Brown, Shannon v. State of Wisconsin et al

Brief in Support of 24 Motion to Dismiss

W.D. Wis.August 8, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN SHANNON BROWN, Plaintiff, V. STATE OF WISCONSIN, ET AL., Defendants. Case No, 16-cv-346-BBC BRIEF IN SUPPORT OF MOTION TO DISMISS OF DEFENDANTS STATE OF WISCONSIN, SCOTT WALKER, CATHY SANDEEN, JASON BEIER, RICHARD KLEMME, AND MATTHEW HANSON Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 266-1792 (Kilpatrick) (608) 264-9451 (Bensky) (608) 267-8906 (Fax) kilpatricksc@doj.state,wi.us benskyam@doj.state.wi.us BRAD D. SCHIMEL Wisconsin Attorney General STEVEN C. KILPATRICK Assistant Attorney General State Bar #1025452 ANNE M. BENSKY Assistant Attorney General State Bar #1069210 Attorneys for Defendants State of Wisconsin, Scott Walker, Cathy Sandeen, Jason Beier, Dr. Richard M. IQemme, and Matthew Hanson Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 1 of 31 TABLE OF CONTENTS Page INTRODUCTION 1 LEGAL STANDARD 2 SUMMARY OF THE ARGUMENT 3 A. State Defendants 4 B. Legal Claims 5 ARGUMENT 8 I. Defendant State of Wisconsin, and Walker, Vos, Lazich, Sandeen, Beier, Klemme, and Hanson, in their official capacities, must be dismissed from this suit based on lack of personhood, and Eleventh Amendment and sovereign immunity 8 II. Governor Walker, Speaker Vos, and Senate President Lazich, in their individual capacities, must be dismissed from this suit 10 III. Brown's constitutional impairment of contracts claim must be dismissed for failure to state a claim 11 IV. Brown's due process rights were not violated 15 V. Brown's fi^ee speech retaliation claims must be dismissed because Brown did not allege he engaged in protected speech and because no state defendant took any adverse actions against him as a result of his speech 17 VI. Brown's claim against Defendant Hanson alleging a violation of the Privileges and Immunities Clause of Art. IV, sec. 2, of the Constitution must be dismissed for failure to state a claim 20 VII. Brown's ex post facto claim must be dismissed because the state law he challenges is not a penal statute 21 VIII. Brown's hostile work environment claim must be dismissed for failure to exhaust administrative remedies and because Brown did not allege the hostile work environment was because of his protected class 22 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 2 of 31 Page IX. Brown's state law personal capacity claims must be dismissed because he has not alleged that he filed a notice of claim with the Attorney General 23 X. Brown's federal and state common law whistleblower retaliation claims must be dismissed 25 XL Brown's state law breach of contract claim can be dismissed on the basis of his failure to comply with the legislative procedure for breach of contract claims 26 CONCLUSION 28 -11 - Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 3 of 31 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN SHANNON BROWN, Plaintiff, V. Case No. 16-cv-346-BBC STATE OF WISCONSIN, ET AL„ Defendants. BRIEF IN SUPPORT OF MOTION TO DISMISS OF DEFENDANTS STATE OF WISCONSIN, SCOTT WALKER, CATHY SANDEEN, JASON BEIER, RICHARD KLEMME, AND MATTHEW HANSON INTRODUCTION Plaintiff Shannon Brown was employed for about nine months as an associate professor at the University of Wisconsin Extension ("UW Extension"). He was hired into a tenure-track position, but had not achieved tenure before his departure. He had a probationary appointment and worked pursuant to a renewable contract. Prior to the end of his contract term, he voluntarily resigned.^ Brown brings a slew of claims in his lawsuit against the State of Wisconsin, the Governor, two state legislators, and several UW Extension officials, in both their individual and official capacities ("state defendants"). Brown alleges claims, ^ No additional facts are necessary to decide the legal issues presented in this motion to dismiss. However, the state defendants refer to the facts alleged in the Amended Complaint and the County defendants' brief in support of their motion to dismiss, for a recitation of the facts. (Dkts. 14 and 19.) Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 4 of 31 via 42 U.S.C. § 1983, under the Due Process, Ex Post Facto, Privileges and Immunities and Contract Clauses of the U.S. Constitution, along with a First Amendment free speech retaliation claim. He also alleges a violation of the Due Process Clause of the Wisconsin Constitution, art. I, sec. 1. Brown further brings federal and state common law and state statutory (Wis. Stat. § 230.90) whistleblower retaliation claims and a federal hostile work environment claim. Finally, he brings state law breach of contract, tortious interference with a contract, defamation, and fraud claims. Brown seeks monetary damages in excess of $75,000. For the reasons expressed below, none of Brown's claims stick, and this Court must dismiss Brown's amended complaint against the state defendants. LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." A motion to dismiss tests the sufficiency of the complaint; it does not determine the merits of the lawsuit. See Triad Assocs., Inc. v. Chicago Hons. Auth., 892 F.2d 583, 586 (7th Cir. 1989). To survive a Rule 12(b)(6) challenge, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), such that it "give[s] the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (internal quotations and citation omitted). Deciding a motion to dismiss, courts must accept the factual allegations as true, see id. at 572, in the light most favorable to the plaintiff. Lavalais v. Vill. of - 2 - Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 5 of 31 Melrose Park, 734 F.Sd 629, 632 (7th Cir. 2013). However, a complaint cannot simply contain "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements[.]" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, it must include specific allegations that, if true, make plaintiffs claim for relief more than speculative. See Twombly, 550 U.S. at 555. "[I]t demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citation omitted). SUMMARY OF THE ARGUMENT It is unclear what claims have been brought against whom. There are ten named defendants, between one and 25 un-named defendants, and eleven legal claims. All legal claims against the state and state actors must be dismissed; some of the defendants are immune from suit all together. Below is a summary of the state defendants and claims, with a brief explanation of why they must be dismissed. 3- Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 6 of 31 A. State Defendants 1. State ofWisconsin a. Must be dismissed from federal constitutional claims because the state is not a person under 42 U.S.C. § 1983 b. Must be dismissed from all but the Title VII Hostile Work Environment claim because the state is immune from suit c. Brown failed to state a colorable Title VII Hostile Work Environment claim because he did not exhaust administrative remedies and because he did not allege sufficient facts to meet the claim's elements Governor Scott Walker (official and personal capacity); Speaker Robin Vos, Wisconsin Assembly (official and personal capacity); Senate President Mary Lazich, Wisconsin Senate (official and personal capacity)^ a. All official capacity claims except for the Title VII Hostile Work Environment claim must be dismissed based on Eleventh Amendment and state sovereign immunity b. Official capacity Title VII Hostile Work Environment claim must be dismissed because Brown failed to state a colorable claim c. All personal capacity claims against Governor Walker, Speaker Vos, and Senator President Lazich must be dismissed because they have absolute legislative immunity, because Brown did not allege that Vos, Lazich, and Governor Walker were personally involved in any act. 2 As of the date of the fifing of the motion to dismiss, service of the amended complaint upon Defendants Vos and Lazich has not been completed, but waivers of service are being arranged. While these defendants, not named in the original complaint, have not yet appeared, the other state defendants move for their dismissal based on the arguments herein. If the Court has not acted on the motion to dismiss prior to the deadline for Vos's and Lazich's responsive pleading, they will file a separate motion to dismiss and refer to this brief. 4- Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 7 of 31 3. Cathy Sandeen, Chancellor, UW Extension (official and personal capacity); Jason Beier, Vice Chancellor, UW Extension (official and personal capacity); Richard Klemme, Dean UW Extension (official and personal capacity); Matthew Hanson, Southwest Regional Director, UW Extension (official and personal capacity) a. All official capacity claims except for the Title VH Hostile Work Environment claim must be dismissed based on Eleventh Amendment and state sovereign immunity b. Official capacity Title VII Hostile Work Environment claim must be dismissed because Brown failed to state a colorable claim c. All personal capacity claims must be dismissed because Brown for the reasons explained in the legal claims section, below B. Legal Claims 1. Count I: Due Process a. Must be dismissed because Wis. Stat. § 36,13 did not create a contract between Brown and the state nor confer a property right upon bim; therefore, Brown was not entitled to due process before the statute was repealed h. Must be dismissed because Brown did not allege that any state defendant deprived bim of any property interest as a result of a meeting that was held without prior notice 2. Count II: Ex Post Facto Law a. Must be dismissed because the state law Brown challenges is not a penal statute Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 8 of 31 3. Count III; State Impairment of the Obligation of Contracts a. Brown's claim under U.S. Const, art. I, § 10, el. 1 must be dismissed because he never had a contract that guaranteed tenure, was never protected by the terms of the former Wis. Stat. § 36.13, and regardless, repeal of § 36.13 would not have impaired Brown's tenure appointment had he been a tenured professor 4. Count IV: Hostile Work Environment a. Must be dismissed because Brown did not allege he exhausted administrative remedies, which is a condition precedent to all Title VII claims, and because Brown did not allege hostile treatment based on being a member of protected class, which is required to state a Hostile Work Environment Claim 5. Count V: Whistle-Blower Retaliation a. Must be dismissed for failure to allege Brown filed a notice of claim b. Must be dismissed because there is no federal or state common law regarding whistleblower retaliation c. Must be dismissed because Brown did not engage in First Amendment protected speech and because Brown did not allege facts sufficient to show any state defendant retaliated against him. Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 9 of 31 6. Count VI; Speech Retaliation a. Must be dismissed because Brown did not allege he engaged in protected speech and because no state defendants took any adverse actions against him as a result of his speech 7. Count VII: Defamation a. Must be dismissed for failure to allege he filed a notice of claim 8. Count VIII: Tortious Interference with Contract a. Must be dismissed for failure to allege he filed a notice of claim 9. Count IX: Breach of Contract a. Must be dismissed for failure to allege he filed a notice of claim 10. Count X: Fraud a. Must be dismissed for failure to allege he filed a notice of claim 11. Count XI: Privileges and Immunities Clause a. Must be dismissed because Defendant Hanson's act of rehiring a former "local" employee in place of an out-of-state employee who had resigned is insufficient to state a claim; this claim must also be dismissed because Brown did not allege he was injured by this act, or any other act of favoring local employees over out-of-state ones Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 10 of 31 ARGUMENT L Defendant State of Wisconsin, and Walker, Vos, Lazich, Sandeen, Beier, Klemme, and Hanson, in their official capacities, must be dismissed from this suit based on lack of personhood, and Eleventh Amendment and sovereign immunity. Brown alleges that Defendants violated several of his rights under the United States Constitution. As such, he uses 42 U.S.C. § 1983,3 which authorizes suits for damages against individual government officials. The text of § 1983 is clear that only "persons" are subject to liability. It is black letter law that no State is a "person" under § 1983, and therefore, the State of Wisconsin cannot be subject Brown's federal constitutional claims, which he can only bring through § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 67, 71 (1989). Not only is the State not a "person" under § 1983, it is also immune from suit altogether, and therefore, immune from Brown's other claims, by way of the U.S. Constitution's Eleventh Amendment. The Eleventh Amendment to the United States Constitution provides, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted 3 42 U.S.C. § 1983 states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be hable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 8 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 11 of 31 against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The Eleventh Amendment bars all his claims against the State in federal court. See Hans v. State of La., 134 U.S. 1, 13 (1890); Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 54 (1996); Ind. Prot. & Advocacy Serve. V. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 372 (7th Cir. 2010).'' Furthermore, all of Brown's claims against the individual defendants in their official capacities must be dismissed on Eleventh Amendment and sovereign immunity grounds. While Walker, Vos, Lazich, Sandeen, Beier, Klemme, and Hanson are literally persons. Brown's claims against them in their official capacity are claims against their offices. "As such, it is no different from a suit against the State itself." Will, 491 U.S. at 71. Because Brown seeks monetary relief, not prospective injunctive relief, all of his claims against the individual defendants in their official capacities are barred by the Eleventh Amendment. Kentucky v. Graham, 473 U.S. 159, 169 (1985). His state law tort claims against the State and the individual state defendants in their official capacities are also barred by state sovereign immunity. See Carlson v. Pepin Cnty., 167 Wis. 2d 345, 356, 481 N.W.2d 498 (Ct. App. 1992) ("[Wisconsin] has not given statutory consent to suit in tort[, and] . . . [Wis. Stat. §] 895.46 . . . which provides indemnity by the state for judgments against public employees because of acts committed within the scope ^ The Supreme Court has directed federal courts to dismiss defendants based on "lack of personhood" under § 1983 rather than Eleventh Amendment immunity. See Power v. Summers, 226 F.3d 815, 818 (7th Cir. 2000) (citing Vt. Agency of Natural Res. v. U.S. exrel. Stevens, 529 U.S. 765, 779-80 (2000)). 9 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 12 of 31 of their employment, does not permit a tort victim to sue the state directly."). Finally, as explained below more fully, Brown's breach of contract claim must be dismissed based on state sovereign immunity as well. Therefore, this Court must dismiss the State of Wisconsin and all the individual defendants in their official capacities from this suit entirely. II. Governor Walker, Speaker Vos, and Senate President Lazich, in their individual capacities, must be dismissed from this suit Brown's amended complaint does not reference Vos and Lazich except in the caption. (Am. Compl.) It does not reference Walker, except to state that he is the Governor. (Am. Compl. H 5.) Brown fails to state a claim against them under the general pleading rules, because defendants can only guess what Brown is accusing them of doing. See Twombly, 550 U.S. at 555; see also Potter v. Clark, 497 F.2d 1206 (7th Cir. 1974) ("Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed[.]"). As best as the state defendants can tell, the only reason Governor Walker is named in this suit is due to his role as the state's chief executive in enacting 2015 Wisconsin Act 55, which, among other things, removed statutory tenure provisions for the University of Wisconsin System faculty and affected a state budget cut. (Am. Compl. H 22; 2015 Wisconsin Act 55, § 1209.)^ Walker, however. 5 Brown may have named Vos and Lazich for this reason as well. Although they too possess absolute legislative immunity, they must be dismissed pursuant to Potter, 497 F.2d 1206. 