Brown, Shannon v. State of Wisconsin et al

Brief in Support of 48 Motion to Dismiss Second Amended Complaint

W.D. Wis.April 7, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN SHANNON BROWN, Plaintiff, v. Case No. 16-CV-346-BBC MATTHEW HANSON, JASON BEIER, ROBERT KENNEY, JOHN PATCLE, PATRICK SCHROEDER, GRANT LOY, MARK STEAD, ROGER GUTHRIE, DANIEL TIMMERMAN, AND JOHN OR JANE DOES 1 - 25, Defendants. STATE DEFENDANTS' BRIEF IN SUPPORT OF MOTION TO DISMISS SECOND AMENDED COMPLAINT Defendants Matthew Hanson and Jason Beier, both employees of the University of Wisconsin Extension (State Defendants), submit this brief in support of their motion to dismiss the plaintiff’s Second Amended Complaint. INTRODUCTION Around May 23, 2016, Plaintiff Shannon Brown filed a multi-count complaint against several State of Wisconsin and Grant County officials. Following an amended complaint and motions to dismiss, this Court dismissed Mr. Brown’s first amended complaint but allowed him to re-plead certain claims against some defendants. (Dkt. 36.) Mr. Brown filed a second Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 1 of 15 2 amended complaint against two State defendants and several county defendants. This brief addresses the State defendants’ motions to dismiss all claims against them. Those claims are: First Amendment retaliation and discrimination under the Privileges and Immunities Clause of the U.S. Constitution. The motion is brought pursuant to Fed. R. Civ. P. 12(b)(6). FACTUAL ALLEGATIONS The factual allegations against the State defendants are as follows: In April and May of 2015, Matthew Hanson, who is the University of Wisconsin Extension’s (UWEX) Southwest Regional Director, and Plaintiff negotiated a faculty appointment to UWEX. (Dkt. 38 ¶¶ 2, 32.) The employment contract is attached to the complaint as Exhibit 1, and specifies that the one-year appointment began on July 1, 2015 and was to end June 30, 2016. (Dkt. 38 ¶¶ 16-17, Ex. 1.) Mr. Brown alleges that certain representations were made to him outside the four corners of the contract. These include assurances that the plaintiff’s position was stable despite the political environment, and that UWEX desired a 10 - 15 year employment relationship. (Dkt. 38 ¶¶ 33, 34, 38.) Hanson relied on the contract appointment, closed his businesses, and moved to Wisconsin with his family. (Dkt. 38 ¶ 36.) Around August 2015, Plaintiff emailed Defendant Jason Beier, then UWEX’s Vice Chancellor for Human Resources, disclosing perceived unlawful and unethical directives, including submitting inaccurate invoices to the Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 2 of 15 3 state for payment, and pressure to submit inaccurate time sheets to the state, among other issues. Beier did not respond to the email. (Dkt. 38 ¶¶ 3, 42.) In August of 2015, a UWEX employee not named in the complaint told Hanson that some Grant County officials wanted Mr. Brown terminated. Brown discussed this with Hanson, who told him that the county cannot fire a UWEX faculty member. Hanson then disclosed a history of serious problems in Grant County and acknowledged he was aware of the county’s prior misdirection of resources. (Dkt. 38 ¶ 44-45.) On September 11, 2015, Brown met with Hanson and told Hanson and others about the problems in Grant County. Hanson said he would address the situation and thanked Brown for his professionalism. (Dkt. 38 ¶¶ 46-47.) At the end of the September 11 meeting, Hanson told Brown not to contact Beier again and implied that contact with Beier about Brown’s concerns had caused trouble. (Dkt. 38 ¶ 49.) On Sept. 15, 2015, Hanson sent Brown an email confirming that faculty cannot oversee financial disbursements. (Dkt. 38 ¶ 50.) Around October 15, 2015, Hanson told Brown he was considering shutting down the Grant County UWEX office. (Dkt. 38 ¶ 52.) Brown asked Hanson for a reassignment but no practicable reassignment was available. Brown then asked Hanson for a severance package, but Hanson told him that severance was not available, Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 3 of 15 4 and Beier told Brown that severance was not possible without a lawsuit. (Dkt. 38 ¶ 53.) Plaintiff learned that UWEX was aware of the misdirection of resources and learned (from a source not disclosed in the complaint) that those who spoke about the subject were targeted for constructive termination or non- renewal. (Dkt. 38 ¶ 54.) The complaint did not specify who had been targeted or who had done the targeting. On or about March 16, 2016 Mr. Brown arrived for his annual faculty review, but was instead escorted to a closed-door meeting attended by Hanson and others. He was told (not by Hanson) that the county was claiming to have “issues” with