Brown, Shannon v. State of Wisconsin et al

Brief in Opposition

W.D. Wis.October 5, 2016

Opposition to Motion to Dismiss-County 1 In the United States District Court for the Western District of Wisconsin Shannon Brown, pro se Plaintiff vs. Case No. 16-CV-346-BBC PLAINTIFF’S OPPOSITION TO COUNTY, ET AL. DEFENDANTS’ MOTION TO DISMISS the State of Wisconsin, et al.; Defendants PLAINTIFF’S OPPOSITION TO DEFENDANT GRANT COUNTY’S AND DEFENDANT ROBERT KEENEY’S MOTION TO DISMISS 1 Summary of Plaintiff’s Opposition 1. Plaintiff requests denial of Defendants’ Motion to Dismiss on counts:  Count I-Due Process  Count V-Whistleblower Retaliation  Count VI-First Amendment Speech Retaliation  Count VII-Defamation  Count VIII-Tortious/Intentional Interference with a Contract  Count XI-Privileges and Immunities Clause 2. Plaintiff seeks leave to replead and amend on Count IV-Hostile Work Environment. 3. Plaintiff does not oppose dismissal without prejudice of the remaining claims against named County Defendants. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 1 of 52 Opposition to Motion to Dismiss-County 2 2 Table of Contents 1 Summary of Plaintiff’s Opposition .............................................. 1 2 Table of Contents ............................................................................... 2 3 Table of Authorities .......................................................................... 5 4 Legal Standard .................................................................................... 8 5 Procedural Status ............................................................................. 10 6 Summary of Factual Background ............................................... 11 6.1 Pled Facts Summary ................................................................ 12 6.2 Retaliation for Speaking About Diversion of Educational Programming Services to Fulfill County Administrative Programs .................................................................. 16 6.3 Retaliation and Discrimination Against Out-of-Staters (Privileges and Immunities Clause) .............................................. 16 7 Count I: Due Process ....................................................................... 17 7.1 Plaintiff alleges Due Process claims including due process and violations of specific provisions of the Bill of Rights. ........................................................................................................ 17 7.1.1 Plaintiff asserts an actionable property right in Plaintiff’s employment contract and employment.............. 19 7.1.2 Plaintiff asserts a property right arising from attacks on Plaintiff’s “good name, reputation, honor, and integrity.”............................................................................................. 20 7.1.3 Because no post-termination procedure exists, Loudermill may not apply because Loudermill presupposes robust post-termination procedures making Defendants’ actions per se violations of Due Process. ....... 21 7.1.4 Under Loudermill, Plaintiff did not receive constitutionally adequate notice of an adverse employment action when Defendants gave only seconds “notice” when Plaintiff prepared for a scheduled Faculty Review, not an adverse employment action. ......................... 23 7.1.5 Even if Loudermill applies, Defendants did not comply with Loudermill because the only scheduled event was a Faculty Review, not an adverse employment action. 24 7.1.6 Defendants’ fabricating “issues” with Plaintiff and participation in the “hearings” were the but-for cause of Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 2 of 52 Opposition to Motion to Dismiss-County 3 Plaintiff no longer being employed with the University of Wisconsin Extension. ...................................................................... 25 7.1.7 Plaintiff seeks leave to amend to correct the pleading reference to “a” hearing. ............................................. 26 7.2 Plaintiff’s ‘voluntary quit’ does not cure Defendants’ Due Process violations. ....................................................................... 27 8 Count II: Ex Post Facto Law-Dismissal without prejudice unopposed for named County Defendants. ..................................... 28 9 Count III: State Impairment of Contracts-Dismissal without prejudice unopposed for named County Defendants . 29 10 Count IV: Hostile Work Environment ................................... 29 10.1 Plaintiff seeks leave to amend or replead to aver that the hostile work environment allegedly arose from the persons from protected classes that Plaintiff worked with, including a closely related claim of violations of First Amendment Freedom of Association. ........................................... 29 10.2 Plaintiff seeks leave to replead and amend to add a closely related claim of violations of the Constitutional ban on political patronage. ........................................................................ 31 11 Count V: Whistleblower Retaliation ...................................... 32 11.1 According to well-established grammatical rules, Plaintiff pleads a count of federal whistleblower retaliation and a count of state-common-law whistleblower retaliation. 32 11.2 Defendants apparently argue that County Defendants employed Plaintiff and thus a whistleblower count stands against these County Defendants as employer. 33 11.3 Plaintiff alleges an employment contract exists and therefore Brockmeyer, et al., which rely on At-Will Doctrine, do not conclusively preclude Plaintiff’s claims sounding in employment contract. ......................................................................... 33 11.3.1 Even if the Brockmeyer Rule and qualifications applied, the Plaintiff establishes an inference of a public policy and actions by Defendants impliedly meeting the Brockmeyer Rule Exception as amplified in Strozinsky. .. 34 11.3.2 Plaintiff seeks leave to replead a count of constructive discharge because Defendants’ actions making the faculty position futile and intolerable and Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 3 of 52 Opposition to Motion to Dismiss-County 4 faced Plaintiff in a Hobson’s Choice: violate the law and policy or leave. .................................................................................. 36 11.4 Wisconsin law recognizes a form of common law whistleblower protections by recognizing the public policy exception in wrongful discharge. ................................................... 37 11.5 Plaintiff moves the court for leave to amend and leave to replead if, in addition to the current pleadings, counts for wrongful discharge and constructive discharge are necessary to maintain the whistleblower retaliation claims. 38 12 Count VI: Speech Retaliation .................................................... 38 12.1.1 Connick’s whole-record analysis to determine whether Plaintiff spoke on public concern implies a dismissal prior to discovery is premature. ............................ 38 12.1.2 Plaintiff alleges protected speech because Plaintiff was speaking about significant mis-direction of public educational programming funds to county administrative tasks-a topic of public concern. ................ 39 13 Counts VII and VIII: Intentional Torts .................................. 40 13.1 Wisconsin Stat. § 893.80(4) [municipal/county immunity] does not provide absolute immunity because municipal immunity differs fundamentally from state sovereign immunity, and thus dismissal of the intentional tort claims is not warranted at this time. .................................... 40 13.1.1 Even if Wisconsin Stat. § 893.80(4) fully bars suits for intentional torts, Robert Keeney may not be a bona fide member of the Grant County Board by law and thus Robert Keeney could not claim immunity under Wisconsin Stat. § 893.80(4). ........................................................ 43 13.2 Count VII: Defamation-Plaintiff’s defamation count against Grant County and Robert Keeney survives the Motion to Dismiss because Plaintiff establishes a prima facie count of defamation and because neither Grant County nor Robert Keeney employed Plaintiff. ................................................ 45 13.3 Count VIII: Tortious Interference with a Contract .. 46 14 Count IX: Breach of Contract-Dismissal without prejudice unopposed for named County Defendants .................. 49 15 Count X: Fraud-Dismissal without prejudice unopposed for named County Defendants ...................................... 49 16 Count XI: Privileges and Immunities Clause ...................... 49 Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 4 of 52 Opposition to Motion to Dismiss-County 5 16.1 Plaintiff pleads that County Defendants and Keeney engaged in actions showing discriminatory animus against out-of-staters. ......................................................................................... 51 17 Conclusion ....................................................................................... 52 3 Table of Authorities Cases Abernethy v. Mercer, 532 F. App'x 160 (3d Cir. 2013) ............... 39 Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) ......... 30 Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) ............................................................................ 9, 10, 52 Bammert v. Don's Super Valu, Inc., 254 Wis. 2d 347, 646 N.W.2d 365 (2002) ............................................................................... 33 Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010) ....... 9 Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). 19, 20, 21, 22 Bd. of Regents of Univ. of Wisconsin Sys. v. Wisconsin Pers. Comm'n, 147 Wis. 2d 406, 433 N.W.2d 273 (Wis. Ct. App. 1988) ......................................................................................................... 38 Bell Atlantic v. Twombly, 550 U.S. 544, 556-57 (2007) ............. 10 Bishop v. Wood, 426 U.S. 341 (1976) ................................................ 20 Bissessur v. Indiana University Bd. of Trustees, 581 F.3d 599, 603 (7th Cir. 2009) ................................................................................. 9 Black v. City of Milwaukee, 369 Wis. 2d 272, 882 N.W.2d 333 (Wis. 2016)(pet. certiorari Sept. 23, 2016) ................. 17, 18, 44 Boddie v. Connecticut, 401 U.S. 371, 378 (1971) .......................... 23 Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 335 N.W.2d 834 (1983) ............................................................................... 33, 36, 37 Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) ... 9, 10, 29, 42, 52 Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501 (7th Cir. 2013) ........................................................................................ 8, 9, 27, 49 Bushko v. Miller Brewing Co., 134 Wis. 2d 136, 396 N.W.2d 167 (1986) ................................................................................. 33, 34, 35, 37 Carmody v. Bd. of Trustees of Univ. of Illinois, 747 F.3d 470, 480 (7th Cir. 2014) .......................................... 10, 20, 22, 23, 24, 25 Casteel v. McCaughtry, 176 Wis.2d 571, 578 (1993) ........... 18, 19 Chaney v. Suburban Bus Div. of Reg'l Transp. Auth., 52 F.3d 623 (7th Cir. 1995)......................................................................... 20, 22, 24 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) ...... 22, 23, 24, 25, 27 Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 5 of 52 Opposition to Motion to Dismiss-County 6 Connick v. Meyers, 461 U.S. 138 (1983) ................................... 38, 39 Converters Equip. Corp. v. Condes Corp., 80 Wis. 2d 257 (Wis. 1977) ......................................................................................................... 46 Cudd v. Crownhart, 122 Wis. 2d 656 (Wis. Ct. App. 1985) ........ 47 Demitropoulos v. Bank One Milwaukee, N.A., 915 F.Supp. 1399, 1406 (N.D.Ill.1996) .............................................................................. 10 Eberhardt v. O'Malley, 17 F.3d 1023 (7th Cir.1994) ................... 39 Elrod v. Burns, 427 U.S. 347, 350-60 (1976) .................................. 31 Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998) ......... 30 Foster v. Deluca, 545 F.3d 582 (7th Cir., 2008) ............................. 31 Garcetti v. Ceballos, 547 U.S. 410, 425 (2006) ............................... 40 Gilbert v. Homar, 520 U.S. 924 (1997) .............................................. 25 Hall v. Babb, 389 F.3d 758, 762 (7th Cir. 2004) ............................ 31 Hart v. Bennet, 267 Wis.2d 919, 672 N.W.2d 306(Wis. Ct. App. 2003) ......................................................................................................... 45 Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 571 N.W.2d 393 (1997) ...................................................................................... 33, 37 Hicklin v. Orbeck, 437 U.S. 518 (1978) ..................................... 50, 51 Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 346-47 (2014)(per curiam) ................................................................. 9, 10, 29 Kanter v. Barella, 489 F.3d 170, 175 (3d Cir. 2007) ...................... 9 Kara B. by Albert v. Dane Cty., 198 Wis. 2d 24 (Wis. Ct. App. 1995) ......................................................................................................... 17 Kierstead v. Labor & Indus. Review Comm'n, 341 Wis. 2d 343, 351 (Ct. App. 2012) .............................................................................. 28 Lada v. Wilkie, 250 F.2d 211, 215 (8th Cir. 1957) ........................ 10 Larson v. Domestic Foreign Commerce Corporation, 337 U.S. 682 (1949) .............................................................................................. 43 Lister v. Bd. of Regents of Univ. Wisconsin Sys., 72 Wis. 2d 282 (1976) ....................................................................................................... 43 Lodl v. Progressive N. Ins. Co., 253 Wis. 2d 323 (2002) .....40, 41, 42, 43 Mach v. Allison, 259 Wis. 2d 686, 698-99 (Wis. Ct. App. 2002) ...................................................................................................................... 45 Marshall v. Allen, 984 F.2d 787 (7th. Cir. 1993) ........................... 31 Masri v. State Labor & Indus. Review Comm'n, 356 Wis. 2d 405, 850 N.W.2d 298 (2014) ...................................................................... 37 Massey v. Johnson, 457 F.3d 711 (7th Cir. 2006) ......................... 39 Mathews v. Eldridge, 424 U.S. 319 (1976)....................................... 24 McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 879 (7th Cir.2012) ............................................................................................. 8, 28 Miami University Associated Student Government v. Shriver, 735 F.2d 201 (C.A.6 (Ohio), 1984) ................................................. 43 Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 6 of 52 Opposition to Motion to Dismiss-County 7 Old Tuckaway Associates Ltd. P'ship v. City of Greenfield, 180 Wis. 2d 254 (Wis. Ct. App. 1993) ............................................ 