7th Cir.2000) ("Title VII is not a `good cause' statute."). If a plaintiff may not buttress her case by demonstrating the objective unreasonableness of the employer's actions, it follows that a defendant is similarly barred from showing nondiscrimination with evidence that its decision was carefully considered or wise. It is notable that defendants have failed to cite any case in which a court held that expert testimony on an employer's reasonableness was appropriate in a discrimination case.

At most, Brooks's and Lydecker's opinions would go to credibility, which cannot be considered on summary judgment. Morfin v. City of East Chicago, 349 F.3d 989, 999 (7th Cir.2003). Thus, at this stage of the proceedings, it is unnecessary to decide whether Brooks's and Lydecker's testimony could be relevant for any purpose. Because Lydecker's and Brooks's opinions may be ignored for the purpose of summary judgment, plaintiff's motion to strike will be denied as unnecessary. If and when defendant indicates its intent to call Brooks and Lydecker as witnesses at trial, plaintiff may move to bar their testimony. Defendants will then have to explain how evidence on the objective reasonableness of their decision is relevant when the ultimate question in this case relates to their subjective intent.

Second, defendants have filed a motion asking the court to take judicial notice of the transcripts of plaintiff's hearing before the State of Wisconsin Personnel Commission. Presumably, defendants are asking the court to take judicial notice of the testimony itself and not the facts on which the testimony is based. (Defendants could not argue seriously that all of the testimony during the hearing was "not subject to serious dispute," as required by Fed.R.Evid. 201(b); see General Electric Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074 (7th Cir.1997).) Courts may take judicial notice of the record of an administrative proceeding. Fornalik v. Perryman, 223 F.3d 523, 529 (7th Cir.2000). Defendants have provided the court with certified copies of the transcripts and plaintiff has not opposed defendants' motion. Accordingly, I will take judicial notice of the transcript of the hearing before the personnel commission.

Third, defendants argue in their reply brief that plaintiff's responses to their proposed findings of fact did not comply with the court's procedures to be followed on summary judgment. Specifically, defendants argue that in many cases, plaintiff did not limit her responses to citing evidence that put defendants' proposed fact into dispute. Instead, she introduced new facts that were not directly responsive to defendants' proposed fact. Defendants are correct that this court's procedures do not permit parties to propose new facts in their responses to proposed factual findings. However, I note that many of defendants' proposed findings of fact were also deficient because they did not include a citation to a page in the record. See Johnson v. Cambridge Industries, 325 F.3d 892 (7th Cir.2003) ("district courts ... are not required to scour every inch of the record for evidence"). To the extent that either side's submissions did not comply with this court's procedures, I have not considered them. Ziliak v. AstraZeneca LP, 324 F.3d 518 (7th Cir.2003) (when parties fail to comply with district court's summary judgment procedures, proper response is to disregard nonconforming submissions).

From the parties' proposed findings of fact and the record, I find that the following facts are undisputed.

A. Plaintiff's Tenure Under Defendant Markee's Predecessor

Plaintiff Sharon Walker began working at the University of Wisconsin-Platteville in 1994 as the assistant chancellor for student affairs. She is African-American. Before coming to the University of Wisconsin, plaintiff was the chief student affairs officer at Kentucky State University, the assistant dean of students at Iowa State University and the dean of students and vice president for student affairs at Morris Brown College. She was not terminated from any of these positions.

From the time of plaintiff's hire until 1996, Robert Culbertson was the chancellor of the University of Wisconsin. Culbertson appointed plaintiff and was her immediate supervisor. Defendant Board of Regents of the University of Wisconsin System was plaintiff's employer.

The job description for plaintiff's position provided:

The Assistant Chancellor for Student Affairs is the chief administrative officer of the Division of Student Affairs and as such manages and directs the various services, programs, and policies for students that contribute and/or support the educational objectives of U.W.-Platteville. The person will serve the University community as an educator, manager and mediator.

. . . . .

The Assistant Chancellor for Student Affairs is responsible for the effective management of all departments within the Division. The individual who occupies the position is expected to provide leadership and supervision for the division's directors, facilitate programs that meet the needs of a diverse population, work cooperatively with the Student Senate and other student organizations, encourage student involvement in the life of the campus, and promote a campus environment of learning.

Plaintiff's appointment document states that her principal assignment was "administration of the University of Wisconsin-Platteville Office of Student Affairs." Plaintiff's position was a full-time limited appointment. A limited appointee serves at the pleasure of the appointing officer.

Culbertson gave plaintiff merit increases each year. In Culbertson's view, plaintiff did what he had asked her to do. Culberton extended plaintiff's contract to 1996, then to 1997 and finally to July 31, 1999. Culbertson told plaintiff that she had "done an outstanding job for this university in the short time that you have been with us." He wrote, "You have done a spectacular job and I consider you a valuable person, colleague and friend." In February 1996, he wrote, "Thank you very much for your hard work, dedication to task and effort to bring our student affairs units to standards expected in University settings."


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