Brown, Shannon v. State of Wisconsin et al

Brief in Support

W.D. Wis.April 13, 2017

16834877v1 0987756 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ SHANNON BROWN, Plaintiff, v. MATTHEW HANSON, JASON BEIER, ROBERT KEENEY, JOHN PATCLE, PATRICK SCHROEDER, GRANT LOY, MARK STEAD, ROGER GUTHRIE, DANIEL TIMMERMAN and JOHN OR JANE DOES 1- 25, Defendants. Case No.: 16-CV-346 MOTION TO DISMISS BY ROBERT KEENEY, JOHN PATCLE, PATRICK SCHROEDER, GRANT LOY, MARK STEAD, ROGER GUTHRIE, AND DANIEL TIMMERMAN INTRODUCTION Plaintiff Shannon Brown’s Second Amended Complaint does not cure the defects identified by the Court in its January 25, 2017 Decision and Order dismissing Brown’s First Amended Complaint. Robert Keeney, John Patcle, Patrick Schroeder, Grant Loy, Mark Stead, Roger Guthrie, and Daniel Timmerman therefore move to dismiss plaintiff Shannon Brown’s Second Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6).1 Brown’s Complaint asserts four causes of action: (1) unconstitutional retaliation under the First Amendment against the Grant County Defendants, Hanson, and John or Jane Does 1-25, (2) discrimination under the Privileges and Immunities Clause against the Grant County 1 Moving defendants will refer to themselves collectively as the “Grant County Defendants.” Patcle, Schroeder, Loy, Stead, Guthrie, Timmerman will refer to themselves collectively as the Grant County Extension Committee Members. Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 1 of 17 2 16834877v1 0987756 Defendants and Hanson, (3) defamation against Keeney, and (4) tortious interference with contract against the Grant County Defendants and John or Jane Does 1-25. Each cause of action fails to state a claim for the reasons summarized below. Brown’s First Amendment Retaliation claim fails against Patcle, Schroeder, Loy, Stead, Guthrie and Timmerman because the complaint does not attribute any retaliatory conduct to these defendants. Brown’s First Amendment Claim against Keeney also fails because he does not plead facts plausibly suggesting Keeney’s acts were for the purpose of deterring Brown from engaging in protected speech. Brown’s Privileges and Immunities claim fails because Brown does not enjoy a constitutionally protected right to government employment under that clause. In addition, the Complaint does not attribute any discriminatory act or animus by Patcle, Loy, Stead, Guthrie, or Timmerman. The acts attributed to Schroeder and Keeney did not cause harm to Brown. Brown’s defamation claim is too vague to meet the pleading requirements of Fed. R. Civ. P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Finally, Brown’s tortious interference claim does not attribute any conduct to Patcle, Loy, Guthrie, or Timmerman. As for the claims against Schroeder, Stead and Keeney, the complaint fails to allege sufficient facts that plausibly suggest their alleged interference caused Brown harm. FACTS Brown’s Complaint alleges the following facts relevant to this motion: On May 6, 2015, University of Wisconsin Extension (UW Extension) hired Brown as a full-time assistant professor. (2d Am. Compl. ¶¶ 16, 35.) In this role, Brown delivered educational programming in Grant County, Wisconsin. (Id.) He commenced employment on July 1, 2015. (Id. ¶ 37.) Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 2 of 17 3 16834877v1 0987756 Also on May 6, 2015, Brown and UW Extension executed a document titled “Terms of Faculty Appointment - Probationary Appointment Cooperative Extension, a division of UW- Extension.” (Id. ¶ 17 & Ex. 1.) (Faculty Appointment Agreement). The Faculty Appointment Agreement lays out certain terms of the employment relationship. (Id.) For example, it outlines Brown’s accountability relationships. Specifically, it provides: Accountability relationships. for the duration of this appointment: Accountable to the Agriculture and Extension Education Committee of Grant County regarding county program needs, to the CNRED State Program Director on matters relating to Cooperation Extension programs, to the Southwest Regional Director on organizational culture, strategic directions and administrative matters, and to the Grant County Cooperative Extension Department head for county administrative matters and office management. (Id. ¶ 20 &Ex. 1.) A separate contract between UW Extension and Grant County requires the County