January 19, 2017
from the United States District Court for the Western
District of Wisconsin. No. 14-cv-274 James D. Peterson,
Flaum, Manion, and Williams, Circuit Judges.
Manion, Circuit Judge.
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.
2009, Dr. Burton was hired as a tenure-track professor in the
criminal justice department at the University of
Wisonsin-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.
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.
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.
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
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.
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.
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
Cay-wood'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.
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. 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 ...