10 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 13 of 31 possesses absolute legislative immunity from Brown's constitutional claims against him-^whichever ones are intended to apply to him. Absolute immunity from liability for a governor's legislative activities has long been recognized in our nation. Bogan V. Scott-Harris, 523 U.S. 44, 54 (1998); Smiley v. Holm, 285 U.S. 355, 372-73 (1932) (legislative immunity encompasses a Governor's signing or vetoing of a bill). Similarly, the Seventh Circuit recently held Illinois' Governor was immune from § 1983 claims based on his line item veto. Bagley v. Blagojevich, 646 F.3d 378, 391 (7th Cir. 2011). Brown's constitutional claims brought via § 1983 against Governor Walker, in his individual capacity, must be dismissed from this action with prejudice. Because none of Brown's other claims can reasonably be construed to be plead against Governor Walker, Speaker Vos, and Senate President Lazich, they must be dismissed from this suit altogether. III. Brown's constitutional impairment of contracts claim must be dismissed for failure to state a claim Brown's claim under U.S. Const, art. I, § 10, cl. 1 must be dismissed because he never had a contract that guaranteed tenure, was never protected by the terms of the former Wis. Stat. § 36.13,® and regardless, repeal of § 36.13 would not have impaired Brown's tenure appointment had he been a tenured professor. ® Faculty tenure and probationary appointments statute, repealed in 2015 Wisconsin Act 55, § 1209. . 11 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 14 of 31 The Constitution prohibits a state from passing "any . . . law impairing the obligation of contract." U.S. Const, art. I, § 10, cl. 1. The Contract Clause is "designed to . . . protect vested [contractual] rights from [legislative] invasion." New Orleans v. Clark, 95 U.S. 644, 655 (1877). The Contract Clause applies to impairments of contract rights; it "does not protect private parties from governmental breaches of contract." Yellow Cab Co. v. City of Chicago, 3 F. Supp. 2d 919, 922 (N.D. 111. 1998) (emphasis in original). Thus, "a state's refusal to perform its obligations under a contract with a private party constitutes a breach of contract, but does not raise a constitutional issue. Whether a state's legislative action has 'impaired' a private party's contractual rights presents a separate inquiry." Id. (citation omitted). Impairment of a contract with a state only violates U.S. Const, art. I, § 10, cl. 1. if it forecloses all remedies for the non-breaching party. In other words, if the non-breaching party can pursue damages for the breach, the U.S. Constitution has not been violated. Id. at 922-23 (citing Horwitz-Matthews, Inc. v. City of Chicago, 78 F.3d 1248, 1250 (7th Cir. 1996)). A contract claim brought pursuant to the U.S. Constitution "reqxiires the plaintiff to show (1) that there is a contractual relationship, (2) that a change in law has impaired that relationship, and (3) that the impairment is substantial." Council 31 of the Am. Fed'n of State, Cnty. & Mun. Emp., AFL-CIO v. Quinn, 680 F.3d 875, 885 (7th Cir. 2012) (citation omitted). Brown's claim cannot meet any of these requirements. - 12 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 15 of 31 Brown alleged that UW Extension hired him as an Assistant Professor on a statutory tenure track with a five-year, renewable contract pending tenure. (Am. Compl. H 21) (emphasis added). Under the former Wis. Stat. § 36.13(l)(a) (2013-14), Brown's employment was probationary, defined as "an appointment by the board held by a faculty member during the period which may precede a decision on a tenure appointment." Conversely, the statutes defined tenure appointment as "an appointment for an unlimited period granted to a ranked faculty member by the board." Brown did not allege the Board of Regents had granted him tenure, he alleged he was hired under a renewable contract. The former Wis. Stat. § 36.13 did not entitle Brown to tenure, it simply allowed the Board of Regents to grant tenure to faculty under certain conditions, and specified that tenure continued unless just cause to terminate the appointment was found after notice and a hearing. Wis. Stat. § 36.13(2)(a), (4)(a), (5) (2013-14). As for non-tenured faculty such as Brown, Wis. Stat. § 36.13(4)(b) (2013-14) stated that probationary faculty may elect to be considered for tenure, and subsection (5) provided that "[a]ny person having a probationary appointment may be dismissed prior to the end of the person's contract term only for just cause and only after due notice and hearing," Thus, the only right the former Wis. Stat. § 36.13 provided to Brown as probationary faculty was that he could not be dismissed prior to the end of his contract term without just cause. This provision does not help Brown, however, because he alleged that upon return from a vacation, he submitted his resignation. (Am. Compl. 1| 55.) 13 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 16 of 31 Having alleged a probationary appointment that he resigned from, Brown cannot state a constitutional claim that repeal of Wis. Stat. § 36.13, which established tenure protections, impaired his contractual relationship in any manner. His federal Contract Clause claim must be dismissed. Furthermore, a statutory provision establishing tenure is not in itself a contract between the state and university faculty. Phelps v. Bd. of Educ. of Town of West N.Y., 300 U.S. 319 (1937). In Phelps, the Court concluded that a New York law which established tenure and prohibited salary reduction for teachers and principals did not create contractual rights, and the state legislature was therefore free to subsequently amend or eliminate those provisions. The Court explained: [The law] estabhshed a legislative status for teachers, but we fail to see that it established a contractual one that the Legislature may not modify. . . . The status of tenure teachers, while in one sense perhaps contractual, is in essence dependent on a statute, like that of the incumbent of a statutory office, which