to reimburse UW Extension 40% of Brown’s salary. (Id. ¶ 25.) Brown alleges the Grant County Extension Committee Members considered Brown a County administrative employee. Therefore, it attempted to assert employer-like control over him by demanding he perform non-educational County tasks. (Id. ¶ 26.) Brown alleges that starting on his first day of employment, he became aware of state and federal educational resources being misdirected to non-educational, Grant County government administrative tasks. (Id. ¶ 40.) He spoke to multiple people about the alleged misdirection of funds, including the Grant County Defendants. (Id. ¶ 41.) Brown made additional complaints to UW Extension. (Id. ¶ 42.) On August 17, 2015, Brown attended the County’s AG & Extension Committee meeting. At the meeting, he provided his first monthly accountability report. Defendants Patcle, Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 3 of 17 4 16834877v1 0987756 Schroeder, Stead, and Guthrie questioned him about speaking with others about the County’s non-educational administrative tasks. (Id. ¶ 43.) Two days later, UW Extension co-chairs Bev Doll and Ted Bay notified Brown that John or Jane Does affiliated with Grant County went to the Grant County Human Resources department to terminate Brown’s employment. (Id. ¶ 44.) Doll commented that Brown not being a local was an apparent issue, but offered no information on what issues John or Jane Does had with him. (Id.) Brown was later assured that the County could not terminate his employment. (Id. ¶¶ 45, 47.) No disciplinary action was taken. (Id. ¶ 30.) In September and October 2015, Grant County actors continued to insist Brown engage in non-educational administrative tasks. (Id. ¶ 51.) Brown reported his concerns to defendant Hanson after the October 2015 Ag & Extension Committee meeting. (Id. ¶ 52.) Hanson did not take any action. (Id.) So, Brown asked Hanson to be assigned to a different position. (Id. ¶ 53.) Because no position was available, Brown requested severance. (Id.) Two months later, in December 2015, Hanson directed Brown to contact Beier about severance. (Id.) Over one month after that, in late January or early February, Beier informed Brown the only way to obtain a severance would be to file a lawsuit. (Id.) Brown stopped talking about misdirection of resources in January 2016 after he learned that those who spoke out about misdirection would be targeted for constructive discharge or non- renewal. (Id. ¶ 54.) Brown could elect to participate in a self-initiated annual faculty review. (Id. ¶ 22.) The purpose of the review is to discuss academic performance, achievements and challenges with senior faculty reviewers. (Id.) In January 2016, the Grant County Ag & Extension Committee Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 4 of 17 5 16834877v1 0987756 voted to discontinue attending the reviews. (Id.) That the County would not attend was confirmed in early March 2016. (Id. ¶ 55.) UW Extension scheduled Brown’s review for March 16, 2016. (Id. ¶ 56.) Ten minutes before the review began, Hanson, Bay, and Doll pulled Brown aside for a closed-door meeting. (Id. ¶ 58.) Bay told Brown that John or Jane Does affiliated with the County were claiming “issues” with Brown. The “issues,” which Brown does not identify, did not relate to his performance or review. (Id.) After the closed-door meeting, Hanson stated he supported the County attending Brown’s review and that the County would attend. (Id. ¶ 59.) Hanson threatened the possibility of Brown losing his faculty appointment under the Faculty Appointment Agreement’s 60-day clause. (Id.) Brown elected not to proceed with the review. (Id. ¶ 60.) However, due to Hanson’s threat and the “issues” raised by John or Jane Does, Brown requested that he be present should his situation be discussed further. (Id.) Two hours later, Bay told Brown that his “continuing with the Extension” was to be discussed. (Id. ¶ 62.) Brown reminded Bay he wanted to be present at discussions about his situation to hear what “issues” John or Jane Does had raised. (Id.) Bay then escorted Brown to a conference room. (Id.) Present were Hanson and Keeney. (Id. ¶ 63.) Hanson indicated he wanted to ask Brown some questions. (Id.) Brown responded that he was simply there to observe. (Id.) Hanson then asked Brown a question Brown answered earlier that