him. Hanson said he did not have time to investigate the issues, and Plaintiff was asked questions about the issues. (Dkt. 38 ¶ 58.) In violation of UWEX policies, Hanson stated the county would attend Plaintiff’s faculty review, and threatened Brown that his faculty appointment could be terminated. (Dkt. 38 ¶ 59.) After this conversation, Brown attended a previously scheduled meeting on local government education that Hanson appeared to be part of. (Dkt. 38, ¶¶ 61-62.) Hanson asked Brown some questions even though Brown stated he only attended the meeting to observe. (Dkt. 38 ¶¶63-67.) Brown filed a faculty grievance against Hanson. (Dkt. 38 ¶ 68.) Hanson emailed Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 4 of 15 5 Brown requesting a discussion about withdrawing support from Brown. (Dkt. 38 ¶ 69.) Brown went on a two week vacation, and upon his return on April 1, 2016, he emailed Hanson stating that his last day with UW Extension would be April 15, 2016. Hanson immediately accepted Brown’s resignation. (Dkt. 38 ¶¶ 72, 73.) 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 Hous. 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) (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 Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013). However, a complaint cannot simply contain “[t]hreadbare recitals of the elements of a cause of Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 5 of 15 6 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 the plaintiff’s 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). ARGUMENT I. Defendant Jason Beier must be dismissed because he was not personally involved in any constitutional violation and because the complaint does not satisfy basic pleading requirements as to Beier. At the outset, Brown did not make any claims directly against Beier. See Dkt. 38 ¶ 75 (First Amendment Retaliation against Hanson and others), ¶ 86 (privileges and immunities discrimination against Hanson and others), and ¶ 97 (defamation against Robert Kenney). The second amended complaint’s three claims all state who the claims are against, and none of them include Beier. For this reason alone, Beier should be dismissed from this lawsuit. The only arguable claim Plaintiff brought against Beier was the First Amendment Retaliation claim, because in Paragraph 84, Beier is listed amongst others who retaliated against Brown. However, this conclusory allegation does not satisfy pleading rules. Iqbal, 556 U.S. at 678. The complaint’s only allegation against Beier is that he received, but did not Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 6 of 15 7 respond to, an email that Brown sent him around August of 2015. (Dkt. 38 ¶ 42.) Receiving an email and not responding to it, even if it contains information to alert the recipient that someone else may violate the Constitution, does not in itself violate the Constitution. The failure to take corrective action does not alone give rise to a claim under 42 U.S.C. §1983. Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009).0F1 Section 1983 claims that do not allege constitutional violations are subject to dismissal under Fed. R. Civ. P. 12(b)(6). John Doe v. Metropolitan Police Dept. of Dist. of Columbia, 445 F.3d 460, 467 (D.C. Cir. 2006) (citing Albright v. Oliver, 510 U.S. 266, 271 (1994); and others). A plaintiff may only bring § 1983 claims against individuals who were personally involved in the constitutional deprivations they purport to have suffered. See Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir. 2011). “Section 1983 creates a cause of action based upon personal liability and predicated upon fault. An individual cannot be held liable in a [Section] 1983 action unless he caused or participated in an alleged constitutional deprivation.” Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). 1 Brown’s second amended complaint does not mention 42 U.S.C. § 1983, but the State defendants construe his claims as such, because the complaint alleges defendants violated the constitution while acting under color of state law. Boyd v. Anderson, 265 F. Supp. 2d 952, 957 (N.D. Ind. 2003). Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 7 of 15 8 An official may be liable for a constitutional violation only if he or she knew about it and had the ability to intervene but failed to do so. See Fillmore v. Page, 358 F.3d 496, 505-06 (7th Cir. 2004). But this rule “is not so broad as to place a responsibility on every government employee to intervene in the acts of all other government employees.” Windle v. City of Marion, 321 F.3d 658, 663 (7th Cir. 2003). Vicarious liability is inapplicable to section 1983 suits and, therefore, to state a claim, “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676 (emphasis added); see also Burks, 555 F.3d at 593-94. In the context of a Rule 12(b)(6) motion, a plaintiff must allege enough facts to show a defendant was personally involved in a constitutional deprivation. Moore v. State of Ind., 999 F.2d 1125, 1129 (7th Cir. 1993). Brown fails to state a claim against Jason Beier under the general pleading rules. Beier can only guess what Brown is accusing him of doing. See Twombly, 550 U.S. at 555; see also Potter v. Clark, 497 F.2d 1206, 1207 (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. . . .”). Jason Beier must be dismissed as a defendant. Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 8 of 15 9 II. Brown failed to state a First Amendment Retaliation Claim. Brown claims that Hanson and several Grant County defendants violated his rights under the First Amendment to the U.S. Constitution by retaliating against him for speaking out about perceived misdirection of resources. He asserts that Hanson retaliated against him by “knowingly and willfully” violating “multiple state policies to disrupt Plaintiff’s Faculty Review, threatened the so-called ‘60-day’ clause, and staged a ‘hearing’ the same day.” Then, the following day, Hanson sent Brown an email asking to discuss withdrawing support from Plaintiff, ending Plaintiff’s employment.” (Dkt. 38 ¶ 84.) To state a First Amendment retaliation claim, a plaintiff must “allege that (1) he engaged in activity protected by the First Amendment, [and] (2) he suffered an adverse action that would likely deter future First Amendment activity.” Santana v. Cook Cty. Bd. of Review, 679 F.3d 614, 622 (7th Cir. 2012). The alleged adverse action “must be sufficient to deter an ordinary person.” The standard is objective. 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. of Bellwood, 68 F.3d 187, 192 (7th Cir. 1995). The second amended complaint suffers from the same vagueness that this Court determined was insufficient to state a First Amendment Claim. Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 9 of 15 10 (Dkt. 36 at 22-23.) Specifically, he complained about misdirection of resources, but did not adequately explain what the misdirection was, why it was improper, or whether allocation of resources was part of his job responsibilities. Again, his second amended complaint simply did not provide enough information to determine whether Brown “plausibly alleged that he engaged in protected speech.” Id. at 23 (citing Connick v. Myers, 461 U.S. 138, 147-48 (1983)). Certainly, the employee grievance against Hanson was speech made as an employee on a matter of personal concern. Belk v. Town of Minocqua, 858 F.2d 1258, 1262 (7th Cir. 1988); Garcetti v. Ceballos, 547 U.S. 410, 420 (2006) (quotation and citation omitted). Brown does not fare any better under the second part of the test. Certainly, being terminated from one’s job would qualify as an adverse action under the First Amendment. However, that is not what happened to Brown. Brown was told-not by defendant Hanson-that some people from Grant County had “issues” with him, and Hanson stated that “the County” would attend Brown’s faculty review, even though UWEX policy did not support direct county participation in the reviews, and the “Grant County Ag & Extension Committee voted at the [January 2016] public meeting not to attend Faculty Reviews in the future.” (Dkt. 38 ¶ 22.)While a request to have members from the county at a faculty review may have been contrary to newly established practice and UWEX rules, having additional people (with Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 10 of 15 11 whom one works) attend a voluntary faculty review is not the type of conduct that “would likely deter a person of ordinary firmness from continuing to engage in protected activity.” Surita v. Hyde, 665 F.3d 860, 878 (7th Cir. 2011). (Dkt. 38 ¶ 22.) The same is true for the allegation that Hanson retaliated against Brown because Hanson asked him questions during a meeting. There is nothing in the complaint to indicate that the questions themselves were out of the ordinary or inappropriate, and while Hanson may not have expected to answer questions in a meeting he was attending, on these allegations, an ordinary person would not be deterred from engaging in first amendment activity based on being asked questions at a meeting. Likewise, Hanson’s email stating that he wanted to discuss withdrawing support for Brown does not qualify as an adverse action for First Amendment purposes. First, without more information, it is impossible to know exactly what Hanson meant by his email, and apparently Brown never asked. Instead, he resigned following a two-week vacation. (Dkt. 38 ¶¶ 69-72.) Second, even if Hanson had threatened to terminate Brown’s job, Brown’s contract expired on June 30, 2016, and there is nothing in the complaint to indicate Brown would be terminated prior to the contract’s expiration, other than a vague reference to a 60-day provision in the contract (which, according to the contract, can be invoked by Brown, and not UWEX). (Dkt. 38 ¶ 84, Ex. 1.) Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 11 of 15 12 “[R]etaliation need not be monstrous to be actionable under the First Amendment.” DeGuiseppe, 68 F.3d at 192. However, Brown must demonstrate that the alleged retaliatory conduct had “materially adverse consequences to him.” Id. Here, Brown decided to quit his job. This may have been a perfectly reasonable choice on his part given his concerns about misdirection of resources, and his feeling that Hanson may no longer support him. But, absent speculation, the second amended complaint does not establish that Hanson actually did anything retaliatory. Perhaps Hanson would have withdrawn support for Brown had Brown not resigned, but we will never know. Brown’s speculation as to what Hanson would have done had Brown not resigned is insufficient to state a claim for retaliation. The second amended complaint does not establish that Hanson or Beier retaliated against Brown for speaking on matters of public concern and the First Amendment claim therefore must be dismissed. III. Brown failed to state a claim under the Privileges and Immunities Clause to the U.S. Constitution. Brown’s second claim alleges that Hanson and several County defendants committed discrimination under the Privileges and Immunities Clause. The Privileges and Immunities Clause prohibits a state from discriminating against a citizen of another state. It “insure[s] to a citizen of Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 12 of 15 13 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). The only allegation against Hanson under this claim is that Hanson “was involved in the hire of the local.” This, coupled with a statement made by somebody else that Brown is not a local, led Brown to believe that he was being discriminated against because he is not from Wisconsin. This allegation is insufficient to state a privileges and immunities violation claim, and it should be dismissed for the same reason this Court dismissed the privileges and immunities claim Brown made in his first amended complaint. Brown has not alleged that Hanson discriminated against him at all, let alone based on the fact that he is not from Wisconsin. (Dkt. 36:27-28.) First, Hanson was not the defendant who made the comment about only hiring “locals.” Hanson, working with the County, was involved in hiring a “local.” (Dkt. 38 ¶ 90.) Hanson’s act of participating in the hiring of one “local” does not prove a violation of the privileges and immunities clause. After all, Brown alleged that Hanson is the one who hired him, and Hanson must have known Brown was from out-of-state. Moreover, there is no indication what the term “local” means. For example, perhaps the Grant County official who made the comment was referring to people who live in Grant County. Notwithstanding the other arguments, the vague reference to “locals” does not provide enough information to state a plausible claim. Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 13 of 15 14 Second, any preference of the County for rehiring “locals” does not appear to have injured Brown. Absent substantial speculation, it is implausible that Hanson sought to harm Brown-and in fact did harm Brown-because Brown was not from Wisconsin. Brown’s privileges and immunities claim against Hanson must be dismissed.1 F2 CONCLUSION Brown’s experience with UWEX was unfortunate, but unhappy employment relationships that lead to resignations do not violate the Constitution. Brown cannot state a claim against Hanson or Beier under the facts alleged. As this is Brown’s second amended complaint, the State defendants respectfully request that this Court dismiss his claims against them with prejudice. 2 The State defendants do not reach the issue of whether the privileges and immunities clause extends to public employment because the second amended complaint contains only threadbare allegations that the State defendants violated Brown’s constitutional rights. Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 14 of 15 15 Dated: April 7, 2017. Respectfully submitted, BRAD D. SCHIMEL Wisconsin Attorney General s/ Anne M. Bensky ANNE M. BENSKY Assistant Attorney General State Bar #1069210 Attorneys for the State Defendants Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 264-9451 (608) 267-8906 (Fax) benskyam@doj.state.wi.us Case: 3:16-cv-00346-bbc Document #: 49 Filed: 04/07/17 Page 15 of 15