the Legislature at will may abohsh, or whose emoluments it may change. Id. at 322 (internal quotations and citation omitted). The Seventh Circuit later explained that when tenure is provided by statute, not contract, the legislature is free to abrogate tenure entirely without violating the Constitution. Pittman v. Chicago Bd. of Educ., 64 F.3d 1098, 1104 (7th Cir. 1995) ("[A] statute is presumed not to create contractual rights.") (citing Nat'l R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 465-67 (1985); Wis. & Mich. Ry. Co. v. Powers, 191 U.S. 379, 387 (1903)). "A statute is not a commitment by the legislature never to repeal the statute." Id. - 14- Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 17 of 31 Thus, the state's enactment of 2015 Wisconsin Act 55, § 1209, which abolished statutory tenure through repeal of Wis. Stat. § 36.13, does not violate the Constitution because there were no contractual rights provided by statute. The U.S. Supreme Court foreclosed such a claim long ago in Phelps. IV. Brown's due process rights were not violated Brown alleges two separate due process violations, the first based on elimination of Wis. Stat. § 36.13 and the second based on a March 2016 hearing regarding Brown's employment that was conducted without his prior notice. (Am. Compl. HH 59, 60.) Pittman forecloses Brown's first claim. As explained above, Wis. Stat. § 36.13 did not create a contract between Brown and the state and did not confer a property interest in Brown's continued appointment beyond the terms of his (non-statutory) probationary contract with the employing institution. As in Pittman, the "legislation that deprived the school principals of their tenure (= property) did not violate any procedural right encompassed by the term 'due process of law[.]'" Pittman, 64 F.3d at 1104. Because the statute itself was neither a contractual right to tenure nor a guarantee of tenure for those serving probationary appointments, repeal of the statute cannot violate due process. As for the second due process allegation. Brown pled himself out of court. The Fourteenth Amendment prohibits the deprivation, without due process of law, of a person's "life, liberty, or property." Smith v. Bd. of Educ, of Urbana Sch. Dist. No. 116 of Champaign Cnty., III., 708 F.2d 258, 261 (7th Cir. 1983). Brown claims 15 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 18 of 31 that Hanson violated his due process rights by holding a hearing about his employment in March 2016 without providing prior notice and without reasonable time to prepare a response. (Am. Compl. HH 42-51.) But any procedural due process claim fails because Brown does not allege that Hanson, or any other state defendant, deprived him of any property interest as a result of that meeting. Holding a hearing-or discussing an employment issue-is not a deprivation of a property interest. Brown alleged the following: • He was scheduled to have an annual faculty review by extension faculty, that was attended by someone who was not a faculty member. (Am. Compl. HH 42-43.) • Someone told Brown there was a possibility he could lose his faculty appointment under a "60 day" clause in his contract. (Am. Compl. H 44.) • Grant County officials held a closed meeting with UW Extension personnel to discuss complaints made about Brown. (Am. Compl. t 46.) • Brown refused to answer questions during the impromptu hearing. (Am. Compl. H 48.) • Robert Kenney falsely insinuated Brown had submitted an improper invoice to the County, which faculty in attendance vocally disagreed with. (Am. Compl. Kt 49-50.) No action was taken against Brown as a result of this impromptu hearing. Instead, Brown alleges that he took action to end his employment. (Am. Compl. 16- Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 19 of 31 H 55) ("Upon return from the pre-scheduled vacation, Plaintiff submitted written notice to the University of Wisconsin Extension Administration stating that Plaintiff could no longer continue providing services/')- So, not only does Brown's complaint fail to establish he had any property interest in his continued employment (beyond the terms of a contract whose precise terms were not pled), he alleged he ended his employment. While Brown was entitled to feel frustrated and upset with the way he was treated, no UW Extension personnel took any action that terminated Brown's contract without due process. Brown is the one who pulled the plug. Regardless, Brown's unilateral expectation of tenure is insufficient to state a due process claim. Kiddy-Brown v. Blagojevich, 408 F.3d 346, 360 (7th Cir. 2005) ("protected property interest in a benefit such as government employment is 'more than an abstract need or desire' for the benefit; a person 'must. . . have a legitimate claim of entitlement to it.'") (quoting Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972)). Brown's due process claims must be dismissed. V. Brown's free speech retaliation claims must be dismissed because Brown did not allege be engaged in protected speech and because no state defendant took any adverse actions against bim as a result of bis speech. Brown brings federal and state free speech retaliation claims, as well as a state law whistleblower retaliation claim. These claims fail against the state defendants because Brown neither alleged he engaged in protected speech nor alleged any state defendant retaliated against him for anything he said. - 17- Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 20 of 31 To state a First Amendment retaliation claim under 42 U.S.C. § 1983, a plaintiff must "allege that (1) he engaged in activity protected by the First Amendment, (2) he suffered