morning. (Id. ¶ 64.) Brown again responded he was there to observe only. (Id. ¶ 65.) Hanson declined to end the meeting. (Id.) Hanson then turned the meeting over to Keeney. (Id. ¶ 66.) According to Brown, Keeney asked no questions, admitted no material issues existed with Brown, recognized Brown’s Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 5 of 17 6 16834877v1 0987756 educational work, admitted some Count funds Brown was responsible for were being misdirected, and indicated understanding of the challenges raised by recent budget cuts to UW Extension. (Id.) Keeney then asked Brown why he submitted an improper invoice to the County. (Id. ¶ 67.) Bay and Doll told Keeney the invoice was proper and approved. Hanson dismissed the meeting, and Brown returned to work. (Id.) Brown filed a grievance that evening. (Id. ¶ 68.) After discussing the situation with others, Brown determined the grievance process was futile. (Id. ¶ 70.) On March 17, 2016, Brown notified Hanson he was leaving for a prescheduled vacation. (Id. ¶ 71.) After the vacation, on April 1, 2016, Brown emailed Hanson his resignation. (Id. ¶ 72.) The email stated: “My family and I discussed the situation. My last day with UW Extension is Friday, April 15, 2016. (Id.) Hanson accepted Brown’s resignation, which terminated his grievance. (Id. ¶¶ 73-74.) Brown commenced this lawsuit on June 3, 2016 by filing a Complaint in this District. On July 25, 2016, before defendants answered, Brown filed an Amended Complaint. All defendants moved to dismiss the Amended Complaint. The Court granted their respective motions by order dated January 25, 2017 (the “Order”). (Doc. 36.) The Order permitted Brown leave to file a second amended complaint on specific claims, including retaliation under the first amendment, discrimination because Brown is from another state, defamation against Keeney, and tortious interference against Keeney. (Id.) Brown then filed the instant complaint omitting several defendants2 named in the First Amended Complaint and adding as defendants Grant County 2 Grant County, State of Wisconsin, Scott Walker, Richard Klemme, and Mary Lazich are no longer named as defendants. Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 6 of 17 7 16834877v1 0987756 Extension Committee Members, Patcle, Schroeder, Loy, Stead, Guthrie, and Timmerman. The Court did not grant Brown leave to add new defendants.3 STANDARD OF REVIEW Fed. R. Civ. P. 12(b)(6) provides for dismissal of a Complaint where the allegations contained therein fail to state a claim upon which relief may be granted. A Rule 12(b)(6) motion tests the sufficiency of the complaint, not the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Thus, under rule 12(b)(6), courts accept the complaint’s well- pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Legal conclusions are not facts; thus, courts are not bound to accept them as true. Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009). To properly plead a cause of action in this Circuit, a Complaint must: (1) “describe the claim in sufficient detail to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,” and (2) must contain allegations that “plausibly suggests that the plaintiff has a right to relief, raising that possibility above a speculative level.” EEOC v. Concentra Health Services, Inc., 496 F.2d 773 (7th Cir. 2007).4 “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). Nor will “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 577). 3 The new defendants do not appear to be the John and Jane Does referenced in the First Amended Complaint. 4 Brown is proceeding pro se. However, upon information and belief, Brown is a licensed attorney. Therefore, the less stringent review typically afforded to pro se litigants should not be afforded to Brown in this case. Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 7 of 17 8 16834877v1 0987756 ARGUMENT I. THE COMPLAINT DOES NOT ALLEGE HE SUFFERED A DEPRIVATION THAT WOULD DETER FIRST AMENDMENT ACTIVITY IN THE FUTURE To prevail on a First Amendment retaliation claim, Brown must show (1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was “at least a motivating factor” in the Defendants' decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). Brown’s Complaint does not allege facts supporting the deprivation or causal connection elements. Brown alleges Grant County and/or the Grant County Defendants took the following retaliatory actions against him: • The County or John and Jane Does went to the Grant County Human Resources Department and sought to fire Brown (2d Am. Compl. ¶ 84a.) • UW Extension told him the County had “issues” with him and were trying to get rid of him because he spoke out about the misdirection of educational resources. (Id. ¶ 84b.) • Keeney defamed him by alleging Brown submitted an improper payment voucher to deter Brown from speaking. (Id. ¶ 84e.) The bulk of Brown’s claims involving the County relate to actions taken by the County itself or John and Jane Does affiliated with the County. The County is not named as a defendant. And Brown does not allege that Patcle, Schroeder, Loy, Stead, Guthrie, or Timmerman took any retaliatory action against him for speaking about matters of public concern. In other words, he does not allege he suffered a deprivation at their hands. Therefore, the First Amendment Retaliation claim against each should be dismissed. Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 8 of 17 9 16834877v1 0987756 Brown alleges he suffered a deprivation at the hands of Keeney when Keeney alleged he submitted an improper voucher. Brown alleges Keeney raised the invoice to deter him from speaking, defaming him in the process. Prohibiting someone from speaking during a meeting, standing alone, is not a constitutional deprivation. See Zimmerman v. Dameron, 2015 WL 4585622, at *3 (July 29, 2015) (Deprivation element not supported by factual allegations where defendant’s only retaliatory action was to prohibit employee from speaking at a City Council meeting where she intended to blow the whistle on the police chief’s illegal activities.) In addition, the Complaint does not allege facts plausibly suggesting the purpose of Keeney’s statement was to deter future protected speech or that Brown’s statements about the misdirection of funds motivated him to raise the issue. Paragraph 84e merely states the purpose of Keeney’s statement was to deter Brown from speaking generally. It does not allege Keeney intended to deter protected speech. The First Amendment protects only the latter. Therefore, the Complaint does not adequately allege what deprivation Brown suffered. Brown’s account of the meeting during which Keeney raised the invoice extinguishes the idea that Keeney intended to deter Brown from speaking about misdirected funds. According to the Complaint, Keeney “admitted that some of the County funds [Brown] was responsible for were being misdirected, and indicated understanding of the challenges raised by recent budget cuts on [UW Extension] necessitating changes.” (Id. ¶ 66.) Immediately afterward, he asked Brown about the invoice. (Id. ¶ 67.) Brown’s implication that Keeney raised the invoice to deter Brown from speaking about the misdirection of funds does not square with his more specific allegation that Keeney had just agreed with Brown’s concern, admitting funds were being misdirected. In other words, the Complaint does not plead a deprivation or the requisite causal Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 9 of 17 10 16834877v1 0987756 link between his protected speech and Keeney’s decision to ask him about the invoice. Therefore, the First Amendment Retaliation claim against Keeney should be dismissed. II. THE COMPLAINT DOES NOT STATE A CLAIM UNDER THE PRIVILEGES AND IMMUNITIES CLAUSE AGAINST THE GRANT COUNTY DEFENDANTS Brown alleges defendants discriminated against him because he is from a different state in violation of the U.S. Constitution’s Privileges and Immunities Clause, Art. IV, Sec. 2, Cl. 1. That clause states: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Generally speaking, it secures citizen’s “right to travel.” The right to travel has three components: “(1) the right of a citizen of one State to enter and to leave another State, (2) the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, (3) for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Saenz v. Roe, 526 U.S. 489, 500 (1999). These protections are not absolute. Rather they prohibit “discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.” Id. at 502 (citing Toomer v. Witsell, 334 U. S. 385, 296 (1948)). A. Brown does not have a fundamental right to public employment “Privileges” and “immunities” encompass only “fundamental