41, 42 Paul v. Davis, 424 U.S. 693(1976) ....................................................... 21 Recore v. Cty. of Green Lake, 368 Wis. 2d 282 (Wis. Ct. App. 2016) ......................................................................................................... 40 Riano v. McDonald, No. 15-2043, at *3 (7th Cir. Aug. 17, 2016) ...................................................................................................................... 23 Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012) (Easterbrook, C.J.) ..................................................................... 9, 10, 42 Rutan v. Republican Party of Ill., 497 U.S. 62, 65 (1990) ........... 31 Ry. Exp. Agency, Inc. v. Super Scale Models, Ltd., 934 F.2d 135, 139 (7th Cir. 1991) ............................................................................... 47 Saenz v. Roe, 526 U.S. 489 (1999) ....................................................... 50 Schacht v. Wisconsin Dep't of Corr., 175 F.3d 497 (7th Cir. 1999) ......................................................................................................... 17 Schlafly v. Volpe, 495 F.2d 273 (7th Cir., 1974)............................. 43 Shull v. Pilot Life Ins. Co., 313 F.2d 445, 447 (5th Cir. 1963) ... 29 SJ Properties Suites v. Specialty Finance Group, LLC, 864 F. Supp. 2d 776, 781 (E.D. Wis. 2012) ................................................. 9 Staples v. City of Milwaukee, 142 F.3d 383 (7th Cir. 1998) ..... 22, 24, 25 Stop-N-Go of Madison, Inc. v. Uno-Ven Co., 184 F.3d 672 (7th Cir. 1999) ................................................................................................. 47 Strozinsky v. Sch. Dist. of Brown Deer, 237 Wis. 2d 19 (2000) ................................................................................. 21, 27, 34, 35, 36, 37 Toomer v. Witsell, 334 U.S. 385 (1948) ............................................ 51 Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524 (1997) .. 46 Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013) ........... 9, 49 Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964 (7th Cir. 2001) ................................................................................................. 40 Wangard Partners, Inc. v. Graf, 294 Wis. 2d 507 (Wis. Ct. App. 2006) ......................................................................................................... 47 Wesbrook v. Ulrich, 90 F. Supp. 3d 803 (W.D. Wis. 2015) ......... 45 Willow Creek Ranch, L.L.C. v. Town of Shelby, 235 Wis. 2d 409, 456-57 (2000) ....................................................................................... 42 Wolf v. F&M Banks, 193 Wis.2d 439, 534 N.W.2d 877 (Wis. App., 1995) .............................................................................................. 46 Wolnak v. Cardiovascular & Thoracic Surgeons of Cent. Wisconsin, S.C., 287 Wis. 2d 560 (Wis. Ct. App. 2005) ... 47, 48 Yellow Cab Co. v. City of Chicago, 3 F.Supp.2d 919, 921 (N.D. Ill., 1998) ......................................................................................................... 10 Zobel v. Williams, 457 U.S. 55 (1982) ................................................ 50 Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 7 of 52 Opposition to Motion to Dismiss-County 8 Statutes 18 USC § 666................................................................................................ 35 42 U.S.C.A. §2000e ..................................................................................... 30 Wis. Stat. § 108.04 ..................................................................................... 28 Wis. Stat. § 59.18 ........................................................................................ 43 Wis. Stat. § 59.56 ........................................................................................ 15 Wis. Stat. § 66.0501 .................................................................................. 43 Wis. Stat. § 893.80 ............................................................................. 40, 44 Wis. Stat. §§ 230.80-85 ............................................................................ 37 Other Authorities Atty. Gen. Op. OAG-01-11 (Oct. 27, 2011) ........................................ 44 Expanding Access & Inclusion, Civil Rights, University of Wisconsin Extension Civil Rights ........................................... 30, 31 William Strunk Jr. and E.B. White, The Elements of Style, 4th ed., 34 (2000) ......................................................................................... 32 Rules F.R.C.P. 8(d)(1) ............................................................................................. 9 Treatises Restatement (Second) of Torts § 766A ............................................. 47 Regulations UWEX Faculty Policies and Procedures, 4.02 ......................... 20, 24 UWEX Faculty Policies and Procedures, Chap. 4, Procedures for Dismissal .................................................................................................. 23 Constitutional Provisions U.S. Const. amend. XIV ............................................................................. 18 U.S. Const. Art.4, Sec.2, Cl.1. ................................................................... 49 4 Legal Standard When considering a Rule 12(b) Motion to Dismiss, a court must construe a “complaint in the light most favorable to [the Plaintiff], accept [the Plaintiff’s] well-pleaded facts as true, and draw all reasonable inferences in [the Plaintiff’s] favor.” Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 504 (7th Cir. 2013 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 879 (7th Cir. 2012)). Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 8 of 52 Opposition to Motion to Dismiss-County 9 That direction becomes heightened when a complaint involves a pro se litigant. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013)( “[I]t is important to keep in mind that even after Twombly and Iqbal, pro se complaints … are to be construed liberally.”). Furthermore, when faced with a deficient complaint, a court may cure the defects through amendment or repleading rather than dismissal. See Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010)( holding that in the event that a complaint is deficient, the court should provide leave to amend to cure the defects, not dismiss). Current pleading doctrine provides: “To survive a motion to dismiss, the complaint must contain enough facts to state a claim for relief that is plausible on its face.” Burke, 714 F.3d at 504 (internal citations omitted). The U.S. Supreme Court recognizes that no bright-line test exists, and thus, a court must apply the standard on a case-specific basis. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)("[D]etermining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense."). Pro se situations apparently broaden this flexible standard. See Turley, 729 F.3d at 651. Thus, at the pleading stage, the Plaintiff must tell a plausible story. See, e.g., Iqbal, 556 U.S. at 678; Bissessur v. Indiana University Bd. of Trustees, 581 F.3d 599, 603 (7th Cir. 2009); SJ Properties Suites v. Specialty Finance Group, LLC, 864 F. Supp. 2d 776, 781 (E.D. Wis. 2012)( quoting Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010)). The plausibility standard does not require that the Plaintiff plead every possible fact. Kanter v. Barella, 489 F.3d 170, 175 (3d Cir. 2007) . Furthermore, the Rules of Civil Procedure and adopted forms specifically provide for brevity. See F.R.C.P. 8(d)(1) (“Each allegation must be simple, concise, and direct. No technical form is required.”); see also Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 346-47 (2014)(per curiam)(noting the requirement of a “short and plain statement”). Furthermore, the Plaintiff’s burden does not hinge on probability. See Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012) (Easterbrook, C.J.); Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009)(“In Twombly, ‘[t]he Court was careful to note that this did not impose a probability requirement on plaintiffs: 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 9 of 52 Opposition to Motion to Dismiss-County 10 unlikely.'’”). That is, the plausibility test applies to the facts plead, see Iqbal, 556 U.S. at 677-78, and not the probability of obtaining ultimate relief. See Bell Atlantic v. Twombly, 550 U.S. 544, 556-57 (2007); Richards, 696 F.3d at 637; Brooks, 578 F.3d at 581. Put simply, a motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. E.g., Yellow Cab Co. v. City of Chicago, 3 F.Supp.2d 919, 921 (N.D. Ill., 1998); Demitropoulos v. Bank One Milwaukee, N.A., 915 F.Supp. 1399, 1406 (N.D.Ill.1996) (citing Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990)). A court should not dismiss a complaint even if a plaintiff states an imperfect legal theory. See Johnson, 135 S. Ct. at 346-47 (failure to invoke § 1983 while pleading sufficient facts for plausibility is not grounds for dismissal)1; Lada v. Wilkie, 250 F.2d 211, 215 (8th Cir. 1957)(“The plaintiff's complaint is not a clear, concise and definite statement of their claim. As the District Court ruled, part of the relief which they demanded the court could not possibly grant. The question, however, was not whether all of the relief asked for by the plaintiffs could be granted, but whether…, they could be accorded any relief.“). Therefore, to the extent that the Amended Complaint may state imperfect legal theories, the court should grant leave to amend or to replead, not dismiss. When requesting leave to amend, a Plaintiff may include information demonstrating the ability to cure deficiencies in the pleadings, and a court should “freely give leave to amend.” Carmody v. Bd. of Trustees of Univ. of Illinois, 747 F.3d 470, 480 (7th Cir. 2014) (“a district court should freely give leave to amend to cure curable defects, at least where there is no undue delay or undue prejudice to the opposing party, but the court can reasonably expect a party asking for an opportunity to amend to identify how he proposes to cure the defects. “). 5 Procedural Status The Plaintiff attempted to resolve the dispute amicably and without resort to the courts. Amend. Comp. ¶36-38 (first seeking reassignment then severance). Plaintiff was twice in 1 Johnson specifically bifurcates the pleadings analysis between facts, governed by Iqbal and Twombly, and pleading theories. See Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 346-47 (2014)(per curiam). Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 10 of 52 Opposition to Motion to Dismiss-County 11 January 2016 told that no “mechanism” existed to provide severance without a lawsuit. Amend. Comp. ¶¶ 37, 38. After receipt of Waivers of Service and brief preliminary correspondence, Plaintiff initiated a telephone conference call with Defendants’ Counsel on July 12, 2016. Plaintiff raised the option for settlement as consistent with the “no mechanism” conversations. Plaintiff forwarded a settlement offer to all Defendants on July 19, 2016. Defendants rejected the offer, without counter, and expressed intent to move for dismissal instead. Reviewing the original complaint, the Plaintiff proactively filed an Amended Complaint on July 25, 2016, and included additional, individual parties to forestall dismissal for failure to name individuals. Defendants filed a 26-page Motion to Dismiss on all counts on August 5, 2016. 6 Summary of Factual Background In just the last five years, at least five University of Wisconsin Extension faculty members left faculty appointments in Grant County after very short stays. Amend. Comp. ¶ 58. Three, including Plaintiff, left the same faculty position and at least one other former faculty member raised concerns similar to Plaintiff’s concerns. Amend. Comp. ¶ 58. University of Wisconsin Extension Administration admit a history of serious problems with Grant County’s treatment of faculty. Amend. Comp. ¶ 33. In part, those serious problems arise from Grant County demanding that Extension professors spend significant time administrating county budgets and directing county administrative programs rather than assisting communities with educational programming See, e.g., Amend. Comp. ¶ 29. This forces employees, such as Plaintiff, into a Hobson’s Choice: lie about the professor’s work, and be subject to dismissal by the employer for failing to follow state policy (or worse), or be forced to leave the faculty appointment after Grant County engages in a campaign of bullying, intimidation, abuse, defamation, and manufactured “issues” in an attempt to coerce “cooperation.” See Amend. Comp. ¶ 29, 30, 33, 34, 35, 49-51. While this is a complex case, Plaintiff alleges at least three primary grounds for Defendant liability: Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 11 of 52 Opposition to Motion to Dismiss-County 12 1. retaliation related to reporting the significant diversion of educational programming resources to provide county administrative tasks; 2. overt discrimination against faculty from out-of- state; and 3. discrimination related to whom the faculty member was working with, including protected classes and impermissible political patronage. 6.1 Pled Facts Summary Plaintiff was hired by the University of Wisconsin Extension as an assistant professor on a five-year renewable contract pending statutory tenure to deliver educational programming in Grant County, Wisconsin. Amend. Comp. ¶¶ 17, 21. Plaintiff and Defendants specifically discussed the mutual desire for a 10-15 year commitment and tenure objectives. Amend. Comp. ¶ 19. In good faith reliance, Plaintiff closed two businesses, withdrew as a finalist from a competing position, and moved, along with family, from Pennsylvania to Wisconsin. Amend. Comp. ¶ 17. Plaintiff formally started the faculty position on July 1, 2015. The dream job quickly became a nightmare. First, just 12 days after starting the job, the State of Wisconsin summarily terminated statutory tenure, Amend. Comp. ¶ 25. Statutory tenure was a core understanding when negotiating the faculty appointment. Amend. Comp. ¶ 22-24. At the same time, the State of Wisconsin affected a substantial budget cut with direct effects on the University of Wisconsin Extension and Plaintiff’s faculty appointment. See Amend. Comp. ¶ 26. As a result of the budget cut, the Dean of Extension specifically instructed faculty to re-focus educational programming. Amend. Comp. ¶ 28. Furthermore, the Chancellor of Extension personally visited Grant County to discuss “regionalization” of Extension faculty and changes to educational programming. Amend. Comp. ¶ 27 (the implication was that faculty would no longer be county-specific). Second, Plaintiff quickly intuited that the faculty appointment to deliver educational programming in Grant County largely involved county administrative tasks-not the educational programming. E.g., Amend. Comp. ¶¶ 29, 32-34, 65. Instead of educational programming, Grant County actors and reputed actors bullied, threatened, and harassed faculty to provide significant county administrative tasks. Amend. Comp. ¶ 34. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 12 of 52 Opposition to Motion to Dismiss-County 13 Those tasks were in direct violation of state policies as confirmed by Extension Administration. Amend. Comp. ¶ 33. The tasks also violated direction from senior administration to re-focus educational programming, Amend. Comp. ¶ 28, and appear to conflict with law regarding funding for the educational programming and reporting requirements. Amend. Comp. ¶ 65. The latter issues created a formidable problem for Plaintiff. Plaintiff reasonably understood that the administrative demands were against state and federal law that designated funding for Extension-related educational programming. See Amend. Comp. ¶¶ 32-34, 65. Plaintiff was being forced to claim that Plaintiff was working on educational programming as specified by state and federal funding programs when in fact a substantial amount of Plaintiff’s time was being demanded to deliver administrative support for county programs. Amend. Comp. ¶ 65.2 This was at a time of heightened scrutiny of such programming as stated by the Dean. Amend. Comp. ¶ 28. To provide some perspective, Plaintiff alone was responsible for approximately $192,000 of county budget, Amend. Comp. ¶ 29-in direct violation of state policies that Plaintiff was required to follow. Amend. Comp. ¶ 33. Plaintiff was not complaining about personal workload, Defs’ M. Dismiss, 19; Plaintiff informed appropriate supervisory authority of the series issues that unaddressed could lead to Plaintiff’s dismissal (e.g., misreporting time and knowingly failing to follow policies and the law). See, e.g., Amend. Comp. ¶¶ 32-33, 35. The conflict was not merely theoretical for Plaintiff. Angry at the refocusing of educational programming, with no prior notice to Plaintiff and just six weeks into the faculty appointment, Grant County actors, and reputed actors, approached the County’s Human Resources Office to terminate Plaintiff’s employment in retaliation. Amend. Comp. ¶ 33. 2 Plaintiff seeks leave to amend to specify the magnitude such as demands such as demanded at the October 2015 Ag & Extension Meeting where the County specifically directed Plaintiff to spend 40% time administrating just the County’s tourism program- compounding the dilemma for the Plaintiff, a program where funds were being misdirected as Robert Keeney publicly admitted on March 16, 2016. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 13 of 52 Opposition to Motion to Dismiss-County 14 After several weeks of discussions, Extension Administration and colleagues assured Plaintiff that the County cannot fire a faculty member and affirmed that the County’s demands were contrary to state policy. Amend. Comp. ¶ 33. Extension Administration also confirmed that they knew of issues from prior faculty members. Amend. Comp. ¶ 33. Undeterred, Grant County continued to abuse, harass, bully, and intimidate to coerce compliance. Amend. Comp. ¶ 34. The University of Wisconsin Administration and Human Resources was aware of the dilemma, a Hobson’s Choice between keeping a job or complying with law (and failing to do so, exposing Plaintiff to termination or worse), and did nothing to reign-in the County. Amend. Comp. ¶ 34. Plaintiff contacted Southwest Director Matt Hanson, Extension Administration, in November requesting reassignment to another faculty appointment with Extension “due to the continuing demands to support significant, non-educational programming, in apparent conflict with law and policy, with threats of job loss for “non-cooperation.” Amend. Comp. ¶ 35. No practicable reassignment was available. Amend. Comp. ¶ 36. The situation remained unresolved until March 16, 2016. On March 16, 2016, Plaintiff was scheduled for an annual, self- initiated Faculty Review. Amend. Comp. ¶ 42. Ten minutes before the scheduled Faculty Review, the local, senior faculty member suddenly escorted Plaintiff to a local faculty member’s office where Director Hanson and the senior faculty members disclosed that Grant County actors, and reputed actors, were raising “issues” about Plaintiff. Amend. Comp. ¶ 44. Plaintiff answered questions posed by Hanson. At the same time, the senior faculty member present informed Plaintiff that Robert Keeney, reputed County Board Chair, would participate in Plaintiff’s Faculty Review. Amend. Comp. ¶ 44.3 Robert Keeney is neither a faculty member nor a member of the Grant County Ag & Extension 3 Plaintiff seeks leave to amend to discuss why this was so surprising. This issue had been resolved for all faculty in Grant County, not just Plaintiff, by the Ag & Extension Committee in January 2016 when the Committee voted that due to the enhanced monthly reporting and better communications, spearheaded by Plaintiff, that the Committee no longer needed to participate in “annual reviews.” Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 14 of 52 Opposition to Motion to Dismiss-County 15 Committee tasked by statute with oversight. Amend. Comp. ¶ 43; Wis. Stat. § 59.56(3). Plaintiff and those present discussed the situation and Plaintiff elected not to proceed with the Faculty Review consistent with state policy. Hanson then threatened the possibility of Plaintiff losing the faculty appointment due to the County exercising its so-called 60-day clause. Amend. Comp. ¶ 44. Plaintiff attempted to defuse the situation by staying in Plaintiff’s office (to address a prearranged conference call) but requested to be present if Plaintiff’s situation was being further discussed. See Amend. Comp. ¶ 44. With no notice, two hours later, Hanson summoned Plaintiff to the conference room to discuss “Plaintiff’s continuing ‘with the County and Extension.’” Amend. Comp. ¶ 45. Hanson repeated the questions previously discussed in the closed door meeting. Amend. Comp. ¶ 46. Plaintiff remained respectfully silent. Amend. Comp. ¶ 47.4 Hanson then turned questioning over to Robert Keeney. Keeney admitted that no material issues existed with the Plaintiff, recognized Plaintiff’s work, and indicated knowledge of the challenges posed by the recent budget cuts on Extension necessitating changes. Amend. Comp. ¶ 49. However, Keeney then insinuated that Plaintiff submitted an improper invoice for educational programming to the County. Amend. Comp. ¶ 49. The local supervisory faculty present immediately and vocally opposed the insinuation and absolutely denied Keeney’s allegation. See Amend. Comp. ¶ 50. Keeney knew this claim was false because he received two, prior, written notices of the educational programming associated with the invoice at public meetings (without question); the Plaintiff received significant monetary support of that educational programming by the Plaintiff’s educational program area validating the programming; the County Department Co-Chairs approved the educational programming; and the same Robert Keeney had previously approved the invoice, after his personal review, without question. Amend. Comp. ¶ 51. This demonstrates the County’s, 4 Plaintiff seeks leave to amend, if necessary, to describe the whole context. This was not a defiant or petulant act. Plaintiff and state defendants were aware that Plaintiff was only there to observe, not to participate. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 15 of 52 Opposition to Motion to Dismiss-County 16 and reputed county actor’s, propensity to manufacture “issues” out of whole cloth. Keeney never apologized even after being soundly refuted. See Amend. Comp. ¶¶ 50-51. Two days later, Plaintiff left for a pre-scheduled vacation. Amend. Comp. ¶ 44. Over the next two weeks, Plaintiff had discussion with faculty representatives regarding the situation, and the futility of the Faculty Grievance process became apparent-especially because such a grievance as an internal procedure would do nothing to counter the job allegations or address the county. Amend. Comp. ¶ 53. About a week after return from the pre-scheduled vacation, Plaintiff submitted written notice to Hanson stating that Plaintiff could “no longer continue providing services.” Amend. Comp. ¶ 55. 6.2 Retaliation for Speaking About Diversion of Educational Programming Services to Fulfill County Administrative Programs The attempted “firing” by the County in August 2015 was in direct retaliation for Plaintiff attempting to address the significant diversion of educational programming resources to county administrative programs. See Amend. Comp. ¶¶ 29-33. Not happy with the failed attempt to threaten Plaintiff, Defendants continued a campaign of harassment, administrative demands (knowing improper), bullying, and general intimidation to coerce compliance. Amend. Comp. ¶ 34. Up to March 16, Keeney also alluded to the ongoing “issues” related to the need to tighten educational programming, the pending regionalization of Extension (which would undermine the county administrative demands as faculty were spread across counties), and the ongoing retaliation related to the diversions. See Amend. Comp. ¶¶ 44, 46, 49, 50. 6.3 Retaliation and Discrimination Against Out-of- Staters (Privileges and Immunities Clause) Part of that revolving door in Grant County arises from discrimination against out-of-staters such as Plaintiff. Amend. Comp. ¶ 72. Plaintiff was recruited and moved from Pennsylvania. Amend. Comp. ¶¶ 21, 23-24. As two examples, with Extension Administration’s support, a “local” was selected to fill one of the faculty positions vacated by another out-of-state faculty member. Amend. Comp. ¶ 41. Defendants also made specific comments about only hiring Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 16 of 52 Opposition to Motion to Dismiss-County 17 locals, which in full context, plainly illustrates discriminatory animus. Amend. Comp. ¶ 41. Plaintiff also encountered first- hand the “not one of us” retaliation and discrimination. The examples should be sufficient to illustrate that the alleged discriminatory animus was real, plausible, and puts Defendants on notice. With leave to amend, Plaintiff can document other instances of Defendant comments about out- of-staters and correlation with retaliation if necessary at pleading. 7 Count I: Due Process If necessary, Plaintiff seeks leave to amend and replead to include all Due Process Claims against Defendants consistent with this section. 7.1 Plaintiff alleges Due Process claims including due process and violations of specific provisions of the Bill of Rights. Defendants allege that the Due Process claim must fail because the pleadings do not sufficiently show that Grant County or Robert Keeney did anything to deprive Plaintiff of Due Process. Defs’ M. Dismiss, 7-8. The pleadings plausibly argue that Defendants’ manufacturing “issues,” making excessive administrative demands, participation in the March 16 Event, and attempt to “fire” Plaintiff without any authority or justification just six weeks after assuming the appointment plausibly raises Due Process liability because the Defendants were the but-for cause of the loss of employment and active participants. E.g. Amend. Comp. ¶ 30. A county and county actors are state actors, see, e.g., Black, 369 Wis. 2d at ¶ 23); and not subject to qualified immunity. See Kara B. by Albert v. Dane Cty., 198 Wis. 2d 24, 42-43 (Wis. Ct. App. 1995), aff'd, 205 Wis. 2d 140 (1996). Thus, Grant County, and to the extent that Robert Keeney is a member of the Grant County Board, can be held liable for Due Process violations. For a Plaintiff to prevail, the Plaintiff need not state the precise Due Process Theory. See, e.g., Schacht v. Wisconsin Dep't of Corr., 175 F.3d 497, 501 (7th Cir. 1999)(“exact due process theory” not necessary). The Wisconsin Supreme Court summarized: Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 17 of 52 Opposition to Motion to Dismiss-County 18 In other words, a person bringing a section 1983 claim under the Due Process Clause can base this claim on an alleged violation of a specific provision in the bill of rights, on an alleged violation of substantive due process, or on an alleged violation of procedural due process. Black v. City of Milwaukee, 369 Wis. 2d 272, ¶ 41, 882 N.W.2d 333 (Wis. 2016)(pet. certiorari granted, Sept. 23, 2016). Defendants try to apparently narrow the Due Process claim to an issue of mere perfunctory notice. Defs’ M. Dismiss, 7. Due process requirements are far broader. The Due Process Clause of the Fourteenth Amendment “prohibits a state from depriving ‘any person of life, liberty, or property without due process of law.’” … Both this court and the Supreme Court of the United States recognize that three types of section 1983 claims may be brought against a state under the Due Process Clause: (1) Plaintiffs may bring suit under sec.1983 for state officials' violations of their rights under a specific provision in the Bill of Rights; (2) The Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions (these are commonly known as substantive due process rights); and (3) An action may be brought under sec.1983 for a violation of procedural due process. Casteel v. McCaughtry, 176 Wis.2d 571, 578 (1993) (citing Zinermon v. Burch, 494 U.S. 113, 125 (1990))(internal citations omitted); see also U.S. Const. amend. XIV. Plaintiff alleges Due Process claims for at least procedural due process and also actionable deprivations under the Bill of Rights such as Speech (and with leave to replead, Freedom of Association and political patronage). Furthremore, liability arises because the Plaintiff plausibly alleges that Defendants actively participated in at least one procedural due process violation when Keeney participated in “questioning” the Plaintiff on March 16. Amend. Comp. ¶¶ 42- 51. Keeney also went further and manufactured a claim of financial misconduct knowing that this claim was false and without any prior notice. Amend. Comp. ¶¶ 50-51. One can also plausibly infer procedural due process infractions, for example, Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 18 of 52 Opposition to Motion to Dismiss-County 19 by Defendants when trying to fire Plaintiff just six weeks into a faculty appointment, without any notice, and without hearing. Amend. Comp. ¶ 30. Plaintiff found no authority holding that the fact that the attempted firing failed somehow mitigates Due Process liability. Furthermore, Plaintiff alleges specific violations by Defendants of the First Amendment. See Casteel, 176 Wis.2d at 578; see also, infra, Section 10 (Count IV: Hostile Work Environment) and Section 12 (Count VI: Speech Retaliation). Plaintiff alleges that Defendants repeatedly retaliated against Plaintiff for speaking out about significant misdirection of government funds. Amend. Comp. ¶¶ 28 (Dean directing faculty to re-focus educational programming), 29 (notice to employer of program violations), 30 (Defendants attempt to fire Plaintiff without notice), 33 (administration confirms county, administrative, financial activity violates state policy), 34 (retaliation by county). These are specific and plausible facts showing alleged Due Process violations. Therefore, Defendants’ Motion must fail on this count. If the court cannot infer plausible factual basis for the claims, Plaintiff seeks leave to amend and replead to cure by adding specific averments such as the excessive quantity of work demanded by the county, at least 40% time, the statements made by county actors and reputed actors in September and October to limit Plaintiff’s faculty role, and additional counts of Due Process violations. 