an adverse action that would likely deter future First Amendment activity, and (3) the First Amendment activity was at least a motivating factor in the defendants' decision to retaliate." Santana v. Cook Cnty. Bd. of Review, 679 F.3d 614, 622 (7th Cir. 2012) (internal quotations omitted). A threshold inquiry in a First Amendment retaliation claim is whether the plaintiff spoke as a citizen or as an employee. In Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), the United States Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." The Court explained that "while the First Amendment invests public employees with certain rights, it does not empower them to constitutionalize the employee grievance." Id. at 420 (internal quotes and citation omitted). In other words, "Garcetti . . . holds that the first amendment does not protect statements made as part of one's job." Fairley v. Andrews, 578 F.3d 518, 522 (7th Cir. 2009). Here, Brown alleges that he "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-^with the Plaintiff, a state faculty member, directly accountable for approximately $192,000 - 18 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 21 of 31 of County administrative budget including allocations to outside entities and including administration of a state program." (Am. Compl. H 29.) Such an allegation can only be reasonably viewed as employee, not citizen, speech. Because Brown's speech directly related to his official duties, it has no First Amendment protection and his claims fail."^ But even assuming Brown engaged in First Amendment-protected activity, his claims would still fail. As part of stating "a First Amendment retaliation claim, [a plaintiff) must plausibly allege that... he suffered an adverse action that would likely deter future First Amendment activity[.]" Santana, 679 F.3d at 622. The alleged adverse action "must be sufficient to deter an ordinary person[.]" Id. Additionally, to establish that the complained-of action was sufficiently or materially adverse, a plaintiff must show at least that he was "made worse off by [the action]." DeGuiseppe v. Vill. ofBellwood, 68 F.3d 187, 192 (7th Cir. 1995). Here, because Brown was the one to end his own employment, he cannot be alleging that any defendant took an adverse action by terminating his employment. This leaves Brown's allegation that the County notified him that it was seeking to terminate his employment. (Am. Compl. K 30.) This allegation does not state a claim against any state defendant. Thus, Brown's free speech retaliation claims against any state defendants can also be dismissed on the lack of adverse action. Brown's state law Wis. Stat. § 230.90 claim fails for this reason as well because this statute requires a violation of the employee's First Amendment rights in order to find a violation of the statute. See Kmetz v. State Historical Soc'y (Wis. Historical Soc'y), 304 F. Supp. 2d 1108, 1141 (W.D. Wis. 2004), rev'd in part on reconsideration suh nom. Kmetz V. Vogt, No. 03-C-107-C, 2004 WL 298102 (W.D. Wis. Feb. 11, 2004). 19 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 22 of 31 VI. Brown's claim against Defendant Hanson alleging a violation of the Privileges and Immunities Clause of art, IV, sec. 2, of the Constitution must be dismissed for failure to state a claim As best as the state defendants can surmise, Brown brings a claim alleging a violation of art. IV, sec. 2's Privileges and Immunities Clause only against Hanson. Because Brown's complaint does not contain sufficient allegations to state such a claim against Hanson, it must be dismissed. The Privileges and Immunities Clause prohibits a state from discriminating against a citizen of another state. It "insure[s] to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy." Toomer v. Witsell, 334 U.S. 385, 395 (1948). In Brown's amended complaint, he alleges that at a meeting in Lafayette County, agents of Grant County made comments about only hiring "locals" in the future, and in January 2016, Grant County worked directly with Hanson to re-hire a "local" staff member. (Am. Compl. H 41.) This allegation is insufficient to state a privileges and immunities violation claim against Hanson for two reasons. First, Hanson was not the defendant who made the comment about only hiring "locals." Hanson, working with the County, merely hired-again-a "local" who had previously worked for UW Extension. Hanson's act of rehiring a former employee in place of an out-of-state employee who resigned does not, based on the facts alleged, offend the privileges and immunities clause. Second, any preference of the County for rehiring "locals" does not appear to have injured Brown in any event. Brown alleges that Hanson worked with the -20 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 23 of 31 County to rehire a "local" staff member "after an out-of-state faculty member left Extension in Grant County." (Am. Compl. t 41.) The "local" who was rehired was rehired into a position other than Brown's. Brown did not allege this re-hiring harmed him in any manner, and it is otherwise insufficient to bring a privileges and immunities claim against Hanson. See McBurney v. Young, 133 S. Ct. 1709, 1716 (2013) ("While the Clause forbids a State from intentionally giving its own citizens a competitive advantage in business or employment, the Clause does not require that a State tailor its every action to avoid any incidental effect on out-of-state tradesmen."). Brown's privileges and immunities claim against Hanson must be dismissed. VII. Brown's ex post facto claim must be dismissed because the state law he challenges is not a penal statute Brown's ex post facto claim can