rights” enjoyed by all citizens of the United States. See The Slaughter-House Cases, 83 U.S. (16 Wall) at 76. Whether public employment is a “fundamental right” has not been squarely addressed by the Supreme Court or this Circuit. However, precedent suggests it is not. In a dissenting opinion, Justice O’Connor found a New York preference program did not run afoul of the Privileges and Immunities Clause prohibition on restricting travel among states because it did not permanently deprive the appellees of public employment. Justice O’Connor Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 10 of 17 11 16834877v1 0987756 reasoned: “public employment is not a constitutional right . . . and the States have wide discretion in framing employee qualifications.” Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898, 921 (1986) (O’Connor dissenting) Years later, the Third Circuit Court of Appeals held direct public employment is not a privilege or fundamental right protected by the Privileges and Immunities Clause. Salem Blue Collar Workers Ass'n v. City of Salem, 33 F.3d 265, 268-70 (3d Cir. 1994). The court based its decision on a line of Supreme Court cases discussing the distinction between private and public employment in construing what rights are “fundamental” under the Equal Protection and Commerce Clauses. Id. Courts have held that public employment is not a fundamental right under those clauses because “it is qualitatively different from employment in the private sector; it is a subspecies of the broader opportunity to pursue a common calling.” United Bldg. & Constr. Trades Council v. Mayor & Council of Camden, 465 U.S. 208, 219 (1984). Thus, the Supreme Cout has held there is no fundamental right to government employment for purposes of the Equal Protection Clause. Id.; Massachusetts Bd. of Retirement v. Murgia, 427 US 307, 313, (1976) (per curiam). Cf. McCarthy v. Philadelphia Civil Service Comm'n, 424 US 645 (1976) (per curiam) (rejecting equal protection challenge to municipal residency requirement for municipal workers.). Salem Blue concluded that because there is no fundamental right to governmental employment, an ordinance requiring public works employees to reside within the municipality did not run afoul of the Privileges and Immunities Clause. 33 F.3d 265, 270. This Court should follow suit, and hold public employment is not a fundamental right under the Privileges and Immunities Clause. B. The Complaint does not allege harm by the Grant County Defendant’s alleged animus toward out-of-state applicants Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 11 of 17 12 16834877v1 0987756 Brown’s claim also fails because the Complaint does not allege facts plausibly suggesting the Grant County Defendants discriminated against him. Brown alleges the following acts by the Grant County Defendants show a policy of practice of impermissible discriminatory animus towards out-of-state persons: • Schroeder stated the Ag-Extension Committee would only consider local candidates for UW Extension appointments going forward, with nods of approval from the remaining members. (2d Am. Compl. ¶ 89.) • Keeney told Brown that he was not “local,” implying this contributed to the County’s relationship with him. (Id. ¶ 90.) • UW Extension disclosed that an out-of-state faculty member who left was replaced with a “local.” (Id. ¶ 91.) • Keeney disclosed the re-hire of a “local” to serve as the 4-H Administrator, allegedly without advertisement. (Id. ¶ 92.) • Keeney disclosed the hire of “local” as the Nutrition Coordinator. (Id. ¶ 93.) • In late 2016, a local was hired to fill his position. (Id. ¶ 94.) Brown does not allege any discriminatory conduct or statements by Patcle, Loy, Stead, Guthrie, or Timmerman. Therefore, they have not been provided adequate notice of the claims against them, necessitating dismissal. Brown does attribute specific statements to Schroeder and Keeney. (Id. ¶ 89-90.) However, those statements are not sufficient to state a claim under the Privileges and Immunities Clause. Schroeder’s alleged comment applied to future hires at a time when Brown was already hired. Therefore, even if Grant County refused to consider out-of-state faculty members going Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 12 of 17 13 16834877v1 0987756 forward, that policy could not have been applied to