7.1.1 Plaintiff asserts an actionable property right in Plaintiff’s employment contract and employment. First, Plaintiff asserts a property right in the faculty contract. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 578 (1972)(no property in re-employment, but property interest in faculty appointment). Roth expressly states that no property right exists for re-employment because the contract does not require renewal, but nevertheless shows a property right in the active faculty appointment itself by comparing the faculty appointment with a welfare recipient’s property interest in welfare payments. Roth, 408 U.S. at 578. Plaintiff notified Extension Administration of the inability to continue to provide services prior to any renewal and thus asserts a claim against the faculty appointment. Amend. Comp. ¶ 55. See also, Amend. Comp. ¶ 44 (inference that a renewal of faculty appointment would be in the future). Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 19 of 52 Opposition to Motion to Dismiss-County 20 However, Plaintiff also raises a distinction in the instant case and cases such as Roth. “A property interest in employment can, of course, be created by ordinance, or by an implied contract.” Bishop v. Wood, 426 U.S. 341, 344 (1976) (emphasis added). Plaintiff specifically avers that Plaintiff had a reasonable expectation of renewal because the employer and Grant County, and reputed Grant County actors, specifically sought someone to serve for “10 to 15 years” as a condition of employment. Amend. Comp. ¶¶ 19, 22-23. With leave to amend, Plaintiff will also aver that renewal was the common practice of Extension. Also, “[a] public employee who can be fired only for good cause has a property interest in his or her job and may be deprived of that property interest only with due process of law.” Carmody, 747 F.3d at 474. The UWEX Faculty Policies and Procedures, Chapter 4, plainly states: Any faculty member, tenured or probationary, may be dismissed only by the Board and only for just cause, after preferment of charges by the Chancellor, due notice, and opportunity for hearing by the Faculty Hearings Committee. UWEX Faculty Policies and Procedures, 4.02, available at http://www.uwex.edu/human-resources/policies/UW- Extension-Faculty-Chapter4.pdf (emphasis added). A faculty member can only be dismissed for “just cause” and thus raises an actionable property interest. The “just cause” or “good cause” language becomes important in this case. See, e.g., Chaney v. Suburban Bus Div. of Reg'l Transp. Auth., 52 F.3d 623, 630-31 (7th Cir. 1995)(“The CBA allows termination only for “sufficient cause,” and that standard is sufficiently well defined in the law so as not to suffer from any constitutional infirmities.”). Put simply, Defendants’ had no “just cause” for seeking dismissal of Plaintiff, as recounted in detail in the facts, and thus a Due Process claim arises. See, e.g., Chaney, 52 F.3d at 630-31. 7.1.2 Plaintiff asserts a property right arising from attacks on Plaintiff’s “good name, reputation, honor, and integrity.” Plaintiff asserts a property right in Plaintiff’s “good name, reputation, honor, and integrity.” Roth, 408 U.S. at 573(extensive citations omitted). While defamation alone Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 20 of 52 Opposition to Motion to Dismiss-County 21 cannot support a Due Process claim, defamation along with some type of change in status can-such as an adverse employment action. Paul v. Davis, 424 U.S. 693, 708-09 (1976). Paul v. Davis further distinguishes cases, such as Roth, where the state simply fails to re-hire a faculty member from cases where a no-rehire includes a charge against the faculty member that would impair future employment. See Paul, 424 U.S. at 709-10 (citing Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). Furthermore, Paul v. Davis and Roth both imply that a Due Process deprivation of a property interest occurs when the state actors create a “stigma.” Paul, 424 U.S. at 709(“ The State, In declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. . . .”); see Roth, 408 U.S. at 573(“The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge….”). In the instant case, the Plaintiff is left with a serious blot on an otherwise stellar professional record that must be explained to future employers-a quintessential example of an impermissible stigma. See Paul, 424 U.S. at 709; Roth, 408 U.S. at 573. Defendants’ manufactured “issues” created an actionable stigma by insidiously or overtly implying that a faculty member was not doing the job, was engaged in improper conduct, was a troublemaker, or was involved in financial impropriety. That led directly to Plaintiff’s constructive discharge on March 16, 2016, without Due Process and is actionable as a property interest. See Strozinsky v. Sch. Dist. of Brown Deer, 237 Wis. 2d 19, 56, 614 N.W.2d 443 (2000). 7.1.3 Because no post-termination procedure exists, Loudermill may not apply because Loudermill presupposes robust post-termination procedures making Defendants’ actions per se violations of Due Process. The facts in this case raise serious question whether we even get to the pre-termination notice requirements under Loudermill. The Loudermill Pre-Termination Notice requirements fundamentally presuppose robust post termination Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 21 of 52 Opposition to Motion to Dismiss-County 22 procedures. E.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985)(“Our holding rests in part on the provisions in Ohio law for a full post-termination hearing.”); Carmody, 747 F.3d at 474-76474-76 (“The nature and extent of the process a public employee is due before termination depend on the adequacy of any post-termination hearing that was available.”); Staples v. City of Milwaukee, 142 F.3d 383, 385 (7th Cir. 1998)(“[employee] entitled to a very limited hearing prior to his termination, to be followed by a more comprehensive post-termination hearing.”); Chaney, 52 F.3d at 630 (“Due process requires only ‘abbreviated pre-termination processes where full post-deprivation processes are available.’”). In the instant case, no robust post-termination process exists. Plaintiff was constructively “finished” as a faculty member on March 16, 2016.5 The court can infer such from the post-March 16 events. Amend. Comp. ¶¶ 52-57. Troublingly, there was no post-event hearing; there was no effective appeal. See, generally, Amend. Comp. This is a very troubling practice in Extension where non-renewal and the so- called 60-day clause become abused by extension to constructively discharge faculty without appeal and without Due Process (this misreads Roth). See Roth, 408 U.S. at 573-74. Also, Plaintiff avers that Human Resources, aware of the overall situation, e.g., Amend. Comp. ¶ 38, did nothing to intervene. Amend. Comp. ¶ 57.6 Therefore, Loudermill Hearing procedures raised by Defendants, Defs’ M. Dimiss, 7-8, may not even apply on these facts because there was no post-termination process as Loudermill fundamentally requires as a predicate for the limited notice provisions. See, e.g., Loudermill, 470 U.S. at 546; Chaney, 52 F.3d at 630. 5 Plaintiff seeks leave to amend to allege a euphemistic term for this type of situation called being “assigned to the 73rd county.” 6 Plaintiff seeks leave to amend to show that Human Resources did not even conduct an exit interview, let alone any procedural process. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 22 of 52 Opposition to Motion to Dismiss-County 23 7.1.4 Under Loudermill, Plaintiff did not receive constitutionally adequate notice of an adverse employment action when Defendants gave only seconds “notice” when Plaintiff prepared for a scheduled Faculty Review, not an adverse employment action. Notice and opportunity to be heard are fundamental to Due Process. More so, Due Process requires meaningful notice and meaningful opportunity to be heard before deprivation of liberty or a property right. See, e.g., Boddie v. Connecticut, 401 U.S. 371, 378 (1971)(citing Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965) and Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); Riano v. McDonald, No. 15-2043, at *3 (7th Cir. Aug. 17, 2016), available at http://media.ca7.uscourts.gov/cgi- bin/rssExec.pl?Submit=Display&Path=Y2016/D08-17/C:15- 2043:J:Williams:aut:T:fnOp:N:1812376:S:0. An employer must provide a meaningful opportunity to be heard, prior meaningful notice, and oral or written charges. Loudermill, 470 U.S. at 546(procedure does not need to be formal but must be meaningful, deprived party must be given opportunity to present reasons and be notified in writing of the charges); Carmody, 747 F.3d at 475 (notice can be oral but must be meaningful). The purpose of such procedures is the common sense avoidance of mistakes at a point prior to termination and prior to post-termination proceedings. Carmody, 747 F.3d at 475-76(“ The [Supreme] Court's observation is also consistent with what has been shown by decades of behavioral research: once an individual or group has made a decision to take a particular course of action, it becomes harder and harder to change course, even in the face of powerful conflicting evidence and reasons.”) The University of Wisconsin Extension also provides comprehensive and specific policies regarding removal of a faculty member. See UWEX Faculty Policies and Procedures, Chap. 4, Procedures for Dismissal, available at http://www.uwex.edu/human-resources/policies/UW- Extension-Faculty-Chapter4.pdf; see also Loudermill, 470 U.S. at 545-46(citing need to follow procedures). Those controlling policies require: Any faculty member, tenured or probationary, may be dismissed only by the Board and only for just cause, after preferment of charges by the Chancellor, due Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 23 of 52 Opposition to Motion to Dismiss-County 24 notice, and opportunity for hearing by the Faculty Hearings Committee. UWEX Faculty Policies and Procedures, Chap. 4, Procedures for Dismissal, 4.02 (emphasis added). County Defendants complied with none of the requirements for removal such as formal charges-instead, they collaterally attacked by making outlandish and unsupported charges of “issues” to affect a constructive discharge without Due Process after their attempt to directly fire Plaintiff failed. See Amend. Comp. ¶ 30. 7.1.5 Even if Loudermill applies, Defendants did not comply with Loudermill because the only scheduled event was a Faculty Review, not an adverse employment action. Defendants assert that Plaintiff received procedural Due Process because Plaintiff received “notice” of a potential adverse employment action before the hearings on March 16, 2016. Def. Mot. Dis. 8. Respectfully, Defendants conflate the facts and omit the quintessential requirements of Loudermill- meaningful notice and meaningful opportunity to respond. See Mathews v. Eldridge, 424 U.S. 319, 334 (1976); Carmody, 747 F.3d at 474-76 (7th Cir. 2014); Staples, 142 F.3d at 476(detailed analysis of surprise and notice requirements as failing Loudermill); Chaney, 52 F.3d at 630 (holding that even though the pleadings recited an alleged hearing and notice, complaint survives Motion to Dismiss). Often left out of Loudermill discussions, and related to surprise as a defect, is the requirement that the employee be fully informed of what the charges are to affect the meaningful opportunity to respond. Loudermill, 470 U.S. at 546. That simply did not happen according to the pleadings-there were vague, manufactured issues, where none had anything to do with terminating employment or “just cause” for an adverse employment action, and tellingly none were raised by Keeney when later confronted by Hanson. See Amend. Comp. 44, 47- 48. Put simply, Plaintiff had no reasonable idea what was going on that morning-as the pleadings outline. The surprise occurred on multiple levels. Amend. Comp. ¶¶ 42, 44, 46, 48, 50-51 (timing, seconds “notice,” unclear what the issues were, knowing violations by administration of state policies, scheduled Faculty Review suddenly turned into an adverse employment action, etc.). As the pleadings plausible show, Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 24 of 52 Opposition to Motion to Dismiss-County 25 Plaintiff showed up for work excited about the scheduled Faculty Review to be suddenly dragged into a crowded office with senior Extension employees, told there were new “issues,” discussed the issues, none which were even remotely grounds for discharge,7 and then was threatened by Hanson with the so-called 60-day clause-the Plaintiff still does not know why. Nowhere does Plaintiff allege any disciplinary or other adverse employment actions by Plaintiff’s employer prior to March 16, 2016, that gave Plaintiff any notice of any adverse employment action scheduled for or even anticipated for March 16. See, e.g., Loudermill, 470 U.S. at 535(school employee notified he lied about prior felony on employment application); Staples, 142 F.3d at 384 (7th Cir. 1998)(fistfight with another employee led to termination); Gilbert v. Homar, 520 U.S. 924, 926-28 (1997)(noting prior disciplinary action against the employee);. There are no pled facts because there weren’t any disciplinary or any other adverse employment actions. See Amend. Comp. ¶ 34 (no actions), 57 (no actions). Surprise is fatal to Due Process under Loudermill. See, e.g., Loudermill, 470 U.S. at 546(implication that full knowledge of charges necessary); Carmody, 747 F.3d at 475-76 (7th Cir. 2014)(bait-and-switch of hearing topics defective); Staples, 142 F.3d at 476(detailed analysis of surprise as failing Loudermill). Put simply, and assessing the entire pleading, March 16 was a series of surprises, and thus fails Due Process requirements under Loudermill. 7.1.6 Defendants’ fabricating “issues” with Plaintiff and participation in the “hearings” were the but-for cause of Plaintiff no longer being employed with the University of Wisconsin Extension. Defendants try to escape liability by alleging that somehow they did not “take any action to deprive Plaintiff of a property 7 If the court needs at pleading, Plaintiff seeks leave to amend to detail what these so-called “issues” were. None were even remotely grounds for dismissal; they were not even reasonable issues. 8 With leave to amend, Plaintiff will specifically aver that the exact opposite was true. Plaintiff’s employer was very happy with Plaintiff’s performance and impressed by Plaintiff’s exceptional ability to effectively work with community members. Only Grant County actors, or reputed actors, alleged any “issues” in retaliation, inter alia, for Plaintiff’s being open and honest about educational programming. See Amend. Comp. ¶ 30, 34, 44-51. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 25 of 52 Opposition to Motion to Dismiss-County 26 interest.” Defs’ M. Dismiss, 7-8. The Amended Complaint plainly states otherwise as do all obvious inferences. Amend. Comp. ¶¶ 29, 30, 34, 41, 44, 46, 49, 50. Plaintiff plainly argues that Defendants, and perhaps John and Jane Does, were the but-for cause of Plaintiff’s no longer being employed as a faculty member with the University of Wisconsin Extension. E.g., Amend. Comp. ¶¶ 30, 34. Their actions alone led to the March 16, 2016, event, constructive discharge, and Plaintiff’s no longer being employed as a professor. That’s actionable- especially in light of Plaintiff’s averring that Plaintiff was at least the fifth faculty member to leave Grant County in just five years and averring at least one other raising similar issues. Amend. Comp. ¶ 58. County-related Defendants cannot escape liability by pointing fingers at the State and stating that “we, the county, didn’t deprive of Due Process.” Due Process means something more than empty motions. State actors conspiring to violate constitutional rights can be held liable. Lechnir v. Wells, No. 14- C-1020, at *7 (E.D. Wis. June 29, 2015)(citing Walker v. Thompson, 288 F.3d 1005, 1007-08 (7th Cir. 2002)), available at https://casetext.com/case/lechnir-v-wells. A county and county actors are state actors, see, e.g., Black, 369 Wis. 2d at ¶ 23). The County Defendants were, again, the direct but-for cause of the loss of employment without Due Process by making up “issues” and trying to “fire” Plaintiff in August. Furthermore, Keeney actively participate in the March 16 Event and Due Process violations that day. See Amend. Comp. ¶¶ 50-51. At pleading, Plaintiff paints a plausible set of facts showing direct collaboration and involvement leading to Due Process violations. 7.1.7 Plaintiff seeks leave to amend to correct the pleading reference to “a” hearing. Plaintiff seeks leave to amend to correct a pleading error in light of the Loudermill Analysis. The Plaintiff pleads three incidents on March 16: 9 One of the frustrations, and thus reason for the Amended Complaint with John and Jane Does 1-25, is that Defendants did not always fully disclose which County actors or reputed actors were manufacturing “issues.” Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 26 of 52 Opposition to Motion to Dismiss-County 27 1. Plaintiff was only scheduled for a self-initiated Faculty Review by faculty, Amend. Comp. ¶ 42; 2. ten minutes before the Faculty Review, State Defendants suddenly pulled Plaintiff into an office and asked Plaintiff about new “issues” raised by the County instead of the Faculty Review, Amend. Comp. ¶ 44, 45; and 3. about two hours later, with seconds notice, a sua sponte “hearing” involving Robert Keeney and others, Amend. Comp. ¶ 46-51. Considering Loudermill, Incident 2 also, assuming Loudermill even applies, constitutes a hearing. See Loudermill, 470 U.S. at 545(formality not required). Plaintiff fully participated in Incident 2 and soundly refuted the “issues.” See Amend. Comp. ¶ 44 (“Plaintiff answered questions posed by the Southwest Regional Director and supervisors in the closed-door meeting.”).10 7.2 Plaintiff’s ‘voluntary quit’ does not cure Defendants’ Due Process violations. Several times, Defendants state that Plaintiff quit or resigned from the faculty employment. See Defs’ M. Dismiss, 7 (“Brown alleges in no uncertain terms that he resigned.”), 8, 11 (suggesting that quitting somehow forecloses Plaintiff’s claim), 22 (tortious interference). The Defendants suggest, without citing any authority, that Plaintiff’s notifying the employer of being “unable to continue to deliver services” somehow absolves Defendants from liability. See id. Plaintiff found no authority for such a disturbing proposition-in fact, just the opposite. See Strozinsky, 237 Wis. 2d at 25-34, 55-64. First, the Amended Complaint never states that Plaintiff submitted a resignation. See, generally, Amend. Comp. The Amended Complaint plainly and purposefully states: “…Plaintiff submitted written notice to the University of Wisconsin Extension Administration stating that Plaintiff could no longer continue providing services.” Amend. Comp. ¶ 55. The pleadings must be construed in light most favorable to the Plaintiff with all such inferences. Burke, 714 F.3d at 504(citing 10 In the event the court requires additional detail, Plaintiff seeks leave to amend to specifically aver what these so-called “issues” were and to aver that these were petty “complaints.” None even remotely warranted termination. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 27 of 52 Opposition to Motion to Dismiss-County 28 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); McReynolds, 694 F.3d at 879. There must be a reason for this wording. Plaintiff did not submit a letter of resignation. Plaintiff merely provided notice that Plaintiff could not continue providing services under the contract. Amend. Comp. ¶ 55. As will become evident during discovery, these facts become material when considering the subsequent actions of Plaintiff’s employer and who initiated those actions. Plaintiff pleads that Human Resources did not intervene at that point, see Amend. Comp. ¶ 57, and that Defendant Hanson, who was already under investigation for a Grievance, himself processed the notice. See Amend. Comp. ¶¶ 52, 53, 56. Second, Wisconsin law plainly recognizes that not all “voluntary quit” situations are in fact voluntary. See Wis. Stat. § 108.04(7)(b) (permitting unemployment compensation in cases of voluntary quit for good cause). In this statute, “good cause” includes, but is not limited to, a request, suggestion or directive by the employing unit that the employee violate federal or Wisconsin law…” Wis. Stat. Ann. § 108.04(7)(b); see also Kierstead v. Labor & Indus. Review Comm'n, 341 Wis. 2d 343, 351 (Ct. App. 2012)(”Good cause attributable to the employer means ‘some act or omission by the employer justifying the employee's quitting; it involves ‘some fault’ on the part of the employer and must be ‘real and substantial.’’”). While this case does not involve unemployment law, Wisconsin law recognizes that not all situations that appear as a “voluntary quit” are truly voluntary. See Strozinsky, 237 Wis. 2d at 56(“The doctrine of constructive discharge recognizes that some resignations are coerced, tantamount to a termination.”) Furthermore, Defendants cite no authority for the disturbing proposition that Defendants may somehow benefit from the fruit of their allegedly wrongful actions. 8 Count II: Ex Post Facto Law-Dismissal without prejudice unopposed for named County Defendants. The Plaintiff does not oppose dismissal without prejudice of this count against Defendant Grant County, and against Defendant Robert Keeney. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 28 of 52 Opposition to Motion to Dismiss-County 29 9 Count III: State Impairment of Contracts- Dismissal without prejudice unopposed for named County Defendants The Plaintiff does not oppose dismissal without prejudice of this count against Defendant Grant County, and Defendant Robert Keeney. 10 Count IV: Hostile Work Environment Plaintiff acknowledges that the original hostile work environment claim requires additional pleading rigor and possible repleading. But the underlying issues supporting a cause of action, while imperfectly pled and the wrong legal theory, are plausible and compelling-implying retaliation against employee for the protected-persons with whom Plaintiff worked and political patronage. Leave should be granted because even the current pleading places Defendants on notice, albeit perhaps the wrong legal theory, of a claim related to impermissible retaliation in the workplace. See supra Section 4, Legal Standard (arguing leave should be granted if wrong legal theory cited). 10.1 Plaintiff seeks leave to amend or replead to aver that the hostile work environment allegedly arose from the persons from protected classes that Plaintiff worked with, including a closely related claim of violations of First Amendment Freedom of Association. Plaintiff acknowledges that the hostile work environment claim requires additional pleading rigor and possible repleading. Plaintiff respectfully requests leave to amend or replead due to the challenging nature of the question that Plaintiff poses and the difficulty of fitting the question into current law. Leave to amend or replead in such a situation follows current law. See Johnson, 135 S. Ct. at 346-47 (wrong legal theory does not warrant dismissal); Brooks, 578 F.3d at 581(caution against early dismissal even if remote/novel); Shull v. Pilot Life Ins. Co., 313 F.2d 445, 447 (5th Cir. 1963)(novel legal questions should survive motion to dismiss). The hostile work environment claim arises from the following question: Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 29 of 52 Opposition to Motion to Dismiss-County 30 Can a County state actor be held liable for workplace retaliation, similar to a hostile work environment, when the County retaliates in an employment context against a state employee because of the protected status of the people that the state employee works with in delivering educational programming services? Plaintiff alleges bizarre, but plausible, facts that show retaliatory conduct against Plaintiff. Part of the retaliatory conduct was allegedly due to speaking about misdirection of educational programming to county administrative tasks. E.g., Amend. Comp. ¶¶ 29-34. Part was allegedly due to outright discrimination against faculty from out-of-state. E.g., Amend. Comp. ¶ 41. A third source of the bizarre retaliatory conduct arises from what might best be called a legally-novel aspect of a hostile work environment or workplace retaliatory discrimination. Plaintiff cannot discriminate against persons in protected classes who seek educational programming services. See Adarand Constructors, 515 U.S. at 235. As should be subject to judicial notice, faculty are also expressly required to report compliance with civil rights programming and avoid discrimination. See Expanding Access & Inclusion, Civil Rights, University of Wisconsin Extension Civil Rights, available at https://blogs.ces.uwex.edu/civilrightsleadership/documentati on/. A primary purpose of the hostile work environment and no- retaliation provisions in 42 U.S.C.A. §2000e seeks to prevent harm from discriminatory practices. E.g., Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998) (discussing primary purpose of Title VII prevents discriminatory harm from ever occurring); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (discussing prevention of discrimination from occurring in first place). Plaintiff seeks leave to amend to plead additional facts illustrating the correlation between Plaintiff’s academic-needs- assessment noting potentially underserved educational programming in protected class communities in Grant County including Amish (religion) and Latinos (national origin) and the retaliatory conduct by Grant County such as stating that Plaintiff should not bring “those Madison ideas” to Grant County to help “disfavored” persons. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 30 of 52 Opposition to Motion to Dismiss-County 31 10.2 Plaintiff seeks leave to replead and amend to add a closely related claim of violations of the Constitutional ban on political patronage. Black letter law protects an employee’s First Amendment Right to Freedom of Association by barring government actors from retaliating based on an employee’s political associations. Rutan v. Republican Party of Ill., 497 U.S. 62, 65 (1990); Elrod v. Burns, 427 U.S. 347, 350-60 (1976); Hall v. Babb, 389 F.3d 758, 762 (7th Cir. 2004); see also Foster v. Deluca, 545 F.3d 582 (7th Cir., 2008)(raising political issue, dismissal reversed and remanded for failure to provide Plaintiff with leave to amend without explanation) ; Marshall v. Allen, 984 F.2d 787 (7th. Cir. 1993)(citing Elrod v. Burns, 427 U.S. 347 (1976)). Part of the bizarre situation and retaliation in Grant County allegedly arose from Grant County actors and reputed actors wrongly assuming that Plaintiff belonged to the “wrong” political party. Plaintiff seeks leave to amend to aver that this issue was specifically discussed with Defendant Hanson on the morning of March 16, 2016, during the first hearing in explanation for the County’s bizarre attempts to manufacture “issues” with Plaintiff. See Amend. Comp. 49. Both Adarand Constructors, 515 U.S. at 235 , and state policy, see Expanding Access & Inclusion, University of Wisconsin Extension Civil Rights, require faculty to provide educational services to persons in the county requesting educational programming. Faculty cannot, without violating state policy and the law, discriminate by essentially requiring some type of political loyalty test before providing services. Plaintiff seeks leave to amend to aver that Plaintiff was unaware of the extremely-polarized political situation in Grant County. Plaintiff had only been there weeks before the first retaliatory acts by Grant County. See Amend. Comp. ¶ 30. Plaintiff seeks leave to amend to aver strong correlations between Plaintiff’s educational programming in areas apparently controlled by an “opposition” political party and retaliatory acts by the Ag & Extension Committee who are all reputedly the most extreme members of a different political party.11 Plausibly, politics served as a high motivation, and 11 Plaintiff also seeks leave to amend to add examples such as the bitter political conflict between the Economic, Tourism & Resource Committee and the Ag & Extension Committee. This Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 31 of 52 Opposition to Motion to Dismiss-County 32 impermissible, in the retaliatory actions. Amend. Comp. ¶¶ 29, 32, 33, 34, 38-39. 11 Count V: Whistleblower Retaliation 11.1 According to well-established grammatical rules, Plaintiff pleads a count of federal whistleblower retaliation and a count of state-common-law whistleblower retaliation. Defendants move for dismissal of the whistle-blower retaliation claims because Defendants allege that “[f]ederal law does not provide common law whistleblower protections.” Defs’ M. Dismiss 13. The issue of federal, common law need not be reached because the Plaintiff pleads a federal, whistle- blower claim and a state-common-law whistle-blower claim. See Amend. Comp. ¶ 65; Defs’ M. Dismiss, 13. First, the Amended Complaint states a claim under Count V for “federal and state-common-law whistle-blower retaliation.” (hyphens in original). Amend. Comp. ¶ 65. Defendants directly quote this paragraph. Defs’ M. Dismiss, 13. According to Strunk & White’s, venerable, grammatical text, “[w]hen two or more words are combined to form a compound adjective, a hyphen is usually required.” William Strunk Jr. and E.B. White, THE ELEMENTS OF STYLE, 4TH ED., 34 (2000). Therefore, grammatically, the hyphens combine to create a single adjective-”state-common-law.” The natural and grammatically correct reading of the sentence becomes “federal [whistle-blower] and state-common-law whistle- blower.” Strunk & White specifically cautions against a meaning as suggested by Defendants: “we ask too much of a hyphen when we ask it to cast its spell over words it does not adjoin.” See id. at 35. The Defendants’ reading does precisely this-incorrectly implying that the state-common-law compound adjective applies to the federal portion of the phrase. See Defs’ M. Dismiss, 13. conflict was directly implicated, unknowingly to Plaintiff at the time, in the August attempt to fire Plaintiff. Thus, this is not a speculative or vague request to amend the pleadings-this issue was an impermissible source of the core problems in Grant County. These are also issues that will become very apparent during discover-both in magnitude and severity. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 32 of 52 Opposition to Motion to Dismiss-County 33 11.2 Defendants apparently argue that County Defendants employed Plaintiff and thus a whistleblower count stands against these County Defendants as employer. Defendants imply that Defendants are the Plaintiff’s employer: ““Wisconsin’s employment at-will doctrine generally allows employers to terminate at-will employees for any reason or no reason, with or without cause.) See, e.g., Defs’ M. Dismiss, 13 (citing Strozinsky v. School District of Brown Deer, 2000 WI 97, ¶ 33, 237 Wis. 2d 19, 614 N.W.2d 443)(emphasis added). However, the Plaintiff plainly avers that Plaintiff’s employer was the University of Wisconsin Extension. Amend. Comp. ¶¶ 17, 21 (”The University of Wisconsin Extension hired Plaintiff as an Assistant Professor.”). 11.3 Plaintiff alleges an employment contract exists and therefore Brockmeyer, et al., which rely on At-Will Doctrine, do not conclusively preclude Plaintiff’s claims sounding in employment contract. Plaintiff alleges that an employment contract exists. Amend. Comp. ¶ 21. The contract immediately distinguishes the instant case from the case law cited by Defendants that relies on At- Will Employment Doctrine to establish the public policy exception. Bammert v. Don's Super Valu, Inc., 254 Wis. 2d 347, 350-51, 646 N.W.2d 365 (2002) (citing public policy exception to at-will employment terminations; “Bammert was an at-will employee. In general, at-will employees are terminable at will, for any reason, without cause and with no judicial remedy. Whether Bammert has an actionable claim for wrongful discharge turns on the question of whether the public policy exception to the employment-at-will doctrine….”); Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 663-65, 571 N.W.2d 393 (1997)(citing concerns with courts interfering with at-will employment terminations as basis for a “narrow” exception); Bushko v. Miller Brewing Co., 134 Wis. 2d 136, 146-52, 396 N.W.2d 167 (1986) (discussion of At-Will Doctrine as underlying the public policy exception to terminations); Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 566-72, 576-77, 335 N.W.2d 834 (1983)(lengthy discussion of At Will Doctrine as supporting narrow public policy exception without raising concerns of excessive litigation ). Therefore, the case law clearly indicates that the narrow, public policy exception Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 33 of 52 Opposition to Motion to Dismiss-County 34 applies to at-will employment, not necessarily to employment contracts that raise different consideration from at-will issues. The law remains unclear whether a public policy exception applies in employment contracts. However, the point may be moot because Plaintiff asserts a plausible exception even under Brockmeyer. See infra Section 11.3.1. 11.3.1 Even if the Brockmeyer Rule and qualifications applied, the Plaintiff establishes an inference of a public policy and actions by Defendants impliedly meeting the Brockmeyer Rule Exception as amplified in Strozinsky. As amplified in later case law, the Brockmeyer Rule (at-will employment) provides a narrow public policy exception to allow even an at-will employee to sue for wrongful discharges. E.g., Bammert, 254 Wis. 2d at 354. Under the Brockmeyer Rule, “a plaintiff must identify a constitutional, statutory, or administrative provision that clearly articulates a fundamental and well-defined public policy.” Bammert, 254 Wis. 2d at 355. While the exception is narrow, see Bushko, 134 Wis. 2d at 145 (“Brockmeyer expressly limits the public policy exception to only those situations in which an employee is discharged for refusing to act in violation of an established and well-defined public policy evidenced by existing law.”), Strozinsky shows that Plaintiffs can fulfill the exception when forced to refuse employer’s demands to violate the law (including constitutions, statutes, or administrative policies) without opening a Pandora’s Box of employment litigation. Strozinsky, 237 Wis. 2d at 54-55. Here, Plaintiff cites to 7 U.S.C. § 341, et seq., (federal funds for supporting educational programming) and Wis. Stat § 59.56(3) (Extension faculty provide educational programming and technical support), Amend. Comp. ¶ 65, for the statutory support. Plaintiff states that Defendants (Grant County)) placed significant demands on faculty to engage in county administrative tasks and not educational programming. See, e.g., Amend. Comp. ¶ 29. Plaintiff also states that the Plaintiff’s Employer confirmed that the county’s administrative demands were against state policies, Amend. Comp. ¶ 33. Furthermore, Plaintiff cites Employer’s specific statements to “refocus educational programming” in light of the recent budget cuts as a statement of policy. Amend. Comp. ¶ 28. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 34 of 52 Opposition to Motion to Dismiss-County 35 As Strozinsky plainly states, the public policy can be implied from constitutional provisions, statute, or administrative policies. Strozinsky, 237 Wis. 2d at 46. Taken as true and in light beneficial to Plaintiff, the Plaintiff establishes demands by Defendant to engage in activity against federal and state law (such as doing significant county administrative work using funding for “educational programming”) and, for example, the Plaintiff being required to report “educational activity” when Plaintiff was in fact required to engage in significant county, administrative work. To the extent that this is somehow unclear at a pleading stage, Plaintiff seeks leave to amend.12 If the court needs additional support that these were not de minimus or inconsequential demands, Plaintiff seeks leave to amend. Defendants imply that Plaintiff failed to plead that Plaintiff was somehow not personally required to violate the law. Defs’ M. Dismiss, 15 (citing Bushko v. Miller Brewing Co., 134 Wis. 2d 136, 145-47 (1986)(“ Bushko does not claim he was ever asked to falsify or lie about records.”). In contrast, the pleadings here state or imply that Plaintiff was personally involved. See, e.g., Amend. Comp. ¶ 29. Thus, Bushko is distinguished from the instant case because Bushko did not aver that he was personally asked to falsify records. See Bushko, 134 Wis. 2d at 139. Here, Plaintiff avers that Plaintiff was personally required to engage in the impermissible conduct. See supra (this section). Strozinsky provides a compelling parallel to the instant case. See, generally, Strozinsky, 237 Wis. 2d at 25-34. In Strozinsky, as in the instant case, the Plaintiff, with no disciplinary record, discretely and properly informed management that a manager demanded that Plaintiff falsify tax records. Strozinsky, 237 Wis. 2d at 28-34. The manager then engaged in a campaign against Strozinsky, 237 Wis. 2d at 33-34. Like the instant case, see, e.g., Amend. Comp. ¶ 44, Strozinsky reasonably interpreted the actions of the employer as an “ultimatum” and left the 12 With leave to amend, if necessary at this stage, Plaintiff can show direct statements by Grant County officials including a statement at an October public meeting demanding that Plaintiff continue to administer county administrative programs. Also, Plaintiff can aver that the consequences of such violations are apparently felonies under Wisconsin and federal law. See, e.g., 18 USC § 666(misuse of federal funds in programs a felony). Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 35 of 52 Opposition to Motion to Dismiss-County 36 employer. Strozinsky established constructive discharge and a public policy exception. See Strozinsky, 237 Wis. 2d at 54-67. A Strozinky-type case differs from “bad-apple-employee” cases where an employee faced numerous, employer, disciplinary actions and then “retaliates” by alleging whistle-blower and wrongful discharge. Compare Strozinsky, 237 Wis. 2d at 54- 67(no disciplinary history) with Brockmeyer, 335 N.W.2d at 836(“Brockmeyer's career with Dun & Bradstreet as a district manager could be characterized as erratic. For a time in 1978, he was on employment probation.”). Similarly, in the instant case, the Plaintiff cites absolutely no disciplinary actions prior to the March 16, 2016, incident.13 See, generally, Amend. Comp. Plaintiff requests that the Court view the instant case, even if imperfectly plead, consistent with Strozinsky and deny Defendants’ Motion to Dismiss on this count. 11.3.2 Plaintiff seeks leave to replead a count of constructive discharge because Defendants’ actions making the faculty position futile and intolerable and faced Plaintiff in a Hobson’s Choice: violate the law and policy or leave. While the Defendants state that Plaintiff “quit” or “resigned,” Defs’ M. Dismiss, 5, 8, 11, 18, 23, nowhere does the Plaintiff aver quitting or submitting a resignation. See, generally, Amend. Comp. Instead, Plaintiff avers: “Plaintiff submitted written notice to the University of Wisconsin Extension Administration stating that Plaintiff could no longer continue providing services.” Amend. Comp. ¶ 55. The Plaintiff’s wording here is precise as will be proved by exhibits at trial. The inference is that Plaintiff could no longer fulfill duties due to the Employer’s and Defendants retaliatory actions. Defendants further claim that Plaintiff did not allege discharge and thus a claim for whistleblower retaliation, and apparently wrongful discharge, cannot be maintained. Defs’ M. Dismiss, 18. However “[t]he doctrine of constructive discharge recognizes that some resignations are coerced, tantamount to a termination.” Strozinsky, 237 Wis. 2d at 56 . The Strozinsky Court reasons that an employer should not escape liability because the employer does not directly fire the employee, but instead makes the employment situation so odious as to cause 13 If the Court deems necessary at a pleading stage, Plaintiff requests leave to amend to provide specific averments showing that there was absolutely no disciplinary history with Plaintiff and specific commendations of Plaintiff’s work. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 36 of 52 Opposition to Motion to Dismiss-County 37 the employee no choice but to quit. See Strozinsky, 237 Wis. 2d at 57. The court cites: “Resignation obtained by coercion poses serious possibilities of abuse. ‘A separation by reason of a coerced resignation is, in substance, a discharge.’ ” Strozinsky, 237 Wis. 2d at 60-61 Wisconsin recognizes that a constructive discharge can meet the element of “wrongful discharge” in the public policy exception. Strozinsky, 237 Wis. 2d at 68Furthermore, a Plaintiff can allege either a constructive discharge or a public policy exception to meet the narrow exception. See Strozinsky, 237 Wis. 2d at 68. Finally, constructive discharge is a matter of fact for the jury. Strozinsky, 237 Wis. 2d at 65(“Constructive discharge ultimately presents a question of fact for the jury.”) 11.4 Wisconsin law recognizes a form of common law whistleblower protections by recognizing the public policy exception in wrongful discharge. A notable line of cases recognize the public policy exception in wrongful discharge as a generalized common law whistleblower protection. Masri v. State Labor & Indus. Review Comm'n, 356 Wis. 2d 405, 436-37, 850 N.W.2d 298 (2014)(discussing public policy exception and whistelblower); Bammert, 254 Wis. 2d at 350-51 (citing public policy exception to at-will employment terminations; “Bammert was an at-will employee. In general, at-will employees are terminable at will, for any reason, without cause and with no judicial remedy. Whether Bammert has an actionable claim for wrongful discharge turns on the question of whether the public policy exception to the employment-at-will doctrine….”); Hausman, 214 Wis. 2d at 663-65(citing concerns with courts interfering with at-will employment terminations as basis for a “narrow” exception); Bushko, 134 Wis. 2d at 146-52 (discussion of At-Will Doctrine as underlying the public policy exception to terminations); Brockmeyer, 335 N.W.2d at 566- 72, 576-77 (lengthy discussion of At Will Doctrine as supporting narrow public policy exception without raising concerns of excessive litigation ). The interpretation as a common law action makes sense when considering that Wisconsin only enacted Wis. Stat. §§ 230.80- 85 (commonly known as whistleblower) in 1984. Bd. of Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 37 of 52 Opposition to Motion to Dismiss-County 38 Regents of Univ. of Wisconsin Sys. v. Wisconsin Pers. Comm'n, 147 Wis. 2d 406, 409 n.2, 433 N.W.2d 273 (Wis. Ct. App. 1988)(earliest reported citing case). Therefore, Wisconsin still has a generalized common law whistleblower-type action even with the statute. 11.5 Plaintiff moves the court for leave to amend and leave to replead if, in addition to the current pleadings, counts for wrongful discharge and constructive discharge are necessary to maintain the whistleblower retaliation claims. Plaintiff notes that the state, common-law whistleblower claim assumes the public policy exception. Defendants impliedly acknowledge being on notice of the claim. Defs’ M. Dismiss, 13. If the court deems necessary, however, Plaintiff seeks leave to amend to add claims of constructive discharge and wrongful discharge. 12 Count VI: Speech Retaliation 12.1.1 Connick’s whole-record analysis to determine whether Plaintiff spoke on public concern implies a dismissal prior to discovery is premature. Defendants suggest that Connick v. Meyers, 461 U.S. 138, 147, (1983), justifies dismissal of the First Amendment claim during pleading: “[f]or a public employee to succeed on a First Amendment's Speech Clause, the employee must show that he spoke as a citizen on a matter of public concern.” Defs’ M. Dismiss, 19. However, Connick itself requires a court to examine a public employee’s speech as revealed by the whole record in order to determine whether the employee was speaking on a matter of public concern. Connick, 461 U.S. at 147-48 (“Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.”)(emphasis added). Thus, because discovery has not even begun, the court cannot reach the Constitutionally required whole-record test and dismissal of the claim is premature. At minimum, leave to amend would be appropriate. See, supra, Section 4 Legal Standard. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 38 of 52 Opposition to Motion to Dismiss-County 39 12.1.2 Plaintiff alleges protected speech because Plaintiff was speaking about significant mis-direction of public educational programming funds to county administrative tasks-a topic of public concern. To support a claim of Speech Retaliation, the speech must be of public concern. Connick, 461 U.S. at 147; Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). Since this is a pleading stage, the Plaintiff illustrates only one instance of Speech Retaliation in the Complaint. Plaintiff alleges: Plaintiff discretely notified supervisors and administrators that the faculty appointment actually involved substantial, non-educational, administrative tasks for Grant County and significant County budget administrative oversight rather than educational programming…. Amend. Comp.