be easily dismissed. That is because the Ex Post Facto Clause, U.S. Const, art. I, § 9, cl. 3, prohibits retroactive punishment, and "the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them." U.S. v. Leach, 639 F.3d 769, 772 (7th Cir. 2011) (quoting Collins v. Youngblood, 497 U.S. 37, 41 (1990)). "The Court has emphasized the restriction of the Clause to penal statutes, and thus a civil regulatory regime will implicate ex post facto concerns only if it can be fairly characterized as punishment." Id. (internal quotations and citations omitted). Here, 2015 Act 55, § 1209 is not a penal statute, nor can Brown make a 21- Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 24 of 31 colorable argument that it is a "regulatory regime" that can be characterized as "punishment." This constitutional claim must be dismissed. VIII. Brown's hostile work environment claim must be dismissed for failure to exhaust administrative remedies and because Brown did not allege the hostile work environment was because of his protected class Assuming that Brown's hostile work environment claim is brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., it must be dismissed because Brown has not alleged that he has complied with conditions precedent. Specifically, his amended complaint fails to allege that he filed a timely charge of discrimination with the Equal Employment Opportunities Commission (EEOC) or Wisconsin Equal Rights Division against any of the defendants, which is required before filing a Title VII lawsuit in federal court. See 42 U.S.C. § 2000e-5(f)(l). "This requirement gives the employer some warning of the conduct about which the employee is aggrieved and affords the EEOC and the employer an opportunity to attempt conciliation without resort to the courts." Alam v. Miller Brewing Co., 709 F.3d 662, 666 (7th Cir. 2013) (internal quotations and citation omitted). This charge is a "condition precedent" that every plaintiff must comply with to survive a motion to dismiss. Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 763 (7th Cir. 2001). Furthermore, Fed. R. Civ. P. 9(c) requires a plaintiff to plead that "all conditions precedent occurred or been performed." Since Brown has not alleged compliance with a Title VII condition precedent in his complaint, his hostile 22 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 25 of 31 work environment claim must be dismissed. See Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir. 1991). Had Brown exhausted administrative remedies, his Title VII hostile work environment claim cannot exist without reference to a protected class. Title VII provides that It shall be an unlawful employment practice for an employer- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, rehgion, sex, or national origin[.] 42 U.S.C. § 2000e-2(a)(l). To state a claim, a plaintiff must allege facts that, if proven true, demonstrate that "(1) the work environment must have been both subjectively and objectively offensive; (2) [the plaintiffs race, color, religion, sex, or national origin] must have been the cause of the harassment; (3) the conduct must have heen severe or pervasive; and (4) there must be a basis for employer liability." Chaib V. Ind., 744 F.3d 974, 985 (7th Cir.), cert, denied, 135 S. Ct. 159 (2014) (citing Milligan V. Bd. of Trs. of S. Ill Univ., 686 F.3d 378, 383 (7th Cir. 2012)). Brown does not allege his work environment was hostile because of his race, color, religion, sex, or national origin. For this reason too. Brown fails to state a hostile work environment claim and it must be dismissed. IX. Brown's state law personal capacity claims must be dismissed because he has not alleged that he filed a notice of claim with the Attorney General Brown brings the following state law claims: common law whistleblower retaliation, Wis. Stat. § 230.90 whistlehlower retaliation, breach of contract. -23 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 26 of 31 tortious interference with a contract, defamation, and fraud. To the extent he brings them against the individual defendants in their personal capacities, they all must be dismissed because Brown has not alleged he filed the requisite notice of claim. A plaintiff bringing a state law civil claim against state employees must comply with Wis. Stat. § 893.82. This statute requires a plaintiff who is injured to notify the Wisconsin Attorney General within 120 days of the act. "A complaint that fails to show compliance with § 893.82 fails to state a claim upon which relief can be granted." Weinberger v. State of Wis., 105 F.3d 1182, 1188 (7th Cir. 1997) (citing Yotvat V. Roth, 95 Wis. 2d 357, 290 N.W.2d 524 (Ct. App. 1980)). Brown's noncompliance with this pleading requirement is fatal to all his claims. See id.; see also Lechnir v. Wells, No. 14-C-1020, 2015 WL 3952786, at *7 (E.D. Wis. June 29, 2015) (dismissing state statutory whistleblower claim against University of Wisconsin Eau Claire employees because of plaintiffs failure to plead compliance with Wis. Stat. § 893.82(3) notice of claim statute). Most of these claims must also be dismissed (at least insofar as the state defendants are concerned) because Brown did not allege facts sufficient to state a claim for those violations, but the court need not reach this analysis because failure to plead notice of claim is dispositive.® ®In the event the Court dismisses aU of Brown's federal claims, the Court may decHne to exercise supplemental jurisdiction over his state law claims and dismiss them without reaching the merits. See 28 U.S.C. § 1367(c)(3) (a district court may decHne to exercise supplemental jurisdiction over related state law claims if "the district court has dismissed all claims over which it has original jurisdiction"). 