Brown. In other words, Brown could not have suffered harm. Keeney’s alleged comment that Brown was not local is too vague to provide Keeney sufficient notice as to how he purportedly violated the Privileges and Immunities Claim. The comment does not suggest discriminatory animus or conduct on Keeney’s part. Brown does not explain how the alleged statement harmed him. And, Brown alleges no other conduct on the part of Keeney motivated by Brown’s out-of-state roots. The hiring of other locals to the listed positions did not discriminate against Brown. Again, he was already a faculty member at the time of the hires. He does not allege he applied for the listed positions. UW Extension hired his replacement because he quit. And Brown does not have standing to raise the claims of another party. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). In short, the Complaint does not contain allegations suggesting the Grant County Defendants took any adverse action against him because he is from another state or otherwise treated local individuals more favorably than him. For these reasons, Brown’s Privileges and Immunities cause of action must also be dismissed. III. BROWN’S COMPLAINT FAILS TO STATE A CLAIM OF DEFAMATION A. The Complaint fails to provide Keeney sufficient notice of the statement giving rise to Brown’s defamation claim Brown’s defamation claim against Keeney does not cure the defects identified in the Court’s Order. It is still too vague to provide Keeney fair notice. To state a claim for defamation, Brown must allege Keeney made a statement (1) to someone other than the person defamed; (2) that is false; (3) 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 Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 13 of 17 14 16834877v1 0987756 dealing with him. Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 534, 563 N.W.2d 472 (1997). Brown alleges Keeney “admitted no material issues existed with [Brown],” then asked Brown why he submitted an improper invoice. (2d Am. Compl. ¶¶ 67, 99.) He does not identify the specific comment made or explain what about the invoice was improper. To the contrary, Brown admits Keeney had no material issues with Brown. Without more, it is unclear how the alleged comment could have harmed Brown’s reputation. Asserting the statement implied Brown had engaged in financial misconduct or criminal activity in conclusory fashion does not suffice because conclusory statements do not pass muster under federal pleading rules and it does not assist with determining whether the actual statement could imply such conduct. See, Iqbal, 556 U.S. at 678.Therefore, the Complaint does not provide Keeney sufficient notice concerning the content of his supposedly defamatory statement. Brown’s defamation claim should be dismissed accordingly. B. Brown’s defamation claim is barred by the Wisconsin Worker’s Compensation Act Defamation claims alleging defamatory statements made solely during the course employment are preempted by the Wisconsin Worker’s Compensation Act. Wolf v. F & M Banks, 193 Wis. 2d 439, 455, 534 N.W.2d 877 (Ct. App. 1995) (“[Defamation claims by an employee against an employer and its employees are preempted by the WCA.”). According to Brown’s Complaint, the Grant County Extension Committee Members considered Brown a County administrative employee and exerted employer-like control over him. (2d Am. Compl. ¶ 26.) In addition, the County paid 40% of his salary. (Id. ¶ 25.) In other words, Brown alleges he was a County employee. Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 14 of 17 15 16834877v1 0987756 The only defamatory statements allegedly made by Keeney, Chair of the Grant County Board of Supervisors, were made during a meeting scheduled to discuss Brown “continuing with the Extension.” (Id. ¶ 62.) This meeting occurred before Brown’s resignation. Because the defamatory statements attributed to Keeney occurred while Brown was still an employee, his claim is preempted by the Wisconsin Worker’s Compensation Act and should be dismissed accordingly. IV. THE COMPLAINT FAILS TO PROVIDE THE GRANT COUNTY DEFENDANTS ADEQUATE NOTICE OF THE CLAIMS AGAINST THEM Brown’s tortious interference with contract claim also fails to allege facts sufficient supporting the essential elements of the claim and is too vague to provide proper notice. To state a claim for tortious