¶ 29. A court can infer from this example that the Plaintiff’s speech addresses an issue of public concern- significant misdirection of government program funds. Compare to Connick, 461 U.S. at 140-41 (“speech” associated with district attorney opposing personal reassignment, not public concern); Eberhardt v. O'Malley, 17 F.3d 1023, 1026 (7th Cir.1994)(distinguishing cases where employee merely complains privately about “matters personal to himself, such as whether he was being paid enough or given deserved promotions”). Contrary to the interpretation suggested by Defendants, this was not a personal complaint about too much work or a complaint about supervisors. Compare, e.g., Abernethy v. Mercer, 532 F. App'x 160, 162-63 (3d Cir. 2013)(State Trooper affair’s with estranged wife and restricted duty assignment not speech of public concern)(cited by Defendants). Furthermore, Plaintiff states that at least five other faculty members left the Extension Office in Grant County with at least one citing concerns similar to those Plaintiff spoke about, which suggests a wider issue and mitigates inferences of purely “personal” character. See Amend. Comp. ¶ 58. Black letter law holds that government employers cannot retaliate against the exercise of constitutional rights. “Government retaliation tends to chill an individual's exercise of his First Amendment rights, and this principle applies with equal force in the context of public-sector employment.” Massey, 457 F.3d at 716. “It is well-established in our Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 39 of 52 Opposition to Motion to Dismiss-County 40 jurisprudence that a public employee does not shed his First Amendment rights at the steps of the government building.” Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 970 (7th Cir. 2001). Even Ceballos recognizes additional concerns with Speech Retaliation in academic contexts. Garcetti v. Ceballos, 547 U.S. 410, 425 (2006) . Plaintiff believes Plaintiff established a prima facie case of Speech Retaliation. However, Plaintiff, if needed, seeks leave to amend or replead to cure any uncertainty-not dismissal. 13 Counts VII and VIII: Intentional Torts 13.1 Wisconsin Stat. § 893.80(4) [municipal/county immunity] does not provide absolute immunity because municipal immunity differs fundamentally from state sovereign immunity, and thus dismissal of the intentional tort claims is not warranted at this time. Defendants claim that Wisconsin law bars Plaintiff’s claims related to intentional torts. Def. Mot. Dismiss, 21; see Wis. Stat. § 893.80(4). Defendants cite Envirologix Corp. v. City of Waukesha, 192 Wis. 2d 277, 288, 531 N.W.2d 357, 363 (Wis. Ct. App. 1995) and Old Tuckaway Associates Ltd. P'ship v. City of Greenfield, 180 Wis. 2d 254, 283 (Wis. Ct. App. 1993) to support dismissal. See Defs’ M. Dismiss, 21. The general rule regarding Wisconsin Stat. § 893.80(4) provides immunity for county or municipal corporations from intentional torts. See Wis. Stat. § 893.80(4). However, Wisconsin Stat. § 893.80(4) does not provide absolute immunity, and several exceptions exist to Wisconsin Stat. § 893.80(4). See Recore v. Cty. of Green Lake, 368 Wis. 2d 282, 292 (Wis. Ct. App. 2016)(recent case addressing exceptions to Wis. Stat. § 893.80(4) and citing prior case law). First, an important distinction arises when analyzing municipal or county liability (as oppose to state immunity). Municipal immunity derives from common law and statute, not the Eleventh Amendment and sovereign immunity. See Lodl v. Progressive N. Ins. Co., 253 Wis. 2d 323, 336 (2002)(“Municipal immunity differs from its state counterpart in that liability is the rule and immunity is the exception.”). Therefore, municipal immunity analysis does not implicate sovereign immunity considerations. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 40 of 52 Opposition to Motion to Dismiss-County 41 Second, “[i]Immunity for public officers and employees, both state and municipal, is based largely upon public policy considerations….´ “and thus a balancing-of-interests applies. Lodl, 253 Wis. 2d at 336(citing Lister v. Board of Regents, 72 Wis.2d 282, 299 (1976)). Balancing of interests presupposes that a wronged party and the municipal government have compelling interests. Third, specific exceptions to immunity exist. “Both state and municipal immunity are subject to several exceptions ‘representing a judicial balance struck between ‘the need of public officers to perform their functions freely [and] the right of an aggrieved party to seek redress.’’” Lodl, 253 Wis. 2d at 337(parenthetical in original). There is no immunity against liability associated with: 1) the performance of ministerial duties imposed by law; 2) known and compelling dangers that give rise to ministerial duties on the part of public officers or employees; 3) acts involving medical discretion; and 4) acts that are malicious, willful, and intentional. Lodl, 253 Wis. 2d at 337(citing Willow Creek Ranch, L.L.C. v. Town of Shelby, 235 Wis. 2d 409, 425 (2000))(emphasis added). Old Tuckway, cited favorably by Defendants, illustrates the distinctions between a bona fide public policy rational for barring intentional torts and the instant case. In a zoning and planning context and regarding discretionary actions, Old Tuckway alleged tortious interference with a contract involving a zoning appeal and its effect on Old Tuckway’s contract to develop land. Old Tuckaway Associates Ltd. P'ship v. City of Greenfield, 180 Wis. 2d 254, 265-67 (Wis. Ct. App. 1993). That is, the City was acting in its legitimate and ordinary capacity to enforce zoning. See Lodl, 253 Wis. 2d at 335(municipal immunity for legislative, discretionary, acts). There were no allegations of wrongdoing or illegality against the City. Old Tuckaway, 180 Wis. 2d at 265-67. Understandably, public policy considerations,14 the root of 14 Lodl cites the public policy considerations as: (1) The danger of influencing public officers in the performance of their functions by the threat of a lawsuit; (2) the deterrent effect which the threat of personal liability might have on those who are considering entering public service; (3) the drain on valuable time Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 41 of 52 Opposition to Motion to Dismiss-County 42 municipal immunity,15 weigh in favor of immunity under Wis. Stat. § 893.80(4) in situations such as Old Tuckaway. Furthermore, part of the Old Tuckway Court’s rational relied not just on Wis. Stat. § 893.80 but on the legislative actions at issue. See Old Tuckaway, 180 Wis. 2d at 283. This sharply distinguishes the facts from the instant case where Grant County actors and reputed Grant County actors allegedly engaged in a campaign to personally and maliciously discredit Plaintiff with no bona fide legislative purpose. E.g., Amend Comp ¶¶ 34, 49. (examples of statements made by Defendants). The Plaintiff argues, logically, that no compelling public policy purpose, see Lodl, 253 Wis. 2d at 336, is served by immunizing county actors who engage in “malicious, willful, and intentional” acts. See Lodl, 253 Wis. 2d at 337. The Wisconsin Stat. § 893.80(4) bar to intentional torts may apply to tort cases such as Old Tuckaway, but does not apply here because the County and reputed County actors acted maliciously and without legitimate governmental purpose. See Willow Creek Ranch, L.L.C. v. Town of Shelby, 235 Wis. 2d 409, 456-57 (2000)(Dissent, Prosser)(“The sum total of these policy considerations comes close to the proposition that we should eliminate all court remedies against local governments because it is just too burdensome to hold governments accountable to the people.”) As covered in Section 4 Legal Standard, dismissal is not proper even if the possibility of recovery is remote. See Richards, 696 F.3d at 637; Brooks, 578 F.3d at 581 (“In Twombly, ‘[t]he Court was careful to note that this did not impose a probability requirement on plaintiffs: 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'’”) The facts in the instant case, even prior to discovery, plausibly show that the Plaintiff establishes prima caused by such actions; (4) the unfairness of subjecting officials to personal liability for the acts of their subordinates; and (5) the feeling that the ballot and removal procedures are more appropriate methods of dealing with misconduct in public office. Lodl, 253 Wis. 2d at 336. 15 See Lodl, 253 Wis. 2d at 336. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 42 of 52 Opposition to Motion to Dismiss-County 43 facie cases for defamation and tortious interference with a contract and suggests, with supporting authority, that Wis. Stat. Ann. § 893.80(4) is not absolute. Furthermore, Plaintiff compelling argues that a balancing, based on all the facts as developed during discovery, must be considered in such a situation before dismissal. See Lodl, 253 Wis. 2d at 337. 13.1.1 Even if Wisconsin Stat. § 893.80(4) fully bars suits for intentional torts, Robert Keeney may not be a bona fide member of the Grant County Board by law and thus Robert Keeney could not claim immunity under Wisconsin Stat. § 893.80(4). Defendants’ claim that state law bars intentional torts may also fail because Plaintiff sued Robert Keeney specifically in his “official, personal, and individual capacity.” Amend. Comp. ¶ 11(emphasis added). The Amended Complaint does not recite Keeney’s reputed title. See, generally, Amend. Comp., because his county role, if any, is unclear by law. Exceptions exist to sovereign immunity. See, e.g., Schlafly v. Volpe, 495 F.2d 273 (7th Cir., 1974). One of those limitations arises when an actor acts ultra vires. See Schlafly, 495 F.2d at 278; Larson v. Domestic Foreign Commerce Corporation, 337 U.S. 682, 688 (1949)(address ultra vires actions when specific relief sought); Miami University Associated Student Government v. Shriver, 735 F.2d 201, 204 (C.A.6 (Ohio), 1984)(“State officials are not entitled to eleventh amendment immunity if they are acting ultra vires, that is without proper authority.”). Furthermore, “The general rule is that a public officer is not personally liable to one injured as a result of an act performed within the scope of his official authority and in the line of his official duty.” Lister v. Bd. of Regents of Univ. Wisconsin Sys., 72 Wis. 2d 282, 300 (1976)(emphasis added). An open question remains whether Keeney is or was a member of the Grant County Board at the time of the alleged actions. Wis. Stat. § 59.18(1) expressly provides that a county board member’s “status as a member of the board is thereby terminated” if a member becomes a county administrator. See Wis. Stat. § 59.18(1). Also, Wis. Stat. § 66.0501(2) makes a county board member per se ineligible for any office or position unless expressly permitted by statute. Wis. Stat. § 66.0501(2). The Wisconsin Attorney General also weighed-in on this controversial issue in OAG-01-11 (Oct. 27, 2011) and Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 43 of 52 Opposition to Motion to Dismiss-County 44 concluded that a county board member must resign if appointed as a county administrative coordinator. Atty. Gen. Op. OAG-01-11 (Oct. 27, 2011). Some counties continue to “play games” with the law related to county administrators or county administrative coordinators by having the County Board Chair serve in fact as the administrator or coordinator but “appoint” a strawman to assume the title in an imperfect attempt to evade the law. A county has no power to alter state statute. See Black, 369 Wis. 2d at ¶ 22, 30)(municipal entities only have the powers as provided by the legislature). Normally, this sleight-of-hand by a county would not come into play directly, but the facts in this case show that counties and reputed county actors assume the risk by operating outside the law because it exposes reputed county individuals to individual liability. That is, the sleight-of- hand strips the reputed county actor of any protections- whether due to ultra vires activity or because the actor in fact does not have a county role. This is a novel issue of law with no substantive case law yet. The Plaintiff at this time raises a bona fide issue whether Keeney in fact forfeited his County Board position or otherwise was acting ultra vires by serving in fact as the administrative coordinator or county administrator in violation of Wisconsin law.16 Such a finding exposes Keeney to personal liability for the defamatory actions because he was acting as an individual. See Wis. Stat. § 893.80 (if immunity applies, it applies only to municipal actors). 16 Plaintiff seeks leave to amend to plead such facts or seeks a separate telephonic hearing on this topic to determine Keeney’s status, if any, with the county. With leave to amend, those facts include, for example, being paid a salary, not per diem; having an office suite in the County Administrative Building (housing administrative functions), not just a mail slot; and active administrative functions in county affairs such as “employment reviews,” see Amend. Comp. ¶ 43, attending committee meetings even though not appointed, and directing large county capital projects. All indicia of administrator status. Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 44 of 52 Opposition to Motion to Dismiss-County 45 13.2 Count VII: Defamation-Plaintiff’s defamation count against Grant County and Robert Keeney survives the Motion to Dismiss because Plaintiff establishes a prima facie count of defamation and because neither Grant County nor Robert Keeney employed Plaintiff. Under Wisconsin law, to successfully allege a claim for … defamation, a plaintiff must allege that the defamatory statement: “[1] was spoken to someone other than the person defamed, [2] is false, [3] is unprivileged and [4] tends to harm the defamed person's reputation so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Wesbrook v. Ulrich, 90 F. Supp. 3d 803, 806 (W.D. Wis. 2015)(citing Torgerson v. Journal Sentinel, Inc., 210 Wis.2d 524, 534, 563 N.W.2d 472, 477 (1997); Hart v. Bennet, 267 Wis.2d 919, 942, 672 N.W.2d 306(Wis. Ct. App. 2003). The Plaintiff successfully pleads at least one count of defamation against Defendants.17 See Amend. Comp. ¶ 67. Plaintiff alleges that Keeney questioned Plaintiff’s submission of an invoice for educational programming in front of persons other than Plaintiff. Amend. Comp. ¶ 49. Keeney knew the allegation of an improper invoice was absolutely false, Amend. Comp. ¶ 51, because Keeney received two, written notices of the educational purpose, had personally reviewed the invoice, and previously personally approved the invoice. Amend. Comp. ¶ 51. Under Wisconsin Law, even implications from a defamatory statement are actionable. See Mach v. Allison, 259 Wis. 2d 686, 698-99 (Wis. Ct. App. 2002)(“The ‘statement’ that is the subject of a defamation action need not be a direct affirmation, but may also be an implication.”). No apparent legally recognized privilege applies. See Wesbrook, 90 F. Supp. 3d at 810 (noting that Plaintiff does not need to anticipate a 17 The Plaintiff states “at minimum” because there may be other instances of defamatory conduct. One of the frustrations with this situation was that Plaintiff, until March 16, 2016, was never privy to the “issues” raised by actors. Discovery will reveal the John and Jane Does and the extent of the other supposed “issues” with Plaintiff. See Amend. Comp. ¶ 12 (John or Jane Does 1-25). Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 45 of 52 Opposition to Motion to Dismiss-County 46 privilege defense in pleading); Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 535-36 (1997)(First Amendment privileges for publishers). The statement by Keeney involved allegations of financial misconduct (and by implication, criminality) and thus a direct harm to Plaintiff’s reputation. See Converters Equip. Corp. v. Condes Corp., 80 Wis. 2d 257, 263 (Wis. 1977)(reciting a general list of potentially actionable harms including implications such as criminality and unprofessional conduct). In fact, two of Plaintiff’s employer- supervisors immediately, loudly, and vocally opposed the statement made by Keeney demonstrating concrete affront.18 Amend. Comp. ¶ 49. Therefore, Plaintiff successfully pleads at least one count of defamation, and thus dismissal on this count is improper. Defendants allege that the Wisconsin Worker’s Compensation Act somehow bars a defamation claim against Keeney and Grant County. Defs’ M. Dismiss 19-20. Defendants cite Wolf v. F&M Banks, 193 Wis. 2d 439, 455, 534 N.W.2d 877 (Ct. App. 1995) as authority. However, F&M Banks states: “the court of appeals held that defamation claims by an employee against an employer and its employees are preempted by the WCA.” Wolf v. F&M Banks, 193 Wis.2d 439, 454-55, 534 N.W.2d 877, 883 (Wis. App., 1995)(emphasis added). As the Amended Complaint plainly states, Plaintiffs employer was the University of Wisconsin Extension. Amend. Comp ¶ 21 (“The University of Wisconsin Extension hired Plaintiff as an Assistant Professor to provide educational programming in Grant County….”). Grant County and Keeney were not Plaintiff’s employer, therefore F&M Banks fails to provide authority for foreclosing Plaintiff’s claim. 13.3 Count VIII: Tortious Interference with a Contract Wisconsin Law does not require heightened-pleading, such as in fraud, for allegations involving interference with a contract. 18 Plaintiff does not plead facial expressions or demeanor. However, from the plead facts, the court can infer in “light most favorable to“ Plaintiff that the immediate and vocal response from persons present shows the significant degree of affront and reputational offense. See Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 504 (7th Cir. 2013)(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))(light most favorable); McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 879 (7th Cir.2012)). Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 46 of 52 Opposition to Motion to Dismiss-County 47 See Wangard Partners, Inc. v. Graf, 294 Wis. 2d 507, 527-28 (Wis. Ct. App. 2006). Wisconsin follows the RESTATEMENT (SECOND) OF TORTS on intentional interference with a contract. See Stop-N-Go of Madison, Inc. v. Uno-Ven Co., 184 F.3d 672, 679 (7th Cir. 1999); Cudd v. Crownhart, 122 Wis. 2d 656, 660-61 (Wis. Ct. App. 1985). The RESTATEMENT (SECOND) OF TORTS provides: One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him. RESTATEMENT (SECOND) OF TORTS § 766A. “The exact parameters of the Section 766A cause of action are not well established.” Stop-N-Go,184 F.3d at 679-80; see Cudd, 122 Wis. 2d at 660. Nevertheless, intimidation can support a claim for tortious interference. Compare Stop-N-Go,184 F.3d at 680 (distinguishing cases of physical force, intimation, or fraud that clearly support liability from other cases) with Ry. Exp. Agency, Inc. v. Super Scale Models, Ltd., 934 F.2d 135, 139 (7th Cir. 1991)(showing that ordinary business competition not adequate). The factors in RESTATEMENT (SECOND) OF TORTS §767 determine the interfering actor’s conduct. See Cudd, 122 Wis. 2d at (citing RESTATEMENT (SECOND) OF TORTS §767). Intent of the actors may be inferred. See Wolnak v. Cardiovascular & Thoracic Surgeons of Cent. Wisconsin, S.C., 287 Wis. 2d 560, 576 (Wis. Ct. App. 2005)(case involving tortious interference and intent)(“Ordinarily, it is reasonable to infer that a person intends the natural and probable consequences of his or her actions.”). Plaintiff plausibly pleads tortious interference of contract. Plaintiff alleges, at minimum, a contract existed between Plaintiff and the University of Wisconsin Extension.19 Amend. Comp. ¶ 17, 21. Plaintiff pleads several instances of intentional 19 The plead facts must be taken as true and in light most favorable to Plaintiff. See Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 504 (7th Cir. 2013)(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 879 (7th Cir.2012)). Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 47 of 52 Opposition to Motion to Dismiss-County 48 interference with Plaintiff’s performance of that contract. Amend. Comp. ¶ 30, 34, 41, 42-51. The Defendants were fully aware that manufacturing “issues” with Plaintiff; making statements intended to dissuade Plaintiff from fulfilling Plaintiff’s duties to the employer, the University of Wisconsin Extension; or statements directing Plaintiff to engage in activities in violation of law or policy caused direct interference with Plaintiffs contract and lead to Plaintiff being unable to reasonably perform the contract. Amend. Comp. ¶ 55. The repeated and systematic acts of the Defendants adequately show intent to interfere. See also Wolnak., 287 Wis. 2d at 576(allowing inference of intent). Therefore, Plaintiff successfully establishes a prima facie count of tortious interference, and dismissal is improper. The court can also infer that the intentional diversion of educational programming for mere county administrative purposes itself interferes with the contract. See Amend. Comp. ¶¶ 21, 29, 34. Plaintiff was hired as an assistant professor on a tenure track contract, which requires formidable demonstration of effective educational programming. See Amend. Comp. ¶¶ 21. Plaintiff has an obligation to fulfill the tenure requirements per contract-that is the whole point of the renewable contract to assure reasonable progress towards tenure. Defendants’ retaliatory actions directly undermine tenure obligations by diverting substantial time from tenure requirements to unnecessary tasks. The unnecessary county administrative tasks were not de minimus. See Amend. Comp. ¶ 29. With leave to amend, Plaintiff will aver that part of the demands by the Ag & Extension Committee after the failed “firing” incident were specifically to interfere with Plaintiff’s ability to fulfill tenure and included demands, recorded on audio, to limit educational programming, to limit participation in required faculty activities, and stated prohibition on “bringing any Madison ideas” to Grant County. See Amend. Comp. ¶ 34 (generally stating threats, harassment, etc.). Defendants claim that the facts do not adequately establish a tortious interference claim against Defendant Keeney. Yet, discovery has not begun, and thus Plaintiff is at a disadvantage. Keeney is the reputed County Board Chair. Unquestionably, Keeney participated in a sua sponte hearing, Def. M. Dismiss, 22-23, and engaged in activity during that hearing that, if true and in light most beneficial to Plaintiff looking at the entire Amended Complaint, shows a pattern over months of intent to Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 48 of 52 Opposition to Motion to Dismiss-County 49 interfere with the Plaintiff’s contract with Plaintiff’s employer. With leave to amend, Plaintiff will also aver that Keeney participated in the attempted firing of Plaintiff is August. One of the frustrations with this entire situation was that Plaintiff, until March 16, 2016, was not fully privy to the “issues” raised by accusers or even who the accusers were. The disclosure of “issues” were out-of-the-blue and blind accusations, usually levied on a Friday afternoon, generally attributed to “the County” by those reporting them to Plaintiff. Plaintiff added the John and Jane Does in the Amended Complaint specifically to address this situation. See Amend. Comp. ¶ 12 (John or Jane Does 1-25). It would be improper to dismiss this count. Plaintiff asserts a plausible prima facie case even on the limited facts pled. If needed, leave to amend, is proper here, not dismissal. See Burke, 714 F.3d at 504(light most favorable to Plaintiff and draw all reasonable inferences in [the Plaintiff’s] favor); Turley, 729 F.3d at 651(more liberal interpretation in pro se). See also supra Section 4 Legal Standard. 14 Count IX: Breach of Contract-Dismissal without prejudice unopposed for named County Defendants The Plaintiff does not oppose dismissal without prejudice of this count against Defendant Grant County, and against Defendant Keeney but only to the extent that the court finds that Keeney is a member of the Grant County Board. 15 Count X: Fraud-Dismissal without prejudice unopposed for named County Defendants The Plaintiff does not oppose dismissal without prejudice of this count against Defendant Grant County, and against Defendant Keeney but only to the extent that the court finds that Keeney is a member of the Grant County Board. 16 Count XI: Privileges and Immunities Clause The U.S. Constitution provides “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. Const. Art.4, Sec.2, Cl.1. Cases amplifying this constitutional clause have long emphasized that the clause includes guarantees of equality for citizens who Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 49 of 52 Opposition to Motion to Dismiss-County 50 move to a new state. See Saenz v. Roe, 526 U.S. 489, 504 (1999)(citing The Slaughter-House Cases, 16 Wall. 36 (1873)). Saenz emphasizes: The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens. Saenz, 526 U.S. at 504(internal citation omitted). When a state actor makes distinctions based on state citizenship, scrutiny is warranted under the Equal Protection Clause of the Fourteenth Amendment. See Zobel v. Williams, 457 U.S. 55, 60 (1982). Heightened scrutiny may even be warranted depending on the invidiousness of the discrimination. See Zobel, 457 U.S. at 60- 64. The Privileges and Immunities Clause provides assurances that citizens can move freely between states. Saenz, 526 U.S. at 501-02(citing Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357 (1868) (“[W]ithout some provision ... removing from the citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists”)). Part of that mobility assurance includes a right to gainful employment: “[The Privileges and Immunities Clause] provides important protections for nonresidents who enter a State … to obtain employment….” Saenz, 526 U.S. at 502(citing Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978)). Granted, the Saenz Court stated that the protections of the Privileges and Immunities Clause are not “absolute.” Saenz, 526 U.S. at 502(quotation marks in original). But, the Court also goes on to say that the state must have a “substantial reason for any discrimination.” Saenz, 526 U.S. at 502. Hicklin v. Orbeck strongly supports a Privileges and Immunities Clause analysis in employment. Hicklin v. Orbeck, 437 U.S. 518, 524 (1978)(“Appellants' appeal to the protection of the Clause Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 50 of 52 Opposition to Motion to Dismiss-County 51 is strongly supported by this Court's decisions holding violative of the Clause state discrimination against nonresidents seeking to ply their trade, practice their occupation, or pursue a common calling within the State.”) Hicklin cites to Ward v. Maryland, 12 Wall. 418, 20 L.Ed. 449 (1871): Ward thus recognized that a resident of one State is constitutionally entitled to travel to another State for purposes of employment free from discriminatory restrictions in favor of state residents imposed by the other State. Hicklin, 437 U.S. at 525. The Supreme Court limited discrimination against out-of-state residents to extreme cases where “non-citizens constitute a peculiar source of the evil…” Hicklin, 437 U.S. at 525; Toomer v. Witsell, 334 U.S. 385, 398 (1948). 16.1 Plaintiff pleads that County Defendants and Keeney engaged in actions showing discriminatory animus against out-of-staters. “A State actor who conspires with other state actors to violate another's constitutional rights can be liable under § 1983 for resulting damages. “ Lechnir, No. 14-C-1020, at *6. Plaintiff pleads impermissible discrimination against Plaintiff due to Plaintiff’s status as recently moving from out-of-state. Amend. Comp. ¶¶ 24, 34 (implied reference), 41, 72. Plaintiff states that at least five faculty members have left faculty positions in Grant County in just the past five years. Amend. Comp. ¶ 58. Plaintiff admits error by not expressly stating that at least some of these faculty were also out-of-state and seeks leave to amend. Plaintiff also provides details regarding one example of the patent discrimination against out-of-staters when, with employer consent, Defendants replaced a qualified faculty member who left, after a short time, and was replaced by a local. Amend Comp. ¶ 41. The court can infer from the facts pled that Plaintiff’s allegations have some factual basis. Discovery will amplify the magnitude of the discrimination and provide additional examples of the overt discrimination. Defendants plainly concede that “[w]hether public employment is a ‘fundamental right’ has not been squarely addressed by the Supreme Court or this Circuit.” Defs’ M. Dismiss, 25. Plaintiff’s own research also shows no such Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 51 of 52 Opposition to Motion to Dismiss-County 52 authority and raises serious questions, post-Saenz, whether there is even a distinction between public and private employment analysis on facts as pled in this case. Thus, Defendants ask too much of pleading by moving for dismissal, with prejudice, of this legal claim when Defendants’ themselves agree that no binding legal authority exists to support dismissal. See Defs’ M. Dismiss, 26. A motion to dismiss tests the factual sufficiency of the pleading using a plausibility standard. Iqbal, 556 U.S. at 678; Brooks, 578 F.3d at 581; see also supra Section 4 Legal Standard. “The plausibility standard is not akin to a ‘probability requirement’….” Iqbal, 556 U.S. at 678. Defendants raise no factual deficiency. Therefore, the court must deny Defendants’ motion to dismiss on this count. 17 Conclusion For the foregoing reasons, Plaintiff asks the court to deny Defendants’ Motion to Dismiss consistent with this Opposition. Furthermore, Plaintiff seeks leave to amend or leave to replead if the court entertains dismissals for counts where Plaintiff has not expressly conceded dismissal. Plaintiff’s Signature Shannon Brown, pro se 406 Highland Ave. Clarks Summit, PA 18411 717.945.9197 Dated October 5, 2016 Case: 3:16-cv-00346-bbc Document #: 30 Filed: 10/05/16 Page 52 of 52