24 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 27 of 31 X. Brown's federal and state common law whistleblower retaliation claims must be dismissed. Brown claims that Defendants violated federal and state common law prohibiting whistleblower retaliation. But, contrary to Brown's implication, there is no federal or state common law regarding whistleblower retaliation law. While there are federal and state statutes that prohibit employers from retaliating against employees who disclose information, the state defendants are unaware of any federal common law or Wisconsin common law regarding whistleblower retaliation. The Wisconsin Supreme Court has stated as recently as 2014 that it has "declined to adopt a broad whistleblower exception to the employment-at-will doctrine despite the fact that it might advance the public interest." Masri v. State of Wis. Labor & Indus. Review Comm'n, 2014 WI 81, H 52, 356 Wis. 2d 405, 850 N.W.2d 298. There is also no applicable federal common law. See Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981) (footnotes omitted) ("[F]ederal common law exists only in such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases."); Northrop Corp. v. AIL Systems, Inc., 959 F.2d 1424, 1426-27 (7th Cir. 1992). Finally, even if these claims existed. Brown did not plead facts that, if true, demonstrate the state defendants retaliated against him. See Section V, supra. Therefore, Brown fails to state a claim of common law whistleblower retaliation and these two claims must be dismissed with prejudice. -25 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 28 of 31 XI. Brown's state law breach of contract claim can be dismissed on the basis of his failure to comply with the legislative procedure for breach of contract claims. Notwithstanding that the State of Wisconsin cannot be sued in federal court and Brown never had a contract in the first instance, Brown cannot proceed on his state law breach of contract claim against it because he has not satisfied the procedure the Wisconsin Legislature has provided for such claims. For well over a century, the Wisconsin Supreme Court has acknowledged that "[t]he mandate ... is to the legislature .. . ," not the courts, "to direct by law how and in what courts suits may be brought against the state." Chicago, M. & St. P. Ry. Co. v. State, 53 Wis. 509, 513, 10 N.W. 560 (1881). Where an individual claims damages for amounts allegedly past due on a contract, the claim is one that must be brought pursuant to the procedures outlined in Wis. Stat. § 775.01. Koshick v. State, 2005 WI App 232, f 19, 287 Wis. 2d 608, 706 N.W.2d 174 (citing Brown v. State, 230 Wis. 2d 355, 602 N.W.2d 79 (Ct. App. 1999)). The Wisconsin Legislature has established a multi-step claims procedure that a plaintiff must follow before he may file a breach of contract claim against the State in court. First, the plaintiff must file a claim with the Claims Board. Wis. Stat. § 16.007. If the Claims Board dismisses the plaintiffs claim, the plaintiff must have a bill submitted to the Legislature for the amount of his claim. Wis. Stat. § 775.01. If the Legislature rejects the proposed bill, either affirmatively or by inaction, only then may the plaintiff bring a breach of contract action in court. Wis. Stat. § 775.01; see also CleanSoils Wis., Inc. v. State Dep't of Transp., -26 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 29 of 31 229 Wis. 2d 600, 607-08, 599 N.W.2d 903 (Ct. App. 1999). Where a plaintiff does not comply with these procedures, any claim for breach of contract must be dismissed. Roman Catholic Found., UW-Madison, Inc. v. Regents of Univ. of Wis. Sys., 578 F. Supp. 2d 1121, 1143 (W.D. Wis. 2008) (citing Brown v. State, 230 Wis. 2d 355, 367, 602 N.W.2d 79 (Ct. App. 1999)). The Wisconsin Court of Appeals has confirmed that a plaintiff may not sue the State on a breach of contract theory for amounts past due unless and until the plaintiff first files a claim with the Board of Claims under Wis. Stat. § 16.007 and the Legislature refuses the claim under Wis. Stat. § 775.01. Brown, 230 Wis. 2d at 365-66. When he does not, sovereign immunity bars his breach of contract claim. Brown cannot assert a breach of contract claim without complying with the procedure the Legislature created. Brown has not alleged in his complaint that he has completed any of the steps of this process, much less completed the process such that he may bring the claims in circuit court, which in and of itself is grounds for dismissal. Chicago, M. St. P.R. Co., 53 Wis. 509 ("|W]e hold that the complaint in such an action which fails to aver performance of the condition precedent is fatally defective[.]"); Fed. R. Civ. P. 9(c) (requires plaintiff to plead that "all conditions precedent have been performed or have occurred"). 27 Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 30 of 31 CONCLUSION Defendants State of Wisconsin, Walker, Sandeen, Beier, Klemme, and Hanson ask this Court to dismiss Plaintiff Brown's amended complaint. Dated this 8th day of August 2016. Respectfully submitted, BRAD D. SCHIMEL Wisconsin Attorney General s/Steven C. Kilnatrick STEVEN C. KILPATRICK Assistant Attorney General State Bar #1025452 ANNE M. BENSKY Assistant Attorney General State Bar #1069210 Attorneys for Defendants State of Wisconsin, Walker, Sandeen, Beier, Klemme, and Hanson Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 266-1792 (Kilpatrick) (608) 264-9451 (Bensky) (608) 267-8906 (fax) kilpatricksc@doj.state.wi.us benskyam@doj.state.wi.us -28- Case: 3:16-cv-00346-bbc Document #: 25 Filed: 08/08/16 Page 31 of 31