interference, Brown must allege facts, that if proven true, will show: (1) he had a contractual relationship; (2) the Grant County Defendants interfered with that relationship; (3) their interference was intentional; (4) there was a causal connection between their interference and Brown’s alleged damages; and (5) the Grant County Defendants were not justified or privileged to interfere.” See Finch v. Southside Lincoln-Mercury, Inc., 2004 WI App 110, 274 Wis. 2d 719, 737, 685 N.W.2d 154, 163. Brown alleges the following interferences with his Faculty Appointment Agreement by the Grant County Defendants: • In August 2015, Keeney and John or Jane Does went to the Grant County Human Resources Director to request that he be fired causing him the inconvenience of defending himself. (Id. ¶ 104b.) • In August 2015, unnamed Grant County Defendants objected to his attempts to address County administrative tasks that were interfering with the performance of his educational programming. (2d Am. Compl. ¶ 104a.) Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 15 of 17 16 16834877v1 0987756 • In September 2015, Schroeder directed Madison to stop or limit “Madison” tasks and education programming. (Id. ¶ 105c.) • In October 2015, Stead, with the agreement of the other members, directed Brown to spend 40% of his time on administration of the County Tourism Grants program, impairing his ability to perform educational programming. (Id. ¶ 105d.) Brown does not attribute any specific conduct to Patcle, Loy, Guthrie, and Timmerman. Therefore, he has not sufficiently alleged facts supporting the interference element of the claim. Brown’s tortious interference claim against these defendants should be dismissed accordingly. Brown’s first grievance, that Keeney asked that he be fired, fails to allege sufficient facts to meet the causal connection element. To satisfy this element Brown must allege he suffered damages. The Complaint acknowledges UW Extension took no action against Brown as a result of the alleged complaint. (2d Am. Compl. ¶ 44.) Rather, UW Extension expressed displeasure with Grant County and assured Brown Grant County could not terminate his appointment. (Id. ¶¶ 44-45.) The Complaint does not plausibly suggest Schroeder’s or Stead’s directive harmed him. Brown alleges Stead’s directive impaired his ability to perform educational programming. Brown does not allege how Schroeder’s directive harmed him. But presumably he will argue it also interfered with his educational programming. This argument fails for two reasons. First, the Faculty Appointment Agreement contemplated Brown performing County administrative tasks. (Id. Ex. 1.) In the section identifying accountability relationships, the agreement states Brown is accountable to “to the Grant County Cooperative Extension Department head for county administrative matters and office management.” Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 16 of 17 17 16834877v1 0987756 Second, the Complaint does not allege Brown’s inability to perform educational programming caused UW Extension to terminate the Faculty Appointment Agreement. Brown specifically alleges UW Extension never disciplined him or criticized his performance; rather, it praised his work. Moreover, Brown alleges he resigned in April 2016. He does not plead constructive discharge. Simply stated, there is a missing link between the Grant County Defendants’ alleged conduct and any interference with Brown's contract. The Complaint does not show Brown has a basis for recovery on the tortious interference of contract claim requiring dismissal. CONCLUSION For the reasons set forth above, the Court should dismiss Brown’s Complaint against the Grant County Defendants in its entirety. Re-pleading should not be permitted as the Court has given Brown ample opportunity and direction to perfect his claims. Dated this 13th day of April, 2017. /s/ Elizabeth A. Odian David J. Hanus, State Bar No. 1027901 Elizabeth A. Odian, State Bar No. 1084776 Attorneys for Defendants ROBERT KEENEY, JOHN PATCLE, PATRICK SCHROEDER, GRANT LOY, MARK STEAD, ROGER GUTHRIE, and DANIEL TIMMERMAN HINSHAW & CULBERTSON LLP 100 E. Wisconsin Avenue Suite 2600 Milwaukee, WI 53202 Telephone 414-276-6464 Fax 414-276-9220 E-mail dhanus@hinshawlaw.com eodian@hinshawlaw.com Case: 3:16-cv-00346-bbc Document #: 51 Filed: 04/13/17 Page 17 of 17